1Callistratus, On the Rights of the Treasury, Book I. There are various reasons for which notice ordinarily is given to the Treasury; for anyone himself can state that he has no right to take property which is tacitly bequeathed by a trust, or where one has been denounced as a criminal by another; or this can be done in the case where the death of a relative is not avenged by the heirs; or because an heir has been denounced as unworthy; or because the Emperor was appointed heir, notice can be given that the will or the codicil has been suppressed; or because anyone may be alleged to have found a treasure; or to have purchased an article of great value which belonged to the Treasury, at a very low price; or on the ground that the Treasury had been defeated in the case by prevarication; or for the reason that a person accused of a capital crime has died; or because someone was accused after his death; or a house had been rebuilt; or an accusation abandoned; or property in litigation sold; or because a penalty was due to the Treasury under some private contract; or because an act had been committed contrary to law. 1Ad Dig. 49,14,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 622, Note 3.Where property is not sufficient for payment, the question arises whether it belongs to the Treasury by operation of law. Labeo says that, even if it is not sufficient to discharge the liabilities, it will still belong to the Treasury by operation of law. The Perpetual Edict, however, contradicts his opinion, because the property is sold when none of it can be acquired by the Treasury. 2The Divine Pius stated in a Rescript to Coelius Amarantus that notice to the Treasury of an estate without an owner was prescribed after four years, and that this time should be computed from the day when it began to be certain that there was no heir, and no possessor under Prætorian Law. 3The prescription of twenty years, however, which is observed with reference to the property of persons who have been notified, and do not institute proceedings to recover it is, according to a Constitution of the Divine Titus, usually reckoned from the day on which anything could begin to belong to the Treasury. 4Cases which have already been begun and continued beyond the twentieth year can also be prosecuted after the twentieth year has elapsed. 5Cases which are alleged to have been abandoned by the first person who gave notice of them can still be reported to the Treasury after the term of years by which, as we have stated, they are prescribed, has elapsed.

2The Same, On the Rights of the Treasury, Book II. There are certain reasons for which the reputation of those who give information is not injured; for instance, when this is not done in order to obtain a reward, and where persons denounce an adversary for the purpose of avenging a wrong; or where anyone prosecuted the case in the name of a municipality; and it is to be observed that this has many times been set forth in the Imperial Constitutions. 1The Divine Hadrian stated in a Rescript addressed to Favius Arrianus: “There is no doubt that he injures his own case who, being able to introduce documents having reference to the case of the Treasury does not do so, when the truth cannot otherwise be ascertained, and the documents are suppressed because it is thought that they will injure his case. “But there is no question that the said documents will not injure any other case than the one in which their production is demanded.” 2In like manner, the Divine Brothers stated in a Rescript, in answer to the petition of Cornelius Rufus, that documents should be produced whenever an inquiry is made with reference to the right to receive property, or the right of ownership, or anything of this kind, in a pecuniary case, but not in one in which the death penalty is involved. 3The Senate decreed that, if neither the informer nor the possessor summoned by the three edicts should appear, the sureties of the informer will be liable; and he will be deprived of the right to bring an accusation afterwards in a public case, and the right of the possessor will remain the same as if he had not been denounced. 4Whenever an informer who has been ordered to appear fails to do so, and this is not proved to have been effected by the fraudulent conduct of the possessor, the Divine Hadrian stated in a Rescript that judgment should be rendered in favor of the latter, in such a way that it shall be mentioned therein that the informers are also included in the edict. 5The Divine Pius stated in a Rescript addressed to Cæcilius Maximus that the Constitution of his Father, by which an informer is required to give the name of his principal, and if he does not do so, he shall be placed in chains, does not cause the informer to be released from punishment, if he has a principal, but that the principal shall be punished, just as if he alone had made the denunciation. 6Our Emperor, Severus Augustus, decided that slaves who denounced their masters should not be heard, but should be punished; and also that freedmen who instigated other persons against their patrons should be punished by the Governors of provinces. 7Many Imperial Rescripts exist by which it is provided that no one is injured by a mistake, when, being ignorant of the law, he denounced himself. But there is also a Rescript of the same Emperor extant, by which it appears that it can be maintained that anyone who informs against himself will only not be injured in case he is such a person as can be ignorant of the law merely because of his rusticity, or where the person is a woman.

