De interrogationibus in iure faciendis et interrogatoriis actionibus
(Concerning interrogatories which should be put in court, and actions based on interrogatories.)
1 Callistratus libro secundo edicti monitorii. Totiens heres in iure interrogandus est, qua ex parte heres sit, quotiens adversus eum actio instituitur et dubitat actor, qua ex parte is, cum quo agere velit, heres sit. est autem interrogatio tunc necessaria, cum in personam sit actio et ita, si certum petetur, ne, dum ignoret actor, qua ex parte adversarius defuncto heres exstiterit, interdum plus petendo aliquid damni sentiat. 1Interrogatoriis autem actionibus hodie non utimur, quia nemo cogitur ante iudicium de suo iure aliquid respondere, ideoque minus frequentantur et in desuetudinem abierunt. sed tantummodo ad probationes litigatoribus sufficiunt ea, quae ab adversa parte expressa fuerint apud iudices vel in hereditatibus vel in aliis rebus, quae in causis vertuntur.
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. 1We 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 libro vicensimo secundo ad edictum. Edictum de interrogationibus ideo praetor proposuit, quia sciebat difficile esse ei, qui heredem bonorumve possessorem convenit, probare aliquem esse heredem bonorumve possessorem,
2 Ulpianus, On the Edict, Book XXII. The Prætor 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 libro septimo decimo ad edictum. quia plerumque difficilis probatio aditae hereditatis est.
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 libro vicensimo secundo ad edictum. Voluit praetor adstringere eum qui convenitur ex sua in iudicio responsione, ut vel confitendo vel mentiendo sese oneret, simul etiam portionis, pro qua quisque heres extitit, ex interrogatione certioretur. 1Quod ait praetor: ‘qui in iure interrogatus responderit’ sic accipiendum est apud magistratus populi Romani vel praesides provinciarum vel alios iudices: ius enim eum solum locum esse, ubi iuris dicendi vel iudicandi gratia consistat, vel si domi vel itinere hoc agat.
4 Ulpianus, On the Edict, Book XXII. The Prætor 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. 1With reference to the statement of the Prætor: “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 libro tertio ad edictum provinciale. Qui interrogatur, an heres vel quota ex parte sit vel an in potestate habeat eum, cuius nomine noxali iudicio agitur, ad deliberandum tempus impetrare debet, quia, si perperam confessus fuerit, incommodo adficitur:
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 libro vicensimo secundo ad edictum. et quia hoc defunctorum interest, ut habeant successores, interest et viventium, ne praecipitentur, quamdiu iuste deliberant. 1Interdum interrogatus quis, an heres sit, non cogitur respondere, ut puta si controversiam hereditatis ab alio patiatur: et ita divus Hadrianus constituit, ne aut negando se heredem praeiudicet sibi aut dicendo heredem illigetur etiam ablata sibi hereditate.
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. 1Sometimes 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 Idem libro octavo decimo ad edictum. Si quis in iure interrogatus, an quadrupes quae pauperiem fecit eius sit, responderit, tenetur.
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 libro vicensimo secundo ad edictum. Si quis interrogatus de servo qui damnum dedit, respondit suum esse servum, tenebitur lege Aquilia quasi dominus et, si cum eo actum sit qui respondit, dominus ea actione liberatur.
