The Same, On the Edict, Book XXII. According to a Constitution of the Emperor Antoninus, all those who were living in the Roman world were made Roman citizens.

The Same, On the Edict, Book XXII. Julianus says: That if one of the parties makes a judge his heir to either the whole or a portion of his estate, recourse must be had to another judge; because it is unjust for anyone to be made the judge of his own cause.

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;

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.

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.

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.

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.

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.

Ulpianus, On the Edict, Book XXII. The Prætor says: “Where a party against whom suit is brought, after certain proposals have been offered, makes oath.” We must understand the words “The party against whom suit is brought” to mean the defendant himself. The other words “After certain proposals have been offered,” as not unnecessarily added; for if a defendant should take the oath without its being tendered to him by anyone, the Prætor will not recognize an oath of this description, as the party merely swears to himself; otherwise, it would be extremely easy for anyone who cares little for an oath to take it where no one tendered it to him, and thereby free himself from the burden of a suit. 1Where a party is sued in any kind of an action, if he makes oath it will be a benefit to him, whether the action is one in personam, in rem, or in factum, or where it is a penal action, or any other kind, or where the proceedings relate to an interdict. 2Where the oath is taken with reference to the civil condition of the person, the Prætor will sustain it; as, for instance, where I tendered you an oath and you swore that you were not under my control, the oath must be sustained. 3Wherefore, Marcellus states that an oath can be taken with reference to the question as to whether a certain woman is pregnant or not, and the oath must stand. Finally, he says that where the inquiry relates to possession, the oath must be sustained; for example, where a woman wishes to be placed in possession of property because she is pregnant, and when this is disputed by the other side, then she must either swear that she is pregnant, or the other party must swear that she is not, for if she herself makes oath, she can enter into possession without apprehension; and, on the other hand, if the oath is made against her, she cannot do so, even though she may be actually pregnant; and therefore Marcellus says that a woman who takes the oath will have the benefit of it, and will avoid legal proceedings on the ground of having taken possession in behalf of an unborn child, for the purpose of deception; nor can she be subject to force while she is in possession. But whether an oath will be an advantage so far as to prevent inquiry being made after a child is born as to whether it is the offspring of him who is said to be its father or not, is a question discussed by Marcellus, and he says that the truth ought to be ascertained, because the oath does not benefit or injure another; hence the oath of the mother will not benefit the child, nor will it cause any injury if the mother tenders it, and oath is made that she is not pregnant by a certain man. 4It is necessary for a party to swear in the terms in which the oath is tendered, but if I tender it for you, you may swear by God and you swear by your own head,

Ulpianus, On the Edict, Book XXII. An oath of this kind will be of no effect. If, however, I required you to swear by your own salvation and you do so, I must abide by it; for every kind of an oath which is at all lawful and by which any one wishes to be sworn in his own behalf is suitable, and if it is taken, the Prætor will sustain it. 1The Divine Pius stated in a Rescript that if an oath was taken in accordance with some peculiar superstition, it must stand. 2When the oath has been taken, nothing else must be asked but whether the party was sworn, and the question as to whether anything is due is not considered, as this is sufficiently established by the oath. 3Where, however, a party tenders an unlawful oath, that is to say, one relative to a religion the profession of which is publicly forbidden; let us see whether it should be considered as if no oath had been taken; and this, I think, is the better opinion. 4Where an oath is taken, and the party is not released from being sworn, it must be held that the matter has never been submitted to determination by oath, and hence if he should afterwards be willing to be sworn, the oath will be of no advantage to him; because it was not taken with reference to the matter for which it was tendered.

