THE CIVIL LAW

INCLUDING

The Twelve Tables, The Institutes of Gaius, The Rules of

Ulpian, The Opinions of Paulus, The Enactments

of Justinian, and The Constitutions of Leo:

Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.

By S. P. SCOTT, A. M.

Author of "History of the Moorish

Empire in Europe," Translator of

the "Visigothic Code"

IN SEVENTEEN VOLUMES VOL. IX.

CINCINNATI THE CENTRAL TRUST COMPANY

Executor of the Estate Samuel P. Scott, Deceased

PUBLISHERS

Copyright, 1932

BY THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased

CONTENTS OF VOLUME IX.

THE DIGEST OR PANDECTS.

(Continued.)

BOOK XXXIX.

(Continued.)

TITLE III. PAGE

CONCERNING THE RIGHT TO COMPEL A NEIGHBOR TO TAKE CARE OF WATER AND RAIN-WATER ............................................ 3

TITLE IV.

CONCERNING FARMERS OP THE PUBLIC REVENUE, LEASES OF PUBLIC LANDS, AND FORFEITURES ............................................ 17

TITLE V. CONCERNING DONATIONS .......................................... 24

TITLE VI. CONCERNING DONATIONS AND OTHER ACQUISITIONS MORTIS CAUSA. ..... 35

BOOK XL.

TITLE I. CONCERNING MANUMISSIONS ...................................... 45

TITLE II. CONCERNING MANUMISSIONS BEFORE A MAGISTRATE ................... 51

TITLE III. CONCERNING THE MANUMISSION OF SLAVES BELONGING TO A COMMUNITY 56

TITLE IV. CONCERNING TESTAMENTARY MANUMISSIONS. ........................ 56

TITLE V. CONCERNING FREEDOM GRANTED UNDER THE TERMS OF A TRUST. ........ 71

TITLE VI. CONCERNING THE DEPRIVATION OF FREEDOM .......................... 103

TITLE VII. PAGE CONCERNING SLAVES WHO ARE TO BE FREE UNDER A CERTAIN CONDITION 103

TITLE Vill.

CONCERNING SLAVES WHO OBTAIN THEIR FREEDOM WITHOUT MANUMISSION .................................................... 124

TITLE IX.

WHAT SLAVES, HAVING BEEN MANUMITTED, DO NOT BECOME FREE, BY WHOM THIS is DONE; AND ON THE LAW OF .^LIA SENTIA. ......... 125

TITLE X. CONCERNING THE EIGHT TO WEAR A GOLD RING. ...................... 133

TITLE XI. CONCERNING THE RESTITUTION OF THE RIGHTS OF BIRTH ............... 134

TITLE XII. CONCERNING ACTIONS RELATING TO FREEDOM ......................... 135

TITLE XIII.

CONCERNING THOSE WHO ARE NOT PERMITTED TO DEMAND THEIR FREEDOM .................................................... 148

TITLE XIV. WHERE ANYONE is DECIDED TO BE FREEBORN ......................... 150

TITLE XV.

No QUESTION AS TO THE CONDITION OF DECEASED PERSONS SHALL BE RAISED AFTER FIVE YEARS HAVE ELAPSED AFTER THEIR DEATH. .... 151

TITLE XVI. CONCERNING THE DETECTION OF COLLUSION. ......................... 153

BOOK XLI.

TITLE I. CONCERNING THE ACQUISITION OF THE OWNERSHIP OF PROPERTY. ....... 154

TITLE II. CONCERNING ACQUIRING OR LOSING POSSESSION. ...................... 178

TITLE III. CONCERNING THE INTERRUPTION OF PRESCRIPTION, AND USUCAPTION ..... 198

TITLE IV. CONCERNING POSSESSION ACQUIRED BY A PURCHASER. ................. 214

TITLE V. PAGE CONCERNING POSSESSION AS HEIR OR AS POSSESSOR .................... 221

TITLE VI. CONCERNING POSSESSION ON THE GROUND OF DONATION ................ 222

TITLE VII. CONCERNING POSSESSION ON THE GROUND OF ABANDONMENT. ......... 223

TITLE Vill. CONCERNING POSSESSION ON THE GROUND OF A LEGACY. ................ 224

TITLE IX. CONCERNING POSSESSION ON THE GROUND OF A DOWRY. ................ 225

TITLE X. CONCERNING POSSESSION ON THE GROUND OF OWNERSHIP .............. 226

BOOK XLII.

TITLE I.

CONCERNING RES JUDICATA AND THE EFFECT OF DECISIONS, AND INTERLOCUTORY DECREES ........................................... 228

TITLE II. CONCERNING CONFESSIONS ......................................... 244

TITLE III. CONCERNING ASSIGNMENT FOR THE BENEFIT OF CREDITORS. ............ 246

TITLE IV. CONCERNING THE REASONS FOR POSSESSION BEING GRANTED ............ 247

TITLE V.

CONCERNING THE POSSESSION AND SALE OF PROPERTY BY JUDICIAL AUTHORITY ................................................. 254

TITLE VI. CONCERNING THE PRIVILEGES OF CREDITORS .......................... 259

TITLE VII. CONCERNING THE SEPARATION OF THE PROPERTY OF AN ESTATE ......... 264

TITLE Vill. CONCERNING THE APPOINTMENT OF A CURATOR OF PROPERTY ............ 269

TITLE IX.

CONCERNING RESTITUTION WHERE FRAUDULENT ACTS HAVE BEEN COMMITTED AGAINST CREDITORS .................................... 271'

BOOK XLIII.

TITLE I. PAGE

CONCERNING INTERDICTS OR THE EXTRAORDINARY PROCEEDINGS TO WHICH THEY GIVE RISE.............................................. 283

TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM ....................... 285

TITLE III. CONCERNING THE INTERDICT QUOD LEGATORUM. ...................... 285

TITLE IV.

CONCERNING THE INTERDICT WHICH PROHIBITS VIOLENCE BEING EMPLOYED AGAINST A PERSON PLACED IN POSSESSION. ................ 288

*

TITLE V. CONCERNING THE PRODUCTION OP PAPERS RELATING TO A WILL. ....... 290

TITLE VI.

CONCERNING THE INTERDICT FOR THE PURPOSE OF PREVENTING ANYTHING BEING DONE IN A SACRED PLACE. ............................... 293

TITLE VII. CONCERNING THE INTERDICT RELATING TO PUBLIC PLACES AND HIGHWAYS 293

TITLE Vill.

CONCERNING THE INTERDICT FORBIDDING ANYTHING TO BE DONE IN A PUBLIC PLACE OR ON A HIGHWAY. .............................. 294

TITLE IX.

CONCERNING THE EDICT RELATING TO THE ENJOYMENT OF A PUBLIC PLACE ...................................................... 299

TITLE X.

CONCERNING THE EDICT WHICH HAS REFERENCE TO PUBLIC STREETS AND ANYTHING DONE THEREIN ..................................... 300

TITLE XI.

CONCERNING THE INTERDICT WHICH HAS REFERENCE TO REPAIRS OF PUBLIC STREETS AND HIGHWAYS. ............................... 301

TITLE XII.

CONCERNING THE INTERDIC^ WHICH HAS REFERENCE TO RIVERS AND THE PREVENTION OF ANYTHING BEING DONE IN THEM OR ON THEIR BANKS WHICH MAY INTERFERE WITH NAVIGATION ................ 301

TITLE XIII.

CONCERNING THE INTERDICT TO PREVENT ANYTHING FROM BEING BUILT IN A PUBLIC RIVER OR ON ITS BANK WHICH MIGHT CAUSE THE WATER TO FLOW IN A DIFFERENT DIRECTION THAN IT DID DURING THE PRECEDING SUMMER .......................................... 304

TITLE XIV.

CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE USE OF A PUBLIC RIVER FOR NAVIGATION. ................................ 306

TITLE XV.

CONCERNING THE INTERDICT WHICH HAS REFERENCE TO RAISING THE BANKS OF STREAMS. .......................................... 307

TITLE XVI.

CONCERNING THE INTERDICT AGAINST VIOLENCE AND ARMED FORCE. .... 308

TITLE XVII. CONCERNING THE INTERDICT UTI POSSIDETIS. ........................ 318

TITLE XVIII.

CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE SURFACE OF THE LAND .................................................. 321

TITLE XIX.

CONCERNING THE INTERDICT WHICH HAS REFERENCE TO PRIVATE RIGHTS OF WAY .................................................... 323

TITLE XX.

CONCERNING THE EDICT WHICH HAS REFERENCE TO WATER USED EVERY DAY AND TO SUCH AS is ONLY USED DURING THE SUMMER. ......... 328

THE DIGEST OR PANDECTS.

(Continued.)

BOOK XXXIX.

TITLE III.

CONCERNING THE RIGHT TO COMPEL A NEIGHBOR TO TAKE CAKE OF WATER AND RAIN-WATER.

1. Ulpianus, On the Edict, Book XLIII.

Where rain-water causes damage to anyone, he will be entitled to an action to compel his neighbor to divert it from his premises. By rainwater we mean that which falls from the heavens, and increases after a heavy rain, whether it does the damage of itself, or, as Tubero says, is mixed with other water.

(1) This action can be brought before the damage has been sustained, and after some building has been constructed, on account of which damage is apprehended. It will lie whenever water will probably result in injury through human agency, that is to say, whenever anyone does something which will cause the water to flow in some other way than it is naturally accustomed to do, that is, if by allowing it to run, he causes the amount to become greater, or the current to become more rapid, or stronger, or if, by confining it, he causes it to overflow. If, however, the water, by its nature, should cause damage, it cannot give rise to an action.

(2) Neratius says a certain man constructed a levee to exclude the water which ordinarily flowed from a marsh upon the land; if the marsh should be filled with rain-water, and it, having been turned aside by the levee which he constructed, should damage the field of his neighbor, he can be compelled to remove it by an action brought for that purpose.

(3) Quintus Mucius says that this action will not lie with reference to work performed with a plow, for the purpose of cultivating land. Trebatius, moreover, only allows this exception where the work done with the plow is only performed for the purpose of obtaining a better crop of grain, and not merely for the benefit of the land.

(4) Where ditches are dug for the purpose of draining fields, Mucius says that this is done for the sake of cultivation, but it must not cause the water to flow in a single stream; for a man has a right to improve his land, but he must not do so by damaging that of his neighbor.1

(5) Moreover, if anyone can plow and sow his fields without making furrows for drainage, he will be liable if he makes any, even though

1 "Nemo ex alterius detrimento fieri debet locupletari."—ED.

he may be held to have done so for the purpose of cultivating his land. But if he could not sow his seed without opening furrows to carry off the water, he will not be liable. Ofilius, however, says that a person has a right to dig ditches for the purpose of cultivating his land, provided they all follow the same course.

(6) It is said by the authors on Servius, that if anyone has planted willows, and the flow of the water is arrested by them, and damages a neighbor, the latter can bring an action on this account.

(7) Labeo, also, says that this action does not apply to anything which is done for the purpose of gathering grain and fruit, and it makes no difference what kind of crops are to be gathered by means of the work performed.

(8) Both Sabinus and Cassius hold that this action is applicable to any work performed by the hand of man, unless it is done for the purpose of cultivating the soil.

(9) They also say that a party will be liable to this action if he makes any water-course on his land which the Greeks call €AiXes.

(10) The same authorities say that an action to control rain-water will not lie where the water flows naturally, but if by means of any work it is turned back, or falls on land below, suit can be brought.

(11) They also say that everyone has the right to retain rainwater on his own premises, or to use for his own benefit any which flows from those of his neighbor, provided he performs no work on the land of another; for no one is forbidden to profit by anything so long as he does not injure some one else, nor can anyone be held liable on this ground.

(12) In conclusion, Marcellus says that when anyone, while excavating upon his own land, diverts a vein of water belonging to his neighbor, no action can be brought against him, not even one on the ground of malice. And it is evident that he should not have such a right of action, where his neighbor did not intend to injure him, but did the work for the purpose of improving his own property.

(13) It must be remembered that this action can be brought by one owning land situated above against one owning land situated below, to prevent water which flows naturally from running over his fields as the result of some work which has been constructed, and by the owner of the land below to prevent him from diverting the water from its natural course.

(14) It should also be noted that this action will never lie where the nature of the ground causes the damage. For (properly speaking) , it is not the water, but the nature of the ground which causes it.

(15) In short, I think that this action will only lie where the rainwater itself causes the damage, or where, having been allowed to collect it is the source of injury, and this occurs not naturally, but through human agency; unless the work is done for the purpose of cultivating the soil.

(16) Water is said to be increased by the rain, when it changes its color, or the quantity is greatly augmented.

(17) It must also be remembered that this action will not lie except where the water causes'some injury to land, for it cannot be brought if it injures a building, or a house in a town; as, in the latter instance, suit can be brought on the ground that the neighbor has not the right to let the water drip or flow upon our premises. Therefore, Labeo and Cascellius say that an action of this kind is a special one, and that which has reference to canals and the dripping of water is one of general application, and can be brought everywhere. Hence, when water injures land, the party who is responsible can be sued to compel him to retain the water in its proper channel.

(18) We do not inquire from what source the water is derived; for if it has its origin in a public or a sacred place, and runs through the land of a neighbor, and he, by some means, diverts it upon my premises, Labeo says he will be liable to this action.

(19) Cassius also says that if water from a building in a city injures either land or a building in the country, an action must be brought under the law having reference to canals and the dripping of water.

(20) Moreover, I find it stated by Labeo that if water flowing from my field injures land situated between two buildings, an action cannot be brought against me to compel me to take care of the rainwater.

This action, however, can be brought where the water flows from a place of this kind upon my land and damages it.

(21) Moreover, as where any work that is performed in such a way that rain-water causes me damage, this action can be brought; so, on the other hand, the question arises whether an action of this kind will lie if my neighbor should do some work to prevent the water from running over my land, and which is a benefit to him. Ofilius and Labeo hold that it cannot be brought, even if it was to my interest that I should have access to the water, because it will only lie where rain-water causes damage, and not where it is a benefit.

(22) If a neighbor should remove the structure which he had erected, and, after its removal, the water following its natural course should injure the field belonging to the owner below, Labeo thinks that this action cannot be brought; since it is a perpetual servitude enjoyed by land situated below to receive water pursuing its natural course. Labeo, however, acknowledges that it is evident if, on account of the work having been removed, the water should flow more rapidly, or collect in its channel, an action of this description can be brought.

(23) Finally, he says that certain laws have been enacted with reference to the different conditions of land; so that if on certain tracts there are large accumulations of water, I may be permitted to build levees or excavate ditches on your ground, for my own protection.

Where, however, there is no condition mentioned with reference to land, the natural condition of the same must be preserved, and the lower tract will always be subject to the upper one; and this inconvenience must be naturally endured by the one situated below, for

the benefit of the upper tract, and should be compensated for by other advantages; for, as all the fertile soil of the upper tract is carried upon the lower, so, also, the inconvenience of the water flowing upon it must be tolerated. But if no special law relating to the tract of land in question can be found, ancient custom is held to take the place of law.1 For, indeed, with reference to servitudes, we follow this rule that where a servitude is not found to have been imposed, and one has been enjoyed for a long time without force, or by a precarious title, or clandestinely, the servitude is held to have been created by a long-established custom, or by law. Therefore, we cannot compel a neighbor to build levees, but we ourselves can build them on his land, and to obtain the enjoyment of this species of servitude we are entitled to either a praetorian action or an interdict.

2. Paulus, On the Edict, Book XLIX.

In short, there are three causes by which a lower tract of land may be subject to an upper one; namely, a law, the nature of the ground, and ancient custom, which is always regarded as law, that is to say, for the purpose of terminating disputes.

(1) The following case was suggested by Labeo. An old ditch was in existence for the purpose of draining certain fields, and no one remembered when it was made. The neighbor below did not clean it out, and, for this reason, the water, being obstructed in its course, injured our land. Hence Labeo says that suit can be brought against the person owning the land below, to compel him to clean out the ditch himself, or to permit you to restore it to its former condition.

(2) Again, if the ditch is on the boundary line, and the neighbor does not permit the part which is on your side to be cleaned out, Labeo says that you can bring this action against him.

(3) Cassius states that if any works are constructed by public authority for the purpose of conducting water, this action will not lie; and that matters will be in the same condition as where ancient usage transcends the memory of man.

(4) It is, however, stated by Ateius that the neighbor above can be compelled to clean out a ditch by which the water flows upon the land of the neighbor below, whether the memory of its construction survives or not. I myself think that this opinion should be approved.

(5) Varus says the force of the current has broken the levee on the land of a neighbor, and the result is that the rain-water causes me damage. He holds that if the levee was a natural one, that I cannot bring this action against him to compel him to repair the levee, or to permit it to be repaired. He also holds that if the levee was built by human agency, and it is remembered when this was done, the neighbor will be liable to this action.

Labeo, also, says that if the levee was built by the hand of man, the action can be brought to compel it to be restored, even if it should notbe remembered when it was constructed; for no one can be com-

1 "Consuetudo et com/munis assuetudo vincit legem non scriptam, si sit specialis." •—ED.

pelled by this proceeding to do something to benefit his neighbor, but only to prevent him from injuring him, or to force him to permit us to do what can be done by law. Although the action to compel him to take care of the rain-water cannot be brought, still I am of the opinion that I will be entitled to a praetorian action or an interdict against my neighbor, if I desire the levee to be rebuilt upon his land, which, if done, will be of advantage to me and at the same time will not cause him any injury. This course is suggested by equity, although we have no law which authorizes it.

(6) It is said by Namusa that, if water flowing through its regular channel is obstructed by a deposit of soil, and on account of being arrested injures land situated above, an action can be brought against the owner of the land below, to compel him to permit the channel to be cleaned out; for this action is not only available in the case of work performed by human agency, but also has reference to all obstacles which do not owe their existence to our will.

Labeo does not agree with Namusa, for he says that the nature of land can be changed by itself; and therefore where the nature of a field is changed in this manner, both parties should endure it with equanimity, whether their condition is improved, or made worse. Hence, if the nature of the ground is changed by an earthquake, or by the force of a tempest, no one can be compelled to permit the land to be restored to its former condition.

We also adopt the principles of equity in a case of this kind.

(7) Labeo adds that if the accumulation of water excavates a hole on your land, an action to divert the water cannot be brought against you by your neighbor. It is, however, clear that if a channel has been dug in accordance with law, or the right to it has been established by custom beyond the memory of man, an action of this kind can be brought against you to compel you to make repairs.

(8) Labeo also says that when inquiry is made to ascertain whether the work was constructed within the memory of man, the exact date and the Consulate should not be required, but it will be sufficient if anyone knows when the work was constructed, that is to say, if there is no doubt on the subject; nor is it necessary that the persons who remembered it should be living, but only that others should have heard those who remembered its construction state the fact.

(9) Labeo also says that if a neighbor turns aside a torrent to prevent the water from reaching him and, by doing so, his neighbor is injured, an action cannot be brought against him for diverting the water from its course; since, in order to divert it, it must be prevented from flowing upon his premises.

This opinion is perfectly true, provided he did'not act with the intention of injuring you, but to prevent injury to himself.

(10) I also think that the opinion of Ofilius is correct, namely, if your land owes that of your neighbor a servitude, on account of which it receives its water, this action will not lie unless the damage sustained is excessive. The result of this is, and it coincides with the opinion of Labeo, that if anyone should transfer to his neighbor the

right to allow water to flow upon his land, he cannot bring an action of this kind against him.

3. Ulpianus, On the Edict, Book LIII.

It is related by Trebatius that a certain person, on whose land there was a spring, established the business of a fuller near the said spring, and permitted the water, after being used in this way, to flow upon the land of his neighbor. He says that he would not be liable to an action of this kind brought by his neighbor, but many authorities hold that if he confines the water to a channel or throws any filth into it, he can be prevented from doing so.

(1) Trebatius also thinks that where anyone is damaged by a flow of warm water, he can bring a suit of this kind against his neighbor, but this is not true, for warm water is not rain-water.

(2) If a neighbor who was accustomed to irrigate a field during a certain season of the year should make a meadow of it, and by constant irrigation should cause his neighbor damage, Ofilius says that he will not be liable to an action on the ground of threatened injury, or for the diversion of rain-water, unless he has levelled the ground so that, in this way, the water will be carried more rapidly upon the land of his neighbor.

(3) It has been established, and we adopt the rule, that a person is not liable to this action, except when he does the work, which causes the damage, upon his own land. Therefore, if anyone performs any work upon public land, this action will not lie; and he who did not provide against threatened injury by obtaining the execution of a bond has no one to blame but himself. If, however, the work is performed upon private premises, as well as upon public land, Labeo says that an action of this kind can be brought for everything.

(4) An usufructuary cannot bring this action, nor can it be brought against him.

4. The Same, On the Edict, Book LIII.

Moreover, although this action can only be brought against the owner of the work, still Labeo says that if anyone builds a sepulchre, and the water from it injures a neighbor, it is preferable to adopt the rule that the owner will be liable to this action, even if he had ceased to be such because of the ground having become religious, for he was the owner at the time when the structure was erected. If he should be compelled by order of court to restore the work to its former condition, an action for the violation of the sepulchre will not lie.

(1) Julianus also said that, if after proceedings had been instituted to compel him to take care of the rain-water, and he against whom suit had been brought for damages previously sustained, and for the restoration of the property to its original condition, should alienate the land, the judge must render the same decision which he would have done if no alienation had taken place; for, after the land had been alienated, the case remains the same, and the account of the damage should include any which had been suffered after the alienation took place.

(2) Julianus also says that this action cannot be brought against anyone but the owner of the property, and therefore, if a tenant should erect any structure without the owner of the land being aware of it, the latter is not compelled to do anything except to suffer the structure to be destroyed. The tenant, however, can, by the interdict Quod vi OMt clam, be compelled to restore the property to its former condition, and to pay any damages which may have been sustained. If, however, the owner should wish to obtain security against threatened injury from the owner of the land, it would be perfectly just for it to be given him.

(3) If, however, I did not construct such a work, but my agent did, and my neighbor is injured by the water, the action can be brought against me, just as it can be against the tenant. The agent, however, can, according to the opinion of Julianus, have proceedings instituted against him under the interdict Quod vi aut clam, even after the property has been restored to its former condition.

5. Paulus, On the Edict, Book XLIX.

If a tenant, without the knowledge of the owner, should construct a work by means of which the water injures a neighbor, Labeo gives it as his opinion that the tenant will be liable under the interdict Quod vi aut clam, and that the action relating to the care of rain-water can be brought against the owner of the land, because he alone can restore the property to its original condition; but, in this instance, he can only be compelled to allow it to be restored where a bond of indemnity providing against threatened injury has been obtained by a stipulation.

If he should incur any expense in restoring the property to its former condition, he can recover it from the tenant in an action on lease, unless someone should decide that he cannot do so, because it was not necessary for him to restore it. If, however, he acted by the direction of the owner of the land, the latter will also be liable to the interdict.

6. Ulpianus, On the Edict, Book LIII.

If the neighbor next above the one adjoining me constructs a work by which the water, running over the land of my nearest neighbor, causes me damage, Sabinus says that I can bring an action either against the one immediately above me, or against the one above him, if the former fails to do so. This opinion is correct.

(1) If the water flowing from land owned by several persons causes damage, or if it injures land belonging to several persons, it has been decided, and we adopt the same rule, that where it belongs to several owners, suit can be brought by each one in accordance with his interest, and judgment can be rendered proportionally; or where the action is brought against several persons, judgment shall be rendered against them individually in proportion to their respective shares.

(2) Hence the question arises, if water from your land should cause damage to a field held in common by yourself and me, whether this action can be brought. I think that it can, in such a way, however, that only a portion of the damage shall be paid by the party who loses the case.

(3) On the other hand, where the water from a field held by joint-owners damages land owned by one of them, an action of this kind can be brought, but the party who brings it can only obtain damages in proportion to his share.

(4) If anyone, before instituting proceedings, should transfer the ownership of the land to another, he will cease to have a right to bring this action, and it will pass to the person to whom the field belongs, for the action has reference to injury which may, in the future, be sustained the owner; although the work may have been done when the land belonged to the former proprietor.

(5) It must be remembered that this action is not a real, but a personal one.

(6) It is the duty of the judge, in a case of this kind, where any work has been done by a neighbor, to order him to restore the property to its former condition, and to pay all damages sustained after issue has been joined. If, however, any damage was caused before issue was joined, he should only compel him to restore the property to its original condition, and not to pay any damages.

(7) Celsus says, that if I build anything by which rain-water may cause you any damage, I can be compelled to remove it at my own expense. If anyone else, over whom I have no authority, should do this, it will be sufficient if I permit you to remove the structure. But if my slave, or anyone whose heir I am, should do the work, I will be obliged to surrender the slave by way of reparation; but if the person whose heir I am, did it, it is just the same as if I myself had erected the building.

(8) The judge must estimate the damage in accordance with the truth of the matter; that is to say, according to the amount of damage which appears to have been sustained.

7. Paulus, On the Edict, Book XVIII.

He against whom suit is brought to compel him to take care of rain-water, and who has performed the work*rendering him liable to such an action, will be compelled to join issue in the case, even if he is ready to abandon it, since he is sued personally in his own name to compel him to remove the structure.

(1) The case is different with a bona fide purchaser, for he can only be compelled to permit the destruction of the work; and therefore if he abandons the property he should be heard, for he offers to do more than is required of him.

8. Ulpianus, On the Edict, Book LIII.

In granting the right to conduct water, the consent, not only of those on whose ground the source of the water is situated, but also of those who have the use of the same, must be obtained; that is to

say, the consent of the persons to whom the servitude of said water is due. This is not unreasonable, for their right is diminished, and hence their consent is required. Generally speaking, it is held that the consent of all those who have any right to the water itself, or any interest in the land through which it flows, or on which its source is situated, must be obtained.

9. Paulus, On the Edict, Book XLIX.

In the case of the conditional sale of land, the consent of both the purchaser and the vendor must be obtained; so that it may be certain that the transfer of-the right to the water is made with the permission of the owner, whether the property remains in the hands of the purchaser, or is returned to the vendor.

(1) Therefore, consent is required to prevent the owner from being injured without his knowledge, for he who has once given his consent cannot be considered to have sustained any injury.1

(2) In the transfer of the right to use water, the consent not only of him to whom the right to the water belongs, but also that of the owner of the land is required, even though the latter cannot at present make use of the water, because the right to do so may afterwards revert to him absolutely.

10. Ulpianus, On the Edict, Book LIII.

When there are several owners of the same land in which a stream of water has its source, there is no doubt that the consent of all of them must be obtained; for it would be unjust if the consent of one who is the owner of, perhaps, a very small share, should prejudice the rights of the other joint-owners.

(1) Let us see whether subsequent consent can be obtained. It is established that it makes no difference whether the consent precedes or follows the conducting of the water, because the Praetor must also take into consideration consent afterwards given.

(2) Labeo says that, if a river is navigable, the Praetor must not grant permission for enough water to be taken from it to render it less navigable. The same rule applies where another river is rendered navigable by means of the water of the one in question.

11. Paulus, On the Edict, Book XLIX.

An aqueduct cannot legally be constructed so as to interfere with a right of way. Nor can a person who is entitled to a right of way legally build a bridge for the purpose of enjoying his right. But if, for this purpose, he should conduct the water by means of a covered, and not an open canal, the water will become deteriorated, because it remains under ground, and the stream will dry up.

(1) Cassius says that if water flowing from a tract of land owned in common, or upon one owned in common, causes any damage, one of the joint-owners can bring an action against one of the proprietors

1 "Volenti non fit injuria."—ED.

of the other tract, or can sue each of them separately; or, on the other hand, each of them can sue one of their number, or they can all individually sue one another. If one of them brings suit, and the damage is estimated and paid in court, the right of action of the others is extinguished. Likewise, where one of them is sued and makes payment, the others will be released from liability, and whatever has been paid by him for the benefit of his fellow joint-owners can be recovered by an action in partition. The action, however, cannot be brought by the person who did the work against his fellow joint-owners, as he who was responsible for it must make restitution for all damages sustained.

(2) Proculus says it is stated by Ferox that if an action of this kind is brought against one of several joint-owners, who did not himself do the work, he must be reimbursed for his expenses, because he is entitled to an action in partition. He, however, holds that this joint-owner can only be compelled to allow the land to be restored to its former condition, because it was the fault of the plaintiff that he did not sue the person by whom the work had been performed, and it is unjust for him who did not perform it to be compelled to restore the land to its former condition, as he has a right to bring an action in partition. But what course must be pursued if his fellow joint-owner should not be solvent?

(3) Julianus says that he is in doubt as to what course should be pursued by the judge, where the structure to which the injury is attributed belongs to two joint-owners, and the land damaged by the water belongs to one alone. If the land on which the work was done belongs to several persons, and suit is brought against one of them, shall judgment be rendered against all on account of any damage sustained after issue has been joined, and restoration of the property to its original condition has been refused; just as in the case of a slave owned in common, where a noxal action is brought against one of his owners, and judgment is rendered against both of them, since whatever one of them paid he can recover from his fellow joint-owner?

Or shall we say that the owner who is sued on account of his share, and has judgment rendered against him for damages sustained and failure to restore the land to its original condition, as is done in an action for threatened injury where several persons own the land which it is feared will be damaged, and only one of them is sued, even though the work from which damage is apprehended is indivisible, and neither the building itself nor the ground can partially cause damage, the owner against whom the action is brought can, nevertheless, have judgment rendered against him in proportion to his share of the property? Julianus thinks that the same course should be pursued in an action to compel anyone to take care of rain-water, as is done to provide against threatened injury; because, in both instances, proceedings are instituted, not with reference to damage which has already been sustained, but on account of that which is apprehended.

(4) If the land injured by rain-water belongs to several persons, each one of them can bring suit against his neighbor; but he can not, after issue has been joined, obtain damages on account of injury sustained for an amount greater than his share. Moreover, if the land is not restored to its former condition, judgment must not be rendered against each one of the joint-owners for a larger sum than the value of his interest in the property.

(5) Ofilius says that one joint-owner can bring an action against another, where water is conveyed from the private premises of one of them upon land belonging to both in common.

(6) Trebatius thinks that if suit is brought on account of work due to human agency, the land must by all means be restored to its1 original condition by the party against whom the suit was brought. If, however, the land should be injured by the force of the water, or the ditches should be filled with gravel, or soil, then the owner of the land will only be compelled to permit this to be removed.

12. The Same, On Sabinus, Book XVI.

The purchaser, as well as the other successors (unless the sale is a fictitious one), must either restore the property to its original condition, if they are willing to do so, or must permit this to be done; for it is clear that the plaintiff will be prejudiced by delay. The joint-owner of the person who performed the work is in the same position if he himself had nothing to do with it.

The same rule also applies where land is acquired by donation or devise.

13. Gaius, On the Edict of the Urban Prsetor; Title, The Action Having Reference to Taking Care of Rain-water.

The vendor, or the donor, however, will be liable for damages sustained as well as for expenses incurred by the plaintiff through the interdict Quod vi aut clam.

14. Paulus, On the Edict, Book XLIX.

Ateius says that if anyone, after having constructed a work which causes damage, should sell .the land to a more powerful person in order to cease to be the owner of the same, proceedings may be instituted against him under the interdict Quod vi aut clam, and after the expiration of a year, an action based on fraud can be granted against him. •

(1) When an action is brought to compel another to take care of rain-water, the question arises whether or not the injury results from some act already performed; and hence, if through some defect in the ground a part of the soil has settled, even though on this account damage may be caused by rain-water to a neighbor below, the action will not lie. The same rule will also apply where anything attributable to human agency is deposited upon the land.

(2) In this action, as well as in that relating to threatened injury, anticipated damage is taken into consideration; while in almost all others payment is made for damages already sustained.

(3) With reference to damage caused before the action was brought, proceedings should be instituted under the interdict Quod vi aut cla/m; and with regard to that which may occur after the decision has been rendered, security against threatened injury must be furnished, or the property must be placed in such a condition that there will be no longer any danger of injury.

(4) A new action must be brought where a work has been constructed after issue has been joined in the case.

15. The Same, On Sabinus, Book XVI.

Sometimes the work which has been constructed after issue has been joined is removed, where that which was constructed before it cannot be removed without destroying the other.

16. Pomponius, On Sabinus, Book XX.

After the sale and transfer of land which has been injured, before judgment has been rendered in an action of this kind, the vendor can still obtain damages under the judgment; not because he has sustained any injury, but because the property has been damaged, and he must pay anything which he may recover to the purchaser.

If, however, the party who was sued should sell the land before any damage was done, suit must either immediately be brought against the purchaser, or within a year against the person who sold the land, if he did so for the purpose of avoiding a judgment.

17. Paulus, On Plautius, Book XV.

If the servitude to draw water at night should be granted me, and afterwards, by another transfer, I should also obtain the privilege of drawing water by day, and, during the time prescribed by law, I should only make use of my privilege at night, I will lose the servitude to draw water during the day, for the reason that in this instance there are two servitudes derived from different causes.

(1) It has been very properly decided that water cannot be conducted by means of stone aqueducts, unless this was included in the grant of the servitude, for it is not customary for a person who has water to conduct it through a channel made of stone. However, what is customary in cases of this kind can be done, as, for instance, water can be conducted through pipes, even if nothing on this point was stated in the grant of the servitude, provided always that no damage is caused to the owner of the land by doing so.

(2) It has been decided that the servitude of drawing water can be granted where there is a public highway between two tracts of land; and this is true. This is not only the case where there is a public highway between the two tracts, but also where they are divided by a public stream, in case the servitude of driving or of passage can be established, notwithstanding that the public stream divides the two tracts of land, that is to say, where the width of the stream does not prevent it from being crossed.

(3) The rule is the same where my neighbor owes a servitude to my land, which does not join his but joins another belonging to me,

as I can bring an action against him, and maintain my right to pass through his premises to my land beyond, although I may not have a servitude attaching to my intermediate tract; just as where a public road, or river which can be crossed by fording, lies between two separate tracts of land.

None of these servitudes, however, can be imposed where the intervening tract is sacred, religious, or holy, and cannot be used.

(4) If there is an intermediate tract of land which belongs to a third party between your premises and mine, I can impose the servitude for drawing water upon your land if the owner of the intermediate tract grants me the right of way through his premises; just as when I wish to obtain the perpetual right to take water from a public stream which forms the boundary of your land you can grant me a right of way to the stream.

18. Javolenus, On Cassius, Book X.

If the work which causes damage by rain-water is erected in a public place, the action cannot be brought; but where the two tracts are separated by a public place, it can be. The reason for this is that the owner alone is liable under this action.

(1) Water cannot be conducted across a public highway without the consent of the Emperor.

19. Pomponius, On Quintus Mucius, Book XIV.

Labeo says that if I construct any work and my neighbor does not object, and in consequence he suffers damage from rain-water, I will not be liable to an action of this kind.

20. The Same, On Sabinus, Book XXXIV.

This, however, only applies where he is not deceived through mistake or ignorance, for anyone who makes a mistake does not give consent.

21. The Same, On Quintus Mucius, Book XXXII.

If water which has its source on your land rushes with great force upon mine, and you intercept its course, so that it ceases to flow upon my premises, you will not be considered to have acted with violence, if I was not entitled to any servitude for the use of the water; nor will you be liable to an interdict Quod vi aut clam.

22. The Same, Various Passages, Book X.

If the usufruct of land is bequeathed, the action to compel care to be taken of the rain-water will lie for, as well as against the heir of him to whom the property belonged. If the usufructuary should suffer any inconvenience on account of some work which has been performed, he can sometimes avail himself of the interdict Quod vi aut clam.

If the action cannot be brought by the usufructuary, the question arises whether equitable action should be granted him, as the owner,

to compel the water to be taken care of; or whether he can also maintain that he has the right to enjoy the property. The better opinion, however, is that an equitable action to compel care to be taken of the rain-water should be granted.

(1) He who constructs a new work will not be considered to have restored the property to its former condition, unless he intercepts the course of the water of which complaint is made.

(2) But even if the usufructuary should construct the work by which the rain-water may cause damage to anyone, the legal action against the owner of the property will lie; but the question arises whether an equitable action to compel the water to be taken care of should not be granted against the usufructuary. The better opinion is that it should be granted.

23. Paulus, On Sabinus, Book XVI.

Any work which is performed by order of the Emperor, or the Senate, or by those persons who have first rendered the land capable of cultivation, is not included in this action.

(1) This action is also available with reference to lands owned and leased by the State.

(2) Levees made upon private lands along the banks of streams are also the object of this action, even though they cause damage on the other side of the stream, provided they have been constructed within the memory of man, and there was no right to make them.

24. Alfenus, Epitomes of the Digest by Paulus, Book IV.

A man who owned a field situated above that of another plowed it in such a way that the water was carried by the furrows and ridges upon the land of his neighbor below. The question arose whether he could be compelled by an action requiring him to take care of the rainwater, to plow in a different direction, so that the furrows would not be turned toward the premises of the neighbor. The answer was that he could not do anything to interfere with his neighbor plowing in any way that the latter desired.

(1) If, however, anyone plows across a water-course, and by means of the furrows, the water should be diverted upon the land of a neighbor, in such a way as to obstruct the water-course, he can be compelled to open it by means of this action.

(2) But if he should dig ditches by which the rain-water could injure a neighbor, he can be compelled by the court to fill them up, if it appears that the rain-water might afterwards cause damage, and judgment could be rendered against him, unless he did so; even though, before a decision was rendered, the water had not yet begun to flow through the ditches.

(3) When lakes either rise or fall, the neighbors have no right to do anything to affect either the increase or the diminution of the water.

25. Julianus, On Minicius, Book V.

Where a right of way is imposed upon the land of anyone, the person entitled to it can bring an action to compel care to be taken of rain-water for the benefit of the land, because by damaging the right of way the land also will be injured.

26. Scssvola, Opinions, Book IV.

Scaevola gave it as his opinion that those who have the right to render judicial decisions are accustomed to authorize the continuance of aqueducts, whose use has been confirmed by time, although the legal right by which they exist cannot be established.

TITLE IV.

CONCERNING FARMERS OP THE PUBLIC REVENUE, LEASES OP PUBLIC LANDS, AND FORFEITURES.

1. Ulpianus, On the Edict, Book LV.

The Praetor says: "If a farmer of the public revenue, or anyone belonging to the family of a farmer of the public revenue, takes anything by force in his name, and it is not restored to the owner, I will grant an action for double its value, and if suit is brought after a year has elapsed, I will grant one for its simple value. Moreover, I will grant an action, if any damage has been sustained, or any theft is said to have been committed. If the parties concerned in the matter are not produced, I will grant an action against the masters, without the privilege of surrendering their slaves by way of reparation."

(1) This Title has reference to farmers of the public revenue. Those are farmers of the revenue who handle the public funds, and they bear this name whether they pay a certain percentage to the Treasury, or collect tribute. Those, also, who lease property from the Treasury are properly called farmers of the revenue.

(2) Someone may ask, of what benefit is the Edict in question, just as if the Praetor had not elsewhere made provision for thefts, injuries, and robbery wifh violence. The Praetor, however, thought that, under the circumstances, it was best to issue a special Edict against farmers of the revenue.

(3) The penalty inflicted by this Edict is, in some respects, less severe, as damages are given for double the amount; whereas in the case of robbery with violence, they are quadrupled, as they also are in the case of manifest theft.

(4) Moreover, the farmer of the revenue is granted the power to restore property taken by violence, and if he does so, he will be released from all responsibility, and will not be liable to a penal action under this Section of the Edict. Hence, the question arises, if anyone desires to bring an action against a farmer of the revenue, not under this Edict, but under the general law relating to taking property by violence, unlawful damage, or theft, can he do so? It is established

that he can, and Pomponius also holds the same opinion, for it would be absurd for the legal position of a farmer of the public revenue to be considered better than that of other persons.

(5) The term "family," mentioned in the Edict, not only refers to the slaves of farmers of the revenue, but also to all those included in their households. Therefore, whether their own children or the slaves of others are employed in the collection of taxes, they will be included in this Edict. Hence, if the slave of a farmer of the revenue commits robbery with violence, but is not among the number of those who are employed in the collection of taxes, this Edict will not apply.

(6) What the Praetor says in the last place, namely, "If they are not produced, I will grant an action against their masters, without the privilege of surrendering them by way of reparation," is a special provision of this Edict, because if the slaves are not produced, an action will be granted without the privilege of surrendering them by way of reparation, whether the masters have them in their power or not; and whether they can produce them or not.

2. Gaius, On the Provincial Edict, Book XXI.

A master shall not be allowed to defend his absent slave.

3. Ulpianus, On the Edict, Book LV.

If the slave should not be produced by the master, the noxal action should be brought against him. Therefore, what makes the condition of the farmers of the revenue so trying is that they must select good slaves for this employment.

(1) Where the Praetor says, "Against the masters," we must understand this to mean against the associates of the collectors of taxes, although they may not be their masters.

(2) The plaintiff must mention beforehand the person or persons whom he may desire to be produced, so that, if this is not done, he will have a right of action. Even if he should say, "Produce all the parties, in order that I may recognize the one who is guilty," I think that he ought to be heard.

(3) Where several slaves have committed the theft or the damage, the rule ought to be observed that if the farmer of the revenue pays as large a sum as if a freeman had perpetrated the offence, he should be released from liability.

4. Paulus, On the Edict, Book LIL

If a farmer of the revenue, who removed the property by force should die, Labeo says that the action should be granted against his heir who profited by the act.

(1) The Divine Hadrian, in a Rescript addressed to the Governors of Gaul, stated with reference to property which the Governors were accustomed to have transported for their use, that when anyone sends for the purpose of making purchases for the benefit of those who command armies or govern provinces, or for that of their agents, he shall sign an order with his own hand, and send the same to the farmer of

the revenue, so that if the latter should transfer anything more than he had been ordered to do, he must make it good.

(2) In the collection of all revenues, the custom of the neighborhood is usually considered; and this is provided by the Imperial Constitutions.

5. Gaius, On the Edict of the Urban Praetor, Title: Farmers of the Revenue.

It is provided by this Edict that if the property should be restored before issue has been joined, the right of action will be extinguished; still, after this, suit for the penalty can be brought. If, however, Ihe farmer of the revenue is ready to make restitution even after issue has been joined, he should be released from liability.

(1) We may ask whether the payment of double damages provided by the Edict is entirely a penalty, and suit can afterwards be brought for the recovery of the property; or whether the recovery of the property is included in the double damages, so that the penalty is only simple. The weight of opinion is that the property is included in the double damages.

6. Modestinus, On Penalties, Book II.

Where several farmers of the revenue have unlawfully exacted something, the action to recover double damages is not multiplied, but all of them must pay their shares, and what cannot be paid by one shall be collected from another, as the Divine Severus and Antoninus stated in a Rescript; for they held that there was a great difference between persons who perpetrated a crime, and those who participated in the commission of a fraud.

7. Papirius Justus, On Constitutions, Book II.

The Emperors Antoninus and Verus stated in a Rescript that in the case of the taxes on public lands, the lands themselves, and not the persons holding them, should be made the subject of the action, and therefore that the possessors must pay any tax which was due, even for time which had passed before they obtained possession; and that, in a case of this kind, if they were not aware that any tax was due, they would be entitled to an action.

(1) It was also stated in the Rescript that a ward would be released from liability to the penalty of confiscation, if he paid the tax within thirty days.

8. Papinianus, Opinions, Book XIII.

The offence of evading taxation by fraud is transmitted to the heir of the person who committed the fraud, to the extent of causing confiscation of the property.

(1) Where one of several heirs for the purpose of evading the tax removes any of the property held in common, the others will not be deprived of their shares.

9. Paulus, Sentences, Book V.

If the heat of competition should induce a bidder desiring to obtain the farming of public revenues to raise his offer above the ordinary amount, it must be accepted, if he who makes the highest bid is ready to furnish sufficient security.

(1) No one can be compelled, against his consent, to lease the collection of taxes; and therefore when the time of the lease had expired, a new contract must be made.

(2) Farmers of the revenue, who have not made a settlement for the taxes collected by them, and who wish to enter into a new contract, shall not be permitted to do so before paying what is due under the former one.

(3) The debtors of the Treasury, as well as those of a city, are forbidden to contract to collect taxes, in order that their responsibilities may not be increased from another cause, unless they offer sureties who are able to satisfy their obligations.

(4) Where partners in collecting the revenue administer their office separately, one of them can legally petition to have the share of another who is less fitted for the place transferred to himself.

(5) Where anything has been unlawfully exacted, either from the public, or from private individuals, double the amount shall be paid to those who suffered the injury; anything, however, which has been extorted by violence shall be refunded together with a triple penalty, and, in addition to this, they will be liable to extraordinary prosecution; for, in the first instance, the right of private individuals, and in the second, the interest of the public demands it.

(6) Taxes on property on which no tax has ever been paid cannot be collected. If the indulgence of the farmer of the revenue should release property from taxation, on which it has been customary to pay, another is not forbidden to make the collection.

(7) It has been established that property for the use of the army is not liable to taxation.

(8) The Treasury is exempt from the payment of any tax. Merchants, however, who are accustomed to deal in goods purchased with funds belonging to the Treasury cannot enjoy immunity from the payment of taxes.

10. Hermogenianus, Epitomes, Book V.

Neither the Governors of provinces, the agents of municipalities, nor assemblies of the people are permitted to impose taxes, or to modify, add to, or diminish those already imposed, without the authority of the Emperor.

(1) Where farmers of the revenue have not paid what they owe to the Treasury, they cannot be discharged, even if the terms of their leases have expired; but interest can be collected from them when they are in default.

11. Paulus, Opinions, Book V.

It is not permitted, under penalty of death, to sell to enemies flints used for striking fire, iron, wheat, or salt.

(1) Public lands, which are held under a perpetual lease, cannot be taken from the lessee by an agent of the government without the authority of the Emperor.

(2) If either the owner of a ship, or any of the passengers, should unlawfully bring any merchandise on board, the ship as well as the merchandise can be confiscated by the Treasury. If anything of this kind is done in the absence of the owner, by the master, the helmsman, the pilot, or any sailor, he shall be put to death, and the merchandise shall be confiscated, but the vessel must be restored to the owner.

(3) Prosecution for dealing in contraband merchandise also extends to the heir of the guilty party. ;

(4) The owner of property which has been confiscated is not forbidden to purchase the same either himself, or through others whom' he has directed to do so. :

(5) Persons who have profited greatly from the farming of the public revenues are compelled to take them on the same terms on which they formerly held them, if the same amount cannot be obtained from others.

12. Ulpianus, On the Edict, Book XXXVIII. ;

There is no one who is not aware of the audacity and insolence of farmers of the revenue, and therefore the Prastor promulgated this Edict for the purpose of controlling them.

(1) "If anyone belonging to the household of a farmer of the revenue is accused of having committed theft, or has caused unlawful injury, and the property in question is not produced, I shall grant an action against the master, without the privilege of surrendering the slave by way of reparation."

(2) It must be noted that, in this instance, the slaves of the farmer of the revenue are meant by the term "household." If, however, a slave belonging to another should be in the service of the farmer of the revenue, in good faith, he will also be included.

Perhaps this would also be the case where he served him in bad faith, for wandering and fugitive slaves are often employed in work of this kind by persons who know who they are. Hence, if a freeman is serving in good faith as a slave, this Edict will also apply to' him.

(3) Those also are called farmers of the revenue who lease the income from public lands.

13. Gaius, On the Provincial Edict, Book XIII.

They also are included under the term farmers of the revenue who lease the income from salt pits, quarries, and mines belonging to the State.

(1) This Edict also applies to one who leases from the govern-1 ment the collection of taxes from a municipality.

(2) He who has a number of seditious slaves employed will be liable for the acts of one of them, if he should sell or manumit him, or even if the slave should take to flight.

(3) But what must be done if the slave should die? Let us see whether the farmer of the revenue will be responsible, as for his own act. I think that he should be released from liability, as he had not the power of producing the slave, and was not guilty of fraud.

(4) We grant this action as perpetual, and it will pass to the heir and other successors.

14. Ulpianus, Disputations, Book Vill.

The confiscation of property on the ground of non-payment of taxes also extends to the heir, for what is confiscated immediately ceases to belong to the party who committed the crime, and the ownership of the same is acquired by the Treasury. Therefore, proceedings for confiscation can be instituted against the heir, just as against any possessor whomsoever.

15. Alfenus Varus, Digest, Book VII.

When the Emperor leased the quarries of the island of Crete, he inserted the following clause in the lease: "No one except the farmer of the revenue shall make an excavation, or remove, or take out a single stone from the quarries of the Island of Crete, after the Ides of March." A ship belonging to a certain individual, which was loaded with flints, having departed from the harbor of Crete before the Ides of March, was driven back into the harbor by the wind and departed the second time after the Ides of March.

Advice was asked whether the flints should be held to have been removed contrary to law after the Ides of March. The answer was that although the harbors, which themselves were parts of the island, should all be considered as belonging to it, still, as the vessel, having left the port before the Ides of March, was driven back to the island by a storm, and afterwards departed, it should not be held to have done so in violation of law; especially as the flints must be considered to have been removed before the time prescribed, since the ship had already left the harbor.

16. Marcianus, On Informers.

Sometimes a slave, who has been confiscated, should not be sold, but his appraised value should be paid by his owner, instead. For the Divine Severus and Antoninus stated in a Rescript that where a slave, who was said to have transacted the business of his master, is confiscated, he should not be sold; but his appraised value should be paid in accordance with the judgment of a good citizen.

(1) The same Emperors stated in this Rescript that if the slave should fail to file a proper account, and was proved to have rendered himself liable to confiscation, or was alleged to have corrupted the wife of his master, or had committed any other serious offence, the deputy of the Emperor should take cognizance of the matter, and if the slave is found to be guilty, his value should be appraised, and he must be delivered up to his master to be punished.

(2) The Divine Severus and Antoninus also stated in a Rescript, that where slaves have made themselves liable to confiscation, their

peculium is not included unless property forming part of it should itself have become subject to forfeiture.

(3) Where anyone does not declare, as liable to taxation, slaves whom he is transporting either to be sold, or employed, he will incur the penalty of confiscation; still, this applies only to newly acquired slaves, and not to such as are old. Old slaves are those who have been in servitude for an entire year, in a town; new ones, however, are understood to be such as have not yet been in servitude for a year.

(4) Slaves, who are in flight, are not liable to confiscation, as they went away without the consent of their masters. This has been expressly provided by the Imperial Constitutions, as the Divine Pius frequently stated in Rescripts that it was not in the power of slaves to escape the control of their masters by taking to flight, if the latter were unwilling, or were not aware of the fact.

(5) The Divine Hadrian decided that, although a person may allege ignorance, he will, nevertheless, be liable to the penalty of confiscation.

(6) The Divine Marcus and Commodus also stated in a Rescript that a farmer of the revenue was not to blame for not instructing those who violated the law, but that he must be careful that those who were willing to declare their property for taxation should not be deceived.

(7) Merchandise subject to duty is as follows: cinnamon, long pepper, white pepper, pentaspherum, Barbary leaf, costum, costamo-mum, nard, Turian cassia, the wood of the cassia tree, myrrh, amo-mum, ginger, malabathrun, Indian spice, chalbane, benzoin, assafoetida, aloes, wood, Arabian onyx, cardamon, cinnamon wood, flax, Babylonian furs, Parthian furs, ivory, Indian iron, linen, all precious stones, pearls, sardonyx, crystals, hyacinths, emeralds, diamonds, sapphires, beryls, callaini, Indian drugs, Sarmation cloth, silk and muslin, painted hangings, fine fabrics, silk goods, eunuchs, Indian lions and lionesses, male and female panthers, leopards, purple, wool, crimson dye and Indian hair.

(8) The Divine Brothers stated in a Rescript that if a cargo was unavoidably exposed to bad weather it should not, on this account, be confiscated.

(9) The Divine Pius stated in a Rescript that where a person, said to .be a minor under twenty-five years of age, declared that his slaves were for his own use, and he made a mistake, merely in the return of said slaves, he should be excused.

(10) The Divine Brothers also stated in a Rescript that where the slaves of anyone became liable to confiscation, not through fraud, but through mistake, the farmers of the revenue should remain content with double the amount of the tax, and should restore the slaves to the owner.

(11) The great Antoninus stated in a Rescript that if a tenant, or his own slaves, should unlawfully have a manufactory of arms on the land of the owner, without his knowledge, he would not be liable to any penalty.

(12) If anyone should make a declaration to a farmer of the revenue, and does not pay the tax, and it should be remitted by the farmer of the revenue (as is customary at times), the Divine Severus and Antoninus stated in a Rescript that the property should not be confiscated; for they say that there is no ground for confiscation after the declaration has been made, as what is due to the Treasury can be collected from the property of the farmers of the revenue, or from that of their sureties.

(13) Penalties cannot be collected from heirs where proceedings were not instituted during the lifetime of the person who was delinquent. This rule, as is the case with other penalties, is also applicable to those relating to taxation.

(14) The Divine Severus and Antoninus stated in a Rescript that if a farmer of the revenue, through the mistake of the person making payment, receives more than is due, he must refund it.

TITLE V. CONCERNING DONATIONS.

1. Julianus, Digest, Book XVII.

There are several kinds of donations. A person makes a donation with the understanding that the property will at once belong to the person who receives it, and will, under no circumstances, revert to himself, and he does this for no other reason than to display his liberality and munificence. This is what is properly called a donation.

Another gives something with the understanding that it will only become the property of the person who receives it, if something else takes place. This is not properly styled a donation, for it is a conditional gift. Likewise, when anyone gives something with the intention that it will immediately become the property of the person who receives it, but if something either happens, or does not happen, he wishes it to be returned to him; this is not properly called a donation, but it is merely a gift, which is dependent upon a condition; as, for instance, a donation mortis causa.

(1) Therefore, when we may say that a donation between betrothed persons is valid, we use the term in its correct sense, and we understand by it anything given by a person who bestows it for the sake of liberality in order that it may immediately become the property of the one who receives it, and that, under no circumstances, he desires it to be returned to him. And when we say that a man gives a donation to his betrothed with the understanding that, if the marriage should not take place, the gift may be returned, we do not contradict what was previously stated, but we mean that a donation can be made between such persons, and may become void under a certain condition.

2. The Same, Digest, Book LX.

When a son under paternal control desires to make a donation of money, he promises it by the order of his father, and the donation will be just as valid as if he had furnished a surety.

(1) If, however, the father, being about to donate the money to Titius, should order his son to promise it to him, it may be said that there is a difference if the son is indebted to his father, and if he is not. For where he owes his father a sum equal to what he promises, the donation is considered valid, just as if the father had ordered any other debtor to promise the money.

(2) If, however, I am about to donate money to Titius, and I order you who intend to give me an equal sum, to promise it to Titius, the donation is complete, as far as all the persons are concerned.

(3) A different rule of law will apply if, by your order, I promise to pay to someone, to whom you wish to make a donation, the money which I think that I owe you, for I can protect myself by an exception on the ground of fraud; and, moreover, I can compel the stipulator, by means of the proceeding called incerti, to give me a release from the obligation.

(4) In like manner, if I, by your order, promise to pay a certain sum of money, which I think that I owe you, to a third party whom you believe to be your creditor, I can bar the person making the demand by an exception on the ground of fraud; and, in addition to this, by availing myself of the proceeding called incerti against the stipulator, I can compel him to release me from the stipulation.

(5) If Titius should pay me a sum of money without any stipulation, but on the condition that it will only belong to me when Seius becomes Consul, the money will become mine when Seius obtains the consulship, even though the person who made the donation should be insane or dead at that time.

(6) If anyone, desiring to make a donation of money to me, gives it to someone else to bring to me, and he should die before he does so, it is settled that the ownership of the money does not pass to me.

(7) I gave Titius the sum of ten aurei on the condition that he would purchase Stichus with it. I ask, if the slave should die before he was purchased, whether I can recover the ten aurei by any action. The answer was that this is rather a question of fact than of law, for if I gave the ten aurei to Titius in order that he might purchase Stichus, and I would not have given them to him otherwise, and Stichus should die, I can recover the amount by an action. If, however, I had the intention of giving the ten aurei to Titius, in any event, and, in the meantime, he proposed to purchase Stichus, and I stated that I gave him the money in order that he might purchase him, what I have said should be considered rather a reason for the donation than the condition upon which the money was paid, and if Stichus should die, the money will remain in the hands of Titius.

3. Ulpianus, On the Edict, Book LXVII.

And, generally speaking, this question must be considered in making donations, for there is a great deal of difference whether there was a cause for making the donation, and whether a condition upon which it is dependent was imposed. If there was a cause, the property cannot be recovered; if a condition was imposed, there will be ground for its recovery.

4. Paulus, On Sabinus, Book LXXII.

A donation can be completed even by a party who intervenes.

5. Ulpianus, On Sabinus, Book XXXII.

Neither honorable nor dishonorable donations are prohibited, where they are made on account of affection. They are honorable where they are given to deserving friends or relatives; dishonorable, where they are given to harlots.

6. The Same, On Sabinus, Book XL1I.

Where anyone permits me, by way of donation, to remove stone from his property, as soon as the stone is taken out it will be mine, and he cannot prevent me from having it by forbidding its removal, because it becomes mine, as it were, by delivery. It is clear that if someone, who had been employed by me, should quarry the stone, he quarries it for me.

If, however, anyone purchases the stone from me, or leases it for a consideration, in such a way that I can permit him to quarry for himself, and, before he does so, I change my mind, the stone will continue to belong to me. If I should change my mind afterwards I cannot revoke his act, as delivery is presumed to have been made when he quarried the stone with the consent of the owner. What applies to the stone should also be considered to apply where a tree is cut down, or is taken out by the roots, under similar circumstances.

7. The Same, On Sabinus, Book XLIV.

A son under paternal control cannot make a donation even if he has free administration of his peculium, for this is not granted him in order that he may lose his property.

(1) But what if, induced by some good reason, he makes a donation? Can it be said that there is legal ground for making it? The latter is the better opinion.

(2) Again, let us see if anyone should grant a son under paternal control the free administration of his peculium, and should add specifically that this is done to enable him to make a donation; will the donation be valid? I do not doubt that he can make a valid donation under such circumstances.

(3) Sometimes the power to make a donation may be inferred from the rank of the person; for suppose that the son was of senatorial rank, or had been promoted to some other portion, why can it not be said that his father, when he gave him the free administration of his peculium, granted him also the privilege of making a donation of it, unless he expressly deprived him of the power of doing so ?

(4) For the same reason that a son under paternal control is forbidden to make a donation inter vivos, he is also forbidden to make one mortis causa. For although he can make a donation mortis causa with the consent of his father, he is prohibited doing so if his consent is not given.

(5) It must, however, be remembered that if anyone is permitted to make a donation without it being specified that he can make one mortis causa, he cannot do so.

(6) All these regulations apply to persons in civil life. Where, however, soldiers have a castrense or a quasi castrense peculium, they are in such a position that they can make a donation mortis causa as well as a donation inter vivos, since they have testamentary capacity.

8. Paulus, On Sabinus, Book XV.

Money paid by freedmen in order to obtain their liberty is not a donation, for a consideration is given for it.

9. Pomponius, On Sabinus, Book XXXIII.

When permission is given anyone to lodge without payment in the house of another, it is considered a donation; for he who has the lodging is held to obtain as a gift the rent which he does not pay. A donation can also be valid without the delivery of the property; as, for instance, where, by way of donation I make an agreement with my debtor that I will not demand payment of him before a certain time has elapsed.

(1) The income from property which is donated is not included as part of the donation. If, however, I should give you, not the ownership of a tract of land, but the right to gather the crops, this will be held to constitute a donation.

(2) If a son under paternal control makes a donation by the order, or with the consent of his father, it is the same as if the father himself had made it, or if you should make a donation to Titius of my property with my consent in your own name.

(3) No one can make a donation, unless what is given becomes the property of the person to whom it is made.

10. Paulus, On Sabinus, Book XV.

A donation can properly be made to a person who is absent, whether you send someone to take it to him, or whether you direct him to keep something which he has in his possession. If, however, he does not know that the property which is in his possession is given to him, or if, after it is sent to him, he should not accept it, he will not become the owner of the article designated, even if it has been sent to him by his own slave; unless it was given to the latter with the intention that it should instantly become the property of his master.

11. Gaius, On the Edict of the Urban Prsetor Concerning Legacies.

When a dispute arises with reference to the amount of the donation, neither the children of female slaves, crops, rents, nor wages are held to be included.

12. Ulpianus, Disputations, Book III.

Anyone who binds himself to make a donation can, according to a Rescript of the Divine Pius, only be sued for an amount which he

is able to pay, for what he owes to his creditors must first be deducted; but what he is bound to give in the same manner to others should not be deducted.

13. The Same, Disputations, Book VII.

A certain person, who desired to make a donation to me, delivered the property to a slave jointly owned by Titius and myself, and the slave received it as an acquisition for my fellow joint owner, or did so on behalf of both of us. The question arose, what should be done? It was decided that although the slave accepted the property with the intention of acquiring it for my fellow joint owner, or for both himself and me, he, nevertheless, acquired it for me alone. For if he delivered it to my agent, with the intention that he should acquire it for me, and he accepted it in order to obtain it for himself, this will have no effect so far as he is concerned, but he will acquire the property for me.

14. Julianus, Digest, Book XVII.

Anyone who cultivates the land of another, by way of making a donation, cannot reserve anything on account of expenses which he may incur, because he immediately transfers to the owner the right to any implements which he takes upon the land.

15. Marcianus, Institutes, Book III.

According to a Constitution of the Divine Severus and Antoninus, donations made after the accusation of a capital crime are valid, unless the defendant is convicted.

16. Ulpianus, Opinions, Book II.

By the following clause, "Let my heirs take notice that my entire wardrobe, and any other property which I had in my possession at the time of my death, has been given to So-and-So and So-and-So, my freedmen," the ownership of the property will, by a liberal interpretation, belong to the said freedmen.

17. The Same, On the Edict, Book LVIIL

Where property awarded by a judicial decision has been included in a new stipulation, and a release had been made of the latter for the purpose of making a donation, it must be said that the release will be valid.

18. The Same, On the Edict, Book LXXI.

Aristo says that when any other transaction is mixed with a donation, an obligation growing out of the former is not contracted with reference to the donation. Pomponius also says that he holds the same opinion.

(1) He also says that Aristo thinks that if I deliver to you a slave on condition that you manumit him after five years, you cannot act before the five years have elapsed, because a species of donation is

considered to be included in the transaction. He, however, states that it will be otherwise if I deliver the slave to you in order that you may manumit him immediately; for, in this instance, there is no donation, and hence the obligation exists.

Pomponius, however, says that in the first instance the intention of the parties should be ascertained, for the term of five years may not have been prescribed with a view to making a donation.

(2) Aristo also says, that if a slave is delivered for the purpose of making a donation on condition that he shall be manumitted after five years have elapsed, and the slave belongs to another, a doubt may arise whether the slave can be acquired by usucaption, because a species of donation exists in this case.

Pomponius says that this question also applies to donations mortis causa, and he is inclined to think that if the slave was donated under the condition that he be manumitted after five years, it may be held that he can be acquired by usucaption.

(3) Labeo says that if anyone should give me property belonging to another, and I should incur considerable expense on account of it, and then it should be evicted, I will not be entitled to any action on this account against the donor; but it is evident that I will be entitled to one against him on the ground of fraud, if he acted in bad faith.

19. The Same, On the Edict, Book LXXVI.

It is our practice where, in public matters, a question arises with reference to a donation, to only ascertain whether the donor made a promise to the city for some just cause, or not; since if he did so in consideration of some office which he received, he will be liable; otherwise, he will not.

(1) Labeo says that compensation for services of this kind is not included in donations; for example, if they are made conditionally as follows, "If I come to your aid; if I give security for you; if you make use of my services, or influence in the transaction."

(2) A donation cannot be acquired by anyone who is unwilling to accept it.

(3) Where a man le'nds money to Titius to be paid to Seius, to whom he desires it to be donated, and Titius does not pay it to Seius until after the death of the donor; the result will be that it can be said that the money will belong to Seius, whether he who paid it knew that the donor was dead, or was not aware of that fact; because the money still belonged to the latter.

If he did not know that the donor was dead, he will be released from his obligation, if he borrowed the money to be paid to Seius. If, however, I should direct you to pay a certain sum of money to Titius, to whom I intend to donate it, and you not being aware that I was dead should do so, you will be entitled to an action on mandate against my heirs; but if you knew it, you will not be entitled to this action.

(4) If anyone lends money to a slave, and the slave, having afterwards become free, makes a new promise to pay it, this will not be

a donation, but the acknowledgment of a debt. The same rule applies to the case of a ward, who becomes indebted without the authority of his guardian, if he afterwards, with the consent of his guardian, contracts a new obligation.

(5) Stipulations which are entered into for a valid consideration

are not held to be donations.

(6) In conclusion, Pegasus thinks that if I promise you a hundred aurei, under the condition that you swear to bear my name, this will not be a donation, because the promise was made for a consideration, and a consideration was paid.

20. Marcellus, Digest, Book XXII.

If a patron is appointed heir to the share of an estate to which he is legally entitled, and his freedman charges him to pay a certain sum of money to someone, and he promises to do so in the presence of the beneficiary of the trust, he will not be compelled to pay it, for fear that the share due to him as patron under the law may be diminished. (1) A doubt may arise with reference to an heir who, in accordance with the will of the testator, promises to pay a legatee what he would have a right to retain under the Falcidian Law, but the better opinion is that he cannot violate his obligation. For if he does make payment, he will be considered to have exactly complied with the wishes of the testator, and no suit for recovery will be granted him; just as where he had made a previous stipulation, and acted contrary to the wishes of the testator, which he already had acknowledged, his claim will, with good reason, be barred.

21. Celsus, Digest, Book XXVIH.

In order to make me a donation you bound yourself to my creditor, to whom I delegated you. The act is valid, for the creditor receives

what he is entitled to.

(1) If, however, I order my debtor to bind himself to you for the purpose of making you a donation greater than that authorized by law, the question arises whether or not you can be barred by an exception upon the ground of the donation. My debtor cannot avail himself of the exception against you, if you bring an action, because I am in the same position as if I had given you the amount, after having collected it from my debtor, and you had lent it to him.

If the money has not been paid by my debtor, I will be entitled to an action against him to annul anything which he has promised you above the amount authorized by law, so that he will only remain liable to you for the balance. If, however, you have already collected the entire amount from my debtor, I will be entitled to an action against you to recover the excess of what the law prescribes.

22. Modestinus, Differences, Book Vill.

It is perfectly equitable that he who has promised a sum of money, or anything else, for the purpose of making a donation, shall not be liable for interest on account of delay in paying the money; and this

is especially the case where the donation is not included in the class of bona fide contracts.

23. The Same, Opinions, Book XV.

Modestinus gives it as his opinion that a creditor can, by mere agreement, entirely remit or diminish the amount of interest to be due hereafter, without affecting the validity of the donation on the ground that the amount is illegal.

(1) It is the opinion of Modestinus that a person whose mind is affected cannot make a donation.

24. Javolenus, On Cassius, Book XIV.

An exception should be granted to the surety of him who, for the purpose of making a donation, promised a sum of money greater than that authorized by law, even against the consent of the principal; for if the latter should not be solvent, the surety will lose the money.

25. The Same, Epistles, Book VI.

If I give you something in order that you may donate it to Titius, in my name, and you give it to him in yours, do you think that it becomes his property? The answer was that if I give you something for you to give to Titius in my name, and you give it to him in your own name, so far as the technicality of the law is concerned, it does not become the property of the person who receives it, and you will be liable for theft; but the more liberal construction is that if I bring an action against the person who has received the property, I can be barred by an exception on the ground of fraud.

26. Pomponius, On Quintus Mucius, Book IV.

A simple statement in an account does not render anyone a debtor; for instance, if we wish to make a donation to a freeman, we can make the statement in our account that we owe it, but no donation is understood to be made.

27. Papinianus, Questions, Book XXIX.

A young man named Aquilius Regulus wrote to Nicostratus, his teacher of rhetoric, as follows: "Because you have always remained with my father, and have benefited me by your eloquence and your care, I give, and permit you to lodge in and make use of, such-and-such an apartment." Regulus having died, the right of Nicostratus to the apartment was disputed; and when he consulted me, I told him that the act of Regulus could not be maintained to be a mere donation, but that he had remunerated him for his services, and granted him this privilege by way of compensation, and therefore, that the donation should not be held to be void for the time following the death of Regulus.

If Nicostratus had been ejected, he could have gone into court and protected himself by an interdict, in the same way in which an usufructuary could have done, as he obtained the use of the apartment through having been given possession of the same.

28. The Same, Opinions, Book III.

A father donated an estate, which had been left to him, to his daughter, who had become her own mistress. The daughter must satisfy the creditors of the estate, and if she should not do so, and the creditors should have recourse to her father, she can be compelled by an action prsescriptis verbis to defend her father against the creditors.

29. The Same, Opinions, Book XII.

A donation is held to be made if property is given when the donor is not compelled to do so by any law.

(1) A certain person, having been interrogated in court, answered that the heirs of his guardian did not owe him anything. I gave it as my opinion that, by doing so, he had lost his right of action, for although these words may be understood to indicate not a business transaction, but a donation, still, he who has made an admission in court cannot contradict it.1

(2) It has been settled that where anyone makes a donation of a portion of the estate of his next of kin, who is still living, it is void.

But it was held that if he who made the donation afterwards succeeded to the estate under the praetorian law, all suits arising from it should be refused him, because his acting in such haste was contrary both to good morals and the Law of Nations.

30. Marcianus, On Informers.

For he should be deprived of the estate as being unworthy of it.

31. Papinianus, Opinions, Book XIII.

It is established that donations made to a concubine cannot be revoked, for not even if marriage should afterwards be contracted by the parties, will what formerly was valid by law become of no force or effect? But where the question was asked if marital honor and affection did not already exist, I answered that this should be determined by considering the character of the persons and the nature of their union in life, for a mere written contract does not constitute marriage.

(1) Where certain property was given by a mother to the husband of her daughter, in addition to the dowry, I gave it as my opinion that it should be considered to have been given to the daughter, who herself was present, and delivered it to her husband; and that the mother, who was offended, had no right to recover the property, nor could she under the law bring a personal action to do so, because the husband had specifically provided that the said property should be given to him for the benefit of the girl, in addition to her dowry; since by this statement, not only was the character of the donation indicated, and it was clear that the property was not separated from the

1 "Confessus in jvdicio pro judicata habetur et quodwmmodo sua sententia damnatur."—ED.

use of the same, but it also showed that it was a peculium separate and distinct from the dowry.

The magistrate, however, should determine whether the mother should recover the property if she was justly offended with her daughter, and he must render a decision with proper regard to the respect to be manifested toward a mother, and one which will coincide with the judgment of a good citizen.

-(2) -A. father who gave certain slaves to his daughter, who was under his control, and did not deprive her of her peculium when he emancipated her, is held to have perfected the donation by his subsequent act.

(3) I gave it as my opinion, that where property was deposited in a temple under the condition that he alone could remove it who left it there, or JSlius Speratus, after the death of the owner, it would not be considered as a donation.

(4) Donations cannot be valid after the crime of treason has been committed, as the heir is also liable, even though the guilty party should die before having been convicted.

32. Scsevola, Opinions, Book V.

Lucius Titius sent the following letter: "So-and-So to So-and-So, Greeting. You can make use of such-and-such an apartment and all the rooms above it, gratuitously; and I notify you by means of this letter that you can do so with my consent."

I ask whether the heirs of the writer can forbid the use of the apartment? The answer was that, according to the facts stated, the heirs of the person who wrote the letter can change the intention of the latter.

33. Hermogenianus, Epitomes of Law, Book VI.

Anyone who has made a new promise to pay, after having entered into an agreement to make a donation, can be sued in an action based on the promise, not for the entire amount, but only for what he is able to pay; for it has been settled that the cause and origin of the promise to make payment, and not the authority of the judge, must be considered. He, however, who has had judgment rendered against him on account of a donation, and an action is brought against him to enforce the judgment, can very properly ask that he only be sued to the extent of his pecuniary resources.

(1) Where money has been paid to Titius as a donation, under the condition that he will immediately lend it to the donor, the transfer of ownership is not prevented; and for this reason where the same money is lent to the donor, a new ownership of it is acquired.

(2) Persons who are dumb and deaf are not prohibited from making donations.

(3) When anyone desires to make a donation to you, and you intend to donate the same article to another, the donation will be perfected if the first promises, with your consent, to give it to the second; and because the first gave nothing to the second, by whom he can be

sued, he can have judgment rendered against him for the entire amount, and not for as much as he is able to pay.

The same rule is observed where he who is to receive the donation has delegated the donor to his creditor; for, in this instance, the creditor is merely transacting his own business.

34. Paulus, Decisions, Book V.

If a father should lend money at interest in the name of his emancipated son, with the intention of giving it to him as a donation, and the son makes a stipulation with reference to said money, there is no doubt that the donation is perfected by operation of law.

(1) If anyone should rescue a person from the hands of robbers, or enemies, and receive something from him as a reward for doing so, a donation of this kind is irrevocable, and should not be designated a reward for an eminent service rendered; as it has been decided that no limit should be fixed to an act performed for the purpose of saving life.

35. Scsevola, Digest, Book LI.

A man wrote to a slave whom he had manumitted, as follows: "Titius to Stichus, his freedman, Greeting. After having manumitted you I notify you by this letter, written by my own hand, that I give to you everything which you have in credits, in movable property, and in money." He also made the same freedman heir to two-thirds of his estate by will, and Sempronius his heir to the remaining third; but he did not bequeath to Stichus his peculium, nor did he direct that he should have the rights of action growing out of the same.

The question arose whether an action should be granted to Stichus for the entire amount of the credits, including his peculium; or whether it should be granted to both of the heirs in proportion to their respective shares of the estate. The answer was that, in accordance with the facts stated, the action should be granted to both of them in proportion to their respective shares of the estate.

(1) Lucius Titius gave to Msevia a tract of land, by way of a donation, and a few days afterwards before delivering the same, he pledged the land to Seius, and then, within thirty days, gave Msevia possession of the said land. I ask whether the donation was perfected or not. The answer was that, in accordance with the facts stated, it was perfected, but that the creditor was undoubtedly entitled to his right in the land under the pledge.

(2) A grandmother lent money, in the name of Labeo, her grandson, and always collected the interest, and the evidences of indebted-* ness were received by Labeo, and were afterwards found among the assets of his estate. I ask whether the donation should be considered to have been perfected. The answer was that, as the debtors were liable to Labeo, the donation was perfected.

TITLE VI.

CONCERNING DONATIONS AND OTHER ACQUISITIONS MORTIS CAUSA.

1. Marcianus, Institutes, Book IX.

A donation mortis causa is one where the party wishes to retain the property himself instead of transferring it to him to whom he donates it, but prefers that the donee shall have it rather than his heir.

(1) Telemachus gives a donation of this kind to Piraeus, in Homer.

2. Ulpianus, On Sabinus, Book XXXII.

Julianus, in the Seventeenth Book of the Digest, says that there were three kinds of donations mortis causa. The first, where the donor, who is under no apprehension of impending death, makes a donation solely with a view to his decease. He says another kind of donation mortis causa is where anyone is disturbed by the immediate prospect of death and makes a donation, so that the article immediately becomes the property of the person who receives it. He says that the third kind of donation is where a man, apprehensive of death, does not give the property so that its ownership will immediately vest in the person entitled to it, but provides that it shall belong to him after the death of the donor.

3. Paulus, On Sabinus, Book VII.

It is lawful to make a donation mortis causa not only when a person is induced to do so by failing health, but also because of the danger of impending death, either at the hands of enemies, or robbers; or on account of the cruelty or hatred of some powerful man, or when anyone about to undertake a sea voyage;

4. Gaius, Diurnal or Golden Matters. Or travel through dangerous places,

5. Ulpianus, Institutes, Book II.

Or where one is exhausted by old age:

6. Paulus, On Sabinus, Book VII.

For all these conditions indicate impending danger.

7. Ulpianus, On Sabinus, Book XXXII.

If anyone convicted of a capital crime should make a donation mortis causa, the donation will be annulled as imperfect; although other donations made by him previous to the suspicion that he was liable to such a penalty may be valid.

8. The Same, On Sabinus, Book VII.

Where anyone, having received a sum of money, rejects an estate, whether it passes to a substitute, or whether an heir succeeds to it on

the ground of intestacy, he is considered to have obtained the money mortis causa; for whatever is acquired on account of the death of anyone is obtained mortis causa.

Julianus adopts this opinion, and we make use of it. For where anything is received by a slave, who is to be free under a certain condition, for the purpose of complying with the condition; or anything is obtained by a legatee mortis causa; or where a father gives anything on account of the death of his son, or of a relative; Julianus states that it is acquired mortis causa.

(1) Hence, he says that a donation can be made in such a way that it will revert to the donor, if the sick person should recover.

