Marcianus, Rules, Book I. Where a slave is forbidden by the testator to render an account, it does not follow that, by not being obliged to do so, he can obtain for his own benefit what may be in his hands; but, in order to avoid a too rigid examination being made, that is to say, that the slave may not be held accountable for negligence, but only for fraud. Therefore, his peculium is not considered to have been bequeathed to a manumitted slave merely for the reason that he is prohibited from rendering an account.

Marcianus, Rules, Book IV. The Divine Pius and the Divine Brothers stated beneficently in a Rescript that where a slave, who was appointed a substitute, had been bequeathed a legacy, together with his freedom, in case he should not be an heir, but the bequest of his freedom was not repeated, the result would be the same as if this had been done.

Marcianus, Rules, Book I. The Divine Severus and Antoninus stated in a Rescript that a woman who purposely produces an abortion on herself should be sentenced to temporary exile by the Governor; for it may be considered dishonorable for a woman to deprive her husband of children with impunity.

The Same, Rules, Book I. Exile is of a threefold nature; interdiction of certain places, or of secret flight; or all places are forbidden except one which is designated; or confinement to one island is prescribed, that is to say, relegation to a single island.

Marcianus, Rules, Book II. Where two persons have been guilty of fraud, they cannot bring actions against one another on this ground.

Marcianus, Rules, Book II. A person who is absent in the service of the State is entitled to restitution against one who is also absent on public business, if he has just cause for complaint on account of having sustained some loss.

Ad Dig. 4,8,51ROHGE, Bd. 4 (1872), S. 137: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.ROHGE, Bd. 7 (1873), S. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 7 (1873), S. 331: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.ROHGE, Bd. 8 (1873), S. 418: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.ROHGE, Bd. 21 (1877), Nr. 31, S. 86: Rechtsweg gegen einen Beschluß der Gesellschafter über Ausschließung eines Socius.Marcianus, Rules, Book II. Where anyone has been appointed an arbiter in a matter in which he himself is interested, he cannot make an award, because he would order himself to do something, or forbid himself to bring suit; for no one can command himself to perform an act, or prohibit himself from doing it.

Marcianus, Rules, Book II. The same guardian can grant his authority to two wards in a case where one is plaintiff and the other defendant. In case, however, he should act in this twofold capacity, will a single authorization be sufficient, under these circumstances, for both the wards? Pomponius is in doubt on this point, but it may be strongly maintained that a single authorization will suffice.

Marcianus, Rules, Book II. Where a son has been disinherited after his emancipation, and another, who is under the control of the father, is passed over, and the one who is emancipated contests the will, his act will be void; for both the proper heir and the son who is emancipated will be entitled to the succession ab intestato.

Marcianus, Rules, Book II. That is to say, the half of the slave and the fourth of the estate,

Ad Dig. 29,2,55Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 595, Note 10.Marcianus, Rules, Book II. When a necessary heir rejects the estate of his father, his co-heir whether he be a proper heir, or a stranger, can either accept the entire estate or reject it; and where he cannot reject it himself, he can do so on account of its refusal by his co-heir. If, however, the creditors should say that they will be content with his share because he cannot be discharged from liability unless he be allowed to make his choice, they should relinquish the other’s share in order that the rights of action growing out of it may be assigned to the co-heir who is sued.

The Same, Rules, Book II. There are certain dispositions which do not relate to the confirmation of codicils; as, for instance, where anyone confirms a codicil before being taken prisoner, and writes a codicil while in captivity, for such a codicil will not be valid. The same rule applies where a person in some way or other ceases to possess testamentary capacity. 1Moreover, in questions which are rather those of fact than of law, what is included in a codicil is not to be considered as if it had been written at the time when the codicil was confirmed; for example, if it should be stated in the codicil, “That such-and-such a garment which belongs to me is bequeathed”, the time that the codicil was written, and not that when it was confirmed, should be considered. Again, if a bequest is made to Seius by a codicil as follows, “If Titius is living”, or “If he is so many years old”, the date of the codicil, and not that of the will, should be considered.

