Ulpianus, On the Edict, Book LII. If anyone should take security after he has been forbidden to do so, can the bond be recovered by the heir, so that he may be released? If, indeed, the heir knowingly gave security when it was not necessary he cannot be released. But what if he was not aware that he was excused from giving security? He can then recover. If, being ignorant of law, he thought that he could not be excused from giving security, can he recover the bond? In this instance, anyone may still very properly say that he can do so. But what if a stipulation had been entered into, shall we hold that the sureties can avail themselves of an exception, or not? The better opinion is that they can avail themselves of an exception, because security has been given in a case where none was required. 1The Prætor does not demand that the furnishing of security should be opposed by the heir, but he will be satisfied if the failure to give it was not caused by either the legatee or the beneficiary of the trust. Therefore, if there is no one who can be called upon to give bond (that is to say, some person who has been charged to the payment of a legacy, or the execution of a trust), the legatee and the beneficiary can be placed in absolute possession of the property by the terms of this Edict, because it is true that the person to whom security should be given is not to blame for it not being furnished. Security, however, should not be offered to the legatee, but it will be sufficient if he demanded it, and it was not given, or if there was no one of whom he could ask it. 2Where the release of a claim is bequeathed to a debtor, no bond should be required, because he himself has the legacy in his hands; since, if an action is brought against him, he can interpose an exception on the ground of fraud. 3The Divine Pius stated in a Rescript, directed to Æmilius of the Equestrian Order, that the Prætor should not permit a legatee, to whom his legacy has been paid, to ask security of the heir when it is established that the legacy is not due. 4Security must be furnished for the payment of a legacy before the estate has been entered upon, when it is still doubtful whether it will be accepted. Moreover, where it is certain that it will be rejected or relinquished, or where the necessary heirs will not accept it, recourse will be had in vain to this Edict, as it is clear that the legacy will not be payable, or the trust executed.

The Same, On the Edict, Book LII. Where the heir, of whom security is demanded, suggests a judicial investigation of the legality of the bequest, and says, “Institute proceedings immediately with reference to the trust, let us go into court at once,” it must be said that the bond is no longer in force, as the validity of the trust must be established before that of the security is determined. 1This judicial investigation can the more readily be solicited by the heir, if he alleges that a bond is demanded for the purpose of annoyance; for this is the ordinary rule in all cases where security is asked. The Divine Pius stated in a Rescript that the judge before whom a bond is demanded should ascertain whether this is done maliciously, or not. He should make this inquiry summarily. 2Where the agent of a legatee demands security, if, indeed, he has been specially directed to do so, he himself will not be required to give bond that his act will be ratified, but security must be furnished him. If, however, it should be doubtful whether he has been appointed agent, or not, a bond for the ratification of his act shall be exacted of him. 3Where security has once been given, the question arises whether it should be given a second time, when it is alleged that the sureties are poor. The better opinion is that security should not be given a second time; for the Divine Pius stated in a Rescript addressed to Pacuvia Liciniana that she herself must bear the loss caused by her acceptance of sureties who were insolvent. Nor is it necessary for the person of whom security may be demanded to be annoyed every moment.

Ulpianus, On the Edict, Book LII. A person to whom security is not given for the payment of a legacy or the execution of a trust, even if he is placed in possession, does not begin to acquire the ownership of the same; for it is not so much the actual possession of the property as the safe-keeping of it which is granted him. He has no right to drive the heir away, but he is ordered to take possession of the property with him, so that by the annoyance of perpetual custody he may compel the heir to furnish security. 1Where one person is placed in possession of property to avoid threatened injury to the same, and another is placed in possession for the purpose of preserving the legacies, he who has possession for the purpose of preserving the legacies can also give security against the damage which is apprehended, and, if he should do so, he need not relinquish possession, unless security is given to him to the amount for which he has bound himself in providing against threatened injury. 2Where several legatees desire to be placed in possession of property, they must all go and take possession, for he who obtains it for the purpose of preserving legacies holds possession solely for himself, and not for anyone else. The case, however, is different where creditors are placed in possession in order to preserve the property, for in this instance, the one who obtains possession does so not merely for himself but for all the other creditors as well. 3A legatee who has been given possession first is not preferred to one to whom it is given afterwards; for we observe no order of precedence among legatees, but protect all of them equally at the same time. 4After creditors have obtained possession for the purpose of preserving property, a legatee who has been placed in possession to secure the payment of his legacy will not have preference over the creditors. 5Where a person who has been placed in possession of property for the purpose of preserving his legacy comes into possession of the entire estate, that is to say, if the property in question still forms part of the estate, he will not acquire possession of property which does not belong to it, unless the said property has ceased to form part of the same through fraud, and his possession will not be perpetual, but will be dependent upon the result of the judicial inquiry. 6Moreover, all those things are understood to be included in the term “property,” whose ownership belongs to the heir. 7Where there are lands which constitute part of the estate merely because they are subject to certain claims, and where articles have been given in pledge to the testator, the legatee will also be placed in possession of them. 8The legatee and the beneficiary of the trust will also be given possession of the offspring of slaves, and the increase of flocks, as well as of all the crops. 