7. TREES SECRETLY FELLED
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BOOK FORTY-SEVENITREES SECRETLY FELLED 277 twofold. Let us see whether an action should not be given to him against his co-owner in respect of the other slave, as if he had made good in respect of all; otherwise, in this case, the praetor's provision would operate harshly; and the party with knowledge should not get leniency. 6 SCAEVOLA, Questions, book 4: Labeo thinks that if my co-heir obtained twofold because someone's family of slaves stole something from the estate, that should not prevent my suing for twofold; but there would thus be a fraud on the edict, and it would be unjust that our heirs should get more than we would ourselves. 1. He also says that if the deceased obtained less than twofold, the individual heirs can properly take proceedings. Scaevola replies: I think it more correct that each heir should sue for part but that, including what the deceased received, neither heir should get more than twofold. TREES SECRETLY FELLED 1 PAUL,Sabinus, book 9: Should trees be secretly fellecl, Labeo says that an action can be given both under the lex Aquilia and under the Twelve Tables; but Trebatius says that each should be so granted that the judge in the second action should deduct what the plaintiff recovered in the first action and condemn for the balance. 2 GAIUS,XII Tables, book 1: But it should be known that those who cut down trees, especially vines, are punishable also as brigands. 3 ULPIAN,Sabinus, book 42: The majority of the earlyjurists thought that vines fell within the description "tree." 1. Ivies and reeds are not improperly styled trees. 2. The same applies to willows. 3. But if one plant willow shoots to develop a willow grove and, before they take root, they are cut down or pulled up, Pomponius correctly says that there can be no action for trees felled, because a thing cannot properly be regarded as a tree unless it develops roots. 4. But if someone transfer a tree, root, and branch from a nursery, although it does not yet, as it were, hug the soil, Pomponius , in the nineteenth book on Sabinus, approves its being regarded as a tree. 5. Hence, also that is deemed a tree, the roots of which have died. 5a. However, the roots of a tree are not comprised in the term "tree," although embedded in the soil; this view has Labeo's approval. 6. Labeo also says that that is rightly called a tree which, though uprooted, can be replaced or which is so transferred that it can be planted. 7. On the better view, the stock of the olive is a tree whether or not it has yet thrust out roots. 8. And so the action for felled trees may be brought in respect of all these things which we have listed. BOOK FORTY-SEVEN /TREES SECRETLY FELLED 277 twofold. Let us see whether an action should not be given to him against his co-owner in respect of the other slave, as ifhe had made good in respect of all; otherwise, in this case, the praetor's provision would operate harshly; and the party with knowledge should not get leniency. 6 SCAEVOLA, Questions, book 4: Labeo thinks that if my co-heir obtained twofold because someone's family of slaves stole something from the estate, that should not prevent my suing for twofold; but there would thus be a fraud on the edict, and it would be unjust that our heirs should get more than we would ourselves. 1. He also says that if the deceased obtained less than twofold, the individual heirs can properly take proceedings. Scaevola replies: I think it more correct that each heir should sue for part but that, including what the deceased received, neither heir should get more than twofold. 7 TREES SECRETLY FELLED 1 PAUL, Sabinus, book 9: Should trees be secretly fellee, Labeo says that an action can be given both under the lex Aquilia and under the Twelve Tables; but Trebatius says that each should be so granted that the judge in the second action should deduct what the plaintiff recovered in the first action and condemn for the balance. 2 GAlUS, XII Tables, book 1: But it should be known that those who cut down trees, especially vines, are punishable also as brigands. 3 ULPIAN, Sabinus, book 42: The majority of the early jurists thought that vines fell within the description "tree...


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