1.
Callistratus, Monitory Edict, Book II.
The
heir should be interrogated in court with reference to what part of
the estate he is the heir, whenever an action is brought against him,
and the plaintiff is in doubt as to what share the person whom he
intends to sue is heir. An interrogatory is necessary whenever the
action is in personam, where suit is brought for a certain
amount, as otherwise the plaintiff would be ignorant as to what portion
of the estate of the deceased his adversary was entitled as heir,
and sometimes he might claim too much and sustain some loss.
(1)
We do not, however, make use of interrogatory actions at present,
because no one can be compelled to answer anything with reference
to his rights before the case is tried; and therefore these actions
are less used and have fallen into desuetude. Only matters stated
by the adverse party in court can be employed as proof by litigants,
whether such matters relate to estates or to other things involved
in judicial proceedings.
2.
Ulpianus, On the Edict, Book XXII.
The
Praetor published his Edict with reference to interrogatories because
he knew that it was difficult to a party who brings suit against an
heir or the possessor of the property of an estate to prove that anyone
was an heir, or the possessor of such property;
3.
Paulus, On the Edict, Book XVII.
For
the reason that proof of entry upon an estate is, for the most part,
difficult.
4.
Ulpianus, On the Edict, Book XXII.
The
Praetor desires to bind the party who was sued by his own answer made
in court, so that if he makes admissions or tells a falsehood he may
take the consequences; and at the same time that he may, by means
of the interrogatory, obtain information as to what portion of the
estate each heir is entitled.
(1)
With reference to the statement of the Praetor: "He who answers
having been interrogated in court," this must be understood to
mean in the presence of a magistrate of the Roman people, or of the
Governor of a province, or any other judge, for the term jus
he says merely signifies the place where the judge happens to be for
the purpose of exercising his functions or rendering decisions, whether
he does this at home or while on a journey.
5.
Gaius, On the Provincial Edict, Book III.
Where
anyone is interrogated as to whether he is heir, or to what portion
of an estate he is entitled, or whether he has under his control anyone
on whose account a noxal action is brought; he should have time for
deliberation, because if he makes an incorrect statement he will be
subjected to inconvenience.
6.
Ulpianus, On the Edict, Book XXII.
And
because, as it is to the interest of deceased persons that they should
have successors, so it is also of interest to those who are living
that they should not be hurried, so long as they deliberate in a proper
manner.
(1)
Sometimes a person who is interrogated as to whether he is an heir
is not compelled to answer; as, for instance, where he is sued by
another if the estate is in dispute, (and this was determined by the
Divine Hadrian); for otherwise if he denied that he was the heir,
he would prejudice his case; or if he alleged that he was the heir
he might be entangled in such a way as to be deprived of the estate.
7.
The Same, On the Edict, Book XVIII.
Where
anyone is interrogated in court as to whether a quadruped which has
committed damage belongs to him, and he answers that it does, he will
be liable.
8.
Paulus, On the Edict, Book XXII.
Where
a person who is interrogated with reference to a slave who has commited
damage, answers that the slave is his, he will be liable under the
Lex Aquilia as owner; and if the action is brought against
him who answers, the real owner will be released from liability in
said action.
9.
Ulpianus, On the Edict, Book XXII.
Where
anyone, without being interrogated, answers that he is the heir, he
is considered as having been interrogated.
(1)
We must understand the term "interrogated" not only to apply
where questions are asked by the Praetor, but also where this is done
by the adversary.
(2)
If, however, a slave is interrogated, this is no interrogation any
more than if a slave should ask the question.
(3)
One person should not be compelled to answer for another as to whether
the latter is the heir, for every one should be interrogated in court
about himself; that is to say, when suit is brought against him.
(4)
Celsus states in the Fifth Book of the Digest, that where a party
defending a case for another is interrogated in court as to whether
he for whom he appears is the heir, or to what part of the estate
he is entitled, and he answered falsely, he himself will be liable
as the defender of the case to the opposite party; but the case of
him for whom he is conducting the defence will not be prejudiced;
and there is no doubt that this opinion of Celsus is correct. Therefore,
if he does not answer, should it not be considered whether or not
he shall be held to be defending the case? It is only proper to say
that he is not, since he is not defending it fully.
(5)
Where anyone who is interrogated answers that he is the heir, but
does not add to what part of the estate, it must be held that he has
answered that he is heir to all of it; unless he should have been
asked, for instance, whether he was heir to half of it, and he replied,
"I am the heir," for then I should rather think that he
had answered the question which was addressed to him.
(6)
The question was asked, if anyone can be compelled to answer whether
he is an heir by will, or whether the estate was obtained in his own
name or through others who are subject to his authority, or through
someone to whom he was heir? Therefore, in general, the Praetor should
make up his mind when this question is put, whether the party is required
to answer by what right he is heir, so that if he should ascertain
that it is a matter of great importance, he may order him to answer
more fully. These rules should be observed not only with reference
to heirs but also with reference to praetorian successors.
(7)
Finally, Julianus states that anyone to whom an estate has been delivered
after having been interrogated in court, is required to answer whether
the estate has been delivered to him.
(8)
Where an action De peculio is brought, neither the father nor
the owner is required to answer whether he has the son or the slave
under his control; because this question alone can be put, namely,
whether the peculium is in the hands of the party against whom
proceedings have been instituted.
10.
Paulus, On the Edict, Book XLVIII.
It
is not foreign to the purpose, when we wish to enter into a stipulation
for the prevention of threatened injury, for the party to be interrogated
in court as to whether his house or the place from which it is feared
damage may result is his, and what interest he has in the same; so
that if he denies that the property is his, and refuses to give security
against the threatened injury, he may be compelled either to yield,
or if he prefers to resist, to surrender the property as having acted
fraudulently.
11.
Ulpianus, On the Edict, Book XXII.
Sometimes
also a party when interrogated is required to answer with reference
to his age.
(1)
Where anyone who is not an heir, having been interrogated, answered
that he is an heir to a share in the estate, he can be sued just as
if he were an heir to a share in the same; for he will be trusted
as against himself.
(2)
Where a party who is an heir to the fourth of an estate, or not an
heir at all, answers that he is heir to the entire estate, he can
be sued in an action brought for the whole.
(3)
Where anyone who is the heir to half alleges that he is heir to a
quarter, he will suffer the following penalty for his falsehood, that
is to say, he can be sued for the entire estate; for he should not
have lied by stating that he was an heir to a smaller portion;
(4)
Sometimes, however, he may reasonably think that he is the heir to
a smaller portion; for instance, if he did not know that he had acquired
a part of said estate by accrual, or had been appointed heir to an
uncertain portion of the same; why then should his rights be prejudiced
by his answer?
(5)
Moreover, where one keeps silent in the presence of the Praetor, he
is in such a position that if an action is brought he can be sued
for the entire amount, just as if he denied that he was an heir; for
where a person does not answer at all he is contumacious. He must
suffer the following penalty for contumacy, that is to say, he may
be sued for the entire amount, just as if he had denied that he was
an heir; because he is held to have been guilty of contempt of the
Praetor.
(6)
Where the Praetor says, "Does not answer at all," the latter
authorities understand this term as meaning that a man is considered
not to have answered at all who does not specifically reply to the
question asked, word for word. Where anyone is interrogated as to
whether he is the sole heir to the estate, and he answered that he
is an heir to a portion of the same, then, if he is heir to half,
his answer will not prejudice him, for this opinion is the more lenient
one.
(7)
It makes no difference whether a party, when interrogated, makes a
denial, or keeps silent, or answers ambiguously, so as to leave the
interrogater in a state of uncertainty.
(8)
We have no doubt that when a party who is interrogated answers he
will be entitled to relief, where proper cause is shown; or if anyone
is interrogated as to whether he is heir to his father and answers
that he is, and afterwards, a will is produced by which it is ascertained
that he was disinherited; it is perfectly just that he should obtain
relief, and this was stated by Celsus. He, however, bases it upon
another principle, namely, that matters which are subsequently ascertained
demand relief; as, for example, a will might be concealed or removed,
and afterwards produced; for why should this prejudice the party who
answered what seemed at that time to be true? I hold that the same
rule applies where a party answers that he is the heir, and the will
is subsequently pronounced to be a forgery, or inofficious, or of
no effect, for he did not answer dishonestly, but because he was deceived
by the instrument.
(9)
Where a man who is interrogated answers, he is liable in the same
way as if he was bound by a contract under which he can be called
to account, provided that he is interrogated by his adversary; but
if he is interrogated by the Praetor, the authority of the Praetor
has no bearing on the case, but only the answer of the party himself,
or any falsehood which he may tell, is involved.
(10)
Where a person, induced by a reasonable mistake, denies that he is
an heir, he is worthy of indulgence.
(11)
But where a party answers incorrectly without malicious intent, but
through negligence; it must be held that he should be released from
liability, unless the negligence closely resembles malice.