9. Paulus, On Sabinus, Book HI.

Everyone is permitted to acquire a donation mortis causa who has the right to receive a legacy.

10. Ulpianus, On Sabinus, Book XXIV.

It is settled that he to whom a donation mortis causa is made can be substituted in such a way that he can promise the property to someone else, if the latter cannot himself acquire it, or cannot do so under some other condition.

11. The Same, On Sabinus, Book XIII.

A father can legally make a donation on account of the death of his son, even during the existence of his son's marriage.

12. The Same, On Sabinus, Book XLIV.

Where a woman fraudulently asks to be placed in possession of an estate in the name of her unborn child, and receives money on this account, in order to favor a substitute, or to exclude the appointed heir, for some reason or other, Julianus frequently stated that she obtained this money mortis causa.

13. Julianus, Digest, Book XVII.

If I give property belonging to another as a donation mortis causa, and it should afterwards be acquired by usucaption, the true owner cannot recover it, but I can do so, if I regain my health.

(1) Marcellus says that questions of fact may arise with reference to donations mortis causa, for the donation may be made in such a way that if the donor should die of his illness, it shall not be returned; or that it shall be returned if the donor, having changed his mind, desires it to be restored to him, even if he should die of the same illness.

A donation of this kind can also be made subject to the provision that it shall not be returned unless the person who is to receive it dies first. A donation mortis causa can be made in such a way that the property shall not be returned in any event; that is to say, not even if the donor should recover his health.

14. Julianus, Digest, Book XVIII.

Where a tract of land is donated mortis causa, and necessary and useful expenses are incurred with reference to it, parties bringing an

action to recover the land can be barred by an exception on the ground of fraud, unless they reimburse the donee for the said expenses.

15. The Same, Digest, Book XXVII.

Marcellus says that where sons under paternal control, who are serving in the army, have obtained the unrestricted right to dispose of their property by will to anyone whom they may select, it may be held that they are also released from the observance of the ordinary formalities required in the case of donations mortis causa. Paulus says, with reference to this, that it is established by the Imperial Constitutions that donations mortis causa can be revoked in the same way as legacies.

16. Julianus, Digest, Book XXIX.

A donation mortis causa can be revoked even while it is yet uncertain whether or not the donor can recover his health or not.

17. The Same, Digest, Book XLVII.

Even if a debtor may not have had the intention to defraud his creditors, his donee can be deprived of property given to him mortis causa; for, as legacies bequeathed by the will of a person who is insolvent are absolutely void, it can be held that donations mortis causa made under such circumstances should also be annulled because they resemble legacies.

18. The Same, Digest, Book LX.

We obtain a donation mortis causa not only when anyone gives it to us on account of his death, but also where he makes the donation dependent on the death of another, as, for instance, if anyone should give to Msevius a donation in case of the death of his son, or his brother, under the condition that if either of them should recover from his illness, the property shall be restored to him, but if either of them should die, it will belong to Msevius.

(1) If you should make a donation mortis causa to me, by directing your debtor to pay my creditor, I shall, in any event, be held to be entitled to as much money as will release me from liability to my creditor. If, however, I should make a stipulation with your debtor, I will be considered to be entitled to only as much as the debtor is able to pay. For even if you, being the creditor, should recover your health, and the donor should do the same, you can only bring an action for recovery, or one in factum for an amount equal to the obligation of the debtor.

(2) Titia, desiring to donate to her debtors Septitius and Msevius their promissory notes, gave them to Ageria, and asked her to give them to the said debtors, if she, Titia, should die, but if she should be restored to health, to return them to her. She, having died, Msevia, the daughter of Titia, became her heir; but Ageria gave the notes to the above-mentioned Septitius and Msevius, as she had been requested to do. The question arises if Msevia, the heir, brought an action to re-

W*J

cover the sum due on the above-mentioned notes, or one to recover the notes themselves, whether she could be barred by an exception. The answer was that Msevia could be barred by an exception based on the execution of the contract, or by one on the ground of fraud.

(3) Where anyone has received a slave by way of satisfaction for damages caused by him, or for some other liability, as a donation mortis causa, he is understood to have only acquired as much as the

slave can be sold for.

The same rule should be observed with reference to a tract of land which is encumbered, in order to ascertain the value of what is donated.

19. The Same, Digest, Book LXXX.

Where property is donated mortis causa to a son under paternal control, and the donor is restored to health, he can bring an action De peculio against his father. But if the head of the household receives the donation mortis causa, and then gives himself in adoption, the property given can be recovered by the donor.

This case is not similar to that where he who receives a donation mortis causa gives it to another, for the donor cannot recover from him the property itself, but only its value.

20. The Same, On Urseius Ferox, Book I.

A tract of land is devised to a person who cannot legally acquire but a portion of it, under the condition that he will pay ten aurei to the heir. He is not required to pay the entire sum in order to obtain his share of the land, but only an amount in proportion to the legacy which he is entitled to receive.

21. The Same, On Urseius Ferox, Book II.

Several authorities, and among them Priscus, have held that a person who receives a sum of money to induce him to accept an estate obtains the money mortis causa.

22. Africanus, Questions, Book I.

In the case of a donation mortis causa, where the capacity of anyone to receive the property is the subject of investigation, the time of death, and not that of the donation should be considered.

23. The Same, Questions, Book II.

Where a donation mortis causa is made to a son under paternal control, and he dies during the lifetime of the donor, but his father survives, the question arises, what is the rule of law in a case of this kind? The answer was that, by the death of the son, an action to recover the property will lie; provided the donor had the intention of giving it to the son rather than to the father. Otherwise, if the agency of the son was only employed for the benefit of his father, then the death of the father must be taken into consideration.

The same rule will apply where a question arises with reference to the person of a slave.

24. The Same, Questions, Book IX.

When a release is given to a debtor as a donation mortis causa, and the donor recovers his health, he can collect the debt, even if the debtor has been released by lapse of time; for, by the release, the creditor has renounced his claim under the prior obligation, and it has been merged in the right to recover the donation.

25. Marcianus, Institutes, Book IX.

A donation mortis causa can be made whether the party executes a will or not.

(1) A son under paternal control, who cannot make a will even with the consent of his father, can, nevertheless, make a donation mortis causa, if his father permits him to do so.

26. The Same, Rules, Book II.

Where two persons make reciprocal donations, mortis causa, of the same property, and both of them die, the heir of neither can recover the property, for the reason that neither one survives the other.

The same rule of law will apply, if a husband and wife should make reciprocal donations.

27. The Same, Rules, Book V.

Where a donation mortis causa is made in such a way that it cannot be revoked under any circumstances, it is rather a donation inter vivos than one mortis causa. Hence it should be considered as any other donation inter vivos, and will be void as between husband and wife; and the Falcidian Law will not apply, as it does in the case of donations mortis causa.

28. Marcellus, Opinions.

A nephew, desiring to make a donation mortis causa to his uncle of the amount which he owed him, made the following statement in writing, "I wish any registers or notes of mine, wherever they may be found, to be void, and that my uncle shall not be obliged to pay them." I ask, if the heirs bring suit to recover the money from the uncle of the deceased, whether they can be barred by an exception on the ground of fraud. Marcellus answered that they can be, for the heirs most assuredly are making a demand upon the uncle contrary to the wishes of the deceased.

29. Ulpianus, On the Edict, Book XVII.

Where property is donated mortis causa, and the donor recovers his health, let us see whether he will be entitled to an action in rem. If anyone should make a donation under the condition that, in case of death, the property should belong to the person to whom it was given, there is no doub4: that the donor can recover it, and if he should die, he to whom.it was given can do so.

If the condition was that the donee should immediately have the property as his own, but should return it if the donor recovered his

health, or returned after a battle or a long journey, it can be maintained that the donor will be entitled to an action in rem, if any of these events take place; but, in the meantime, the property will belong to the person to whom it was donated. If, however, he to whom the donation was made, should predecease the donor, it may be held that the latter will be entitled to an action in rem.

30. The Same, On the Edict, Book XXI.

Anyone who makes a donation mortis causa, and afterwards changes his mind, will be entitled to either an action to recover the property or to an equitable action.

31. Gaius, On the Provincial Edict, Book Vill.

Property is acquired mortis causa when an occasion arises for obtaining it on account of the death of anyone, except in such instances as have a particular designation; for it is certain that anyone who acquires property by hereditary right, or as a legatee or the beneficiary of a trust acquires it, on account of the death of another, but for the reason that these methods of acquiring property are designated by specific names, they are distinguished from the one in question.

(1) It is held by Julianus that, although the debtor who has been released may not be solvent, the donation will still be considered to have been made mortis causa.

(2) Property can also be acquired without a donation; as, for instance, where a slave or a legatee pays a sum of money for the purpose of complying with some condition, whether the person who receives it is a stranger, or an heir. The case is similar where anyone receives money to accept or reject an estate, or to refuse a legacy which has been bequeathed to him. Even a dowry which has been stipulated for and will belong to the husband if his wife should die, is evidently acquired mortis causa, and dowries of this kind are designated as returnable.

Again, anything which is donated mortis causa, or is given while in imminent danger of death, or with the expectation of mortality, for the reason that we understand that we will die sooner or later, is included

in this category.

(3) If, with the intention of making a donation mortis causa, you should direct your debtor to make a new promise to my creditor to pay ten aurei, the question arises, what would be the rule of law if the debtor should not prove solvent? Julianus says that if I stipulate in this way, I shall be held to have obtained as much money as your debtor is able to pay; for he says if the donor recovers his health, he will only be entitled to obtain the new obligation of the debtor. If, however, my creditor should enter into the stipulation, I will be held to have received only as much money as I would have the right to be released from payment of to my creditor.

(4) When a debtor, who is poor, is released from his indebtedness by way of a donation, he is considered to have obtained all the money from the payment of which he was released.

32. Ulpianus, On the Edict, Book LXXVI.

A donation made mortis causa is not considered to be perfect until after the death of the donor.

33. Paulus, On Plautius, Book IV.

Where anyone acquires by usucaption property belonging to another which was donated mortis causa, he is not considered to have obtained it from the party to whom the property belongs, but from him who gave him the opportunity for usucaption.

34. Marcellus, Digest, Book XXVIII.

A donation mortis causa can also be made, even if it can be proved that the donee stipulated for payment every year, as long as he lived; that is to say, that collection should begin after the death of the promisor.

35. Paulus, On the Lex Julia et Pajna, Book VI.

The Senate decreed that where donations mortis causa were made to those whom the law forbade to receive them, they are in the same position as persons to whom legacies are bequeathed by will, and who are not permitted by law to accept them. A great variety of questions have arisen under this Decree of the Senate, a few of which we shall mention.

(1) The word "donation" is derived from donum, meaning "presented with a gift." It is taken from the Greek, for the Greeks say &apov \<ii Btapfo/Mu, that is to say, "a gift and to give."

(2) A donation mortis causa, however, differs greatly from a genuine and absolute gift, which is made in such a way that it can, under no circumstances, be revoked; and where he who makes it would rather that the donee should have the property than he himself. On the other hand, he who makes a donation mortis causa thinks of himself and, through his love of life, prefers to keep the property, rather than to give it away. This is the reason why it is commonly said that the donor would rather have the property than allow him to whom he gives it to have it, but that he would rather that he should have it, than that it should pass to his heir.

(3) Therefore, he who makes a donation mortis causa, so far as his thoughts of himself are concerned, concludes a business transaction; that is to say, he imposes the condition that the property shall be returned to him if he is restored to health. The followers of Cassius entertained no doubt that the property could be recovered, as in the case of an unfinished transaction; for the reason that, where anything is given, it is done either that you may perform some act, or that I may perform one, or that Lucius Titius may do so, or in case some event takes place; and in all these instances, the property may be recovered by an action.

(4) A donation mortis causa is made in several different ways. Sometimes it is made by a man who is well and has no anticipation of immediate death, who enjoys excellent health, but who reflects that

man is liable to die. Sometimes it is made through the fear of death, either on account of present or future danger. For the danger of death may be apprehended on land and sea, in peace and in war, at home as well as in the army.

A donation may also be made under the condition that if the donor should die of his illness, the property shall not, under any circumstances, be returned; or that it shall be returned if he should change his mind, and desire it to be restored to him, even before he died of the same illness. A donation can also be made under the condition that it shall not be returned unless the person entitled to it dies before the donor. A donation mortis causa can also be made in such a way that it cannot be recovered in any event, that is, not even if the donor should recover his health.

(5) If anyone should form a partnership with another for the purpose of making a donation mortis causa, it must be said that the partnership is void.

(6) When a creditor wishes to make a donation mortis causa to two of his debtors, of what they owe him, and releases one of them from liability, and regains his health, he can sue either one of them that he may select.

(7) He who stipulates for the payment of a sum of money annually as a donation mortis causa does not resemble the person to whom a legacy, payable annually, has been bequeathed; for although there are many legacies, still there is only one stipulation, and the status of him to whom the promise was made must always be considered.

36. Ulpianus, On the Lex Julia et Papia, Book Vill.

Where anything is given for the purpose of complying with a condition, although it may not be derived from the estate of the deceased, still, he whom the law says shall only receive a certain amount cannot receive a larger sum than that fixed by law. It is certain that where a sum of money is paid by a slave for the purpose of complying with the condition, the amount will be regulated in accordance with that which the legatee is legally entitled to receive, provided the slave had that much in his peculium at the time of his death. If, however, the sum was acquired after his death, or if another person gave it for him, as it did form part of the property which the testator had when he died, the case will be the same as where charges are imposed on legatees.

37. The Same, On the Lex Julia et Papia, Book XV.

Generally speaking, it must be remembered that donations mortis causa are comparable to legacies. Therefore, any rule of law which applies to legacies must be understood also to apply to donations mortis causa.

(1) Julianus says that if anyone should during the lifetime of the donor sell a slave given to him as a donation mortis causa, the latter will be entitled to a personal action to recover the price, if he should regain his health, and choose to do so; otherwise, the donee will be compelled to return the slave himself.

38. Marcellus, On the Lex Julia et Papia, Book I.

The following difference exists between a donation mortis causa and other ways by which anyone acquires property by reason of death. A donation mortis causa is made when both parties are present, and anything not included in this kind of a donation, it is understood, may be obtained on account of death. For when a testator, by his will, directs his slave Pamphilus to be free under the condition that he pays me ten aurei, he is not considered to have made me a donation; and nevertheless, if I accept the ten aurei from the slave, it is established that I accept them mortis causa.

The same thing happens where an heir is appointed on condition that he pay me ten aurei; as, by accepting the money from him who is appointed heir, I acquire it mortis causa, for the purpose of complying with the condition.

39. Paulus, On Plautius, Book XVII.

If he to whom a slave has been donated mortis causa manumits him, he will be liable to an action to recover the value of the slave, as he knows that he can be sued if the donor should regain his health.

40. Papinianus, Questions, Book XXIX.

If a donation mortis causa made between husband and wife takes effect, the donation is referred to the time when it was made.

41. The Same, Opinions, Book II.

Where a slave, who is to be free under the condition of paying a certain sum out of his peculium to one of the heirs to the estate, does so, he must account for that sum as well by reason of the Falcidian Law, as where suit is brought for the estate, and also where restitution is made under the Trebellian Decree of the Senate. What the slave received as a donation, and paid, is considered to have been given out of his peculium, and if it was paid by another in his presence, and in his name, it is understood as having been paid by himself.

42. The Same, Opinions, Book XXXII.

Seia, having transferred her property to her relative Titius, by way of donation, reserved the usufruct of the same for herself; and it was agreed that if Titius should die before she did, the said property should go to him, and if she died during the lifetime of the children of Titius, it should then belong .to them. Hence, if the heirs of Lucius Titius should claim the property, they could not ineffectually be opposed by an exception on the ground of bad faith. However, suit having been brought in good faith, it was asked whether the woman was not obliged to promise to give the property to the children of Titius when he died. Some doubt arose on the point that the donation should not be extorted, where title to it had not yet vested in the children; still, might it not be said that, on account of the security given, the first donation which was perfected by the delivery of the property, and which, being actually given in the beginning, should be perpetuated;

and not the second one which was merely promised? Therefore, was the donation made under a certain condition, and should it be so considered, or was it made on account of death ? It cannot be denied that it should be considered to have been made mortis causa.

The result is that the first donation having been annulled, the second one should be held to have been extorted, as Seia survived Titius. Finally, after the death of the woman, if the children of Titius had accepted the bond with her consent, they would be liable to contribute to the Falcidian portion in proportion to their respective shares.

(1) Where a father, at the point of death, gave certain property to his emancipated son, without imposing upon him the condition of returning the same, and his brothers and co-heirs desired contribution to be made out of the property, on account of the Falcidian Law, I gave it as my opinion that the ancient rule should be observed, as the new constitution had nothing to do with the other donations, which were made under positive conditions, and, in the case of death, there should be a deduction from the property of the estate, without the heirs having the hope of retaining it; for he who made the gift absolutely did so when dying, rather than as a donation mortis causa.

43. Neratius, Opinions, Book I.

Fulcinius: A donation mortis causa can be made between husband and wife, if the donor has an exceedingly well-founded apprehension of

death.

Neratius: It is sufficient if the donor has a belief of this kind, and thinks that he is going to die, and no inquiry should be made whether his opinion was well grounded or not. This rule should be observed.

44. Paulus, Manuals, Book I.

Where a donation mortis causa is made to a slave, let us see whose death must be taken into consideration, that is to say, the death of the master, or that of the slave himself, in order that there may be ground for a personal action to recover the property. The better opinion is that the death of the person to whom the donation was made should be considered; still, the donation does not follow the manumitted slave after the death of his master, before the will is opened.

THE DIGEST OR PANDECTS. BOOK XL.

TITLE I. CONCERNING MANUMISSIONS.

1. Ulpianus, On Sabinus, Book VI.

It has been decided that anyone who is born on the Kalends of January can manumit his slave after the sixth hour of the night preceding the Kalends, as having, at that time, completed his twentieth year. For anyone more than twenty years old is permitted to manumit a slave, but a minor under that age is forbidden to do so. Hence, he is not considered under the age of twenty, who is in the last day of his twentieth year.

2. The Same, On Sabinus, Book XVII.

If an heir should manumit a slave who has been bequeathed, while the legatee is deliberating whether he will accept him or not, it is settled that the slave will be free if the legatee should finally conclude to reject the bequest.

3. Paulus, On the Edict, Book XXXIX.

Where a slave is given by way of pledge, he cannot be manumitted, even if the debtor is wealthy.

4. Ulpianus, Disputations, Book VI.

An Epistle of the Divine Brothers, addressed to Urbius Maximus, sets forth that a slave purchased with his own money is in a position to demand his freedom.

(1) In the first place, such a slave cannot properly be considered to have been purchased with his own money, as a slave cannot have money of his own. But if we close our eyes, he must be held to have been bought with his own money, since he was not purchased with that of him who redeemed him from slavery. Hence, whether the money came from the peculium which belongs to the vendor, or from some fortunate acquisition by the slave; or was provided by the kindness or liberality of a friend; or whether someone advanced it, or promised it, or caused himself to be delegated; or whether the slave was ransomed by his undertaking to pay the debt, he must be considered to have been purchased with his own money. For it is sufficient if he who has lent his name to the purchase did not spend any of his own money.

(2) If a slave, purchased by someone who is unknown to him, should afterwards tender him the price for which he was sold, it must be said that he should not be heard, for this ought to be done in the beginning in order that a fictitious sale may be made, and a confidential agreement entered into between the purchaser and the slave.

(3) Therefore, if this was not done in the first place to enable the slave to be ransomed with his own money, or if the slave did not give the money with this intention, he will not be entitled to his freedom.

(4) Hence, it may be asked, when this was the intention in the beginning, and the purchaser hastened to pay the money, and he should afterwards be reimbursed, can the slave avail himself of the benefit of the Imperial Constitution ? I think that he can do so.

(5) Therefore, if the purchaser should advance the money to the slave, and the latter repays it to him, he can acquire his freedom.

(6) Whether it was or was not mentioned in the contract (for instance, in the case of a sale), that the slave would be manumitted, the better opinion is that he will be entitled to his freedom.

(7) Hence, if anyone should purchase a slave with the money of the latter, but without agreeing to manumit him, the humane opinion of those who have treated the question in that the slave should obtain his freedom, as the purchaser was merely fictitious and lent the use of his name, and besides, he has lost nothing.

(8) It, however, makes no difference by whom a slave purchased with his own money is acquired, whether by the Treasury, by a municipality, or by a private individual, nor what may be the sex of the purchaser. If the vendor is under twenty years of age, the constitution will apply. Nor is the age of the purchaser taken into consideration, for, even if he is a minor, it is only just that he should keep his word, as, by doing so, he will not sustain any injury.

The same rule is applicable to the purchaser who is a slave.

(9) The constitution does not apply to slaves who are absolutely incapable of being granted their freedom; as, for example, where a slave is to be sent out of the country, or has been sold or bequeathed by will under the condition that he.shall never be manumitted.

(10) When a slave is ransomed with his own money, even though he did not pay the entire price, it must be said that he is entitled to his freedom if he contributed his labor to make up what was due, or if he afterwards obtained property by his industry.

(11) If he should purchase a part of himself with his own money, and the other part belonged to him already, the constitution will not apply, any more than if, having the ownership of himself, he only purchased the usufruct of the same.

(12) But what if he owned the usufruct of himself, and he purchased the ownership? In this case, he is in such a position that the Imperial Constitution will apply.

(13) Where two persons purchase a slave, one of them with his own money, and the other with the money of the slave, it must be held that the constitution will not be applicable, unless he who purchased him with his own money is prepared to manumit him.

(14) Where, however, anyone buys half of a slave, and acquires the other half by some profitable transaction, it must be said that there is ground for the application of the constitution.

5. Marcianus, Institutes, Book II.

If a slave should allege that he was purchased with his own money, he can appear in court against his master, whose good faith he impugns, and complain that he has not been manumitted by him; but he must do this at Rome, before the Urban Prefect, or in the provinces before the Governor, in accordance with the Sacred Constitutions of the Divine Brothers; under the penalty, however, of being condemned to the mines, if he should attempt this and not prove his case; unless his master prefers that he be restored to him, and then it should be decided that he will not be liable to a more severe penalty.

(1) Where, however, a slave is ordered to be free after having rendered his accounts, an arbiter between the slave and his master, that is to say, the heir, shall be appointed for the purpose of having the accounts rendered in his presence.

6. Alfenus Varus, Digest, Book IV.

A slave, having agreed to give a certain sum in order to obtain his freedom, paid it to his master, but the latter died before manumitting him, and ordered him to be free by his will, and also bequeathed him his peculium. The slave asked whether the money, which he had paid to his master in consideration of obtaining his freedom, should be refunded to him by the heirs of his patron, or not? The answer was that if, after the master had received the money, he kept an account of it as his own, it immediately ceased to form part of the peculium- of the slave; but if, in the meantime, before he manumitted him, he set the money aside, as having been paid by the slave, it should be considered to belong to his peculium, and the heirs must return it to the manumitted slave.

7. The Same, Digest, Book VII.

Two sons under paternal control had, as part of the 'peculium of each, separate slaves. One of them, during the lifetime of his father, manumitted a young slave who belonged to his peculium. The father, by his will, bequeathed to each son his own peculium, as a preferred legacy. The question arose whether the above-mentioned slave became the freedman of both of the sons, or only of the one by whom he had been manumitted? The answer was that if the father made his will before the son manumitted the slave, he would only become the freedman of that one, for the reason that he would be considered to have been bequeathed with the remainder of the peculium. If, however, the father had made his will afterwards, he would not be held to have intended to bequeath the slave who had been manumitted; and as he did not bequeath the said slave as a preferred legacy, after the death of the father he would be the slave of the two brothers.

8. Marcianus, Institutes, Book XIII.

Those who are reduced to slavery by way of penalty undoubtedly cannot manumit anyone, because they themselves are slaves.

(1) Nor can those who are accused of a capital crime manumit their slaves, as this has been decreed by the Senate.

(2) The Divine Pius stated in a Rescript addressed to Calpurnius, that freedom given to slaves by a person who has been convicted under the Cornelian Law, or who was aware that he would be convicted, will be of no force or effect.

(3) The Divine Hadrian stated in a Rescript that where slaves have been manumitted in order that their master might be released from liability for crime, they were not legally entitled to their freedom.

9. Paulus, Rules.

When a slave is sold under the condition that he shall not be manumitted, or is forbidden by will to be manumitted, or is forbidden to be manumitted by a prefect of the Governor on account of some offence which he has committed, he cannot obtain his freedom.

10. Book II of the Six Books of the Imperial Decrees having Reference to Judicial Investigations.

^lianus, a debtor of the Treasury, having many years before purchased a female slave named Evemeria under the condition that he should manumit her, did so. As the Agent of the Treasury did not find the property of the debtor sufficient to satisfy his creditors, he raised a question with reference to the status of Evemeria. It was decided that there was no ground for the exercise of the right of the Treasury, under which all the property of debtors is liable by the law of pledge, because the slave had been purchased under the condition of being manumitted, and if this had not been done, she would have 'been entitled to her freedom under the Constitution of the Divine Marcus.

11. The Same, On the Edict, Book LXIV.

An heir, by manumitting a slave who has been bequeathed under a condition, and does this while the condition is pending, does not render the slave free.

12. The Same, On the Edict, Book L.

A slave who has been guilty of kidnapping, and for whom his master has paid the penalty, is forbidden by the Favian Law to be manumitted within ten years; and in this case we do not consider the time when the will was made, but the date of the death of the testator.

13. Pomponius, On Plautius, Book I.

The slave of an insane person cannot be manumitted by a relative of the latter who has been appointed his curator, because the manumission of a slave is not included in the administration of the property. If, however, the insane person should owe the slave his freedom on account of a trust, Octavenus says that, in order to remove all doubt, the slave should be delivered by the curator to the person to whom he is to be transferred in order to be manumitted by him.

14. Paulus, On Plautius, Book XVI.

We cannot manumit a slave in the presence of one whose authority is equal to ours. A Pra?tor, however, can manumit a slave in the presence of a Consul.

(1) When the Emperor manumits a slave he does not touch him with a wand, but the slave who is manumitted becomes free by the mere expression of the Imperial will, in accordance with the law of Augustus.

15. Marcellus, Digest, Book XXIII.

There is no doubt that a slave can be manumitted mortis causa. You must not, however, understand if a slave is ordered to be free in this manner that he will not become so if his master should recover his health; for just as if he had been absolutely manumitted before the Praetor, when anyone thinks that he is about to die, and his death is expected, so, in this instance, freedom is granted during the last moments of the person who bestows the manumission, as his will is considered to continue to exist on account of the tacit condition of the death of the person manumitting the slave. The case is the same as if someone should deliver property under the condition that, if he dies, it shall belong to the person who receives it; since the property will not be alienated if the donor retains the same intention during his lifetime.

16. Modestinus, Rules, Book I.

If a son under twenty years of age manumits his slave with the consent of his father, he makes him the freedman of the latter; and proof of the manumission is unnecessary, on account of the consent of the father.

17. The Same, Rules, Book VI.

Slaves whom a son under paternal control acquires while in the army are not included in the property of the father, and the latter cannot manumit slaves of this kind.

18. Gaius, On the Lex Julia et Papia, Book XII. The vendor can manumit a slave whom he has agreed to sell, and the promisor one whom he has contracted to deliver.

19. Papinianus, Questions, Book XIII.

Where anyone has received a sum of money from another in consideration of manumitting his slave, the freedom of the latter can be extorted from him without his consent, although it is frequently the case that his own money is paid, and, above all, if his brother or his natural father furnished it; for the case is similar to one where a slave is redeemed with his own money.

20. The Same, Opinions, Book X.

It is superfluous for a minor of twenty years of age to prove the manumission of a slave, if he receives him for the purpose of manumitting him, after the promulgation of the Rescript of the Divine Marcus addressed to Aufidius Victorinus; for if he had not manumitted him, the slave would, nevertheless, obtain his freedom.

(1) The same rule of law does not apply where the grant of freedom is charged by a trust; for, in this case, the donor must prove the fact, as the manumitted slave will not otherwise obtain his freedom.

(2) A certain man sold a female slave under the condition that she should be manumitted by the purchaser after the expiration of a year; and, if this was not done, it was agreed that the vendor should lay his hand upon her, or that the purchaser should pay ten aurei. The contract not having been observed, it was decided that the slave, nevertheless, became free in accordance with the terms of the aforesaid constitution; as, very frequently, laying on of the hand takes place for the purpose of giving assistance. Therefore the money cannot be recovered, as the benefit of the law was secured in accordance with the wishes of the vendor.

(3) At the time of the alienation of a slave, it was agreed that, having been transferred with the intention of granting him his freedom, he should be manumitted after the expiration of five years; and also that in the meantime he must pay a certain sum every month.

I gave it as my opinion that the said monthly payments did not form part of the condition under which he was liberated from bondage, but in order to show that his servitude was only temporary; for a slave who has been transferred in order to be free cannot, in every respect, be compared to one who is to be manumitted under a certain condition.

21. The Same, Opinions, Book XIII,

A husband who is solvent can manumit a dotal slave during the continuance of the marriage. If, however, he is not solvent, even though he may have no other liabilities, the slave will be prevented from obtaining his liberty, as the dowry is understood to be due as long as the marriage continues to exist.

22. The Same, Definitions, Book II.

A grandson can manumit a slave with the consent of a grandfather, as a son can do with the consent of his father; but the manumitted slave will become the freedman of the father, or the grandfather.

23. The Same, Opinions, Book XV.

Gaius Seius purchased Pamphila under the condition that she would be manumitted within a year; and, before that time had elapsed, Seius himself was judicially decided to be a slave.

I ask whether Pamphila was entitled to her freedom after a year had elapsed, in accordance with the condition of the sale. Paulus answered that the slave who had been purchased was acquired by the master of Seius, under the same condition subject to which she had been sold.

24. Hermogenianus, Epitomes of Law, Book I.

It is provided by the Lex Junia Patronia that where the decisions of Courts are conflicting, judgment must be rendered in favor of freedom.

(1) It has frequently been established by Imperial Decrees that, where witnesses for and against freedom appear in equal numbers, judgment must be rendered in favor of freedom.

25. Gaius, On Manumissions, Book I.

The law provides that even infants are entitled to freedom.

26. Javolenus, On the Last Works of Labeo, Book IV.

Labeo holds that a slave who is insane can be manumitted and obtain his freedom by every proceeding known to the law.

TITLE II. CONCERNING MANUMISSIONS BEFORE A MAGISTRATE.

1. Pomponius, On Sabinus, Book I.

It is settled that a ward can, with the authority of his guardian in the presence of the Prsetor, manumit his slave as well as before the said guardian acting as Prsetor.

2. Ulpianus, On Sabinus, Book XVIII.

Where a minor of twenty years of age is the usufructuary of a slave, can he consent to his obtaining his freedom? I think that the slave can obtain it, if he gives his consent.

3. The Same, Disputations, Book IV.

If the heir manumits a slave who has been bequeathed, and the legatee afterwards rejects the legacy, the grant of freedom has a retroactive effect. The same rule applies where a slave is absolutely bequeathed to two persons, and one of them afterwards repudiates the manumission made by the other; for, in this instance also, the grant of freedom has a retroactive effect.

4. Julianus, Digest, Book XLII.

If a father should permit his son to manumit his slave, and, in the meantime, should die intestate, and his son, not being aware that his father was dead, should grant the slave his freedom, the slave will become free through the favor conceded to liberty, as it does not appear that the master changed his mind.

If, however, the father had, by means of a messenger, forbidden his son to liberate the slave, and the son did not know this, and, before ascertaining it, he should manumit the slave, the latter will not become free; for in order that a slave may obtain his freedom through the manumission of a son, the intention of the father must continue to exist; since, if he should change his mind, it would not be true that the son had manumitted the slave with his father's consent.

(1) Whenever a master manumits his slave, even though he may think he belongs to another, it is, nevertheless, true that the slave is manumitted with the consent of his master, and therefore he will become free.

And, on the other hand, if Stichus does not think that he belongs to the person who manumits him, he will, nevertheless, obtain his free-

dom, for there is more in the fact itself than in opinion; and, in both cases, it is true that Stichus was manumitted with the consent of his

master.

The same rule of law will apply where both the master and the slave are mistaken, and one of them thinks that he is not the master, and the other believes that he is not his slave.

(2) A minor of twenty years of age, who is a master, cannot legally manumit without appearing before the proper authority.

Paulus says that if a minor of twenty years of age permits a slave over whom he has the right of pledge to be manumitted, the manumission is legal; because he is not understood to have actually liberated him, but only not to have interfered with his manumission.

5. Julianus, In the Same Book.

The question has often been asked whether a magistrate appointed for the purpose of examining manumissions can, himself, manumit a slave. I remember that Javolenus, my preceptor, manumitted his slaves in Africa and in Syria, when he was a member of the board of magistrates ; and I followed his example, and liberated some of my slaves in my tribunal, both while I was Praetor and Consul; and I advised certain other Praetors and Consuls to do the same.

6. The Same, On Urseius Ferox, Book II.

There is no doubt that a slave held in common by minors of twenty years of age can be manumitted before the proper tribunal; even though one of the owners may not assent to the proceedings.

7. Gaius, Diurnal or Golden Matters, Book I.

It is not absolutely necessary for the manumission to take place in the tribunal, and therefore slaves are frequently manumitted while in transit, when the Praetor, the Proconsul, the Deputy, or the Emperor confers this benefit upon them while on the way to the bath, to the tribunal, or to the public games.

8. Ulpianus, On the Edict, Book V.

When I was in the country with a Praetor, I permitted a slave to be manumitted before him, although no lictor was present.

9. Marcianus, Institutes, Book XIII.

Just cause for manumission exists, where a slave has saved his master from the danger of losing his life, or from disgrace.

(1) It should be remembered that freedom must be granted after it has once been received, no matter what reason may be alleged against it afterwards. For the Divine Pius stated in a Rescript that where a case has once been proved it cannot be revived, provided the person is not permitted to manumit a slave belonging to another; for anything that is alleged can be contradicted by evidence, but where it has once been proved, it cannot be reconsidered.1

1 The favor always accorded to liberty by the Civil Law is disclosed by the well-known maxims: "Libertas omnibus rebus favorabilior est," "Cum, de liber-tate certandum pro libertate respondendum est."—ED.

10. The Same, Rules, Book HI.

The son of a deaf or dumb father can manumit a slave by his order. The son of an insane person, however, cannot do so.

11. Ulpianus, On the Duties of Proconsul, Book VI.

When a minor under the age of twenty years manumits a slave, the manumission is ordinarily accepted, where the person who manumits is the natural son or daughter, brother or sister of the slave;

12. The Same, On the Lex JElia Sentia, Book II.

Or if they are related to him by blood (for such relationship is taken into consideration).

13. The Same, On the Duties of Proconsul.

Or if he or she is the foster-brother, instructor, teacher, or nurse of the minor, or the son or daughter of the person above mentioned, or his pupil, or the attendant who carries his books, or if a slave is manumitted in order to become an agent; provided, in this instance, that he is at least eighteen years of age; and it is also required that the minor who manumits him shall have more than one slave.

Likewise, if a virgin or a woman is manumitted for the purpose of marriage, if an oath is exacted from the master in the first place that she will be married within six months, as this was decreed by the Senate.

14. Marcianus, Rules, Book IV.

It is more usual for women to manumit their foster-children, but this is also permitted in the case of men; and it is sufficient for one to be allowed to manumit a slave in whose support he has a more than ordinary interest.

(1) There are some authorities who think that women can manumit a slave for the purpose of marrying him, but this should be limited to a case where he was bequeathed to the woman who has been his fellow-slave.

(2) If a man, who is impotent, wishes to manumit a female slave for the purpose of marrying her, he can do so. This rule, howevery does not apply to one who has been castrated.

15. Paulus, On the Lex Mlia Sentia, Book I. }

A minor of twenty years of age should also be permitted to manumit a slave for the purpose of complying with a condition; for instance, where anyone lias been appointed an heir under the condition of liberating a slave.

(1) Many just causes for manumission may exist with reference to time past; for example, where the slave has assisted his master in battle, has protected him against robbers, has cured him when he was ill, or has revealed treachery with which he was threatened, and in other instances which it would take too long to enumerate; as there are a great many other reasons for which it would be honorable for free-

dom to be granted by a decree, and which should be taken into a consideration by the magistrate before whom the matter is brought.

(2) Several slaves can be manumitted at the same time in the presence of a magistrate, and the presence of the slaves is sufficient to enable several to be manumitted.

(3) A master who is absent can state the reason for manumissions by his attorney.

(4) If two masters manumit the same female slave for the purpose of marrying her, the reason should not be accepted.

(5) Those persons who have their domicile in Italy, or in some other province, can manumit their slaves before the Governor of another province, after having made application to the proper tribunal.

16. Ulpianus, On the Lex ^Elia Sentia, Book II.

The judges, when hearing the reasons for manumissions, must remember that these must be based, not on dissoluteness, but on affection; for the Lex &lia Sentia is understood to grant lawful freedom, not for the purpose of pleasure, but on account of sincere attachment.

(1) If anyone should transfer a slave to a minor of twenty-one years of age, either in consideration of a price paid, or as a donation, under the condition that he shall liberate him, he can offer this as a just reason for manumission, stating the condition which had been imposed, and can then grant the slave his freedom. He, however, will be required to show that this was the agreement between the parties, so that the matter may be decided in accordance with the condition of the donation, or with the affection of the person who gave the slave to be manumitted.

17. Paulus, On the Edict, Book L.

We can manumit a slave in the presence of the Proconsul after he has left the City.

(1) We can also manumit a slave in the presence of his deputy.

18. The Same, On Plautius, Book XVI.

A slave can be manumitted before a son under paternal control, who is acting as a magistrate, although he himself, being subject to paternal authority, has, as a private individual, no right to manumit a slave.

(1) A Pra3tor cannot manumit a slave in the presence of his colleague.

(2) A son can also manumit a slave in the presence of his father, with the consent of the latter.

19. Celsus, Digest, Book XXIX.

If a minor of twenty years of age manumits a female slave who is pregnant, before the proper tribunal, for the purpose of marrying her, and, in the meantime, she should have a child, the condition of the child whom she brought forth, that is to say, whether it is a slave or a freeman, shall remain undetermined.

20. Ulpianus, On the Duties of Consul, Book II.

If a minor of twenty-five years of age is charged by the terms of a trust to manumit a slave, he should be permitted to do so immediately, unless he was charged to manumit his own slave. For, in this instance, the amount of the benefit, which he will obtain from the will of the person who made the request, must be compared with the value of the slave whom he was requested to manumit.

(1) Where, however, a slave was donated to the minor under the condition that he should be manumitted, he ought to be allowed to manumit him, in order to prevent the Constitution of the Divine Marcus from becoming applicable during the delay granted by the Consul.

(2) Where anyone wishes to manumit a female slave in order to marry her, and he can, without dishonor to his rank, marry a woman of this kind, he should be permitted to do so.

(3) Marcellus also says that if a woman desires to emancipate her natural son, or any of the other persons previously mentioned, she should be allowed to do so.

(4) A Consul can manumit a slave before himself, if he should happen to be a minor of twenty years of age.

21. Modestinus, Pandects, Book I.

I can, in accordance with the Constitution of the Divine Augustus, manumit a slave in the presence of the Prefect of Egypt.

22. Paulus, Questions, Book XII.

A father sent a letter from a province to his son, whom he knew to be at Rome, by which he permitted him to liberate before a magistrate any slave whom he might select out of those whom he had with him for his personal service, and the son subsequently manumitted Stichus in the presence of the Praetor. I ask whether he rendered him free? The answer was, why should we not believe that the father could authorize his son to manumit any slaves which he had for his personal service? For he only granted his son the privilege of making a choice, and, as for the rest, he himself manumitted the slave.

23. Hermogenianus, Epitomes of Laiv, Book I.

At the present time, it is usual for manumission to be made by means of the lictors, the master remaining silent, and although solemn words are not spoken, they are considered to be spoken.

24. Paulus, On Neratius, Book II.

A minor who is no longer an infant can legally manumit a slave before the proper tribunal.

Paulus: Provided his guardian authorizes him to do so, and he liberates him in such a way that the peculium does not follow the slave.

25. Gaius, On Manumissions, Book I.

If a minor manumits a slave for the purpose of making him his guardian: Fufidius says that this should be approved. Nerva, the son,

holds the contrary opinion, which is correct. For it would be the height of absurdity for the judgment of a minor to be held to be sufficiently good to enable him to select a guardian, when in every other transaction he is controlled by the authority of his guardian, because his judgment is weak.

TITLE III.

CONCERNING THE MANUMISSION OF SLAVES BELONGING TO A COMMUNITY.

1. Ulpianus, On Sabinus, Book V.

The Divine Marcus granted the power of manumission to all corporate bodies that have the right to assemble.

2. The Same, On Sabinus, Book XIV.

For this reason, such bodies can claim the estates of their freedmen to which they are legally entitled.

3. Papinianus, Opinions, Book XIV.

A slave belonging to a municipality, who has been lawfully emancipated, will retain his peculium, if he has not been previously deprived of it; and therefore his debtor is released from liability by paying him.

TITLE IV. CONCERNING TESTAMENTARY MANUMISSIONS.

1. Ulpianus, On Sabinus, Book IV.

Where freedom is granted to a slave several times in a will, that disposition will prevail by which he can best obtain his freedom.

2. The Same, On Sabinus, Book V.

If anyone should appoint an heir as follows, "Let Titius be my heir, and if Titius should not be my heir, let Stichus be my heir; let Stichus be free," Aristo says that Stichus will not be free, if Titius becomes the heir.

It seems to me that he can be held to be free, as he does not receive his liberty in two different degrees, but it is granted to him twice; which is our practice.

3. Pomponius, On Sabinus, Book I.

A minor of twenty years of age, who is in the army, is not permitted to manumit his slave by will.

4. The Same, On Sabinus, Book II.

If anyone should make the following provision in his will, namely, "Let Stichus be free, and let my heir pay him ten aurei," there is no

doubt that the money will be due him, even if the head of the household should manumit him during his lifetime.

(1) The same rule will apply if the testator should say: "Let Stichus be free, either immediately or after a certain time; and when he becomes free, let my heir pay him ten aurei."

(2) It has been decided that if a legacy of freedom is bequeathed as follows, "Let my heir pay ten aurei to such-and-such a slave, if I grant him his freedom in the presence of the magistrate," although, strictly speaking, this is different from a testamentary manumission, still, according to the dictates of humanity, the legacy will be valid if the master, during his lifetime, should emancipate the slave.

5. The Same, On Sabinus, Book III.

Those provisions which are the least burdensome should be considered where freedom is granted by a will, and where there are several provisions of this kind, that which is the least burdensome is understood to be the one the most advantageous to the person manumitted. Where, however, freedom is granted by a trust, the last clause written must be taken into account.

6. Ulpianus, On Sabinus, Book XVIII.

If the master of a slave appoints as his heir the usufructuary of said slave, and freedom is granted to the latter conditionally, as the slave in the meantime belongs to the heir, the usufruct will become extinguished on account of the merger which results, and if the condition should be fulfilled, the slave .will obtain his freedom absolutely.

7. The Same, On Sabinus, Book XIX.

Neratius says, that when freedom is granted to a slave as follows, "If I should have no child at the time of my death, let Stichus be free," he will be prevented from obtaining his freedom in case a posthumous child is born. But, while the birth is in anticipation, shall we say that the slave remains in servitude; or shall we hold that he will become a freedman by retroactive effect, if no child should be born? I think that the latter opinion should be adopted.

8. Pomponius, On Sabinus, Book V.

Where the following provision was inserted into a will, "Let Stichus be free if he has transacted my business properly," the degree of diligence displayed by Stichus must be considered with reference to its benefit to the master, and not to the slave; and he must also manifest his good faith by paying over any balance which may remain in his hands. ,

9. Ulpianus, On Sabinus, Book XXIV.

Where a slave was bequeathed in order to be manumitted and, if he should not be manumitted, he was directed to be free, and a legacy was bequeathed to him, it has been frequently decided that he is entitled to his freedom, and that the legacy is due to him.

(1) Where it is stated in a constitution that a slave cannot be manumitted who is forbidden by will to be set free, I think that this only refers to slaves belonging to the testator or to his heirs, for it cannot apply to a slave belonging to another.

10. Paulus, On Sabinus, Book IV.

Where the peculium of a slave is bequeathed as a preferred legacy, and a sub-slave, who forms part of the peculium, is directed to be free, it is established that he will become free, for there is a great deal of difference between genus and species. For it is settled that the species can be removed from the genus, as it consists of the peculium which was bequeathed, and the sub-slave who was manumitted.

(1) If a slave who is bequeathed is ordered to be liberated from servitude he will become free; but where, in the first place, he is considered to be free, and he is afterwards bequeathed, if it is evident that the intention of the testator was that he should be deprived of his liberty, and as it is at present held that he will be deprived of it, I think that he will form part of the legacy. If, however, the matter is in doubt, then the more favorable opinion should prevail, and he will become free.

11. Pomponius, On Sabinus, Book VII.

If, after a slave has been bequeathed, his freedom has been left him under a trust, the heir or the legatee will be compelled to manumit him.

(1) "If Stichus and Pamphilus, pay ten aurei, let them be free;" one of them can become free by paying five aurei, even though the other may not pay anything.

(2) Where a slave is ordered to be free by a will, he immediately becomes free just as soon as one of several appointed heirs enters upon the estate.

12. Ulpianus, On the Edict, Book L.

Where anyone leaves a slave his freedom under the condition of his taking an oath, there will be no ground for the application of the Praetorian Edict for the purpose of remitting the oath; and this is reasonable, for if anyone should remit the condition upon which the freedom of the slave depends, he will prevent the freedom itself from taking effect, as the slave cannot obtain it except by complying with the condition.

(1) Hence, if anyone should bequeath a slave a legacy with his freedom, the latter will not be entitled to the legacy, unless he complies with the condition of taking the oath.

(2) If, however, he should receive his freedom absolutely, and the legacy was granted under the condition of his taking the oath, Julianus, in the Thirty-first Book of the Digest, thinks that the condition of taking the oath should be remitted.

(3) Moreover, I hold that the same rule will apply where the condition was imposed upon the grant of freedom, and the testator,

during his lifetime, manumitted the slave; for, in this instance, the condition on which the legacy depended is remitted.

13. The Same, Disputations, Book V.

Where freedom was granted to two slaves under the condition that they should build a house, or erect a statue, the condition cannot be divided between them. Doubt can only arise where one of them, having complied with the condition, appears to have carried out the wishes of the testator, and therefore will be entitled to his freedom, which is the better opinion; unless the testator had expressed himself otherwise.

One of the slaves, by doing what he was directed to do, complied with the condition so far as he himself was concerned, and while he did not do so with respect to the other, still the condition will no longer bind the latter, for he cannot comply with it any further after it has once been fulfilled.

(1) The same question can also arise where a legacy is bequeathed to two artisans or painters, under the condition that they shall paint a picture, or build a ship; for the intention of the testator must be considered, and if he imposed the condition of the performance of one upon the other, the result will be that when one of them does not do anything, the condition will not be fulfilled, although the other may be ready to do his share.

If, however, it can be shown that the testator would have been content, if whatever he had written or stated was only done by one of them, the matter will be readily disposed of; for one of them will, by his act, benefit either himself and his associate, or himself alone, according as it appears to have been the intention of the testator.

(2) This question can also be discussed in the case where a testator grants freedom to two slaves, if they render their accounts. For Julianus asks, if one of them is ready to render his account, and the other is not, whether the former will be prevented from doing so by the latter. And he very properly says that if their accounts were kept separately, it will be sufficient for the one who renders his to obtain his freedom; but if both of them kept their accounts together, one of them shall not be considered to have complied with the condition, unless he pays the balance remaining in the hands of the other.

We must understand this to mean that the books containing the accounts shall also be given up.

(3) If, however, a female slave, together with her children, is directed to be liberated, even if she has no children, she will, nevertheless, become free; or if she should have any, and they are not capable of obtaining their freedom, the result will be the same.

This rule will also apply even though the slave herself cannot become free, as her children will still obtain their liberty; for the clause, "together with her children," does not impose a condition, unless you suggest that the intention of the testator was otherwise; since, under such circumstances, these words must be understood to establish a condition. But that they do not impose a condition is proved by the

Edict of the Prsetor by which it is provided as follows: "I will order the mother of the unborn child and her children to be placed in possession of the estate." For it is settled that even if there are no children, the mother of the unborn child should still be placed in possession of the estate.

14. The Same, Disputations, Book Vill.

When a slave is granted his freedom absolutely, and is appointed an heir under a condition, it has been decided that even if the condition is not complied with, he will be entitled to his freedom.

15. Julianus, Digest, Book XXXIII.

"I give and bequeath Stichus to Sempronius; if Sempronius should not manumit Stichus within a year, let the said Stichus be free." The question arose, what is the rule in this case? The answer was that where freedom is granted as follows, namely, "If Sempronius should not manumit Stichus, let Stichus be free," and Sempronius does not manumit him, he will have no right to Stichus, but he will be free.

16. The Same, Digest, Book XXXVI.

Where the following provision is inserted into a will, "When Titius reaches the age of thirty years, let Stichus become free, and let my heir give him such-and-such a tract of land," and Titius dies before reaching his thirtieth year, Stichus will obtain his freedom, but he will not be entitled to the legacy. For it is only in favor of freedom that it is admitted, after the death of Titius, that a time is held to exist during which freedom may be granted; but the condition on which the legacy depended is considered to have failed.

17. The Same, Digest, Book XLII.

Freedom which is granted to take effect at the last moment of life, as for example, "Let Stichus be free when he dies," is held to be of no force or effect.

(1) The following testamentary disposition, "Let Stichus be free, if he does not ascend to the Capitol," must be understood to mean if he does not ascend to the Capitol as soon as he possibly can. Hence, Stichus would obtain his freedom in this way, if having the power to ascend to the Capitol he abstained from doing so.

(2) The question arose whether freedom should be considered to have been conditionally granted by the following1 provision in a will: "Let Pamphilus be free, in order that he may render an account to my children." The answer was that freedom should be granted absolutely, and that the addition, "In order that he may render an account," does not impose any condition upon the grant of freedom; still, because the manifest wish of the testator was expressed, the slave should be compelled to render his account.

(3) Where a slave is indefinitely ordered to be free after several years, he will become free after the expiration of two years. The favor-conceded to liberty requires this, and the words themselves are sus-

ceptible of such a construction; unless the person who is charged with the grant of freedom can prove by the clearest evidence that the intention of the testator was otherwise.

18. The Same, On Urseius Ferox, Book II.

Where a testator appointed two heirs, and directed that his slave should be free after the death of one of them, and the heir upon whose death the freedom of the slave depended died during the lifetime of the testator, Sabinus gave it as his opinion that the slave would become free.

(1) The following condition, "Let him be free when I die," includes the entire duration of life, and therefore is held to be void. It is better, however, that the words should be interpreted in a more favorable manner, and in such a way that the testator may be considered to have granted freedom to his slave after his death.

(2) The following gives rise to greater doubt, "Let him be free in a year," as this can be understood to mean, "Let him be free after the year of my death," and it can also be understood as follows, "Let him be free after the year when I made this will," and if the testator should happen to die within a year, the grant of freedom will be of no force or effect.

19. The Same, On Urseius Ferox, Book III.

A certain man charged his heir to manumit his slave, and if his heir did not do so he directed that he should be free, and he left him a legacy. The heir manumitted the slave. Several authorities hold that he obtained his freedom by the will, ana", as this was the case, that he was also entitled to the legacy.

20. Africanus, Questions, Book I.

A testator bequeathed his slaves, and made the following provision in his will: "I ask that you regard my slaves as worthy of their freedom, if they have acted meritoriously towards you." It is the duty of the Praetor to compel freedom to be given the slaves, unless they have done something which renders them unworthy of obtaining their freedom, without such services being required of them as may be considered necessary for them to deserve it.

The person who was asked to liberate them will still have the right to fix the time when he will do so; as, if he does not manumit them during his lifetime, his heir can be compelled to grant them their freedom immediately after his death.

21. The Same, Questions, Book IV.

"Let Stichus, or rather Pamphilus, be free." It was decided that Pamphilus should be free, for the testator appeared to have, as it were, corrected a mistake.

The same rule will apply where it was stated in a will, "Let Stichus be free, or rather let Pamphilus be free."

22. The Same, Questions, Book IX.

A testator appointed his son, who had not reached the age of puberty, his heir, and ordered that Stichus should be emancipated after he had rendered an account of the silver plate, which was in his care. This slave had stolen a portion of the silver plate, which he had divided with the guardian, and he gave the other part of it to the guardian who took an account of it. Advice having been asked as to whether Stichus was free, the reply was given that he was not.

But, on the other hand, as it has been decided if a slave who is to be free under a certain condition is directed to pay a certain sum of money, and pays it to the guardian, or it is the guardian's fault that the condition was not complied with, he will obtain his freedom; this must be understood to mean that all is done in good faith, and without any fraud on the part of the slave or the guardian, just as is observed in the alienation of the property of a ward. Therefore, if the slave should tender the money and the guardian should not be willing to accept it because his ward will be defrauded, the slave cannot obtain his freedom, unless he was not guilty of fraud. The same rule applies with reference to a curator.

(1) The question also arose, where the slave was ordered to render an account of the silver plate, in what way he should be understood to have complied with the condition; that is to say, if any vessels had been lost without his fault, and he delivered the remaining ones to the heir, in good faith, whether he would be entitled to his freedom. The answer was that he would be entitled to it, for it is sufficient if he rendered an honest and just account.

In short, he is considered to have complied with the condition by rendering to the heir such an account as the careful head of a household would accept.

23. Marcianus, Institutes, Book I.

A slave, who has been manumitted by a will, only becomes free when the will is valid, and the estate is entered upon on account of it; or where anyone obtains possession of the estate on the ground of intestacy because of the rejection of the will.

(1) Where freedom is granted by a will, it is obtained as soon as the estate is accepted by one of the heirs. If it is granted after a certain period, or under a condition, it will be obtained when the time arrives, or the condition is fulfilled.

24. Gaius, Diurnal or Golden Matters, Book I.

Slaves ordered to be free are considered to be expressly mentioned where they are clearly designated, either by their trades or offices, or in any other manner whatsoever, as, for instance, "My steward; my butler; my cook; the son of my slave Pamphilus."

25. Ulpianus, Rules, Book IV.

Where a slave is ordered to be free by the terms of a will, he will obtain his freedom as soon as any portion of the estate whatsoever is

accepted; provided it is accepted by one belonging to the degree in which the slave is ordered to be free, and that he has been unconditionally manumitted.

26. Marcianus, Rules, Book IV.

The Divine Pius and the Divine Brothers stated beneficently in a Rescript that where a slave, who was appointed a substitute, had been bequeathed a legacy, together with his freedom, in case he should not be an heir, but the bequest of his freedom was not repeated, the result would be the same as if this had been done.

27. Paulus, On the Lex JElia Sentia, Book I.

Those who can grant freedom by applying to a tribunal can also appoint slaves their necessary heirs; and this necessity itself renders the manumission proper.

28. The Same, On the Law of Codicils.

"Let Stichus be free, if I do not by a codicil forbid him to be manumitted," is the same as if a testator said, "Let Stichus be free, if I do not ascend to the Capitol," for an heir can be appointed in this way.

29. Scsevola, Digest, Book XXIII.

A man repudiated his wife, who was pregnant, and married another. The first one, having had a son, exposed it, and it was taken away and brought up by another, and bore the name of its father; but both the father and mother during their lives remained ignorant that it was living. The father died, and his will having been read, it was held that the son was neither disinherited nor appointed an heir by the will, and he, having been recognized by his mother and his paternal grandmother, obtained the estate of his father on the ground of intestacy, as the heir at law.

The question arose whether the slaves who obtained their freedom under the will were free, or not. The answer was that the son should not suffer any wrong, if his father did not know that he was living, and therefore, as he was under the control of his father, who was not aware of the fact, the will was not valid.

But if manumitted slaves remain for five years in a state of freedom, the favor with which liberty is regarded does not permit that when it has once been granted them it shall be revoked.

30. Ulpianus, On the Edict, Book XIX.

Where slaves who are in the hands of the enemy are ordered to be free, they will obtain their freedom, even though at the time that the will was executed, or when the testator died, they did not belong to the latter, but were in captivity.

31. Paulus, On the Edict, Book XXVI.

Where one of several slaves who have the same name is ordered to be free, and it is not apparent which one was meant, none of them • will obtain freedom.

32. Ulpianus, On the Edict, Book LXV.

It must be remembered that grants of freedom made by a will take effect whenever there is a necessary heir, even though he should reject the estate; provided they were not made contrary to the Lex JElia Sentia.

33. Paulus, Questions, Book XII.

Freedom cannot be granted for a certain time.

34. The Same, On the Edict, Book LXXIV.

Therefore, where the following is inserted into a will, "Let Stichus be free for ten years," the addition of the term is superfluous.

35. The Same, On the Edict, Book L.

Servius was of the opinion that freedom could be granted directly to slaves who had belonged to the testator, both at the time when the will was made, and when he died. This opinion is correct.

36. The Same, On Plautius, Book VII.

I manumitted a slave by will as follows, "Let him be free if he will swear to pay to my son, Cornelius, ten aurei in lieu of his services." The question arises, what is the law in this case? It must be acknowledged that the slave will comply with the condition by taking the oath, but he will not be bound to pay the money in lieu of his services, because he will not be bound unless he takes the oath after his manumission.

37. The Same, On Plautius, Book IX.

A slave is considered to have been manumitted specifically by a codicil, when his name is mentioned in the will.

38. The Same, On Plautius, Book XII.

Freedom can be granted to a slave by will as follows, "Let him be free when he has a right to be so by law."

39. The Same, On Plautius, Book XVI.

"Let my slave, Stichus, be free, if my heir should alienate him." This grant of freedom is void, because it has reference to the time when the slave will belong to another. Nor can the objection that a slave, who is to be free under a certain condition, will obtain his freedom by virtue of the will, even if he should be sold, be raised; for where freedom is legally granted, it cannot be annulled by the act of the heir. But what if a legacy is bequeathed in this manner? There is no reason to hold a different opinion under such circumstances, for no difference exists between a grant of freedom and a legacy, so far as this question is concerned. Therefore, freedom is not directly granted by the following clause, "Let my slave be free, if he ceases to belong to my heir," because there is no instance where a concession of this kind will be available.

40. Pomponius, On Plautius, Book V.

Julianus says that where the same slave is granted a sum under the terms of a trust, and is also ordered to be free, the heir must grant him his freedom; for he says that he is not, by virtue of the trust, compelled to pay the value of the slave, as he gives him his freedom to which he is entitled.

(1) But where freedom is granted to a slave conditionally, under the terms of a trust, and the slave himself is given at the time, the heir will not be obliged to deliver him, unless security is furnished by the beneficiary of the trust that, if the condition is fulfilled, he will liberate the slave; for in almost all cases freedom granted by virtue of a trust is considered as having been directly granted. Ofilius, however, says that if a testator bestowed freedom by means of a trust, with the intention of depriving the slave of a legacy, this opinion is correct. But if the legatee can prove that the heir was charged by the testator, he will still be obliged to pay the value of the slave to the legatee.

41. The Same, On Plautius, Book VII.

Where freedom is granted as follows, "Let Stichus be free the twelfth year after my death," it is probable that he will become free at the beginning of the twelfth year, for this was the intention of the deceased. There is, however, a great deal of difference between the two expressions, "the twelfth year," and "after twelve years," and we are accustomed to say "the twelfth year" when ever so little of the twelfth year has arrived, or elapsed. He who is ordered to be free the twelfth year is ordered to be free for every day during that year.

(1) Where the following provision is inserted in a will, "Let my slave, Stichus, be free, if he pays my heir a thousand sesterces at the end of one, two, and three years, after my death, or if he gives security to do so," the slave cannot become free before the expiration of the third year, unless he pays the entire sum immediately, or gives security; as the advantage which the heir derives from immediate payment should be compensated by the rapidity with which the grant of freedom is made.

(2) Labeo says that where a testamentary grant of freedom is made as follows, "Let Stichus be free within a year after my death," he will become free immediately. And if his freedom had been bequeathed as follows, "Let him be free, if he pays such-and-such a sum to my heir within ten years," and he pays it at once, he will become free without delay.

42. Marcellus, Digest, Book XVI.

If anyone should insert the following clause into his will, "I desire my slave to be the freedman of such-and-such a person," the slave can demand his liberty, and the other party can claim him as his • freedman.

43. Modestinus, On Manumissions.

Direct grants of freedom can be legally made by will, and by a codicil confirmed by a will. Grants of freedom under a trust can be made ab intestato, and by codicils not confirmed by a will.

44. The So/me, Opinions, Book X.

Msevia, at the time of her death, bequeathed freedom to her slaves named Saccus, Eutychia, and Hirena, conditionally, in the following terms: "Let my male slave, Saccus, and my female slaves, Eutychia and Hirena, be free, under the following condition, namely, that they burn a lamp on my tomb every other month, and celebrate funeral

rites there,"

As the said slaves did not regularly visit the tomb of Maevia, I ask whether they would be free. Modestinus answered that neither the wording of the entire clause nor the intention of the testatrix indicated that the freedom of the slaves should be suspended under a condition, as she desired them to visit her tomb as persons who were free; but that it was, nevertheless, the duty of the judge to compel them to obey the order of the testatrix.

45. The Same, Pandects, Book II.

It is commonly stated that where freedom is granted under several conditions, the one which is the least onerous should be observed; and this is true where the conditions are imposed separately. Where, however, they are imposed together, the slave will not be free unless he complies with all of them.

46. Pomponius, Various Passages, Book VII.

Aristo replied to Neratius Appianus as follows: If a slave is directed to be free by will when he reaches the age of thirty years, and, before doing so, he is sentenced to the mines, and afterwards is released, there is no doubt that he will be entitled to the legacy left with his freedom, nor will his right be affected by his sentence to the mines. The rule is the same when the slave is appointed an heir under a condition, for he will become the necessary heir.

47. Papinians, Questions, Book VI.

Where freedom is granted through mistake, under a forged codicil, although it is not due, still it must be granted by the heir, and the Emperor has decided that twenty solidi must be paid to the heir by each slave who is liberated.

(1) When an appointed heir manumits a slave for the purpose of complying with a condition, and the son, by subsequently bringing an action to declare the will inofficious gains his point, or the will is pronounced forged, the result will be that in this case the same course must be pursued as is prescribed in the one involving a forged codicil.

48. The Same, Questions, Book X.

Where a partner granted freedom to a slave by will, as follows, "Let Pamphilus be free, if my partner should manumit him," Servius gave it as his opinion that if the partner should manumit the slave, he will become the common freedman of the heirs of the deceased and of the partner who manumitted him; for it is neither new nor unreasonable for a slave held in common to obtain his freedom by the exercise of different rights.

49. The Same, Opinions, Book VI.

Where a female slave was manumitted by the will of a soldier, as follows, "I direct that Samia shall obtain her freedom," it was held that she obtained her freedom directly in accordance with military law.

50. The Same, Opinions, Book IX.

It was decided by the Divine Marcus, with a view to the preservation of freedom, that his decree on that subject should apply to cases where a will was held to be void, and that the property of the estate should be sold; and, on the other hand, it was especially provided where the estate is claimed by the Treasury as being without an owner, that this decree shall not be applicable.

(1) In order that slaves manumitted by a will might obtain the property of the deceased, it was decided that they must give a suitable bond in court, just as the other freedmen of the deceased, or foreign heirs. Minors, who are appointed heirs, and, as is customary, claim assistance with reference to the estate of the deceased, are not deprived of this advantage.

51. The Same, Opinions, Book XIV.

A centurion, by his will, forbade his slaves to be sold, and asked that they be manumitted, so far as they were deserving of it. The answer was that freedom was lawfully granted, since, if none of the servants had given cause for offence, all of them would be entitled to be free; but if some of them were excluded on account of having committed a crime, still the others ought to obtain their freedom.

(1) Where the following provision was inserted into a will, "Let those slaves who have not given cause for offence be free," it was held that the grant of freedom was conditional, and that it should be interpreted in such a way that the testator, when liberating his slaves, did not intend to include those whom he had subjected to punishment, or had excluded from the honor of serving him or from transacting his business.

52. Paulus, Questions, Book XII.

The Emperors to Missenius Fronto. Freedom having been granted by the will of a soldier in the following terms, "I wish or I order my slave Stephen to be free," the slave can obtain his freedom whenever the estate is entered upon. Therefore, when the following words were

added, "Provided, nevertheless, that he remains with my heir as long as he is a young man, but if he refuses to do so, or treats my proposal with contempt, let him continue to be held as a slave," they do not have the effect of revoking the freedom to which the slave was entitled.

The same rule is observed with reference to the wills of civilians.

53. The Same, Opinions, Book XV.

Lucius Titius granted freedom to his slave under the condition that he should render a faithful account of his administration to his son, Gaius Seius. When Gaius Seius had reached the age of puberty, the slave, having been sued by the curators of the former, paid in court everything that was due. A bond having been required of the curators, the slave was declared to be free. Now Gaius Seius, the son of the testator, denies that the money was legally paid to his curators, and I ask whether this was the case. Paulus answered that the balance of the account of the slave did not seem to have been paid to the curators of the youth in such a way as to comply with the condition prescribed by the will in accordance with law; but if the money had been paid in the presence of the minor, or had been entered in his accounts, the condition should be considered to have been fulfilled, just as if it had been paid to him himself.

54. Scsevola, Opinions, Book IV.

A man who had a slave named Cratistus made the following provision in his will, "Let my slave, Cratinus, be free." I ask whether the slave Cratistus can obtain his freedom, as the testator had no slave called Cratinus, but only the said slave, Cratistus. The answer was that no impediment existed because a mistake had been made in a syllable.

(1) Certain testamentary heirs, before entering upon the estate, agreed with the creditors that the latter should be content with half of their claims; and a decree having been issued by the Praetor to this effect, they accepted the estate. I ask whether the grants of freedom made by the will would take effect. The answer was that they would take effect, if the testator had no intention of committing fraud.

55. Msecianus, Trusts, Book II.

A grant of freedom having been made under a condition, the decision was rendered that if neither the slave nor the heir was responsible for the condition not having been complied with, the slave would be entitled to his freedom. I think that the same opinion should be given where freedom is granted under the terms of a trust to slaves belonging to an estate.

(1) It is not absurd to hold that this rule also applies to the slaves of the heir.

(2) We cannot reasonably doubt that this is also applicable to slaves whom the heir was charged to purchase; for in this instance,

it would be unjust for him to be compelled to purchase them as if the condition had been fulfilled, because it might happen that the owner would refuse to comply with the condition, in order to obtain the price of a slave, and not demand him as the condition.

56. Paulus, Trusts, Book I.

If anyone grants freedom to a slave by will, both directly and under a trust, it is in the power of the slave to choose whether he will obtain his freedom directly, or by virtue of the trust. This the Emperor Marcus also stated in a Rescript.

57. Gaius, On Manumissions, Book III.

When a wealthy man becomes the heir of a person who is poor, let us see whether this will be of any advantage to the slaves who are granted their freedom by will, without the creditors of the estate being defrauded. And, indeed, there are certain authorities who hold that when a rich man appears as the heir, it is the same as if the testator had died after having increased his estate. But I have been informed (and this is our practice), that it makes no difference whether the heir is rich or poor, but the amount of the estate of which the testator died possessed must alone be taken into consideration. Julianus adopts this opinion to the extent that he holds that grants of freedom will not take effect where the testator was insolvent, and ordered the slave to be free, as follows, "Let Stichus be free when my debts are paid."

This opinion, however, does not coincide with that of Sabinus and Cassius, which Julianus himself appears to accept, as he thinks that the intention of the testator who manumitted the slave should be considered. For a person who orders his slave to be free under such a condition does so without any intention of committing a fraud, since he is held clearly to desire that his creditors shall not be cheated.

58. Msecianus, Trusts, Book III.

It is true that, where a slave is directed to be free under the terms of a will, and is afterwards alienated by the testator, and again becomes a part of the estate before it is entered upon, he will obtain his liberty as soon as the estate is accepted.

59. Scasvola, Digest, Book XXIII.

Titia bequeathed freedom directly to certain of her male and female slaves, and then inserted the following provision in her will, "And I wish all the slaves attached to my personal service, whose names are inscribed in my registers, to be free."

The question arose whether Eutychia who, along with the other personal slaves, was emancipated at the time when the will was executed, and who, when the testatrix died, was married to a steward who was a slave, would obtain her freedom under the general head of "Slaves attached to my personal service." The answer was that there was nothing to prevent her obtaining her freedom, even though at the

time of the death of the testatrix she had ceased to be one of her attendants.

(1) Stichus received his freedom directly by the will of his master, and was accused of having fraudulently secreted much of the property of the estate.

The question arose if, before he could demand his freedom, he should not restore to the heirs the property which he was proved to have taken. The answer was that, according to the facts stated, the slave in question should be free.

Claudius: The point raised seems to have been finally disposed of, for the interest of the heirs will be sufficiently consulted by having recourse to the Edict concerning thefts.

(2) Lucius Titius provided by his will, "Onesiphorus shall not be free unless he renders an exact account of his administration." I ask whether Onesiphorus can demand his freedom by virtue of these words? The answer was that, in accordance with what is stated, he is rather deprived of freedom than granted it.

60. The Same, Digest, Book XXIV.

The following provision was inserted in a will, "I wish that a thousand solidi be given to Eudo, for the reason that he is the first child born after his mother obtained her freedom." If Eudo cannot prove that he was born after the manumission of his mother, I ask whether he can obtain his freedom by virtue of these words of the will. The answer was that this inquiry should not prejudice him.

61. Pomponius, Epistles, Book XL

I know that many persons, desiring that their slaves may never become free, are accustomed to insert the following clause in their wills, "Let Stichus be free when he dies." Julianus, however, says that where freedom is granted at the last moment of life, it has no effect; as the testator is understood to have made a disposition of this kind for the purpose of preventing rather than of bestowing freedom. Hence, if the following should be inserted in a will, namely, "Let Stichus be free, if he should not ascend to the Capitol," it will be of no force or effect, if it is evident that the testator intended to grant the slave his freedom at the last moment of his life, nor will there be ground for a Mucian Bond.

(1) If the following provision should be inserted in a will, "Let Stichus be free if he should go to Capua," the slave will not be free unless he goes to Capua.

(2) Octavenus goes still further, for he holds that if a testator, having granted freedom to his slave under any condition whatsoever, should add, "I am unwilling that he be manumitted by my heir before the condition is fulfilled," this, addition will be void.

TITLE V.

CONCERNING FREEDOM GRANTED UNDER THE TERMS op

A TRUST.

1. Ulpianus, On the Edict, Book XIV.

Where any persons among those who have been charged with a grant of freedom under a trust are present, and others are absent for some good reason, and others still have concealed themselves, the slave to whom freedom was bequeathed under the trust will become free, just as if those who were present, and those who were absent for good reasons had been charged with the execution of the trust; and therefore the share of the right of patronage to which those who concealed themselves are entitled will accrue to the others.

2. The Same, On the Edict, Book LX.

If anyone, when dying intestate, should bequeath freedom to a slave by a codicil, and the estate should not be entered upon, the benefit conceded by the Constitution of the Divine Marcus will be available. In a case of this kind, it directs that the slave shall be entitled to his freedom, and that the estate shall be awarded to him if he gives sufficient security to the creditors of the same to pay the full amount which is due to each one of them.

3. The Same, On the Edict, Book LXV.

Creditors generally have the right to bring praetorian actions against freedmen under these circumstances.

4. The Same, On the Edict, Book LX.

Hence, as long as it remains doubtful whether there is a successor or not, the Constitution will not apply, but as soon as it is certain, it will become operative.

(1) Where he who can obtain complete restitution rejects the estate, shall we hold that the Constitution will not become operative as long as his right to complete restitution continues to exist, because it is uncertain whether anyone will appear as an heir at law? The better opinion is that the Constitution will apply.

(2) But what if, after judgment has been rendered for the purpose of procuring freedom, the heir should obtain complete restitution? It can by no means be said that freedom which has once been granted can be revoked.

(3) Let us see whether those who receive their freedom must be present or not. And, as property awarded on account of freedom can be granted to them, even without their consent, this can also be done in their absence.

(4) But what if some of them were present, and others were absent? Let us see whether those who are absent will be entitled to their freedom. It can be said, just as in the case where an estate is entered upon, that those who are absent will also become free.

(5) If freedom is granted on a certain day, must we wait until the day arrives? I think that we should do so; therefore, the property will not be awarded before that time. But what should be done if freedom was granted under a condition? If some grants of freedom were made absolutely, and others conditionally, the property can be awarded immediately. When, however, all the grants of freedom were conditional, what then must be said? Must we wait until the condition is fulfilled, or shall we immediately award the property so that freedom will only be granted when the condition has been complied with? The latter opinion is preferable. Hence, when the property has been awarded, and freedom directly granted, it is immediately acquired; when it is granted at a certain time, it will be acquired when the time arrives; when it is conditional, it will be acquired when the condition is fulfilled. Nor is it unreasonable to hold that, while the condition upon which the grants of freedom are dependent is in abeyance, even though all the grants of freedom were conditional, the Constitution will apply. For it must be said where there is a prospect of freedom, the property must be awarded, when there is the slightest occasion for it, if this can be done without any loss to the creditors.

(6) If the slave who receives the grant of freedom, under the condition of the payment of ten aurei either to the heir, to someone who is not mentioned, or to the person entitled to the estate, the question arises, can the slave obtain his freedom? The better opinion is that the money should be paid to the person to whom the estate is awarded, as the condition appears to have been transferred to him. It is, however, certain if he was directed to pay it to some other person than the heir, that it must be paid to the individual designated.

(7) Where slaves have received their freedom under the terms of a trust, they do not become freedmen immediately, as soon as the estate is awarded, but they can obtain their freedom left" them by the trust; that is to say, they should be manumitted by the person to whom the estate is adjudged.

(8) The Emperor intended that an estate should be awarded only where sufficient security is given to the creditors for the payment of the entire amount due to each of them. Proper security must, therefore, be furnished. What is meant by the term "proper"? It signifies that sureties or pledges should be given. If, however, the creditor has faith in the promisor, without his furnishing a surety, the security will be considered sufficient.

(9) In what way should security be furnished to creditors ? Should it be given to them individually, or to one appointed by the entire number in the name of all ? It is necessary and is part of the duty of the judge to call the creditors together, and appoint one of their number to whom security shall be furnished in the name of all.

(10) Let us see whether security should be given to the creditors before the estate is awarded, or whether this should be done under the condition that security shall be furnished? I think that it will be sufficient if everything provided by the Constitution of the Divine Marcus is included in the decree.

(11) We should understand the entire amount to mean both principal and interest.

(12) The Constitution shows whose freedmen they who are manumitted become, so that those who receive their freedom directly will be the freedmen of the deceased; unless he who claims that the estate should be awarded to him alone wishes this to be done in such a way that those who have been emancipated directly may become his own freedmen.

(13) Should those who wish to become his freedmen be manumitted by him, or in awarding the estate ought we to mention that it is awarded upon the condition that the slaves who have been granted their liberty directly shall become his freedmen?

I think that this opinion should be adopted and stated in the decision, and the terms of the constitution also permit this to be done.

(14) When a slave, under the age of puberty, obtains his freedom, the party to whom the estate is awarded shall be entitled to his guardianship.

(15) If the deceased charged his heir to manumit certain slaves belonging to another, shall we say that the Constitution is applicable, or, indeed, will it not take effect? The better opinion is that there is ground for its application, because the person to whom the estate is awarded will be compelled to purchase the slaves, and have their freedom granted them by the PraBtor.

(16) If the legatee, and not the heir, is charged to manumit the slave, will the constitution fail to apply, because, the legacies not being due, the grants of freedom cannot be due either? The better opinion is that the same advantage will be available, as the intention of the constitution, generally speaking, is to grant freedom to all who are entitled to it, if the estate has been entered upon.

(17) The same constitution provides that if the Treasury acquires the estate, the grants of freedom must still be made. Therefore, if the property is without an owner, on account of the Treasury having either rejected or accepted it, the constitution will still apply. If, however, the Treasury obtains it in some other way, it is evident that the constitution will cease to be applicable. Hence, if the property of a legion, which is without an owner, escheats to the Treasury, the same opinion must be adopted.

(18) Likewise, where a minor of twenty years of age bequeaths a grant of freedom, we say that the slave will not be entitled to it, unless the minor left it under a trust. The slave will, however, be entitled to it if the minor should manumit him during his lifetime, provided he can give a good reason for doing so.

