Ulpianus, On the Edict, Book XIV. If the solvency of the surety is not denied, it should be said that he has the privilege of objecting to the jurisdiction of the court, and as the plaintiff may fear that he will make use of his right; we must ascertain what the law is. The Divine Pius, (as Pomponius states in his Book of Epistles, Marcellus in the Third Book of the Digest, and Papinianus in the Third Book of the Questions), set forth in a rescript to Cornelius Proculus, that the plaintiff might justly reject such a surety, but that if he was unable to find any other, he could warn him not to use his privilege, if suit was brought. 1When security is required, and the defendant cannot readily obtain it where the action is brought, he can be heard, if he is ready to give security in another city of the same province. Where, however, the security is voluntary, he cannot have recourse elsewhere; for he who has imposed upon himself the necessity for security does not deserve such consideration. 2Where security has not been given, and the property for which it is required is personal, and the party is liable to suspicion; the article should be deposited in court if the judge approves of this, or security is furnished, or the suit is brought to an end.

Ulpianus, On the Edict, Book XIV. Ad Dig. 4,9,1 pr.ROHGE, Bd. 25 (1880), Nr. 79, S. 333: Haftpflicht des Gastwirths für das Receptum.The Prætor says: “When sailors, innkeepers, and the proprietors of stables have received property for safe keeping, I will grant an action against them if they do not restore it”. 1Ad Dig. 4,9,1,1ROHGE, Bd. 17 (1875), Nr. 12, S. 40: Haftung des Gastwirths für die Sachen eines Reisenden ohne Rücksicht auf die Dauer und Bezahlung der Beherbergung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 384, Note 5.This Edict is extremely useful, for the reason that it is very frequently necessary to place confidence in persons of this kind, and to entrust them with the care of property. No one should think that this Edict imposes any hardship upon them, for they have the choice of refusing to receive anyone; and, unless this rule was established, opportunity would be given for them to cooperate with thieves against those whom they receive as guests; since, even now, they do not abstain from fraudulent acts of this description. 2Therefore, let us consider who those are that are liable. The Prætor says “Sailors”. We must understand a “sailor” to be the person who has charge of the ship, although all are called sailors who are on board the vessel for the purpose of navigating it, but the Prætor only has in mind the owner; for Pomponius says that the latter ought not to be liable for the act of an oarsman, or sub-pilot, but only for what he does himself, or for the act of the captain; although if he himself ordered anyone to commit something to the care of a sailor, he would himself undoubtedly be liable. 3There are also persons who occupy positions on board ships for the purpose of caring for merchandise such as ναυφύλακες, that is to say, marine guards and stewards. Therefore, if any of these should receive anything, I think that an action should be granted against the owner of the ship, because he who appointed persons of this kind to office permits property to be placed in their charge; even though the captain, or master does that which is called χειρεμβολον that is to say, “taking the property in his hands”. But even if he does not do this, the ship-owner will nevertheless be liable for what was received. 4No provision is made with reference to those who have charge of rafts or boats, but Labeo says that the same rule applies to them; and this is our practice. 5We understand by the terms “innkeepers” and “stablekeepers”, those who conduct an inn or a stable, or their agents. Persons, however, who are engaged in menial occupations, are not included; as, for instance, door-keepers, cooks, and others like them. 6The Prætor says, “Where they have received the property of anyone for safe keeping”; that is to say, any article or any goods whatsoever. Hence, it is stated in Vivianus, that this Edict also has reference to things which do not come under the head of merchandise; as, for instance, clothing which is worn on board ship, and other things such as persons daily make use of. 7Moreover, Pomponius says in the Thirty-fourth Book, that it makes a little difference whether we bring in our own property or that of others, if we have an interest in having it kept safely, for the property should be returned to us rather than to those to whom it belonged; and, therefore, if I accept merchandise as a pledge for money loaned on a maritime risk, the owner of the vessel will be liable to me rather than to the debtor, if he had previously received the property from me. 8Ad Dig. 4,9,1,8ROHGE, Bd. 11 (1874), Nr. 108, S. 344: Haftpflicht des Gasthofbesitzers für die vom Gaste eingebrachten Effecten. Uebergabe von Sachen an den Portier zur Beförderung mit dem Gasthofomnibus zur Post.ROHGE, Bd. 25 (1880), Nr. 79, S. 333: Haftpflicht des Gastwirths für das Receptum.Does he “receive the property for safe-keeping”, only where having been placed on board the ship it was entrusted to him, or if it is not thus entrusted, is he still considered to have received it for this purpose, if it was merely placed on board the ship? I think that he always receives property for safe-keeping when it is placed on board, and that he not only should be liable for the acts of the sailors, but also for those of the passengers:

Ad Dig. 4,9,3ROHGE, Bd. 11 (1874), Nr. 108, S. 344: Haftpflicht des Gasthofbesitzers für die vom Gaste eingebrachten Effecten. Uebergabe von Sachen an den Portier zur Beförderung mit dem Gasthofomnibus zur Post.Ulpianus, On the Edict, Book XIV. Pomponius says, in the Thirty-fourth Book, the same thing with reference to the acts of passengers. He also asks that where the property has not yet been placed on board a ship, but has been lost on land, it is at the risk of the owner of the vessel who at first took charge of it. 1The Prætor says: Unless they restore it, I will grant an action against them. The action arising from this Edict is one in factum. Let us consider, however, whether this is necessary, as the case is one in which a party can proceed by a civil action; that is to say, where any compensation is involved, an action based on leasing or hiring will lie. But where the entire ship was hired, the party who did so can bring suit on that ground, even for articles that are missing; but if the master contracted to transport the goods, an action on the ground of hiring can be brought against him; and if he received the goods gratis, Pomponius says that an action on deposit will lie. He, therefore, is surprised that a prætorian action was introduced, since civil actions are applicable; unless, as he states, it was for the purpose of making it known that the Prætor was desirous of checking the dishonesty of persons of this kind, and because in cases of leasing and hiring, a person is responsible for negligence, but in cases of deposit, only for fraud; but, under this Edict, the party who received the property is absolutely liable, even though the goods were lost, or damage resulted without his fault, unless something occurred to cause inevitable injury. Hence, Labeo holds that, where anything is lost through shipwreck, or by the violence of pirates, it is not improper to grant the owner an exception. The same must be said where irresistible force is used in a stable, or an inn. 2Inn-keepers and the proprietors of stables are also liable, if, in the transaction of their business, they take charge of property; but they are not liable if they do so outside of their business. 3Where the son of a family, or a slave receives property for safe-keeping, and the consent of the father or master is granted, an action may be brought against him for the entire amount. Moreover, if a slave of the owner of the vessel stole the property or injured it, a noxal action will not lie, for the reason that the owner can be sued directly, on account of his having received the goods; but if the son of the family, or the slave acted without the consent of his superiors, an action De Peculio will be granted. 4This action, as Pomponius states, has for its object the recovery of property; and therefore is granted perpetually, and against an heir. 5Finally, let us consider whether proceedings by a prætorian action on the ground of property received, and also on that of theft, can be instituted for the same property. Pomponius is in doubt as to whether it can, but the better opinion is that the party ought to be content with one or the other of the two proceedings; that is, either application to the court, or an exception on the ground of fraud.

Ulpianus, On the Edict, Book IV. It must be borne in mind that complaints are frequently made with reference to inofficious testaments, as it is lawful for all persons, whether they be parents or children, to attack an inofficious testament. Those relatives who are beyond the degree of brothers will do better, however, not to trouble themselves by incurring useless expense, since they have no hope of success.

