The Same, On Plautius, Book VI. Where joint-owners dissolve their ownership, it is customary for security to be furnished with reference to any indebtedness which may exist, which is dependent upon a condition.

Paulus, On Plautius, Book VI. Let us consider, in a general way, where the produce of property is included in a personal action. 1And, 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. 2Moreover, 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. 3The 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. 4Ad Dig. 22,1,38,4ROHGE, Bd. 10 (1874), S. 248: Der particeps fraudis debitoris haftet den Gläubigern auf den vollen Ersatz des ihnen Entzogenen, ohne Rücksicht darauf, ob er es noch besitzt.ROHGE, Bd. 13 (1874), Nr. 122, S. 381: Besitz als Voraussetzung der actio Pauliana?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 Prætor 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 Prætor makes use of in this matter, have a broad signification, so that the produce of the property must also be surrendered. 5And, therefore, when the Prætor agrees to the restitution, the produce must also be given up; as in proceedings under the interdict based upon the commission of violence. 6Moreover, 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. 7If 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. 8The profits of property must also be restored in the case of a purchaser. 9In a partnership, however, the profits must be divided among the partners. 10Where 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. 11Again, in proceedings under an interdict based on force and clandestine action, the better opinion is that all accessions and profits should be returned. 12Crops gathered from land before marriage become part of the dowry, and should be returned along with it. 13The same principle applies to the profit of urban estates. 14Moreover, 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. 15The profits should always be delivered in other bona fide actions. 16Where a dowry is left by a husband to his wife, the profits of the same obtained before marriage are included in the legacy.

The Same, On Plautius, Book VI. I cannot marry the granddaughter of my sister, because I stand in the relation of a parent to her. 1If anyone should take as a wife a woman whom he is forbidden by good morals to marry, he is said to commit incest.

The Same, On Plautius, Book VI. A man, who owed the slave Stichus to a woman, was delegated by her to constitute her dowry, and, before the debtor made payment, Stichus died. As the debtor was not to blame in making payment, and the husband was not in default in taking action, the loss caused by the death of Stichus must be borne by the woman; although, even if her husband had been in default in making a demand for him, and if Stichus had died while in the hands of her husband, he would not be liable to an action on dowry. 1The dowry should be under the control of him who sustains the burdens of marriage. 2After the death of the father, the burdens of marriage immediately pass to the son, just as the children and the widow become subject to his authority. 3When it is said that the dowry is diminished by the necessary expenses under operation of law, this only applies where a tract of land given by way of dowry partially ceases to be dotal, but where the expenses are not refunded, a portion of the land, or all of it, may be retained. Where, however, expenses which amount to the value of the land are incurred at different times, Scævola says that it ceases to be dotal, unless the woman should voluntarily tender to her husband the amount of the expenses within a year. If both money and land are included in the dowry, and necessary expenses have been incurred on account of the land, Nerva says that the expenses should be deducted from the money forming part of the dowry. But what if the woman should pay the expenses to her husband, will the dowry be increased, or will it be held to have been given intact? Where the dowry consists of land, the injustice of this would seem to be greater, according to the opinion of Scævola; for if it ceases to be dotal the husband could alienate it. Again, how can money paid in this way become dotal, or will not the money already be considered as part of the dowry? The better opinion is that the land will revert to its former condition of dowry, and that its alienation in the meantime will be prohibited.

The Same, On Plautius, Book VI. If anyone stipulates with a husband as follows: “If, for any reason, Titia ceases to be your wife, you must surrender her dowry”; by this general statement the stipulation becomes effective, whether the woman is taken captive by the enemy, or whether she is banished or reduced to slavery, for in such a clause all such accidents are included. If, however, the terms of the stipulation are strictly construed, will this apply where the woman dies, or is divorced? It is held to be more equitable that it should apply in case of death.

Paulus, On Plautius, Book VI. If I emancipate my natural son and adopt another, they will not be brothers. Arrianus says that if, after the death of my son, I adopt Titius, he will be considered the brother of the deceased.

Paulus, On Plautius, Book VI. Julianus says that nothing can be acquired through a slave donated by a husband, not even by means of the property of the wife to whom the slave was given; for this is only conceded in the case of those who are serving in good faith as slaves.

Paulus, On Plautius, Book VI. Where there are several persons to whom money is due for the same reason, the position of the most diligent is preferable; and no deduction is made of what is due to persons of equal rank, as is the case in an action De peculio; for, in this instance, the position of the one who first proceeds is the most advantageous. The indebtedness should not, however, be deducted where suit is brought against a father or a patron, especially where the debt is due to persons of the same condition, as to other children or other freedmen. 1He, also, against whom an action is brought on account of a donation, can only have judgment rendered against me for the amount which he is able to pay; and he, in fact, is the only one with reference to whom the indebtedness should be deducted. So far as those to whom money is due for the same reason is concerned, the position of the most diligent is preferable. And, indeed, I do not think that everything that he has should be extorted from him, but that care should be taken not to reduce him to poverty.

Paulus, On Plautius, Book VI. Moreover, just as in the case of a husband, so also a father-in-law cannot have judgment rendered against him beyond his ability to pay. If, however, an action based on his promise of a dowry is brought against the father-in-law, can judgment be rendered against him to the extent of his means? This seems to be equitable, but it is not our practice, as Neratius states.

Paulus, On Plautius, Book VI. If an action to recover a dowry is brought against an agent of the husband, and judgment is rendered during the lifetime of the latter, it can only be for the amount which he is able to pay, for the defender of the husband can only have judgment rendered against him for that amount; but if the husband should be dead, the judgment will include the entire dowry.

Paulus, On Plautius, Book VI. He is guilty of fraud who demands something which he should return. 1If an heir has been charged not to collect anything from a debtor of the estate, the latter can avail himself of an exception on the ground of fraud, and can also bring suit under the terms of the will.

The Same, On Plautius, Book VI. The default of the principal debtor also injures the surety, but if the surety should offer a slave, and the principal debtor is in default, and the slave should die, relief must be granted the surety. If, however, the surety should kill the slave, the principal debtor will be released, but an action based on the stipulation can be brought against the surety.

The Same, On Plautius, Book VI. Necessary expenses are those which must be incurred to prevent the destruction or deterioration of property. 1Fulcinius says that useful expenses are any that improve the condition of a dowry, and do not permit the deterioration of anything from which an income is obtained by the wife; as, for instance, by making a larger plantation of trees than was necessary. Likewise, a husband cannot provide for the instruction of slaves if, by so doing, the woman, being ignorant of the fact, or unwilling, may be put to expense, and be forced to lose either her land or her slaves. We generally include in expenses of this kind those incurred by a husband for the construction of a mill or a warehouse, to be added to the dotal property. 2Expenses incurred for pleasure are such as only adorn property, and do not increase its income; for example shrubbery, fountains, ornamented stucco-work, hangings, and paintings.

The Same, On Plautius, Book VI. When judgment is rendered against anyone to the extent of his means, everything which he had should not be extorted from him; but the rule of law should be observed which does not permit him to be reduced to poverty. 1When the expression, “You shall make restitution,” is found in a law, the profits must also be restored, even if this is not specially provided for. 2Everyone is prejudiced by his own delay in making payment, which rule is observed where two debtors are jointly liable. 3Ad Dig. 50,17,173,3ROHGE, Bd. 13 (1874), Nr. 51, S. 145: Rechtsverhältniß eines Gesellschafters als Gläubigers der Gesellschaft den andern Gesellschaftern gegenüber.He is guilty of fraud who demands something which he is obliged to return.