(19) Where freedom is granted and creditors defrauded by a testator who was not solvent at the time of his death, will the grant be valid? If the Treasury does not obtain the estate, the grant of freedom perhaps will be valid, because all that is due to the creditors is offered to them. If, however, the estate has been entered upon, it will not be valid. It is clear that if the Treasury should obtain the estate, there will be better ground for holding that the grant of freedom

will not be valid. For anyone, strictly adhering to the terms of the constitution, might say that he can only blame himself, who desired that the estate should be awarded to him under the condition that the grants of freedom should be considered valid. If anyone, however, should follow the rule applicable where an estate is accepted, a direct grant of freedom will be void if the intention of the testator was fraudulent, and the result was that the creditors were cheated; nor will grants of freedom under a trust be executed if, by doing so, the creditors of the estate will be defrauded.

(20) When an estate has not escheated to the Treasury, and it has been adjudged for the purpose of preserving freedom, can the Treasury afterwards acquire it? The better opinion is that it cannot do so. It is evident that, if notice had not previously been given to the officials of the Treasury, and the estate is awarded for the preservation of freedom, it should be considered whether there is ground for the application of the constitution. If the estate is in such a condition that the Treasury must accept it, the award will be of no effect; but if it is not, there will be ground for it.

(21) Moreover, he to whom property had been adjudged should be compared to a possessor under the Praetorian Edict; and, according to this, he will be entitled to the rights of burial enjoyed by the deceased.

(22) Again, let us see whether the person to whom an estate is awarded can be sued by the creditors as an heir, or only on the bond which he has furnished. The better opinion is that he can only be sued on the bond.

(23) Where an estate is awarded to two or more persons, they will hold the property and the freedmen in common, and will have the right to bring an action in partition against one another.

5. Paulus, On the Edict, Book LVH.

With reference to freedom granted by the terms of a trust, if the Praetor should, in the absence of the heir, decide that the slave was entitled to be free, he will become so, and will be the freedman of the deceased, if he was his slave, or of the heir if he belongs to the latter. Moreover, if the heir should die without a successor, the Senate, in the time of Hadrian, decreed that the freedom of the slave should be preserved.

6. The Same, On the Edict, Book LX.

Ten aurei were bequeathed by a testator, and the legatee was charged to purchase Stichus and manumit him. The Falcidian Law will apply, and the slave cannot be purchased for less than ten aurei. Some authorities hold that the legatee is entitled to three-fourths of the legacy, and should not be compelled to purchase the slave. They also think that even if an heir was requested to manumit his own slave, and only receives three-fourths of his legacy, he will not be compelled to manumit him.

Let us see whether, in this instance, another opinion should not be adopted. There are certain authorities who hold that, in the first place, the legatee should be compelled to assume the charge and purchase the slave, if he only receives three-fourths of his legacy. If, however, he is prepared to return what he has received, let us see whether he should be heard. The heir should be forced to pay the entire ten aurei, just as if the testator had expressly stated that the legacy should be paid in full.

7. Ulpianus, On the Edict, Book LXIII.

Where a hundred aurei are bequeathed to anyone, under the condition that the legatee shall purchase and manumit a slave belonging to another, and when the property of the heir is sold, the legatee shall only demand a portion and not all of his legacy, he cannot obtain it unless he gives security to manumit the slave; provided that the value of the portion which he will obtain will be as much as the price of the slave, and the master of the latter is ready to sell him for this price; otherwise, the legatee will be barred by an exception on the ground of bad faith.

8. Pomponius, On Plautius, Book VII.

Where a person to whom the sum of a thousand sesterces has been bequeathed is charged to manumit a slave worth twenty, he cannot be compelled to execute the grant of freedom under the trust, if he does not accept the legacy.

9. Marcellus, Digest, Book XV.

When an heir has been charged not to permit a certain slave to become the property of another, the slave can, immediately after having been alienated, institute proceedings to demand his freedom. Where, however, the alienation is not voluntary, but a necessity exists for it on account of some act of the testator, it is probable that the trust should not be executed, because the deceased is not supposed to have had an alienation of this kind in view.

10. The Same, Digest, Book XVI.

A certain man inserted the following provision in his will, "I do not wish my slaves, So-and-So and So-and-So, to be sold." Therefore, if he did not wish them to be sold and intended, if they were sold, that they should become free, their freedom should be granted them; for freedom is considered to have been bequeathed to a slave by the following clause, "I do not wish So-and-So to belong to anyone but you." Hence, in accordance with this, if the heir should attempt in any way to sell the slave, the latter can immediately claim his freedom, and if the heir should purchase him to prevent him from obtaining it, it will be of no advantage to him, because the condition has been fulfilled.

(1) A slave who was entitled to his freedom was sold. If he is willing to be manumitted by the heir, there will be no necessity to

bring the purchaser, who has concealed himself, into court along with the present heir, as the slave can avail himself of the decree of the Senate to obtain his freedom under the will.

(2) A slave who was entitled to his freedom under a trust permitted himself to be transferred to a bona fide purchaser by the heir, who was not solvent. Do you think that an action can be granted against this manumitted slave, just as where a freeman deceived his purchaser by pretending that he was a slave? I, however, am inclined to believe that an action will properly lie against the vendor, as the case seems to be similar to that of a slave entitled to be free under a certain condition, and who suffered this to be done the day before he was to obtain his freedom by will.

11. Modestinus, Differences, Book I.

A ward cannot grant freedom to a slave by virtue of a trust without the authority of his guardian.

12. The Same, On Manumissions.

When Firmus Titianus bequeathed three slaves, who were tragedians, and added, "I charge you not to permit them to become the slaves of anyone else," the Emperor Antoninus stated in a Rescript that, as the property of Titianus had been confiscated, the slaves should be publicly manumitted.

(1) A legatee as well as an heir can be charged to manumit a slave, and if he should die before manumitting him, his heirs must do so.

(2) The Divine Antoninus and Pertinax stated in a Rescript, where an estate was claimed by the Treasury because there was a secret provision to deliver it to a person who is not capable of receiving it, that all grants of freedom made directly, or under the terms of a trust, should be executed.

13. The Same, Rules, Book IX.

If a female slave, who is pregnant, should suffer delay in being manumitted, not through the intention of the person charged with this duty, but accidentally, her child will not be free; but the person who should have manumitted the said slave will be compelled to deliver the child to its mother, in order that through her it may obtain its freedom.

14. The Same, Opinions, Book X.

Lucius Titius, having made a will, appointed Seia, his wife, and Titia, their common daughter, heirs to equal shares of his estate. In another place he said, "I desire my slave, Eros, who is also called Psyllus, to be free, if my wife consents." Therefore, as Seia, the wife of Lucius Titius, refused to accept her share of the estate, which went to her daughter Titia, under the substitution, I ask whether Eros, who was also called Psyllus, will be entitled to his freedom by virtue of the above-mentioned clause. Modestinus answered that the

rights of Eros were not prejudiced, because the wife of the testator declined to accept the estate. I also ask whether his wife, Seia, who did not enter upon the estate, could legally oppose Eros when he demanded his freedom ? Modestinus answered that Seia's refusal of consent would be of no force or effect.

15. The Same, Pandects, Book V.

A person charged with the manumission of a slave under the terms of a trust can, in no way whatever, render the condition of the said slave worse; and therefore he cannot in the meantime sell him to anyone else, in order that he to whom he was sold may emancipate him; and if he should deliver the slave, he will be compelled to purchase and manumit him; for it is sometimes to the interest of a slave to be manumitted by an old man rather than by a young one.

16. Licinius Rufinus, Rules, Book V.

Freedom can also be bestowed under the terms of a trust, and, in fact, to even a greater extent than where it is directly bestowed, for by means of a trust it can be granted not only to one's own slaves, but also to those of another; provided' words in common use and by which the intention of the testator is plainly expressed are employed.

17. Claudius, On the Digest of Scsevola, Book XXI.

Freedom is legally granted by a trust as follows, "When you think proper to manumit him."

18. Scxvola, Digest, Book XXIII.

The following provision was inserted in a will, "Let Pamphilus be free, if he transacts my business properly." As the testator died some years after making this will, and there was no ground for complaint of the conduct of Pamphilus, so far as his patron was concerned, the question arose whether he was entitled to his freedom under the will. The answer was that there was nothing in the case stated to prevent him from obtaining it.

19. The Same, Digest, Book XXIV.

A woman, having appointed her husband her heir, liberated her slaves by a trust, among whom was Stichus, the steward of her husband. The slaves having appeared before the Governor of the province for the purpose of obtaining their freedom, during the absence of their master who had a good reason for being away, and the Governor of the province having decided that the slaves were entitled to their freedom, the question arose whether proceedings could be instituted against Stichus to compel him to render an account of his administration as steward. The answer was that this could not be done.

(1) A man bequeathed a dowry and considerable other property to his wife, and charged her to manumit Aquilinus, her own slave, before the tribunal. The woman refused to do so, because the slave was her individual property. I ask whether he was entitled to his free-

dom. The answer was that if the wife had accepted not only her dowry, but also the other property left to her by the will, she could be compelled to manumit Aquilinus by virtue of the trust, and that, when he became free, he could demand anything that had been bequeathed to him.

20. Pomponius, Epistles, Book VII.

It is stated by Julianus that, when an heir who is charged to manumit a slave transfers the estate under the Trebellian Decree of the Senate, he can be compelled to manumit the slave; and if he should conceal himself, or be absent for some good reason, the Praetor, after proper cause is shown, must render a decision in accordance with the decrees of the Senate which relate to cases of this kind.

If, however, the beneficiary to whom the estate was transferred should have the custody of said slave, he himself can manumit him; and it is proper that the same formalities should be observed with reference to him, as is usually done with reference to purchasers in general.

Do you think that this is true? I, myself, actuated by the desire to acquire knowledge, have for seventy-eight years considered the following saying, which I have always in mind, as the best rule of life, "When I have one foot in the grave I shall still be glad to learn something." Aristo and Octavenus very properly hold that the slave in question does not form part of the estate subject to the trust, because the testator, by asking the heir to manumit him, does not seem to have had in view that he should be delivered to the beneficiary of the same. If, however, he should be delivered through a mistake of the heir, the opinion of Julianus should be adopted.

21. Papinianus, Questions, Book XIX.

"I request that Stichus shall not become the slave of another." It was decided by the Emperor that freedom was granted by a trust under this clause: for what is more opposed to slavery than freedom ? Freedom, however, is not considered as granted after the death of the heir. The result is that if the heir, during his lifetime, should alienate the slave, he can immediately demand his freedom, and if the heir purchases him, it will be no impediment to his becoming free, as the condition has already been fulfilled.

This rule should also be adopted where the alienation by the heir was not voluntary, nor can it be stated, in opposition, that the alienation was not made by the heir himself; for the case resembles that of a slave who was to be free conditionally, where, to a certain extent, the condition has been complied with.

22. The Same, Questions, Book XXII.

When a tract of land and the sum of ten aurei are left to a legatee, instead of the price of one of his slaves, under the condition that he shall manumit the said slave, and he accepts the devise of the land, but rejects the bequest of the money to avoid the operation of the Fal-

cidian Law, he can be compelled to accept it, together with the diminution resulting from the Falcidian Law, and to grant freedom to the slave under the terms of the trust, when he has once accepted the devise of the land.

(1) A testator, who had three slaves, charged his two heirs to manumit two of the said slaves whom they might select. One of the heirs failing to appear, the other mentioned the two slaves whom he desired to manumit. It can be said that they are liberated and obtain their freedom, just as if the heir who was present alone had the right to emancipate them. If, however, one of the slaves should die, and the heir should be absent for some good reason, or he of whom the request was made did not have the power of speech, it is established that the two surviving slaves will become free by the Decree of the Praetor.

(2) When a trustee who is charged with the grant of freedom is absent for a good and sufficient reason, or conceals himself; or where there are several heirs, some of whom are present and others absent for good cause; and still others do not appear in order to avoid the execution of the trust; or the heir charged with the grant of freedom is not living; or a proper heir rejects the estate; the Praetor must decree that the slave is entitled to his freedom under the trust provided by the will of Lucius Titius.

It has been expressly stated by a decree of the Senate that, although it may not be doubtful or obscure whose freedman the slave will become, the Praetor must decide which one of the heirs was absent for a good reason, and which one failed to appear for the purpose of preventing the execution of the trust.

23. The Same, Opinions, Book IX.

Freedom granted under the terms of a trust cannot be deferred under the pretext that the slave has stolen something belonging to the estate, or has administered its affairs improperly.

(1) The heir of an heir, who has transferred the estate under the Trebellian Decree of the Senate, can be compelled to grant freedom to a slave, where the trust has not been executed by the former heir, if the slave who is to be manumitted selects him as his patron.

(2) I gave it as my opinion that a son, who is a soldier, or who has served in the army, and who has accepted a trust created by his father requiring him to liberate a slave forming a part of his peculium castrense (the charge being that this should be done by his legitimate sons) ; if he should become the heir of his father he can be forced to emancipate the slave, because the deceased thought that he was manumitting his own slave after having given him to his son. The latter cannot be compelled by his brother, who is the co-heir of the owner of the slave, to pay him a portion of the price of the slave, as this would be contrary to the will of the father; nor, on account of this mistake, should the other property which his father gave to his son when he was about to depart for the army be brought into contribution for the benefit of the brother, who remained under paternal control;

as the said son, who is included among the other lawful heirs, can retain his peculium castrense as a preferred legacy.

(3) Where freedom is granted under the terms of a trust, and a son is charged with the execution of the same, after he arrives at a certain age, and he dies before reaching that age, freedom must be granted to the slave by his heir at the prescribed time; but it has been settled that this decision, which only applies to a particular case, does not extend to other kinds of trusts.

(4) A testator wished a slave to be manumitted by his son after the expiration of five years, if, during that time, the slave paid him a certain sum every day. The slave ran away after two years had elapsed, and did not pay the money. It was held that the condition had not been complied with.

If, however, the son, who was the heir, or his guardians, had chosen to accept the services of the slave during the two years, in lieu of payment, it was held that this would be no impediment to the freedom of the slave, as it was the fault of the heir that the remainder of the condition had not been fulfilled.

24. Ulpianus, Trusts, Book V.

Generally speaking, we say that persons who can leave money under a trust can also bequeath a grant of freedom in the same manner.

(1) A grant of freedom under a trust, which is bequeathed to a slave of the Emperor, or of a municipality, or of anyone else, is valid.

(2) Where freedom is bequeathed by the terms of a trust to a slave of the enemy, can it be maintained that it is not without force or effect? Perhaps someone may say that a slave of the enemy is unworthy to become a Roman citizen. If, however, it is bequeathed to him in case he becomes one of our allies, what is there to prevent anyone from holding that the grant of freedom is valid?

(3) Where freedom is bequeathed under the terms of a trust to a man who is already free, and he is subsequently reduced to slavery, he can demand his freedom, provided he was a slave at the time of the death of the testator, or when a condition was fulfilled.

(4) Freedom can legally be left under a trust to a slave who is yet unborn.

(5) A slave cannot expect his freedom if he has been sentenced to the mines. But what if freedom was left to him under the terms of a trust, and he was released from the penalty of the mines by the indulgence of the Emperor? It was stated in a Rescript by our Emperor that he will not be restored to the ownership of his former master; but in this case, it is not stated to whom he will belong. It is certain that when he becomes the property of the Treasury that he can expect to obtain his freedom by virtue of the trust.

(6) Freedom under the terms of a trust can be granted to a slave conceived and born of a woman who was condemned to the mines. What is there surprising in this, as the Divine Pius stated in a Rescript that he could be sold as a slave?

(7) Where it is requested by the testator that Stichus should not afterwards serve as a slave, it was held that freedom should be considered to have been granted to him under a trust; for he who asks that he shall not afterwards serve as a slave is considered to ask that he be granted his freedom.

(8) Where, however, the testator states, "You shall not alienate or sell him," the same rule will apply, provided that this was done by the testator with the intention that he should obtain his freedom. But if he inserted the clause with a different intention (for example, because he advised the heir to retain the slave; or because he desired to punish and torture the latter in order to prevent him from obtaining a better master, or did so with some other motive than that of liberating him), it must be said that he should not be granted his freedom. This was mentioned by Celsus in the Twenty-third Book of the Digest.

It is not so much the terms of the trust as the intention of the testator, which usually confers freedom in such cases. As, however, freedom is always considered to be granted, it devolves upon the heir to prove the contrary intention of the testator.

(9) When anyone appoints a slave a guardian, because he thinks that he is free, it is absolutely certain that he cannot demand his freedom, nor can the right to the guardianship be maintained by him on account of the grant of freedom. This is held by Marcellus in the Fifteenth Book of the Digest, and Our Emperor, with his Father, also stated it in a Rescript.

(10) Where anyone grants liberty directly to a slave who has been pledged, although, by the strict construction of the law, the grant is held to be void; still, if freedom had been left to him by the terms of a trust, the slave can demand his liberation by virtue of it. For the favor conceded to freedom requires that we should interpret the bequest in this manner, and that the words of the will mean that freedom should be demanded, just as if the slave had been directed to be free under the terms of a trust. For it is well known that many things contrary to the strict construction of the law have been decided in favor of liberty.

(11) It is established that grants of freedom which are either direct, or dependent upon the terms of a trust, cannot be carried out under a will which has been broken by the birth of a posthumous child, where the testator has not charged his lawful heirs with their execution.

(12) Where anyone is requested to manumit his own slave, or the slave of another, and he receives less by the will of the testator than the value of the slave, whether he can be compelled either to purchase the slave belonging to another, or to manumit his own, is a question for consideration. Marcellus says that, as soon as he accepts the legacy, he will, by all means, be compelled to manumit his slave. And, indeed, this is our practice, as it makes a great deal of difference whether anyone is requested to manumit his own slave, or a slave belonging to someone else. If it is his own slave, he will be compelled

to manumit him, even if the amount he receives is very small; but if it is the slave of another, he should not be forced to manumit him unless he can purchase the said slave for a sum equal to what he receives by the will of the testator.

(13) Hence Marcellus says that he also, who is appointed the heir, can be compelled to manumit his own slave, if he obtains anything from the estate after payment of its indebtedness, but if he obtains nothing, he cannot be forced to do so.

(14) It is clear that, if less has been bequeathed to anyone than the slave is worth, but the legacy has been increased for some reason or other, it will be perfectly just for him to be compelled to purchase the slave with the amount which he obtains from the estate; but it should not be said that he has been left less than the slave was worth, as his legacy has been increased by reason of the will. For if, through delay, the crops or the interest should be added to the amount bequeathed under the trust, it must be held that freedom ought to be granted.

(15) On the same principle, if the price of the slave has been reduced, it must be held that he should be forced to purchase him.

(16) Where, however, the legacy has been diminished, it must be considered whether he who expected to obtain a larger legacy can be compelled to manumit the slave. I think that if he is ready to refund the legacy, he cannot be forced to do so, for the reason that he accepted the legacy with a different prospect, and it has been unexpectedly diminished. Therefore, if he is ready to surrender the legacy, he shall be permitted to do so, unless what remains of it is sufficient to pay the price of the slave.

(17) But what if a person is charged to manumit several slaves, and the sum bequeathed is equal to the value of some of them, but not to that of all; can he be compelled to manumit some of them ? I think that he can be compelled to manumit as many as the legacy will permit him to do. But who shall decide which ones shall be manumitted; must the legatee select them, or must the heir do so? Perhaps someone may very properly say that the order given in the will should be followed. If the order is not indicated therein, the slaves ought to be selected by lot, to prevent the Praetor from being suspected of favoring any through interest, or kindness; for he must render his decision by taking into account the alleged merits of each slave.

(18) In like manner, it must be held that, where a legatee is ordered to purchase certain slaves, and give them their freedom, and the money which was bequeathed for this purpose is not sufficient for the purchase of all of said slaves, the rule in this case will be the same as we have adopted in the preceding one.

(19) Where a legacy is bequeathed to anyone, and he is requested to manumit his own slave, and transfer the legacy to him, must freedom be granted under the terms of the trust? Some authorities are in doubt on this point, because if the legatee is compelled to give the slave his liberty, he will necessarily be obliged to execute the trust

and transfer the legacy; and there are some authorities who hold that he should not be forced to do so. For if a legacy should be left to me, and I should be charged to immediately transfer it to Titius, and also to grant freedom under the trust to my slave, we should undoubtedly hold that I cannot be compelled to grant him his freedom, because I am not considered to have received anything to take the place of his value. It is clear that if I should be charged to pay the legacy after a certain time has elapsed, it may be held that I can be compelled to manumit the slave if, in the meantime, I have obtained any benefit from the legacy.

(20) Where anyone is asked to give to one person a tract of land, and to another a hundred aurei, at the time of his death, he will be compelled to pay whatever he has collected out of the profits of the land, if the amount is equal to that provided by the trust; so that, in this instance, it is not certain whether the money left under the trust, or the grant of freedom, will be due.

(21) Whenever freedom is legally bequeathed by the terms of a trust, the condition is such* that the right can neither be extinguished by a donation, nor by usucaption; for no matter into whose hands the slave whose freedom has been left under the trust may come, his owner will be compelled to manumit him. This has been frequently set forth in the Imperial Constitutions. Therefore, he into whose hands the slave may come will be compelled to grant him his freedom by virtue of the trust, if he who was requested to do so prefers it; for it has been settled by a broader interpretation that, even if freedom were left to a slave conditionally, and he should be alienated while the condition is pending, he is, nevertheless, alienated with the understanding that he is to be free if the condition is complied with. If, however, the slave is unwilling to be manumitted by him, but prefers to obtain his freedom from the person who was charged to emancipate him, the Divine Hadrian and the Divine Pius stated in a Rescript that he must be heard.

The Divine Pius also stated in a Rescript that even if he had been already manumitted and preferred to become the freedman of the person who had liberated him, he should be heard. But if the freedman can show that his rights may be, or have been prejudiced by his manumission, on account of some act of the person who manumitted him or for some other reason, relief must be granted him by one of these constitutions, in order that his condition may not become less endurable, which would be contrary to the wishes of the deceased. It is. clear that if the intention of the deceased was that the slave should be manumitted by anyone whomsoever, it must be said that the constitutions above referred to will not apply.

25. Paulus, Trusts, Book HI.

If the heir who sold the slave should die without leaving an heir, and the purchaser should be living, and the slave should desire to become the freedman of the deceased, and not that of the purchaser, Valens decided that he ought not to be heard, for fear that the pur-

chaser might lose both the price which he had paid and his rights over the freedman as well.

26. Ulpianus, Trusts, Book V.

Where anyone who was requested to manumit the slave of another transfers the slave to a third party on account of his death or the confiscation of his property, I think that it should be held that there is ground for the application of the constitutions, in order that the condition of the freedom bequeathed by the trust may not be rendered worse. For when anyone is charged to manumit a slave at the time of his death, and he dies before giving the slave his freedom, it has been decided that it is the same as if the slave had been bequeathed his freedom by him; for he could have granted him his freedom directly by his will.

The result of this is, that whenever anyone who obtains his freedom by virtue of a trust is manumitted by someone, other than the person charged with manumitting him, he w^Jl be entitled to the benefit of the constitutions, and will be regarded just as if he had been manumitted by him who was asked to do so; for the reason that favor is always shown to grants of freedom under a trust, and when they are bequeathed they should not be interfered with, as he to whom they are granted is in the meantime held to be in the enjoyment of his liberty.

(1) Therefore, it is apparent that relief should be granted where freedom is left under a trust, and that any delay which results should be considered as proceeding from the matter itself, and in reckoning the day from which freedom can be demanded, children should be given to their mother to be manumitted, where she is a liberated slave, and the children are born free from the day when freedom was demanded. For, generally, freedom which is left under a trust is demanded too late, or is not demanded at all, on account of the neglect or timidity of those who are entitled to it; or because of their ignorance of their rights; or on account of the authority and rank of those who are charged with the execution of the trust; which things should not stand in the way of the acquisition of freedom.

Hence we maintain, and it should so be decided, that children are born free from the very time when any delay is made in liberating their mother from servitude; and, moreover, the child of a female slave should be considered as manumitted from the very time when the mother had the right to demand her freedom, even though she may not have done so.

It is clear that relief should be granted to minors of twenty-five years of age in a case of this kind, and that any delay should be held to have proceeded from the matter itself; for, as it has been decreed and set forth in the Constitution of the Divine Severus that wherever delay takes place in the payment of money left to minors under a trust, it should be considered as having proceeded from the matter itself, there is still greater reason that this rule should be adopted where grants of freedom are involved.

(2) A certain Caecilius, who had given a female slave in pledge, provided by his will that, after the claim of his creditor had been satisfied, the slave should be manumitted by virtue of a trust. The heirs not having paid the creditor, the children afterwards born to the said slave were sold by him. Our Emperor and his Father stated in a Rescript that, in accordance with what had been decided by the Divine Pius, the children should not be defrauded of the freedom to which they are entitled, and that the price having been refunded to the purchaser, they should become free; just as if their mother had been manumitted at the time when they were born.

(3) Our Emperor and his Father also stated in a Rescript that if a will or a codicil had not been opened within five years after the death of the testator, and the female slave had had a child in the meantime, it should be delivered to its mother, in order that it might be granted its freedom; and that it should not remain in slavery on account of accidental delay.

(4) It is, therefore, apparent from this Rescript, as well as from the one which we have mentioned as promulgated by the Divine Pius, that these Emperors were unwilling that any accidental delay in granting freedom should prejudice the rights of a child born of a slave to whom freedom was granted under the terms of a trust.

(5) This, however, will not be the case where freedom is to be granted under a trust to a female slave by the substitute of a son under the age of puberty, if she had the child during the lifetime of the minor; or if she was to receive her freedom after the lapse of a certain time, or conditionally, and she brought forth the child before the time had arrived, or before the condition had been complied with; for the said child will not be entitled to freedom because the condition in this case is different, as the delay was not accidental, but was caused by the will of the testator.

(6) If a slave should be bequeathed to anyone in such a way that the legacy is held to be void, and freedom is bequeathed to the same slave under the terms of a trust, the question arises whether the grant of freedom must also be held to be void. And if the slave demands his freedom under the terms of the trust of the person under whose control he remains, where the legacy left to him who was charged to manumit him has been declared to be void, or if the slave himself was bequeathed as was stated above, whether the bequest of his freedom should not be considered to be without force or effect. I think it should be said that the grant of freedom under the trust remains unimpaired, even though nothing may come into the hands of him who was asked to manumit the slave. Hence, he who obtains the legacy must liberate the slave, for the reason that freedom granted under the terms of a trust permits no obstacle to be interposed.

(7) In the case of bequests of freedom, relief is granted by a decree of the Senate enacted in the time of the Divine Trajan, during the Consulate of Rubrius Gallus and Gselius Hispo, as follows: "If those charged with a grant of freedom, having been summoned by the Prse-tor, refuse to appear, and, after investigation, the Praetor finds that the

slaves are entitled to be free, they will be in the same position under the law as if they had been directly manumitted."

(8) This Decree of the Senate has reference to those who are entitled to freedom by virtue of a trust. Hence, if they are not entitled to it, and it has been fraudulently obtained by a decision of the Praetor, freedom will not be granted under this Decree of the Senate. This Our Emperor and his Father stated in a Rescript.

(9) Those must be summoned before the Praetor who are obliged to grant freedom under a trust, but the Rubrian Decree of the Senate will not apply unless they are summoned. Hence, they should be summoned by notices, by edicts, or by letters.

(10) This Decree of the Senate applies to all those who conceal themselves, and who are required to grant freedom under the terms of a trust. Hence, no matter who is charged, whether it is the heir or anyone else, there will be ground for the application of the Decree of the Senate; for all of those who are obliged to grant freedom by virtue of a trust are in such a position that the Decree of the Senate will be applicable to them.

(11) Wherefore, if the heir should conceal himself, and the legatee or the trustee who was asked to grant freedom to a slave is present, the Decree of the Senate will not take effect, and the grant of freedom will be prevented; for, in this instance, we suppose that the legatee has not yet obtained ownership of the slave.

27. Paulus, Trusts, Book III.

Therefore, in this case recourse must be had to the Emperor, in order that the interests of freedom may be consulted.

28. Ulpianus, Trusts, Book V.

Will there be ground for the application of the Rubrian Decree of the Senate, if a slave, to whom freedom was bequeathed by a trust, should be sold by the person charged with his liberation, and the purchaser should conceal himself, but the trustee should appear? Marcellus says that the Decree will apply, because the party who was charged to manumit the slave is not present.

(1) The following words, "Refuse to appear," do not absolutely require that he whose duty it is to grant freedom should conceal himself, for if he does not do so, but merely fails to appear, the Decree of the Senate will be applicable.

(2) The same rule should also be observed where several heirs are charged with the granting of freedom under the trust, and a decision rendered that no good cause exists for their absence.

(3) The slave will become the freedman of those who are absent for a good reason, as well as of those who, being present, do not cause delay in the execution of the trust, just as if they alone had granted him his freedom.

(4) Where anyone, having been charged to manumit a slave that does not belong to the estate, conceals himself, a Decree of the Senate to provide for such an emergency was enacted during the Consulate of

^Imilius Juncus and Julius Severus as follows: "It is decided that where any one of those who are charged to grant freedom to a slave under a trust, for any reason whatsoever, and the slave did not belong to the person who made the request at the time of his death, and the trustee refuses to appear, the Prastor shall take cognizance of the case, and if it is established that the slave has a right to be manumitted, and the person charged with his manumission is present, he must decide accordingly. And, after he has rendered his decision, the condition of the slave will be the same in law as it would have been if he had been manumitted by the person who was charged to do so under the trust." (5) It must be held that persons are not present for a good reason, when no improper cause exists for their absence; as it is sufficient if they have not absented themselves for the purpose of defrauding the slave of his freedom, in order that they may appear to be absent for a good reason. It is, however, not necessary that anyone should be absent on public business. Hence, if he has his domicile in one place, and he applies for freedom under the trust in another, it must be said that it is not essential for him who is alleged to be the one from whom the grant of freedom is due to be summoned, because if while he is absent, it should be established that freedom ought to be granted, a decree can be rendered that he is absent for a good reason, and he will not lose his rights over his freedman; for no one can entertain any doubt that he is absent for a just cause who is at his own residence.

29. Paulus, Trusts, Book HI.

Where a slave is alienated after he has been placed in such a position that he ought to be liberated under the terms of a trust, the person to whom he belongs in the meantime will be compelled to manumit him. In this case, however, no distinction is made as to whether there is a good cause for his absence or not, for, in any event, he will be entitled to his freedom.

30. Ulpianus, Trusts, Book V.

When a decree is rendered by the Praetor that he who is absent has good reason for it, and he is already dead, Our Emperor stated in a Rescript that the decree must be transferred to his heir, and that the law would apply to him just as if the Praetor had decided that he himself was absent for a good reason.

(1) Where an infant was among the slaves entitled to manumission, the Senate decided that the age of one of them would prevent the others who were entitled to be free under the terms of the trust from obtaining their liberty.

(2) This rule will also apply where only one heir is appointed, and he is unable to speak for himself.

(3) When, however, the minor has a guardian, and he is unwilling to authorize the grant of freedom, the Divine Brothers stated in a Rescript that the slave should become free under the terms of the trust, just as if he had been manumitted by the minor himself, by the authority of his guardian; and that it should not be productive of any disad-

vantage to the minor, nor would it, in any way, prejudice the grant of freedom, if he did not have the slave as his freedman.

(4) Therefore, when any case occurs in which a child is not able to speak for himself, and yet is charged with a grant of freedom under a trust, we must take into consideration the spirit of the Decree of the Senate, which even extends to the infant heir of the person charged with the execution of the trust.

(5) Recourse should also be had to the Praetor under these circumstances, especially as it is provided by a Rescript of the Divine Pius that where some of those charged with the execution of the trust are present, and others have concealed themselves, and others again are absent for some good reason, and there is also an infant, the slave will not become the freedman of all of them, but only of the infant and of those who are absent for a good reason, or of those who are present.

(6) Where several heirs are appointed, and among them there is one who cannot speak for himself, but who has not been charged to manumit the slave, the grant of freedom will not lose its effect because the infant cannot sell his share of the slave to his co-heirs. The Vitra-sian Decree of the Senate is applicable in this instance.

The Divine Pius, however, stated in a Rescript addressed to Cassius Dexter, that the matter could be disposed of as follows, namely, by appraising the shares of the slaves to whom freedom was granted under the terms of the trust, at their true value, and then directing the slaves to be manumitted by the persons charged with that duty. Those who manumitted them will, however, be liable to their brothers and coheirs, just as if judgment had been rendered against them on this account in court.

(7) The Divine Pius stated in a Rescript, with reference to an insane person, that freedom granted under a trust was not prevented on account of the condition of the appointed heir, where it was alleged that he was not of sound mind; and, therefore, if it should be established that freedom had been legally provided for by the trust, a decree must be rendered in which this is stated.

(8) Relief should be granted to a deaf and dumb person just as in the case of an infant.

(9) Where anyone dies without leaving an heir or other successor who can execute the trust conferring freedom, the Senate decreed that relief should be granted upon application being made to the Prsetor.

(10) If, however, a proper heir should reject the estate, relief should be granted by the Decree of the Senate to the person entitled to freedom under the trust; even though he cannot be said to die without an heir, who leaves a proper heir, even if he rejects the estate.

(11) The same rule will also apply where a minor of twenty-five years of age enters upon the estate of the person charged with granting him freedom, and obtains complete restitution because of his rejection of the estate.

(12) It may also be asked whose freedman the slave becomes; for, in accordance with the constitution, he obtains his freedom just as if

he had acquired it by virtue of the will. He will, therefore, become the freedman of the deceased, and not of him who was charged with the execution of the trust.

(13) A Rescript of the Divine Marcus and Verus is extant which says that where one of those charged with the execution of the trust dies without leaving a successor, and the other is absent for some good reason, the slave shall be entitled to his freedom, just as if it had been granted to him regularly by the person who died without a successor, or by him who was absent for a good reason.

(14) A very nice point may arise; that is, where an heir dies without a successor, whether the slave can obtain his freedom before it is certain that an heir or a possessor of the estate under the Praetorian Edict will not appear, or while it is still doubtful (for instance, while the appointed heir is deliberating), whether he will accept the estate. The better opinion is that it is necessary to wait until it is certain that no successor will appear.

(15) Our Emperor, Antoninus, stated in a Rescript that a slave who is entitled to freedom by virtue of a trust cannot receive anything under the will of the heir without his freedom being mentioned.

(16) The Divine Marcus also stated in a Rescript that grants of freedom under a trust could not be annulled or unfavorably affected by the age, the condition, the default, or the tardy action of those who were required to see that they were executed.

(17) Although a bequest of freedom made by a codicil which is void is not due, still, if the heir considered the codicil to be valid, and paid out anything under it, and desired that the slaves should remain free for the sake of carrying out the provisions of the trust, it has been declared by a Rescript of Our Emperor and his Divine Father that they will justly be entitled to their freedom.

31. Paulus, Trusts, Book III.

Freedom can be granted under a trust to a slave belonging to another, provided he has testamentary capacity with reference to his master.

(1) Where a person about to die intestate charged his son to manumit a certain slave, and a posthumous child was afterwards born to him, the Divine Fathers stated in a Rescript that, because the slave could not be divided, he should be manumitted by both the heir at law and the posthumous child.

(2) A person who is charged with a grant of freedom under a trust can manumit a slave, even at the time when he is forbidden to alienate him.

(3) If a patron acquires praetorian possession contrary to the provisions of the will, because his freedman has passed him over, he cannot be compelled to sell his own slave whom he was requested by his freedmen to manumit.

(4) Where the person to whom a slave belongs is unwilling to sell him in order that he may be manumitted, the Prsetor has no cause to interfere. The same rule applies when he wishes to sell him for more

than a just price. If, however, the master is ready to sell his slave for a certain sum which, at the first glance, does not appear to be unjust, and he who was asked to manumit him contends that the price is unreasonable, the Praetor should interpose his authority, so that a just price having been paid with the consent of the master freedom may be granted to the slave by the purchaser.

If, however, the master is willing to sell the slave, and the latter desires to be manumitted, the heir should be compelled to purchase and manumit him; unless the master wished to manumit the slave in order that an action might be granted him against the heir to recover the price. The same should be done if the heir conceals himself. The Emperor Antoninus, also, stated this in a Rescript.

32. Msecianus, Trusts, Book XV.

If the master is ready to alienate the slave, but is not willing to do so before he is satisfied with the price, he ought not to be compelled to liberate him, lest, if he did it, he might obtain little or nothing, if he who is asked to manumit him should prove to be insolvent.

(1) If the slave does not consent, neither the master nor anyone else should be permitted to proceed with the matter, because a trust of this kind is not one by which anything is acquired by the master; otherwise, the benefit of the trust would appear to accrue only to himself.

This might happen if the testator wished the slave to be purchased for more than he was worth, and be manumitted, for then the master could proceed with the execution of the trust; because it would be to his interest to obtain, in addition to the true value of the slave, any excess which the testator ordered to be given him; and it is to the interest of the slave to secure his freedom.

(2) This will occur where the heir or the legatee is directed to purchase certain property for a special sum of money, and deliver it to another; for then both the owner of the property and the person to whom it is to be delivered can proceed to compel the execution of the trust, as both of them are interested in doing so; the owner, in order that he may obtain any excess over and above the price which the testator has ordered to be given him, and the person to whom the property was left, in order that he may acquire it.

33. Paulus, Trusts, Book III.

Where the son of the deceased is asked to manumit a slave belonging to his father, it must be said that he can have him as his freedman under the Praetorian Edict, and impose services upon him; for he can do this as the son of the patron, even if the slave should obtain his freedom directly.-

(1) There will be ground for the application of the Rubrian Decree of the Senate even when freedom is granted under a condition, provided compliance with the condition is not imposed upon the slave himself. Nor does it make any difference whether the condition consists of giving or doing something, or is dependent upon the occurrence of any

other event, for the heir will lose his freedom as the son of the deceased if he places any obstacle in the way of the fulfillment of the condition, even though he can acquire his right over the freedman in another way.

Sometimes he suffers a penalty, for if he demands that the slave shall remain in servitude, or accuses him of a capital crime, he will lose praetorian possession contrary to the provisions of the will.

(2) Where a slave is bequeathed to anyone who is charged to manumit him, but refuses to accept him, he can be compelled to do so, or to assign his rights of action to whomever the slave may select, in order that the grant of freedom may not be annulled.

34. Pomponius, Trusts, Book III.

When the person to whom a slave is left to be liberated under a trust is unwilling, the slave should not be delivered to him in order to be manumitted; but he can become the freedman of another than the one who was requested to emancipate him.

(1) Campanus says that if a minor of twenty years of age should ask his heir to manumit a slave who belongs to him, his freedom must' be granted; because, in this instance, the Lex ^lia Sentia does not apply.

(2) A slave was bequeathed to Calpurnius Flaccus, who was charged to manumit him, and if he refused, the same slave was bequeathed to Titius, who was also charged to manumit him; and if he should fail to do so, the slave was ordered to be free. Sabinus says that the legacy is void, and that the slave will become free immediately by the terms of the will.

35. Msecianus, Trusts, Book XV.

The opinion of Gaius Cassius is not adopted, for he held that the obligation of manumitting his own slave should not be imposed upon the heir or the legatee, if the services of the slave were so necessary that he could not dispense with them; as, for instance, where he was his steward, or the teacher of children, or where he had committed an unpardonable crime. For the testator is considered to have had these slaves in his power, and the owners have the right to reject the will, but if this is not done, the wishes of the deceased should be carried out.

36. The Same, Trusts, Book XVI.

Neither infants, insane persons, captives taken by the enemy, nor those whom religion or any honorable cause, or some calamity, or important business, or the danger of forfeiting life or reputation, or anything of this kind detains, come within the scope of the Rubrian Decree of the Senate; nor, indeed, minors who have no guardians, and even if they have any, are they or their guardians subject to its provisions, where any of the above-mentioned matters are involved. For, even if the latter designedly refrain from exerting their authority, I do not think that their wards should be deprived of the rights over their freedmen, because it is unjust that a ward should suffer wrong by the act of his guardian who, perhaps, may not be solvent, and only

those are included in the Decree of the Senate who are obliged to grant freedom in accordance with the provisions of the trust. What course must then be pursued ? Relief is granted to such persons by the Dasumian Decree of the Senate, under which provision is made with reference to those who are absent for some good reason, in order that no impediment may be placed in the way of freedom, and that the rights over a freedman may not be taken from those who are not guilty of fraud.

(1) If an absent party is defended by an attorney, he is always held to be absent for some good reason, and he will not be deprived of his rights over his freedman.

(2) No objection can be urged against the jurisdiction of a magistrate who has cognizance of a grant of freedom under a trust, by alleging a personal privilege, or one attaching to a municipality or a corporation, or any office held by anyone, or the civil condition of any of the parties interested.

37. Ulpianus, Trusts, Book VI.

When an absolute grant of freedom is made under the terms of a trust to a slave who is said to have administered the affairs of his master, the Divine Marcus stated in a Rescript that it should not be delayed; but that an arbiter must immediately be appointed for the purpose of compelling the slave to render an account. The words of the Rescript are as follows: "It seems to be the more equitable course to grant freedom to Trophinus at once under the trust, because it is established that it was bestowed without the condition of his rendering an account. Nor would it be humane for the enjoyment of his liberty to be delayed on account of any pecuniary question which may arise. However, as soon as he obtains his freedom, an arbiter should be appointed by the Praetor before whom he who transacted the business must appear and render an account." Therefore, he is only obliged to render an account, but nothing is said as to his paying over any balance which may remain in his hands. I do not think that he can be forced to do so, for he cannot be sued after having obtained his freedom on account of any business which he transacted while in servitude.

It is clear that he can be forced by the Praetor to surrender any property mentioned in his accounts, and all the articles or money of which he has possession, as well as to give information with reference to special matters.

38. Paulus, Decrees, Book III.

A testator, whose will was not perfect, bequeathed freedom and a trust to a female slave whom he had reared. As all these bequests took effect under an intestate succession, it was asked whether the slave was manumitted by virtue of the trust. An interlocutory decree was rendered to the effect that even if the father had demanded that nothing be done ab intestato, his children, through respect for his memory, ought to have manumitted the slave to whom their father was attached. It was therefore decided that she was legally manumitted, and for this reason entitled to the benefit of the trust.

39. The Same, Opinions, Book XIII.

Paulus gave it as his opinion that, even though the slave of another whom a testator desired to be manumitted by one of his heirs, under the impression that he belonged to himself, was concerned, he who was asked to manumit him should be compelled to purchase the slave, and liberate him; as he did not think a case involving freedom, and one relating to the disposition of money under a trust, were similar.

(1) Paulus gave an opinion as follows, "Believe me, Zoilus, that my son Martial is grateful to you, and not to you alone, but also to your children" (meaning that the intention of the deceased, with reference to a benefit to be conferred upon the children of Zoilus, was included in this clause, they being slaves), "no greater service can be rendered them than to give them their freedom." Therefore the Governor should execute the will of the deceased.

40. The Same, Opinions, Book XV.

Lucius Titius gave his female slave, Concordia, to his natural daughter, Septicia. Afterwards, by his will, he bequeathed the abovementioned slave along with others to his daughter, for the purpose of manumitting her. I ask whether his daughter, Septicia, can be compelled to manumit the slave. Paulus answered that, if the donation of the slave was made during the lifetime of the natural father, and the daughter did not accept other legacies left by the will of her father, she could not be compelled by the terms of the trust to manumit the said female slave, who was her own property.

(1) Lucius Titius bequeathed his slave Stichus to Msevius, and asked that he should never be manumitted either by him or by his heir. Paulus gave it as his opinion that the testator had the power afterwards to liberate this slave, because he did not impose any condition upon himself but upon his legatee.

41. Scssvola, Opinions, Book IV.

"I wish Thais, my female slave, to become my freedwoman, after she has served my heir as a slave for ten years." The question arises, as the testator desired the slave to be his freedwoman, and the heir could not make her such, and freedom was not absolutely and directly granted her, whether she would remain in slavery even after the ten years had elapsed. The answer was that there was nothing in the case stated to show why Thais should not be entitled to freedom.

(1) Lucius Titius provided in his will as follows, "My dear son, Msevius, if Stichus, Damas, and Pamphilus have deserved it at your hands, I request you not to permit them to serve as slaves to another after my debts have been paid." If it was the fault of the heir that the debts of the estate were not paid, I ask whether the slaves can obtain their freedom under the terms of the trust. The answer was that the heir ought not to be blamed if he delayed payment of the debts on account of the convenience resulting to himself in managing his property; but if it should clearly be proved that he designedly did not pay

the debts, in order to prejudice the grants of freedom, the latter will become operative.

(2) A testator charged the testamentary guardian of his children to manumit his slaves, but the person appointed was excused. I ask whether the other guardians appointed in the place of the one who was excused should be required to liberate the slaves. The answer was that, according to the facts stated, the appointed heir appeared to have been charged with the grants of freedom.

(3) "I give to Seius three pounds of gold and my notary Stichus, whom I charge him to manumit." Seius was appointed guardian by the same will, but excused himself from accepting the guardianship. The question arises whether the grant of freedom under the trust should, nevertheless, be executed. The answer was that there was nothing in the case stated which would prevent this from being done.

(4) A testator, having appointed his sister his heir, made the following provision with reference to his slaves, "I wish, and I charge you, my dear sister, to entertain the highest consideration for my stewards, Stichus and Damas, whom I have not manumitted, as they have not rendered their accounts. If you are also satisfied with those slaves, you know the feelings which I entertain towards them." Where the stewards were ready to render their accounts, and the heir did not grant them their freedom, I ask whether she should be heard if she alleged that she was not satisfied with them. The answer was that the displeasure of the heir should not be considered, but only what would satisfy a reliable citizen to enable them to obtain their freedom.

(5) Lucia Titia charged her heirs to purchase Pamphila, the female slave of Seia, and her children, and manumit them. An estimate of the amount which ought to be given for them was made by a judge, and, in the meantime, before the money was paid, Pamphila brought forth a child. I ask whether the child of Pamphila would belong to the heirs of Seia, or to the heir of Titia? The answer was that the child would be the property of the person to whom the mother belonged at the time of its birth; but if the heir was in default in executing the trust, he should be compelled also to grant freedom to the child.

(6) Lucius Titius made the following provision in his will: "I recommend So-and-So and So-and-So, slaves who are physicians, to you, and it depends upon you whether you have them as your good freedmen and medical attendants. I myself would grant them freedom, but I fear to do so, because the physicians of my sister, who were slaves, having been manumitted by her, and having served their time, abandoned her." I ask whether the above-mentioned slaves are entitled to their freedom under the trust. The answer was that, in accordance with the facts stated, the necessity of liberating them is not imposed upon the heirs, but that this depends upon their judgment.

(7) Titius granted freedom to his slave "in case he rendered his accounts." I ask whether the accounts rendered by him should include, as part of the sum remaining in his hands, any losses which may have accidentally been incurred. I gave it as my opinion that in any business which was transacted with the consent of the master, those losses

which were the result of accident could not be charged to the slave, and must not be included, in the balance remaining in his hands.

(8) I also ask, where a slave is directed to surrender all of his peculium, whether the peculium should be calculated in such a way that only that will be included in it which would belong to the master for any reason whatsoever. The answer was that, in the case in question, what the master was entitled to should not be deducted from the peculium.

(9) I also ask, if the slave has placed in his peculium any of the balance remaining in his hands, whether this should be deducted from the peculium which he is required to surrender. The answer was that if what is mentioned has been placed in his peculium, it must be paid over as a part of the balance, for the condition is sufficiently complied with where the remainder of the peculium is delivered.

(10) A testator made a grant of freedom by his will as follows: "I desire my slave, Cupitus, to be free, after rendering his accounts, when my son Marcianus reaches the age of sixteen years." After the death of the testator, the guardians of his son required Cupitus to pay a debt due to the estate, and the latter paid to the said guardians the amount which he had collected. The son afterwards died under the age of puberty, his mother became his heir, and caused judgment to be rendered against the guardians on account of their administration of the guardianship. Cupitus demanded his freedom at the time when Marcianus would have been sixteen years of age, if he had lived; and offered to render his accounts for a year after the death of the testator, as the other accounts had been approved.

The question arose whether Cupitus could also be compelled to render the accounts for which the guardians were responsible. The answer was that the slave in question seems to have complied with the condition of rendering his accounts, if he had rendered one of all the business which he had conducted, and which could properly be required.

With regard to the other proviso, the more indulgent interpretation should be adopted, that is, the child having died, the slave had waited long enough, as he did not demand his freedom until the time when the minor would have attained his sixteenth year if he had lived.

(11) "Stichus and Damas, my slaves, you will become my freedmen, if you render your accounts." The question arose whether, in order to obtain their freedom, they must not only render their accounts, but also give up any property which had been designedly and fraudulently appropriated by them. The answer was that, in the condition of rendering their accounts, everything which related to the administration and fidelity of the slave was included.

(12) Certain slaves did not comply with the condition of rendering their accounts within a specified time, and afterwards announced that they were ready to do so. The question arose whether they could obtain their freedom. The answer was that if they were to blame for not complying with the condition within the prescribed time, they would not become free, even if they were subsequently willing to render their accounts.

(13) "I request my heirs, and I charge them to manumit Stichus, after he renders his accounts, when my son reaches the age of sixteen years." I ask whether the testator intended that the slave should act as steward until the time when the son reached the age of puberty. The answer was that it was clear that the testator intended that Stichus should also render an account of this part of his administration.

(14) "I direct that my slave, Stichus, give and pay to my daughter and my wife, my heirs, so many aurei, without any controversy, and I charge them to manumit him." As the wife rejected the estate, the question arose whether the slave was obliged to pay both of them, or only the daughter. The answer was that the entire sum should be paid to the daughter, as she was the sole heir to the estate.

(15) A testator having appointed his son heir to his entire estate, granted him his freedom in the following words: "Let December, my accountant, Severus, my steward, and Victorina, the wife of Severus, become free in eight years, and I wish them to remain in the service of my son for that time. Moreover, I charge you, my dear son Severus, to treat December and Severus, to whom I have not immediately granted freedom, with due consideration, in order that suitable services may be rendered by them to you, and I hope that you will have them as good freedmen."

As the son of Titius was nine years of age at the time that the latter made his will, and Titius died two years and six months afterwards, I ask whether the eight years during which the grant of freedom was deferred should be reckoned from the date of the will, or from the time of the death of the testator. The answer was, that the testator appeared to have counted the eight years, during which the grant of freedom was in abeyance, from the day when the will was made, unless it can be proved that his intention was otherwise.

(16) "Let Spendophorus be free when my daughter marries in my family, if he renders a satisfactory account of his administration to her." The daughter, having died before reaching the age of puberty, and during the lifetime of her father, Seius became the heir by substitution. If Spendophorus did not transact the business of the minor, and ceased to administer the affairs of her father, I ask whether he would become free by the terms of the will, at the time when, if Titia had lived, she would be twelve years old. The answer was that according to the facts stated, if the slave had not transacted any business of which he would be compelled to render an account to the heir, he would become free.

(17) "I wish Stichus to be manumitted after he has rendered his accounts." Stichus, who was a banker, executed certain promissory notes with the approval of his master, and produced accounts signed by the latter, but he did not afterwards contract any other liabilities. The question arose whether the condition could be held to have been complied with, if there were some insolvent debtors whose claims others had attempted to collect. The answer was, that the fact that some of the debtors were not solvent had nothing to do with the obligation of rendering the account.

42. Marcianus, Trusts, Book VII.

Our Emperor, Antoninus Pius, in order that the last wills of his soldiers might in every respect be considered valid, where an appointed heir and his substitute died suddenly before entering upon the estate, ordered that those to whom freedom and the estate had been left under a trust, by soldiers, should become free and be heirs, just as if they had received both of these bequests directly.

Moreover, where slaves, by means of a trust, had acquired their freedom and an estate from a civilian, and the appointed heir and his substitute had also died suddenly, he held that this was sufficient for the confirmation of their freedom.

43. Paulus, On Sabinus, Book IV.

Freedom granted under the terms of a trust is not due to a slave whom his master afterwards placed in chains.

44. Pomponius, On Sabinus, Book VII.

A slave can legally bring suit against his master where the freedom has been bequeathed to him by a trust.

45. Ulpianus, Disputations, Book HI.

When a debtor is asked by his creditor to manumit a female slave who has been pledged to him, it can be maintained that freedom has been legally bequeathed by the debtor under the terms of the trust. For what difference does it make whether a certain amount is left by him, or freedom is granted under a trust?

Whether the value of the slave is more or less, he can be forced to grant her freedom; provided he has once acknowledged the validity of his creditor's will. We must understand that he has done so when, for instance, if he is sued by the heir, he avails himself of an exception; or proves the wishes of the creditor in some other way. For if the debtor should be sued by the heir of the creditor he can plead an exception on the ground of bad faith, because of the interest of the debtor in obtaining his slave.

(1) In granting freedom under the terms of a trust, even though the legatee may only have obtained a small bequest, it will, nevertheless, be necessary for him to manumit his slave. For, if a pecuniary trust should be divided, great injury will be done to the cause of freedom as well as to the beneficiary; therefore, it is better for him who accepts the legacy to be burdened than that the bequest of freedom should be annulled.

(2) Whenever freedom is bequeathed to a male or female slave under the terms of a trust, the slave is in such a position that he or she will remain in servitude until they are manumitted. If the person charged with this duty causes no delay in liberating the slave, no change will take place in his or her condition, and therefore it is established that the slave can, in the meantime, be bequeathed, subject to his manumission afterwards.

46. The Same, Disputations, Book VI.

Freedom can be granted under a trust as follows, "I charge my heir to manumit Stichus, if he should choose to do so," even though nothing else in the will dependent upon the consent of the heir should be valid.

(1) It is clear that if freedom is bequeathed as follows, "If Stichus should be willing," it can be granted him.

(2) Where the following clause is inserted in a will, "I desire Stichus to be free if he is willing," it seems to me that the grant of freedom can be held to be valid, because the words rather imply a condition, just as if a bequest should be made to me, "If Titius should ascend to the Capitol."

(3) Where it was stated in a will, "If the heir should consent," the trust will not be valid, but this will only be the case where the testator left everything to the discretion of his heir, "If he chooses." Where, however, he left it to his judgment as a good citizen, we have no doubt that freedom should be granted; for it has been decided that a slave was entitled to be free where the testator made the following provision, "If you think proper, I ask you to manumit him," for this must be understood to mean if you, as a good citizen, approve it. For where freedom is bequeathed as follows, "If you approve my will," I think it should be granted, just as in the following case, "If he deserves it of you as a good citizen," or "If he should not offend you as a good citizen," or "If you approve of it," or "If you do not disapprove it," or "If you think that he is worthy." For where a testator left a bequest of freedom under a trust, in the Greek words meaning, "I desire you to grant freedom to So-and-So, if you think best," it was stated by the Divine Severus in a Rescript that the execution of the trust could be demanded.

(4) But, although a testator cannot leave it to the judgment of his heir whether or not he will grant freedom to a slave, he can let him decide when it shall be granted.

(5) A certain man, who bequeathed three slaves, charged his heir to manumit any two of them that he might select. A trust of this kind will be valid, and the heir can manumit whichever of the three slaves he chooses. And therefore if a legatee should claim those whom the heir wishes to manumit, he will be barred by an exception on the ground of bad faith.

47. Julianus, Digest, Book XLII.

If a father should appoint his two sons his heirs, and his will is annulled by the birth of a posthumous child, although the estate will belong to them equally, still, the grants of freedom under the trust ought not to be executed, as they are not compelled to pay any other legacies, or execute any other trusts.

(1) Where an heir who is charged to manumit a slave belonging to a third party, or one who is owned in common, or one in whom the usufruct belongs to another, conceals himself, relief will not improperly be granted under the Decree of the Senate.

(2) If freedom is bequeathed to Stichus by a trust under the condition that he shall render his account, and he is ready to pay over the balance in his hands, during the absence of the heir, it is the duty of the Praetor to select some reliable person under whose supervision the account may be rendered, so that the slave can deposit the money which is due according to the calculation; and then the Prsetor shall decree that the slave is entitled to his freedom under the terms of the trust.

It is proper for this to be done when the heir is absent for some good reason; for if he conceals himself, it will be sufficient to satisfy the Prsetor that it is not the fault of the slave that the condition is not complied with, and hence he must decree that he is entitled to his freedom.

(3) Where freedom is bequeathed conditionally to a slave who forms part of the legacy, he should not be delivered to the beneficiary of the trust, unless the latter gives security that he will surrender him if the condition should be complied with.

(4) A certain woman, at the time of her death, made the following statement in the presence of several respectable men, and of her mother, who was entitled to the estate as her heir at law, "I wish my female slaves, Msevia and Seia, to be free," and then died intestate. I ask, if her mother does not claim the estate as heir at law under the Decree of the Senate, and it should pass to the next of kin, whether the slaves will be entitled to freedom under the terms of the trust. I answered that they would be, for when the woman being at the point of death said, "I wish my female slaves, So-and-So and So-and-So, to be free," she is considered to have asked this to be done by all those who would be her heirs at law, or the possessors of her estate under the Praetorian Edict.

48. The Same, Digest, Book LXII.

Where the following was inserted in a will: "I bequeath Stichus to Titius," or "Let my heir give him to Titius, in order that he may manumit him," I held that if the legatee should claim Stichus, he can be opposed by an exception on the ground of bad faith; unless he gives security to grant him his freedom in accordance with the will of the deceased.

49. Africanus, Questions, Book IX.

Where a person to whom a slave is bequeathed and who is charged to manumit him conceals himself, the slave is held to become the freedman of the deceased.

The same rule will apply where not the legatee but the heir is charged with the execution of the trust. Where not all of them, but only some, are charged with its execution, it must also be said that the slave will become the freedman of the deceased.

Moreover, an equitable action should be granted against those who have concealed themselves, and in favor of their co-heirs, by whom the value of their shares must be paid, or they can properly bring suit in partition against them.

50. "Marcianus, Institutes, Book VII.

Where a slave has been bequeathed and manumitted under a trust, Cervidius Scaevola, having been consulted, held that the last disposition was valid, whether it had reference to freedom or to a legacy; for the reason that it is established that when freedom is bequeathed it may afterwards be taken away, and it is clear that this can be done at the request of the slave.

If, however, it is doubtful with what intention the testator bequeathed the same slave, after having left him his freedom, the bequest of freedom should have the preference. This opinion also seems to me to be the more correct one.

51. The Same, Institutes, Book IX.

Not only he who was requested to manumit a slave can give him his freedom, but his successors, whether they are such by purchase or by any other title, can do so. If, however, he should have no successor, the slave will escheat to the Treasury in order to obtain his freedom.

(1) Moreover, he who is requested to manumit a slave, can do so at a time when he is forbidden to alienate him.

(2) Where anyone is requested to manumit the slave of another, and a certain sum of money has been bequeathed to him to purchase and manumit the slave, and his master is unwilling to sell him, the legatee shall retain the legacy in accordance with the will of the deceased.

(3) Where freedom is bequeathed by a trust to a slave, the latter is, to some extent, in the position of a freedman, and occupies the place of a slave to be free under a condition, and all the more, because he must not be transferred to another in such a way that his freedom will be prevented, or he will be exposed to more severe rights of patronage.

(4) It is provided by the Dasumian Decree of the Senate that if the person who is charged with the grant of freedom should be absent for some good reason, and such a decision is rendered by the Praetor, the slave will be entitled to his freedom; just as if he had been regularly manumitted according to the terms of the trust.

(5) A person is understood to be absent who does not appear in court.

(6) And for the reason that provision had only been made for the absence of heirs, it was added in the same Decree of the Senate that when anyone is charged with the grant of freedom, and has been pronounced to be absent for any good cause whatsoever, the result will be the same as if the slave had been regularly manumitted in accordance with the terms of the trust.

(7) It is, however, provided by the Articuleian Decree of the Senate that the governors of provinces shall have jurisdiction in cases of this kind, although the heir may not reside in the province.

(8) Where anyone is asked to manumit a slave who does not form part of the estate, but is his own property, the slave will obtain his freedom under the Juncian Decree of the Senate, after the decision has been rendered.

(9) The Divine Pius stated in a .Rescript that where anyone is absent for some good reason, or conceals himself, or, if present, is unwilling to manumit the slave, he shall be considered as being absent.

(10) It is stated by the same Decree of the Senate that a purchaser shall also manumit the slave.

(11) A co-heir, who is present, can manumit the slave just as if he had acquired from his co-heir the share of the latter in the slave. It is said that the same Emperor stated in a Rescript that this rule will apply to a co-heir who is a minor under the age of puberty and was not asked to manumit the slave.

(12) When anyone is requested to manumit a slave, in order to marry her, he should not be compelled to contract marriage with her, but it will be sufficient if he grants her her freedom.

52. Ulpianus, Opinions, Book I.

Where slaves, to whom freedom has been bequeathed under the terms of a trust, are afterwards sold by a creditor, they cannot be granted relief against the heir, except for good cause.

53. Marcianus, Rules, Book IV.

Where anyone is asked to manumit a female slave, and delays doing so, and, in the meantime, she has a child; it has been established by an Imperial Constitution that under such circumstances the child will be born free, and will even be considered freeborn. There are, however, certain constitutions by which it is provided that the child is freeborn from the very time that the grant of freedom takes effect, and this rule should undoubtedly be observed; for freedom is not a private but a public matter, so that he who is under obligation to grant it should tender it voluntarily.

(1) Where, however, the female slave had a child before she was entitled to her freedom under the trust, and this had been purposely brought about by the heir, in order that she might not yet be entitled to her freedom, as where he delayed entering upon the estate in order that any children born to the said female slave would belong to him, it is settled that they should be manumitted, but they must be delivered to their mother to be set free by.her, and become rather her freedmen than those of the heir, for where the latter is unworthy to have slaves, he is not worthy of having freedmen.

54. Msecianus, Trusts, Book XVI.

If the mother, after having received her child, or he who has succeeded to her place, refuses to grant it its freedom, he or she should be compelled to do so. Again, if the mother is unwilling that the child should be delivered to her, or if she should die before this is done, it may not incorrectly be said that freedom should be granted to the child by the heir.

55. Marcianus, Rules, Book IV.

The same rule will apply where the heir did not designedly delay entering upon the estate, but deliberated as to whether or not he

would accept it; and if he learned that he had been appointed heir after the slave had brought forth her child, it is decided that relief should be granted in this case; for, under such circumstances, the heir himself ought to manumit the child, and not deliver it to its mother to be emancipated.

(1) If, however, freedom has been directly bequeathed to the slave, and any of the above events should take place, in what way can relief be granted to the child? For, in these instances, freedom left under a trust is demanded, and the Prsetor comes to the relief of the children, but where freedom is left directly, no such a demand is made.

I think, however, that, in a case of this kind, the child is entitled to relief, and that the Prsetor, having been applied to, may grant the mother an action in rem, just as where freedom is left by a trust. Hence, Marcellus, in the Sixteenth Book of the Digest, states that where children who have been manumitted by will before the estate is entered upon are acquired by usucaption, relief must be granted them, in order that their freedom may be preserved by the Prsetor; and although they may have been to blame for suffering themselves to be acquired by usucaption, still, no responsibility can attach to children on this account.

56. Marcelli, Opinions.

Lucius Titius provided by his will as follows, "I desire 'that any codicils which I may hereafter execute shall be valid. If a child should be born to me by my wife, Paula, within ten months after my death, let it be the heir to half of my estate. Let Gaius Seius be the heir to half of my estate. I request my heirs, and I charge them to manumit my slaves Stichus, Pamphilus, Eros, and Diphilus, when my children arrive at the age of puberty." Then he inserted the following provision in the last part of his will: "If no children should be born to me, or if they should die before reaching the age of puberty, then let Mucius and Msevius be heirs to equal shares of my estate. I desire that the legacies bequeathed by my former will, under which I appointed my sons and Seius my heirs, to be paid by the heirs who may succeed them."

He afterwards executed a codicil as follows: "Lucius Titius to his heirs in the first degree and to their substitutes; Greeting. I ask you to pay those legacies which I have bequeathed by my will, as well as those which I shall bequeath by my codicil." As no children were born to Lucius Titius, I ask whether the freedom granted by the trust should be immediately given to the slaves Stichus, Pamphilus, Eros and Diphilus. Marcellus answered that there was a condition attached to the bestowal of freedom upon the slaves in question, which was that the children of the testator should become his heirs; but the condition did not appear to be repeated, and therefore that freedom should be immediately granted to the slaves by the heirs in the first degree and the substitutes. For, as was stated above, the testator requested that everything which he mentioned in his will shall be carried out. Moreover, he provided for the freedom of the said slaves, but he did so under a condition, and if the condition had been of any other kind it

would have been necessary to await its fulfillment. It is not, however, probable that he had this condition in his mind when he charged the substitutes, since if it should be fulfilled, the substitutes could not be admitted to the succession.

TITLE VI. CONCERNING THE DEPRIVATION OP FREEDOM.

1. Terentius Clemens, On the Lex Julia et Papia, Book XVIII.

When freedom is taken away by law, it should either be considered as not having been granted, or as having afterwards been taken away by the testator himself.

TITLE VII.

CONCERNING SLAVES WHO ARE To BE FREE UNDER A CERTAIN

CONDITION.

1. Paulus, On Sabinus, Book V.

A slave who is to be conditionally free is one who will be entitled to his freedom at the expiration of a prescribed time, or upon the fulfillment of a certain condition.

(1) Slaves become free either under an express condition, or by the operation of the,law itself. It is clear in what way this takes place under an express condition. They are manumitted by operation of law where they are liberated for the purpose of defrauding creditors. For as long as it is uncertain whether a creditor will avail himself of his rights, the slaves are conditionally free, because, by the Lex ^Elia Sentia, the commission of a fraud under such circumstances must take effect.

2. Ulpianus, On Sabinus, Book IV.

We understand the position of the slave who is to be free under a condition to be such that, whether he is delivered after having been sold, while still retaining the hope of his freedom, or whether he has been acquired for his own benefit by usucaption, or whether when he is manumitted, he does not abandon the expectation of becoming the freedman of the deceased. The slave is not placed in such a position unless the estate has been entered upon by one of the heirs. But if he should be alienated, or acquired by usucaption, or manumitted before the estate is entered upon, his hope of the freedom bequeathed to him will be lost.

(1) Where, however, freedom has been left to a slave under a pupillary substitution, will he become conditionally free during the lifetime of the minor, after the estate of his father has been accepted? Cassius denies that he will; but Julianus holds the opposite opinion, which is considered the more correct one.

(2) Julianus further says that if a slave is bequeathed to the heir of the father, and, in the pupillary substitution he is ordered to be free, the grant of freedom will take precedence.

(3) If a slave is appointed heir to half of the estate, with the grant of his freedom conditionally, by the first will, will he occupy the position of a slave, who is to be conditionally free, so that, if his co-heir enters upon the estate, he cannot under the circumstances be acquired by usucaption? He cannot occupy the position of a slave to be conditionally free, as he received freedom from himself.

It is clear that it must be held that he will occupy the position of a slave to be conditionally free, if the condition under which he was appointed heir should not be complied with; in which case, according to Julianus, he will obtain his liberty because he is not held to have obtained it from himself but from his co-heir.

(4) In whatever degree a slave may have been substituted for a minor, with the bequest of his freedom, he occupies the position of a necessary heir. This opinion has been adopted on account of its convenience, and we approve it. Celsus, also, in the Fifteenth Book, thinks that a slave who is substituted with a bequest of his freedom occupies the position of one who is to be conditionally free.

3. The Same, On Sabinus, Book XXVII.

Slaves of this description must comply with the condition prescribed, if no one prevents them from doing so, and the condition is possible.

(1) Where, however, the slave is ordered to comply with the condition with respect to the heir, what must be said?" If he complies with it he will immediately become free, although the heir may not consent. If the heir prevents him from complying with the condition, as, for instance, where he refuses ten aurei which the slave was ordered to pay him, there is no doubt that the slave will be free, because it is the fault of the heir that the condition was not fulfilled. And it makes little difference whether he tenders the amount out of his peculium, or whether he has obtained it from some other source, for it is established that a slave who pays money out of his peculium will be entitled to his freedom, whether he is ordered to pay it to the heir or to anyone else.

(2) Hence, the question arises, if a sum of money should be due to the said slave, either from the heir, because the slave had advanced it in transacting the business of his master, or from a stranger, and the heir does not wish to sue the debtor, or to pay the money to the slave, will the latter be entitled to his freedom on account of the delay he suffers through the fault of the heir? Either the peculium was bequeathed to the slave, or it was not; if it was bequeathed to him, Ser-vius says that it is the heir who is responsible for the delay of the slave obtaining his freedom, because something is due to him from the estate of his master which is not paid by the heir. Labeo adopts this opinion. Servius also approves it, and says that if the heir causes delay for the reason that he is unwilling to collect money from the debtors of the slave, the latter will be entitled to his freedom.

The opinion of Servius seems to me to be correct. Hence, as we think this opinion to be true, let us see whether the same rule should not apply, even where the peculium was not bequeathed as a preferred

legacy to the slave. For it is settled that a slave, in order to be conditionally free, can make a payment out of his peculium whether he is ordered to do so to the heir, to himself, or to someone else; and if the heir should prevent him from doing so, the slave will be entitled to his freedom.

Finally, this is given to the master of the slave as a remedy, that is, he is forbidden to pay to a stranger what he was ordered to pay, lest he may run the risk of losing both the money and the slave; hence it can be maintained that, if the heir does not wish to collect the claim from the debtors of the slave, or to pay him himself, so that he may have the means with which to comply with the condition, the slave will be entitled to his freedom. Cassius also adopted this opinion.

(3) Again, the slave will not only obtain his freedom when he is prevented from paying what he was ordered by the testator to pay, but also if he is forbidden to ascend to the Capitol, or if he is prevented from going to Capua; for anyone who hinders a slave from taking a journey is understood rather to desire that he shall lose his freedom than to wish to avail himself of his services.

(4) Where the slave is ordered to pay a co-heir, and another of the heirs prevents him from doing so, he will also become free; but he to whom he was ordered to make payment and become free will be entitled to an action in partition against the one who prevented him, in order to obtain the amount of his interest in not having the slave prevented from paying him.

(5) If a slave who is ordered to pay ten sesterces and become free pays five, he will not be entitled to his freedom unless he pays the entire sum. Therefore, in the meantime, the owner of the five sesterces can claim them, but if the balance should be paid, then the first five, the ownership of which had not previously passed to him to whom they were given will be acquired by him; hence, the transfer of the first sum paid will remain in suspense, so that the sesterces will not, by retroactive effect, become the property of him who received them, but only where the remainder of the amount has been paid.

(6) If the slave should pay more than he had been ordered to do (for instance, if he had been ordered to pay ten sesterces, and he pays twenty), whether he counted the coins, or gave them in a bag, he will obtain his freedom, and can recover the surplus.

(7) If anyone should sell, without his peculium, a slave who had been ordered to pay ten sesterces and become free, will the slave immediately obtain his liberty, because he has been prevented from making payment out of his peculium, for the reason that he was sold without it, or will he become free from the time that he was forbidden to touch his peculium?

I think that he will only become free from the time when he wished to make payment, and was prevented from doing so, and not from the very day when he was sold.

(8) Where anyone prevents a slave, who was ordered to pay ten aurei and become free from working, or where the heir deprives him of what he has earned by his labor, or if he should give the heir what-

ever he has obtained in this way, will he be entitled to his freedom? I think that if he should pay him what he has earned by his labor, or anything that he has obtained from any source whatsoever, he will be entitled to his freedom. If, however, he was prevented from working, he will not become free, because he is obliged to work for his master. I think that it is clear that he will become free if he should be deprived by his master of money earned by his labor, because he has been deprived of the power to pay it out of his peculium; but if the testator ordered him to pay the said sum of money earned by his labor, and he is prevented from working, I have no doubt that he will be entitled to his freedom.

(9) If, however, the slave should have abstracted any silver plate, or sold other property and made payment out of the proceeds, he will obtain his freedom, although if he has paid money which he stole he will not do so; for he is not considered to have given the said money but rather to have returned it. But if he stole money belonging to other persons, and paid it to the heir, he will not obtain his freedom, for the reason that the money which was stolen can be recovered from him who received it; still, if it was used in such a way that it can, under no circumstances, be recovered, the slave will be entitled to his freedom.

(10) Moreover, not only where the heir delays in making a grant of freedom, but where a guardian, curator, agent, or anyone else by whom the condition should be complied with does so, we say that the slave will be entitled to his freedom. And, indeed, this is our practice, in the case of a slave who is to be conditionally free, and it is sufficient that it is not his fault that he does not comply with the condition.

(11) If anyone should be ordered to pay the heir within thirty days after the death of the testator, and the heir enters upon the estate after that time has elapsed, Trebatius and Labeo say that if he did so without acting fraudulently, the slave will obtain his freedom within thirty days after the acceptance of the estate. This opinion is correct.

But what course must be pursued if the heir purposely delayed; will the slave be entitled to his freedom on this account from the time when the estate was entered upon? What if he had the money then, but did not have it after the estate was accepted? In this case, however, the condition is held to have been fulfilled, as the slave was not responsible for it not having been complied with in the first place.

(12) Where a slave receives his freedom under the following clause, "Let him be free when he can pay him ten aurei," Trebatius says that, although he may have the ten aurei, or be in a position to obtain and keep his peculium, still he will not be entitled to his freedom unless he pays the money, or is not to blame for failing to pay it. This opinion is correct.

(13) Stichus was ordered to be free if he paid ten aurei to the heir annually for three years. If the heir was responsible for the nonpayment of the first instalment, it is established that the slave must wait until the date of the third payment, because the time is prescribed, and there are two payments remaining. If, however, the slave has only the

ten aurei which he offered when the first payment was due, would it be of any advantage to him if he tendered them at the time of the second payment, or even at the time of the third, provided the second had not been accepted ? I think that it would be sufficient for him to do so, and that the heir has no right to change his mind.1 Pomponius also adopts this opinion.

(14) What must be done if the slave who was ordered to make the three annual payments should tender the entire amount to the heir without waiting for it to become due? Or if, having paid ten aurei at the end of the first year, he should offer twenty at the end of the second? The more indulgent interpretation is that he will be entitled to his freedom, as benefit will accrue to both parties; for the slave will obtain his freedom sooner, and the heir will receive without delay what he would have obtained after a certain time.

(15) Where freedom is granted to a slave, if he serves the heir for five years, and the heir should manumit him, he immediately becomes free, as it is the fault of the heir that he did not serve him; although, if the heir did not wish him to do so, he would not become free until after the term of five years had elapsed. The reason for this is evident, as a manumitted slave can no longer remain in servitude. But the master who does not desire the slave to serve him can still permit this to be done within five years. The slave, however, cannot serve him for the entire term of five years but he can do so for a shorter period.

(16) Julianus, also, in the Sixteenth Book of the Digest, says that if Arethusa was granted her freedom under the condition that she should bring forth three slaves, and the heir was responsible for her not doing so (for instance, because he gave her some drug to prevent her from conceiving), she will immediately become free. For why should we wait? It is just the same as if the heir should cause her to have an abortion, because she could have three children at a birth.

(17) Likewise, if the heir should sell and deliver a slave who is to be liberated conditionally, and who has been ordered to serve him, I think that the slave will immediately be entitled to his freedom.

4. Paulus, On Sabinus, Book V.

When the heir is absent on business for the state, and the slave has the money ready for payment,'he must wait until he to whom he is to pay it returns, or he must deposit it, sealed up, in a temple; and this having been done, he will immediately be entitled to his freedom.

(1) A slave is not considered to become conditionally free whose liberty is deferred for so long a time that he who is to be manumitted cannot live until it has elapsed; or, if his owner has prescribed such a difficult, or even an impossible, condition that his freedom cannot be acquired by complying with it; as, for instance, if it was that he should pay a thousand times a certain sum to the heir, or if he should order him to be free from the time of his death. A grant of freedom made in this manner is void, as Julianus says, because there is, in fact, no intention of granting the slave his freedom.

1 "Nemo potest mutare consilium suum in alterius injuriam."—ED.

(2) If a slave is ordered to be free on condition of serving Titius for a year, and Titius should die, the slave will not immediately become free, but he will after the expiration of a year, because freedom is considered to have been given him not only under a condition, but also from a certain date. For it would be absurd for him to become free sooner when he did not comply with the condition than he would if he did comply with it.

(3) Where a slave is ordered to be free on the payment of ten aurei to two persons, and one of them refuses to accept five, it is better to hold that the slave can obtain his freedom by tendering the said five aurei to the other party.

(4) "Let Stichus be free, if he serves Titius for three years, or renders him services worth a hundred solidi." It is settled that freedom can be legally granted in this manner; for the slave of another can serve us as a freeman, and can, with greater propriety, render us his services; unless the testator, by the term services, meant ownership, rather than labor. Hence, if the heir prevents the slave from serving Titius, he will be entitled to his freedom.

(5) "Let Stichus be free if he serves my heir for a year." The question might arise how ought the word "year" be understood in this case; should it be a term which contains three hundred and sixty-five consecutive days, or merely that many days? Pomponius says that the word should be understood in the former sense. If, however, illness, or some other just cause prevents the slave from serving during certain days, these ought to be included in the year. For those whom we take care of when ill are understood to serve us, if they are willing to do so but are precluded by bad health.

