THE DIGEST OR PANDECTS. BOOK XLII.

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

1. Modestinus, Pandects, Book VII.

By res judicata, is meant the termination of a controversy by the judgment of a court. This is accomplished either by an adverse decision, or by discharge from liability.

2. Ulpianus, On the Edict, Book VI.

The magistrate having jurisdiction of a suit does not always observe the time prescribed by law, for sometimes he shortens, and sometimes he extends it, dependent upon the nature of the case, the amount of property in dispute, or the obedience or obstinacy of the parties; but rarely is the judgment executed within the time fixed by law, as, for example, where the question of support is to be determined, or relief is to be granted to a minor of twenty-five years of age.

3. Paulus, On the Edict, Book XVII.

He who has power to condemn has also power to discharge from liability.

4. Ulpianus, On the Edict, Book LVII1.

If an agent does not appear, an action to enforce judgment against him will be refused, and will be granted against his principal; but if he does appear, it will be granted against him. In this instance, however, he is not held to have appeared in court who has been appointed agent in a case in which he is interested; for there is another reason why he cannot refuse to plead in an action to enforce judgment, and that is because he has become an agent in his own behalf, and not in that of another.

(1) A guardian and a curator are in such a position that they are not considered to have appeared in court, and therefore, an action to enforce judgment should not be granted against them.

(2) The agent of a municipality can avoid execution in a case where judgment has been rendered, for an action to enforce judgment should be granted against the citizens.

(3) The Prætor says: "I will grant an action to compel the party against whom a decision has been rendered to pay the money." Hence the party who has lost his case is required to make payment. But what should be done, and what shall we say, if he is not prepared to make payment, but is ready to satisfy the claim in some other way? Labeo says that it should be added, "If the party who had lost his case should not satisfy the claim," for it may happen that he has a solvent person to offer in his stead. The reason, however, for requiring payment is that the Prætor was unwilling that a new obligation should be created out of the former one; and therefore he provides that the money shall be paid. The opinion of Labeo should be adopted for good and sufficient reasons.

(4) If, after the decision and by agreement of the litigants, security is furnished by the party who lost his case, the rule will be relaxed with reference to him if a new contract is made; but if this is not done for the purpose of entering into a new contract, the order of execution will stand. If, however, pledges are accepted, or securities are furnished to provide for the execution of the judgment, the result will be that we must hold that the execution will remain just as if something had been added to the decision in the case, and nothing had been withdrawn from it. The same rule should be observed in the case of a party whose agent had judgment rendered against him.

(5) When a decision is rendered against anyone requiring him to make payment within a certain time, from what date must we compute the time for the action to enforce judgment? Shall we do so from the day when the decision was rendered, or from the day when the time prescribed in cases of this kind has elapsed? If the judge fixed a shorter time than that prescribed by law, what is lacking through his decision must be supplied by the law. If, however, the judge, in fixing the period, included a greater number of days than those legally allowed, the unsuccessful party will be granted not only the time prescribed by law, but also that which the judge granted in addition.

(6) We must understand a person who has been condemned to be one who has had a judgment legally rendered against him in such a way that it will stand. If, however, for any reason, the judgment should prove to be of no effect, it must be said that the term "condemnation" will not be applicable.

(7) We should understand a discharge from liability to mean not only that the party pays the claim, but that he is entirely released from the obligation upon which the judgment was founded.

(8) Celsus says that if you had a decision rendered against you in a noxal action, and by way of reparation you gave up a slave in whom another had the usufruct, you will still be liable to the action to enforce judgment; but if the usufruct should be extinguished, he states that you will be released.

5. The Same, On the Edict, Book LIX.

The Prætor says, "The decision with reference to the property was rendered by the magistrate having jurisdiction." It would be better if he had said, "By him who had cognizance of the matter," for the word "cognizance" also has reference to judges who have no jurisdiction of these questions, but who have the right to examine certain other cases.

(1) If a judge should decide against anyone as follows, "Let So-and-So deliver to Titius what he has received under the will or codicil of Msevius," we must understand this to mean the same as if he had expressly mentioned the amount which had been left by the will or the codicil.

The same rule will apply if he had decided that a verbal trust should be executed.

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

Where a decision is rendered against a soldier, who has completed his term of military service, he is only compelled to pay what his resources will permit.

(1) Where a party to a suit has been condemned to pay ten aurei, or to surrender the cause of the damage by way of reparation, he will be compelled, by the action to enforce judgment, to pay the sum of ten aurei, because he obtains from the law the power of surrendering the animal which caused the damage. He, however, who stipulated for either the payment of ten aurei, or the surrender of the animal, or slave, by way of reparation, cannot claim the ten aurei, because each of these things is included in the agreement and we were able to stipulate for them separately. A decision calling for the surrender of the slave or animal by way of reparation will be void, but it follows a judgment requiring the payment of the money, and therefore proceedings to collect the ten aurei should be instituted under the judgment, for it has reference to them alone, and the surrender of the animal or the slave by way of reparation is granted by the law.

(2) He who, by his own authority, sells the property of anyone whom, he has defeated in a lawsuit, will be liable to an action of theft, as well as one of robbery with violence.

(3) The action to enforce the execution of a judgment is a perpetual one, includes the pursuit of the property, and lies both for and against an heir.

7. Gaius, On the Edict of the Urban Prætor, Title: On Res Judicata.

There is, at present, no doubt that he against whom judgment has been rendered can be released in many ways within the time prescribed for execution; although, during that time, proceedings in execution can not be instituted against him, because, where a case has been decided, the time fixed by law has been established in favor of the party who lost his case, and not against him.

8. Paulus, On Plautius, Book V.

If a slave who is claimed under the terms of a stipulation dies after issue has been joined in a case, the defendant will not be released from liability, and it has been decided that he must render an account of the profits.

9. Pomponius, On Plautius, Book V.

Judgment cannot be rendered by a magistrate or an arbiter against a person who is insane.

10. Marcellus, Digest, Book II.

A man who falsely represents himself to be the head of a household, who borrows money, and who has been disinherited by his father, should have judgment rendered against him, even though he cannot make payment.

11. Celsus, Digest, Book V.

If I have stipulated for something to be done on the Kalends of a certain month, and judgment has been rendered some time after the Kalends of that month, the amount of damages must be estimated in proportion to my interest in having the work done on the date above mentioned; for if the estimate is made from that time, I would have no further interest than in what could be paid later.

12. Marcellus, Digest, Book IV.

In decisions having reference to deposits or loans for use, although the property may have been lost through the fraud of the defendant, it is customary to grant him relief by compelling the owner to transfer to him his rights of action.

13. Celsus, Digest, Book VI.

Where anyone stipulated for ten aurei to be paid by one person and security to be given by another, the amount of damages should be estimated in proportion to the interest of the stipulator in having security furnished him. This interest can amount to as much as what is due, or to less, or sometimes even to nothing; for no estimate can be made of groundless fear. If, however, the debt should be paid, there will be no remaining interest to be estimated, and if a certain amount of it has been paid, the value of the interest will decrease in proportion.

(1) When anyone promises that he will prevent the stipulator from sustaining any loss, and he does so, and the stipulator does not suffer any damage, he is considered to have done what he agreed to. If he fails to do this, judgment will be rendered against him for a certain sum of money, for the reason that he did not do what he promised, as happens in all kinds of obligations which relate to the performance of certain acts.

14. The Same, Digest, Book XXV.

Whatever the Prætor ordered or forbade to be done he can annul by a contrary decision, or renew; but this does not apply to final decrees.

15. Ulpianus, On the Duties of Consul, Book HI.

It was stated by the Divine Pius in a Rescript addressed to the magistrates of the Roman people, that those who appoint judges or arbitrators must authorize the execution of the judgments rendered by them.

(1) Our Emperor and his Father stated in a Rescript that even the governor of a province could execute a judgment pronounced at Rome, if he was directed to do so.

(2) Hence, in the judicial sale of anything which has been taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus that the governors of provinces execute judgment.

(3) If property taken in execution does not find a purchaser, it was stated in a Rescript by our Emperor and his Divine Father that it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered.

The property is adjudged to him in proportion to the amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having mad.e an agreement for the satisfaction of his claim; nor can he say that he held the property in pledge for a certain amount and bring an action to recover the balance.

(4) If a controversy arises concerning property taken in execution, it has been decided by our Emperor that those who are executing the judgment shall make an examination of it, and if they ascertain that it belongs to the party who was defeated, they must execute the judgment. It must, however, be noted that they are obliged to make this examination summarily; nor can their decision prejudice the debtor, if they think that the property should be released as belonging to the party who raised the controversy, and not to him in whose name it was taken in execution; nor should he to whom it is delivered be immediately entitled to it by virtue of the decree, if the property is such that it can be recovered from him in the ordinary course of law. Hence, the result is that the matter will remain in its original condition and the property affected by the judgment can only benefit the aforesaid party by usucaption. It must, however, be said that where a dispute arises with reference to what has been taken in execution it should be relinquished, and other property be taken with respect to which no controversy exists.

(5) Let us see, if the property taken in execution has been pledged, whether it can be sold, so that the creditor having been satisfied, any remainder can be applied to the judgment. And, although a creditor cannot be compelled to sell property which he received by way of pledge, it can, however, be kept until execution on the judgment is issued, and if the property seized should find a purchaser, who, after the creditor has been satisfied, is ready to pay any balance remaining, the sale of this property also may be allowed.

It is not held that the condition of the creditor becomes any worse, as he has obtained that to which he was entitled, nor should his right of pledge be released before his claim has been satisfied.

(6) If, after the property taken in execution has been adjudged, any controversy arises with reference to the purchaser, let us see whether the magistrate who executed the judgment will have jurisdiction of the matter. I do not think that there is any ground for further inquiry, as, when the purchase has once been perfected, he who bought the property must assume the risk; and certainly, after the purchaser has been given possession, the duty of the judge is at an end.

The same rule will apply, if the property is adjudged to him in favor of whom the decision was rendered.

(7) If the purchaser to whom the property was adjudged by the court does not pay the price, let us see whether the magistrates, whose duty it is to execute the judgment, should call him to account. I do not think that they can go any farther, otherwise the proceedings would become interminable.

But what can we say in a case of this kind? Shall they render judgment against the purchaser, and issue execution against him? Or shall they immediately consider the case as decided? And what must be done if the purchaser denies that he bought the property, or alleges that he has paid for it? The better opinion will be for the judge not to interfere, and especially since the party in whose favor the judgment was rendered has no right of action against him who obtains the property, and besides suffers no wrong; as it is necessary for property taken in execution and sold to be paid for in cash, and not that the money shall be paid after a certain time. And, indeed, if the court should interfere, it ought only to do so to the extent of taking and selling the property which had been adjudged, just as if it had not been released from the lien of the judgment.

(8) Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution.

(9) But let us see whether only a credit which is acknowledged by the debtor can be levied on, or whether this can be done if he denies his liability. The better opinion is, that only that should be levied on which he admits to be due. If, however, he should deny that he owes the claim, it would be perfectly proper not to include it; unless someone, following the example of the seizure of movable property, should proceed still farther, and say that the judges themselves ought to make an investigation of the claim, as they do in the case of other personal effects, but it is stated differently in a rescript.

(10) Again, what shall we say where the judges themselves take action with reference to the claim, and require the amount of the debt to be paid on the judgment; or if they should sell the claim, as they are accustomed to do, where other personal property is taken in execution? It is necessary that they should do whatever seems to them best in order to execute the judgment.

(11) If the party against whom the judgment is rendered has money deposited with bankers, it can also be taken into execution. And further, if there is any money in the hands of anyone else, which should be paid to the party who lost the case, it is customary to levy on it, and apply it to the payment of the judgment.

(12) Moreover, money which has been deposited with anyone for safe-keeping, or placed in a chest for the same purpose, can be levied on for the purpose of satisfying a judgment. Again, where money belonging to a ward has been placed in a chest for the purchase of land, it can be taken by the judge charged with the execution of the judgment, without the permission of the Prætor, and employed for the payment of the claim.

16. The Same, On the Edict, Book LXIIL

There are persons who can only be sued for amounts which they are able to pay; that is to say, without deducting their debts. Such persons are those against whom suit is brought on account of some partnership, for a partnership is understood to include all property.

The same rule applies to ascendants,

17. The Same, On the Edict, Book X.

As well as to a patron, a patroness, their children and their ascendants. Likewise a husband, when sued for a dowry, is only liable for what he can pay.

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

A soldier also, who has had judgment rendered against him, is after his discharge only compelled to pay to the extent of his means.

19. Paulus, On Plautius, Book VI.

Where there are several persons to whom money is due for the same reason, the position of the most diligent is preferable; and no deduction is made of what is due to persons of equal rank, as is the case in an action De peculio; for, in this instance, the position of the one who first proceeds is the most advantageous. The indebtedness should not, however, be deducted where suit is brought against a father or a patron, especially where the debt is due to persons of the same condition, as to other children or other freedmen.

(1) He, also, against whom an action is brought on account of a donation, can only have judgment rendered against me for the amount which he is able to pay; and he, in fact, is the only one with reference to whom the indebtedness should be deducted. So far as those to whom money is due for the same reason is concerned, the position of the most diligent is preferable. And, indeed, I do not think that everything that he has should be extorted from him, but that care should be taken not to reduce him to poverty.

20. Modestinus, Differences, Book II.

A husband can have judgment rendered against him in the case of a dowry, to the amount that he is able to pay; but, when he is sued by his wife on account of some other contract, by a Constitution of the Divine Pius he can also have judgment rendered against him to the extent of his means.

Equity also suggests that this same rule should apply where a wife is sued by her husband.

