1.
Papinianus, Questions, Book III.
Where
a judgment is rendered in good faith, the rate of interest is determined
by the decision of the court, according to the custom of the place
where the contract was made, provided the amount does not exceed that
fixed by law.
(1)
If a partner should have judgment rendered against him on account
of his having misappropriated the funds of the partnership, and converted
them to his own use, he must, by all means, pay interest on the same,
even if he was not in default.
(2)
However, a judge who is to preside in a bona fide action cannot
properly order security to be given by the defendant that, if he loses
the case, he will pay interest until the judgment is satisfied, since
it is in the power of the plaintiff to cause execution to be issued.
Paulus states in a note that it is not part of the duty of the judge
to concern himself with what takes place after a decision has been
rendered.
(3)
Papinianus says a broader interpretation should be given with reference
to restitution made by a guardian in favor of his ward. For no one
now doubts that when a guardian renders his account he must pay interest
up to the time that he makes restitution, whether the judge receives
it up to the day that the decision was rendered, or whether this is
done out of court. It is clear that where the ward declines to institute
proceedings in an action on guardianship, and the guardian voluntarily
enters into an agreement with him, tenders him the money, and deposits
it in a sealed bag, he will not be liable for interest from that time.
2.
The Same, Questions, Book VI.
It
is generally settled that although a personal action may be brought
after issue has been joined, liability attaches to all the accessories
to the property. The reason for this opinion is, that the property
ought to be delivered in the same condition in which it was when suit
was brought for its recovery, and therefore, that all crops that have
been obtained, and any offspring born of slaves must be surrendered.
3.
The Same, Questions, Book XX.
In
the case of a demand made upon a surety where an heir was in default
after a judicial decision had been rendered, the Emperor Marcus Antoninus
ordered that where the time established by law in favor of parties
who had lost their cases had elapsed, the surety could recover everything
which had been acquired by his principal up to the time of the judgment.
This decree must be understood to apply where the party had not been
in default before the decision of the judge, although it cannot readily
happen that recourse may be had to the court where default has not
previously taken place; for instance, where the principle of the Lex
Falcidia becomes applicable. If, however, the heir is in default
before application is made to the judge, he being liable for the delivery
of the profits from that time; for which reason, as he has already
lost the case, will he be released from liability for the profits
after the lapse of the time fixed by law, since that period is granted
him for the purpose of satisfying the judgment, and not for obtaining
any advantage for himself?
(1)
In proceedings of this kind which are not subject to arbitration,
and are not bona fide actions, after issue has been joined,
everything connected with the property for which suit is brought must
be delivered to the plaintiff, up to the time of the judgment. It
is certain that the party will be free from liability for the profits
after a decision has been rendered.
(2)
It sometimes happens that although the profits of an estate or the
interest on money is not expressly bequeathed, it is, nevertheless
due; as, for example, where anyone requests that any of his property
should be left after his death, it shall be delivered to Titius; for
as diminutions made in good faith are not included in this trust,
if proportionate diminutions of other property should have taken place,
any remaining profits must be given up in accordance with the will
of the testator.
(3)
Pollidius, having been appointed heir to one of his female relatives,
was asked by her to deliver to the daughter of the woman, when she
had reached a certain age, any property belonging to her estate which
might come into his hands; and the mother stated in her will that
she had decided upon this step to prevent the property from being
placed under the control of guardians, and that she preferred that
a near relative should have charge of it. She directed the said Pollidius
to retain a certain tract of land for himself, and I stated to the
Praetorian Prefect that all the profits which had been acquired in
good faith from the property of the deceased by Pollidius should be
delivered, not only because the mother had left to him the tract of
land, but also for the reason that she had preferred this method of
creating a trust to the less reliable one of guardianship.
(4)
Where manufactured gold or silver is left in trust, and default takes
place, a discussion usually arises as to whether an estimate of interest
should be made. It is evident that if the testator left the metal
of which the articles were composed with the intention that it should
be sold, and the trust discharged by means of the money obtained,
or that maintenance should be furnished; it must be held that any
fraudulent conduct of the heir should not go unpunished. If, however,
the testator left the vases to be used by his heir, it would be improper
for interest to be demanded, and therefore it can not be exacted.
4.
The Same, Questions, Book XXVII.
If
you make a stipulation, "For property to be given to you, and
complete possession of the same to be delivered," reason suggests
that you should afterwards obtain the profits of said property which
have been collected by having recourse to a general action on stipulation,
on account of the last words of the clause. It
should be considered whether the same rule will apply to the offspring
of a female slave in a case of this kind; for, with reference to the
first words of the clause, whether they relate to the fact of the
property being promised, or to the effect of the delivery by the transfer
of ownership, offspring is not included. But if the purchaser, with
the intention of renewing the obligation, stipulated with the vendor
in this way, the fact of the delivery was understood to be agreed
upon, for the reason that it is not probable that the vendor promised
more than he would be compelled to furnish in an action on purchase.
Still, on account of the words, "And complete possession to be
delivered," it can be held that the accounting for the offspring
becomes operative on account of the stipulation being general in its
character; for after the female slave has been delivered, the party
to the stipulation would be entitled to include any child subsequently
born on his premises.
(1)
Where a child is born to a female slave after the sale has been contracted,
but before the stipulation has been entered into, or any property
is acquired by the vendor through the agency of the slave, he can
recover it by means of an action on purchase; but he cannot do so
by means of an action based on the stipulation, for whatever is not
transferred to a new obligation can be recovered under the former
right.
5.
The Same, Questions, Book XXVIII.
It
is proper to generally state that, in a bona fide action, no
guarantee which is contrary to good morals will be accepted.
6.
The Same, Questions, Book XXIX.
Where
a controversy arose with an heir, which had reference to a transaction
involving the property of a father or master, and the question of
interest was discussed, the Emperor Antoninus decided that interest
should be paid, for the reason that the master himself or the father
had paid it for a long time.
(1)
Our Emperor Severus also ordered that the sum of ten thousand sesterces
should be paid out of the Treasury by way of dowry, to the daughter
of Flavius Athenagoras, whose property had been confiscated, because
she alleged that her father had paid her interest on her dowry.
7.
The Same, Opinions, Book II.
A debtor,
who owed a sum of money bearing interest, tendered the amount to his
creditor, and when the latter refused to accept it, he placed it in
a bag, and sealed and deposited it. Reason demands that from this
day there should be no interest due. If, however, suit should afterwards
be brought to compel the debtor to pay, and he should fail to do so,
the money will not be idle from that time.
8.
The Same, Opinions, Book VII.
Where
horses have been left in trust, after default, the first foal must
be furnished as profit, but a second one as accessory, just as in
the case of the offspring of a female slave.
9.
The Same, Opinions, Book XI.
Where
money was lent at interest, and double the amount was contracted for
if it should not be paid within a certain time; I gave the opinion
that the debtor is not liable for anything more than the legal rate
of interest; hence the stipulation will be operative in proportion
to the time which has elapsed after a deduction has been made of the
surplus interest.
(1)
The stipulation for interest becomes operative even though the debtor
may not be sued; nor is a stipulation for legal interest held to be
void where it is made under the condition that it will be due if interest
at a lower rate should not be paid at the appointed time, for it is
not a penalty, but a higher rate of interest that is promised for
a lawful reason. Where, however, there was no one to whom the money
could be paid after the death of the creditor, it is established that
the debtor is not in default during that time. Therefore, if a higher
rate of interest is demanded, and was agreed upon in the first place,
an exception on the ground of bad faith can properly be interposed.
10.
Paulus, Questions, Book II.
The
possessor should surrender a child born to a female slave after issue
has been joined, but he is not obliged to give it up if it was born
before proceedings were instituted for the recovery of the mother,
unless the plaintiff expressly brought the suit for said child.
11.
The Same, Questions, Book XXV.
Gaius
Seius, who was in the habit of transacting public business, lent money
belonging to the Government at the ordinary rate of interest, but
the custom existed to exact a higher rate where the interest was not
paid within a certain time. Some of the debtors were in default in
paying their interest, others paid more than they owed, and the result
was that everything due by way of interest was made up, even that
of those who had failed to pay anything. The question arose whether
the surplus interest which was collected from some of the debtors,
by way of penalty, according to the prevalent custom, should profit
Seius himself, or should enure to the benefit of the Government? I
answered that if Gaius Seius stipulated for interest from the debtors,
that alone must be paid to the Government which, according to the
rule, it was customary to collect from them, even though all the claims
were good.
(1)
What if a public slave should have obtained an obligation bearing
interest for the benefit of the Government? It is just that, although
by law this interest should be due to the Government, still, on account
of certain claims which are bad, a set-off of the surplus interest
should be made, if the Government was not prepared to seize the property
of all the debtors. Marcellus states almost the same opinion with
reference to guardians.
12.
