THE DIGEST OR PANDECTS. BOOK XXII.

TITLE I. CONCERNING INTERESTS, PROFITS, ADDITIONS, AND ALL ACCESSORIES AND DEFAULT.

1. Papinianus, Questions, Book III.

Where a judgment is rendered in good faith, the rate of interest is determined by the decision of the court, according to the custom of the place where the contract was made, provided the amount does not exceed that fixed by law.¹

¹ At Common Law, interest could not be collected, hence it is now, necessarily, entirely regulated by statute. The rule set forth in the text generally prevails in England and the United States, but the provision against an excessive rate is not always observed. Unless the place of payment is specified, which is usually the case, both principal and interest are payable anywhere. Where the place is designated and the rate is not, only the interest authorized by the law of that State can be exacted, except where judgment is taken by default. (Vide Byles on Bills, page 386. Parsons on Contracts, II, II.) Authorities, however, do not agree upon some of these points, and many conflicting decisions exist. The better opinion probably is that the lex loci (where the contract was executed), governs, even though the rate be higher than that of the place of payment. Some jurists hold that the law of either place is applicable. Where no definite conclusion can be arrived at, the intention of the parties should, if possible, be ascertained. (Kent, Commentaries on American Law, V, XXXIX.) — ED.

(1) If a partner should have judgment rendered against him on account of his having misappropriated the funds of the partnership, and converted them to his own use, he must, by all means, pay interest on the same, even if he was not in default.

(2) However, a judge who is to preside in a bona fide action cannot properly order security to be given by the defendant that, if he loses the case, he will pay interest until the judgment is satisfied, since it is in the power of the plaintiff to cause execution to be issued. Paulus states in a note that it is not part of the duty of the judge to concern himself with what takes place after a decision has been rendered.

(3) Papinianus says a broader interpretation should be given with reference to restitution made by a guardian in favor of his ward. For no one now doubts that when a guardian renders his account he must pay interest up to the time that he makes restitution, whether the judge receives it up to the day that the decision was rendered, or whether this is done out of court. It is clear that where the ward declines to institute proceedings in an action on guardianship, and the guardian voluntarily enters into an agreement with him, tenders him the money, and deposits it in a sealed bag, he will not be liable for interest from that time.

2. The Same, Questions, Book VI.

It is generally settled that although a personal action may be brought after issue has been joined, liability attaches to all the accessories to the property. The reason for this opinion is, that the property ought to be delivered in the same condition in which it was when suit was brought for its recovery, and therefore, that all crops that have been obtained, and any offspring born of slaves must be surrendered.

3. The Same, Questions, Book XX.

In the case of a demand made upon a surety where an heir was in default after a judicial decision had been rendered, the Emperor Marcus Antoninus ordered that where the time established by law in favor of parties who had lost their cases had elapsed, the surety could recover everything which had been acquired by his principal up to the time of the judgment. This decree must be understood to apply where the party had not been in default before the decision of the judge, although it cannot readily happen that recourse may be had to the court where default has not previously taken place; for instance, where the principle of the Lex Falcidia becomes applicable. If, however, the heir is in default before application is made to the judge, he being liable for the delivery of the profits from that time; for which reason, as he has already lost the case, will he be released from liability for the profits after the lapse of the time fixed by law, since that period is granted him for the purpose of satisfying the judgment, and not for obtaining any advantage for himself?

(1) In proceedings of this kind which are not subject to arbitration, and are not bona fide actions, after issue has been joined, everything connected with the property for which suit is brought must be delivered to the plaintiff, up to the time of the judgment. It is certain that the party will be free from liability for the profits after a decision has been rendered.

(2) It sometimes happens that although the profits of an estate or the interest on money is not expressly bequeathed, it is, nevertheless due; as, for example, where anyone requests that any of his property should be left after his death, it shall be delivered to Titius; for as diminutions made in good faith are not included in this trust, if proportionate diminutions of other property should have taken place, any remaining profits must be given up in accordance with the will of the testator.

(3) Pollidius, having been appointed heir to one of his female relatives, was asked by her to deliver to the daughter of the woman, when she had reached a certain age, any property belonging to her estate which might come into his hands; and the mother stated in her will that she had decided upon this step to prevent the property from being placed under the control of guardians, and that she preferred that a near relative should have charge of it. She directed the said Pollidius to retain a certain tract of land for himself, and I stated to the Prætorian Prefect that all the profits which had been acquired in good faith from the property of the deceased by Pollidius should be delivered, not only because the mother had left to him the tract of land, but also for the reason that she had preferred this method of creating a trust to the less reliable one of guardianship.

(4) Where manufactured gold or silver is left in trust, and default takes place, a discussion usually arises as to whether an estimate of interest should be made. It is evident that if the testator left the metal of which the articles were composed with the intention that it should be sold, and the trust discharged by means of the money obtained, or that maintenance should be furnished; it must be held that any fraudulent conduct of the heir should not go unpunished. If, however, the testator left the vases to be used by his heir, it would be improper for interest to be demanded, and therefore it can not be exacted.

4. The Same, Questions, Book XXVII.

If you make a stipulation, "For property to be given to you, and complete possession of the same to be delivered," reason suggests that you should afterwards obtain the profits of said property which have been collected by having recourse to a general action on stipulation, on account of the last words of the clause.

It should be considered whether the same rule will apply to the offspring of a female slave in a case of this kind; for, with reference to the first words of the clause, whether they relate to the fact of the property being promised, or to the effect of the delivery by the transfer of ownership, offspring is not included. But if the purchaser, with the intention of renewing the obligation, stipulated with the vendor in this way, the fact of the delivery was understood to be agreed upon, for the reason that it is not probable that the vendor promised more than he would be compelled to furnish in an action on purchase. Still, on account of the words, "And complete possession to be delivered," it can be held that the accounting for the offspring becomes operative on account of the stipulation being general in its character; for after the female slave has been delivered, the party to the stipulation would be entitled to include any child subsequently born on his premises.

(1) Where a child is born to a female slave after the sale has been contracted, but before the stipulation has been entered into, or any property is acquired by the vendor through the agency of the slave, he can recover it by means of an action on purchase; but he cannot do so by means of an action based on the stipulation, for whatever is not transferred to a new obligation can be recovered under the former right.

5. The Same, Questions, Book XXVIII.

It is proper to generally state that, in a bona fide action, no guarantee which is contrary to good morals will be accepted.

6. The Same, Questions, Book XXIX.

Where a controversy arose with an heir, which had reference to a transaction involving the property of a father or master, and the question of interest was discussed, the Emperor Antoninus decided that interest should be paid, for the reason that the master himself or the father had paid it for a long time.

(1) Our Emperor Severus also ordered that the sum of ten thousand sesterces should be paid out of the Treasury by way of dowry, to the daughter of Flavius Athenagoras, whose property had been confiscated, because she alleged that her father had paid her interest on her dowry.

7. The Same, Opinions, Book II.

A debtor, who owed a sum of money bearing interest, tendered the amount to his creditor, and when the latter refused to accept it, he placed it in a bag, and sealed and deposited it. Reason demands that from this day there should be no interest due. If, however, suit should afterwards be brought to compel the debtor to pay, and he should fail to do so, the money will not be idle from that time.

8. The Same, Opinions, Book VII.

Where horses have been left in trust, after default, the first foal must be furnished as profit, but a second one as accessory, just as in the case of the offspring of a female slave.

9. The Same, Opinions, Book XL

Where money was lent at interest, and double the amount was contracted for if it should not be paid within a certain time; I gave the opinion that the debtor is not liable for anything more than the legal rate of interest; hence the stipulation will be operative in proportion to the time which has elapsed after a deduction has been made of the surplus interest.

(1) The stipulation for interest becomes operative even though the debtor may not be sued; nor is a stipulation for legal interest held to be void where it is made under the condition that it will be due if interest at a lower rate should not be paid at the appointed time, for it is not a penalty, but a higher rate of interest that is promised for a lawful reason. Where, however, there was no one to whom the money could be paid after the death of the creditor, it is established that the debtor is not in default during that time. Therefore, if a higher rate of interest is demanded, and was agreed upon in the first place, an exception on the ground of bad faith can properly be interposed.

10. Paulus, Questions, Book II.

The possessor should surrender a child born to a female slave after issue has been joined, but he is not obliged to give it up if it was born before proceedings were instituted for the recovery of the mother, unless the plaintiff expressly brought the suit for said child.