21. Paulus, On Plautius, Book VI.

Moreover, just as in the case of a husband, so also a father-in-law cannot have judgment rendered against him beyond his ability to pay. If, however, an action based on his promise of a dowry is brought against the father-in-law, can judgment be rendered against him to the extent of his means? This seems to be equitable, but it is not our practice, as Neratius states.

22. Pomponius, On Quintus Mucius, Book XXI.

This, however, is understood to mean where an action is brought against a father-in-law, to recover a dowry which has been promised after the marriage has been dissolved. But if suit is brought to recover the dowry, during the continuance of the marriage, relief should be granted him, in order that he may not have judgment rendered against him for more than he is able to pay.

(1) With reference to what has been stated as to the case of partners, namely, that they can have judgment rendered against them to the extent of their pecuniary resources, the Prætor says in his Edict that he will act if proper cause is shown. This will take place to prevent relief being granted to anyone who denies that he is a partner, or who is liable on account of fraud.

23. Paulus, On Plautius, Book VI.

If an action to recover a dowry is brought against an agent of the husband, and judgment is rendered during the lifetime of the latter, it can only be for the amount which he is able to pay, for the defender of the husband can only have judgment rendered against him for that amount; but if the husband should be dead, the judgment will include the entire dowry.

24. Pomponius, On Plautius, Book IV.

If a surety has been accepted for the payment of the debt or the judgment, it will be no advantage to him if the person for whom he bound himself has judgment rendered against him for the amount which he is able to pay.

(1) If the husband should not be solvent, he can take advantage of the fact that he is not able to make payment; for this privilege is granted to him personally, and will not profit his heir.

25. Paulus, On the Edict, Book LX.

It must be noted that the heirs of such persons are not liable to the extent of their ability to make payment, but for the entire amount.

26. Ulpianus, On the Edict, Book LXXVII.

If litigants should agree as to the amount for which judgment shall be rendered, it will not be improper for the judge to decide accordingly.

27. Modestinus, Opinions, Book 1.

The Governor of a province rendered a decision that a party should pay compound interest, contrary to the laws and the Imperial Constitutions, and, on this ground, Lucius Titius took an appeal from the unjust decision of the Governor. As Titius did not take his appeal in accordance with law, I ask whether the money can be collected under the judgment. Modestinus answered that if the judgment was for a specified sum, there was nothing in the case stated why execution could not be issued.

28. The Same, Opinions, Book II.

Two judges rendered two different decisions. Modestinus gave it as his opinion that they should remain in suspense until a competent magistrate had confirmed one of them.

29. The Same, Pandects, Book VII.

The time granted to a party to satisfy a judgment rendered against him is also granted to his heirs and other successors, at least the time that has not expired, because the privilege is conceded rather to the case than to the person.

30. Pomponius, Various Passages, Book VII.

Where a certain sum of money is promised as a donation, and it is probable that the resources of the donor will be exhausted to such an extent that he will have almost nothing left, an action should be granted against him for what he is able to pay, so that enough may remain in his hands to enable him to live.

This rule ought, by all means, to be observed between children and parents.

31. Callistratus, Judicial Inquiries, Book II.

Time for payment should not only be granted to debtors who request it, but it should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim, according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, "Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution."

32. The Same, Judicial Inquiries, Book III.

Where a judge rules against constitutions which are cited, for the reason that he does not think them to be applicable to the case in question, he is not considered to have ruled against them improperly, and therefore an appeal can be taken from his decision; otherwise the matter will be held to have been finally determined.

33. The Same, Judicial Inquiries, Book V.

The Divine Hadrian, having been presented with a petition by Julius Tarentinus, in which he alleged that a decision had been rendered against him through the judge having been deceived by forged evidence, and by a conspiracy of his adversaries, who had corrupted witnesses with money, the Emperor stated in a Rescript that he was entitled to complete restitution, as follows: "I have ordered a copy of the petition which was presented to me by Julius Tarentinus to be sent to you. If he proves that he has been oppressed by a conspiracy of his adversaries, and that their witnesses have been corrupted with money, you will inflict severe punishment; and if the decision of the judge was induced by false representations, you will grant complete restitution."

34. Licinius Rufinus, Rules, Book XIII.

If anyone objects to a party against whom judgment has been rendered retaining any provisions, or his bed, a penal praetorian action should be granted against him; or, as some authorities hold, he can be sued for injury sustained.

35. Papirius Justus, Constitutions, Book II.

The Emperors Antoninus and Verus stated in a Rescript that, although it is not necessary to again begin proceedings on the ground of new documentary evidence having been discovered, they will, nevertheless, in matters relating to public business, permit such evidence to be used, if proper cause is shown.

36. Paulus, On the Edict, Book XVII.

Pomponius, in the Thirty-seventh Book on the Edict, says that where there are several judges investigating a matter involving freedom, and one of them is not sufficiently informed to render a decision, and the others agree; if the former swears that he is not sufficiently informed, and does not take further part in the proceedings, the others, who have agreed, can render judgment; because, even though the judge aforesaid may dissent, the decision of the majority will stand.

37. Marcellus, Digest, Book V.

All the judges are understood to have rendered a decision when they are all present.

38. Paulus, On the Edict, Book XVII.

When the number of judges is equal, and different opinions are given in a case involving freedom, judgment shall be rendered in favor of freedom (in accordance with the Constitution of the Divine Pius), but, in all other cases, judgment shall be rendered in favor of the defendant.

This rule must also be observed in criminal cases.

(1) If judges render decisions for different amounts, Julianus says that that for the smallest one must be adopted.

39. Celsus, Digest, Book HI.

Where three judges are appointed to hear a case, two of them cannot decide it, if one is absent, as all three have been ordered to hear it. If, however, the third is present, and does not concur with the others, the judgment of the two shall stand. For it is certainly true that all of them have rendered a decision.

40. Papinianus, Opinions, Book X.

It has been established that a party against whom a judgment has been rendered shall be deprived of the advantages attaching to the rewards given on account of the sacred crowns won in public contests, and that this money can be taken in execution for the satisfaction of the judgment.

41. Paulus, Questions, Book XIV.

Nesehnius Appollinaris: If you are about to make a donation to me, and I delegate you to pay my creditor, can an action be brought against you for the entire amount? And if you are sued for the entire amount, do you think that it will be different, if I should not appoint you to pay my creditor, but someone to whom I desire to give an equal sum? And what must be done in the case of one who, desiring to give a donation to a woman, promises a dowry to her husband?

The answer was that the creditor cannot be barred by an exception, although the person who was delegated can avail himself of one against him in whose name he made the promise. The case of the husband is the same; and especially so, if he brings an action during the existence of the marriage. And, as the heir of the donor can have judgment rendered against him in full, so the surety, who rendered himself liable for the donation, can also be sued for the entire amount, as well as anyone else to whom the donation was not given.

(1) A certain person donated a tract of land. If he did not deliver it, he can have judgment rendered against him just like any other possessor. If, however, he delivered the land, judgment may be rendered against him for the entire crop, if he has not consumed it, and he cannot be released from liability, even if he surrenders it immediately. If he has ceased to hold possession through fraud, the donee shall be sworn in court, and judgment shall be rendered in accordance with the sum to which he makes oath.

(2) A donor, against whom judgment has been rendered for the full amount of the donation, is not liable to a sum beyond his ability to pay, which is an advantage conferred by the constitutions.

42. The Same, Opinions, Book HI.

Paulus gave it as his opinion that the Prætor could not set aside a judgment which he had already rendered, but that he could, even on the same day when it was rendered, supply anything which had been omitted in the judgment, either for or against the defendant, and which had reference to matters contained therein.

43. The Same, Opinions, Book XVI.

Paulus also gave it as his opinion that where a number of parties had had judgment rendered against them for a certain sum of money, they could not by the same decision be compelled to pay any more than their respective shares. If judgment was rendered against three parties, and Titius paid his share, an action could Hot be brought against him under the same judgment to compel him to pay the shares of the others.

44. Scævola, Opinions, Book V.

Suit was brought against a female ward on a contract agreed to by her father and authorized by her guardian, and she lost her case. Her guardians afterwards caused her to reject her father's estate, and hence it passed into the hands of the substitute, or her co-heirs.

The question arose whether or not they would be liable by virtue of the decision. It was held that an action should be granted against them, unless judgment had been rendered against the ward through the fault of her guardians.

45. Paulus, Decisions, Book I.

Proceedings which have begun can be dismissed on the day of trial, if the parties consent, and the judge permits this to be done; provided that the matter or the suit has not been judicially terminated.

(1) Nothing can be done to increase or diminish penal damages after judgment has been rendered, unless this is authorized by the Emperor.

(2) No judgment can be rendered against minors who are not defended, and have no guardian or curator.

46. Hermogenianus, Epitomes of Law, Book II.

It is not forbidden to amend the pleadings, provided the tenor of the decision remains unchanged.

47. Paulus, Decisions, Book V.

In every case judgment must be rendered in the presence of all the parties interested, otherwise it will only take effect with reference to those who are present.

(1) Where parties who have been repeatedly summoned neglect to defend their cause before the Treasury, they are liable to an action on judgment. This is understood to be the case where, having been notified several times, they refused to appear.

48. Tryphoninus, Disputations, Book II.

Decisions must be rendered by the Prætor in Latin.

49. Paulus, Manuals, Book II.

A son who has been disinherited, or who has rejected the estate of his father, cannot have judgment rendered against him, on a contract of his own, for more than he is able to pay. Let us see to what extent he shall be considered solvent, whether this relates to what remains after all his debts have been paid, as in the case of one who is sued on account of a donation, or does it apply to a husband and a patron, whose indebtedness is not deducted? It is unquestionably the law that payment should be made as in the case of a husband or a patron, for we should be more indulgent to a donor than to one who is obliged to discharge an actual debt,

50. Tryphoninus, Disputations, Book XII.

In order to prevent a donor from becoming impoverished by his own liberality.

51. Paulus, Manuals, Book II.

If anyone should cause his property to be fraudulently sold, he will be liable in full.

(1) Where anyone refuses to admit a creditor to take possession of his property, which has been granted to him for its preservation, and the vendor pays the creditor all that he is entitled to, the question arises whether the debtor will be released. I think that he would act dishonorably who wishes to obtain a second time what he has already received.

52. Tryphoninus, Disputations, Book XII.

If suit is brought against a husband for having appropriated the property of his wife, although this proceeding is said to have its origin in the partnership existing between husband and wife, the husband should have judgment rendered against him for the entire amount, as in this instance, it is based on an illegal act and a crime.

53. Hermogenianus, Epitomes of Law, Book I.

The contumacy of those who refused to obey the summons of the court is punished by the loss of the case.

(1) He is considered to be contumacious who, after having been served with notice three times, or with the one which is ordinarily called peremptory instead of three, refuses to appear.

(2) He is not liable to the penalty for contumacy whom bad health, or business of great importance prevents from appearing.

(3) Persons are not held to be contumacious, unless being obliged to obey they decline to do so; that is to say, if they refuse to obey those who have jurisdiction over them.

54. Paulus, Decisions, Book I.

A peremptory summons issued against a warfl who is undefended, a person who is absent on business for the State, or a minor of twenty-five years of age, is of no force or effect.

(1) He who is summoned before a higher tribunal is not considered contumacious if he leaves the case unfinished in the lower court.

55. Ulpianus, On Sabinus, Book LI.

After a judge has once rendered his decision, he ceases to be judge so far as this case is concerned. It is our practice that a magistrate who has once rendered judgment for a larger or a smaller sum than was claimed cannot amend it, because he has performed the duty of his office well or ill, once for all.

56. The Same, On the Edict, Book XXVII.

According to a Rescript of the Divine Marcus, nothing can be demanded after a decision has been rendered, or a case has been decided by oath, or the defendant has confessed judgment in court, for the reason that a confession of judgment made in court is considered the same as a judgment.¹

¹ "Confessus in judicia, pro judicata habetur, et quodammodo sua sententia damnatur." — ED.

57. The Same, Disputations, Book II.

Advice was taken whether a decision rendered by a judge, who is under twenty-five years of age, is valid. It is perfectly correct to hold that such a decision is valid, unless he was less than eighteen years of age. If a minor holds the office of a magistrate, it must certainly be said that his jurisdiction ought not to be questioned. If a judge, who is a minor, should be appointed with the consent of the parties, and they know his age, and agree that he shall preside in the case, it is most properly held that his decision will be valid. Hence, if a Prætor or a Consul, who is a minor, expounds the law and gives an opinion, his act will be valid; for the Emperor who appointed him a magistrate by his decree conferred upon him authority to transact all the business of his office.

58. The Same, Disputations, Book VII.

Property which has been taken in execution and sold can be recovered, if this was done without a judgment having been previously rendered.

59. The Same, On All Tribunals, Book IV.

In rendering judgment, it is sufficient if the judge mentions the amount, and orders it to be paid or furnished, or makes use of any other term which has this signification.

(1) It is, moreover, set forth in a rescript, that even if the amount is not stated in the decision, but the party who brought suit mentioned it, and the judge says, "Pay what is claimed," or "As much as is claimed," the decision will be yalid.

(2) When magistrates render a judgment for the principal, and with reference to the interest add, "If any interest is due, let it be paid," "Or let what interest is due be paid," their judgment is not valid; for they ought to ascertain the amount of interest and establish it by their decision.

(3) If anyone, having received a peremptory summons, has judgment rendered against him after his death, it will not be valid, because a peremptory summons is of no effect after the death of the defendant; and hence the judge must take cognizance of the case, just as if matters remained unchanged, and decide as seems to him best.

