The Same, On Urseius Ferox, Book I. Where an usufruct has been bequeathed, and the person appointed heir purposely delays entering upon the estate in order that the acquisition of the legacy may be deferred; this will have to be accounted for; as was held by Sabinus. 1The usufruct of a slave was bequeathed to me, and when I ceased to use and enjoy it, it was directed that he should be free; and I subsequently obtained from the heir an estimated equivalent of the legacy in money. Sabinus was of the opinion that the slave will not for that reason become free; for it may be held that I am enjoying the usufruct in him, since I have obtained other property in his stead, and the condition of his freedom remains the same, so that he will become free at my death, or if my civil condition is changed.

The Same, On Urseius Ferox, Book I. Where a testator appointed several heirs, among whom was Attius, to unequal shares of his estate, and if Attius should not accept, he substituted the others as heirs in proportion to their interest, and then added that Titius should be the co-heir of those who were substituted. The question arose to what share Titius would be entitled, and what the others would have. I answered that Titius would be entitled to one share and the others to shares in proportion to their rights in the estate; for instance, if there were three of them, Titius would have the fourth part of the share of Attius, and the other heirs would have the three-fourths remaining, in proportion to the shares to which they were entitled by appointment. If, however, the testator should add not only Titius, but other heirs, the latter would be entitled to a portion equal to that of the share of the substitute; for example, suppose that three co-heirs were substituted and two foreign heirs added, the latter would be entitled to five parts of the share of Attius, and the remaining co-heirs would receive the balance in proportion to their respective shares.

The Same, On Urseius Ferox, Book I. The acceptance of an estate is not included in the service of a slave. 1Therefore, if a dotal slave should enter upon an estate, the wife can recover it in an action on dowry, even though the property acquired by the labor of dotal slaves belongs to her husband. 2Where a partnership for profit and gain is entered into, each partner must pay into the common fund whatever he earns by his labor, but each one can acquire an estate for himself. 3Moreover, a slave in whom someone has an usufruct cannot enter upon an estate by order of him who enjoys said usufruct. 4The opinion has been stated by certain authorities that if a freeman who is serving me as a slave in good faith should be appointed an heir on my account, he can enter upon the estate by my order. This is true where it is understood that he does not acquire the estate as the result of his own labor, but on account of his having charge of my property; just as in making a stipulation and by accepting delivery he acquires property for me by virtue of his transacting my business.

The Same, On Urseius Ferox, Book I. Where all the heirs of a testator were charged with a legacy as follows: “Let whoever becomes my heir be charged with the payment of a hundred aurei to Titius.” It was afterwards inserted in the will that only one of his heirs should pay Titius the money. The question arose, must the remaining heirs pay the entire hundred aurei, or what is left after deducting the share of the estate belonging to the one above mentioned? The answer was that it was more advisable for the remaining heirs to pay the hundred aurei, since the meaning of the words is not opposed to this opinion, and the intention of the testator agrees with it. 1Where the following was inserted in a will: “Let my heir pay a hundred aurei to Lucius Titius, if he surrenders to him a note by which I have promised to pay him a certain sum of money.” Titius died before delivering the note to the heir; and the question arose whether his heir would be entitled to the legacy? Cassius gave it as his opinion that if there was, in reality, a note, the heir of the legatee would not be entitled to the legacy, because, as the note was not returned, the time for the legacy to vest had not arrived. Julianus remarks that, if there was no note in existence at the time when the will was executed, there was one reason why the legacy would be due to Titius, and that is because an impossible condition is not considered to have been imposed. 2Sabinus says that property which belongs to the enemy can be bequeathed, if, under any circumstances, it can be purchased. 3Where property was bequeathed to Attius, as follows, “Let whoever becomes my heir be charged to pay ten aurei to my heir, Attius,” Attius can claim the ten aurei, after the deduction of his share from the amount. 4Likewise, where an heir has been ordered to pay ten aurei and retain a tract of land for himself, he must pay that sum after having deducted his share. 5Ad Dig. 30,104,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Finally, it is established that where a legacy has been bequeathed as follows, “Let whoever becomes my heir be charged to pay my heir ten aurei,” the shares of all the heirs will be equal, for the reason that each of them is held to be charged for his own benefit, as well as for that of his co-heirs. 6Ad Dig. 30,104,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Where anyone appoints an heir as follows, “Whenever his mother shall die,” and then a second heir is appointed as his substitute, and the latter is charged with a legacy in favor of the one who was conditionally appointed, and the first one dies during the lifetime of his mother, and afterwards, the day on which the legacy is to vest arrives, the question arises whether his heir will be entitled to the legacy. The better opinion is that he will be entitled to it, whether the substitute was charged to pay it to the first heir absolutely, or under the condition that he should not become his heir; for the condition was fulfilled at the time of the death of the appointed heir. 7Where a father-in-law was appointed heir to his son-in-law, and part of the estate was bequeathed to another, Sabinus gave it as his opinion that after the dowry had been deducted, he would be liable for the share of the estate included in the legacy; just as if a sum of money had been due to the father-in-law from the son-in-law, and after this was deducted, he had surrendered the estate.