Ulpianus, On the Edict, Book XIV. A posthumous son can allege that a will is inofficious where the testator was one to whom he might have been a proper or lawful heir, if he was unborn at the time of the death of the former. He has also a right to attack the wills of cognates, since, in this instance, he would be able to obtain possession of the property in case of intestacy. What then? Should the testator be blamed for not dying intestate? But no one could obtain assent from a judge where such a proposition was advanced; for parties of this kind are not prohibited from making wills. This, however, he can clearly be charged with, namely: not appointing the party his heir, for an heir who has been appointed can be placed in possession in accordance with the clause by which possession can be granted to the mother of an unborn child; and if it was born, it would be entitled to possession in accordance with the provisions of the will. I hold that, in like manner, the complaint can be brought by a party who, after the will of his mother was made, was removed from her womb by the Cæsarean operation. 1Where a person has no right to succession by intestacy institutes proceedings on the ground that the will is inofficious, and no one contests his right to do so, and he happens to succeed, his success will be of no benefit to him, but will only be of advantage to those who are entitled to the succession on intestacy, for he makes the former head of the family intestate. 2Where anyone dies after having instituted proceedings on the ground of inofficiousness, does he transfer his right of complaint to his heir? Papinianus answered (and this is also stated in several rescripts) that if the party should die after he has already obtained possession of the property of the estate, the right of proceeding with the action passes to the heir; and where the possession of the property is not demanded, but the controversy has already begun or is in course of preparation, or if the party should die after having arrived for the purpose of filing a complaint on the ground of inofficiousness; I think that the right passes to his heir.