(12)
Celsus states that a party can recall his answer, if no disadvantage
results to the plaintiff from his doing so; and this seems to me to
be perfectly true, and especially if he should do this after he has
obtained more information, being better informed as to his rights
either by documents or by letters from his friends.
12.
Paulus, On the Edict, Book XVII.
Where
a son who has rejected his father's estate, is interrogated in court
and answers that he is the heir, he will be liable; for by answering
in this manner he is held to have acted as the heir. But if a son
who has rejected the estate is interrogated, and remains silent, he
is entitled to relief; for the Praetor does not consider anyone who
has rejected an estate as an heir.
(1)
Any exception which can be employed in bar of an action brought in
court against defendants can also be employed by a party against whom
proceedings have been instituted on account of his answer; as, for
instance, one based upon informal agreement, or previous decision,
etc.
13.
The Same, On Plautius, Book II.
Persons
who, while answering, make false confessions, are bound by the same
only where anyone has a right of action against another on account
of a matter with reference to which he was interrogated; because where
suit can be brought against another party if he were the owner, we
render ourselves liable by our confession. Hence, where someone is
under the control of his father, and I answer that he is my son, I
will only be liable where his age appears to be such that he can be
my son; because false confessions must agree with what is natural;
and on this account the result would be that if I answered on behalf
of the father I will not be held liable.
(1)
Where anyone answers that the head of a household is his slave, he
will not be liable to a noxal action; and even if a free man serves
me in good faith as a slave, a noxal action cannot be brought against
me; and if proceedings should be instituted, the right of action against
the person who committed the illegal act will remain unimpaired.
14.
Javolenus, On Cassius, Book IX.
When
the individual on whose account issue has been joined in a noxal action
is decided to be free, during the course of the trial, the defendant
should be discharged; and the interrogation will be of no benefit
because it was made in court; since where anyone has a right of action
against another on account of a third party, he cannot transfer the
liability of said party to one who confesses in court that he is his
slave; as, for instance, if he confesses that the slave of another
is his own; still, as no action can be brought against another person
on account of a man who is free, liability cannot be transferred by
means of any interrogatory or confession. The result in this case
is that no action can properly be brought with reference to a freeman
against someone who has made a confession.
(1)
In general, confessions are considered only where what is included
in the confession can be accepted as in conformity with law and nature.
15.
Pomponius, On Sabinus, Book XVIII.
If,
before an estate has been entered upon, I answered that a slave belonging
to the estate is mine, I am liable; because an estate is considered
the same as an owner.
(1)
Where a party who is interrogated in court confesses that a slave
is his, and the slave then dies, the party who answered is not liable;
just as he would not have been liable after the death of said slave
if he had belonged to him.
16.
Ulpianus, On the Edict, Book XXXVII.
Where
a slave is taken by the enemy, and someone, having been interrogated
in court, answers with reference to him that he is under his control;
although the right of postliminium may cause us to hesitate,
nevertheless, I do not think that there is ground for a noxal action,
because the slave is not under our control.
(1)
Although it is held that a party is liable who confesses that another
slave is his; still, it has been very properly held that he is only
liable if the slave could have been his own, but if he could not acquire
ownership in him, he is not liable.
17.
The Same, On the Edict, Book XXXVIII.
Where
the slave does not belong to one person, but to several, and all of
them state falsely that he is not under their control, or some of
them have done so, or have acted fraudulently to avoid having control
of him; each one of them will be liable for the entire amount of damages,
just as they would be liable if they had control over said slave;
but one party who was not guilty of fraud in order to avoid having
control of the slave, or does not make a false statement, will not
be liable.
18.
Julianus, On Urseius Ferox, Book IV.
Where
a person who was heir to half of an estate wished to defend his absent
co-heir, and, in order to avoid the burden of furnishing security,
answered that he was the sole heir, and judgment was rendered against
him; the plaintiff asked whether, as the party was insolvent, the
former judgment could not be rescinded, and an action be granted him
who was really the heir. Proculus answered that the judgment could
be rescinded and the action be brought, and this is correct.
19.
Papinianus, Questions, Book VIII.
Where
a son who appears in behalf of his father keeps silent when interrogated,
everything must be observed just as if he had not been interrogated.
20.
Paulus, Questions, Book II.
Where
a party answers that a slave who belongs to another is his, and suit
is brought against him in a noxal action, the actual owner will be
released. It is otherwise, however, where anyone confesses that he
killed a slave whom someone else killed, or where anyone answers that
he is an heir; for, in these instances, he who committed the act,
or he who is the actual heir, is not released. These things do not
conflict with one another; for, in the first instance, two parties
are liable on account of the person of a slave, just as we say they
are liable where a slave is owned in common, and if one is sued the
other is discharged; but a party who confesses that he killed or wounded
anyone is liable on his own account, nor should the crime of the person
who committed it go unpunished on account of him who answered, unless
the party making the confession was acting as the defender of him
who committed the offence, or of the heir, and appeared in the case
for this purpose; for then an exception will be granted and the plaintiff
will be barred, because the former can recover what he paid by an
action either on the ground of business transacted, or on that of
mandate. The same rule applies where a party states that he is the
heir by direction of the heir himself, or he, for any other reason,
wishes to appear in his defence.
(1)
Where anyone is asked in court whether he is in possession of a certain
tract of land; I ask whether he can be compelled to answer as to how
much of the said land he is in possession? I replied that Javolenus
states that the possessor of land is obliged to answer as to the amount
of said land which he holds in his possession; so that if he alleges
that he is in possession of the smaller portion, the plaintiff shall
be placed in possession of the other portion with reference to which
no defence is made.
(2)
The same rule applies where we give security against threatened injury;
for in this instance the party should also answer what portion of
the land belongs to him, so that he may arrange the stipulation with
respect to said portion; and the penalty in this case, where the party
does not promise, is that we should take possession; and therefore,
on this account it is essential to know whether the party is in possession
of said premises or not.
21.
Ulpianus, On the Edict, Book XXII.
Wherever
a sense of equity influences a judge, there is no doubt that in pursuance
of justice an interrogatory should take place.
22.
Scaevola, Digest, Book IV.
Where
the Imperial Procurator was conducting an examination with reference
to a debt due to the Treasury, one of the sons of the deceased who
had not obtained possession of the property of the estate and was
not an heir, answered that he was the heir; can he be held liable
by the other creditors as having answered the interrogatory? The reply
was that a party cannot be sued on account of his answer by those
who have not interrogated him in court.
Tit. 2. Concerning
certain matters which come before the same judge.
1. Pomponius, On Sabinus, Book XIII.
Where
an action for the partition of an estate and one for the division
of property held in common or for the establishment of boundaries
is brought between several persons, the same judge should be selected;
and, moreover, they should all be present in the same place, in order
that the co-heir or joint-owners may the more easily assemble.
2.
Papinianus, Questions, Book II.
Where
one of several guardians is sued because the others are not solvent,
and this one requests it, they can all be brought before the same
judge; and this is set forth in Imperial Rescripts.
Tit. 3. Concerning
the corruption of a slave.
1. Ulpianus, On the Edict, Book XXIII.
The
Praetor says: "Where anyone is alleged to have harbored a male
or female slave belonging to another, or have persuaded him or her
maliciously to do anything which would depreciate the value of him
or her, I will grant an action for double the value of the property."
(1)
He will not be liable under this Edict who purchases a slave in good
faith, nor can he bring an action for the corruption of the slave,
because he has no interest in the slave not being corrupted; and,
in fact, if anyone should admit that this is true, the result would
be that an action would lie in favor of two parties for the corruption
of the slave, which is absurd. We are of the opinion that this action
cannot be brought by a party whom a free man is serving as a slave
in good faith.
(2)
When the Praetor says "harbors," we understand this to mean
where anyone takes under his protection a slave belonging to another;
and this, properly speaking, signifies giving him refuge for the purpose
of concealing him, either on his own premises, or in a place or building
belonging to another.
(3)
"To persuade" does not exactly mean to compel and force
anyone to obey you, but it is a term of moderate signification; for
anyone can persuade another by either good or bad advice, and therefore
the Praetor adds "maliciously," by which he "diminishes
the value," hence, a party does not commit the offence unless
he persuades the slave to do something by which his value may be lessened,
and therefore, where a party solicits a slave either to do something
or to contrive something which is dishonorable, he is held to be subject
to this Edict.
(4)
Shall a person, however, be liable where he has driven a slave of
good habits to commit a crime, or instigates a bad slave, or shows
him how to perpetrate the act? The better opinion is that even if
he showed the bad slave how to perpetrate the offence he will be liable.
And, in fact, if the slave had already intended to take to flight,
or to commit a theft, and the person referred to should have approved
of his intention, he will be liable, for the malice of the slave should
not be increased by praising him; therefore, whether he made a good
slave bad or a bad slave worse, he will still be held to have corrupted
him.
