Gaius, On the Provincial Edict, Book VII. In the three following actions, namely: those for partition of an estate, the division of property held in common, and the establishment of boundaries, the question arises who shall be considered as plaintiff, because the condition of all the parties seems to be the same? It is the better opinion that he should be considered the plaintiff who makes application to the court.

Gaius, On the Provincial Edict, Book VII. Where the possessor has obtained a right to a slave through usucaption, after issue has been joined, he must give him up and furnish security to indemnify the plaintiff against fraud, so far as he is concerned; for there is danger that he may have either pledged him or manumitted him.

Gaius, On the Provincial Edict, Book VII. Again, the possessor must also deliver anything he may have obtained through the slave after issue has been joined, but not what he acquired by means of his own property, in which inheritances and legacies obtained by him through the slave are included; for it is not sufficient for his body alone to be delivered, but it is necessary that everything connected with the property should also be given up; that is to say, that the plaintiff should have everything he would have come into possession of if the slave had been delivered to him at the time when issue was joined. Therefore, the offspring of a female slave must be surrendered, even though they may have been born after the possessor acquired ownership of the mother by usucaption; that is to say, after issue was joined, in which instance delivery and the provision of security against fraud must take place with reference to the offspring as well as the mother.

Gaius, On the Provincial Edict, Book VII. A party who intends to bring an action for the recovery of property should consider whether he can obtain possession of it by means of some interdict; because it is far more convenient for he himself to be in possession, and to compel his adversary to assume the burden of plaintiff, than to bring suit himself while the latter is in possession.

Gaius, On the Provincial Edict, Book VII. Suppose, for example, that you have taught him to be an artist, or a copyist; it is held that no estimate can be obtained by application to the Court:

Gaius, On the Provincial Edict, Book VII. Or the plaintiff has been previously notified to pay the expense, and he, seeking to avoid this, an exception on the ground of fraud has been interposed by the defendant.

Gaius, On the Provincial Edict, Book VII. When a person institutes proceedings in an action for recovery, in order that he may not do so in vain, he ought to inquire whether the defendant against whom he brings the action, is the possessor or has fraudulently relinquished possession. 1A party who is sued in rem, may also have judgment rendered against him on the ground of negligence; and the possessor of a slave against whom an action has been brought for his recovery, is guilty of negligence if he permits him to appear in the arena, and he is killed; and also where the slave was a fugitive, and he did not secure him, and he escaped; or where suit is brought for a vessel, and he dispatched it in bad weather, and it was lost by shipwreck.

Gaius, On the Provincial Edict, Book VII. Because the creditor is held to have sold a pledge which was void.

Gaius, On the Provincial Edict, Book VII. The principles have been stated with reference to a suit for recovery of the entire property must be understood to equally apply to the recovery of a portion of the same; and it is the duty of the judge to order those things which should be given up to be also delivered in proportion, at the same time that the share itself is surrendered. 1An action for the recovery of a share which is not yet ascertained will be granted, if there is good cause for it. It is good cause where, for instance, the Lex Falcidia is applicable in the case of a will, on account of the uncertain sum which is to be reserved from legacies, when thorough investigation has not been made by the Court. Where a legatee to whom a slave has been bequeathed is entirely ignorant of what share in said slave he should bring suit for; an action of this kind will be granted. We understand that the same rule applies to other matters.

Gaius, On the Provincial Edict, Book VII. Nothing, however, is stated with reference to the payment of the purchase-money; wherefore it must be conjectured that it is not the opinion of the Prætor that it should be asked whether the price has been paid or not.

Gaius, On the Provincial Edict, Book VII. Wherever property is legally acquired by us in any way and is lost, this action will be granted to us for the purpose of recovering said property. 1Sometimes, however, the Publician Action can not be brought by persons who have lawfully obtained possession; for possession derived from pledge and precarious gifts is lawful; but a right of action is not usually allowed in cases of this kind, of course, for the reason that neither the creditor nor the party who has a precarious title obtains possession with the understanding that he shall believe himself to be the owner. 2Ad Dig. 6,2,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 6.When anyone makes a purchase from a minor, he must prove that he did so with the consent of his guardian, and not in violation of law. But where he made the purchase through the deceit of a pretended guardian, he is held to have acted in good faith.

