Ulpianus, On the Edict, Book XXIV. This action is very necessary, it is employed every day; and it was introduced principally on account of suits for the recovery of property.

Ulpianus, On the Edict, Book XXIV. In this proceeding the plaintiff ought to know everything, and to state all the facts relating to the property which is the subject of the action. 1A party litigant who institutes proceedings for the production of property does not, in fact, state that he is the owner, nor is he obliged to prove this, as there are many causes for bringing an action of this kind. 2Moreover, it should be noted in this action that where the defendant is contumacious, judgment based on the oath of the plaintiff may be rendered against him, the amount to be decided by the judge. 3This action is a personal one, and he is entitled to it who is about to bring a suit in rem, no matter what kind of a suit it may be, whether the Servian Action on a pledge, or an hypothecary action, both of which can be brought by creditors. 4Pomponius says, however, that where a man is about to bring suit for an usufruct he is entitled to an action for production. 5Moreover, where anyone who is about to apply for an interdict asks that the property be produced, he shall be heard. 6Moreover, if I desire to select a slave or any other property, the right to choose which has been bequeathed to me; it is established that I can bring an action for production, and when the property is produced, that I can bring suit for recovery of the same. 7Where anyone wishes to institute proceedings by means of a noxal action, an action for the production of the property is necessary; for, in fact, where the owner of the slave is ready to make a defence, and the plaintiff cannot designate the slave unless he is present, either because he does not recollect him, or does not have his name; is it not just that the entire body of slaves should be produced before him, in order that he may pick out the one who committed the offence? Therefore, this should be done, where proper cause is shown, in order that the party with reference to whom the action is brought may be designated after a survey of the slaves is taken. 8Where anyone besides the heir wishes the will, or the codicils, or anything else relating to the will to be produced, it should be held that this cannot be done by means of this action, since the interdicts relating to such matters will be sufficient for the party; and this was the opinion of Pomponius. 9Ad Dig. 10,4,3,9ROHGE, Bd. 11 (1874), Nr. 121, S. 395: Klage des Inhabers des Umlaufexemplars (Secunda) gegen den Verwahrer des Acceptexemplars (Prima) des Wechsels auf Herausgabe. Begründung der Klage.It must be remembered, however, that not only those persons whom we have mentioned are entitled to the action for production, but also anyone who has an interest in having the production made; hence the judge ought to determine in the first place whether the party has an interest, and not whether he is the owner of the property in question; and he should then order it to be produced, or refuse to do so because the party has no interest in the matter. 10Julianus further states that if I have no right of action for recovery, I can still institute proceedings for production, because it is to my interest that this should be done; as, for instance, where a slave is left to me that Titius may choose, for I can bring an action for production, since I have an interest in its being done in order that Titius may make his selection; and I then have an action for recovery, even though I have no right to select a slave that may be produced. 11Where an action for the production of property is brought against me, I cannot bring one for the same purpose merely because I have been sued in the said action; even though it may be held that I am interested, as I am liable for the restoration of the slave. This, however, is not sufficient, for, otherwise, where anyone had managed to fraudulently relinquish possession, he could bring an action for production, even when he did not intend to bring one for recovery, or to proceed by means of an interdict; and either a thief or a robber could do this; which is by no means true. Therefore Neratius very properly states that the judge, in an application for production, must investigate carefully whether the party has a just and probable cause of action by reason of which he desires the property to be produced. 12Ad Dig. 10,4,3,12ROHGE, Bd. 11 (1874), Nr. 121, S. 395: Klage des Inhabers des Umlaufexemplars (Secunda) gegen den Verwahrer des Acceptexemplars (Prima) des Wechsels auf Herausgabe. Begründung der Klage.Pomponius states that several parties may legally bring an action for the production of the identical slave; for instance, where a slave belongs to the first one, the usufruct of the same to the second, and the third contends that he has possession of him, and the fourth alleges that he was pledged to him; hence, all of them are entitled to an action for his production, because all of them have an interest in having the said slave produced. 13The same author adds that the judge, by reason of the authority vested in him on account of this action, can also examine any exceptions which the possessor may interpose, and if any of them shows clearly that the plaintiff is barred, then he who is in possession should be discharged; but if the exception should be obscure, or a more important matter be involved, this should be deferred until the trial takes place, and the property should be ordered to be produced. There are certain exceptions, however, which the judge who is to preside in the action for production should by all means himself determine; for instance, those based upon an informal agreement, on malicious fraud, on an oath, or on a judgment formerly rendered. 14Justice sometimes demands the production of the property so that, although an action for this purpose cannot be brought, an action in factum may be granted; a matter which Julianus refers to. He says a slave who belonged to my wife kept my accounts, you are in possession of said accounts, and I desire them to be produced. He says further if the said accounts are written upon my paper, there is ground for this action, because I can bring suit for said accounts, since if the paper is mine what is written thereon is mine also; but if the paper is not mine, as I cannot bring suit to recover it, I cannot institute proceedings for its production; hence an action in factum will lie in my favor. 15It must be remembered that by this action proceedings can be instituted against the possessor, and not only against him who has civil possession, but also against him who has possession naturally. Finally, it is established that a creditor who has received property in pledge can be compelled to produce the same:

Ulpianus, On the Edict, Book XXIV. Celsus states that if anyone who agreed to remove merchandise places it in a warehouse, an action for production based on his contract can be brought against him; and, moreover, if the party making the agreement dies and leaves an heir, the action can be brought against the latter. Where, however, there is no heir, the action can be brought against the keeper of the warehouse; for, if the property is not in the possession of anyone, he says it is evident that either the keeper of the warehouse has it in his possession, or, at all events, it is certain that he can produce it. He also asks, “How can a party be in possession of property who agreed to remove it? Is this because he had a lien on it?” This example shows that even those persons who have the power to produce property are liable to an action for its production. 1Julianus, however, says that in accordance with this rule a person is liable to an action for the production who is in possession for the purpose of preserving property or legacies, as well as he who holds property by reason of an usufruct, even though, in this instance, he by no means has possession of it. Hence Julianus asks to what extent shall such parties produce said property? He answered that the former must do so to enable the plaintiff to have possession, but the party against whom the suit was brought must be in possession in order to preserve the property; and that he who has the usufruct must do so in order that the plaintiff may possess the property, but that he against whom the action is brought may use and enjoy the same. 2Moreover, Julianus says that a purchaser who does not return partially used materials, can be compelled to produce them; the damages being estimated according to the amount that I am willing to swear to; but he adds in the same place: “If the purchaser has possession, or has committed fraud in order to avoid having possession.” 3Celsus also says that if you have piled manure upon my unoccupied land, you can, by an action for production, obtain permission to remove it, on condition, however, that you remove the whole of it, otherwise you cannot do this. 4Moreover, if a boat should be carried by the force of a river upon the field of another party, Neratius holds that the latter can be sued for production. Wherefore, he asks whether the plaintiff must give security to the owner of the land merely with reference to future damage, or for past damage also; and he replies that it must also be given for the damage already committed. 5Where, however, if anything from a fallen building is thrown upon your land, or upon your house, you can be compelled to produce it, even though it may not be in your possession. 6Again, where anyone has not the power to deliver anything, even though he has possession of it, he will not be liable to an action for its production; as for instance, where a slave is a fugitive it is evident that the party will only be liable to give security to produce said slave if at any time he should come into his power. But where he has not taken to flight, but you permit him to live where he wishes, the same rule applies; or if you have sent him on a journey, or you employ him upon your land, you will only be compelled to furnish security.

Ulpianus, On the Edict, Book XXIV. By the term tignum we understand in the Law of the Twelve Tables every description of material; as is very properly held by certain authorities. 1If you attach my wheel to a vehicle of yours, you can be compelled to produce it—and this was stated by Pomponius—although, strictly speaking, it is not legally in your possession. 2The same rule applies where you attach my plank to your chest or ship, or my handle to your cup, or my ornaments to your bowl, or use my purple for your clothing, or join to your statue an arm which is mine. 3Moreover, a municipality can be sued for production because it has the power of delivery; for it has been settled that it can hold possession and acquire by usucaption. The same rule must be held to apply to societies and other corporate bodies. 4Where the party is not in possession at the time issue is joined, but comes into possession before the decree has been rendered; we think it should be held that judgment should be pronounced against him unless he restores the property. 5Where anyone has possession at the time that issue is joined, and afterwards ceases to have possession without fraudulent intent, he should be discharged; even though, (as Pomponius says) he is to blame because he did not at once make restitution, but permitted issue to be joined against him. 6The same author states that where a party in possession at the time when issue was joined afterwards ceased to have possession, and then came into possession again, either by reason of the same title or of another one; judgment must be rendered against him, unless he delivers up the property. 7Ad Dig. 10,4,7,7ROHGE, Bd. 11 (1874), Nr. 121, S. 395: Klage des Inhabers des Umlaufexemplars (Secunda) gegen den Verwahrer des Acceptexemplars (Prima) des Wechsels auf Herausgabe. Begründung der Klage.Pomponius not improperly adds that the party who brings suit for production must have an interest at both times in the property being delivered to him; that is to say, at the time when issue is joined and when the decision is rendered. This opinion is also held by Labeo.