The Same, Opinions, Book XII.
Seia
borrowed money from Septitius, and it was agreed with reference to
the interest: "That unless the above-mentioned interest was paid
at the different times specified, or within three months, Seia would
then be liable for a higher rate, and afterwards, at each payment,
if the interest was not forthcoming in accordance with the prescribed
condition, the said condition should be observed until the entire
sum due was paid." I ask whether the following words, "And
afterwards, at each payment, if the interest is not forthcoming, in
accordance with the prescribed condition, the said condition shall
be observed," mean that even though the first stipulation may
become operative, still, the debtor cannot be sued for a larger amount
of interest than was due at the time appointed for the first payment,
when she was in default. Paulus answered that the stipulation contains
several conditions, and that it is subject to the payment of a higher
rate of interest; that is to say, that the condition should be considered
with reference to each payment of a lower rate of interest which should
have been, but was not made at the proper time, and therefore that
the penalty for subsequent payment could be avoided.
13.
Scaevola, Opinions, Book I.
Where
a debtor promised to pay interest at six per cent, and for many years
paid interest at a lower rate, and the heir of the creditor brought
suit for six per cent, although the debtor had done nothing to avoid
payment at the lower rate, I ask whether an exception on the ground
of bad faith, or one based on the contract can be interposed? I answered
that, if the debtor had not been in default in paying the lower rate
of interest, according to his custom, for so long a time, an exception
could be interposed in accordance with the facts stated.
(1)
The question arose whether an agent should pay interest on idle money,
if his principal was not in a habit of lending money at interest,
where an action has been brought on the ground of voluntary agency,
or on that of mandate? The answer was that, if he had held the money
on deposit and had done this in accordance with the custom of the
mandator, he would not be obliged to pay anything by way of interest.
14.
Paulus, Opinions, Book XIV.
Paulus
gave it as his opinion that where a party is in default in discharging
a trust, the offspring of female slaves must be given up.
(1)
An heir was requested to surrender the estate to someone without the
income from the same after his death. The question arose whether the
offspring of female slaves, even if born during the lifetime of the
heir, should be given up, on account of the words of the will by which
the testator intended to indicate that the income alone of the estate
should be reserved. Paulus answered that any children born to female
slaves before the trust became operative, were not included therein.
Neratius also says in the First Book that where an heir was requested
to deliver a female slave he is not required to deliver her offspring,
unless the child was born while he was in default in discharging the
trust. Nor do I think that it makes any difference whether the female
slave was the special object of the trust, or whether she was merely
a part of the estate left in trust.
15.
The Same, Opinions, Book XVI.
Paulus
holds that it is not necessary to pay interest on any profits acquired
after issue has been joined, and which the judge, in the discharge
of his duty, directs to be turned over, nor on those which have been
collected before that time, and which are stated to have been fraudulently
obtained by the possessor.
16.
The Same, Decrees, Book I.
Interest
is not exacted on money given to the Government by way of liberality.
(1)
When interest on the price of a tract of land was demanded of a party
who had purchased it from the Treasury, and the purchaser denied that
possession had been delivered to him; the Emperor ruled that it was
unjust for interest to be exacted of one who had not gathered the
crops.
17.
The Same, On Interest.
Where
a man bound himself to pay interest at the rate of five per cent per
annum, and if he failed to do so for any one year, he would then pay
six per cent on the entire sum of money from the day on which he borrowed
it, and after paying the interest for some years the stipulation finally
became operative; the Divine Marcus stated in a Rescript addressed
to Fortunatus: "Go to the Governor of the province who will reduce
to the measure of its just requirements the stipulation whose injustice
you complain of." This
Constitution far exceeds the proper limit. What course should then
be pursued? The matter must be adjusted so that, in the future, the
interest will only increase from the day of default.
(1)
The Divine Pius stated in a Rescript: "You are claiming accrued
interest due with very little justice, as the interval of a long time
indicates that you have neglected to collect it, for the reason that
you intended, by not demanding it from your debtor, to render yourself
more agreeable to him."
(2)
In the case of an implied trust, the Divine Pius stated in a Rescript
that the heir should be deprived of all profits, and that they should
be turned over to the debtor; and therefore that the heir should be
deprived of the benefit of the interest.
(3)
Where a trust cannot be executed for the benefit of a ward because
he has no guardian, the Divine Pius stated in a Rescript that the
heir is not considered to be in default. Therefore, nothing is due
to him who has been absent on public business, or has been prevented
by any other just cause from bringing an action for restitution. For
how can a party be to blame who cannot pay, even if he wishes to do
so? The same principle does not apply in this case as in that where
relief is given to minors who have failed to obtain an advantage,
for interest is not imposed on account of the gain to the plaintiff,
but because of the delay of those who should make payment.
(4)
Where a party makes a contract with reference to a lease, unless it
is agreed that interest shall be due on rent which is not promptly
paid, the lessee will not be obliged to pay interest except in case
of default.
(5)
The Treasury does not pay interest on account of any contract entered
into by it, but collects it; as is customary in the case of the keepers
of public privies who are slow in paying their rent; and also in the
case of those from whom taxes are due. But where the Treasury takes
the place of a private individual, it is the custom for it also to
pay interest.
(6)
Where debtors pay interest under six per cent, and they then become
debtors to the Treasury, after their obligations have been transferred
to the Treasury, they will be compelled to pay six per cent.
(7)
It is very well known that those who are sued on account of their
mismanagement of public funds are liable to the payment of interest.
The same rule is observed where persons have charge of public works,
if money remains in their hands; but with reference to what they have
paid to contractors, even though they paid it negligently, the interest
will be remitted to them. This is the case, however, where no fraud
exists, otherwise interest will also be due.
(8)
Where no definite time has been specified by persons who have bequeathed
statues or paintings to be erected or hung in some public place, the
time shall be fixed by the Governor; and if the heirs do not comply,
they must pay to the Government interest at the rate of one-third
of one per cent a month.
18.
The Same, Opinions, Book III.
If
it was agreed in the beginning that, in case of the eviction of certain
lands, the vendor shall refund the price, interest must also be paid
after eviction, even though the purchaser may have paid to his adversary
all the profits collected after the action for the ownership of the
property was begun; as any inconvenience sustained during the intermediate
time must be borne by the purchaser.
(1)
Where the vendor dies after possession has been delivered, and it
is uncertain who his successor will be, the interest on the price
must be paid if it was not placed on deposit.
19.
Gaius, On the Law of the Twelve Tables, Book VI.
Let
us see whether judgment will also be rendered against the possessor
in every case where suit is brought for the profits. For what if he
should bring an action for silver, clothing, or anything else of this
kind, or for the usufruct, or for the mere ownership of the property
where the usufruct belongs to another? For no profit, to which this
term can rightly be applied, can be understood to be derived from
the mere ownership; nor, on the other hand can the usufruct properly
be considered as profit. But what if an action is brought to recover
the mere property? The profits will be included in the claim from
the day that the usufructuary lost his usufruct. Moreover, if suit
is brought for the usufruct, Proculus says that the defendant will
have judgment rendered against him for all the profits which have
been collected. Again, Gallus Aelius holds that if suit is brought
for clothing, or a cup, whatever could be collected by way of rent,
if the articles were leased, should be classed as profit.
(1)
Where suit is brought to recover a right of way, it will be difficult
for any profits resulting therefrom to be estimated, unless some advantage
which the plaintiff could have enjoyed from the servitude should be
classed as profits, if he was not prevented from doing so at the time
that he brought the action; and this should be admitted as correct.
20.
Paulus, On Sabinus, Book XII.
It
is settled that, where illegal interest is united with the principal,
the said interest will not be due, but this does not affect the principal.
21.
Ulpianus, On the Edict, Book XXXIV.
It
must be remembered that not everything which is done for a good reason
in order to postpone payment should be considered as default. For
what if the debtor desires his friends to be present, or his sureties
to be summoned at the time that the debt is paid, or intends to offer
some exception? It is not held that he is guilty of default;
22.
Paulus, On the Edict, Book XXXVII.
Provided
this is not done deceitfully for the purpose of committing fraud.
23.
Ulpianus, On the Edict, Book XXXIV.
Where
a debtor is suddenly compelled to be absent on public business, and
cannot entrust his defence to anyone, he is not held to be in default;
and this is the case where he is in the power of the enemy.
(1)
Sometimes it is customary for a party to be considered to be in default
where there is no one against whom suit can be brought.
24.
Paulus, On the Edict, Book XXXVII.
Where
anyone delays in making payment, but is ready to join issue in the
suit, he is not held to be in default, at least if he has just cause
for applying to the court.
(1)
Where the principal debtor is in default, the surety is also liable.