Gaius, On the Provincial Edict, Book VII. An usufruct may be created in several ways; for instance it may be bequeathed as a legacy. The mere ownership of the property can be left by way of legacy, and the usufruct be reserved, so that the usufruct will remain for the heir. 1An usufruct may be created also by an action for the partition of an estate, or by one for the division of property held in common, where the court adjudges the mere ownership to one party and the usufruct to another. 2An usufruct is, moreover, acquired for us not only through ourselves, but also through persons whom we have under our control. 3There is nothing to prevent my slave being appointed an heir, and the bare ownership be left as a legacy, the usufruct being reserved.

Gaius, On the Provincial Edict, Book VII. Because he who enjoys the purchase-money is none the less considered as possessing the usufruct than one who enjoys and uses the actual property:

Gaius, On the Provincial Edict, Book VII. Just as the expenses of the maintenance of a slave whose usufruct belongs to anyone must be paid by the latter; so, also, it is evident that the expenses of his illness must naturally be borne by him.

Gaius, On the Provincial Edict, Book VII. Where an usufruct is bequeathed to your slave Stichus, and to my slave Pamphilus, such a bequest is the same as if it had been made to me and to you; and therefore there is no doubt that it belongs to us equally.

Gaius, On the Provincial Edict, Book VII. And if you convey the property to anyone after the usufruct has been reserved, Julianus thinks that, nevertheless, the right of accrual will exist; and that you are not considered to acquire a new usufruct.

Gaius, On the Provincial Edict, Book VII. Neither an usufruct, nor a right of way, nor a right to drive, is lost by change of ownership.

Gaius, On the Provincial Edict, Book VII. The flesh and hides of dead cattle do not form part of the product of the same, because the usufruct is extinguished as soon as they are dead.

Gaius, On the Provincial Edict, Book VII. In the case of money, however, it is necessary for security to be given to those at whose charge the usufruct of this money is bequeathed. 1By this Decree of the Senate it was not brought about that an usufruct of money should actually exist, for natural reason cannot be altered by the authority of the Senate; but where the remedy of security is introduced, a quasi usufruct was created.

Gaius, On the Provincial Edict, Book VII. Where the usufruct of oil, wine, or grain is bequeathed, the property should be delivered to the legatee, and he should be required to give a bond that, “Whenever he dies or forfeits his civil rights, articles of the same quality shall be delivered”; or the former article must be appraised and security be given for a certain sum of money, which is more convenient. We understand the same rule to apply to other things, the value of which is embraced in their use.

Gaius, On the Provincial Edict, Book VII. In the usufruct of a slave, his services as well as compensation for the same are included.

Gaius, On the Provincial Edict, Book VII. Let us now consider use and habitation. 1A mere use may be created, that is to say, without complete enjoyment; and this is ordinarily created in the same ways as an usufruct.

Gaius, On the Provincial Edict, Book VII. It was held by Labeo that a male or a female slave can be compelled to pay money instead of working.

Gaius, On the Provincial Edict, Book VII. Servitudes granted for a driveway, a pathway, the passage of cattle, and the conduct of water, are created in almost the same manner as those in which we have stated that usufruct is created. 1The enjoyment of servitudes may be limited with reference to time; for example, where a party may make use of the servitude from the third until the tenth hour, or on alternate days.

Gaius, On the Provincial Edict, Book VII. The following are the rights to which urban estates are subject, namely: that of raising a house and obscuring the lights of a neighbor, or of preventing a raising of this kind; that of allowing the dripping of rain-water on the roof or the ground of a neighbor; and also that of not allowing the right of inserting beams into the wall of a neighbor, and that of the projection of a building; and others similar to these.

