THE CIVIL LAW
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. X
THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
CONTENTS OF VOLUME X.
THE DIGEST OR PANDECTS.
TITLE XXI. CONCERNING THE INTERDICT HAVING REFERENCE TO CONDUITS .......... 3
TITLE XXII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SPRINGS ....... 5
TITLE XXIII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SEWERS ........ 7
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO WORKS UNDERTAKEN BY VIOLENCE OR CLANDESTINELY ........................ 8
TITLE XXV. CONCERNING THE WITHDRAWAL OF OPPOSITION ...................... 23
TITLE XXVI. CONCERNING PRECARIOUS TENURES ................................. 24
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE CUTTING OF TREES ...................................................... 31
CONCERNING THE INTERDICT HAVING REFERENCE TO THE GATHERING OF FRUIT WHICH HAS FALLEN FROM THE PREMISES OF ONE PERSON UPON THOSE OF ANOTHER .................................... 32
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF A PERSON WHO Is FREE .............................. 32
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF CHILDREN AND THEIR RECOVERY ............................. 35
TITLE XXXI. CONCERNING THE INTERDICT UTRUBI ............................... 37
CONCERNING THE INTERDICT HAVING REFERENCE TO THE REMOVAL OF TENANTS ................................................... 37
TITLE XXXIII. CONCERNING THE SALVIAN INTERDICT .............................. 3g
TITLE I. CONCERNING EXCEPTIONS, PRESCRIPTIONS, AND PRELIMINARY INQUIRIES .. 39
TITLE II. CONCERNING THE EXCEPTION BASED ON RES JUDICATA ................ 44
CONCERNING DIFFERENT TEMPORARY EXCEPTIONS AND THE UNION OF SEVERAL POSSESSIONS ......................................... 54
TITLE IV. CONCERNING THE EXCEPTION FOUNDED ON FRAUD AND FEAR ........... 59
TITLE V. UNDER WHAT CIRCUMSTANCES AN ACTION SHALL NOT BE GRANTED .... 72
TITLE VI. CONCERNING PROPERTY IN LITIGATION .............................. 74
TITLE VII. CONCERNING OBLIGATIONS AND ACTIONS ............................. 75
SEVENTH PART. BOOK XLV.
TITLE I. CONCERNING VERBAL OBLIGATIONS ................................. 91
PART II. CONCERNING VERBAL OBLIGATIONS ................................. 105
PART III. CONCERNING VERBAL OBLIGATIONS ................................. 131
TITLE II. CONCERNING THE LIABILITY OF Two OR MORE PROMISORS .............. 141
TITLE III. CONCERNING THE STIPULATIONS OF SLAVES .......................... 145
TITLE I. CONCERNING SURETIES AND MANDATORS ............................. 155
TITLE II. CONCERNING NOVATIONS AND DELEGATIONS ......................... 175
TITLE III. CONCERNING PAYMENTS AND RELEASES ............................. 182
TITLE IV. CONCERNING RELEASE ............................................ 217
TITLE V. CONCERNING PRAETORIAN STIPULATIONS ............................ 223
TITLE VI. CONCERNING SECURITY FOR THE PROPERTY OF A WARD OR MINOR ....... 225
TITLE VII. CONCERNING SECURITY FOR THE PAYMENT OF A JUDGMENT ............ 228
TITLE Vill. CONCERNING SECURITY FOR RATIFICATION ........................... 235
TITLE I. CONCERNING PRIVATE OFFENCES ................................... 242
TITLE II. CONCERNING THEFTS ............................................... 245
TITLE III. CONCERNING THE THEFT OF TIMBERS JOINED TO A BUILDING ........... 282
TITLE IV. PAGE
WHERE ANYONE WHO is ORDERED TO BE FREE BY THE TERMS OF A WILL, AFTER THE DEATH OF His MASTER AND BEFORE THE ESTATE is ENTERED UPON, is SAID TO HAVE STOLEN OR SPOILED SOMETHING ...... 283
CONCERNING THEFT COMMITTED AGAINST CAPTAINS OF VESSELS, INNKEEPERS, AND LANDLORDS ..................................... 286
CONCERNING THEFTS ALLEGED TO HAVE BEEN MADE BY AN ENTIRE BODY OF SLAVES ................................................... 287
TITLE VII. CONCERNING TREES CUT DOWN BY STEALTH ......................... 289
CONCERNING THE ROBBERY OF PROPERTY BY VIOLENCE, AND DISORDERLY ASSEMBLAGES ................................................ 292
CONCERNING FIRE, DESTRUCTION, AND SHIPWRECK, WHERE A BOAT OR A SHIP is TAKEN BY FORCE ..................................... 300
TITLE X. CONCERNING INJURIES AND INFAMOUS LIBELS ....................... 305
TITLE XL CONCERNING THE ARBITRARY PUNISHMENT OF CRIME ................. 327
TITLE XII. CONCERNING THE VIOLATION OF SEPULCHERS ........................ 332
TITLE XIII. CONCERNING EXTORTION .......................................... 335
THE DIGEST OR PANDECTS.
THE DIGEST OR PANDECTS.
CONCERNING THE INTERDICT HAVING REFERENCE TO CONDUITS.
1. Ulpianus, On the Edict, Book LXX.
The Praetor says: "I forbid force to be employed against anyone to prevent him from repairing or cleaning any aqueduct, canal, or reservoir, which he has a right to use for the purpose of conducting water, provided he does not conduct it otherwise than he has done during the preceding summer, without the employment of violence, or clandestinely or under a precarious title."
(1) This interdict is extremely useful, for unless anyone is permitted to repair a conduit, he will be inconvenienced in his use of the same.
(2) Therefore, the Prsetor says, "An aqueduct and a canal." A canal is a place excavated throughout its length, and derives its name from a Greek word meaning to flow.
(3) A reservoir is a place from which one looks down, and from it public exhibitions are named.
(4) Conduits are opposed to ditches, and are for the purpose of conducting and forcing water from a stream, whether they are of wood, stone, or any other material whatsoever. They were invented for the purpose of containing and conveying water.
(5) A ditch is a place excavated at the side of a stream, and is derived from the word incision, because it is made by cutting; for the stone or the earth is first cut, in order to permit the water to be brought from the river. Pits and wells are also included in this interdict.
(6) The Praetor next says, "to repair and clean." To repair is to restore anything which is injured to its former condition. In the term "repair" are included to cover, or support from below, to strengthen, to build, and also to haul and transport everything necessary for that purpose.
.(7) Several authorities hold that the term "clean" only has reference to a canal which is in good condition, but it is evident that it also applies to one which needs repair, for frequently a canal needs both repairing and cleaning.
(8) The Praetor says, "for the purpose of conducting the water." This is added for a good reason, as he only is permitted to repair and' clean a water-course who made it in order to conduct water.
(9) This interdict will also lie in favor of one who has not the right to conduct water, provided he did conduct it either during the previous summer, or during that year; as it is sufficient that he did not do so by the employment of violence, or clandestinely, or under a precarious title.
(10) If anyone desires to make a conduit of stone, which was previously merely dug through the earth, it is held that he cannot legally avail himself of this interdict, for he who does this does not merely repair the water-course.
This opinion was adopted by Ofilius.
(11) Hence, even if a person wishes to dig a canal through a different place, he can be prevented from doing so with impunity. This rule also applies whether he lowers, raises, widens, extends, covers, or uncovers the conduit. I, however, think that he can be prevented from changing it in other respects, but so far as covering and uncovering it is concerned, I do not believe that he can be interfered with, unless his adversary proves that it is for his advantage that this should not be done.
2. Paulus, On the Edict, Book LXVL
Labeo asserts that a conduit which has been open cannot be changed to a subterranean one, because, by doing so, the owner of the land will be deprived of the privilege of watering his cattle, or of drawing water from the said conduit.
Pomponius says that he does not concur in this opinion, because the owner enjoys this privilege rather from accident than from any right which he possesses, unless this was the intention in the beginning when the servitude was imposed.
3. Ulpianus, On the Edict, Book LXX.
Servius, however, holds that water which formerly flowed through an open channel is conducted in a different way, if it is subsequently conveyed through one that is covered; for if anyone constructs a work by means of which the water is better preserved or contained, he cannot be prevented from doing so with impunity.
I think the contrary applies with reference to a pipe, unless greater benefit is derived by the adversary.
(1) Servius and Labeo say that if a person wishes to make the conduit of stone which, in the first place, was dug through the earth, and therefore did not retain the water, he should be heard. If, on the other hand, he should change the conduit which was formerly built of stone into merely a ditch through the earth, either wholly or in part, he cannot be prevented from doing so. It seems to me that any urgent and necessary repairs should be permitted.
(2) If anyone desires to connect a new channel or new pipes with the water-course, which were never there before, Labeo says that this interdict will be applicable. We, however, are of the opinion that, in a case of this kind, the benefit of him who conducts the water without causing any inconvenience to the owner of the land should be considered.
(3) If water is conducted into a lake, and from the latter by means of several aqueducts, this interdict will lie for the benefit of anyone desiring to repair the lake itself.
(4) This interdict has reference to all conduits, whether they are situated in public or in private places.
(5) Even if the pipe is for the purpose of conducting warm water, this interdict will also be available, where any repairs of the same should be made.
(6) Aristo thinks that a praetorian action will lie where a subterranean pipe through which vapor is conveyed into hot baths requires repairs; and it must be said that an interdict can also be employed in a case of this kind.
(7) This interdict is also granted to the same persons, in the cases above enumerated, in which interdicts with reference to water are granted.
' (8) Where notice to desist from the construction of a new work is served upon anyone who is repairing a conduit, it has been very properly held that he need not pay any attention to it, for as the Prator forbids violence to be employed against him under such circumstances, it is absurd that he should be interfered with by the service of notice to stop the construction of a new work.
It must be said that an action in rem can undoubtedly be brought against the party in question, on the ground that he had no right to make the repairs.
(9) There is no question whatever, that he who makes the repairs should give security against threatened injury.
(10) Ofilius thinks that this interdict will lie in favor of anyone who is prevented from bringing or transporting any materials required for repairs. This is true.
4. Venuleius, Interdicts, Book I.
The interdict is also granted where aqueducts ought to be repaired, and no inquiry is made whether a right to conduct the water exists or not. For the repair of roads is not as necessary as that of aqueducts, for if the latter are not repaired, the entire use of the water will be stopped, and persons will be exposed to death by thirst. It is evident that water cannot be obtained without repairing aqueducts; but if a road is not repaired, passage to and fro will only be rendered difficult, and this is less during the summer time.
' CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
1. Ulpianus, On the Edict, Book LXX.
The Prater says: "I forbid force to be employed to prevent you from making use of the spring in question, the water of which you
have used during the past year, without employing force, or clandestinely, or under a precarious title. I will also grant an interdict of the same kind with reference to lakes, wells, and fish-ponds."
(1) This interdict was introduced for the benefit of him who is prevented from using the water of a spring. For servitudes are usually granted not only for the purpose of conducting water, but also for drawing it; and as those relating to the conducting of water and the drawing of the same are distinct, so, also, the interdicts relating to them are separately granted.
(2) Moreover, this interdict will apply if anyone is prevented from using water; that is to say, if he is either hindered from drawing it, or driving his cattle to it.
(3) The same rule which we have mentioned as governing previous interdicts must also be said to apply to those which have reference to persons.
(4) This interdict will not lie in the case of cisterns, for a cistern has not perpetual, or running water. From this it is evident that, in all these instances, it is required that the water be running. Cisterns, however, are filled by rains. In conclusion, it is established that the interdict will not apply if the lake, fish-pond, or well, does not contain running water.
(5) It is clear that the interdict will also be sufficient, where anyone is prevented from using a road giving access to the water to be drawn.