3The Same, On the Rights of the Treasury, Book III. A person is not understood to have defrauded the law if he has publicly been asked to make restitution. When, however, anyone inserts the following into his will: “I charge you to faithfully execute what I have requested you to do, and I beseech you in the name of God to do so,” the question was asked whether this request was made publicly. Julianus answered that, indeed, it did not appear that anything was asked of the heirs by words of this kind, but that it was usual to inquire when anyone was understood to have pledged his honor for the purpose of defrauding the law; and it had been almost definitely settled that the law was considered to have been defrauded whenever anyone was not requested by will or by codicil, but by a private promise, or by a note to bind himself to give something to a person who was not entitled to receive it; and therefore it could be said that no fraud was committed against the law by the words above mentioned. 1If anyone should, both publicly and privately, be charged to execute a trust, the question arises which would prevail, and whether what he was asked to do secretly, or what he was requested to do openly, would prejudice him. The Divine Hadrian stated in a Rescript that, where anything had been publicly confided to the honor of anyone, it should not be believed that he had made use of it in order to defraud the law. 2When fraud has been committed, let us see whether the result or the design should be considered; for instance, if, when the trust was tacitly created, he who was ordered to receive it was not capable of doing so, but at the time of his death was qualified to take it, or vice versa. It has been decided that the result should be considered. 3Implied trusts are frequently disclosed as follows: namely, where a document is produced by which the person in whom confidence is reposed binds himself to deliver whatever may come into his hands from the estate of the deceased. This also takes place when other evident proofs exist. 4When, on account of an implied trust, property is confiscated to the Treasury, everything which is properly left by the will is valid. This the Divine Pius stated in a Rescript. 5The Divine Brothers stated in a Rescript that, in sales in which the Treasury is interested, good faith and diligence are exacted from the Agent of the Treasury, and that the just price should be determined, not from past sales, but from the present estimation of the value of the property. For the value of land is increased by diligent cultivation, just as it is necessarily diminished, if it is carelessly tilled. 6When the term of five years, for which a person binds himself under a public lease, has elapsed, he will not afterwards be liable; and this has been decided by the Imperial Rescripts. For the Divine Hadrian stated in a Rescript: “That is an extremely inhumane custom by which the lessees of public lands and farmers of the revenue are retained, when the taxes cannot be farmed, or the lands leased for the same price; for lessees could be more readily secured if they knew that, should they desire to depart after their terms had expired, they would not be retained.” 7If the Treasury should succeed to a last creditor, it will enjoy the same rights which he to whom it succeeded would have enjoyed. 8Many Imperial Rescripts exist, by which it is provided that the Treasury can not sue those indebted to its debtors, unless the principals fail to pay; or where it is clearly proved that the notes had been executed for the benefit of the Treasury; or that the debtors are sued under a contract made with the latter. 9When a slave who forms part of the property of the Treasury demands his freedom, the Divine Hadrian stated in a Rescript addressed to Flavius Proculus that the case ought to be argued before those who are accustomed to be present and act in matters in which the Treasury is interested; and that if questions of this kind relating to freedom have been determined in the absence of the Advocate of the Treasury, they shall be restored to their former condition. 10If a treasure should be found on land belonging to the Treasury, or in public or religious places, or in monuments, the Divine Brothers decide that half of it can be claimed by the Treasury. Likewise, if treasure should be found on property belonging to the Emperor, half of it also can be claimed by the Treasury. 11No one is obliged to give notice that he has found a treasure, unless the Treasury is entitled to a part of it. He, however, who finds a treasure in a place belonging to the Treasury, and appropriates that portion to which the latter is entitled, is compelled to surrender it all, and as much more.

4Ulpianus, On the Edict, Book VI. In cases in which the Treasury is interested, those who make agreements with the informers are considered as having confessed, provided they have given them any money, no matter how small an amount.

5The Same, On the Edict, Book XVI. If the curator of the Emperor should sell anything, even though he may promise double or triple the amount in case of eviction, the Treasury shall only be liable for the original sum. 1When anything belonging to the Treasury is sold by one who has the right to dispose of such property, it will immediately belong to the purchaser, as soon as the price has been paid.

6The Same, On the Edict, Book LXIII. When the Treasury succeeds to the private rights of an individual, it makes use of this right for the time which preceded, its succession, but after it has succeeded, it will be entitled to its own privilege. But will a claim immediately begin to belong to it; or will it only do so after an action has been brought against the debtor; or will this be the case after the claim has been entered upon its register? are questions which may be asked. And, indeed, it demands the interest due to the Treasury from that time, although lower interest may have been due after it has sued the debtor, and he has acknowledged the debt. The Rescripts, however, do not agree with reference to the privilege. Still, I think that there will be ground for the privilege, when the claim has been recorded with those of other debtors. 1Any privileges to which the Treasury is entitled are also ordinarily enjoyed by the Emperor and the Empress.

7The Same, On the Edict, Book LIV. If the Treasury raises a controversy with reference to the condition of anyone, the Advocate of the Treasury should be present. Therefore, if a decision is rendered without the presence of the Advocate of the Treasury, the Divine Marcus stated in a Rescript that the proceedings were void, and therefore it was necessary to begin them over again.