60. Julianus, Digest, Book V.

The following question has been raised. One of several litigants who was attacked by fever withdrew from the case; if the judge renders a decision in his absence, will he be considered to have acted according to law? The answer was, that dangerous illness demands delay, even if the parties and the judge are unwilling to grant it. Moreover, an illness is considered to be dangerous which offers an impediment to the transaction of business by anyone. What, however, can be a greater impediment to a lawsuit than that revolt of the body against nature which is designated fever ? Hence, if one of the parties has a fever at the time when the decision is rendered, it is considered as not rendered at all. Still, it can be said that there is a considerable difference in fevers, for if a person is otherwise healthy and robust, and at the time when the decision was rendered has a slight attack of fever, or if he has a chronic or a quartan fever, and, nevertheless, is able to attend to his affairs, it may be said that his illness is not serious.

61. The Same, Digest, Book XLV.

In the action to enforce judgment, the plaintiff in favor of whom a decision was first rendered against the defendant is not entitled to preference.

62. Alfenus Varus, Epitomes of the Digest of Paulus, Book VI.

The question was raised whether a judge who had rendered an improper decision could render another on the same day. The answer was that he could not do so.

63. Macer, On Appeals, Book II.

It has often been stated in the Imperial Constitutions that judgments obtained by certain persons do not prejudice the rights of others. This, however, admits of a certain distinction, for in some instances a judgment rendered against certain persons does prejudice others who have knowledge of it, but, in other cases, does not injure even those against whom it was rendered.

A judgment is of no disadvantage to those who have knowledge of it, as where one of two heirs of a debtor has judgment rendered against him; for the right of the other to defend himself remains unimpaired, even if he knew that he was sued with his co-heir. Moreover, where one of two plaintiffs, having lost his case, acquiesces in the decision, the claim of the other is not prejudiced. This has been stated in a rescript. A decision rendered against certain parties injures others who are aware of it, when anyone who has a right to bring or defend an action before another suffers someone else to do so; as, for instance, where a creditor permits his debtor to bring suit involving the right to a pledge; or a husband allows his father-in-law, or his wife to institute proceedings to determine the ownership of property received by way of dowry; or a possessor permits the vendor to bring an action to establish the title to property which he has purchased. These points are understood to have been settled by many constitutions. For why should knowledge injure these parties, when it does not injure those previously mentioned? The reason for this is, that when anyone knows that his co-heir brings suit, he cannot prevent him from using any means which he may be able to employ in bringing or defending an action in which he is interested.

He, however, who suffers a former owner of the property in dispute to defend an action is, on account of his knowledge, barred by an exception, even though the suit was decided with reference to others; because the decision was rendered with his consent, so far as any right derived from the party appearing in the case was concerned. For if, through my intervention, my freedman is decided to be the slave or the freedman of another, my rights will be prejudiced.

A distinction, however, arises where Titius brings suit against you to recover a tract of land, which I allege belongs to me directly, and not through Titius; for even though judgment has been rendered against Titius with my knowledge, I still do not suffer any prejudice to my rights, as I do not claim the land by the same title under which Titius was defeated; and I cannot interfere to prevent him from availing himself of his alleged right, just as was the case with the co-heir above mentioned.

64. Scævola, Digest, Book XXV.

A certain man employed in transacting the business of others having had judgment rendered against him, appealed, and the case was not disposed of for a long time. The appeal, having been held to have been taken on insufficient grounds, and the execution of the judgment prolonged, the question arose whether interest should be calculated for the time of the original judgment until the appeal was decided. The answer was that, according to the facts stated, a praetorian action should be granted.

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TITLE II. CONCERNING CONFESSIONS.

1. Paulus, On the Edict, Book LVI.

He who confesses in court is held to have had judgment rendered against him, for he himself is, as it were, condemned by his own sentence.

2. Ulpianus, On the Edict, Book LVIII.

He who makes a mistake does not confess unless he is ignorant of the law.

3. Paulus, On Plautius, Book IX.

Julianus says that he who confesses that he owes a legacy should by all means be compelled to pay it, even if the property had never been in existence, or had ceased to exist. He, however, can be adjudged to pay the appraised value of the property for the reason that he who confesses is considered as having had judgment rendered against him.

4. The Same, On Plautius, Book XV.

If he against whom proceedings have been instituted under the Aquilian Law confesses that he has killed a slave, even though he may not have done so, and the slave is found to have been killed, he will be liable on account of his confession.

5. Ulpianus, On the Edict, Book XXVII.

Where anyone confesses that he owes Stichus, judgment should be rendered against him; even if Stichus is already dead, or died after issue was joined in the case.

6. The Same, On All Tribunals, Book V.

He who confesses that he owes a specified sum of money is considered as having had judgment rendered against him; but this rule does not apply where the amount is uncertain.

(1) When anyone admits that he owes an uncertain amount of money, or something which is not specifically designated, as, for instance, if he says that he is obliged to deliver either Stichus or a tract of land, he must be urged to make his allegations more definite.

The same rule applies to him who admits that he owes some property, to compel him to state the amount.

(2) If I bring an action to recover a tract of land which is mine, and you admit that it is mine, you will occtipy the same position as if a judgment had been rendered declaring the land to belong to me. And, in any other kind of civil or honorary actions, and in all interdicts for the production of property, or its restitution, including prohibitory interdicts, if the party who is sued admits the indebtedness, it may be said that the Prætor must follow the provision of the Rescript of the Divine Marcus, and everything which he confesses to be due is held to have been judicially decided. Therefore, in actions in which time is granted for the restitution of property, it will also be granted for restitution to the party who confesses judgment; and if restitution should not be made, the value of the property shall be appraised in court.

(3) If anyone admits that a claim is valid in the absence of his adversary, let us see whether he should not be considered to have had judgment rendered against him; because he who makes oath with reference to his services is not liable, and it is not customary to condemn anyone in his absence. It is certain that it is sufficient for the confession to be made in the presence of an agent, a guardian, or a curator.

(4) Let us see whether it will be sufficient for an agent, a guardian, or a curator, to make the confession. I do not think that it will be sufficient.

(5) In the case of a confession by a ward, we require the authority of his guardian, we grant complete restitution to a minor against his confession.

(6) Those who have confessed judgment are entitled to time for payment after making their confession, just as parties are after judgment has been rendered.

7. Africanus, Questions, Book V.

Where suit was brought to compel the execution of a trust, the heir having admitted that he owed it, an arbiter was appointed to see that the property was delivered, who ascertained that nothing was due. The question arose whether the heir could be released from liability. I answered that it was important to learn why nothing was due, for if the reason was that the trust was void, the heir would not be released. But if it was because the testator was not solvent, or the heir had alleged before the Prætor that everything was paid, and as a controversy had arisen, and a computation was difficult, a condition of affairs had caused the appointment of an arbiter, he could release the heir without exceeding his authority. For it is duty to discharge the heir, if, after the computation has been made, nothing is found with which to execute the trust; but, in the first instance, he should send the heir before the Prætor in order that he may be discharged.

8. Paulus, On Sabinus, Book IV.

A party who confesses judgment should not have a decision absolutely rendered against him, when he acknowledged that he owes property the existence of which is uncertain.

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TITLE III. CONCERNING ASSIGNMENT FOR THE BENEFIT OF CREDITORS.

1. Ulpianus, On the Edict, Book XVII.

The privilege of collecting money loaned for the repair of buildings is granted to a creditor.

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

In personal actions, those Who have subsequently made contracts, and whose money has been paid to former creditors, are subrogated to them.

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

He who has made an assignment of his property is not deprived of it before the sale; and therefore, if he is ready to set up a defence, his property will not be sold.

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

If he who makes an assignment afterwards acquires any property, he can be sued to the extent of his ability to pay.

(1) Sabinus and Cassius think that he who has made an assignment cannot any longer be annoyed, even by others to whom he is indebted.

5. Paulus, On the Edict, Book L.

He who repents of having made an assignment can, by setting up a defence, prevent it from being sold.

6. Ulpianus, On the Edict, Book LXIV.

If a man who has made an assignment acquires anything else of trifling value, after the sale has taken place, his property cannot be sold a second time. But, in what way can we make an estimate of this, in order to determine its value? Must it be determined by the quantity of the property which has been acquired, or by its quality? I think that the question should be decided with reference to the quantity, provided we know that something has been left with him through compassion, as, for instance, a sum to be paid monthly or annually for his support; and in such a case, it is not necessary for his property to be sold a second time, for he should not be deprived of his daily subsistence.

The same rule will apply if the usufruct of property from which he only receives a sum sufficient for his support has been either granted or bequeathed to him.

7. Modestinus, Pandects, Book II.

When the property of a debtor is sold; upon the demand of creditors, a second sale of his property is allowed to be made until his entire indebtedness is discharged, provided the debtor has made acquisitions sufficient to justify the Prætor in taking action.

8. Ulpianus, Book XXVI.

He who makes an assignment before he acknowledges his indebtedness, and before judgment is rendered against him, or he confesses in court, should not be heard.

9. Marcianus, Institutes, Book V.

An assignment can not only be made in court, but out of it. It is sufficient for it to be established by means of a messenger or a letter.

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TITLE IV. CONCERNING THE REASONS FOR POSSESSION BEING GRANTED.

1. Ulpianus, On the Edict, Book XII.

There are about three causes for which it is customary to place a creditor in possession of the property of his debtor: first, in order to protect it; second, to preserve a legacy; and third, in behalf of an unborn child. When possession is granted for the prevention of threatened injury, if security is not furnished, alj the property is not included, but only that from whose fall damage is expected to result.

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

The Prætor says: "I will order possession to be taken of the property of him who gave a surety for his appearance in court, if he does not permit access to himself, and is not defended."

(1) He does not give access to himself who acts in such a way as to prevent his adversary from approaching him. Hence, if the Prætor orders possession to be taken of the property of a person who conceals himself.

(2) But what if he does not conceal himself, but, being absent, is not defended? Can it be held that he does not permit access to himself?

(3) He is considered to be in a position to defend himself who does not render the condition of his adversary any worse by his absence.

(4) The words, "If he is not defended," are capable of a broader and more extensive interpretation, so that it is not sufficient if the party has begun to defend himself, and his defence does not continue; and it is no disadvantage to him if, at present, he offers to defend himself for the first time.

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

The following question is raised by Julianus. If the father of a minor holds property in joint ownership with Titius, and an action in partition is brought against the minor, but is not defended, there will be no reason, on this account, for judgment to be rendered against the father; but must the property of the father be sold, or can it be taken possession of for its preservation, in behalf of the plaintiff?

Julianus says that if the father has collected any of the crops, or caused the property in question to deteriorate, his own property can be sold. If, however, there is no reason why the property of the father should be sold, possession of that of the minor can be taken.

Marcellus, however, observes that it would be unjust for him who had not made any contract with the minor to be compelled to wait till he arrives at puberty; which opinion is reasonable. Therefore, as the contract is derived from the father, it must be held that it is not necessary to wait until the minor reaches the age of puberty.

(1) It can be said that there is a contract with a minor, where one has been entered into with a slave, for, in this case an action De peculio will lie against him; hence the rule should be adopted that an action must be granted in every case where one can be brought against the ward; and there is much more reason for doing this in the case of a slave, who was acting for the benefit of his master, or by his order, or has been appointed to represent him in some transaction.

(2) I think that where a contract has been made with his guardian, on account of which an action is granted against the ward, the better opinion is that there will be ground for the application of the Edict, just as if the contract had been made directly with the ward.

(3) If a minor becomes the heir of anyone, and, for this reason, is charged with the payment of a legacy, let us see whether there is ground for the application of this Edict. The better opinion is, as Marcellus says, that possession can be taken of the property of a minor, and that the creditors of the estate have the right to choose what course they prefer to adopt; for a minor under the age of puberty is held to make a contract when he accepts an estate.

4. Paulus, On the Edict, Book LVIII.

He, likewise, who interferes with matters connected with the estate, is considered to enter into a contract.

5. Ulpianus, On the Edict, Book LIX.

These things also occur whenever a minor is not defended by anyone, nor by a guardian or a curator, whether he has a guardian or not. If, however, someone appears who is ready to defend him, possession for the purpose of preserving the property will not take place.

(1) It should be known that the minor is not defended, and the Prætor must ascertain this fact, in order to permit possession to be taken of the property. This can be effected in the following manner. The guardians of the ward should be summoned before the Prætor, in order to undertake his defence. If he has no guardian, his relatives, or those connected with him by affijiity, or any other whom it is probable will not fail to conduct the defence of the male or female minor, either on account of their near relationship, or because of the affection they may entertain towards him, or her, or for any other reason, shall be called upon for this purpose. Even freedmen, if they "are qualified, can be summoned and required to conduct the defence. Where, however, they refuse to do so, or while not absolutely refusing, keep silent, the Prætor shall then grant possession, so long as the minor is not defended. As soon, however, as the defence of the minor is undertaken, the property will cease to be possessed under the order of the Prætor.

The same rule applies in the case of insane persons.

(2) The Prætor says: "If the male or female minor should reach the age of puberty and is properly defended, I shall order those who are in the possession of his or her property to relinquish it."

(3) Let us see what the words, "Properly defended," mean: whether it is sufficient for the party to appear and be ready to comply with the judgment, or whether security must be given under all circumstances. The terms of the Edict do not merely refer to the persons of the parties desiring to defend themselves, but it also has reference to the property itself. And the words, "Properly defended," mean to be defended by themselves, or by any other person whomsoever. If the defence is undertaken by another, security must be furnished, but if the minor defends himself, I do not think that this is requisite; therefore, if a defence is offered, the Prætor can eject the party in possession by means of an interdict.

6. Paulus, On the Edict, Book LVIL

A creditor is usually placed in possession, even where the money is promised conditionally.

(1) Where it is stated, "And let his property which is in possession of the creditors be sold, unless he is a minor, or absent on public business, without fraud," we must understand that the property of anyone who is absent with fraudulent intent can be sold.