Ulpianus, On the Edict, Book XIV. Papinianus very properly says in the Fifth Book of Questions, that a father cannot institute proceedings on the ground of inofficiousness in behalf of his son, if the latter is unwilling; for the wrong was committed against the son. He states immediately afterwards that if his son should die after having obtained possession of the estate, with a view to proceeding regularly with the case, the complaint for inofficiousness is terminated; for it was not granted to the father himself, but on account of his son. 1Where a party abandons the case after having instituted proceedings on the ground of inofficiousness, he shall not afterwards be heard. 2It has very frequently been stated in rescripts that when the Emperor is appointed an heir, the testament can be declared inofficious. 3Papinianus, in the Second Book of Opinions, says that a complaint for an inofficious testament can be brought against the head of a family who is a veteran, even though the only property which he owns is what he obtained in military service. 4Where a soldier makes a will while in the army, and dies a year after he is discharged, I doubt whether a complaint for inofficiousness will be allowed, because his will is valid up to this time, in accordance with military law, and it may be said that a complaint on the ground of inofficiousness is not available. 5A mother cannot claim that the will of her son who is under age is inofficious, because his father made it for him; and Papinianus gave this opinion; nor can his father’s brother do so, because it is the will of the son; therefore, the brother of the minor cannot do so either, if he did not object to his own father’s testament. Where, however, the testament of the father is attacked successfully, that of his son will be void, unless it was broken only with reference to his father, for then the pupillary part will remain valid. 6Where anyone makes a donation mortis causa to his son of the fourth part of what he would have been entitled to if the testator had died intestate, I am of the opinion that his will is secure. 7Where a man provided a substitute for his son, who is a minor, by making a secondary bequest, we cannot, for this reason permit the minor himself to file a complaint for inofficiousness. 8Since the fourth part of the share which is due is sufficient to exclude the complaint, it should be considered whether a disinherited child, who does not object, should be included, as, for example, where there are two sons who are disinherited; and no doubt he should be included, as Papinian states; and if the other should say that the will is inofficious, he cannot claim the entire estate, but only half of the same. Thus, for the same reason, where there are grandchildren, the issue of two sons, for instance, three by one of them, and only one by the other; the son who is alone will be excluded from the complaint by obtaining three-twenty-fourths of the estate, and any one of the others by obtaining one twenty-fourth of the same. 9This fourth part will, of course, be estimated after the debts and funeral expenses have been deducted; but it must be considered whether testamentary grants of freedom will diminish the fourth part, and do they diminish it? For if anyone is appointed sole heir, he cannot claim that the will is inofficious, because he has received the Falcidian portion; but the Lex Falcidia does not apply to testamentary manumissions, and it may be held that the fourth part is to be entered on after deducting what is lost by manumission; therefore, as it is established that the fourth part is reduced by manumission, the result will be that, where a person’s estate consists of slaves, by emancipating them he bars a complaint for an inofficious testament; unless, perhaps, his son, if he was not under his control after being appointed the heir of his father, may properly reject the estate, and having transmitted it to the substitute, may begin proceedings for inofficiousness, so as to obtain the estate on the ground of intestacy without being liable to the penalty prescribed by the Edict. 10Ad Dig. 5,2,8,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 581, Note 7.Where a testator directed his heir to fulfill some condition having reference to his son, or to some other person who had a right to bring the same complaint, and he knowingly agreed to this, it should be considered whether he is prevented from making a complaint for inofficiousness, since he accepted the will of the deceased. The case is the same where the party who gave him the donation was a legatee, or a statuliber; and it may be said that the son is prevented, and especially where the testator ordered the heir to make the gift; but if it was a legatee, may it not be true that where the right to file a complaint for inofficiousness has once vested, the tender by the legatee will not abrogate it? For why did we absolutely establish this principle in the case of the heir? It was because no right to file a complaint arises before he had entered upon the estate. I think that, in this instance, the event must be followed, so that if what was left was tendered to the son before proceedings were instituted by him, then it appears that he has all that he is entitled to, as the donation was offered in accordance with the wishes of the testator. 11Wherefore, if anyone has been appointed heir, for instance to one half the estate, when a sixth would have been coming to him from the testator’s property if he had died intestate, and he is asked to surrender the estate after a certain time; it can reasonably be held that he cannot bring an action, since he could have the share which was due to him, and the profits of the same, for it is well established that the profits are usually included in the Falcidian portion. Therefore, where, in the beginning, an heir was appointed to half the estate, and afterwards is asked to relinquish his inheritance after the expiration of ten years; there is no ground on which to make complaint, since he could during that time, easily have collected the share that was due to him together with the profits of the same. 12Where a party alleges that a will is void, defective, and inofficious, the choice should be given him as to which claim he wished to make first. 13Where a son who has been disinherited is in possession of the estate, and the party who has been appointed heir brings suit to recover it; the son can file the complaint by way of cross action, just as he would do if he were not in possession but was bringing an action for recovery. 14It must be remembered that where a party improperly alleges that a testament is inofficious, and loses his case, he will also lose what was left him by the testament, and it can be recovered in a suit by the Treasury as property of which he was deprived because he was unworthy of it. He is, however, only deprived of what was bequeathed to him by the will, where he, without any ground, continued to prosecute the case until judgment was rendered. Where, however, he desisted or died before judgment, he will not be deprived of what was left him. Hence, if while he was absent, a decision was pronounced in favor of the other party, who was present, it may be said that he can hold what was left him. A party, however, can only lose anything where the enjoyment of it belongs to him; and if he is asked to surrender it to another, no injury should be done. Wherefore, Papinianus not incorrectly states in the Second Book of Opinions, that where a party is appointed an heir and is asked to surrender the estate, and then, after bringing complaint for inofficiousness, does not succeed, he only loses what he could have obtained under the Lex Falcidia. 15Ad Dig. 5,2,8,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 593, Note 5.Where a minor has been arrogated, and is one of those persons who can make complaint of an inofficious testament without depending upon adoption or emancipation to do so; I think that he will be barred, since he is entitled to a fourth part of the estate, according to the Constitution of the Divine Pius. If, however, he brings suit, and does not obtain a judgment, will he lose this fourth part? I am of the opinion that he should not be permitted to contest the will on the ground of inofficiousness, or if he should be permitted, even if he does not gain the suit, to have the fourth part granted him as a debt which is due to him. 16Where a judge investigates a case based on an inofficious testament and renders a decree against the testament, and no appeal is taken, the testament is rescinded by operation of law; and the party who succeeds will become the direct heir, or the possessor of the property in accordance with the terms of the decree; testamentary grants of freedom will become void by operation of law; legacies will not be due; and if they have been paid they can be recovered either by him who paid them or by the successful litigant (by means of a prætorian action). Generally, however, where they have been paid before proceedings were instituted, the successful litigant should bring suit for their recovery; as the Divine Hadrian and the Divine Pius stated in a Rescript. 17It is certain that if the claim of inofficiousness is alleged for some very just cause after five years, manumissions which have already taken place, or which could be demanded, cannot be revoked; but twenty aurei should be paid by each liberated slave to the party who gained the suit.