8Modestinus, Rules, Book V. The stewards of property sold by the Treasury cannot themselves be sold by the agents of the same, and if they should be, it is stated in rescripts that the sale will be void.

9The Same, Opinions, Book XVII. Lucius Titius appointed his sister his heir to three-fourths of his estate, and his wife, Mævia, and his father-in-law, his heirs to the remainder. His will was invalidated by the death of a posthumous child, who himself died soon afterwards; and hence the entire estate was acquired by the mother of the said posthumous child. The sister of the testator accused Mævia of having poisoned Lucius Titius. Having failed to prove this, she appealed, and in the meantime, the defendant died, but nevertheless, notices were issued. I ask whether you think that the defendant having died, the appeal could be heard on account of the estate which was acquired. Modestinus answered that, although the accusation was annulled by the death of the defendant, still the Treasury had a right to recover the property, if it could be proved that it had been acquired by crime.

10Ad Dig. 49,14,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 58, Note 2.The Same, Prescriptions. I do not think that he violates his duty who, in questions which are doubtful, readily answers against the Treasury.

11Ad Dig. 49,14,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 622, Note 3.Javolenus, Epistles, Book IX. No property can be claimed by the Treasury, except that which remains after the creditors have been satisfied; for that only is considered to belong to anyone which remains after the indebtedness has been paid.

12Callistratus, On Judicial Inquiries, Book VI. Persons condemned to the mines are deprived of their freedom, as they are punished with the blows of a slave. The Divine Pius stated in a Rescript that nothing is acquired by the Treasury through persons of this kind; and therefore he decided that anything which was bequeathed to a man who was afterwards condemned to the mines would not belong to the Treasury, for he says that such persons are rather penal slaves than slaves of the Treasury.

13Paulus, On the Lex Julia et Papia, Book VII. By the Edict of the Divine Trajan, which I have cited, it is decided that if anyone, before information of his case was given to the Treasury, should declare that he had no right to retain the property in his possession, he could surrender half of it to the Treasury, and retain the other half for himself. 1The same Emperor afterwards determined by an Edict that where any woman stated, either publicly or privately, that a legacy had been bequeathed to her which she had no right to receive, and proved that it belonged to the Treasury, even if she did not have possession of the property, she would be entitled to half of what could be recovered by the Prefect of the Treasury. 2It makes no difference what the reason was which interfered with the right of receiving the legacy. 3Property which is concealed should be denounced, and not that which is in possession of the Treasury. 4The reward of a person who has denounced himself is not considered to pass to his heirs; but the Divine Hadrian stated in a Rescript that even if he who denounced himself should die before the property of which he gave notice was seized by the Treasury, the reward should be given to his heir. 5A letter of the same Hadrian is extant which says that if he who could have denounced himself was prevented from doing so by death, and his heir gives the information, he will obtain the reward; provided that it is clear that the deceased had the intention of denouncing himself, but if he dissimulated because he expected to conceal the property, his heir will be entitled to nothing but the ordinary reward. 6The Divine Brothers also stated in a Rescript that the heirs of those to whom an implied trust had been left could denounce themselves by the privilege of Trajan, if he to whom it had been granted was surprised by death, and was not able to denounce himself for want of time. 7When an implied trust was denounced before a will was opened by those who had undertaken to execute it, and then, after the will had been opened, it was again denounced by the beneficiary of the trust, the Divine Antoninus ordered the statement of the latter to be received, on the ground that the exceeding haste of the first informers was unworthy of reward; and as the beneficiary declared that he could not receive it, he appeared rather to make a disclosure with reference to his own right than to denounce another. 8The privilege of Trajan has reference to those who cannot take what is left to them by the will of the deceased. Therefore I cannot denounce what has been left to me by my slave. 9Those who are rejected as unworthy should be barred from claiming a reward of this kind; for instance, those who have proceeded against a will on the ground of its being inofficious, or have alleged that a will is forged, and have attacked its validity until the case was terminated. 10The Divine Hadrian and the Divine Pius stated in Rescripts that anyone who denounced himself by mistake, when he was entitled to receive the entire amount bequeathed to him, was not prejudiced by doing so.

14Gaius, On the Lex Julia et Papia, Book XI. It is said that when, under the terms of the Silanian Decree of the Senate, the Treasury claims the entire estate, neither grants of freedom nor legacies are protected; which is plainly contrary to reason, when, in all other cases where estates are claimed by the Treasury, the rights to grants of freedom and legacies continue to exist unimpaired.

