The Same, Opinions, Book I. The Governor of a province must suppress illegal exactions, including such as are committed with violence, as well as sales and obligations extorted by fear, and those where the money is not paid down. He must also provide against anyone unjustly obtaining profit, or suffering loss. 1The truth is not changed by error, and hence the Governor of a province must follow the course which is suitable by taking into consideration facts which have been proved. 2It is a matter affecting the honor of the Governor of a province to provide that the more humble shall not be injured by the more powerful, and do not persecute the defenders of the innocent by means of false accusations. 3He shall restrain unauthorized parties who, under the pretext of assisting officials, proceed to disturb the people; and take measures to punish them when detected. He must also prevent illegal exactions from being made under the pretence of collecting tribute. 4The Governor of a province must make it his especial care that no one shall be prevented from transacting any lawful business, and that nothing prohibited shall be done, and that no punishment shall be inflicted upon the innocent. 5The Governor of a province must see that persons of limited resources are not treated unjustly by having their only lamp or small supply of furniture taken from them for the use of others, under the pretext of the arrival of officers or soldiers. 6The Government of a province must provide that no partiality shall be shown to soldiers—that is which does not benefit all of them—by certain ones claiming undue advantage for themselves. 7The event of death should not be imputed to a physician, but it is also a fact that he is responsible for anything caused by his lack of skill; for a wrong committed by a person who gives bad advice in a dangerous emergency should not be imputed to human frailty and be considered blameless. 8Those who govern entire provinces have the right to inflict the death penalty, and authority is conferred upon them to condemn delinquents to the mines. 9The Governor of a province who, after having imposed a fine, ascertains that it cannot be collected from the property of the parties whom he has directed to pay it, must relieve them from the necessity of payment, and repress the unlawful avarice of those who demand it. Where, on account of poverty a fine has been remitted by the provincial authorities, it should not be exacted.

The Same, Opinions, Book I. As the Prætor can delegate his entire jurisdiction to one person, he can also delegate it to several, or he can do this with reference to a particular case; and especially where he has a good reason, for example, because he appeared as the advocate of one of the parties before becoming a magistrate.

The Same, Opinions, Book I. A letter by which a party bound himself that a certain person was his co-heir, confers no right of action against parties in possession of the estate. 1If an agreement is made between a debtor and the party who purchased a tract of land held in pledge by the creditor, under the pretext that this was done on behalf of the debtor, so that the profits already obtained might be set off against the debt, and that the balance should be settled, and the tract returned to the debtor; then the heir must carry out the contract made by the deceased. 2An agreement which provides, “But where the creditor has paid any sums for taxes on real property held by him in pledge, he can recover the same from the debtor, and the debtor must pay any taxes due upon the same tract of land”; this is a legal contract and therefore must be observed. 3Where a party was about to bring suit to set aside an inofficious will made by his father, and an agreement was entered into that he should receive a certain sum of money as long as the heir lived, an attempt was made to have this agreement construed as a perpetual obligation; but it was stated in a rescript that a claim of this kind could not be admitted on any ground of law or equity.

The Same, Opinions, Book I. A party brought an action against his guardians with reference to his share of the estate administered under their guardianship, and compromised the case. If, having become an heir of his brother, he brought suit against the same guardians as his brothers’ representative, he will not be barred by their pleading the compromise which was effected. 1Where a compromise of any description is made, it is considered to be restricted to those matters concerning which the parties have agreed among themselves. 2Where a party, being ignorant of all the existing conditions of the case through the deceit of his co-heir, executed an instrument of compromise without the Aquilian stipulation, he is held rather to have been deceived than to have made an agreement. 3Where a son who is not yet informed that he has a right to bring an action to set aside the will of his father, compromises other matters with his adversaries by an agreement; the agreement which he entered into will only prejudice him with reference to such things as it is proved that they were intended to do, even though one party who made the compromise was over twenty-five years of age; for, as far as relates to anything ascertained afterwards for which he was entitled to bring an action, it would be unjust to hold that the transaction extinguished rights which had not yet been considered.

The Same, Opinions, Book I. Where human remains are deposited in a tomb which is said to be unfinished, this does not offer any hindrance to its completion. 1Where, however, the place has already been made religious, the pontiffs should determine to what extent the desire of repairing the structure may be indulged without violating the privileges of religion.