11. The Same, Questions, Book XXV.

Gaius Seius, who was in the habit of transacting public business, lent money belonging to the Government at the ordinary rate of interest, but the custom existed to exact a higher rate where the interest was not paid within a certain time. Some of the debtors were in default in paying their interest, others paid more than they owed, and the result was that everything due by way of interest was made up, even that of those who had failed to pay anything.

The question arose whether the surplus interest which was collected from some of the debtors, by way of penalty, according to the prevalent custom, should profit Seius himself, or should enure to the benefit of the Government? I answered that if Gaius Seius stipulated for interest from the debtors, that alone must be paid to the Government which, according to the rule, it was customary to collect from them, even though all the claims were good.

(1) What if a public slave should have obtained an obligation bearing interest for the benefit of the Government? It is just that, although by law this interest should be due to the Government, still, on account of certain claims which are bad, a set-off of the surplus interest should be made, if the Government was not prepared to seize the property of all the debtors. Marcellus states almost the same opinion with reference to guardians.

12. The Same, Opinions, Book XII.

Seia borrowed money from Septitius, and it was agreed with reference to the interest: "That unless the above-mentioned interest was paid at the different times specified, or within three months, Seia would then be liable for a higher rate, and afterwards, at each payment, if the interest was not forthcoming in accordance with the prescribed condition, the said condition should be observed until the entire sum due was paid." I ask whether the following words, "And afterwards, at each payment, if the interest is not forthcoming, in accordance with the prescribed condition, the said condition shall be observed," mean that even though the first stipulation may become operative, still, the debtor cannot be sued for a larger amount of interest than was due at the time appointed for the first payment, when she was in default. Paulus answered that the stipulation contains several conditions, and that it is subject to the payment of a higher rate of interest; that is to say, that the condition should be considered with reference to each payment of a lower rate of interest which should have been, but was not made at the proper time, and therefore that the penalty for subsequent payment could be avoided.

13. Scævola, Opinions, Book I.

Where a debtor promised to pay interest at six per cent, and for many years paid interest at a lower rate, and the heir of the creditor brought suit for six per cent, although the debtor had done nothing to avoid payment at the lower rate, I ask whether an exception on the ground of bad faith, or one based on the contract can be interposed? I answered that, if the debtor had not been in default in paying the lower rate of interest, according to his custom, for so long a time, an exception could be interposed in accordance with the facts stated.

(1) The question arose whether an agent should pay interest on idle money, if his principal was not in a habit of lending money at interest, where an action has been brought on the ground of voluntary agency, or on that of mandate? The answer was that, if he had held the money on deposit and had done this in accordance with the custom of the mandator, he would not be obliged to pay anything by way of interest.

14. Paulus, Opinions, Book XIV.

Paulus gave it as his opinion that where a party is in default in discharging a trust, the offspring of female slaves must be given up.

(1) An heir was requested to surrender the estate to someone without the income from the same after his death. The question arose whether the offspring of female slaves, even if born during the lifetime of the heir, should be given up, on account of the words of the will by which the testator intended to indicate that the income alone of the estate should be reserved. Paulus answered that any children born to female slaves before the trust became operative, were not included therein. Neratius also says in the First Book that where an heir was requested to deliver a female slave he is not required to deliver her offspring, unless the child was born while he was in default in discharging the trust. Nor do I think that it makes any difference whether the female slave was the special object of the trust, or whether she was merely a part of the estate left in trust.

15. The Same, Opinions, Book XVI.

Paulus holds that it is not necessary to pay interest on any profits acquired after issue has been joined, and which the judge, in the discharge of his duty, directs to be turned over, nor on those which have been collected before that time, and which are stated to have been fraudulently obtained by the possessor.

16. The Same, Decrees, Book I.

Interest is not exacted on money given to the Government by way of liberality.

(1) When interest on the price of a tract of land was demanded of a party who had purchased it from the Treasury, and the purchaser denied that possession had been delivered to him; the Emperor ruled that it was unjust for interest to be exacted of one who had not gathered the crops.

17. The Same, On Interest.

Where a man bound himself to pay interest at the rate of five per cent per annum, and if he failed to do so for any one year, he would then pay six per cent on the entire sum of money from the day on which he borrowed it, and after paying the interest for some years the stipulation finally became operative; the Divine Marcus stated in a Rescript addressed to Fortunatus: "Go to the Governor of the province who will reduce to the measure of its just requirements the stipulation whose injustice you complain of."

This Constitution far exceeds the proper limit. What course should then be pursued? The matter must be adjusted so that, in the future, the interest will only increase from the day of default.

(1) The Divine Pius stated in a Rescript: "You are claiming accrued interest due with very little justice, as the interval of a long time indicates that you have neglected to collect it, for the reason that you intended, by not demanding it from your debtor, to render yourself more agreeable to him."

(2) In the case of an implied trust, the Divine Pius stated in a Rescript that the heir should be deprived of all profits, and that they should be turned over to the debtor; and therefore that the heir should be deprived of the benefit of the interest.

(3) Where a trust cannot be executed for the benefit of a ward because he has no guardian, the Divine Pius stated in a Rescript that the heir is not considered to be in default. Therefore, nothing is due to him who has been absent on public business, or has been prevented by any other just cause from bringing an action for restitution. For how can a party be to blame who cannot pay, even if he wishes to do so?

The same principle does not apply in this case as in that where relief is given to minors who have failed to obtain an advantage, for interest is not imposed on account of the gain to the plaintiff, but because of the delay of those who should make payment.

(4) Where a party makes a contract with reference to a lease, unless it is agreed that interest shall be due on rent which is not promptly paid, the lessee will not be obliged to pay interest except in case of default.

(5) The Treasury does not pay interest on account of any contract entered into by it, but collects it; as is customary in the case of the keepers of public privies who are slow in paying their rent; and also in the case of those from whom taxes are due. But where the Treasury takes the place of a private individual, it is the custom for it also to pay interest.

06) Where debtors pay interest under six per cent, and they then become debtors to the Treasury, after their obligations have been transferred to the Treasury, they will be compelled to pay six per cent.

(7) It is very well known that those who are sued on account of their mismanagement of public funds are liable to the payment of interest. The same rule is observed where persons have charge of public works, if money remains in their hands; but with reference to what they have paid to contractors, even though they paid it negligently, the interest will be remitted to them. This is the case, however, where no fraud exists, otherwise interest will also be due.

(8) Where no definite time has been specified by persons who have bequeathed statues or paintings to be erected or hung in some public place, the time shall be fixed by the Governor; and if the heirs do not comply, they must pay to the Government interest at the rate of one-third of one per cent a month.

18. The Same, Opinions, Book III.

If it was agreed in the beginning that, in case of the eviction of certain lands, the vendor shall refund the price, interest must also be paid after eviction, even though the purchaser may have paid to his adversary all the profits collected after the action for the ownership of the property was begun; as any inconvenience sustained during the intermediate time must be borne by the purchaser.

(1) Where the vendor dies after possession has been delivered, and it is uncertain who his successor will be, the interest on the price must be paid if it was not placed on deposit.

19. Gaius, On the Law of the Twelve Tables, Book VI.

Let us see whether judgment will also be rendered against the possessor in every case where suit is brought for the profits. For what if he should bring an action for silver, clothing, or anything else of this kind, or for the usufruct, or for the mere ownership of the property where the usufruct belongs to another? For no profit, to which this term can rightly be applied, can be understood to be derived from the mere ownership; nor, on the other hand can the usufruct properly be considered as profit. But what if an action is brought to recover the mere property? The profits will be included in the claim from the day that the usufructuary lost his usufruct. Moreover, if suit is brought for the usufruct, Proculus says that the defendant will have judgment rendered against him for all the profits which have been collected. Again, Gallus Ælius holds that if suit is brought for clothing, or a cup, whatever could be collected by way of rent, if the articles were leased, should be classed as profit.

(1) Where suit is brought to recover a right of way, it will be difficult for any profits resulting therefrom to be estimated, unless some advantage which the plaintiff could have enjoyed from the servitude should be classed as profits, if he was not prevented from doing so at the time that he brought the action; and this should be admitted as correct.

20. Paulus, On Sabinus, Book XII.

It is settled that, where illegal interest is united with the principal, the said interest will not be due, but this does not affect the principal.

21. Ulpianus, On the Edict, Book XXXIV.

It must be remembered that not everything which is done for a good reason in order to postpone payment should be considered as default. For what if the debtor desires his friends to be present, or his sureties to be summoned at the time that the debt is paid, or intends to offer some exception? It is not held that he is guilty of default;

22. Paulus, On the Edict, Book XXXVII.

Provided this is not done deceitfully for the purpose of committing fraud.