(6) The Praetor next says: "I forbid force to be employed to prevent you from repairing and cleaning the spring in question, in order that you may retain the water; provided you do not make use of it in a different way than you have done during the past year, without the employment of force, or clandestinely, or under a precarious title."
(7) This interdict is as advantageous as the one which has reference to the repair of conduits; for if it is not permitted to clean and repair a spring, it will be of no use.
(8) A spring should be cleaned and repaired for the purpose of retaining the water, so that anyone may use it in the same way in which this was done during the past year.
(9) To retain water is to confine it in such a way that it will not overflow, or be lost; provided anyone is not permitted to seek for and open new springs, for this is an innovation upon what has been done during the preceding year.
(10) An interdict can also be employed where a lake, a well, or a fish-pond is to be repaired or cleaned.
(11) This interdict is granted to all persons who are allowed to make use of the one having reference to summer water.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
1. Ulpianus, On the Edict, Book LXXI.
The Prsetor says: "I forbid force to be employed by you against anyone who has the right to repair and clean the sewer in question, which is common to his house and yours. I will order security to be furnished for the reparation of any damage which may result from the work."
(1) The Praetor placed two interdicts under this title, one of which is prohibitory, and the other restitutory, and he first discusses the one which is prohibitory.
(2) By means of these interdicts, the Prater provides that sewers shall be cleaned and repaired, and both of them have reference to the health and protection of cities; for the filth of the sewers threatens to render the atmosphere pestilential and ruin buildings.
The same rule applies even when the sewers are not repaired.
(3) This interdict applies to private sewers, for those which are public demand the care of officials.
(4) A sewer is an excavation by means of which filth is carried away.
(5) The interdict first mentioned is prohibitory, and by it a neighbor is prevented from using violence to prevent a sewer from being cleaned and repaired.
(6) In the term "sewer" are included both the ditch and the pipe.
(7) For the reason that the repairing and cleaning of sewers is considered to have reference to the public welfare, it was decided that the clause, "if you have not made use of it by violence, or clandestinely, or under a precarious title," should not be added; so that, even if anyone had used it under such circumstances, he still would not be prevented from repairing or cleaning the sewer, if he desired to do so.
(8) The Prsetor next says, "which is common to his house and yours." In this instance, the term "house" must be understood to signify every kind of building, just as if it had been said "to his building and yours."
Labeo goes even farther, for he thinks that there will be ground for this interdict, if there is a vacant space between the two edifices, and if, as he suggests, the sewer leads from a house in the city to adjoining land.
(9) Labeo also holds that anyone who desires to connect his private sewer with a public one ought to be protected against being prevented by violence. Pomponius says that if anyone desires to construct a drain which will flow into a public sewer, he should not be hindered from doing so.
(10) Where the Praetor says, "is common to his house and yours," he means is directed towards, extends to, or comes as far as your house.
(11) This interdict also has reference to a next neighbor, as well as against others farther away, through whose houses the sewer in question runs.
(12) For which reason Favius Mela says that this interdict will lie to authorize anyone to enter the house of a neighbor, and take up his pavement for the purpose of cleaning the sewer.
Pomponius, however, says that, in this instance, the penalty of a stipulation for the reparation of damage may be incurred; but this will not be the case if the person above mentioned is ready to replace what he was obliged to take up for the purpose of repairing the sewer.
(13) If anyone serves notice of a new work upon me when I am cleaning or repairing my sewer, it is very properly held that I may pay no attention to the notice, and can continue to repair what I have begun.
(14) The Praetor, however, promises that security shall be given against any injury which may result from defective work; for, just as permission is given to repair and clean sewers, so it must be said that no damage should be caused to the houses of others.
(15) The Praetor next says: "You shall restore all to its former condition, where anything has been done to a public sewer or placed in it by which its use may be interfered with. Likewise, I forbid anything to be done to the sewer, or to be thrown into it."
(16) This interdict has reference to public sewers, and prohibits anything being thrown into them, or deposited in them by which their use may be injuriously affected.
2. Venuleius, Interdicts, Book I.
Although the repair of existing sewers, and not the construction of new ones, is included in this interdict, Labeo says that an interdict should, nevertheless, be granted to prevent anyone from employing violence against another who builds a sewer, because the same question of public welfare is involved; as the Praetor has, by an interdict, forbidden force to be used to hinder anyone from constructing a sewer in a public place. This opinion is also adopted by Ofilius and Trebatius. Labeo also says that anyone ought, without interference, to be permitted by the interdict to clean and repair a sewer already constructed; but that the officer in charge of the public highways should grant permission to build a new one.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO
WORKS UNDERTAKEN BY VIOLENCE OR
1. Vivianus, On the Edict, Book LXXI.
The Praetor says: "I order you to restore to its former condition everything which you have done to the property in question by the employment of violence or clandestinely, as soon as proceedings are instituted against you for that purpose."
(1) This interdict is restitutory, and, by means of it, the deceit of those who have undertaken to do anything' with violence, or clandestinely, is obviated; and they are ordered to restore fhe property to its former condition.
(2) It makes very little difference whether the party in question has the right to do the work or not; for, even if Be has, he will, nevertheless, be liable under the interdict, because he employed violence or acted clandestinely; since he should protect his rights, and not contrive to injure hers.
(3) Then the question is asked whether anyone can oppose to this interdict the exception that the defendant did not do anything which he had not acquired a right to do. The better opinion is that he will not be allowed to avail himself of such an exception, for he cannot protect himself legally by an exception, where he has employed violence or acted clandestinely.
(4) This interdict only has reference to work which is done upon land, with the employment of violence or in a clandestine manner.
(5) Let us see what is meant by the employment of violence, or a clandestine act. Quintus Mucius says that anything is considered to have been done with the employment of violence where a person does it after he has been forbidden. The definition of Quintus Mucius appears to me to be complete.
(6) Pedius and Pomponius assert that if anyone is forbidden to proceed with a work by the casting of even a small stone upon it, he will be held to have used violence; and this is our practice.
(7) Cascellius and Trebatius think that the same rule will apply, if he proceeds with the work after notice has been served upon him in the presence of witnesses, which is true.
(8) Moreover, Aristo says that he also employs violence who, knowing that he will be opposed, uses force to avoid being prohibited.
(9) Likewise, Labeo says that if I forbid anyone to proceed, and he desists while in my presence, but afterwards resumes the work, he will be considered to have employed violence, unless he has obtained my consent, or has some other good reason for doing so.
(10) If anyone is prevented by weakness, or is restrained by the fear of offending you, or someone whose power is exerted in your favor, and, for either of these reasons, does not forbid you to proceed, you will not be considered to have employed violence. This was also stated by Labeo.
(11) He also says that if anyone should deter you when you desire to prevent me from doing the work, for instance, by arms, without any fraudulent act on my part, and, on this account, you do not come to prevent me, I will not be considered to have employed violence.
2. Venuleius, Interdicts, Book II.
So that it may not be within the power of another to render my condition worse, without my being guilty of any offence.
3. Ulpianus, On the Edict, Book LXXI.
In order to prevent anyone from proceeding, it is not necessary that the person himself should act, for anyone is legally considered to have hindered another, either by his slave or by his agent. The same rule will apply if a day laborer employed by me should attempt to prevent him. Nor can the objection be urged that action is not ordinarily acquired through the agency of one who is free; for the hindrance proves that you effected this by the employment of violence. And why should this be remarkable, when I will be entitled to bring suit, even if you have done the work clandestinely, and therefore, the right of action will be acquired by me, rather through the illegal act which you have committed, than through that of another?
(1) It should be noted that it is not necessary for the violence to be exerted continuously; for after it has once been committed in the beginning, it is considered to endure.
(2) If permission has been granted, an exception will be necessary to oppose him who makes use of the interdict.
(3) Moreover, if not only I should grant permission, but if my agent, or a guardian who is administering a guardianship, or the curator of a ward, an insane person, or a minor, should also grant it, it must be said that there will be ground for an exception.
(4) Nerva asserts that it is clear there will be no ground for an exception if the Governor, or some official having charge of the business of a city, permits work to be done in a public place; for he says that although the care of public places may have been entrusted to him, still the right to transfer them was not granted. This is only true where municipal law does not confer greater authority upon the public official having charge of the affairs of a city.
The same rule should be adopted if the right was granted by the Emperor himself, or by someone upon whom he has bestowed the power to do so.
(5) If anyone is ready to defend himself in court against certain persons who think that he should be forbidden to construct a work, let us see whether he will be held to have desisted through the employment of violence. The better opinion is that he should be considered to have done so, if he offers to give security, and is ready to defend his right. This was also stated by Sabinus.
(6) Again, if anyone is prepared to furnish security against any damage which may result, when he has only been forbidden to proceed on this account, or because he did not defend himself, or for the reason that he did not furnish security against threatened injury, it must be said, in consequence, that he has ceased to proceed with the work through the employment of violence.
(7) Cassius says that he is held to have acted clandestinely who conceals what he is doing from his adversary, and fails to notify him, provided he feared, or thought that he had good reason to fear, opposition.
(8) Aristo also thinks that he acts clandestinely when, with the intention of concealing what he is doing, he keeps with him the person
whom he thinks will oppose him, and believes, or has reason to believe, that he will oppose what he expects to d.o.
4. Venuleius, Interdicts, Book II.
Servius says that he is held to have acted clandestinely, even if he thinks that no controversy will arise with reference to what he does; for it is not necessary to pay attention to every one's inconsiderate opinion and judgment, otherwise, fools would be in a better condition than wise men.
5. Ulpianus, On the Edict, Book LXX.
He who does work in a different way than that in which he gave notice that it would be done, or deceives the person who had an interest in not having it performed, or intentionally serves notice upon his adversary, when he knows that he cannot hinder him, or notifies him so late that he cannot leave his house in order to interfere with the work, is held to have acted clandestinely. Aristo says that Labeo adopted this opinion.
(1) When anyone gives notice that a new structure is about to be erected, he is not always considered to have acted clandestinely, if he does the work after the notice has been given; for (according to Labeo), both the day and the hour should be included in the notice, as well as the place where the work is to be done, and the nature of it. A notice should not be either vague nor obscure, nor should it so restrict the adversary that he cannot appear within the time designated, in order to prevent the work from being performed.
(2) If there is no one upon whom the notice can be served, and no fraud has been committed by the person intending to do the work, notice should be served upon the friends or agent of the party interested, or at his house.
(3) Servius, however, very properly states that it will be sufficient to notify the husband of a woman, who is interested, that the work is about to be done, or to do it with his knowledge; although it will also be sufficient not to have the intention of concealing it from him.
(4) He also says, that if anyone desires to construct a new work in a public place belonging to a municipality, it will be sufficient if notice is served upon the official having charge of the affairs of the city.
(5) If anyone, thinking that certain land belongs to you, while in fact it is mine, undertakes a new work with the intention of concealing it from you, but not from me, the interdict will lie in my favor.
(6) He also says that, if someone undertakes a new work with the -intention of concealing it from my servant, or my agent, I will be entitled to an interdict.
(7) If anyone who did not serve notice that he was about to begin a new work, but was himself notified not to undertake it, and, nevertheless, does so, I think that the better opinion will be that he em-, ployed violence.
(8) These words, "what has been done by violence or clandestinely," Mucius says should be understood to mean what you yourself, or anyone of your people, have done, or what has been done by your command.
(9) Labeo, however, thinks that a larger number of persons are included in these words; for, in the first place, it includes the heirs of the persons enumerated by Mucius.
(10) He also says that this interdict is available against an agent, a guardian, a curator, and a municipality or syndic, as representing other parties.
(11) If my slave undertakes a new work, an action cannot be brought against me on this account, but it will be necessary for him to do it either in my name, or in his own; for if I have your slave employed by the day, and he begins any work in my name, proceedings can be instituted under this interdict on this ground, not against you, but against me, by whose order, or in whose name the work was performed by your slave.