(2) When anyone is captured by the enemy, his creditors should be placed in possession of his property, in such a way, however, that it shall not be sold immediately, but that, in the meantime, a curator-may be appointed.

7. Ulpianus, On the Edict, Book LIX.

Fulcinius thinks that creditors placed in possession of property for its preservation should not be supported by means of the said property.

(1) The Prætor says: "I will order the property of anyone who fraudulently conceals himself to be taken possession of and sold, if he is not defended in such a way as to be approved by a good citizen."

(2) For this Edict to become applicable, it will not be sufficient for the party to conceal himself, but this must be done with fraudulent intent. Nor in order to authorize possession and sale of the property, will it be sufficient for him to be guilty of fraud without concealment, but he must conceal himself for the purpose of committing fraud. This is the most frequent cause for granting possession, as it is customary for the property of debtors who conceal themselves to be seized.

(3) If anyone should obtain possession of the property of another on the ground that he is concealing himself, when in fact he has not done so, and sells it, the result will be that the sale will be held to be of no force or effect.

(4) But let us see what is understood by concealment. Concealment is not (as Cicero defines it) a dishonorable seclusion of one's self, for anyone can conceal himself for some reason which is not dishonorable; as for instance, if he fears the cruelty of a tyrant, the violence of enemies, or domestic sedition.

(5) He, however, who conceals himself fraudulently, but not on account of his creditors (although concealment of this kind defrauds his creditors), is still not in such a position that possession can be taken of his property on this ground, because he does not conceal himself with a view to defraud his creditors. Hence, the intention of the person in concealing himself must be ascertained, whether it is for the purpose of defrauding his creditors, or for some other reason.

(6) But what if he had two or more motives for concealment, and among them that of defrauding his creditors; could the sale of his property legally take place? I think the opinion should be adopted that, if there were several reasons for his concealment, and the intent to defraud his creditors was one of them, this would be prejudicial, and his property could be sold on this account.

(7) If, however, he intended to conceal himself from some of his creditors, and not from others; what shall we say in this instance? Pomponius very properly holds that it is not necessary to require that the debtor should conceal himself from all his creditors, but that, if he only conceals himself from one of them, with the intention of deceiving and defrauding him by means of his seclusion, this will be sufficient.

Then will all his creditors have a right to take and sell his property, because he remains concealed, that is to say, even those from whom he does not hide, merely because it is a fact that he is concealed; or can only that creditor whom he is avoiding do so? And indeed, it is a fact that he is hidden for the sake of committing fraud, even though he may not hide himself from me.

If he is only concealing himself from me, Pomponius thinks that it should be considered whether I alone will have the right to sell his property for this reason.

(8) The term "conceal himself" refers to concealment during a considerable time; just as the word factitare signifies to do anything frequently.

(9) Moreover, to such an extent does concealment demand the existence of fraudulent intent and desire of the party secluding himself, that it has been very properly held that an insane person cannot render himself liable to have his property sold on this ground, because a man who is not of sound mind cannot conceal himself.

(10) If it is evident that an insane person is not defended, a curator should be appointed for him, or permission to take possession of his property should expressly be granted. Moreover, Labeo says that if no curator or defender can be found for an insane person, or if the curator who has been appointed does not undertake his defence, he should then be removed, and the Prætor must appoint another curator, in order that no more property of the said insane person may be sold than is necessary.

Labeo holds that the same formalities should be observed as where an unborn child is placed in possession.

(11) It is clear that sometimes his property should be sold, after proper cause is shown, if the payment of his debts is urgent, and delay may injure his creditors. The sale, however, should be made in such a way that any surplus may be returned to the insane person; because the condition of a man of this kind does not differ greatly from that of a minor. This opinion is not unreasonable.

(12) The same rule must be said to apply to the case of a spendthrift, and to others who require the services of a guardian, but no one can properly say that they are trying to conceal themselves.

(13) It should be noted that anyone can stay in the same city and remain concealed, or in another city, and not be concealed. For, let us see whether one who is in another city, and shows himself in public, and appears everywhere, can be considered as lying concealed. Our practice at present is, that a person is held to conceal himself if he avoids meeting his creditors in any place where he may be, whether in the same town where they are, or in another, or in a distant country. In short, the ancient authorities were of the opinion that a person was to be considered as concealing himself, even if he was in the Public Forum, and hid behind columns of buildings, for the purpose of avoiding his creditors. Anyone can conceal himself from one creditor and not from another. Moreover, it was established that the creditor from whom the debtor conceals himself is the one who can sell his property.

(14) If a man who owes a debt payable after a certain time, or under some condition, conceals himself, his property cannot be sold before the time arrives, or the condition is complied with. For what difference is there between a person who is not a debtor, and one who cannot yet be sued ? The same rule must be adopted if there is no debtor; and it also applies where a creditor is entitled to an action which can be barred by an exception.

(15) If anyone who is liable to an action De peculia, on account of his son or his slave, conceals himself, it is our practice to permit his property to be seized and sold, even though nothing may be found in the peculium, because something might eventually be found there; and, at the time that the judgment is rendered, we ascertain whether there is anything in the peculium or not, for the reason that the action will lie even when there is nothing in the peculium.

(16) Let us see whether the property of a man who conceals himself to avoid appearing in a real action can be taken in execution and sold. An opinion of Neratius is extant in which he says that his property can be sold. This is also stated in a Rescript of Hadrian, and is our practice at present.

(17) Celsus, in reply to Sextus, gave it as his opinion that, if Titius is in possession of a tract of land which I intend to bring suit to recover and he, being absent, is not defended, it would be better for me to be placed in possession of the said land than to levy on all his property.

It must, however, be noted that Celsus was consulted with reference to a person who was absent, and not with reference to one who purposely concealed himself.

(18) Celsus also thinks that if a person from whom I intend to claim an estate conceals himself, the best plan would be to place me in possession of the property, which is held in the capacity of either heir or possessor. If, however, he was guilty of fraud in order to avoid remaining in possession, all his property should be levied on and sold.

(19) The Divine Pius stated in a Rescript, with reference to a man who, being in possession of an estate, secluded himself, that his adversary should be placed in possession of the property of the estate. In the same Rescript he also directed that he who is placed in possession of the property of an estate on account of the contumacy of a former possessor of the same shall be entitled to the income from said property.

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

If it remains uncertain for a long time whether there is any heir to an estate or not, after proper cause has been shown, permission should be granted for possession to be taken of the property for the purpose of preserving it. If the matter is urgent, or a condition must be complied with, it would, be well to obtain permission to appoint a curator.

9. Paulus, On the Edict, Book LVII.

He shall be one of the creditors.

(1) If one of two heirs deliberates as to whether he will accept an estate within the time prescribed by law, and the other refuses to accept it, let us see what step should be taken by the creditors. It is established that, in the meantime, they shall be placed in possession of the estate, for the purpose of taking care of it, until the heir who is deliberating determines whether he will accept or reject his share.

10. Ulpianus, On the Edict, Book LXXXI.

If a ward is present, but has no guardian, he should be considered as being absent.

11. Paulus, On Plautius, Book VIII.

Where a legacy or a trust has been conditionally bequeathed to a son under paternal control, it must be said.that he himself, as well as his father, ought to be placed in possession, for the reason that both of them anticipate a benefit.

12. Pomponius, On Quintus Mucius, Book XXIII.

When, for the purpose of preserving a legacy or a trust, or because security is not furnished us against threatened injury, we are permitted by the Prætor to take possession of property or he places us in possession in the name of an unborn child, we do not actually hold possession, but he merely grants us power to guard and watch over the property.

13. Papinianus, Opinions, Book XIV.

A man who is sent by the Governor of a province before the Tribunal of the Emperor is not compelled to defend any other action at Rome, and he still should be defended in the province; for the property of a person who is punished by temporary exile can be sold if a defender does not appear for him in court.

14. Paulus, Questions, Book II.

If anyone should prevent a creditor from obtaining possession of the property of his debtor, an action for the amount of the value of the property shall be granted against him in favor of the creditor.

(1) Where anyone is placed in possession of property for the purpose of preserving his legacy, he will not be permitted to take possession, if the condition on which the legacy is dependent is in suspense; and although it may fail to be fulfilled, still, the property bequeathed should be appraised, because it is to the interest of the legatee to have security.

(2) Moreover, a creditor, the payment of whose claim is conditional, is not placed in possession; because he only is given possession who has a right to sell the property under the Edict.

15. Ulpianus, Trusts, Book VI.

He who has received property in exchange resembles a purchaser, and he also who receives property in payment, and one who accepts the amount of its appraisement in court, as well as he who acquires anything by virtue of a stipulation, and not through liberality, occupy the same legal position.

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TITLE V. CONCERNING THE POSSESSION AND SALE OF PROPERTY BY JUDICIAL AUTHORITY.

1. Gaius, On the Provincial Edict, Book XXV.

The property of a debtor must be sold in the place where he should defend the action; that is to say,

2. Paulus, On the Edict, Book LIV. Where he has his domicile:

3. Gaius, On the Provincial Edict, Book XXIII.

Or where he made the contract. The contract, however, is understood not to have been made in the place where the transaction was concluded, but where the money should be paid.

4. Paulus, On the Edict, Book LVH.

If a slave has been appointed heir under a condition, or if there is a doubt whether he will become free, and the heir, it is not unjust for a decree to be issued, provided the creditors request it; but if he does not become the heir before a specified time, everything shall proceed just as if he had not been appointed at all. This happens very frequently where a slave is appointed heir under the condition of paying a certain person a sum of money, and no date was fixed for doing so.

This rule shall be observed with reference to the property of the estate, but as the slave will, at some time or other, obtain his freedom, the Prætor must preserve it for him, even if it is certain that he will never be the heir, or acquire praetorian possession of the estate.

(1) If, however, anyone appears to defend the deceased, either by promising that he will be the heir, or by permitting actions to be brought against him, the property of the decedent cannot be sold.

5. Ulpianus, On the Edict, Book LX.

A minor of twenty-five years of age, who has curators, but is not defended by them, and can find no one else to appear for him, must suffer the sale of his property, even if he does not conceal himself; although he who is not capable of protecting his own interests is not considered to have fraudulently hidden himself.

6. Paulus, On the Edict, Book LVIII.

If it is not advisable for a minor to keep the estate of his father, the Prætor will permit the property of the deceased to be sold, in order that anything which remains may be delivered to the minor.

(1) If the minor, before he rejects the estate, should transact any business relating to it, what he did should be considered valid, provided he acted in good faith.

(2) But what if, after having paid some of his creditors, his property should afterwards be sold by others? If inquiry is made as to whether there can be any recovery, Julianus says that, if proper cause is shown, the matter should be decided in such a way as to prevent the rights of a diligent creditor from being prejudiced by either the negligence or cupidity of another. But if both creditors pressed their claims for payment at the same time, and the guardian only paid you, it is but just that I should either obtain as much, or that you should contribute out of what you had received. This is what Julianus says. It is evident, however, that he refers to the case of a ward, where payment was made out of the property of the estate of his father. What course then should be pursued, if the ward had obtained the money for payment from some other source? Would he be required to return it or not? And should it be refunded by the creditor, or taken from the estate? Our Scævola says that if there is anything in the estate, it should be entirely deducted; just as in the case of a person who transacts the business of another. If, however, nothing remains in the estate, it would not be inequitable to grant an action for recovery against the creditor, for money which was paid without being due.

7. Gaius, On the Provincial Edict, Book XXIII.

The indebtedness of an estate is also understood to be that for which suit can not be brought against the deceased, as, for instance, where he promised to pay at the time of his death; as well as where someone who had become surety for the deceased paid the debt after he died.

8. Ulpianus,-On the Edict, Book LXI.

The usufruct of property is also included in the sale, because an usufructuary is embraced in the term "owner."

(1) If anyone has a right to take the crops from the land of his debtor, a creditor, who has been placed in possession of the land, can either sell or lease the said crops. This, however, can only be done where they have not been sold or leased beforehand; for if the debtor did this, the Prætor will sustain the sale or the lease made by him, even though the crops may have been disposed of for less than they were worth; unless this was done for the purpose of defrauding the creditors, for then the Prætor can authorize the creditors to make a new lease or sale.

(2) The same rule will apply to the income from other things, so that if they can be leased, this should be done; as for example, the wages of slaves, or the hire of beasts of burden, qr the revenue from other property which can be rented.

(3) The Prætor does not say anything about the time that the lease is to run. Therefore, free power is held to have been granted to creditors to lease the property as long as they may deem it advisable; just as they have the right to sell or lease according to their judgment, of course, where no fraud exists. They, however, are not responsible for negligence.

(4) If one of the creditors is in possession of the property, the-question of leasing it will be easily disposed of. But where there is not only one, but several creditors, it may be asked which of them should sell or lease the property? This will be readily decided if they are agreed, for all of them can lease it, or appoint one of their number to do so. If, however, they do not agree, then it must be said that the Przetor after proper cause is shown must select one of them to lease or sell it.

9. The Same, On the Edict, Book LXII.

The Prætor says: "I will grant an action in factum, where anyone is in possession of property, and for this reason has gathered the crops, and refuses to return them to the person to whom the property belongs, or is unwilling to refund to him any expenses which he may have incurred without fraud, or where the condition of the property has become worse through the fraudulent acts of the possessor."

(1) What the Prætor says with reference to the income must also be understood to refer to everything else which is obtained from the property of the debtor. And, indeed, this ought to be the case, for what would happen if the party in possession should obtain a penalty either through a submission to arbitration, or in some other way? He would be obliged to refund the penalty which he had obtained.

(2) When the Prætor says, "If he is unwilling to refund to him any expenses which he may have incurred without fraud," this means that, if the creditor himself has incurred any expenses, he should be reimbursed for them, provided he did not incur them fraudulently. Hence, it is sufficient for the expenses to have been incurred without fraud, even if their payment did not, in any way, benefit the property of the debtor.