23. Ulpianus, On the Edict, Book XXXIV.

Where a debtor is suddenly compelled to be absent on public business, and cannot entrust his defence to anyone, he is not held to be in default; and this is the case where he is in the power of the enemy.

. (1) Sometimes it is customary for a party to be considered to be in default where there is no one against whom suit can be brought.

24. Paulus, On the Edict, Book XXXVII.

Where anyone delays in making payment, but is ready to join issue in the suit, he is not held to be in default, at least if he has just cause for applying to the court.

(1) Where the principal debtor is in default, the surety is also liable.

(2) A debtor is in default to his creditor where he does not make payment either to the creditor himself or to someone whom he has directed to receive the money, or to him who is in the habit of transacting his business. In this instance it is not held that he acquires, anything through a free person, because these parties are only discharging their duties; just as where anyone arrests a thief in the act of stealing from me, he is transacting my business, and acquires for me a right of action for manifest theft. Again, where an agent makes a demand for a slave upon a promisor, he renders the stipulation perpetual.

25. Julianus, Digest, Book VII.

A party who is aware that a tract of land is jointly owned by himself and another, and who gathers the crops from the same without the knowledge or consent of his fellow-owner, does not acquire a right to any greater portion of them than his interest in the land entitles him to.

Nor does it make any difference whether he or his fellow-owner, or both of them, sow the seed, for the ownership of every kind of crop is acquired, not through the right to the seed, but through that to the soil; and just as where a party who knowingly has possession of a tract of land belonging to another, cannot acquire the ownership of any part of the crop, no matter in what way the land has been sown; so also, he who has possession of land belonging to himself and another, will acquire no right to the crop on that portion of the land which belongs to his fellow-owner.

(1) I sowed wheat on land belonging to another which Titius had bought in good faith; will Titius, the bona fide purchaser, have a right to the crop after it has been harvested? I answered that the profits obtained from a tract of land should be understood to closely resemble those which slaves acquire by their labor; for in gathering crops more consideration is paid to what produces them than to the seed from which they are derived, and therefore no one can ever doubt that if I should sow your wheat on my own ground, the crop and whatever may be collected from the harvest will belong to me.

Again, a possessor in good faith has the same right to harvest the crop which is granted to the actual owner of the land. Besides, since crops of every kind, no matter by whom they have been sowed, belong to the usufructuary, much more does this apply to bona fide possessors who have a still better right to the crops, since they do not belong to the usufructuary until they have been gathered by him, but they belong to the bona fide possessor, without reference to how they may have been separated from the soil; just as in the case of a party who holds land on the condition of paying a tax, the crops become his as soon as they are separated from the soil.

(2) A bona fide purchaser sowed land of which he was in possession, and, before he harvested the crop, ascertained that the land belonged to someone else. The question arises, will he be entitled to the crop after it is harvested? I answered that a bona fide purchaser should be understood to have a right to harvest the crop, provided the land has not been evicted, for whatever a slave belonging to another, and whom I purchased in good faith, acquires for me by means of my property or by his own labor, is mine, so long as he is not evicted.

26. The Same, On Minicius, Book VI.

Julianus denies that game constitutes the profit of land, unless the profit of the land consists of game.

27. Africanus, Questions, Book VIII.

Where a debtor is in default to the head of a household, no inquiry is made as to whether he is in default to his heir; because the right passes to the next heir by inheritance, and is therefore also transmitted to all others in succession.

28. Gaius, Daily Occurrences, Book II.

The yield of flocks, such as milk, hair, and wool, is also considered profit. Therefore lambs, kids, and calves, at birth, immediately become the absolute property of a bona fide possessor, or an usufructuary.

(1) The offspring of a female slave is not, however, considered to be profit, and therefore belongs to the owner of the property. For it would seem absurd for a man to be classed under the term "profit," when Nature has prepared the fruits of everything for the benefit of the human race.

29. Marcianus, Institutes, Book XIV.

It is settled that where anyone has stipulated for interest above the legal rate, or for compound interest, what is unlawfully added is not held to be added at all, and legal interest can be collected.

30. Paulus, Rules.

The interest on money lent by municipalities will be due to them, even under a contract without consideration.

31. Ulpianus, Opinions, Book I.

Where the following has been added to a stipulation, "and interest, if any is due," it will be void if the rate of interest is not mentioned.

32. Marcianus, Rules, Book IV.

Default is understood to apply, not to the property, but to the person; that is to say, where the party, after having been notified at the proper place, does not make payment; and this should be investigated by the court, for, as Pomponius says in the Twelfth Book of Epistles, the definition of this term is difficult.

The Divine Pius stated in a Rescript addressed to Tullius Balbus, that the meaning of the word "default" cannot be determined by reference to any Constitution, nor by inquiry of legal authorities, since it is rather a question of fact than of law.

(1) Proof of default is not sufficient where notice is served upon a slave of the absent debtor by the creditor, or the agent of the latter; since it is held that the master himself must be notified. But, if subsequently, when the creditor has the power to do so, he should neglect to prosecute the action instituted for the recovery of the debt, the debtor will not be understood to be in default from that time forward.

(2) In bona fide contracts, interest becomes due through default.

(3) But what if a son under paternal control and his father, to whom the liability of the former has passed, owe a debt which has been contracted by order of the father; or if the money has been expended for his benefit; or if it has become a part of the peculium of the son; which one of the parties must be considered to be in default? If only the father is sued on account of being in default, he cannot be held liable; still, an action will be granted against the son for the benefit of the creditor, to compel him to pay what the creditor has failed to collect from the father. Where, however, the son is in default, the creditor then can sue him for the entire sum, or he can sue his father only for the amount of the peculium.

(4) But where two debtors have bound themselves jointly, the default of one does not prejudice the rights of the other.

(5) Moreover, if a surety alone is in default, he will not be liable; just as if he had killed his slave Stichus, whom he had promised to deliver, but a prætorian action will be granted against him.

33. Ulpianus, On the Duties of the Curator of the Government.

Where the money of the Government has been well placed, the debtor should not be uneasy on account of the principal, and especially is this the case where the money bears interest; or if it does not do so, the Governor of the province should provide for the security of the Government, only he must not show himself to be a harsh and insulting collector, but he must act with moderation, and be kind and efficient, and humane and firm; for there is a great deal of difference between disdainful insolence and diligence which is not prompted by ambition.

(1) Again, he should take care that the public money is not lent without good pledges or security.

34. The Same, On the Edict, Book XV.

Interest takes the place of produce, and therefore should not be separated from it; hence in legacies and trusts, in actions on guardianship, and in all other bona fide actions, this rule is observed. Wherefore we say that the same principle applies to all other accessions.

35. Paulus, On the Edict, Book LVII.

Interest runs after issue has been joined in a case.

36. Ulpianus, On the Edict, Book LXI.

The rents of urban estates are considered to be profits.

37. The Same, On the Edict, Book X.

Interest is included in the counter-action based on the ground of voluntary agency, where I borrow money in order to pay your creditor, because he was either to be placed in possession of your property, or about to sell your pledges. But what if, having the money at home, I paid the debt for one of the above-mentioned reasons? I think that it is true that interest should be paid where I have freed you from such a great inconvenience, but only such as is customary in that part of the country should be considered due; that is, such as has been established in the case of bona fide actions.

But if I should pay money after borrowing it, the interest which I myself have paid can be collected; provided that, by doing so, I have been of greater benefit to you than the value of this interest.

38. Paulus, On Plautius, Book VI.

Let us consider, in a general way, where the produce of property is included in a personal action.

(1) And, 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.

(2) Moreover, 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.

(3) The 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.

(4) 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.

(5) And, 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.

(6) Moreover, 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.

(7) If 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.

(8) The profits of property must also be restored in the case of a purchaser.

(9) In a partnership, however, the profits must be divided among the partners.

(10) Where 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.

(11) Again, in proceedings under an interdict based on force and clandestine action, the better opinion is that all accessions and profits should be returned.

(12) Crops gathered from land before marriage become part of the dowry, and should be returned along with it.

(13) The same principle applies to the profit of urban estates.

(14) Moreover, 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.

(15) The profits should always be delivered in other bona fide actions.

(16) Where a dowry is left by a husband to his wife, the profits of the same obtained before marriage are included in the legacy.