The Same, On Urseius Ferox, Book I. In repeating legacies which have already been granted, the following words are usually added, “Moreover, let my heir be charged to give,” and Sabinus says they are equivalent to the repetition of the conditions upon which the legacies are dependent, and the dates on which they are to be paid.

Julianus, On Urseius Ferox, Book I. The following condition, “If he should ascend to the Capitol,” should be understood to mean if he should ascend to the Capitol as soon as he could.

The Same, On Urseius Ferox, Book I. Whenever prætorian possession of the share of the estate due to him can be granted to a patron, an exception may be granted to the debtors against the heir who demands payment, if the patron should not, in opposition to the terms of the will, demand prætorian possession of the share to which he is legally entitled.

The Same, On Urseius Ferox, Book I. A tract of land is devised to a person who cannot legally acquire but a portion of it, under the condition that he will pay ten aurei to the heir. He is not required to pay the entire sum in order to obtain his share of the land, but only an amount in proportion to the legacy which he is entitled to receive.

Ad Dig. 46,3,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.Julianus, On Urseius Ferox, Book I. If my father should die, leaving his wife pregnant, and I, as heir, should demand payment of all the debts due to him; some authorities hold that I will still retain my rights of action, and if no child is afterwards born, that I can legally bring suit, because it is true that I am the only heir in existence. Julianus says that the better opinion is that the entire estate to which I was heir was claimed by me before it was certain that a child would not be born; or the fourth part because three children could be born; or the sixth, because five could be born. For Aristotle has stated that five children can be born, because the womb of a woman has that many receptacles, and that there was a woman at Rome who came from Alexandria in Egypt, who had five children at one birth, all of whom survived. I have obtained confirmation of this in Egypt.

The Same, On Urseius Ferox, Book II. Where a slave owned in common causes unlawful damage to one of his owners, an action under the Lex Aquilia will not lie on that account; because if he had caused the damage to a stranger, an action could be brought against the other joint-owner for the entire amount under the Lex Aquilia; just as where a slave owned in common committed theft an action for theft cannot be brought against the other joint-owner, but proceedings in partition must be instituted.

The Same, On Urseius Ferox, Book II. Mævius, who appointed us heirs, held property in common with Attius, and if we should bring suit in partition against Attius, and the property was adjudged to us, Proculus says it will be included in an action for partition of the estate. 1Where a slave is left his freedom and appointed heir, he can be compelled by an action for the partition of the estate to pay to the coheir anything which he retains in his hands arising from the accounts that he kept for the testator. 2An arbiter whom you and I selected in an action in partition desired to award certain property to me and some other to you, and held that, with reference to these matters, each of us should be directed to make payment to the other; and the question arose whether he could not set off one account against the other, and direct the party who owed the larger account to pay only the excess? It was decided that the arbiter could do this. 3Where an action is brought for the partition of an estate or for the division of property held in common, the entire property must be appraised, and not the shares in the different things.