(12) In like manner, where such work is performed by the order of anyone, this action will lie not against him, but against the person in whose name the order was given. For if an agent, a guardian, a curator, or the duumvir of a municipality, acting in the name of him or those whose business he transacts, should order the work to be performed, proceedings must be instituted against him in whose name this was done, and not against him who ordered it to be done. If I direct you to order work to be performed, and you obey me, the action should be brought against you, and not against me.
(13) As the interdict is expressed in the following terms, "what has been done by violence, or clandestinely," and not "what you have done by violence, or clandestinely," Labeo thinks that it extends to other persons than to those whom we have mentioned above.
(14) Our practice renders me liable under the interdict Quod m aut clam, whether I have done any new work or ordered it to be done.
6. Paulus, On the Edict, Book LXXVH.
If I direct you to construct a new work, and you order another to do it, it cannot be considered that it has been done by my command; therefore, you as well as the other party, will be liable. Let us see whether I, also, will be liable. The better opinion is that I will be, as I directed another to begin it. But if any one of these three should make reparation, the other two will be released.
7. Ulpianus, On the Edict, Book LXXI.
If another person should construct the new work without my permission, I will only be liable to the extent of allowing it to be demolished.
(1) Neratius also says that where the slave of any person constructs a new work, by the employment of violence, or clandestinely, he will be required, under the interdict to restore everything to its former condition, at his own expense, or permit this to be done, and
surrender the slave by way of reparation. He asserts that it is evident that if the interdict is employed after the slave has died, or been alienated, his master will only be compelled to permit the work to be demolished, so that the purchaser can be sued under the interdict for payment of the expenses, or the surrender of the slave by way of reparation; but he will be released from liability, if the owner of the new work restores everything at his own expense, or has judgment rendered against him because he did not do so.
If, on the other hand, the master of the slave either restores everything to its former condition, or has judgment rendered against him for the amount of damage sustained, the same rule will apply. But if he has only abandoned the slave by way of reparation, the interdict can be properly employed against the owner of the new work.
(2) Julianus says that anyone who constructs a new work before the withdrawal of the notice, and in violation of what he was forbidden to do, will be liable under two interdicts, one of them being based upon the notice which has been served with reference to a new work, and the other upon the employment of violence, or clandestine action. Where the withdrawal of the notice has been made, the defendant is not considered to have acted with violence or clandestinely, even though the prohibition remains; for a person who has given security ought to be permitted to build, because, by doing so, he becomes the possessor, and he should not be held to have acted clandestinely either before or after the withdrawal of the notice, since he who serves notice of a new work cannot be considered to have concealed himself, or to have been warned before he caused any controversy.
(3) It is very properly asked by Julianus whether this interdict may not be opposed by the exception: "Have you not done this work by the employment of violence, or clandestinely?" For instance, I use the interdict Quod vi aut clam against you; can you oppose me with the exception, "Have you not done the work by violence, or clandestinely?"
Julianus says that it is perfectly just for this exception to be granted; for he states that if you build anything by violence or clandestinely, and I demolish it by violence, or clandestinely, and you employ this interdict against me, I will be entitled to the benefit of this exception. This procedure, however, should not be resorted to unless good and sufficient cause exists; otherwise, everything ought to be referred to the wisdom of the judge.
(4) Gallus doubts whether still another exception may not be interposed; for example, where for the purpose of preventing a fire from spreading I demolish the house of my neighbor, and proceedings are instituted against me either under the interdict Quod vi aut clam, or for the reparation of wrongful damage. Gallus is uncertain whether the exception, "if you have not done this to prevent the spread of the fire," ought to be employed.
Servius says that if a magistrate directed this to be done, the exception ought to be granted, but a private individual should not be permitted to demolish the house. If, however, any act was committed
by violence, or clandestinely, and the fire did not extend to that point, the amount of simple damages should be estimated, but if it did reach that point, the party in question should be released from liability.
He states that the conclusion would be the same if the act had been committed for the prevention of future injury, as, both houses having been destroyed, it would appear that no injury or damage had been caused. But if you should do this when there was no fire, and fire should afterwards break out, the same rule will not apply; because, as Labeo says, the appraisement of damages should be made, not with reference to the former event, but according to the present condition of the property.
(5) We have noted above that, although the terms of the interdict have a broad application, still, the proceeding is held to apply only to work which is performed upon land. Hence, he who takes the crops is not liable under the interdict Quod vi aut clam, for he does not perform any new work upon the land. He, however, who fells trees, or cuts reeds or willows, will be liable; for, to a certain extent, he lays hands upon the earth, and injures the soil. The same rule applies to the cutting of vines. He, however, who removes the crops, should be sued by an action on theft. Therefore, where anyone constructs a new work upon the soil, there will be ground for the interdict. Anything which is done to trees we understand to apply to the soil, but not anything which is done with reference to the fruits of trees.
(6) If anyone spreads a heap of manure over a field whose soil is already rich, proceedings can be instituted against him under the interdict Quod vi aut clam. This is proper, because the soil is deteriorated.
(7) It is clear that if anything new is built for the purpose of cultivating land, the interdict Quod vi aut clam will not apply, if the condition of the land is improved, even though it may have been constructed by violence or clandestinely, after notice has been served prohibiting it.
(8) Again, if you dig a ditch in a public wood, and my ox falls into it, I can proceed against you under this interdict, because this has been done in a public place.
(9) If anyone should demolish a house, there is no doubt that he will be liable under the interdict, even though he did not level it with the ground.
(10) Hence., if he removes the tiles from a building, the better opinion is that he will be liable to the interdict.
8. Venuleius, Interdicts, Book II.
For the origin of things of this kind is derived from the soil. Moreover, tiles are not of themselves possessed, but only with the entire edifice, nor does it make any difference whether they are attached to it, or only placed upon it.
9. Ulpianus, On the Edict, Book LXXI.
If anyone removes branches from trees, we still allow this interdict to be employed. With reference to what we have stated as to the re-
moval of tiles from a building, if they are not placed upon the building, but are separate from it, this interdict will not apply.
(1) If, however, a lock, a key, a bench, or a wardrobe is carried away, proceedings cannot be instituted under the interdict Quod vi aut clam.
(2) But if anyone tears away something which is attached to a house, for instance, a statue, or anything else, he will be liable under the interdict Quod vi aut clam.
(3) If anyone cultivates land with violence, or clandestinely, or excavates a ditch therein, he will be liable under this interdict. If he burns a heap of straw, or scatters it in such a way that it cannot be used for the benefit of the land, there will not be ground for the interdict.
10. Venuleius, Interdicts, Book II.
. This is because the pile of straw is not attached to the soil, but is supported by it, but buildings are attached to the soil.
11. Ulpianus, On the Edict, Book LXXI.
Labeo says that anyone who pours something into the well of his neighbor, in order to spoil the water by doing so, will be liable under the interdict Quod vi aut clam, because living water is considered to constitute part of the land, and this is just as if he had constructed a new work in the water.
(1) If anyone should remove, either by violence or clandestinely, a statue erected in a city in a public place, the question arose whether he would be liable under this interdict. An opinion of Cassius is extant to the effect that he whose statue has been erected in a public place in a city can avail himself of this interdict, because it is to his interest that the statue should not be removed. Moreover, the municipal authorities can also bring an action of theft, on the ground that the property, having become public, is theirs. If, however, the statue should fall, they themselves can remove it. This opinion is correct.
(2) If anyone removes a statue from a monument, will the person to whom the right of sepulture therein belongs be permitted to institute proceedings under the interdict? It is established that, in cases of this kind, there will be ground for the interdict, and, indeed, it must be said that where anything has been placed on a tomb for the purpose of ornamenting it, it is considered to form part of the same.
This rule is also applicable if the party tears away or breaks down a door.
(3) If anyone should come into my vineyard, and remove the supports of my vines, he will be liable under this interdict.
(4) Where the Prsetor says, "what is done by violence, or clandestinely," let us see what time should be considered, and whether the past or the present is referred to. This point is explained by Julianus, for he says that, in this interdict, we must understand the present time to be meant. If, however, any damage has resulted, and the master, or he whose land was injured, removes the cause of the damage
at his own expense, it is better to adopt the opinion which Julianus holds, namely, that the damage should be repaired, and the expenses be reimbursed.
(5) This interdict includes everything whatsoever which has been done with violence or clandestinely. But it sometimes happens that the same work has been partly accomplished by violence, and partly clandestinely; as, for instance, although I forbade you to proceed, you laid the foundation of a building, and afterwards, we having agreed that you should not finish it, you, nevertheless, did so, during my absence and without my knowledge; or, on the other hand, you, having laid the foundation clandestinely, completed the building in spite of my opposition.
This is our practice; for the interdict is sufficient when the work has been done with violence and clandestinely.
(6) If the new work was constructed by the order of a guardian or a curator, as it is established (and as Cassius holds), that a ward or an insane person is not liable on account of the fraud of his guardian or curator, the result will be that an equitable action or an available interdict will lie against the guardian or curator himself. It is clear, however, that the ward and the insane person will be liable to the extent of permitting the demolition of the work, as well as to a noxal action.
(7) Should a slave be excused who has constructed a new work in obedience to the orders of a guardian or a curator? For slaves are usually pardoned when they obey their masters or those who occupy their places, in the performance of acts which have not the atrocious character of crimes, or serious offences. In this case this should be admitted.
(8) If the land should be sold after a new work has been constructed with violence or clandestinely, let us see whether the vendor can, nevertheless, avail himself of this interdict. The opinion of certain authorities is extant to the effect that the interdict will lie in favor of the vendor, even if the sale has not been concluded, and nothing had been paid to the purchaser in an action on sale for the work which was constructed before the transaction took place; for it is sufficient if, on this account, the vendor sold the land at a lower price. The same rule should be adopted where he did not sell it at a lower price.
(9) It is, however, clear that if the new work was constructed after the sale of the land, even if the vendor himself has proceedings under the interdict instituted against him, for the reason that delivery has not yet been made, he will still be liable to the purchaser in an action on purchase; for all benefits and inconveniences should be for the advantage or disadvantage of the latter.
(10) If land has been sold under the condition of being returned if a higher price can be obtained, who will be entitled to the interdict? Julianus says that the interdict Quod vi aut clam will lie in favor of the person to whose interest it was that the work should not be constructed. For when land is sold under this condition, all the advan-
tage and disadvantage will be enjoyed or endured by the purchaser; and this applies to whatever was done before the property was transferred under the terms of the sale. Therefore, if any new work has been constructed with violence, or clandestinely, although the condition of the vendor may be improved, the purchaser will be entitled to an available interdict, but he will be compelled to assign the right of action acquired under the action of sale, as well as any other profits which may have been obtained in the meantime.
(11) Aristo, however, says that notice must even be served upon him who is not in possession, for he states that if anyone should sell me a tract of land which he has not yet delivered, and a neighbor, desiring to construct a new work, knowing that I have bought the land, and am living upon it, should notify me, he will hereafter be secure so far as any suspicion relating to the clandestine construction of a new work is concerned; which in fact is true.
• (12) In case a sale is made of land under the condition that it will be of no effect, if a better price can be obtained within a certain time, and the land is delivered to the purchaser under a precarious title, I think that he can make use of the interdict Quod vi aut clam. If, however, delivery has not yet been made, or if it has been made under a precarious title, I do not believe there can be any doubt that the vendor will have a right to the interdict, for it will lie in his favor even though the property may not be at his risk.