(6) If a slave is ordered to pay ten aurei to the heir, the latter will, through the indulgence conceded to freedom, be compelled to receive the money in separate payments.

(7) Where a slave was ordered to be free, "if Titius should ascend to the Capitol," and Titius refuses to do so, the grant of freedom is annulled.

This rule also applies to similar cases under the same conditions.

(8) Cassius, likewise, says that where a slave is ordered to serve for a year, the time when he was in flight or in litigation will not be included in favor of his freedom.

5. Pomponius, On Sabinus, Book Vill.

Where a slave who was to become free conditionally was ordered to render an account, and paid what appeared to be the balance remaining in his hands, and offered to give security with reference to what remained in doubt, Neratius and Aristo very properly hold that he will become free; as otherwise, many slaves might not obtain their liberty because of the uncertainties of accounts and the nature of business of this kind.

(1) A slave who is to become free conditionally, and is ordered to pay a sum of money but not to render an account, should pay it, and not furnish a surety that he will do so.

6. Ulpianus, On Sabinus, Book XXVII.

If a female slave who is to become free conditionally is sentenced to servitude as punishment for crime, and after her conviction the condition upon which her freedom is dependent is fulfilled, although it will be of no advantage to her, it will, nevertheless, benefit any child which she may have, for it will be born free, just as if its mother had not been convicted.

(1) What, however, would be the result if such a female slave should conceive while in servitude, and, having been captured by the enemy, should have a child after the condition upon which her freedom was dependent had been complied with; would her child be free at its birth? There is no doubt whatever that it would, in the meantime, be the slave of the enemy; but it is also true that it would become free by the right of postliminium, because if the mother had been in her own country the child would have been born free.

(2) It is clear that the more equitable opinion is that, if she should conceive while in the hands of the enemy, and bring forth the child after the condition had been fulfilled, it could profit by the right of postliminium and become free.

(3) A slave to be free conditionally will obtain his liberty from his purchaser if the condition is complied with. It must be remembered that this rule is applicable to slaves of both sexes. If the condition is fulfilled, it not only binds the person who purchased the slave, but also all those who have obtained ownership of him by any title whatsoever. Therefore, whether the slave has been bequeathed to you by the heir, or awarded to you in court, or acquired by you through usucaption, or transferred to you, or has become your property by any other right, we say that, beyond any doubt, the condition can be complied with so far as you are personally concerned. The same can be said with reference to the heir of the purchaser.

(4) Where a son under paternal control is appointed an heir, and a slave to be free conditionally is directed to pay to the son a certain sum of money, and be free, he will obtain his freedom by paying the said sum either to the son, or to his father; because the father is entitled to the benefit of the estate. If, however, he should pay the father after the death of the son, he will become free, as having made payment to the heir of the heir. For if a slave is ordered to pay a sum of money to a stranger, and become free, and the latter becomes the heir of the heir, he will comply with the condition not with reference to the stranger, but as it were, with reference to the heir.

(5) Where a slave is directed to pay ten aurei and become free, and he is sold after having paid five, he must pay the remaining five to the purchaser.

(6) If your slave should purchase another slave, who is to be free conditionally, he must pay you what he was ordered to pay to the heirs. If, however, he has paid your slave, I think that he will be free, provided your slave bought him with money belonging to his peculium, and you have not deprived him of it; so that, in this way, he will be

understood to have paid you, just as if payment had been made to any one of your slaves with your consent.

(7) When a slave is ordered to be free, not upon the payment of a sum of money but if he renders his accounts, let us see whether this condition will pass to the purchaser. And it must be remembered that usually only those conditions which refer to the payment of money pass to a purchaser, and that such as refer to acts to be performed do not pass to him; for instance, if he gives his son instruction, for these conditions attach to the person of those upon whom they are imposed.

The condition of rendering an account, however, which implies the existence of a balance, has reference to the payment of money; but the production of the books containing the amounts, and the calculation and examination of the accounts themselves, as well as their revision and investigation, have reference to acts to be performed. Therefore, can the slave obtain his freedom by paying the balance remaining in his hands to the purchaser, and by complying with the rest of the condition which concerns the heir? I think that the payment of the balance passes to the heir. Hence it happens that the condition may be divided. Pomponius, also, stated this opinion in the Eighth Book on Sabinus.

7. Paulus, On Sabinus, Book V.

The alienation of the usufruct does not carry with it the condition upon which the slave is to become free.

8. Pomponius, On Sabinus, Book Vill.

Where a slave is ordered to be free if he pays ten aurei, he must pay them to the heir; for when there is no one designated to whom payment shall be made, the slave will be entitled to his freedom by paying the heir.

(1) If each one of the heirs sells his share in a slave to different purchasers, the slave must pay to every purchaser the same proportion of the sum which was due to each heir. Labeo, however, says that if the names of the heirs are only mentioned in the will, equal portions should be paid them; but if the testator said "If he pays my heirs," the amounts will correspond to the shares of the estate to which the heirs are respectively entitled.

9. Ulpianus, On Sabinus, Book XXVIII.

No one should be ignorant of the fact that, in the meantime, the slave remains the property of the heir. Hence, he can be surrendered by way of reparation for damage caused by him, but even if this is done, he can still hope to obtain his freedom, for his surrender does not deprive him of it.

(1) If an heir sells a slave under a different condition than the one upon which his freedom is dependent, his status is not changed; and he can release himself from the control of the purchaser, just as he can do from that of the heir.

If, however, the heir should conceal the condition upon which the slave is to be liberated, he will be liable to an action on purchase; and good authorities hold that anyone who knowingly conceals the condition under which a slave is to become free, and sells him absolutely, is guilty of swindling.

(2) The question has been discussed whether he is released, who has delivered up a slave, that was to be conditionally free, by way of reparation for injury committed. Octavenus thinks that he is released, and says that the same rule will apply if someone owed Stichus on account of a stipulation, and delivered him to be free under a certain condition. For if he should obtain his freedom before payment had been made, the entire obligation would be extinguished; because only that is included in it which can be settled by the payment of money; freedom, however, cannot be discharged or replaced by money.1 This opinion seems to me to be correct.

(3) The position of a slave who is to be conditionally free is only unchangeable, if the estate is entered upon; for, before this is done, he can be acquired as a slave by usucaption, and the expectation of his freedom disappears. If, however, the estate is entered upon subsequently, his hope of freedom is restored through the favor with which it is regarded.

10. Paulus, On Sabinus, Book V.

If an heir sells a slave who had been ordered to pay ten aurei, and delivers him to the purchaser, and says that he was entitled to his freedom if he pays twenty aurei, an action on purchase will lie against the vendor. If double the amount had been promised, an action for double damages will lie on the ground of eviction, and an action on purchase on account of the false statement.

11. Pomponius, On Sabinus, Book XIV.

If the heir should make a donation of a sum of money to a slave, who is to be conditionally free, in order that he may pay it to him and be liberated, Aristo says that he will not become free, but if the heir should give him the money absolutely he will obtain his freedom.

12. Julianus, Digest, Book VII.

Where a slave receives his freedom by a will, under the condition of rendering an account, he must pay the balance remaining in his hands to the heirs, in proportion to their respective shares of the estate; even if the names of some of them are mentioned in the condition.

13. The Same, Digest, Book XLIII.

Where a testator bequeaths a grant of freedom as follows, "Let Stichus be free, if my heir does not manumit him by his will," the intention of the testator is held to be that the slave will be free if the

1 "Libertas est res inestimabilis."—ED.

heir does not grant him freedom by his will. Hence, if the heir should emancipate the slave by his will, the condition is considered to have failed; if he does not emancipate him, the condition will be fulfilled at the time of the death of the heir, and the slave will obtain his freedom.

(1) If a slave held in common is ordered to be free under the condition of his paying ten aurei, he can pay the said sum out of his peculium, no matter in what way he may have obtained it; nor does it make any difference whether the peculium was in the hands of the heir, or in those of a joint-owner; or whether the slave was ordered to pay the money to the heir, or to a stranger. For it is a rule of general application that slaves who are to be free conditionally can alienate property belonging to their peculium for the purpose of complying with a condition upon which their freedom is dependent.

(2) Where two slaves are ordered to be free on condition of rendering their accounts, and they have transacted business separately, there is no doubt that they can also comply with the condition separately. If, however, their administration has been conducted in common, and is so confused that it cannot be divided, it necessarily happens that if one of them fails to render an account, he will prevent the other from obtaining his freedom; nor will the condition be held to have been complied with with reference to one of them, unless both or either should pay all which may be found to be due as a balance after examination of the accounts.

(3) Where a slave is ordered to be free under the condition that he will swear that he will ascend to the Capitol, and immediately takes such an oath, he will become free even if he does not ascend to the Capitol.

(4) The slave of the heir, who is ordered to deliver property belonging to the heir himself, and be free, will be entitled to his freedom, because the testator can order the slave of the heir to be manumitted without imposing the condition of giving anything.

(5) The following clause, "Let Stichus be free when he is thirty years old; Stichus shall not be free unless he pays ten aurei," has the same effect as if it had been said that they should let Stichus be free if he pays ten aurei and reaches the age of thirty years. For the deprivation of freedom, or of the legacy which is bequeathed under a certain condition, is considered to impose the contrary condition upon the legacy or the grant of freedom previously made.

14. Alfenus Varus, Digest, Book IV.

A slave, who was ordered to be free by the will of his master under the condition of paying ten aurei to the heir, paid to the latter the wages of his labor, and as the heir received from the same a larger sum than ten aurei, the slave alleged that he was free. Advice was taken on this point. The answer was that the slave did not appear to be free, as the money which he had paid was not in consideration of his freedom, but on account of the labor which he had performed; and that he was no more free on this account than if he had leased

a tract of land from his master and paid him the money instead of giving him the crops.

(1) A slave was ordered to be free after he had given his services to the heir for the term of seven years. He took to flight and remained absent for a year. When the seven years had expired, the opinion was given that he was not free, for he had not rendered his services to his master while he was a fugitive, and he would not become free until he had served his master for the number of days that he was

absent.

If, however, it had been stated in the will that he should be free after he had served seven years, he could become free if he served his master for the time of his flight, after his return.

15. Africanus, Questions, Book IX.

If a slave who was ordered to pay a certain sum of money at the death of the heir should have enriched the estate by an amount equal to that which he was ordered to pay, for instance, if he had paid the creditors, or had furnished the slaves with food, it was held that he would immediately be entitled to his liberty.

(1) An heir, who sold a slave who was to become free on the payment of ten aurei, stated at the time when he sold him that the condition was that the said ten aurei should be paid to him and not to the purchaser. The question arose, to which of the two must the slave pay the money in order to obtain his freedom? The answer was that he must pay it to the heir. If, however, he had stated the condition to be that the slave should make payment to a stranger, the opinion was given that the agreement would be valid, because the slave is considered to pay the heir, if he pays someone else with the former's consent.

16. Ulpianus, Rules, Book IV.

If a female slave who is to be free conditionally has a child, it will be the slave of the heir.

17. Neratius, Parchments, Book III.

A slave is ordered to be free if he pays ten aurei to the heir. He has the amount, but he owes an equal sum to his master. He will not be free by payment of these ten aurei, because where a slave is permitted to pay money out of his peculium for the purpose of complying with a condition, we must understand this to mean that he must not pay what does not belong to his peculium. I am perfectly aware that this money can be said to form part of his peculium; although if the slave had nothing else, he would have no peculium. But it cannot be doubted that the intention of those who established the rule was that the slave should have the power of making payment out of his peculium, just as out of his patrimony, because this could be conceded as being done without any injury to his master. If, however, anyone should go farther, the case would not differ much from one where a

person might hold that the slave complied with the condition by the payment of money which he had stolen from his master.

18. Paulus, On the Granting of Freedom.

If a slave is ordered to pay ten aurei annually for three years, and offers ten the first year, and the heir does not accept it, he will not immediately become free, for the reason that even if the heir did accept it, he would not be free.

19. Ulpianus, On the Edict, Book XIV.

Where a slave is ordered to be free, and a legacy is left to him to vest when the son of the testator shall reach his fourteenth year, and the son dies before that time, the slave will become free when the term has expired, on account of indulgence with which freedom is regarded; but the condition upon which the legacy is dependent is held to have failed.

20. Paulus, On Plautius, Book XVI.

When his peculium is bequeathed to a slave who was ordered to pay ten aurei to a stranger, and become free, but the heir prevents him from paying it, and the slave, having afterwards been manumitted, demands his 'peculium by virtue of the legacy, can the heir, by means of an exception on the ground of bad faith, deduct from his peculium the sum which the slave should have paid in order that he, and not the manumitted slave, may be benefited, because the money was not paid; or will the heir be considered unworthy to profit by the money, having acted contrary to the will of the deceased ? As the slave lost nothing, and gained his freedom, it would be invidious for the heir to be fraudulently deprived of the money.

(1) In this case the question arises, if the slave should pay the money without the knowledge or consent of the heir, whether it would belong to the person who received it. Julianus very properly thinks that, in this instance, the right of the slave to pay the money is admitted even against the consent of the heir; and therefore it will become the property of him who receives it.

(2) If a slave is ordered to pay ten aurei to the heir, and the latter owes that sum to the slave, if the slave wishes to set off the amount, he will become free.

(3) A man to whom a slave was ordered to pay a certain sum of money in order to become free, died. Sabinus holds that if he had the ten aurei ready for payment, he would become free, because it was not his fault that they were not paid. Julianus, however, says that on account of the favor with which liberty is regarded, and by the law, as established, the slave will obtain his freedom even if the money was paid after his death, hence he obtains his freedom rather under the law than by virtue of the will; so that if a legacy was bequeathed to him at the time of the death of the person to whom he was directed to pay the money, he will obtain his freedom, but he will not be entitled to the legacy.

Julianus is of the same opinion, so that, in this instance, he resembles other legatees. The case of a slave whom the heir prevents from complying with the condition is, however, different; for, in this instance, he obtains his freedom under the will.

(4) The Divine Hadrian stated in a Rescript that a slave who is ordered to pay a sum of money to the heir can pay it to the heir of the latter; and, if this was the intention of the testator, the same rule must be held to apply to a legatee.

(5) There are certain conditions which, by their nature, cannot be complied with simultaneously, but require a division of time; as, for example, where a slave is ordered to give the value of ten aurei in labor, because labor is reckoned by days. Therefore, if a slave who is to be free conditionally pays the aurei, one by one, he can be said to have complied with the condition.

The case of labor is, however, different because it can necessarily only be performed a part of the time. But if the heir refuses to accept it, the slave will not become free immediately, but after the time required for the labor to be performed has elapsed.

The same rule will apply where the slave is ordered to go to Capua and be free, and the heir forbids him to go; for then he will be free when the time necessary for him to go to Capua has expired, for time is considered essential in the performance of labor, as well as in making a journey.

(6) If a slave should receive his freedom as follows, "Let Stichus be free if my heir should not manumit him," he can be manumitted by the heir, and he is not deprived of his liberty contrary to the will of the testator. But so short a time is not required that the heir will be compelled to hasten or to return from his journey immediately in order to manumit the slave, or to desist from the transaction of necessary business for that purpose.

Nor, on 1,he other hand, can the manumission be protracted for his lifetime, but the heir should emancipate the slave as soon as he can do so without great inconvenience to himself. If a time for the manumission has been prescribed, it must be taken into consideration.

21. Pomponius, On Plautius, Book VII.

Labeo, in his Book of Last Works, states the following case: "Let Galenus, my steward, be free, if he appears to have carefully conducted my business, and let him retain all his property, and receive a hundred aurei in addition." In this instance we should require such diligence as will benefit the master and not the slave.

Moreover, good faith should be added to the diligence, not only in keeping the accounts, but also in the payment of any balance which may remain. By the word "appears" is meant "can be considered to have." The ancients interpreted the following words of the Law of the Twelve Tables, "If rain-water causes damage," to mean if it can cause damage. And if this question is asked before whom the abovementioned diligence must be established, we must answer that this ought to be decided by the heirs in accordance with the judgment

of a reliable citizen; for instance, if a slave is ordered to be free on condition of his paying a certain sum of money, and it is not stated to whom he shall pay it, he will become free just as he would if the testator had written, "If he should pay the sum to my heir."

(1) Pactumeius Clemens said that if a trust had been bequeathed as follows, "I charge you to deliver it to whichever of them you choose," and the heir did not make any choice as to whom he should deliver the property, he must deliver it to all, and this was decreed by the Emperor Antoninus.

22. Paulus, On Vitellius, Book HI.

Where a slave was ordered to pay a certain sum of money, and the person to whom he was to pay it was not mentioned, he must pay it to the heirs in proportion to their respective shares of the ^state, for each one of them must receive a share in proportion to his ownership of the slave.

(1) Where certain heirs are mentioned by the testator as those to whom the slave is required to make payment, he must do so in proportion to their respective shares of the estate.

(2) If a stranger is joined with the heirs who are mentioned, the full share must be paid to him, and amounts in proportion to their respective shares of the estate should be paid to the others. If the testator not only added Titius, but others besides, they will each be entitled to a full share, and their co-heirs to amounts in proportion to their interest of the estate; as is stated by Julianus.

23. Celsus, Digest, Book XXII.

"Let Stichus be free if he pays a hundred aurei in five years." The slave, after the five years have elapsed, can pay the said amount to the heir of the purchaser.

(1) Where the slave was ordered to be free if he rendered his accounts, and the heir, after the property belonging to the peculium has been sold, does not permit the slave to pay over the balance in his hands, he will be free just as if he had complied with the condition.

24. Marcellus, Digest, Book XVI.

"Let Stichus be free if he promises my heir ten aurei, or swears to give him his services." The condition will be fulfilled if the slave makes the promise, for it can be said that he has, to a certain extent, bound himself, even if the obligation may not be compulsory.

25. Modestinus, Differences, Book IX.

The Laws of the Twelve Tables are held to permit slaves, who are to be free conditionally, to be sold. In making the sale, rigorous conditions should, however, hot be imposed; for example, that the slave should not serve in a certain country, or should never be manumitted.

26: The Same, Rules, Book IX.

Where freedom has been granted to a slave by a will, under the condition that he renders his account, the heir can not only require a

written account, but also one of any business which has been transacted without having been committed to writing.

(1) Where a slave was ordered to obtain his freedom after having rendered his account, he will still become free even if he has not transacted any business.

27. The Same, Pandects, Book I.

If the person to whom the slave is ordered to make payment should purchase him, and then sell him to another, he must pay the last purchaser, for Julianus decided that if he to whom the slave was ordered to make payment obtains the ownership of him, and alienates him, the condition will also pass to the purchaser.

28. Javolenus, On Cassius, Book VI.

Where the estate of a person who directed that his slave should become free within thirty days after his death, if he rendered his accounts, was not entered upon until after the thirty days had expired, the manumitted slave cannot become free by the strict construction of the law, as the condition was not fulfilled; but the indulgence with which freedom is regarded causes the condition to be considered as complied with, if it was not the fault of the person upon whom it was imposed that this was not done.

(1) It is stated in the Books of Gaius Cassius that if a slave, who is to be conditionally free, should acquire any property before the condition upon which his liberty is dependent is complied with, it will not be embraced in the bequest of his peculium, unless the legacy was made to include the time when he was free. As the peculium is susceptible of both increase and diminution, let us see whether its increase by the heir will form part of the legacy, provided the slave is not deprived of it. This is our present practice.

29. Pomponius, On Quintus Mucius, Book XVIII.

Slaves who are to be free conditionally scarcely differ, in any respect, from our other slaves. Therefore, they are in the same position as the others with reference to legal actions, whether these arise from crimes, from business transacted, or from contracts. The result of which is that in public prosecutions they are liable to the same penalties as other slaves.

(1) Quintus Mucius says that the head of a household stated in his will, "Let my slave Andronicus be free, provided he pays ten aurei to my heirs." A controversy then arose with reference to the estate. One person declared that he was the heir, and alleged that it belonged to him, and another who was in possession of the estate said that he was the heir under the will. Judgment was rendered in favor of the one who said that he was the heir under the will. Then Andronicus asked, if he should pay twenty aurei to the latter, whether he would become free, as judgment had been rendered in his favor; or whether the judgment which the successful party had obtained had no reference to the matter in question; hence, if he paid the ten aurei to

the appointed heir, and the case should be decided against the possessor, he would remain in slavery.

Labeo thinks that the opinion of Quintus Mucius can only be true, if the heir who gained the case should be decided to be the heir at law; for if the appointed heir should be found to have lost his case, through a just decision, and be held entitled to the estate under the will, the slave by paying him, will, nevertheless, comply with the condition, and will become free.

The opinion given by Aristo to Celsus is, however, perfectly correct, namely, that the money can be paid to the heir at law in favor of whom judgment has been rendered; as under the provisions of the Twelve Tables the term "purchase" is understood to have included every kind of alienation, and it makes no difference in what way any of the parties became the master of the slave; and therefore, he in favor of whom judgment was rendered is included in the law, and the slave who paid the money will be free.

Moreover, if he who is in possession and to whom the money was paid should be beaten in a contest for the estate, he will be obliged to surrender the money together with the property to the party who is successful.

30. The Same, On Various Lessons, Book VII.

Where a slave is ordered to be free as follows, "Let Stichus be free, if my heir does not alienate him," even if he is to be free conditionally, he can, nevertheless, be alienated.

31. Gaius, On tine Lex Julia et Papia, Book XIII.

If a legacy is bequeathed to a slave on the condition of his rendering his accounts, there is no doubt that, under the condition by which he is directed to receive the legacy, he must pay over any balance remaining in his hands.

(1) Therefore, when inquiry was made with reference to the following clause, "Let Stichus, together with his female companion, be free, after he has rendered his accounts," and Stichus should die before the condition is complied with, will his companion be free? Julianus says that there is a point in this case which also arises with respect to legacies, as where a testator says, "I give to So-and-So together with So-and-So," and one of the parties is lacking, the other is permitted to take the legacy; because the better opinion is that the case is just as if the testator had said, "I give to So-and-So and So-and-So." It is also said that there is another question, namely, whether the condition is also imposed upon the female companion. It is held that this is the case; hence, if Stichus has no balance in his hands, the woman will immediately become free; but if a balance remained in his hands, she must pay the money, nor will it be lawful for her to take it out of the peculium, because this is only permitted to those who are directed to make payment in their own names, in consideration of the freedom which is granted them.

32. Licinius Rufinus, Rules, Book I.

Where two heirs are appointed, and a slave is ordered to be free if he pays ten aurei to the heirs, and he is sold and delivered by one of the latter, he will become free by paying half of the sum to the other heir by whom he was not sold.

33. Papinianus, Questions, Book II.

The rights of slaves who are to be conditionally free cannot be injuriously affected by the heir.

34. The Same, Questions, Book XXI.

A slave was ordered to be free if he paid ten aurei to the heir. The heir manumitted the slave, and afterwards died. In this instance, the money should not be paid to the heir of the heir; for when it was decided that he must pay the heir of the heir, you will remember that this applied where the first heir who was to receive the money was the master of the slave; which rendered the condition (so to speak), ambulatory. There are, in fact, two reasons for which the condition should be complied with so far as the first heir is concerned; the first one is the ownership, and the second the designation of the person. The first reason applies to every successor to whom the slave may pass through the continuation of the ownership which is transferred; but the second one only has reference to the person who is especially designated.

(1) The Emperor Antoninus stated in a Rescript that where a slave was ordered to render his accounts and become free, if the heir should delay in receiving the accounts, the slave will, nevertheless, become free. This rescript should be understood to apply where the slave will become free if he does not defer the payment of the balance in his hands, but if he delays to do so, it will only become operative if he tenders the amount which should be refunded in good faith; for it will not be sufficient for the heir to be in default to enable the slave to be manumitted where nothing was done by him which would have contributed to his freedom, if the heir had not been in default. But what if a slave was manumitted as follows, "Let Damas be free, if he goes to Spain next year to gather the harvest," and the heir retains him at Rome, and will not suffer him to depart? Can we say that he will immediately be free before the crops are gathered ? For if a stipulation is made at Rome, as follows: "Do you promise to pay me a hundred aurei in Spain?" The time during which you may be able to reach Spain is included in the stipulation, and it has been decided that legal proceedings cannot be instituted until this time has elapsed. If, however, the heir, after having allowed the accounts, and calculated the balance due from the slave, declares publicly that he donates the amount to the latter, because he has nothing to pay it with, or if he states this openly in a letter sent to him; the condition upon which his freedom is dependent is held to have been complied with.

But what course should be pursued if the slave should deny that he has delayed payment of the balance, and therefore, because the heir

is to blame for not receiving his accounts, he should become free, and the heir maintains that he was not responsible for delay, and that the slave should pay over the balance in his hands ? It shall be determined by the magistrate who has jurisdiction of the case whether the condition was complied with or not, and it is part of his duty to investigate the alleged default, as well as to cast up the accounts, and if he should ascertain that payment of the balance was delayed, to decide that the slave is not free.

If, however, the slave never denied that a balance was due, and should sue the heir in order to be able to render his accounts, and it was established that he was prepared to pay any balance that might remain, and offered a good surety for the payment of the money, and the heir was found to be in default, judgment must be given in favor of freedom.

35. The Same, Opinions, Book IX.

The slave will be considered responsible for failure to comply with the condition upon which his liberty is dependent if he cannot pay the money out of the peculium which he had when under the control of the vendor; because the will of the deceased does not extend to his peculium under another owner.

The same rule will apply where the slave was sold with his peculium, and the vendor retains it in violation of his contract; for although an action on purchase will lie, still, the slave did not have the peculium when he was under the control of the purchaser.

36. The Same, Definitions, Book IL

Persons learned in the law have placed in the class of slaves to be conditionally free one who has been substituted for a son with the grant of his freedom by a second will. This rule is useful, as it prevents a son, who is a minor, from annulling his father's will by permitting the slave to be alienated subject to the charge of his freedom.

This interpretation of the law extends, without any distinction, to every case where the slave is substituted either in the second or the third degree.

37. Gaius, On Special Cases.

If it is stated in a will, "I give Stichus to Titius, in order that he may manumit him, and if he does not do so, let him be free," Stichus will immediately become free.

38. Paulus, On Neratius, Book I.

Not every impediment for which the heir is responsible has the same effect as compliance with the condition by the slave, but only where this is done for the purpose of preventing him from obtaining his freedom.

39. Javolenus, On the Last Works of Labeo, Book IV. "I give and bequeath Stichus to Attius, and if he pays him a hundred sesterces, let him be free." If the slave pays the sesterces to

Attius under the terms of the will, Labeo holds that the heir cannot recover them, because Attius received them from his own slave, and not from the slave of the heir. Quintus Mucius, Gallus, and Labeo himself think that the slave should be considered conditionally free, and Servius and Ofilius think that he should not. I adopt the former opinion, that is to say, that the slave belongs to the heir and not to the legatee, just as if the legacy had been taken away by the grant

of freedom.

(1) "Let Stichus be free, when my debts are paid, or my creditors are satisfied." Even though the heir should be rich, Stichus will, nevertheless, not be free before the creditors have received their money, or their claims have been satisfied, or security has been furnished them in some other way; which is the opinion of Labeo and Ofilius.

(2) Labeo and Trebatius held that if the heir should give a slave money for the purpose of transacting business he cannot become free under the terms of the will, by paying this money, because he is considered rather to have returned it than to have paid it. I think, however, that if the money formed part of his peculium, he will become free under the testamentary provision.

(3) "Let my slave Damas be free, after he has given his services to my heir for seven years." The slave was implicated in a capital crime during the seven years, and the last year having elapsed, Servius stated that he should not be liberated. Labeo, however, held that he would be free after having served his master for seven years. This opinion is correct.

(4) "Let Stichus be free, if he pays a thousand sesterces to At-tia." Attia died during the lifetime of the testator. Labeo and Ofilius were of the opinion that Stichus could not become free. Trebatius agreed with them, if Attia died before the will was made; but if she died afterwards, he held that the slave would be free. The opinion of Labeo and Ofilius is reasonable, but it is our practice to consider the slave as free under the terms of the will.

(5) Where a slave is ordered to serve a stranger, no one can liberate him by furnishing his own labor in the name of the slave. The rule, however, is different where the payment of money is concerned; as, for instance, where a stranger liberates a slave by paying money in his behalf.

40. Sctevola, Digest, Book XXIV.

Freedom was granted to Stichus as follows, "I request my heirs, and I charge them to manumit Stichus, after he renders his accounts." As the slave had collected a great deal of money after the death of the testator, which remained in his hands, and had not included in his own accounts certain sums paid by tenants; and had despoiled the estate by secretly opening warehouses and stealing furniture and clothing, and exhausting cellars of their contents, the question arose whether freedom under the trust should be granted him before he accounted for what fraudulently remained in his hands, and returned what he had stolen. The answer was that freedom should not be grant-

ed him under the terms of the trust until he had made restitution of the balance remaining in his hands, and everything which had been lost by his agency.

(1) "Let Pamphilus be free, if he gives all of his peculium to my heirs." As the slave owed more to his master than there was in the peculium, and had transferred everything belonging to his peculium in good faith to the heirs, the question arose whether he was entitled to freedom under the terms of the will. The answer was that there was nothing in the case stated to show that he was not entitled to it.

(2) A testator bequeathed his slave Stichus as a preferred legacy to his freedman, Pamphilus, whom he had appointed heir to a portion of his estate; and he bequeathed freedom to Stichus, as follows: "You will manumit him if, during the five continuous years from the day of my death, he pays you sixty sesterces every month." Pamphilus, having died before the expiration of five years, and having appointed his son and his wife his heirs, made the following testamentary provision with reference to Stichus: "I direct that my slave, Stichus, who was bequeathed to me under a certain condition by the will of my patron, shall give and pay to my son and to my wife, without any dispute, the amount for which he is liable, and if this is done, they shall manumit him after the prescribed time has elapsed."

If Stichus should not pay the sixty sesterces every month, the question arose whether he would be entitled to his freedom under the trust, after the five years had expired. The answer was that unless he made the payments he would not be entitled to the freedom granted to him under the terms of the trust.

(3) A slave was manumitted by a will as follows: "Let Stichus, my slave, who is also my steward, be free, if he renders an account of his entire administration to my heir, and satisfies him in this respect; and when he becomes free, I wish twenty aurei and his peculium to be given to him." The question arose, if the slave was prepared to render accounts of his administration for the many years during which he had conducted it without the signature of the testator approving them whether he would become free under the will, as the testator had not been able to sign the accounts because of his serious illness, but could, nevertheless, sign his will. The answer was that the slave would become free if his accounts were rendered in good faith, and the balance remaining in his hands was paid.

(4) I also ask whether any sums collected by the assistants of the slave, which either were not entered upon his register at all, or were entered fraudulently, will render him liable, as he was placed over his assistants. The answer was, if the matter was one for which he could be held accountable, the necessity for his rendering a statement of the same should be taken into consideration.

(5) I also ask if an account should be rendered of the rents which he had not collected from the lessees of land, or from tenants, over and above any sums which he may have advanced to them. The answer was that this has already been decided.

(6) I also ask whether he will be liable on the ground that he had removed all his property, that is to say, his peculium, before rendering his account. The answer was that this was no impediment to the performance of the condition, provided the account was rendered.

(7) Titius bequeathed to different persons by will each of the slaves employed by his steward, on condition that they should render their accounts to his heir. Then, in another clause of his will, he said: "I wish all the stewards whom I have bequeathed, or may manumit, to render their accounts within four months after my death, to their owners to whom they have been bequeathed by me." He then, lower down, ordered others of his stewards to be free, adding, "If they render their accounts to my heir."

As it was the fault of the heir that their accounts were not rendered, I also ask whether the slaves ceased to be free under the condition; or whether they could, nevertheless, obtain their freedom under the will, by rendering their accounts and paying the balances remaining in their hands. The answer was that the legacies and grants of freedom would not take effect, unless the accounts were rendered, or if it was the fault of the heir that this was not done; but that it must be determined by the court whether time seemed to be included in the condition under which the legacies and the grants of freedom were to become operative; or whether the four months were added by the testator for the purpose of preventing further delay and to afford abundance of time for the rendering of the accounts to the heirs. It is, however, better to hold that the presumption is in favor of the slaves.

(8) The collector of a banker, almost all of whose fortune consisted of claims, gave freedom to his agents, who were his slaves, as follows: "No matter who may be my heir, if Damas, my slave, renders an account to him of the administration which he has carried on in his own name, and in that of Pamphilus, his fellow-slave, I wish both of them to be placed on an equal footing, and to become free within six months." The question arose if the words, "to be placed on an equal footing," applied to all the claims except the bad debts, so that the meaning of it was if they collected all that was due from all the debtors, and paid the heir, or satisfied him in some other way, and if they did not collect the claims within six months, whether they would not be entitled to their freedom.

The answer was, that it was clear that the condition was inserted in the above-mentioned clause of the will, and therefore that the slaves would be free if they complied with it, or the heir was responsible for their not doing so.

41. Labeo, Epitomes of Probabilities, by Paulus, Book I.

If you desire to permit one of your slaves to be liberated from servitude within a certain time, it makes no difference whether you make this provision under the condition that he "shall serve," or "render his services for the term of three years, in order to become free."

(1) Paulus: If anyone is ordered to be free if he promises to pay ten aurei to the heir, although a promise of this kind will be of no effect, he will, nevertheless, be liberated by making it.

42. The Same, Probabilities, Book III.

Where anyone bequeaths a slave to his wife, and orders him to be free in case she marries again, the slave will become free under this condition if she should marry a second time.

TITLE Vill.

CONCERNING SLAVES WHO OBTAIN THEIR FREEDOM WITHOUT MANUMISSION.

1. Paulus, On Plautius, Book V.

Whenever a slave is sold on condition of being manumitted within a specified time, even if the vendor and the purchaser should both die without leaving any heirs, he will be entitled to his freedom. This the Divine Marcus stated in a Rescript. Even though the vendor should change his mind, the slave will, nevertheless, become free.

2. Modestinus, Rules, Book VI.

By an Edict of the Divine Claudius, a slave who has been abandoned by his master on account of some serious infirmity will be entitled to his freedom.

3. Callistratus, On Judicial Inquiries, Book HI.

Where a slave has been sold on condition of being manumitted within a certain time, and the day appointed for Eis freedom arrives during the lifetime of the vendor, and the latter has not changed his mind, the result is that the slave will be manumitted, just as if this had been done by the person who should have liberated him; but if the vendor should be dead, the Divine Marcus and his son stated in a Rescript that it was not necessary to obtain the consent of his heirs.

4. Ulpianus, On Sabinus, Book III.

When a slave is sold under the condition that he shall be manumitted during the lifetime of the purchaser, when the latter dies, he will immediately be entitled to his freedom.

5. Marcianus, Rules, Book V.

Where a slave has obtained his freedom as a reward for detecting the murderer of his master, he will become the freedman of the deceased.

6. The Same, On the Hypothecary Formula.

If anyone purchases a slave, who has been hypothecated, under the condition that he will manumit him, the slave will be entitled to his freedom under the Constitution of the Divine Marcus, even though

the vendor may have hypothecated all the property which he had then, or might acquire in the future.

(1) The same must be said if he buys a female slave on condition of not subjecting her to prostitution, and he prostitutes her.

7. Paulus, On Grants of Freedom.

Our Emperor and his Father decided that a female slave would become free if the person in possession of her could have kept her from prostitution, but sold his right over her for money; as there is no difference whether you lead her astray and prostitute her, or whether you permit this to be done, and receive money therefor, when you can prevent it.

8. Papinianus, Opinions, Book IX.

A mother gave certain slaves to her daughter, under the condition that she would see that they became free after her death. As the condition of the donation was not complied with, I gave it as my opinion that, according to the spirit of the Constitution of the Divine Marcus, the slaves obtained their liberty with the consent of the mother, and that if she should die before her daughter, they would be entitled to their freedom unconditionally.

9. Paulus, Questions, Book V.

Latinus Largus sold a female slave under the condition that she should be manumitted, but did not mention any time when this must be done. I ask when she would be entitled to freedom, by virtue of the constitution, if the purchaser failed to manumit her? I answered that the understanding of the parties ought to be considered, whether the purchaser must manumit her as soon as he could, or whether it was in his power to liberate her whenever he chose to do so. In the first instance, the time can easily be determined; in the last, she will be entitled to her freedom at the death of the purchaser. If what was agreed upon is not apparent, the favor conceded to liberty will cause the first opinion to be accepted; that is to say, the slave will be entitled to her freedom within two months, if both the slave and her purchaser are present; but if the slave should be absent, unless the purchaser gives her her freedom within four months, she will obtain it by virtue of the Imperial Constitutions.

TITLE IX.

WHAT SLAVES, HAVING BEEN MANUMITTED, Do NOT BECOME FREE, BY WHOM THIS Is DONE; AND ON THE LAW OP ^LIA SENTIA.

1. Ulpianus, On Sabinus, Book I.

Celsus, in the Twelfth Book of the Digest, having the public welfare in view, says that a person born deaf can manumit a slave.

2. The Same, On Sabinus, Book HI.

A slave cannot obtain his freedom if, after having been banished, he remains in the City.

3. Gaius, Concerning Legacies; On the Urban Edict.

If the choice of a slave is given by the testator, or the slave is bequeathed without mentioning any particular one, the heir cannot annul or diminish the right of selection belonging to the legatee by manumitting some of the slaves, or all of them. For where the option or choice of a slave is granted, each slave is held to have been bequeathed under a condition.

4. Ulpianus, Disputations, Book III.

We cannot manumit a slave who has been given in pledge.

5. Julianus, Digest, Book LXIV.

When an estate is not solvent, even though the heir may be wealthy, freedom will not be acquired under the will.

(1) If, however, an insolvent testator leaves a bequest of freedom as follows, "Let Stichus be free, if my creditors are paid in full," he cannot be considered to have ordered his slaves to become free in order to defraud his creditors.

(2) If Titius has no other property than his slaves, Stichus and Pamphilus, and promises them to Msevius, under the following stipulation: "Do you promise to give either Stichus or Pamphilus?" and then, having no other creditor, he should manumit Stichus, the freedom of the latter will be annulled under the Lex JElia Sentia. For although it was in the power of Titius to give Pamphilus, still, as long as he did not do so, he could not, without defrauding the stipulator, give Stichus, for the reason that Pamphilus might die in the meantime.

If, however, he only promised to give Pamphilus, I have no doubt that Stichus will obtain his freedom; although in like manner, Pamphilus might die, as it makes a great deal of difference whether the slave who is manumitted was included in the stipulation or not. For anyone who pledges Stichus and Pamphilus as security for five aurei, when each of them is worth five aurei, can manumit neither; but if he was to give Stichus alone in pledge, he will not be considered to have manumitted Pamphilus for the purpose of defrauding his creditor.

6. Scssvola, Questions, Book XVI.

Julianus refers to a person who owned nothing but two slaves; for if he had other property, why can it not be held that he has the power to manumit one of said slaves? For if one of them should die, he will still be solvent, and if one of them should be manumitted, he will also be solvent, and accidents which may occur are not to be considered; otherwise, the person who promised one of the slaves and indicated which one could not manumit any slave.

7. Julianus, On Urseius Ferox, Book II.

Where anyone who is in possession of all his property confirms a codicil, and then grants freedom to his slaves by the codicil, with the intention of defrauding his creditors, his bequest will be of no force or effect; as, under such circumstances, bequests of freedom are prevented By law. For the intention of the testator to commit the fraud is not referred to the time when the codicil was confirmed, but to the time when freedom was granted by the codicil.

(1) A minor of twenty years of age who desired to manumit a slave, without having any good reason to offer to the Council for doing so, gave him to you, so that you might manumit him. Proculus denied that the slave was free, because a fraud was committed against the law.

8. Africanus, Questions, Book HI.

The Lex JElia Sentia does not apply where a man who owes money under a condition manumits a slave by virtue of a trust.

(1) Where a soldier makes a will under military law, and bequeaths freedom to slaves for the purpose of defrauding his creditors, and then dies insolvent, the bequest of freedom will be void.

9. Marcianus, Institutes, Book I.

A slave will not become free who has compelled his master to manumit him, and the latter, having been intimidated, states in writing

that he is free.

(1) Moreover, a slave will not become free who was not defended by his master for a capital crime, and afterwards was acquitted.

(2) Where slaves are sold under the condition that they shall not be manumitted, or where they are forbidden by will to be manumitted, or where this is done by order of the Governor of a province, and they should, nevertheless, be emancipated, they will not obtain their freedom.

10. Gaius, Diurnal or Golden Matters.

A person is considered to defraud his creditors by manumitting a slave who was insolvent at the time that he manumitted him, or ceased to be solvent after granting him his liberty. For men very frequently think that their property is more valuable than it really is, which often happens to those who, through the agency of slaves and freedmen, conduct commercial enterprises beyond sea, and in countries in which they do not reside, because they are often impoverished by transactions of this kind for a long time without being aware of it; and they grant their slaves freedom by manumitting them as a favor, without any intention of committing fraud.

11. Marcianus, Institutes, Book XIII.

Where a municipality is defrauded by the manumission of slaves, the latter do not obtain their freedom, as has been promulgated in a decree of the Senate.

(1) It is provided by the Imperial Constitutions that when the Treasury is defrauded by grants of freedom, the latter are void. The Divine Brothers, however, stated in a Rescript that grants of freedom are not annulled merely by the fact that the person who emancipated the slaves was a debtor to the Treasury, but that he committed fraud if he was insolvent when he did so.

12. Ulpianus, On Adultery, Book V.

The legislator had in view that slaves should not by manumission be released from liability to torture; and therefore he forbade them to be manumitted, and prescribed a certain term within which it would not be lawful to set them free.

(1) Therefore, a woman who is separated from her husband is forbidden, under any circumstances, to manumit or alienate any of her slaves, because in the words of the law, "She cannot either manumit or alienate a slave who was not employed in her personal service, or on her land, or in the province," which is, to a certain extent, a hardship, but it is the law.

(2) And even if the woman, after a divorce, purchases a slave, or obtains one in any way, she cannot manumit him under the provisions of the law. Sextus Csecilius also mentions this.

(3) A father, however, whose daughter is under his control, is only forbidden to manumit or alienate such slaves as have been given to his daughter for her personal service.

(4) The law also prohibits a mother from manumitting or alienating any slaves which she has given for the service of her daughter.

(5) It also forbids a grandfather and grandmother fo manumit their slaves, as the intention of the law is that they also may be subjected to torture.

(6) Sextus Csecilius very properly holds that the time prescribed by the law for alienating or manumitting slaves is too short. For he says, suppose a woman has been accused of adultery within the sixty days; how can the trial for adultery readily take place, so as to be concluded within the said sixty days? Still, according to the terms of the law the woman, even though she has been accused of adultery, is permitted, after this time, to manumit the slave who is suspected of having committed adultery with her, or another slave who should be put to torture.

And, indeed, relief should be granted in this instance, so that slaves wlio are indicated as guilty, or who have knowledge of the crime, may not be manumitted before the trial is ended.

(7) If the father or mother of the woman should die within the sixty days, they can neither manumit nor alienate any of the slaves whom they have given to the daughter for her personal service.

13. Paulus, On Adultery, Book V.

If a slave is manumitted before the sixty days have elapsed, he will be conditionally free.

14. Ulpianus, On Adultery, Book IV.

If a husband should die within the sixty days, let us see whether the woman can manumit' or alienate the slaves above referred to. I do not think that she can do so, although she may have no other accuser than her husband, as the father of the latter can accuse her.

(1) The law simply prohibits a woman from manumitting her slaves within sixty days after the divorce.

(2) Manumission is also prohibited whether she is divorced or repudiated.

(3) If the marriage is dissolved by the death of the husband, or on account of any penalty to which he has rendered himself liable, manumission will not be prevented.

(4) Even if the marriage is terminated by agreement, it is held that manumission or alienation is not prevented.

(5) When the woman, during the existence of the marriage but while she is contemplating divorce, manumits or alienates a slave, and this is established by conclusive evidence, the alienation or manumission will not be valid, as having been done to evade the law.

(6) We must understand every kind of alienation to be meant.

15. Paulus, On the Lex Julia, Book I.

The question arose whether anyone accused of the crime of lese majeste could manumit a slave, inasmuch as he was the owner of slaves before his conviction. The Emperor Antoninus stated in a Rescript addressed to Calpurnius Crito that, from the time when the accused party was certain of having the penalty inflicted upon him, he would lose the right of granting freedom rather through his consciousness of guilt, than from his condemnation for crime.

(1) Julianus says that, after a father has granted his son permission to manumit a slave, and the son, not being aware that his father is dead, manumits the slave, the latter will not become free. If, however, the father is living, and has changed his mind, his son will be considered to have manumitted the slave against the consent of his father.

16. The Same, On the Lex &lia Sentia, Book III.

Where freedom is granted to a slave by a trust, and a minor of twenty years of age sells the slave under condition that he shall be manumitted, or purchases him under the same condition, the alienation will not be prevented.

(1) If a minor of twenty years of age relinquishes the share which he has in a slave owned in common, for the purpose of manumitting him, his act 'will be void. If, however, he can prove that there was a good reason for doing so, no fraud will be held to have been committed.

(2) It is provided by this law that no one shall manumit a slave for the purpose of defrauding his creditors. Those are designated creditors who are entitled to an action on any ground whatsoever against the person who intended to defraud him.

(3) Aristo gave it as his opinion that, where a slave was manumitted by an insolvent debtor of the Treasury, he could be returned to servitude, if he had not been free for a long time; that is to say, for not less than ten years. It is clear that anything which has been paid out for funeral expenses, with a view to defrauding the Treasury, can be recovered.

(4) Where money is due from a person who is insolvent to anyone under a condition, and a slave is manumitted by the debtor, his freedom will remain in suspense until the condition is complied with.

(5) If a son should manumit a slave with the consent of his father, and either the father or the son is aware that the former is not solvent, the grant of freedom will be void.

17. The Same, On Grants of Freedom.

If a private individual, being compelled by the people, should manumit a slave, the latter will, nevertheless, not be free even though his owner may have given his consent; for the Divine Marcus forbade the manumission of slaves caused by the clamor of the populace.

(1) Likewise, a slave is not emancipated if his master states falsely that he was free, in order to avoid punishment by the magistrates, if he has no intention of manumitting him.

(2) With reference to those whom it is not lawful to manumit within a certain time, if they receive their freedom by a will, the time when it was executed should not be considered, but the time when the slaves were entitled to be free.

18. The Same, On Plautius, Book XVI.

If the estate of the testator was solvent at the time of his death, but ceased to be so when it was accepted, any grant of freedom by the testator which defrauds the creditors is void. For, as the increase of an estate is of benefit to liberty, so also its diminution injures it.

(1) Where a slave to whom freedom is bequeathed is ordered to pay to the heir a sum of money equal to his value and become free, let us see whether any fraud is committed against the creditor, because the heir obtains the amount mortis causa; or, indeed, where a stranger pays the amount for the slave; or the slave himself pays it out of other property than his peculium; is any fraud perpetrated? But, as the fact that the heir is wealthy is of no advantage to the bequest of freedom, so neither should the person who pays the money be able to profit by it.

19. Modestinus, Rules, Book I.

Freedom granted by a person who is afterwards himself legally decided to be a slave is of no effect.

20. The Same, On Cases Explained.

Where freedom is bequeathed to a slave belonging to another, without the consent of his owner, the bequest is not valid according to law, even though the person who manumits him afterwards becomes the

heir of the owner. For even if he becomes his heir by the right of relationship, the grant of freedom will be confirmed by his acceptance of the estate.

21. The Same, Pandects, Book I.

A female slave cannot be manumitted on account of marriage by anyone but the man who intends to marry her; because if one man should manumit her for this reason, and another should marry her, she will not become free. Hence Julianus gave it as his opinion that she would not be liberated from servitude even if the person who manumitted and repudiated her should marry her within six months; on the ground that the Senate had reference to a marriage which should have taken place after the manumission, without any other preceding it.

22. Pomponius, On Quintus Mucius, Book XXV. The curator of an insane person cannot manumit a slave belonging to the latter.

23. The Same, Various Passages, Book IV.

Freedom is always considered to have been granted fraudulently with respect to creditors, when this is done by a person who knows that he is not solvent, even though it was granted to a slave who deserved it.

24. Terentius Clemens, On the Lex Julia et Papia, Book IX.

If anyone who has creditors should manumit several slaves, the grants of freedom to all of them will not be void, but only the first ones emancipated will become free; provided enough remains to satisfy the claims of the creditors. This rule was frequently stated by Julianus. For instance, where two slaves are manumitted, and the creditors will be defrauded by granting freedom to both, but not by granting it to either, one of them will not obtain his freedom; and this is generally he who is manumitted second, unless the first one designated is of greater value; and it will not be necessary to reduce the second to slavery if the value of the first will discharge the indebtedness, for, in this instance, the one which is mentioned in the second place will alone be entitled to his liberty.

25. Papinianus, Opinions, Book V.

Where freedom- is granted by will, in fraud of creditors, although the first creditors may be satisfied, the grants of freedom are void, so far as the others are concerned.

26. Scsevola, Opinions, Book IV.

The heir of a debtor manumitted a slave who had been given in pledge. The question arose whether he became free. The answer was that, according to the facts stated, if the debt was still unpaid, he would become free by the manumission.

Paulus: Therefore, if the money was paid, he would be free.

27. Hermogenicmus, Epitomes of Law, Book I.

A slave is manumitted in fraud of creditors, and is forbidden to be free, whether the day for payment of the debt has already arrived, or whether the debt is payable within a certain time, or under some condition. The case of a legacy bequeathed under a condition is different, for the legatee will not be included among the creditors until the condition has been complied with. The Lex &lia, Sentia, in this respect, applies to creditors of every description whatsoever; and it has been decided that the beneficiary of a trust is also included among them.

(1) A slave who is given in pledge cannot be manumitted without the consent of the creditors before their claims have been satisfied. The consent of a creditor, who is a ward without the authority of his guardian, is of no benefit to a grant of freedom, just as no advantage results where, under similar circumstances, the ward, who is the usufructuary, consents to the manumission.

28. Paulus, Opinions, Book HI.

The act of an heir, who manumits his own slave that the testator bequeathed to him, is void, because it has been decided that neither his knowledge nor his ignorance of the bequest should be considered.

29. Gaius, On Manumissions, Book I.

When a slave is given by way of pledge, in general terms, there is no doubt that he belongs to the debtor, and can legally obtain his freedom from him, if this is not prevented by the Lex Mlm Sentia,; that is to say, if the owner is solvent, and his creditors do not appear to have been defrauded by his act.

(1) Where a slave is bequeathed under a condition, he belongs absolutely to the heir while the condition is pending; but he cannot obtain his freedom from him lest injury be done to the legatee.

30. Ulpianus, On the Lex JElia, Sentia, Book IV.

If anyone should purchase a slave under the condition of manumitting him, and, not having done so, the slave obtains his freedom under the Constitution of the Divine Marcus, let us see whether he can be accused of ingratitude. It may be said that, as the purchaser did not manumit him, he is not entitled to this right of action.

(1) If my son should manumit my slave with my consent, it may be doubted whether I have the right to accuse him of ingratitude for the reason that I did not manumit him. I should, however, be considered as having manumitted him.

(2) But if my son manumits a slave forming part of his castrense peculium, there is no doubt that I will not have this right, because I, myself, did not manumit him. It is clear that my son himself can accuse him.

(3) Anyone can accuse a freedman of ingratitude as long as he remains his patron.

(4) If, however, several patrons desire to accuse their freedman of ingratitude, let us see whether the consent of all of them will be necessary, or whether only one can do so.

The better opinion is that, if the freedman displayed ingratitude against only one of his patrons, he can accuse him; but the consent of all of them will be necessary, if they are all in the same degree.

(5) If a father should assign a freedman to one of his children, Julianus says he alone can accuse him of ingratitude, for he alone is his patron.

31. Terentius Clemens, On the Lex Julia et Papia, Book V.

The question arose, what would be the rule if a patron compelled his freedwoman to swear that she would not marry as long as her children are under the age of puberty? Julianus says that he would not be held to have acted against the Lex JElia Sentia, as he did not enjoin her to remain in perpetual widowhood.

32. The Same, On the Law of Julia et Papia, Book I.

If he who is under the control of a patron should compel the woman to swear, or to enter into a stipulation not to marry against the consent of the patron, unless the latter releases the woman from her oath, or her promise, he will come within the provisions of the law, for he himself will be held to have acted in bad faith.

(1) Patrons are not prohibited by the Lex JElm Sentia from receiving the wages of their freedmen, but they are forbidden to compel them to surrender them. Therefore, if a freedman voluntarily pays his wages to his patron, he will have no recourse against him under

this law.

(2) This law does not apply to a freedman who has promised certain days of labor, or a sum of money, as by performing labor he can become free. Octavenus approves this opinion, and adds that a patron is understood to have compelled his freedman to pay him the wages of his labor, where his acts show that his intention was only to obtain the said wages, even if he stipulated for days of labor.

TITLE X. CONCERNING THE RIGHT TO WEAR A GOLD RING.

1. Papinianus, Opinions, Book I.

Where provision for support is left to a freedman along with several others, he will not cease to be entitled to it because he has obtained from the Emperor the right to wear a gold ring.

(1) A different opinion prevails in the case of a freedman who has been judicially declared to be freeborn, and has been returned to his former condition through the collusion of another patron, which has been exposed, and who desires to obtain for himself the support that the third patron relinquished; for, in this instance, it

has been established that the freedman will forfeit the right to wear a gold ring.

2. The Same, Opinions, Book XV.

A decision rendered with reference to the free birth of a freedman within five years was set aside. I gave it as my opinion that he had lost his right to wear a gold ring which he had received and relinquished before the decision was rendered.

3. Marcianus, Institutes, Book I.

The Divine Commodus also deprived those of the right of wearing a gold ring who had obtained it without the knowledge or consent of their patrons.

4. Ulpianus, On the Lex Julia et Papia, Book HI.

Even women can obtain the right to wear a gold ring, as well as that of being considered freeborn, and be restored to the privileges they are entitled to by their birth.

5. Paulus, On the Lex Julia et Papia, Book IX.

He who has obtained the right to wear a gold ring is considered as having been freeborn; even though his patron may not have been excluded from his succession.

6. Ulpianus, On the Lex Julia et Papia, Book I.

A freedman who has obtained the right to wear a gold ring (although he may obtain the right attaching to the condition of being freeborn, reserving the rights of his patron), is still considered as freeborn. This the Divine Hadrian stated in a Rescript.

TITLE XL CONCERNING THE RESTITUTION OF THE RIGHTS OF BIRTH.

1. Ulpianus, Opinions, Book II.

Where anyone, who stated to the Emperor that he was born free, has been restored by him to the rights to which he was entitled by birth, is proved to have been born of a female slave, he is considered to have obtained nothing.

2. Marcianus, Institutes, Book I.

Persons who are born slaves sometimes obtain the rights of those who are freeborn, by subsequent operation of law; as where a freedman is restored by the Emperor to the rights to which he is entitled by birth; for he is restored to these rights to which all men originally are entitled, but to which he himself could assert no claim by birth, as he was born a slave. He acquires the said rights in their entirety, and is in the same position as if he had been born free, hence his patron cannot succeed to his estate. For this reason the Emperors

do not usually restore anyone to his birthright, unless with the consent of his patron.

3. Scsevola, Opinions, Book VI, Gave the Following Opinion.

You ask, if our Most Holy and Noble Emperor should restore anyone to his original birthright, whether he can enjoy all the rights of one who is born free. This does not admit, and never has admitted of any doubt, because it has been established that he who obtains this privilege from the Emperor is restored to all the rights of a person who is born free.

4. Paulus, Opinions, Book IV.

A freedman cannot be restored to his birthright without the consent of the son of his patron; for what difference does it make whether the wrong was done to the patron, or to his children?

5. Modestinus, Rules, Book VII.

The freedman who desires to be restored to his natural birthright must obtain the consent of his patron, for the authority of his patron over him is lost if he acquires it.

(1) A freedman who is restored to his birthright is considered, in every respect, as if he had become freeborn, and, in the meantime, had not endured the infamy of servitude.

TITLE XII. CONCERNING ACTIONS RELATING TO FREEDOM.

1. Ulpianus, On the Edict, Book LIV.

If a person who is free, but is held in possession as a slave, is not willing to go into court to establish his true condition, for the reason that he desires to do some wrong to himself or to his family, in this instance, it is but just that permission should be given to certain persons to appear in his behalf, as for example, to a father who alleges that his son is under his control; for if his son refuses to institute proceedings, he can do so for him.

This right is granted to his father even if he is not under the control of the latter, for it is always to the interest of a parent that his son should not be reduced to servitude.

(1) On the other hand, we say that the same power is granted to children in behalf of their parents, even against the consent of the latter, as it is no small disgrace for a son to have his father a slave.

(2) For the same reason it has been decided that this power is also granted to other blood-relatives,

2. Gaius, On the Edict of the Urban Prs&tor, Title,: Concerning Actions Relating to Freedom.

Because the slavery to which our relatives are subjected causes us grief and injury.

3. Ulpianus, On the Edict, Book LIV.

I go still further, and hold that this power ought to be granted to natural relatives also, so that if a father has a son in servitude who is afterwards manumitted, he can demand his freedom should he again be reduced to slavery.

(1) A soldier is also permitted to appear in court in a case where the freedom of any of his near relatives is involved.

(2) When no one of this kind who can act for the party interested appears in court, then it becomes necessary to authorize his mother, his daughters or his sisters, as well as other women related to him by blood, or even his wife, to appear before the Praetor, and present the case; so that, after proper cause is shown, relief may be granted him even against his consent.

(3) The same rule applies if I should allege that the party in question is my freedman or freedwoman.

4. Gaius, On the Edict of the Urban Prsetor, Title: Actions Relating to Freedom.

The right to appear in court should, however, only be granted to a patron where the liberty of his freedman is involved, and the latter has permitted himself to be sold without his patron's knowledge.

5. Ulpianus, On the Edict, Book LIV.

For it is to our interest to preserve our rights over our freedmen and freedwomen.

(1) When several of the above-mentioned persons appear in court in behalf of a slave, the authority of the Praetor must be interposed to select the one whom he considers to be preferable.

This rule should also be observed where several patrons appear for that purpose.

6. Gaius, On the Edict of the Urban Prsetor, Book II.

It will be even more equitable to adopt such a course where the person who has been reduced to slavery is insane, or an infant; for this privilege should then not only be granted to near relatives but also to strangers.

7. Ulpianus, On the Edict, Book LIV.

Where men who are free, especially those who are over twenty years of age, have permitted themselves to be sold, or have been reduced to slavery for any other reason, no obstacle will arise to prevent them from demanding their freedom, unless they allowed themselves to be sold in order to share the purchase-money.

(1) When a minor of twenty years of age permits himself to be sold for the purpose of sharing the purchase-money, this will not prejudice him after he reaches the age of twenty years. If, however, he permitted himself to be sold and obtained a portion of the purchase-money after reaching his twentieth year, freedom can be refused him.

(2) If anyone should knowingly buy a man who is free, the right to demand his liberty will not be refused to him who was sold, as against the buyer, no matter at what age he was purchased; for the reason that he who bought him is not excusable, even if when he did so he who was the object of the sale well knew that he was free. But if another, without being aware of the fact, should afterwards purchase him from one who did know, freedom should be refused him.

(3) If two persons should buy a slave together, one of them knowing that he was free, and the other being ignorant of it, let us see whether he who was aware of the alleged slave's condition will prejudice the one who was not. This, indeed, is the better opinion. For, otherwise, the question would be whether he who was ignorant of the man's condition will only be entitled to his share in him, or to the entire alleged slave. Will what we have stated with reference to the share of the other apply to the purchaser who had knowledge? He, however, who bought the man, being aware that he was free, is unworthy to have anything.

Again, the one who was ignorant of his true condition cannot have a greater portion of the ownership than he purchased. The result therefore will be that the ignorance of one will benefit the other who bought the man knowing that he was free.

(4) There are other reasons for which the right to demand freedom is refused; as, for example, where a slave is said to be free by the terms of a will, and the Prsetor forbids the will to be opened, because the testator is said to have been killed by his slaves; for he who desires to appear in court and who may, perhaps, be liable to punishment, should not be entitled to a judgment giving him his freedom.

If, however, the right should be granted because it is uncertain whether he is guilty or innocent, the decision should be deferred until it is established who is responsible for the death of the testator, as it will then appear whether he will be liable to punishment or not.

(5) Where anyone who is in slavery claims his freedom, he occupies the place of a plaintiff. If, however, being at liberty, he is demanded as a slave, the person who alleges that he is his slave assumes the part of the plaintiff. Hence, when the matter is in doubt, in order that the proceedings may be conducted in their proper order, the question should be argued before the magistrate who has cognizance of cases involving freedom, so that it may be determined whether the alleged slave should be reduced from freedom to servitude; or, on the other hand, whether, being in bondage, he ought to be liberated.

If, however, it should appear that he who contends that he is free was in that condition without having been guilty of fraud, he who alleges that he is his owner will take the part of the plaintiff, and will be required to prove that he is his slave. But if it is decided that, at the time when the proceedings were instituted, the alleged slave was not at liberty, or had fraudulently obtained his freedom, he who asserts that he is free must prove that this is the case.

8. The Same, On the Edict, Book LV.

The right to appear in a case involving freedom is granted to an usufructuary, even if the owner (that is to say, he who alleges that he is the owner), also desires to institute proceedings respecting the status of the slave.

(1) Where several persons claim the ownership of the slave, alleging that he belongs to them in common, they shall be sent before the same judge. This was decreed by the Senate. But if each one of them should say that the entire slave and not merely a share in him belongs to him alone, the Decree of the Senate will not apply. For then there will be no reason to apprehend that different decisions will be rendered, as each of the alleged owners claims that the slave is his individual property.

(2) Where, however, one person claims the usufruct in the slave and another the ownership, or where one claims the ownership, and the other says that the slave has been pledged to him, the same judge must decide the case; and it makes little difference whether the slave was pledged to him by the same person who claims him as the owner, or by someone else.

9. Gaius, On the Edict of the Urban Prsetor, Title: Actions Relating to Freedom.

Where two parties, that is to say, the alleged usufructuary and the alleged owner, are defendants at the same time against him who has brought an action to obtain his freedom, one of them may happen to be absent. It may be doubted whether, under such circumstances, the Prsetor can permit the one who is present to appear alone against the alleged slave, because the rights of the third party should not be prejudiced by the collusion or the negligence of another.

It can more properly be held that one of them may proceed in such a way that the rights of the other will remain unimpaired. If the absent party should appear before the case has been terminated, he must be sent before the same judge, unless he gives a good reason why this should not be done; for instance, if he alleges that the judge is his enemy.

(1) We say that the same rule will apply where of two or more persons who assert that they are the owners of the alleged slave some are present, and others are absent.

(2) Therefore, in both cases, we must consider if the one who first instituted proceedings should be defeated, whether this will benefit the other, who gained his case, or vice versa; that is to say, if either one of them should succeed, whether this will profit the other; as the heir of a freedman obtains an advantage from the fact that his patron had been defrauded by the manumission of slaves.

If it is held that a judgment rendered in favor of one will benefit the other; the result will be that if the latter again brings suit, he can be opposed by a replication on the ground that the matter has already been decided. If, indeed, it is held that he does not derive any advantage from the decision, the doubt will arise whether what was

claimed by the party who lost the case belongs to either of them, or whether he against whom the action was brought, or he who was successful, is entitled to it; and it is evident that a praetorian action ought to be granted to the party who gained the case, as the Prsetor should, by no means, permit the man to be part slave and part free.

10. Ulpianus, On the Edict, Book LV.

What we have said with reference to the alleged slave, proving that he has been free, must be understood to mean not that he who demands his liberty must show that he was absolutely free, but that he was in possession of his freedom without any fraud on his part.

But let us see what would be considered fraud on his part. Julianus says, that all those who believe that they are free are not guilty of fraud, provided they act as freemen, even though they are actually slaves. Varus, however, says that one who knows himself to be free, and takes to flight, cannot be considered to be at liberty without any fraud on his part; but at the moment when he ceases to conceal himself as a fugitive slave, and acts as if he was free, he begins to be at liberty without fraud on his part. For he holds that he who knows that he is free, and afterwards conducts himself like a fugitive slave, should be considered to act as a slave from the very fact that he has taken to flight.

11. Gaius, On the Edict of the Urban Pr&tor, Title: Actions with Reference to Freedom.

Even though, during his flight* he acted as a freeman, we hold that the same rule will apply.

12. Ulpianus, On the Edict, Book LV.

Hence, it should be noted that a person who is free can be fraudulently at liberty, and that a slave can be at liberty without being guilty of fraud.

(1) A child who is stolen in infancy served as a slave in good faith, although he was free; and afterwards, while ignorant of his condition, left his master and secretly began to live in freedom. He does not remain at liberty without being guilty of fraud.

(2) A slave can also be at liberty without committing fraud, as, for instance, where he receives his freedom by a will and is not aware that the will is void; or where he obtains it before a magistrate from someone whom he believed to be his owner, when he was not; or where he has been brought up as free, when, in fact, he was a slave.

(3) Generally speaking, whenever anyone thinks that he is free, without being guilty of deceit, whether he is induced to do so by good or bad motives, and he remains at liberty, it must be held that he is in the same condition as if he was free without being guilty of fraud, and therefore he can enjoy all the advantages of a possessor of freedom.

(4) The proof of good faith, however, is referred to the time when he was at liberty without being guilty of fraud, which is when legal proceedings with reference to him were first instituted.

(5) Where the services of a slave are due to anyone, he can also avail himself of the action relating to freedom.

(6) If a person who claims his freedom has caused me any damage during the time when he was serving me as a slave in good faith (as, for example, if I really, believing myself to be his owner, was sued in a noxal action, and judgment was rendered against me, and I paid the appraised damages, instead of surrendering the alleged slave by way of reparation), judgment will be rendered against him in my favor.

13. Gaius, On the Edict of the Urban Prsetor, Title: Actions Relating to Freedom.

It is certain that in the action in factum under discussion, judgment should only be rendered for the amount of damages which were caused by fraud, and not for what was due to negligence. Therefore, even if the alleged slave should be released from liability in a case of this kind, still, suit can afterwards be brought against him under the Aquilian Law, as by this law he will also be liable for negligence.

(1) Again, it is certain that in this action not only our own property but also that of another for which we are responsible can be claimed as having been lent or hired. But it is clear that this proceeding does not apply to property merely deposited with us for safe-keeping, because it is not at our risk.

14. Ulpianus, On the Edict, Book LV.

The Prsetor very properly opposes the deceitful conduct of those who, knowing that they are free, fraudulently permit themselves to be sold as slaves; for he grants an action against them.

(1) This action will lie whenever he who permitted himself to be sold as a slave is in such a position that he cannot be refused permission to demand his freedom.

(2) We do not consider that he has acted in bad faith who did not voluntarily inform the purchaser of the fraud, but only when he himself deceived him.

15. Paulus, On the Edict, Book LV.

That is to say, no matter whether the person who suffered himself or herself to be sold is of the male or the female sex; provided he or she is of an age at which fraud can legally be committed.

16. Ulpianus, On the Edict, Book LV.

The same rule applies to one who pretends to be a slave, and is sold as such, with the intention of deceiving the purchaser.

(1) If, however, he, who was sold was under the influence of either force or fear, we say that he was not guilty of fraud.

(2) The purchaser is entitled to this action when he was not aware that the alleged slave was free, for if he knew that he was free, and then bought him, he cheated himself.

(3) Therefore, if a son under paternal control makes a purchase of this kind, and he himself was aware of the facts, but his father was

ignorant of them, he will not be entitled to an action for the benefit of his father, if he made the purchase with reference to his peculium. But, in this instance, the question arises whether, if the father directed him to make the purchase, he will be prejudiced by the knowledge of his son. I think that it will prejudice him just as it would prejudice an agent.

(4) If the son was not aware that the man who was sold was free, and his father knew it, I think that it is clear that the father will be barred from bringing an action, even if the son made the purchase with reference to his peculium; provided the father was present and could have prevented his son from doing so.

17. Paulus, On the Edict, Book LI.

The same rule will apply to the case of a slave, and where a purchase was made under our direction by an agent; and it is just as if I had ordered a certain man to be purchased, knowing him to be free, although he who was ordered to buy him may not have been aware of the fact, as an action will not lie in his favor. If, on the other hand, I was not aware that the man was free, but the agent knew it, the action will not be refused me.

18. Ulpianus, On the Edict, Book LV.

He, therefore, will be liable for as much as he has paid, or for the amount for which he bound himself, that is to say, for double the price.

(1) Let us see, however, whether merely the purchase money or also whatever may have been added to it should be doubled. I think that either all that was paid on account of the sale ought, by all means, to be doubled,

19. Paulus, On the Edict, Book LI.

Or what was exchanged or set off, in lieu of the purchase money (for it also is understood to have been given as such under these circumstances) ;

20. Ulpianus, On the Edict, Book LV.

And what he bound himself to pay should be doubled.

(1) Hence, if the purchaser has lawfully paid something to anyone in order to obtain this action, it must be said that it comes within the terms of this Edict, and will be doubled.

(2) Where anyone is said to have bound himself, we must understand this to have been done either to the vendor or to someone else; for whatever he, either himself, or through another, gave to the vendor himself, or to some other person by his order, is equally included.

(3) We should consider the purchaser to be bound where he cannot protect himself by an exception, but if he can do so, he is not held to be bound.

(4) It sometimes happens that he who makes the purchase will be entitled to an action for quadruple the value of the property. For a suit for double damages will lie in his favor against the alleged slave

himself, who, being free, knowingly permitted himself to be sold; and, in addition to this, he will be entitled to an action for double damages against the vendor, or against him who promised him double damages.

21. Modestinus, Concerning Penalties, Book I.

Therefore, double the amount of what the purchaser either paid, or bound himself for with reference to the sale, will be due. According to this, whatever either of the parties may pay will not operate to release the other; because it has been decided that this action is a penal one. Hence, it is not granted after the lapse of a year, nor can it be brought against the successors of the person liable to it, as it is a penal action. Therefore, the action which arises from this Edict may, very properly, be said not to be extinguished by manumission, because it is true that the vendor cannot be sued after legal measures have been taken against him who demanded his freedom.

22. Ulpianus, On the Edict, Book LV.

Not only the purchaser himself, but also his heirs, can institute proceedings by means of this action in factum.

(1) We understand anyone to make a purchase, even where he does so by another, as, for instance, through an agent.

(2) Where, however, several persons make a purchase, while all of them will be entitled to this action, still, if they have bought different shares, they can bring suit in proportion to the respective amounts of the price which they have paid; or if each one bought the entire interest in the slave, each will be entitled to an action to recover in full; nor will the knowledge or the ignorance of any one of them benefit or prejudice the others.

(3) If the purchaser was not aware that the man who was sold was free, and he afterwards learned this, his rights will not be prejudiced, because he was ignorant of the fact at the time. But if he knew it when the sale took place, and afterwards doubted its truth, this will be of no advantage to him.

(4) Knowledge does not prejudice, nor ignorance benefit the heir and other successors of the purchaser in any way.

(5) If, however, anyone should make the purchase by an agent, who knows that the man is free, it will prejudice him; and Labeo thinks that the knowledge of a guardian will, under these circumstances, prejudice his ward.

(6) This action is not granted after a year, as it is an equitable as well as a penal one.

23. Pauliis, On the Edict, Book L.

If I should sell and transfer to you the usufruct in a man who is free, Quintus Mucius says that he will become a slave, but the ownership will not become mine, unless I sell the usufruct in good faith, for, otherwise, there will be no owner.

(1) In a word, it must be noted that what has been said with reference to men sold as slaves, and whose claim to freedom is denied, also

applies to such as are donated, and given by way of dowry; just as it does to those who have permitted themselves to be given in pledge.

(2) Where a mother and her son both demand their freedom, the cases of the two should be joined, or that of the son should be deferred until the mother's case has been decided; as was decreed by the Divine Hadrian. For where the mother has instituted proceedings before one judge, and her son before another, Augustus stated that the condition of the mother must first be established, and after that the case of the son should be heard.

24. The Same, On the Edict, Book LI.

After the preliminaries of a suit involving the demand for freedom have been legally complied with, he who brought it to establish his status is considered to be free, and actions will not be refused him against one who alleges that he is his owner, no matter what actions he may desire to bring. But what if these are suits, the right to which is extinguished by lapse of time, or by death? Why should he not be granted the power to institute these proceedings in security after issue has been joined?

(1) Moreover, Servius says that, in cases where the right to bring actions is barred after a year has elapsed, the year must be reckoned from the day on which the case relating to freedom was disposed of.

(2) If, however, it is considered desirable to proceed against others, it will not be necessary to wait until the first case has been decided, lest in the meantime means may be found to bar these actions by the introduction of someone who will dispute the right of the alleged slave to be free. In like manner, an action can legally be brought or not, according to the decision in the case involving the freedom of the party in question.

(3) If the alleged owner should bring an action, the question arises whether the defendant will be obliged to join issue. Several authorities hold that if he brings an action in personam, he must undertake the defence of the case, but judgment must be suspended until the question of his freedom has been determined; nor should it be held that his attempt to obtain his freedom is prejudiced, or that he remains at liberty with the consent of his master. For after the case brought to establish his freedom has been decided, he is considered, in the meantime, to be free; and as he himself can bring actions, so also, actions can be brought against him; but it will depend upon the result, as the judgment will either be valid if it is in his favor, or it will be void if it is adverse to his freedom.

(4) Where he who demands his freedom is accused of theft, or of wrongful damage by anyone, Mela says that he must, in the interim, furnish security that he will be present when the decision is rendered, to prevent the condition of one whose freedom is in doubt from becoming preferable to that of a person whose freedom is certain; but judgment must be deferred to avoid committing any wrong against liberty.

Likewise, where an action of theft is brought against the possessor of a man alleged to be a slave, and he is afterwards sued in the name of

him who claimed his freedom, the decision of the case must be suspended ; so that if the latter is ascertained to be free, the case against him can be transferred, and if the judgment should be unfavorable, the action to enforce it can be granted against him.

25. Gaius, On the Edict of the Urban Prastor: Title, Actions Relating to Freedom.

If an option has been bequeathed to anyone demanding his liberty in court, whatever has been stated with reference to the bequest of an estate will also apply to that of an option.

(1) The right to bring a second action to obtain freedom is sometimes granted; as for instance, where a party alleges that he lost the first case because his freedom depended upon a condition which had not previously been complied with.

(2) Although it is commonly stated that, after a case involving freedom has been decided, the person whose condition was in controversy is considered to be free; still, if he is really a slave, it is certain that he, nevertheless, will acquire for his master whatever has been delivered to or promised him, just as if no question had arisen concerning his freedom. We shall see that there is no dispute as to his possession, since his master ceases to possess him after the case has been decided.

The better opinion is that he acquires possession, although he is not possessed by him. And, as it has been settled that we acquire possession by our slaves, even if they are fugitives, why should it be wondered at that we also acquire possession by one whose right to freedom we deny?

26. The Same, On the Provincial Edict, Book XX.

Where anyone claims a person who is at liberty as his slave, and only brings the action for the purpose of having recourse in case of eviction, he cannot be sued in an action on injury.

27. Ulpianus, On the Duties of Consul, Book II.

The Divine Brothers, in a Rescript addressed to Proculus and Munatius, stated as follows: "As Romulus, whose condition is disputed, is near the age of puberty, and at the request of his mother, Varia Hado, and with the consent of Varius Hermes, his guardian, judgment in the case was postponed until the child should reach the age of puberty, it is left to your discretion to determine what will be advantageous to the minor, the position of the parties interested being taken into account."

(1) If the person who raised the question concerning the condition of another fails to appear at the trial, he who demands his freedom is in the same condition as he was before the controversy arose with reference to it. He, however, is benefited to this extent, namely, that he who disputed his status will lose his case. This fact, however, does not render him freeborn who previously was not so, for the failure of an adversary to appear does not confer the right of freedom.

I think that judges will act lawfully and regularly if they pursue the regular order; so that where the party claiming the man as his slave fails to appear, his adversaries shall be given the choice either of having the case continued, or of having it heard and determined. If the judges should hear the case, they must decide that the party in question does not appear to be the slave of So-and-So. This decision does not take undue advantage of anyone, as the person whose estate is in controversy is not found to be freeborn, but is merely held not to

be a slave.

Where, however, one who is in slavery claims his freedom, the better course for the judges to pursue will be to continue the case, in order to avoid deciding that the said person appears to be born free, when no adversary appears, unless there should be good reason to cause them to hold that it is clear that judgment should be rendered in favor of liberty; as is also stated in a Rescript of Hadrian.