Ulpianus, On the Edict, Book XXII. The Prætor says: “With reference to a matter for which an oath has been tendered, I will not grant an action either against the party himself, or against him to whom the property belonged.” The term “matter” must be understood to be applicable whether the oath is taken with reference to the entire property in question or only a portion of the same; for the Prætor promises that he will not grant an action with reference to what was sworn to, either against the party who took the oath, or against those who succeed to him to whom the oath was tendered,

Ulpianus, On the Edict, Book XXI. For, after the oath is taken, the action is refused; and if there should be any controversy, that is to say, if it is disputed whether the oath was taken or not, there is ground for an exception. 1Where the oath has been taken or dispensed with, the defendant will be entitled to an exception both for himself and for others; and the plaintiff will acquire a right of action in which the only matter to be considered is whether he swore that something should be given him, or where he was prepared to swear and the oath was dispensed with. 2If judgment is rendered against a party after the oath has been taken, in a case where infamy is involved; the better opinion is that he becomes infamous. 3Where a party who is liable to me in a temporary action tenders me an oath in such a way that I must swear that he is obliged to pay, and I swear to this; he will not be released by lapse of time, for the reason that his liability is perpetuated after issue has been joined. 4Where anyone under twenty-five years of age tenders an oath, and states that advantage has been taken of him in doing so, he should file a replication in answer to an exception based upon the oath; as Pomponius says. I, however, am of the opinion that this replication should never be granted; but that, in most instances, the Prætor himself should investigate as to whether advantage was taken of the minor, and grant him complete restitution; for the mere fact that he is a minor does not establish the fact that he has been swindled. Moreover, this exception or inquiry ought not to extend beyond the time prescribed by law after the minor has reached his twenty-fifth year. 5Moreover, where a party tenders an oath to a debtor in fraud of his creditors, and a replication on the ground of fraud should be granted the creditors against an exception based upon the oath; and, moreover, if the party guilty of fraud tenders an oath to a creditor in order to have the latter swear that he should pay him ten aurei, and afterwards, when his property has been sold, he wishes to bring an action; either the action must be refused, or it may be opposed by an exception on the ground of defrauding creditors. 6Julianus says that the oath of a party who defends a case voluntarily or is appointed an attorney, if tendered by the adversary, will be a good defence and will provide the principal with an exception. Hence it must be said that the same rule applies where an agent is appointed to bring an action, and the defendant, having tendered an oath, swears that the amount should be paid to me; for this furnishes me with a right of action. This opinion is reasonable. 7Where the plaintiff has sworn, on the oath tendered by the party in possession, that the property is his, he will be entitled to an action; but this only applies to the party who tendered the oath and to these who have succeeded to his place; but if he should wish to make use of the privilege obtained by taking the oath in an action against another, his oath will be of no benefit to him;

Ulpianus, On the Edict, Book XXII. Where an oath is tendered to a party in possession, and he swears that the property does not belong to the plaintiff, then, so long as he holds possession, he can make use of an exception based upon the oath against the party who tendered it; but if he should lose possession, he will not be entitled to the action, not even if the party who tendered him the oath is in possession; for he did not swear that the property was his, but merely that it did not belong to the other party. 1Hence, if, while he is in possession, the plaintiff having tendered him the oath he swore that the property was his; we hold, in consequence, that even though he should lose possession, and the party who tendered him the oath should acquire it, an action in factum should be granted him. Again, it has been settled that any crops which may have been gathered from property which I have sworn to be mine must be restored to me, and that the offspring of female slaves and the young of cattle must be surrendered, after the oath is tendered. 2In like manner, if I should swear that the usufruct of any property is either mine or should be surrendered to me, an action will lie in my favor as long as I am entitled to the usufruct in the same; but in those cases in which the usufruct would be lost, I will have no right of action. Where, however, the party swears that he has an usufruct, or that he is entitled to one in property in which no usufruct can be created, because it would be consumed by use; my opinion is that the effect of the oath must be sustained, and, therefore, even though it should be held that he was properly sworn, I think that, on account of the oath, he can claim the usufruct if security is given. 3When a controversy exists between yourself and me with reference to an estate, and I swear that it belongs to me, I have a right to obtain whatever I would have been entitled to if judgment had been rendered in my favor in a suit for the estate; and you are required to deliver not only the property of which you had possession at the time, but also whatever you became possessed of afterwards; and the oath must be considered of as much importance as if my case had been proved, and therefore an equitable action will lie in my favor. If, however, I am in possession on account of a right to the estate, and you undertake to recover it from me, and I make oath against you; I shall be entitled to an exception based on said oath. It is clear that, if some other party institutes proceedings against me to recover the estate, there will be no doubt (as Julianus says), that the oath will be of no advantage to me.