(2)
A debtor is in default to his creditor where he does not make payment
either to the creditor himself or to someone whom he has directed
to receive the money, or to him who is in the habit of transacting
his business. In this instance it is not held that he acquires, anything
through a free person, because these parties are only discharging
their duties; just as where anyone arrests a thief in the act of stealing
from me, he is transacting my business, and acquires for me a right
of action for manifest theft. Again, where an agent makes a demand
for a slave upon a promisor, he renders the stipulation perpetual.
25.
Julianus, Digest, Book VII.
A party
who is aware that a tract of land is jointly owned by himself and
another, and who gathers the crops from the same without the knowledge
or consent of his fellow-owner, does not acquire a right to any greater
portion of them than his interest in the land entitles him to. Nor
does it make any difference whether he or his fellow-owner, or both
of them, sow the seed, for the ownership of every kind of crop is
acquired, not through the right to the seed, but through that to the
soil; and just as where a party who knowingly has possession of a
tract of land belonging to another, cannot acquire the ownership of
any part of the crop, no matter in what way the land has been sown;
so also, he who has possession of land belonging to himself and another,
will acquire no right to the crop on that portion of the land which
belongs to his fellow-owner.
(1)
I sowed wheat on land belonging to another which Titius had bought
in good faith; will Titius, the bona fide purchaser, have a
right to the crop after it has been harvested? I answered that the
profits obtained from a tract of land should be understood to closely
resemble those which slaves acquire by their labor; for in gathering
crops more consideration is paid to what produces them than to the
seed from which they are derived, and therefore no one can ever doubt
that if I should sow your wheat on my own ground, the crop and whatever
may be collected from the harvest will belong to me. Again,
a possessor in good faith has the same right to harvest the crop which
is granted to the actual owner of the land. Besides, since crops of
every kind, no matter by whom they have been sowed, belong to the
usufructuary, much more does this apply to bona fide possessors
who have a still better right to the crops, since they do not belong
to the usufructuary until they have been gathered by him, but they
belong to the bona fide possessor, without reference to how
they may have been separated from the soil; just as in the case of
a party who holds land on the condition of paying a tax, the crops
become his as soon as they are separated from the soil.
(2)
A bona fide purchaser sowed land of which he was in possession,
and, before he harvested the crop, ascertained that the land belonged
to someone else. The question arises, will he be entitled to the crop
after it is harvested? I answered that a bona fide purchaser
should be understood to have a right to harvest the crop, provided
the land has not been evicted, for whatever a slave belonging to another,
and whom I purchased in good faith, acquires for me by means of my
property or by his own labor, is mine, so long as he is not evicted.
26.
The Same, On Minicius, Book VI.
Julianus
denies that game constitutes the profit of land, unless the profit
of the land consists of game.
27.
Africanus, Questions, Book VIII.
Where
a debtor is in default to the head of a household, no inquiry is made
as to whether he is in default to his heir; because the right passes
to the next heir by inheritance, and is therefore also transmitted
to all others in succession.
28.
Gaius, Daily Occurrences, Book II.
The
yield of flocks, such as milk, hair, and wool, is also considered
profit. Therefore lambs, kids, and calves, at birth, immediately become
the absolute property of a bona fide possessor, or an usufructuary.
(1)
The offspring of a female slave is not, however, considered to be
profit, and therefore belongs to the owner of the property. For it
would seem absurd for a man to be classed under the term "profit,"
when Nature has prepared the fruits of everything for the benefit
of the human race.
29.
Marcianus, Institutes, Book XIV.
It
is settled that where anyone has stipulated for interest above the
legal rate, or for compound interest, what is unlawfully added is
not held to be added at all, and legal interest can be collected.
30.
Paulus, Rules.
The
interest on money lent by municipalities will be due to them, even
under a contract without consideration.
31.
Ulpianus, Opinions, Book I.
Where
the following has been added to a stipulation, "and interest,
if any is due," it will be void if the rate of interest is not
mentioned.
32.
Marcianus, Rules, Book IV.
Default
is understood to apply, not to the property, but to the person; that
is to say, where the party, after having been notified at the proper
place, does not make payment; and this should be investigated by the
court, for, as Pomponius says in the Twelfth Book of Epistles, the
definition of this term is difficult. The Divine Pius stated in a
Rescript addressed to Tullius Balbus, that the meaning of the word
"default" cannot be determined by reference to any Constitution,
nor by inquiry of legal authorities, since it is rather a question
of fact than of law.
(1)
Proof of default is not sufficient where notice is served upon a slave
of the absent debtor by the creditor, or the agent of the latter;
since it is held that the master himself must be notified. But, if
subsequently, when the creditor has the power to do so, he should
neglect to prosecute the action instituted for the recovery of the
debt, the debtor will not be understood to be in default from that
time forward.
(2)
In bona fide contracts, interest becomes due through default.
(3)
But what if a son under paternal control and his father, to whom the
liability of the former has passed, owe a debt which has been contracted
by order of the father; or if the money has been expended for his
benefit; or if it has become a part of the peculium of the
son; which one of the parties must be considered to be in default?
If only the father is sued on account of being in default, he cannot
be held liable; still, an action will be granted against the son for
the benefit of the creditor, to compel him to pay what the creditor
has failed to collect from the father. Where, however, the son is
in default, the creditor then can sue him for the entire sum, or he
can sue his father only for the amount of the peculium.
(4)
But where two debtors have bound themselves jointly, the default of
one does not prejudice the rights of the other.
(5)
Moreover, if a surety alone is in default, he will not be liable;
just as if he had killed his slave Stichus, whom he had promised to
deliver, but a praetorian action will be granted against him.
33.
Ulpianus, On the Duties of the Curator of the Government.
Where
the money of the Government has been well placed, the debtor should
not be uneasy on account of the principal, and especially is this
the case where the money bears interest; or if it does not do so,
the Governor of the province should provide for the security of the
Government, only he must not show himself to be a harsh and insulting
collector, but he must act with moderation, and be kind and efficient,
and humane and firm; for there is a great deal of difference between
disdainful insolence and diligence which is not prompted by ambition.
(1)
Again, he should take care that the public money is not lent without
good pledges or security.
34.
The Same, On the Edict, Book XV.
Interest
takes the place of produce, and therefore should not be separated
from it; hence in legacies and trusts, in actions on guardianship,
and in all other bona fide actions, this rule is observed.
Wherefore we say that the same principle applies to all other accessions.
35.
Paulus, On the Edict, Book LVII.
Interest
runs after issue has been joined in a case.
36.
Ulpianus, On the Edict, Book LXI.
The
rents of urban estates are considered to be profits.
37.
The Same, On the Edict, Book X.
Interest
is included in the counter-action based on the ground of voluntary
agency, where I borrow money in order to pay your creditor, because
he was either to be placed in possession of your property, or about
to sell your pledges. But what if, having the money at home, I paid
the debt for one of the above-mentioned reasons? I think that it is
true that interest should be paid where I have freed you from such
a great inconvenience, but only such as is customary in that part
of the country should be considered due; that is, such as has been
established in the case of bona fide actions. But
if I should pay money after borrowing it, the interest which I myself
have paid can be collected; provided that, by doing so, I have been
of greater benefit to you than the value of this interest.
38.
Paulus, On Plautius, Book VI.
Let
us consider, in a general way, where the produce of property is included
in a personal action.
(1)
And, in fact, where a tract of land is transferred for some consideration
or other, as, for instance, by way of dowry, or that a marriage may
be renounced, the crops should also be given up, that is to say those
which have been gathered during the time that the marriage contract
lasted; but, so far as those which have been gathered afterwards are
concerned, if there was any default with reference to the property
on the part of him whose duty it was to surrender it, they should
by all means be included. Even if it was the woman's fault that the
marriage was not solemnized, the better opinion is that the crops
should be given up. The reason for this is that if the woman's betrothed
was not compelled to surrender the crops, he would have been able
to neglect the land.
(2)
Moreover, if I have paid money which was not due for land, and I bring
suit to recover it, I ought also to recover the crops.
(3)
The same rule applies where land is given mortis causa, and
the party who gave it regains his health, and therefore a right to
a personal action for its recovery arises.
(4)
In both the Fabian and Paulian Actions, by means of which property
which has been disposed of for the purpose of defrauding creditors,
is recovered, the produce of said property must also be returned;
for the Praetor uses his authority to place everything in the same
condition as if nothing had been alienated; and this is not unjust,
for the words, "you shall return," which the Praetor makes
use of in this matter, have a broad signification, so that the produce
of the property must also be surrendered.
(5)
And, therefore, when the Praetor agrees to the restitution, the produce
must also be given up; as in proceedings under the interdict based
upon the commission of violence.
(6)
Moreover, if, induced by force or fear, I give up property, it is
not held to be restored to me unless the produce of the same is also
restored; nor can my default deprive me of any of my rights.