(5)
He also makes a slave worse who persuades him to commit some injury
or theft, or induces him to take to flight, or instigates the slave
of another to do these things, or to confuse his peculium,
or to be a lover of women, or to wander about, or to devote himself
to magical arts, or to be present too often at exhibitions, or to
be riotous; or to persuade a slave who is a court official either
by words or by bribery to mutilate or falsify the accounts of his
master, or even to render an account of which he has been placed in
charge unintelligible;
2.
Paulus, On the Edict, Book XIX.
Or
makes him extravagant or disobedient, or persuades him to indulge
in debauchery.
3.
Ulpianus, On the Edict, Book XXIII.
By
the addition of the term "maliciously" the Praetor refers
to the deceit of the party who persuades the slave, but if anyone
should depreciate the value of the slave without malicious intent,
he does not incur disgrace; and he is not liable if he does this for
a joke.
(1)
For this reason a question arises if anyone should persuade a slave
belonging to another to climb up on a roof, or to descend into a well,
and he, obeying, ascends or descends and breaks a leg or any other
limb, or loses his life; will the party be liable? If he did this
without malicious intent he will not be liable, but if he did it maliciously
he will be;
4.
Paulus, On the Edict, Book XIX.
It
is more convenient, however, to hold him liable to a praetorian action
under the Lex Aquilia.
5.
Ulpianus, On the Edict, Book XXIII.
The
term "maliciously" also has reference to a person who harbors
a slave, so that he is not liable unless he acted maliciously in doing
so. If, however, anyone harbors a slave in order to hold him for his
master, or, induced by humanity or pity, or for some other reason
which is praiseworthy and just, he will not be liable.
(1)
Where anyone maliciously persuades a slave whom he thought to be free
to commit some act, it seems to me that he should be held liable;
for he is guilty of a greater offence who, thinking a man is free,
corrupts him, and therefore if he is a slave the party will be liable.
(2)
This action is for double damages, even against a party who confesses,
although the Lex Aquilia only imposes this penalty upon one
who makes a denial.
(3)
Where a male or female slave is said to have committed the act, an
action is granted with the privilege of surrendering the slave by
way of reparation.
(4)
This action has reference to the time when the slave was corrupted
or harbored, and not to the present time; and therefore if the slave
should die, or be sold or manumitted, the action can, nevertheless,
be brought; and where the right has once arisen, it is not extinguished
by manumission;
6.
Paulus, On the Edict, Book XIX.
For
the estimate of former value is made for the purposes of this action;
7.
Ulpianus, On the Edict, Book XXIII.
Since
bad slaves may perhaps obtain their freedom, and sometimes good reasons
may arise subsequently for their manumission.
8.
Paulus, On the Edict, Book XIX.
An
heir, whose slave was corrupted, is entitled to this action, not only
where the slave continues to be a portion of the estate, but also
where he has ceased to be such; for instance, where he has been bequeathed.
9.
Ulpianus, On the Edict, Book XXIII.
The
question is asked by Julianus in the Ninth Book of the Digest, whether
a party who corrupts a slave owned in common by myself and him, can
be held liable to this action; and he says that he can be held liable
by the other joint-owner; and, moreover, that suit can be brought
against him for the partition of common property, and also on the
ground of partnership, if the joint-owners are partners. But why does
Julianus make the condition of the partner worse when he brings suit
as such, than where he institutes proceedings against a stranger?
Where an action is brought against a stranger, this can be done whether
he harbored or corrupted the slave, but when it is brought on the
ground of partnership, this is done without the alternative, that
is to say, without the allegation of harboring him; for perhaps Julianus
thought that this did not affect the partner, for no one can harbor
his own slave; but if he did so for the purpose of concealing him,
it can be maintained that he is liable.
(1)
Where I have the usufruct in a slave and you the mere ownership, and
the said slave is deteriorated by me, you can institute proceedings
against me; but if you committed the act, I can proceed against you
by means of a praetorian action; for this action is applicable to
all kinds of corruption, and it is to the interest of the usufructuary
for the slave in whom he enjoys this right to be of good habits. The
usufructuary is also entitled to a praetorian action if another party
should harbor or corrupt the slave.
(2)
This action is also granted for double the value of the property.
(3)
But it is still a question whether an estimate of the damage sustained
by the slave in body or disposition should only be made, that is to
say, of the amount of diminution of the value of the slave, or whether
other things should be also taken into consideration. Neratius states
that the party guilty of corrupting the slave should be compelled
to pay damages to the amount to which the value of the slave is diminished
on account of his being corrupted.
10.
Paulus, On the Edict, Book XIX.
In
this case an appraisement of the property which the slave took away
with him is also included, as all the loss is doubled, and it makes
no difference whether the property was brought to the defendant or
to another, or was even consumed; for it is more just that the party
who was the principal in the offence should be held liable, than for
him to be sought for to whom the property was brought.
11.
Ulpianus, On the Edict, Book XXIII.
Neratius
says that where thefts are committed afterwards, they are not to be
included in the estimate. This opinion I think to be correct, for
the words of the Edict, "As much as the value of the property,"
embrace all damage.
(1)
I persuade a slave to deface notes of debtors, and I undoubtedly will
be liable; but if, on account of the habit of committing breaches
of the law which he has contracted, the slave steals, defaces, or
destroys, other documents of this kind, it must be said that the person
who corrupted him is not liable on account of these acts.
(2)
Although an action will lie for the corruption of slaves with reference
to property which is stolen, we can, nevertheless, bring an action
for theft, as it must be held that the articles were removed with
the aid and advice of the party who made the solicitation; nor will
it be sufficient to bring either one of the actions, because the employment
of one does not cause the other to be dispensed with. Julianus says
the same thing with reference to a party who harbors and conceals
a slave, and deteriorates him; for the offences of theft and of deteriorating
a slave are distinct. In addition to this, the party will be liable
to a personal action for the recovery of the property; for although
the other may have obtained the slave by means of a suit of this kind,
as well as a penalty by an action for theft, still, he is entitled
to an action for the corruption of the slave to the amount of his
interest:
12.
Paulus, On the Edict, Book XIX.
For
the reason that the defendant is still bound, although the property
has been restored.
13.
Ulpianus, On the Edict, Book XXIII.
This
action is a perpetual one, and is not limited by time, and lies in
favor of the heir and other successors; but it will not be granted
against an heir, because it is a penal one.
(1)
A party is also liable to this action if he corrupts a slave belonging
to an estate; and he is also liable in a suit for the estate as a
depredator,
14.
Paulus, On the Edict, Book XIX.
So
that the action for the recovery of an estate may have the same scope
as this action.
(1)
This Edict does not apply in the case of the corruption of a son or
a daughter under paternal control, as the action was established for
corrupting a slave who is part of our property, and it is one in which
the owner can prove that he has become poorer, although the honor
and reputation of his family remain unimpaired. An equitable action
for damages, however, will lie for an amount to be decided by the
judge, since it is for our interest not to have the minds of our children
corrupted.
(2)
Where a slave who is owned in common by yourself and me corrupts a
slave who is mine individually; Sabinus says that an action cannot
be brought against the joint-owner any more than if my own slave had
corrupted another of my slaves. Moreover, if a slave owned in common
corrupts one owned by another, it should be considered whether an
action can be brought against both joint-owners, or against each separately,
in the same way as other offences which are the subject of noxal actions.
The better opinion is that each owner is liable for the entire amount,
but if one of them pays, the other will be released.
(3)
Where a slave in whom I have an usufruct corrupts a slave belonging
to me, I have a right of action against the mere owner of the property.
(4)
A debtor is entitled to this action on account of a slave who has
been given in pledge for the debt.
(5)
In this action the double damages are not estimated in addition to
the property, for what was doubled is the loss sustained.
(6)
The result of this is that if it is proved that you have persuaded
my slave to steal something from Titius; you will not only be liable
to the extent to which the slave is deteriorated, but also for what
I shall be obliged to pay to Titius.
(7)
Again, you will be liable to me not only if the slave caused me loss
on account of your advice, but also if he caused it to a stranger
as well, because I am responsible under the Lex Aquilia; but
if I am liable to anyone for hiring because I leased a slave to him,
and he became deteriorated through your influence, you will be liable
on this account, and also under similar circumstances.
(8)
The estimate of damages made in this action depends upon how much
the value of the slave was diminished, which is the question to be
decided by the judge.
(9)
Sometimes, in fact, the slave becomes worthless, so that it is of
no advantage to have such a slave. In this instance, can the party
who influenced him be compelled to pay the value of the slave, and
the owner still hold him and profit by this; or should the owner be
compelled to surrender the slave and accept his value? The better
opinion is, that the owner should have the choice as to whether he
would prefer to retain the slave and receive damages equal to double
the amount to which the slave was deteriorated; or to surrender the
slave, if he has the power to do so, and accept his value; and if
he has not power to do this, he should still accept his value, and
assign to the party who solicited the slave his right of action to
recover the slave at his own risk. Whatever has been stated with reference
to the surrender of the slave is only applicable where the slave is
alive when proceedings are instituted. But what if proceedings were
instituted after the slave was manumitted? The defendant will not
readily be heard by the judge, if he alleges that he manumitted him
because he did not wish to have him in his house, as he desired to
obtain the money as well as the freedman.
