Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

COMMUNI DIVIDUNDO, ACTIO. COMOEDIA. 341
COMMI'SSUI. One sense of this word is tit. 6. ~ 20). They were, however, properly perthat of "forfeited," which apparently is derived sonal actions (Dig. 10. tit. 1. s. 1), but distinguished
from that sense of the verb commitillte, which is from other personal actions by this, that in these ac-' to commit a crime," or " to do something wrong." tions disputed ownership could also be determined.
Asconins says, that those things are commissa (Savignv, Systeim, &c. vol. v. p. 36.) This action
which are either done or omitted to be done by a was maintainable between those who were owners
heres against the will of a testator, and make him in common of a corporeal thing, which accordingly
subject to a penalty or forfeiture; thus, commissa was called res communis; and it was maintainable
hereditas would be an inheritance forfeited for whether they were owners (doszini), or bad merely
some act of commission or omission. Cicero (Ad a right to the publiciana actio in rem; and whether
Fam. xiii. 56) speaks of an hypothecated thing they were socii, as in some cases of a joint purchase,
becoming comsmissa; that is, becoming the abso- or not socii, as in the case of a thing bequeathed to
lute property of the creditor for default of pay- them (legata) by a testament; but the action could
ment. A thing so forfeited was said in consmis- not be maintained for the division of an hereditas.
sum incidere or cadere. Commissum was also ap- In this action an account might be taken of any
plied to a thing in respect of which the vectigal injury done to the common property, or anything
was not paid, or a proper return made to the pub- expended on it, or any profit received from it, by
licani. A thing thus forfeited (vectigalinu nomine) any of the joint owners. Any corporeal thing, as
ceased to be the property of the owner, and was a piece of land, or a slave, might be the subject of
forfeited, under the empire, to the fiscus. (Dig. 39. this action.
tit. 4; Suet. Calig. c. 41.) -[G. L.] It seems that division was not generally effected
COMMI'XTIO. [CONFUSIO.] by a sale; but if there were several things, the
COMMODA/TUM is one of those obligationes judex would adjudicate (aEjudicane) them severwhich are contracted re. He who lends to another ally (Gaits, iv. 42) to the several persons, and
a thing, for a definite time, to be used for a definite order (condemnase) the party who had the more
purpose, without any pay or reward, is called by valuable thing or things to pay a sum of money to
modern writers cosninodans; the person who re- the other by way of equality of partition. It folceives the thing is called commosldatarius; and the lows from this that the things must have been
contractis called comasmo(dlattsn. The genuine Roman valued; and it appears that a sale might be made,
name for the lender is consmmodator (Dig. 13. tit. 6. for the judex was bound to make partition in the
s. 7), and the borrower (commodatarius) is i" is qui way that was most to the advantage of the joint
rem commodatam accepit." It is distinguished owners, and in the way in which they agreed that
from mutnull in this, that the thing lent is not one partition should be made; and it appears that the
of those things quae pondere, nu2eso, szecsurave joint owners might bid for the thing, which was
oonstant, as wine, corn, &c.; and the thing commo- common property, before the judex. If the thing
data does not become the property of the receiver, was one and indivisible, it was adjudicated to one
who is therefore bound to restore the same thing. of the parties, and he was ordered to pay a fixed
Tie lender retains both the ownership of the thinlg sum of money to the other or others of the parties.
and the possession. It differs from locatio et con- "This action, so far as it applies to land, and that
ductio in this, that the use of the thing is gratuitous. of fanmiliae erciscundae, bear some resemblance to
The commodatarius is liable to the actio commodati, the now abolished English writ of partition, and
if he does not restore the thing; and he is bound to the bill in equity for partition. (Dig. 10. tit. 3
to make good all injury which befalls the thing Cod. 3. tit. 37; Cic. Add'Fan?. vii. 12; Bracton,
while it is in his possession, provided it be such fol. 443.) [G. L.]
injury as a careful person could have prevented, COMOE'DIA (tao/rpla), comedy. 1. GREEmK.
or provided it be an injury which the thing has The early stages of the history of comedy are
sustained in being used contrary to the conditions involved in great indistinctness, as they never
or purpose of the lending. If a thing was lent to formed the subject of much inquiry even when intwo persons, each was severally liable for the whole formation was extant. This was the case even
(in solidum). In some cases the comumodatarius among the Athenians, and to a still larger extent
had an actio contraria againstthe commodalns, who among the Dorians. The ancient Greeks seldom
was liable for any inujury sustained by the commo- showed much aptitude for antiquarian research,
datarins through his dolus, or culpa; as, for instanlce, and for a long time comedy was scarcely thought
if he lknowinlgly lent him bad vessels, and the wine e deserving of attention (Aristot. -Poet. 5), for,
or oil of the commodatarius was thereby lost or though springing out of the Dionysiac festivals,
injured. The actio commodati was one of those it had not that predominantly religious character
in which there were two formulae, in jus and ill which tragedy had.
factum. (Gaius, iv. 47; Dig. 13. tit. 6; Instit, That comedy took its rise at the vintage festiiii. 14. ~ 2; Thibaut, Systemn, &c. ~ 477, &c. vals of Dionysus is certain. - It originated, as
9th ed. [G. L.] Aristotle says (Poet. 4), with those who led off
COMMU'NI DIVIDUINDO, AICTIO, is one the phallic songs (&7rb rL.v i4eapcXd'oCv, T& q)aXof those actiones which have been called mixtae, Xuc') of the band bf revellers (wCc&tOS), who at the
from the circumstance of their being partly in rein vintage festivals of Dionysus gave expression to
and partly in personaml; and duplicia judicia, from the feelings of exuberant joy and merriment which
the circumstance of both plaintiff and defendant were regarded as appropriate to the occasion, by
being equally interested in the matter of the suit parading about, partly ona foot, partly in wagons,
(Gaius, iv. 160), though the person who instituted with the symbol of the productive powers of nathe legal proceedings was properly the actor. It ture, singing a wild, jovial song in honour of
is said in the institutions of Justinian, of the three Dionysus and his companions. These songs were
actions for a division, "mixtam causam obtinere commonly interspersed with, or followed by petuvidentur, tam in rin quam ill personanm" (Inst. 4.'ant, extemporal (a'r'ooXecto'LKidl, Arist. Poet..
z 3