Nor does it make much difference if it is at the risk of the purchaser, for immediately after the sale has been contracted, the property is at the risk of the purchaser an'd, nevertheless, before delivery has been made, no one will maintain that he is entitled to the interdict. Still, if he is in possession precariously, let us see whether he can avail himself of the interdict, because he has the interest, no matter by what title he holds possession. Therefore, even if he has leased the property, there is much more reason that he should be entitled to it; for, beyond all doubt, a tenant can institute proceedings by means of the interdict.
If the condition of the vendor should become better before the work has been constructed with violence, or clandestinely, Julianus entertains no doubt that the interdict will lie in favor of the vendor, for the disagreement between Cassius and Julianus relates to a new work which has been begun in the meantime, and has no reference to one which has subsequently been undertaken.
(13) If a tract of land has been sold under the condition that if the purchaser is not pleased with it, the sale will be void, it is more easy for us to determine that the purchaser will be entitled to the interdict, provided he is in possession. If the question of the annulment of the sale is referred to a third party for arbitration, the same rule should be adopted. This is also the case if it is sold under the condition that if some event transpires, the land shall be considered as not sold.
The same rule must be said to apply, if the sale was contracted with the understanding that it would be void if the terms were not complied with within a specified time.
(14) Julianus also says that this interdict not only lies in favor of the owner of the land, but also in favor of those whose interest it is not to have the new work constructed.
12. Venuleius, Interdicts, Book II.
Although a tenant and an usufructuary are entitled to the benefit of this interdict with reference to the crops, still, the owner will also be entitled to it if he has any additional interest.
13. Ulpianus, On the Edict, Book LXXI.
Finally, if there are trees on the land, the usufruct of which belongs to Titius, and they are cut down by a stranger, or by the owner, Titius can institute proceedings against both of them, under the Aquilian Law, and the interdict Quod vi aut clam.
(1) Labeo says that if the new work is constructed against the opposition of your son, you will be entitled to the interdict, just as if the opposition had been made by yourself; and your son will also be entitled to it, nevertheless.
(2) He also says that no one is considered to have constructed a work clandestinely against a son under paternal control, where the land forms a part of his peculium; for if he was aware that he was under paternal control, he will not be considered to have done the work with the intention of concealing it from him, as he knows that he cannot bring suit against him.
(3) If one of two joint-owners of a tract of land cuts down any trees, the other can institute proceedings against him under this interdict, as it lies in favor of any person having an interest in the property.
(4) It is stated still more broadly by Servius, that if you grant me permission to cut down trees on your land, and then someone else cuts them down with violence, or clandestinely, I will be entitled to this interdict, because I am the party interested. It is still more easy to admit this, if I have purchased from you, or have obtained from you by some other contract, permission to cut the trees.
(5) If a new work was constructed with violence, or clandestinely, upon land which at the time did not belong to anyone, and the ownership of it afterwards vested in some person, the question arises whether there would be ground for the interdict; as, for instance, where a succession was vacant, and Titius afterwards entered upon the estate, would he be entitled to the interdict? It was frequently stated by Vivianus that this interdict will lie in favor of the heir, because the work had been performed before his acceptance of the estate.
Labeo says that it makes no difference if the party in question did not know who would be the heir, for he can readily make use of this pretext, even after the estate has been accepted. He also says that no objection can be raised because, at that time, there was no owner of the land, for a burial-place has no owner, and if any new work is" constructed upon it, I can institute proceedings by means of the interdict Quod m aut clam.
It should also be added to what has previously been stated that inheritance takes the place of ownership. It can very properly be held that the interdict will lie in favor of the heir and other successors, if the work was constructed with violence, or clandestinely, before or after they succeeded to the estate.
(6) If my tenant constructs a new work with my consent, or I afterwards ratify his act, it is just the same as if my agent had constructed it. In this instance it is established that I will be liable, whether he acted with my consent, or whether I ratified what he had
(7) Julianus says that if a tenant cuts down a tree, the ownership of which was in dispute, or does anything else, and it was done by .order of the owner, both parties will be liable, not only for permitting the tree to be cut down, but also for the payment of all expenses of restoring the property to its former condition. If, however, the owner did not order the work to be done, the tenant will be liable for permitting the tree to be felled, and for the payment of the expenses; and the owner will be compelled to do nothing more than to allow the removal of the tree.
14. Julianus, Digest, Book LXVIII.
For if my slave constructs a new work without my knowledge, and I afterwards sell or manumit him, proceedings can only be instituted against me to compel me to allow the work to be demolished. The plaintiff, however, can proceed against the purchaser of the slave, and force him to surrender him by way of reparation, or pay the expense incurred in restoring the property to its original condition.
This action can also be brought against the slave himself, after he has been manumitted.
15. Ulpianus, On the Edict, Book LXXI.
This interdict can always be employed against him who is in possession of a new work. Therefore, if anyone has constructed a new work upon my land without my knowledge or consent, there will be ground for the interdict.
(1) If you have leased your land for excavation, and the lessee throws the stones which he takes out upon the field of a neighbor, Labeo says that you will not be liable under the interdict Quod vi aut clam, unless this was done by your direction. I, however, think that the lessee will be liable, but not the lessor, unless to the extent of being compelled to permit the removal of the stones, and to assign any right of action which he may have; otherwise, he cannot be held responsible.
(2) Labeo says that if earth is piled up by my order upon a burial-place belonging to another, proceedings can be instituted against me under the interdict Quod vi aut clam; and if this was done with the common consent of several persons, proceedings can be instituted against any one of them, or against each one individually; for an undertaking in which several persons are concerned renders each of them individually liable in full.
If, however, some of them acted on their own responsibility, suit should be brought against all, that is to say, for the entire amount. Hence, if one of them is sued, this will not release the others, and even if a judgment is rendered against only one, the result will be the same; while, in the former instance, if one is sued, the others will be released. In addition to this, the action based oh the violation of a sepulchre can be brought.
(3) This interdict is granted against the heir and other successors, for the amount which has come into their hands, but it will not be after a year has elapsed.
(4) The year begins to run from the time when the work has been completed, or labor upon it has ceased, even though it may not be finished. Otherwise, if the year was computed from the day when the work was begun, it would be necessary to bring several suits against those who delayed its completion.
(5) If, however, the place in which the work was performed was not easy of access (as, for example, if it was done with violence, or clandestinely in a burial-place, or in some other retired locality, or under ground, or under water, or in a sewer), the interdict will lie with reference to the new work, even after the lapse of a year, if proper cause be shown. For if proper cause is shown, the exception based on the fact that a year has elapsed cannot be pleaded, that is to say, where good and sufficient cause for ignorance is established.
(6) If anyone who "is absent on business for the State, when he returns, desires to make use of the interdict Quod vi aut clam, the better opinion is that he should not be excluded from doing so on the ground of a year having elapsed, but that he will be entitled to a year after his return. For if a minor under twenty-five years of age should be away on public business, and, during his absence, attains his majority, the year will be reckoned from the date of his return, and not from the day when he completed his twenty-fifth year.
This was stated in a Rescript by the Divine Pius, and confirmed by all the other Emperors who succeeded him.
(7) In the proceedings under this interdict, the amount of the judgment is based upon the interest of the plaintiff in not having the new work constructed. It is the duty of the judge to decide that the property shall be restored in such a way that the condition of the plaintiff will be the same as it would have been if the new work, on account of which the action was brought, had not been undertaken either by violence, or clandestinely.
(8) Therefore, sometimes the right of ownership must be taken into consideration, as, for example, where servitudes are lost, or usufructs extinguished because of the new work which was undertaken, which may not only happen while it was in progress of construction, but also at the time of its demolition, when the condition of the servitudes, of the usufruct, or of the property itself becomes impaired.
(9)r The interest of the plaintiff, however, must be established by his oath in court, or, if this cannot be done, it must be determined by the judge.
(10) Where anyone has been guilty of fraud to avoid restoring the property to its former condition, he must be considered as having the power to do so.
(11) In this interdict, the negligence of the defendant must also be taken into consideration, and this must be estimated in accordance with the wisdom of the judge.
(12) For the reason that this interdict has reference to the interest of the plaintiff in not having a new work constructed, if he has obtained the value of his interest by means of some other action, the result will be that he can obtain nothing else by the employment of this interdict.
16. Paulus, On the Edict, Book LXVII.
This interdict will lie in favor of those who are not in possession of the property, provided they have an interest therein.
(1) Where anyone, with violence, or clandestinely, cuts down trees which do not bear fruit, as, for instance, cypresses, the interdict will only lie in favor of the owner. If, however, any pleasure is afforded by trees of this kind, it may be said that the usufructuary also has an interest on this account, and that he will be entitled to the interdict.
(2) In short, if anyone has constructed a work with violence, or clandestinely, and is in possession, he must permit the removal of what has been built, and pay the expenses of doing so; but if he who did the work is not in possession, he must pay the expense of removal; if he is in possession, but did not construct the work, he must only permit it to be removed.
17. The Same, On the Edict, Book LXIX.
The interdict Quod vi aut clam is acquired for the owner by almost any person, and even by a tenant.
18. Celsus, Digest, Book XXV.
If anyone cuts down any timber before it is mature, he will be liable under the interdict Quod vi aut clam. In like manner, if he cuts it down after it has matured, and the owner sustains no damage, he will not be liable for anything.
(1) It has been very properly stated that if you should petition a magistrate to order your adversary to appear in court, in order to prevent him from serving notice upon you not to construct a new work, you will be held to have acted clandestinely, if, in the meantime, you proceed with the work.
19. Ulpianus, On the Edict, Book LVH.
Sabinus says that a son under paternal control, who is a tenant, is entitled to the interdict Quod vi aut clam against anyone who sets fire to trees.
20. Paulus, On Sabinus, Book XIII.
He is considered to have acted with violence who continues the construction of a new work after having been forbidden to do so; for
instance, by deterring his adversary from notifying him, or by closing a door against him.
(1) A man is also understood to be prevented by any kind of an act whatsoever; that is to say, by the opposition of someone speaking to him, or raising his hand against him, or throwing a stone upon the structure with the intention of forbidding him to proceed.
(2) Moreover, he who has been forbidden to proceed acts with violence as long as matters remain in the same condition; for if he afterwards makes an agreement with his adversary, he ceases to use violence.
(3) Likewise, if the work which has been prohibited is carried on by the heir, or by someone who purchased the property from him, without having knowledge of the facts, Pomponius says that it should be held that he will not be liable to the interdict.
(4) Any new work which is done in a ship, or with reference to any other movable property, even if it will increase its dimensions, is not included in this interdict.
(5) Whether the work is constructed in a private or a public place, or in one which is- sacred or religious, the interdict will lie.
21. Pomponius, On Sabinus, Book XXIX.
Where a new work is ordered to be removed by'a judge who has been applied to under this interdict, and anyone else removes it with violence, or clandestinely, the party against whom judgment has been rendered will, nevertheless, be ordered, under all circumstances, to restore the property to its former condition.
(1) If I order my slave to construct a new work, and no suspicion of clandestine action attaches to me, but my slave thinks that my adversary will oppose him if he should hear of it; will I be liable ? I do not think that you will be, because I, personally, should only be considered.
(2) In the construction of a new work, the land as well as the air which may be affected must be taken into account.
(3) If anyone, on account of the construction of a new work, loses any right attaching to his land, this should be remedied by the interdict.
22. Venuleius, Interdicts, Book II.
If you have drawn over, and planted a sprout of one of my vines on your land, and it takes root, I will be entitled to the interdict Quod vi aut clam for the term of a year. If, however, the year should elapse, I shall no longer have a right of action; for even the roots which remain on my land become yours, because they are accessory.
(1) If anyone cultivates land with violence, or clandestinely, I think that he will be liable under this interdict, just as if he had dug a ditch; for the application of this interdict is not based upon the kind of work, but upon every description of labor which is performed upon the soil.