Ulpianus, On the Edict, Book XXIV. Julianus says that if anyone should kill a slave who is in his possession, or should transfer the possession to another, or should spoil property in such a way that it cannot be held; he will be liable to an action for production of the same, because he acted fraudulently to avoid being in possession. Hence, if he spills or destroys wine, oil, or anything else, he will be liable to this action. 1Acorns from your tree fall upon my land and I turn cattle thereon to pasture them. To what action am I liable? Pomponius states that an action for production will lie if I turned the cattle out with fraudulent design so that they might feed upon the acorns; for even if the acorns were still there, and I should not permit you to remove them, I will be liable to an action for production, just as if anyone were not permitted to remove materials which had been placed upon my land; and we accept the opinion of Pomponius, whether the acorns are still there, or they have been consumed. If they are still there, I will be entitled to an interdict to permit me to gather acorns, so that I may have the power to gather every third day, if I furnish security against threatened injury. 2Where anyone has caused property to come into the possession of another, he is held to have acted fraudulently in order to avoid being in possession; provided he committed the act with malicious intent. 3Where anyone produces property which is in a worse condition than it was previously, Sabinus says that he is still liable to an action for production. This is certainly true where the property was fraudulently changed into another form; as, for instance, where an ingot of metal is made out of a cup; for even though he produces the ingot, he will be liable to the action for production, as the form having been changed, he almost destroys the substance of the property. 4Marcellus states that if ten aurei are bequeathed to you under a certain condition, and the usufruct of the same to me absolutely, and then the heir, while the condition is still pending, and without requiring security, pays the said ten aurei to me, the usufructuary; he will be liable to an action for production, as having acted fraudulently to avoid being in possession. The fraud consists in his neglecting to exact security from the usufructuary, and the result was that your legacy was lost, since you now are not able to bring an action to recover the money. The action for production, however, could only be available if the condition on which the legacy depends takes place. You might, however, have protected yourself by means of a stipulation for the payment of the legacy, and, if you did so, you will have no need of the action for production. If, however, the heir, not being aware that a legacy had been bequeathed to you, did not exact security from the usufructuary, Marcellus says that an action for production will not lie, of course because there was no fraud; but the legatee will be entitled to relief by means of an action in factum against the usufructuary. 5Ad Dig. 10,4,9,5ROHGE, Bd. 11 (1874), Nr. 121, S. 395: Klage des Inhabers des Umlaufexemplars (Secunda) gegen den Verwahrer des Acceptexemplars (Prima) des Wechsels auf Herausgabe. Begründung der Klage.To “produce,” so far as this section is concerned, is to exhibit something in the same condition in which it was when issue was joined, so that the party, having full power to examine the property, can proceed with the action which he intended to bring without the property which he claimed being in any respect injured; even though the suit was brought, not for the purpose of restitution, but for production. 6Hence, if when the party produces the property it has become his by usucaption after issue has been joined, he cannot be considered to have produced it at all, because the plaintiff has lost his case, and therefore the defendant must not be discharged; unless he is ready to answer the claim as referred back to the original day, so that the profit may be estimated in accordance with law. 7For the reason that in this action the plaintiff obtains everything depending upon the property which is the object of the suit, Sabinus holds that the offspring of a female slave should likewise be delivered, whether she was pregnant at the time, or conceived subsequently; and this opinion is also approved by Pomponius. 8In addition to this, any advantages which may have been lost on account of the property not having been produced, or because it was produced too late, should also be considered by the judge; hence Neratius says that the advantage to the plaintiff, and not the actual value of the property, should be estimated, and this advantage, he says, is sometimes of less value than that of the property itself.

