1Ulpianus, On the Edict, Book XXIV. The Prætor grants an action in factum against a surveyor of land, as we must not be deceived by him, since we are interested in obtaining a correct report of measurements; where, for example, a controversy has arisen with respect to boundaries, or the purchaser or the vendor desires to ascertain the size of the tract of land to be sold. He grants this action for the reason that the ancient authorities did not consider the contract made with a person of this kind to be one of leasing and hiring, but rather that his services were donated as a favor, and hence what was given to him by way of remuneration was designated honorary; but if an action is brought for leasing and hiring, it must be said that it is brought to no purpose. 1This action only requires the existence of positive malice. For it was held that the surveyor will be thoroughly restrained if he can only be sued on the ground of positive malice, since he is not civilly liable. Therefore, if he has displayed a want of skill, he who employed him has only himself to blame, but if he was guilty of negligence, he will be equally secure; and it is evident that gross negligence resembles malice. But where he receives compensation, he will, according to the terms of the Edict, be responsible for every kind of negligence; for undoubtedly the Prætor knows that parties of this kind work for pay. 2He only is liable to this action who makes a report; but we must understand that he makes a report who does so through another;

2Paulus, On the Edict, Book XXV. Or in writing. 1If, however, I direct you, a surveyor, to survey my field, and you turn this over to Titius, and he, in the course of the work does something through positive malice, you will be liable; because you have displayed positive malice in trusting such a man.

3Ulpianus, On the Edict, Book XXIV. Where I direct two persons to make a survey and both of them are guilty of malice, I can bring suit against them severally for the entire amount; but where one of them, after having been sued, satisfies my claim, an action against the other one must be refused. 1This action can be brought by anyone whose interest it was that a report of false measurement should not be made; that is to say, either by the purchaser or by the vendor, who has been injured by the report. 2Ad Dig. 11,6,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 470, Note 1.Pomponius, however, says that if on account of the report, the purchaser pays the vendor too much, a suit cannot be brought by him against the surveyor, because he has a right of action to recover what has been paid in excess; for it is not the interest of the purchaser to do this, since he has the right of action for recovery, unless the vendor is insolvent; for then the surveyor will be liable. 3Where the vendor, having been deceived by the surveyor, conveys a larger amount of land; Pomponius says, that in compliance with the same rule, no action against the surveyor will lie, because the vendor is entitled to an action on sale against the purchaser, unless the purchaser is not solvent. 4Pomponius also states that where a surveyor is employed on account of a trial, and he defrauds me in his report, he will be liable if, on this account, I obtain less by the judgment. It is clear that, if he was appointed by the court and maliciously makes a report against me, he doubts whether I have a right to hold him liable, nevertheless, he rather thinks I have. 5Pomponius says that this action should be granted to the heir and to other persons of the same kind, but that it should be refused against the heir and persons of that description. 6He says that the action is noxal rather than De peculio when brought with reference to a slave, although a civil action De peculio may be available.

4Paulus, On the Edict, Book XXV. This action is a perpetual one, for the cause derives its origin not from the time when the bad faith began, but from the date when the business was undertaken.

5Ulpianus, On the Edict, Book XXIV. Where the surveyor does not make a false report of the measurement, but delays the report, and the result is that the vendor is released after promising to convey the property within a specified time, this action cannot be brought; and Pomponius says that an equitable action should not be granted, and therefore recourse must be had to an action based on fraud. 1If a false report is made, and the purchaser sues the vendor on his contract, he can also sue the surveyor, but if he had no interest in doing this, judgment will not be rendered against the surveyor. If he does not sue the vendor for the entire amount which is lacking, but for a smaller amount; Pomponius says, and very properly, that suit can be brought against the surveyor for the remainder. 2The Prætor extended the scope of this action still further; for where there is a false statement made of the measure of anything else, this action is available; hence, where a party deceives his employer in the measurement of a building or in that of grain or wine;

6Paulus, On the Edict, Book XXIV. Or with reference to the breadth of a pathway, or as to a servitude calling for the insertion of timbers, or a projecting roof, when inquiry is made for this purpose, or where the measurement of a court-yard or of materials or stone is taken, and a false report given;

7Ulpianus, On the Edict, Book XXIV. Or where the dimensions of anything else is falsely stated, he will be liable. 1This action will be granted where the surveyor makes a false measurement by means of instruments. 2Pomponius also states that anyone is entitled to this action against someone who is not a surveyor but was guilty of deceit in measurement. 3In the same manner the action should be granted against an architect who has been guilty of deceit; for the Divine Severus decreed that action should be granted against an architect or a contractor. 4I, myself, think that an action should be granted also against an accountant who designedly makes a false calculation.