The Same, Opinions, Book I. Where anyone, through mistake, makes provision for payment to a creditor of a larger amount than his share of the estate warrants, he has a right of action for recovery on the ground of a promise made for payment of what was not due.

The Same, Opinions, Book I. A patron, who is also the guardian of his freedman, should carry out his contracts, and if he in any way defrauds the creditors of the ward who is his freedman, the law permits his appointment to be revoked.

Ad Dig. 26,9,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 174, Note 9.Ulpianus, Opinions, Book I. Where a guardian or a curator lends the money of the minor whose affairs he is administering, and he himself makes the stipulation, or purchases land in his own name, an equitable action will be granted to the party to whom the money belongs, for its recovery, or for the collection of the loan.

The Same, Opinions, Book I. Freedmen should not be forbidden by their patrons to transact lawful business.

Ulpianus, Opinions, Book I. The filial affection due to parents should also be manifested by soldiers. Wherefore, if a son, who is a soldier, commits any improper act towards his father, he must be punished in proportion to his offence. 1Filial affection between a mother and a son who have been liberated from slavery together should be maintained in accordance with natural law. 2If a son, by the use of abusive language, should insult his father or his mother, whom it is his duty to respect, or should lay impious hands upon either of them, the Prefect of the City shall punish the crime, which affects public order, in proportion to its gravity. 3A son should be considered as unworthy to be a soldier, who calls his father and his mother, by whom he acknowledges that he has been brought up, malefactors.

The Same, Opinions, Book I. It is proper that security for ratification by the principal should not be required in cases where someone sets forth in a petition presented to the Emperor that he has appointed an agent to act for him in this matter. If, however, security for the payment of the judgment is demanded of the agent, it will be necessary for him to obey the manifest rule of law.

Ulpianus, Opinions, Book I. The vigilance of the Governors of provinces must be diligently exercised to prevent fishermen from showing lights at night in order to deceive sailors, thereby indicating that they are approaching some port, and in this way bringing ships and those on board of them into danger, and preparing for themselves a detestable booty.

The Same, Opinions, Book I. It has been decided that the Governor of a province has jurisdiction of disputes arising with reference to the use of water distributed by new conduits, constructed contrary to law; as well as of those relating to horses possessed by persons who know that they belong to others, as well as to their increase; and to injuries caused by parties, placed in possession of the land of others, when the said land should be divided among several individuals; provided this has been done by the authority of someone who had no right to order it; so that the Governor may render his decision in these cases according to justice and his right of jurisdiction, and place matters in a suitable condition.

The Same, Opinions, Book II. If it is established that a duumvir has been created without observing the formalities prescribed by law, but only because he was demanded by the voice of the people, to which the Proconsul consented without having any right to do so, an appeal in so plain a case is superfluous.

Ulpianus, Opinions, Book II. The statement of one’s birthplace, which is not correct, does not alter the fact of a person’s origin; for a man’s actual birthplace is not lost by mistake, nor by his falsely, giving a different place from the true one. Nor can anyone, by rejecting the country where he was born, nor by misrepresentation on this point, change the truth. 1A son derived his origin from the town in which his father was born, but he does not follow the domicile of the latter. 2It was decided by men learned in the law that anyone can have his domicile in two different places, that is where he builds in two different places, and is not considered to reside in one more than in the other. 3Freedmen follow the place of birth or domicile of their patrons, which is also the case with their children.

Ulpianus, Opinions, Book II. It is established that decurions who have left the towns to which they belonged, and gone to other places, can be recalled to their country by the Governor of the province; and he must take care that they are given suitable employments.

The Same, Opinions, Book II. The names of the recipients of honors at the hands of the Emperor should first be entered upon the register of the decurions in a city; and afterwards the names of those who only have discharged the duties of municipal offices.