(2) If, however, he who demands his freedom fails to appear, and his opponent is present, it will be better to proceed with the case and have judgment rendered. If the adversary offers sufficient evidence, the judge shall decide against freedom. It may, however, happen that the absent party will be successful, for the decision may be rendered in favor of freedom.

28. Pomponius, On Quintus Mucius, Book XII.

A slave is not considered to be at liberty with the consent of his master when the latter does not know that he belongs to him. This is perfectly true; for the slave is only at liberty under such circumstances when he acquires possession of freedom with his master's consent.

29. Arrius Menander, On Military Affairs, Book V.

Where anyone institutes proceedings to obtain his freedom, and enlists in the army before a decision is rendered, he should be held to occupy the same position as other slaves, and he will not be relieved because, in some respects, he is considered as free. And, although he may have appeared to be free, he can be dishonorably discharged, that is, dismissed from the army, and driven from the camp as one who demanded freedom while in slavery, or who was at liberty through fraud. But anyone who has been falsely and maliciously claimed as a slave shall be retained in the service.

(1) Where anyone who has been judicially declared freeborn enlists in the army, and the decision is reversed within five years, he shall be returned to his new master.

30. Julianus, On Minicius, Book V.

Where two persons separately claim a man as their slave, and each of them alleges that he owns half of him, and, by one judgment, he is declared to "be free, and by another, he is pronounced to be a slave, the most convenient course will be for the judges to be compelled to agree. If this cannot be done, Sabinus states that it has been held that the man should be taken as a slave by the party who gained the case.

Cassius (as well as myself), adopts this opinion, and, indeed, it is ridiculous for the man to be considered half slave, and also to be protected in the enjoyment of half his freedom.

It is, however, convenient to decide that he was free, on account of the favor conceded to liberty, and to compel him to pay to the party who gained the case half of his value, as appraised by a reliable citizen.

31. Ulpianus, Opinions, Book I.

A son who appears as the heir of his father is forbidden from demanding as a slave one who had been manumitted by his father.

32. Paulus, Rules, Book VI.

A decree of the Senate was enacted concerning the property of those who, as slaves or as freedmen, have acquired the status of freeborn persons. With reference to those who were formerly in a state of slavery, it permits them only to take with them what they conveyed into the houses of their alleged masters, and to those who, after their manumission, desired to recover their original rights. This also was conceded, namely, that whatever they had acquired after their manumission (but not anything obtained through the agency of the person who set them free), they could take with them; and that they must leave all other property with him from whose household they departed.

33. The Same, Actions Relating to Freedom.

Anyone who knowingly purchases a man who is free, even if the latter permits himself to be sold, cannot, nevertheless, oppose him, if he demands his freedom. Where, however, he sells the man to another person who was ignorant of the facts, the supposed slave will not be permitted to demand his liberty.

34. Ulpianus, Pandects.

The Emperor Antoninus decided that no one should be permitted to demand his freedom, unless he previously had rendered an account of the administration which he had conducted while in slavery.

35. Papinianus, Opinions, Book IX.

It has been settled that the slaves destined for the care of a temple which Titia intended to build, and who had not been manumitted, belonged to her heir.

36. The Same, Opinions, Book XII.

A master who has gained his case, and wishes to take away his slave, cannot be compelled to accept the appraised value instead of the slave.

37. Callistratus, Questions, Book II.

A private agreement cannot make anyone either the slave or the freedman of another.

38. Paulus, Opinions, Book XV.

Paulus gave it as his opinion that if (as is stated) after a sale has been made unconditionally, the purchaser voluntarily sent a letter by which he declared that, after a certain time, he would manumit the slave whom he had bought, this letter had no reference whatever to the Constitution of the Divine Marcus.

(1) He also gave it as his opinion that the Constitution of the Divine Marcus applied to the cases of slaves who were sold under the condition of being manumitted after a certain time; and that a female slave, for whom her master had received money for the purpose of manumitting her, was entitled to the same favor of freedom, as he would also have authority over her as his freedwoman.

(2) The question arose whether a purchaser could legally grant freedom to his slave, if his price had not yet been paid. Paulus answered that if the vendor had delivered the slave to the purchaser, and had been furnished with security for his price, he would belong to the purchaser, even if the money had not been paid.

(3) Gaius Seius sold Stichus, his slave, under the condition that Titius would manumit Stichus at the end of three years, if he served him continually during that time. Stichus fled before the three years had elapsed, and returned in a short time after the death of Titius. I ask whether Stichus would be prevented from obtaining his freedom under the terms of the sale, by having taken to flight before the three years had expired? Paulus gave it as his opinion that, according to the facts stated, Stichus should be manumitted, and was entitled to his freedom after the term which had been prescribed.

39. The Same, Opinions, Book V.

He who is not required to produce proofs of his free birth should be heard, if he himself voluntarily desires to offer them.

(1) Magistrates who have cognizance of causes involving freedom of birth can impose penalties, to the extent of exile, against anyone who rashly and maliciously institutes proceedings.

(2) Guardians or curators cannot raise any question as to the condition of the wards whose guardianship and whose property they have administered.

(3) A husband is not prohibited from raising a question as to the condition of his wife or his freedwoman.

40. Hermogenianus, Epitomes of Law, Book V.

Where a minor of twenty years of age permits himself to be sold under an agreement to share his price, he cannot, after his manumission, demand that he be declared freeborn.

41. Paulus, Articles Referring to Actions for Freedom.

If there is any doubt as to the condition of a person who demands his freedom, he should first be heard, if he wishes to prove that he himself is in possession of freedom.

(1) The judge who has jurisdiction of cases where freedom is involved should also take cognizance of property which has been stolen,

or serious damage committed by the claimant. For it can happen that, being confident that he will obtain his freedom, he may have ventured to steal, or spoil, or waste property belonging to those whom he was serving as a slave.

42. Labeo, Last Works, Book IV.

If a slave whom you have purchased demands his freedom, and an unjust decision is rendered in his favor by the judge, and the master of the said slave makes you his heir, after the case has been decided against you, or the slave becomes yours in any other way, you can again claim him as yours; and the rule relating to res judicata cannot be pleaded against you. Javolenus says this opinion is correct.

43. Pomponius, Decrees of the Senate, Book HI.

The Emperor Hadrian published a Rescript with reference to those who had stolen the property of the persons whom they were serving as slaves, and afterwards demanded their freedom, the words of which Rescript are as follows: "As it is not just that a slave, in expectation of his freedom, should take property belonging to the estate of his master, where freedom is to be granted him under the terms of a trust, so it is not necessary to seek for any reason to delay the grant of his freedom." Hence, in the first place, an arbiter should be appointed, in whose presence it should be determined what can be preserved for the heir, before he can be compelled to manumit the slave.

44. Venuleius, Actions, Book VII.

Although it was formerly doubtful whether only a slave or a freedman could be obliged by his patron to swear to observe the conditions which were imposed upon him in consideration of his liberty, it is, however, better to hold that he cannot be bound to a greater extent than a freeman. Hence it is customary to exact this oath from slaves, in order that they may be restrained by religion, and be required to again be sworn after they become their own masters; provided they take the oath, or make the promise at the very time when they are manumitted.

(1) Moreover, it is lawful to insert the name of the wife with reference to any donation, present, or daily labor to be given or performed by the manumitted slave.

(2) A pratorian action on account of labor to be performed should be granted against one who, before reaching the age of puberty, took the oath, that is to say if he was legally capable of doing so; as a boy under the age of puberty can render services if he is either a nomencla-tor or an actor.

TITLE XIII.

CONCERNING THOSE WHO ARE NOT PERMITTED TO DEMAND THEIE FREEDOM.

1. Ulpianus, On the Duties of Proconsul, Book I. Those who are more than twenty years of age cannot demand their freedom, if any of the price for which they have been sold should come

into their hands. Where anyone has suffered himself to be sold for any other reason, even though he may be over twenty years of age, he can demand his freedom.

(1) The right to demand his freedom should not be refused a minor under twenty years of age, for the above-mentioned reason, unless he remained in slavery after reaching the age of twenty years; for then, if he had shared in the price, it must be said that the right to demand his freedom will be refused him.

2. Marcellus, Digest, Book XXIV.

A certain man extorted a slave from Titius by violence, and directed him to be free by his will. The slave will not become free, even if the testator died solvent; for otherwise, Titius will be defrauded, as he can bring an action against the heir of the deceased on the ground that the bequest of freedom was void; but if the slave should obtain his freedom, Titius will not be entitled to an action, because the heir will not be held to have gained anything by the fraud of the deceased.

3. Pomponius, Letters and Various Passages, Book XL

Permission to demand their freedom is denied those who have suffered themselves to be sold. I ask whether these decrees of the Senate also apply to children born of women who have suffered themselves to be sold. There can be no doubt that a woman of over twenty years of age, who has suffered herself to be sold, will be refused permission to demand her freedom. Nor should it be granted to those children born to her during the time of her servitude.

4. Paulus, Questions, Book XII.

"Licinnius Rufinus, to Julius Paulus: A slave who was entitled to freedom under the terms of a trust, permitted himself to be sold after having reached his twentieth year. I ask whether he shall be forbidden to demand his freedom." The example of a man who is free causes me some difficulty; for if the slave should have permitted himself to be sold after having obtained his freedom, he would be refused permission to demand it; nor should he be understood to be in a better position when, being in slavery, he permitted himself to be sold, than if he had done so after having obtained his freedom.

On the other hand, however, a difficulty arises, because in the case in question the sale is valid and the man can be sold, but in the case of a freeman the sale is void, and there is nothing to be sold. Therefore, I ask that you give me the most complete information on this point.

The answer was that the sale of a slave as well as that of a man who is free can be contracted for, and a stipulation providing against eviction can be entered into. For, in this instance, we do not refer to anyone who knowingly purchases a man who is free, as a right to demand his freedom is not refused him as against the purchaser. He, however, who is still a slave, can be sold even against his own consent, although he is acting fraudulently when he conceals his condition, as it is in

his power immediately to obtain his freedom, but he cannot be blamed when he is not yet entitled to be free.

Suppose that a slave, who is to be free conditionally, suffers himself to be sold; no one will say that he has not the right to demand his freedom, in case the condition, which is not in his power, should be fulfilled ; and, indeed, I think that the same rule will apply if it was in his power to comply with it. In the case proposed, it will be better to adopt the opinion that he should not be permitted to demand his freedom, if he could have done so, and preferred to let himself be sold; because he is unworthy of the aid of the Praetor having jurisdiction over trusts.

TITLE XIV. WHERE ANYONE Is DECIDED TO BE FREEBORN.

1. Marcellus, Digest, Book VII.

If the'freedman of one person is declared to be freeborn as the result of an action brought by another, his patron can prosecute the same claim against him without being barred by an exception based on prescription.

2. Saturninus, On the Duties of Proconsul, Book I.

The Divine Hadrian decided that anyone who was of age, and permitted himself to be sold in order that he might receive a portion of the price, should be forbidden to bring an action to obtain his freedom; but that he could do so under certain circumstances, if he returned his share of the price which had been paid.

(1) Those who are freedmen, and assert their claim to freedom by birth, shall not be heard after the lapse of five years from the date of their manumission.

(2) Those who, after the lapse of five years, allege that they have discovered documents establishing their rights to be considered freeborn, must have recourse to the Emperor, who will examine their claims.

3. Pomponius, Decrees of the Senate, Book V.

By the following words: "Their birth having been acknowledged," the Decree of the Senate must be understood only to refer to those who would have been considered freeborn.

(1) By the clause, "Would have left," it must be understood that whatever such persons have obtained from the property of him by whom they were manumitted must be restored.

Let us see in what manner this must be interpreted, whether they must return whatever has been acquired by them by means of the property of their masters, or what they have abstracted from them without their knowledge, or whether this includes the property which has been granted and donated by the persons who manumitted them. The latter is the better opinion.

4. Papinianus, Questions, Book XXII.

The Rescript which forbids freedom of birth to be demanded before the Consuls or Governors of provinces, after the lapse of five years from the date of manumission, excepts no cases or persons.

5. The Same, Opinions, Book X.

I gave it as my opinion, that a patron should not be barred by prescription after the lapse of five years from the date of the judgment entered in favor of freedom, when he is ignorant that such a judgment has been rendered.

6. Ulpianus, On the Edict, Book XXXVIH.

Whenever a dispute arises as to whether anyone is a freedman or services are demanded of him, or obedience from him is required, or where an action implying infamy is to be brought, or he who alleges that he is the patron is summoned to court, or proceedings are instituted without good cause, a prejudicial action will lie.1

The same prejudicial action will also be granted where a person confesses that he is a freedman, but denies that he has been liberated by Gaius Seius. It will also be granted where one or the other party requests it, but he who represents himself to be the patron shall always take the part of the plaintiff, for he must prove that the person in question is his freedman, and if he does not do so he will lose his case.

TITLE XV.

No QUESTION As TO THE CONDITION OP DECEASED PERSONS SHALL BE RAISED AFTER FIVE YEARS HAVE ELAPSED AFTER THEIR DEATH.

1. Marcianus, On Informers.

It is not lawful for either private individuals or the Treasury to raise any question with reference to the civil condition of deceased persons after five years from the time of their death.

(1) Nor can the condition of him who died within five years be reconsidered, if, by doing so, the status of one who has died more than five years previously will be prejudiced.

1 The prejudicial action of the Romans was a preliminary proceeding, resembling in some respects the modern interlocutory decree, which was instituted sometimes to ascertain whether the provisions of the law requiring the publication of the nature of the obligation for which sureties had bound themselves, as well as the number of the latter, had been complied with; and, at others, to establish the civil condition of an individual whose freedom was disputed. Of the latter there were three kinds, the Actio de Ingenuitate, the Actio de Libertate, and the Actio ex Liberali Causa; the two former being embraced in the latter, which lay where one who was said to be free was demanded by an alleged patron as his emancipated slave.

The prejudicial action was in rem, that is, it could be brought against anybody; and perpetual, hence not barred by prescription, if instituted by him whose liberty was in question. It was also available for other purposes than those above mentioned, for instance, to ascertain the amount of a dowry.—ED.

(2) Nor can any question be raised with reference to the condition of a man who is living, if, by doing so, the condition of one who died more than five years previously will be prejudiced. This point was decided by the Divine Hadrian.

(3) Sometimes, however, it is not permitted to raise a question with reference to the status of the deceased within five years from the time of his death. For it is provided by a Rescript of the Divine Marcus that if anyone has been judicially declared to be freeborn, it may be permitted to review the decision rendered during the lifetime of the person who has been pronounced freeborn, but not after his death. To such an extent is this true that even if the review of the case has been begun, it will be extinguished by death; as is set forth in the same Rescript.

(4) If anyone reviews a decision of this kind in order to reduce the person to an inferior condition, this should be opposed, according to what I have already stated. But what if the intention was to improve his condition, as, for instance, to have him declared a freedman instead of a slave; why should this not be permitted ? What course must be pursued, if he is said to be a slave, the issue of a female slave, who has been dead for more than five years ? Why should he not be alleged to prove that she was free; for this itself is in favor of the deceased ?

Marcellus in the Fifth Book of the Duties of Proconsul stated that this should be done. I also adopted the same opinion in the audience room.

2. Papinianus, Opinions, Book XIV.

It is settled that, in the reconsideration of a case, no question should be raised with reference to the freedom of children which may involve the reputation of their mothers or fathers, after the latter had been dead for more than five years.

(1) In a matter of this kind, which is worthy of public supervision, relief should be granted to minors instituting proceedings for restitution, where they had no guardians to act for them during the five years which have elapsed.

(2) This prescriptive term of five years which protects the status of deceased persons is not affected by the filing of any action before death; if it can be proved that the right to bring the said action has been extinguished by the long silence of him who originally brought it and then desisted.

3. Hermogenianus, Epitomes of Law, Book VI.

The condition of a person who died more than five years previously is considered to be more honorable than at the time of his death, and no one will be prevented from claiming this for him. Therefore, even if he died in slavery, he can be proved to have been free at his decease, even after the lapse of five years.

4. Callistratus, On the Rights of the Treasury.

The Divine Nerva was the first of all who, by an Edict, forbade that any question should be raised regarding the condition of anyone after five years from the date of his death.

(1) The Divine Claudius also stated in a Rescript addressed to Claudian that if, by the pecuniary question which had been raised, any prejudice appeared to be caused to the status of the deceased, the inquiry must cease.

TITLE XVI. CONCERNING THE DETECTION OP COLLUSION.

1. Gaius, On the Edict of the Urban Prsetor, Title: Actions Relating to Freedom.

To prevent the excessive indulgence of certain masters toward their slaves from contaminating the highest Order in the State, through suffering their slaves to claim the right of free birth and to be judicially declared free, a Decree of the Senate was enacted in the time of Domitian, by which it was provided, that: "If anyone can prove that an act was due to collusion, and the man pronounced to be free was actually a slave, the latter will belong to him who exposed the collusion."

2. Ulpianus, On the Duties of Consul, Book II.

The Emperor Marcus decided that collusion could be detected within five years after a decision declaring a person entitled to the privilege of free birth.

(1) We understand that the five years must be continuous.

(2) If it is clear that if the age of him who is accused of collusion renders it necessary that the investigation should be deferred until the age of puberty, or to some other time, it must be held that the term of five years will not run.

(3) Moreover, I think that the term of five years has been prescribed not to terminate the inquiry, but to begin it. It is, however, different with respect to him who, being a liberated slave, demands that he be given the rights of a person who is freeborn.

(4) It is provided by a Rescript of the Divine Marcus that even strangers, who have the right to assert claims for others, shall be permitted to expose collusion.

3. Callistratus, On Judicial Inquiries, Book IV.

Where anyone, without having any legal adversary, is judicially declared to be entitled to the rights of a freeborn person, the decision will be without effect, and just as if none had been rendered. This is provided by the Imperial Constitutions.

4. Ulpianus, On the Lex Julia et Papia, Book I.

Where a freedman, through collusion, has been declared to be entitled to the rights of a freeborn person, and the collusion has been established, he is, in some respects regarded, as a freedman. In the meantime, however, before the collusion has been exposed, and after the decision with reference to his rights as a freeborn person has been rendered, he will be regarded as freeborn.

5. Hermogenianus, Epitomes of Law, Book V.

It is only permitted, under the pretext of collusion, to review a judgment rendered with reference to the right of free birth but once.

(1) Where several persons appear at the same time for the purpose of proving the collusion, when proper cause is shown, a decision must be rendered after taking into account the morals and the ages of all the parties concerned; and especially should it be ascertained which one of them has the greatest interest in exposing the collusion.

THE DIGEST OR PANDECTS. BOOK XLI.

TITLE I. CONCERNING THE ACQUISITION OF THE OWNERSHIP OF PROPERTY.

1. Gaius, Diurnal or Golden Matters, Book II.

We obtain the ownership of certain property by the Law of Nations, which is everywhere observed among men, according to the dictates of natural reason; and we obtain the ownership of other things by the Civil Law, that is to say, by the law of our own country. And because the Law of Nations is the more ancient, as it was promulgated at the time of the origin of the human race, it is proper that it should be examined first.

(1) Therefore, all animals which are captured on land, on sea, or in the air, that is to say, wild beasts and birds, as well as fish, become the property of those who take them.

2. Florentinus, Institutes, Book VI.

The same rule applies to their offspring, born while they are in our hands.

3. Gaius, Diurnal or Golden Matters, Book II.

For what does not belong to anyone by natural law becomes the property of the person who first acquires it.

(1) Nor does it make any difference, so far as wild animals and birds are concerned, whether anyone takes them on his own land, or on that of another; but it is -clear that if he enters upon the premises of another for the purpose of hunting, or of taking game, he can be legally forbidden by the owner to do so, if the latter is aware of his intention.

(2) When we have once acquired any of these animals, they are understood to belong to us, as long as they are retained in our possession; for if they should escape from our custody and recover their

natural freedom, they cease to belong to us, and again become the property of the first one who takes them,

4. Florentinus, Institutes, Book VI.

Unless, having been tamed, they are accustomed to depart and return.

5. Gaius, Diurnal or Golden Matters, Book II.

Wild animals are understood to recover their natural freedom when our eyes can no longer perceive them; or if they can be seen, when their pursuit is difficult.

(1) It has been asked whether a wild animal which has been wounded in such a way that it can be captured is understood immediately to become our property. It was held by Trebatius that it at once belongs to us, and continues to do so while we pursue it, but if we should cease to pursue it, it will no longer be ours, and will again become the property of the first one who takes it. Therefore, if during the time that we are pursuing it another should take it, with the intention of himself profiting by its capture, he will be held to have committed a theft against us.

Many authorities do not think that it will belong to us, unless we capture it, because many things may happen to prevent us from doing so. This is the better opinion.

(2) The nature of bees, also, is wild. Hence, if they settle upon one of our trees, they are not considered to belong to us until we have enclosed them in a hive, any more than birds who have made their nests in our trees. Therefore, if anyone else should shut up the bees, he will become their owner.1

(3) Likewise, if bees make honey, anyone can take possession of it without being guilty of theft. But, as we have already stated, if anyone enters upon the land of another for such a purpose, he can legally be forbidden by the owner from doing so, if the latter is aware of his intention.

(4) A swarm of bees which has left our hive is understood to be ours as long as it is in sight and its pursuit is not difficult; otherwise, it becomes the property of the first one who takes possession of it.

(5) The nature of peacocks and pigeons is also wild. Nor does it

make any difference whether or not they have the habit of flying away

. and returning; for bees, whose nature has been decided to be wild, do

1 By the Visigothic Code, qualified ownership of bees became absolute when the occupant made three marks upon the tree, or rock where he found the swarm. Interference with it afterwards by another rendered him liable to double damages, and thirty lashes by way of penalty. "Si quis apes in silva sua, aut in rupibus, vel in saxo, aut in arboribus, vel in qualicumque loco invenerit, facia t tres decuri-as, quas vocantur characteres; unde potius non per unum characterem fraus nas-catur, et si quis contra hoc fecerit, atque alienum signatum inruperit, duplwm restituat UK cui fraus inlata est, et przeterea XX, flagella suscipiat." (Forum Judicum Vill, VI, 1.)

The old Castilian law followed that of Rome to the letter. (Las Siete Parti-das, III, XXVIII, XXII.)—ED.

the same thing. Certain persons have stags, which are so tame that they go into forests and return, and no one denies that their nature is wild. Moreover, with reference to such animals as have the habit of going away and returning, the following rule has been adopted, namely : "That they shall be understood to belong to us, as long as they have the intention of returning, but if they should cease to have this intention, they will no longer be ours, and will become the property of the first occupant." They are understood to have ceased to have the intention to return where they have lost the habit of doing so.

(6) The nature of chickens and geese is not wild, for it is well known that there are wild chickens and wild geese. Hence, if my geese or my chickens, having been frightened for any reason, fly so far that I do not know where they are, I will, nevertheless, retain ownership over them, and anyone who takes them with the intention of profiting by it will be held to have committed theft.

(7) Likewise, anything which is taken from the enemy immediately becomes by the Law of Nations the property of him who takes it.

6. Florentinus, Institutes, Book VI.

Likewise, the increase of animals of which we are the owners belongs to us by the same law.

7. Gaius, Diurnal, or Golden Matters, Book II.

To such an extent is this true that even men who are free become the slaves of the enemy; but, still, if they escape from the power of the enemy they will recover their former freedom.

(1) Moreover, anything which a river adds to our land as alluvium is acquired by us under the Law of Nations. That, however, is considered to have been added by alluvium which is added little by little, so that we cannot perceive the amount which is added at each moment of time.

(2) But if the force of a stream takes a portion of your land away from you, and brings it upon mine, it is evident that it will continue to be yours. If, however, it should remain on my land for a long time, so that the trees which it brought with it take root in my soil, it will be considered to form part of my land from that time.

(3) Where an island arises in the sea (which rarely happens), it becomes the property of the first occupant; for it is considered to belong to no one. Where an island is formed in a river (which takes place very frequently), and it occupies the middle of the stream, it becomes the common property of those who have land near the banks on both sides of the stream in proportion to the extent of the land of each person along the banks. If the island is nearer to one side than the other, it will belong to him alone who has land along the bank on that side of the stream.

(4) If a river overflows on one side, and begins to run in a new channel, and afterwards the new channel turns back to the old one, the field which is included between the two channels and forms an island will remain the property of him to whom it formerly belonged.

(5) If, however, the stream, having abandoned its natural bed, begins to flow elsewhere, the former bed will belong to those who have land along the bank, in proportion to the extent of the land situated there, and the new bed will come under the same law as the river itself does, that is, it will become public by the Law of Nations. But if, after a certain length of time, the river should return to its former bed, the new bed will again belong to those who own the land along the banks. Where the new bed occupies all the land, even though the river may have returned to its former channel, he to whom the land belonged cannot, strictly speaking, assert any right to the bed of the stream; because the land which formerly belonged to him has ceased to be his, having lost its original form; and since he has no adjoining land, he cannot, by reason of neighborhood, be entitled to any part of the abandoned bed. To rigidly observe this rule, however, would be a hardship.

(6) The rule is different when anyone's field is entirely covered by water, for the inundation does not change the form of the land; and it is clear that when the water subsides, the land will belong to him who previously owned it.

(7) When anyone makes an article in his own name with materials belonging to another, Nerva and Proculus think that its ownership will belong to him who made it, for the reason that what has been fabricated formerly belonged to no one. Sabinus and Cassius think that, in accordance with natural reason, he who owned the materials would also be the proprietor of what was made out of them, because no article can be manufactured without materials; as, for instance, if I should make a vase out of your gold, silver, or brass; or a ship, a cupboard, or a bench cut out of your boards; or a garment out of your cloth; or mead out of your wine and honey; or a plaster, or an eye-wasli out of your drugs; or wine out of your grapes, or grain; or oil out of your olives.

There is, however, a moderate opinion entertained by persons of good judgment, who believe that, if the article can be reduced to its original form and material, what Sabinus and Cassius hold is true, but if this cannot be done, the opinion of Nerva and Proculus should be adopted; for example, when a vase of gold, silver, or copper can be melted and returned to its original rough metallic mass, but wine, oil, or grain cannot be restored to the grapes, olives, and ears from which it was derived; nor can mead be restored to the honey and wine of which it is composed, nor can a plaster or an eye-wash be resolved to the drugs out of which it was compounded. Still it seems to me that some authorities very properly held that no doubt should exist on this point, when wheat has been obtained from the ears of others to whom the latter belonged,"for the reason that the grain retains the ears in its perfect form, and he who threshes it does not manufacture a new article, but only extracts what is already in existence.

(8) If two owners agree to mix materials belonging to them, the entire compound becomes their common property, whether the materials are of the same description or not; as where they mix wine or melt silver, or combine different kinds of substances; or where one

contributes wine and the other honey, or one gold and the other silver, although compounds of mead and electrum are products of a dissimilar character.

(9) The same rule of law will apply where materials belonging to two persons are mingled without their consent, whether they are of the same, or of a different nature.

(10) Where one person erects a building on his own ground out of materials belonging to another, he is understood to be the owner of the building, because everything is accessory to the soil which is built upon it. Nevertheless, he who was the owner of the materials does not, for this reason, cease to be such, but, in the meantime, he cannot bring an action to recover them, or to compel their production, under the Law of the Twelve Tables, by which it is provided that no one can be forced to remove timbers belonging to another which were used in the construction of his own house, but he must pay double their value. By the term "timbers" out of which buildings are constructed, all materials are meant. Therefore, if for any reason a house should be demolished, the owner can then bring an action to recover the materials, and have them produced.

(11) The question was very properly asked, if the person who built the house under such circumstances should sell it, and it, after having been owned for a long time by the purchaser, should be demolished, whether the owner would still have a right to claim the materials as his own. The reason for the doubt is that, although the entire building can be acquired by prescription after a long time has elapsed, it does not follow that the separate materials of which it was composed can also be acquired. The latter opinion has not been adopted.

(12) On the other hand, if anyone constructs a building on the land of another with his own materials, the building will become the property of the person to whom the ground belongs. If he knew that the land was owned by another, he is understood to have lost the ownership of the materials voluntarily; and therefore if the house is demolished he will have no right to claim them.

Where, however, the owner of the ground claims the building, and does not reimburse the other for the value of the materials and the wages of the workmen, he can be barred by an exception on the ground of fraud; and if he who constructed the building did not know that the land belonged to another, and hence erected it in good faith, this course should certainly be pursued. For if he was aware that the land belonged to another, it can be alleged that he was to blame for rashly building a house upon land which he knew was not his.

(13) If I plant a shrub belonging to another upon my ground, it will belong to me. If, on the other hand, I plant one of mine upon the ground of another, it will belong to him; provided that in either case it has taken root; for, otherwise, it will remain the property of him who previously owned it. In accordance with this, if I press a tree belonging to another into my soil, so it takes root, it will become my tree; for reason does not permit that a tree shall be considered to belong to another unless it takes root in his soil. Hence, if a tree planted near a

boundary line sends its roots into the adjoining earth, it becomes the common property of both owners,

8. Marcianus, Institutes, Book III.

In proportion to the place it occupies on each tract of land.

(1) If, however, a stone is formed on a boundary line of two tracts of land held in common, but undivided, the stone also undivided will belong to the joint-owners if it is removed from the ground.

9. Gaius, Diurnal or Golden Matters, Book II.

For this reason plants which have taken root on land belong to it, and grain which has been sowed, is also considered to form a part of the soil. Moreover, as in the case of one who builds upon land belonging to another, if the latter brings an action to recover the building, he can be barred by an exception on the ground of fraud; so, likewise, he who has, at his own expense, sowed seed upon the land of another, can protect himself by means of an exception.

(1) Letters, also, even though they may be of gold, form part of the papyrus and parchment on which they are written; just as materials of which houses are constructed are accessory to the land, and, on the same principle, seeds that have been sown form part of it.

Hence, if I write a poem, a history, or a speech of my own upon papyrus or parchment belonging to you, not I, but you, will be understood to be the owner of the work. If, however, you bring an action against me to recover your books or your parchment, and refuse to pay me the expense incurred by writing, I can protect myself by an exception on the ground of fraud, provided I have obtained possession of the articles in good faith.

(2) Pictures, however, do not usually constitute part of the tablets on which they are painted, as letters do of the papyrus and parchment on which they are written; but, on the other hand, it has been decided that the tablet is accessory to the painting. Still, it is ever p'erfectly proper that a praetorian action should be granted to the owner of the tablet against him who painted the picture, provided he is in possession of the tablet; of which action he can effectually avail himself if he tenders the expense of painting the picture: otherwise, he will be barred by an exception on the ground of fraud, as he certainly should have paid the expense if he was the bona fide possessor of the tablet.

We say, however, that an action to recover the tablet will properly lie in favor/of him who painted it, against the owner, but he should tender him the value of the tablet; otherwise, he will be barred by an exception on the ground of fraud.

(3) Property which becomes ours by delivery is acquired by us under the Law of Nations; for nothing is so conformable to natural equity as that the wish of an owner, who intends to transfer his property to another, should be complied with.

(4) It, however, makes no difference whether the owner himself delivers the article in person to another, or whether someone else does it with his consent. Hence, where the free administration of his affairs

is entrusted to anyone by a person about to depart upon a journey to a distant country, and the former, in the regular course of business, sells and delivers anything to a purchaser, he transfers the ownership of the same to him who receives it.

(5) Sometimes, even the mere wish of the owner is sufficient to transfer the property without delivery, as, for instance, if I have lent or hired an article to you, and then after having deposited it with you, I sell it to you. For, although I have not delivered it to you for this reason, still, I render it your property by the mere fact that I permit it to remain in your hands on account of it having been purchased.

(6) Likewise, if anyone sells merchandise which is stored in a warehouse, and, at the same time, delivers the keys of the warehouse to the purchaser, he transfers to him the ownership of the merchandise.

(7) Moreover, at times, the will of the owner transfers the title to property to a person who is not designated; for example, where someone throws anything into a crowd, for he does not know how much of it any individual may pick up; and, still, as he is willing that whatever anyone may pick up shall belong to him, he immediately renders him the owner of the same.

(8) The rule is different where merchandise is thrown into the sea during a storm for the purpose of lightening a ship, for it remains the property of the owner, as it was not thrown overboard with the intention of relinquishing it, but that the owner together with the ship might the more readily escape the perils of the sea. For which reason, if anyone obtains the property while on the sea itself, or after it has been cast on la'nd by the force of the waves, and removes it with the intention of profiting by it, he commits a theft.

10. The Same, Institutes, Book II.

Property is acquired for us not only by ourselves, but also by those whom we have in our power; as, for instance, by slaves in whom we have the usufruct, and also by freemen and slaves belonging to others of whom we have possession in good faith.

Let us consider each of these cases in detail.

(1) Hence, anything which our slaves obtain by delivery, or which they stipulate for, or acquire in any other way whatsoever, is acquired by us; for he who is in the power of another can have nothing of his own. Therefore, if our slave is appointed an heir, he cannot enter upon the estate unless by our order, and if we order him to do so, the estate is acquired by us, just as if we ourselves had been appointed heirs. In conformity with this principle, a legacy also is acquired by us through our slave.

(2) Moreover, not only is ownership acquired for us by those whom we have under our control, but possession is also; for when they obtain possession of the property of anyone, we, ourselves, are considered to possess it; hence ownership is also acquired for us by long-continued possession.

(3) With reference to those slaves in whom we have only the usufruct, it has been decided that when they acquire anything through the use of our property, or by their own labor, it is acquired by us. If, however, they obtain anything by any other means, it will belong to him in whom the ownership of them is vested. Therefore, if a slave of this kind is appointed an heir, or if anything is bequeathed or given to him, it will not be acquired by me but for the owner of the property.

(4) The same rule which has been adopted with reference to an usufructuary is also applicable to one who is possessed by us in good faith, whether he is free, or a slave belonging to another; and is available in the case of a bona, fide possessor. Hence, whatever is acquired in any other way than the two above mentioned will either belong to the person himself if he is free, or to his master if he is a slave.

(5) Still, where a bona fide possessor obtains a slave by usucaption, for the reason that, under these circumstances, he becomes his owner, he can acquire property through him in every way. An usufructuary, however, cannot acquire a slave by usucaption; first, because he does not actually possess him, but merely has the right of using and enjoying him; second, because he knows that the slave belongs to another.

11. Marcianus, Institutes, Book HI.

A ward does not need the authority of his guardian for the purpose of acquiring property, but he cannot alienate anything unless his guardian is present and consents; nor (as was held by the Sabinians) can he even transfer possession although it may be natural. This opinion is correct.

12. Callistratus, Institutes, Book II.

Although lakes and ponds sometimes increase in dimensions, and sometimes dry up, they still retain their original boundaries, and therefore the right of alluvium is not admitted, so far as they are concerned.

(1) If a vessel of any kind is made by melting my copper and your silver together, it will not become our common property; because, as copper and silver are different materials, they can be separated by the artificers, and returned to their former condition.

13. Neratius, Rules, Book VI.

If my agent, by my direction, should purchase anything for me, and it is delivered to him in my name, the ownership of the article, that is to say, the title to it, is acquired by me, even if I am not aware of the fact.1

(1) The guardian of a male or female ward, just like an agent, acquires property for him or her by purchasing it in the name of the ward, even without his or her knowledge.

1 "Qui mandat ipse fecisse videtur."—ED.

14. The Same, Parchments, Book V.

Whatever anyone builds upon the shore of the sea will belong to him; for the shores of the sea are not public like the property which forms part of the patrimony of the people, but resembles that which was formed in the first place by Nature, and has not yet been subjected to the ownership of anyone. For their condition is not dissimilar to that of fish and wild animals, which, as soon as they are taken, undoubtedly become the property of him under whose control they have been brought.

(1) Where a building which has been erected upon the seashore is removed, it should be considered what the condition of the ground on which it was situated is, that is to say whether it will remain the property of him to whom the building belonged, or whether it will revert to its former condition and again become public; just as if it had never been built upon. The latter should be deemed the better opinion, provided it remains in its former condition as a part of the shore.

15. The Same, Rides, Book V.

He, however, who erects a house on the bank of a stream does not thereby make it his own.

16. Florentinus, Institutes, Book VI.

It is established that the right of alluvium does not exist with reference to land having boundaries. This was also decided by the Divine Pius. Trebatius says that where land taken from conquered enemies is granted under the condition that it shall belong to some city, it will be entitled to the right of alluvium, and has no established boundaries; but that land taken by individuals has prescribed boundaries, so that it may be ascertained what was given, and to whom, as well as what was sold, and what remained public.

17. Ulpianus, On Sabinus, Book I.

Where two masters deliver property to a slave owned by them in common, he acquires for one of his masters the share of the other.

18. The Same, On Sabinus, Book IV.

Property forming part of an estate cannot be acquired by the heir through a slave belonging to the same estate, and still less can the estate itself be acquired in this way.

19. Pomponius, On Sabinus, Book HI.

Aristo says that a freeman who is serving me in good faith as a slave will undoubtedly acquire for me whatever he earns by his labor through the use of my property. But whatever anyone gives him, or whatever he obtains in transacting business, will belong to him.

He says, however, that any estate or legacy which has been bequeathed will not be acquired by me through him, because it is not derived from my property, or from his labor; for he has performed no

work to obtain the legacy, and it is, to a certain extent, an estate, because it is accepted by him. This was at one time doubted by Varius Lucullus. The better opinion, however, is that the estate is not acquired, even though the testator may have intended it to belong to me. But even if the supposed slave does not acquire it for me, still, if it was the evident intention of the testator that this was to be done, the estate should be delivered to me.

Trebatius thinks that where a freeman is serving anyone in good faith as a slave, and enters upon an estate by order of the person whom he is serving, he himself will become the heir; for it makes no difference what a man intended to do, but what he did do.

Labeo holds the contrary opinion, provided he was compelled to do this; but if he desired to do it, he will become the heir.

20. Ulpianus, On Sabinus, Book XXIX.

A delivery of property should not and cannot transfer any more right in the same to him who receives it than he who delivers it possessed.1 Therefore, anyone who owns land, can transfer it by delivery; but if he did not have the ownership of the same, he does not convey anything to him who receives it.

(1) When the ownership is transferred to him who receives it, it is transferred in the same condition that it was while in the possession of the grantor. If it is subject to a servitude, it passes with the servitude; if it is free, it passes in that condition; and if servitudes are due to the land which is transferred, it is conveyed together with the rights to the servitudes imposed for its benefit. Hence if anyone should allege ' that certain land is free, and he delivers a tract which is charged with a servitude, he diminishes nothing of the right of the servitude attaching to the said land, but he, nevertheless, binds himself, and must furnish what he agreed to do.

(2) If Titius and myself purchase property, and delivery of it is made to Titius individually, and also as my agent, I think that the property is also acquired by me, because it is established that possession of every kind of property, and consequently the ownership of the same, can be obtained through the agency of a person who is free.

21. Pomponius, On Sabinus, Book XI.

If my slave is serving you in good faith, and he purchases something which is delivered to him, Proculus says that it will not become mine, because I have not the slave in my possession; nor will it be yours, because it was not acquired by means of your property. If, however, a freeman buys anything while he is serving you as a slave, it will belong to him individually.

(1) If you are in possession of property belonging to me, and I wish it to be yours, it will become yours, even though it may not have come into my hands.

1 "Nemo potest plus juris ad alium transferre qua/in ipse habet."—ED.

22. Ulpianus, On Sabinus, Book XL.

No one who is in possession of a slave either by force or clandestinely, or by a precarious title, can acquire a right to him by any stipulation he may enter into, or by delivery of the property.

23. The Same, On Sabinus, Book XLHL

Whoever serves anyone in good faith as a slave, whether he is the slave of another, or is free, will acquire for his possessor whatever he obtains by means of the property of the latter, while serving in good faith as a slave. He will, in like manner, acquire for him whatever he earns by his own labor, for it is, to a certain extent, considered as the property of the former, because he owes his labor to him whom he is serving in good faith.

(1) He will, however, acquire the property for his possessor only as long as he serves him in good faith as a slave; but as soon as he ascertains that he belongs to someone else, or is free, let us ascertain whether he will continue to acquire property for him. In examining this question, we must determine whether we shall consider the beginning of the possession, or all the moments included in it.

The better opinion is that all the time should be taken into account.

(2) Generally speaking, it must be said that whatever he who is serving in good faith cannot acquire by means of the property of his possessor he will acquire for himself; but what he cannot acquire for himself by means of property other than that of his possessor, he will acquire for him whom he serves in good faith as a slave.

(3) Where anyone serves two persons in good faith as a slave, he will acquire property for both of them, but for each one in proportion to the use he has made of his capital. The question, however, may arise, whether what he acquires with the capital of one of them will partly belong to the person whom he is serving in good faith as a slave, and partly to his own master, if he is a slave; or, if he is free, whether it will belong to him whom he is serving in good faith, or whether he should acquire the entire amount for the benefit of him whose property he has used. Scsevola discusses this point in the Second Book of Questions. He says that if a slave belonging to another serves two persons in good faith, and acquires property by the use of something belonging to one of them, it is reasonable to hold that he acquires it for him alone. He also says, if the slave mentions the name of him with reference to whose property he enters into a stipulation, there is no doubt that he makes the acquisition solely for him; because if he had stipulated expressly in the name of one of his masters with reference to his property, he would acquire the entire amount for his .benefit. He afterwards adopted the opinion that where anyone is serving several masters in good faith as a slave, he will acquire for me alone, even if he had not stipulated with reference to my property, either in my name or by my express order; for it has been established that whenever a slave owned in common cannot acquire property for all his owners, he can acquire it for him alone who will be benefited thereby. I have repeatedly stated that Julianus held this opinion: which we also approve.

24. Paulus, On Sabinus, Book XIV.

It must be said with reference to everything which can be restored to its former condition, that if the material remains as it was, and the form only is changed (as, for instance, if you make a statue out of my bronze, or a cup out of my silver), I will be the owner of it:

25. Callistratus, Institutes, Book II.

Unless this is done in the name of another with the consent of the owner; for then, by virtue of his consent, the entire article will belong to him in whose name it was made.

26. Paulus, On Sabinus, Book XIV.

If, however, you build a ship out of my boards, it will belong to you, for the reason that the cypress tree, of which they formed a part, is no longer in existence, any more than wool, where a garment is made of it; but a new form, composed of the cypress or the wool, • has been produced.

(1) Proculus informs us that men ordinarily follow the rule adopted by Servius and Labeo; that is to say, in cases where the quality of property is considered, anything that is added becomes accessory to all, as where a foot or a hand is added to a statue, a bottom or a handle to a cup, a support to a bed, a plank to a ship, or stones to a building, for they will all belong to him who formerly owned the property.

(2) If a tree is torn up by the roots, and deposited upon the land of another, it will belong to the former owner until it has taken root; but, after it has done this, it will become an accessory of the land j1 and if it is torn up by the roots a second time, it will not revert to the former owner: for it is probable that it became another tree through the different nourishment it received from the soil.

(3) Labeo says that if you dye my wool purple, it will still be mine, because there is no difference between wool after it has been dyed, and where it has fallen into mud or filth, and has lost its former color for this reason.

27. Pomponius, On Sabinus, Book XXX.

It must be admitted that if you add any silver belonging to another to a mass of that metal of which you are the owner, all of it will not belong to you. On the other hand, if you solder your cup with lead or silver belonging to another, there is no doubt that the cup will be yours, and that you can legally recover it by an action.

(1) Where several drugs belonging to different persons are contributed at the same time, and a similar remedy is compounded of them or where you make an ointment by combining different perfumes, none of the former owners can, in this instance, properly claim that the product belongs to him; therefore it is best to hold that it belongs to the one in whose name it was made.

1 "Quicquid plantatur solo, solo cedit."—ED.

(2) Where two parts of an article belonging to different owners are soldered together, the question arises, to whom do they belong? Cassius says that this must be determined in accordance with the size or the value of each of the parts; but if neither one can be considered as accessory to the other, let us see whether it cannot be considered as a mass which has been melted, or whether it will belong to him in whose name the parts were soldered together.

Both Proculus and Pegasus hold that each part will belong to the person who owned it before it was soldered to the other.

28. The Same, On Sabinus, Book LIH.

If your neighbor builds upon your wall, Labeo and Sabinus say that what he builds will belong to him. Proculus, however, holds that it will belong to you, just as anything which another builds upon your land becomes your property. This is the better opinion.

29. Paulus, On Sabinus, Book XVI.

When an island is formed in a stream, it becomes the common property of those who own land along the bank, not undivided, but separated by distinct boundaries; for each one of them will have a right to that portion of it which is opposite to his land on the bank of the stream, just as if a straight line were drawn through the island.

30. Pomponius, On Sabinus, Book XXXIV.

Hence, if an island which has been formed accrues to my land, and I sell the lower part of the latter, which is not opposite to the island, none of the island will belong to the purchaser, for the reason that it would not have been his in the beginning, even if he had been the owner of that part of my land at the time when the island was formed.

(1) Celsus, the son, says that if a tree grows along the bank of a river where my land is situated, it will belong to me, because the soil itself is my individual property and the public is only entitled to the use of the same; and, therefore, if the bed of the river should dry up, it will become the property of the neighbors, for the reason that the people no longer make use of it.

(2) An island is formed in a river in three different ways; first, when the stream flows around land which did not originally belong to its bed; second, when it leaves the place, which was formerly its bed, dry, and commences to flow around it; third, when, by removing soil little by little, it raises a high place above the bed of the river and increases it by alluvium. By the last two ways the island becomes the private property of him whose land was nearest to it when it first appeared. For it is the nature of a stream to change its bed, when it alters its course, and it does not make any difference whether merely the soil forming the bed is changed, or whether it is raised by earth being deposited upon it, as it is always of the same character. In the first instance, the condition of the property is not altered.

(3) Alluvium restores a field to the state in which it was before the force of a stream entirely removed it. Therefore, if a field which

is situated between a public highway and a river is covered with water by the overflow of the stream, whether it is inundated little by little, or not, and it is restored by the same force through the receding of the river, it will belong to its former owner. For rivers perform the duties of those officials who designate the boundaries of land, and adjudge them sometimes from private individuals to the public, and sometimes from the public to private individuals. Hence, as the land above mentioned became public when it served as the bed of a river, it now should again become private, and belong to its original owners. (4) If I drive piles into the sea, and build upon them, the edifice will immediately be mine; as what belongs to no one becomes the property of the first occupant.

31. Paulus, On the Edict, Book XXXI.

The mere delivery of an article does not transfer its ownership, for this takes place only where a sale or some other just cause precedes delivery.

(1) A treasure is an ancient deposit of money, the memory of which no longer remains, so that it now has no owner. Hence, it becomes the property of him who finds it, because it belongs to no one else. On the other hand, if anyone, for the sake of profit, or actuated by fear, with a view to its preservation, hides money in the ground, it is not a treasure, and anyone who appropriates it will be guilty of theft.

32. Gaius, On the Provincial Edict, Book XI.

We acquire by means of our slaves in almost every way, even against our consent.

33. Ulpianus, Disputations, Book IV.

Marcellus, in the Twentieth Book, discusses the point as to whom a stipulation or a legacy applies when it is made by a slave forming part of the castrense peculium of a son under paternal control, who was serving in the army, before the estate was entered upon. I think that the opinion entertained by ScaBvola, and discussed by Marcellus himself, is the correct one; namely, if the estate is entered upon, everything is acquired where the slave forms part of it; but if it is not entered upon, the acquisition should be considered as made by a slave of the father.

Where an usufruct is bequeathed to such a slave, it will sometimes be considered as left to the father, and sometimes to the heir, without being held to have passed from one of these persons to the other.

(1) The same distinction is applicable where property has been taken in order to determine whether an action for theft will lie or not; since if the heir should enter upon the estate, the property will not be considered as having been stolen from it; or if he should not enter upon it, an action on the ground of theft, and also a personal one for the recovery of property, will be granted to the father.

(2) Whenever a slave belonging to an estate enters into a stipulation, or acquires property by delivery, his act takes effect through the person of the deceased; as is held by Julianus, whose opinion that the person of the testator should be considered in a case of this kind is still accepted,

34. The Same, On Taxes, Book IV.

For an estate does not represent the person of the heir, but that of the deceased, which rule has been established by many precepts of the Civil Law.

35. The Same, Disputations, Book VII.

If my agent, or the guardian of a ward, delivers his own property as belonging to me, or to the ward, to another, he will not be deprived of the ownership of the same, as the alienation is void, because no one can lose his property through a mistake.

36. Julianus, Digest, Book XIII.

When we agree as to property which has been delivered, but dissent as to the causes for its transfer, I do not understand why the delivery should not be valid; for example, if I think that I am obliged to transfer a tract of land to you in compliance with the terms of a will, and I transfer it, and you are under the impression that I should do so by virtue of a stipulation. For if I pay you a sum of money for the purpose of making a donation of the same, and you think I intend to lend it to you, it is settled that the ownership will pass to you, and the fact that we differed with respect to the cause of giving and receiving it will be no impediment to its legal transfer.

37. The Same, Digest, Book XLIV.

Possession of property is not acquired for a creditor by a slave who has been given in pledge, for the reason that neither by stipulation nor by mandate, nor in any other way whatsoever, can anything be acquired by him, even though he may have possession of the slave.

(1) If one of several masters gives money to a slave owned in common, it is in the power of the master to bestow the money upon the said slave held in common in whatever way he may desire; for if he should only do this in order to deduct it from his accounts, and let it form part of the peculium of the slave, it will still remain the property of the said master.

If, however, he should give the money to the slave held in common, in the same way that we are accustomed to make donations to fhe slaves of others, it will become the common property of the joint-owners in proportion to the share which each one has in the slave.

(2) However, in order that the following question may be considered, let us suppose that one joint-owner has given a sum of money to a slave owned in common, in order to retain his ownership of the property; and if the slave should purchase a tract of land with the said money, it will be owned in common by the joint proprietors in

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proportion to the share which each one has in the slave; for, even if the common slave bought the tract of land with stolen money, it will become the property of the joint-owners, according to their interest in the slave. A slave in whom someone has an usufruct does not acquire property for his owner by reason of the usufruct; nor can a slave held in common acquire property for one master by means of that belonging to another. But, just as property is acquired from others under these circumstances, the condition of a slave subject to an usufruct differs from that of a slave owned in common (for instance, one of them does not acquire property for the usufructuary, but the other acquires it for his masters), as where anything is obtained by making use of the property of the usufructuary it will belong to him alone, but what a slave owned in common acquires by means of the property of one master will belong to both.

(3) As a slave owned in common, by expressly stipulating for one of his masters, acquires property for him alone, so also he acquires property solely for him through receiving it by delivery.

(4) When a slave belonging to one person receives property by delivery, alleging that he receives it for his master, and Titius, he acquires half of it for his master, but his act with reference to the other half is void.

(5) If a slave, subject to usufruct, should say that he received property acquired through the usufruct by delivery, for his owner, he will acquire all of it for him; for if he enters into a stipulation with reference to property belonging to the usufruct, he will acquire it for his owner.

(6) If you wish to make me a donation, and I direct you to deliver the property to a slave jointly owned by Titius and myself, and the slave receives it with the intention of obtaining it for Titius, the transaction will be void; or if you deliver property to my agent with the intention that it shall become mine, and he receives it with the intention of making it his, this transaction will also be void. If a slave owned in common r.eceives property with the intention of acquiring it for both his masters, the transaction, so far as one of them is concerned, will be of no force or effect.

38. Alfenus Varus, Epitomes of the Digest of Paulus, Book IV.

Attius had a tract of land along a public highway; beyond the highway there was a river, and a field belonging to Lucius Titius. The river gradually surrounded the field, which was situated between the road and the river, and afterwards covered the road, then it receded little by little, and by alluvium returned to its ancient bed.

The conclusion arrived at was that, since the river had covered both the field and the highway, the field became the property of him who owned land on the other side of the stream, and afterwards, having little by little receded to its former channel, the land was taken away from him whose property it had become, and was added to that of him who was on the other side of the highway, as his land was nearest to the river. The highway, however, which was public, could

belong to no one by accession. It was decided that the highway offered no impediment to prevent the field which was left on the other side of it by alluvium from becoming the property of Attius, for the highway itself was also part of his land.

39. Julianus, On Minicius, Book III.

Even a slave who has been stolen acquires for a purchaser in good faith, if he makes a stipulation, or receives by delivery anything obtained by means of his property.

40. Africanus, Questions, Book VII.

The question was raised, if a person whom a freeman was serving in good faith as a slave should die, and leave an heir who knew that the alleged slave was free, whether the heir could acquire any property by his agency. It cannot be said that he is a bona fide possessor, since, when he begins to have possession, he is aware that the man is free; because, if anyone should devise land to him and the heir knew that it had been devised, there is no doubt that the crops from the land do not become his; and there is much more reason for the application of this principle, if the testator had possession of the land in good faith, having bought it from one who was not the owner.

The same rule must be observed with reference to the labor and agency of slaves; so that, whether they are ours or belong to strangers, and whether they have been bequeathed or manumitted by will, nothing will be acquired by them for the heirs, provided the latter were not ignorant of their status; for at the same time it must be admitted that, in the case where a bona fide possessor renders the crops, which he has used and which were derived from the land, his own, the profits of his labor or his property will also be acquired for him by the slave.

41. Ulpianus, On the Edict, Book IX.

Trebatius and Pegasus hold that statues erected in a town do not belong to the citizens; but the Praetor must see that whatever has been placed there with the intention of rendering it public shall not be removed by any private person, not even by him who erected it. Therefore, the citizens will be entitled to an exception against anyone claiming the statues, and to an action against anyone having possession of them.

42. Paulus, On the Edict, Book XL

A substitution which has not yet taken place is not considered to form part of our property.

43. Gaius, On the Provincial Edict, Book VII.

A man who is possessed in good faith as a slave does not acquire for the possessor anything which he obtains by means of the capital of another.

(1) It is clear that incorporeal property is not capable of delivery and usucaption.

(2) If a slave, the usufruct of whom belongs to another than his owner, himself purchases a slave who is delivered to him before he pays the price, it is uncertain for whom he acquires the ownership. For if he should pay the price out of the peculium belonging to the usufructuary, it is understood that the slave will become his; but if he pays it out of the peculium to which the owner is entitled, the slave will be considered to belong to the latter.

44. Ulpianus, On the Edict, Book XIX.

Pomponius discusses the following point. Wolves carried away some hogs from my shepherds; the tenant of an adjoining farm having pursued the wolves with strong and powerful dogs, which he kept for the protection of his flocks, took the hogs away from the wolves, or the dogs compelled them to abandon them. When my shepherd claimed the hogs, the question arose whether they had become the property of him who recovered them, or whether they were still mine; for they had been obtained by a certain kind of hunting.

The opinion was advanced that, as where animals were captured on sea or land, and regained their natural freedom, they ceased to belong to those who took them, so, where marine or terrestrial animals deprive us of property, it ceases to be ours when the said animals have escaped beyond our pursuit. In fact, who can say that anything which a bird flying across my courtyard or my field carries away still belongs to me? If, therefore, it ceases to be mine, and is dropped from the mouth of the animal, it will belong to the first occupant; just as when a fish, a wild boar, or a bird, escapes from our control, and is taken by another, it becomes the property of the latter.

Pomponius inclines to the opinion that the property continues to be ours, as long as it can be recovered; although what he states with reference to birds, fishes, and wild beasts is true. He also says that if anything is lost by shipwreck, it does not immediately cease to be ours, and that anyone who removes it will be liable for quadruple its value. And, indeed, it is better to hold that anything which is taken away by a wolf will continue to be ours as long as it can be recovered. Therefore, if it still remains ours, I think that an action on the ground of theft will lie. For if the tenant pursued the wolves, not with the intention of stealing the property (although he might have had such an intention), but admitting that he did not pursue them with this object in view, still, as he did not restore the hogs to my shepherd when he demanded them, he is held to have suppressed and concealed them; and therefore I think that he will be liable to an action on the ground of theft, as well as one to produce the property in court; and after this has been done, the hogs can be recovered from him.

45. Gaius, On the Provincial Edict, Book VII.

When a slave owned in common acquires anything by means of the property of one of his masters, it will, nevertheless, belong to both of them; but the one by means of whose property it was acquired can recover the entire amount by an action in partition; for good faith

demands that each of the owners shall have a preferred claim to whatever the slave obtained by means of his property; but if the slave should acquire it in some other way, it will belong to all the joint-owners in proportion to their ownership.

46. Ulpianus, On the Edict, Book LXV.

There is nothing extraordinary in the fact that anyone can transfer to another the ownership of property which he does not possess; for a creditor, by selling a pledge, transfers to the purchaser a title which he himself did not have.

47. Paulus, On the Edict, Book L.

An estate cannot be acquired by the usufructuary through a slave, for an estate cannot consist of the services of a slave.

48. The Same, On Plautius, Book VII.

A bona fide purchaser undoubtedly obtains as his own any profits acquired by means of the property of another in the interim, and this not only refers to such as are acquired by his diligence and labor, but to all others, because, as far as the profits are concerned, he practically occupies the position of the owner; for, even before he obtains the crops, and immediately after they are separated from the soil, they become the property of a bona fide purchaser. Nor does it make any difference whether what I buy in good faith can be acquired by prescription or not; as, for instance, if it belongs to a ward, or has been obtained by violence, or has been given to the Governor of a province contrary to the law against extortion, and has afterwards been transferred by him to a bona fide purchaser.

(1) On the other hand, if at the time when the property was delivered to me I thought that it belonged to the vendor, and I afterwards ascertained that it belonged to someone else, the question arises whether I am entitled to the profits, because possession had lasted for a long time. Pomponius says that it must be apprehended that a purchaser of this kind is not one in good faith, although he may hold the property, for prescription has reference to the law, and whether he possesses the property either in good or bad faith is a question of fact. Nor can this be controverted by alleging that a long time has elapsed; as, on the other hand, he who can not acquire property by prescription on account of a defect in the title to the same has still a right to the profits thereof.

(2) The increase of sheep is a profit, and therefore it belongs to a bona fide possessor, even if they should have been sold while pregnant, or had been stolen while in that condition. And, indeed, it cannot be doubted that a possessor in good faith is entitled to the milk, even though the animals may have been sold ready to be milked. The same rule applies to wool.

49. The Same, On Plautius, Book IX.

Whatever the usufructuary of a slave gives him out of his own property will continue to be his. If, however, he did this with the in-

tention that the property should belong to the owner, it must be said that it will be acquired by him. But where a stranger gives it to him, it will unquestionably be acquired for the owner alone.

We make the same statement with regard to a freeman who is serving in good faith as a slave, so that, if I should give him anything, it will continue to remain mine. Therefore, Pomponius says, that even if I should give the slave his labor, whatever he acquires by means of it he will, nevertheless, acquire for me.

50. Pomponius, On Plautius, Book VI.

Although whatever we construct on the public shore or in the sea will belong to us, still, a decree of the Praetor must be obtained to permit this to be done; and, indeed, if anyone should do something of this kind which inconveniences others, he can be prevented by force; for I have no doubt that he who puts up the building will have no right to a civil action.

51. Celsus, Digest, Book XL

We can seize a deserter by the law of war.

(1) Any property of the enemy, which may be in our hands, does not belong to the public, but to the first occupant.

52. Modestinus, Rules, Book VII.

We are understood to hold property as our own, whenever, being in possession, we have a right to an exception, or when, having lost the property, we are entitled to an action to recover it.

53. The Same, On Quintus Mucius, Book XIV.

Property acquired by the Civil Law is obtained by us through those who are under our control; as, for example, in the case of a stipulation. Whatever is acquired naturally, as, for instance, possession, we can acquire by the agency of anyone, if we desire to obtain it.

.54. The Same, On Quintus Mucius, Book XXXL

A freeman cannot acquire an estate for us. Anyone who is serving us in good faith as a slave can acquire one for us, if he enters upon it voluntarily, and is fully aware of his own condition. If, however, he should enter upon it by our order, he will neither acquire it for himself nor for us, if he did not have the intention of acquiring it for himself. But, if he had such an intention, he will acquire the estate for himself.

(1) Likewise, a freeman who is serving us in good faith as a slave can legally bind himself, by making a contract with us, which involves a purchase, a sale, or hiring, or leasing.

(2) If he wrongs us in any way, he will be liable to an action for injury, and, in this case, we can collect heavier damages from him than we can from a stranger.

(3) If persons of this kind transact any business with reference to our property, under our direction, or perform any acts as agents

during our absence, an action should be granted against them, not only when we have purchased them as slaves, but also if they have been given to us; or have been acquired as dowry, or through having been bequeathed to us; or are due to us from an estate; not only if we think that they are ours, but also where they are slaves owned in common, or are subject to usufruct; so that they do not acquire for us any more than they would have done if they had actually been slaves owned in common, or subject to the usufruct of others.

(4) Whatever a freeman, or a slave belonging to another, or one who serves us in good faith as a slave, cannot acquire for us, the freeman can acquire for hfmself, and the slave belonging to another can acquire for his master; except that a freeman who is serving in good faith can scarcely obtain property by usucaption based on possession, because he who is himself possessed is not understood to have possession. Nor can the owner of a slave of whom we have possession in good faith unconsciously acquire by usucaption what is included in the peculium of the slave, just as he cannot do this by means of a fugitive slave of whom he is not in possession.

55. Proculus, Epistles, Book II.

A wild boar was caught in a trap which you set for the purpose of hunting, and after he was caught, I released him, and carried him away; is it your opinion that I have taken away your wild boar? And if you thought that it was yours, and I should release him and let him go into the woods, would he, in this instance, cease to be yours, or would he still remain your property? If he ceased to be yours, I ask what action you would be entitled to against me, and whether it would be necessary for an action in factum to be granted? The answer was, that we should first take into consideration the trap, and whether it does not make a difference if I set it on public or on private land; and if I set it on private land, whether I did so upon my own or upon that of another, and if I set it upon that of another, whether I did so with the permission of the owner of the said land, or without it.

Moreover, it should be considered whether the wild boar was caught in the trap in such a way that he could not release himself, or whether, by struggling longer, he might have been able to escape.

I think the conclusion should be that if the wild boar was under my control he became my property; but if you, by your act, restored him to his natural freedom, he ceased to belong to me; and I would be entitled to an action in factum; as was decided in a case where a person threw a cup belonging to another from a ship into the sea.

56. The Same, Epistles, Book Vill.

An island arose in a river opposite to my land. At first the length did not exceed the boundary of the latter, but afterwards the island increased in size, little by little, and projected opposite to the boundaries of my upper and lower neighbors. I ask whether the increase belongs to me, as it adjoins my premises, or whether the rule of law

would be the same as it would if the island had been as long in the beginning as it is at present.

Proculus answered, if the law of alluvium applies to the river, in which you have stated an island arose opposite to the boundary of your property in such a way that it did not exceed the length of the latter, and the island in the first place was nearer to your premises than to those of him who owned land across the stream, it all becomes yours, and whatever afterwards accrued to the island by way of alluvium also becomes yours, even though the increase was such as to cause the island to extend opposite to the boundaries of your upper and lower neighbors, or even to place it nearer to the property of him owning land across the river.

(1) I also ask, if an island arises near my bank, and afterwards the entire river begins to flow between my land and the said island, after leaving its own bed where the greater portion of it had flowed, whether you have any doubt that the island continues to be mine, and whether, nevertheless, a part of the bed itself which was left by the river will become my property. I request you to write me your opinion on this point.

Proculus answered that if the island in the first place was nearer to your land, and the river, having left its principal channel, which it occupied between the island and the land of the neighbor who was on the other side of the stream, began to flow between the said island and your land, the island will continue to be your property; but the bed which was between the island and the land of the neighbor should be divided in the middle, so that the part which was nearer to your island will be understood to belong to you, and that which is nearer to the land of your neighbor will be understood to belong to him. I think that the bed of the river which dried up on the other side of the island has ceased to be an island; but In order that the matter may be better understood, in this instance, the field which was formerly an island will still be designated such.

57.. Paulus, On Plautius, Book VI.

Julianus says that nothing can be acquired through a slave donated by a husband, not even by means of the property of the wife to whom the slave was given; for this is only conceded in the case of those who are serving in good faith as slaves.

58. Javolenus, On Cassius, Book XL

Anything which is taken from the sea does not begin to be the property of him who obtains it until the owner of said property begins to consider it as abandoned.

59. CaUistratus, Questions, Book II.

Property purchased by my order does not become mine until the person who bought it has delivered it to me.

60. Scasvola, Opinions, Book I.

Titius placed a movable granary for wheat constructed of wooden boards upon the land of Seius. The question arises, who is the owner

of the granary? The answer is that, according to the facts stated, it does not become the property of Seius.

61. Hermogenianus, Epitomes of Law, Book VI.

An estate is often considered in law as an owner, and therefore anything that is acquired by a slave forming part of the same is considered to be acquired by it as his master. It is clear that, in matters in which the act or labor of a person is essential, nothing can be obtained for the estate by the agency of a slave; and therefore, although a slave belonging to the estate can be appointed an heir, still, as the personal order of his master is necessary to enable him to enter upon the same, we must wait until an heir appears.

(1) As an usufruct cannot be created without someone to enjoy it, so it cannot be acquired for an estate through the medium of a slave.

62. Paulus, Manuals, Book II.

There are certain things which cannot themselves be alienated but pass by universal custom; hence a dotal tract of land and property which is not an object of commerce pass to the heir; for although it cannot be bequeathed to him, it, nevertheless, becomes his after his appointment.

63. Tryphoninus, Disputations, Book VII.

If anyone who is under the control of another finds a treasure, it must be said with reference to the person for whom it is acquired that if the former finds it upon the land of another, he will be entitled to half of it; but if he finds it upon the land of his father or master, the whole of it will belong to the latter; (and only half, if it is discovered upon the land of someone else).

(1) If a slave owned in common finds a treasure upon the land of another, will he acquire the same in proportion to the shares of his masters, or will he always acquire it for both of them equally? This case resembles one where property which is derived from the State, or bequeathed by a legacy, or donated by strangers, is delivered to a slave, because a treasure is considered a gift of fortune; hence the part to which the finder is entitled will belong to the joint-owners in proportion to the interest which each one has in the slave.

(2) If a slave owned in common finds a treasure on the land of one of his masters, no doubt can arise with reference to the share to which the master is always entitled, as it belongs to the owner of the land alone. But, on the other hand, it should be considered whether the other joint-owner will not have a right to part of the remaining half, and whether the case is not similar to that where a slave makes a stipulation by the order of one of his masters, or receives something by delivery, or specifically, for the other. The latter may be said to be the better opinion.

(3) Where a slave in whom anyone has the usufruct finds a treasure on the land of him who has the ownership of the slave, will it all

belong to him? And if he finds it on the land of another, will he acquire half of it for his owner, or for the usufructuary? In this instance, an examination must be made to ascertain whether the usufructuary can acquire property by the labor of the slave. Suppose that the slave found a treasure by digging in the ground; then it may be said to belong to the usufructuary. If, however, he should suddenly find it concealed in some retired place, while he was doing nothing but walking about, it will belong to the owner of the property. I, however, do not think that half the treasure should belong to the usufructuary, for no one seeks for treasure with the labor of a slave, and it was not on his account that the slave was digging in the earth, but he was doing work for another purpose, and fortune gave him something else. Therefore, if he should find a treasure on the land of the usufructuary himself, I think that the latter will be entitled to only half of it, as the owner of the land, and that the other half will belong to him who has the ownership of the slave.

(4) If a creditor finds a treasure on land which has been hypothecated to him, he will be considered to have found it on the land of another. Hence, he can take half of it himself, and give the other half to the debtor; and when the borrowed money is paid, he can retain the half which he has taken from the treasure by the right of the finder, and not by the right of the creditor. This being the case, if the creditor has begun to hold the land as his own by the right of ownership, under the authority of the Emperor the claim to the pledge will be considered to exist during the time appointed for payment; but, after this time has elapsed, the debtor will be entitled to any treasure found on the land before the money has been paid.

Where, however, the amount of the debt is tendered within the time prescribed by law, the creditor must return the treasure, as everything must be restored which belongs to the land, just as in the case where it is returned by a possessor; but he will only be obliged to surrender half of it, because it is settled that the finder is always entitled to half.

64. Quintus Mucius, Scsevola, Definitions.

When anyone enters property belonging to another in his accounts for taxation, it does not by any means become his.

65. Labeo, Epitomes of Probabilities, by Paulus.

If I send a letter to you, it will not become yours until it has been delivered to you.

Paulus: I am of the opposite opinion, for if you send your secretary to me, and I send you a letter by way of answer, the letter will become yours as soon as I have delivered it to your secretary. The same thing happens in the case of a letter which I send to you merely as a favor; for instance, if you have asked me to recommend you to someone, and I send you a letter for that purpose.

(1) If an island in a river belongs to you, none of it is public property.

Paulus: The contrary is true, for in this kind of islands, the banks of a river and the shores of the sea are, to a certain extent, public property; and the rule of law is the same with reference to a field which adjoins the bank, or the shore.

(2) If an island is formed in a public stream, which is near your property, it will belong to you.

Paulus: Let us see if this is not false with reference to an island which is not contiguous to the channel of the river, but is suspended by branches, or some other light material, above the stream, so that the soil does not reach it, and the island can change its position. An island of this kind is, to a certain extent, public property, and belongs to the river itself.

(3) Paulus: If an island which is formed in the river becomes yours, and another island is afterwards formed between the first one and the opposite bank, the measure will be taken from your island, and not from your land on account of which the island became your property; for what difference does it make what the character of the land may be, on account of whose situation the ownership of the last island is claimed?

(4) Labeo, in the same Book, says that if anything is formed or built in a public place, it becomes public, and that an island which is formed in a public stream should also be considered public property.

66. Venuleius, Interdicts, Book VI.

When a pregnant woman is bequeathed, acquired by usucaption, or alienated in any other way, and brings forth a child, it will become the property of him who purchased her, and not of him to whom she belonged when she conceived.

TITLE II.

CONCERNING ACQUIRING OR LOSING POSSESSION. 1. Paulus, On the Edict, Book LIV.

Possession, as Labeo says, is derived from the term sedes, or position, because it is naturally held by him who has it; and this the Greeks designate xaT°xhv-

(1) Nerva, the son, asserts that the ownership of property originated from natural possession, and that the trace of this still remains in the case of whatever is taken on the earth, on the sea, and in the air, for it immediately belongs to those who first acquire possession of it. Likewise, spoils taken in war, and an island formed in the sea, gems, precious stones, and pearls found upon the shore, become the property of him who first obtains possession of them.

(2) We also acquire possession by ourselves.

(3) An insane person, or a ward, cannot begin to acquire possession without the authority of his curator or guardian; because, although the former may touch the property with their bodies, they have not the disposition to hold it, just as where anyone places something

in the hands of a man who is asleep. A ward can begin to obtain possession by the authority of his guardian. Ofilius, and Nerva, the son, however, say that a ward cannot begin to obtain possession without the authority of his guardian, for possession is a matter of fact, and not of law. This opinion may be accepted where the ward is of such an age as to be capable of understanding what he is doing.

(4) Where a husband gives possession to his wife for the purpose of making her a donation, several authorities hold that she is in actual possession, as a question of fact cannot be annulled by the Civil Law. And, indeed, what use would it be to say that the wife is not in possession, as the husband immediately lost it when he no longer desired to retain it ?

(5) We also acquire possession by means of a slave or a son who is under our control; and this is the case with property constituting his peculium, even if we are ignorant of the fact, as was held by Sabinus.

Cassius and Julianus: because those whom we have permitted to have 'peculium are understood to be in possession with our consent. Therefore, an infant and an insane person can obtain possession of property forming peculium, and can acquire it by usucaption; an heir also can do this, where a slave belonging to the estate makes a purchase.

(6) We can also acquire possession through anyone whom we possess in good faith as a slave, even though he belongs to another, or is free. If, however, we have possession of him fraudulently, I do not think that we can acquire possession through his agency. He who is in possession of another can neither acquire property for his master nor for himself.

(7) When we are joint-owners of a slave, we can individually acquire property through him to the full amount, as if he were one of our own slaves, if he intends to make the acquisition for one of his masters; just as is the case of acquiring ownership.

(8) We can obtain possession through a slave in whom we have the usufruct in the same way that he is accustomed to acquire property for us by means of his labor; nor does it make any difference if we do not actually possess him, for the same rule applies to a son.

(9) Moreover, he through whom we desire to obtain possession should be such a person as to be able to understand what possession

means.

(10) Therefore, if you send a slave, who is insane, to take possession, you will by no means be considered to have acquired it.

(11) If you send a boy under the age of puberty to take possession, you will begin to do so; just as a ward acquires possession, and especially by the authority of his guardian.

(12) There is no doubt that you can obtain possession by means of a female slave.

(13) A ward can acquire possession by means of a slave, whether the latter has arrived at the age of puberty, or not, if he directs him to take possession with the authority of his guardian.

(14) Nerva, the son, says that we cannot acquire possession by means of one of our slaves who is a fugitive, although it has been held that ,he remains in our possession as long as he is not in that of another ; and therefore that, in the meantime, property can be acquired by him through usucaption. This opinion, however, is adopted on account of public convenience, so that usucaption may take place as long as no one has obtained possession of the slave. It is the opinion of Cassius and Julianus that possession may be acquired by such a slave, as well as by those whom we have in a province.

(15) Julianus says that we cannot acquire possession by means of a slave who has been actually given in pledge, for he is held to be possessed by the debtor in one respect, that is to say, for the purpose of usucaption. Nor can the slave who is pledged acquire property for the creditor, because although the latter may have possession of him, he cannot acquire property through him by means of a stipulation, or in any other way.

(16) The ancients thought that we could acquire anything by means of a slave belonging to an estate, because he was part of the said estate. Hence, a discussion arose whether this rule should not be extended farther so that where some slaves were bequeathed, the others could be possessed by the act of one of them. It was also discussed whether this would be the case if they were all purchased or donated together.

The better opinion is that I cannot, under such circumstances, acquire possession by the act of one of them.

(17) If a slave is partially bequeathed to an appointed heir, he can acquire possession of the land of the estate for him, in proportion to his share in the said slave, by virtue of the legacy.

(18) The same rule will apply if I order a slave owned in common to accept an estate, because I obtain possession of my share of it on account of my interest in him.

(19) What we have stated with reference to slaves also applies where they themselves desire to acquire possession for us; for if you order your slave to take possession, and he does so with the intention of acquiring the property not for you, but for Titius, possession is not acquired for you.

(20) Possession is acquired by us by means of an agent, a guardian, or a curator. But when they take possession in their own names, and not with the intention of merely rendering their services, they cannot acquire possession for us.

On the other hand, if we say that those who obtain possession in our name do not acquire it for us, the result will be that neither he to whom the property was delivered will obtain possession, because he did not have the intention of doing so, nor will he who delivered the article retain it, as he has relinquished possession of the same.

(21) If I order a vendor to deliver the property to my agent, while it is in our presence, Priscus says that it will be held to have been delivered to me.

The same rule will apply if I order my debtor to pay to another the sum which is due to me, for it is not necessary to take possession bodily and actually, but this can be done merely by the eyes and the intention. The proof of this appears in the case of property which, on account of its weight, cannot be moved, as columns, for instance; for they are considered to have been delivered if the parties consent, with the columns before them; and wines are held to have been delivered when the keys of the wine-cellar have been handed to the purchaser.

(22) Municipalities cannot possess anything by themselves, because all the citizens cannot consent. They do not possess the forums, and the temples, and other things of this kind, but they make use of them promiscuously. Nerva, the son, says that they can acquire, possess, and obtain by usucaption, the peculium of their slaves; others, however, hold the contrary; as they do not have possession of the slaves themselves.

2. Ulpianus, On the Edict, Book LXX.

The present rule is that municipalities can both hold possession and acquire by usucaption, and that this can be done through a slave, or a person who is free.

3. Paulus, On the Edict, Book LXX.

Moreover, only corporeal property can be possessed.

(1) We obtain possession by means of both the body and the mind, and not by these separately. When, however, we say that we obtain possession by the body and the mind, this should not be understood to mean that where anyone desires to take possession of land he must walk around every field, as it will be sufficient for him to enter upon any part of the land, as long as it is his intention to take possession of it all, as far as its boundaries extend.

(2) No one can obtain possession of property which is uncertain; as, for instance, if you have the intention and desire to possess everything that Titius has.

(3) Neratius and Proculus think that we cannot acquire possession solely by intention, if natural possession does not come first. Therefore, if I know that there is a treasure on my land, I immediately possess it, as soon as I have the intention of doing so; because the intention supplies what is lacking in natural possession.

Again, the opinion of Brutus and Manilius, who hold that anyone who has had possession of land for a long time has also had possession of any treasure to be found there, even though he was ignorant of its existence, is not correct. For he who does not know that there is any treasure there does not possess it, although he may have possession of the land; and, if he was aware of its presence, he cannot acquire it by long possession, because he knows that it is the property of someone else.

Several authorities hold that the opinion of Sabinus is the better one; namely, that he who knows that there is a treasure on his land

does not gain possession of it unless it has been removed from its place, because it is not in our custody. I concur in this opinion.