(3) In the words, "To the person to whom the property belongs," the curator appointed for the sale of the property and the debtor himself are included, if the sale should not take place. An action is also granted to the creditor against the parties whom we have mentioned, if he incurred any expense in gathering the crops, or in supporting and caring for the slaves, or in keeping up and repairing the land, or in indemnifying a neighbor for threatened injury, or in defending a slave in a noxal action, provided it was not more advantageous to surrender the slave than to keep him. For if it is better to surrender him, the result will be that he cannot recover the expense of defending him.

(4) Generally speaking, it must be said that the party in possession can recover anything which he has expended upon the property, provided this was not done fraudulently. For he can no more bring the action based on voluntary agency than if, as a joint-owner, he had repaired a building held in common, because the creditor also is considered to have transacted the business in which he himself was jointly interested, and not that of another.

(5) Moreover, the question has been asked if, where lands have deteriorated without any bad faith on the part of the creditor; or rights attaching to them have been lost; or buildings have been demolished, or burned; or proper care has not been taken of the slaves or cattle; or possession delivered to another without fraudulent intent; whether the possessor will be liable. It is evident that he will not be liable, because he is not guilty of fraud. His position will be better than that of a creditor when a pledge is concerned, for he is responsible not only for fraud, but also for negligence.

The same rule applies to the curator of property, for he also is liable as creditors are.

(6) The Prætor also grants an action in factum against him who neither leased nor sold the crops on the land, and judgment will be rendered against him for what he has collected, because he neither sold nor leased it.

If, however, he has only collected as npteh as he would have done if the crop had been leased, or sold, he will not be liable for anything. He must, however, be responsible for the time In which either he himself, or someone else by his direction was in possession, until he relinquished it. For the creditor should not be considered responsible for not taking possession, or for relinquishing it, as he transacts the business voluntarily as his own. The appraisement should be made in proportion to the interest of the party who brings suit.

(7) These actions are not temporary ones, and they are granted for and against heirs and other successors. If the condition of the property is said to have become deteriorated through the fraud of the party placed in possession, an action on the ground of bad faith should be granted against him; but this will not be granted either against the heirs or other successors, after the expiration of a year, because it is derived from a criminal offence and involves a penalty:

10. Paulus, On the Edict, Book LIX.

Unless it is brought for the amount which came into his hands.

11. Ulpianus, On the Edict, Book LXII.

This action is also granted to the heir, because it includes the pursuit of the property.

12. Paulus, On the Edict, Book LIX.

When one of several creditors asks to be placed in possession of the property of a debtor, the question arises whether he alone who makes the request, can take possession. Or whether, where only one makes the request, and the Prætor grants it, all the creditors will be permitted to enter upon the property. It is more convenient to hold that when the Prætor places a party in possession he is considered to have granted permission not only to him who makes the request, but to all the creditors as well. This opinion is also held by Labeo. In this case, it is not considered that possession is acquired by a free person, because he whom the Prætor permits to take possession does not acquire anything for himself, but performs an act which is customary and therefore the others profit by it.

It is clear that if anyone who is not a creditor should ask for. possession, it can, by no means, be held that a creditor can acquire possession, because a demand of this kind is of no effect. It is otherwise, however, if a creditor, to whom permission has been given to take possession, afterwards receives payment of his debt, for the other creditors can follow up the sale of the property.

(1) He who is ordered to take possession is understood to be directed to do so in some place which is subject to the jurisdiction of the court.

(2) If possession cannot be taken on account of the nature of the property, or because land has been inundated, or is in the power of robbers, it is very properly held that there is nothing of which to take possession.

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

Although there may not be actual possession of the property, for the reason that there is nothing of which possession can be obtained, or because it cannot be acquired without a controversy, the creditor who has been placed in possession will be considered to be in the same position as if it had been obtained by him.

14. Paulus, On the Edict, Book LIX.

Where a creditor is placed in possession of the property of a debtor, a curator should be appointed, if there is any danger of rights of action being extinguished.

(1) An action is granted against a creditor who has been placed in possession, with reference to any property of the debtor which may have come into his hands. If he has not yet obtained anything, he must assign his rights of action. An action in factum will be granted against him, and everything included in one for voluntary agency must be surrendered by the creditor, if this action can be brought under the circumstances.

15. Ulpianus, On the Edict, Book LXII.

When several creditors are placed in possession of the property of a debtor, one of their number should be selected by the majority to see that his accounts are not tampered with. I think that a list of the documents in the hands of the debtor should be made by the creditors; not that they ought to copy the documents themselves, but that they should take notes for their own benefit, and, make, as it were, an inventory, showing the number of the said documents, and to what matters they relate; a course of proceeding which they should be allowed to follow with reference to all other property. Moreover, the Prætor should sometimes, where proper cause is shown, permit the creditors to make extracts from the said documents, if any good reason exists for doing so.

(1) Let us see whether the creditors should be permitted to review and examine the papers of the debtor only once, or several times. Labeo says that this privilege should not be granted more than once. He, however, holds that if anyone swears that he is not requesting this for the purpose of annoyance, and that he no longer has the extracts which he tabulated, he should be granted the power to make a second examination, but that this should not be done more than twice.

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TITLE VI. CONCERNING THE PRIVILEGES OF CREDITORS.

1. Gaius, On the Provincial Edict, Book XXIV.

When the property of a debtor is sold, a creditor who is a blood-relative is preferred to a stranger. Where there are several creditors, and all of them are not relations of the debtor, he to whom the largest sum of money is due shall be preferred.

2. Ulpianus, On the Edict, Book LXIII.

The question arose whether the funeral/expenses were only privileged, where the person whose property was sold was buried, or whether this was also the case where they were incurred for the interment of another. The present rule is that there will be ground for the privilege when anyone is buried (that is to say where it is necessary for an action for the funeral expenses to be brought, whether this is done for one whose property is about to be sold, or for someone who was indebted to another, and against whom such an action could have been brought, if he had lived).

We hold that it makes very little difference by what kind of a proceeding expense of this kind is recovered, whether it be one to collect funeral expenses, or a suit in partition, or any other, provided that the expenses were actually incurred on account of the burial. Therefore, no matter what action is brought for this purpose, the party will also be entitled to one based on funeral expenses. Hence, if, by reason of a stipulation, the expenses of the funeral were deducted, it must be said that there is ground for the privilege, provided no one entered into the stipulation for the purpose of renouncing the privilege.

(1) If a betrothed woman gives a dowry, and the marriage does not take place, although she can recover her dowry by an action, still it is only just that she should be allowed to enjoy this privilege, even though the marriage was not solemnized.

I think that the same rule will apply even if a minor under the age of twelve years is married, although she cannot yet be considered a wife.

3. Paulus, On the Edict, Book LX.

It is to the interest of the public for her to recover her entire dowry, in order that she may be able to marry when her age permits her to do so.

4. Ulpianus, On the Edict, Book LXXI.

In cases of this kind we also grant the privilege to the woman.

(1) If any person, at a time when he was not a guardian, transacts business as one, it is clear that there will be ground for the privilege. Nor does it make any difference whether he who transacts the business owes anything himself, or whether his heirs or other successors are debtors. Moreover, the ward himself is entitled to the privilege, but his heirs are not. It is, however, perfectly just that others to whom curators are given, as, for instance, those who are under age, or are spendthrifts,

5. Paulus, On the Edict, Book XC.

Or who are deaf or dumb,

6. Gaius, On the Provincial Edict, Book XIV.

Or idiotic,

7. Ulpianus, On the Edict, Book LV.

Should enjoy the same privilege.

(1) Where, however, a curator is appointed for the property of a person who is absent, or has been captured by the enemy, or while the appointed heirs are deliberating as to the acceptance of the estate, it is not necessary for the privilege to be granted, for the same reason does not exist.

8. Paulus, On the Edict, Book LX.

Where anyone, through motives of friendship, transacts the business of a minor under the age of puberty, he must preserve for him the privilege to which he is entitled, when his property is sold. This opinion I have accepted.

9. Ulpianus, On the Edict, Book LXIII.

When a curator is appointed for an unborn child, and the child has not yet been brought forth, the privilege will not take effect.

(1) The Divine Marcus issued an Edict as follows, "If a creditor should lend money for the repair of buildings, will he be preferred to other creditors to the extent of his loan?" This only applies to him who, by the direction of the owner of the property, furnished the money to the person who made the repairs.

(2) In selling the property of a banker, it has been established that those will come after the preferred creditors who, in accordance with the public faith, have deposited their money in the bank. Those, however, who have received interest on their deposits from the banker, will not be distinguished from the ordinary creditors; and this is reasonable, for it is one thing to lend money, and another to deposit it.

If, however, the money is still in existence, I think that it can be recovered by those who have deposited it, and that he who claims it will be preferred to the privileged creditors.

(3) Those creditors are given the preference whose money has come into the hands of the privileged creditors. But how shall we understand this to have been done? Is it as if the money immediately passed from the other creditors to those who are privileged, or shall we hold that it passed through the person of the debtor, that is to say, that it was paid to a privileged creditor before it was counted, and thus became the property of the debtor? Without being too exacting, this can be held to be the rule, provided payment was not made after a long interval.

10. The Same, On the Edict, Book LXXV.

The Prætor says: "Any contract which is made after the party whose property is sold has made up his mind to commit fraud, if he who made the contract is aware of this, will not admit of an action being granted on this ground."

11. Paulus, On the Short Edict, Book XVI.

Anyone who has lent money for the purpose of building, equipping, or even purchasing a ship, is entitled to this privilege.

12. Ulpianus, On the Duties of Consul, Book I.

If magistrates have placed anyone in possession for the purpose of executing a trust, they can appoint an arbiter for the purpose of selling any property which will become deteriorated by delay; in order that the price obtained for said property may be left in the hands of the beneficiary, by way of deposit, until it is ascertained what is due to him under the terms of the trust.

13. Javolenus, Epistles, Book I.

The head of a household substituted an heir for his son, who was under the age of puberty, in case the latter should die before reaching that age. The son rejected the estate of his father, and therefore the property of the deceased was sold by the creditors. An estate subsequently came to the son, who died after having accepted it. I ask whether the Prætor should not grant an action to the creditors of the father against the said minor, although he obtained the estate afterwards, or should an action be granted to the creditors of the father against the substitute, who obtained nothing from the father's estate which, of course, went into the hands of the creditors, and as the latter had no right to the property of the minor, it was no concern of the heirs whether his estate was entered upon or not, as the property found by the substitute in the estate of the son did not belong to his father's creditors.

This opinion perplexes me exceedingly, because it was decided by your preceptors that there was only one will. The answer was that the Prætor benefited the son, who did not accept the estate of his father, by not allowing an action to be granted against him, after the sale of his father's property (although he subsequently obtained an estate), to compel him to pay the creditors; but the same rule should not be observed with reference to the heir who was substituted for the son, as allowance was made for the honor of the latter, by causing the property of his father to be sold, rather than his own.

Therefore an action will be refused the creditors, as far as the property Which was afterwards acquired by the son is concerned, for the reason that it came to him from another than his father. But if the substitute for the son had entered upon the father's estate, after the minor had taken some action with reference to it, then the estates of the father and the son became identical, and the heir, even if unwilling, would be liable for all debts incurred by either the father or the son; and, as, after an obligation had been contracted, he could, by no means, prevent his own property from being sold, if no defence was made; so in like manner, the indebtedness of the father and the son could not be separated, in which case the result would be that an action must be granted to the creditors against him.

If, however, the substituted heir should not enter upon the estate, an action ought not to be granted to the creditors of the father with reference to the estate left by the minor, as neither the property of the latter should be sold to discharge the debts of the father, nor should the estate which the minor acquired be included in that of his father.

14. Paulus, On the Lex Julia, et Papia, Book V.

Aufidius says that statues erected in public places for the purpose of honoring anyone whose property has been sold by his creditors cannot be acquired by a purchaser, but are public, whether they have been donated for the purpose of ornamenting the city, or remain the property of him in whose honor they have been raised, and that, under no circumstances, can they be removed.

15. Papirius Justus, On the Constitutions, Book I.

The Emperors Antoninus and Verus stated in a Rescript that those who deny that their property has been legally sold should bring an action, and that they will vainly apply to the Emperor to set aside the sale.

16. Ulpianus, On All Tribunals, Book II.

If the creditors of an estate consider the heir to be suspicious, they can require him to give security for the payment of what is due to them, and the Prætor should take cognizance of the case. He ought not, however, without proper examination, to subject the heir to the necessity of furnishing security, unless after proper cause has been shown, he should decide to protect the interests of those who consider the heir as liable to suspicion.

(1) An heir is not considered suspicious in the same sense that a guardian is; for fraudulent acts or deceitful conduct with reference to the affairs of his ward render a guardian liable to suspicion, and not his want of means, while the latter alone will render an heir suspicious.

(2) It is clear that those who accuse an heir of being suspicious should only be heard within a short time after his acceptance of the estate. If, however, it is proved that they suffered him to remain in possession of the estate for a considerable period, and can accuse him of nothing criminal, as, for example, that he has been guilty of some fraudulent act, he should not, after a long time has elapsed, be reduced to the necessity of giving security.

(3) If the heir who is ordered to furnish security on the ground of being liable to suspicion does not obey the decree of the Prætor, the latter shall then order possession to be taken of the property of the estate, and permit it to be sold in conformity with the Edict.

(4) It is evident that if it should be ascertained that nothing belonging to the estate has been sold, and that no other objection can justly be raised against the heir except his poverty, the Prætor must be content to order him to take nothing from the estate.