(2) If you attach a tablet to my door,1 and before serving notice upon you I remove it, and we then institute proceedings against one another under the interdict Quod vi aut clam, and you do not desist to enable me to be released, you should have judgment rendered against you for not restoring the property to its former condition, to the extent of my interest; or I can plead an exception based upon the fact that you have acted with violence, or clandestinely, or under a precarious title.
(3) If you throw manure upon my premises, after I have forbidden you to do so, Trebatius says that you will be liable under the interdict Quod vi aut clam, even though you cause me no damage, and do not change the appearance of my land.
Labeo is of the opposite opinion, for he holds that anyone will not be liable under this interdict who merely makes a road through my land, or releases a bird of prey there, or hunts upon it, without constructing any new work.
(4) If anyone extends his roof or gutter above a tomb, even if it does not touch the monument itself, proceedings can, nevertheless, lawfully be instituted against him by means of the interdict Quod vi aut clam, because a sepulchre is not only a place intended for interment, but is entitled to all the air above it, and, on this account, the action for violation of a tomb can be brought.
(5) If he who served notice that he was about to undertake a new work should begin it immediately, he will not be understood to have done so clandestinely; but he will be considered to have acted clandestinely if he undertakes it after the designated time has expired.
TITLE XXV. CONCERNING THE WITHDRAWAL OF OPPOSITION.
1. Ulpianus, On the Edict, Book LXI.
The Prsetor says: "The notice will hold, if the complainant has a right to prevent the construction of a new work against his consent; otherwise, I will grant a withdrawal of the prohibition."
(1) Withdrawals of opposition are discussed under this Title.
(2) The words of the Prator indicate that a withdrawal of this kind only should be made where the notice does not hold, and that he intends that it only should hold where the person serving it has a right to forbid a new work being constructed without his consent. Moreover, whether security is given or not, the .withdrawal granted is only applicable to property with reference to which the notice is not valid. It is clear that if security has been furnished, and withdrawal is granted afterwards, the withdrawal is not necessary.
(3) He only is entitled to serve notice not to construct a new work in whom the right of ownership or the servitude is vested.
(4) It was also held by Julianus that the usufructuary had the right to recover the servitude; and, according to this, he can serve
1 That is, as a public notification that the building was hypothecated.—ED.
notice upon a neighbor not to construct a new work, and the withdrawal of opposition will also be valid.
If, however, he should serve notice upon the owner of the land himself, the withdrawal of opposition would be of no effect, nor would the usufructuary have any right of action against the owner, since he has one against the neighbor; as, for instance, to prevent him from raising his house to a greater height. But if his usufruct should be impaired by this act, he ought to bring an action to recover it.
Julianus says the same thing with reference to others to whom servitudes are due from their neighbors.
(5) Julianus also says that it is not inequitable to allow a person, who has received land in pledge, the retention of a servitude imposed upon said land.
CONCERNING PRECARIOUS TENURES. 1. Ulpianus, Institutes, Book I.
A precarious tenure is one by which a party petitioning for it is permitted to enjoy the use of property as long as he who grants him permission suffers him to do so.1
(1) This species of generosity is derived from the Law of Nations.
(2) It differs from a donation, in that he who makes a donation has no intention of receiving the property again; but he who grants anything by a precarious tenure does so with the expectation of resuming control of the property when he chooses to release it from the tenure.
(3) It also resembles a loan for use, for he who lends property in this manner does so in such a way as not to render the article loaned the property of the person who receives it, but he only permits him to make use of it.
2. The Same, On the Edict, Book LXIII.
The Praetor says: "You must return the property in question to him from whom you hold it by a precarious tenure, or which you have ceased to possess through some fraudulent act."
1 The title De precario corresponds to tenancy at will, under the Common Law. Littleton describes the latter as follows: "Tenant at will is, where lands or tenements are left by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sowne and before the corne is ripe, put him out, yet the lessee shall have the corne, and shall have free entry, egresse and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for yeares, which knoweth the end of his terme, doth sow the land, and his terme endeth before the corne is ripe. In this case the lessor, or he in the reversion shall have the corne, because the lesses knew the certainty of his terme and when it would end." (Littleton, Tenures, Vill, 68.) "It is regularly true, that every lease at will must in law be at the will of both parties,
(1) This interdict is restitutory. It is based upon natural equity, and lies in favor of anyone who desires to revoke the precarious tenure.
(2) For it is naturally just that you should only enjoy my liberality as long as I desire you to do so, and that I can revoke it whenever I change my mind. Therefore, where anything is granted under a precarious tenure, we can not only make use of the interdict, but also of the Actio prasscriptis verbis, which is based upon good faith.
(3) He is considered to hold property by a precarious title who has possession of the same either in fact or in law, for the sole reason that he has asked for, and obtained the right to possess, or to use it.
3. Gaius, On the Provincial Edict, Book XXV.
For example, where you have requested me to give you a right of way over your land, or to permit you to allow your gutter to project over my roof, or your beams to rest upon my wall.
4. Ulpianus, On the Edict, Book XVII.
A precarious title also exists with reference to movable property.
(1) Moreover, we must also remember that he who holds property by a precarious tenure is also in possession of the same.
(2) It is not he who has asked for the property under a precarious tenure, but he who holds it under such a tenure, that is liable under this interdict. For it may happen that he who did not ask for it may, nevertheless, hold it by a precarious tenure; as, for instance, if my servant should apply for it, or anyone else who is under my control should do so, he will acquire it for me under this tenure.
(3) Likewise, if I should ask for property under a precarious tenure, which already belongs to me, although I have made this request, I will not hold the property under this tenure, for the reason that it is established that no one can hold his own property by a precarious title.
(4) Likewise, he who requests property to be given him under a precarious tenure, for a certain period of time, will still be considered to .possess it under this tenure after the time has elapsed, even though he may not have asked to hold it longer; as the owner of property is understood to renew the precarious tenure when he permits the person who asked for it under such a title to continue to hold possession of the same.
5. Pomponius, On Sabinus, Book XXIX.
If while the precarious tenure is still existing, you request that it be continued for a long time, it will be extended; for the title to possession is not changed and a precarious title is not created in this way, but is merely prolonged. If, however, you request it after the time has elapsed, the better opinion is that a precarious title having once been extinguished is not renewed, but a new one is established.
and therefore when the lease is made to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also." (Coke, Institutes, I, 55, a.) —ED.
6. Ulpianus, On the Edict, Book LXXI.
If, in the meantime, the owner of the property should become insane, or die, Marcellus says that it is not possible for the precarious tenure to be renewed. This is true.
(1) If my agent, under my direction, asks for property under a precarious tenure, or if I ratify his act, I will properly be said to hold it under such a tenure.
(2) He who has asked permission to reside upon land under a precarious tenure is not in possession of the land, but its possession remains with the person who granted him permission. For jurists hold that an usufructuary, a tenant, and a lessee, all live on the land, and still they are not in possession of it.
(3) Julianus says that where anyone who has forcibly ejected another afterwards obtains from him the same land by a precarious tenure, he ceases to possess it by force, and begins to hold it by a precarious title; and he does not think that he has changed his title to the property, as he commences to possess it under a precarious tenure with the consent of him who ejected him. For if he had bought the same property for him, he would begin to acquire the ownership of the same as the purchaser.
(4) The question arose, if anyone should give his property to me in pledge, and then ask to hold it by a precarious tenure, whether there would be ground for this interdict. The point in this case is whether a precarious title to one's own property can exist. The better opinion seems to me to be that the precarious tenure relates to the pledge, as it is the possession, and not the ownership, which is granted. This opinion is extremely useful, for, every day, creditors are requested by those who have given their property in pledge, to permit them to hold it by a precarious tenure. A precarious tenure of this kind should be valid.
7. Venuleius, Interdicts, Book HI.
But if I am entitled to retain possession of property by means of the interdict Uti possidetis, although the question relating to the ownership of the same may not have been decided, and I grant you possession of it under a precarious tenure, you will be liable under this interdict.
8. Ulpianus, On the Edict, Book LXXI.
The question arose, if Titius should request me to allow him to use something belonging to Sempronius, and I afterwards ask Sempronius to grant permission for this to be done and he, desiring to favor me, gives permission, Titius will hold the property from me by a precarious title, and I can sue him under the interdict. Sempronius, however, cannot proceed against him, because the following words, "which.you hold of him by a precarious title," show that the interdict can be employed by the person who asked for the precarious tenure, and not by him to whom the property belongs.
But will Sempronius be entitled to sue me under the interdict, on account of my having requested him to permit the property to be held under a precarious tenure? The better opinion is, that he will not be entitled to the interdict, because I do not hold the property by a precarious title, as I did not obtain it for myself, but for another. He will, nevertheless, be entitled to an action on mandate against me, because he granted it to you under my direction. Or, if anyone should say that this was done, not by my direction, but rather in order to render me his debtor, it must be held that an action in factum should also be granted against me.
(1) When anyone has obtained property from Titius under a precarious tenure, it is also considered to be held from his heir in the same manner, as is stated by Sabinus and Celsus; and this is our practice. Therefore, a man is considered to hold property under this tenure from all other successors; which opinion is approved by Labeo. He adds that, even if he did not know that there was an heir, fie would still hold the property from him under a precarious tenure.
(2) Let us see what the rule will be, if you request me to grant you property under a precarious tenure, and I alienate it; will the tenure continue to exist, after the transfer of the property to another ? The better opinion is that he can make use of the interdict, if he has not revoked the precarious tenure; just as if you held the property in this way from him, and not from me, and if you permit him to hold it by this tenure for some time, he can properly employ the interdict just as if you held it from him.
(3) The Prsetor wished that he also should be liable under this proceeding, who committed a fraudulent act in order to avoid retaining possession. It must be noted that anyone who retains possession by a precarious tenure is not liable for negligence, but only for fraud; although he who has borrowed an article is responsible for negligence, as well as for fraud. And it is not without reason that he who obtains property by a precarious title is only liable for fraud, for all this only arises from the generosity of him who granted the property under such a tenure; and it is sufficient if he is only liable for fraud. It may, however, be said that he will also be liable for gross negligence which resembles fraud.
(4) Under this interdict the property should be restored to its original condition, and if this is not done, judgment must be rendered for the amount of the interest of the plaintiff in having the property restored to its former condition, from the time when the interdict was issued. Therefore, an estimate of the crops should also be made, and paid for from the same date.
(5) If he who obtained the property under a precarious tenure does not make use of a servitude, and, on this account, it is extinguished, let us see whether he will be liable to the interdict. I think that he will not be liable, unless he was guilty of fraud.
(6) Generally speaking, it must be held that in making restitution, both fraud and gross negligence should be taken into account, but nothing else. It is evident that after the issue of the interdict,
fraud, and both gross and ordinary negligence should be considered, for where anyone who holds property under a precarious tenure is in default, he should be responsible for everything.
(7) Labeo says that this interdict can be employed after the lapse of a year, and this is our practice; for, as property is sometimes granted under a precarious tenure for a considerable time, it would be absurd to hold that there will be no ground for the interdict after a year.
(8) The heir of him who asks that he be granted the property under a precarious tenure will be liable under this interdict, just as he himself would be, if he had possession of the property, or was guilty of fraud to avoid having it, or to prevent it from coming into his hands; but he will only be liable for the amount of the profit which he obtained, where any fraud was committed by the deceased.
9. Gaius, On the Provincial Edict, Book XXVI.
Precarious possession can be established between parties who are either present, or absent; for instance, by means of a letter, or a messenger.
10. Pomponius, On Plautius, Book V.
Although anyone may have only asked for a female slave under a precarious tenure, it is held that it was intended that he should be entitled to any offspring of the said female slave.
11. Celsus, Digest, Book VII.
If a debtor who has asked that property pledged be given him under a precarious tenure should discharge the debt, the said tenure comes to an end; as it was the intention of the parties that it should only continue to exist until the time when the debt was paid.