Gaius, On the Provincial Edict, Book VII. Moreover, these servitudes just as those of rustic estates, are lost by want of use after a certain time has elapsed; except that this distinction exists between them, namely: that they are not absolutely lost by want of use, but only where the neighbor obtains freedom by usucaption at the same time. For instance, if your house is servient to mine so that it cannot be raised any higher lest it may obstruct the lights of my building, and I have my windows closed or obstructed during the time established by law; I lose my right only where you have had your house raised and remaining higher during the time aforesaid; otherwise, if you construct nothing new, I will retain the servitude. Moreover, if your house is subject to the servitude of the insertion of a beam, and I remove the beam, I only lose my right if you fill up the hole from which the beam was taken, and retain things in this state during the time prescribed by law; but if you make no change, my right remains unimpaired.

Ad Dig. 8,2,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169a, Note 3c.Gaius, On the Provincial Edict, Book VII. Where a wall is, according to natural law, common property, neither of two neighbors has a right to tear it down, or repair it, because he is not the sole owner.

Gaius, On the Provincial Edict, Book VII. By the Law of the Twelve Tables, the width of a road subject to a right of way, must be eight feet, where it is straight; but where there is a bend, that is to say where the road curves, it must be sixteen.

Gaius, On the Provincial Edict, Book VII. Where the owner of two tracts of land conveys one of them to you under the agreement that the tract which he conveyed shall be subject to a servitude in favor of the one which he retained, or vice versa; a servitude is understood to be lawfully imposed.

Gaius, On the Provincial Edict, Book VII. The servitudes of estates are merged when the same person becomes the owner of both estates.

Gaius, On the Provincial Edict, Book VII. It is commonly held that servitudes attached to real property are not lost by death or by the forfeiture of civil rights.

Gaius, On the Provincial Edict, Book VII. There is no doubt that an action can be brought under this law in behalf of persons who are free; as, for instance, where an animal wounds the head of a family, or the son of a family, provided no account is taken of disfigurement, since anyone who is free does not admit of appraisement; but account may be taken of the expenses incurred for the cure of the injury and of the loss of labor which the party could not perform for the reason that he was disabled.

Gaius, On the Provincial Edict, Book VII. It is provided by the first section of the Lex Aquilia that, “Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year”. 1And then the law further provides that, “An action for double damages may be brought against a person who makes a denial”. 2It therefore appears that the law places in the same category with slaves animals which are included under the head of cattle, and are kept in herds, as, for instance, sheep, goats, oxen, horses, mules, and asses. The question arises whether hogs are included under the designation of cattle, and it is very properly decided by Labeo that they are. Dogs, however, do not come under this head; and wild beasts are far from being included, as for instance, bears, lions, and panthers. Elephants and camels are, as it were, mixed, for they perform the labor of beasts of burden, and yet their nature is wild, and therefore they must be included in the first Section.

Gaius, On the Provincial Edict, Book VII. Therefore, if I kill your slave who is a thief and is attacking me at the time, I shall be free from liability, “For natural reason permits a man to protect himself from danger”. 1The Law of the Twelve Tables permits anyone to kill a thief who is caught at night, provided, however, that he gives warning by an outcry; and it permits him to kill the thief in the day-time, if he is caught and defends himself with a weapon, provided always, that he calls others to witness with an outcry.

Gaius, On the Provincial Edict, Book VII. The same rule is applicable where he wrongfully makes use of a drug; but if a surgeon operates properly, and does not employ any further curative measures, he will not be free from responsibility, but is considered to be guilty of negligence. 1Moreover, where a muleteer, through want of skill, is unable to restrain the course of his mules, and they crush a slave belonging to another, it is ordinarily said that the driver is liable on account of negligence. The same view is held if he cannot control his mules because of want of strength; nor does it seem to be unjust that want of strength should furnish ground for negligence, because no one ought to undertake anything which he knows, or ought to know, will be dangerous to others on account of his weakness. The law is the same in the case of a person who, through want of skill or want of strength, cannot manage the horse on which he is riding.