(5) If the creditors cannot prove that the heir is suffering from poverty, they will be liable to him in an action on the ground of injury sustained.¹

¹ As already stated, it was one of the presumptions of Roman jurisprudence that in the administration of offices of trust, as well as in the giving of testimony, indigence and integrity were, generally speaking, incompatible; in other words, that the temptation to bribery was so great under such circumstances that no confidence was to be reposed in a man who was poor. This atrocious doctrine, unknown to the Common Law of England, was, to a certain extent, adopted by other nations whose legal systems were directly derived from that of Rome. — ED.

17. Paulus, Opinions.

The privileges of creditors are not estimated by the time, but by the nature of the debt; and if several of them hold under the same title they will share alike, although their claims may be of different dates.

18. Ulpianus, Rules, Book HI.

Where a minor is sued on a contract, and offers no defence, and, for this reason, his creditors obtain possession of his property, an amount should be deducted from it for his maintenance.

(1) As it is permitted to defend a debtor before his creditors have obtained possession of his property, this can also be done after possession of it has been obtained; and, whether he himself undertakes his defence, or someone else does so for him, security must be given that the decision of the court will be complied with, and possession relinquished.

19. Marcianus, Rules, Book V.

Anyone is entitled to be a privileged creditor, after the Treasury, if he has lent money for the purpose of building, repairing, arming, or equipping a ship, as well as where he brings suit to collect the price of a ship which has been sold.

20. The Same, On the Hypothecary Formula.

It is established that anyone placed in possession of the property of a debtor who is absent on public business can legally hold it until the debt is paid in full, if it appears that the debtor is fraudulently absent, under the pretense of attending to business for the State. Where, however, he is absent on public business, in good faith, and a creditor is placed in possession under a writ of execution, the proceeding is void, and hence he must relinquish possession of the property.

21. Ulpianus, On Sabinus, Book XLV.

It is settled that anyone who hides behind columns, in order to avoid his creditor, conceals himself. It is also held that he is concealing himself who goes into seclusion, that is to say, who secretes himself to avoid an action being brought against him. Such a person is he who leaves the city for the purpose of defrauding his creditors; for there is no difference, so far as concealing one's self is concerned, whether a man leaves the city, or, remaining at Rome, does not appear in public.

22. Papinianus, Opinions, Book X.

It has been decided that the City of Antioch, in Syria, retained the privilege conferred upon it by a special law, with reference to the pursuit of the property of a deceased debtor that had been taken in execution.

23. Paulus, Decisions, Book I.

A concubine and her natural children are excepted from property which can be sold by creditors.

(1) Where the public is the creditor, it is preferred to all others whose claims are evidenced by written instruments.

24. The Same, Decisions, Book V.

If no defence is made for a minor, his creditors are placed in possession of his property, but provision for his maintenance until he arrives at the age of puberty should be made out of said property.

(1) The property of anyone who has been captured by the enemy cannot be sold for the payment of his debts until he returns.

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

1. Ulpianus, On the Edict, Book LXIV.

It must be noted that a separation of the property of an estate is generally obtained by a decree of the Prætor.

(1) A separation is ordinarily granted to creditors for the following reasons, for instance, where a creditor has Seius for his debtor, and the latter dies, leaving Titius his heir; and Titius not being solvent, his property is offered for sale. The creditors of Seius allege that his estate is sufficient to satisfy their claims; and that the creditors of Titius should be content with the estate of the latter, and hence there is, as it were, a sale of the property of two different debtors. It may, however, happen that Seius was solvent, and would have been able to satisfy his creditors, if not for the entire indebtedness, at least for a portion of it. If, however, their obligations are merged with those of the creditors of Titius, they will not receive so much, because Titius was insolvent, and they will receive still less, because there are more of them. It is, therefore, perfectly just that the creditors of Seius who desire a separation of property should be heard, and obtain from the Prætor permission for the payment of each class of creditors separately.

(2) On the other hand, however, the creditors of Titius cannot obtain a separation of property, although anyone by obtaining another creditor may make the condition of his former creditor worse. Therefore, he who accepts the estate of my debtor will not, by doing so, make my condition any worse, because I have the right to obtain a separation of property. He, however, will render the condition of his creditors worse, if he enters upon an estate which is not solvent, for the creditors cannot demand a separation of property.

(3) Moreover, it should be noted that even if it is suggested that the estate had been encumbered by the heir, by means of a pledge, or an hypothecation, still, if the property belonged to the estate, he who obtained a separation of it would, for this reason, be preferred to a creditor to whom the property had been hypothecated. This was stated by Severus and Antoninus in a Rescript.

(4) A separation of property can also be obtained against the Treasury, or any municipality.

(5) The question arose whether the creditors of the heir could sometimes obtain a separation of property, if he had committed fraud against them when he entered upon the estate. No remedy is, however, afforded, for they must blame themselves if they entered into a contract with such a man, unless we hold that the Prætor can make use of an extraordinary proceeding for relief against the deceit of him who has contrived such a fraud.

It is, however, difficult to adopt such an opinion.

(6) If, however, an heir, even though he may allege that he thinks the estate is insolvent, should be compelled to accept and transfer it, and there is no one to whom he can deliver it, for this happens under some circumstances, we must come to his relief (if he asks it), against the creditors of the estate. This the Divine Pius stated in a Rescript, which enabled the property of the testator to be sold, just as if the estate had not been accepted. I think that this relief should also be granted to the creditors of the heir, if they request it, even if the heir himself did not ask for it, just as any separation of the claims is granted.

. (7) Let us see if, in the case where a minor under the age of puberty becomes the heir of his father, and dies before reaching that age, and property in the hands of the substitute, who had accepted the estate of the minor, is sold, the creditors of the father can demand a separation of property." I think that they can do so, and I go still further, and hold that the creditors of the minor can also demand a separation as against the creditors of his heir.

(8) In accordance with this, let us see if Primus should appoint Secundus his heir, and Secundus appoint Tertius his own heir, and the property of Tertius is sold by his creditors, what creditors can claim a separation of property. I think that if the creditors of Primus request this, they should be heard, against both the creditors of Secundus and Tertius; if the creditors of Secundus ask for a separation, they can obtain it against the heirs of Tertius, but not against those of Primus. In a word, the creditors of Primus can obtain a separation of property against all the other creditors; the creditors of Secundus can obtain one against the creditors of Tertius, but not against those of Primus.

(9) Where the property of a son under paternal control is sold by his creditors, and he has a castrense peculium, can a distinction be made between the creditors of the castrense peculium and the other creditors? They should all be admitted together, unless the claims of those who made the contract before the son entered the military service ought, perhaps, to be separated. I think that this opinion should be adopted. Therefore, if the creditors, who made contracts before the son entered the service, should sell the castrensian property, they cannot come in with the subsequent creditors. Moreover, if any of the property has been employed for the benefit of the father, the creditor may perhaps be prevented from touching the castrense peculium, as he has a right to bring a special action against the father.

(10) It should be noted that only those creditors can obtain a separation of property who have not stipulated with the heir with the intention of entering into a new obligation. If, however, they have approached him with this intention, they will lose the benefit of a separation of property, because, having obtained the claim of the heir, they cannot now separate themselves from him whom, to a certain extent, they have chosen as their debtor. But if, in selecting the heir as their debtor, they have required interest from him in that capacity, the same rule should be adopted.

(11) It is also asked whether they can obtain a separation of property, if they have received security from the heir. I do not think that they can do so, for they have followed him who have induced them to change. But what if they accepted insufficient security? They themselves are to blame for not having received sureties who were solvent.

(12) It must also be remembered that after the property of the estate is merged with that of the heir, a separation of property cannot be obtained, for where property is united and mingled together, a separation cannot be demanded. But what if it consisted of distinct tracts of land, slaves, cattle, or anything else which can be divided? Under these circumstances, a separation can be demanded, nor will anyone who maintains that the property is merged be heard, as tracts of land cannot be merged, unless the possession of different persons is so joined and mingled that a separation cannot be effected, which very rarely occurs.

(13) When we have stated that a separation of property cannot be obtained after a long period of time, this must be understood to mean that it cannot be demanded after five years from the time when the estate was accepted have elapsed.

(14) In all these cases, in order to determine whether a separation of property should take place or not, the opinion of the Prætor or the Governor, and that of no one else must be obtained, that is to say, the opinion of him who can grant the separation.

(15) If a creditor should take a pledge from the heir, a separation of property should not be conceded to him, because he looks to the heir for payment. For he should not be heard who asserts that the heir is liable, having with that intention accepted him as his debtor in any manner whatsoever.

(16) Where there are several creditors, some of whom have claims against the heir as their debtor, and others have not, and the latter obtain a separation, the question arose whether they can admit the former to share with them. I think that this will not profit them, for they should be included among the creditors of the heir himself.

(17) It should also be noted that it is commonly held that the creditors of an heir can have anything of the residue of the property of the testator applied to the payment of their claims, but that the creditors of the testator can obtain nothing from the property of the heir. The reason for this is, that they who obtained the separation can only blame themselves, if, when the property of the heir was sufficient to pay them, they preferred that the estate of the deceased should be separated for their benefit, but the creditors of the heir are not to blame for anything of this kind.

If, however, the creditors of the deceased petition to share in the property of the heir, they should not be heard; for the separation which they themselves demand removes them from all participation in the said property. But where the creditors of the deceased carelessly demand a separation of property, they are excusable, because their ignorance of the condition of the estate may be alleged as a just cause for their doing so.

(18) It must be remembered that a slave who has been appointed a necessary heir, with the grant of his freedom, can obtain a separation of property; so that if he does not meddle with the estate of his patron, he will be in a position to have whatever he may hereafter acquire separately together with anything which is due to him from the testator.

2. Papinianus, Questions, Book XXV.

Where the estate has been sold by the heir, a separation of it cannot legally be demanded, if there is no suspicion of fraud; for any acts performed by the heir in good faith, in the meantime, are usually considered to be legal.

3. The Same, Questions, Book XXVII.

A debtor became the heir of his surety, and the creditors of the latter sold his property. Although the liability of the security was extinguished, still, a separation of property will be granted on the demand of him to whom the surety was liable, whether he was the only creditor of the estate or whether there were several. For the rule of law which excludes the obligation of the security on account of the principal obligation, which is the greater, should not prejudice the rights of the creditor who has diligently provided for his own interest.

(1) But what if, after the separation of the property of the surety, the stipulator should be unable to collect his entire claim from the estate? Can his share be demanded along with those of the other creditors of the heir, or must he remain content with the property which he preferred to be separated? As, however, this stipulator could have shared with the creditors of the debtor in any balance which remained, if the estate of the surety had not been accepted by the creditor of the principal debtor, after the sale of the property of the surety, reason does not permit that he should be excluded in the case proposed.

(2) But with reference to every other creditor who has obtained a separation of property, it is more advantageous to hold that if he can not collect his entire debt from the estate, he can still recover something from the property of the heir, if the personal creditors of the heir have been satisfied, because there is no doubt that he should be admitted to share with the creditors of the heir, after those of the estate have been satisfied.

4. The Same, Opinions, Book XII.

A separation of property shall also be granted to creditors where the debt is due after a certain time, or under some condition, on account of which they have not yet been able to bring suit to recover the money, since provision has also been made for them by double security.

(1) It is established that legatees are considered to have a lien only upon that part of an estate which remains after the debts are paid.

5. Paulus, Questions, Book XIII.

If the creditors of an estate obtain a separation of property and the estate is found to be insolvent, but the heir is solvent, they cannot have recourse to the latter, but must adhere to the separation which they have already demanded. If, however, the heir should acquire property after the separation has been obtained, and any of it is derived from the estate, they who obtained the separation must, along with the personal creditors of the heir, be admitted to share in what had been acquired. But where their claims have been satisfied, any residue shall be paid to the creditors of the heir; but if the latter acquires any property from some other source, the creditors of the estate will not be permitted to take it. If, however, the personal creditors of the heir are paid in full, some authorities think that anything which remains should be turned over to the creditors of the estate; but I do not accept this opinion, for when they demanded a separation of property they no longer looked to the heir personally for payment, but had recourse to the estate, and, as it were, sold the property of the estate, which was not capable of augmentation.

I thinks that the same rule should be held to apply, even if the creditors were deceived with reference to the separation of the property, and obtained less than the personal creditors of the heir. The latter, however, have, as their security, his property and his person, which they can obtain during his lifetime.

6. Julianus, Digest, Book XLVI.

Whenever an heir is insolvent, it is equitable that not only the creditors of the testator, but also those to whom bequests have been made, should obtain a separation of property, so that, after the claims of the creditors have been fully satisfied, the legatees may obtain their legacies entirely, or in part.

(1) If a freedwoman, who has been appointed heir, demands praetorian possession in accordance with the provisions of the will of the testator, who was not solvent, the question arises whether her own property should be separated from that of the estate. The answer is that relief should be granted to her patron, to prevent him from being oppressed by the indebtedness which his freedwoman contracted by retaining possession of the estate in accordance with the provisions of the will.

7. Marcianus, Rules, Book II.

The creditors of an estate who have filed claims against the heir can, nevertheless, obtain a separation of property, because they took this step from necessity.

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TITLE VIII. CONCERNING THE APPOINTMENT OF A CURATOR OF PROPERTY.

1. Paulus, On the Edict, Book LVII.

Where an heir is appointed under a condition, he should be forced to comply with it, if he can do so; but if he says that he will not accept the estate, even if the condition is fulfilled, the property of the deceased must be sold by his creditors.

(1) If, however, the heir can do nothing, a curator of the estate should be appointed, or the property sold.

(2) If there is a considerable amount of indebtedness due from the estate, which may be increased by the addition of a penalty, the debts should be paid by the curator; just as is usually done when a pregnant woman is placed in possession in the name of her unborn child, or the heir is a minor who has no guardian.