9If, however, the deceased, in good faith, purchased property belonging to another, it has been settled that the legatee should be placed in possession of this also, for it forms part of the estate. 10Where property has been deposited with, or loaned to the deceased, the legatee cannot be placed in the possession of the same, for such property is not included in the estate. 11Where one of two heirs is ready to furnish security, and the other is not, the legatee can be placed in possession of the share of the estate belonging to the latter. Hence, the legatees who are placed in possession will also take precedence of the heir who gave security to the administration of the estate; therefore the heir should be induced to give security for the estire estate, in order to prevent his administration of the same from being interfered with. 12Where the substitute of a minor under the age of puberty is charged with the payment of legacies, and the minor dies, possession will be granted, not only of the property which belonged to the testator, but also of that which the minor himself acquired, for it likewise forms part of the estate. During the lifetime of the minor, however, possession cannot be granted, nor can security be required. 13If the person who is charged with the trust is not an heir, but a successor for some other reason, it must be said that the Edict will apply, and the bad faith of the trustee taken into consideration. 14Moreover, where the heir of the heir is the one who is guilty of fraud, he also should suffer for it. 15We should understand fraud in this instance to mean gross negligence, and not every kind of bad faith, but only such as is committed to the prejudice of legatees and beneficiaries of trusts. 16The Emperor Antoninus Augustus stated in a Rescript that, in certain cases, legatees and beneficiaries should be placed in possession of property belonging to the heir himself, and if, within six months from the time when the legatees first appeared in the court of a magistrate invested with jurisdiction, their claims were not satisfied, they could collect the income of said property until the will of the deceased had been complied with. This remedy also is available against those who are in default in the execution of trusts with which they have been charged. 17Although the term “satisfaction” has a usually broader signification, in this instance it refers to the payment of legacies. 18Hence, even where the heir has been excused from giving security by the testator, the Rescript will apply, because the heir may be in default of payment. 19Again, I think that the term of six months should be calculated continuously, and not with the sessions of the court. 20We do not consider that a failure to pay the legacies takes place where a ward has no guardian, and an insane person, or a minor, has no curator. For failure to act should not prejudice persons of this kind who cannot defend themselves. It is certain that if the estate should be without an heir for a certain time, this should be deducted from the term of six months above mentioned. 21It may be asked whether the crops which are due under the terms of the trust should take the place of interest, and, as we follow the example of pledges, whatever is collected by way of income should first be considered as interest, and anything in excess of this should be credited on the principal. And, indeed, if the legatee should collect more than he is entitled to, an equitable action, as in the case of an action on pledge, should be granted to compel him to refund the surplus. Anyone, however, can sell the pledges, and in this case the constitution only permits the legatee to collect the income in order to hasten the decision of the case. 22Where anyone is placed in possession of property in order to provide for the payment of legacies, he must keep the income and all the other effects, and permit the heir to cultivate the fields and harvest the crops; but the legatee must take charge of the latter to prevent them from being consumed by the heir. If the heir should refuse to gather the crops, the legatee should be permitted to do so, and to keep possession of them. But where the crops are of such a nature that it is expedient to sell them immediately, the legatee should be permitted also to sell them, and to retain the price. When anyone is placed in possession of other property belonging to the estate, it will be his duty to collect everything of this kind, and take care of it, wherever the deceased had his residence; and if there is no house there suitable for this purpose, he can hire one, or a warehouse in which the property which has been collected can safely be kept. I think also that the legatee should exercise such supervision over the property of the estate that the heir cannot be deprived of it, or it cannot be lost, or become deteriorated. 23Where anyone has been placed in possession of property under the terms of the constitution, care must be taken to employ no force against any other legatee who has the use and enjoyment of the same. 24The wishes of the deceased is understood to be complied with where this is done with reference to the income of the estate, or in any other way. 25Moreover, the said Constitution of the Divine Antoninus also has reference to those who are legally charged with a trust, even if they are not heirs, for the obligation is the same. 26Where a person is placed in possession of property in order to provide for the safety of legacies, and judicial proceedings are instituted against him on account of said property, he should not relinquish possession of the same, unless security is furnished him for the expense of litigation. 27Where anyone is placed in possession, and is not permitted to take it, he will be entitled to the interdict provided for this purpose, and must be placed in possession either by a court attendant, by an officer of the Prætor, or by a magistrate. 28A legatee can be placed in possession, not only where anyone is charged to transfer the very property which is bequeathed, but also where he is charged to transfer a portion of the same, or something else instead of it. 29Where a legacy is bequeathed absolutely to Titius, and he is charged under a condition to transfer it to Sempronius, Julianus says that the Prætor will not render an unjust decision if, before the legatee obtains the bequest, he refuses to give security for the execution of the conditional trust; and that he should then permit Sempronius himself to claim the legacy, in order that he may give security, and agree to pay ten aurei if the condition should not be fulfilled. If, however, Titius should receive the ten aurei from the heir, Julianus says that it will be only just to compel him to give bond or to pay the ten aurei, and for Sempronius to furnish security to Titius. This is our present rule, which is adopted by Marcellus. 