15.
Gaius, On the Provincial Edict, Book VI.
The
mind of a slave is corrupted if he is persuaded to treat his master
with contempt.
16.
Alfenus Varus, Digest, Book II.
The
owner of a slave who had employed him as a steward manumitted him,
and subsequently caused him to produce his accounts, and finding that
they were not correct, he ascertained that the slave had spent the
money on some woman. The question arose whether he could bring suit
against this woman for corrupting the slave, as the slave was already
free? I answered that he could, and that he could also do this for
theft on account of the money which the slave had given her.
17.
Marcianus, Rules, Book IV.
An
action is granted a husband against his wife on account of corrupting
a slave, even while marriage exists, but only for simple damages in
consideration of matrimony.
Tit. 4. Concerning
fugitive slaves.
1. Ulpinaus, On the Edict, Book I.
He
who conceals a fugitive slave is a thief.
(1)
The Senate decreed that fugitive slaves shall not be admitted on land
or be protected by the superintendents or agents of the possessors
of the same, and prescribed a fine. But, if anyone should, within
twenty days, restore fugitive slaves to their owners, or bring them
before magistrates, what they had previously done will be pardoned;
but it was afterwards stated in the same Decree of the Senate that
immunity is granted to anyone who restores fugitive slaves to their
masters, or produces them before a magistrate within the prescribed
time, when they are found on his premises.
(2)
This decree also granted a right of entry to a soldier or civilian
on the estates of Senators or private parties for the purpose of searching
for a fugitive slave, and, indeed, the Lex Fabia, as well as
the Decree of the Senate which was enacted while Modestus was Consul,
had reference to this matter. It is stated therein that where parties
wished to search for fugitive slaves, letters should be given them
addressed to magistrates, and a fine of a hundred solidi was
established to be imposed upon the magistrates, if, having received
the letters, they refused to assist the parties making the search;
and the same penalty was inflicted upon anyone who refused to allow
the search to be made on his premises. A general Rescript of the Divine
Marcus and Commodus is extant, in which it is set forth that all governors,
magistrates, troops and garrisons are obliged to assist persons who
are searching for fugitive slaves, and to surrender them if they are
found; and that any parties on whose land the slaves are concealed
shall be punished if they are implicated in the crime.
(3)
Every person whosoever who arrests a fugitive slave is bound to produce
him in public.
(4)
And the magistrates are very properly notified to detain them carefully
in custody to prevent their escape.
(5)
You must understand the word "fugitive" to include a slave
who is in the habit of running about. Labeo, however, says in the
first Book on the Edict, that the offspring of a fugitive female slave
is not included in this designation.
(6)
A slave is understood to be produced in public who is delivered up
to the municipal magistrates or officers of the government.
(7)
Careful custody permits the use of irons.
(8)
The slaves must be held in custody until they are brought before the
Prefect of the Watch, or the Governor. Information must be given to
the magistrates of their names and marks, as well as the addresses
of the party to whom any one of them says he belongs; in order that
fugitive slaves may be the more easily recognized, and claimed. And
in the word "marks" scars are also included. The rule is
the same where these matters are brought to public notice by writing
in a public place or in a temple.
2.
Callistratus, Judicial Inquiries, Book VI.
Slaves
who are simply fugitives should be returned to their masters; but
where they pretend to be free, it is customary to punish them severely.
3.
Ulpianus, On the Office of Proconsul, Book VII.
The
Divine Pius stated in a Rescript that, where a party wishes to search
for a fugitive slave on the premises of another, he can apply to the
Governor for letters to be furnished him; and, if the case demands
it, an officer also, in order that he may be permitted to enter and
make search, and the Governor can also inflict a penalty upon him
who does not permit the search to be made. The Divine Marcus, in an
Address which he delivered before the Senate, granted power to parties
who wished to search for fugitive slaves to enter upon and search
the land of the Emperor, as well as that of Senators and private individuals
for fugitive slaves, and to examine the bed-rooms and tracks of those
who concealed them.
4.
Paulus, Sentences, Book I.
Custom-house
officers and policemen are required to carefully retain fugitive slaves
in custody after they have been caught. Municipal magistrates must
also send such fugitive slaves, after they have been caught, properly
guarded to the office of the Governor of the province or the Proconsul.
5.
Tryphoninus, Disputations, Book I.
Where
a fugitive slave betakes himself to the arena, he cannot escape the
power of his master by exposing himself to this danger, which is only
that of the risk of death; for the Divine Pius stated in a Rescript
that such a slave must, by all means, be restored to his master, either
before or after the combat with wild beasts; since sometimes he may
have embezzled money, or committed some other greater breach of the
law, so that he would prefer to betake himself to the arena rather
than undergo an inquiry, or suffer punishment for his flight, hence
he must be given up.
Tit. 5. Concerning
gamblers.
1. Ulpianus, On the Edict, Book XXIII.
The
Praetor says: "Where anyone beats a person in whose house a game
with dice is said to have taken place, or damages him in any way;
or where anything at the time has been removed clandestinely from
the house, I will not grant an action. Where anyone employs violence
on account of a game with dice, I will punish him as the circumstances
may demand."
(1)
Where gamblers rob one another, an action will not be refused on the
ground of property taken by force; but it is only the host who is
forbidden to bring suit, and not the gamblers, although they may seem
to be unworthy of indulgence.
(2)
It should also be noted that where the proprietor of the house has
been beaten or has suffered loss, he cannot bring an action, no matter
when or where this occurred, but theft can be committed with impunity
in the house at the time when the gambling was going on, even though
the party who commits any one of the offences may not have taken part
in the game. It is certain that we must understand the term "house"
to mean the habitation and domicile.
(3)
Where the Praetor refuses to grant an action for theft, let us see
whether this refers to the penal action alone, or whether the complainant
wishes to introduce proceedings for the production of the property,
or bring an action for recovery? It is stated by Pomponius that it
is only the penal action which is refused, but this I do not think
to be correct, as the Praetor says simply, "If anything has been
removed clandestinely, I will not grant an action." He says further:
"Where anyone employs violence on account of a game with dice,
I will punish him as the circumstances may demand." This clause
has reference to the punishment of a party who compels another to
play, and signifies that he may be fined or sentenced to the quarries,
or imprisoned in chains.
2.
Paulus, On the Edict, Book XIX.
For
certain persons are accustomed to force others to play, sometimes
doing this from the beginning, and sometimes, after they themselves
are beaten, compelling them to remain.
(1)
A Decree of the Senate forbids playing for money, except where the
parties contend with spears, or by throwing the javelin, or in running,
leaping, wrestling, or boxing, for the purpose of displaying courage
and address:
3.
Marcianus, Rules, Book V.
In
cases of this kind bets are allowed under the Titian, Publician, and
Cornelian laws, but it is not lawful under other laws where the contest
is not for the exhibition of skill.
4.
Paulus, On the Edict, Book XIX.
Where
anything is out on the table at a banquet members of the household
are permitted to gamble for it.
(1)
If a slave, or a son subject to paternal control loses, his father
or his owner are entitled to recover what he lost. Moreover, if a
slave has received money, an action De peculio will be granted
against his master, but not a noxal action, because it is based on
business transacted; but the defendant will not be compelled to pay
more than the amount included in the peculium.
(2)
An equitable action is granted under this Edict against the head of
a household or a patron, for the recovery of money lost by games with
dice.
Tit. 6. Where a
surveyor makes a false report with reference to measurements.
1. Ulpianus, On the Edict, Book XXIV.
The
Praetor grants an action in factum against a surveyor of land,
as we must not be deceived by him, since we are interested in obtaining
a correct report of measurements; where, for example, a controversy
has arisen with respect to boundaries, or the purchaser or the vendor
desires to ascertain the size of the tract of land to be sold. He
grants this action for the reason that the ancient authorities did
not consider the contract made with a person of this kind to be one
of leasing and hiring, but rather that his services were donated as
a favor, and hence what was given to him by way of remuneration was
designated honorary; but if an action is brought for leasing and hiring,
it must be said that it is brought to no purpose.
(1)
This action only requires the existence of positive malice. For it
was held that the surveyor will be thoroughly restrained if he can
only be sued on the ground of positive malice, since he is not civilly
liable. Therefore, if he has displayed a want of skill, he who employed
him has only himself to blame, but if he was guilty of negligence,
he will be equally secure; and it is evident that gross negligence
resembles malice. But where he receives compensation, he will, according
to the terms of the Edict, be responsible for every kind of negligence;
for undoubtedly the Praetor knows that parties of this kind work for
pay.