Julianus, On Urseius Ferox, Book II. But where the case was not defended, and we are ordered by the Prætor to take possession of the house, and by reason of this we have obtained the ownership of the same; it is the opinion of Proculus that I can, by an action for the partition of common property, recover a portion of the expense that I have incurred.

The Same, On Urseius Ferox, Book II. A stipulation was entered into in the following terms: “You promise to pay ten aurei, by way of dowry, during the next year.” The question arose from what date the year should be reckoned, whether from the day the stipulation was made, or from that when the dowry took effect, that is, the day of the marriage. The answer was that the year should be reckoned from the day of the marriage, for if we held otherwise, and the marriage did not take place within the year, the dowry could be considered to be due on account of the obligation. 1A father-in-law made a bequest to his son-in-law as follows: “My heir shall give a hundred aurei to Lucius Titius on account of my daughter.” The son-in-law should claim this money, and when it is collected it ought to be received as a legacy; but Proculus is of the opinion that if a divorce takes place, it must be restored to the woman by means of an action on dowry; and, nevertheless, it becomes a part of the dowry. Julianus states in a note that an action of this kind should not even be refused a daughter, if she wishes to bring it.

The Same, On Urseius Ferox, Book II. A certain man received a tract of land from his wife by way of dowry, and it was agreed between them that the husband should give the rent of said land to his wife as annual income. The husband afterwards leased the land to the mother of the woman to be cultivated for a certain amount of rent, and she died without having paid it, leaving her daughter her sole heir, and then a divorce took place. Her husband brought suit against the woman for the rent which her mother owed him, and it was decided that an exception should not be granted her, as if the agreement had not been made between her and her husband that the said rent should be given to her for her maintenance; since, under some circumstances, donations may legally be made between husband and wife, for what is given by way of annual income is a species of gift.

The Same, On Urseius Ferox, Book II. If a former husband, as a debtor of his wife, should promise the delivery of the dotal property to her second husband by way of dowry, the amount of the dowry will not be any more than the pecuniary resources of the first husband will justify.

Julianus, On Urseius Ferox, Book II. The husband of my daughter, who was emancipated, and ill at the time, sent her a notice of repudiation, so that, after her death, he could the more readily deliver her dowry to her heirs than to me. Sabinus said that an equitable action should be granted me for the recovery of the dowry, and Gaius holds the same opinion.

The Same, On Urseius Ferox, Book II. Two partners by their will directed a certain slave owned in common by them to be their heir and free, and both of them perished at the same time by the fall of a house. Several authorities gave it as their opinion that, in this instance, the slave became the heir of, and obtained his freedom from both of them; and this opinion is correct. 1Where two partners direct a slave owned in common by them shall become free and their heir, under the same condition, and the condition is complied with, the same rule of law will apply.

The Same, On Urseius Ferox, Book II. Several authorities, and among them Priscus, have held that a person who receives a sum of money to induce him to accept an estate obtains the money mortis causa.

The Same, On Urseius Ferox, Book II. There is no doubt that a slave held in common by minors of twenty years of age can be manumitted before the proper tribunal; even though one of the owners may not assent to the proceedings.

The Same, On Urseius Ferox, Book II. Where a testator appointed two heirs, and directed that his slave should be free after the death of one of them, and the heir upon whose death the freedom of the slave depended died during the lifetime of the testator, Sabinus gave it as his opinion that the slave would become free. 1The following condition, “Let him be free when I die,” includes the entire duration of life, and therefore is held to be void. It is better, however, that the words should be interpreted in a more favorable manner, and in such a way that the testator may be considered to have granted freedom to his slave after his death. 2The following gives rise to greater doubt, “Let him be free in a year,” as this can be understood to mean, “Let him be free after the year of my death,” and it can also be understood as follows, “Let him be free after the year when I made this will,” and if the testator should happen to die within a year, the grant of freedom will be of no force or effect.