12. The Same, Digest, Book XXV.
When anything is granted under a precarious tenure, and it is agreed that the grantee shall hold possession under it until the Kalends of July, will he who received it be entitled to an exception to prevent him from being deprived of possession of the property before that time? An agreement of this kind is of no force or effect, for it is not lawful for property belonging to another to be held in possession against the consent of the owner.
(1) Property held by a precarious tenure passes to the heir of him who granted it, but it does not pass to the heir of him who received it, because possession was given only to himself, and not to his heir.
13. Paulus, On Quintus Mucius, Book XXXIII.
If your slave should request that property be granted him under a precarious tenure, and this is done by your order, or you ratify his request- in your own name, you will be liable as holding the property in this manner. If, however, your slave or your son should make a
request in his own responsibility, without your knowledge, you will not be considered to hold the property under a precarious tenure, but the person who granted it will be entitled to proceed against you by the action De peculia, or by that for property employed for the benefit of another.
14. Paulus, On Sabinus, Book XIII.
The interdict having reference to property held by a precarious tenure was introduced with good reason, because there was no action available for this purpose under the Civil Law. For occupancy by a precarious tenure relates to donations and benefactions, rather than to contracts made in the ordinary course of business.
15. Pomponius, On Sabinus, Book XX.
It is based upon absolute justice, as it prescribes that a person shall only make use of our property to the extent that we are willing to grant him permission to do so.
(1) Guests, and others who are entitled to free lodgings, are not understood to hold under a precarious tenure.
(2) We can hold under a precarious tenure property which consists of a right, as thai which permits the insertion of beams into a building, or allows structures to project over land.
(3) Anyone who has obtained security for the restitution of his property is not entitled to the benefit of the interdict relating to a precarious tenure.
(4) There is no question that anyone who has obtained possession under a precarious tenure does not actually acquire it. But is there any doubt that he who has requested to grant it, will continue to retain possession? Where possession under a precarious tenure has been granted to a slave, it is established that it is held by both parties; by him who made the request, because he holds possession in fact, arid by the owner of the property, because he did not have the intention of relinquishing it.
(5) It makes no difference, so far as this interdict is concerned, in what place anyone holds possession, or began to hold it under a precarious tenure.
16. The Same, On Sabinus, Book XXII.
If I adopt a person to whom property has been granted under a precarious tenure, I will also hold possession of it under the same tenure.
17. The Same, On Sabinus, Book XXIII.
When anyone possesses land under a precarious tenure, he can make use 'of the interdict Uti possidetis against all other persons, except him from whom he obtained the land.
18. Julianus, Digest, Book XIII.
Anyone can give his own property under a precarious tenure to the. party in possession, even though he himself does not possess it.
19. The Same, Digest, Book XLIX.
Two persons cannot hold the same property by a precarious title, any more than two can hold possession of the same thing through violence, or clandestinely; for two just or unjust possessions of it cannot exist at one and the same time.
(1) Anyone who requests that my slave be transferred to him under a precarious title is considered to hold him from me under such a title, if I grant his request; and hence he will be liable to me under the interdict in question.
(2) Where anything is requested to be granted under a precarious tenure, we cannot only make use of this interdict, but also of the proceeding for the recovery of property whose amount is undetermined; that is to say, the Actio Prasscriptis Verbis.
20. Ulpianus, Opinions, Book II.
The vendor can follow up any property which has been sold, and which is to remain in the hands of the purchaser under a precarious title, until the entire price has been paid, if it was the purchaser's fault that payment has not been made.
21. Venuleius, Actions, Book IV.
When anyone obtains permission to reside upon land under a precarious tenure, it is superfluous for the words, "For him and his household" to be added; for it is understood that permission is granted through him for his family to make use of the property.
22. The Same, Interdicts, Book HI.
If anyone who is in possession merely as possessor should request the owner of the property to grant him permission to retain it under a precarious tenure, or if he who purchased property belonging to another should make this request to the owner of the same, it is evident that they will hold possession under a precarious tenure; and they should not be considered to have themselves changed their title to possession, as possession under a precarious tenure has been granted them by the owner of the land. For if you should ask another for property in your possession to be granted you under a precarious tenure, you will be considered to have ceased to possess it under the first title, and to begin to hold it under a precarious one.
On the other hand, if a person who has the right to take the property away from the possessor should ask him to grant it to him by a precarious tenure, he will be liable under the interdict in.question; as an advantage has been obtained by this request, that is to say, the possession which belongs to another.
(1) If a ward, without the authority of his guardian, should ask that property be granted him under a precarious tenure, Labeo says that he will hold precarious possession of it, and will be liable under this interdict; for where anyone has possession naturally, there is no ground for the exertion of the authority of a guardian. The words,
"which you hold under a precarious tenure," are perfectly applicable, because what he possesses he holds by the title under which he asked for the grant of the property. There is nothing new to be determined by the Praetor in this case; for if the ward holds the property, he will be required by the judge to surrender it, and if he does not hold it, he will not be liable.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE CUTTING OF TREES.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "If a tree projects from your premises over those of your neighbor, and you are to blame for not removing it, I forbid force to be employed to prevent him from doing so and keeping it as his own."
(1) This interdict is prohibitory.
(2) Where a tree projects over the house of a neighbor, the question arises whether the Praetor can order the entire tree to be removed, or only that portion of it which projects above the building? Rutilius says that it should be taken out by the roots, and this is held to be correct by many authorities. Labeo asserts that if the owner does not remove the tree, he who is injured by it can, if he wishes to do so, cut it down and carry away the wood.
(3) Vines are also included under the term trees.
(4) This interdict lies not only in favor of the owner of the house, but also in favor of the usufructuary of the same, for the reason that it is to his interest, also, that the tree should not project above the building.
(5) Moreover, the opinion should be adopted, that if a tree projects over a house owned in common by several persons, each of the joint-owners will be entitled to the benefit of the interdict, and indeed, for the entire amount, because each one of them has a right to bring an action to recover servitudes.
(6) The Praator says: "If you are to blame for not removing it, I forbid force to be employed to prevent him from doing so." Therefore, authority to remove the tree is first granted to you, and if you fail to do so, then the Prator forbids you to employ violence in order to prevent your neighbor from removing it.
(7) The Prsetor also says: "Where a tree on your premises projects over those of your neighbor, and you are to blame for not trimming it up to a height of fifteen feet from the ground, I forbid force to be employed to prevent your neighbor from trimming it up to the height aforesaid, and removing the wood for his own use."
(8) What the Prsetor says, the Law of the Twelve Tables intended to establish; namely, that the branches of trees should be cut off within fifteen feet of the ground, in order that the shade of the tree may not injure the land of a neighbor.
(9) There is a difference between the two Sections of the interdict, for if the tree projects over a neighboring house, it must be entirely cut down; but if it projects over land, it need only be trimmed to the height of fifteen feet from the ground.
2. Pomponius, On Sabinus, Book XXXIV.
If a tree on the premises of a neighbor is made to project over your land by the force of the wind, according to the Law of the Twelve Tables, you can bring an action against your neighbor to compel him to remove it, on the ground that he has no right to have a tree in that condition.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE
GATHERING OF FRUIT WHICH HAS FALLEN FROM THE
PREMISES OF ONE PERSON UPON THOSE OF ANOTHER.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "Where any nuts fall from the premises of your neighbor upon yours, I forbid force to be employed to prevent him from gathering them, and carrying them away within the space of three days."
(1) All kinds of fruits are included under this term.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF A PERSON WHO is FREE.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "You shall produce any person who is free, the possession of whom you fraudulently hold."
(1) This interdict has been framed for the purpose of maintaining freedom; that is to say, to prevent any persons who are free from being restrained of their liberty by anyone.
2. Venuleius, Interdicts, Book IV.
For there is not much difference between slaves and persons who have not the power to depart at their pleasure.
3. Ulpianus, On the Edict, Book LXXI.
The Lex Favia also had reference to this, and the interdict does not prevent recourse to the Favian Law, for a person can institute proceedings under the interdict, and an accusation can still be brought under the Lex Favia,; and vice versa, anyone who institutes proceedings under this law can, nevertheless, avail himself of the benefit of the interdict, especially as one party can employ the interdict, and the other make use of the action authorized by the Favian Law.
(1) These words, "any person who is free," have reference to every one who is free whether he has reached the age of puberty or not; whether the individual is male or female; whether there is one, or there are several; and whether the party in question is his own master, or under the control of another; for we only consider whether he is free.
(2) He, however, who has another under his control, will not be liable under this interdict, as he is not considered to hold anyone fraudulently who avails himself of a right to which he is legally entitled.
(3) If anyone restrains of his liberty a person whom he has ransomed from the enemy, he will not be liable under the interdict, because he does not do so fraudulently. It is clear that if he tenders the amount of the ransom the interdict will apply. But, if he releases him without having received the money, it must be said that there will be ground for the interdict, if once having given him his liberty, he afterwards desires to hold him.
(4) If anyone retains his son, who is not under his control, he is usually considered to do so without being guilty of fraud; for genuine affection causes his retention to be made, without the presumption of fraud, unless the existence of bad faith is evident. Hence, the same rule will apply if a patron subjects to his authority his freedmen, his foster-child, or a slave still under the age of puberty, who has been surrendered by way of reparation for damage which he has caused. And, generally speaking, anyone who has a good reason for retaining control of a freeman is not considered to act in bad faith.
(5) If anyone continues to hold a free person with his own consent, he is not considered to do so in bad faith; but what if he holds him with his consent, but, after having deceived, seduced, or solicited him, without having good and sufficient reasons for doing so ? He is very properly held to retain him fraudulently.
(6) A man who does not know that a freeman is one of his family is not guilty of bad faith; but when he is aware of it, and still holds him, he is not free from fraud.
(7) It is clear that if he who holds possession of the freeman is in doubt as to whether he is free or a slave, or institutes proceedings to ascertain his condition, this interdict must not be employed, but proceedings to establish freedom should be instituted, for it has very properly been held that there will only be ground for this interdict where there is no doubt that the man is free. If, however, a question is raised as to his condition, the right to bring another action ought not to be prejudiced.
(8) The Praetor says, "You shall produce the person." To produce hin\ is to bring him to public notice, and afford an opportunity of seeing and touching him. The term "to produce" literally means not to keep him in secrecy.
(9) This interdict will lie in favor of every individual, for no one is forbidden to favor freedom.
(10) It is clear that all those who are liable to suspicion should be' excluded from the use of this interdict, if the character of the person
is such that he is presumably acting in collusion, or for the purpose of annoyance.
(11) If, however, a woman or a minor desires to make use of this interdict for the benefit of a blood-relative, a parent, or a connection, it must be said that the interdict should be granted; for they can prosecute others in criminal cases when they do so for injuries committed against themselves.
(12) But where there are several persons who wish to avail themselves of this interdict, the one who has the greatest interest in the matter, or who is best fitted for the purpose, should be selected by the PraBtor; and this choice should depend upon the relationship, the trustworthiness, or the rank of the individual selected.
(13) If, however, when proceedings have been instituted under this interdict, another person desires to proceed under it, it is evident that permission to make use of it cannot afterwards readily be granted to another, unless something can be proved with reference to the perfidy of the original prosecutor. Therefore, where proper cause is shown, this interdict can be employed more than once. For one person cannot be prosecuted more than once in criminal cases, unless the first accuser is convicted of prevarication. But the defendant, having been convicted, prefers to pay the damages assessed in court rather than produce the man, it will not be unjust to grant the same interdict against him repeatedly, or grant it to the same party who cannot be barred by an exception, or to someone else.
(14) Labeo says that this interdict may be granted against a person who is absent, and if no defence is made by him, his property can be taken in execution.