39. Modestinus, Differences, Book IX.

Where mares have been left in trust, their foals are also due after the heir is in default. Where a number of horses have been left, even though there be no default, their offspring belongs to the increase of the drove.

40. The Same, Rules, Book IV.

The calculation of interest is legally made up to the day when the creditor sells his pledges.

41. The Same, Opinions, Book III.

Judgment having been rendered against a guardian, he delayed the execution of the judgment by taking an appeal. Herennius Modestinus gave it as his opinion that the judge who had jurisdiction of the appeal could also hold him responsible for interest during the intermediate time, if he ascertained that the appeal was fraudulently interposed for the purpose of delay.

(1) Lucius Titius, who owed the sum of a hundred aurei and interest on the same for a certain time, tendered and sealed up a smaller sum than he owed. I ask whether Titius did not owe interest on the money which he sealed up. Modestinus answered that if it was not agreed at the time of the loan that the debtor should be permitted to pay what he had borrowed by instalments, the payment of interest for the entire debt would not be affected; if, when the creditor was ready to receive the whole amount, the debtor who failed to make the payment of the entire sum only deposited a part of it.

(2) Gaius Seius borrowed a certain sum of money from Aulus Agerius on the following note: "The undersigned says that I have received, and I acknowledge having received from him, borrowed money to the amount of ten aurei, which I promise to pay to him on the Kalends of next July, together with the interest on the same that is agreed upon between us." I ask whether interest can be collected on this instrument, and if so, how much. Modestinus answered that if it does not appear how much interest was agreed upon, it cannot be collected.

42. The Same, Opinions, Book XL

Herennius Modestinus gave it as his opinion that crops taken from land after the ownership of the same had been acquired by means of a trust, belonging to the beneficiary; even though the greater part of the year had elapsed before the trust became operative.

43. The Same, Opinions, Book XVIII.

Herennius Modestinus held that a party who institutes proceedings in behalf of the Treasury can collect interest which was not included in the stipulation, after he has collected what is due to the Treasury for the time during which the debtor was in default.

44. The Same, Pandects, Book X.

No one can stipulate for a penalty instead of interest above the lawful rate.

45. Pomponius, On Quintus Mucius, Book XXII.

A wife, or a husband, acquires the right to the produce of property which has been given by one to the other, that is to say, what either has been acquired by his or her labor, for example, by sowing; but if an apple should be plucked, or a tree cut down, it does not become the property of the party responsible for the act, just as it would not belong to any bona fide possessor, because the produce is not derived from his or her personal exertion.

46. Ulpianus, On the Edict, Book LXII.

There is no doubt that whatever has been expended in gathering the crops should be deducted from the crops themselves.

47. Scævola, Digest, Book IX.

It is held that where a party is ready to join issue in a case, and his adversary fails to file his complaint, he will not be held to be in default.

48. The Same, Digest, Book XXII.

A husband bequeathed to his wife the usufruct of the third part of his property, and the ownership of the said third part if she should have children. The heirs accused the wife of forging the will and of other crimes, by which they were prevented from claiming the legacies. In the meantime, a son was born to the woman, and the condition of the legacy was thereby fulfilled.

The question arose, if it was established that the will was not forged, should the crops be delivered to the owner? The answer was that they should be.

49. Javolenus, On the Last Works of Labeo, Book II.

The power of giving property in pledge is a product of the same.

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TITLE II. CONCERNING MARITIME INTEREST.

1. Modestinus, Pandects, Book X.

Money is transported which is carried across the sea. If, however, it is expended in the same place where it was lent, it cannot be designated as transported. Let us see, however, whether merchandise purchased with this money will be considered to occupy the same position. It makes a difference whether the merchandise is carried at the risk of the creditor, for then the money will be transported.

2. Pomponius, On Plautius, Book III.

Labeo says if there is no one who can be notified on the part of the promisor with reference to money which is to be transported, an instrument should be drawn up in the presence of witnesses, which will take the place of a notification.

3. Modestinus, Rules, Book IV.

In the case of money transported by sea, it is at the risk of the creditor from the day on which it is agreed that the ship will sail.

4. Papinianus, Opinions, Book III.

It makes no difference whether the money to be transported is not at the risk of the creditor when it is received, or whether it ceases to be at his risk after a certain time, or upon the fulfillment of a certain condition; and therefore in either instance a higher rate of interest than is legal will not be due. In the first instance, a higher rate can never be demanded; in the second, when the risk has ceased to exist, neither pledges nor hypothecations can be retained for the purpose of collecting a higher rate of interest.

(1) If slaves should be sent with the money transported, for the purpose of collecting it when due, interest for every day mentioned in the stipulation will be payable to the limit of twelve per cent; but more than twice the amount cannot be collected. Where it was separately stated in the stipulation, with reference to the interest, when the money would be no longer at the creditor's risk, whatever lawful interest was lacking in one clause will be supplied by the effect of the other.

5. Scævola, Opinions, Book VI.

The price is for the risk incurred, and resembles the case where you are entitled to receive what you paid and something besides, under a condition (even though it be a penal one) which was not fulfilled, provided it does not depend upon chance; for instance, one from which personal actions are accustomed to arise, as, "If you manumit a slave, if you do not perform a certain act, if I do not recover my health," etc. There will be no doubt that if, in order to equip a fisherman, I give him a certain sum of money on condition that he will repay me if he makes a good catch; or if I furnish money to an athlete in order that he may exhibit himself and practice his profession; on condition that, if he is successful, he will repay it.

(1) In all these instances, however, where an agreement is made without a stipulation, it causes the obligation to increase.

6. Paulus, Questions, Book XXV.

A broker who lent money at maritime interest, received certain merchandise which was in the ship by way of pledge, under the condition that if this was not sufficient to discharge the entire debt, he could have recourse to other merchandise loaded in different vessels, and which had already been pledged to other brokers with the understanding that if anything remained after they were satisfied, it would be considered pledged to the first broker.

The question arose, if the first ship which contained sufficient merchandise to pay the entire debt should be lost, whether the loss should be borne by the creditor if the ship was destroyed within the days appointed to make the voyage; or whether he would still have a claim upon the merchandise which remained in the other ships. I answered that in other cases the diminution of the property pledged is at the risk of the debtor, and does not concern the creditor, but when money to be transported is paid on such a condition that the creditor will have no claim unless the vessel arrives safely at its destination within the specified time, the obligation of the loan itself, where the condition is not fulfilled, is held to be at an end; and therefore the right of the creditor to even those pledges which were not lost will be extinguished. If the ship should be lost within the specified time, and the condition of the stipulation is held not to have taken place, no question can then be raised with reference to the availability of the pledges which were in the other vessels. But when can the creditor claim possession of the other pledges? He will certainly be able to do so when the condition of the obligation is fulfilled; or the pledges which he first received have been lost by some accident, or sold at too low a price; or if the vessel should be lost after the time has passed during which he was bound to assume the risk.

7. The Same, On the Edict, Book III.

There are certain contracts by which interest is due, just as in the case of a stipulation. For if I give ten aurei to be transported by sea, on condition that if the ship arrives safely I will be entitled to the principal together with a certain amount of interest, it must be held that I can receive the principal and interest.

8. Ulpianus, On the Edict, Book LXXVII.

Servius says that a penalty for money transported by sea cannot be demanded, if the creditor was to blame for not receiving it within the specified time.

9. Labeo, Epitomes of Probabilities by Paulus, Book V.

If a penalty for failure to pay money transported by sea is promised, as is customary, even though on the first day when it is payable no one should be living who owed the said money, still, the penalty can be exacted, just as if there was an heir to the debtor.

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TITLE III. CONCERNING PROOFS AND PRESUMPTIONS.

1. Papinianus, Questions, Book III.

Whenever a question is raised with reference to the family or race of any person, he must prove whether he belongs to it or not.

2. Paulus, On the Edict, Book LXIX.

Proof is incumbent upon the party who affirms a fact, not upon him who denies it.¹

¹ This rule, founded upon natural reason, has been adopted by all modern systems of jurisprudence. In the Roman practice, the application of the onus probandi was subject to continual variation, being dependent upon the different questions raised by the pleadings of the parties during the trial; and if the legal presumption was in favor of one of them, his opponent was required to show that it was not well founded. — ED.

3. Papinianus, Opinions, Book IX.

Where an implied trust is charged upon a party who is appointed heir for an equal or a larger share of the estate, by both a first and a second will, the proof of changed intention on the part of the testator devolves upon him against whom suit is brought; for often a motive of secrecy induces owners of property to appoint persons heirs in whose good faith they have confidence.