Ulpianus, On the Edict, Book XXIV. But where an estate is lost on account of a slave not being produced, it will be perfectly just for the judge, in the assessment of damages, to take into consideration the injury done to the estate. 1Let us consider where the property must be produced, and at whose expense this shall be done. Labeo says that it should be produced where it was at the time when issue was joined, but it must be transported or led to the place where the proceedings were instituted, at the risk and expense of the plaintiff. He says that it is evident that the party in possession of a slave must furnish him with food and clothing, and take care of him. I hold that sometimes the plaintiff must do this also; where, for example, a slave was accustomed to support himself either by manual labor, or by some trade, and is now compelled to be idle. In like manner, where the slave who is to be produced is placed in charge of the Court, the party who desired him to be produced must be responsible for his food, if his possessor was not accustomed to provide him with it; for if he had been accustomed to do so, then he can not refuse to pay for his maintenance. Sometimes the party in possession is required to produce him at his own expense; as, for instance, where he has placed property in some secret place so that the production of the same might be more inconvenient for the plaintiff; for, in this instance, he must produce the property at his own expense and risk in the place where the proceedings have been instituted, so that his bad faith may not benefit him. 2Where anyone is sued with reference to several things, and was in possession of all of them at the time when issue was joined, even though he may afterwards have relinquished possession of some of them without fraudulent intent; judgment must be given against him, unless he produces all that he can.

Ulpianus, On the Edict, Book XXIV. The Prætor grants an action in factum against a surveyor of land, as we must not be deceived by him, since we are interested in obtaining a correct report of measurements; where, for example, a controversy has arisen with respect to boundaries, or the purchaser or the vendor desires to ascertain the size of the tract of land to be sold. He grants this action for the reason that the ancient authorities did not consider the contract made with a person of this kind to be one of leasing and hiring, but rather that his services were donated as a favor, and hence what was given to him by way of remuneration was designated honorary; but if an action is brought for leasing and hiring, it must be said that it is brought to no purpose. 1This action only requires the existence of positive malice. For it was held that the surveyor will be thoroughly restrained if he can only be sued on the ground of positive malice, since he is not civilly liable. Therefore, if he has displayed a want of skill, he who employed him has only himself to blame, but if he was guilty of negligence, he will be equally secure; and it is evident that gross negligence resembles malice. But where he receives compensation, he will, according to the terms of the Edict, be responsible for every kind of negligence; for undoubtedly the Prætor knows that parties of this kind work for pay. 2He only is liable to this action who makes a report; but we must understand that he makes a report who does so through another;

Ulpianus, On the Edict, Book XXIV. Where I direct two persons to make a survey and both of them are guilty of malice, I can bring suit against them severally for the entire amount; but where one of them, after having been sued, satisfies my claim, an action against the other one must be refused. 1This action can be brought by anyone whose interest it was that a report of false measurement should not be made; that is to say, either by the purchaser or by the vendor, who has been injured by the report. 2Ad Dig. 11,6,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 470, Note 1.Pomponius, however, says that if on account of the report, the purchaser pays the vendor too much, a suit cannot be brought by him against the surveyor, because he has a right of action to recover what has been paid in excess; for it is not the interest of the purchaser to do this, since he has the right of action for recovery, unless the vendor is insolvent; for then the surveyor will be liable. 3Where the vendor, having been deceived by the surveyor, conveys a larger amount of land; Pomponius says, that in compliance with the same rule, no action against the surveyor will lie, because the vendor is entitled to an action on sale against the purchaser, unless the purchaser is not solvent. 4Pomponius also states that where a surveyor is employed on account of a trial, and he defrauds me in his report, he will be liable if, on this account, I obtain less by the judgment. It is clear that, if he was appointed by the court and maliciously makes a report against me, he doubts whether I have a right to hold him liable, nevertheless, he rather thinks I have. 5Pomponius says that this action should be granted to the heir and to other persons of the same kind, but that it should be refused against the heir and persons of that description. 6He says that the action is noxal rather than De peculio when brought with reference to a slave, although a civil action De peculio may be available.