(15) This interdict is perpetual.
4. Venuleius, Interdicts, Book IV.
If anyone restrains of his liberty a freeman who is not aware of his own condition, he will still be required to reproduce him, if he fraudulently retains him under his control.
(1) Trebatius, also, says that anyone who in good faith purchases a freeman as a slave, and retains him under his control, is not liable.
(2) A man who is free should, at no time, be fraudulently restrained of his liberty, and this is so far true that some authorities hold that not even the least delay should be allowed the person required to produce him, as he is liable to the penalty for an act which has been committed.
(3) This interdict does not lie in favor of a creditor, for the purpose of producing his debtor in court; for no one is obliged to produce a debtor who conceals himself, but under the Edict of the Pra?tor his property may be taken in execution.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF CHILDREN AND THEIR RECOVERY.
1. Ulpianus, On the Edict, Book LXXI.
The Praetor says: "You shall produce any male or female child who is subject to the authority of Lucius Titius, and who is in your hands, or whose possession you have fraudulently relinquished."
(1) This interdict is intended to be employed against one whom a parent desires shall produce a child that he alleges is subject to his authority. It is evident from the words of the Edict tha,t it will lie in favor of the person entitled to the control of the child.
(2) In this interdict, the Prsetor does not consider the reason why the child is in the possession of him who is required to produce it, as is the case in a former interdict; but holds that it should by all means be restored, if it is subject to the authority of the plaintiff.
(3) If, however, it is the mother of the child who retains it in her possession, and it appears to be better that it should remain under her care than to be placed under that of its father, that is to say, if the reason is perfectly just, the Divine Pius decided, and it was stated in a Rescript by Marcus Severus, that relief should be granted to the mother by means of an exception.
(4) In like manner, if it should be ascertained that the child was under no one's control, although this decision may be unjust, if anyone should attempt to proceed under this interdict, he can be barred by the exception of res judicata; so that the question is no longer whether the child is under the control of the plaintiff, but whether there has been a decision on this point.
(5) If a father wishes to take his daughter away, or to have her produced after she is married to me, cannot an exception be granted me against the interdict, if he, having, in the first place, agreed to the marriage, should afterwards desire to dissolve it, even if children have been born? Where a marriage has been properly solemnized, it certainly ought not, under our practice, to be interfered with on account of paternal control. Still, an attempt should be made to persuade the father not to exert his right of paternal authority with too much severity.
2. Hermogenianus, Epitomes of Law, Book VI.
On the other hand, the father can, with much more propriety, be compelled by the husband of his daughter to produce her, and permit him to recover her, even if she is under paternal control.
3. Ulpianus, On the Edict, Book LXXI.
The Prsetor next says: "If Lucius Titius is under the control of Lucius Titius, I forbid force to be employed to p'revent the latter from taking Lucius Titius with him."
(1) The interdicts previously mentioned are exhibitory, that is. to say, they have reference to the production of children and others of
whom we have spoken. This interdict also relates to the removal of such persons, and anyone who has the right to do so can take them away from him. Therefore, the first interdict, which relates to the production of children, is preparatory to this one, by which the plaintiff can remove the person who was produced.
(2) This interdict should be granted for the same reason for which we have stated children should be produced in court. Hence, whatever we have previously stated should also be understood to be applicable here.
(3) Moreover, this interdict is not granted against the child itself whom the plaintiff desires to take away, but someone must appear to defend it against the interdict. The interdict, however, will not lie, and the Praetor himself can at once proceed, and render a decision, if any controversy arises before him as to whether the child is, or is not, under paternal control.
(4) Julianus says that whenever an interdict is employed, or an investigation is instituted with reference to the removal of a child, and the latter is under the age of puberty, in some instances the inquiry should be deferred until the child reaches that age, and in others, it ought to be decided without delay. This is a matter which must be determined in accordance with the rank of the persons between whom the controversy has arisen, and the nature of the case. If the party who alleges that he is the father is one whose social position, wisdom, and integrity are established, he will be entitled to keep the minor in his care until the case has been disposed of; but if he who instituted proceedings is of inferior rank, a malicious person, or one of bad reputation, the investigation should take place at once.
Likewise, if he who denies that the minor is under the control of another is honorable in every respect, and is either a testamentary guardian, or one appointed by the Praetor, and has care of the ward, and charge of him during the trial of the case; and on the other hand, he who alleges that he is his father is a malicious person, the investigation should not be postponed.
Where, however, both parties are liable to suspicion, either on account of inferior rank, or bad character, Julianus says it will not be improper to appoint someone else by whom the child can be brought up in the meantime, and postpone the determination of the case until it reaches the age of puberty; in order that, through the collusion or ignorance of one or the other of the contending parties, a child who is independent may not be decided to be under the control of another, or one who is subject to the authority of another may be held to occupy the place of the head of a household.
(5) Even if it should be conclusively proved by the father that the child is under his control, still, if after investigation it is ascertained that the mother should have the preference, and retain possession of the child, she can do so; for it was established by several decrees of the Divine Pius that the mother can obtain permission for the child to remain with her on account of the bad character of the father, without any diminution of paternal authority.
(6) In this interdict, the Praetor orders that a girl or a boy seventeen years of age, or one who is near that age, shall, pending the hearing of the case, be left in the care of the mother of the family. We say that a child is near the age of seventeen, immediately after he has reached that of puberty. The mother of a family is understood to be a woman of acknowledged good repute.
4. Africanus, Questions, Book IV.
If I say that anyone who alleges that he is the head of a household is my son, and under my control, and that, by my order, he has entered upon an estate, I ought to assert my claim to it, and have recourse to the interdict under which I can take my son away with me.
5. Venuleius, Interdicts, Book IV.
If a son is in the possession of another with his own consent, this interdict cannot be employed, because he is rather in his own possession than in that of him against whom proceedings may be instituted under the interdict, as he has free power to depart or remain; unless there is a dispute between two persons, each of whom alleges that he is his father, and one of whom demands that the child shall be produced by the other.
CONCERNING THE INTERDICT UTRUBI. 1. Ulpianus, On the Edict, Book LXXII.
The Praetor says: "I forbid force to be employed to prevent anyone from removing a slave from the place where he is at present, if he has remained there the greater part of the year."
(1) This interdict has reference to the possession of movables; it, however, obtains its validity in the same way as the interdict Uti possidetis, which only applies to real property; so that he also will succeed under this interdict who has obtained possession of the slave without the employment of force, or clandestinely, or by a precarious title, if an adversary attempts to interfere with his possession.
CONCERNING THE INTERDICT HAVING REFERENCE TO THE REMOVAL OF TENANTS.
1. Ulpianus, On the Edict, Book LXXIII.
The Praetor says: "I forbid force to be employed to prevent your tenant from leaving, and taking with him the slave in question, if the latter does not constitute a part of the property which, in accordance with the agreement between yourself and the plaintiff, should be held by way of pledge to secure the rent; whether the said property has been taken or brought inta your house, born there, or made there; but if he forms part of the same, I forbid you to prevent your tenant
from taking him away with him, when he departs; provided he has paid you the rent out of said property, or has furnished you security for it, or you are to blame for its not having been paid."
(1) This interdict was introduced for the benefit of a lessee who wishes to depart after having paid his rent. It does not lie in favor of a tenant on a farm.
(2) Relief can also be given to a lessee by extraordinary proceedings, and therefore this interdict is not frequently employed.
(3) Still, it will lie in favor of one who has a gratuitous lodging.
(4) If the rent is not yet due, Labeo says that this interdict cannot be employed, unless the tenant is ready to pay it. Hence, if he has paid it for half the year, and owes it for the other half, he cannot have recourse to the interdict unless he pays the rent for the remaining six months. This, however, is only the case where a special agreement was made when the house was rented, providing that the lessee should not be permitted to leave before the end of the year, or before a specified time has elapsed.
The same rule applies where anyone rents a house for several years, and the term has not yet expired; for where property is pledged for the entire amount of the rent, the result will be that the interdict will not be available, unless the articles pledged have been released.
(5) It must, however, be noted that the Praetor does not require the property to belong to the lessee, nor that it should have been expressly pledged, but that it must be brought into the house as pledged. Hence this interdict will apply, even if the property belongs to another, if it has been brought into the house for the purpose of being pledged, and is such as cannot be given in pledge. If it has not been brought in for that purpose it cannot be retained by the lessor.
(6) This interdict is perpetual, and is granted for and against heirs.
2. Gaius, On the Provincial Edict, Book XXVI.
There is no doubt that this interdict will lie in favor of a lessee, even with reference to property which does not belong to him, but which has been lent to, hired by, or deposited with him.
CONCERNING THE SALVIAN INTERDICT. 1. Julianus, Digest, Book XLIX.
If a tenant on a farm brings a female slave on the land, for the purpose of pledging her, and afterwards sells her, an interdict should be granted in order to obtain possession of a child born to the said female slave while she was in the hands of the purchaser.
(1) If a tenant brings property on a farm, which is owned by two persons, for the purpose of pledging the same, with the understanding that it shall be jointly encumbered to both of them, each one can properly make use of the Salvian Interdict against a third party; but
if this interdict is granted with reference to them alone, the position of the possessor will be preferable.
If, however, it was agreed that the property should be equally encumbered to each of the joint-owners of the land, a praetorian action should be granted between them, and against other parties, by means of which each of the said joint-owners can obtain possession of half
(2) It is proper that the same rule should be observed where a tenant brings property held in common with another upon the land, for the purpose of pledging the same, so that pursuit of the pledge may only be made for half of the value of the property in question.
2. Ulpianus, On the Edict, Book LXX.
In the Salvian Interdict, if the property to be pledged is brought upon land belonging to two joint-owners, the party in possession will be preferred, and they must have recourse to the Servian Action.
THE DIGEST OR PANDECTS. BOOK XLIV.
CONCERNING EXCEPTIONS, PRESCRIPTIONS, AND PRELIMINARY INQUIRIES.
1. Ulpianus, On the Edict, Book IV.
He is held to occupy the position of plaintiff who makes use of an exception, for where a defendant has recourse to an exception he becomes a plaintiff.
2. The Same, On the Edict, Book LXXIV.
An exception is so called for the reason that it operates as an exclusion, and is ordinarily opposed to proceedings to collect a claim, for the purpose of barring the statement of the same as well as judgment in favor of the party who brings the suit.
(1) Replications are nothing more than exceptions pleaded by the party plaintiff, which are necessary in order to bar exceptions; for a replication is always introduced for the purpose of opposing an exception.
(2) It must be remembered that every exception, or replication, is for the purpose of preventing the opposite party from proceeding further. An exception bars the plaintiff, and a replication bars the
(3) It is customary for a triplication to be granted against the' replication, and other pleas to follow in order and, after this, the
names are multiplied, whether the defendant or the plaintiff interposes an objection.
(4) We usually say that some exceptions are dilatory, and others peremptory; as, for instance, a dilatory exception is one which postpones the action, thus one denying the authority of an agent is a dilatory exception. For he who alleges that anyone has not the power to act as an attorney does not deny that the action should be brought, but maintains that the person who brings it is not qualified to do so.
3. Gaius, On the Provincial Edict, Book I.
Exceptions are either perpetual and peremptory, or temporary and dilatory. Those are perpetual and peremptory which will always lie, and cannot be avoided; for example, those based on fraud and res judicata, and where anything is alleged to have been done against the laws or decrees of the Senate; also such as are applicable in the case of an informal agreement, that is to say, such as provide that the money due shall, under no circumstances, be collected.
Exceptions are temporary and dilatory which cannot be brought at any time, and can be avoided; and of this description is a temporary agreement between the parties under which an action cannot be brought for a specified period, for instance, within five years. Exceptions by which the action of an agent is barred, and which can be avoided, are also dilatory.