Ulpianus, On the Edict, Book XXII. Where there are two patrons, and, one of them having tendered an oath, a freedman swears that he is not his freedman, will the other be entitled to possession of the entire property which patrons have a right to, or only to half of the same? It is said, by way of answer, that if the party to whom the oath was sworn was a patron, the other has a right to the possession of his own share of the property, and it will be of no benefit to him that the freedman made oath against the other; but the patron will have a great deal of consideration and authority if he applies to a judge in an attempt to prove that he is the sole patron, because the freedman swore that the other was not his patron. 1Ad Dig. 12,2,13,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 179, Note 7.Julianus says that anyone who swears that a certain tract of land is his should, after sufficient time has elapsed to give him a title by prescription, also have a right to a prætorian action. 2Julianus also says that where a party swears that he did not commit theft, he is held to have made oath with reference to everything relating to the matter; and therefore he will not be liable to an action of theft, or to a personal action for recovery, for the reason that only a thief is liable to the latter action. Therefore, can anyone who swears that he did not commit theft, make use of an exception on this account, if a personal action for recovery is brought against him? Where the party who brings the action alleges that he is the heir of the thief, he cannot be refused a hearing, and he should be granted a special action for recovery against the heir of the thief, and the judge must not permit him to proceed if he attempts to prove that the party is a thief. 3Where anyone swears that I sold him something for a hundred aurei, he can bring an action based on the purchase for the performance of whatever is connected with the contract; that is to say, for the delivery of the property and for security against recovery by a genuine owner. Should it not, however, be considered whether he can be sued on the contract of sale for the recovery of the purchase-money? If, indeed, oath was taken with reference to this, that is to say, that the money was paid, no right of action will exist for the recovery of the latter; but if this was not sworn to, the party will, in consequence, be liable for the purchase-money. 4We say that the same rule applies where anyone swears that he entered into a partnership; for he can still be sued in a partnership action. 5Marcellus says that where anyone swears that he gave his land as security for ten aurei, he cannot bring suit on the pledge without paying ten aurei, but he adds that perhaps he can be sued for ten aurei on account of his oath; and this he entirely approves of. Quintus Saturninus concurs in this opinion, and he makes use of the case where a party swore that his former wife gave him certain property as a dowry; for he says that, in this instance, an equitable action for the dowry should be granted her, and I deny that this opinion exceeds the demands of justice. 6Where, in a pecuniary transaction, a party swears by the Genius of the Emperor that he is not obliged to pay, or that his adversary is entitled to payment, and perjures himself; or where he swears that he will pay within a certain time and does not do so; our Emperor and his father stated in a Rescript that he must be sent away to be whipped with rods, and the following notice attached to him, namely: “Do not swear rashly!”

Ulpianus, On the Edict, Book XXII. Papinianus discusses the following point. A person having been appointed heir to half of an estate was asked to deliver it to another, and, alleging that he considered it insolvent, was compelled to accept it. The beneficiary of the trust was not aware that a part of the estate had accrued to the appointed heir after it had been transferred, and the question arose whether another action would be required. Papinianus says that the beneficiary would be secure. He also says that, in a case of this kind, it should be determined whether a new transfer will be necessary after the increase of the above-mentioned share.