4. Paulus, Opinions, Book VI.

The purchaser must prove that the slave in question had taken to flight before he purchased him.

5. The Same, Opinions, Book IX.

Where anyone alleges that his adversary is deprived of some right by a particular law or constitution, he must prove it.

(1) Paulus also holds that where anyone denies that emancipation has been legally accomplished, he must furnish proof of his statement.

6. Scævola, Opinions, Book II.

A patron must clearly show that his freedman has given something for the purpose of cheating him, in order to be able to revoke a portion of what has been fraudulently bestowed.

7. Paulus, Sentences, Book II.

Where evidence of former flight is lacking, a slave shall be believed, if put to the torture, for he is held to be interrogated in his own behalf, and not for or against his master.

8. The Same, On Plautius, Book XVIII.

If a son under the control of his father denies the fact, the Prætor must direct the son to first prove his allegation, and this rule has been established on account of the affection which he ought to manifest for his father, and because the son practically alleges that he is free. Hence anyone who asserts his right to freedom is in the first place, ordered to prove it.

9. Celsus, Digest, Book I.

Where an agreement is made in which there is no mention of an heir, the question arises whether this has been done in order that only the person of the party himself may be considered. But although it may be true that he who makes use of an exception must establish good ground for doing so; still, the plaintiff, and not he who pleaded the exception, must prove that the agreement merely had reference to himself, and did not include his heir, because in such cases, we generally provide for our heirs as well as for ourselves.

10. Marcellus, Digest, Book III.

The Senate decreed that the registers of the Censor and the public records are better evidence than that of witnesses.

11. Celsus, Digest, Book XI.

A ward is not compelled to prove that the sureties furnished by his guardian were not solvent when they were accepted, for proof of this must be required of those whose duty it was to watch over the ward, and provide security for him.

12. The Same, Digest, Book XVII.

Fifty aurei were bequeathed to you by will, and the same legacy was included in codicils which were subsequently executed. It is important to ascertain whether the testator intended to double the legacy, or merely to repeatedly mention it, or did so, having forgotten that he had already made the bequest in his will. From which party then must proof of the intention of the testator be exacted? At first sight, it would appear more just that the plaintiff should prove what he claims, but there is no doubt that proof is sometimes required of the defendant; for if I bring suit for a claim and the defendant answers that the money has been paid, he himself is required to establish this. Therefore, in the present instance, if the plaintiff exhibits two instruments, and the heir alleges that the last one is void, the latter must prove this in court.

13. The Same, Digest, Book XXX.

Where an inquiry was made with reference to the age of a man, our Emperor issued the following Rescript: "It is both hard and unjust, when a question arises with reference to a party's age, and different statements are made, that one should be accepted which is prejudicial; but in the trial of a case the truth should be considered, and his age should be computed according to the document which seems to be most credible, and to deserve the greatest confidence in the investigation of the matter."

14. Ulpianus, On the Office of the Consul, Book II.

Inquiries should be made with reference to a person who, having passed as a freedman, now alleges that he is freeborn and desires to proceed as plaintiff. If, indeed, he occupies the position of a freedman, there is no doubt that he must bring an action to have himself declared freeborn, and establish that this is the case. But if he enjoys the reputation of having been born free, and he is alleged to be a freedman (of course by him who is responsible for the controversy), he who says that he is his freedman must prove it. For what difference does it make whether anyone asserts that he is his slave or his freedman? Where, however, a party has sufficient confidence in his claim of freedom of birth as voluntarily to undertake to produce proofs of it for the purpose of obtaining a decision declaring him freeborn (that is to say that he was born free as he alleges), it may be asked whether he should be permitted to do so. I am of the opinion that this should be done, and that he should have an opportunity to prove that he is freeborn, and have a decision rendered in his favor, as no one can be taken at a disadvantage by such a judgment.

15. Modestinus, Opinions, Book XII.

A certain man, asserting that he was the son of Seia and Gaius, seized the estate of Gaius, although the latter had brothers, and discharged certain trusts in favor of these brothers, as if by the direction of the deceased, and took a receipt. They, having afterwards ascertained that the alleged son was not their brother, asked whether they could bring an action against him to recover the estate, on account of the receipt which they had given him as the son of the deceased. Modestinus answered that the position of the party to whom the receipt had been given in discharge of the trust, and who could be proved by the brothers of the deceased not to be his son, was not in the slightest degree established by this fact, but that proof must be submitted by the brothers.

16. Terentius Clemens, On the Lex Julia et Papia, Book III.

The statement of a mother as to the birth of her children, as well as that of a grandfather, must be accepted.

17. Celsus, Digest, Book VI.

When a question is raised with reference to the Lex Falcidia, the heir must prove that this law is applicable, because if he cannot do so, judgment will properly be rendered against him.

18. Ulpianus, Disputations, Book VI.

Whenever services are demanded of a freedman, proof of his right to do so is required from the party who alleges that he is his patron; therefore Julianus holds that, although in a matter which is in controversy the patron is held to be entitled to possession, he who is said to be the freedman should not take the part of plaintiff, but he who asserts that he is the patron should do so.

(1) Where anyone alleges that some fraudulent act has been committed, he must prove the fraud, even though he may have made this statement in an exception.

(2) The plaintiff should be compelled to prove the truth of an interrogatory which is made, that is, where it is alleged that a party who was interrogated in court answered that he was the sole heir; or if, having been interrogated, he is said to have remained silent, the same rule must be held to apply; and the blame must be placed not upon him who stated in his exception that he did not answer, but upon the plaintiff.

19. The Same, Disputations, Book VII.

It must be said, with reference to exceptions, that the defendant is required to perform the part of plaintiff, and he himself prove his exception, just as the plaintiff must prove his claim; for instance, where he pleads an exception on the ground of a contract entered into, he must show that the contract was actually made.

(1) Where anyone who promised to appear in court alleges as a reason for not doing so that he has been absent on public business, or that some malicious act of his adversary prevented him from appearing, or his health, or a storm hindered him, he must prove it.

(2) Where a party makes use of an exception on the ground that the appointment of the attorney of his adversary is not valid, because his adversary could not appoint, or be appointed an attorney, he must prove the truth of the exception which he has interposed.

(3) The same rule will apply where suit is brought for a sum of money which is alleged to have been paid.

(4) Again, where an exception is pleaded on the ground of a decision rendered; or because an oath is said to have been tendered with reference to the property for which suit now is brought, or because the matter in controversy has reference to a game of chance, the party who filed the exception must prove all these allegations.

20. Julianus, Digest, Book XLIII.

Where anyone seizes a freeman by force, and keeps him in chains, he is most unworthy of the advantages enjoyed by a possessor, because it cannot be proved that, at the time that proceedings were first instituted, the man was free.

21. Marcianus, Institutes, Book VI.

I think that the better opinion is that he who brings the action, that is to say the legatee, must prove that the testator knew that the property bequeathed belonged, or was encumbered to another, and that the heir is not required to prove that it belonged to someone else, or was encumbered, because the necessity of proving his allegations always rests upon the plaintiff.

22. Ulpianus, Opinions, Book I.

He who says that he has changed his mind must prove it.

23. Marcianus, On the Hypothecary Formula.

It must be proved, before everything else, that it was agreed between the plaintiff and the debtor, that the property should be pledged or hypothecated. After the plaintiff has proved this, he must also establish the fact that the property belonged to the debtor at the time the pledge was agreed upon, or that the hypothecation was made with his consent.

24. Modestinus, Rules, Book IV.

Where a promissory note has been cancelled, although the presumption is that the debtor has been released, still, he can lawfully be sued for the amount which the creditor can show by manifest evidence is still due to him.

25. Paulus, Questions, Book III.

Where a question arises with reference to money which is not due, who must prove this? The matter should be adjusted so that if he who is said to have received the property denies that the money is not owing, and he who paid it proves its payment by competent evidence, then he who denies absolutely that he received the money, if he wishes to be heard, must be compelled to furnish proof that the money was lawfully due to him; for it would be absurd if he who, in the beginning, denied that he had received the money, and afterwards was shown to have received it, should require proof from his adversary that it was not owing to him.

If, however, in the first place, the plaintiff should acknowledge that he had received the money, but should assert that it was due to him, the presumption undoubtedly will lie in favor of the party who received it, for he who pays is never so negligent as to throw away his money without hesitation, and pay it when it is not due; and especially is this the case where the party who alleges that he paid what was not due is the diligent and careful head of a household, for it is incredible that a person of this kind should be so easily deceived.