2. Ulpianus, On the Edict, Book LXV.

In the appointment of a curator, it is our practice to apply to the Prætor, in order that he may appoint one or more curators with the consent of the majority of the creditors, or to the Governor of the province, if the property is to be sold therein.

(1) Anything which may have been done or performed by the curator or curators appointed, that is, any acts or deeds, or any business which has been transacted, should be ratified. They are entitled to actions against others, and praetorian actions will lie against them. If the curators appoint anyone to bring a suit, or defend one, as the case may be, the security exacted from him with reference to the ratification of his acts, or the payment of the judgment, shall not be taken in the name of him whose property is sold, but in that of the curator himself, who appointed him.

(2) But where several curators are appointed, Celsus says that-they must sue and be sued together, and not separately. If, however, the said curators are appointed for different districts, one, for instance, for property in Italy, and another for property in a province, I think that they will have control over their respective districts.

(3) The question arises whether a curator can be appointed against his will. Cassius says that no one can be compelled to become a curator of property against his consent, which is correct. Therefore, one must be found who is willing, unless imperative necessity exists; and the authority of the Emperor must be invoked for a curator to be appointed against his will.

(4) It is not absolutely essential that the person appointed curator should be a creditor; but those who are not creditors can be appointed.

(5) If there are three curators, and one of them did not transact any business relating to his office, can an action be granted against him? Cassius thinks that no restriction should be imposed upon a plaintiff under such circumstances, and that any one creditor, who desires to do so, can institute proceedings against him. I think that the opinion of Cassius is perfectly correct, and that what has been obtained from the estate, and not what has come into the hands of one of the curators, should be taken into consideration.

This is our practice, unless the curator was appointed against his consent; for, if this is the case, it must be held that an action should not be brought against him.

3. Celsus, Digest, Book XXIV.

Where several curators are appointed for the property of the same person, an action to recover the entire amount will be granted against any one of them that the plaintiff may select; just as each one of them can sue a debtor of the estate for the entire amount he owes.

4. Papirius Justus, On the Constitutions, Book I.

The Emperors Antoninus and Verus stated in a Rescript that where property has been sold by a curator under the Decree of the Senate, no action would lie against a fraudulent debtor for any act committed before that time.

5. Julianus, Digest, Book XLVII.

If a debtor fails in business, and his creditors assemble and select one by whom his property may be sold, the amount due to each one of them to be paid from the proceeds of the sale, and another person afterwards appears, who alleges that he also is a creditor, he will not be entitled to an action against the curator, but he, along with the curator, can sell the property of the debtor, so that whatever is realized from the sale of .the property by the curator and the said creditor may be paid to all the creditors in proportion to their claims.

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TITLE IX. CONCERNING RESTITUTION WHERE FRAUDULENT ACTS HAVE BEEN COMMITTED AGAINST CREDITORS.

1. Ulpianus, On the Edict, Book LXVI.

The Prætor says: "I will grant an action to the curator of property, or to anyone else to whom it is necessary to grant one, in a case of this kind, within the year in which he has a right to institute such a proceeding, where any act has been committed for the purpose of fraud with anyone who was not ignorant of said fraud, and I will also maintain this right of action against ^£he party himself who committed it."

(1) The Prætor was compelled to introduce this Edict in order to protect the rights of creditors, by revoking any alienations of property which had been made for the purpose of defrauding them.

(2) The Prætor says, "where any act has been committed for the purpose of fraud." These words have a general application, and include every kind of fraud which is committed, as well as every alienation, and every contract. Therefore, everything that is done for the purpose of committing fraud, no matter what it may be, is considered to be revoked by these words, for they have a broad application. If, therefore, the debtor should alienate any property, or give a release from liability for a debt to anyone or release anyone from an agreement;

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

The same rule should be adopted. And if he releases a pledge, or pays any person for the purpose of defrauding his creditors:

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

Or if he provides one who owes him with an exception, or obligates himself for the purpose of defrauding his creditors; or pays money; or commits any other act to cheat them; it is obvious that the Edict will become operative.

(1) We should understand as fraudulent acts not only such as the debtor performs while making a contract, but also where he intentionally fails to appear in court, or permits an action to come to an end, or does not bring suit against a debtor, in order that he may be released by lapse of time, or intentionally loses an usufruct or a servitude.

(2) This Edict also applies to a person who commits any act for the purpose of parting with property which he has in his hands.

4. Paulus, On the Edict, Book LXVIII.

A debtor is understood to intend to defraud his creditors who does not do what he ought to do, for instance, if he does not make use of servitudes to which he is entitled.

5. Gaius, On the Provincial Edict, Book XXVI.

Or if he should abandon some of his own property, in order that anyone may obtain it.

6. Ulpianus, On the Edict, Book LXVI.

This Edict, however, is not applicable to a person who does not take means to acquire property which he can obtain, for it only has reference to such as diminish their patrimony, and not to those who act in such a way as not to become more wealthy.

(1) Therefore he who fails to comply with the condition imposed, in order that a stipulation may not become operative, does not, by doing so, cause this Edict to take effect.

(2) Hence, if anyone rejects an estate whether it conies to him by law or by the terms of a will, he will not give cause for the application of the Edict, for while he refuses to acquire property, he does not diminish his own patrimony.

(3) In like manner, it must be said that, if a debtor emancipates his son, in order to enable him to accept an estate according to his own judgment, this Edict will not apply.

(4) The opinion also stated by Julianus should be adopted; that is, if a debtor refuses to accept a legacy, the Edict will not apply.

(5) If a debtor should sell his slave, who had been appointed an heir, in order that he might enter upon the estate by the direction of the purchaser, and not the sale, but only what related to the acceptance of the estate was fraudulent, the Edict will not apply, because he has a right to reject the estate. If, however, any fraud attached to the sale of the slave, it shall be revoked; just as if the debtor had fraudulently manumitted him.

(6) It was stated by Labeo that anyone who receives what belongs to him should not be considered to have committed fraud, that is to say, where anyone receives a debt to which he is entitled; for it would be unjust to hold that a debtor whom a Governor forces to make payment against his will can refuse to do so with impunity.

This entire Edict has reference to contracts in which the Prætor does not intervene, as, for example, those involving pledges and sales.

(7) It should be noted that Julianus has said (and this is also our practice) that where anyone receives money that is due to him, before possession is taken of the property of the debtor, even though he is perfectly aware that the latter is insolvent, he does not come within the terms of this Edict, for he has only provided for his own interest.

Any creditor, however, who receives what is due to him after the property of the debtor has been levied on, can be compelled to contribute his share, and be placed on the same footing as the other creditors; for he ought not to deprive them of anything after the property has been taken in execution, as, for this reason, the position of all the creditors becomes the same.

(8) This Edict punishes him who, knowing that a debtor has the intention of cheating his creditors, receives from him the property of which they have been defrauded. Hence, if any act is done for the purpose of defrauding creditors, and he who received the property was ignorant of the fact, the provisions of the Edict are not considered to apply.

(9) Moreover, it must be noted that where anyone either purchases or stipulates for any property belonging to a debtor, who has the intention of cheating his creditors (even though the latter may give their consent), or makes any other contract, he will not be held to have done anything to defraud his creditors; for no one is considered to defraud those who are aware of the fact, and give their consent.

(10) Where any business is done with: a minor for the purpose of defrauding his creditors, Labeo says that it must, by all means, be annulled, if the creditors are defrauded; for the reason that the ignorance of a minor, which results from his age, should not be injurious to his creditors, and profitable to himself. This is our practice.

(11) In like manner, we say where a donation is fraudulently made to anyone, there should be no inquiry as to whether the person to whom the article was given was aware of the nature of the transaction or not, but only whether the creditors were defrauded. He who was ignorant of the fraud is not understood to have been injured by it, as he only loses a source of gain, and no loss is inflicted upon him. Against those, however, who have experienced the generosity of one whom they did not know to be insolvent, an action should only be granted to the extent to which they have become pecuniarily benefited, and no farther.

(12) In like manner, if a slave receives an article from a person whom he himself knows to be insolvent, but his master is not aware of the fact, the question arises, will the master be liable? Labeo says that he will be liable to the extent of being compelled to return what came into his hands; or an action De peculio can be brought against him, or one De in rem verso, if he has profited by the transaction.

The same rule should be adopted in the case of a son under paternal control. If, however, the owner of the slave was aware that the debtor was insolvent, he can be sued in his own name.

(13) Again, if the necessary heir has paid the legacies, and afterwards his property is sold, Proculus says that, even if the legatees were ignorant of his insolvency, an equitable action should, nevertheless, be granted. There is no doubt as to this.

(14) The available days of the year, during which suit can be brought from the date of the sale, should be computed by us in this action.

7. Paulus, On the Edict, Book LXH.

Where a debtor, with the intention of defrauding his creditors, sells a tract of land for less than its value to a purchaser who is aware of the fact, and then the creditors, to whom an action to set aside the sale was granted, claim the land, the question arises whether they should refund the price. Proculus thinks that the land must by all means be returned, even if the price is not refunded. The opinion of Proculus is confirmed by a rescript.

8. Venuleius Saturninus, Interdicts, Book VI.

From this it may be gathered that not even a part of the price paid by the purchaser should be returned to him. It can, however, be said that the matter ought to be investigated by an arbiter, to the end that he may order the money to be refunded, if it still is among the effects of the debtor; because, in this way, no one will be defrauded.

9. Paulm, On the Edict, Book LXII.

A certain man knowingly purchased an article from a debtor whose property had been taken in execution, and then sold it to a bona fide purchaser. The question arose whether an action could be brought against the second purchaser. The opinion of Sabinus, that a bona fide purchaser is not liable, is the better one; because fraud should only injure him who commits it, just as we hold that a purchaser will not be liable if, being ignorant of the facts, he bought the property from the debtor himself. But he who bought it fraudulently, and afterwards sold it to a bona fide purchaser, will be liable for the entire sum which he received for the property.

10. Ulpianus, On the Edict, Book LXX1II.

The Prastor says: "Where Lucius Titius, with your privity and to your advantage, has disposed of any property for the purpose of defrauding his creditors, so that an action under my Edict will lie against him for the property in question, when no more than a year has elapsed, as an action with reference to said property can be brought, you must grant restitution, after proper cause has been shown; and even if you were not aware of the fact, I will grant an action in factum."

(1) When anything is done for the purpose of defrauding creditors, it is only set aside where fraud actually results, that is to say, where the creditors whom the person intended to defraud have sold his property. If, however, he has satisfied the claims of those whom he intended to defraud, and has obligated himself to other creditors, or if he has simply paid those whom he intended to defraud, and afterwards become indebted to others, annulment will not take place; but if he satisfied the claims of the first ones whom he intended to defraud by paying them the money of the others whom he had no intention of defrauding, Marcellus says that there will be ground for the annulment of the transaction.

This distinction is mentioned in a Rescript of the Emperors Severus and Antoninus, and is recognized in our present practice.

(2) Where the Prætor says, "aware of the fact," we must understand this to mean that I know that you are committing a fraud; for if I merely know that you have creditors, it will not be sufficient to render me liable to an action in factum, for I must have participated in the fraud.

(3) If anyone is not a participant in a fraud, and still, at the time of the sale of the debtor's property, should be summoned by the creditors and notified by them in the presence of witnesses not to purchase the property, will he be liable to an action in factum if he should do so? The better opinion is that he will be liable, for anyone who is notified not to purchase in the presence of witnesses, and does so, is not free from fraud.

(4) It is, however, otherwise where anyone knows that another has creditors, and makes an absolute contract with him, without being aware of the fraud; for he is not considered to be liable to this action.

(5) The Prætor says, "aware of the fact," that is to say, he is meant against whom this action can be brought. But what if the guardian of a ward was aware of the fraud, and his ward was not? Let us see whether there will be ground for an action based upon the knowledge of the guardian, and whether the same rule will apply to the curator of an insane person, or a minor? I think that the knowledge of the guardian or the curator will only injure the ward or the minor to the amount of property which comes into their hands.

(6) It should also be noted that, where it is alleged that a sale of property made for the purpose of defrauding creditors can be set aside, if the creditors are the same, even if one of them is of the number of those who have been defrauded (whether he is the only one remaining, or the claims of the others along with his have been satisfied), it must be held that there will still be ground for this action.

(7) It is certain that it can be brought, even if the contracting party knew that one of the creditors had been defrauded, although he was not aware that this was also the case with the others.

(8) But what if he who was supposed to have been defrauded has been paid; will he be liable to an action for the reason that the remaining creditors have not been the victims of fraud? I think that this opinion should be adopted. And if anyone, for the purpose of avoiding an action, should say, "I tender what is due to him whom I know to be a creditor," he should not be heard.

(9) If the person intending to commit fraud has an heir, and the property of the latter is sold by his creditors, as this has no reference to the property in question, this action will not lie.

(10) If a son, who has the right to reject an estate, should commit some act for the purpose of defrauding the creditors, and obtain complete restitution because he interfered in the affairs of the estate, or if even a voluntary heir should commit a fraudulent act for the same purpose, and is entitled to complete restitution on account of his age, or for any other good reason, it must be said that an equitable action can be brought against him. The same rule applies to a slave who is a necessary heir.

Labeo, however, says that this rule should be adopted with an exception, for if the creditors sell the property of an estate, and the necessary heirs commit any act with reference to it during the absence, or with the consent of the creditors, the fraudulent act of both parties, that is to say, of the testator and his slaves, will be revoked. If, however, the creditors permitted the necessary heir to act, and had faith in him, or, tempted by the prospect of a high rate of interest, or for some other reason, were induced to trust him, it must be held that any sale of the property made by the testator ought not to be set aside.

(11) If a minor, under the age of puberty, becomes the heir of his father, and dies, and his property is sold by his creditors after a separation has been obtained, any fraudulent sale made by the ward, or by his guardian or curator can be set aside.