The Same, Rules, Book II. There are certain matters in which at first it is difficult to arrive at a conclusion, but in the end what has been done appears to be clear; as, for instance, where a bequest has been made, and, while the legatee is deliberating as to whether he will accept it or not, the heir transfers the property in question to a third party. In this instance the transfer will be void if the legatee should decide to accept the legacy; but if he should reject it, the transfer will be valid. The case would be the same if the heir should loan money belonging to the estate which was bequeathed; for if the legatee did not reject it, it would be held that the heir had loaned money belonging to someone else, but if the legatee rejected the estate he would be held to have lent his own money. But what if the money was expended? The same rule would apply, in accordance with the circumstances of the case.

The Same, Rules, Book II. Where a father desired that, in case his only surviving son should die, his share of the estate should be delivered to a relative, and the brothers died upon the same day, the said relative will not be entitled to a share in the estate if he cannot prove which one of the brothers died last; but it has been decided that their mother will be entitled to the estates of both of them under the Tertullian Decree of the Senate.

Ad Dig. 39,6,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 429, Note 2.The Same, Rules, Book II. Where two persons make reciprocal donations, mortis causa, of the same property, and both of them die, the heir of neither can recover the property, for the reason that neither one survives the other. The same rule of law will apply, if a husband and wife should make reciprocal donations.

Marcianus, Rules, Book II. The creditors of an estate who have filed-claims against the heir can, nevertheless, obtain a separation of property, because they took this step from necessity.

Marcianus, Rules, Book II. In the payment of money, it sometimes happens that two obligations are discharged by one payment, at the same time; as, for instance, where anyone sells to his creditor the property which has been pledged to secure his debt; for it happens that, by the sale, the obligation of the debt is also extinguished. Again, where a bequest is made by a creditor to a ward who has borrowed money without the authority of his guardian, under the condition that he will pay this money, the ward is held to have paid it for two reasons: first, to discharge his debt, as it will be credited on the Falcidian portion of the heir; and second, in order to comply with the condition to enable him to obtain the legacy. Likewise, if the usufruct of a sum of money has been bequeathed, it happens, that by one payment the heir will be released from the obligation imposed by the will, and will render the legatee liable to himself. The same thing occurs where anyone has been ordered by the court to sell or lease property to another; for, either by selling or leasing, the heir will be freed from liability under the will, and will render the legatee liable to himself.

Marcianus, Rules, Book II. Slaves are forbidden every kind of military service, under penalty of death.

Marcianus, Rules, Book II. The same distinction is conferred upon veterans and their children as upon decurions. Therefore they shall neither be condemned to the mines, nor to labor on the public works, nor be thrown to wild beasts, nor be beaten with rods.

Marcianus, Rules, Book III. Servitudes are either personal, as use and usufruct; or real, as the servitudes of rustic and urban estates.

Marcianus, Rules, Book III. Where the owner of two houses sells one, and states that it is to be subject to a servitude, but does not mention the servitude when he delivers it; he can bring an action on sale, or sue for recovery of an uncertain amount of damages in order to have the servitude imposed.

Marcianus, Rules, Book III. Where a son brings any property into hotchpot for his brother as if he were about to institute proceedings for the possession of the estate, and does not do so; Marcellus says in the Fifth Book of the Digest, that he is entitled to an action to recover it.

The Same, Rules, Book III. Where anyone is entitled to a perpetual exception, he has a right of action to recover anything paid by mistake; this, however, is not universally applicable, for where an exception is granted in behalf of the party against whom proceedings were instituted, he can bring suit to recover what he paid, as happens in the case of securities under the decree of the Senate; but where the exception is granted by way of grudge against the party to whom the money is due, whatever has been wrongfully paid cannot be recovered; for example, where a son under parental control borrows money against the Macedonian Decree of the Senate, and afterwards, having become his own master, pays it, he cannot bring an action to recover the same. 1Where a part of a house is left in trust from a certain day, and before the time when the trust vests, it burns, and the heir rebuilds it at his own expense, it is established that the expense of the same must be deducted from the amount included in the trust; and if the heir delivers the house without deducting the said expense, an action may be brought for the recovery of an uncertain amount on the ground that the heir paid more than was due. 2If a patron enters into an agreement with his freedman that suit shall not be brought against him for services, and anything should afterwards be paid by the freedman, suit may be brought to recover the same.

