restricted access 20. SWINDLING
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B O O K FORTY-SEVENISWINDLING 305 this offense can be alleged in a case where no action for theft can be brought, that is, before the inheritance has been accepted or, although it has been accepted, the heir has not taken possession of the assets. For it is obvious that in such circumstances, no action for theft will lie; but it is no less obvious that the action for production will lie, if the plaintiff wish to bring a vindicatio for what is produced. 3 MARCIAN, Public Prosecutions, book 2: Antoninus and the deified Severus provided in a rescript that a party has the choice whether to prosecute the offense of despoiling an inheritance by extraordinary process before the prefect of the city or the provincial governor or to bring a vindicatio for the inheritance from those possessing it, under the ordinary law. 4 PAUL,Replies, book 3: Hereditary goods belong to all the heirs in common, and so the heir who successfully institutes proceedings for the offense of despoiling the inheritance is regarded as also benefiting his co-heir. 5 HERMOGENIAN, Epitome of Law, book 2: A wife cannot be accused of the offense of despoiling an inheritance because one could not proceed against her for theft either. 6 PAUL,Neratius, book 1: If you appropriate a thing, part of an inheritance, being unaware that it is so, he replied that you are guilty of theft. PAUL.There can be no theft of a thing part of an inheritance any more than of anything which has no owner and the belief of the appropriator alters nothing. 20 SWINDLING 1 PAPINIAN, Replies, book 1: Process for swindling ranks neither as public nor as private process. 2 ULPIAN,Sabinus, book 8: The action for swindling does not indeed involve infamia, but the offense is punished by extraordinary process. 3 ULPIAN,Duties o f Proconsul, book 8: A charge of swindling is a matter for investigation by the provincial governor. 1. It should be known that this charge can be leveled against those guilty of fraud but against whom no specific offense can be alleged . For what the action for fraud is in the field of private litigation, that is, the prosecution of swindling in the matter of offenses. And so, wherever the name of a specific offense is lacking, there we can charge swindling. It is particularly relevant in the following cases: Suppose that a person, having pledged something to another, conceal this obligation and, by cunning, sell the thing or give it in exchange or by way of satisfaction to a third party; these are all cases of swindling. Again, if he substitute goods which he has sold or divert elsewhere or ruin those which are subject to security rights, he is equally guilty of swindling. So also if he be guilty of some imposture or collusion to another's detriment, he can be charged with swindling. But as I have said generally, in the absence of a specific offense, this charge can be brought, and there is no need to list the instances. 2. The penalty for swindling is not laid down by statute; for it is not a statutory offense. But those guilty are punished by extraordinary process . In the case of the lower orders, the penalty is not to exceed condemnation to the mines; those who have some position of rank, however, are to be temporarily relegated or removed from their civic order. 3. In particular, a person who conceals wares can be charged with this offense. 4 MODESTINUS, Penalties, book 3: There will be a charge of swindling for perjury when someone swears in writing that what are pledges belong to him and he will be sent into temporary exile. BOOK FORTY-SEVEN /SWINDLING 305 this offense can be alleged in a case where no action for theft can be brought, that is, before the inheritance has been accepted or, although it has been accepted, the heir has not taken possession of the assets. For it is obvious that in such circumstances, no action for theft will lie; but it is no less obvious that the action for production will lie, if the plaintiff wish to bring a vindicatio for what is produced. 3 MARCIAN, Public Prosecutions, book 2: Antoninus and the deified Severus provided in a rescript that a party has the choice whether to prosecute the offense of despoiling an inheritance by extraordinary process before the prefect of the city or the provincial...


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