15Junius Mauricianus, On the Lex Julia et Papia, Book III. The Senate decreed that when an informer asks that his denunciation be withdrawn, because he alleges that he was mistaken, the judge must investigate, and ascertain whether there is any good reason for the withdrawal of the notice, and if the informer appears to have been mistaken, he should pardon his imprudence; but if he has been guilty of malice, he must so decide, and the condition of the accuser will be the same as if he had made the denunciation, and then been guilty of treachery. 1Where anyone suborns an informer, he must pay as much into the Treasury as the informer would have obtained, by way of reward, if he had proved his allegations. 2The Divine Hadrian stated in a Rescript that the informer should suffer the same penalty, if, after having been cited, he does not answer the Edict, as he would have been liable to if he had not proved his case. 3The Senate, in the time of Hadrian, decreed that when anyone denounced himself to the Treasury, for the reason that he could not receive a bequest, the entire property should be surrendered to the Treasury, and half of it should be given to the informer, in accordance with the privilege of the Divine Trajan. 4When an informer is ordered by three Edicts, issued by the Prefect of the Treasury, to be present, and is unwilling to appear, judgment shall be rendered in favor of the possessor, but there shall be collected from him who was ordered to be present and did not do so (the possessor having appeared to answer), as much as would have been paid into the Treasury in the matter in which he gave information, if he had proved his allegations. 5The Senate decreed that he who is evicted of an entire estate, or of all legacies, by the Treasury, must deliver to it all his accounts, just as he is obliged to do who has been evicted of a part of an estate, or a legacy. 6Where anyone is proved to have rendered false accounts, the Prefect of the Treasury shall make an investigation, and shall order to be paid into the Treasury a sum of money equal to that which he finds to have been acquired by fraud.

16Ulpianus, On the Lex Julia et Papia, Book XVIII. The Divine Trajan says, “Whoever shall have stated.” We must understand “whoever” to mean either a man or a woman, for although women are forbidden to act as informers, still they are permitted to denounce themselves by the privilege of Trajan. Likewise, it does not make any difference what the age of the informer may be, whether he is of lawful age, or a minor, for minors are permitted to denounce themselves in cases where they are not entitled to receive property.

No translation given.

18Marcianus, On Informers. Women are not permitted to act as informers on account of the weakness of their sex, and this has been provided in the Sacred Constitutions. 1In like manner, illustrious men cannot act as informers. 2Also, persons who have been convicted cannot act as informers, as was stated by the Divine Brothers in a Rescript with reference to a person who had been beaten with rods, and then sentenced to the public works. 3Again, those who have been condemned to the mines are forbidden to act as informers by the Imperial Constitutions, for the reason that, being desperate, they may readily have recourse to denunciation without cause. 4It has, however, been stated in Rescripts that where good reasons existed for giving information before their conviction, they could give it after this had taken place. 5Veterans are also prohibited by the Sacred Constitutions from acting as informers, on account of the honor and the merits of the military profession. 6In like manner, soldiers are forbidden to act as informers on account of the honor of the military service. 7Anyone, however, can give information with reference to a case in which he is interested with, the Treasury; that is to say, he can make a claim, nor will he become infamous on this account even though he may not succeed. 8Again, it was stated by the Divine Severus and Antoninus in Rescripts that those who have been guardians or curators could not act as informers in favor of their wards or their minors. The same rule should be observed with reference to one who transacts business as an agent; and this was also stated by the same Emperors in Rescripts. They also decreed that the interrogation of an agent was not prohibited by any constitution, but that he could not accuse the person whose business he transacted; and they published in a Rescript that a guardian, who either acted as informer, or caused this to be done, should be severely punished. 9But not only he who sold property should not, either himself, or through another who has been substituted, furnish information concerning it, lest otherwise he may be liable to a personal penalty, as it is stated has been decided. 10Papinianus, in the Sixth and Eleventh Books of his Opinions, says finally that public money shall be taken from anyone who is a creditor, and who as such, received it in payment of a debt, if he either knew at the time when he received it that his debtor also owed the Treasury, or if he learned this afterwards, before he had used the money. It is, however, settled that, by all means, he should be deprived of the money, even if he was ignorant of the facts at the time that he used it. And the Emperors afterwards stated in a Rescript that he would be entitled to a direct action after the money had been taken from him, as Marcellus also says in the Seventh Book of the Digest.

19Papinianus, Opinions, Book X. Finally, when the money is recovered, it is established that interest should not be paid, as the property and not the person is involved.

20The Same, Opinions, Book XI. The money having been recovered, an equitable action will be granted against the surety who was released.