The Same, Opinions, Book II. Persons who were born in the City of Rome, and who have established their domicile elsewhere, must accept public employment at Rome. 1No municipal employment can be imposed upon soldiers who are serving in camp. Other private persons, however, even though they are the relatives of soldiers, must obey the laws of their country and their province. 2When anyone is sentenced to the mines, and afterwards obtains complete restitution, he may be called to public employments and honors just as if he had never been convicted; and his misfortune and sad experience cannot be advanced to show that he is not a good citizen of his country. 3Their sex denies to women corporeal employments, and prevents them from obtaining municipal honors or offices. 4A father has no right to prevent a son, who is under his control, from obtaining municipal honors, if he has no good excuse for doing so. 5A father is not required to undertake the defence of his son, if he does not consent for him to obtain municipal honors, or employments, for fear his estate may be subjected to a burden; but he can not prevent him from being liable to his country to the extent of his means. 6Although anyone who is over seventy years of age, or has five children living, is, for either of these reasons, excused from holding civil employments; still, his sons ought to accept offices for which they are qualified, for the immunity granted to fathers on account of their children they themselves do not enjoy. 7A stepfather can, by no rule of law, be compelled to undertake the burdens of civil employment, in the name of his stepson. 8Freedmen should discharge the duties of public employment at the birthplace of their patron, if their pecuniary resources are sufficient to enable them to do so; as the property of their patrons is not liable on account of offices administered by their freedmen. 9When a father has been guilty of some crime, this should be no impediment to the acquisition of municipal honors by his sons. 10It has long since been settled that minors under twenty-five years of age can become decurions; not, however, when they are in military service, because this burden is considered as rather attaching to a patrimonial employment. 11The collection of taxes is considered to be a patrimonial employment. 12The duty of collecting provisions is a personal employment, and the age of seventy years, or the number of five living children, exempts a person from it. 13Persons who are obliged to furnish lodgings to soldiers coming to a city should discharge this duty by turns. 14The duty of furnishing lodgings to soldiers is not a personal, but a patrimonial one. 15The Governor of a province should see that employments and honors are equally distributed among the citizens in turn, according to their age and rank; so that the order of the various degrees of said employments and honors, which have been established of old, shall be followed, to prevent the same person from being indiscriminately and frequently oppressed by their imposition, and the State from being deprived at the same time of men and of power. 16Where there are two sons under the control of their father, he cannot be compelled to be responsible for the employment of both of them at the same time. 17If a man, who left two sons, did not, by his last will, provide out of their common patrimony, for the discharge of the duties of public office by one of them, the latter should not, at his own expense, assume responsibility for any duties or honors which may be enjoined upon him, although the father, while living, might have assumed liability of this kind for one of his sons.

Ulpianus, Opinions, Book II. Every excuse should be based upon justice. But if confidence should be placed in persons claiming exemption, without a hearing in court, or indiscriminately, without any limitation of time, as each one may choose, and if each one should be permitted to excuse himself, there would not be enough persons to discharge the duties of public office. Therefore, when any persons claim exemption from a public office on account of the number of their children, they should take an appeal, and those who do not observe the time prescribed for the prosecution of an appeal of this kind are with good reason excluded from the benefit of an exception. 1Those who avail themselves of an excuse, and are discharged in consequence, must appeal every time that they are appointed afterwards. When, however, this adversary is proved to have acted through malice, and for the purpose of subjecting them to frequent annoyance, although he is aware that they are entitled to perpetual exemption, the Governor shall order him who is responsible for this annoyance to pay the expenses of litigation, as in the case of the Imperial Decrees. 2Persons eligible to the highest honors, and included among the citizens of a town who, with the design of defrauding their order, betake themselves to the country for the purpose of avoiding the responsibilities of the higher offices, and still remain liable to those attaching to inferior ones, cannot avail themselves of this excuse. 3Although a man may be sixty-five years of age, and have three living children, he cannot, for these reasons, be released from performing the duties of civil employment.

The Same, Opinions, Book II. An envoy appointed to proceed against a municipality can present his claim to the Emperor through another. 1When an envoy abandons his charge, or delays results for some good reason, he must prove this fact before the Order of the town where he resides. 2The neglect of an envoy to perform his duty does not prejudice his colleague.

The Same, In The Same Book. Salaries, in proportion to their rank, are paid to envoys who do not undertake their mission gratuitously.

Ulpianus, Opinions, Book II. A certain man, having been appointed supervisor of public works, and desiring to be excused, did not succeed, but remained in office until he died. He left his heirs liable, but imposed no responsibility upon them from the time when his death occurred. 1A person who was already exercising the functions of a public office afterwards undertook the construction of an aqueduct. It seemed to be absurd for him to ask to be released from his former employment, when he was already charged with both; because if he had only intended to assume responsibility for one, it is more probable that he would have obtained exemption from the other, on account of that in which he was already engaged.

The Same, Opinions, Book III. The Governor of a province where buildings have been inspected by him, can compel their owners to repair them when sufficient cause for this exists; and where a refusal is made, he should take proper measures for their reparation.