Ulpianus, On the Edict, Book XXII. When, however, it is not apparent what the thing stipulated for is, and its nature or amount is undetermined, it must be said that the stipulation is uncertain. 1Therefore, when anyone stipulates for a tract of land without any specific designation, or for a slave in general terms, without mentioning his name, or for wine or wheat without stating its kind, he has included something uncertain in the obligation. 2This is so far true that if anyone stipulates as follows: “Do you promise to give me a hundred measures of good African wheat, and a hundred jars of good Companian wine?” he will be considered to have stipulated for articles which are uncertain, because something better than something good can be found, on which account the appellation “good” does not specify any certain article, as anything which is better than good is also itself good. But when anyone stipulates for “the best,” he is understood to stipulate for an article whose excellence occupies the first rank, the result of which is that this designation refers to something which is certain. 3If anyone stipulates for the usufruct of a certain tract of land, he is understood to have inserted something vague into his obligation. This is the present practice. 4Where a person stipulates that any child which shall be born to the female slave, Arethusa, or any crops grown upon the Tusculan Estate shall be given to him, it is doubtful whether he shall be considered to have stipulated for some object which is certain. It is, however, from the nature of the case, perfectly clear that this stipulation is for an uncertain object. 5But where anyone stipulates for the wine, the oil, or the wheat which is in a certain warehouse, he is understood to stipulate for something which is certain. 6When, however, someone stipulates with Titius as follows: “Do you promise to pay me what Seius owes me?” and also he who stipulates as follows, “Do you promise to pay me what you owe me, under your will?” he inserts something which is uncertain into his obligation, even if Seius owes a certain sum, or a certain sum is due him under the will, although these instances can hardly be distinguished from those which we have mentioned with reference to the wine, oil, or wheat stored in the warehouse. On the other hand, the sureties are considered to have promised something certain, provided he for whom they bound themselves owes something that is certain; although they may also be asked, “Do you consider yourselves liable for this?” 7Any person who stipulates for something to be done, or not to be done, is considered to stipulate for what is uncertain: for something to be done, as, for instance, “the excavation of a ditch, the construction of a house, the delivery of free possession;” for something not to be done, for example, “that nothing shall be done by you to prevent me from walking and driving over your land, or that you will take no steps to prevent me from having the slave Eros.” 8Where anyone stipulates for one thing or the other, for instance, for ten aurei or the slave Stichus, it is not unreasonable to ask whether he has included something which was certain or uncertain in his obligation. For these objects are specifically designated, and uncertainty only exists as to which of them should be delivered. Still he who has reserved the choice for himself, by adding the following words, “Whichever I may wish,” may be considered to have stipulated for something which is certain, as he can maintain that he has the right to give only the slave, or the ten aurei. He, however, who does not reserve the choice for himself, stipulates for something which is uncertain. 9Ad Dig. 45,1,75,9ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.He who stipulates for the principal and any interest whatever is considered to have stipulated for something which is both certain and uncertain; and there are as many stipulations as there are things. 10The following stipulation, “Do you promise to transfer the Tusculan Estate?” shows that the object is certain, and contains the provision that the entire ownership of the property shall be conveyed to the stipulator in some way or other.

Ulpianus, On the Edict, Book XXII. Where there are several sureties, and one of them has been accepted absolutely, and another from a certain time, or under some condition, the one who was accepted absolutely is entitled to relief, as long as the condition can be fulfilled; that is, in such a way that, in the meantime, he can only be sued for an individual share. If, however, he who was accepted under a condition should not be solvent at the time when it is fulfilled, Pomponius says that the case must be restored to the previous condition of absolute suretyship. 1Moreover, if one surety appears for another, or if there are several, the same rule which was established by the Divine Hadrian must be observed with reference to them. 2Again, if there is any doubt whether the principal surety is solvent or not, the means of the following surety must be added to his own. 3Pomponius says that relief should be granted to the heirs of a surety, just as it would be granted to the surety himself. 4Ad Dig. 46,1,27,4ROHGE, Bd. 4 (1872), S. 325: Rechtsverhältniß mehrerer Bürgen dem Gläubiger gegenüber. Regreß eines Mitbürgen an den andern zur Hälfte, ungeachtet letzterer nur zur letzten Stelle hat haften wollen. Beneficium cedendarum actionum, divisionis, excussionis.If there is a surety who is at once the principal debtor, and a surety of the surety, the original surety cannot ask that the obligation be divided between himself and the one who has become responsible for him, for the original surety occupies the position of a debtor, and a debtor cannot request that the obligation be divided between him and his surety. Hence, if one of two sureties gives a surety, the obligation is not divided with reference to him for whom he became responsible; but the better opinion is, that it is divided so far as the surety himself is concerned.