Julianus, On Urseius Ferox, Book II. Where anyone who is in possession of all his property confirms a codicil, and then grants freedom to his slaves by the codicil, with the intention of defrauding his creditors, his bequest will be of no force or effect; as, under such circumstances, bequests of freedom are prevented By law. For the intention of the testator to commit the fraud is not referred to the time when the codicil was confirmed, but to the time when freedom was granted by the codicil. 1A minor of twenty years of age who desired to manumit a slave, without having any good reason to offer to the Council for doing so, gave him to you, so that you might manumit him. Proculus denied that the slave was free, because a fraud was committed against the law.

Julianus, On Urseius Per ox, Book II. A stipulation formulated as follows, “Do you promise to pay me such-and-such a sum of money, if you do not appoint me your heir?” is void, as this stipulation is contrary to good morals.

The Same, On Urseius Ferox, Book II. Whenever one of several sureties has paid his share as having transacted the affairs of the principal debtor, this is considered the same as if the debtor himself had paid the share of the indebtedness for which one of the sureties was liable; but this does not diminish the amount of the principal, and only the surety, in whose name payment was made, is released.

Julianus, On Urseius Ferox, Book III. Where anyone receives money from my slave to prevent him from giving information concerning a theft which he committed, whether he gives the information or not, Proculus says that an action will lie for the recovery of the money.

Julianus, On Urseius Ferox, Book III. I, being ignorant of the fact, purchased my own slave from you, and paid you the money for him. I am perfectly convinced that I am entitled to an action against you for the recovery of the money, and that such a suit can be brought against you for that purpose, whether you knew that the slave was mine, or were not aware of it.

Ad Dig. 13,6,20BOHGE, Bd. 1 (1871), S. 267: Verpflichtung des Käufers wegen Zurücksendung der Emballage durch einen zuverlässigen Transportanden.The Same, On Urseius Ferox, Book III. If I give silver lent by you to me to a slave of mine to be delivered to you, who is so reliable that no one would think that he would be imposed upon by any evil-minded persons, and if such persons obtain possession of the silver, the loss will not be mine.

The Same, On Urseius Ferox, Book III. If I should be unwilling to enter upon an estate unless security is furnished me that I will be indemnified for any loss, and, under such circumstances, a mandate is given; I think that an action on mandate will lie. If, however, a party has directed another not to reject a legacy, the case is very different; for where a legacy is acquired, it cannot cause any loss to the person receiving it, but the acceptance of an estate is sometimes injurious. In a word, whenever such contracts are made, and every time a surety is bound in behalf of the parties, I think that the obligation of mandate is established; for it does not make much difference who the individual is, who, after being interrogated, became surety, or whether one who is absent directs this to be done. Moreover, it is proper to notice that it is a matter of common occurrence for estates thought to be insolvent, to be entered upon by the direction of creditors; and there is no doubt that this creates liability to an action on mandate.

Julianus, On Urseius Ferox, Book III. A certain person attempted to purchase a tract of land from another who had encumbered it, with the understanding, “That it should be considered to be purchased by him, if the vendor released the land, provided he did so before the Kalends of July.” The question arose whether he could properly bring an action of purchase founded on such an agreement, to compel the vendor to remove the encumbrance from the land. The answer was that we should ascertain the intention of the purchaser and vendor, for if it had been intended that the vendor should remove the lien from the land absolutely, before the Kalends of July, the action on purchase should be brought to compel him to do so, and that the purchase was not understood to be made under a condition; as, for instance, if the purchaser had addressed the vendor as follows: “I will buy your land if you will remove the lien on the same before the Kalends of July,” or “If you will redeem it from Titius before that date.” Where the purchase was made under a condition, proceedings cannot be instituted until the condition has been complied with. 1You sold me a table plated with silver, with the understanding that it was solid, neither of us being aware that it was not. The sale is void, and the money paid on account of it can be recovered.

Julianus, On Urseius Ferox, Book III. The purchaser would be entitled to an action under the Lex Aquilia against the ædile, if he acted illegally; or he will certainly have an action on sale against the vendor, to compel him to assign to him the rights of action which he has against the Ædile.