Ulpianus, Opinions, Book II. The immunity granted to soldiers who have been honorably discharged, they also enjoy in the towns in which they reside; nor is it lost if one of them should voluntarily accept an honor or a public employment. 1They must all pay taxes, and sustain any other ordinary burdens attaching to patrimonial estates.

The Same, Opinions, Book III. The care of the construction or repair of public buildings in a city is a public employment from which a father who has five living children is exempt; but if he should be compelled by force to discharge such an employment, this will not deprive him of any excuse which he may have for not accepting others. 1The excuse of a want of means for not accepting municipal employments or duties which persons are required to undertake is not perpetual but temporary; for, where anyone’s patrimony has been increased by honorable means this will be taken into consideration, when inquiry as to his solvency at the time when he was appointed to the office is made. 2Persons who are poor cannot, through destitution, be compelled to accept patrimonial employments, but they are forced to discharge the duties of corporeal ones to which they have been appointed. 3Anyone who is obliged to discharge a public employment in his city, and represents himself as a soldier for the purpose of avoiding a municipal burden, cannot render the condition of the municipality any worse.

The Same, Opinions, Book III. A minor of sixteen years of age cannot be charged with the duty of the purchase of grain, if this is not customary in the place of his birth. The same rule applies to minors under twenty-five years of age, if they are appointed to municipal employments or honors. 1Neither the number of children, nor the age of seventy years, is a good excuse where honors or offices are united, but only exempts a person from civil employments. 2Adopted children are not included in the number of those who ordinarily excuse fathers from public duties. 3Those who are called to perform the functions of public officials must prove that they have the prescribed number of children at the time when they wish to be excused on this account; for if the number of children should afterwards be completed, it will not release them, if they have previously undertaken the employment. 4Where patrimonial employments exist, the number of children is no excuse. 5Children, even if they have ceased to be under the control of their father, afford a valid excuse for exemption from civil employments. 6A person who hears with difficulty is not entitled to exemption from civil employments. 7When the Governor of a province perceives that anyone is oppressed with age and bodily infirmity, or has not sufficient money to administer the office, he can discharge him and appoint another. 7aInfirmity of body is a valid excuse from public employment, where only corporeal labor is concerned. Those, however, who can assist with their advice as well-informed men, or who are competent to discharge the duties of the office, should not be excused, except for good and sufficient reasons. 8Those who teach children the first rudiments of learning are not entitled to exemption from civil employments. It is, however, a part of the duty of a Governor to see that an office is not assigned to anyone which is beyond his capacity, whether such a person is teaching the primary branches of knowledge in a city or in a village.

Ulpianus, Opinions, Book III. Those who are only on board ships for the purpose of navigating them are not entitled to immunity from civil employments, by the terms of any Imperial Constitution. 1Immunity granted to anyone does not descend to his heirs. 2Where it is given to and acquired by a family and its descendants, it does not pass to those born of the women of this family.

The Same, Opinions, Book III. Conditions imposed in former leases cannot be considered to apply to subsequent ones. 1What anyone is forbidden to do in his own name he should not do through the agency of anyone else. Therefore, if a decurion rents public land (which decurions are not permitted to do), by substituting the names of others, his act shall be revoked, as being in violation of law. 2Where anyone converts money intended for the purchase of grain to some other use, he will be required to refund the amount with interest; and a judgment rendered against him will be valid, even if he is absent; but in this case it is presumed that he has given security to render an account of his administration. 3Anyone who owes a sum of money intended for the purchase of grain must pay it at once. For, in all matters relating to the public purchase of grain, which is necessary, the payment of the money does not admit of delay; and all persons who are indebted under such circumstances can be compelled to pay by the Governor of the province. 4Funds given for the purchase of grain must be returned to the city, and cannot be expended for other purposes. If, however, money destined for the purchase of grain is converted to some other use, as, for instance, to work upon the public baths, even though it may be proved that it has been expended in good faith, still, as it can only be disbursed for the purchase of grain, he who has charge of it shall be ordered to refund it to the city. 5If money intended for the purchase of grain should be refunded to the city with interest, an unreasonable and an unlawful rate of interest ought not to be exacted, that is to say, compound interest should not be paid. 6Where, after the purchase of grain, for which the price has been paid and entered upon the public registers, it is unjustly taken from the purchaser; the Governor of the province can order the amount to be refunded to him who purchased it. 7When a man who was solvent at the time when he was appointed to office afterwards becomes insolvent, any loss sustained must be borne by the State; for no human prudence can provide against accidents, and the person who appointed him should not be liable for anything on this account. 8The rights of a city cannot be changed by an agreement entered into by magistrates and their colleagues to prevent themselves from being sued by one another, with reference to matters in which this is permitted to be done by law. 9Ad Dig. 50,8,2,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 16.The action, however, which can be brought against one of them for maladministration will, in accordance with equity, lie in favor of another who has become responsible for him. 10What is proved to have been expended in behalf of a colleague holding the office of magistrate, the Governor of a province shall order to be paid by the party in question, or his heirs.