(7)
If I am entitled to an action to recover something which is not mine,
as, for example, on a stipulation; I cannot recover the produce, even
if the other party is in default. But if issue has been joined, then
Sabinus and Cassius hold that, according to the principles of equity,
any profits which may have afterwards accrued must be delivered up,
in order that the case may be placed in its original condition. I
think that this opinion is very correctly stated.
(8)
The profits of property must also be restored in the case of a purchaser.
(9)
In a partnership, however, the profits must be divided among the partners.
(10)
Where I revoke the natural possession of property it remains mine;
but let us see whether this applies to the profits. And, in fact,
in cases of deposit and loan for use, the profits must be given up,
as we have already stated.
(11)
Again, in proceedings under an interdict based on force and clandestine
action, the better opinion is that all accessions and profits should
be returned.
(12)
Crops gathered from land before marriage become part of the dowry,
and should be returned along with it.
(13)
The same principle applies to the profit of urban estates.
(14)
Moreover, if I wish to divide a tract of land with you and you refuse,
and I cultivate the land, should the crops from it be divided after
the expenses have been deducted? I think that they should be divided.
(15)
The profits should always be delivered in other bona fide actions.
(16)
Where a dowry is left by a husband to his wife, the profits of the
same obtained before marriage are included in the legacy.
39.
Modestinus, Differences, Book IX.
Where
mares have been left in trust, their foals are also due after the
heir is in default. Where a number of horses have been left, even
though there be no default, their offspring belongs to the increase
of the drove.
40.
The Same, Rules, Book IV.
The
calculation of interest is legally made up to the day when the creditor
sells his pledges.
41.
The Same, Opinions, Book III.
Judgment
having been rendered against a guardian, he delayed the execution
of the judgment by taking an appeal. Herennius Modestinus gave it
as his opinion that the judge who had jurisdiction of the appeal could
also hold him responsible for interest during the intermediate time,
if he ascertained that the appeal was fraudulently interposed for
the purpose of delay.
(1)
Lucius Titius, who owed the sum of a hundred aurei and interest
on the same for a certain time, tendered and sealed up a smaller sum
than he owed. I ask whether Titius did not owe interest on the money
which he sealed up. Modestinus answered that if it was not agreed
at the time of the loan that the debtor should be permitted to pay
what he had borrowed by instalments, the payment of interest for the
entire debt would not be affected; if, when the creditor was ready
to receive the whole amount, the debtor who failed to make the payment
of the entire sum only deposited a part of it.
(2)
Gaius Seius borrowed a certain sum of money from Aulus Agerius on
the following note: "The undersigned says that I have received,
and I acknowledge having received from him, borrowed money to the
amount of ten aurei, which I promise to pay to him on the Kalends
of next July, together with the interest on the same that is agreed
upon between us." I ask whether interest can be collected on
this instrument, and if so, how much. Modestinus answered that if
it does not appear how much interest was agreed upon, it cannot be
collected.
42.
The Same, Opinions, Book XI.
Herennius
Modestinus gave it as his opinion that crops taken from land after
the ownership of the same had been acquired by means of a trust, belonging
to the beneficiary; even though the greater part of the year had elapsed
before the trust became operative.
43.
The Same, Opinions, Book XVIII.
Herennius
Modestinus held that a party who institutes proceedings in behalf
of the Treasury can collect interest which was not included in the
stipulation, after he has collected what is due to the Treasury for
the time during which the debtor was in default.
44.
The Same, Pandects, Book X.
No
one can stipulate for a penalty instead of interest above the lawful
rate.
45.
Pomponius, On Quintus Mucius, Book XXII.
A wife,
or a husband, acquires the right to the produce of property which
has been given by one to the other, that is to say, what either has
been acquired by his or her labor, for example, by sowing; but if
an apple should be plucked, or a tree cut down, it does not become
the property of the party responsible for the act, just as it would
not belong to any bona fide possessor, because the produce
is not derived from his or her personal exertion.
46.
Ulpianus, On the Edict, Book LXII.
There
is no doubt that whatever has been expended in gathering the crops
should be deducted from the crops themselves.
47.
Scaevola, Digest, Book IX.
It
is held that where a party is ready to join issue in a case, and his
adversary fails to file his complaint, he will not be held to be in
default.
48.
The Same, Digest, Book XXII.
A husband
bequeathed to his wife the usufruct of the third part of his property,
and the ownership of the said third part if she should have children.
The heirs accused the wife of forging the will and of other crimes,
by which they were prevented from claiming the legacies. In the meantime,
a son was born to the woman, and the condition of the legacy was thereby
fulfilled. The question arose, if it was established that the will
was not forged, should the crops be delivered to the owner? The answer
was that they should be.
49.
Javolenus, On the Last Works of Labeo, Book II.
The
power of giving property in pledge is a product of the same.
Tit. 2. Concerning
maritime interest.
1. Modestinus, Pandects, Book X.
Money
is transported which is carried across the sea. If, however, it is
expended in the same place where it was lent, it cannot be designated
as transported. Let us see, however, whether merchandise purchased
with this money will be considered to occupy the same position. It
makes a difference whether the merchandise is carried at the risk
of the creditor, for then the money will be transported.
2.
Pomponius, On Plautius, Book III.
Labeo
says if there is no one who can be notified on the part of the promisor
with reference to money which is to be transported, an instrument
should be drawn up in the presence of witnesses, which will take the
place of a notification.
3.
Modestinus, Rules, Book IV.
In
the case of money transported by sea, it is at the risk of the creditor
from the day on which it is agreed that the ship will sail.
4.
Papinianus, Opinions, Book III.
It
makes no difference whether the money to be transported is not at
the risk of the creditor when it is received, or whether it ceases
to be at his risk after a certain time, or upon the fulfillment of
a certain condition; and therefore in either instance a higher rate
of interest than is legal will not be due. In the first instance,
a higher rate can never be demanded; in the second, when the risk
has ceased to exist, neither pledges nor hypothecations can be retained
for the purpose of collecting a higher rate of interest.
(1)
If slaves should be sent with the money transported, for the purpose
of collecting it when due, interest for every day mentioned in the
stipulation will be payable to the limit of twelve per cent; but more
than twice the amount cannot be collected. Where it was separately
stated in the stipulation, with reference to the interest, when the
money would be no longer at the creditor's risk, whatever lawful interest
was lacking in one clause will be supplied by the effect of the other.
5.
Scaevola, Opinions, Book VI.
The
price is for the risk incurred, and resembles the case where you are
entitled to receive what you paid and something besides, under a condition
(even though it be a penal one) which was not fulfilled, provided
it does not depend upon chance; for instance, one from which personal
actions are accustomed to arise, as, "If you manumit a slave,
if you do not perform a certain act, if I do not recover my health,"
etc. There will be no doubt that if, in order to equip a fisherman,
I give him a certain sum of money on condition that he will repay
me if he makes a good catch; or if I furnish money to an athlete in
order that he may exhibit himself and practice his profession; on
condition that, if he is successful, he will repay it.
(1)
In all these instances, however, where an agreement is made without
a stipulation, it causes the obligation to increase.
6.
Paulus, Questions, Book XXV.
A broker
who lent money at maritime interest, received certain merchandise
which was in the ship by way of pledge, under the condition that if
this was not sufficient to discharge the entire debt, he could have
recourse to other merchandise loaded in different vessels, and which
had already been pledged to other brokers with the understanding that
if anything remained after they were satisfied, it would be considered
pledged to the first broker. The question arose, if the first ship
which contained sufficient merchandise to pay the entire debt should
be lost, whether the loss should be borne by the creditor if the ship
was destroyed within the days appointed to make the voyage; or whether
he would still have a claim upon the merchandise which remained in
the other ships. I answered that in other cases the diminution of
the property pledged is at the risk of the debtor, and does not concern
the creditor, but when money to be transported is paid on such a condition
that the creditor will have no claim unless the vessel arrives safely
at its destination within the specified time, the obligation of the
loan itself, where the condition is not fulfilled, is held to be at
an end; and therefore the right of the creditor to even those pledges
which were not lost will be extinguished. If the ship should be lost
within the specified time, and the condition of the stipulation is
held not to have taken place, no question can then be raised with
reference to the availability of the pledges which were in the other
vessels. But when can the creditor claim possession of the other pledges?
He will certainly be able to do so when the condition of the obligation
is fulfilled; or the pledges which he first received have been lost
by some accident, or sold at too low a price; or if the vessel should
be lost after the time has passed during which he was bound to assume
the risk.
7.
The Same, On the Edict, Book III.
There
are certain contracts by which interest is due, just as in the case
of a stipulation. For if I give ten aurei to be transported
by sea, on condition that if the ship arrives safely I will be entitled
to the principal together with a certain amount of interest, it must
be held that I can receive the principal and interest.
8.
Ulpianus, On the Edict, Book LXXVII.
Servius
says that a penalty for money transported by sea cannot be demanded,
if the creditor was to blame for not receiving it within the specified
time.