Julianus, On Urseius Ferox, Book III. You sold me certain lands, and it was agreed between us that I should perform some act, and that, if I did not do so, I should be liable to a penalty. The opinion was given that the vendor can bring an action on sale before suing for the penalty under the stipulation, and if he should recover an amount equal to that fixed as a penalty, he will be barred by an exception on the ground of fraud, if he brings an action on the stipulation. If you should recover the penalty by an action on the stipulation, you will be prevented by operation of law from bringing an action on the sale, unless the amount of the judgment is less than the interest of the vendor in having the agreement executed.

The Same, On Urseius Ferox, Book III. A certain man charged his heir to manumit his slave, and if his heir did not do so he directed that he should be free, and he left him a legacy. The heir manumitted the slave. Several authorities hold that he obtained his freedom by the will, ana”, as this was the case, that he was also entitled to the legacy.

Julianus, On Urseius Ferox, Book III. If a slave, the usufruct of whom has been bequeathed, and who has never been in possession of the heir, should be stolen, the question arises, can the slave be acquired-by usucaption, because the heir is entitled to an action of theft? Sabinus says that no usucaption can exist in the case of property on account of which an action for theft will lie, but that he who is entitled to the usufruct can bring this action. This, however, must be understood to apply to a case where the usufructuary can use and enjoy his right; for otherwise, the slave would not be in the condition in which he should be. But if the slave had been stolen from the usufructuary, while in the enjoyment of his right, not only he himself, but also his heir, can bring the action for theft.

The Same, On Urseius Ferox, Book III. A man who has received from his own slave a female slave in consideration of the grant of his freedom, can, as a purchaser, acquire by usucaption the child of the said female slave.

Julianus, On Urseius Ferox, Book III. No one can acquire property by usucaption on the ground of abandonment who erroneously thinks that it has been abandoned.

Julianus, On Urseius Ferox, Book III. My slave, being in the hands of a thief, stipulated that he should be given to him. Sabinus denies that he is due to the latter, because when he made the stipulation, he was not serving him as a slave. I, however, cannot bring suit by virtue of this agreement, because at the time that the slave made it, he was not serving me. But if he made a stipulation without mentioning the thief personally, the right of action will be acquired by me, but neither a suit on mandate, nor any other, should be granted the thief against me.

Julianus, On Urseius Ferox. Where a man leaves two agents to attend to all his business, unless he expressly states that one is to bring suit against the other for money, it cannot be maintained that such a mandate was given to either of them.

Julianus, On Urseius Ferox, Book IV. For whenever no one will undertake the defence of the son of a family on account of a breach of the law, an action is granted against him,

Ad Dig. 11,1,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 118, Note 6.Julianus, On Urseius Ferox, Book IV. Where a person who was heir to half of an estate wished to defend his absent co-heir, and, in order to avoid the burden of furnishing security, answered that he was the sole heir, and judgment was rendered against him; the plaintiff asked whether, as the party was insolvent, the former judgment could not be rescinded, and an action be granted him who was really the heir. Proculus answered that the judgment could be rescinded and the action be brought, and this is correct.

The Same, On Urseius Ferox, Book IV. If a woman has become surety for me to Titius, in violation of the Velleian Decree of the Senate, and Titius sues her for the money which I have paid her, she cannot avail herself of the exception based on the Decree of the Senate, for she was in no danger of losing the money, since she already has it in her possession. 1If I have accepted a surety for a woman who has bound herself in violation of the Decree of the Senate, Gaius Cassius answered that an exception should be granted to the said surety, only to the extent that the woman had asked him to be responsible for her. Julianus, however, thinks very properly than an exception should be granted to the surety, even though he is not entitled to an action on mandate against the woman; for the reason that the Senate disapproves of the entire obligation, and the liability of the former debtor to the creditor is reestablished by the Prætor.

Julianus, On Urseius Ferox, Book IV. A replication alleging bad faith should not be pleaded against an exception founded upon an oath taken in court, as the Prætor should see that no question is subsequently raised with reference to such an oath.

Julianus, On Urseius Ferox, Book IV. If property should be stolen from a son under paternal control, he can properly bring an action for this cause after he becomes the head of a household. Where property which has been leased to him has been stolen, he can also bring an action on this account, after he becomes independent.