The Same, In The Same Book. Where anyone has been punished for fraud in the construction of some work, and the surety who was responsible for him contracted with another for the construction of the same work, and it still was not done, the heir of the surety cannot refuse the payment of interest; as, in the first place, the contract bound the surety in good faith for the entire amount, and under the subsequent contract, because he acknowledged his responsibility, he will be liable for the payment of any loss which may be sustained by the city. 1Persons who have become sureties for the entire amount for which a farmer of the revenue may become liable can legally be sued for the interest as well as the principal, unless something to the contrary with reference to them is set forth in the terms of the obligation. 2But where, in the leasing of lands, it was agreed that if on account of an unfavorable season, the rent need not be paid for any year during which, according to the judgment of a reliable citizen, this might be considered a proper excuse, good faith must be observed in complying with the condition of the lease.

Ulpianus, Opinions, Book III. It is not in the discretion of the Governor of a province to determine the number of physicians to be appointed for each town, but this is the duty of the Order of Decurions and those who possess property therein, in order that, in cases of bodily illness, they may commit themselves and their children to the care of persons selected by themselves, and of whose probity and skill in their profession they are assured.

The Same, Opinions, Book III. Anyone who, through liberality and not because of indebtedness, has devoted his income for a time to the purpose of completing public works, is not forbidden to obtain the reward of his generosity by having his name inscribed upon them. 1The supervisors of public works transact business with the contractors, but the State is only concerned with those appointed for that purpose. Therefore, the Governor of the province will repose confidence in the person who has charge of the work, as well as in the contractor who is liable to him. 2The Governor of a province should interpose his authority to prevent the name of him through whose generosity a public work has been constructed from being erased, and the names of others inscribed in its place; and also see that the evidence of similar liberalities bestowed by citizens upon their country shall not be removed.

The Same, Opinions, Book III. Anyone has the right to repair his own house, provided he does not do so against the consent of another, on land to which he has no right.

The Same, Opinions, Book IV. It is entirely proper to advance the expenses of a suit to a party engaged in litigation, but it is not legal to enter into an agreement that the sum expended for that purpose shall not be paid with lawful interest, but that half the amount recovered by the suit shall be paid.

Ulpianus, Opinions, Book IV. An official who acts for a city cannot transact public business through an agent.

The Same, Opinions, Book IV. Where an expenditure of money is advantageously made by some one while transacting the business of another, which includes expenses honorably incurred to secure public offices which are obtained by degrees; the sum expended can be recovered by an action based on business transacted. 1Where slaves have received their freedom absolutely by will, they are not compelled to give an account of the matters which they transacted during the lifetime of their master. 2Titius, being under the impression that his sister was the testamentary heir of the deceased, paid a debt to the creditors of the estate. Although he did this with the intention of transacting the business of his sister, he was in fact doing it for the children of the deceased who would be the proper heirs of their father if there had been no will; and, because it is just that he should not be subjected to loss, it is established that he can recover what he has paid by a suit based on business transacted.

Ulpianus, Opinions, Book IV. When a competent judge is informed by an innocent man that he has paid money on account of a crime which was not proved against him; he must order what has been unlawfully extorted to be refunded, according to the terms of the Edict which treat of persons who are said to have received money either to cause annoyance, or to refrain from doing so; and he must inflict punishment in proportion to the crime upon the party who committed it.

Ulpianus, Opinions, Book IV. A certain man was the possessor of an article which he wished to sell, and another brought suit to establish the right of property, and after having deprived him of the opportunity of selling the article to the purchaser, he abandoned the case. It was held that the party in possession was under the circumstances entitled to an action in factum for the purpose of indemnification.