21Paulus, Questions, Book III. Titius, who owed me money, the payment of which was secured by pledges, and who was, at the same time, a debtor of the Treasury, paid me what he owed me, and the Treasury afterwards, taking advantage of its right, deprived me of the money. The question arose whether the pledges should be released. Marcellus very properly thinks that if the Treasury deprived me of what I had been paid, the release of the pledges would not take place. I do not think that the distinction of those who hold that it makes a difference whether the identical money Jpaid, or a sum equal to it was recovered, should be admitted.

22Marcianus, On Informers. Property which is in dispute should not be sold by the Manager of the Imperial Revenues, but its sale should be postponed; as the Divine Severus and Antoninus stated in a Rescript. And if a person accused of high treason should die, and his heir is ready to prove the innocence of the deceased, they ordered the sale of the property to be suspended; and, in general they forbade property which is in litigation to be sold by the Manager of the Imperial Revenues. 1Managers of the Imperial Revenues can, however, sell property which has been pledged. If, however, it has been encumbered to another by the right of pledge, the Manager of the Imperial Revenues should not injure the rights of creditors; but if any of the property remains, the Manager of the Imperial Revenues is permitted to dispose of it under the condition of first satisfying the preferred creditors, and if there is any excess remaining, it will be paid into the Treasury; or if the Treasury receives the entire price, he himself must make payment; or if the Manager of the Imperial Revenues has merely sold the property, he shall order the money proved to be due to any private creditor to be paid to him. This the Divine Severus and Antoninus stated in a Rescript. 2The Divine Pius stated in a Rescript that he was not willing to accept the gift of a lawsuit, even though the party offering to give it should say that he intended to leave his entire estate to the Emperor; and also that he would not accept a part of the property as a donation. He added that a person of this kind should be punished for entertaining such a base and malicious design, and that the penalty should be inflicted at the very moment of his appearance, unless it appeared to be too severe. 3As no one is compelled to give information, he who has once done so is not permitted to desist, as the Divine Severus and Antoninus stated in a Rescript; and the same rule applies even though the informer may have given the notice by the direction of another. It was clearly stated in the Rescript that the informer should be heard if he desires to withdraw the denunciation, provided he complains that the person who employed him has desisted.

23Callistratus, On the Rights of the Treasury, Book II. When an informer, who began proceedings alone without mentioning anyone as having directed him to do so, afterwards desists, giving as an excuse that the person who employed him has withdrawn, the Divine Brothers stated in a Rescript that he should be punished.

24Marcianus, On Informers. Not only is the informer punished if he does not prove his allegations, but also the person who directed him to make them, and whom the informer should compel to appear.

25Ulpianus, On Sabinus, Book XIX. It was decreed and established by the Emperor Severus that, under no circumstances, should anyone be required to show when he obtained the property denounced to the Treasury, but that the informer should prove what he alleges.

26The Same, On Sabinus, Book XXXI. When anyone accused of a capital crime emancipates his son, in order that he may accept an estate, it is provided in a Rescript that he is not considered to have done this for the purpose of defrauding creditors, for the reason that the property was not acquired by him.

27The Same, On the Edict, Book XXXIV. When a husband does not prosecute the murderer of his wife, the Divine Severus stated in a Rescript that the dowry should be confiscated to the Treasury, to the extent of the husband’s interest.

28Ad Dig. 49,14,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 246, Note 2.The Same, Disputations, Book III. When anyone binds himself to me, by encumbering any property “which he has, or may have,” and afterwards makes a contract with the Treasury; it should be remembered that the Treasury will have the preference so far as anything subsequently acquired is concerned. This was the opinion of Papinianus, and was also established by the constitutions, for the Treasury anticipates the lien of the pledge.

29The Same, Disputations, Book VIII. The condition of anyone who corrupts his informer is that he is considered as having been defeated, for this rule has been established in fiscal cases. The better opinion is that this penalty renders the person who corrupts his informer individually liable, but it is not transmitted against his heir. For the case in which the money was paid is not at an end; nor is the right of action extinguished, nor is conviction held to have taken place; but it is necessary for evidence to first be offered, and judgment be rendered with reference to the crime; as it is clear that the case which was once decided by means of the corruption of the informer must be reviewed. If the corrupter should be dead, this does not prevent it from being heard again, for, in this instance, not the restitution of the penalty but that of the case itself is involved. 1It is established that he who has asserted that a will is forged can enter upon the estate; but if actions are refused him, there will be ground for the Treasury to interfere; and the obligations which were merged by the acceptance of the estate are not restored. 2For, where a man did not avenge the death of the deceased, after having entered upon his estate, Our Emperor, together with his Father, stated in a Rescript that obligations which had been merged should not be re-established.