Therefore he who alleges that he has paid money which was not due will be required to produce evidence that the said money was paid through the fraud of the party who received it, or on account of some just cause of ignorance, and unless he shows this he will have no right to recover it.

(1) Where, however, he who complains of the payment of money which was not due is a ward, a minor, or a woman, or, indeed, a man of full age but a soldier, or a cultivator of the soil and inexperienced in public business, or fond of a simple life and given to idleness; then he who receives the money must show that he actually did so, and that it was due and payable to him, and if he fails to do this he must refund it.

(2) This only applies where the party who paid the money contends that the entire sum was not due. Where, however, he complains of the payment of only a portion, on the ground that only a part of the money paid was not due; or that it was due in the beginning, but the debt was afterwards discharged, and he ignorantly paid it a second time; or that, being protected by an exception, he paid the money through mistake; he, himself, must, by all means, establish that he either paid more than was due, or that he paid money a second time through mistake, or that, being protected by an exception, he ignorantly paid the money; in accordance with the general rule which requires those to furnish proof who state that they have exceptions to offer, or who allege that they have paid the debt.

(3) In all the instances which we have suggested, permission should be granted to him upon whom rests the burden of proof to tender the oath to his adversary, with reference to the truth of the matter, before tendering him the oath pro calumnia; so that the judge may regulate his decision according to the confidence which he has in the oath of the plaintiff, the right to the defendant to tender the oath back to his adversary being reserved.

(4) This point relates to the payment of money which is not due. Where, however, a written promise to pay is said to have been made for money which is not due, and the terms of the instrument are indefinite, then the party in whose favor the note was executed will be compelled to prove that the sum mentioned in it is due to him, unless he who made the note has explicitly stated his reasons for doing so; for then he must abide by his admission, unless he is ready to show by conclusive documentary evidence that he made the promise to pay money which he did not owe.

26. Papinianus, Questions, Book XX.

Procula, to whom a large sum of money was due from her brother under the terms of a trust, wished to set off this sum proportionately against his heirs after his death; and in opposition to this it was alleged that she had never demanded the money of her brother during his lifetime, but that she herself had paid him certain sums of money for various reasons growing out of accounts which they had with one another. The Divine Commodus, in deciding the case, did not admit the set-off, but held that she had tacitly released her brother from the execution of the trust.

27. Scævola, Digest, Book XXXIII.

A man made a will, and bequeathed a lawful share of his estate to one who was only entitled to receive a certain amount, and he then provided as follows: "I give and bequeath one hundred aurei to Titius, which he has placed in my hands, but of which I have not given him any written evidence, because I have held all the fortune and property which he received from his mother in my possession without any note. Moreover, I desire that there should be delivered and paid to Titius a hundred and fifty aurei out of my estate, which I have received as the rent of land, being the proceeds of crops harvested and sold, as well as any sums shown on my books to have been received by Titius from his mother, and which I have appropriated to my own use."

I ask whether Titius can collect this money. The answer was that if Titius can prove that the property had come into the hands of the testator in accordance with the above-mentioned statement, he can do so; for it is held that in a case where a party is not entitled to receive more than a certain amount by a legacy, such provisions are added to a will in violation of law.

28. Labeo, Epitomes of Probabilities, by Paulus, Book VII.

Where it is the duty of an arbiter to decide a case, should he inquire whether a memorandum of the labor performed exists, or whether anyone remembers that the labor has been performed? Paulus says that when inquiry is made in a case of arbitration, as to whether a memorandum of the labor performed is in existence or not, it ought not to be asked whether anyone remembers the time, or under what consul the work was done, but whether it can be proved in any way whatsoever when it was done. And this should be accomplished, as the Greeks are accustomed to state, in a general way, for it cannot be retained in the memory that the work has been done; for example, within a certain year, since, in the meantime, no one will probably remember under what consuls it was performed. But where the opinion of all persons is that they did not hear of the work being done, or see it, or learn of it from any who might have seen it, or heard of it, and, no matter how far back one may go, no memorandum of the work performed can be found; this will be sufficient.

29. Scævola, Digest, Book IX.

The Emperors Antoninus and Verus stated in a Rescript to Claudius Apollinaris the following, namely: "It is decreed that proofs given with reference to children shall not consist of the mere statements of witnesses, but also of letters which are alleged to have been sent to wives, if their authenticity is established, and they can be introduced as documentary evidence."

(1) A wife, who had been repudiated while pregnant, brought forth a son during the absence of her husband; and, in the course of the proceedings instituted in consequence, confessed that the child was illegitimate. The inquiry arose whether the son was under the control of his father, and if when his mother died intestate, he could enter upon her estate by order of his father, or whether the confession made by his angry mother would prejudice his rights. The answer was that, in cases of this kind an opportunity always existed for ascertaining the truth.

30. Labeo, Opinions, Book I.

Labeo's opinion given to Festus was that a female slave could not offer, as proof of the freedom which she claimed, either a trust left to her by will, or the fact that provision for her maintenance had been bequeathed to her as the nurse of the testator.

31. The Same, to Mactorius Sabinus, Book II.

The mention of money in a note, which is alleged to be due for some other reason, does not possess the force of an obligation.

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TITLE IV. CONCERNING THE AUTHENTICITY OF INSTRUMENTS AND THEIR LOSS.

1. Paulus, Sentences, Book IV.

All those things by means of which legal proceedings can be instituted should be classed under the head of instruments, and therefore evidence, as well as persons, are placed in that category.

2. The Same, Opinions, Book V.

Where anyone is sued by the Treasury, this must be done, not by means of an extract or the copy of any written document, but on the original itself, so that the truth of the contract may be established. It is not proper that a forged document should have any force or effect in court.

3. The Same, Opinions, Book III.

Paulus stated that: "An obligation should not be antedated, but the parties who have agreed to this are not considered to be guilty of forgery, since the act was performed in the presence and with the consent of the parties, and the debtor is guilty of a greater offence than the creditor."

4. Gaius, On the Hypothecary Formula.

Where property is hypothecated, it does not matter in what terms this may be effected, as in the case in those obligations which are contracted by consent. Therefore, if it is agreed that property shall be hypothecated without this being done in writing, and this can be proved, the property with reference to which the agreement was made will be encumbered; for written instruments are drawn up in these matters in order that what has been agreed upon may be more easily established. The transaction will be valid, however, without them, if the evidence is forthcoming; just as marriage is valid where testimony exists without any written instruments having been executed.

5. Callistratus, Questions, Book II.

Where a transaction shows that it has actually been concluded without any documentary evidence, it will be none the less valid because no written instrument with reference to it exists.

6. Ulpianus, On the Edict, Book L.

Where a question arises with reference to the deposit of a will, and there is some doubt with whom this should be done, we prefer that it should always be left with an old, rather than with a young person, with one of high rather than with one of inferior rank, with a man rather than with a woman, and with a freeborn person rather than with a freedman.

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TITLE V. CONCERNING WITNESSES.

1. Arcadius, also called Charisius, On Witnesses.

The employment of witnesses is frequent and necessary, and the testimony of those whose integrity is established should especially be taken.

(1) Witnesses can also be produced not only in criminal cases, but also in actions involving money, in accordance with the circumstances, and those can give evidence who are not forbidden to do so, or are excused from testifying by any law.

(2) Although a considerable number of witnesses is prescribed by certain laws, still, according to the Constitutions of the Emperors, this requirement is confined to a sufficient number of the same, in order that the judges may regulate it, and permit only that number of witnesses to be called which they deem necessary, lest a superfluous multitude may, through unrestricted power, be summoned for the purpose of annoying the parties to the suit.

2. Modestinus, Rules, Book VIII.

The rank, the integrity, the manners, and the gravity of witnesses must be taken into consideration, and therefore those who make contradictory statements, or who hesitate while giving their evidence, should not be heard.

3. Callistratus, Concerning Judicial Inquiries, Book IV.

The integrity of witnesses should be carefully investigated, and in consideration of their personal characteristics, attention should be, in the first place, paid to their rank; as to whether the witness is a Decurion or a plebeian; whether his life is honorable and without blame, or whether he has been branded with infamy and is liable to censure;

whether he is rich or poor, lest he may readily swear falsely for the purpose of gain; whether he is an enemy to him against whom he testifies, or whether he is a friend to him in whose favor he gives his evidence. For if the witness is free from suspicion, either because his personal character is beyond reproach, for the reason that he is neither influenced by the expectation of gain, nor by any inducements of favor or enmity, he will be competent. Therefore, the Divine Hadrian stated in a Rescript addressed to Vivius Verus, the Governor of Cilicia, that he who hears a case has the best means of judging how much confidence should be reposed in witnesses. The following are the terms of the Rescript : "You are best qualified to ascertain how much faith should be placed in witnesses, who they are, what is their rank and reputation, whether they seem to speak sincerely, whether or not they have agreed upon and planned the same statements together, and whether they, without hesitation, return suitable answers to the questions put to them."