30But what if the legacy is left under a condition, as well as the trust, and no security is furnished for the execution of the trust? It will be perfectly equitable for the beneficiary to take security from the heir for the payment of the legacy, if the legatee should not secure him; that is to say, in order that he himself may give bond to the legatee. Where, however, the legatee has already received security from the heir, it must be held that an action should be granted, on account of the security, to the beneficiary of the trust, rather than to the legatee; that is to say, in the event that the condition of the trust is fulfilled. The right to demand the legacy itself should be granted to the beneficiary of the trust, if it has not yet been paid, and the condition upon which it was dependent has been complied with, provided that the beneficiary was ready to furnish security to the legatee.

Ulpianus, On the Edict, Book LII. It is promised by this Section of the Edict that where a work is either rightfully or wrongfully undertaken, it can be prohibited by a notice; and the prohibition can be removed where the person who forbade the continuance of the work had no right to do so. 1Moreover, this Edict, and the remedy of the notice granted on account of a new structure, applies to any that may hereafter be undertaken but does not apply to such as already have been completed; that is to say it can prevent those which have not yet been begun. For where a structure which the person had no right to erect has been finished, the Edict relating to notice to stop the same has no application, and recourse for the purpose of obtaining restitution must be had to the interdict quod vi et clam; and when anything has been built in a sacred or religious place, or in a public river, or on the bank of the same, restitution can be obtained under this Edict, if it was done contrary to law. 2Notice under this Edict does not require previous application to the Prætor, for anyone can serve such a notice without appearing before him. 3We can also serve a notice of this kind in our own name, as well as in that of another. 4Such a notice can be served on any day. 5This notice operates also against persons who are absent; against such as are unwilling to accept it; and against those who are not aware that a new work has been undertaken. 6Moreover, in the service of a notice with reference to a new work, the adversary must be in possession. 7Where he upon whom the notice of a new work has been served, began to build it before permission was obtained, and he afterwards attempts to prove that he had a right to do so, the Prætor should refuse to grant him any action, and should allow an interdict against him, to compel him to restore the property fo its former condition. 8Again, anyone can serve such a notice, even though he may be ignorant of what kind of a work is to be constructed. 9Ad Dig. 39,1,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 466, Note 9.After notice to suspend operations, the parties are subject to the jurisdiction of the Prætor. 10Hence it is asked by Celsus, in the Twelfth Book of the Digest, whether an exception, based upon an agreement, should be granted, if you have made a compromise with your adversary, after notice has been served to prevent the erection of the building. And Celsus says that it should be granted, for there is no reason why any contract entered into by private individuals should take precedence of an order of the Prætor; for what else is the duty of the Prætor but to do this, and dispose of such controversies? Where the parties voluntarily settle their dispute, he should ratify their action. 11He is considered to undertake a new work, who either by building or by removing anything, changes the original form of the property. 12This Edict, however, does not refer to all kinds of building operations, but only to such as are attached to the soil and whose construction or demolition is considered to include some new work. Hence it has been held that where anyone gathers a harvest, cuts down a tree, or prunes a vineyard, although he does, work, it will not come within the terms of the Edict, because it only has reference to such labor as interferes with the soil. 13If anyone props up an old building, let us see whether we can serve notice upon him to desist. The better opinion is that he cannot do so; for he is not erecting a new structure, but is merely providing a remedy by supporting an old one. 14The notice served under this Edict applies to any new structures erected within or without the walls of towns, or in the country, whether the work is performed on private or on public lands. 15Now let us see for what reasons such a notice may be served, who can serve it, upon whom it may be served, in what places this may be done, and what is the effect of the notice. 16The notice is served either for the purpose of protecting our rights to avert threatened injury, or to maintain the public welfare. 17Moreover, we serve this notice for the reason that we have a right to prevent the work either in order to protect ourselves from impending danger through the act of someone who is about to erect a structure in a public or private place, or where something has been done contrary to the laws and the Edicts of the Emperors, promulgated with reference to the manner of constructing buildings, whether this be done in a sacred, religious, or a public place, or on the bank of a stream; and in cases of this kind interdicts are also granted. 18But if anyone constructs a building in the sea or on the shore of the same, although he does not build upon his own land, he renders it his by the Law of Nations. Therefore, if anyone desires to prohibit him from constructing it in such a place, he will have no right to do so, nor can he serve notice upon him not to erect a new structure, unless he is in a position to demand that security against threatened injury be furnished him. 19The person to whom the property belongs has the right to serve the notice to suspend any undertaking, for the purpose of preserving his rights, or to avert threatened injury. 20An usufructuary, however, cannot serve such a notice in his own name, but he can do so as the agent of the owner; or he can claim his usufruct from the person who constructs the new work, and this claim will obtain for him an amount equal to his interest in not having it constructed.