4. Paulus, On the Edict, Book XX.
If the question is asked whether a ward can be barred by an exception on the ground of fraud, where money which was due to him has been paid without the authority of his guardian, and he demands payment a second time, it must be ascertained whether, when he makes the demand, he still has the money, or has purchased something with it.
5. The Same, On the Edict, Book XVIII.
A defendant who alleges that he has already sworn in court that he does not owe the money for which he is sued, can avail himself of all other exceptions in addition to that based on taking the oath, or of the rest of them without it; for he is permitted to make use of several defences.
6. The Same, On the Edict, Book LXXI.
If a legatee brings an action to recover the property bequeathed, an exception based on the fraud of the testator can be pleaded against him; for, just as an heir who succeeds to the entire estate can be barred by an exception, so a legatee can also be barred as the successor of an individual part of the same.
7. The Same, On Plautius, Book III.
Exceptions to which certain persons are entitled do not pass to others; as, for instance, where a partner, a father, or a patron, can
plead an exception to have judgment rendered against him only for the amount which he is able to pay; this privilege is not granted to a surety. Hence the surety of a husband, who was given after the marriage has been dissolved, will have judgment rendered against him for the entire amount of the dowry.
(1) Exceptions which have reference to property can, however, also be pleaded by sureties; for example those based on res judicata, fraud, and where an oath has been exacted, if this was done under duress. Therefore, if the principal debtor entered into an agreement concerning the property, his surety will, by all means, be entitled to an exception.
An exception based upon the appearance of a surety, on the ground that the claim will prejudice the right of freedom, can also be employed by him. The same must be said where anyone has become surety for a son under paternal control in violation of the Decree of the Senate, or for a minor of twenty-five years of age, who has been defrauded. If, however, he has been deceived with reference to the property, he will not be entitled to relief before he obtains restitution, and an exception should not be granted the surety.
8. The Same, On Plautius, Book XIV.
No one is forbidden to avail himself of several exceptions, even though they may be different in their character.
9. Marcellus, Digest, Book HI.
An adversary is not considered to admit the claim of the other party, merely because he has recourse to an exception.
10. Modestinus, Opinions, Book XII.
Modestinus gave it as his opinion that a judgment obtained by others does not prejudice those who were not parties to the suit; and even if he, against whom judgment was rendered, should become the heir of the person who gained .the case, an exception, based on the fact that, under this judgment, he has failed to effect what he undertook in his own name before he became the heir, cannot be pleaded against him.
11. The Same, Opinions, Book XIII.
A man acknowledged as genuine certain notes which were, in fact, forged, and paid them after judgment was rendered against him. I ask, if the truth should subsequently be ascertained, and the notes found to be forged, and the defendant should desire to prove this in accordance with the order of the court, or an interlocutory decree; and, as he had admitted the genuineness of the said notes, whether he could be opposed by an exception, as it is clearly established by the Imperial Constitutions that although a judgment may be obtained by means of forged documents, and they are afterwards ascertained to be false, the fact that the matter has been decided cannot be pleaded in bar. Modestinus answered that, for the reason
that payment was made through mistake, or security was furnished in the case of these notes, which were afterwards alleged to be forged, there would be no ground for an exception.
12. Ulpianus, On the Edict, Book XXXVIII.
Generally speaking, in questions dependent on preliminary decisions, he sustains the part of a plaintiff whose claim is in accordance with what he demands.
, 13. Julianus, Digest, Book L.
If, after judgment has been pronounced in a case involving an entire estate, suit is brought to recover certain specified articles, it is settled that an exception on the ground that the estate will be prejudged cannot be pleaded in bar, for the reason that exceptions of this kind are introduced because they may affect a future decree, if not the one which has already been rendered.
14. Alfenus Varus, Digest, Book II.
A son under paternal control sold a slave forming part of his peculium, and a stipulation was made for the price. The slave was returned under a conditional clause of the contract and afterwards died, and the father demanded from the purchaser the money which the son had stipulated should be paid to him. It was decided to be just that an exception in factum should be pleaded against him, setting forth that the money had been promised for the slave who had afterwards been returned under a condition of the contract.
15. Julianus, On Urseius Ferox, Book IV.
A replication alleging bad faith should not be pleaded against an exception founded upon an oath taken in court, as the Praetor should see that no question is subsequently raised with reference to such an oath.
16. Africanus, Questions, Book IX.
You are in possession of the Titian Estate, and you and I have a lawsuit with reference to the ownership of the same. I allege that there is due to this estate a right of way through the Sempronian Estate, which belongs to you. If I bring suit to recover the right of way, it is held that you can avail yourself of an exception on the ground that the action pending for the ownership of the property ought not to be prejudged; that is to say, that I cannot show that I am entitled to the right of way before I have proved that the Titian Estate is mine.
17. Paulus, On the Edict, Book LXX.
If, however, I bring an action to recover the right of way, and afterwards one to recover the Titian Estate, as the objects of the litigation are distinct, and the reasons for restitution different, the exception will cause no injury.
18. Africanus, Questions, Book IX.
I bring an action against you for half of a tract of land which you say is yours, and I wish, at the same time, to bring one in partition against you before the same judge. Again, if I allege that a tract of land of which you are in possession is mine, and I wish to recover the crops from you, the question arises whether an exception based on the principle that I ought not to bring a suit, the decision of which will prejudge the case which involves the ownership of all, or a part of the land in question, will operate as a bar, or should be denied.
It is held that, in both instances, the Praetor should intervene, and not permit the plaintiff to institute proceedings of this kind, before the question of the ownership of the land has been determined.
19. Marcianus, Institutes, Book XIII.
All exceptions to which the principal debtor is entitled can also be employed by his surety, even against the consent of the former.
20. Paulus, On the Manner of Drawing up Formulas.
Exceptions are pleaded either because the party did what he should have done; or because he did what he ought not to have done; or because he did not do what he should have done. An exception on the ground of property sold and delivered, or on that of res judicata, is granted for the reason that something has been done which ought to have been done. An exception on the ground of fraud is granted, because something has been done which ought not to have been done. An exception on the ground that praetorian possession of property which has been given has not been permitted, is granted because something was not done which should be done.
21. Neratius, Parchments, Book IV.
One action is said to prejudge another, with reference to a larger sum of money, when a question arises in court which is connected either wholly, or in part, with a suit involving a larger amount of property.
• 22. Paulus, Various Passages.
An exception is a proceeding which sometimes relieves the defendant from the risk of having judgment rendered against him, and sometimes diminishes the amount of the judgment.
(1) A replication opposes an exception, and is, as it were, an exception to an exception.
23. Labeo, Epitomes of Probabilities by Paulus, Book HI.
Paulus: If anyone places a statue in a city with the intention that it shall belong to the city, and afterwards desires to claim it in court, he can be barred by an exception in factum.
24. Hermogenianus, Epitomes of Law, Book VII.
A son under paternal control can acquire for his father an exception on the ground of an oath having been taken, if he swears in court that his father does not owe anything.
TITLE II. CONCERNING THE EXCEPTION BASED ON RES JUDICATA.
1. Ulpianus, On the Edict, Book II.
As judgments rendered between litigants cannot prejudice others who are not parties to the suit, proceedings can be instituted under a will by which freedom is granted, or a legacy is bequeathed, although the will may have been broken, or may have been declared void, or may have been held not to have been drawn in accordance with the prescribed legal formalities; but, still, if the legatee should lose his case, the testamentary grant of freedom will not be affected.
2. The Same, On the Edict, Book XIII.
Where an action is brought against the heir of a testator who passed over his son in his will, and the plaintiff is barred by an exception on the ground that the will is in such a condition that possession of the estate can be granted by the Praetor contrary to its provisions, and the emancipated son has neglected to apply for possession of the estate, it is not unjust that he should be enabled again to institute proceedings against the heir. This was stated by Julianus in the Fourth Book of the Digest.
3. The Same, On the Edict, Book XV.
Julianus, in the Third Book of the Digest, states that an exception on the ground of res judicata can be opposed whenever the same question again arises in court between the same parties. Therefore, if anyone brings an action for the entire estate, after having lost one, brought to recover a portion of the same, or vice versa, he will be barred by an exception.
4. The Same, On the Edict, Book LXXII.
An exception on the ground of res judicata is tacitly understood to include all those persons who are interested in the case.
5. The Same, On the Edict, Book LXXIV.
Proceedings are considered to be instituted with reference to the same question, not only when a plaintiff does not make use of the same action which he brought in the first place, but when he brings another relating to the same matter. For instance, if anyone having brought an action on mandate should, after his adversary promised to appear in court, bring one on the ground of voluntary agency, or one for the recovery of the property, he institutes proceedings relating to the same matter. Hence, it is very properly said that he only does not institute proceedings with reference to the same matter who does not again attempt to accomplish the same result. For when anyone changes the action, he must also change the nature of his claim; as he is always considered to bring suit with reference to the same matter, even if he has recourse to a different kind of action from the one which he employed in the first place.
6. Paulus, On the Edict, Book LXX.
It has very reasonably been held that one action is sufficient for the settlement of a single controversy, and one judgment for the termination of a case; otherwise, litigation would be enormously increased, and would be productive of insurmountable difficulties, especially where conflicting decisions have been rendered. It is therefore very common to introduce an exception on the ground of res judicata.
1. Ulpianus, On the Edict, Book LXXV.
If anyone, after having brought an action for all of certain property and lost it, should then bring suit to recover a portion of the same, he will be barred by an exception on the ground of res judicata; for a part is included in the whole, and is considered the same thing where a portion of something is claimed and all of it had previously been demanded. Nor does it make any difference whether the claim is made for a certain article, or for a sum of money, or for a right. Hence, if anyone sues to recover a tract of land, and afterwards brings an action for a divided or an undivided portion of the same, it must be said that he will be barred by an exception. Or if you suggest, as an example, that I bring an action for a certain part of a tract of land, the whole of which I have previously sued for, I will be barred by an exception.
The same rule must be adopted where, in the first place, suit is brought for two different articles, and afterwards one is brought for either of them; as the exception will operate as a bar. Likewise, if anyone brings an action to recover a tract of land and, having lost it, he then brings one for the trees which have been cut on said land, or if he, in the first place, brings suit for a house, and subsequently brings one for the ground on which it stands, or the lumber or stone of which it is built, the same rule will apply. This is also the case if I, in the first place, bring suit for a ship, and then bring one to recover the individual parts of which it is composed.
(1) If I bring an action to recover a female slave who is pregnant, and who conceived and brought forth a child after issue was joined in the case, and I then bring an action to recover the child, whether I shall be decided to have asserted the same claim or a different one, is an important point. And, indeed, it may be held that an action is brought for the same thing, wherever what was demanded before the first judge is demanded before a second one. Therefore, in almost all these cases, an exception will operate as a bar.
(2) A difference, however, exists with reference to the stone and timbers of which a house is composed, for where anyone brings a suit for a house, and loses it, and afterwards brings one for the stone or the timbers, or anything else, as his property, he is in such a position that he will be considered to have asserted a different claim, for a house may belong to a person who does not own the stones of which it is constructed. Finally, where materials have been used for the erection of a house belonging to another, the owner can recover them after they have been separated from the building.
(3) The same question arises with reference to the crops, as where the child of a female slave is involved. For these things are not yet in existence, still they are derived from the property to recover which the action has been brought; and the better opinion is that this exception will not apply to them. It is, however, clear that if either the crops or the offspring of the slave have been included in the restitution of the property, and their value has been appraised, the result will be that an exception can be effectively interposed.
(4) And, generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover certain articles forming part of the estate; or if, after having brought an action to recover certain articles belonging to it, and failed, he then brings one to recover the entire estate, he will be barred by an exception.
(5) The same rule should be adopted where anyone, having brought an a