(4) We can hold possession of the same thing by several different titles; for example, certain authorities think that he who obtains property by usucaption does so not only as a purchaser, but as the owner. For if I am the heir of him who has possession as a purchaser I possess the same property, but as purchaser and as heir; for while ownership can only be established by a single title, this is not the case with possession.

(5) On the other hand, several persons cannot have possession of the same thing without division; for, indeed, it is contrary to nature that while I hold something you should also be considered to hold it. Sabinus, however, says that he who gives property held by a precarious title possesses it himself, as well as he who received it with the risk. Trebatius, also, approves this opinion, for he thinks that one person can have possession justly, and another unjustly, but that both of them cannot possess it either unjustly or justly.

Labeo contradicts him, since, in the case of complete possession, it does not make much difference whether anyone has possession justly or unjustly. This is correct, for the same possession cannot be held by two persons, any more than you can be considered to stand on the very place on which I am standing, or to sit exactly where I am seated.

(6) When possession is lost, the intention of the party in possession must be considered. Therefore, although you may be on a tract of land, still, if you do not intend to retain it, you will immediately lose possession. Hence, possession can be lost by the intention alone, although it cannot be acquired in this way.

(7) If, however, you have possession solely by intention, even though another may be on the land, you will still have possession of the same.

(8) If anyone should give notice that a house is invaded-by robbers, and the owner, being overcome with fear, is unwilling to approach it, it is established that he loses possession of the house. But if a slave or a tenant, through whose agency I actually possess property, should either die, or depart, I will retain possession by intention.

(9) If I deliver an article to another, I lose possession of the same; for it has been decided that we hold possession until we voluntarily relinquish it, or are deprived of it by force.

(10) If a slave, of whom I am in possession, asserts that he is free, as Spartacus did, and is ready to maintain his.freedom in court, he will not be considered to be in possession of the master whom he is preparing to oppose. This, however, is only correct when he has remained for a long time at liberty; otherwise, if, from his condition as a slave, he demands his freedom, and petitions for a judicial decision on this point, he, nevertheless, remains under my control, and I hold possession of him by intention, until he has been pronounced to be free.

(11) We possess by intention the places to which we resort in summer and in winter, although we leave them at certain times.

(12) Moreover, we can have possession by intention, and also corporeally, by means of another, as we have stated in the case of a tenant and a slave. The fact that we possess certain property without being aware of it (as is the case where slaves obtain peculium), should not present any difficulty, for we are held to possess it by both the intention and the actual agency of the slaves.

(13) Nerva, the son, thinks that we can possess movable property, with the exception of slaves, as long as it remains in our charge; that is to say, as long as we can obtain natural possession of it, if we wished to do so. For if a flock should be lost, or a vase should fall in such a way that it cannot be found, it immediately ceases to be in our possession, although no one else can obtain possession of it; but the case is different where anything cannot be found which is in my charge, because it still remains in the neighborhood, and diligent search will discover it.

(14) Likewise, wild animals which we shut up in enclosures, and fish which we throw into ponds, are in our possession. But fish which are in a lake, or wild animals that wander in woods enclosed by hedges, are not in our possession, as they are left to their natural freedom; for otherwise, if anyone purchased the woods, he would be considered to have possession of all the animals therein, which is false.

(15) Moreover, we have possession of birds which we have shut up or tamed, and subjected to our control.

(16) Certain authorities very properly hold that pigeons, which fly away from our buildings, as well as bees which leave our hives, and have the habit of returning, are possessed by us.

(17) Labeo and Nerva, the son, have given it as their opinion that I cease to possess any place which a river or the sea has overflowed.

(18) If you appropriate any property which has been deposited with you, with the intention of stealing it, I cease to have possession of the same. If, however, you do not move it from its place, and have the intention of denying that it was deposited with you, several ancient authorities, and among them Sabinus and Cassius, very properly hold that I still retain possession, for the reason that a theft cannot be committed without handling the article, nor can theft be committed by mere intention.

(19) The rule that no one can himself change his title to the possession of property has been established by the ancient authorities.

(20) If, however, he who deposited an article with me, or lent it to me, should sell or give me the same thing, I will not be considered to have changed the title by which I hold possession, since I did not have possession.

(21) There are as many kinds of possession as there are ways of acquiring property which does not belong to us; as, for example, by purchase, by donation, by legacy, by dowry, as an heir, by surrender as reparation for damage committed, by occupancy, as in the case where we obtain property from the land or the sea, or from the enemy,

or which we ourselves create. And, in conclusion, there is but one genus of possession, but the species are infinite in number.

(22) Possession may be divided into two kinds, for it is acquired either in good, or in bad faith. The opinion of Quintus Mucius, who included among the different kinds of possession that given by order of a magistrate, for the purpose of preserving the property, or where we obtain possession because security against threatened injury is not furnished, is perfectly ridiculous. For where anyone places a creditor in possession for the purpose of preserving property, or where this is done because security has not been furnished against threatened injury, or in the name of an unborn child, he does not really grant possession, but merely the custody and supervision of the property. Hence, when a neighbor does not give security against threatened injury, and we are placed in charge, and this condition continues for a long time, the Praetor, upon proper cause being shown, will permit us to obtain actual possession of the property.

4. Ulpianus, On the Edict, Book LXVII.

A father immediately possesses whatever his son acquires as a part of his peculium, although he may not be aware that he is under his control. Moreover, the same rule should be adopted even if the son is in possession of another as a slave.

5. Paulus, On the Edict, Book LXIII.

If I owe you Stichus under the terms of a stipulation, and I do not deliver him, and you obtain possession of him in some other way, you are a depredator. Likewise, if I should sell you any property and do not deliver it, and you obtain possession of the same without my consent, you will not do so as a purchaser, but as a depredator.

6. Ulpianus, On the Edict, Book LXX.

We say that he holds anything clandestinely who takes possession of it by stealth, suspecting that the other party, not knowing what he has done, may raise a controversy, and fearing that he will contend his right. He, however, who does not take possession secretly, but conceals himself, is in such a position that he is not considered to have clandestine possession. For not the manner in which he acquired possession, but the beginning of his acquiring it, should be taken into account, nor does anyone begin to acquire possession clandestinely who does so in good faith, with the knowledge or consent of him to whom the property belongs, or for any other good reason. Hence Pomponius says that he obtains clandestine possession who, fearing that some future controversy may arise, and the person of whom he is apprehensive being ignorant of the fact, takes possession by stealth.

(1) Labeo says that where a man goes to a market, leaving no one at home, and on his return from the market finds that someone has taken possession of his house, the latter is held to have obtained clandestine possession. Therefore, he who went to the market still retains possession, but if the trespasser should not admit the owner on his

return, he will be considered to be in possession rather by force than clandestinely.

7. Paulus, On the Edict, Book LIV.

If the owner is unwilling to return to the land because he fears the exertion of superior force, he will be considered to have lost possession. This was also stated by Neratius.

8. The Same, On the Edict, Book LXV.

As possession cannot be acquired except by intention and a corporeal act, so in like manner, it cannot be lost, except in a case where the opposite of both of these things takes place.

9. Gaius, On the Edict, Book XXV.

Generally speaking, we are considered to have possession when • anyone as an agent, a host, or a friend, holds it in our name.

10. Ulpianus, On the Edict, Book LXIX.

Where anyone leases property, and afterwards claims it by a precarious title, he is considered to have abandoned his lease. If he claims it at first by a precarious title, and afterwards leases it, he is considered to hold possession under the lease; for whatever is done last should rather be taken into consideration. Pomponius, also, is of this opinion.

(1) Pomponius discusses a very nice question; namely, whether a man who leases land, but claims it by a precarious title, does so, not for the purpose of possessing it, but merely to remain in possession; for there is a great difference, as it is one thing to possess, but quite another to be in possession. Persons placed in possession for the purpose of preserving the property, as legatees or neighbors, on account of threatened injury, do not possess the property but are in possession of the same for the purpose of caring for it. When this is done both of the above ways are merged into one.

(2) Where anyone leases land, and asks to be placed in possession by a precarious title, if he leased it for one sesterce there is no doubt that he holds it at will, as a lease for only that sum is void. If, however, he leases it for a fair rent, it must then be ascertained what was done first.

11. Paulus, On the Edict, Book LXV.

He possesses justly who does so by the authority of the Praetor.

12. Ulpianus, On the Edict, Book LXX.

He who has the usufruct of property is held to possess it naturally.

(1) Ownership has nothing in common with possession, and therefore an interdict Uti possidetis is not refused to one who has begun proceedings to recover the property, for he who does so is not held to have relinquished possession.

13. The Same, On the Edict, Book LXXII.

Pomponius relates that stones were sunk in the Tiber by a shipwreck and were afterwards recovered; and he asks whether the ownership remained unchanged during the time that they were in the river. I think that the ownership, but not the possession, was retained. This instance is not similar to that of a fugitive slave, for the slave is considered to be possessed by us, in order to prevent him from depriving us of possession; but the case of the stones is different.

(1) Where anyone makes use of the agency of another, he should do so with the liabilities and defects attaching to it. Hence, with reference to the time during which the vendor has had possession of the property, we also take into consideration the questions of violence, secrecy, and precarious title.

(2) Moreover, where anyone returns a slave to the vendor, the question arises whether the latter can profit by the time that the slave was in possession of the purchaser. Some authorities think that he cannot, for the reason that the return of the slave annuls the sale; others hold that the purchaser can profit by the time of possession by the vendor, and the vendor by that of the purchaser. This opinion, I think, should be adopted.

(3) If a freeman, or a slave belonging to another who is serving in good faith, purchases property, and a third party acquires possession of the same, neither the alleged slave, when he becomes free, nor the real owner can profit by the time that the property has been in the hands of a bona fide possessor.

(4) Where an heir did not possess in the first place, the question arose whether he cah profit by the possession of the testator. And, indeed, possession is interrupted between the parties to the sale, but many authorities do not hold the same opinion with reference to heirs, as the right of succession is much more extensive than that of purchase. It is, however, more in accordance with a liberal interpretation of law that the same rule should be adopted concerning heirs which applies to purchasers.

(5) Not only does the possession of the testator, which he had at the time of his death, benefit the heir, but also that which he had at any time whatsoever has this effect.

(6) With reference to dowry also, if property has been either given or received as such, the time of possession will profit either the husband or the wife, as the case may be.

(7) Where anyone has transferred property by a precarious title, the question arises whether he can profit by the time during which it was in possession of the person to whom it was transferred. I think that he who transfers it by a precarious title cannot profit by the time of possession, as long as the title continues to be precarious; but if he again acquires possession, and the precarious title is extinguished, he can profit by the possession during the time when the property was held by a precarious title.

(8) In a certain case, it was asked if a manumitted slave has possession of property forming part of his peculium (his peculium not

having been given to him) and his master desires to profit by the time it was held by the freedman, 'possession of the property having been surrendered, whether he can do so. It was decided that he should not be granted the benefit of the time of possession, because his conduct was clandestine and dishonest.

(9) Where property has been restored to me by order of court, it has been decided that I am entitled to the benefit of the time during which it was held by my opponent.

(10) It must, however, be remembered that a legatee is entitled to the benefit of the time when the property was in the hands of the testator. But let us see whether he will be benefited by the time that the property was in the possession of the heir. I think that, whether the legacy was bequeathed absolutely or conditionally, it should be held that the legatee can profit by the time that it was in the possession of the heir, before the condition was fulfilled, or the property , delivered. The time that it was in the possession of the testator will always profit the legatee, if the legacy or the trust is genuine.

(11) Moreover, he to whom property is donated has a right to profit by the time it was possessed by the person who made the donation.

(12) Times of possession are applicable to those who themselves have possession of what is their own; but no one will be entitled to this privilege unless he himself has been in possession.

(13) Again, time of occupancy will be of no advantage where the possession is defective; possession, however, which is not defective, causes no injury.

14. Paulus, On the Edict, Book LXVIII.

If my slave, or my son who is under my control, should make a sale, the benefit of the time that he was in my power will be granted; that is, provided he acted with my consent, or had the free administration of his peculium.

(1) Where anything is sold by a guardian or a curator, the purchaser will be entitled to the benefit of the time during which the ward or the insane person possessed the property.

15. Gaius, On the Provincial Edict, Book XXVI.

We are understood to cease to possess property which has been stolen from us, just as if we had been deprived of it by force. But if someone who is under our control should steal anything from us, we will not lose possession of it, as long as it remains in his hands; for the reason that possession is acquired for us by means of persons of this kind. This is why we are considered to possess a fugitive slave; for, as we cannot be deprived of the possession of other things which he has, so, in like manner, we cannot be deprived of him.

16. Ulpianus, On the Edict, Book XXXVII.

Anything which a wife gives to her husband, or a husband to his wife, is held by him or her as its possessor.

17. The Same, On the Edict, Book LXXVI.

If anyone is forcibly dispossessed he should be considered to have remained in possession, as he has the power to recover it by means of an interdict on the ground of violence.

(1) The difference between ownership and possession is that ownership continues to exist, even against the wishes of the owner; but possession is lost as soon as anyone decides that he is unwilling to keep it. Therefore, if a man delivers possession with the intention that the property shall afterwards be returned to him, he ceases to possess it.

18. Celsus, Digest, Book XXIII.

What I possess in my own name I can possess in that of another. For I do not change the title to my possession when I hold it through another, but I cease to possess the property, and I render him possessor by my own act. It is not the same thing to possess personally and to possess in the name of another; for he possesses in whose name possession is held. A representative lends his agency to the possession of another.

(1) If you deliver property to an insane person whom you think is in the enjoyment of his faculties, for the reason that, while in your presence he appeared to be quiet, and have his mind unclouded, although he will not obtain possession, you will "lose it. For it is sufficient to have relinquished possession, even if you did not legally transfer it, as it would be absurd to say that anyone did not intend to relinquish it unless he legally transferred it; and, indeed, it is because he thinks he transferred it that he manifests his intention to give possession.

(2) If I order the vendor, of whom I have made a purchase, to deliver the article at my house, it is certain that I possess the property, even if no one has yet touched it. Or, if the vendor should show me from my tower a neighboring tract of land of which he says that he delivers me the possession, I begin to possess the said land, and just as if I had placed my foot within the boundaries of the same.

(3) If, when I am on one side of my land, some other person enters upon the opposite side, with the intention of clandestinely obtaining possession, I am not considered to have immediately lost possession, as I can easily eject him from the premises, as soon as I am informed of his act.

(4) Again, if an army enters upon land with great violence, it will only gain possession of that portion which it occupied.

19. Marcellus, Digest, Book XVII.

A man who purchased a tract of land from another in good faith afterwards leased the same land from the owner. I ask whether he ceased to possess it or not. I answered that he immediately ceased to do so.

(1) When it is stated by the ancients that no one could himself change the title of his possession, it is probable that they had in mind

one who, being in possession of property bodily, as well as by intention, determined to possess it under some other title; and not one who, having relinquished possession under his first title, desired to obtain possession a second time, under another.

20. The Same, Digest, Book XIX.

Where anyone who has lent an article to be used, sells it, and directs it to be delivered to the purchaser, and the borrower does not deliver it; in some instances the owner will be held to have lost possession, and in others he will not. For the owner will only lose possession when the article which has been lent is not returned when he demands it. But what if there was a just and reasonable cause for returning it, and not merely that the borrower desired to retain possession of the property?

21. Javolenus, On Cassius, Book VII.

We can sometimes deliver to another the possession of property which we ourselves do not hold; as, for instance, when he who possesses an article as heir, and, before becoming the owner of the same, claims it under a precarious title from the real heir.

(1) Property which has been thrown overboard in a shipwreck cannot be acquired by usucaption, since it has not been abandoned, but merely lost.

(2) I think that the same rule of law applies to property which has been thrown into the sea to lighten the ship, as that cannot be considered as abandoned which has been temporarily relinquished on account of safety.

(3) When anyone claims the property of another by a precarious title, and leases it from him, possession of the same will revert to the owner.

22. The Same, On Cassius, Book XIII.

He who obtains possession in such a way that he cannot retain it is not considered to have acquired it at all.

23. The Same, Epistles, Book I.

When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally.

(1) So far as those who fall into the hands of the enemy are concerned, the law relating to their retention of the rights of property is a peculiar one, for they lose corporeal possession of the same, nor can they be held to possess anything when they themselves are possessed by others; therefore it follows that, when they return, a new acquisition of possession is required, even if no one had possession of their property in the meantime.

(2) I also ask, if I chain a freeman in order to possess him, whether I possess through him everything which he possesses. The answer

is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power.

24. The Same, Epistles, Book XIV.

Anything that your slave obtains possession of by violence, without your knowledge, you do not possess, because he who is under your control cannot acquire corporeal possession if you are not aware of it; but he can acquire legal possession, as, for instance, he possesses what comes into his hands as part of his peculium. For when a master is said to possess by his slave, there is an excellent reason for this, because what is held by the slave actually, and for a good reason belongs to his peculium, and the peculium which a slave cannot possess as a citizen, but holds naturally, his master is considered to possess. Anything, however, which the slave acquires by illegal acts, is not possessed by the master, because it is not included in the peculium of the slave.

25. Pomponius, On Quintus Mucius, Book XXV.

We cease to possess anything -which has been in our possession, and which has been so completely lost that we do not know where it is.

(1) We possess through the medium of our farmers, our tenants, and our slaves. If they die, become insane, or are hired by others, we are understood to still retain possession of them. There is no difference whatever, in this respect, between our tenant and our slave by whose agency we retain possession of property.

(2) When we only possess property by intention, the question arises whether we continue to do so until another actually enters upon it, so that his actual possession becomes preferable; or, indeed (and this is the better opinion) whether we possess the same until, upon our return, someone prevents us from entering; or whether we cease to possess by intention, because we suspect that we will be driven away by the person who has taken possession. This seems to be the more reasonable opinion.

26. The Same, On Quintus Mucius, Book XXVI.

A definite portion of a tract of land can be possessed and acquired by long possession, and also a certain portion which is. undivided and which is obtained by purchase, by donation, or by any other title whatsoever, can also be acquired in this manner. A portion, however, which is not specifically designated can neither be delivered nor received; as, for instance, if I transfer to you "all of such-and-such a tract of land that I am entitled to;" for anyone who is ignorant of the facts can neither transfer nor receive something which is uncertain.

27. Paulus, Epistles, Book V.

If a person who has become insane retains possession of a forest, he does not lose possession of it as long as he remains in that condition, because a lunatic cannot lose the intention of possessing.

28. Tertullianus, Questions, Book I.

If I possess property, and afterwards lease it, do I lose possession? It makes a great deal of difference as to what the intention of the testator was in this case. First, it is important to ascertain whether I know that I am in possession, or am ignorant of the fact; and whether I lease the property as my own, or as belonging to someone else, and, knowing it to be mine, whether I lease it with reference to the ownership, or merely to obtain possession. For if you are in possession of my property, and I purchase the possession of the same from you, or enter into a stipulation with reference thereto, both the purchase • and the stipulation will be valid; and the result is that there will be both a precarious title and a lease, if there was an express intention of only leasing possession, or an intention of claiming it by a precarious title.

29. Ulpianus, On Sabinus, Book XXX.

It has been decided that a ward can lose possession without the authority of his guardian, but he does not cease to possess the property by intention, as he does by the performance of a corporeal act, for he can lose what depends upon an act.

The case is different where he desires to lose possession by intention, for he cannot do so.

30. Paulus, On Sabinus, Book XV.

When anyone possesses an entire house, he is not considered to possess the different articles which are contained in the building.

(1) We lose possession in several ways; as, for instance, if we bury a dead body in a place which we possess, for we cannot possess a place which is religious or sacred, even if we despise religion, and continue to hold it as 'private property.

The same rule applies to a freeman who is held as a slave.

(2) Labeo says that the owner of a building loses possession against his will when the Praetor orders possession of it to be taken, where security against threatened injury is not furnished.

(3) Likewise, we do not cease to possess land which is occupied by the sea, or by a river, or if anyone who has possession of property comes under the control of another.

(4) Again, we cease to possess property which is movable, in several ways, as where we are unwilling to possess it, or where for example, we manumit a slave. Moreover, if I possess something and its form is changed, as, for instance, a garment is made out of wool, the same rule will apply.

(5) Anything that I possess by a tenant, my heir cannot possess, unless he actually obtains possession of it, for we can retain, but we

cannot acquire possession by intention alone. What I possess as a purchaser, however, my heir can obtain by usucaption through the agency of a tenant.

(6) If I lend you anything, and you lend it to Titius, and he thinks that it is yours, I will still continue to possess it. The same rule will apply if my tenant sublets my land, or he with whom I have deposited property should again deposit with another; and the same rule must be observed, even if this is done by several persons.

31. Pomponius, On Sabinus, Book XXXII.

If a tenant leaves the land without the intention of relinquishing possession, and returns, it is held that the same lessor holds possession.

32. Paulus, On Sabinus, Book XV.

Although a ward is not bound without the authority of his guardian, we can still retain possession by him.

(1) If a lessee sells the property, leases it from the purchaser, and pays rent to both lessors, the first one who rented it legally retains possession through the lessee.

(2) An infant can lawfully possess anything if he obtains it with the consent of his guardian, for the want of judgment of the infant is supplied by the authority of the 'guardian. This opinion has been adopted on account of its convenience, for otherwise, an infant who receives possession of property would not know what he was doing. A ward can, nevertheless, obtain possession without the authority of his guardian, and an infant can possess peculium through the medium of a slave.

33. Pomponius, On Sabinus, Book XXXII.

Even if the vendor of a tract of land should direct someone to place a purchaser in full possession of the same, the purchaser himself cannot legally acquire possession before this is done. Likewise, if a friend of the vendor, not being aware that the latter is dead, should place the purchaser in possession without being prevented from doing so by the heirs, possession will legally be delivered. But if he did this, knowing that the owner was dead, or if he was aware that the heirs were unwilling that it should be done, the contrary rule will apply.

34. Ulpianus, Disputations, Book VII.

If you place me' in full possession of the Cornelian Estate, and I think that I am placed in possession of the Sempronian estate, but enter upon the Cornelian estate, I do not acquire possession unless we are only mistaken in the name, and agree with reference to the property. Since, however, we agree with reference to the property, a doubt may arise whether you do not lose possession; because Celsus and Marcellus say that we can lose and change possession merely by intention. And if possession can be acquired by intention, can it also

be acquired in this instance? I do not think that a person who is mistaken can acquire it. Therefore, he who only relinquishes possession, as it were conditionally, does not lose it.

(1) If, however, you deliver possession, not to me but to my agent, it should be considered whether possession will be acquired by me if I make a mistake, but my agent does not. As it is held that it can be acquired by a person who is ignorant of the facts, it can also be acquired by one who is mistaken. But if my agent is mistaken, and I am not, the better opinion is that I will acquire possession.

(2) My slave also acquires possession for me without my knowledge. For even a slave belonging to another, as Vitellius says, can acquire possession for me, if he takes the property in my name, whether he is possessed by me or by no one at all. This also should be admitted.

35. The Same, On All Tribunals, Book V.

A controversy for possession is terminated as soon as the judge decides which party is in possession. This is done in such a way that he who loses possession can take the position of plaintiff, and then bring an action against the owner.

36. Julianus, Digest, Book XIII.

He who transfers a tract of land to a creditor, by way of pledge, is understood to retain possession of the same. But even if he should claim it by a precarious title, he can also acquire a good one by lapse of time; for, as possession by the creditor does not interfere with prescription, there is less reason that the claim of the debtor under a precarious title should present no obstacle, since he has much better right who claims property by a precarious title and is in possession, than he who has no possession at all.

37. Marcianus, On the Hypothecary Formula.

When land is given in pledge, and possession is delivered, and the property has then been leased by the creditor, and it is agreed that he who encumbered it shall be considered as a tenant in the country, and as a lessee in the city, the creditor is considered to possess the property through the debtor who has leased it.

38. Julianus, Digest, Book XLIV.

A master who writes to his absent slave to remain at liberty has not the intention of immediately relinquishing possession of the slave; but his intention is rather deferred until the time when the slave will be informed of the fact.

(1) When anyone delivers possession of land in such a way that he does not intend it to be given us, unless the land belongs to him, he is not considered to have delivered possession if the land is the property of another.

It should, moreover, be understood that possession can be delivered conditionally, just as property is transferred under a condition

and does not pass to the person who receives it unless the condition is complied with.

(2) Where a man who sold a slave to Titius delivers him to his heir, the latter can obtain possession of the estate by means of the slave; not for the reason that the slave came into his hands from the estate, but because he is entitled to an action on purchase. For if a slave is due to a testator in accordance with the terms of a stipulation, or of a will, and the heir receives him, he will not be forbidden to obtain possession of the property of the estate by means of the slave.

39. The Same, On Minicius, Book II.

I think that it makes a difference with what intention property is deposited in the hands of an arbiter; for if this is done for the purpose of relinquishing possession, and is clearly proved, the possession of the arbiter will be of no benefit to the parties for the purpose of usucaption. If, however, the property was deposited for safe-keeping, it is settled that he who gains the case can profit by the possession, in order to acquire the property by prescription.

40. Africanus, Questions, Book VII.

If your slave ejects you from' land, which I gave you in pledge while it was in my possession, it is held that you continue to be in possession of the same, as you still retain possession by this same slave.

(1) If the tenant by whom the owner holds possession should die, it has been decided for the sake of public convenience that possession is retained and continued through the agency of the tenant. It should not be held that possession is immediately interrupted by the death of the latter, for this is not the case unless the owner neglects to take possession. A different opinion must be held, if the tenant voluntarily relinquishes possession. This, however, is only true where a stranger has not, in the meantime, been in possession, but it always remains as part of the estate of the tenant.

(2) I purchased your slave from Titius in good faith, and possessed him after he had been delivered, and then when I ascertained that he was yours, I concealed him, to prevent you from claiming him. It is held that, on his account, I should not be considered to have possessed him clandestinely during this time. For, on the other hand, if I should knowingly purchase your slave from someone who is not his owner, and should then retain clandestine possession of him, even after I notified you, I would not, for that reason, cease to have clandestine possession of the slave.

(3) If I clandestinely remove my own slave from a bona fide purchaser, it has been decided that I ought not to be considered to have clandestine possession of him, because the owner does not hold him under a precarious title, nor under a lease of his own property; and there are no other methods of acquiring clandestine possession.

41. Paulus, Institutes, Book I.

Anyone who enters upon a tract of land as a friend, by the right of familiarity, is not considered to possess it, because he did not enter upon it with the intention of doing so, although he may have actual possession of the land.

42. Ulpianus, Rules, Book IV.

Where a slave owned in common is possessed by one of the joint-owners in the name of all, he is understood to be possessed by all.

(1) Where an agent purchases property by the direction of his principal, he immediately acquires possession of it for him. This is not true if he purchases it on his own responsibility, unless his principal ratifies the sale.

43. Marcianus, Rules, Book HI.

Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting.

(1) Pomponius, also, in the Fifth Book of Various Passages, says that if the purchaser knows, or thinks that the usufruct of the property belongs to another, he can still obtain the latter by long-continued possession.

(2) The same rule applies, as he says, if I purchase property which I know has been pledged.

44. Papinianus, Questions, Book XXIII.

Where a man, about to start upon a long journey, buried his money in the ground for safe-keeping, and, having returned, could not remember the place where the treasure was concealed, the question arose whether he had ceased to possess it, or if, afterwards, he should find the place, whether he would immediately begin to acquire possession. I gave it as my opinion that, as the money was not said to have been hidden for any other purpose than safe-keeping, he who concealed it should not be considered to have been deprived of the right of possession; nor did the failure of his memory prejudice that right, as no one else had appropriated the money.

On the other hand, it might be held that we lose possession of our slaves during the time when we no longer see them. Nor does it make any difference whether I hide the money on my own premises, or on those of another; for if anyone should hide his property on my premises, I would not obtain possession of it unless I did so where it was above ground. Hence, the fact that the land belongs to another does not deprive me of my own possession, as there is no difference whether I have possession above, or under ground.

(1) The question arises why the possession of property belonging to his peculium is acquired by a slave for his master, without the knowledge of the latter. I said that this rule had been adopted on the ground of public convenience, to prevent masters from inquiring constantly about property belonging to the peculium of their slaves, and the reason why it was found there; so that, in this instance, it could not be held that possession was acquired by intention alone. For if any property is obtained which does not form part of the peculium, the knowledge of the master is necessary, but possession is acquired by the mere act of the slave.

(2) These matters having been explained, the question of losing possession comes up for discussion; and I hold that it makes a great deal of difference whether we hold possession by ourselves or through the agency of others. For, so far as the possession which we hold by our own act is concerned, it can be lost either by intention, or by our act, provided we relinquish it with the expectation of no longer holding it; but possession to property which is acquired by the act of a slave or a tenant is not lost, unless another has appropriated the property; and this can also occur even without our knowledge.

There is still another distinction applicable to loss of possession, for the possession of winter and summer resorts is retained by mere intention,

45. The Same, Definitions, Book II.

Although we do not leave a slave or a tenant there when we depart.

46. The Same, Questions, Book XXIII.

Even if another may have been entered upon property with the intention of taking possession of the same, the former possessor is held to retain possession, as long as he is ignorant that it has been taken by another. For, as the bond of an obligation is released in the same way that it has been made, so, where possession is held by intention alone, it should not be taken away without anyone's knowledge.

47. The Same, Questions, Book XXVI.

If you decide not to return movable property which has been deposited with you, or of which you have been given possession as- a loan, it has been held that the other party will lose possession immediately, even if he is not aware of your intention. The reason for this is, that where the care of movable property is neglected, or abandoned, even though no one else appropriates it, the former possession is usually prejudiced. This was stated by Nerva, the son, in his Books on Usucaption.

He also says that the case is different, if proper care was not used, where a slave had been lent; for possession of him only will continue as long as no one else seizes him, that is to say, because a slave can retain possession for his master if he has the intention of returning

to him; and we can likewise obtain possession of other property by his agency. Therefore, possession of such objects as are destitute of reason, or life, is immediately lost, but that of slaves is retained, if they have the intention of returning.

48. The Same, Opinions, Book X.

A certain man donated a tract of land together with slaves attached to the same, and stated in a letter that he delivered possession of the property. If one of the slaves, who was donated, should come into the hands of him who received the house, and be afterwards sent back to the land, it has been decided that possession of the land and of the other slaves has been acquired by means of those above mentioned.

49. The Same, Definitions, Book II.

Possession can be acquired by me through a slave in whom I have the usufruct if this is done by means of my property, or the services of the slave; because the latter is naturally held by the usufructuary, and possession borrows many things from the law.

(1) Those who are under the control of others can hold property belonging to their peculium, but they cannot possess it; for the reason that possession is not only a matter of fact, but is also one of law.

(2) Although possession through an agent can be acquired by a principal without his knowledge, usucaption can only benefit one who knows that possession has been taken; still, an action for eviction is not granted to the principal against the vendor without the consent of the agent, but he can be compelled to grant it by an action on mandate.

50. Hermogenianus, Epitomes of Law, Book V.

Neither possession nor ownership, nor anything else whatsoever, can be acquired through the use of my property by one whom I have been induced to erroneously consider my son under my control.

(1) Possession can be acquired for us by a runaway slave, if he has not been taken possession of by another, and does not think that he is free.

51. Javolenus, On the Last Works of Labeo, Book V.

Labeo says that we can acquire possession of certain things by intention; as, for instance, if I purchase a pile of wood, and the vendor directs me to remove it, it will be considered to have been transferred to me, as soon as I place a guard over it. The same rule applies to a sale of wine where all the jars are together.

But, he says, let us see whether this is an actual delivery, because it makes no difference whether I order the custody of the property to be delivered to me, or to someone else. I think that the question in this case is, that even if the pile of wood or the jars have not been actually handled, they should, nevertheless, be considered to have been delivered. I do not see that it makes any difference whether I, myself,

take charge of the pile of wood, or someone else does so by my direction. In both instances, whether or not possession was obtained must be determined by the character of the intention.

52. Venuleius, Interdicts, Book I.

The titles to the possession and usufruct of property must not be confused, just as possession and ownership should not be intermingled. For possession is prevented if another has the use and enjoyment, nor can the usufruct of one person be computed if another is in possession of the property.

(1) It is clear that when anyone is forbidden to build, he is also forbidden to retain possession.

(2) One method of placing a person in possession of property is to prohibit any violence being manifested toward him when he enters upon it. For the judge orders the adverse party immediately to surrender and relinquish possession, which is much more decisive than to order him merely to restore it.

53. The Same, Interdicts, Book V.

Possession which is defective is usually only advantageous as against strangers.

TITLE III.

CONCERNING THE INTERRUPTION OP PRESCRIPTION, AND USUCAPTION.

1. Gaius, On the Provincial Edict, Book XXL

Usucaption was introduced for the public welfare, and especially in order that the ownership of certain property might not remain for a long time, and almost forever, undetermined; as a sufficient time is granted to owners to make inquiry after their property.

2. Paulus, On the Edict, Book LIV.

Usurpation is the interruption of usucaption. Orators call usucaption frequent use.

3. Modestinus, Pandects, Book V.

Usucaption is the addition of ownership by means of continuous possession for a time prescribed by law.

4. Paulus, On the Edict, Book LIV.

In the next place, we must speak of usucaption; and, in doing so, we must proceed in regular order, and examine who can acquire property by usucaption, what property can be acquired in this manner, and what time is necessary.

(1) The head of a household can acquire by usucaption; a son under paternal control can also do so; and this is especially the case where, as a soldier, he obtains by usucaption property acquired during military service.

(2) A ward can acquire property by usucaption if he takes possession of it with the consent of his guardian. If he takes possession without the consent of his guardian, but still has the intention of doing so, we say that he can acquire the property by usucaption.

(3) An insane person, who takes possession before his insanity appears, acquires the property by usucaption; but such a person can only acquire it in this manner if he has possession by a title through which usucaption may result.

(4) A slave cannot hold possession as an heir.

(5) If the crops, the children of slaves, and the increase of flocks did not belong to the deceased, they can be acquired by usucaption.

(6) The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom 'it was lent or pledged, it should be returned to the owner.

(7) Labeo also says that, if the peculium of my slave is stolen without my knowledge, and he afterwards recovers it, it will be held to have been restored to my control. It is more accurate to say, provided I was aware that the property had been returned to me. For it is not sufficient for the slave merely to recover the property which he had lost without my knowledge, but I must also have intended it to form part of his peculium, for if I did not wish this to be done, it will then be necessary for me to obtain actual control of it.

(8) Hence, if my slave steals anything from me, and afterwards returns the article to its place, it can be acquired by usucaption as having been restored to my control, just as if I did not know that it had been stolen; for if I did know it, we require that I should be aware that it had been returned to me.

(9) Moreover, if the slave should retain as part of his peculium the same property which he stole, it will not be considered to have been returned to me (as is stated by Pomponius), unless I have possession of it in the same way that I did before it was stolen; or if, when I learned that it had been taken, I consented that the slave should include it in his peculium,.

(10) Labeo says that if I deposit any property with you, and you sell it for the sake of gain, and then, having repented, you repurchase it, and retain it in the same condition in which it formerly was, whether I am ignorant or aware of the transaction, it will be considered to have been restored to my control, according to the opinion of Proculus, which is correct.

(11) Where the property of a ward is stolen, it must be held to be sufficient if his guardian was aware that it had been returned to the house of the ward. In the case of an insane person, it will be sufficient if his curators know that the property has been returned.

(12) Property must be considered to have been restored to the control of the owner when he recovers possession of it in such a way that he cannot be deprived of it. This must be done just as if the

property was his; for if I purchase an article, not knowing that it has been stolen from me, it will not be held to have been restored to my control.

(13) Even if I should bring suit to recover property which has been stolen from me, and I accept payment of the amount at which it was appraised in court, it can be acquired by usucaption, even though I did not obtain actual possession of it.

(14) The same rule must be said to apply even if the stolen property has been delivered to another with my consent.

(15) An heir who succeeds to the rights of the deceased cannot acquire by usucaption a female slave whose mother had been stolen, and was found among the property of the deceased, provided the latter was not aware of the fact, if she conceived and brought forth the child while in his possession.

(16) If my slave steals a female slave and gives her to me in return for his freedom, the question arises whether I can acquire by usucaption the child of said female slave who conceived while in my possession. Sabinus and Cassius do not think that I can, because the illegal possession which is obtained by the slave would prejudice his master; and this is correct.

(17) If, however, anyone gives me a female slave who has been stolen, in order to induce me to manumit my slave, and the female slave conceives and has a child while in my possession, I cannot acquire that child by usucaption.

The same rule will also apply if anyone gives me the said female slave in exchange, or by way of payment, or as a present.

(18) If the purchaser ascertains before she has the child that the female slave belongs to another, we say that he cannot acquire the child by usucaption, but he can do so if he was not aware of this. If, however, he should learn that she belongs to someone else, when he had already begun to acquire the child by usucaption; we must take into consideration the beginning of the usucaption, as has been decided in the case of property that has been purchased.

(19) If stolen sheep have been sheared while in possession of the thief, the wool cannot be acquired by usucaption. The rule is otherwise, however, in the case of a bona, fide purchaser, as there is no need of usucaption, since the wool is a profit, the right to which immediately vests in the purchaser. The same rule can be said to apply to lambs, if they have been disposed of. This is true.

(20) If you make a garment of stolen wool, the better opinion is that we should consider the original material, and therefore the garment is stolen property.

(21) If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct.

(22). If you forcibly deprive me of the possession of land, and you yourself do not take possession, but Titius, finding it unoccupied, does,

he can acquire it by usucaption through lapse of time, for although it is true that an interdict on the ground of violence will lie, because I have been forcibly ejected; still, it is not true that Titius obtained possession by violence.

(23) But if you should eject me from land which I possess in bad faith, and sell it, it cannot be acquired by usucaption, for while it is true that possession has been obtained by force, this has not been done by the owner.

(24) The same rule must be said to apply to the case of one who ejected a person having possession as the heir, although he knew that the land formed part of an estate.

(25) If one man should knowingly eject another who is in bona fide possession of land belonging to someone else, he cannot obtain it by usucaption, because he forcibly obtained possession.

(26) Cassius says that if the owner of land forcibly ejects the ' party in possession, the land will not be considered to have again been brought under his control, as he who was ejected can recover possession of it by means of an interdict based on violence.

(27) If I have a right of way through your land, and you forcibly prevent me from using it, I will lose the right of way by not making use of it for a long time, because an incorporeal right is not considered susceptible of possession; and no one can be said to be deprived of a right of way, that is to say, of a mere servitude, in this manner.

(28) Likewise, if you take possession of land which is vacant, and afterwards prevent the owner from entering upon the same, you will not be considered to have taken forcible possession of the property.

(29) It is true that a release of a servitude can be acquired by usucaption, because the Scribonian Law, which established a servitude, prohibited the usucaption of one; but it does not grant a release if the servitude has already been extinguished. Hence, if I owe you a servitude, for instance, that which prevents me from building my house any higher, and I have kept it built higher for the prescribed time, the servitude will be extinguished.

5. Gaius, On the Provincial Edict, Book XXI.

"^Possession is naturally interrupted when anyone is forcibly deprived of it, or the property is stolen from him; in which instance possession is interrupted, not only with reference to him who stole the property, but with reference to everyone else. Nor, under these circumstances, does it make any difference whether he who obtained legal possession is the owner of the property or not. Nor is it material whether the person in question possesses the property as the owner, or merely for the purpose of profiting by it.

6. Ulpianus, On the Edict, Book XI.

In the case of usucaption, the time is not reckoned from moment to moment, but we compute the entire last day of the prescription.

7. The Same, On Sabinus, Book XXVII.

Therefore, anyone who begins to have possession at the sixth hour of the day of the Kalends of January will complete the usucaption on the sixth hour of the night preceding the Kalends of January.

8. Paulus, On the Edict, Book XII.

Labeo and Neratius held that all the property which slaves have acquired as their peculium can be obtained by usucaption, because it is obtained in this way by their owners, even without the knowledge of the latter. Julianus says the same thing.

(1) Pedius says that a person who cannot acquire anything by usucaption in his own name cannot acquire it by his slave.

9. Gaius, On the Provincial Edict, Book IV.

Corporeal property is especially subject to usucaption, with the exception of sacred and holy things, and such as are the public property of the Roman people, and of cities, as well as persons who are free.

10. Ulpianus, On the Edict, Book XVI.

Where property belonging to another has been purchased in good faith, the question arises in order that the usucaption may run, whether, for the preservation dt good faith, it should date from the beginning of the purchase, or from the time of delivery. The opinion of Sabinus and Cassius, which is that it dates from the time of delivery, has been adopted.

(1) It is our practice that servitudes can never, of themselves, be acquired by usucaption, but that this can be done along with the buildings upon which they are imposed.

(2) Scsevola, in the Eleventh Book of Questions, says that Marcellus thought that if a cow should conceive while in the possession of a thief, or of his heir, and bring forth while in the possession of his heir, the calf, separated from its mother, cannot be acquired by usucaption by the heir; just as he says this cannot be done with the child of a female slave. Scsevola, however, states that, in his opinion, the child can be acquired by usucaption, because it does not form part of the stolen property. If, however, it should be a part of it, it can be acquired by usucaption, if it was born while in possession of a bona fide purchaser.

11. Paulus, On the Edict, Book XIX.

Neither a slave, nor a master who is in the power of the enemy, can acquire possession through the medium of his slave.

12. The Same, On the Edict, Book XXI.

If you purchase property from one whom the Praetor has forbidden to alienate it, and you are aware of the fact, you cannot acquire it by usucaption.

13. The Same, On Plautius, Book V.

We cannot acquire by usucaption property which has been taken in pledge, because we possess it in behalf of another.

(1) It has been decided that anyone who has purchased property in good faith from an insane person can acquire it by usucaption.

(2) If I direct you to buy a tract of land, you can obtain it by usucaption, after it has been delivered to you for this reason, although you cannot be considered to possess it as yours, as the fact that you are liable to an action on mandate makes no difference.

14. The Same, On Plautius, Book XIII.

The time during which the vendor held property before selling it is an advantage to the purchaser, for if the vendor obtained possession afterwards, this will be of no benefit to the purchaser.

(1) With reference to property which is bequeathed, the legatee •is considered to occupy the same position as the heir, so far as the benefit of the time during which the testator possessed the property is concerned.

15. The Same, On Plautius, Book XV.

If a person who possessed the property as a purchaser is taken prisoner by the enemy before usucaption has taken place, let us see whether his heir will obtain any benefit from the usucaption, for it is interrupted; and if it is of no advantage to him on his return, how can it profit his heir ? It is, however, true that he has ceased to possess the property, and therefore the right of postliminium will not benefit him to the extent that he may be considered to have acquired it by usucaption.

If the slave of a person who was in the power of the enemy should purchase property, Julianus says that the usucaption of the same will remain in abeyance; for if the owner returns, the usucaption is understood to have taken place. If, however, the owner should die while in the hands of the enemy, it may be doubted whether the property will belong to his successors under the Cornelian Law. Marcellus thinks that the legal fiction is capable of a broader application, for one who has returned under the law of postliminium, has a better right to things which have been acquired by his slaves than to those which he himself acquired, or which he possessed by means of his slaves before he was captured by the enemy; as it has been decided, in some instances, that the estate takes the place of the person, and therefore that the right of usucaption is transmitted to the heirs of prisoners of war.

(1) If a slave of whom I am in possession should take to flight, and represent himself to be free, he will be considered as still in the possession of his master. This, however, must be understood to apply where, if he is caught, he is not prepared to maintain in court that he is free; for, if he is ready to do so, he will not be considered to be possessed by his master, against whom he is about to appear as an adversary.

(2) If a possessor of property in good faith should ascertain that it belongs to another, after having lost possession of it before the time

necessary for usucaption has elapsed, and he should obtain possession of it a second time, he cannot acquire it by usucaption, because the beginning of the second possession is defective.

(3) If property to which we are entitled is delivered to us in accordance with the terms of a will, or under a stipulation, we must take into account the time when it was delivered, because property can be made the subject of a stipulation, even if it does not belong to the promisor.

16. Javolenus, On Plautius, Book IV.

When suit is brought for the production of a slave who has been given in pledge, proceedings must be instituted against the creditor, and not against the debtor; for the reason that he who gave the slave in pledge only possesses him by the right of usucaption. In all other respects, however, he who receives property possesses it, and this is true to such an extent that the possession of him who gives property in pledge can also be included.

17. Marcellus, Digest, Book XVII.

If, in a case in partition, I begin to hold possession under a judgment rendered by mistake, which has reference to the land of others supposed to be owned in common, I can acquire the said land by holding it for a long time.

18. Modestinus, Rules, Book V.

Although usucaption is of no advantage as against the Treasury, it has been decided that where property without an owner has not yet been reported to the Treasury, and a purchaser appears who has bought land forming part of said property, he can legally acquire it by long-continued possession.

19. Javolenus, Epistles, Book I.

If you purchase a slave with the understanding that, if some condition should be complied with, the sale will be void, and the slave is delivered to you, and fulfillment of the condition afterwards annuls the transaction, I think that the time during which the slave was in possession of the purchaser should benefit the vendor, because a sale of this kind is similar to the redhibitory clause for the return of property, which is introduced into contracts for sales; and, in a case of this kind, I have no doubt that the time that the purchaser held the property will benefit the vendor, as properly speaking, no sale took place.

20. The Same, Epistles, Book IV.

The possession of a testator will profit the heir if, in the meantime, no one else had possession.

21. The Same, Epistles, Book VI.

I rented land to a man against whom I was about to assert my claim, founded on prescription, as an heir. I ask whether you think

that this lease has any force or effect. If you think that it has no effect, do you believe that the right of usucaption of said land will, nevertheless, continue to exist? I also ask, if I should sell the land, what is your opinion of the points which I have just raised? The answer was that if he who is in possession of the land, as heir, leased it to the owner of the same, the lease is void, because the owner rented his own land. Hence it follows that the lessor does not retain possession, and prescription based upon long occupancy will not continue to exist.

The same rule of law applies to a sale, because, as in the case of a lease, the purchase of one's own property is void.

22. The Same, Epistles, Book VII.

An heir and an estate, although they have two different names, are still regarded as one person.

23. The Same, Epistles, Book IX.

I do not think that he who has purchased a house possesses anything but the house itself. For if he is considered to possess the different things of which the house is built, he does not possess the house itself; as, after the materials of which it is composed are separated, they cannot be understood to represent the entire house. Add to this, if anyone should say that the separate materials of which the house was composed are possessed, it will be necessary to hold that there will be ground for the prescription of the movable property composing the house, during the time fixed for that purpose, and that a longer time will be necessary to acquire by usucaption the soil on which it stands. This is absurd, and it is by no means in conformity to the Civil Law that the same thing should be obtained by usucaption at different times; as, for example, since a house is composed of two different things, the soil, and what is erected upon it, that they united should change the time established for the usucaption of all immovable property by long-continued possession.

(1) If you should be judicially deprived of a column forming part of your house, I think that you will be entitled to an action on purchase against the vendor, and, in that way, can hold the entire property.

{2) If, however, the house has been demolished, in order that the movable property may be entirely acquired by usucaption, where it has been in possession for the term prescribed for that purpose, the time during which it composed the building cannot be legally reckoned; for, as you were not in possession of the materials alone and apart from the building, so, the house having been demolished, you cannot separately and distinctly possess the materials of which it was constructed; nor can it be held that the same property was possessed at the same time as both real estate and personalty.

24. Pomponius, On Quintus Mucius, Book XXIV.

When the law forbids usucaption, the good faith of the possessor is of no advantage to him.

(1) Sometimes usucaption is an advantage to the heir, even though it was not begun to be acquired by the deceased: as, for instance, where the defect, which does not arise from the person but from the property itself, has been remedied. It arises from the property, for example, where it has ceased to belong to the Treasury, or possession of it has been obtained through theft or violence.

25. Licinius Rufinus, Rules, Book I. Usucaption cannot take place without possession.

26. Ulpianus, On Sabinus, Book XXIX.

A building can never be acquired by lapse of time separate from the ground on which it stands.

27. The Same, On Sabinus, Book XXXI.

Celsus, in the Thirty-fourth Book, says that they are mistaken who believe that anyone who has obtained possession of property in good faith can acquire it, by usucaption, as his own; and that it makes no difference whether or not he purchased it, or it was given to him, provided he thinks it was purchased by, or given to him; for the reason that usucaption does not apply to a legacy, a gift, or a dowry, if no donation, dowry, or legacy exists.

The same rule is held to be applicable to the case of an appraisement made in court, for if the party did not agree to the appraisement, he cannot acquire the property by usucaption.

28. Pomponius, On Sabinus, Book XVII.

It is established that where property is delivered to the slave of an insane person, or an infant, the latter can obtain it by usucaption through the slave.

29. The Same, On Sabinus, Book XXII.

If I am the sole heir to an estate, but believe that you are an heir to half of the same, and I deliver half of the estate to you, it is very probable that you cannot acquire the property by usucaption, because what is in possession of an heir cannot be obtained in this way by another, as the heir; and you have no other ground for possession. This is only true when done under the terms of a settlement.

We hold that the same rule applies if you think that you are the heir; for, in this instance, the possession of the true heir will prevent you from obtaining the property by usucaption.

30. The Same, On Sabinus, Book XXX.

It is asked whether a mixture of different things interrupts the usucaption which has begun to run with reference to each of them. There are three kinds of things which can be divided; first, those which are included in a substance of the same nature, styled by the Greeks i}vo)ju^vov,.that is to say, united, as a slave, a piece of timber, a stone, and other property of this kind. Second, things which are joined by con-

tact, that is to say, which have coherence, and are connected, as a house, a ship, a cupboard. Third, such as are formed of distinct objects, as different bodies which are not united but are included under a single appellation, for instance, a people, a legion, a flock. No question can arise with reference to the usucaption of the first of these, but there is doubt as far as the second and third are concerned.

(1) Labeo, in the Book of Epistles, says that where anyone who has only ten days left, in which to acquire the usucaption of tiles or columns, uses them in building a house, he will still be entitled to them by usucaption if he has possession of the house. What course must be pursued in case that articles are not joined to the soil, but remain movable property, as a precious stone set in a ring? In this instance, it is true that both the gold and the precious stone are in possession, and can be acquired by usucaption, if possession of both continues to exist.

(2) Let us take into consideration the third class of things. An entire flock is not acquired by usucaption in the same way as distinct articles, or as those which are united, are. What, then, must be done? Although the nature of a flock is that it continues to exist by the addition of new animals, usucaption, nevertheless, cannot take place with respect to the flock as a whole, but it follows the same rule as possession, which applies to the separate individuals composing it. For if other animals are purchased and mingled with the flock for the purpose of increasing it, the title to the latter by possession will not be changed; so that if the remainder of the flock belongs to me, the sheep which have been purchased are also mine; but each of the latter will be held by its own title, so that if any of those included in the flock have been stolen, they cannot be acquired by usucaption.

31. Paulus, On Sabinus, Book XXXII.

In cases of usucaption, an error of law never benefits the possessor. Hence Proculus says that, if through mistake, a guardian does not, at the beginning of a sale or for a long time after it has been concluded, grant authority to his ward to make it, there will be no ground for usucaption, because an error of law exists.

(1) In an usucaption of movable property, the time is computed continuously.

(2) A slave, even though he may be at liberty, possesses nothing, and another does not possess anything by him. If, however, he should obtain possession in the name of another, while he is at liberty, he will acquire the property for him in whose name he obtained it.

(3) If my slave, or my son, holds anything in my name, or as part of his peculium, so that I am not aware that I possess it, or even that I am entitled to acquire it by usucaption, and he becomes insane, then it must be understood that the property remains in the same condition, and that I still retain possession of it, and have a right to usucaption, just as these rights continue to exist in our favor, even when the parties are asleep.

The same rule must be said to apply to the case of a lessee, or a tenant through whom we acquire possession.

(4) Where anyone has obtained possession either by violence, clandestinely, or under a precarious title, and afterwards becomes insane, the possession and the title remain unchanged with reference to the property which the insane person holds precariously; just as, by means of an interdict, and by an action to obtain possession, we can legally institute proceedings in the name of an insane person, on account of the possession which he himself obtained before his reason became impaired, or acquired by means of another after his insanity had begun.

(5) The time which intervened before the estate was accepted, or after this was done, will benefit the heir in usucaption.

(6) Julianus says that if the deceased had made a purchase, and the heir thinks that he was in possession of the same as a donation, he can acquire the article by usucaption.

32. Pomponius, On Sabinus, Book XXXII.

If a thief should purchase the stolen property from its owner, and hold it as delivered to him, he ceases to possess it as having been stolen, and begins to possess it as his own.

(1) When anyone thinks that he is not legally entitled to acquire by usucaption property which is in his possession, it must be said that even if he is mistaken, he cannot profit by usucaption; either because he is not considered to possess it in good faith, or because usucaption is of no advantage where an error of law exists.

(2) No one can possess a portion of anything, the amount of which is uncertain. Therefore, if several persons own land, and each is ignorant of the amount of his share, Labeo says that, strictly speaking, none of them has possession.

33. Julianus, Digest, Book XLIV.

Not only bona fide purchasers, but also all those who have possession under any title by which usucaption is ordinarily acquired, can obtain as their own the child of a female slave; and I think that this rule has been legally established. For, in every instance, anyone can acquire a female slave by usucaption, unless it is prohibited by the Law of the Twelve Tables, or the Atinian Law. The child of such a slave can be acquired by usucaption, if it was conceived and brought forth at a time when the alleged possessor did not know that its mother had been stolen.

(1) The common opinion that a person himself cannot change the title of his possession is only correct where he knows that he is not a possessor in good faith, and obtains it for the purpose of profit. This can be proved as follows: If anyone purchases a tract of land from another, knowing that it does not belong to the latter, he will hold it as the possessor; but if he purchases the same land from the owner, he will possess it as the purchaser; nor will he himself be considered to have changed the title to his possession. The same rule will apply even

if he did not purchase the land from the owner, if he believed it to be his.

In like manner, if he was appointed heir by the owner, or obtained praetorian possession of his estate, he will possess the land as the heir. Further, if he had good reason to think that he was the heir, or was entitled to praetorian possession of the estate, he will possess the land as the heir, and will not be held to have himself changed the title to possession.

As this rule must be adopted with reference to him who has possession, how much more is it applicable to the case of a tenant, who has no possession either during the lifetime, or after the death of/the owner of the land? And, indeed, if the tenant, at the time of the death of the owner, purchased the land from him whom he believed to be the heir of the former, or the possessor of his estate under the Praetorian Edict, he will begin to hold the property as a purchaser.

(2) If the owner of land thinks that armed men are coming, and, for this reason, takes to flight, he will be considered to have been forci-biy dispossessed, even though none of them should enter upon the land. Still, the same land can be acquired by usucaption by a bona fide possessor, even before it again comes under the control of the owner, because the Lex Plautia et Julia forbids property which has been taken possession of by force to be acquired by long possession, but not by those who have been driven from it by violence.

(3) If Titius gives me possession of land which I had the intention of bringing suit to recover from him, I shall have good ground for usucaption. But if he from whom I had the intention of demanding a tract of land on account of a stipulation grants me possession of the same, and does so for the purpose of discharging his indebtedness, he places me in such a position that I can obtain the land by prescription.

(4) Anyone who gives property in pledge can acquire it by usucaption as long as it remains in the hands of his creditor, but if the creditor should transfer his possession to another, the usucaption will be interrupted. And, so far as the usucaption is concerned, the case is similar to that of a person who deposited, or lent an article; for it is clear that he ceases to acquire it by usucaption, if the article which was lent or deposited should be delivered to a third party by him who received it as a loan, or a deposit. It is evident if the creditor hypothecated it by a mere agreement,1 the debtor will continue to acquire it by usucaption.

(5) If I possess in good faith property which belongs to you, and pledge it to you, you not being aware that it was yours, I cease to acquire it by usucaption, because no one is understood to hold his own property in pledge. If, however, it should be pledged by a mere agreement, I will still continue to acquire it by usucaption, because in this way the property is not considered to have been pledged.

(6) If a slave should steal property which has been pledged to his master, as the creditor still continues to be in possession of it, the usucaption of the debtor will not be interrupted, because a slave does not

1 That is, of course, without delivery, which was essential to establish the validity of a pledge.—ED.

deprive his master of possession. But if a slave of the debtor should steal the property, although the creditor ceases to have possession of the same, the usucaption of the debtor will remain the same as if the creditor had delivered the property to the debtor.

For so far as usucaption is .concerned, slaves do not injure the conditions of their owners by the theft of property. The question will be more easily decided if the slave of a debtor, having precarious possession, steals the property; for if it should be hired, the result will be the same as if it had remained in the hands of the creditor, since, in this instance, the creditor has possession of it. If, however, both titles existed, that is to say, one that is precarious, and another based upon the hiring, the creditor is understood to hold possession, for the claim under a precarious title is not, in this instance, introduced to enable the debtor to have possession, but only to permit him to retain the property.

34. Alfenus Verus, Epitomes of the Digest by Paulus, Book I. If a slave, without the knowledge of his master, sells property belonging to his peculium, the purchaser can acquire it by usucaption.

35. Julianus, On Urseius Ferox, Book III.

If a slave, the usufruct of whom has been bequeathed, and who has never been in possession of the heir, should be stolen, the question arises, can the slave be acquired-by usucaption, because the heir is entitled to an action of theft ? Sabinus says that no usucaption can exist in the case of property on account of which an action for theft will lie, but that he who is entitled to the usufruct can bring this action. This, however, must be understood to apply to a case where the usufructuary can use and enjoy his right; for otherwise, the slave would not be in the condition in which he should be. But if the slave had been stolen from the usufructuary, while in the enjoyment of his right, not only he himself, but also his heir, can bring the action for theft.

36. Gaius, Diurnal or Golden Matters, Book II.

It can happen in several ways, that a person laboring under some mistake may sell or give away property as his own which belongs to another; and, under such circumstances, it can be acquired by usucaption by a bona fide possessor; for instance, if the heir should sell property which was lent to the deceased, or leased by him, or deposited with him, believing that it belonged to the estate.

(1) Likewise, if anyone, misled by some opinion, and thinking that he is entitled to an estate, which is not the case, should alienate property forming part of the same; or where a person to whom the usufruct of a female slave belongs, believing her children to be his, for the reason that the increase of flocks belongs to the usufructuary, should sell the children;

37. The Same, Institutes, Book II.

He does not commit a theft, for a theft cannot be committed without the intention of stealing.

(1) Anyone can also obtain possession of the land of another without violence, where it has become vacant through the neglect of the owner, or where the latter has died without leaving an heir, or has been absent for a long time.

38. The Same, Diurnal or Golden Matters, Book III.

A person cannot, himself acquire the property by usucaption in this case, because he knows that it belongs to another, and therefore he is a possessor in bad faith; but if he transfers it to someone else who receives it in good faith, the latter can acquire it by/usucaption, for the reason that he has gained possession of property which has not been acquired by force, and has not been stolen: as the opinion of certain ancient authorities, who held that a theft of land or a house could be perpetrated has been abandoned.

39. Marcianus, Institutes, Book III.

If the soil cannot be acquired by usucaption, what stands upon it can not be acquired in the same way.

40. Neratius, Rules, Book V.

It has been established that where usucaption has been begun by a deceased person, it can be completed before the estate has been entered upon.

41. The Same, Parchments, Book VII.

If my agent recovers property which has been stolen from me, although, generally speaking, it is now almost conclusively settled that we can obtain possession by means of an agent, the property, nevertheless, will not again come under my control so that it can be acquired by usucaption, because to decide otherwise would be fallacious.

42. Papinianus, Questions, Book III.

If a husband should sell a dotal tract of land to someone who knew, or.was not aware that the property was a part of the dowry, the sale will not be valid. If the woman should afterwards die during the marriage, the transaction must be confirmed, if the entire dowry was given for the benefit of the husband.

The same rule applies where he who sold stolen property subsequently becomes the heir of the owner of the same.

43. The Same, Questions, Book XLH.

If the heir of him who purchased property in good faith knows that it belongs to another, he cannot acquire it by usucaption, provided possession of it has been delivered to him personally; but the knowledge of the heir will not prejudice him so far as the continuance of possession is concerned.

(1) It is certain that a father cannot acquire by usucaption anything which his son has purchased, if he or his son knew that it was the property of someone else.

44. The Same, Questions, Book XXIII.

Having been deceived by a plausible error, I believe Titius to be my son, and to be under my control, but the arrogation of him by me was found to be illegal. I do not think that, under the circumstances, he has a right to take charge of my property, for the same rule has not been established in this case as in that of a freeman who serves in good faith as a slave; as it was for the interest of the public to establish this rule, on account of the constant and daily transactions with reference to slaves. For we often purchase freemen, not knowing that they are such, and the adoption and arrogation of children is not as easy, or as frequent.

(1) It is settled that if you sell me property belonging to another, and I know that this is the case, and you deliver it at the same time that the owner ratifies the sale, the time of delivery must be taken into account and the property becomes mine.

(2) Although it has been decided that, so far as usucaption is concerned, the beginning of the possession, and not the time when the contract was made, must be considered; still, it sometimes happens that we take into consideration not the beginning of the present possession, but the reason for a former delivery, which was made in good faith; for instance, where the right to the child of a female slave, whose mother was possessed in good faith, is in question, as the child cannot any the less be acquired by usucaption, although the possessor knew that the mother was the property of another before the child was born.

The same rule applies to the case of a slave who returns under the law of postliminium.

(3) The time which has elapsed before the acceptance of an estate is granted for the benefit of usucaption, whether a slave belonging to the estate purchased any property, or whether the deceased had begun to acquire by usucaption. This principle is established as a special privilege.

(4) A son under paternal control bought property belonging to another, and then, becoming the head of a household without knowing it, began to possess the property, which had been delivered to him. Why can he not obtain it by usucaption, as he acted in good faith at the time that he obtained possession, although he was mistaken when he thought that he could not obtain property which he acquired as part of his peculium?

The same rule must be said to apply if he had good reason to think that the property which was purchased had come into his hands as a part of his father's estate.

(5) Usucaption which takes place in favor of a purchaser or an heir does not prevent the pursuit of a pledge by a creditor; for, as an usufruct cannot be the subject of usucaption, so the right to pursue a pledge, which is in no way connected with ownership but is founded on an agreement alone, is not extinguished by the usucaption of the property.

(6) The opinion that anyone who becomes insane, and who had previously begun to acquire by usucaption, can continue to do so until it

is completed under any title whatsoever, is based on considerations of convenience, in order to prevent his mental weakness from injuriously aifecting his property.

(7) If a slave or a son purchases property while the master or the father is in the hands of the enemy, will he begin to hold the same? If he has possession on account of his peculium, usucaption will begin to run, nor will the captivity of his father or master offer any impediment to this, as his knowledge of it would not be necessary if he was at home.

If, however, the purchase was made without reference ;to the peculium, the property cannot be acquired by usucaption, nor can it be understood to be obtained by the right of postliminium; for, in order for this to take place, what is said to be obtained by usucaption must already have been possessed. But if the father should die in captivity, for the reason that the time of his death is held to date from the day of his capture, it may be said that the son has had possession for himself, and he can be understood to have acquired the property by usucaption.

45. The Same, Opinions, Book X.

Prescription based upon long possession is not usually granted for the acquisition of places which are public by the Law of Nations. An instance of this is, where anyone abandons a building which he had constructed upon the seashore, or it was demolished, and another person, having built a house in the same place, the former opposes him by an exception based upon previous occupancy; or where anyone, for the reason that he alone has been accustomed to fish for years in a certain part of a river, under the same prescriptive right forbids another to do so.

(1) A slave who belonged to an estate, after the death of his master, obtained possession of property forming part of his peculium. The beginning of usucaption will date from the time when the estate was entered upon, for how can property be acquired in this manner which was not previously in the possession of the deceased?

46. Hermogenianus, Epitomes of Law, Book V.

Property which has been received in payment is subject to usucaption where it has been obtained in the discharge of a debt. Not only what is due, but also whatever is given in discharge of the debt is subject to usucaption.

47. Paulus, On Neratius, Book III.

If my agent, without my knowledge, takes charge of property purchased in my name, although I may have possession of the same, I cannot acquire it by usucaption; because while we can acquire property by usucaption without knowing that we have possession of it, this has been decided to only be true where something forming part of the peculium is concerned.

48. The Same, Manuals, Book II.

If, believing that I am indebted to you, I give you property in payment, usucaption can only take place if you yourself think that it is due. The case is different, if I think that I am bound on account of a sale, and therefore deliver the property to you, for no action will lie against me, and you, as the purchaser, will not be entitled to usucaption. The reason for the difference arises from the fact that, in other instances, the time of payment should be considered. Nor does it matter whether, at the time when I make the stipulation, I am aware that the property belongs to another or not, as it will be sufficient if I think it is mine, when you give it to me in payment for a purchase; however, not only the time when a contract was entered into, but also that of payment is taken into account, for no one can acquire property by usucaption as a purchaser who did not buy it, and he cannot, as in other contracts, say that it has been received in payment.

49. Labeo, Epitomes of Probabilities by Paulus, Book V.

Property which has been stolen cannot be acquired by usucaption before it has again come under the control of the owner.

Paulus: Perhaps the contrary opinion is true; for if you should steal property which you have given to me in pledge, it becomes stolen goods, but it can be acquired by usucaption as soon as it again comes under my control.

TITLE IV. CONCERNING POSSESSION ACQUIRED BY A PURCHASER.

1. Gaius, On the Provincial Edict, Book VI.

A possessor who tenders the appraised value of the property in court begins to possess it as a purchaser.

2. Paulus, On the Edict, Book LIV.

He has possession as a purchaser who has actually bought the property, and it will not be sufficient for him merely to be of the opinion that he is in possession as purchaser, but the title to the property, as purchased, must actually exist. If, however, I think that I owe you something, and I deliver it to you without your being aware that it belongs to someone else, you can acquire it by usucaption. Why, therefore, can you not acquire it by usucaption if I deliver it to you, thinking that I have sold it to you? This is because the time of the delivery is considered in all other contracts; hence, if I knowingly stipulate for property belonging to a third party, I can acquire it by usucaption if I thought that it belonged to you when it was delivered to me. In the case of a purchaser, however, the time when the contract was entered into is considered, and therefore the purchase must be made in good faith, and also possession must be obtained in this way.

(1) Title to possession and title to usucaption are different, for anyone may truthfully be said to have made a purchase, but to have

made it in bad faith; for anyone who knowingly buys property in bad faith has possession of it as the purchaser, although he cannot acquire it by usucaption.

(2) Where a purchase is made under a condition, the purchaser cannot acquire the property by usucaption while the condition is pending. The same rule applies if he thinks that the condition has been fulfilled, and this has not yet taken place, for he resembles a person who thinks that he has made a purchase, when this is not the case.

On the other hand, if the condition has been complied with and he is ignorant of the fact, he can be said to acquire it by usucaption, according to Sabinus, who held that this could be done by considering rather the nature of things than mere opinion. Some difference, however, exists between these two instances, because where anyone thinks that property belongs to another, which, in fact, belongs to the vendor, he occupies the position of a purchaser. But when he thinks that the Condition has not yet been complied with, it is just as if he thought that he had not yet made the purchase.

This point can be presented more clearly if possession is delivered to the heir, who does not know that the deceased bought the property but thinks it was delivered to him for some other reason; but should it be held that usucaption cannot be acquired under such circumstances ?

(3) Sabinus says that if property has been purchased in such a way that the sale will be void unless payment is made within a certain time, it cannot be acquired by usucaption, unless payment has actually been made. Let us see, however, whether this is a condition or an agreement; for if it is an agreement, the result will more readily be accomplished by payment than by complying with the condition.

(4) If settlement is to be made within a specified time (that is to say, if anyone does not offer to pay a better price within that time), Julianus thinks that the sale is perfected, and that the profits will belong to the purchaser, who will have a right to acquire the property by usucaption; but others have held that the sale was made under a condition. He said that it was not made under a condition, but that it was annulled under a condition, which opinion .is correct.

(5) A sale is absolute where it is agreed that it shall be void in case the purchaser should not be content with the property within a certain time.

(6) I purchased Stichus, and Damas was delivered to me instead of him, by mistake. Priscus says that I cannot acquire this slave by usucaption, because what was not bought cannot be acquired in that way by the purchaser. If, however, a tract of land was purchased and a larger amount has been in possession than what was conveyed, it can be acquired by lapse of time, as the entire tract, and not separate portions of the same, is possessed.

(7) You purchase the property of a person with whom slaves have been deposited. Trebatius says that you cannot acquire the said slaves by usucaption, because they were not purchased.

(8) A guardian bought an article at an auction of his ward, which he thought belonged to him. Servius says that he can acquire it by usucaption, and his opinion has been accepted, for the reason that the condition of the ward does not become worse if he has a purchaser in his guardian, who will pay more money for the property. If he should purchase it for less, he will be liable to an action on guardianship, just as if he had transferred it to some other person for less than it was worth. This, it is said, was also decided by the Divine Trajan.

(9) Many authorities hold, if an agent buys property at auction by the direction of his principal, that he can acquire it by usucaption, as a purchaser, on the ground of public convenience.

The same rule applies if, while transacting the business of his principal, he makes the purchase without the knowledge of the latter.

(10) If your slave purchases property for his peculium which he knows belongs to another, you cannot acquire it by usucaption, even if you are not aware that it belongs to someone else.

(11) Celsus says that if my slave, without my knowledge, obtains possession of property for his peculium, I can acquire it by usucaption. If he does not obtain it as a part of his peculium, I cannot acquire it, unless I know that he has obtained it; and if he has possession which is defective in law, my possession will also be defective.

(12) Pomponius also says, with reference to property which is possessed in the name of the owner, that the intention of the latter, rather than that of the slave, should be considered. If the slave possesses property as part of his peculium, then his intention must be taken into consideration; and if the slave possesses it in bad faith, and his master obtains it in order to hold it in his own name, for instance, by depriving the slave of his peculium, it must be said that the same reason for possession exists, and therefore, that the master cannot avail himself of usucaption.

(13) If my slave should purchase property for his peculium in good faith, and when I first heard of it I knew the property belonged to another, Cassius says that usucaption can take place, for the beginning of the possession was without any defect. If, however, at the time he purchased the property, even though he did so in good faith, I knew that it belonged to someone else, I cannot acquire it by usucaption.

(14) If my slave should give to me, in consideration of his freedom, certain property which he had purchased in bad faith, I cannot acquire it by usucaption; for Celsus says that the first defective possession still continues to exist.

(15) If I make a purchase from a ward without the authority of his guardian, believing that he has reached the age of puberty, we hold that usucaption can take place, as this rather applies to the property than to the opinion. If, however, you know the vendor to be a ward, and you still believe that wards have the right to transact their own affairs without the authority of their guardians, you will not acquire' the property by usucaption, because an error of law is of no advantage to anyone.

(16) If I purchase property from an insane person whom I think to be of sound mind, it has been established that I can acquire it by usucaption on the ground of public convenience, although the purchase was void; and therefore I will neither be entitled to an action founded upon eviction, nor will the Publician Action lie, nor will any benefit result from previous possession.

(17) If you sell me property which you are about to acquire by usucaption as a purchaser, and I know that it belongs to another, I cannot acquire it by usucaption.

(18) Although possession may benefit the immediate' heir of the deceased, a more distant heir cannot obtain possession of the property.

(19) If the deceased bought property in good faith, it can be acquired by usucaption, even though the heir knew that it belonged to someone else. This rule should be observed, not only in the case of prastorian possession, but also in that of trusts by virtue of which an estate is transferred under the Trebellian Decree of the Senate, as well as with reference to all other pr^torian successors.

(20) The time that the property was possessed by the vendor benefits the purchaser in acquiring usucaption of the same.

(21) If I purchase property belonging to another, and while I am in the course of acquiring it by usucaption, the owner brings an action to recover it from me, my usucaption will not be interrupted by the joinder of issue in the case.

If, however, I should prefer to pay the appraised value of the property in court, Julianus says that the title to possession is changed, so far as he who paid the value of the property in court is concerned.

The same rule will apply, if the owner donates the property to him who purchased it from one who is not its owner. This opinion is correct.

3. Ulpianus, On the Edict, Book LXXV.

Payment of the appraised value of the property in court resembles a purchase.

4. Javolenus, On Plautius, Book II.

A purchaser knew that a part of the land which he bought belonged to another. The opinion was given that he could not obtain any of the land by virtue of long possession. I think that this is true, if the purchaser was not aware what part of the land belonged to another; for if he knew that it was a certain tract of it, I have no doubt that he could obtain the remainder on the ground of long possession.

(1) The same rule of law applies, if a man who purchased an entire tract of land was aware that an undivided part of it belonged to someone else; for he can not only acquire that part by usucaption, but he will not be prevented from acquiring the remaining parts by long possession.

5. Modestinus, Pandects, Book X.

If I have pledged property with you, and then steal and sell it, a doubt arises as to whether it can be acquired by usucaption. The better . opinion is that it can be so acquired.

6. Pomponii's, On Sabinus, Book XXXII.

Where anyone who is in a way to acquire by usucaption any property, either as heir or as purchaser, has claimed it by a precarious title, he cannot acquire it by usucaption. For what difference is there between these things, when he claims the property by a precarious title, he ceases in both instances to hold possession under his first title?

(1) If, out of ten slaves whom I have purchased, I think that some belong to other persons, and I know which ones they are, I can acquire the others by usucaption. If, however, I do not know which of them belong to others, I cannot acquire any of them by usucaption.

(2) The time for acquiring by usucaption having expired after the death of a man who purchased a slave, although the heir may not have begun to possess the slave, he will still become his, provided no one else has obtained possession of him in the meantime.

7. Julianus, Digest, Book XLIV.

A certain person who possessed a tract of land, as purchaser, died before the time had elapsed for acquiring the land by usucaption, and the slaves who had been left in possession of the property departed with the intention of abandoning it. The question arose whether the time of long possession would, nevertheless, continue to benefit the heir. The answer was, that even if the slaves did leave, the heir could profit by the time.

(1) If I obtain the Cornelian Estate, as purchaser, by virtue of long-continued possession, and I add to it a part of some adjoining land, can I also obtain this portion as purchaser during the remaining time necessary for prescription; or can I acquire it by usucaption during the time prescribed by law? I gave it as my opinion that the adjacent land, which was added to that already purchased, has its own peculiar and distinct condition, and therefore that possession of both tracts must be separately obtained, and must be acquired by long possession in accordance with the time prescribed by law.

(2) My slave directed Titius to purchase a tract of land for him, and Titius transferred the possession of the same to the slave after his manumission. The question arose whether he could obtain it by long possession. The answer was, that if my slave had directed Titius to purchase the land, and Titius had delivered it to him after his manumission, whether he believed that the slave's peculium had been given to him, or did not know that it had not, the slave could, nevertheless, obtain the land by long-continued possession, because he either knew that his peculium had been given him, or he ought to have known it, and hence he resembles one who pretends to be a creditor.

If, however, Titius knew that his peculium had not been given to the slave, he should be understood to have rather bestowed the land as a donation than, to have relinquished it for the discharge of a debt which was not due.

(3) If a guardian should steal the property of his ward and sell it, usucaption will not take place before it has been again placed under the control of the ward; for the guardian is only considered to occupy the

place of the owner with reference to the property of his ward when he is administering the affairs of the guardianship, and not when he is despoiling his ward.

(4) Where anyone in good faith purchases land belonging to another and loses possession of the same, and afterwards, when he recovers it, ascertains that it belongs to someone else, he cannot acquire it by lapse of time, for the reason that the beginning of the second possession is defective. Nor does he resemble one who, at the time of the purchase, believed the land to belong to the vendor, but when it was delivered, knew that it belonged to someone else; for, when possession has once been lost, the beginning of the recovered possession must again be taken into consideration. Therefore, if a slave is returned at a time when the purchaser was aware that he belonged to another, usucaption will not take place; even though before he sold him he was in such a position that he could acquire him by usucaption.

The same rule applies to one who has been ejected from land, and, knowing that it belonged to another, recovers possession of it by means of an interdict.

(5) Anyone who knowingly purchases from one whom the Prsetor has forbidden to dispose of the property of an estate, on account of his being suspected of not being the heir, cannot acquire it by usucaption.

(6) If your agent sells a tract of land for only thirty aurei which he could have sold for a hundred, in order to cause you injury, and the ipurchaser is not aware of the fact, there is no doubt that the latter can acquire the land by long-continued possession; for even where anyone knowingly sells land belonging to another to one who is not aware that this is the case, long-continued possession is not interrupted.

If, however, the purchaser should be in collusion with the agent, and, for the sake of a reward, corruptly induces him to sell the property for less than it was worth, the purchaser will not be understood to have acted in good faith, and he cannot acquire the land by prescription. If he avails himself of an exception on the ground that the land was sold with the consent of the owner, and the latter brings an action to recover it, the owner can avail himself of a reply based on fraud.