Ulpianus, On the Edict, Book LII. Where anything is constructed on land in a province a notice to suspend operations can be served. 1Where anything of this kind is done on land held in common, a notice can be served against a neighbor. It is clear that if one of us erects a new structure upon ground held in common, I cannot, as a joint-owner, notify the other party not to proceed with it; but I can forbid him by an action for partition of property held in common, or I can do so by applying to the Prætor. 2If a joint-owner with myself makes an addition to a house owned by us in common, and I have an adjoining house of my own, which will be injured by his doing so, can I serve notice upon him to stop the work? Labeo thinks that I cannot do so, because I can forbid him to build by other means, that is to say by applying to the Prætor, or by bringing an action for partition of property owned in common. This opinion is correct. 3If I have only a right to the surface of the land, and a new building is erected by a neighbor, can I serve notice upon him to desist? In this case, there is a difficulty; because I am, as it were, only a tenant. The Prætor, however, will grant me an action in rem, and therefore I would also be entitled to an action on the ground of a servitude; hence the right to serve the notice to suspend operations should be given me. 4Where a new work is begun in a public place, any citizen has the right to serve notice to suspend it.

Ulpianus, On the Edict, Book LII. The question was raised with reference to a ward. Julianus, in the Twelfth Book of the Digest, says that permission to serve notice to suspend the erection of a new work should not be granted to a ward, unless it interferes with his own private convenience; as, for instance, where it shuts off his light, or obstructs his view. Moreover, a notice served by a ward will not be valid unless this is done by the authority of his guardian. 1Notice to suspend operations can also be served upon a slave, but he himself cannot serve such a notice, nor, if served by him, will it have any effect. 2Again, it must be remembered that the service of a notice of this kind must be made on the property itself; that is to say, in the very place where the work is being done, whether anyone is already building, or has made preparations to build there. 3It is not necessary that notice be served upon the owner himself, as it will be sufficient for it to be served on the premises and upon anyone who happens to be present, and this can even be done upon the workmen, or artisans who are performing the labor. And, generally speaking, notice to suspend operations can be served upon all those who are present in the name of the master, or upon the workmen themselves. Nor does it make any difference who he is, or what may be the rank of the person present at the time, for if the notice is served upon a slave, upon a woman, or a boy or a girl, it will be valid; as it is sufficient that service be made of the notice upon the premises in such a way that the owner can be informed of it. 4If anyone should serve notice upon the owner of property in a public place, it is perfectly clear that such a notice will be of no force or effect, for it must be served on the land, and I should say almost in the building itself; and this has been decided in order that by means of a notice the work may immediately be suspended. If, however, the notice is served elsewhere, the result will be that the same inconvenience would result as if any structure had been erected through ignorance during the time it took to reach the place, where this was done contrary to the Edict of the Prætor. 5Where the property on which a new building is in course of construction belongs to several persons, and notice is served upon one of them, the service is properly made, and it is held that all the owners have been notified. If, however, one of them should continue to build after notice to stop has been served, those who did not continue will not be liable, for the act of another should not prejudice anyone who did nothing. 6If the new structure should injure property belonging to several owners, will a notice served by one of the joint-owners be sufficient, or must they all serve it? The better opinion is that a notice by one of them is not sufficient for all, but each of them must serve the notice individually, because it might happen that one of them had the right to serve the notice to prohibit the construction of the work, and that the others did not have such a right. 7Where anyone desires to serve notice upon the Prætor himself with reference to the erection of a new building, he should, in the meantime, show that he cannot serve the notice upon the other party; and if he should do so afterwards, whatever has been built after he notified the Prætor must be destroyed, just as if two notices had been served at different times. 8But if anyone should insert beams into my house, or build upon my land, it is only just that I should protect my rights by a notice to stop the erection of the building. 