Ulpianus, On the Edict, Book XXIV. Where the surveyor does not make a false report of the measurement, but delays the report, and the result is that the vendor is released after promising to convey the property within a specified time, this action cannot be brought; and Pomponius says that an equitable action should not be granted, and therefore recourse must be had to an action based on fraud. 1If a false report is made, and the purchaser sues the vendor on his contract, he can also sue the surveyor, but if he had no interest in doing this, judgment will not be rendered against the surveyor. If he does not sue the vendor for the entire amount which is lacking, but for a smaller amount; Pomponius says, and very properly, that suit can be brought against the surveyor for the remainder. 2The Prætor extended the scope of this action still further; for where there is a false statement made of the measure of anything else, this action is available; hence, where a party deceives his employer in the measurement of a building or in that of grain or wine;

Ulpianus, On the Edict, Book XXIV. Or where the dimensions of anything else is falsely stated, he will be liable. 1This action will be granted where the surveyor makes a false measurement by means of instruments. 2Pomponius also states that anyone is entitled to this action against someone who is not a surveyor but was guilty of deceit in measurement. 3In the same manner the action should be granted against an architect who has been guilty of deceit; for the Divine Severus decreed that action should be granted against an architect or a contractor. 4I, myself, think that an action should be granted also against an accountant who designedly makes a false calculation.