(12) When a debt is due to me within a certain time, and the person intending to commit a fraud pays it before it is due, it must be said that the benefit which I have obtained from being paid in advance will afford ground for an action in factum, for the Prætor understands that the fraud was committed with reference to the time.

(13) Where a creditor has not been paid, but has received a pledge as security for an old claim, he will be liable to this action; as has been frequently set forth in constitutions.

(14) If a woman, with a view to defrauding her creditors, marries one of her debtors, and releases him from his obligation for the purpose of obtaining the amount as dowry, in fraud of her creditors, this action will lie; and, by means of it, all the money which her husband owed can be collected. The woman will not be entitled to bring suit to recover her dowry, for the dowry was constituted in fraud of her creditors; and this is absolutely certain, and has been frequently promulgated in constitutions. The effect of the action will be to reestablish unimpaired the stipulation from which her husband had been released.

(15) By means of this action an usufruct, as well as a stipulation in the following terms, "Do you promise to pay ten aurei every year?" can be enforced.

(16) If I pursue and arrest a debtor of mine who has several creditors, and had absconded, and I recover the money which he has stolen, and take from him what belongs to me, it was the opinion of Julianus that it made a great deal of difference whether this was done before the creditors of the debtor were placed in possession of his property, or afterwards. If it was done before, an action in factum will not lie; if it was done afterwards, there will be ground for the action.

(17) If the property of a deceased person has been adjudged to anyone, by the Constitution of the Divine Marcus, it must be held that for the purpose of preserving freedom this action will not lie; for he to whom it was adjudged succeeds to the estate with the understanding that whatever was done by the deceased was valid.

(18) The year during which the action in factum must be brought is reckoned from the day of the sale of the property.

(19) "By means of this action, the property must be restored, but, of course, with any charges imposed upon it.

(20) The income derived from the property, not only that which has been collected, but also what could have been collected by the person guilty of fraud, is included. This rule, however, is capable of modification, for any expenses which have been incurred should be deducted, as he cannot be compelled by the decision of the court to restore the property, before he has been reimbursed for his necessary expenses.

This rule should also be adopted where any other person has incurred expense with the consent of the sureties and the creditors.

(21) I think that the better opinion is that the offspring of a slave is included in this action.

(22) Moreover, generally speaking, it should be noted that by this action everything should be restored to its former condition, whether it consists of property or of obligations, so that whatever may have been done is set aside, just as if no release had been made. In consequence of this, any profit which would have been obtained in the meantime by the debtor, if no release had been given, must be returned; or if interest, which was not included in the stipulation, was not paid; or if the contract was of such a nature that interest could be collected under it, even if it was not agreed upon.

(23) If the obligation was conditional or had reference to a certain time, it must be re-established with the condition or the time. If, however, it was of such a character that the time upon which it was dependent had elapsed, it can be said that restitution could be asked for within the time which remains, for the discharge of the obligation, without waiting until the year had expired.

(24) This action can be brought after the year has elapsed, where any property which has come into the hands of him who is the object of it is involved; for the Prætor thought that it would be unjust to permit him to have any benefit who had profited by the fraud, and therefore he decided that he should be deprived of all gain. Therefore, whether the party in question himself committed the fraud, or someone else profited by it, the action can be brought with reference to. whatever has come into his hands, or if he has acted fraudulently to avoid acquiring it.

(25) This action is granted in favor of the heir and other successors, and against the heir and persons of this kind.

11. Venuleius Saturninus, Interdicts, Book VI.

Cassius introduced an action having reference to property which comes into the hands of an heir.

12. Marcellus, Digest, Book XVIII.

If a father grants the free administration of his peculium to a son under his control, he is not held to have done so for the purpose of alienating it to defraud his creditors, for he himself has not the power to make an alienation of this kind. If, however, the father should grant the peculium, to his son with a view to defrauding his creditors, he will be held to have done this himself, and there will be sufficient ground for actions to be brought against him. For the creditors of the son are also the creditors of the father, as they will be entitled to an action of this kind in case it is necessary for money to be paid to them out of the peculium.

13. Paulus, On the Edict, Book LXVIII.

It is established that anyone who holds a pledge is not liable under this action, for he is in possession of it in his own right, and does not hold it for the purpose of preserving the property.

14. Ulpianus, Disputations, Book VI.

By this action in factum, not only the ownership of the property, but also the rights of action of the debtor are restored. Therefore, it will lie to compel those who are not in possession of the property to restore it, and also against those who have a right of action to compel them to assign it. Hence, if he who is guilty of fraud has introduced Titius, in order that he may transfer the property to him, he should be compelled to assign his right by an action on mandate. Therefore, if the fraudulent debtor gives a dowry for his daughter to anyone, knowing that his creditors are defrauded thereby, the daughter will be liable, and will be forced to assign the right of action to recover the dowry, to which she is entitled against her husband.

15. Julianus, Digest, Book XLIX.

If anyone who has Titius as his creditor, being well aware that he is not solvent, makes a testamentary grant of freedom, and then, after having paid Titius in full, has Sempronius as his creditor, and dies, without making any change in his will, the grants of freedom should be confirmed, even if the estate is not insolvent; because, for grants of freedom to be rescinded, we require two conditions to exist, namely, the intention to commit fraud, and the perpetration of the same.

And if the creditor, whom it was the intention to defraud in the beginning, was not cheated, there was originally no intention to deceive him who was actually defrauded. Therefore grants of freedom are confirmed :

16. Paulus, Opinions of Papinianus, Book V.

Unless the creditors having prior claims are paid with the money of subsequent ones.

17. Julianus, Digest, Book XLIX.

All debtors who are released for the purpose of defrauding creditors are, by this action, restored to their former liabilities.

(1) Lucius Titius, having creditors, transferred all his property to his freedmen, who were also his natural children. The opinion was given that, although it was not suggested that Titius proposed to commit fraud, still, as he knew that he had creditors, and alienated all his property, he should be understood to have had the intention of defrauding them; and, therefore, although his children were not aware that this was the intention of their father, they would be liable under this action.

(2) If a husband, intending to defraud his creditors, after the dissolution of his marriage, returns his wife's dowry before the time prescribed by law for him to return it, the wife will be liable under this action for the amount of the interest of the creditors in having her dowry returned at the proper time; for the Prætor understands that payment made before the designated time is fraudulent.

18. Papinianus, Questions, Book XXVI.

If a husband returns a pledge given him by his wife, or a wife returns one given to her by her husband, the better opinion is that of those who think that no donation was made. There is, however, no doubt if this was done for the purpose of defrauding creditors that the transfer can be set aside by a praetorian action.

The same rule applies where anyone relinquishes a pledge for the purpose of defrauding the creditors of his debtor.

19. The Same, Opinions, Book XL

I gave it as my opinion that a father had not defrauded his creditors who, without waiting for his death, transferred the estate of his wife which had been left in trust to their son, after having released him from his control, without taking any account of the Falcidian portion; and I held that the father had fully executed his trust, and had perfectly discharged the duty required of him.

20. Callistratus, Questions, Book II.

It is settled that a debtor who has transferred an entire estate, in accordance with the Trebellian Decree of the Senate, is not considered to have defrauded his creditors, if he also transfers the portion which he was entitled to retain by law, but that he has, with the greatest fidelity, complied with the wishes of the deceased.

21. Scævola, Opinions, Book I.

A debtor, with the intention of defrauding his creditor, entered into an agreement with a neighbor with reference to the boundaries of a tract of land which he had hypothecated. The question arose whether he who purchased the land from the creditor could bring an action to establish the boundaries. The answer was that, according to the facts stated, he would not be any the less entitled to bring the action, because the debtor made the agreement without the knowledge of his creditor.

22. The Same, Opinions, Book V.

Where a creditor receives a pledge to secure an old claim, I ask whether his act is of no effect, as having been performed for the purpose of defrauding the other creditors. The answer was that the creditor should not be prevented from pursuing the pledge, because he had agreed that it should be given as security for an old debt, unless this was done for the purpose of defrauding other creditors, and legal proceedings should be taken by which acts defrauding creditors are usually rescinded.

23. The Same, Digest, Book XXXII.

When certain heirs, appointed in the first degree, ascertained that the estate of the deceased was scarcely sufficient to satisfy the fourth part of his indebtedness, for the purpose of preserving his reputation with the consent of the creditors, and by the authority of the Governor of the province entered upon the estate on condition of only paying a portion of their claims to the creditors; the question arose whether the slaves manumitted by the will could obtain their freedom and the means of support which had been bequeathed to them. The answer was that the grants of freedom would take effect, provided they had not been left for the purpose of defrauding the creditors, but that the legacies would not be due if the estate was insolvent.

24. The Same, Questions Discussed in Public.

A minor became the heir of his father, paid one of the creditors, and afterwards rejected his father's estate. The property of his father was sold. Should what the creditor received be returned, to prevent him from enjoying a greater advantage than the other creditors; or shall we make a distinction if he received this as a favor, so that if he was treated with partiality by the guardians, his share may be reduced in proportion to those of the other creditors? If, however, he collected his claim legally, and the other creditors neglected to collect theirs, and, in the meantime, the property became deteriorated either by death, by the theft of chattels, or by the depreciation in value of the land; that which the said creditor received can, by no means, be recovered, as the other creditors should pay the penalty for their negligence.

But what if matters were in such a condition that the property of my debtor being about to be sold, he should pay me my debt; can the money be recovered from me by an action? Should a distinction be made where he tendered me the money, and where I compelled him to pay me against his consent? And if I forced him to make payment involuntarily, can it be recovered, but if not, will this be done? But I have watched over my interests; I have improved my condition; the Civil Law was made for those who are diligent in protecting their own rights; and hence what I received cannot be recovered.

25. Venuleius, Interdicts, Book VI.

When a fraudulent debtor gives a release to someone who owes him, with the knowledge of the surety of the latter, and the principal debtor was not ignorant of the fact, both parties will be liable, or at least the one who was familiar with the circumstances. Where, however, he who was released was not solvent, let us see whether the action should be granted against the principal debtor, even if he was ignorant of the facts, because he received the debt as a donation.

On the other hand, if the release was given to the principal debtor and he was aware of the fraud, his surety will also be liable, if he also was aware of it; but if he did not know of it, why should not an action also be granted against him, as he does not sustain any more damage than he obtains benefit?

Where there are two principal debtors, the case of both is the same.

(1) Where a son-in-law accepts a dowry from his father-in-law, knowing that he intends to defraud his creditors, he will be liable under this action. If he returns the property, he will cease to have the dowry, and Labeo says that nothing should be returned to an emancipated daughter, after a divorce has taken place, because this action is granted for the purpose of recoyering the property and not to inflict a penalty; and hence the defendant, by making restitution, is discharged from liability.

If, however, before the creditors have brought suit against the father-in-law, the son-in-law should return the dowry to the daughter, he can be sued in an action on dowry; and Labeo holds that he will still be liable under this action, without having any recourse against the woman.

But let us see whether he will have a right to claim anything without instituting judicial proceedings. If he was ignorant of the fraudulent intent of the father-in-law, but the daughter knew it, she will be liable; and if both of them knew it, they will both be liable. If neither of them knew it, some authorities hold that an action against the daughter ought, nevertheless, to be granted, because it is understood that something in the form of a donation has come into her hands; or, at all events, she should give security to return whatever she may obtain. An action, however, should not be granted against the husband, if he was ignorant of the intended fraud, as he would not have married a wife who had no dowry; any more than it should be granted against a creditor who receives what is due to him from a debtor intending to commit a fraudulent act.

(2) Likewise, if a stranger, for the purpose of defrauding his creditors, gives a dowry to a girl under paternal control, her husband will be liable if he was aware of his intent, and the woman also, as well as her father, if he was not ignorant of it; so that the husband must give security to return the dowry if it should come into his hands.

(3) If an agent, without the knowledge of his principal, orders a slave to receive property from a debtor who has the intention of defrauding his creditors, and he is aware of this, he himself, and not his principal, will be liable to this action.

(4) Not only must the property which has been alienated be returned, but also any crops which have taken root in the earth at the time of the alienation, because they constitute part of the property of the fraudulent debtor, as well as those which were gathered after the suit was begun. Any crops gathered in the meantime will not, however, be included in the restitution.

In like manner, the offspring of a female slave who has been fraudulently alienated, which was born in the meantime, will not be included in the restitution, because it did not form part of the property of the debtor.

(5) Proculus says that, if a female slave conceives after the alienation took place, and has a child before suit is brought, there is no doubt that the child should not be returned. If, however, she was pregnant at the time she was sold, it may be said that the child must also be returned.

(6) With reference to crops attached to the soil, Labeo says that by this expression it is not clear whether the Prætor meant the crops which were ripe, or also those which had not yet matured. Moreover, if he referred to those which were ripe, possession need not be restored on that account, for when a tract of land is alienated, the land and everything attached to it are held to constitute but one thing, that is to say, the crops are included in an alienation of any kind; nor should he be understood to have two different things, who, during the winter, has a tract of land which is worth a hundred aurei, and at the time of harvest or vintage, can sell the crops for ten aurei, that is to say, the land is worth a hundred aurei, and the crops are worth ten; but as he has but one thing, that is, the tract of land worth a hundred aurei, so also he has but one thing who can sell his house separate from the land.

(7) This action is also granted against a fraudulent debtor, although Mela does not think that it ought to be done, because none is granted against him for anything which took place before the sale of his property, and it would be unjust for an action to be granted against one who had been deprived of all his possessions.

If, however, he should lose some of them and they cannot be recovered in any way, an action will, nevertheless, be granted against him. The Prætor is not considered to take into account the benefit of this proceeding in the case of one who had been deprived of his property by way of penalty.

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