9.
Labeo, Epitomes of Probabilities by Paulus, Book V.
If
a penalty for failure to pay money transported by sea is promised,
as is customary, even though on the first day when it is payable no
one should be living who owed the said money, still, the penalty can
be exacted, just as if there was an heir to the debtor.
Tit. 3. Concerning
proofs and presumptions.
1. Papinianus, Questions, Book III.
Whenever
a question is raised with reference to the family or race of any person,
he must prove whether he belongs to it or not.
2.
Paulus, On the Edict, Book LXIX.
Proof
is incumbent upon the party who affirms a fact, not upon him who denies
it.
3.
Papinianus, Opinions, Book IX.
Where
an implied trust is charged upon a party who is appointed heir for
an equal or a larger share of the estate, by both a first and a second
will, the proof of changed intention on the part of the testator devolves
upon him against whom suit is brought; for often a motive of secrecy
induces owners of property to appoint persons heirs in whose good
faith they have confidence.
4.
Paulus, Opinions, Book VI.
The
purchaser must prove that the slave in question had taken to flight
before he purchased him.
5.
The Same, Opinions, Book IX.
Where
anyone alleges that his adversary is deprived of some right by a particular
law or constitution, he must prove it.
(1)
Paulus also holds that where anyone denies that emancipation has been
legally accomplished, he must furnish proof of his statement.
6.
Scaevola, Opinions, Book II.
A patron
must clearly show that his freedman has given something for the purpose
of cheating him, in order to be able to revoke a portion of what has
been fraudulently bestowed.
7.
Paulus, Sentences, Book II.
Where
evidence of former flight is lacking, a slave shall be believed, if
put to the torture, for he is held to be interrogated in his own behalf,
and not for or against his master.
8.
The Same, On Plautius, Book XVIII.
If
a son under the control of his father denies the fact, the Praetor
must direct the son to first prove his allegation, and this rule has
been established on account of the affection which he ought to manifest
for his father, and because the son practically alleges that he is
free. Hence anyone who asserts his right to freedom is in the first
place, ordered to prove it.
9.
Celsus, Digest, Book I.
Where
an agreement is made in which there is no mention of an heir, the
question arises whether this has been done in order that only the
person of the party himself may be considered. But although it may
be true that he who makes use of an exception must establish good
ground for doing so; still, the plaintiff, and not he who pleaded
the exception, must prove that the agreement merely had reference
to himself, and did not include his heir, because in such cases, we
generally provide for our heirs as well as for ourselves.
10.
Marcellus, Digest, Book III.
The
Senate decreed that the registers of the Censor and the public records
are better evidence than that of witnesses.
11.
Celsus, Digest, Book XI.
A ward
is not compelled to prove that the sureties furnished by his guardian
were not solvent when they were accepted, for proof of this must be
required of those whose duty it was to watch over the ward, and provide
security for him.
12.
The Same, Digest, Book XVII.
Fifty
aurei were bequeathed to you by will, and the same legacy was
included in codicils which were subsequently executed. It is important
to ascertain whether the testator intended to double the legacy, or
merely to repeatedly mention it, or did so, having forgotten that
he had already made the bequest in his will. From which party then
must proof of the intention of the testator be exacted? At first sight,
it would appear more just that the plaintiff should prove what he
claims, but there is no doubt that proof is sometimes required of
the defendant; for if I bring suit for a claim and the defendant answers
that the money has been paid, he himself is required to establish
this. Therefore, in the present instance, if the plaintiff exhibits
two instruments, and the heir alleges that the last one is void, the
latter must prove this in court.
13.
The Same, Digest, Book XXX.
Where
an inquiry was made with reference to the age of a man, our Emperor
issued the following Rescript: "It is both hard and unjust, when
a question arises with reference to a party's age, and different statements
are made, that one should be accepted which is prejudicial; but in
the trial of a case the truth should be considered, and his age should
be computed according to the document which seems to be most credible,
and to deserve the greatest confidence in the investigation of the
matter."
14.
Ulpianus, On the Office of the Consul, Book II.
Inquiries
should be made with reference to a person who, having passed as a
freedman, now alleges that he is freeborn and desires to proceed as
plaintiff. If, indeed, he occupies the position of a freedman, there
is no doubt that he must bring an action to have himself declared
freeborn, and establish that this is the case. But if he enjoys the
reputation of having been born free, and he is alleged to be a freedman
(of course by him who is responsible for the controversy), he who
says that he is his freedman must prove it. For what difference does
it make whether anyone asserts that he is his slave or his freedman?
Where, however, a party has sufficient confidence in his claim of
freedom of birth as voluntarily to undertake to produce proofs of
it for the purpose of obtaining a decision declaring him freeborn
(that is to say that he was born free as he alleges), it may be asked
whether he should be permitted to do so. I am of the opinion that
this should be done, and that he should have an opportunity to prove
that he is freeborn, and have a decision rendered in his favor, as
no one can be taken at a disadvantage by such a judgment.
15.
Modestinus, Opinions, Book XII.
A certain
man, asserting that he was the son of Seia and Gaius, seized the estate
of Gaius, although the latter had brothers, and discharged certain
trusts in favor of these brothers, as if by the direction of the deceased,
and took a receipt. They, having afterwards ascertained that the alleged
son was not their brother, asked whether they could bring an action
against him to recover the estate, on account of the receipt which
they had given him as the son of the deceased. Modestinus answered
that the position of the party to whom the receipt had been given
in discharge of the trust, and who could be proved by the brothers
of the deceased not to be his son, was not in the slightest degree
established by this fact, but that proof must be submitted by the
brothers.
16.
Terentius Clemens, On the Lex Julia et Papia, Book III.
The
statement of a mother as to the birth of her children, as well as
that of a grandfather, must be accepted.
17.
Celsus, Digest, Book VI.
When
a question is raised with reference to the Lex Falcidia, the
heir must prove that this law is applicable, because if he cannot
do so, judgment will properly be rendered against him.
18.
Ulpianus, Disputations, Book VI.
Whenever
services are demanded of a freedman, proof of his right to do so is
required from the party who alleges that he is his patron; therefore
Julianus holds that, although in a matter which is in controversy
the patron is held to be entitled to possession, he who is said to
be the freedman should not take the part of plaintiff, but he who
asserts that he is the patron should do so.
(1)
Where anyone alleges that some fraudulent act has been committed,
he must prove the fraud, even though he may have made this statement
in an exception.
(2)
The plaintiff should be compelled to prove the truth of an interrogatory
which is made, that is, where it is alleged that a party who was interrogated
in court answered that he was the sole heir; or if, having been interrogated,
he is said to have remained silent, the same rule must be held to
apply; and the blame must be placed not upon him who stated in his
exception that he did not answer, but upon the plaintiff.
19.
The Same, Disputations, Book VII.
It
must be said, with reference to exceptions, that the defendant is
required to perform the part of plaintiff, and he himself prove his
exception, just as the plaintiff must prove his claim; for instance,
where he pleads an exception on the ground of a contract entered into,
he must show that the contract was actually made.
(1)
Where anyone who promised to appear in court alleges as a reason for
not doing so that he has been absent on public business, or that some
malicious act of his adversary prevented him from appearing, or his
health, or a storm hindered him, he must prove it.
(2)
Where a party makes use of an exception on the ground that the appointment
of the attorney of his adversary is not valid, because his adversary
could not appoint, or be appointed an attorney, he must prove the
truth of the exception which he has interposed.
(3)
The same rule will apply where suit is brought for a sum of money
which is alleged to have been paid.
(4)
Again, where an exception is pleaded on the ground of a decision rendered;
or because an oath is said to have been tendered with reference to
the property for which suit now is brought, or because the matter
in controversy has reference to a game of chance, the party who filed
the exception must prove all these allegations.
20.
Julianus, Digest, Book XLIII.
Where
anyone seizes a freeman by force, and keeps him in chains, he is most
unworthy of the advantages enjoyed by a possessor, because it cannot
be proved that, at the time that proceedings were first instituted,
the man was free.
21.
Marcianus, Institutes, Book VI.
I think
that the better opinion is that he who brings the action, that is
to say the legatee, must prove that the testator knew that the property
bequeathed belonged, or was encumbered to another, and that the heir
is not required to prove that it belonged to someone else, or was
encumbered, because the necessity of proving his allegations always
rests upon the plaintiff.
22.
Ulpianus, Opinions, Book I.
He
who says that he has changed his mind must prove it.
23.
Marcianus, On the Hypothecary Formula.
It
must be proved, before everything else, that it was agreed between
the plaintiff and the debtor, that the property should be pledged
or hypothecated. After the plaintiff has proved this, he must also
establish the fact that the property belonged to the debtor at the
time the pledge was agreed upon, or that the hypothecation was made
with his consent.
24.