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 libro vicensimo secundo ad edictum. Si sine interrogatione quis responderit se heredem, pro interrogato habetur. 1Interrogatum non solum a praetore accipere debemus, sed et ab adversario. 2Sed si servus interrogetur, nulla erit interrogatio, non magis quam si servus interroget. 3Alius pro alio non debet respondere cogi, an heres sit: de se enim debet quis in iudicio interrogari, hoc est cum ipse convenitur. 4Celsus libro quinto digestorum scribit: si defensor in iudicio interrogatus, an is quem defendit heres vel quota ex parte sit, falso responderit, ipse quidem defensor adversario tenebitur, ipsi autem quem defendit nullum facit praeiudicium. veram itaque esse Celsi sententiam dubium non est. an ergo non videatur defendere, si non responderit, videndum: quod utique consequens erit dicere, quia non plene defendit. 5Qui interrogatus heredem se responderit nec adiecerit ex qua parte, ex asse respondisse dicendum est, nisi forte ita interrogetur, an ex dimidia parte heres sit, et responderit ‘heres sum’: hic enim magis eum puto ad interrogatum respondisse. 6Illud quaeritur, an quis cogatur respondere, utrum ex testamento heres sit, et utrum suo nomine ei quaesita sit hereditas an per eos quos suo iuri subiectos habet vel per eum cui heres extitit. summatim igitur praetor cognoscere debebit, cum quaeratur, an quis respondere debeat quo iure heres sit, ut, si valde interesse compererit, plenius responderi iubeat. quae optinere debent non solum in heredibus sed etiam in honorariis successoribus. 7Denique Iulianus scribit eum quoque, cui est hereditas restituta, debere in iure interrogatum respondere, an ei hereditas sit restituta. 8Si de peculio agatur, non oportere responderi a patre vel domino, an in potestate habeat filium vel servum, quia hoc solum quaeritur, an peculium apud eum cum quo agitur est.
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. 1We must understand the term “interrogated” not only to apply where questions are asked by the Prætor, but also where this is done by the adversary. 2If, however, a slave is interrogated, this is no interrogation any more than if a slave should ask the question. 3One 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. 4Celsus 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. 5Where 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. 6The 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 Prætor 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 prætorian successors. 7Finally, 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. 8Where 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 libro quadragensimo octavo ad edictum. Non alienum est eum, a quo damni infecti stipulari velimus, interrogare in iure, an aedes eius vel locus sit, ex quo damnum timeatur, et pro qua parte, ut, si neget suum praedium esse nec caveat damni infecti, aut cedere aut, resistendum putaverit, quasi dolo versatus tradere compellatur.
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 libro vicensimo secundo ad edictum. De aetate quoque interdum interrogatus respondere debebit. 1Si quis, cum heres non esset, interrogatus responderit ex parte heredem esse, sic convenietur, atque si ex ea parte heres esset: fides enim ei contra se habebitur. 2Qui ex quadrante heres vel omnino cum heres non esset responderit se heredem ex asse, in assem instituta actione convenietur. 3Si, cum esset quis ex semisse heres, dixerit se ex quadrante, mendacii hanc poenam feret, quod in solidum convenitur: non enim debuit mentiri, dum se minoris portionis heredem adseverat. interdum tamen iusta ratione potest opinari esse heredem ex minore parte: quid enim, si nescit sibi partem adcrevisse vel ex incerta parte fuit institutus? cur ei responsum noceat? 4Qui tacuit quoque apud praetorem, in ea causa est, ut instituta actione in solidum conveniatur, quasi negaverit se heredem esse. nam qui omnino non respondit, contumax est: contumaciae autem poenam hanc ferre debet, ut in solidum conveniatur, quemadmodum si negasset, quia praetorem contemnere videtur. 5Quod autem ait praetor ‘omnino non respondisse’, posteriores sic exceperunt, ut omnino non respondisse videatur, qui ad interrogatum non respondit, id est πρὸς ἔπος. 6Si interrogatus quis, an ex asse heres esset, responderit ex parte, si ex dimidia esset, nihil ei nocere responsum: quae sententia humana est. 7Nihil interest, neget quis an taceat interrogatus an obscure respondeat, ut incertum dimittat interrogatorem. 8Ex causa succurri ei, qui interrogatus respondit, non dubitamus: nam et si quis interrogatus, an patri heres esset, responderit, mox prolato testamento inventus sit exheredatus, aequissimum est succurri ei: et ita Celsus scribit, hic quidem et alia ratione, quod ea quae postea emergunt auxilio indigent: quid enim si occultae tabulae et remotae postea prolatae sunt? cur noceat ei, qui id responderit, quod in praesentiarum videbatur? idem dico et si qui heredem se responderit, mox falsum vel inofficiosum vel irritum testamentum fuerit pronuntiatum: non enim improbe respondit, sed scriptura ductus. 9Qui interrogatus responderit, sic tenetur quasi ex contractu obligatus pro quo pulsabitur, dum ab adversario interrogatur: sed et si a praetore fuerit interrogatus, nihil facit praetoris auctoritas, sed ipsius responsum sive mendacium. 10Qui iusto errore ductus negaverit se heredem, venia dignus est. 11Sed et si quis sine dolo malo, culpa tamen responderit, dicendum erit absolvi eum debere, nisi culpa dolo proxima sit. 12Celsus scribit licere responsi paenitere, si nulla captio ex eius paenitentia sit actoris: quod verissimum mihi videtur, maxime si quis postea plenius instructus quid faciat, instrumentis vel epistulis amicorum iuris sui edoctus.