(2)
He only is liable to this action who makes a report; but we must understand
that he makes a report who does so through another;
2.
Paulus, On the Edict, Book XXV.
Or
in writing.
(1)
If, however, I direct you, a surveyor, to survey my field, and you
turn this over to Titius, and he, in the course of the work does something
through positive malice, you will be liable; because you have displayed
positive malice in trusting such a man.
3.
Ulpianus, On the Edict, Book XXIV.
Where
I direct two persons to make a survey and both of them are guilty
of malice, I can bring suit against them severally for the entire
amount; but where one of them, after having been sued, satisfies my
claim, an action against the other one must be refused.
(1)
This action can be brought by anyone whose interest it was that a
report of false measurement should not be made; that is to say, either
by the purchaser or by the vendor, who has been injured by the report.
(2)
Pomponius, however, says that if on account of the report, the purchaser
pays the vendor too much, a suit cannot be brought by him against
the surveyor, because he has a right of action to recover what has
been paid in excess; for it is not the interest of the purchaser to
do this, since he has the right of action for recovery, unless the
vendor is insolvent; for then the surveyor will be liable.
(3)
Where the vendor, having been deceived by the surveyor, conveys a
larger amount of land; Pomponius says, that in compliance with the
same rule, no action against the surveyor will lie, because the vendor
is entitled to an action on sale against the purchaser, unless the
purchaser is not solvent.
(4)
Pomponius also states that where a surveyor is employed on account
of a trial, and he defrauds me in his report, he will be liable if,
on this account, I obtain less by the judgment. It is clear that,
if he was appointed by the court and maliciously makes a report against
me, he doubts whether I have a right to hold him liable, nevertheless,
he rather thinks I have.
(5)
Pomponius says that this action should be granted to the heir and
to other persons of the same kind, but that it should be refused against
the heir and persons of that description.
(6)
He says that the action is noxal rather than De peculio when
brought with reference to a slave, although a civil action De peculio
may be available.
4.
Paulus, On the Edict, Book XXV.
This
action is a perpetual one, for the cause derives its origin not from
the time when the bad faith began, but from the date when the business
was undertaken.
5.
Ulpianus, On the Edict, Book XXIV.
Where
the surveyor does not make a false report of the measurement, but
delays the report, and the result is that the vendor is released after
promising to convey the property within a specified time, this action
cannot be brought; and Pomponius says that an equitable action should
not be granted, and therefore recourse must be had to an action based
on fraud.
(1)
If a false report is made, and the purchaser sues the vendor on his
contract, he can also sue the surveyor, but if he had no interest
in doing this, judgment will not be rendered against the surveyor.
If he does not sue the vendor for the entire amount which is lacking,
but for a smaller amount; Pomponius says, and very properly, that
suit can be brought against the surveyor for the remainder. The Praetor
extended the scope of this action still further; for where there is
a false statement made of the measure of anything else, this action
is available; hence, where a party deceives his employer in the measurement
of a building or in that of grain or wine;
6.
Paulus, On the Edict, Book XXIV.
Or
with reference to the breadth of a pathway, or as to a servitude calling
for the insertion of timbers, or a projecting roof, when inquiry is
made for this purpose, or where the measurement of a court-yard or
of materials or stone is taken, and a false report given;
7.
Ulpianus, On the Edict, Book XXIV.
Or
where the dimensions of anything else is falsely stated, he will be
liable.
(1)
This action will be granted where the surveyor makes a false measurement
by means of instruments.
(2)
Pomponius also states that anyone is entitled to this action against
someone who is not a surveyor but was guilty of deceit in measurement.
(3)
In the same manner the action should be granted against an architect
who has been guilty of deceit; for the Divine Severus decreed that
action should be granted against an architect or a contractor.
(4)
I, myself, think that an action should be granted also against an
accountant who designedly makes a false calculation.
Tit. 7. Concerning
religious places, the expenses of funerals, and the right to conduct
the same.
1. Ulpianus, On the Edict, Book X.
Where
anyone expends anything on account of a funeral, he is considered
to have made the contract with the deceased and not with his heir.
2.
The Same, On the Edict, Book XXV.
Aristo
says that a place in which a slave has been buried is religious.
(1)
A party who has placed a dead body in the premises of another or caused
this to be done, is liable to an action in factum. We must,
however, understand "the premises of another" to mean either
a field or a building; but these words grant the action to the owner,
not to a possessor in good faith; for when the statement is made "In
the premises of another," it is apparent that the owner is meant,
that is the party to whom the ground belongs. Even when an usufructuary
makes the interment, he will be liable to the mere owner of the property.
It is debatable whether a joint-owner is liable if he acted without
the knowledge of his co-owner; but the better opinion is that he can
be sued in an action for the partition of an estate, or in one for
the division of common property.
(2)
The Praetor says: "Where the body or bones of a dead man are
said to have been taken to ordinary ground or to a burial place in
which the party had no right, he who does this is liable to an action
in factum, and will be subjected to a pecuniary penalty."
(3)
The "taking" which the Praetor was thinking of is that which
occurred for the purpose of burial.
(4)
Ground is styled "ordinary" which is neither sacred, consecrated,
nor religious, but is a locality to which none of these adjectives
will apply.
(5)
A burial-place is a spot where human bodies or bones are deposited.
Celsus, however, says that a place which is destined for burial does
not become religious entirely, but only that portion of it where the
body is laid.
(6)
A monument is whatever is erected for the purpose of preserving the
memory of the deceased.
(7)
When anyone has an usufruct, this does not render the place religious.
Where, however, one party has the mere ownership, and another the
usufruct, the latter cannot make the place religious, nor can the
mere owner do so, unless he should happen to bury there the party
who bequeathed the usufruct, since he could not be so conveniently
buried elsewhere; and this was the opinion of Julianus. The place,
however, cannot be rendered religious if the usufructuary is not willing;
but if he consents, the better opinion is that it becomes religious.
(8)
No one can make a place religious which is subject to a servitude,
unless the party entitled to the servitude consents. But if the party
can make use of the servitude no less conveniently in some other place,
it cannot be held that the burial was made for the purpose of interfering
with the servitude, and therefore the place becomes religious; and
indeed this is reasonable.
(9)
Where a person has given his land in pledge and buries one of his
own family therein, he will make it religious; and if he himself should
be buried there, the same rule applies; but he cannot assign this
right to another.
3.
Paulus, On the Edict, Book XXVII.
It
is more to the public advantage to say that a place can be made religious
by the consent of all parties; and this was held by Pomponius.
4.
Ulpianus, On the Edict, Book XXV.
Where
a party who was appointed heir buries the body of the head of the
family before he enters upon the estate, by doing so he makes the
place religious, but no one should think that by this act he is conducting
himself as heir; for let us suppose that he is still deliberating
as to whether he will enter upon the estate. I, myself, am of the
opinion that even though the heir did not bury the body but someone
else did, and the heir either took no active part, or was merely absent,
or feared that he might be considered as conducting himself as heir,
still he makes the ground religious; for very often deceased persons
are buried before their heirs appear. In this instance the ground
becomes religious only when it was the property of the deceased, for
it is but natural to hold that a place where a person is buried belonged
to him; especially if he is buried in a spot which he himself had
selected. To such an extent does this rule apply that, even where
the body is buried by the heir in ground bequeathed by a legacy, still,
the burial of the testator renders the place religious, provided that
he could not have been buried as conveniently elsewhere.
5.
Gaius, On the Provincial Edict, Book XIX.
"The
family burying place" means one set apart by some one for himself
and his household; but an "hereditary burial-place" is one
which a man provides for himself and his heirs,
6.
Ulpianus, On the Edict, Book XXV.
Or
where the head of the household acquired it by hereditary right. In
both instances, however, heirs and other successors of every description
whatever may legally be buried, and may also bury others, although
they may be heirs to a very small amount either by will or on intestacy,
even if the other heirs do not consent. The same privilege is granted
to children of both sexes, and descendants of other degrees, as well
as to emancipated persons, whether they have become heirs or have
rejected the estate. With reference to disinherited relatives, however,
they may be buried through motives of humanity, unless the testator,
influenced by just hatred, has expressly forbidden it; but they cannot
bury others except their own descendants. Freedmen can neither be
buried, nor bury others under such circumstances, unless they become
the heirs to their patron; although certain patrons have indicated
by inscriptions that they have erected monuments for themselves and
their freedmen. Papinianus also held this opinion, and it has repeatedly
been established by decisions.
(1)
So long as there is only a monument, anyone can sell it, or give it
away; if, however, it becomes a cenotaph, it must be stated that it
can be sold; as the Divine Brothers stated in a Rescript that a structure
of this kind is not religious.
7.
Gaius, On the Provincial Edict, Book XIX.
He
who buries a dead body on land belonging to another can be compelled
by an action in factum to either remove the body which he buried,
or to pay the price of the land. This action can be brought by an
heir as well as against one, and it is perpetual.