(7) Stolen property is not understood to be again brought' under the control of the owner, even if he regains possession of the same, if he does not know that it has been stolen from him. Therefore, if I should give in pledge a slave who has been stolen from you, and you are not aware that he is yours, and, after payment of the debt, I should sell him to Titius, Titius cannot acquire him by usucaption.

(8) A freeman who is serving us in good faith as a slave, while managing our property, can acquire other property for us in the same way in which we are accustomed to acquire it by means of our own slaves. Hence, as we obtain the ownership of property either by delivery or by usucaption through the intervention of a person who is free, so, if a contract for a sale is entered into by means of the peculium of a slave, to which we are entitled, we can acquire the property by usucaption, even if we are not aware that the purchase has been made.

8. The Same, On Minicius, Book II.

Where anyone buys slaves knowing that the vendor will immediately squander the money paid for them, many authorities have held that he will, nevertheless, be a bona, fide purchaser in good faith; and this is true. For, how can he be considered to have acted in bad faith, who bought the slaves from their master, unless he bought them from a man of licentious life, who will immediately give the money to a harlot, for then he cannot acquire the slaves by usucaption?

9. The Same, On Urseius Ferox, Book HI.

A man who has received from his own slave a female slave in consideration of the grant of his freedom, can, as a purchaser, acquire by usucaption the child of the said female slave.

10. The Same, On Minicius, Book II.

A slave, in consideration of his freedom, gave to his master a female slave whom he had stolen. She conceived. The question arose whether her master could acquire her child by usucaption. The answer was that the master could, as purchaser, acquire the child by usucaption, for he gave something for the woman, and a kind of sale was made between the slave and his owner.

11. Africanus, Questions, Book VII.

_ It is usually said that he who thinks that he has bought something and did not do so cannot, as a purchaser, acquire it by usucaption; but this is only true to the extent that the purchaser must have no just cause for entertaining his erroneous opinion. For if a slave or an agent who has been directed to purchase the property should persuade his principal that he has done so, and deliver the property to him, the better opinion is that usucaption will take place.

12. Papinianus, Opinions, Book X.

When a legatee has been placed in possession of property, this can be acquired by usucaption by the heir, as purchaser, the right of praetorian pledge being reserved.

13. Scsevola, Opinions, Book V.

A certain man purchased, in good faith, a tract of land belonging to another, and began to build a house upon it before the time for acquiring possession of it by prescription had elapsed; and the owner of the land, having notified him before the term fixed by law had expired, continued to retain possession. I ask whether the prescription was interrupted, or, having once begun, continued to run. The answer was that, in accordance with the facts stated, it had not been interrupted.

14. The Same, Digest, Book XXV.

The estate of a sister, who died intestate, passed to her two brothers, one of whom was absent and the other present. The one who

was present acted for the absent one, and sold to Lucius Titius, a bona fide purchaser, an entire tract of land in his own name and in that of his brother.

The question arose whether the purchaser, knowing that half of the land belonged to the absent heir, could acquire the entire tract by prescription. The answer was that he could do so, if he believed that it had been sold by the authority of the brother who was absent.

TITLE V. / • CONCERNING POSSESSION As HEIR OR As POSSESSOR.

1. Pomponius, On Sabinus, Book XXXII.

Nothing can be acquired by an heir through usucaption out of the property of a person who is living, even though the possessor thought that it belonged to one who is dead.

2. Julianus, Digest, Book XLIV.

When anyone is placed in possession of an estate for the preservation of a legacy, he does not interrupt the possession of him who acquires by usucaption as heir, for he holds the property for safe-keeping. What then results? He will retain the property by the right of pledge, even after the time required for usucaption has elapsed, and he will not relinquish it until his legacy has been paid to him, or his claim to it has been satisfied.

(1) The common opinion that no one can change the title of his own possession must be understood to apply, not only to civil, but also to natural possession. Therefore, it has been held that neither a tenant, nor anyone with whom property has been deposited, or lent, can, as heir, acquire it by usucaption, for the purpose of profiting by it.

(2) Servius denies that a son can, in the capacity of heir, acquire by usucaption property which has been given to him by his father; for he held that natural possession of it was in the hands of the son during the lifetime of his father. The result of this is that, where a son has been appointed heir by his father, he cannot acquire by usucaption any portion of the estate given to him by the former so far as this may affect the shares of his co-heirs.

3. Pomponius, On Quintus Mucius, Book XXIII.

Many authorities hold that if I am the heir, and think that certain property belongs to the estate, but which really forms no part of it, I can acquire it by usucaption.

4. Paulus, On the Lex Julia et Papia, Book V. It is established that he who has a right to make a will can, in the capacity of heir, acquire property by usucaption.

TITLE VI. CONCERNING POSSESSION ON THE GROUND OP DONATION.

1. Paulus, On the Edict, Book LIV.

He to whom property has been delivered as a gift acquires it by usucaption, because of the donation. It is not sufficient to think that this was the case, but it is necessary for the donation actually to be made.

(1) If a father makes a donation to his son whom he has under his control, and then dies, the son cannot acquire the property given by usucaption, for the reason that the donation is void.

(2) Where a donation is made between husband and wife, usucaption does not take place. Moreover, Cassius says that if a husband should give property to his wife, and a divorce should then take place, usucaption cannot be acquired because the wife cannot, herself, change the title to possession.

He states that the rule is different, and that she can obtain the property by usucaption after the divorce, if the husband has allowed her to use the property just as if he was understood to have donated it to her. Julianus, however, thinks that a wife is in possession of property donated by her husband.

2. Marcellus, Digest, Book XXII.

Where anyone donates property belonging to another, and determines to revoke the donation, even if he has instituted proceedings to recover it, the usucaption will continue to run.

3. Pomponius, On Quintus Mucius, Book XXIV.

When a husband makes a donation to his wife, or a wife to her husband, and the property donated belongs to another, the opinion of Trebatius is, if the party who made the donation does not become any poorer by doing so, the possessor can acquire the property by usucaption, is correct.

4. The Same, On Sabinus, Book XXXII.

If a father makes a donation to his daughter, who is under his control, and has disinherited her, and the heir ratines the donation, she can begin to acquire it by usucaption from the day when the ratification was made.

5. Scsevola, Opinions, Book V.

Where anyone has begun to acquire a slave by usucaption, as a gift, and manumits him, the act of manumission is void, because he has not yet obtained the ownership of the slave. The question arose whether he had ceased to acquire him by usucaption. The answer was that with reference to the person in question, he seemed to have relinquished possession, and hence usucaption was interrupted.

6. Hermogenianus, Epitomes of Law, Book II.

When sale has been made which is, in fact, a donation, the property delivered is acquired by usucaption, as a purchase, and not as a gift.

TITLE VII.

CONCERNING POSSESSION ON THE GROUND OP ABANDONMENT.

1. Ulpianus, On the Edict, Book XII.

Where property is considered to be abandoned, it immediately ceases to be ours, and belongs to the first occupant, because it ceases to belong to us under the same circumstances that it is acquired by others. /

2. Paulus, On the Edict, Book LIV.

We can acquire property on the ground of abandonment, if we know that it is considered as relinquished by its owner.

(1) Proculus holds that the property does not cease to belong to .the owner, unless possession of it is acquired by someone else. Julianus, however, thinks that it ceases to belong to the owner when he abandons it, but that it does not become the property of another, unless he obtains possession of it. This is correct.

3. Modestinus, Differences, Book VII.

An inquiry is sometimes made whether a portion of anything can be considered to have been abandoned. And, indeed, if a joint-owner gives up his share of the common property, it ceases to belong to him, so that the same rule is applicable to a portion that is to all. The sole owner of property, however, cannot retain a part of the same and abandon the remainder.

4. Paulus, On Sabinus, Book XV.

We can acquire by usucaption property which is considered to be abandoned, when we think that this is the case, even if we do not know by whom it has been abandoned.

5. Pomponius, On Sabinus, Book XXXII.

If you possess any article which is considered to have been abandoned, and I, knowing this to be the case, purchase it from you, it is established that I can acquire it by usucaption, and the objection that it is not included in your property cannot be raised. For if I knowingly purchase property given to you by your wife, for the reason that you have done this, as it were, with the consent and permission of the owner, the same rule will apply.

(1) Whatever anyone considers to have been abandoned by himself immediately becomes mine, if I take it. Hence, if anyone throws away money, or releases birds, although he intends that they shall belong to anyone who may seize them, they, nevertheless, become the property of him whom chance may favor; for where anyone relinquishes the ownership of property, he is understood to have intended it to belong to anyone else whomsoever.

6. Julianus, On Urseius Ferox, Book III.

No one can acquire property by usucaption on the ground of abandonment who erroneously thinks that it has been abandoned.

7. The Same, On Minicius, Book II.

When anyone finds merchandise which has been thrown overboard from a ship, the question arises whether he cannot acquire it by usucaption, for the reason that it should be considered as abandoned. The better opinion is that he cannot acquire it by usucaption on the ground of abandonment.

8. Paulus, Opinions, Book XVIII.

Sempronius attempted to raise a question as to the condition of a certain Thetis, alleging that she was the daughter of one of his female slaves. He, however, having been sued by Procula, the nurse of Thetis, in an action to compel him to reimburse her for Thetis's support, answered that he did not have the means to make payment, but that the nurse should restore the child to her father, Lucius Titius. The nurse then instituted proceedings to prevent any question from being raised afterwards by the said Sempronius. Lucius Titius, after having paid Seia Procula her claim for support, publicly manumitted the child.

I ask whether the freedom granted to Thetis can be revoked. Paulus answered that, as the owner of the female slave to whom Thetis was born was considered to have abandoned the latter, she could obtain her freedom at the hands of Lucius Titius.

TITLE Vill. CONCERNING POSSESSION ON THE GROUND OF A LEGACY.

1. Ulpianus, Disputations, Book VI.

He is considered to be in possession as a legatee to whom the bequest has been left, for possession and usucaption based on the legacy will take place only in favor of the person to whom the property has been bequeathed.

2. Paulus, On the Edict, Book LIV.

If I possess anything which I think was bequeathed to me, and this is not the case, I cannot, in the capacity of legatee, acquire it by usucaption.

3. Papinianus, Questions, Book XXII.

No more than where anyone thinks that he has purchased something which he has not purchased.

4. Paulus, On the Edict, Book LIV.

Property can be acquired by usucaption on the ground of its being a legacy, where something belonging to another has been bequeathed,

or where it belonged to the testator, and it is not known that it was taken away by a codicil; for, in instances of this kind, a good reason exists for usucaption to take effect.

The same rule can be said to apply where the name of the legatee is in doubt, as, for example, where a bequest is made to Titius, and there are two individuals of that name, so that one of them thinks that he was meant, when this was not the case.

5. Javolenus, On Cassius, Book VII.

Property delivered as a legacy can be acquired by usucaption on this ground, even though the owner of it may be living,

6. Pomponius, On Sabinus, Book XXXII.

If the person to whom the property was delivered thinks that the testator is dead.

7. Javolenus, On Cassius, Book VII.

No one can acquire property by usucaption on account of a legacy, unless he himself had a right to make a will for the benefit of the testator, because possession of this kind depends upon testamentary capacity.

8. Papinianus, Questions, Book XXIII.

If the legatee takes possession of the legacy without any question arising to affect his title, even if the bequest has not been delivered to him, he will be entitled to acquire by usucaption the property bequeathed to him.

9. Hermogenianus, Epitomes of Law, Book V.

A person to whom a legacy has been legally bequeathed acquires property by usucaption, as a legatee. If, however, it has not been left in conformity to law, or the legacy has been taken away, it has been decided, after much controversy, that the property can be acquired

by usucaption on account of the legacy.

i

TITLE IX. CONCERNING POSSESSION ON THE GROUND OP A DOWRY.

1. Ulpianus, On Sabinus, Book XXXI.

A right to usucaption, and one which is extremely just, is that which is said to exist on account of a dowry, so that anyone who receives property by way of dowry can acquire it by usucaption, after the expiration of the time usually prescribed by law in the case of those who acquire property in this manner as purchasers.

(1) It makes no difference whether certain specified articles, or the entire amount of the property, is given by way of dowry.

(2) In the first place, let us consider the time when anyone can acquire property by usucaption as dowry; and whether this is to be-

gin after the date of the marriage, or before it. A question commonly discussed is, whether a man who is betrothed (that is to say, one who has not yet been married), can acquire property by usucaption, because of its being a dowry. Julianus says that, if the woman who is betrothed delivers the property to the other party, with the intention that it shall not belong to him until after the marriage has been solemnized, usucaption will not take place. If, however, this was evidently not the intention, it should be held (so Julianus says) that the property immediately becomes his; and if it belongs to someone else, it can be acquired by usucaption. This opinion seems to me to be plausible. But, before the marriage takes place, usucaption becomes operative, not because of the dowry, but on the ground of ownership.

(3) During the existence of the marriage, usucaption takes place between the persons who are married, on account of the- dowry. If, however, the marriage does not exist, Cassius says that usucaption cannot occur as there is no dowry.

(4) He also says that if the husband thinks that he is married, when this is not the case, he cannot acquire the property by usucaption, because there is no dowry. This opinion is reasonable.

2. Paulus, On the Edict, Book L1V.

If property which has been appraised is delivered before the marriage has been solemnized, it cannot be acquired by usucaption, either on the ground of purchase or on that of ownership.

3. Scsevola, Digest, Book XXV.

Two daughters became the heirs of their father who died intestate, and each one of them gave slaves belonging to them in common by way of dowry, and then, some years after the death of their father, they brought suit in partition. As the husbands had for many years held possession of the slaves given by way of dowry as dotal slaves, the question arose whether they could be held to have acquired them by usucaption, if they believed that they belonged to those who had given them as dowry. The answer was that there was nothing in the case stated to prevent them from being acquired by usucaption.

TITLE X.

CONCERNING POSSESSION ON THE GROUND OF OWNERSHIP. 1. Ulpianus, On the Edict, Book XV.

Possession on the ground of ownership exists where we think we acquire property for ourselves, and have possession of it under the title by which it was obtained, as well as because of ownership; as, for instance, when, by virtue of a purchase I hold possession both as purchaser and as owner. Moreover, I hold possession both as legatee and donee, and also on the ground of ownership, where property has been donated or bequeathed to me.

(1) Where, however, property has been delivered to me under some good title, for example, by that of purchase, and I acquire it by usucaption, I begin to hold possession of it as mine, even before acquiring it by usucaption. But can any doubt arise as to whether I cease to hold it, as purchaser, after usucaption has taken place? Mauri-cianus says that he thinks that I do not cease to hold it.

2. Paulus, On the Edict, Book LIV.

There is a kind of possession which is said to be based upon ownership. For in this way we possess everything which we acquire from the sea, the land, or the air, or which becomes ours by the action of the alluvium of streams. We also possess any offspring of property which we hold in the name of others; as, for instance, we hold as our own the child of a female slave belonging to an estate, or who has been purchased; and, in like manner, we possess the profits derived from property which has been bought or donated, or which constitutes part of an estate.

3. Pomponius, On Sabinus, Book XXII.

You delivered to me a slave whom you erroneously thought I was entitled to under the terms of a stipulation. If I knew that you did not owe me anything, I cannot acquire the slave by usucaption; but if I did not know it, the better opinion is that I can acquire him by usucaption, because the delivery, which was made for what I think to be a good consideration, is sufficient to enable me to possess as my own the property which has been delivered to me.

Neratius adopted this opinion, and I think it is correct.

4. The Same, On Sabinus, Book XXXII.

If you purchased in good faith a female slave who had been stolen, and you have in your possession the child of said slave, that she conceived while in your hands, and, before the time prescribed for usucaption has elapsed you ascertain that the mother of the said child has been stolen, Trebatius thinks that the child which is possessed in this manner can unquestionably be acquired by prescription. I think that a distinction should be made in this case, for, if within the time prescribed by law for usucaption to take effect ygu-do not ascertain to whom the slave belongs or if you knew this, without being able to notify the owner of the slave, or if you were able to notify him, and did it, you can acquire the slave by usucaption.

If, however, you were aware that the slave had been stolen, and you could have notified the owner, but failed to do so, the contrary rule will apply; for you will be considered to have possessed her clandestinely, as the same person cannot possess property as his own and clandestinely at the same time.

(1) When a father divides his property among his children, and, after his death, they retain it, for the reason that it was agreed among them that this division of his estate should be ratified, usucaption on the ground of ownership will benefit so far as any property belonging

to others, which may be found among the effects of the father, is concerned.

(2) Where property has not been bequeathed, but has been delivered as such by the heir through mistake, it is established that it can be acquired through usucaption by the legatee, because he possesses it as owner.

5. Neratius, Parchments, Book V.

The usucaption of property which we have obtained for other reasons than because we think that we are entitled to it as our own has been established in order to put an end to litigation.

(1) A person can acquire by usucaption the property of which he has possession, thinking that it belongs to him; even if this opinion is false. This, however, should be understood to mean that a plausible error of the party in possession does not interfere with his right to usucaption; for instance, if I possess some article because I erroneously think that my slave, or the slave of someone whom I have succeeded as heir at law, purchased it, as ignorance of the act of another is an excusable mistake.

THE DIGEST OR PANDECTS. BOOK XLII.

TITLE I.

CONCERNING RES JUDICATA AND THE EFFECT OF DECISIONS, AND INTERLOCUTORY DECREES.

1. Modestinus, Pandects, Book VII.

By res judicata, is meant the termination of a controversy by the judgment of a court. This is accomplished either by an adverse decision, or by discharge from liability.

2. Ulpianus, On the Edict, Book VI.

The magistrate having jurisdiction of a suit does not always observe the time prescribed by law, for sometimes he shortens, and sometimes he extends it, dependent upon the nature of the case, the amount of property in dispute, or the obedience or obstinacy of the parties; but rarely is the judgment executed within the time fixed by law, as, for example, where the question of support is to be determined, or relief is to be granted to a minor of twenty-five years of age.

3. Paulus, On the Edict, Book XVII.

He who has power to condemn has also power to discharge from liability.

4. Ulpianus, On the Edict, Book LVII1.

If an agent does not appear, an action to enforce judgment against him will be refused, and will be granted against his principal; but if he does appear, it will be granted against him. In this instance, however, he is not held to have appeared in court who has been appointed agent in a case in which he is interested; for there is another reason why he cannot refuse to plead in an action to enforce judgment, and that is because he has become an agent in his own behalf, and not in that of another.

(1) A guardian and a curator are in such a position that they are not considered to have appeared in court, and therefore, an action to enforce judgment should not be granted against them.

(2) The agent of a municipality can avoid execution in a case where judgment has been rendered, for an action to enforce judgment should be granted against the citizens.

(3) The Prsetor says: "I will grant an action to compel the party against whom a decision has been rendered to pay the money." Hence the party who has lost his case is required to make payment. But what should be done, and what shall we say, if he is not prepared to make payment, but is ready to satisfy the claim in some other way ? Labeo says that it should be added, "If the party who had lost his case should not satisfy the claim," for it may happen that he has a solvent person to offer in his stead. The reason, however, for requiring payment is that the Prater was unwilling that a new obligation should be created out of the former one; and therefore he provides that the money shall be paid. The opinion of Labeo should be adopted for good and sufficient reasons.

(4) If, after the decision and by agreement of the litigants, security is furnished by the party who lost his case, the rule will be relaxed with reference to him if a new contract is made; but if this is not done for the purpose of entering into a new contract, the order of execution will stand. If, however, pledges are accepted, or securities are furnished to provide for the execution of the judgment, the result will be that we must hold that the execution will remain just as if something had been added to the decision in the case, and nothing had been withdrawn from it. The same rule should be gbserved in the case of a party whose agent had judgment rendered against him.

(5) When a decision is rendered against anyone requiring him to make payment within a certain time, from what date must we compute the time for the action to enforce judgment? Shall we do so from the day when the decision was rendered, or from the day when the time prescribed in cases of this kind has elapsed? If the judge fixed a shorter time than that prescribed by law, what is lacking through his decision must be supplied by the law. If, however, the judge, in fixing the period, included a greater number of days than those legally allowed, the unsuccessful party will be granted not only the time prescribed by law, but also that which the judge granted in.addition.

(6) We must understand a person who has been condemned to be one who has had a judgment legally rendered against him in such a way that it will stand. If, however, for any reason, the judgment should prove to be of no effect, it must be said that the term "condemnation" will not be applicable.

(7) We should understand a discharge from liability to mean not only that the party pays the claim, but that he is entirely released from the obligation upon which the judgment was founded.

(8) Celsus says that if you had a decision rendered against you in a noxal action, and by way of reparation you gave up a slave in whom another had the usufruct, you will still be liable to the action to enforce judgment; but if the usufruct should be extinguished, he states that you will be released.

5. The Same, On the Edict, Book LIX.

The Pra?tor says, "The decision with reference to the property was rendered by the magistrate having jurisdiction." It would be better if he had said, "By him who had cognizance of the matter," for the word "cognizance" also has reference to judges who have no jurisdiction of these questions, but who have the right to examine certain other cases.

(1) If a judge should decide against anyone as follows, "Let So-and-So deliver to Titius what he has received under the will or codicil of Msevius," we must understand this to mean the same as if he had expressly mentioned the amount which had been left by the will or the codicil.

The same rule will apply if he had decided that a verbal trust should be executed.

6. The Same, On the Edict, Book LXVI.

Where a decision is rendered against a soldier, who has completed his term of military service, he is only compelled to pay what his resources will permit.

(1) Where a party to a suit has been condemned to pay ten aurei, or to surrender the cause of the damage by way of reparation, he will be compelled, by the action to enforce judgment, to pay the sum of ten aurei, because he obtains from the law the power of surrendering the animal which caused the damage. He, however, who stipulated for either the payment of ten aurei or the surrender of the animal, or slave, by way of reparation, cannot claim the ten aurei, because each of these things is included in the agreement and we were able to stipulate for them separately. A decision calling for the surrender of the slave or animal by way of reparation will be void, but it follows a judgment requiring the payment of the money, and therefore proceedings to collect the ten aurei should be instituted under the judgment, for it has reference to them alone, and the surrender of the animal or the slave by way of reparation is granted by the law.

(2) He who, by his own authority, sells the property of anyone whom, he has defeated in a lawsuit, will be liable to an action of theft, as well as one of robbery with violence.

(3) The action to enforce the execution of a judgment is a perpetual one, includes the pursuit of the property, and lies both for and against an heir.

7. Gaius, On the Edict of the Urban Prsetor, Title: On Res Judicata.

There is, at present, no doubt that he against whom judgment has been rendered can be released in many ways within the time prescribed for execution; although, during that time, proceedings in execution can not be instituted against him, because, where a case has been decided, the time fixed by law has been established in favor of the party who lost his case, and not against him.

8. Paulus, On Plautius, Book V.

If a slave who is claimed under the terms of a stipulation dies after issue has been joined in a case, the defendant will not be released from liability, and it has been decided that he must render an account of the profits.

9. Pomponius, On Plautius, Book V.

Judgment cannot be rendered by a magistrate or an arbiter against a person who is insane.

10. Marcellus, Digest, Book II.

A man who falsely represents himself to be the head of a household, who borrows money, and who has been disinherited by his father, should have judgment rendered against him, even though he cannot make payment.

11. Celsus, Digest, Book V.

If I have stipulated for something to be done on the Kalends of a certain month, and judgment has been rendered some time after the Kalends of that month, the amount of damages must be estimated in proportion to my interest in having the work done on the date above mentioned; for if the estimate is made from that time, I would have no further interest than in what could be paid later.

12. Marcellus, Digest, Book IV. t In decisions having reference to deposits or loans for use, although the property may have been lost through the fraud of the defendant, it is customary to grant him relief by compelling the owner to transfer to him his rights of action.

13. Celsus, Digest, Book VI.

Where anyone stipulated for ten aurei to be paid by one person and security to be given by another, the amount of damages should be estimated in proportion to the interest of the stipulator in having security furnished him. This interest can amount to as much as what is due, or to less, or sometimes even to nothing; for no estimate can be made of groundless fear. If, however, the debt should be paid,

there will be no remaining interest to be estimated, and if a certain amount of it has been paid, the value of the interest will decrease in proportion.

(1) When anyone promises that he will prevent the stipulator from sustaining any loss, and he does so, and the stipulator does not suffer any damage, he is considered to have done what he agreed to. If he fails to do this, judgment will be rendered against him for a certain sum of money, for the reason that he did not do what he promised, as happens in all kinds of obligations which relate to the performance of certain acts.

14. The Same, Digest, Book XXV.

Whatever the Praetor ordered or forbade to be done he can annul by a contrary decision, or renew; but this does not apply to final decrees.

15. Ulpianus, On the Duties of Consul, Book HI.

It was stated by the Divine Pius in a Rescript addressed to the magistrates of the Roman people, that those who appoint judges or arbitrators must authorize the execution of the judgments rendered by them.

(1) Our Emperor and his Father stated in a Rescript that even the governor of a province could execute a judgment pronounced at Rome, if he was directed to do so.

(2) Hence, in the judicial sale of anything which has been taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus that the governors of provinces execute judgment.

(3) If property taken in execution does not find a purchaser, it was stated in a Rescript by our Emperor and his Divine Father that it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered.

The property is adjudged to him in proportion to the amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having mad.e an agreement for the satisfaction of his claim; nor can he say that he held the property in pledge for a certain amount and bring an action to recover the balance.

(4) If a controversy arises concerning property taken in execution, it has been decided by our Emperor that those who are executing the judgment shall make an examination of it, and if they ascertain that it belongs to the party who was defeated, they must execute the judgment. It must, however, be noted that they are obliged to make this examination summarily; nor can their decision prejudice the debtor, if they think that the property should be released as belonging to the party who raised the controversy, and not to him in whose name it was taken in execution; nor should he to whom it is delivered be immediately entitled to it by virtue of the decree, if the property is such that it can be recovered from him in the ordinary course of law. Hence, the result is that the matter will remain in its original condition and the property affected by the judgment can only benefit the aforesaid party by usucaption. It must, however, be said that where a dispute arises with reference to what has been taken in execution it should be relinquished, and other property be taken with respect to which no controversy exists.

(5) Let us see, if the property taken in execution has been pledged, whether it can be sold, so that the creditor having been satisfied, any remainder can be applied to the judgment. And, although a creditor cannot be compelled to sell property which he received by way of pledge, it can, however, be kept until execution on the judgment is issued, and if the property seized should find a purchaser, who, after the creditor has been satisfied, is ready to pay any balance remaining, the sale of this property also may be allowed.

It is not held that the condition of the creditor becomes any worse, as he has obtained that to which he was entitled, nor should his right of pledge be released before his claim has been satisfied.

(6) If, after the property taken in execution has been adjudged, any controversy arises with reference to the purchaser, let us see whether the magistrate who executed the judgment will have jurisdiction of the matter. I do not think that there is any ground for further inquiry, as, when the purchase has once been perfected, he who bought the property must assume the risk; and certainly, after the purchaser has been given possession, the duty of the judge is at an end.

The same rule will apply, if the property is adjudged to him in favor of whom the decision was rendered.

(7) If the purchaser to whom the property was adjudged by the court does not pay the price, let us see whether the magistrates, whose duty it is to execute the judgment, should call him to account. I do not think that they can go any farther, otherwise the proceedings would become interminable.

But what can we say in a case .of this kind? Shall they render judgment against the purchaser, and issue execution against him? Or shall they immediately consider the case as decided? And what must be done if the purchaser denies that he bought the property, or alleges that he has paid for it? The better opinion will be for the judge not to interfere, and especially since the party in whose favor the judg-

ment was rendered has no right of action against him who obtains the property, and besides suffers no wrong; as it is necessary for property taken in execution and sold to be paid for in cash, and not that the money shall be paid after a certain time. And, indeed, if the court should interfere, it ought only to do so to the extent of taking and selling the property which had been adjudged, just as if it had not been released from the lien of the judgment.

(8) Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution.

(9) But let us see whether only a credit which is acknowledged by the debtor can be levied on, or whether this can be done if he denies his liability. The better opinion is, that only that should be levied on which he admits to be due. If, however, he should deny that he owes the claim, it would be perfectly proper not to include it; unless someone, following the example of the seizure of movable property, should proceed still farther, and say that the judges themselves ought to make an investigation of the claim, as they do in the case of other personal effects, but it is stated differently in a rescript.

(10) Again, what shall we say where the judges themselves take action with reference to the claim, and require the amount of the debt to be paid on the judgment; or if they should sell the claim, as they are accustomed to do, where other personal property is taken in execution? It is necessary that they should do whatever seems to them best in order to execute the judgment.

(11) If the party against whom the judgment is rendered has money deposited with bankers, it can also be taken into execution. And further, if there is any money in the hands of anyone else, which should be paid to the party who lost the case, it is customary to levy on it, and apply it to the payment of the judgment.

(12) Moreover, money which has been deposited with anyone for safe-keeping, or placed in a chest for the same purpose, can be levied on for the purpose of satisfying a judgment. Again, where money belonging to a ward has been placed in a chest for the purchase of land, it can be taken by the judge charged with the execution of the judgment, without the permission of the Praetor, and employed for the payment of the claim.

16. The Same, On the Edict, Book LXIIL

There are persons who can only be sued for amounts which they are able to pay; that is to say, without deducting their debts. Such persons are those against whom suit is brought on account of some partnership, for a partnership is understood to include all property.

The same rule applies to ascendants,

17. The Same, On the Edict, Book X.

As well as to a patron, a patroness, their children and their ascendants. Likewise a husband, when sued for a dowry, is only liable for what he can pay.

18. The Same, On the Edict, Book LXVI.

A soldier also, who has had judgment rendered against him, is after his discharge only compelled to pay to the extent of his means.

19. Paulus, On Plautius, Book VI.

Where there are several persons to whom money is due for the same reason, the position of the most diligent is preferable; and no deduction is made of what is due to persons of equal rank, as is the case in an action De peculio; for, in this instance, the position of the one who first proceeds is the most advantageous. The indebtedness should not, however, be deducted where suit is brought against a father or a patron, especially where the debt is due to persons of the same condition, as to other children or other freedmen.

(1) He, also, against whom an action is brought on account of a donation, can only have judgment rendered against me for the amount which he is able to pay; and he, in fact, is the only one with reference to whom the indebtedness should be deducted. So far as those to whom money is due for the same reason is concerned, the position of the most diligent is preferable. And, indeed, I do not think that everything that he has should be extorted from him, but that care should be taken not to reduce him to poverty.

20. Modestinus, Differences, Book II.

A husband can have judgment rendered against him in the case of a dowry, to the amount that he is able to pay; but, when he is sued by his wife on account of some other contract, by a Constitution of the Divine Pius he can also have judgment rendered against him to the extent of his means.

Equity also suggests that this same rule should apply where a wife is sued by her husband.

21. Paulus, On Plautius, Book VI.

Moreover, just as in the case of a husband, so also a father-in-law cannot have judgment rendered against him beyond his ability to pay. If, however, an action based on his promise of a dowry is brought against the father-in-law, can judgment be rendered against him to the extent of his means? This seems to be equitable, but it is not our practice, as Neratius states.

22. Pomponius, On Quintus Mucius, Book XXI.

This, however, is understood to mean where an action is brought against a father-in-law, to recover a dowry which has been promised after the marriage has been dissolved. But if suit is brought to recover the dowry, during the continuance of the marriage, relief should be granted him, in order that he may not have judgment rendered against him for more than he is able to pay.

(1) With reference to what has been stated as to the case of partners, namely, that they can have judgment rendered against them to the extent of their pecuniary resources, the Prsetor says in his Edict

that he will act if proper cause is shown. This will take place to prevent relief being granted to anyone who denies that he is a partner, or who is liable on account of fraud.

23. Paulus, On Plautius, Book VI.

If an action to recover a dowry is brought against an agent of the husband, and judgment is rendered during the lifetime of the latter, it can only be for the amount which he is able to pay, for the defender of the husband can only have judgment rendered against him for that amount; but if the husband should be dead, the judgment will include the entire dowry.

24. Pomponius, On Plautius, Book IV.

If a surety has been accepted for the payment of the debt or the judgment, it will be no advantage to him if the person for whom he bound himself has judgment rendered against him for the amount which he is able to pay.

(1) If the husband should not be solvent, he can take advantage of the fact that he is not able to make payment; for this privilege is granted to him personally, and will not profit his heir.

25. Paulus, On the Edict, Book LX.

It must be noted that the heirs of such persons are not liable to the extent of their ability to make payment, but for the entire amount.

26. Ulpianus, On the Edict, Book LXXVII.

If litigants should agree as to the amount for which judgment shall be rendered, it will not be improper for the judge to decide accordingly.

27. Modestinus, Opinions, Book 1.

The Governor of a province rendered a decision that a party should pay compound interest, contrary to the laws and the Imperial Constitutions, and, on this ground, Lucius Titius took an appeal from the unjust decision of the Governor. As Titius did not take his appeal in accordance with law, I ask whether the money can be collected under the judgment. Modestinus answered that if the judgment was for a specified sum, there was nothing in the case stated why execution could not be issued.

28.' The Same, Opinions, Book II.

Two judges rendered two different decisions. Modestinus gave it as his opinion that they should remain in suspense until a competent magistrate had confirmed one of them.

29. The Same, Pandects, Book VII.

The time granted to a party to satisfy a judgment rendered against him is also granted to his heirs and other successors, at least the time that has not expired, because the privilege is conceded rather to the case than to the person.

30. Pomponius, Various Passages, Book VII.

Where a certain sum of money is promised as a donation, and it is probable that the resources of the donor will be exhausted to such an extent that he will have almost nothing left, an action should be granted against him for what he is able to pay, so that enough may remain in his hands to enable him to live.

This rule ought, by all means, to be observed between children and parents.

31. Callistratus, Judicial Inquiries, Book II.

Time for payment should not only be granted to debtors who request it, but it should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim, according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, "Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property <:an be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution."

32. The Same, Judicial Inquiries, Book III.

Where a judge rules against constitutions which are cited, for the reason that he does not think them to be applicable to the case in question, he is not considered to have ruled against them improperly, and therefore an appeal can be taken from his decision; otherwise the matter will be held to have been finally determined.

33. The Same, Judicial Inquiries, Book V.

The Divine Hadrian, having been presented with a petition by Julius Tarentinus, in which he alleged that a decision had been rendered against him through the judge having been deceived by forged evidence, and by a conspiracy of his adversaries, wh'o had corrupted witnesses with money, the Emperor stated in a Rescript that he was entitled to complete restitution, as follows: "I have ordered a copy of the petition which was presented to me by Julius Tarentinus to be sent to you. If he proves that he has been oppressed by a conspiracy of his adversaries, and that their witnesses have been corrupted with money, you will inflict severe punishment; and if the decision of the judge was induced by false representations, you will grant complete restitution."

34. Licinius Rufinus, Rules, Book XIII.

If anyone objects to a party against whom judgment has been rendered retaining any provisions, or his bed, a penal praetorian action

should be granted against him; or, as some authorities hold, he can be sued for injury sustained.

35. Papirius Justus, Constitutions, Book II.

The Emperors Antoninus and Verus stated in a Rescript that, although it is not necessary to again begin proceedings on the ground of new documentary evidence having been discovered, they will, nevertheless, in matters relating to public business, permit such evidence to be used, if proper cause is shown.

36. Paulus, On the Edict, Book XVII.

Pomponius, in the Thirty-seventh Book on the Edict, says that where there are several judges investigating a matter involving freedom, and one of them is not sufficiently informed to render a decision, and the others agree; if the former swears that he is not sufficiently informed, and does not take further part in the proceedings, the others, who have agreed, can render judgment; because, even though the judge aforesaid may dissent, the decision of the majority will stand.

37. Marcellus, Digest, Book V.

All the judges are understood to have rendered a decision when they are all present.

38. Paulus, On the Edict, Book XVII.

When the number of judges is equal, and different opinions are given in a case involving freedom, judgment shall be rendered in favor of freedom (in accordance with the Constitution of the Divine Pius), but, in all other cases, judgment shall be rendered in favor of the defendant.

This rule must also be observed in criminal cases.

(1) If judges render decisions for different amounts, Julianus says that that for the smallest one must be adopted.

39. Celsus, Digest, Book HI.

Where three judges are appointed to hear a case, two of them cannot decide it, if one is absent, as all three have been ordered to hear it. If, however, the third is present, and does not concur with the others, the judgment of the two shall stand. For it is certainly true that all of them have rendered a decision.

40. Papinianus, Opinions, Book X.

It has been established that a party against whom a judgment has been rendered shall be deprived of the advantages attaching to the rewards given on account of the sacred crowns won in public contests, and that this money can be taken in execution for the satisfaction of the judgment.

41. Paulus, Questions, Book XIV.

Nesehnius Appollinaris: If you are about to make a donation to me, and I delegate you to pay my creditor, can an action be brought

against you for the entire amount? And if you are sued for the entire amount, do you think that it will be different, if I should not appoint you to pay my creditor, but someone to whom I desire to give an equal sum? And what must be done in the case of one who, desiring to give a donation to a woman, promises a dowry to her husband?

The answer was that the creditor cannot be barred by an exception, although the person who was delegated can avail himself of one against him in whose name he made the promise. The case of the husband is the same; and especially so, if he brings an action during the existence of the marriage. And, as the heir of the donor can have judgment rendered against him in full, so the surety, who rendered himself liable for the donation, can also be sued for the entire amount, as well as anyone else to whom the donation was not given.

(1) A certain person donated a tract of land. If he did not deliver it, he can have judgment rendered against him just like any other possessor. If, however, he delivered the land, judgment may be rendered against him for the entire crop, if he has not consumed it, and he cannot be released from liability, even if he surrenders it immediately. If he has ceased to hold possession through fraud, the donee shall be sworn in court, and judgment shall be rendered in accordance with the sum to which he makes oath.

(2) A donor, against whom judgment has been rendered for the full amount of the donation, is not liable to a sum beyond his ability to pay, which is an advantage conferred by the constitutions.

42. The Same, Opinions, Book HI.

Paulus gave it as his opinion that the Prsetor could not set aside a judgment which he had already rendered, but that he could, even on the same day when it was rendered, supply anything which had been omitted in the judgment, either for or against the defendant, and which had reference to matters contained therein.

43. The Same, Opinions, Book XVI.

Paulus also gave it as his opinion that where a number of parties had had judgment rendered against them for a certain sum of money, they could not by the same decision be compelled to pay any more than their respective shares. If judgment was rendered against three parties, and Titius paid his share, an action could Hot be brought against him under the same judgment to compel him to pay the shares of the others.

44. Scasvola, Opinions, Book V.

Suit was brought against a female ward on a contract agreed to by her father and authorized by her guardian, and she lost her case. Her guardians afterwards caused her to reject her father's estate, and hence it passed into the hands of the substitute, or her co-heirs.

The question arose whether or not they would be liable by virtue of the decision. It was held that an action should be granted against them, unless judgment had been rendered against the ward through the fault of her guardians.

45. Paulus, Decisions, Book I.

Proceedings which have begun can be dismissed on the day of trial, if the parties consent, and the judge permits this to be done; provided that the matter or the suit has not been judicially terminated.

(1) Nothing can be done to increase or diminish penal damages after judgment has been rendered, unless this is authorized by the Emperor.

(2) No judgment can be rendered against minors who are not defended, and have no guardian or curator.

46. Hermogenianus, Epitomes of Law, Book II.

It is not forbidden to amend the pleadings, provided the tenor of the decision remains unchanged.

47. Paulus, Decisions, Book V.

In every case judgment must be rendered in the presence of all the parties interested, otherwise it will only take effect with reference to those who are present.

(1) Where parties who have been repeatedly summoned neglect to defend their cause before the Treasury, they are liable to an action on judgment. This is understood to be the case where, having been notified several times, they refused to appear.

48. Tryphoninus, Disputations, Book II.

Decisions must be rendered by the Praetor in Latin.

49. Paulus, Manuals, Book II.

A son who has been disinherited, or who has rejected the estate of his father, cannot have judgment rendered against him, on a contract of his own, for more than he is able to pay. Let us see to what extent he shall be considered solvent, whether this relates to what remains after all his debts have been paid, as in the case of one who is sued on account of a donation, or does it apply to a husband and a patron, whose indebtedness is not deducted? It is unquestionably the law that payment should be made as in the case of a husband or a patron, for we should be more indulgent to a donor than to one who is obliged to discharge an actual debt,

50. Tryphoninus, Disputations, Book XII.

In order to prevent a donor from becoming impoverished by his own liberality.

51. Paulus, Manuals, Book II.

If anyone should cause his property to be fraudulently sold, he will be liable in full.

(1) -Where anyone refuses to admit a creditor to take possession of his property, which has been granted to him for its preservation,

and the vendor pays the creditor all that he is entitled to, the question arises whether the debtor will be released. I think that he would act dishonorably who wishes to obtain a second time what he has already received.

52. Tryphoninus, Disputations, Book XII.

If suit is brought against a husband for having appropriated the property of his wife, although this proceeding is said to have its origin in the partnership existing between husband and wife, the husband should have judgment rendered against him for the entire amount, as in this instance, it is based on an illegal act and a crime.

53. Hermogenianus, Epitomes of Law, Book I. The contumacy of those who refused to obey the summons of the court is punished by the loss of the case.

(1) He is considered to be contumacious who, after having been served with notice three times, or with the one which is ordinarily called peremptory instead of three, refuses to appear.

(2) He is not liable to the penalty for contumacy whom bad health, or business of great importance prevents from appearing.

(3) Persons are not held to be contumacious, unless being obliged to obey they decline to do so; that is to say, if they refuse to obey those who have jurisdiction over them.

54. Paulus, Decisions, Book I.

A peremptory summons issued against a warfl who is undefended, a person who is absent on business for the State, or a minor of twenty-five years of age, is of no force or effect.

(1) He who is summoned before a higher tribunal is not considered contumacious if he leaves the case unfinished in the lower court.

55. Ulpianus, On Sabinus, Book LI.

After a judge has once rendered his decision, he ceases to be judge so far as this case is concerned. It is our practice that a magistrate who has once rendered judgment for a larger or a smaller sum than was claimed cannot amend it, because he has performed the duty of his office well or ill, once for all.

56. The Same, On the Edict, Book XXVII.

According to a Rescript of the Divine Marcus, nothing can be demanded after a decision has been rendered, or a case has been decided by oath, or the defendant has confessed judgment in court, for the reason that a confession of judgment made in court is considered the same as a judgment.1

57. The Same, Disputations, Book II.

Advice was taken whether a decision rendered by a judge, who is under twenty-five years of age, is valid. It is perfectly correct to

1 "Confessus in judicia, pro judicata habetur, et quodammodo sua sententia damnatur."—ED.

hold that such a decision is valid, unless he was less than eighteen years of age. If a minor holds the office of a magistrate, it must certainly be said that his jurisdiction ought not to be questioned. If a judge, who is a minor, should be appointed with the consent of the parties, and they know his age, and agree that he shall preside in the case, it is most properly held that his decision will be valid. Hence, if a Praetor or a Consul, who is a minor, expounds the law and gives an opinion, his act will be valid; for the Emperor who appointed him a magistrate by his decree conferred upon him authority to transact all the business of his office.

58. The Same, Disputations, Book VII.

Property which has been taken in execution and sold can be recovered, if this was done without a judgment having been previously rendered.

59. The Same, On All Tribunals, Book IV.

In rendering judgment, it is sufficient if the judge mentions the amount, and orders it to be paid or furnished, or makes use of any other term which has this signification.

(1) It is, moreover, set forth in a rescript, that even if the amount is not stated in the decision, but the party who brought suit mentioned it, and the judge says, "Pay what is claimed," or "As much as is claimed," the decision will be yalid.

(2) When magistrates render a judgment for the principal, and with reference to the interest add, "If any interest is due, let it be paid," "Or let what interest is due be paid," their judgment is not valid; for they ought to ascertain the amount of interest and establish it by their decision.

(3) If anyone, having received a peremptory summons, has judgment rendered against him after his death, it will not be valid, because a peremptory summons is of no effect after the death of the defendant; and hence the judge must take cognizance of the case, just as if matters remained unchanged, and decide as seems to him best.

60. Julianus, Digest, Book V.

The following question has been raised. One of several litigants who was attacked by fever withdrew from the case; if the judge renders a decision in his absence, will he be considered to have acted according to law? The answer was, that dangerous illness demands delay, even if the parties and the judge are unwilling to grant it. Moreover, an illness is considered to be dangerous which offers an impediment to the transaction of business by anyone. What, however, can be a greater impediment to a lawsuit than that revolt of the body against nature which is designated fever ? Hence, if one of the parties has a fever at the time when the decision is rendered, it is considered as not rendered at all. Still, it can be said that there is a considerable difference in fevers, for if a person is otherwise healthy and robust, and at the time when the decision was rendered has a slight attack

of fever, or if he has a chronic or a quartan fever, and, nevertheless, is able to attend to his affairs, it may be said that his illness is not serious.

61. The Same, Digest, Book XLV.

In the action to enforce judgment, the plaintiff in favor of whom a decision was first rendered against the defendant is not entitled to preference.

62. Alfenus Varus, Epitomes of the Digest of Paulus, Book VI.

The question was raised whether a judge who had rendered an improper decision could render another on the same day. The answer was that he could not do so.

63. Macer, On Appeals, Book II.

It has often been stated in the Imperial Constitutions that judgments obtained by certain persons do not prejudice the rights of others. This, however, admits of a certain distinction, for in some instances a judgment rendered against certain persons does prejudice others who have knowledge of it, but, in other cases, does not injure even those against whom it was rendered.

A judgment is of no disadvantage to those who have knowledge of it, as where one of two heirs of a debtor has judgment rendered against him; for the right of the other to defend himself remains unimpaired, even if he knew that he was sued with his co-heir. Moreover, where one of two plaintiffs, having lost his case, acquiesces in the decision, the claim of the other is not prejudiced. This has been stated in a rescript. A decision rendered against certain parties injures others who are aware of it, when anyone who has a right to bring or defend an action before another suffers someone else to do so; as, for instance, where a creditor permits his debtor to bring suit involving the right to a pledge; or a husband allows his father-in-law, or his wife to institute proceedings to determine the ownership of property received by way of dowry; or a possessor permits the vendor to bring an action to establish the title to property which he has purchased. These points are understood to have been settled by many constitutions. For why should knowledge injure these parties, when it does not injure those previously mentioned? The reason for this is, that when anyone knows that his co-heir brings suit, he cannot prevent him from using any means which he may be able to employ in bringing or defending an action in which he is interested.

He, however, who suffers a former owner of the property in dispute to defend an action is, on account of his knowledge, barred by an exception, even though the suit was decided with reference to others; because the decision was rendered with his consent, so far as any right derived from the party appearing in the case was concerned. For if, through my intervention, my freedman is decided to be the slave or the freedman of another, my rights will be prejudiced.

A distinction, however, arises where Titius brings suit against you to recover a tract of land, which I allege belongs to me directly, and not through Titius; for even though judgment has been rendered against Titius with my knowledge, I still do not suffer any prejudice to my rights, as I do not claim the land by the same title under which Titius was defeated; and I cannot interfere to prevent him from availing himself of his alleged right, just as was the case with the co-heir above mentioned.

64. Scssvola, Digest, Book XXV.

A certain man employed in transacting the business of others having had judgment rendered against him, appealed, and the case was not disposed of for a long time. The appeal, having been held to have been taken on insufficient grounds, and the execution of the judgment prolonged, the question arose whether interest should be calculated for the time of the original judgment until the appeal was decided. The answer was that, according to the facts stated, a praetorian action should be granted.

TITLE II. CONCERNING CONFESSIONS.

1. Paulus, On the Edict, Book LVI.

He who confesses in court is held to have had judgment rendered against him, for he himself is, as it were, condemned by his own sentence.

2. Ulpianus, On the Edict, Book LVIII.

He who makes a mistake does not confess unless he is ignorant of the law.

3. Paulus, On Plautius, Book IX.

Julianus says that he who confesses that he owes a legacy should by all means be compelled to pay it, even if the property had never been in existence, or had ceased to exist. He, however, can be adjudged to pay the appraised value of the property for the reason that he who confesses is considered as having had judgment rendered against him.

4. The Same, On Plautius, Book XV.

If he against whom proceedings have been instituted under the Aquilian Law confesses that he has killed a slave, even though he may not have done so, and the slave is found to have been killed, he will be liable on account of his confession.

5. Ulpianus, On the Edict, Book XXVII.

Where anyone confesses that he owes Stichus, judgment should be rendered" against him; even if Stichus is already dead, or died after issue was joined in the case.

6. The Same, On All Tribunals, Book V.

He who confesses that he owes a specified sum of money is considered as having had judgment rendered against him; but this rule does not apply where the amount is uncertain.

(1) When anyone admits that he owes an uncertain amount of money, or something which is not specifically designated, as, for instance, if he says that he is obliged to deliver either Stichus or a tract of land, he must be urged to make his allegations more definite.

The same rule applies to him who admits that he owes some property, to compel him to state the amount.

(2) If I bring an action to recover a tract of land which is mine, and you admit that it is mine, you will occtipy the same position as if a judgment had been rendered declaring the land to belong to me. And, in any other kind of civil or honorary actions, and in all interdicts for the production of property, or its restitution, including prohibitory interdicts, if the party who is sued admits the indebtedness, it may be said that the Praetor must follow the provision of the Rescript of the Divine Marcus, and everything which he confesses to be due is held to have been judicially decided. Therefore, in actions in which time is granted for the restitution of property, it will also be granted for restitution to the party who confesses judgment; and if restitution should not be made, the value of the property shall be appraised in court.

(3) If anyone admits that a claim is valid in the absence of his adversary, let us see whether he should not be considered to have had judgment rendered against him; because he who makes oath with reference to his services is not liable, and it is not customary to condemn anyone in his absence. It is certain that it is sufficient for the confession to be made in the presence of an agent, a guardian, or a curator.

(4) Let us see whether it will be sufficient for an agent, a guardian, or a curator, to make the confession. I do not think that it will be sufficient.

(5) In the case of a confession by a ward, we require the authority of his guardian, we grant complete restitution to a minor against his confession.

(6) Those who have confessed judgment are entitled to time for payment after making their confession, just as parties are after judgment has been rendered.

7. Africanus, Questions, Book V.

Where suit was brought to compel the execution of a trust, the heir having admitted that he owed it, an arbiter was appointed to see that the property was delivered, who ascertained that nothing was due. The question arose whether the heir could be released from liability. I answered that it was important to learn why nothing was due, for if the reason was that the trust was void, the heir would not be released. But if it was because the testator was not solvent, or the heir had alleged before the Praetor that everything was paid, and

as a controversy had arisen, and a computation was difficult, a condition of affairs had caused the appointment of an arbiter, he could release the heir without exceeding his authority. For it is duty to discharge the heir, if, after the computation has been made, nothing is found with which to execute the trust; but, in the first instance, he should send the heir before the Prsetor in order that he may be discharged.

8. Paulus, On Sabinus, Book IV.

A party who confesses judgment should not have a decision absolutely rendered against him, when he acknowledged that he owes property the existence of which is uncertain.

TITLE III.

CONCERNING ASSIGNMENT. FOR THE BENEFIT OF CREDITORS.

1. Ulpianus, On the Edict, Book XVII.

The privilege of collecting money loaned for the repair of buildings is granted to a creditor.

2. The Same, On the Edict, Book XXI.

In personal actions, those Who have subsequently made contracts, and whose money has been paid to former creditors, are subrogated to them.

3. The Same, On the Edict, Book LVIII.

He who has made an assignment of his property is not deprived of it before the sale; and therefore, if he is ready to set up a defence, his property will not be sold.

4. The Same, On the Edict, Book LIX.

If he who makes an assignment afterwards acquires any property, he can be sued to the extent of his ability to pay.

(1) Sabinus and Cassius think that he who has made an assignment cannot any longer be annoyed, even by others to whom he is indebted.

5. Paulus, On the Edict, Book L.

He who repents of having made an assignment can, by setting up a defence, prevent it from being sold.

6. Ulpianus, On the Edict, Book LXIV.

If a man who has made an assignment acquires anything else of trifling value, after the sale has taken place, his property cannot be sold a second time. But, in what way can we make an estimate of this, in order to determine its value? Must it be determined by the

quantity of the property which has been acquired, or by its quality? I think that the question should be decided with reference to the quantity, provided we know that something has been left with him through compassion, as, for instance, a sum to be paid monthly or annually for his support; and in such a case, it is not necessary for his property to be sold a second time, for he should not be deprived of his daily subsistence.

The same rule will apply if the usufruct of property from which he only receives a sum sufficient for his support has been either granted or bequeathed to him.

7. Modestinus, Pandects, Book II.

When the property of a debtor is sold; upon the demand of creditors, a second sale of his property is allowed to be made until his entire indebtedness is discharged, provided the debtor has made acquisitions sufficient to justify the Prsetor in taking action.

8. Ulpianus, Book XXVI.

He who makes an assignment before he acknowledges his indebtedness, and before judgment is rendered against him, or he confesses in court, should not be heard.

9. Marcianus, Institutes, Book V.

An assignment can not only be made in court, but out of it. It is sufficient for it to be established by means of a messenger or a letter.

TITLE IV.

CONCERNING THE REASONS FOR POSSESSION BEING GRANTED.

1. Ulpianus, On the Edict, Book XII.

There are about three causes for which it is customary to place a creditor in possession of the property of his debtor: first, in order to protect it; second, to preserve a legacy; and third, in behalf of an unborn child. When possession is granted for the prevention of threatened injury, if security is not furnished, alj the property is not included, but only that from whose fall damage is expected to result.

2. The Same, On the Edict, Book V.

The Prsetor says: "I will order possession to be taken of the property of him who gave a surety for his appearance in court, if he does not permit access to himself, and is not defended."

(1) He does not give access to himself who acts in such a way as to prevent his adversary from approaching him. Hence, if the Praetor orders possession to be taken of the property of a person who conceals himself.

(2) But what if he does not conceal himself, but, being absent, is not defended? Can it be held that he does not permit access to himself?

(3) He is considered to be in a position to defend himself who does not render the condition of his adversary any worse by his absence.

(4) The words, "If he is not defended," are capable of a broader and more extensive interpretation, so that it is not sufficient if the party has begun to defend himself, and his defence does not continue; and it is no disadvantage to him if, at present, he offers to defend himself for the first time.

3. The Same, On the Edict, Book LIX.

The following question is raised by Julianus. If the father of a minor holds property in joint ownership with Titius, and an action in partition is brought against the minor, but is not defended, there will be no reason, on this account, for judgment to be rendered against the father; but must the property of the father be sold, or can it be taken possession of for its preservation, in behalf of the plaintiff?

Julianus says that if the father has collected any of the crops, or caused the property in question to deteriorate, his own property can be sold. If, however, there is no reason why the property of the father should be sold, possession of that of the minor can be taken.

Marcellus, however, observes that it would be unjust for him who had not made any contract with the minor to be compelled to wait till he arrives at puberty; which opinion is reasonable. Therefore, as the contract is derived from the father, it must be held that it is not necessary to wait until the minor reaches the age of puberty.

(1) It can be said that there is a contract with a minor, where one has been entered into with a slave, for, in this case an action De peculio will lie against him; hence the rule should be adopted that an action must be granted in every case where one can be brought against the ward; and there is much more reason for doing this in the case of a slave, who was acting for the benefit of his master, or by his order, or has been appointed to represent him in some transaction.

(2) I think that where a contract has been made with his guardian, on account of which an action is granted against the ward, the better opinion is that there will be ground for the application of the Edict, just as if the contract had been made directly with the ward.

(3) If a minor becomes the heir of anyone, and, for this reason, is charged with the payment of a legacy, let us see whether there is ground for the application of this Edict. The better opinion is, as Marcellus says, that possession can be taken of the property of a minor, and that the creditors of the estate have the right to choose what course they prefer to adopt; for a minor under the age of puberty is held to make a contract when he accepts an estate.

4. Paulus, On the Edict, Book LVIII.

He, likewise, who interferes with matters connected with the estate, is considered to enter into a contract.

5. Ulpianus, On the Edict, Book LIX.

These things also occur whenever a minor is not defended by anyone, nor by a guardian or a curator, whether he has a guardian or not. If, however, someone appears who is ready to defend him, possession for the purpose of preserving the property will not take place.

(1) It should be known that the minor is not defended, and the Pra?tor must ascertain this fact, in order to permit possession to be taken of the property. This can be effected in the following manner. The guardians of the ward should be summoned before the Praetor, in order to undertake his defence. If he has no guardian, his relatives, or those connected with him by affijiity, or any other whom it is probable will not fail to conduct the defence of the male or female minor, either on account of their near relationship, or because of the affection they may entertain towards him, or her, or for any other reason, shall be called upon for this purpose. Even freedmen, if they "are qualified, can be summoned and required to conduct the defence. Where, however, they refuse to do so, or while not absolutely refusing, keep silent, the Praetor shall then grant possession, so long as the minor is not defended. As soon, however, as the defence of the minor is undertaken, the property will cease to be possessed under the order of the Praetor.

The same rule applies in the case of insane persons.

(2) The Praetor says: "If the male or female minor should reach the age of puberty and is properly defended, I shall order those who are in the possession of his or her property to relinquish it."

(3) Let us see what the words, "Properly defended," mean: whether it is sufficient for the party to appear and be ready to comply with the judgment, or whether security must be given under all circumstances. The terms of the Edict do not merely refer to the persons of the parties desiring to defend themselves, but it also has reference to the property itself. And the words, "Properly defended," mean to be defended by themselves, or by any other person whomsoever. If the defence is undertaken by another, security must be furnished, but if the minor defends himself, I do not think that this is requisite; therefore, if a defence is offered, the Praetor can eject the party in possession by means of an interdict.

6. Paulus, On the Edict, Book LVIL

A creditor is usually placed in possession, even where the money is promised conditionally. '

(1) Where it is stated, "And let his property which is in possession of the creditors be sold, unless he is a minor, or absent on public business, without fraud," we must understand that the property of anyone who is absent with fraudulent intent can be sold.

(2) When anyone is captured by the enemy, his creditors should be placed in possession of his property, in such a way, however, that it shall not be sold immediately, but that, in the meantime, a curator-may be appointed.

7. Ulpianus, On the Edict, Book LIX.

Fulcinius thinks that creditors placed in possession of property for its preservation should not be supported by means of the said property.

(1) The Praetor says: "I will order the property of anyone who fraudulently conceals himself to be taken possession of and sold, if he is not defended in such a way as to be approved by a good citizen."

(2) For this Edict to become applicable, it will not be sufficient for the party to conceal himself, but this must be done with fraudulent intent. Nor in order to authorize possession and sale of the property, will it be sufficient for him to be guilty of fraud without concealment, but he must conceal himself for the purpose of committing fraud. This is the most frequent cause for granting possession, as it is customary for the property of debtors who conceal themselves to be seized.

(3) If anyone should obtain possession of the property of another on the ground that he is concealing himself, when in fact he has not done so, and sells it, the result will be that the sale will be held to be of no force or effect.

(4) But let us see what is understood by concealment. Concealment is not (as Cicero defines it) a dishonorable seclusion of one's self, for anyone can conceal himself for some reason which is not dishonorable; as for instance, if'he fears the cruelty of a tyrant, the violence of enemies, or domestic sedition.

(5) He, however, who conceals himself fraudulently, but not on account of his creditors (although concealment of this kind defrauds his creditors), is still not in such a position that possession can be taken of his property on this ground, because he does not conceal himself with a view to defraud his creditors. Hence, the intention of the person in concealing himself must be ascertained, whether it is for the purpose of defrauding his creditors, or for some other reason.

(6) But what if he had two or more motives for concealment, and among them that of defrauding his creditors; could the sale of his property legally take place? I think the opinion should be adopted that, if there were several reasons for his concealment, and the intent to defraud his creditors was one of them, this would be prejudicial, and his property could be sold on this account.

(7) If, however, he intended to conceal himself from some of his creditors, and not from others; what shall we say in this instance? Pomponius very properly holds that it is not necessary to require that the debtor should conceal himself from all his creditors, but that, if he only conceals himself from one of them, with the intention of deceiving and defrauding him by means of his seclusion, this will be sufficient.

Then will all his creditors have a right to take and sell his property, because he remains concealed, that is to say, even those from whom he does not hide, merely because it is a fact that he is concealed; or can only that creditor whom he is avoiding do so? And.

indeed, it is a fact that he is hidden for the sake of committing fraud, even though he may not hide himself from me.

If he is only concealing himself from me, Pomponius thinks that it should be considered whether I alone will have the right to sell his property for this reason.

(8) The term "conceal himself" refers to concealment during a considerable time; just as the word factitare signifies to do anything frequently.

(9) Moreover, to such an extent does concealment demand the existence of fraudulent intent and desire of the party secluding himself, that it has been very properly held that an insane person cannot render himself liable to have his property sold on this ground, because a man who is not of sound mind cannot conceal himself.

(10) If it is evident that an insane person is not defended, a curator should be appointed for him, or permission to take possession of his property should expressly be granted. Moreover, Labeo says that if no curator or defender can be found for an insane person, or if the curator who has been appointed does not undertake his defence, he should then be removed, and the Praetor must appoint another curator, in order that no more property of the said insane person may be sold than is necessary.

Labeo holds that the same formalities should be observed as where an unborn child is placed in possession.

(11) It is clear that sometimes his property should be sold, after proper cause is shown, if the payment of his debts is urgent, and delay may injure his creditors. The sale, however, should be made in such a way that any surplus may be returned to the insane person; because the condition of a man of this kind does not differ greatly from that of a minor. This opinion is not unreasonable.

(12) The same rule must be said to apply to the case of a spendthrift, and to others who require the services of a guardian, but no one can properly say that they are trying to conceal themselves.

(13) It should be noted that anyone can stay in the same city and remain concealed, or in another city, and not be concealed. For, let us see whether one who is in another city, and shows himself in public, and appears everywhere, can be considered as lying concealed. Our practice at present is, that a person is held to conceal himself if he avoids meeting his creditors in any place where he may be, whether in the same town where they are, or in another, or in a distant country. In short, the ancient authorities were of the opinion that a person was to be considered as concealing himself, even if he was in the Public Forum, and hid behind columns of buildings, for the purpose of avoiding his creditors. Anyone can conceal himself from one creditor and not from another. Moreover, it was established that the creditor from whom the debtor conceals himself is the one who can sell his property.

(14) If a man who owes a debt payable after a certain time, or under some condition, conceals himself, his property cannot be sold before the time arrives, or the condition is complied with. For what differ-

ence is there between a person who is not a debtor, and one who cannot yet be sued ? The same rule must be adopted if there is no debtor; and it also applies where a creditor is entitled to an action which can be barred by an exception.

(15) If anyone who is liable to an action De peculia, on account of his son or his slave, conceals himself, it is our practice to permit his property to be seized and sold, even though nothing may be found in the peculium, because something might eventually be found there; and, at the time that the judgment is rendered, we ascertain whether there is anything in the peculium or not, for the reason that the action will lie even when there is nothing in the peculium.

(16) Let us see whether the property of a man who conceals himself to avoid appearing in a real action can be taken in execution and sold. An opinion of Neratius is extant in which he says that his property can be sold. This is also stated in a Rescript of Hadrian, and is our practice at present.

(17) Celsus, in reply to Sextus, gave it as his opinion that, if Titius is in possession of a tract of land which I intend to bring suit to recover and he, being absent, is not defended, it would be better for me to be placed in possession of the said land than to levy on all his property.

It must, however, be noted that Celsus was consulted with reference to a person who was absent, and not with reference to one who purposely concealed himself.

(18) Celsus also thinks that if a person from whom I intend to claim an estate conceals himself, the best plan would be to place me in possession of the property, which is held in the capacity of either heir or possessor. If, however, he was guilty of fraud in order to avoid remaining in possession, all his property should be levied on and sold.

(19) The Divine Pius stated in a Rescript, with reference to a man who, being in possession of an estate, secluded himself, that his adversary should be placed in possession of the property of the estate. In the same Rescript he also directed that he who is placed in possession of the property of an estate on account of the contumacy of a former possessor of the same shall be entitled to the income from said property.

8. The Same, On the Edict, Book LX.

If it remains uncertain for a long time whether there is any heir to an estate or not, after proper cause has been shown, permission should be granted for possession to be taken of the property for the purpose of preserving it. If the matter is urgent, or a condition must be complied with, it would, be well to obtain permission to appoint a curator.

9. Paulus, On the Edict, Book LVII. He shall be one of the creditors.

(1) If one of two heirs deliberates as to whether he will accept an estate within the time prescribed by law, and the other refuses

to accept it, let us see what step should be taken by the creditors. It is established that, in the meantime, they shall be placed in possession of the estate, for the purpose of taking care of it, until the heir who is deliberating determines whether he will accept or reject his share.

10. Ulpianus, On the Edict, Book LXXXI.

If a ward is present, but has no guardian, he should be considered as being absent.

11. Paulus, On Plautius, Book Vill.

Where a legacy or a trust has been conditionally bequeathed to a son under paternal control, it must be said.that he himself, as well as his father, ought to be placed in possession, for the reason that both of them anticipate a benefit.

. 12. Pomponius, On Quintus Mucius, Book XXIII.

When, for the purpose of preserving a legacy or a trust, or because security is not furnished us against threatened injury, we are permitted by the Praetor to take possession of property or he places us in possession in the name of an unborn child, we do not actually hold possession, but he merely grants us power to guard and watch over the property.

13. Papinianus, Opinions, Book XIV.

A man who is sent by the Governor of a province before the Tribunal of the Emperor is not compelled to defend any other action at Rome, and he still should be defended in the province; for the property of a person who is punished by temporary exile can be sold if a defender does not appear for him in court.

14. Paulus, Questions, Book II.

If anyone should prevent a creditor from obtaining possession of the property of his debtor, an action for the amount of the value of the property shall be granted against him in favor of the creditor.

(1) Where anyone is placed in possession of property for the purpose of preserving his legacy, he will not be permitted to take possession, if the condition on which the legacy is dependent is in suspense; and although it may fail to be fulfilled, still, the property bequeathed should be appraised, because it is to the interest of the legatee to have security.

(2) Moreover, a creditor, the payment of whose claim is conditional, is not placed in possession; because he only is given possession who has a right to sell the property under the Edict.

15. Ulpianus, Trusts, Book VI.

He who has received property in exchange resembles a purchaser, and he also who receives property in payment, and one who accepts the amount of its appraisement in court, as well as he who acquires anything by virtue of a stipulation, and not through liberality, occupy the same legal position.

TITLE V.

CONCERNING THE POSSESSION AND SALE OF PROPERTY BY JUDICIAL AUTHORITY.

1. Gaius, On the Provincial Edict, Book XXV.

The property of a debtor must be sold in the place where he should defend the action; that is to say,

2. Paulus, On the Edict, Book LIV. Where he has his domicile:

3. Gaius, On the Provincial Edict, Book XXIII.

Or where he made the contract. The contract, however, is understood not to have been made in the place where the transaction was concluded, but where the money should be paid.

4. Paulus, On the Edict, Book LVH.

If a slave has been appointed heir under a condition, or if there is a doubt whether he will become free, and the heir, it is not unjust for a decree to be issued, provided the creditors request it; but if he does not become the heir before a specified time, everything shall proceed just as if he had not been appointed at all. This happens very frequently where a slave is appointed heir under the condition of paying a certain person a sum' of money, and no date was fixed for doing so.

This rule shall be observed with reference to the property of the estate, but as the slave will, at some time or other, obtain his freedom, the Praetor must preserve it for him, even if it is certain that he will never be the heir, or acquire praetorian possession of the estate.

(1) If, however, anyone appears to defend the deceased, either by promising that he will be the heir, or by permitting actions to be brought against him, the property of the decedent cannot be sold.

5. Ulpianus, On the Edict, Book LX.

A minor of twenty-five years of age, who has curators, but is not defended by them, and can find no one else to appear for him, must suffer the sale of his property, even if he does not conceal himself; although he who is not capable of protecting his own interests is not considered to have fraudulently hidden himself.

6. Paulus, On the Edict, Book LVIII.

If it is not advisable for a minor to keep the estate of his father, the Praetor will permit the property of the deceased to be sold, in order that anything which remains may be delivered to the minor.

(1) If the minor, before he rejects the estate, should transact any business relating to it, what he did should be considered valid, provided he.acted in good faith.

(2) But what if, after having paid some of his creditors, his property should afterwards be sold by others? If inquiry is made as to

whether there can be any recovery, Julianus says that, if proper cause is shown, the matter should be decided in such a way as to prevent the rights of a diligent creditor from being prejudiced by either the negligence or cupidity of another. But if both creditors pressed their claims for payment at the same time, and the guardian only paid you, it is but just that I should either obtain as much, or that you should contribute out of what you had received. This is what Julianus says. It is evident, however, that he refers to the case of a ward, where payment was made out of the property of the estate of his father. What course then should be pursued, if the ward had obtained the money for payment from some other source? Would he be required to return it or not? And should it be refunded by the creditor, or taken from the estate? Our Scsevola says that if there is anything in the estate, it should be entirely deducted; just as in the case of a person who transacts the business of another. If, however, nothing remains in the estate, it would not be inequitable to grant an action for recovery against the creditor, for money which was paid without being due.

7. Gaius, On the Provincial Edict, Book XXIII.

The indebtedness of an estate is also understood to be that for which suit can not be brought against the deceased, as, for instance, where he promised to pay at the time of his death; as well as where someone who had become surety for the deceased paid the debt after he died.

8. Ulpianus,-On the Edict, Book LXI.

The usufruct of property is also included in the sale, because an usufructuary is embraced in the term "owner."

(1) If anyone has a right to take the crops from the land of his debtor, a creditor, who has been placed in possession of the land, can either sell or lease the said crops. This, however, can only be done where they have not been sold or leased beforehand; for if the debtor did this, the Praetor will sustain the sale or the lease made by him, even though the crops may have been disposed of for less than they were worth; unless this was done for the purpose of defrauding the creditors, for then the Praetor can authorize the creditors to make a new lease or sale.

(2) The same rule will apply to the income from other things, so that if they can be leased, this should be done; as for example, the wages of slaves, or the hire of beasts of burden, qr the revenue from other property which can be rented.

(3) The Praetor does not say anything about the time that the lease is to run. Therefore, free power is held to have been granted to creditors to lease the property as long as they may deem it advisable; just as they have the right to sell or lease according to their judgment, of course, where no fraud exists. They, however, are not responsible for negligence.

(4) If one of the creditors is in possession of the property, the-question of leasing it will be easily disposed of. But where there is

not only one, but several creditors, it may be asked which of them should sell or lease the property? This will be readily decided if they are agreed, for all of them can lease it, or appoint one of their number to do so. If, however, they do not agree, then it must be said that the Przetor after proper cause is shown must select one of them to lease or sell it.

9. The Same, On the Edict, Book LXII.

The Praetor says: "I will grant an action in factum, where anyone is in possession of property, and for this reason has gathered the crops, and refuses to return them to the person to whom the property belongs, or is unwilling to refund to him any expenses which he may have incurred without fraud, or where the condition of the property has become worse through the fraudulent acts of the possessor."

(1) What the Praetor says with reference to the income must also be understood to refer to everything else which is obtained from the property of the debtor. And, indeed, this ought to be the case, for what would happen if the party in possession should obtain a penalty either through a submission to arbitration, or in some other way? He would be obliged to refund the penalty which he had obtained.

(2) When the Praetor says, "If he is unwilling to refund to him any expenses which he may have incurred without fraud," this means that, if the creditor himself has incurred any expenses, he should be reimbursed for them, provided he did not incur them fraudulently. Hence, it is sufficient for the expenses to have been incurred without fraud, even if their payment did not, in any way, benefit the property of the debtor.

(3) In the words, "To the person to whom the property belongs," the curator appointed for the sale of the property and the debtor himself are included, if the sale should not take place. An action is also granted to the creditor against the parties whom we have mentioned, if he incurred any expense in gathering the crops, or in supporting and caring for the slaves, or in keeping up and repairing the land, or in indemnifying a neighbor for threatened injury, or in defending a slave in a noxal action, provided it was not more advantageous to surrender the slave than to keep him. For if it is better to surrender him, the result will be that he cannot recover the expense of defending him.

(4) Generally speaking, it must be said that the party in possession can recover anything which he has expended upon the property, provided this was not done fraudulently. For he can no more bring the action based on voluntary agency than if, as a joint-owner, he had repaired a building held in common, because the creditor also is considered to have transacted the business in which he himself was jointly interested, and not that of another.

(5) Moreover, the question has been asked if, where lands have deteriorated without any bad faith on the part of the creditor; or rights attaching to them have been lost; or buildings have been demolished, or burned; or proper care has not been taken of the slaves or

cattle; or possession delivered to another without fraudulent intent; whether the possessor will be liable. It is evident that he will not be liable, because he is not guilty of fraud. His position will be better than that of a creditor when a pledge is concerned, for he is responsible not only for fraud, but also for negligence.

The same rule applies to the curator of property, for he also is liable as creditors are.

(6) The Praetor also grants an action in factum against him who neither leased nor sold the crops on the land, and judgment will be rendered against him for what he has collected, because he neither sold nor leased it.

If, however, he has only collected as npteh as he would have done if the crop had been leased, or sold, he will- not be liable for anything. He must, however, be responsible for the time In which either he himself, or someone else by his direction was in possession, until he relinquished it. For the creditor should not be considered responsible for not taking possession, or for relinquishing it, as he transacts the business voluntarily as his own. The appraisement should be made in proportion to the interest of the party who brings suit.

(7) These actions are not temporary ones, and they are granted for and against heirs and other successors. If the condition of the property is said to have become deteriorated through the fraud of the party placed in possession, an action on the ground of bad faith should be granted against him; but this will not be granted either against the heirs or other successors, after the expiration of a year, because it is derived from a criminal offence and involves a penalty:

10. Paulus, On the Edict, Book LIX.

Unless it is brought for the amount which came into his hands.

11. Ulpianus, On the Edict, Book LXII.

This action is also granted to the heir, because it includes the pursuit of the property.

12. Paulus, On the Edict, Book LIX.

When one of several creditors asks to be placed in possession of the property of a debtor, the question arises whether he alone who makes the request, can take -possession. Or whether, where only one makes the request, and the Praetor grants it, all the creditors will be permitted to enter upon the property. It is more convenient to hold that when the Praetor places a party in possession he is considered to have granted permission not only to him who makes the request, but to ^all the creditors as well. This opinion is also held by Labeo. In this case, it is not considered that possession is acquired by a free person, because he whom the Praetor permits to take possession does not acquire anything for himself, but performs an act which is customary and therefore the others profit by it.

It is clear that if anyone who is not a creditor should ask for. possession, it can, by no means, be held that a creditor can acquire posses-

sion, because a demand of this kind is of no effect. It is otherwise, however, if a creditor, to whom permission has been given to take possession, afterwards receives payment of his debt, for the other creditors can follow up the sale of the property.

(1) He who is ordered to take possession is understood to be directed to do so in some place which is subject to the jurisdiction of the court.

(2) If possession cannot be taken on account of the nature of the property, or because land has been inundated, or is in the power of robbers, it is very properly held that there is nothing of which to take possession.

13. Gaius, On the Provincial Edict, Book XXIII.

Although there may not be actual possession of the property, for the reason that there is nothing of which possession can be obtained, or because it cannot be acquired without a controversy, the creditor who has been placed in possession will be considered to be in the same position as if it had been obtained by him.

14. Paulus, On the Edict, Book LIX.

Where a creditor is placed in possession of the property of a debtor, a curator should be appointed, if there is any danger of rights of action being extinguished.

(1) An action is granted against a creditor who has been placed in possession, with reference to any property of the debtor which may have come into his hands. If he has not yet obtained anything, he must assign his rights of action. An action in factum will be granted against him, and everything included in one for voluntary agency must be surrendered by the creditor, if this action can be brought under the circumstances.

15. Ulpianus, On the Edict, Book LXII.

When several creditors are placed in possession of the property of a debtor, one of their number should be selected by the majority to see that his accounts are not tampered with. I think that a list of the documents in the hands of the debtor should be made by the creditors; not that they ought to copy the documents themselves, but that they should take notes for their own benefit, and, make, as it were, an inventory, showing the number of the said documents, and to what matters they relate; a course of proceeding which they should be allowed to follow with reference to all other property. Moreover, the Praetor should sometimes, where proper cause is shown, permit the creditors to make extracts.from the said documents, if any good reason exists for doing so.

(1) Let us see whether the creditors should be permitted to review and examine the papers of the debtor only once, or several times. Labeo says that this privilege should not be granted more than once. He, however, holds that if anyone swears that he is not requesting this for the purpose of annoyance, and that he no longer has the extracts which he tabulated, he should be granted the power to make a second examination, but that this should not be done more than twice.

TITLE VI. CONCERNING THE PRIVILEGES OP CREDITORS.

1. Gaius, On the Provincial Edict, Book XXIV.

When the property of a debtor is sold, a creditor who is a blood-relative is preferred to a stranger. Where there are several creditors, and all of them are not relations of the debtor, he to whom the largest sum of money is due shall be preferred.

