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COMMUNI DIVIDUNDO, ACTIO.
COMMISSUM. One sense of this word is that of " forfeited,1' which apparently is derived from that sense of the verb commillere, which is " to commit a crime," or " to do something wrong." Asconius says, that those things are commissa which are either done or omitted to be done by a heres against the will of a testator, arid make him subject to a penalty or forfeiture ; thus, commissa hereditas would be an inheritance forfeited for some act of commission or omission. Cicero (Ad Fam. xiii. 56) speaks of an hypothecated thing becoming commissa ; that is, becoming the abso lute property of the creditor for default of pay ment. A thing so forfeited was said in commis- sum inddere or cadere. Commissum was also ap plied to a thing in respect of which the vectigal was not paid, or a proper return made to the pub- licani. A thing thus forfeited (vectigalium nomine) ceased to be the property of the owner, and was forfeited, under the empire, to the fiscus. (Dig. 39. tit. 4 ; Suet. Calig. c. 41.) -[G. L.]
COMMODATUM is one of those obligationes which are contracted re. He who lends to another a thing, for a definite time, to be used for a definite purpose, without any pay or reward, is called by modern writers commodans; the person who re ceives the thing is called commodatarius ; and the contract is called commodatum. The genuine Roman name for the lender is commodator (Dig. 13. tit. 6. s. 7), and the borrower (commodatarius) is " is qui rem commodatam acccpit." It is distinguished from mutuum in this, that the thing lent is not one of those things guae pondere, numero, mensurave constant, as wine, corn, &c.; and the thing commo- data does not become the property of the receiver, who is therefore bound to restore the same thing. Tiie lender retains both the ownership of the thing and the possession. It differs from locatio et con- ductio in this, that the use of the thing is gratuitous. The commodatarius is liable to the actio commodati, if he does not restore the thing ; -and he is bound to make good all injury which befalls the thing while it is in his possession, provided it be such injury as a careful person could have prevented, or provided it be an injury which the thing has sustained in being used contrary to the conditions or purpose of the lending. If a thing was lent to two persons, each was severally liable for the whole (in solidum). In some cases the commodatarius had an actio contraria against the commodans, who was liable for any injury sustained by the commo datarius through his dolus, or culpa; as, for instance, if he knowingly lent him bad vessels., and the wine or oil of the commodatarius was thereby lost or injured. The actio commodati was one of those in which there were two formulae, in jus .and in factum. (Gaius, iv. 47 ; Dig. 13. tit. 6 ; Instit, iii. 14. § 2; Thibaut, System, &c. § 477, &c. 9th ed. [G. L.]
COMMUNI DIVIDUNDO, A/CTIO, is one of those actiones which have been called mixtae, from the circumstance of their being partly in rein 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, tain in rem quam in personam " (Inst. 4.
tit. 6. § 20). They were, however, properly personal actions (Dig. 10. tit. 1. s. 1), but distinguished from other personal actions by this, that in these actions disputed ownership could also be determined. (Savigny, System, &c. vol. v. p. 36.) This action was maintainable between those who were owners in common of a corporeal tiling, which accordingly was called res communis ; and it was maintainable whether they were owners (do?nini\ 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 in 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 dons 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 sever ally (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 tho other by way of equality of partition. It fol lows 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.) [G. L.]
COMOEDIA (fc&yiyBfe), comedy. 1. greek. The early stages of the history of comedy are involved in great indistinctness, as they never formed the subject of much inquiry even when information was extant. This was the case even among the Athenians, and to a still larger extent among the Dorians. The ancient Greeks seldom showed much aptitude for antiquarian research, and for a long time comedy was scarcely thought deserving of attention (Aristot. Poet. 5), for, though springing out of the Dionysiac festivals, it had not that predominantly religious character which tragedy had.
That comedy took its rise at the vintage festivals of Dionysus is certain. It originated, as Aristotle says (Poet. 4), with those who led off the phallic songs (airb r&v Qapxdfroajs ra <£a/V-Ai/ca) of the band 'of revellers (kw/xos), who at the vintage festivals of Dionysus gave expression to the feelings of exuberant joy and merriment which were regarded as appropriate to the occasion, by parading about, partly on foot, partly in wagons, with the symbol of the productive powers of nature, singing a wild, jovial song in honour of Dionysus and his companions. These songs were commonly interspersed with, or followed by petu-exteinporal (ayTotrxeStacm/aj, Arist. Poet. 4