30Marcianus, Institutes, Book III. The Managers of the Imperial Revenues should not sell the stewards having charge of property acquired by the Treasury, which was stated by the Emperors Severus and Antoninus in a Rescript, and if they have been manumitted, they shall be returned to slavery.

31The Same, Institutes, Book IV. The Divine Commodus stated in a Rescript that the property of hostages, just like that of captives, should be turned over to the Treasury.

32The Same, Institutes, Book XIV. If, however, they had assumed the use of the Roman toga, and had always acted as Roman citizens, the Divine Brothers stated in a Rescript addressed to the Managers of the Imperial Revenues having charge of estates that their rights were undoubtedly, by the indulgence of the Emperor, distinct from those attaching to the condition of hostages, and therefore that the same rights would be preserved to them if they were appointed heirs by competent Roman citizens.

33Ulpianus, Opinions, Book I. He who has entered upon the estate of a fiscal debtor begins to be subject to the privileges of the Treasury.

34Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus stated in a Rescript to Asclepiades: “You who, having failed to make a defence, preferred to purchase the judgment when you were accused of crime, are with reason ordered to pay fifty solidi to the Treasury, since, leaving out of consideration the examination of your case, you have rendered yourself liable to this penalty; for it must be maintained that those who are involved in matters in which the Treasury is interested, should undertake the defence of their cases in good faith, and not attempt to buy their adversaries, or their judges.”

35Pomponius, Epistles, Book XI. It is stated in Julianus that if a private individual should allege that the estate of Lucius Titius belongs to him, when the same estate is claimed by the Treasury, the question arises whether the right of the Treasury should be first inquired into, and the actions of the other parties be allowed; or whether collection of the claims of the individual creditors should be stopped, in order to prevent the case of the government from being prejudiced. This was set forth in the Decrees of the Senate.

36Papinianus, Opinions, Book III. Where lands have been sold by the Treasury, it was decided that the purchaser is liable for any taxes already due thereon.

37Ad Dig. 49,14,37Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 270, Note 5.The Same, Opinions, Book X. When it was established that a penalty should not be demanded by the Treasury, unless the creditors recover what is owing to them, this means that the privilege relating to the penalty should not be exercised against the creditors, and not that the Treasury should lose the ordinary right enjoyed by private individuals.

38The Same, Opinions, Book XIII. The Treasury was defeated in a case where it was alleged that a will was forged, but, before this question was decided, it was established by the information of another that the estate was without an owner. I held that the crops which had been gathered after the first action should not be separated from it, for, after issue has been joined, the appointed heir is not entitled to the benefit of the Decree of the Senate. 1I gave it as my opinion that he has not performed the part of an informer who contended that the money which another person had in his possession belonged to the administration of his time, although he was not able to prove it, for the reason that he had acted in his own behalf.

39The Same, Opinions, Book XVI. A sentence cannot adjudge property to the Treasury without including the penalty for perpetual exile. 1I gave it as my opinion that he who asked that the risk of a common conviction be divided, because the parties convicted would be solvent if the alienations which they had fraudulently made should be revoked, did not appear to have given information to the Treasury of a case in which money was involved.

40Paulus, Questions, Book XXI. An heir was charged as follows: “I ask you to give Titius the tract of land which I have already requested you to give him.” If Titius is not capable of receiving the land, the heir cannot escape the penalty of an implied trust; for it is not publicly left, as it cannot be learned what it is from reading the will. In like manner, he does not openly make a bequest who does so as follows, “I ask you, my heirs, to faithfully execute what I have requested of you.” And, indeed, in the first instance, the testator apipears to have meditated a greater fraud, as he not only intended to evade the law, but also its interpretation with reference to implied trusts; for although he mentioned a tract of land, it cannot be known with the transfer of which one the heir was charged, as the want of identity of the property renders the devise obscure. 1Where a patron charges himself with a secret trust, in order that he may pay it out of his own share, he is not said to have committed a fraud, because it was taken out of his own property.

41The Same, Opinions, Book XXI. He who purchased from the Treasury property which had no owner is liable to an action which could have been brought against the deceased.

42Valens, Trusts, Book V. Arrianus Severus, Prefect of the Treasury, in a case where the estate of one who had been secretly charged with a trust for the benefit of a person who could not receive it, and the property of the trustee was confiscated, decided that he to whom the trust had been left had still the right to give information, according to the Constitution of the Divine Trajan. 1Moreover, for the reason that some persons display ingratitude towards the privilege granted by the Divine Trajan, and, after they have revealed the existence of a secret trust, compromise with the possessors, and, after having been summoned by the Edict, fail to answer, it was decreed by the Senate that as much should be collected from him who had acted in this manner as the Senate would have obtained through the informer, if he had proved his allegations; and if the fraud of the possessor should be established before the Prefect, as much should be collected from him as he would have been compelled to pay if he had been convicted.