Gaius, On the Provincial Edict, Book VII. This question has been asked, namely: whether the same rule should be observed in an action for wrongful damage which is adopted by the Proconsul in the case of theft committed by a number of slaves; that is to say, whether the right to the collection of the penalty should not be granted with reference to every individual slave; but it will be sufficient for the amount to be made good which would have to be paid if a single freeman had committed the theft. The better opinion seems to be that the same rule should be observed, and there is reason in this; for, as the principle which applies in an action for theft is that an owner should not be deprived of his entire body of slaves on account of one offence; the same principle should, in like manner, apply where an action is brought for wrongful damage, and the same kind of valuation should be made, especially since sometimes in an instance of this kind the offence is not of a serious character; for example, where the damage was committed through negligence and not through malice. 1Where the same person wounds a slave and then afterwards kills him, he is liable for both wounding and killing him; for there are two offences. It is otherwise where anyone in the same attack kills a slave by inflicting many wounds; for then only one action, that for killing him, can be brought.

Gaius, On the Provincial Edict, Book VII. Where anyone brings several actions at different times, on account of distinct offences, and he obtains ownership of the slave on account of one of said offences, he will not be entitled to any other action against the party who was formerly the owner, since a noxal action follows the individual; but, if the owner at the time the former case was tried, preferred to pay the damages assessed, he will, nevertheless, be liable to the same plaintiff, or to anyone else, if he brings suit on the ground of some other wrong.

Gaius, On the Provincial Edict, Book VII. In any case in which it is necessary that a decision should be made giving the land of one of the parties to the other, the one in whose favor the decision is rendered shall be required to pay to the other a certain sum of money by way of compensation.

Gaius, On the Provincial Edict, Book VII. This action is derived from the Law of the Twelve Tables, for it was considered necessary, where co-heirs desired to relinquish ownership in common, that some kind of action should be established by which the property of the estate might be distributed among them. 1This action, in fact, can be brought directly by a party who is not in possession of his share. Where, however, he who is in possession of the estate denies that the plaintiff is his co-heir, he can bar him by an exception stated as follows: “If the inheritance is not prejudiced with reference to the matter in question.” If the party possesses his share, even though it may be denied that he is a co-heir, an exception of this kind will not be a bar; the result of which is that, in this instance, the judge himself who hears the case must determine whether the party is a co-heir or not; for if he is not, nothing will be adjudged to him, nor will his adversary be required to make him any payment.

Gaius, On the Provincial Edict, Book VII. It is evident that it sometimes becomes the duty of the judge to see that different debts and claims are assigned to different heirs in severalty, because it often occurs that the payment or collection of debts to be apportioned among different shares causes no small degree of inconvenience. Still, this assignment does not always have the effect of rendering a single heir liable for the entire indebtedness, or of giving him the right to collect all of it, but the result merely is that if proceedings are instituted, the heir brings them partly in his own name and partly in the capacity of agent; or, where an action is brought against him, he is sued partly in his own name and partly as agent. Although the creditors are fully empowered to bring suit against each individual heir; the latter still have a perfect right to substitute in their places such parties as the order of the court indicates should sustain the burden of the action.

Gaius, On the Provincial Edict, Book VII. Where any inheritable obligations are included in the property of the estate, the judge should take care that they remain in the possession of the party who is heir to the largest share; the others are entitled to copies which must be verified, and a bond shall be executed by the said heir to the effect that the original documents will be produced when occasion requires this to be done. Where all the heirs are entitled to equal shares, and no agreement is made between them with reference to the party with whom the instruments are to be left, they must cast lots, or a friend should be chosen by common consent or by vote with whom they may be deposited, or they must be placed for safe keeping in some consecrated temple.

Gaius, On the Provincial Edict, Book VII. Where an injury is committed by one of the heirs, it is proper to state that simple damages should be considered in the action for partition of the estate.

Gaius, On the Provincial Edict, Book VII. Again, on the other hand, the judge ought to provide in like manner that, where one of the heirs has pecuniarily profited by the property of the estate, or has entered into a stipulation to its disadvantage, he shall not be the only one to be benefited. The judge can accomplish this by either causing accounts to be rendered by the different heirs, or by causing them to give security to one another by means of which the profits and losses will be equally divided between them.

Gaius, On the Provincial Edict, Book VII. It is part of the duty of the judge to order one or more things belonging to the estate to be sold, and the proceeds of the sale to be paid to any person to whom said money was bequeathed.

