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 p341  Communi Dividundo Actio

Article by George Long, M.A., Fellow of Trinity College
on p341 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

COMMUNI DIVIDU′NDO, A′CTIO, is one of those actiones which have been called mixtae, from the circumstance of their being partly in rem and partly in personam; and duplicia judicia from the circumstance of both plaintiff and defendant being equally interested in the matter of the suit (Gaius, IV.160), though the person who instituted the legal proceedings was properly the actor. It is said in the institutions of Justinian, of the three actions for a division, "mixtam causam obtinere videntur, tam in rem quam in personam" (Inst. 4 tit. 6 §20). They were, however, properly personal actions (Dig. 10 tit. 1 s1), but distinguished from other personal actions by this, that in these actions disputed owner­ship could also be determined (Savigny, System, &c. vol. V p36). this action was maintainable between those who were owners in common of a corporeal thing, which accordingly was called res communis; and it was maintainable whether they were owners (domini), or had merely a right to the publiciana actio in rem; and whether they were socii, as in some cases of a joint purchase, or not socii, as the case of a thing bequeathed to them (legata) by a testament; but the action could not be maintained for the division of an hereditas. In this action an account might be taken of any injury done to the common property, or anything expended on it, or any profit received from it, by any of the joint owners. Any corporeal thing, as a piece of land, or a slave, might be the subject of this action.

It seems that division was not generally effected by a sale; but if there were several things, the judex would adjudicate (adjudicare) them severally (Gaius, IV.42) to the several persons, and order (condemnare) the party who had the more valuable thing or things to pay a sum of money to the other by way of equality of partition. It follows from this that the things must have been valued; and it appears that a sale might be made, for the judex was bound to make partition in the way that was most to the advantage of the joint owners, and in the way in which they agreed that partition should be made; and it appears that the joint owners might bid for the thing, which was common property, before the judex. If the thing was one and indivisible, it was adjudicated to one of the parties, and he was ordered to pay a fixed sum of money to the other or others of the parties. This action, so far as it applies to land, and that of familiae erciscundae, bear some resemblance to the now abolished English writ of partition, and to the bill in equity for partition (Dig. 10 tit. 3; Cod. 3 tit. 37; Cic. Ad Fam. VII.12; Bracton, fol. 443).

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Page updated: 26 Jan 20