[TRYPHONINUS libro septimo disputationum. ] §41.1.63.prSi is qui in aliena potestate est thensaurum inuenerit, in persona eius cui adquirit hoc erit dicendum, ut, si in alieno agro inuenerit, partem ei adquirat, si uero in parentis dominiue loco inuenerit, illius totus sit, si autem in alieno, pars.
[TRYPHONINUS, from the seventh book of Disputations.] If a person who is in another's power finds a treasure, the following must be said with respect to the person for whom he acquires it: namely, that if he finds it on another's land, he acquires a part of it for him; but if he finds it on the land of his parent or master, it belongs entirely to that person; and if on another's land, a part of it belongs to him.
§41.1.63.1Si communis seruus in alieno inuenerit, utrum pro dominii partibus an semper aequis adquiret? et simile est atque in hereditate uel legato uel quod ab aliis donatum seruo traditur, quia et thensaurus donum fortunae creditur, scilicet ut pars, quae inuentori cedit, ad socios, pro qua parte serui quisque dominus est, pertineat.
If a common slave finds a treasure on another's land, does he acquire it in proportion to the shares of ownership, or always in equal shares? And it is similar to the case of an inheritance, a legacy, or what is delivered to a slave as a gift from others, because a treasure is also believed to be a gift of fortune; that is to say, the part which falls to the finder belongs to the co-owners in proportion to the share in which each is the master of the slave.
§41.1.63.2Si communis seruus in domini unius fundo proprio inuenit, de parte, quae soli domino semper cedit, non est dubium, quin solius domini praedii sit: uerum an aliquid ex parte ferat alter socius, uidendum est, et numquid simile sit, atque cum stipulatur seruus iussu unius domini aut per traditionem aliquid accipit uel nominatim alteri: quod magis dici poterit.
If a common slave finds a treasure on the private land of one of his masters, there is no doubt that the part which always falls to the landowner belongs solely to the master of the land; but it must be considered whether the other co-owner receives anything from the share of the slave, and whether it is similar to when a slave stipulates by order of one master, or receives something by delivery, or specifically for one of them; which is more capable of being said.
§41.1.63.3Quod si seruus, in quo usus fructus alienus est, inuenerit in eius locum, qui seruum proprium habet, an totum illius sit? et si in alieno, an partem eidem adquirat an uero fructuario? inspectio in illo est, num ex operis serui adquiratur.
But if a slave, in whom another has a usufruct, finds a treasure on the land of the person who has ownership of the slave, does the whole of it belong to the owner? And if on another's land, does he acquire a part for the owner or for the usufructuary? The inspection lies in this: whether it is acquired from the labor of the slave.
finge terram fodientem inuenisse, ut hoc dicatur fructuarii esse: quod uero subito in abdito loco positum nihil agens, sed aliter ambulans inuenit, proprietatis domini sit.
Imagine that he found it while digging the earth, so that this might be said to belong to the usufructuary; but if he found it suddenly, while doing nothing but walking elsewhere, placed in a hidden spot, it belongs to the owner of the property.
ego nec illius ad fructuarium pertinere partem arbitror: nemo enim seruorum opera thensaurum quaerit nec ea propter tunc terram fodiebat, sed alii rei operam insumebat et fortuna aliud dedit.
I do not think that the part belongs to the usufructuary even in that case; for no one seeks a treasure by the labor of slaves, nor was he digging the earth then for that purpose, but was spending his labor on another matter, and fortune gave something else.
itaque si in ipsius fructuarii agro inuenerit, puto partem solam ut agri dominum habiturum, alteram ad eum, cuius in seruo proprietas est, pertinere.
Therefore, if he finds it on the land of the usufructuary himself, I think that the usufructuary will have only a part as the owner of the land, and the other part belongs to the one who has ownership in the slave.
§41.1.63.4Quod si creditor inuenerit, in alieno uidebitur inuenisse: partem itaque sibi, partem debitori praestabit, nec recepta pecunia restituet, quod iure inuentoris, non creditoris ex thensauro apud eum remansit.
But if a creditor finds a treasure, he will be regarded as having found it on another's land; therefore, he will provide a part for himself and a part for the debtor, nor will he restore it after the money has been received, because what remained with him from the treasure did so by the right of the finder, not of the creditor.
quae cum ita sint, et cum ex principis auctoritate creditor ut proprium agrum tenere coepit iure dominii, intra constitutum luendi tempus pignoris causa uertitur: post transactum autem tempus thensaurum in eo inuentum ante solutam pecuniam totum tenebit.
Since these things are so, and when by the authority of the emperor the creditor has begun to hold the land as his own by right of ownership, within the established time for redemption it is treated as a pledge; but after the time has elapsed, he will hold the whole of the treasure found in it before the money is paid.
oblato uero intra constitutum tempus debito, quoniam uniuersa praestantur atque in simplici petitore reuocantur, restitui debebit, sed pro parte sola, quia dimidium inuentori semper placet relinqui.
But if the debt is offered within the established time, since everything is restored and revoked in a simple claimant, it must be restored, but only for a part, because it is always agreed that a half should be left to the finder.