Ulpianus, Opinions, Book IV. Unlawful assembles must not be attempted, even by veteran soldiers, under the pretext of religion, or that of performing a vow.

Ulpianus, Opinions, Book V. Where a man admits that he is a freedman, his patron cannot make him freeborn even by adopting him.

The Same, Opinions, Book V. After the death of his daughter who had been living as her own mistress on the ground of having been lawfully emancipated, and who died after appointing heirs by her will, the father is forbidden to institute proceedings against his own act, claiming that the emancipation was not made legally, or in the presence of witnesses. 1A party who is absent can neither adopt, nor arrogate, nor carry out by the agency of another any of the formalities which are requisite in such cases.

Ulpianus, Opinions, Book V. It is not probable that a person would pay in a city, under compulsion and unjustly, something which he did not owe, if he showed that he was of illustrious rank; since he could invoke the public law, and apply to someone vested with authority who would forbid his being treated with violence. The strongest possible proof of violence must be given in order to overcome this presumption. 1Where anyone being justly terrified at the prospect of a judicial examination to which a powerful adversary threatens to send him in chains; sells under compulsion what he had a right to retain, the matter shall be restored to its proper condition by the Governor of the province. 2Where a money-broker keeps an athlete in confinement contrary to law, and, by preventing him from engaging in contests, compels him to give security for a larger sum of money than he owes; a competent judge will, where this is proved, order the matter to be restored to its proper condition. 3Where anyone is compelled, by the intervention of the officers of the Governor, by force and without judicial proceedings, to pay money which he does not owe to a party claiming under an assignment; the judge will order what was unlawfully extorted to be restored by him who inflicted the injury. If, however, he paid his debt upon a simple demand, and not as the result of judicial proceedings, even though the party should have acted legally and not have collected the debt in an irregular way, still, it is not in accordance with law to set aside a transaction which brought about the payment of an obligation which was due.

The Same, Opinions, Book V. A certain debtor caused a letter to be sent to his creditor, which appeared to have been written by Titius, asking that he be discharged from liability; and the creditor, having been deceived by this letter, discharged the debtor by an Aquilian stipulation and a release. If the letter should afterwards be ascertained to be forged, or worthless, the creditor, if he is over twenty-five years of age, will be entitled to an action on the ground of fraud, and the minor shall obtain complete restitution.

Ulpianus, Opinions, Book V. A minor under twenty-five years of age obtained a judgment ordering that a legacy, based upon a trust, be paid to him; he gave a release for it, and the debtor furnished him security, just as if he would have done if the money had been borrowed. Under these circumstances, the minor is entitled to complete restitution; for the reason that he had obtained a right to bring an action for money on account of a judgment, and by a new contract he had changed that right for one for the institution of proceedings of another kind. 1A minor under twenty-five years of age, without proper deliberation, surrendered land which belonged to his father in settlement of debts shown by the accounts to belong to the guardianship of other minors, whose affairs his father had transacted. Complete restitution was ordered that matters might be equitably restored to their former condition, and the amount of interest which appeared to be due on account of the guardianship was calculated and set off against the amount of the profits received.

Ad Dig. 4,4,44ROHGE, Bd. 6 (1872), S. 356: In integrum restitutio Minderjähriger nach gemeinem Rechte insbesondere gegen wechselrechtliche Verpflichtungen. Selbstständige Vermögensvertretung.Ulpianus, Opinions, Book V. All the acts of minors under twenty-five years of age are not invalid, but only those of such as, after investigation, are ascertained to have been overreached; as where they were imposed upon by others, or were deceived by their own credulity, or lost something which they formerly had, or failed to obtain some profit which they could have acquired, or subjected themselves to some liability which they ought not to have assumed.

Ulpianus, Opinions, Book V. Where it is in the power of a soldier to institute criminal proceedings during the time that he is devoting his services to the State, he is not deprived of his right to do so. 1Where a person is detained on an island in accordance with the penalty imposed upon him on account of which he obtained restitution, and it is proved that a portion of the property of which he had not been deprived has been appropriated by some one else, it must be restored to him.

The Same, Opinions, Book V. When a soldier applied to bring suit in his own name in order to obtain an estate which he alleged had been presented to him; he was told that if the gift had been made for the purpose of changing the conditions of the trial, the action must be brought by the former owner, so that it might appear that he had transferred the property to the soldier, rather than a lawsuit.