(1)
Where a man placed a dead body in a stone chest which belongs to another,
in which, as yet, no corpse has been laid; the Proconsul grants an
equitable action in factum against him, since it cannot be
properly said that he placed the body in a burial-place, or on land
belonging to another.
8.
Ulpianus, On the Edict, Book XXV.
Where
bones or a body have been buried by another party not a relative,
it is a question whether the owner of the land can dig them up, or
remove them without a decree of the pontiffs or the order of the Emperor;
and Labeo says that the pontifical permission or the order of the
Emperor must be obtained, otherwise an action for injury will lie
against the person who removed the remains.
(1)
Where a place that is religious is alleged to have been sold as profane,
the Praetor grants an action in factum in favor of the party
who is interested in the matter against the vendor; and this action
can also be brought against the heir of the latter, since it resembles
an action on a contract of sale.
(2)
Where a man buried a dead body in a place intended for the use of
the public, the Praetor will grant an action against him if he acted
maliciously, and he should be punished by the extraordinary authority
of the Court, although the penalty is a moderate one; but where he
acted without malice he must be discharged.
(3)
In this action the term "profane place" is also applicable
to a building.
(4)
This action can not only be brought by an owner but by anyone entitled
to the usufruct in the land, or by one who is entitled to a servitude
over the same; because these parties also have the right to prevent
it being done.
(5)
Where anyone is prevented from burying in a place where he has the
right to do so, he is entitled to an action in factum as well
as an interdict, even though he himself has not been hindered but
his agent has been; since, under such circumstances, he himself is
considered to have been prevented.
9.
Gaius, On the Provincial Edict, Book XIX.
Where
some one is prevented from burying the body or bones of a deceased
person, he can at once make use of an interdict by which it is forbidden
to employ force against him, or he can make the interment elsewhere,
and afterwards bring an action in factum, by means of which,
as plaintiff, he will recover damages to the amount of his interest
in not having been prevented from making the interment; and in the
calculation shall be included the price of the land which he purchases
or the rent of any which he leases, or the value of his own land which
no one would render religious unless compelled to do so. Therefore,
I wonder why it should appear to be settled that this action cannot
be granted either in favor of, or against an heir; as it is evident
that it involves the account of a certain sum of money which forms
the basis of the claim; at all events the suit can be brought at any
time between the parties themselves.
10.
Ulpianus, On the Edict, Book XXV.
Where
the vendor of land reserves a burial-place for the interment of himself
and his descendants, and he is prevented from using a road for the
purpose of burying a member of his household, he can bring suit; for
it has been decided that a right of way through the land for the purpose
of burial was reserved in the agreement between the purchaser and
the vendor.
11.
Paulus, On the Edict, Book XXVII.
If,
however, the site of a monument should be sold under the condition
that no one should be buried there whom there was a right to bury;
an agreement of this kind will not be sufficient, but it must be made
secure by means of a stipulation.
12.
Ulpianus, On the Edict, Book XXV.
Where
anyone has a burial place but has no right of way to it, and is prevented
from reaching it by his neighbor, the Emperor Antoninus and his father
stated in a Rescript that it is customary to petition for a pathway
to a burial place by sufferance, and it is usually granted; and, whenever
there is no servitude, the privilege can be obtained from the party
who owns the adjoining premises. This rescript, however, which gives
the means of obtaining the right of way by petition, does not allow
a civil action, but it may be applied for in extraordinary proceedings;
for the Governor is required to compel a pathway to be granted to
the party where a reasonable price is paid, and the judge must also
investigate whether the place is suitable so that the neighbor may
not suffer serious injury.
(1)
It is provided by a decree of the Senate that the use of a burial
place is not to be contaminated by alterations, that is to say, it
must not be used for other purposes.
(2)
The Praetor says: "Where any expense is incurred on account of
a funeral I will grant an action for its recovery against the party
who is interested in the same."
(3)
This Edict is issued for a good reason, namely, in order that a party
who conducted the funeral may bring suit for what he expended; so
that the result would be that bodies will not lie unburied, or that
some stranger should conduct the funeral.
(4)
He whom the deceased selected must conduct the funeral, but if he
should not do so he will be liable to no penalty, unless something
of value was left to him for this purpose; for then, if he does not
comply with the will of the deceased, he will be excluded from the
bequest. If, however, the deceased did not make any provision for
this, and the duty has not been transferred to anyone, it will devolve
upon the heirs who were appointed, and, if none were appointed, upon
the heirs at law or the cognates who succeed in their regular order.
(5)
The funeral expenses are to be regulated in accordance with the means
or dignity and rank of the deceased.
(6)
The Praetor, or the municipal magistrate, is required to order the
funeral expenses to be paid out of the money belonging to the estate
if there is any, and if there is none, he must order such property
to be sold as would perish by lapse of time, and the retention of
which would be a burden to the estate; and in case this cannot be
done, he shall order any gold or silver which there may be, to be
sold or pledged, in order to provide the necessary funds.
13.
Gaius, On the Provincial Edict, Book XIX.
Or
he may collect the money from debtors to the estate if he can easily
do so:
14.
Ulpianus, On the Edict, Book XXV.
And
if anyone should interfere with the purchaser in order to prevent
said property from being delivered to him, the Praetor must intervene
and protect an act of this kind, where any obstacle is interposed.
(1)
Where the deceased was either a tenant or a lodger, and left nothing
to pay his funeral expenses; Pomponius says that they must be paid
out of the proceeds of articles which have been brought into the lodging,
and if there is anything in excess, this will be liable for unpaid
rent. Moreover, if any legacies have been bequeathed by the testator
whose funeral is the subject of discussion, and there is nothing with
which to bury him, the said legacies must also be utilized for this
purpose; for it is better that the funeral expenses of a testator
should be obtained from his own property than that others should receive
their legacies. Where, however, the estate has been entered upon,
any property sold must not be taken from the purchaser, because he
who has brought anything under an order of court is a bona fide
possessor, and has the ownership of the same. Nevertheless, a legatee
should not be deprived of his legacy if he can be indemnified by the
heir; but if he cannot, it is better for the legatee not to be benefited
pecuniarily, than that the purchaser should sustain any loss.
(2)
Mela says that if a testator directs anyone to attend to his funeral
and he does not do so after having received money for that purpose,
an action on the ground of fraud shall be granted against him; nevertheless,
I think, that he can be compelled to conduct the funeral under the
extraordinary authority of the Praetor.
(3)
The only expense which can be incurred on account of a funeral is
that without which the funeral could not be conducted; as, for instance,
what is incurred by the removal of the body, and also where money
is expended on the place where the body is to be buried. Labeo says
it must be considered to be expended on account of the funeral, because
a place must be prepared in which the body may be laid.
(4)
The expenses of anyone who dies away from home and which are incurred
for the purpose of bringing back the body, are included in the funeral
expenses, although he is not yet buried; and the same rule applies
where anything is done for the purpose of guarding the body, or for
preparing it for burial, or where anything is expended in providing
marble or clothing.
(5)
It is not proper, however, that any ornaments nor other articles of
this kind should be buried with the body, as persons of the lower
class are accustomed to do.
(6)
This action which is styled a funeral one, is based upon what is proper
and reasonable, and includes only what has been expended with reference
to the funeral, but no other outlay. The term "reasonable"
must be understood to have reference to the rank of the party who
was buried, to the circumstances of the case, to the time, and to
good faith; so that no charge may be made for more than the actual
amount disbursed, nor even for what was actually expended, if this
was immoderate. Therefore the means of the party for whom the money
was spent must be taken into consideration, as well as the property
itself, where it is immoderately expended without good cause. But
what must be done where the expense is provided for by the will of
the testator? In reply to this it must be held that his will is not
to be followed if the expense should be excessive, for it ought to
be in proportion to the means of the deceased.
(7)
Sometimes, however, where a man has assumed the payment of funeral
expenses he cannot recover them if he was actuated by filial affection,
and did not pay with the intention of recovering the amount which
he incurred; and this our Emperor stated in a Rescript. Therefore
an estimate will have to be made by an arbiter, and the motive with
which the expense was incurred carefully considered; that is, whether
the party attended to this matter for the deceased or for his heir,
or whether he was induced by humanity, or compassion, or filial reverence,
or affection? Nevertheless, the degree of compassion may be distinguished
so as to conclude that the party who conducted the funeral at his
own expense did so in order that the deceased should not remain unburied,
and not that he did this gratuitously; and if this should be clear
to the judge he ought not to discharge the defendant; for who is there
that can bury the dead body of a stranger without being impelled by
a sense of duty? Hence it is proper for the party to state whom he
buried, and from what motive he did so, to avoid being afterwards
interrogated with reference to the same.