Modestinus, Rules, Book IV.
Where
a promissory note has been cancelled, although the presumption is
that the debtor has been released, still, he can lawfully be sued
for the amount which the creditor can show by manifest evidence is
still due to him.
25.
Paulus, Questions, Book III.
Where
a question arises with reference to money which is not due, who must
prove this? The matter should be adjusted so that if he who is said
to have received the property denies that the money is not owing,
and he who paid it proves its payment by competent evidence, then
he who denies absolutely that he received the money, if he wishes
to be heard, must be compelled to furnish proof that the money was
lawfully due to him; for it would be absurd if he who, in the beginning,
denied that he had received the money, and afterwards was shown to
have received it, should require proof from his adversary that it
was not owing to him. If, however, in the first place, the plaintiff
should acknowledge that he had received the money, but should assert
that it was due to him, the presumption undoubtedly will lie in favor
of the party who received it, for he who pays is never so negligent
as to throw away his money without hesitation, and pay it when it
is not due; and especially is this the case where the party who alleges
that he paid what was not due is the diligent and careful head of
a household, for it is incredible that a person of this kind should
be so easily deceived. Therefore
he who alleges that he has paid money which was not due will be required
to produce evidence that the said money was paid through the fraud
of the party who received it, or on account of some just cause of
ignorance, and unless he shows this he will have no right to recover
it.
(1)
Where, however, he who complains of the payment of money which was
not due is a ward, a minor, or a woman, or, indeed, a man of full
age but a soldier, or a cultivator of the soil and inexperienced in
public business, or fond of a simple life and given to idleness; then
he who receives the money must show that he actually did so, and that
it was due and payable to him, and if he fails to do this he must
refund it.
(2)
This only applies where the party who paid the money contends that
the entire sum was not due. Where, however, he complains of the payment
of only a portion, on the ground that only a part of the money paid
was not due; or that it was due in the beginning, but the debt was
afterwards discharged, and he ignorantly paid it a second time; or
that, being protected by an exception, he paid the money through mistake;
he, himself, must, by all means, establish that he either paid more
than was due, or that he paid money a second time through mistake,
or that, being protected by an exception, he ignorantly paid the money;
in accordance with the general rule which requires those to furnish
proof who state that they have exceptions to offer, or who allege
that they have paid the debt.
(3)
In all the instances which we have suggested, permission should be
granted to him upon whom rests the burden of proof to tender the oath
to his adversary, with reference to the truth of the matter, before
tendering him the oath pro calumnia; so that the judge may
regulate his decision according to the confidence which he has in
the oath of the plaintiff, the right to the defendant to tender the
oath back to his adversary being reserved.
(4)
This point relates to the payment of money which is not due. Where,
however, a written promise to pay is said to have been made for money
which is not due, and the terms of the instrument are indefinite,
then the party in whose favor the note was executed will be compelled
to prove that the sum mentioned in it is due to him, unless he who
made the note has explicitly stated his reasons for doing so; for
then he must abide by his admission, unless he is ready to show by
conclusive documentary evidence that he made the promise to pay money
which he did not owe.
26.
Papinianus, Questions, Book XX.
Procula,
to whom a large sum of money was due from her brother under the terms
of a trust, wished to set off this sum proportionately against his
heirs after his death; and in opposition to this it was alleged that
she had never demanded the money of her brother during his lifetime,
but that she herself had paid him certain sums of money for various
reasons growing out of accounts which they had with one another. The
Divine Commodus, in deciding the case, did not admit the set-off,
but held that she had tacitly released her brother from the execution
of the trust.
27.
Scaevola, Digest, Book XXXIII.
A man
made a will, and bequeathed a lawful share of his estate to one who
was only entitled to receive a certain amount, and he then provided
as follows: "I give and bequeath one hundred aurei to
Titius, which he has placed in my hands, but of which I have not given
him any written evidence, because I have held all the fortune and
property which he received from his mother in my possession without
any note. Moreover, I desire that there should be delivered and paid
to Titius a hundred and fifty aurei out of my estate, which
I have received as the rent of land, being the proceeds of crops harvested
and sold, as well as any sums shown on my books to have been received
by Titius from his mother, and which I have appropriated to my own
use." I
ask whether Titius can collect this money. The answer was that if
Titius can prove that the property had come into the hands of the
testator in accordance with the above-mentioned statement, he can
do so; for it is held that in a case where a party is not entitled
to receive more than a certain amount by a legacy, such provisions
are added to a will in violation of law.
28.
Labeo, Epitomes of Probabilities, by Paulus, Book VII.
Where
it is the duty of an arbiter to decide a case, should he inquire whether
a memorandum of the labor performed exists, or whether anyone remembers
that the labor has been performed? Paulus says that when inquiry is
made in a case of arbitration, as to whether a memorandum of the labor
performed is in existence or not, it ought not to be asked whether
anyone remembers the time, or under what consul the work was done,
but whether it can be proved in any way whatsoever when it was done.
And this should be accomplished, as the Greeks are accustomed to state,
in a general way, for it cannot be retained in the memory that the
work has been done; for example, within a certain year, since, in
the meantime, no one will probably remember under what consuls it
was performed. But where the opinion of all persons is that they did
not hear of the work being done, or see it, or learn of it from any
who might have seen it, or heard of it, and, no matter how far back
one may go, no memorandum of the work performed can be found; this
will be sufficient.
29.
Scaevola, Digest, Book IX.
The
Emperors Antoninus and Verus stated in a Rescript to Claudius Apollinaris
the following, namely: "It is decreed that proofs given with
reference to children shall not consist of the mere statements of
witnesses, but also of letters which are alleged to have been sent
to wives, if their authenticity is established, and they can be introduced
as documentary evidence."
(1)
A wife, who had been repudiated while pregnant, brought forth a son
during the absence of her husband; and, in the course of the proceedings
instituted in consequence, confessed that the child was illegitimate.
The inquiry arose whether the son was under the control of his father,
and if when his mother died intestate, he could enter upon her estate
by order of his father, or whether the confession made by his angry
mother would prejudice his rights. The answer was that, in cases of
this kind an opportunity always existed for ascertaining the truth.
30.
Labeo, Opinions, Book I.
Labeo's
opinion given to Festus was that a female slave could not offer, as
proof of the freedom which she claimed, either a trust left to her
by will, or the fact that provision for her maintenance had been bequeathed
to her as the nurse of the testator.
31.
The Same, to Mactorius Sabinus, Book II.
The
mention of money in a note, which is alleged to be due for some other
reason, does not possess the force of an obligation.
Tit. 4. Concerning
the authenticity of instruments and their loss.
1. Paulus, Sentences, Book IV.
All
those things by means of which legal proceedings can be instituted
should be classed under the head of instruments, and therefore evidence,
as well as persons, are placed in that category.
2.
The Same, Opinions, Book V.
Where
anyone is sued by the Treasury, this must be done, not by means of
an extract or the copy of any written document, but on the original
itself, so that the truth of the contract may be established. It is
not proper that a forged document should have any force or effect
in court.
3.
The Same, Opinions, Book III.
Paulus
stated that: "An obligation should not be antedated, but the
parties who have agreed to this are not considered to be guilty of
forgery, since the act was performed in the presence and with the
consent of the parties, and the debtor is guilty of a greater offence
than the creditor."
4.
Gaius, On the Hypothecary Formula.
Where
property is hypothecated, it does not matter in what terms this may
be effected, as in the case in those obligations which are contracted
by consent. Therefore, if it is agreed that property shall be hypothecated
without this being done in writing, and this can be proved, the property
with reference to which the agreement was made will be encumbered;
for written instruments are drawn up in these matters in order that
what has been agreed upon may be more easily established. The transaction
will be valid, however, without them, if the evidence is forthcoming;
just as marriage is valid where testimony exists without any written
instruments having been executed.
5.
Callistratus, Questions, Book II.
Where
a transaction shows that it has actually been concluded without any
documentary evidence, it will be none the less valid because no written
instrument with reference to it exists.
6.
Ulpianus, On the Edict, Book L.
Where
a question arises with reference to the deposit of a will, and there
is some doubt with whom this should be done, we prefer that it should
always be left with an old, rather than with a young person, with
one of high rather than with one of inferior rank, with a man rather
than with a woman, and with a freeborn person rather than with a freedman.
Tit. 5. Concerning
witnesses.
1. Arcadius, also called Charisius, On Witnesses.
The
employment of witnesses is frequent and necessary, and the testimony
of those whose integrity is established should especially be taken.
(1)
Witnesses can also be produced not only in criminal cases, but also
in actions involving money, in accordance with the circumstances,
and those can give evidence who are not forbidden to do so, or are
excused from testifying by any law.