(1) Another Rescript of the same Emperor, addressed to Valerius Verus, on the subject of ascertaining the confidence to be placed in witnesses, is extant, and is in the following words: "It cannot be laid down with precision what evidence will be sufficient for the proof of any matter, just as it is not always essential to establish the existence of any fact by means of public documents, although this is frequently done. Otherwise, the number of witnesses, as well as their rank and authority, and their general reputation, would tend to confirm the proof of the subject under investigation.

"I can only say to you in general terms, that a judicial inquiry should not be confined merely to one kind of evidence, but that it is necessary for you to form your opinion as to what you believe to have been proved, or what you may think has not been satisfactorily established, through the exercise of your own judgment."

(2) The Divine Hadrian also stated in a Rescript to Julius Rufinus, Proconsul of Macedonia, that he must pay more attention to the witnesses than to their evidence. The words of the Rescript on this point are as follows: "Alexander accused Aper of certain crimes before me, but he did not prove them, or produce any witnesses; but he desired to use evidence which I am unwilling to admit, for I am accustomed to examine witnesses, and I have sent him back to the Governor of the province that he may make inquiry with reference to the credibility of the witnesses, and unless he proves what he alleges, he shall be sent into exile."

(3) The same Emperor stated the following in a Rescript to Cabin-ius Maximus: "The weight to be attached to the oral evidence of witnesses who are present is one thing, and that of written testimony which is to be read is another. Therefore deliberate carefully whether you desire to retain them, and if you do, allow them their costs."

(4) It is proved by the Lex Julia relating to violence, that those shall not be permitted to give testimony against a defendant who has been freed by him or by his father; or who have not yet arrived at puberty; or anyone who has been condemned for a public crime, and has not been restored to his former condition, or who is in chains, or in prison, or has hired himself out to fight with wild beasts; or any woman who openly prostitutes herself, or has already done so; or anyone who has been sentenced or convicted of having received money for giving or withholding testimony. For, indeed, certain persons should not be allowed to testify on account of the reverence due to their position; others on account of the unreliability of their judgment; and still others because of the notorious infamy of their lives.

(5) Witnesses should not hastily be summoned from a long distance, and still less should soldiers be called away from their standards or their stations for the purpose of giving evidence; and this the Divine Hadrian stated in a Rescript.

The Divine Brothers also stated in a Rescript that: "With reference to the summoning of witnesses, the judge should carefully ascertain what is the custom in the province over which he presides; for if it should be proved that witnesses are frequently summoned to another city for the purpose of testifying, there is no doubt that those can be summoned whom the judge may decide are necessary to be called in the case."

4. Paulus, On the Lex Julia et Papia, Book II.

It is provided by the Lex Julia having reference to public prosecutions, that a man, if unwilling, cannot be compelled to give testimony in court against his father-in-law, his son-in-law, his step-father, his stepson, his cousin, whether male or female, his cousin's child, or any of those who are related in a nearer degree. Nor can the freedman of anyone, or of his children, his parents, his or her wife or husband, be permitted to testify against him, if he is accused.

The same rule applies to a patron, and a patroness, for neither of them can be compelled to give testimony against their freedman, nor a freedman against his patron.

5. Gaius, On the Lex Julia et Papia, Book IV.

In the laws where the exception is made that neither a son-in-law nor a father-in-law, if unwilling, can be compelled to give testimony; it is held that the betrothed of the daughter is included in the term "son-in-law," and also that the father of the betrothed woman is included in the term "father-in-law."

6. Licinius Rufinus, Rules, Book II.

Those witnesses are not considered to be competent who can be commanded to testify.

7. Modestinus, Rules, Book III.

The evidence of a slave must be believed when there is no other way of ascertaining the truth.

8. Scævola, Rules, Book IV.

Old men, invalids, soldiers, magistrates who are absent on business for the State, and such persons as are forbidden to appear, cannot be compelled to testify, if unwilling to do so.

9. Paulus, On Sabinus, Book I.

A father is not a competent witness for his son, nor a son for his father.

10. Pomponius, On Sabinus, Book I.

No one is held to be a competent witness in his own case.

11. The Same, Decrees, Book XXXIII.

A party who has not been summoned as a witness is allowed to testify for the purpose of proving a transaction.

12. Ulpianus, On the Edict, Book XXXVII.

Where the number of witnesses is not specified by law, two are sufficient, for the term "several" is embraced in the number two.

13. Papinianus, On Adultery, Book I.

I know that the question has arisen whether those who have been convicted of calumny in public trials can testify in a public prosecution. They are not, however, forbidden to do so by the Lex Remmia; and the Lex Julia relating to violence, extortion, and peculation, does not prohibit such persons from giving evidence, nevertheless, what is omitted by the laws should not be omitted by the conscientious judge, whose duty it is to carefully weigh the credibility of the witness and determine whether he gives his testimony as a man of integrity should do.

14. The Same, On Adultery.

I am aware that it has also been discussed whether one who has been convicted of adultery can give evidence for the purpose of proving a will; and it is clear that he is justly forbidden from testifying in court. Therefore I think that a will which must be proved by a witness of this kind is not valid, either by the Civil Law, or by the Prætorian Law which follows it; so that neither an estate can be entered upon, nor the possession of the property of the deceased be granted on such testimony.

15. Paulus, Sentences, Book II.

A person who has been convicted of extortion cannot testify in the case of a will, or in a judicial proceeding.

(1) For an hermaphrodite to be qualified to testify in a case of a will it must be proved which sex is predominant.

16. The Same, Sentences, Book V.

Those who testify falsely, or give conflicting evidence, or betray both sides, can be punished by competent judges.

17. Ulpianus, Rules.

A father, and a son who is under his control, and also two brothers, subject to the authority of the same father, can be witnesses in the case of a will, or in the same transaction; since there is nothing to prevent several witnesses belonging to one household from testifying in a matter in which another party is interested.

18. Paulus, On Adultery, Book II.

Since the Lex Julia de Adulteriis prohibits a woman who has been convicted of adultery from testifying, it follows that even women have the right to give evidence in court.

19. Ulpianus, On the Office of Proconsul, Book VIII.

Farmers of the revenue cannot be compelled to testify; nor can anyone who has not absented himself to avoid giving testimony; nor anyone who may be employed in furnishing provisions to the army.

(1) Nor can wards be required to testify.

20. Venuleius, On Public Prosecutions, Book II.

An accuser should not call as a witness one who has been convicted of a crime, or who is under twenty years of age.

21. Arcadius, also called Charisius, On Witnesses.

A person who has been convicted of having written a libellous poem is incompetent to testify.

(1) It is also undeniable that, where the case demands it, not only private individuals, but even magistrates, if they are present, can be forced to testify. The Senate also decreed that a Prætor must also give his evidence in a case of adultery.

(2) Where the circumstances are such that we are compelled to accept a gladiator, or some person of this kind as a witness, his evidence is not to be believed, unless he is subjected to torture.

(3) When all the witnesses are of equal integrity and reputation, and the nature of the transaction, as well as the opinion of the court, coincides with their assertions, all their testimony should be accepted. Where, however, some of them make statements different from those made by the others, even the smaller number of them may be believed.

Moreover, if the evidence corresponds with the nature of the transaction, and no suspicion of either hostility or favor exists, the judge must confirm the impressions of his mind by the arguments and testimony which are most applicable to the case, and which he ascertains to be nearest to the truth. For it is not necessary to take into consideration the number of the witnesses, but rather their sincerity, as well as such evidence as appears to be more illuminated with the light of truth.

22. Venuleius, On the Office of Proconsul, Book II.

The magistrates of every district should be careful to afford facilities to all who wish to make wills, and themselves be witnesses and sign wills with others, by means of which matters may be more easily explained, and the proof of facts be secure.

23. The Same, On Public Prosecutions, Book I.

A witness cannot be produced against a defendant who has already given evidence against him.

24. Paulus, Sentences, Book V.

It has been decided that witnesses whom an accuser brings from his own house shall not be examined.