11 Ulpianus, On the Edict, Book XXII. Sometimes also a party when interrogated is required to answer with reference to his age. 1Where 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. 2Where 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. 3Where 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; 4Sometimes, 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? 5Moreover, where one keeps silent in the presence of the Prætor, 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 Prætor. 6Where the Prætor 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. 7It 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. 8We 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. 9Where 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 Prætor, the authority of the Prætor has no bearing on the case, but only the answer of the party himself, or any falsehood which he may tell, is involved. 10Where a person, induced by a reasonable mistake, denies that he is an heir, he is worthy of indulgence. 11But 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. 12Celsus 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 libro septimo decimo ad edictum. Si filius, qui abstinuit se paterna hereditate, in iure interrogatus responderit se heredem esse, tenebitur: nam ita respondendo pro herede gessisse videtur. sin autem filius, qui se abstinuit, interrogatus tacuerit, succurrendum est ei: quia hunc qui abstinuit praetor non habet heredis loco. 1Exceptionibus, quae institutis in iudicio contra reos actionibus opponuntur, etiam is uti potest, qui ex sua responsione convenitur, veluti pacti conventi, rei iudicatae et ceteris.
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 Prætor does not consider anyone who has rejected an estate as an heir. 1Any 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 Idem libro secundo ad Plautium. Confessionibus falsis respondentes ita obligantur, si eius nomine, de quo quis interrogatus sit, cum aliquo sit actio, quia quae cum alio actio esset, si dominus esset, in nosmet confessione nostra conferimus. et si eum, qui in potestate patris esset, respondissem filium meum esse, ita me obligari, si aetas eius pateretur, ut filius meus esse possit, quia falsae confessiones naturalibus convenire deberent. propter quae fiat, ut patris familias nomine respondendo non obliger. 1Eum, qui patrem familias suum esse responderit servum, non teneri noxali actione: ac ne, si bona fide liber homo mihi serviat, mecum noxali iudicio agi potest et, si actum fuerit, manebit integra actio cum ipso qui admisit.
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. 1Where 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 Iavolenus libro nono ex Cassio. Si is, cuius nomine noxae iudicium acceptum est, manente iudicio liber iudicatus est, reus absolvi debet, nec quicquam interrogatio in iure facta proderit, quia eius personae, cuius nomine quis cum alio actionem habet, obligationem transferre potest in eum, qui in iure suum esse confitetur, velut alienum servum suum esse confitendo: liberi autem hominis nomine quia cum alio actio non est, ne per interrogationem quidem aut confessionem transferri poterit. quo casu eveniet, ut non recte hominis liberi nomine actum sit cum eo qui confessus est. 1In totum autem confessiones ita ratae sunt, si id, quod in confessionem venit, et ius et naturam recipere potest.
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. 1In general, confessions are considered only where what is included in the confession can be accepted as in conformity with law and nature.