Ulpianus, On the Edict, Book XIV. The Divine Pius stated in a Rescript that the possessor of an estate which was in dispute should be forbidden to dispose of any portion of it before proceedings are instituted; unless he prefers to furnish security for the entire amount of the estate, or for the restitution of the property belonging thereto. The Prætor, however, stated in an edict that: “Where proper cause was shown he would permit a part of the property to be alienated, even where such security was not given, but only the customary undertaking after proceedings had been instituted; lest, if the disposal of any of the property of an estate were prevented, it might hinder, in some way or other, other advantageous measures from being taken; as, for instance, if something was needed for funeral expenses; (for he allows a diminution of the estate on account of funeral expenses), and he will also do this when a pledge is to be sold if a sum of money is not paid within a certain time. A diminution of property belonging to an estate likewise becomes necessary to provide food for the family, and the Prætor must also permit the sale of perishable articles which in a short time would be destroyed. 1The Divine Hadrian stated in a Rescript to Trebius Sergianus that Ælius Asiaticus ought to give security for an estate, to recover; which suit had been brought against him, and then he can allege that the will is forged. This is done for the reason that the proceedings for recovery may remain in abeyance while investigation of the allegation of forgery is being made. 2The authority of the action brought for the recovery of estates is such that no other legal proceedings shall be permitted to prejudice it.

The Same, On the Edict, Book XIV. Where anyone states that he is entitled to his freedom under the terms of a will, the judge should not decide the question of his freedom, lest he may prejudice some decree rendered with reference to the will; and this law was passed by the Senate. The Divine Trajan stated in a Rescript that the trial to determine his freedom must be postponed until the suit on the ground of inofficiousness was either dismissed or concluded. 1Ad Dig. 5,3,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 16.Trials relating to freedom are, however, only stayed where joinder of issue has taken place in a suit for inofficious testament, but if this has not been done, the trial of the question of freedom shall not be postponed. This the Divine Pius stated in a Rescript, for when a certain Licinnianus had been brought into court to ascertain his status, and, to prevent a too early decision as to what it was, he refused to appear at the trial where the question of his freedom was to be heard, saying that he would join issue on the inofficiousness of the testament, and then bring an action to recover the estate; because he alleged that both freedom and the estate were conferred upon him by the testament. The Divine Pius said that if Licinnianus had been in possession of the estate, he would have a better right to be heard, since he could then have joined issue in behalf of the estate, and it was in the discretion of the party claiming to be his master to proceed on the ground that the testament was inofficious; but Licinnianus should not remain in slavery for five years under the pretext of the inofficiousness of the will on which point he himself had not joined issue. In the end, the Emperor permitted the judge to determine generally whether the trial with reference to the will was demanded in good faith, and if he ascertained that it was, that a reasonable time should be granted; and if issue had not been joined before it elapsed, the judge should be ordered to perform his duties in the trial involving the question of freedom. 2The Divine Pius stated in a Rescript that whenever anyone is compelled to defend a case which involves his own freedom, and the inheritance of an estate, but where he does not allege that he was made free under the will, but in some other manner—as for instance, that he had been manumitted by the testator in his lifetime—then the case involving the question of freedom should not be delayed, even though it was anticipated that an action would be brought with reference to the will. He added plainly in the Rescript: “Provided the judge who was to decide the question of freedom had been notified not to hear any statements in favor of freedom which were based upon the testament”.

Ulpianus, On the Edict, Book IV. Rights of action with reference to servitudes, whether they are rustic or urban, belong to those who own the land; but our burial-places are not the subject of our ownership, although we can claim a right of way to a tomb.

