5. THINGS TO BE SEIZED AND SOLD BY A JUDGE'S AUTHORITY
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BOOK FORTY-TWOITHINGS TO BE SEIZED 63 matter, for possession of the assets to preserve the cause and, if the matter be urgent or the state of the assets cause concern, we must allow that a curator should be appointed, 9 PAUL,Edict, book 57: from among the creditors. 1. If, within the appointed period , one of the heirs elect to accept the inheritance and the other do not express acceptance, we have to consider what is to be done for the creditors. The view which commends itself is that they should be granted missio in possessionem of the assets for their safekeeping until the presently undecided heir accept or reject his share. 10 ULPIAN,Edict, book 81: If a pupillus is present but has no tutor, he is to be held to be absent. 11 PAUL,Plautius, book 8: If a legacy or jideicommissum be left to a son-in-power, under a condition, we must hold that both he and his head of household are to be granted missio in possessionem; for both have an expectation of benefit. 12 POMPONIUS, Quintus Mucius, book 23: When the praetor authorizes us to hold assets for the preservation of legacies or ajideicommissum or because a cautio has not been given us in respect of threatened damage or grants missio in possessionem on behalf of an unborn child, we are not in possession of them; rather does he grant us the care and safekeeping of them. 13 PAPINIAN, Replies, book 14: A person transferred by a provincial governor for the examination of his cause by the emperor is not obliged to defend other suits at Rome, but he will have to do so in his province. Even if there be no one to undertake the defense of one punished by temporary exile, his property is to be sold. 14 PAUL,Questions, book 2: If someone prevent a creditor from taking possession of his debtor's property, an action will lie against him for the value of the issue. 1. If a person granted missio in possessionem for the preservation of legacies be not allowed to take it, the measure of damages will be the value of the legacy, even though it be subject to a condition which may not be realized; for it is in his interest that he have security. 2. A conditional creditor, however, is not granted missio in possessionem because possession is granted to one who can sell the property under the edict. 15 ULPIAN,Fideicommissa, book 6: One who accepts a thing by way of barter is like a purchaser. Again, one who accepts a thing in satisfaction of a claim or who retains it on paying damages or receives it under a stipulation does not make a gratuitous acquisition. THINGS TO BE SEIZED AND SOLD BY A JUDGE'S AUTHORITY 1 GAIUS,Provincial Edict, book 23: Assets are to be sold in the place where a person should make his defense, that is, 2 PAUL,Edict, book 54: where he has his domicile, 3 GAIUS,Provincial Edict, book 2 3 : or where he has contracted. The contract is deemed situate not in the place where the transaction was entered into but where payment is due. 4 PAUL,Edict, book 57: If a slave be instituted heir under a condition and there be doubt whether he will become heir and free, it can fairly be decreed, on the application of creditors of the estate, that if he does not become heir within a given period, matters are to proceed entirely as though he had not been instituted heir. This applies BOOK FORTY-TWO/THINGS TO BE SEIZED 63 matter, for possession of the assets to preserve the cause and, if the matter be urgent or the state of the assets cause concern, we must allow that a curator should be appointed, 9 PAUL, Edict, book 57: from among the creditors. 1. If, within the appointed period , one of the heirs elect to accept the inheritance and the other do not express acceptance, we have to consider what is to be done for the creditors. The view which commends itself is that they should be granted missio in possessionem of the assets for their safekeeping until the presently undecided heir accept or reject his share. 10 ULPIAN, Edict, book 81: If a pupillus is present but has no tutor, he is to be held to be absent. 11 PAUL, Plautius, book 8: If a legacy or fideicommissum be left...