15 Pomponius libro octavo decimo ad Sabinum. Si ante aditam hereditatem servum hereditarium meum esse respondeam, teneor, quia domini loco habetur hereditas. 1Mortuo servo, quem in iure interrogatus suum esse confessus sit, non tenetur is qui respondit, quemadmodum, si proprius eius fuisset, post mortem eius non teneretur.
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. 1Where 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 libro trigensimo septimo ad edictum. Si servus ab hostibus captus sit, de quo quis in iure interrogatus responderit in sua potestate esse, quamvis iura postliminiorum possint efficere dubitare nos, [ed. maior adtamen] <ed. minor attamen> non puto locum esse noxali actioni, quia non est in nostra potestate. 1Quamquam autem placet etiam eum teneri, qui alienum servum suum fassus esset, [ed. maior adtamen] <ed. minor attamen> rectissime placuit eum demum teneri, qui suum potuit habere, ceterum, si dominium quaerere non potuit, non teneri.
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. 1Although 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 Idem libro trigensimo octavo ad edictum. Si servus non sit unius, sed plurium et omnes mentiti sunt eum in sua potestate non esse vel quidam ex illis, aut dolo fecerunt quo minus sit in potestate, unusquisque illorum tenebitur in solidum, quemadmodum tenerentur, si haberent in potestate: is vero, qui nihil dolo fecerit quo minus in potestate haberet, vel non negavit, non tenebitur.
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 Iulianus libro quarto ad Urseium Ferocem. Qui ex parte dimidia heres erat cum absentem coheredem suum defendere vellet, ut satisdationis onus evitare possit, respondit se solum heredem esse et condemnatus est: quaerebat actor, cum ipse solvendo non esset, an rescisso superiore iudicio in eum, qui re vera heres erat, actio dari deberet. Proculus respondit rescisso iudicio posse agi, idque est verum.
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 libro octavo quaestionum. Si filius, cum pro patre suo ageret, taceat interrogatus, omnia perinde observanda erunt, ac si non esset interrogatus.
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 libro secundo quaestionum. Qui servum alienum responderit suum esse, si noxali iudicio conventus sit, dominum liberat: aliter atque si quis confessus sit se occidisse servum quem alius occidit, vel si quis responderit se heredem: nam his casibus non liberatur qui fecit vel qui heres est. nec haec inter se contraria sunt: nam superiore casu ex persona servi duo tenentur, sicut in servo communi dicimus, ubi altero convento alter quoque liberatur: at is qui confitetur se occidisse vel vulnerasse suo nomine tenetur, nec debet impunitum esse delictum eius qui fecit propter eum qui respondit: nisi quasi defensor eius qui admisit vel heredis litem subiit hoc genere: tunc enim in factum exceptione data summovendus est actor, quia ille negotiorum gestorum vel mandati actione recepturus est quod praestitit: idem est in eo, qui mandatu heredis heredem se esse respondit vel cum eum alias defendere vellet. 1In iure interrogatus, an fundum possideat, quaero an respondere cogendus sit et quota ex parte fundum possideat. respondi: Iavolenus scribit possessorem fundi cogi debere respondere, quota ex parte fundum possideat, ut si minore ex parte possidere se dicat, in aliam partem, quae non defenderetur, in possessionem actor mittatur. 2Idem et si damni infecti caveamus: nam et hic respondere debet, quota ex parte eius sit praedium, ut ad eam partem stipulationem accommodemus: poena autem non repromittentis haec est, ut in possessionem eamus, et ideo eo pertinet scire an possideat.
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. 1Where 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. 2The 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 libro vicensimo secundo ad edictum. Ubicumque iudicem aequitas moverit, aeque oportere fieri interrogationem dubium non est.
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 libro quarto digestorum. Procuratore Caesaris ob debitum fiscale interrogante unus ex filiis, qui nec bonorum possessionem acceperat nec heres erat, respondit se heredem esse: an quasi interrogatoria creditoribus ceteris teneatur? respondit ab his, qui in iure non interrogassent, ex responso suo conveniri non posse.
22 Scævola, 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.