Ulpianus, On the Edict, Book XIV. It makes but little difference whether anyone promises to pay in the presence or in the absence of the debtor. Pomponius goes still farther in the Thirty-fourth Book, and states that anyone can make a promise for payment even without the consent of the debtor, and, therefore, he considers the opinion of Labeo to be incorrect, who thinks that if, after a party has made a promise on account of someone else, the principal should notify him not to pay, he ought to be granted an exception in factum; and Pomponius is not unreasonable in this; for when the party who made the promise is once bound, the act of the debtor should not enable him to avoid liability.

Ulpianus, On the Edict, Book XIV. Papinianus says, in the Third Book of Questions, that the mandator of a debtor who pays does not release the principal debtor by operation of law; for he pays on account of his own mandate in his own behalf, and therefore he thinks that the rights of action against the principal debtor should be assigned to the mandator.

Ulpianus, On the Edict, Book XIV. Papinianus, in the Fifth Book of Questions, says that where anyone accuses an heir of forging an appointment in a will, he will not be deprived of a legacy with which his co-heir, whom he did not disturb, has been charged.

Ulpianus, On the Edict, Book XIV. In estimating the amount due under the Falcidian Law, the actual value of the property must be appraised.

Ad Dig. 37,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 42, Note 3.The Same, On the Edict, Book XIV. Prætorian possessors, in every respect, take the place of heirs.

Ulpianus, On the Edict, Book XIV. Where any persons among those who have been charged with a grant of freedom under a trust are present, and others are absent for some good reason, and others still have concealed themselves, the slave to whom freedom was bequeathed under the trust will become free, just as if those who were present, and those who were absent for good reasons had been charged with the execution of the trust; and therefore the share of the right of patronage to which those who concealed themselves are entitled will accrue to the others.

Ulpianus, On the Edict, Book XIV. Where a slave is ordered to be free, and a legacy is left to him to vest when the son of the testator shall reach his fourteenth year, and the son dies before that time, the slave will become free when the term has expired, on account of indulgence with which freedom is regarded; but the condition upon which the legacy is dependent is held to have failed.

Ulpianus, On the Edict, Book XIV. Satisfaction is equivalent to payment.

Ulpianus, On the Edict, Book XIV. Prætorian security requires persons to appear for themselves, and no one can replace this kind of security by pledges, or by depositing money or articles of gold or silver.

Ulpianus, On the Edict, Book XIV. The stipulation for the payment of a judgment has reference to an indeterminate sum, for it becomes operative for the amount that the judge may decide to be due.

The Same, On the Edict, Book XIV. When a judgment is rendered against a will, by collusion, let us see whether the decision of the court will stand. The Divine Pius permitted the parties to appeal when it was alleged that certain persons had joined together, through collusion, to annul the rights of legatees, and slaves who had obtained their freedom; and, at present, this is the law, that is to say, they can appeal, and even appear in court before the same judge who tried the case relating to the will, if they have reason to suspect that the heir will not faithfully conduct the defence. 1Whenever the heir does not answer, a decision is rendered in favor of his adversary, and it has been stated in a Rescript that this does not prejudice either legacies or grants of freedom. This Rescript of the Divine Brothers, addressed to Domitius, is as follows: “Whenever the possessor is absent, and no one answers in his name, it has been decided that the judgment will not have the authority of res judicata, unless it is rendered only against him alone who failed to appear. Therefore rights of action are preserved for those who have received freedom, legacies, or trusts by the will, if they are entitled to any, just as if no judgment had been rendered; and therefore we permit them to proceed against the party who gained the case.”

Ulpianus, On the Edict, Book XLII. Where the peculium of a son under paternal control, who is a soldier, remains in the hands of his father, and the son dies intestate, his father will not become his heir; but he will, nevertheless, become the heir of those from whom the son has a right to inherit.

Ulpianus, On the Edict, Book XIV. Under the term “property” are also included legal action and various rights.

Ulpianus, On the Edict, Book XIV. No one can legally bring suit in the name of another. 1A temporary change does not injuriously affect the rights of a province.