43Ulpianus, Trusts, Book VI. Our Emperor stated in a Rescript that the Treasury would be entitled to a real action where the existence of a secret trust is established.

44Paulus, Sentences, Book I. He is not an informer who, for the purpose of protecting his own case, furnishes information to the Treasury.

45The Same, Sentences, Book V. Alienation of property, either by donation or in any other way, for the purpose of defrauding the Treasury, is revoked. The same rule of law applies, even if it is not claimed, for fraud is equally punished in all cases. 1The estates of those who expire in prison, in chains, or in shackles, whether they die testate or intestate, are not taken away from their heirs. 2The estate of a person who kills himself is not acquired by the Treasury, before it has been proved that he laid violent hands on himself because of some crime which he had committed. The estate of one who killed himself on account of some serious crime which he has perpetrated is confiscated to the Treasury. If, however, he committed the act through weariness of life, or from mortification arising from indebtedness, or because of his inability to suffer illness, his heirs will not be disturbed, but will be allowed to take the succession. 3It has been decided that any grants of freedom made by a debtor for the purpose of defrauding the Treasury will be revoked. When, however, he purchases a slave from another in order to manumit him, this is not forbidden, as then he can grant him his freedom. 4Among the property which can be denounced to the Treasury are written instruments, or notes; but it is settled that such documents as have reference to the rights of private individuals should be returned to those who ask for them. 5No one can be compelled to furnish instruments or public documents against the Treasury. 6The Treasury itself furnishes copies of its documents, under the condition that he who has the right to obtain copies shall not make use of them either against the Treasury, or the State. The recipient is obliged to furnish security not to do this, and if he makes use of them contrary to the prohibition, he will lose his case. 7Whenever any business is transacted with the Treasury, permission must be obtained to introduce its documents, in order for this legally to be done; and they should be certified by the clerk. If they are introduced in any other way, he who produces them will lose his case. 8Whenever the same case is heard a second time before the Treasury, the reading of documents, the production of which had not heretofore been requested, can legally be demanded. 9He who, after having been sued by the Treasury on account of another, pays the debt, can very justly bring suit to recover the property of him for whom he made payment, under which circumstances it is customary for him to be offered special relief. 10When debtors of the Treasury request a delay for the purpose of obtaining money, it has been established that they should not be refused. The allotment of the time is left to the discretion of the court; provided that in the case of large sums, not more than three months, and in the case of small ones, not less than two, shall be granted. A longer period should be requested of the Emperor. 11When the property of the principal debtor is acquired by the Treasury, the sureties will be released, unless his solvency is questionable, and they have become responsible for the remainder of the unpaid indebtedness. 12When more than what is due has been obtained from the sale of the property of a debtor by the Treasury, the restitution of the surplus can be demanded according to justice and reason. 13A lessor can transfer nothing from the land of the Treasury, and he cannot sell cypress or olive trees if he does not substitute others for them; nor can he cut down any other fruit trees; and, after an estimate of the value of the property has been made, he can be sued for fourfold damages. 14Neither land can be rented, nor taxes farmed by minors under twenty-five years of age, to prevent them from availing themselves of the privilege of age as against the Treasury.

46Hermogenianus, Epitomes of Law, Book VI. He will be deprived of the succession as being unworthy, who, having been appointed an heir, as a son, is declared to be supposititious, after the death of the person who is said to have been his father. 1He who knowingly attempts to defraud the Treasury is obliged to return not only the property which he acquired by fraud, but as much more. 2When anything is purchased by a Governor, a Manager of the Imperial Revenue, or anyone else in a province in which he holds office, even though this has been accomplished by the agency of some other person, he shall be punished by the annulment of the contracts, and the appraised value of the property shall be paid into the Treasury. For anyone who has charge of the affairs of a province is even forbidden to build a ship therein. 3The Treasury has always the right of pledge. 4Ad Dig. 49,14,46,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 350, Note 15.Anyone who pleads a set off against the Treasury must show within two months what is due to him. 5It has frequently been decided that what the Treasury owes can be set off against what is due from debtors to it, except in the case of tribute and taxes and payments for property purchased from the Treasury, as well as what is due on account of subsistence. 6He who has been accused of an offence can administer his property, and his debtor can pay him in good faith. 7Agents holding any official employment and Managers of the Imperial Revenues are forbidden to sell property without first consulting the Emperor, and if they do so, the sale will be invalid. 8A slave of the Emperor, who enters upon an estate by the order of a Manager of the Imperial Revenues, acquires the estate for the benefit of the Emperor, if the latter consents. 9Where several persons have defrauded the Treasury, it does not follow that each of them is liable in full, as in the action of theft; but all will owe a penalty of fourfold the amount, each in proportion to his individual share. It is clear that those who are solvent will be liable for those who are not.