Ulpianus, On the Edict, Book XXIV. In the time of the Divine Brothers a husband appeared who stated that his wife was pregnant, but she denied it, and the Emperors having been consulted on the subject, addressed a Rescript to Valerius Priscianus, the Urban Prætor, in the following terms. “Rutilius Severus seems to ask for something extraordinary in applying for a custodian for his wife, who is divorced from him, and who asserts that she is not pregnant. Therefore, no one will be surprised if We also suggest a new plan and a remedy. If the husband persists in his demand, it will be most convenient for the house of a respectable woman to be chosen into which Domitia may go, and that three midwives, experienced in their profession and trustworthy, after having been selected by you, shall examine her. And if all of them, or only two, announce that she seems to be pregnant, then the woman must be persuaded to receive a custodian, just as if she herself had requested it. If she does not bring forth a child, her husband will know that he will incur dishonor, and that his reputation will be involved, and he will not unreasonably be held to have contrived this in order to injure his wife. If, however, all of said women, or the majority of them, declare that the woman is not pregnant, there will be no reason for the appointment of a custodian.” 1It is perfectly evident from this rescript that the Decrees of the Senate relating to the recognition of children will not apply, if the woman pretended that she was pregnant, or even denied that this was the case. Nor is this unreasonable, for the child is a part of the woman, or of her entrails, before it is born. After it is born, however, it is clear that the husband can, in accordance with his rights, by means of an interdict, demand that the child shall be produced in his presence, or that he shall be permitted by an extraordinary proceeding to remove it. Therefore the Emperor comes to his relief when it is necessary. 2In accordance with this rescript, a woman may be summoned before the Prætor and, having been interrogated as to whether she believes that she is pregnant, can be compelled to answer. 3What must be done in case she should not answer, or should not appear before the Prætor? Shall we apply the penalty fixed by the Decree of the Senate, namely, that the husband shall have the right not to acknowledge the child? But suppose that the husband is not content with this, and that he should prefer to be a father rather than be deprived of his son? Then the woman shall be compelled by the authority of the Prætor to come into court, and if she does come, to answer; and if she refuses, her property shall be taken in execution, and sold, or she shall be punished by a fine. 4But what if, having been interrogated, she should say that she is pregnant? The course prescribed by the Decree of the Senate must then be followed. If, however, she should deny that she is pregnant, then, in accordance with this rescript, the Prætor must summon midwives. 5It should be noted that neither the husband nor the wife is permitted to summon midwives, but they must all be summoned by the Prætor. 6The Prætor also must select the house of the respectable matron to which the woman must go, in order that she may be examined. 7What must be done if the woman will not permit herself to be examined, or refuses to go to the house? Under these circumstances, the authority of the Prætor must also be invoked. 8If all, or a majority of the midwives, declare that the woman is not pregnant, can she bring an action on the ground of injury committed? I think that the better opinion is, that she can bring such an action, provided, however, that her husband, by taking this course, desired to cause her injury. But if he had no intention to injure her, but, indeed, actually believed that she was pregnant, having been influenced by an extreme desire to have children, or because she herself induced him to think so, having during marriage pretended that this was the case, it will be perfectly just for the husband to be excused. 9Moreover, it should be remembered that no time has been fixed by the rescript, although in the Decrees of the Senate relating to the recognition of children, the term of thirty days was established for the woman to announce her pregnancy. What then should be done? Shall we say that the husband can always summon his wife before the Prætor or shall we appoint thirty days for him to do so? I think that, where proper cause is shown, the Prætor should also hear the husband after thirty days have elapsed. 10With reference to the examination of a pregnant woman, and the precautions to be taken at the time of delivery, the Prætor says: “If a woman, after the death of her husband, declares that she is pregnant, she must take care to notify the parties interested or their agent, twice within the month subsequent to his death, so that they may send persons to examine her, if they wish to do so. Free women to the number of five shall be sent, and all of them shall make the examination at one time, but none, while they are making the examination, shall touch the belly of the woman without her consent. The woman shall be delivered in the house of a respectable matron, whom I will appoint. Thirty days before she expects to be confined, she shall notify the parties interested or their agents to send persons to be present at her delivery, if they should desire to do so. There shall only be one entrance to the room where the woman is to be delivered and if there are more, they shall be closed by means of boards. Before the door of this room, three freemen and three freewomen, together with two companions, shall keep watch. Every time that the said woman enters this room, or any other, or goes to the bath, the custodians can previously make an examination of it, if they wish to do so, and also search any parties who may enter therein. The custodians who are placed in front of the room may search all persons who enter it or the house, if they so desire. When the woman begins to bring forth her child, she must notify all the parties interested, or their agents, in order that they may send persons to be present at her delivery. Freewomen to the number of five shall be sent, so that in addition to two midwives there shall not be present in the said room more than ten freewomen, nor more than six female slaves. All those who are to be present in the room shall be searched, for fear one of them may be pregnant. There shall not be less than three lights in said room, for the reason that darkness is better adapted for the substitution of a child. When the child is born, it shall be shown to the parties interested, or to their agents, if they desire to inspect it. It shall be brought up by whomever its father shall designate. If the father gives no directions in this respect, or the person by whom he desires it to be brought up will not take charge of it, this shall be done by someone appointed by me, after proper cause is shown. The person by whom the child is to be reared shall produce it, after it has reached the age of three months, twice every month until it is six months old; and then once a month, and from the time it is six months old until it has attained the age of a year, it shall be produced every other month; and after it is a year old, until it can speak, he shall exhibit it once every six months, wherever he wishes to do so. If the parties interested are not permitted to examine the woman, and to watch her, or to be present at her delivery, and anything is done to prevent what is set forth above, I will not grant permission for the possession of the child after I have taken cognizance of the case, nor will I do so where the child is not allowed to be examined, as is hereinbefore provided. Where it seems to me that a good reason exists, I will not grant those actions which I promise to those to whom the possession of property has been given in accordance with my Edict.” 11Although the Edict of the Prætor is perfectly clear, still its interpretation should not be neglected. 12Hence, the woman should give notice to the parties interested, that is to say, to those whose interest it is that she should have no children, or to those who are entitled to the entire estate or a part of the same, whether as heirs at law, or under a will. 13If, however, a slave has been appointed heir, and there are no children; Aristo states that in this case it is in the power of the Prætor to permit him to take not all, but some of the precautions with reference to the delivery. I think that this opinion is correct. For it is to the interest of the public that there should be no substitution of a child, in order that the honor of persons of rank, as well as that of families, may be preserved. Therefore, where a slave of this kind has been appointed with the expectation of the succession, he should be heard; no matter what his standing is, since he is acting both in the public interest and his own. 14Moreover, those also must be notified who are next in the line of succession; as, for instance, the heir appointed in the first degree, but not one who has been substituted; and if the head of the family died intestate, those should be notified who hold the first place in the line of succession. Where, however, there are several who have the right to succeed at the same time, all of them should be notified. 15Again, where the Prætor says that he will not grant possession after having taken cognizance of the case, or that he will refuse certain actions, this has reference to a case where, through ignorance, some provision has been neglected of those which the Prætor wished to be observed; but this does not prejudice the rights of the child. For what kind of a rule would it be if one of the trifling formalities which the Prætor declares must be observed should not be carried out, and the possession of the property be refused to the child? The custom of the neighborhood must be followed, and in accordance with it the woman must be examined, and the delivery and the child watched.

The Same, On the Edict, Book XXIV. And, on the other hand, anyone who thinks that he is a necessary heir cannot become a voluntary heir.