(8)
In the case of many sons who conduct the funerals of their parents,
or other persons who could have been appointed heirs do so although
on this account it is not to be presumed that they are acting as heirs,
or entering on the estate, still, in order that necessary heirs may
not be held to have interfered, or others to have acted as heirs;
it is customary for them to state that they caused the funeral ceremonies
to be conducted from motives of duty. If anything superfluous should
have been done, it would be held that the parties protected themselves
to avoid being thought to have intermeddled, and not for the purpose
of recovering their expenses; since they have plainly stated that
they acted from motives of duty, but they must go still farther in
their allegations in order to be able to recover what they expended.
(9)
Perhaps someone may say that there are instances where a certain share
of the expense incurred can be recovered, so that the individual in
question did this partly while transacting business for another, and
partly because he was impelled by a sense of duty. This is true, and
therefore he can recover a portion of the expense which he did not
incur with the intention of donating.
(10)
When a judge hears a case of this kind which is based on grounds of
equity he should sometimes not allow a moderate expenditure where,
for example, the expenses of his funeral had been small, with the
intention of casting odium upon the character of the deceased, who
had been a wealthy man; as the judge, in this instance, ought not
to consider an account of this kind, since it is apparent that by
burying him in this manner a premeditated insult was offered to his
memory.
(11)
Where anyone buries the head of a household while under the impression
that he himself is his heir, he cannot bring an action to recover
the funeral expenses; because he did not act with the intention of
transacting the business of another; and this is also the opinion
of Trebatius and Proculus. I think, however, that an action for the
funeral expenses should be granted to him where proper cause is shown.
(12)
Labeo says that whenever anyone has some other action for the purpose
of recovering funeral expenses he cannot avail himself of a funeral
action; and therefore, if he is entitled to an action for the partition
of an estate, he cannot bring a funeral action; but it is clear that
if an action for the partition of an estate has been already brought,
he can bring one for the recovery of the funeral expenses.
(13)
Labeo also says that if you conduct the funeral of a testator against
the wishes of his heir, you can bring the funeral action if proper
cause is shown; but what if the person whom the heir forbade to act
was the son of the testator? In this instance it can be alleged against
the plaintiff, "Therefore you have conducted the funeral through
a sense of duty." But suppose that I have made the statement,
I will then be entitled to bring the funeral action, for it is proper
that deceased persons should be buried by means of funds obtained
from their estates. What if a testator had directed you to make arrangements
for the funeral, and the heir prohibits it, and you, nevertheless,
conduct it; is it not just that you should have the right to bring
an action for the recovery of the funeral expenses?" Generally
speaking, I am of the opinion that a just judge will not rigidly adhere
to the mere action based on business transacted, but will construe
the rules of equity more liberally, since this is something which
the character of the proceeding enables him to do.
(14)
The Divine Marcus, however, stated in a Rescript that any heir who
prevents a funeral from being conducted by the party whom the testator
selected, does not act honorably; although there is no penalty established
by which he may be punished.
(15)
If anyone conducts a funeral at the request of another, he is not
entitled to a funeral action, but he certainly is who directed the
funeral to take place, whether he paid the expense of the same to
him whom he requested to conduct it, or whether he still owes it.
Where, however, a ward makes such a request without the authority
of his guardian, a praetorian action for the recovery of the funeral
expenses should be granted against the heir in behalf of the party
who incurred them; for it is unjust for the heir to profit in this
way. Where, however, a ward orders a funeral which he himself ought
to attend to be conducted without the authority of his guardian; I
think that the action should be granted against him, if he himself
is the actual heir to the party who was buried, and the estate is
solvent. On the other hand, where anyone conducts a funeral at the
request of the heir, Labeo says he cannot bring the funeral action,
because he is entitled to an action on mandate.
(16)
If, however, he conducts the funeral as one transacting business for
the heir, although the latter may not have ratified the act, Labeo
said that he is, nevertheless, entitled to an action for the recovery
of the funeral expenses.
(17)
This action is granted against those who ought to conduct the funeral,
for instance, against the heir, the possessor of the property of the
estate, or any other successor.
15.
Pomponius, On Sabinus, Book V.
A patron
who makes application for the possession of the property of an estate
in opposition to the provisions of the will, must pay the expenses
of the funeral.
16.
Ulpianus, On the Edict, Book XXV.
Where
any property comes to anyone by way of dowry, the Praetor grants a
funeral action against him; for it was held by the ancient authorities
to be perfectly just that the funeral expenses of women should be
paid out of their dowries, just as out of their private property,
and that the man who profits by the dowry on the death of a woman
should contribute to her funeral expenses, whether he is the father
or the husband of the woman aforesaid.
17.
Papinianus, Opinions, Book III.
If,
however, the father has not yet recovered the dowry, the son alone
may be sued, and he can charge the father with whatever he has paid
on this account:
18.
Julianus, Digest, Book X.
For
the expenses of a funeral are a debt of the dowry:
19.
Ulpianus, On Sabinus, Book XV.
And
therefore the dowry is liable for this debt.
20.
The Same, On the Edict, Book XXV.
Neratius
asks: Where a man who gave a dowry for a woman stipulated that two-thirds
of the same should be returned to him, and that the other third should
remain with the husband, and agreed that the husband should not contribute
anything to the funeral expenses; will the husband be liable for them?
He answers that if the stipulator himself buried the woman, the agreement
will be operative, and that a funeral action will be of no effect;
but if someone else conducted the funeral, then the husband can be
sued, because the public law cannot be infringed by such an agreement.
But what if anyone should give a dowry for a woman under the condition
that it is to revert to him if she died during marriage, or if the
marriage should be terminated in any other manner; would he not then
be compelled to contribute to the funeral expenses? Since, however,
the dowry reverts to him on the death of the woman, it may be stated
that he should contribute.
(1)
If the husband profits by the dowry, he can be sued for the funeral
expenses, but the father cannot; however, I think with reference to
this case that where the dowry is not sufficient to meet the funeral
expenses, because it is very small, an action should be granted against
the father for the deficiency.
(2)
Where a woman who is her own mistress dies, and her estate is not
solvent, her funeral expenses must be paid out of her dowry alone;
and this was stated by Celsus.
21.
Paulus, On the Edict, Book XXVII.
Where
the person whose funeral was conducted was under paternal control,
a funeral action can be brought against the father in proportion to
his rank and means.
22.
Ulpianus, On the Edict, Book XXV.
Celsus
says that where a woman dies, her funeral expenses should be paid
out of the dowry remaining in the hands of her husband, and out of
the remainder of her property in proportion.
23.
Paulus, On the Edict, Book XXVII.
For
instance where the dowry is worth a hundred aurei, and her
estate two hundred, the heir must contribute two-thirds, and the husband
one-third of the funeral expenses:
24.
Ulpianus, On the Edict, Book XXV.
Julianus
states that, in this instance, the legacies must not be deducted.
25.
Paulus, On the Edict, Book XXVII.
Or
the value of slaves who have been manumitted.
26.
Pomponius, On Sabinus, Book XV.
Nor
debts deducted.
27.
Ulpianus, On the Edict, Book XXV.
Thus
the husband and the heir are compelled to contribute to the funeral
proportionally.
(1)
Suit cannot be brought for the recovery of funeral expenses against
a husband, if he paid the dowry to his wife during marriage, so Marcellus
says; and this opinion is correct in those instances in which he is
permitted by law to do this.
(2)
Moreover, I think that a husband is liable to an action for funeral
expenses only so far as his means permit; for he is held to be enriched
by the sum which he would have been forced to pay to his wife if she
had sued him.
28.
Pomponius, On Sabinus, Book XV.
Where
there is no dowry, then Atilicinus says that the father must pay the
entire expense; or else the heir of the woman, if she was emancipated,
should do so. If, however, there are no heirs, and the father should
not be solvent, suit can be brought against the husband to the extent
of his property, in order that it may not appear due to his bad behavior
that his wife was left unburied.
29.
Gaius, On the Provincial Edict, Book XIX.
Where
a woman, after a divorce, marries another man and then dies; Fulcinius
does not think that the first husband should pay the expenses of the
funeral, even though he may have profited by the dowry.
(1)
Where anyone conducts the funeral of a daughter under paternal control,
before her dowry is returned to her father; he can very properly bring
suit against her husband, but where the dowry has been returned, he
can hold her father liable; but, at all events, where suit is brought
against the husband, he should return to the father of the woman that
much less.
30.
Pomponius, On Sabinus, Book XV.
On
the other hand, whatever the father has expended on the funeral of
his daughter, or paid on account of a funeral action having been brought
against him by another, he can recover from the husband in an action
of dowry.
(1)
But where an emancipated married woman dies during coverture, her
heirs, or the possessors of the property of her estate will be compelled
to contribute, as well as her father in proportion to the amount of
the dowry which he has received, and her husband in proportion to
the amount of the dowry by which he has profited.
31.
Ulpianus, On the Edict, Book XXV.
Where
a son under paternal control is a soldier and has castrense peculium,
I think that his successors are primarily liable, and that afterwards
recourse must be had to his father.
(1)
Anyone who buries a male or female slave belonging to another, has
a right of action against his or her owner for the recovery of the
funeral expenses.