(2)
Although a considerable number of witnesses is prescribed by certain
laws, still, according to the Constitutions of the Emperors, this
requirement is confined to a sufficient number of the same, in order
that the judges may regulate it, and permit only that number of witnesses
to be called which they deem necessary, lest a superfluous multitude
may, through unrestricted power, be summoned for the purpose of annoying
the parties to the suit.
2.
Modestinus, Rules, Book VIII.
The
rank, the integrity, the manners, and the gravity of witnesses must
be taken into consideration, and therefore those who make contradictory
statements, or who hesitate while giving their evidence, should not
be heard.
3.
Callistratus, Concerning Judicial Inquiries, Book IV.
The
integrity of witnesses should be carefully investigated, and in consideration
of their personal characteristics, attention should be, in the first
place, paid to their rank; as to whether the witness is a Decurion
or a plebeian; whether his life is honorable and without blame, or
whether he has been branded with infamy and is liable to censure;
whether he is rich or poor, lest he may readily swear falsely for
the purpose of gain; whether he is an enemy to him against whom he
testifies, or whether he is a friend to him in whose favor he gives
his evidence. For if the witness is free from suspicion, either because
his personal character is beyond reproach, for the reason that he
is neither influenced by the expectation of gain, nor by any inducements
of favor or enmity, he will be competent. Therefore, the Divine Hadrian
stated in a Rescript addressed to Vivius Verus, the Governor of Cilicia,
that he who hears a case has the best means of judging how much confidence
should be reposed in witnesses. The following are the terms of the
Rescript : "You are best qualified to ascertain how much faith
should be placed in witnesses, who they are, what is their rank and
reputation, whether they seem to speak sincerely, whether or not they
have agreed upon and planned the same statements together, and whether
they, without hesitation, return suitable answers to the questions
put to them."
(1)
Another Rescript of the same Emperor, addressed to Valerius Verus,
on the subject of ascertaining the confidence to be placed in witnesses,
is extant, and is in the following words: "It cannot be laid
down with precision what evidence will be sufficient for the proof
of any matter, just as it is not always essential to establish the
existence of any fact by means of public documents, although this
is frequently done. Otherwise, the number of witnesses, as well as
their rank and authority, and their general reputation, would tend
to confirm the proof of the subject under investigation. "I
can only say to you in general terms, that a judicial inquiry should
not be confined merely to one kind of evidence, but that it is necessary
for you to form your opinion as to what you believe to have been proved,
or what you may think has not been satisfactorily established, through
the exercise of your own judgment."
(2)
The Divine Hadrian also stated in a Rescript to Julius Rufinus, Proconsul
of Macedonia, that he must pay more attention to the witnesses than
to their evidence. The words of the Rescript on this point are as
follows: "Alexander accused Aper of certain crimes before me,
but he did not prove them, or produce any witnesses; but he desired
to use evidence which I am unwilling to admit, for I am accustomed
to examine witnesses, and I have sent him back to the Governor of
the province that he may make inquiry with reference to the credibility
of the witnesses, and unless he proves what he alleges, he shall be
sent into exile."
(3)
The same Emperor stated the following in a Rescript to Gabinius Maximus:
"The weight to be attached to the oral evidence of witnesses
who are present is one thing, and that of written testimony which
is to be read is another. Therefore deliberate carefully whether you
desire to retain them, and if you do, allow them their costs."
(4)
It is proved by the Lex Julia relating to violence, that those
shall not be permitted to give testimony against a defendant who has
been freed by him or by his father; or who have not yet arrived at
puberty; or anyone who has been condemned for a public crime, and
has not been restored to his former condition, or who is in chains,
or in prison, or has hired himself out to fight with wild beasts;
or any woman who openly prostitutes herself, or has already done so;
or anyone who has been sentenced or convicted of having received money
for giving or withholding testimony. For, indeed, certain persons
should not be allowed to testify on account of the reverence due to
their position; others on account of the unreliability of their judgment;
and still others because of the notorious infamy of their lives.
(5)
Witnesses should not hastily be summoned from a long distance, and
still less should soldiers be called away from their standards or
their stations for the purpose of giving evidence; and this the Divine
Hadrian stated in a Rescript. The Divine Brothers also stated in a
Rescript that: "With reference to the summoning of witnesses,
the judge should carefully ascertain what is the custom in the province
over which he presides; for if it should be proved that witnesses
are frequently summoned to another city for the purpose of testifying,
there is no doubt that those can be summoned whom the judge may decide
are necessary to be called in the case."
4.
Paulus, On the Lex Julia et Papia, Book II.
It
is provided by the Lex Julia having reference to public prosecutions,
that a man, if unwilling, cannot be compelled to give testimony in
court against his father-in-law, his son-in-law, his step-father,
his stepson, his cousin, whether male or female, his cousin's child,
or any of those who are related in a nearer degree. Nor can the freedman
of anyone, or of his children, his parents, his or her wife or husband,
be permitted to testify against him, if he is accused. The
same rule applies to a patron, and a patroness, for neither of them
can be compelled to give testimony against their freedman, nor a freedman
against his patron.
5.
Gaius, On the Lex Julia et Papia, Book IV.
In
the laws where the exception is made that neither a son-in-law nor
a father-in-law, if unwilling, can be compelled to give testimony;
it is held that the betrothed of the daughter is included in the term
"son-in-law," and also that the father of the betrothed
woman is included in the term "father-in-law."
6.
Licinius Rufinus, Rules, Book II.
Those
witnesses are not considered to be competent who can be commanded
to testify.
7.
Modestinus, Rules, Book III.
The
evidence of a slave must be believed when there is no other way of
ascertaining the truth.
8.
Scaevola, Rules, Book IV.
Old
men, invalids, soldiers, magistrates who are absent on business for
the State, and such persons as are forbidden to appear, cannot be
compelled to testify, if unwilling to do so.
9.
Paulus, On Sabinus, Book I.
A father
is not a competent witness for his son, nor a son for his father.
10.
Pomponius, On Sabinus, Book I.
No
one is held to be a competent witness in his own case.
11.
The Same, Decrees, Book XXXIII.
A party
who has not been summoned as a witness is allowed to testify for the
purpose of proving a transaction.
12.
Ulpianus, On the Edict, Book XXXVII.
Where
the number of witnesses is not specified by law, two are sufficient,
for the term "several" is embraced in the number two.
13.
Papinianus, On Adultery, Book I.
I know
that the question has arisen whether those who have been convicted
of calumny in public trials can testify in a public prosecution. They
are not, however, forbidden to do so by the Lex Remmia; and
the Lex Julia relating to violence, extortion, and peculation,
does not prohibit such persons from giving evidence, nevertheless,
what is omitted by the laws should not be omitted by the conscientious
judge, whose duty it is to carefully weigh the credibility of the
witness and determine whether he gives his testimony as a man of integrity
should do.
14.
The Same, On Adultery.
I am
aware that it has also been discussed whether one who has been convicted
of adultery can give evidence for the purpose of proving a will; and
it is clear that he is justly forbidden from testifying in court.
Therefore I think that a will which must be proved by a witness of
this kind is not valid, either by the Civil Law, or by the Praetorian
Law which follows it; so that neither an estate can be entered upon,
nor the possession of the property of the deceased be granted on such
testimony.
15.
Paulus, Sentences, Book II.
A person
who has been convicted of extortion cannot testify in the case of
a will, or in a judicial proceeding.
(1)
For an hermaphrodite to be qualified to testify in a case of a will
it must be proved which sex is predominant.
16.
The Same, Sentences, Book V.
Those
who testify falsely, or give conflicting evidence, or betray both
sides, can be punished by competent judges.
17.
Ulpianus, Rules.
A father,
and a son who is under his control, and also two brothers, subject
to the authority of the same father, can be witnesses in the case
of a will, or in the same transaction; since there is nothing to prevent
several witnesses belonging to one household from testifying in a
matter in which another party is interested.
18.
Paulus, On Adultery, Book II.
Since
the Lex Julia de Adulteriis prohibits a woman who has been
convicted of adultery from testifying, it follows that even women
have the right to give evidence in court.
19.
Ulpianus, On the Office of Proconsul, Book VIII.
Farmers
of the revenue cannot be compelled to testify; nor can anyone who
has not absented himself to avoid giving testimony; nor anyone who
may be employed in furnishing provisions to the army.
(1)
Nor can wards be required to testify.
20.
Venuleius, On Public Prosecutions, Book II.
An
accuser should not call as a witness one who has been convicted of
a crime, or who is under twenty years of age.
21.
Arcadius, also called Charisius, On Witnesses.
A person
who has been convicted of having written a libellous poem is incompetent
to testify.
(1)
It is also undeniable that, where the case demands it, not only private
individuals, but even magistrates, if they are present, can be forced
to testify. The Senate also decreed that a Praetor must also give
his evidence in a case of adultery.
(2)
Where the circumstances are such that we are compelled to accept a
gladiator, or some person of this kind as a witness, his evidence
is not to be believed, unless he is subjected to torture.