Gaius, On the Provincial Edict, Book VII. Where a testator bequeaths property to be taken before division, which he has already pledged to a creditor; it is in the province of the judge to redeem it out of the common fund of the estate, and see that he to whom it was bequeathed in this way shall have it.

Gaius, On the Provincial Edict, Book VII. Ad Dig. 10,3,2 pr.ROHGE, Bd. 14 (1875), Nr. 78, S. 237: Theilungsklage eines Theilhabers an einer Gelegenheitsgesellschaft.It makes no difference, however, whether property is held in common among different persons with partnership or without it; for in either instance an action for the partition of common property will lie. Common property exists with partnership where, for instance, parties jointly purchased the same thing; and it is common without partnership where, for example, the same property is bequeathed to them by will. 1With reference to the three double actions, namely; that for partition of an estate, that for the division of common property, and that for the establishment of boundaries, the question arises who is to be considered the plaintiff, because the position of all of them appears to be the same? The better opinion is, however, that he must be considered the plaintiff who instituted the proceedings in court.

Gaius, On the Provincial Edict, Book VII. We should, by all means, bear in mind that if, after the destruction of the common property, he who is entitled to be paid something by reason of the common ownership desires to bring an action on this ground, he will be granted an equitable action in partition; for instance, where the plaintiff incurred certain expenses on the common property, or the joint-owner alone obtained some profit from it—as, for example, the labor of a slave, or money paid for the same—an account of all these things is taken in an action of this kind.

Gaius, On the Provincial Edict, Book VII. Where an usufruct is demanded from the purchaser, he ought to notify the vendor of it; just as he should do from whom a portion of the property is sought to be recovered.

Gaius, On the Provincial Edict, Book VII. If one of the witnesses should be absent, the will must be sent to him wherever he may be, in order that he may acknowledge his seal. For it would be a hardship to compel him to return for this purpose, as frequently it causes great inconvenience for us to be taken from our business under such circumstances; and it would be unjust for anyone to suffer injury for having performed his duty. Nor does it make any difference whether one or all of the witnesses are absent. If all of them should happen to be absent, and, for some cause or other, there is an urgent necessity for opening the will, the Proconsul should take care that it is opened in the presence of men of excellent reputation; and after it has been copied and examined in their presence, it must be sealed by the same parties before whom it was opened, and then sent to the place where the witnesses are, in order that they may acknowledge their seals.

Gaius, On the Provincial Edict, Book VII. A man who is possessed in good faith as a slave does not acquire for the possessor anything which he obtains by means of the capital of another. 1It is clear that incorporeal property is not capable of delivery and usucaption. 2If a slave, the usufruct of whom belongs to another than his owner, himself purchases a slave who is delivered to him before he pays the price, it is uncertain for whom he acquires the ownership. For if he should pay the price out of the peculium belonging to the usufructuary, it is understood that the slave will become his; but if he pays it out of the peculium to which the owner is entitled, the slave will be considered to belong to the latter.

Gaius, On the Provincial Edict, Book VII. When a slave owned in common acquires anything by means of the property of one of his masters, it will, nevertheless, belong to both of them; but the one by means of whose property it was acquired can recover the entire amount by an action in partition; for good faith demands that each of the owners shall have a preferred claim to whatever the slave obtained by means of his property; but if the slave should acquire it in some other way, it will belong to all the joint-owners in proportion to their ownership.

Gaius, On the Provincial Edict, Book VII. Some authorities hold that timber fit for cutting is such as is set apart for that purpose. Servius says that this also applies to trees which have once been cut, but have grown again from sprouts or roots. 1Ungathered stalks are heads of grain thrown down during the reaping, and not afterwards gathered, which peasants collect after the harvest has been removed. 2New ground is that which, after having been cultivated, is left for a year, and which the Greeks style neasin. 3“Virgin soil” is that on which the owner has not yet placed cattle for the purpose of pasturage. 4“Fallen acorns” are such as have themselves dropped from the tree. 5“Forest pasture” is that destined for the grazing of cattle.

Gaius, On the Provincial Edict, Book VII. Ignorance is classed as negligence.