47Paulus, Decrees, Book I. A woman named Moschis, who was indebted to the Treasury on account of a lease for the farming of taxes, left several heirs, from whom, after the estate had been accepted, Faria Senilla and others, purchased certain lands. When suit was brought against them for a balance due from Moschis, they having alleged that the heirs of the latter were solvent, and that many other persons had bought property from them, the Emperor considered it just that recourse should first be had to the heirs, and that all the possessors should be sued for the balance. And this was his decision. 1Æmilius Ptolemy leased land from the Treasury, and gradually sublet it to several persons for a higher rent than he himself had agreed to pay. Suit was brought against him by the Managers of the Imperial Revenues for all that he had collected. This seemed to the Treasury to be both unjust and useless, as he had leased the land to the others at his own risk, and therefore it was decided that he could be sued only for the amount for which he, as lessor, had rendered himself liable.

48The Same, Decrees, Book II. Statius Florus, in his written will, had secretly charged his heir Pompey to give a tract of land and a certain sum of money to someone who had no right to receive it, and took the precaution of exacting a bond from Pompey obligating him to surrender what he had left to him as a preferred legacy. Afterwards the said Florus, having appointed the same Pompey and one Faustinus his heirs by a second will, did not bequeath any preferred legacies to Pompey. The person who had no right to receive the bequest informed against himself. The Emperors, having been consulted by the Managers of the Imperial Revenues, stated in a Rescript that if it could not be proved that the testator had changed his mind, the trust must be executed. And Pompey, having had judgment rendered against him in consequence, requested that the burden be borne by the entire estate, for the reason that he did not receive the preferred legacies, and it could not be held that the testator had only persevered in a part of his original intention. It was decided, in general, that the first will no longer existed, and if a preferred legacy had been left by the testator in his first will, it could not be demanded under the second, unless the second directed that this should be done. It was also decided that, because the heir could not prove that preferred legacies had been left to him, that he was obliged only to carry out the trust under the bond which he had executed. 1A mother, who had been appointed an heir, was requested to transfer the estate to Cornelius Felix, after her death. The appointed heir, having been condemned by the Treasury, and all her property seized, Felix alleged that he was not liable to the penalty, for this had been already decided. But as the day of the trust had not yet arrived, for the reason that he himself might die first, or that the mother might acquire other property, his application was in the meantime rejected.

49The Same, On Implied Trusts. He to whom a secret trust has been left, having given information that he had no right to receive it, the question arose whether, according to the privilege of the Divine Trajan, he was entitled to three-fourths of the amount of the trust, or only half of it. A Rescript of the Emperor Antoninus on this point is extant as follows: “The Emperor Antoninus to Julius Rufus. If he who has secretly pledged his faith to deliver an estate to someone not legally qualified to receive it should deliver it after having deducted the fourth part of the same, he cannot retain anything; for the fourth belonging to the heir himself will be taken from him and transferred to the Treasury. Wherefore, the person who gave the information can only receive the half of three-fourths.”

50The Same, Decrees, Book III. Valerius Patronus, Imperial Procurator, adjudged to Flavius Stalticius certain lands at a fixed price. The property was afterwards offered at an auction, and the same Stalticius purchased it, and was placed in full possession of the property. A question arose with reference to the crops gathered in the meantime. Patronus asserted that they belonged to the Treasury. And if they were gathered in the interim between the first sale at auction and the following adjudication, it is evident that they would belong to the vendor; for it is ordinarily said that when the adjudication is made within a certain time, then a better condition is secured. We should not experience any difficulty, for the reason that the person to whom the land had first been adjudged was the same. But as the two adjudications had been made before the vintage, this opinion was not adhered to, and it was decided that the crops belonged to the purchaser. Papinianus and Messius introduced a new decision on the ground that as the lands were leased to a tenant, it was unjust that he should be deprived of all the crops; but they held that he had a right to gather them, and that the purchaser should receive the rent for that year, for fear that the Treasury could be held liable by the tenant, as he had not been permitted the enjoyment of his lease, just as if this had been agreed upon at the time of the sale. It was also decided, in accordance with their opinion, that if the land had been cultivated by the owner, the purchaser would be entitled to all the crops, but as it was leased by the tenant, the purchaser should receive the rent. Having been asked by Tryphoninus what opinion they would hold with reference to certain dried fruits which had been formerly gathered on the land, they answered that if, after the decision had been rendered, the day for the payment of the rent had not yet arrived, the purchaser would also be entitled to them.