2. Ulpianus, On the Edict, Book LXIII.

The question arose whether the funeral/expenses were only privileged, where the person whose property was sold was buried, or whether this was also the case where they were incurred for the interment of another. The present rule is that there will be ground for the privilege when anyone is buried (that is to say where it is necessary for an action for the funeral expenses to be brought, whether this is done for one whose property is about to be sold, or for someone who was indebted to another, and against whom such an action could have been brought, if he had lived).

We hold that it makes very little difference by what kind of a proceeding expense of this kind is recovered, whether it be one to collect funeral expenses, or a suit in partition, or any other, provided that the expenses were actually incurred on account of the burial. Therefore, no matter what action is brought for this purpose, the party will also be entitled to one based on funeral expenses. Hence, if, by reason of a stipulation, the expenses of the funeral were deducted, it must be said that there is ground for the privilege, provided no one entered into the stipulation for the purpose of renouncing the privilege.

(1) If a betrothed woman gives a dowry, and the marriage does not take place, although she can recover her dowry by an action, still it is only just that she should be allowed to enjoy this privilege, even though the marriage was not solemnized.

I think that the same rule will apply even if a minor under the age of twelve years is married, although she cannot yet be considered a wife.

3. Paulus, On the Edict, Book LX.

It is to the interest of the public for her to recover her entire dowry, in order that she may be able to marry when her age permits her to do so. ,

4. Ulpianus, On the Edict, Book LXXI.

In cases of this kind we also grant the privilege to the woman.

(1) If any person, at a time when he was not a guardian, transacts business as one, it is clear that there will be ground for the privilege. Nor does it make any difference whether he who transacts the business owes anything himself, or whether his heirs or other successors are debtors. Moreover, the ward himself is entitled to the privilege, but his heirs are not. It is, however, perfectly just that others to

whom curators are given, as, for instance, those who are under age, or are spendthrifts,

5. Paulus, On the Edict, Book XC, Or who are deaf or dumb,

6. Gaius, On the Provincial Edict, Book XIV. Or idiotic,

7. Ulpianus, On the Edict, Book LV.

Should enjoy the same privilege.

(1) Where, however, a curator is appointed for the property of a person who is absent, or has been captured by the enemy, or while the appointed heirs are deliberating as to the acceptance of the estate, it is not necessary for the privilege to be granted, for the same reason does not exist.

8. Paulus, On the Edict, Book LX.

Where anyone, through motives of friendship, transacts the business of a minor under the age of puberty, he must preserve for him the privilege to which he is entitled, when his property is sold. This opinion I have accepted.

9. Ulpianus, On the Edict, Book LXIII.

When a curator is appointed for an unborn child, and the child has not yet been brought forth, the privilege will not take effect.

(1) The Divine Marcus issued an Edict as follows, "If a creditor should lend money for the repair of buildings, will he be preferred to other creditors to the extent of his loan?" This only applies to him who, by the direction of the owner of the property, furnished the money to the person who made the repairs.

(2) In selling the property of a banker, it has been established that those will come after the preferred creditors who, in accordance with the public faith, have deposited their money in the bank. Those, however, who have received interest on their deposits from the banker, will not be distinguished from the ordinary creditors; and this is reasonable, for it is one thing to lend money, and another to deposit it.

If, however, the money is still in existence, I think that it can be recovered by those who have deposited it, and that he who claims it will be preferred to the privileged creditors.

(3) Those creditors are given the preference whose money has come into the hands of the privileged creditors. But how shall we understand this to have been done ? Is it as if the money immediately passed from the other creditors to those who are privileged, or shall we hold that it passed through the person of the debtor, that is to say, that it was paid to a privileged creditor before it was counted, and thus became the property of the debtor? Without being too exacting, this can be held to be the rule, provided payment was not made after a long interval.

10. The Same, On the Edict, Book LXXV.

The Praetor says: "Any contract which is made after the party whose property is sold has made up his mind to commit fraud, if he who made the contract is aware of this, will not admit of an action being granted on this ground."

11. Paulus, On the Short Edict, Book XVI.

Anyone who has lent money for the purpose of building, equipping, or even purchasing a ship, is entitled to this privilege.

12. Ulpianus, On the Duties of Consul, Book I.

If magistrates have placed anyone in possession for the purpose of executing a trust, they can appoint an arbiter for the purpose of selling any property which will become deteriorated by delay; in order that the price obtained for said property may be left in the hands of the beneficiary, by way of deposit, until it is ascertained what is due to him under the terms of the trust.

13. Javolenus, Epistles, Book I.

The head of a household substituted an heir for his son, who was under the age of puberty, in case the latter should die before reaching that age. The son rejected the estate of his father, and therefore the property of the deceased was sold by the creditors. An estate subsequently came to the son, who died after having accepted it. I ask whether the Praetor should not grant an action to the creditors of the father against the said minor, although he obtained the estate afterwards, or should an action be granted to the creditors of the father against the substitute, who obtained nothing from the father's estate which, of course, went into the hands of the creditors, and as the latter had no right to the property of the minor, it was no concern of the heirs whether his estate was entered upon or not, as the property found by the substitute in the estate of the son did not belong to his father's creditors.

This opinion perplexes me exceedingly, because it was decided by your preceptors that there was only one will. The answer was that the Praetor benefited the son, who did not accept the estate of his father, by not allowing an action to be granted against him, after the sale of his father's property (although he subsequently obtained an estate), to compel him to pay the creditors; but the same rule should not be observed with reference to the heir who was substituted for the son, as allowance was made for the honor of the latter, by causing the property of his father to be sold, rather than his own.

Therefore an action will be refused the creditors, as far as the property Which was afterwards acquired by the son is concerned, for the reason that it came to him from another than his father. But if the substitute for the son had entered upon the father's estate, after the minor had taken some action with reference to it, then the estates of the father and the son became identical, and the heir, even if unwilling, would be liable for all debts incurred by either the father or the

son; and, as, after an obligation had been contracted, he could, by no means, prevent his own property from being sold, if no defence was made; so in like manner, the indebtedness of the father and the son could not be separated, in which case the result would be that an action must be granted to the creditors against him.

If, however, the substituted heir should not enter upon the estate, an action ought not to be granted to the creditors of the father with reference to the estate left by the minor, as neither the property of the latter should be sold to discharge the debts of the father, nor should the estate which the minor acquired be included in that of his father.

14. Paulus, On the Lex Julia, et Papia, Book V.

Aufidius says that statues erected in public places for the purpose of honoring anyone whose property has been sold by his creditors cannot be acquired by a purchaser, but are public, whether they have been donated for the purpose of ornamenting the city, or remain the property of him in whose honor they have been raised, and that, under no circumstances, can they be removed.

15. Papirius Justus, On the Constitutions, Book I.

The Emperors Antoninus and Verus stated in a Rescript that those who deny that their property has been legally sold should bring an action, and that they will vainly apply to the Emperor to set aside the sale.

16. Ulpianus, On All Tribunals, Book II.

If the creditors of an estate consider the heir to be suspicious, they can require him to give security for the payment of what is due to them, and the Praetor should take cognizance of the case. He ought not, however, without proper examination, to subject the heir to the necessity of furnishing security, unless after proper cause has been shown, he should decide to protect the interests of those who consider the heir as liable to suspicion.

(1) An heir is not considered suspicious in the same sense that a guardian is; for fraudulent acts or deceitful conduct with reference to the affairs of his ward render a guardian liable to suspicion, and not his want of means, while the latter alone will render an heir suspicious.

(2) It is- clear that those who accuse an heir- of being suspicious should only be heard within a short time after his acceptance of the estate. If, however, it is proved that they suffered him to remain in possession of the estate for a considerable period, and can accuse him of nothing criminal, as, for example, that he has been guilty of some fraudulent act, he should not, after a long time has elapsed, be reduced to the necessity of giving security.

(3) If the heir who is ordered to furnish security on the ground of being liable to suspicion does not obey the decree of the Praetor, the latter shall then order possession to be taken of the property of the estate, and permit it to be sold in conformity with the Edict.

(4) It is evident that if it should be ascertained that nothing belonging to the estate has been sold, and that no other objection can justly be raised against the heir except his poverty, the Praetor must be content to order him to take nothing from the estate.

(5) If the creditors cannot prove that the heir is suffering from poverty, they will be liable to him in an action on the ground of injury sustained.1

17. Paulus, Opinions.

The privileges of creditors are not estimated by the time, but by the nature of the debt; and if several of them hold under the same title they will share alike, although their claims'may be of different dates.

18. Ulpianus, Rules, Book HI.

Where a minor is sued on a contract, and offers no defence, and, fqr this reason, his creditors obtain possession of his property, an amount should be deducted from it for his maintenance.

(1) As it is permitted to defend a debtor before his creditors have obtained possession of his property, this can also be done after possession of it has been obtained; and, whether he himself undertakes his defence, or someone else does so for him, security must be given that the decision of the court will be complied with, and possession relinquished.

19. Marcianus, Rules, Book V.

Anyone is entitled to be a privileged creditor, after the Treasury, if he has lent money for the purpose of building, repairing, arming, or equipping a ship, as well as where he brings suit to collect the price of a ship which has been sold.

20. The Same, On the Hypothecary Formula.

It is established that anyone placed in possession of the property of a debtor who is absent on public business can legally hold it until the debt is paid in full, if it appears that the debtor is fraudulently absent, under the pretense of attending to business for the State. Where, however, he is absent on public business, in good faith, and a creditor is placed in possession under a writ of execution, the proceeding is void, and hence he must relinquish possession of the property.

21. Ulpianus, On Sabinus, Book XLV.

It is settled that anyone who hides behind columns, in order to avoid his creditor, conceals himself. It is also held that he is concealing

1 'As already stated, it was one of the presumptions of Roman jurisprudence that in the administration of offices of trust, as well as in the giving of testimony, indigence and integrity were, generally speaking, incompatible; in other words, that the temptation to bribery was so great under such circumstances that no confidence was to be reposed in a man who was poor. This atrocious doctrine, unknown to the Common Law of England, was, to a certain extent, adopted by other nations whose legal systems were directly derived from that of Rome.—ED.

himself who goes into seclusion, that is to say, who secretes himself to avoid an action being brought against him. Such a person is he who leaves the city for the purpose of defrauding his creditors; for there is no difference, so far as concealing one's self is concerned, whether a man leaves the city, or, remaining at Rome, does not appear in public.

22. Papinianus, Opinions, Book X.

It has been decided that the City of Antioch, in Syria, retained the privilege conferred upon it by a special law, with reference to the pursuit of the property of a deceased debtor that had been taken in execution.

23. Paulus, Decisions, Book I.

A concubine and her natural children are excepted from property which can be sold by creditors.

(1) Where the public is the creditor, it is preferred to all others whose claims are evidenced by written instruments.

24. The Same, Decisions, Book V.

If no defence is made for a minor, his creditors are placed in possession of his property, but provision for his maintenance until he arrives at the age of puberty should be made out of said property.

(1) The property of anyone who has been captured by the enemy cannot be sold for the payment of his debts until he returns.

TITLE VII. CONCERNING THE SEPARATION OF THE PROPERTY OF AN ESTATE.

1. Ulpianus, On the Edict, Book LXIV.

It must be noted that a separation of the property of an estate is generally obtained by a decree of the Praetor.

(1) A separation is ordinarily granted to creditors for the following reasons, for instance, where a creditor has Seius for his debtor, and the latter dies, leaving Titius his heir; and Titius not being solvent, his property is offered for sale. The creditors of Seius allege that his estate is sufficient to satisfy their claims; and that the creditors of Titius should be content with the estate of the latter, and hence there is, as it were, a sale of the property of two different debtors. It may, however, happen that Seius was solvent, and would have been able to satisfy his creditors, if not for the entire indebtedness, at least for a portion of it. If, however, their obligations are merged with those of the creditors of Titius, they will not receive so much, because Titius was insolvent, and they will receive still less, because there are more of them. It is, therefore, perfectly just that the creditors of Seius who desire a separation of property should be heard, and obtain from the Praetor permission for the payment of each class of creditors separately.

(2) On the other hand, however, the creditors of Titius cannot obtain a separation of property, although anyone by obtaining another

creditor may make the condition of his former creditor worse. Therefore, he who accepts the estate of my debtor will not, by doing so, make my condition any worse, because I have the right to obtain a separation of property. He, however, will render the condition of his creditors worse, if he enters upon an estate which is not solvent, for the creditors cannot demand a separation of property.

(3) Moreover, it should be noted that even if it is suggested that the estate had been encumbered by the heir, by means of a pledge, or an hypothecation, still, if the property belonged to the estate, he who obtained a separation of it would, for this reason, be preferred to a creditor to whom the property had been hypothecated. This was stated by Severus and Antoninus in a Rescript.

(4) A separation of property can also be obtained against the Treasury, or any municipality.

. (5) The question arose whether the creditors of the heir could sometimes obtain a separation of property, if he had committed fraud against them when he entered upon the estate. No remedy is, however, afforded, for they must blame themselves if they entered into a contract with such a man, unless we hold that the Praetor can make use of an extraordinary proceeding for relief against the deceit of him who has contrived such a fraud.

It is, however, difficult to adopt such an opinion.

(6) If, however, an heir, even though he may allege that he thinks the estate is insolvent, should be compelled to accept and transfer it, and there is no one to whom he can deliver it, for this happens under some circumstances, we must come to his relief (if he asks it), against the creditors of the estate. This the Divine Pius stated in a Rescript, which enabled the property of the testator to be sold, just as if the estate had not been accepted. I think that this relief should also be granted to the creditors of the heir, if they request it, even if the heir himself did not ask for it, just as any separation of the claims is granted.

. (7) Let us see if, in the case where a minor under the age of puberty becomes the heir of his father, and dies before reaching that age, and property in the hands of the substitute, who had accepted the estate of the minor, is sold, the creditors of the father can demand a separation of property." I think that they can do so, and I go still further, and hold that the creditors of the minor can also demand a separation as against the creditors of his heir.

(8) In accordance with this, let us see if Primus should appoint Secundus his heir, and Secundus appoint Tertius his own heir, and the property of Tertius is sold by his creditors, what creditors can claim a separation of property. I think that if the creditors of Primus request this, they should be heard, against both the creditors of Secundus and Tertius; if the creditors of Secundus ask for a separation, they can obtain it against the heirs of Tertius, but not against those of Primus. In a word, the creditors of Primus can obtain a separation of property against all the other creditors; the creditors of Secundus can

obtain one against the creditors of Tertius, but not against those of Primus.

(9) Where the property of a son under paternal control is sold by his creditors, and he has a castrense peculium, can a distinction be made between the creditors of the castrense peculium and the other creditors? They should all be admitted together, unless the claims of those who made the contract before the son entered the military service ought, perhaps, to be separated. I think that this opinion should be adopted. Therefore, if the creditors, who made contracts before the son entered the service, should sell the castrensian property, they cannot come in with the subsequent creditors. Moreover, if any of the property has been employed for the benefit of the father, the creditor may perhaps be prevented from touching the castrense peculium, as he has a right to bring a special action against the father.

(10) It should be noted that only those creditors can obtain a separation of property who have not stipulated with the heir with the intention of entering into a new obligation. If, however, they have approached him with this intention, they will lose the benefit of a separation of property, because, having obtained the claim of the heir, they cannot now separate themselves from him whom, to a certain extent, they have chosen as their debtor. But if, in selecting the heir as their debtor, they have required interest from him in that capacity, the same rule should be adopted.

(11) It is also asked whether they can obtain a separation of property, if they have received security from the heir. I do not think that they can do so, for they have followed him who have induced them to change. But what if they accepted insufficient security? They themselves are to blame for not having received sureties who were solvent.

(12) It must also be remembered that after the property of the estate is merged with that of the heir, a separation of property cannot be obtained, for where property is united and mingled together, a separation cannot be demanded. But what if it consisted of distinct tracts of land, slaves, cattle, or anything else which can be divided? Under these circumstances, a separation can be demanded, nor will anyone who maintains that the property is merged be heard, as tracts of land cannot be merged, unless the possession of different persons is so joined and mingled that a separation cannot be effected, which very rarely occurs.

(13) When we have stated that a separation of property cannot be obtained after a long period of time, this must be understood to mean that it cannot be demanded after five years from the time when the estate was accepted have elapsed.

(14) In all these cases, in order to determine whether a separation of property should take place or not, the opinion of the Praetor or the Governor, and that of no one else must be obtained, that is to say, the opinion of him who can grant the separation.

(15) If a creditor should take a pledge from the heir, a separation of property should not be conceded to him, because he looks to the heir for payment. For he should not be heard who asserts that the

heir is liable, having with that intention accepted him as his debtor in any manner whatsoever.

(16) Where there are several creditors, some of whom have claims against the heir as their debtor, and others have not, and the latter obtain a separation, the question arose whether they can admit the former to share with them. I think that this will not profit them, for they should be included among the creditors of the heir himself.

(17) It should also be noted that it is commonly held that the creditors of an heir can have anything of the residue of the property of the testator applied to the payment of their claims, but that the creditors of the testator can obtain nothing from the^ property of the heir. The reason for this is, that they who obtained the separation can only blame themselves, if, when the property of the heir was sufficient to pay them, they preferred that the estate of the deceased should be separated for their benefit, but the creditors of the heir are not to blame for anything of this kind.

If, however, the creditors of the deceased petition to share in the property of the heir, they should not be heard; for the separation which they themselves demand removes them from all participation in the said property. But where the creditors of the deceased carelessly demand a separation of property, they are excusable, because their ignorance of the condition of the estate may be alleged as a just cause for their doing so.

(18) It must be remembered that a slave who has been appointed a necessary heir, with the grant of his freedom, can obtain a separation of property; so that if he does not meddle with the estate of his patron, he will be in a position to have whatever he may hereafter acquire separately together with anything which is due to him from the testator.

2. Papinianus, Questions, Book XXV.

Where the estate has been sold by the heir, a separation of it cannot legally be demanded, if there is no suspicion of fraud; for any acts performed by the heir in good faith, in the meantime, are usually considered to be legal.

3. The Same, Questions, Book XXVII.

A debtor became the heir of his surety, and the creditors of the latter sold his property. Although the liability of the security was extinguished, still, a separation of property will be granted on the demand of him to whom the surety was liable, whether he was the only creditor of the estate or whether there were several. For the rule of law which excludes the obligation of the security on account of the principal obligation, which is the greater, should not prejudice the rights of the creditor who has diligently provided for his own interest. (1) But what if, after the separation of the property of the surety, the stipulator should be unable to collect his entire claim from the estate? Can his share be demanded along with those of the other creditors of the heir, or must he remain content with the property

which he preferred to be separated? As, however, this stipulator could have shared with the creditors of the debtor in any balance which remained, if the estate of the surety had not been accepted by the creditor of the principal debtor, after the sale of the property of the surety, reason does not permit that he should be excluded in the case proposed. (2) But with reference to every other creditor who has obtained a separation of property, it is more advantageous to hold that if he can not collect his entire debt from the estate, he can still recover something from the property of the heir, if the personal creditors of the heir have been satisfied, because there is no doubt that he should be admitted to share with the creditors of the heir, after those of the estate have been satisfied.

4. The Same, Opinions, Book XII.

A separation of property shall also be granted to creditors where the debt is due after a certain time, or under some condition, on account of which they have not yet been able to bring suit to recover the money, since provision has also been made for them by double security.

(1) It is established that legatees are considered to have a lien only upon that part of an estate which remains after the debts are paid.

5. Paulus, Questions, Book XIII.

If the creditors of an estate obtain a separation of property and the estate is found to be insolvent, but the heir is solvent, they cannot have recourse to the latter, but must adhere to the separation which they have already demanded. If, however, the heir should acquire property after the separation has been obtained, and any of it is derived from the estate, they who obtained the separation must, along with the personal creditors of the heir, be admitted to share in what had been acquired. But where their claims have been satisfied, any residue shall be paid to the creditors of the heir; but if the latter acquires any property from some other source, the creditors of the estate will not be permitted to take it. If, however, the personal creditors of the heir are paid in full, some authorities think that anything which remains should be turned over to the creditors of the estate; but I do not accept this opinion, for when they demanded a separation of property they no longer looked to the heir personally for payment, but had recourse to the estate, and, as it were, sold the property of the estate, which was not capable of augmentation.

I thinks that the same rule should be held to apply, even if the creditors were deceived with reference to the separation of the property, and obtained less than the personal creditors of the heir. The latter, however, have, as their security, his property and his person, which they can obtain during his lifetime.

6. Julianus, Digest, Book XLVI.

Whenever an heir is insolvent, it is equitable that not only the creditors of the testator, but also those to whom bequests have been made, should obtain a separation of property, so that, after the claims of the

creditors have been fully satisfied, the legatees may obtain their legacies entirely, or in part.

(1) If a freedwoman, who has been appointed heir, demands praetorian possession in accordance with the provisions of the will of the testator, who was not solvent, the question arises whether her own property should be separated from that of the estate. The answer is that relief should be granted to her patron, to prevent him from being oppressed by the indebtedness which his freedwoman contracted by retaining possession of the estate in accordance with the provisions of the will.

7. Marcianus, Rules, Book II. /

The creditors of an estate who have filed-claims against the heir can, nevertheless, obtain a separation of property, because they took this step from necessity.

TITLE Vill.

CONCERNING THE APPOINTMENT OF A CURATOR OP PROPERTY.

1. Paulus, On the Edict, Book LVII.

Where an heir is appointed under a condition, he should be forced to comply with it, if he can do so; but if he says that he will not accept the estate, even if the condition is fulfilled, the property of the deceased must be sold by his creditors.

(1) If, however, the heir can do nothing, a curator of the estate should be appointed, or the property sold.

(2) If there is a considerable amount of indebtedness due from the estate, which may be increased by the addition of a penalty, the debts should be paid by the curator; just as is usually done when a pregnant woman is placed in possession in the name of her unborn child, or the heir is a minor who has no guardian.

2. Ulpianus, On the Edict, Book LXV.

In the appointment of a curator, it is our practice to apply to the Prsetor, in order that he may appoint one or more curators with the consent of the majority of the creditors, or to the Governor of the province, if the property is to be sold therein.

(1) Anything which may have been done or performed by the curator or curators appointed, that is, any acts or deeds, or any business which has been transacted, should be ratified. They are entitled to actions against others, and praetorian actions will lie against them. If the curators appoint anyone to bring a suit, or defend one, as the case may be, the security exacted from him with reference to the ratification of his acts, or the payment of the judgment, shall not be taken in the name of him whose property is sold, but in that of the curator himself, who appointed him.

(2) But where several curators are appointed, Celsus says that-they must sue and be sued together, and not separately. If, however,

the said curators are appointed for different districts, one, for instance, for property in Italy, and another for property in a province, I think that they will have control over their respective districts.

(3) The question arises whether a curator can be appointed against his will. Cassius says that no one can be compelled to become a curator of property against his consent, which is correct. Therefore, one must be found who is willing, unless imperative necessity exists; and the authority of the Emperor must be invoked for a curator to be appointed against his will.

(4) It is not absolutely essential that the person appointed curator should be a creditor; but those who are not creditors can be appointed.

(5) If there are three curators, and one of them did not transact any business relating to his office, can an action be granted against him? Cassius thinks that no restriction should be imposed upon a plaintiff under such circumstances, and that any one creditor, who desires to do so, can institute proceedings against him. I think that the opinion of Cassius is perfectly correct, and that what has been obtained from the estate, and not what has come into the hands of one of the curators, should be taken into consideration.

This is our practice, unless the curator was appointed against his consent; for, if this is the case, it must be held that an action should not be brought against him.

3. Celsus, Digest, Book XXIV.

Where several curators are appointed for the property of the same person, an action to recover the entire amount will be granted against any one of them that the plaintiff may select; just as each one of them can sue a debtor of the estate for the entire amount he owes.

4. Papirius Justus, On the Constitutions, Book I.

The Emperors Antoninus and Verus stated in a Rescript that where property has been sold by a curator under the Decree of the Senate, no action would lie against a fraudulent debtor for any act committed before that time.

5. Julianus, Digest, Book XLVII.

If a debtor fails in business, and his creditors assemble and select one by whom his property may be sold, the amount due to each one of them to be paid from the proceeds of the sale, and another person afterwards appears, who alleges that he also is a creditor, he will not be entitled to an action against the curator, but he, along with the curator, can sell the property of the debtor, so that whatever is realized from the sale of .the property by the curator and the said creditor may be paid to all the creditors in proportion to their claims.

TITLE IX.

CONCERNING RESTITUTION WHERE FRAUDULENT ACTS HAVE BEEN COMMITTED AGAINST CREDITORS.

1. Ulpianus, On the Edict, Book LXVI.

The Praetor says: "I will grant an action to the curator of property, or to anyone else to whom it is necessary to grant one, in a case of this kind, within the year in which he has a right to institute such a proceeding, where any act has been committed for the purpose of fraud with anyone who was not ignorant of said fraud, and I will also maintain this right of action against ^£he party himself who committed it."

(1) The Praetor was compelled to introduce this Edict in order to protect the rights of creditors, by revoking any alienations of property which had been made for the purpose of defrauding them.

(2) The Praetor says, "where any act has been committed for the purpose of fraud." These words have a general application, and include every kind of fraud which is committed, as well as every alienation, and every contract. Therefore, everything that is done for the purpose of committing fraud, no matter what it may be, is considered to be revoked by these words, for they have a broad application. If, therefore, the debtor should alienate any property, or give a release from liability for a debt to anyone or release anyone from an agreement;

2. The Same, On the Edict, Book LXXHI.

The same rule should be adopted. And if he releases a pledge, or pays any person for the purpose of defrauding his creditors:

3. The Same, On the Edict, Book LXXI.

Or if he provides one who owes him with an exception, or obligates himself for the purpose of defrauding his creditors; or pays money; or commits any other act to cheat them; it is obvious that the Edict will become operative.

(1) We should understand as fraudulent acts not only such as the debtor performs while making a contract, but also where he intentionally fails to appear in court, or permits an action to come to an end, or does not bring suit against a debtor, in order that he may be released by lapse of time, or intentionally loses an usufruct or a servitude.

(2) This Edict also applies to a person who commits any act for the purpose of parting with property which he has in his hands.

4. Paulus, On the Edict, Book LXVIII.

A debtor is understood to intend to defraud his creditors who does not do what he ought to do, for instance, if he does not make use of servitudes to which he is entitled.

5. Gaius, On the Provincial Edict, Book XXVI.

Or if he should abandon some of his own property, in order that anyone may obtain it.

6. Ulpianus, On the Edict, Book LXVI.

This Edict, however, is not applicable to a person who does not take means to acquire property which he can obtain, for it only has reference to such as diminish their patrimony, and not to those who act in such a way as not to become more wealthy.

(1) Therefore he who fails to comply with the condition imposed, in order that a stipulation may not become operative, does not, by doing so, cause this Edict to take effect.

(2) Hence, if anyone rejects an estate whether it conies to him by law or by the terms of a will, he will not give cause for the application of the Edict, for while he refuses to acquire property, he does not diminish his own patrimony.

(3) In like manner, it must be said that, if a debtor emancipates his son, in order to enable him to accept an estate according to his own judgment, this Edict will not apply.

(4) The opinion also stated by Julianus should be adopted; that is, if a debtor refuses to accept a legacy, the Edict will not apply.

(5) If a debtor should sell his slave, who had been appointed an heir, in order that he might enter upon the estate by the direction of the purchaser, and not the sale, but only what related to the acceptance of the estate was fraudulent, the Edict will not apply, because he has a right to reject the estate. If, however, any fraud attached to the sale of the slave, it shall be revoked; just as if the debtor had fraudulently manumitted him.

(6) It was stated by Labeo that anyone who receives what belongs to him should not be considered to have committed fraud, that is to say, where anyone receives a debt to which he is entitled; for it would be unjust to hold that a debtor whom a Governor forces to make payment against his will can refuse to do so with impunity.

This entire Edict has reference to contracts in which the Praetor does not intervene, as, for example, those involving pledges and sales.

(7) It should be noted that Julianus has said (and this is also our practice) that where anyone receives money that is due to him, before possession is taken of the property of the debtor, even though he is perfectly aware that the latter is insolvent, he does not come within the terms of this Edict, for he has only provided for his own interest.

Any creditor, however, who receives what is due to him after the property of the debtor has been levied on, can be compelled to contribute his share, and be placed on the same footing as the other creditors; for he ought not to deprive them of anything after the property has been taken in execution, as, for this reason, the position of all the creditors becomes the same.

(8) -This Edict punishes him who, knowing that a debtor has the intention of cheating his creditors, receives from him the property of

which they have been defrauded. Hence, if any act is done for the purpose of defrauding creditors, and he who received the property was ignorant of the fact, the provisions of the Edict are not considered

to apply.

(9) Moreover, it must be noted that where anyone either purchases or stipulates for any property belonging to a debtor, who has the intention of cheating his creditors (even though the latter may give their consent), or makes any other contract, he will not be held to have done anything to defraud his creditors; for no one is considered to defraud those who are aware of the fact, and give their consent.

(10) Where any business is done with: a minor for the purpose of defrauding his creditors, Labeo says that it must, by all means, be annulled, if the creditors are defrauded; for the reason that the ignorance of a minor, which results from his age, should not be injurious to his creditors, and profitable to himself. This is our practice.

(11) In like manner, we say where a donation is fraudulently made to anyone, there should be no inquiry as to whether the person to whom the article was given was aware of the nature of the transaction or not, but only whether the creditors were defrauded. He who was ignorant of the fraud is not understood to have been injured by it, as he only loses a source of gain, and no loss is inflicted upon him. Against those, however, who have experienced the generosity of one whom they did not know to be insolvent, an action should only be granted to the extent to which they have become pecuniarily benefited, and no farther.

(12) In like manner, if a slave receives an article from a person whom he himself knows to be insolvent, but his master is not aware of the fact, the question arises, will the master be liable? Labeo says that he will be liable to the extent of being compelled to return what came into his hands; or an action De peculio can be brought against him, or one De in rem verso, if he has profited by the transaction.

The same rule should be adopted in the case of a son under paternal control. If, however, the owner of the slave was aware that the debtor was insolvent, he can be sued in his own name.

(13) Again, if the necessary heir has paid the legacies, and afterwards his property is sold, Proculus says that, even if the legatees were ignorant of his insolvency, an equitable action should, nevertheless, be granted. There is no doubt as to this.

(14) The available days of the year, during which suit can be brought from the date of the sale, should be computed by us in this

action.

i

7. Paulus, On the Edict, Book LXH.

Where a debtor, with the intention of defrauding his creditors, sells a tract of land for less than its value to a purchaser who is aware of the fact, and then the creditors, to whom an action to set aside the sale was granted, claim the land, the question arises whether they should refund the price. Proculus thinks that the land must by all

means be returned, even if the price is not refunded. The opinion of Proculus is confirmed by a rescript.

8. Venuleius Saturninus, Interdicts, Book VI.

From this it may be gathered that not even a part of the price paid by the purchaser should be returned to him. It can, however, be said that the matter ought to be investigated by an arbiter, to the end that he may order the money to be refunded, if it still is among the effects of the debtor; because, in this way, no one will be defrauded.

9. Paulm, On the Edict, Book LXII.

A certain man knowingly purchased an article from a debtor whose property had been taken in execution, and then sold it to a bona fide purchaser. The question arose whether an action could be brought against the second purchaser. The opinion of Sabinus, that a bona, fide purchaser is not liable, is the better one; because fraud should only • injure him who commits it, just as we hold that a purchaser will not be liable if, being ignorant of the facts, he bought the property from the debtor himself. But he who bought it fraudulently, and afterwards sold it to a bona fide purchaser, will be liable for the entire sum which he received for the property.

10. Ulpianus, On the Edict, Book LXX1II.

The Prastor says: "Where Lucius Titius, with your privity and to your advantage, has disposed of any property for the purpose of defrauding his creditors, so that an action under my Edict will lie against him for the property in question, when no more than a year 'has elapsed, as an action with reference to said property can be brought, you must grant restitution, after proper cause has been shown; and even if you were not aware of the fact, I will grant an action in factum."

(1) When anything is done for the purpose of defrauding creditors, it is only set aside where fraud actually results, that is to say, where the creditors whom the person intended to defraud have sold his property. If, however, he has satisfied the claims of those whom he intended to defraud, and has obligated himself to other creditors, or if he has simply paid those whom he intended to defraud, and afterwards become indebted to others, annulment will not take place; but if he satisfied the claims of the first ones whom he intended to defraud by paying them the money of the others whom he had no intention of defrauding, Marcellus says that there will be ground for the annulment of the transaction.

This distinction is mentioned in a Rescript of the Emperors Severus and Antoninus, and is recognized in our present practice.

(2) Where the Pra?tor says, "aware of the fact," we must understand this to mean that I know that you are committing a fraud; for if I merely know that you have creditors, it will not be sufficient to render me liable to an action in factum, for I must have participated in the fraud.

(3) If anyone is not a participant in a fraud, and still, at the time of the sale of the debtor's property, should be summoned by the creditors and notified by them in the presence of witnesses not to purchase the property, will he be liable to an action in factum if he should do so? The better opinion is that he will be liable, for anyone who is notified not to purchase in the presence of witnesses, and does so, is not free from fraud.

(4) It is, however, otherwise where anyone knows that another has creditors, and makes an absolute contract with him, without being aware of the fraud; for he is not considered to be liable to this ac^

tion.

(5) The Praetor says, "aware of the fact," that is to say, he is meant against whom this action can be -brought. But what if the guardian of a ward was aware of the fraud, and his ward was not? Let us see whether there will be ground for an action based upon the knowledge of the guardian, and whether the same rule will apply to the curator of an insane person, or a minor? I think that the knowledge of the guardian or the curator will only injure the ward or the minor to the amount of property which comes into their hands.

(6) It should also be noted that, where it is alleged that a sale of property made for the purpose of defrauding creditors can be set aside, if the creditors are the same, even if one of them is of the number of those who have been defrauded (whether he is the only one remaining, or the claims of the others along with his have been satisfied), it must be held that there will still be ground for this action.

(7) It is certain that it can be brought, even if the contracting party knew that one of the creditors had been defrauded, although he was not aware that this was also the case with the others.

(8) But what if he who was supposed to have been defrauded has been paid; will he be liable to an action for the reason that the remaining creditors have not been the victims of fraud ? I think that this opinion should be adopted. And if anyone, for the purpose of avoiding an action, should say, "I tender what is due to him whom I know to be a creditor," he should not be heard.

(9) If the person intending to commit fraud has an heir, and the property of the latter is sold by his creditors, as this has no reference to the property in question, this action will not lie.

(10) If a son, who" has the right to reject an estate, should commit some act for the purpose of defrauding the creditors, and obtain complete restitution because he interfered in the affairs of the estate, or if even a voluntary heir should commit a fraudulent act for the same purpose, and is entitled to complete restitution on account of his age, or for any other good reason, it must be said that an equitable action can" be brought against him. The same rule applies to a slave who is a necessary heir.

Labeo, however, says that this rule should be adopted with an exception, for if the creditors sell the property of an estate, and the necessary heirs commit any act with reference to it during the absence,. or with the consent of the creditors, the fraudulent act of both parties,

that is to say, of the testator and his slaves, will be revoked. If, however, the creditors permitted the necessary heir to act, and had faith in him, or, tempted by the prospect of a high rate of interest, or for some other reason, were induced to trust him, it must be held that any sale of the property made by the testator ought not to be set aside.

(11) If a minor, under the age of puberty, becomes the heir of his father, and dies, and his property is sold by his creditors after a separation has been obtained, any fraudulent sale made by the ward, or by his guardian or curator can be set aside.

(12) When a debt is due to me within a certain time, and the person intending to commit a fraud pays it before it is due, it must be said that the benefit which I have obtained from being paid in advance will afford ground for an action in factum, for the Praetor understands that the fraud was committed with reference to the time.

(13) Where a creditor has not been paid, but has received a pledge as security for an old claim, he will be liable to this action; as has been frequently set forth in constitutions.

(14) If a woman, with a view to defrauding her creditors, marries one of her debtors, and releases him from his obligation for the purpose of obtaining the amount as dowry, in fraud of her creditors, this action will lie; and, by means of it, all the money which her husband owed can be collected. The woman will not be entitled to bring suit to recover her dowry, for the dowry was constituted in fraud of her creditors; and this is absolutely certain, and has been frequently promulgated in constitutions. The effect of the action will be to reestablish unimpaired the stipulation from which her husband had been released.

(15) By means of this action an usufruct, as well as a stipulation in the following terms, "Do you promise to pay ten aurei every year ?" can be enforced.

(16) If I pursue and arrest a debtor of mine who has several creditors, and had absconded, and I recover the money which he has stolen, and take from him what belongs to me, it was the opinion of Julianus that it made a great deal of difference whether this was done before the creditors of the debtor were placed in possession of his property, or afterwards. If it was done before, an action in factum will not lie; if it was done afterwards, there will be ground for the action.

(17) If the property of a deceased person has been adjudged to anyone, by the Constitution of the Divine Marcus, it must be held that for the purpose of preserving freedom this action will not lie; for he to whom it was adjudged succeeds to the estate with the understanding that whatever was done by the deceased was valid.

(18) The year during which the action in factum must be brought is reckoned from the day of the sale of the property.

(19) "By means of this action, the property must be restored, but, of course, with any charges imposed upon it.

(20) The income derived from the property, not only that which has been collected, but also what could have been collected by the person guilty of fraud, is included. This rule, however, is capable of modification, for any expenses which have been incurred should be deducted, as he cannot be compelled by the decision of the court to restore the property, before he has been reimbursed for his necessary expenses.

This rule should also be adopted where any other person has incurred expense with the consent of the sureties and the creditors.

(21) I think that the better opinion is that the offspring of a slave is included in this action.

(22) Moreover, generally speaking, it should be noted that by this action everything should be restored to its former condition, whether it consists of property or of obligations, so that whatever may have been done is set aside, just as if no release had been made. In consequence of this, any profit which would have been obtained in the meantime by the debtor, if no release had been given, must be returned; or if interest, which was not included in the stipulation, was not paid; or if the contract was of such a nature that interest could be collected under it, even if it was not agreed upon.

(23) If the obligation was conditional or had reference to a certain time, it must be re-established with the condition or the time. If, however, it was of such a character that the time upon which it was dependent had elapsed, it can be said that restitution could be asked for within the time which remains, for the discharge of the obligation, without waiting until the year had expired.

(24) This action can be brought after the year has elapsed, where any property which has come into the hands of him who is the object of it is involved; for the Praetor thought that it would be unjust to permit him to have any benefit who had profited by the fraud, and therefore he decided that he should be deprived of all gain. Therefore, whether the party in question himself committed the fraud, or someone else profited by it, the action can be brought with reference to. whatever has come into his hands, or if he has acted fraudulently to avoid acquiring it.

(25) This action is granted in favor of the heir and other successors, and against the heir and persons of this kind.

11. Venuleius Saturninus, Interdicts, Book VI. Cassius introduced an action having reference to property which comes into the hands of an heir.

12. Marcellus, Digest, Book XVIII.

If a father grants the free administration of his peculium to a son under his control, he is not held to have done so for the purpose of alienating it to defraud his creditors, for he himself has not the power to make an alienation of this kind. If, however, the father should grant the peculium, to his son with a view to defrauding his creditors, he will be held to have done this himself, and there will be sufficient

ground for actions to be brought against him. For the creditors of the son are also the creditors of the father, as they will be entitled to an action of this kind in case it is necessary for money to be paid to them out of the peculium.

13. Paulus, On the Edict, Book LXVIII.

It is established that anyone who holds a pledge is not liable under this action, for he is in possession of it in his own right, and does not hold it for the purpose of preserving the property.

14. Ulpianus, Disputations, Book VI.

By this action in factum, not only the ownership of the property, but also the rights of action of the debtor are restored. Therefore, it will lie to compel those who are not in possession of the property to restore it, and also against those who have a right of action to compel them to assign it. Hence, if he who is guilty of fraud has introduced Titius, in order that he may transfer the property to him, he should be compelled to assign his right by an action on mandate. Therefore, if the fraudulent debtor gives a dowry for his daughter to anyone, knowing that his creditors are defrauded thereby, the daughter will be liable, and will be forced to assign the right of action to recover the dowry, to which she is entitled against her husband.

15. Julianus, Digest, Book XLIX.

If anyone who has Titius as his creditor, being well aware that he is not solvent, makes a testamentary grant of freedom, and then, after having paid Titius in full, has Sempronius as his creditor, and dies, without making any change in his will, the grants of freedom should be confirmed, even if the estate is not insolvent; because, for grants of freedom to be rescinded, we require two conditions to exist, namely, the intention to commit fraud, and the perpetration of the same.

And if the creditor, whom it was the intention to defraud in the beginning, was not cheated, there was originally no intention to deceive him who was actually defrauded. Therefore grants of freedom are confirmed :

16. Paulus, Opinions of Papinianus, Book V.

Unless the creditors having prior claims are paid with the money of subsequent ones.

17. Julianus, Digest, Book XLIX.

All debtors who are released for the purpose of defrauding creditors are, by this action, restored to their former liabilities.

(1) Lucius Titius, having creditors, transferred all his property to his freedmen, who were also his natural children. The opinion was given that, although it was not suggested that Titius proposed to commit fraud, still, as he knew that he had creditors, and alienated all his property, he should be understood to have had the intention

of defrauding them; and, therefore, although his children were not aware that this was the intention of their father, they would be liable under this action.

(2) If a husband, intending to defraud his creditors, after the dissolution of his marriage, returns his wife's dowry before the time prescribed by law for him to return it, the wife will be liable under this action for the amount of the interest of the creditors in having her dowry returned at the proper time; for the Praetor understands that payment made before the designated time is fraudulent.

18. Papinianus, Questions, Book XXVI.

If a husband returns a pledge given him by his wife, or a wife returns one given to her by her husband", the better opinion is that of those who think that no donation was made. There is, however, no doubt if this was done for the purpose of defrauding creditors that the transfer can be set aside by a praetorian action.

The same rule applies where anyone relinquishes a pledge for the purpose of defrauding the creditors of his debtor.

19. The Same, Opinions, Book XL

I gave it as my opinion that a father had not defrauded his creditors who, without waiting for his death, transferred the estate of his wife which had been left in trust to their son, after having released him from his control, without taking any account of the Falcidian portion; and I held that the father had fully executed his trust, and had perfectly discharged the duty required of him.

20. Callistratus, Questions, Book II.

It is settled that a debtor who has transferred an entire estate, in accordance with the Trebellian Decree of the Senate, is not considered to have defrauded his creditors, if he also transfers the portion which he was entitled to retain by law, but that he has, with the greatest fidelity, complied with the wishes of the deceased.

21. ScsRVola, Opinions, Book I.

A debtor, with the intention of defrauding his creditor, entered into an agreement with a neighbor with reference to the boundaries of a tract of land which he had hypothecated. The question arose whether he who purchased the land from the creditor could bring an action to establish the boundaries. The answer was that, according to the facts stated, he would not be any the less entitled to bring the action, because the debtor made the agreement without the knowledge of his creditor.

22. The Same, Opinions, Book V.

Where a creditor receives a pledge to secure an old claim, I ask whether his act is of no effect, as having been performed for the purpose of defrauding the other creditors. The answer was that the creditor should not be prevented from pursuing the pledge, because he had

agreed that it should be given as security for an old debt, unless this was done for the purpose of defrauding other creditors, and legal proceedings should be taken by which acts defrauding creditors are usually rescinded.

23. The Same, Digest, Book XXXII.

When certain heirs, appointed in the first degree, ascertained that the estate of the deceased was scarcely sufficient to satisfy the fourth part of his indebtedness, for the purpose of preserving his reputation with the consent of the creditors, and by the authority of the Governor of the province entered upon the estate on condition of only paying a portion of their claims to the creditors; the question arose whether the slaves manumitted by the will could obtain their freedom and the means of support which had been bequeathed to them. The answer was that the grants of freedom would take effect, provided they had not been left for the purpose of defrauding the creditors, but that the legacies would not be due if the estate was insolvent.

24. The Same, Questions Discussed in Public.

A minor became the heir of his father, paid one of the creditors, and afterwards rejected his father's estate. The property of his father was sold. Should what the creditor received be returned, to prevent him from enjoying a greater advantage than the other creditors; or shall we make a distinction if he received this as a favor, so that if he was treated with partiality by the guardians, his share may be reduced in proportion to those of the other creditors? If, however, he collected his claim legally, and the other creditors neglected to collect theirs, and, in the meantime, the property became deteriorated either by death, by the theft of chattels, or by the depreciation in value of the land; that which the said creditor received can, by no means, be recovered, as the other creditors should pay the penalty for their negligence.

But what if matters were in such a condition that the property of my debtor being about to be sold, he should pay me my debt; can the money be recovered from me by an action? Should a distinction be made where he tendered me the money, and where I compelled him to pay me against his consent? And if I forced him to make payment involuntarily, can it be recovered, but if not, will this be done? But I have watched over my interests; I have improved my condition; the Civil Law was made for those who are diligent in protecting their own rights; and hence what I received cannot be recovered.

25. Venuleius, Interdicts, Book VI.

When a fraudulent debtor gives a release to someone who owes him, with the knowledge of the surety of the latter, and the principal debtor was not ignorant of the fact, both parties will be liable, or at least the one who was familiar with the circumstances. Where, however, he who was released was not solvent, let us see whether the action should be granted against the principal debtor, even if he was ignorant of the facts, because he received the debt as a donation.

On the other hand, if the release was given to the principal debtor and he was aware of the fraud, his surety will also be liable, if he also was aware of it; but if he did not know of it, why should not an action also be granted against him, as he does not sustain any more damage than he obtains benefit?

Where there are two principal debtors, the case of both is the same.

(1) Where a son-in-law accepts a dowry from his father-in-law, knowing that he intends to defraud his creditors, he will be liable under this action. If he returns the property, he will cease to have the dowry, and Labeo says that nothing should be returned to an emancipated daughter, after a divorce has taken place, because this action is granted for the purpose of recoyering the property and not to inflict a penalty; and hence the defendant, by making restitution, is discharged from liability.

If, however, before the creditors have brought suit against the father-in-law, the son-in-law should return the dowry to the daughter, he can be sued in an action on dowry; and Labeo holds that he will still be liable under this action, without having any recourse against the woman.

But let us see whether he will have a right to claim anything without instituting judicial proceedings. If he was ignorant of the fraudulent intent of the father-in-law, but the daughter knew it, she will be liable; and if both of them knew it, they will both be liable. If neither of them knew it, some authorities hold that an action against the daughter ought, nevertheless, to be granted, because it is understood that something in the form of a donation has come into her hands; or, at all events, she should give security to return whatever she may obtain. An action, however, should not be granted against the husband, if he was ignorant of the intended fraud, as he would not have married a wife who had no dowry; any more than it should be granted against a creditor who receives what is due to him from a debtor intending to commit a fraudulent act.

(2) Likewise, if a stranger, for the purpose of defrauding his creditors, gives a dowry to a girl under paternal control, her husband will be liable if he was aware of his intent, and the woman also, as well as her father, if he was not ignorant of it; so that the husband must give security to return the dowry if it should come into his hands.

(3) If an agent, without the knowledge of his principal, orders a slave to receive property from a debtor who has the intention of defrauding his creditors, and he is aware of this, he himself, and not his principal, will be liable to this action.

(4) Not only must the property which has been alienated be returned, but also any crops which have taken root in the earth at the time of the alienation,' because they constitute part of the property of the fraudulent debtor, as well as those which were gathered after the suit was begun. Any crops gathered in the meantime will not, however, be included in the restitution.

In like manner, the offspring of a female slave who has been fraudulently alienated, which was born in the meantime, will not be included in the restitution, because it did not form part of the property of the debtor.

(5) Proculus says that, if a female slave conceives after the alienation took place, and has a child before suit is brought, there is no doubt that the child should not be returned. If, however, she was pregnant at the time she was sold, it may be said that the child must also be returned.

(6) With reference to crops attached to the soil, Labeo says that by this expression it is not clear whether the Praetor meant the crops which were ripe, or also those which had not yet matured. Moreover, if he referred to those which were ripe, possession need not be restored on that account, for when a tract of land is alienated, the land and everything attached to it are held to constitute but one thing, that is to say, the crops are included in an alienation of any kind; nor should he be understood to have two different things, who, during the winter, has a tract of land which is worth a hundred aurei, and at the time of harvest or vintage, can sell the crops for ten aurei, that is to say, the land is worth a hundred aurei, and the crops are worth ten; but as he has but one thing, that is, the tract of land worth a hundred aurei, so also he has but one thing who can sell his house separate from the land.

(7) This action is also granted against a fraudulent debtor, although Mela does not think that it ought to be done, because none is granted against him for anything which took place before the sale of his property, and it would be unjust for an action to be granted against one who had been deprived of all his possessions.

If, however, he should lose some of them and they cannot be recovered in any way, an action will, nevertheless, be granted against him. The Praetor is not considered to take into account the benefit of this proceeding in the case of one who had been deprived of his property by way of penalty.

VOL. 9]

THE DIGEST OR PANDECTS. BOOK XLIII.

TITLE I.

CONCERNING INTERDICTS OR THE EXTRAORDINARY PROCEEDINGS TO WHICH THEY GIVE RISE.

1. Ulpianus, On the Edict, Book LXVII.

Let us see in what cases interdicts are available. It should be noted that they are applicable to both Divine or human affairs; to Divine affairs, where sacred or religious places are concerned. Interdicts are granted with reference to human affairs, where property has an 6wner, or where it belongs to no one. Free persons are included in that which belongs to no one, and interdicts will lie where they must be produced in court, or conducted anywhere. Things which have an owner are the property of the public, or of individuals. Public property consists of public places, highways, and rivers; property belonging to individuals is such as relates to property in its entirety, as in the case of an interdict Quorum, bonorum, and that which is separated, as in the case of the interdict Uti possidetis or De itinere actuque.

(1) There are three kinds of interdicts, exhibitory, prohibitory, and restitutory. There are also certain interdicts which are of a mixed nature, and which are both prohibitory and exhibitory.

(2) Some interdicts have reference to the present time, and others to future time. The interdict Uti possidetis has reference to the present time, and the one De itinere actuque de aqua sestiva has reference to

future time.

(3) All interdicts are personal in their application, although they

appear to relate to property.

(4) Some interdicts only last a year, and others are perpetual.

2. Paulus, On the Edict, Book LXIII.

There are double and single interdicts. The interdict Uti possidetis is an instance of a double one. Exhibitory and restitutory interdicts are single, and there are also prohibitory interdicts, as for instance, those De arboribus csedendis and De itinere actuque.

(1) Moreover, interdicts will lie in favor either of persons, or for the purpose of upholding the Divine Law, and protecting places which are religious; for example, to prevent any act being committed in a sacred place, or to compel matters to be restored to their former condition, where anything has been done; which includes the interdict having reference to burials and the construction of tombs.

Those which have been established in favor of persons either have reference to the common welfare, the maintenance of the rights of individuals, the discharge of official duty, or the preservation of private

property. The interdict granting the use of public highways and public rivers, and prohibiting any obstruction from being placed upon a highway is an instance of one instituted for the common welfare; the interdicts to compel the production of children and freedmen in court are examples of those established for the protection of private rights. The interdict requiring the production of a freeman in court is an example of one to compel the performance of an official duty. Other interdicts are granted for the protection of property.

(2) Some interdicts include the pursuit of property, as, for instance, the one which has reference to private rights of way, for by proceedings under this interdict the title to property is involved. Interdicts which refer to sacred and religious places also embrace, to a certain extent, the title to property. That which has reference to the production of children in court, and which we have stated has for its object the maintenance of private rights, is also of this description, so that it is not strange that interdicts relating to private property include the title to it and not the right to its mere possession.

(3) Those interdicts which have reference to private property are instituted either for the purpose of acquiring, recovering, or retaining possession. Interdicts to obtain possession are such as are available by parties who have not hitherto acquired it; and an example of these is the interdict Quorum bonorum. The Salvian Edict which relates to pledges is one of this kind, and is as follows: "I forbid violence to be employed to prevent the purchaser from using a right of way which was used by the vendor."

Interdicts for the recovery of possession are mentioned under the title, "Unde vi," for there are certain interdicts which are classed under this head. The interdict, "Uti possidetis," is an instance of one of those issued for the purpose of retaining possession. As we have previously stated there are also interdicts which are double; these are for the purpose of both recovering and retaining possession.

3. Ulpianus, On the Edict, Book LXIX.

In interdicts issued to compel the return of crops, the date when they were issued is taken into consideration, and not any previous time.

4. Paulus, On the Edict, Book LXVII.

In cases where the interdicts are only in force for a year, Sabinus is of the opinion that an action should be granted after the year has elapsed, if the party who is sued has obtained any of said crops.

5. The Same, On Sabinus, Book XIII. '"

Noxal interdicts are those which are granted on account of some crime committed by persons under our control; as, for instance, where they have forcibly ejected anyone, or have erected a new work either by violence, or clandestinely. It is, however, the duty of the judge to release the' owner, if he places the property in its former condition at his own expense; or if he permits the work to be removed, and directs

a slave to be surrendered by way of reparation. If he does not surrender the slave, judgment must be rendered against him for the amount of expense incurred in removing the work; and if he neither suffers it to be removed, nor removes it himself, if he can do so, he shall have judgment rendered against him for an amount which the court may determine, just as if he himself has constructed the work in question.

TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM.

1. Ulpianus, On the Edict, Book LXVII.

The Praetor says: "Whenever possession of the property of an estate is granted to anyone under my Edict, you will restore to him everything belonging to said estate which you hold, either as heir, or merely as possessor, if there is no usucaption, or if he did not act in bad faith in order to avoid retaining possession."

(1) This interdict is restitutory, and applies to all property, and not to certain specific things. It is styled Quorum bonorum, and has for its object the obtaining possession of the entire property in dispute.

2. Paulus, On the Edict, Book XX.

The debtors of an estate are not liable under the interdict Quorum bonorum, but only those who have possession of any property.

TITLE III. CONCERNING THE INTERDICT QUOD LEGATORUM.

1. Ulpianus, On the Edict, Book LXVII. This interdict is commonly called Quod legatorum. . (1) It is also for the purpose of obtaining possession.

(2) It has for its object the restoration to the heir of everything belonging to the estate of which a legatee, against the consent of the heir, has taken possession. For it seemed perfectly just to the Praetor that anyone should not define his rights himself, by taking possession of the legacy, but should first apply to the heir. Therefore the Praetor, by means of this interdict, places in the hands of the heir property which is in the possession of others as legacies, so that the legatees can

sue the heir.

(3) This interdict, on the ground of public convenience, is said to extend to the heir of the heir, both civil and praetorian, as well as to other successors.

(4) But as it is sometimes uncertain whether anyone has possession of property as legatee, as heir, or as possessor under the Praetorian Edict, Arrian very properly says that proceedings should, be instituted to claim the estate, and that this interdict ought to be

granted whether anyone in possession is liable under it as an heir, a possessor, or a legatee; just as we are accustomed to do when it is doubtful which of two actions should be brought; for we propose two actions, alleging that we can obtain what we are entitled to by one or the other of them.

(5) When anyone has possession of property through a donation mortis causa, this interdict will not apply; because, of course, the Falcidian portion will remain in possession of the heir by operation of law, even though all the property has been actually transferred.

(6) Anyone who has received a preferred legacy is liable under this interdict, but only for what he is legally entitled to as a bequest, and not for that part of the estate which he holds in the capacity of heir.

The same rule will apply to a legacy bequeathed to an heir in any other way, for, in this case, it must be decided that the interdict will not be applicable to that part of the estate to which he is entitled as heir.

(7) Where the Praetor says, "or has ceased to hold possession by fraud," we must understand this to mean if he has ceased to have the power to make restitution.

(8) Hence the question arises, if the right of usufruct or use is bequeathed to anyone, and he takes possession of it, can he be compelled to restore it by the provisions of this interdict? The difficulty is that neither the usufruct nor the use can be actually possessed, but they are rather held. It can, however, be maintained that an interdict will lie. The same rule applies to the bequest of a servitude.

(9) The question arises, where anyone is placed in possession of an estate for the preservation of legacies, whether he can be compelled by this interdict to make restitution. The difficulty in the first place, is, that he who is placed in possession of the property for the purpose of insuring the payment of the legacies is not actually in possession, but rather has charge of the property; and in the second place, because this has been authorized by the Praetor. It will be safer to hold, however, that this interdict will lie; especially if security has already been given for the legacies, and the legatee does not withdraw, for then he is considered to have possession.

(10) We can not only say the legatee possesses the property by virtue of the legacies, but also that his heir and other successors can possess the same.

(11) Where the Praetor says, "with the consent of him to whom the property belongs," this must be understood to signify that, if permission to take possession had been granted to the legatee after the estate has been entered. upon, or praetorian possession has been obtained, the interdict will not lie; because if this is done before the estate has been entered upon, or the consent to praetorian possession has been secured, it may properly be held that this will not prejudice him, if he desires to avail himself of the interdict.

(12) Where two articles are bequeathed, and one of them is taken with the consent of the heir, and the other without it, the result will

be that one of them can be recovered, and the other cannot. The same rule should be adopted with reference to a single article, a part of which is taken with the consent of the heir, and a part without it, for he can only be deprived of a portion of the same by means of an interdict.

(13) It must be held that there will be ground for this interdict, if possession has begun to be taken by you, or by someone to whose place you have succeeded. We understand one person to have succeeded to the place of another when he succeeds to the entire property, or merely to part of it.

(14) Possession is always a benefit when it has been begun with the consent of him to whom the property belongs. If, however, the consent of the owner is not obtained until afterwards, it will still benefit the possessor. Therefore, if anyone begins to hold possession with the consent of him who has an interest in the property, and his consent is afterwards withdrawn, this will not prejudice him, because he began to hold possession with the consent of the party interested.

(15) If one of two heirs, or any other persons who have an interest in the property, gives his consent to possession of the same by the legatee, and the other does not, it is evident that an interdict will only lie against the one who refused his consent.

(16) Where the Praetor says, "unless security is furnished," we should understand this to mean if the security continues to exist; for if it does not, the legatee will be placed in possession of the property of the estate for the purpose of insuring the payment of the legacies.

(17) I think that proper security should be furnished to the legatee either directly by operation of law, or in such a way that he can obtain it by an action on mandate, and then there will be ground for

the interdict.

(18) If security is given for certain property, and not for some other, there will be no difficulty in instituting proceedings under the Edict with reference to the property for which security has been furnished, but this cannot be done to compel the return of the other.

2. Paulus, On the Edict, Book LXIII.

The case is different if anything has afterwards been added to the legacy, for, in this case, the sureties will be liable for the entire amount.

(1) Where the Praetor says, "if the praetorian possessor of the estate is not required to give security," we must understand this to mean, if he is ready to give it. Hence, he should not offer to furnish security, but should not delay to do so if the legatee demands it.

(2) When anyone does not make restitution, judgment to the amount of his interest should be rendered against him under this interdict.

(3) If the legatee is satisfied with a mere promise, the interdict should be granted. The same must be said, if the legatee refused to be secured by pledges.

(4) If the legatee was to blame for security not having been given,-even though none was furnished, he will be liable under the interdict.

If, however, he was to blame for security not having been given, but, at the time that the interdict was issued, he was ready to accept security, the interdict will not lie, unless security was given. But if the possessor under the Praetorian Edict was responsible for security not having been given, but was afterwards ready to furnish it, the interdict will lie; for the time when it was issued is taken into consideration,

TITLE IV.

CONCERNING THE INTERDICT WHICH PROHIBITS VIOLENCE BEING EMPLOYED AGAINST A PERSON PLACED IN POSSESSION.

1. Ulpianus, On the Edict, Book LXXII.

The Praetor says: "I will grant an action in factum, for the amount of the value of the property of which a person was placed in possession, against anyone who acts fraudulently to prevent him from obtaining control of said property by my permission, or by that of any other magistrate having jurisdiction."

(1) It was with the greatest wisdom that the Praetor introduced this interdict; for it would be useless for him to place anyone in possession of property for the purpose of preserving it, unless he protected him, and punished those who prevented him from occupying it.

(2) Moreover, this Edict is of general application, for it has reference to all persons placed in possession of property by the Praetor, as it seemed proper to him that all those whom he placed in possession should be protected. Where persons are placed in possession, either for the purpose of preserving the property, or to insure the payment of their legacies, or to protect the rights of an unborn child, they will be entitled to an action in factum under this Edict, if a master or anyone else should prevent them from doing so.

(3) This action will not only lie against anyone who prevents another from taking possession, but also against a person who drives him away, after he has already obtained possession. It is not required that he who prevents him from taking possession should use force.

(4) Therefore, where if anyone hinders another from taking possession, because he thinks that the property belongs to him, or is encumbered to him, or, in fact, does not belong to the debtor, the result will be that he will not be liable under this Edict.

(5) The following words, "for the amount of the value of the property of which he was placed in possession," include the entire interest of the creditor, so that the defendant shall have judgment rendered against him to the extent of the interest he had in not being prevented from obtaining possession. Hence, if he was placed in possession by virtue of a false claim or demand which was groundless, or if he should have been barred by an exception, this Edict will be of no advantage to him, because there was no reason why he should have been placed in possession.

(6) It is established that neither a minor nor an insane person is liable under this Edict, because they are destitute of will power. We should understand a minor to be one who is incapable of committing fraud, but if he is already capable of doing so, the opposite opinion must be held; therefore, if a guardian should commit a fraudulent act, we will grant an action against his ward, provided the guardian is solvent. Julianus says that the guardian himself can be sued.

(7) If anyone is prevented from obtaining possession with the consent of a master or a father, an action will be granted against them, just as if they committed the act by the agency of others.

(8) This action can only be brought within a year, except where anyone is placed in possession to insure the payment of a legacy; and it must be noted that it cannot be brought after the year has expired, as it is a penal one; nor will it be granted against heirs and other persons of this kind, unless with reference to property which has come into their hands. It will, however, be granted to the heir and other successors. For when anyone is prevented from obtaining possession on account of the preservation of legacies or trusts, the action is perpetual and is granted against the heir, because it is in the power of successors to avoid the operation of the interdict by offering to give security.

2. Paulus, On the Edict, Book LIX.

It makes no difference whether anyone is prevented from taking possession in his own name, or in that of another, for the words, "For the amount of the value of the property," have reference to the owner

personally.

(1) He also is liable who, either in his own name or in that of another, prevents possession from being taken.

3. Ulpianus, On the Edict, Book LXVIII.

Where anyone is awarded possession for the protection of a trust, and is not admitted, he should be placed in possession by the authority of him who granted it to him. If he wishes to avail himself of the interdict, it must be said that it will be applicable. It would, however, be better for the judge to have his decree executed by extraordinary process, derived from the power of his office, and sometimes even to accomplish this by armed force.

(1) It was decided by Antoninus that a person may, under certain circumstances, be permitted to take possession of the property of the heir himself. Therefore, if anyone is not permitted to take possession of such property, it must be held that this equitable proceeding will lie.. He can also make use of extraordinary execution.

(2) The Praetor places an unborn child in possession. This interdict is both prohibitory and restitutory. If the mother prefers to bring an action in factum, it must be remembered that she can do so (as in the case of creditors), rather than avail herself of the interdict.

(3) If the woman is alleged to have obtained possession for the purpose of causing annoyance, or because she is not pregnant, or is not

pregnant by the man whose property is in question, or where anything is alleged with reference to her status, the Praetor promises possession to the unborn child, under a Rescript of the Divine Hadrian, in conformity with the presumption of the Carbonian Edict.

4. The Same, On the Edict, Book LXIX.

The Praetor, by means of this Edict, conies to the relief of a person who has been placed in possession by him for the prevention of threatened injury, in order to prevent violence being employed against him.

(1) Moreover, the penalty imposed upon him who does not promise security or furnish it is that his adversary shall be placed in possession. Therefore, if he promises to give security, or if he was not required to do so, the interdict will not apply, and the plaintiff can be barred by an exception.

(2) The Praetor promises an action against a party who neither gave security, nor suffered him who had been placed in possession to enter upon the premises, for the amount which he must have paid if he had furnished security.

(3) The Praetor introduced this action for another reason, namely, so that, if when a person desired to be placed in possession he was unable to appear in court, and in the meantime while his inability continued, he sustained any injury he might be entitled to bring the action.

(4) It was also added that if anyone who was placed in possession was alleged to have been prevented for some other reason, he would have a right to an action in factum.

TITLE V.

CONCERNING THE PRODUCTION OF PAPERS RELATING TO

A WILL.

1. Ulpianus, On the Edict, Book LXVIII.

The Praetor says: "If you have in your possession any documents which Lucius Titius is alleged to have left, and which have reference to his will; or if you have committed some fraudulent act to avoid having them in your possession, you must produce them for So-and-So. I shall include in my decree all memoranda, or anything else which he is said to have left."

(1) If anyone acknowledges that the will is in his possession, he should be ordered to produce it, and time should be granted him to do so, if he cannot produce it immediately. If he states that he cannot produce it, or denies that this ought to be done, the interdict will lie.

(2) This interdict not only has reference to the will itself, but also to everything relating to it, as, for instance, a codicil.

(3) It must be said that the interdict will be applicable whether the will is valid or not (whether it was void originally, or has been

broken, or is defective in any other respect, or even if it is alleged to be forged, or to have been made by one who did not have testamentary capacity to make a will).

(4) It must be held that this interdict will apply whether the will in question was the last or the first one executed.

(5) Therefore, it should be said that this interdict has reference to every written will, whether it is perfect or imperfect.

(6) Hence, if there are several wills, made at different times, it must be held that this interdict will apply; for all instruments having reference to the will which have been drawn" up at different times should be produced.

(7) If a discussion arises with reference to the condition of the testator, and a son under paternal control, or a slave is alleged to have drawn up the will, it shall be produced.

(8) Moreover, there will be ground for this interdict where a son under paternal control makes a will disposing of his castrense peculium.

(9) The same rule will apply if he who executed the will dies

while in the hands of the enemy.

(10) This interdict does not refer to the will of a person who is living, because the Praetor employs the term "left."

(11) If the will has been erased without fraudulent intent,

2. Paulus, On the Edict, Book LXIV. Either entirely, or partially,

3. Ulpianus, On the Edict, Book LXVIII.

This interdict will be applicable.

(1) If the will is written upon several sheets, they are all included under this interdict, because they constitute but a single will.

(2) If the will is deposited with anyone by Titius, proceedings can be instituted by virtue of this interdict, both against the person who has the will, and against him who deposited it with him.

(3) Hence, if the guardian of a temple or a notary has the will as a depositary, it must be said that he will be liable under this interdict.

(4) When the will is in the hands of a slave, his master will be

liable under the interdict.

(5) If the testator himself says that the will is his, and wishes it to be produced, this interdict will not lie; but an action for its production must be brought to enable him to claim the will after it has been produced.

This rule should be adopted in all cases where persons claim the

ownership of documents.

(6) If anyone commits fraud in order to avoid having a will in his possession, he will still be liable under this interdict. Proceedings under the Cornelian Law relating to testaments will not, however, be prevented; as, for instance, if the party in question is alleged to have fraudulently suppressed the will. For no one can retain a will with

impunity under the pretext that he has committed a more serious crime, and by the production of it, the crime, which is admitted, will be the more readily proved.

Anyone may be guilty of fraud and yet not come within the provisions of this law, as for example, if he did not steal or hide the will, but delivered it to another to avoid being compelled to produce it for the inspection of the party making use of the interdict; that is to say, if he did this, not with the intention of suppressing the will, but in order to avoid producing it.

(7) This interdict'is exhibitory.

(8) Let us see what it is to produce anything. It is to place it in such a position as to afford an opportunity for it to be taken hold of.

(9) Production must be made before the magistrate in such a way that by his authority the witnesses may be notified to appear and acknowledge their seals. If they do not obey, Labeo says that they should be compelled to do so by the magistrate.

(10) All persons to whom anything has been left by a will can demand its production.

(11) In a case of this kind the amount of the judgment should be in proportion to the interest of him for whose inspection the person having the will in his possession refuses to produce it.

(12) Therefore, if the appointed heir makes use of this interdict, the estimate of the damages must be in proportion to the value of the estate.

(13) If a legacy is in dispute, the amount of the damages must be in proportion to the value of the legacy.

(14) If the legacy was bequeathed under a condition, the estimate will be made just as if the condition had been complied with; nor shall the legatee be compelled to give security to restore whatever he obtains, if the condition should not be fulfilled; because the decree imposes the penalty for contumacy incurred by the heir for not producing the will.

(15) Hence, if the legatee, having received the value of his legacy in this way, afterwards claims the legacy itself, the question arises whether he should be heard. I think that if the heir paid the amount, the legatee will be barred by an exception on the ground of fraud; but if anyone else paid it, he will not be barred. Therefore, the same distinction should be made if the heir obtained the value of the legacy, after having availed himself of the interdict.

(16) It is established that this interdict can be employed even after the year has elapsed.

(17) It will lie in favor of the heir and other successors.

4. Paulus, On the Edict, Book LXIX.

If the will is in the possession of a ward, and he has been deprived of it by the fraudulent act of his guardian, the interdict will lie against the guardian himself; for it is only just that he should be liable for his own crime and not his ward.

5. Javolenus, On Cassius, Book XIII.

The interdict, requiring a person to produce a will, will not lie where any controversy with reference to the estate is pending, or any public question is involved. Therefore the will should in the meantime be deposited either in a temple or in the hands of some responsible person.

TITLE VI.

CONCERNING THE INTERDICT FOR THE PURPOSE OF PREVENTING ANYTHING BEING DONE IN A SACRED PLACE.

1. Ulpianus, On the Edict, Book LXVIH.

The Praetor says: "I forbid any labor to be performed in a sacred place, or anything to be carried there."

(1) This interdict has reference to sacred places, and not to one where holy objects are kept.

(2) Where the Praetor says that no labor shall be performed in a sacred place, this does not refer to anything which is done to adorn it, but to acts committed for the purpose of defacing it, or rendering it inconvenient.

(3) The care of temples and of other sacred places is entrusted to those who have charge of them.

2. Hermogenianus, Epitomes of Law, Book HI.

It is not permitted to do anything to the walls or doors or any other parts of sacred edifices, from which injury or inconvenience may result.

3. Paulus, Decisions, Book V.

Neither the walls nor the doors can be utilized for habitation, without the permission of the Emperor, on account of the danger of fire.

TITLE VII.

CONCERNING THE INTERDICT RELATING TO PUBLIC PLACES AND HIGHWAYS.

1. Pomponius, On Sabinus, Book XXX.

Anyone shall be permitted to avail himself of the benefit of public property intended for the use of all, as, for instance, the public highways and roads; and therefore, on the demand of any person whomsoever, interference with them may be forbidden.

2. Ulpianus, Digest, Book XLVIII.

No one is allowed to erect a monument on a public highway.

3. Ulpianus, On Sabinus, Book XXXIII.

Roads existing in any particular neighborhood, which have been derived from the contribution of land owned by private individuals,

and date from time immemorial, are included in the number of public highways.

(1) A difference exists between roads of this kind and military highways, namely, military highways terminate at the seashore, or in cities, or at public streams, or at some other military highway, but this is not the case with roads through a neighborhood, for some of them terminate at military highways, and others end without any exit.

TITLE Vill.

CONCERNING THE INTERDICT FORBIDDING ANYTHING TO BE DONE IN A PUBLIC PLACE OR ON A HIGHWAY.

1. Paulus, On the Edict, Book LXIV.

The Praetor forbids any building to be erected in a public place, and issues an interdict to that effect.

2. Ulpianus, On the Edict, Book LXVIII.

The Praetor says: "Nothing shall be done in a public place, or brought there, which will cause any damage to it; except what is permitted by some law, decree of the Senate, Edict, or Rescript of the Emperors, and if anything of this kind is done, I will grant an interdict."

(1) This interdict is prohibitory.

(2) By means of it, the public as well as the private welfare is protected. For public places are intended for the use of private persons, that is to say, as the property of the State, and not as belonging to any individual; and we have only as much right to their enjoyment as anyone of the people has to prevent their being interfered with. For which reason, if any work is done in a public place which tends to the injury of a private individual, the person responsible for it can be proceeded against under the prohibitory interdict which has been introduced for this purpose.

(3) Labeo defines the term, "public place," as applying to such localities, houses, fields, highways, and roads as belong to the community at large.

(4) I do not think that this interdict has reference to places which belong to the Treasury, for no one can do anything in such places, nor can any private person prevent anything from being done there. Property of the Treasury, to a certain extent, belongs to the Emperor as his own. Therefore, if anyone builds anything on said property, there will be no ground for the application of this interdict. If any controversy arises on this point, the Imperial Prefects will be the judges.

(5) Hence, this interdict relates to places which are intended for the use of the public, and if anything is done there which may injure a private'individual, the Praetor can intervene by means of this interdict.

(6) If anyone has an awning suspended over his portico, which shuts off the light from his neighbor, the interdict will be issued in the following terms: "Do not place anything in the public street which may interfere with the light of Gaius Seius."

(7) If anyone wishes to repair anything in a public place, Aristo says that there will be ground for the application of this interdict, in order to prevent him from doing so.

(8) This interdict is available against anyone who builds a foundation in the sea, by a person who may be injured by it; but if no one sustains any damage, he who builds upon the shore, or constructs a foundation in the sea, should be protected.

(9) Where anyone is prevented from fishing in, or sailing upon the sea, he will not be entitled to this interdict, just as in the case of a person who is prevented from taking part in games in a public field, or bathing in a public bath, or being present in a theater; but in all these cases an action for reparation of injury must be employed.

(10) The Praetor very properly says, "where any injury is sustained by the party on this account." For where anything is allowed to be done in a public place permission should be granted, for it to be done without causing injury to anyone, and the Emperor is accustomed to grant permission when a request is made for the construction of any new work.

(11) Moreover, injury is considered to be sustained when any benefit of any description whatever, which is derived from a public place, is lost.

(12) Hence, if the view enjoyed by anyone, or his approach to a public place is interfered with, and diminished, or restricted, this interdict should be employed.

(13) Labeo thinks if I erect a building in a public place, so as to prevent the water from flowing from my premises upon yours, which they formerly did without any right enjoyed by me, that I will not be liable under the interdict.

(14) It is clear that if the building which I erected should intercept the light of your house, this interdict will lie.

(15) He also says that if I erect a building in a public place, and it interferes with one which you have already erected in the same place, this interdict will not apply, as you also have built contrary to law, unless you have done so by virtue of some special privilege which has been granted to you.

(16) If anyone obtains from the Emperor general permission to build in a public place, it must not be believed that he can erect the building in such a way as to cause inconvenience to anyone; for such a concession is not understood to be granted unless this was expressly stated.

(17) If anyone constructs a house in a public place without anyone preventing it, he cannot be compelled to remove it, for fear that the city may be marred by its demolition; and because the interdict is prohibitory and not restitutory. If, however, the said building interferes with public use, it should be demolished on the application

of the officer in charge of public works; but if it does not interfere with anything, a land tax can be imposed upon it, for the tax receives this name because it is paid on account of the ground.

(18) But if no work has yet been done, it is the duty of the judge having jurisdiction to require security that it will not be done, and the bond must be drawn up in such a way as to render the heir and other successors liable.

(19) The rule with reference to sacred places is different, for we not only forbid any work to be done in a sacred place, but where any has been done, we order everything to be restored to its former condition. This rule has been adopted for the sake of religion.

(20) The Praetor says: "I forbid anything to be built on a public highway or road, or to be placed there, by which the said highway or road is, or may be damaged."

(21) By a public highway we mean one whose soil belongs to the people, for we do not understand a private road to mean the same as a public one. In the case of a private road, the soil belongs to another, and we have only the right of walking and driving over it; but the soil of a public highway is owned by the community, and has been established with reference to direction, and within certain limits, by him who had the right to render it public, in order that everyone might travel upon it, and traverse it.

(22) Some roads are public, some are private, and others are local, belonging to the neighborhood. We call roads public which the Greeks designated as royal, and we name praetorian or consular roads. Private roads are such as some persons style agrarian. Local, or neighborhood roads are those which are situated in villages, or lead to towns; certain authorities also call these public roads. This, however, is only true where they have not been established by the contribution of land by private persons; but it is otherwise if they are repaired at the expense of individuals, for a road is not private on this account. The repairs of the same are common, because such a road is for the common use and benefit.

(23) Private roads are understood to be of two kinds, some of them are through land upon which a servitude to furnish a right of way to the land of another has been imposed, others give access to certain tracts of land, and anyone can make use of them, after leaving a consular road, when a lane; a path, or a road for driving is found leading to a farm. I think that roads which lead from a consular highway to farms or villages are also public.

(24) This interdict only applies to roads in the country and not to those in cities, for the magistrates are charged with the care of the latter.

(25) If traffic is intercepted on a public highway, or it is closed, the magistrates shall intervene.

(26) If anyone conducts a sewer across a public highway, and, for that reas