Ulpianus, Opinions, Book V. Anyone who is not invested with jurisdiction, or is not granted authority by the Emperor, nor appointed by an official who has the right to appoint judges, or not selected by agreement for arbitration, or not confirmed by some law, cannot act as judge.

Ulpianus, Opinions, Book V. Where it is suspected by the legatees that collusion exists between the appointed heirs and the person who is bringing suit against the will as inofficious, it has been established that the legatees have a right to appear and defend the will of the deceased, and they are also permitted to appeal, if a judgment is rendered against the will. 1Illegitimate children also can likewise object to the will of their mother on the ground of inofficiousness. 2When an attack on account of inofficiousness is made against a will, although the case may be settled by compromise, the will still remains in full force and effect; and therefore any testamentary grants of freedom and bequests contained therein still continue to be valid to the extent permitted by the Lex Falcidia. 3Since a woman can never adopt a son without the consent of the Emperor, no man can institute proceedings on the ground of inofficiousness against the will of the woman whom he erroneously thought to be his adoptive mother. 4Proceedings on the ground that a will is inofficious must be instituted in the province in which the testamentary heirs have their residence.

The Same, Opinions, Book V. If the agent of a soldier lends money and takes a surety, it is established that an action will be granted the soldier to whom the money belonged; just as in the case where the guardian of a ward or the curator of a youth stipulates for the repayment of money loaned which belonged to either of them.

The Same, Opinions, Book V. Although a former Governor may have authorized the sale of land belonging to a ward, and his guardian should then purchase it for himself, through the agency of another buyer; still, if the successor of the said Governor should ascertain that fraud and bad faith had been committed by the guardian in violation of the Decree of the Senate, he must determine as to what extent he shall punish such a fraudulent act, by way of example.

Ulpianus, Opinions, Book V. If extortion is committed under a pretended order of the Governor, the Governor of the province shall order the property surrendered through terror, to be restored, and shall punish the crime.

The Same, Opinions, Book V. When a person who has been deported and restored regains his rank by the indulgence of the Emperor, but does not recover all his property, he can neither be sued by his creditors nor by the Treasury. When, however, the power of recovering his property also is offered him by the Emperor, and he prefers to relinquish it, he cannot avoid any actions brought against him before he was sentenced.

Ulpianus, Opinions, Book V. If anyone, after having ransomed a freeborn woman from the enemy, should keep her with him with the intention of having children by her, and afterwards manumits a child born from her, together with its mother, giving it the title of his natural son, the ignorance of the husband and father ought not to affect the condition of those whom he has appeared to manumit; and it should be understood that from the time that he made up his mind to have children by the mother, that the obligation of pledge to which she was liable is extinguished; and therefore it is established that she who returned under the right of postliminium was free and freeborn, and brought forth a freeborn child. Where, however, she was publicly taken as booty by the bravery of a soldier, and the father did not pay anyone money as her ransom, she is said, at the time of her return under the right of postliminium, not to have been with her master, but with her husband. 1Although the State is frequently injured by civil dissensions, still its destruction is not the object of the contest. Those who divide into different factions do not occupy the position of enemies between whom the rights of captivity and postliminium exist, and therefore persons who have been captured and sold, and afterwards manumitted, have been held to have fruitlessly demanded from the Emperor the right of free birth which they do not lose by captivity.

Ad Dig. 50,13,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 388, Note 15.The Same, Opinions, Book V. When a physician, who has been entrusted with the treatment of anyone’s eyes, administers drugs which may cause him to lose his eyesight, in order by doing so to force him to sell him his property, while he is ill, contrary to good faith, the Governor of the province must punish the unlawful act, and order the property to be restored.

The Same, Opinions, Book VI. If after a testament has been attacked as inofficious an agreement was made by the parties to compromise the case, and the terms of the compromise are not complied with by the heir, it is established that the suit brought on the ground of inofficiousness still remains unaltered. 1Where anyone alleges that he is the son of the testator who denied this to be true in his will, and, nevertheless, disinherited him, ground for an action for an inofficious will still remains. 2A soldier cannot state that the will of another soldier is inofficious. 3Where a grandson instituted proceedings on the ground that a certain part of a will was inofficious, against his paternal uncle or some other person who was appointed heir, and gained the case, but the testamentary heir appealed; it was decided, in the meantime, that on account of the poverty of the minor, he should be granted an allowance for maintenance in proportion to the assets of the estate, (for part of which suit was brought by him in the attack on the will as inofficious) and that his adversary would be required to supply him with necessaries until the case was terminated. 4A complaint can be filed on the ground of inofficiousness in the case of the will of a mother who, thinking that her son was dead, had appointed another heir.