9Ad Dig. 39,1,5,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 209, Note 2.Sextus Pedius very properly remarks that there are three reasons which give rise to a notice to prevent the erection of a new structure, namely, a natural reason, a public reason, or a reason growing out of the imposition of a servitude. A natural reason exists where someone has inserted beams into my building, or erected a structure upon my land. A public reason exists where, by the service of notice to suspend a new work, we protect the execution of the laws, the Decrees of the Senate or the Imperial Constitutions. A reason growing out of the imposition of a servitude exists where anyone, after having diminished his own right, increases that of another; that is to say, after having imposed a servitude upon his own land, he performs some act against the right of him who was entitled to the servitude. 10Ad Dig. 39,1,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16; Bd. II, § 465, Note 18.Moreover, it must be remembered that when anyone wishes to erect a building upon our land, to insert beams into our houses, or to project a structure over our property, it is better that he should be prevented from doing so, either by the Prætor or by one’s own hand, that is to say, by casting a stone, than by serving notice to desist from the construction of a new work; for, by serving such a notice, we constitute the person upon whom it is served the possessor of the property. If, however, he should do something upon his own land which may injure us, then the service of a notice to suspend operations will be necessary. And if anyone should continue to build upon our premises, it will be perfectly just for us to make use of the interdict Quod vi aut clam, or Uti possidetis against him. 11Where anyone desires to repair or clean out any watercourses or sewers belonging to him, a notice to suspend operations cannot be served upon him; and this is reasonable, as it is to the interest of the public health and security, that sewers and streams should be cleaned out. 12Moreover, generally speaking, the Prætor also excepts other works, when delay in their construction is attended with danger. For, with reference to them, he thinks that a notice to suspend them should not be obeyed. For who can doubt that notice to suspend a new work should not be obeyed, rather than that the construction of some necessary building should be prevented? This Section of the Edict is applicable whenever delay is liable to cause injury. 13Hence, where anyone, in a case where danger may be caused by delay, serves notice to stop some new work, for instance, where repairs are being made to the channel of a sewer, or to the walls of the same; we hold that an inquiry should be made in court whether the work is of such a character that a notice to suspend operations should be disregarded. For if it should be apparent that any danger will result from delay in repairing a sewer, or a water-course, or anything of this kind, it must be said that it should not be apprehended that the notice will cause any injury. 14He who serves notice to stop a new work must swear that he does not do so for the purpose of annoyance. This oath is tendered by the authority of the Prætor; hence it is not required that he who exacts the oath should first be sworn. 15The person who serves the notice must show in what place the new structure to which the notice has reference is situated; in order that he who is notified may know where he can build, and where he must refrain from building. This designation must be made as often as notice has been served with reference to a part of the edifice. If, however, the notice refers to the entire building, it is not necessary to show this, but merely to mention the fact. 16Where the work complained of is being done in several places, will one notice be sufficient, or are several required? Julianus, in the Forty-ninth Book of the Digest, says that, because the notice should be served on the land itself, several notices as well as several withdrawals are necessary. 17If he who was notified to suspend operations gives security or promises to indemnify the other party, or if it was not his fault that he did not give security, or promise indemnity, in accordance with the judgment of a good citizen; it is just the same as if the notice had not been served. This remedy is a convenient one, for it prevents the annoyance of appearing before the Prætor, and of making application to have notice issued. 18Where the service of notice is made by an agent, and he does not give security that his principal will ratify his act, the notice will be without effect, even though the agent was regularly appointed. 19Where anyone, in the name of an absent person, asks for a withdrawal, whether this has reference to a private or a public right, he will be compelled to furnish security, for he takes the part of a defendant. This security, however, does not refer to ratification by the principal, but merely to the notice to suspend the construction of the new work. 20Again, if an agent should notify me to stop a new work, and accepts security from me, and I afterwards make use of an interdict against him to prevent him from employing force against me to prevent me from building, he will be obliged to give me security to execute the judgment, because he takes the part of a defendant.

Ulpianus, On the Edict, Book LII. If he should not give security, he can be barred from the construction of the new work, and any actions which he may try to bring in the name of the principal must be refused him. 1A guardian and a curator can serve notice to arrest the construction of a new building.