(3)
When all the witnesses are of equal integrity and reputation, and
the nature of the transaction, as well as the opinion of the court,
coincides with their assertions, all their testimony should be accepted.
Where, however, some of them make statements different from those
made by the others, even the smaller number of them may be believed.
Moreover, if the evidence corresponds with the nature of the transaction,
and no suspicion of either hostility or favor exists, the judge must
confirm the impressions of his mind by the arguments and testimony
which are most applicable to the case, and which he ascertains to
be nearest to the truth. For it is not necessary to take into consideration
the number of the witnesses, but rather their sincerity, as well as
such evidence as appears to be more illuminated with the light of
truth.
22.
Venuleius, On the Office of Proconsul, Book II.
The
magistrates of every district should be careful to afford facilities
to all who wish to make wills, and themselves be witnesses and sign
wills with others, by means of which matters may be more easily explained,
and the proof of facts be secure.
23.
The Same, On Public Prosecutions, Book I.
A witness
cannot be produced against a defendant who has already given evidence
against him.
24.
Paulus, Sentences, Book V.
It
has been decided that witnesses whom an accuser brings from his own
house shall not be examined.
25.
Arcadius, also called Charisius, On Witnesses.
It
is provided by the Imperial Mandates that Governors shall see that
patrons do not testify in cases which they are conducting; and this
rule must also be observed in the case of those who are transacting
the business of others.
Tit. 6. Concerning
ignorance of law ans pact.
1. Paulus, On the Edict, Book XLIV.
Ignorance
is either of fact or of law.
(1)
For where anyone is not aware that he to the possession of whose property
he is entitled is dead, time does not run against him. Where, indeed,
he is aware that his relative is dead, but he does not know that his
estate belongs to him on account of his being the next of kin, or,
where he is aware that he has been appointed an heir, but does not
know that the Praetor grants the possession of the property of a deceased
person to those who have been appointed his heirs; time will run against
him because he is mistaken with respect to the law. The same rule
applies where the brother of the deceased thinks that his mother has
the preference.
(2)
If anyone does not know that he is related to the deceased, sometimes
he is mistaken concerning the law, and sometimes with reference to
the fact; for if he is aware that he is free, and who his parents
were, but does not know that he is entitled to the rights of relationship,
he is mistaken as to the law. Where anyone who is a foundling does
not know who his parents are, and serves another as a slave, thinking
that he himself is a slave, he is mistaken rather as to the fact than
as to the law.
(3)
Moreover, where anyone knows that another is entitled to the possession
of the property of an estate, but does not know that the time during
which he should have taken possession of the same has elapsed, he
is mistaken as to the fact. The same rule applies where he thinks
that he has obtained possession of the property. Where, however, he
knows that he has not claimed the estate, and that he has allowed
the time to elapse, but is ignorant that he is entitled to the possession
of the property on the ground of succession, time will run against
him because he is mistaken with respect to the law.
(4)
We hold the same where a man is appointed heir to an entire estate,
but does not think that he has a right to demand possession of the
same before the will is opened; but if he is ignorant that there is
a will, he will be mistaken with reference to the fact.
2.
Neratius, Parchments, Book V.
Error
in law should not, in every instance, be considered to correspond
with ignorance of the fact; since the law can, and should be definitely
settled, but the interpretation of the fact very frequently deceives
even the wisest men.
3.
Pomponius, On Sabinus, Book III.
There
is a great deal of difference whether anyone is not informed regarding
the case and acts of another, or whether he is ignorant of the law
which affects himself.
(1)
Cassius states that Sabinus holds that it should be understood that
ignorance, in this instance, does not refer to a person of abandoned
character, or to one who, through negligence, thinks himself secure.
4.
The Same, On Sabinus, Book XIII.
It
is denied that ignorance of the law is of any advantage in usucaption,
but it is established that ignorance of fact is a benefit.
5.
Terentius Clemens, On the Lex Julia et Papia, Book II.
It
seems to be most unjust that knowledge should injure another rather
than its possessor, or that the ignorance of one person should profit
another.
6.
Ulpianus, On the Lex Julia et Papia, Book XVIII.
Neither
gross ignorance of the facts should be tolerated, nor scrupulous inquiry
be exacted, but such knowledge should be demanded that neither excessive
negligence, too great unconcern, nor the inquisitiveness that characterizes
informers may be exhibited.
7.
Papinianus, Questions, Book XIX.
Ignorance
of the law is not advantageous to those who desire to acquire it,
but it does not injure those who demand their rights.
8.
The Same, Definitions, Book I.
An
error of fact does not, indeed, prejudice the rights of men where
they seek to obtain property, or to avoid losing it; and ignorance
of the law is no advantage, even to women, when they attempt to acquire
it. A mistake in law, however, does not injure any person in an attempt
to avoid the loss of property.
9.
Paulus, On Ignorance of Law and Fact.
The
ordinary rule is, that ignorance of law injures anyone, but ignorance
of fact does not. Therefore, let us examine to what instances this
rule is applicable, for it may be stated, in the first place, that
minors under twenty-five years of age are permitted to be ignorant
of the law; and this also is held with respect to women in certain
cases, on account of the weakness of the sex; hence, so long as no
crime has been committed, but only ignorance of the law is involved,
their rights are not prejudiced. On the same principle, if a minor
under the age of twenty-five lends money to a son under his father's
control, relief is granted him, just as if he had not lent the money
to a son subject to paternal authority.
(1)
Where a son under paternal control, who is a soldier, is appointed
heir by a comrade-in-arms, and does not know that he can enter upon
the estate without the permission of his father, he can ignore the
law in accordance with the Imperial Constitution; and therefore the
time prescribed for the acceptance of the estate does not run against
him.
(2)
Ignorance of the fact, however, does not injure anyone unless he should
be guilty of gross negligence; for example, what if every one in the
town knew what he alone does not? Labeo very properly says that neither
the knowledge of the most inquisitive, or the most negligent man,
should be understood to be meant, but that of him who can obtain it
by diligent inquiry.
(3)
Labeo, however, thinks that ignorance of the law ought not to be considered
excusable unless the party should not have access to a magistrate,
or is not intelligent enough to easily ascertain that ignorance of
the law is a detriment to him, which is very rarely the case.
(4)
Where anyone does not know that the vendor is the owner of the property
sold, more attention should be paid to the transaction itself than
to the opinion of the purchaser; and therefore, although he may believe
that he bought the property from someone who was not its owner, still,
if it is delivered to him by the owner, it will belong to him.
(5)
Where a party who is ignorant of the law does not avail himself of
the Lex Falcidia, a Rescript of the Divine Pius says that his
rights will be prejudiced. Moreover, the Emperors Severus and Antoninus
stated the following in a Rescript, namely: "Where, in discharging
a trust, money is paid which is not due, it cannot be recovered, unless
it was paid by mistake. Wherefore, the heirs of Cargilianus, when
they paid over money left by will for the purpose of building an aqueduct
for the Republic of Cirta, not only did not require the bonds which
are usually executed to compel the repayment by municipalities of
any excess which they might receive above what was permitted by the
Lex Falcidia; but they even stipulated that the said sum of
money should not be applied to any other purpose, and knowingly and
deliberately suffered the said money to be used for the construction
of the aqueduct, hence they had no right to demand that anything should
be returned to them by the Republic of Cirta, on the ground that they
paid more than was due; since there would be injustice on both sides,
for the money to be recovered which had been given for the purpose
of building an aqueduct, and for the Republic to be compelled to pay
out of the funds belonging to it for a work which entirely represented
the glory derived from the liberality of another. "If,
however, the heirs thought that the claim for the recovery of said
money was well founded, for the reason that they failed, through lack
of information, to profit by the provisions of the Lex Falcidia,
they should know that ignorance of fact would be of advantage to them,
but ignorance of law would not; and that relief is granted, not to
fools, but to those who are honestly mistaken with reference to the
facts." Although municipalities are mentioned in this Rescript,
still, the same rule should be observed with reference to all kinds
of persons. And while, in the case stated, mention is made of money
left for the purpose of constructing an aqueduct, in this instance
alone it must be held that an action for its recovery will not lie,
for the beginning of this constitution is of general application,
as it shows that if, through mistake, the trust was not discharged,
any money paid which is not due cannot be recovered. Moreover,
that section is also of general application which sets forth that
parties are not entitled to recover who, through ignorance of the
law, did not avail themselves of the benefit of the Lex Falcidia;
and, according to this, it can be stated that if money which was left
in trust and had been paid, had not been left for some specified purpose,
even though it had not been expended but remained in the hands of
the person to whom it was paid, an action to recover it will not lie.
10.
Papinianus, Opinions, Book VI.
Youths
who have not arrived at puberty and act without the authority of their
guardians are not considered to know anything.