Ulpianus, Opinions, Book VI. Where it has been decided that a sister is co-heir together with her four brothers to the estate of their mother, a fifth part of each of the shares which they possessed must be granted to her, so that they will give her no more than the fifth part of each one of the separate four shares to which they had previously believed themselves to be entitled. 1Where expenses are justly incurred on account of liabilities of an estate, they must be calculated proportionally against the party who has obtained a share of the estate by the right of a patron.

Ulpianus, Opinions, Book VI. There is a great difference between the duties of an advocate and the defence of one’s own case; and where a party subsequently ascertains that certain property belongs to him, he will not lose his ownership of the same, because, while ignorant of the fact, he aided another who was bringing suit to recover it.

Ulpianus, Opinions, Book VI. The vendor of the Geronian Estate set out in the contract for the Botrian Estate which he retained, that no tunny-fishery should take place near it. Although a servitude cannot be imposed on the sea by private contract, since by nature it is open to all, still, as the good faith of the contract demands that the conditions of the sale should be observed, the persons in possession or those who succeed to their rights are bound by the provisions of the stipulation or the sale. 1If it is known that there are stone-quarries on your land, no one can cut stone there either as an individual, or in the public service, without your consent, where he has no right; unless a custom exists in said quarries that, if anyone should wish to take stone from them he can do so, provided he first pays the usual compensation to the owner; and even then he can only take the stone after giving security to the owner that the latter shall not be prevented from using such stone as he needs, nor the enjoyment of the property by the owner be destroyed by the exercise of his right.

Ulpianus, Opinions, Book VI. By raising his house a person caused it to obstruct the lights of a building belonging to a minor under twenty-five years of age, or under the age of puberty, of whom he was the curator or guardian; and although, in this instance, he himself and his heirs would be liable to be sued, for the reason that he had no right to commit an act which, on account of his office, he was required to prevent anyone else from doing; still, an action should be granted to the boy, or to the minor, against anyone who is in possession of the said house, to compel him to remove what was not lawfully constructed.

The Same, Opinions, Book VI. Where a party demolishes the house of another without the consent of the owner, and builds baths on the site, then, irrespective of natural law, which declares that the surface belongs to the owner of the soil, the aggressor will be liable to an action on account of damage caused.

Ulpianus, Opinions, Book VI. Where an inundation destroys the boundaries of a field by the overflow of the water, so as to afford an opportunity to any person to seize places over which they have no right; the Governor of the province must order that they shall not interfere with the property of others, and that the land of the owner shall be restored to him, and the boundaries be fixed by a surveyor. 1It is part of the duty of the magistrate in a case involving the boundaries of land to send surveyors, and by means of them dispose of the question of boundaries in accordance with justice, and by examination with his own eyes, if occasion demands It.

The Same, Opinions, Book VI. Justice does not permit anything which a father furnished his emancipated son, who was absent for the purpose of pursuing his studies, to be included in the share of the property of the deceased which passed to the said son; where it is proved that the father furnished said property not as a loan, but because he was induced to do so by paternal affection.

The Same, Opinions, Book VI. Where a note becomes worthless through payment and pledges are released, the creditor can, nevertheless, bring suit for the production of documents relating to the contract against anyone else than the debtor.

The Same, Opinions, Book VI. In the case where a creditor made a demand for money which had been loaned, and the debtor did not have the money on hand, he gave him certain articles of gold, in order that he might place them in pledge with another creditor. If the party who received them from the debtor holds them after they have been released by payment, he can be ordered to produce them; but if they are still in possession of the creditor, they are held to be liable with the consent of the owner; but the proper action can be brought by the owner of the property against his creditor to compel them to be delivered, as soon as they are released.

The Same, Opinions, Book VI. Where the land of a ward or a minor has been sold illegally and in violation of the Decree of the Senate, and on this account an assessment of damages is made in an action on guardianship, or in an equitable action, and the amount assessed has been paid, the recovery of the land is forbidden by the principles of equity.