25. Arcadius, also called Charisius, On Witnesses.

It is provided by the Imperial Mandates that Governors shall see that patrons do not testify in cases which they are conducting; and this rule must also be observed in the case of those who are transacting the business of others.¹

¹ The Roman law regulating the competency of witnesses was infinitely more strict in its application than the Common Law, and excluded much testimony which, at present, is admitted without question. Great importance was attached by the jurists of the Republic and the Empire to the fact that the witness was either in dire poverty, or subject to the dictation of someone high in influence or authority, which might raise the presumption of bribery or duress — a consideration ignored by modern courts of justice; hence beggars were held to be particularly liable to suspicion. This rule was adopted by the compilers of both the Visigothic Code and Las Siete Partidas: "Nam videtur esse cavendum ne forte quisque compulsus inopia, dum necessitatem non tolerat, præcipitanter perjurare non metuat." (Forum Judicum II, IV, 3.) "Non puede testiguar ome muy pobre e vil que usasse con malas compañas." (Las Siete Partidas III, XVI, 8.)

Mohammedan Law does not admit the testimony of persons related in either the direct ascending or descending line, beyond the second degree, in favor of one another, or that of husband and wife, master and slave, employer and employee. The evidence of public singers, common drunkards, gamblers, falconers, usurers, and infidels, is also declared to be incompetent. (The Hedaya II, XXI, 2.) — ED.

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TITLE VI. CONCERNING IGNORANCE OF LAW AND FACT.

1. Paulus, On the Edict, Book XLIV.

Ignorance is either of fact or of law.

(1) For where anyone is not aware that he to the possession of whose property he is entitled is dead, time does not run against him. Where, indeed, he is aware that his relative is dead, but he does not know that his estate belongs to him on account of his being the next of kin, or, where he is aware that he has been appointed an heir, but does not know that the Prætor grants the possession of the property of a deceased person to those who have been appointed his heirs; time will run against him because he is mistaken with respect to the law. The same rule applies where the brother of the deceased thinks that his mother has the preference.

(2) If anyone does not know that he is related to the deceased, sometimes he is mistaken concerning the law, and sometimes with reference to the fact; for if he is aware that he is free, and who his parents were, but does not know that he is entitled to the rights of relationship, he is mistaken as to the law. Where anyone who is a foundling does not know who his parents are, and serves another as a slave, thinking that he himself is a slave, he is mistaken rather as to the fact than as to the law.

(3) Moreover, where anyone knows that another is entitled to the possession of the property of an estate, but does not know that the time during which he should have taken possession of the same has elapsed, he is mistaken as to the fact. The same rule applies where he thinks that he has obtained possession of the property. Where, however, he knows that he has not claimed the estate, and that he has allowed the time to elapse, but is ignorant that he is entitled to the possession of the property on the ground of succession, time will run against him because he is mistaken with respect to the law.

(4) We hold the same where a man is appointed heir to an entire estate, but does not think that he has a right to demand possession of the same before the will is opened; but if he is ignorant that there is a will, he will be mistaken with reference to the fact.

2. Neratius, Parchments, Book V.

Error in law should not, in every instance, be considered to correspond with ignorance of the fact; since the law can, and should be definitely settled, but the interpretation of the fact very frequently deceives even the wisest men.

3. Pomponius, On Sabinus, Book III.

There is a great deal of difference whether anyone is not informed regarding the case and acts of another, or whether he is ignorant of the law which affects himself.

(1) Cassius states that Sabinus holds that it should be understood that ignorance, in this instance, does not refer to a person of abandoned character, or to one who, through negligence, thinks himself secure.

4. The Same, On Sabinus, Book XIII.

It is denied that ignorance of the law is of any advantage in usucaption, but it is established that ignorance of fact is a benefit.

5. Terentius Clemens, On the Lex Julia et Papia, Book II.

It seems to be most unjust that knowledge should injure another rather than its possessor, or that the ignorance of one person should profit another.

6. Ulpianus, On the Lex Julia et Papia, Book XVIII.

Neither gross ignorance of the facts should be tolerated, nor scrupulous inquiry be exacted, but such knowledge should be demanded that neither excessive negligence, too great unconcern, nor the inquisitiveness that characterizes informers may be exhibited.

7. Papinianus, Questions, Book XIX.

Ignorance of the law is not advantageous to those who desire to acquire it, but it does not injure those who demand their rights.

8. The Same, Definitions, Book I.

An error of fact does not, indeed, prejudice the rights of men where they seek to obtain property, or to avoid losing it; and ignorance of the law is no advantage, even to women, when they attempt to acquire it. A mistake in law, however, does not injure any person in an attempt to avoid the loss of property.

9. Paulus, On Ignorance of Law and Fact.

The ordinary rule is, that ignorance of law injures anyone, but ignorance of fact does not. Therefore, let us examine to what instances this rule is applicable, for it may be stated, in the first place, that minors under twenty-five years of age are permitted to be ignorant of the law; and this also is held with respect to women in certain cases, on account of the weakness of the sex; hence, so long as no crime has been committed, but only ignorance of the law is involved, their rights are not prejudiced.

On the same principle, if a minor under the age of twenty-five lends money to a son under his father's control, relief is granted him, just as if he had not lent the money to a son subject to paternal authority.

(1) Where a son under paternal control, who is a soldier, is appointed heir by a comrade-in-arms, and does not know that he can enter upon the estate without the permission of his father, he can ignore the law in accordance with the Imperial Constitution; and therefore the time prescribed for the acceptance of the estate does not run against him.

(2) Ignorance of the fact, however, does not injure anyone unless he should be guilty of gross negligence; for example, what if every one in the town knew what he alone does not? Labeo very properly says that neither the knowledge of the most inquisitive, or the most negligent man, should be understood to be meant, but that of him who can obtain it by diligent inquiry.

(3) Labeo, however, thinks that ignorance of the law ought not to be considered excusable unless the party should not have access to a magistrate, or is not intelligent enough to easily ascertain that ignorance of the law is a detriment to him, which is very rarely the case.

(4) Where anyone does not know that the vendor is the owner of the property sold, more attention should be paid to the transaction itself than to the opinion of the purchaser; and therefore, although he may believe that he bought the property from someone who was not its owner, still, if it is delivered to him by the owner, it will belong to him.

(5) Where a party who is ignorant of the law does not avail himself of the Lex Falcidia, a Rescript of the Divine Pius says that his rights will be prejudiced. Moreover, the Emperors Severus and Antoninus stated the following in a Rescript, namely: "Where, in discharging a trust, money is paid which is not due, it cannot be recovered, unless it was paid by mistake. Wherefore, the heirs of Cargilianus, when they paid over money left by will for the purpose of building an aqueduct for the Republic of Cirta, not only did not require the bonds which are usually executed to compel the repayment by municipalities of any excess which they might receive above what was permitted by the Lex Falcidia; but they even stipulated that the said sum of money should not be applied to any other purpose, and knowingly and deliberately suffered the said money to be used for the construction of the aqueduct, hence they had no right to demand that anything should be returned to them by the Republic of Cirta, on the ground that they paid more than was due; since there would be injustice on both sides, for the money to be recovered which had been given for the purpose of building an aqueduct, and for the Republic to be compelled to pay out of the funds belonging to it for a work which entirely represented the glory derived from the liberality of another.

"If, however, the heirs thought that the claim for the recovery of said money was well founded, for the reason that they failed, through lack of information, to profit by the provisions of the Lex Falcidia, they should know that ignorance of fact would be of advantage to them, but ignorance of law would not; and that relief is granted, not to fools, but to those who are honestly mistaken with reference to the facts." Although municipalities are mentioned in this Rescript, still, the same rule should be observed with reference to all kinds of persons. And while, in the case stated, mention is made of money left for the purpose of constructing an aqueduct, in this instance alone it must be held that an action for its recovery will not lie, for the beginning of this constitution is of general application, as it shows that if, through mistake, the trust was not discharged, any money paid which is not due cannot be recovered.

Moreover, that section is also of general application which sets forth that parties are not entitled to recover who, through ignorance of the law, did not avail themselves of the benefit of the Lex Falcidia; and, according to this, it can be stated that if money which was left in trust and had been paid, had not been left for some specified purpose, even though it had not been expended but remained in the hands of the person to whom it was paid, an action to recover it will not lie.

10. Papinianus, Opinions, Book VI.

Youths who have not arrived at puberty and act without the authority of their guardians are not considered to know anything.

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