(2)
This action is not limited to a year, but is perpetual; and is granted
to the heir and other successors, as well as against successors.
32.
Paulus, On the Edict, Book XXVII.
Where
the possessor of an estate conducts the funeral and afterwards loses
his claim to the estate, and, in delivering the same fails to deduct
the amount which he expended, he will be entitled to a praetorian
action for the recovery of the expenses.
(1)
Where both husband and wife die at the same moment of time, Labeo
says that this action should be granted against the heir of the husband
in proportion to the amount of the dowry to which he is entitled;
since the liability itself passed to him on account of the dowry.
33.
Ulpianus, On the Edict, Book LXVIII.
Where
a man was formerly heir, but the estate was subsequently taken from
him as being unworthy; the better opinion is that the right of sepulture
still remains with him.
34.
Paulus, On the Edict, Book LXIV.
Where
a place is bequeathed under a condition, and in the meantime the heir
buries the deceased, this does not make the place religious.
35.
Marcellus, Digest, Book V.
Our
ancestors were very far from thinking that anyone who came forward
for the destruction of his country and to kill his parents and children
should be mourned; so where a son killed his father or a father his
son, if either had been guilty of such an offence, they held that
the act was without criminality; and that the party should even be
rewarded.
36.
Pomponius, On Quintus Mucius, Book XXVI.
Where
a place is taken by the enemy it ceases to be either religious or
sacred, just as freemen pass into slavery. Where, however, such places
are freed from this calamity, they are restored to their former condition
by a kind of postliminium, as it were.
37.
Macer, On the Law of the Twentieth Relating to Successions, Book
I.
Under
the head of "funeral expenses" must be understood whatever
is disbursed on account of the body; for instance, in the purchase
of ointments, as well as the price of the place where the deceased
is buried, and where any rent that is to be paid, together with the
cost of the sarcophagus, the hire of vehicles, and anything else which
is consumed on account of the body before it is buried; I think should
be included in the funeral expenses.
(1)
The Divine Hadrian stated in a Rescript that a sepulchral monument
is anything which is erected as a monument, that is to say, for the
protection of the place where the body is laid; and therefore, if
the testator ordered a large building to be constructed, for example,
a number of porticos in a circular form, these expenses are not incurred
on account of the funeral.
38.
Ulpianus, On All Tribunals, Book IX.
It
is the duty of the Governor of a province to see that the bodies or
bones of deceased persons are not detained, or maltreated, or prevented
from being transported on the public highway, or buried.
39.
Marcianus, Institutes, Book III.
The
Divine Brothers decreed by an Edict that a body should not be disturbed
after it had been lawfully interred, that is to say, placed in the
ground; for a body is held to be placed in the ground where it is
deposited in a chest with the intention that it shall not be removed
elsewhere. It must not be denied, that it is lawful to remove the
chest itself to a more convenient spot, if circumstances demand it:
40.
Paulus, Questions, Book III,
For
where anyone has interred a body with the intention of subsequently
removing it to some other locality, and preferred to deposit it there
for a time rather than to bury it permanently, or to provide, as it
were, a last resting place for it; the place will remain profane.
41.
Callistratus, Institutes, Book II.
Where
several persons own the place where a body is brought for interment,
all of them must give their consent if the remains are those of a
stranger; for it is established that any one of the joint-owners themselves
can properly be buried there, even without the consent of the others,
especially when there is no other place in which he could be buried.
42.
Florentinus, Institutes, Book VII.
Generally
speaking, a monument is something which is handed down to posterity
by way of a memorial; and in case a body or remains should be placed
inside of it, it becomes a sepulchre; but if nothing of this kind
is deposited therein, it becomes merely a monument erected as a memorial
which is termed by the Greeks a cenotaph, that is to say an empty
sepulchre.
43.
Papinianus, Questions, Book VIII.
There
are persons who, although they cannot make a place religious, still
can very properly make application for an interdict with reference
to the burial of a dead body; as, for instance, where the mere owner
of property buries or wishes to bury a corpse in land of which the
usufruct is held by another, since, if he buries it there he will
not make the place a lawful sepulchre, but if he is prevented from
doing so, he can very properly make application for an interdict by
means of which an inquiry can be instituted as to the right of ownership.
The same rules apply to the case of a joint-owner who wishes to bury
a dead body in ground held in common against the consent of his co-owner;
for, on account of the public welfare, and in order that corpses may
not lie unburied, we have ignored the strict rule which sometimes
is dispensed with in doubtful questions relating to religious matters;
for the highest rule of all is the one which is favorable to religion.
44.
Paulus, Questions, Book III.
Where
interment is made in different places, both of them do not become
religious, for the reason that two sepulchres are not created by the
burial of one person; but it seems to me that place should be religious
where the principal part of the body is laid; that is to say, the
head, whereof a likeness is made by means of which we are recognized.
(1)
When, however, permission is obtained for remains to be removed, the
place ceases to be religious.
45.
Marcianus, Trusts, Book VIII.
Funeral
expenses are always charged to the estate, and it is customary for
them to take precedence of all other debts, when the estate is insolvent.
46.
Scaevola, Questions, Book II.
Where
a man had several tracts of land and bequeathed the usufruct of all
of them separately, he can be buried in any one of them, and the heir
shall have the right of selection, and the opportunity to favor the
others. A praetorian action will, however, be granted the usufructuary
against the heir, to enable him to recover damages to the amount that
the value of his usufruct is diminished by the selection.
(1)
Where the heir of a woman buries her body on land belonging to her
estate, he can recover from her husband the amount which he should
contribute towards the expense of the funeral, which depends upon
the value of the land.
(2)
Where clothing is bequeathed to anyone, and he sells it for the purpose
of paying the funeral expenses, it is held that a praetorian action
based on a prior claim should be granted against the heir.
Tit. 8. Concerning
the transport of a dead body, and the construction of a sepulchre.
1. Ulpianus, On the Edict, Book LXVIII.
The
Praetor says: "Whither or howsoever anyone has a right to transport
a dead body without your consent, I forbid force to be employed to
prevent him from taking the said dead body thither and burying it
there."
(1)
Where anyone has the right to bury a corpse, he must not be prevented
from doing so, and he is held to be prevented if he is hindered from
conveying the body to the place or is interfered with on the way.
(2)
The mere owner of the premises can make use of this interdict with
reference to the transport of a dead body; and, indeed, it is applicable
in the case of land which is not religious.
(3)
Moreover, if I have a right of way to a tract of land to which I desire
to take a corpse for burial, and I am prevented from using the said
right of way, it has been held that I can proceed by means of this
interdict; because, having been prevented from using the right of
way, I am also prevented from transporting the corpse; and the same
rule must be adopted where I am entitled to any other servitude.
(4)
It is evident that this interdict is a prohibitory one.
(5)
The Praetor says: "Wherever anyone has a right to take a dead
body without your consent, I forbid force to be employed to prevent
him from building a sepulchre on the land, if he does this without
malicious intent."
(6)
This Edict was promulgated because it is to the interest of religion
that monuments should be erected and adorned.
(7)
No one shall be prevented from building a sepulchre or a monument
in a place where he has a right to do so.
(8)
A person is held to be prevented when he is hindered in having material
transported which is necessary for erecting a building; and hence
if anyone prevents the workmen who are necessary from coming, there
will be ground for an interdict; and if anyone prevents the placing
of machinery the interdict will also be available, provided he does
this in a place which is subject to the servitude; but if you try
to set up your machinery on my land, I will not be liable to an interdict,
if I have the right to prevent you from doing so.
(9)
A person must be understood to "build" not only when he
begins a new work, but also where he wishes to make repairs.
(10)
When a man does something in such a way that a sepulchre falls down,
he is liable to this interdict.
2.
Marcellus, Digest, Book XXVIII.
The
Royal Law refuses permission for a woman who died during pregnancy
to be buried before her unborn child is removed from her; and anyone
who violates this law is held to have destroyed the hope of a living
child by the burial of the pregnant mother.
3.
Pomponius, On Sabinus, Book IX.
Where
anyone is building a sepulchre near your house you can serve notice
of a new structure upon him; but after the work has been completed,
you will have no right of action against him except by means of the
interdict Quod vi aut clam.
(1)
Where a body is buried near a house belonging to another but within
the limits prescribed by law, the owner of the house cannot afterwards
prevent the same party from burying another body there, or from erecting
a monument; if he acted with the knowledge of the owner from the beginning.
4.
Ulpianus, Opinions, Book II.
The
right to a burial-place is not acquired by a party through long possession,
if it does not lawfully belong to him.
5.
The Same, Opinions, Book I.
Where
human remains are deposited in a tomb which is said to be unfinished,
this does not offer any hindrance to its completion.
(1)
Where, however, the place has already been made religious, the pontiffs
should determine to what extent the desire of repairing the structure
may be indulged without violating the privileges of religion.