Ad Dig. 18,1,44ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Marcianus, Rules, Book III. Where anyone buys two slaves at the same time for one and the same price, and one of them dies before the sale is concluded, the purchase of the one who survives is void.

Ad Dig. 19,5,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 421, Note 13.Marcianus, Rules, Book III. Where anyone furnishes the services of his slave, who is an artisan, to another, in exchange for those of a similar slave belonging to the latter, for the same length of time, proceedings can be instituted by an actio præscriptis verbis, just as in the case where a party gives cloaks in return for tunics. Nor is this inapplicable, if services which were not due should be rendered by mistake, as these cannot be recovered; for in giving one thing in return for another we contract an obligation under the Law of Nations, but where something is given which is not due, either restitution should be legally demanded, or an equal amount of the same thing should be returned, and by neither of these methods can the services above mentioned be recovered.

Marcianus, Rules, Book III. Whenever a husband returns property to his wife in a suit for the recovery of her dowry, he must surrender whatever he obtained in this way, not only where the land given as dowry was appraised, but also where it was not, because the land was included in the dowry; and likewise if she promised to pay double damages in case of eviction, even where she was not obliged to do so.

Marcianus, Rules, Book III. The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.

Marcianus, Rules, Book III. Certain authorities held that the following appointment was not valid: “Let Stichus be free, and if he should become free, let him be my heir.” The Divine Marcus stated in a Rescript that this appointment is valid, just as if the addition, “If he should become free”, had not been made. 1Where anyone makes the following provisions in a will, namely: “If Stichus should still belong to me when I die, let him be free, and my heir.” If Stichus is alienated, he cannot enter upon the estate by order of the purchaser, although, even if the testator had not declared it to be his intention, the slave cannot become free and the heir, unless he was under his control at the time of his death. If, however, he should manumit him during his lifetime, Celsus says in the Fifteenth Book of the Digest that Stichus will become his heir; for it is evident that the testator did not intend to exclude this case, nor are his words at all contradictory, for even though he is no longer his slave, he certainly is his freedman.

Marcianus, Rules, Book I. If anyone should bequeath a legacy to Titius and Mævius, one of them will be permitted to accept the legacy without the other. For when the Prætor says, “I order that the unborn child, together with the other children, shall be placed in possession of the estate,” even though there are no other children, the unborn child will be placed in possession.

Ad Dig. 33,4,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 658, Note 4.Marcianus, Rules, Book III. Where a dowry has been bequeathed, the heir should not be heard, if he wishes to defer payment of it to the woman on account of donations which have been made to her by her husband, or because of other expenses than those which, by operation of law, diminish a dowry, for it is one thing for a dowry to be diminished by necessary expenses, and another where it is retained because of a pledge; since it is but just that the woman should contribute her share of the indebtedness for which it was given as security.

Marcianus, Rules, Book III. Where a certain kind of provisions is bequeathed, together with the vessels in which they are contained, and they have been consumed, the vessels are not included in the legacy, as in the case of the peculium.

The Same, Rules, Book III. When we consider the case of persons dying at the same time, as well as the discussion of other matters; for example, where a mother stipulated that the dowry of her daughter should be returned to her by the husband, if her daughter should die during marriage, and the mother died at the same time as her daughter, the question arises whether an action based on the stipulation would lie in favor of the heir of the mother. The Divine Pius stated in a Rescript that the stipulation would not allow such an action to be brought, because the mother did not survive the daughter. 1The question was also asked if a stranger who stipulated for the return of a dowry should die at the same time as the husband, or at the same time as the wife on whose account he entered into the stipulation, could he transfer the right of action to his heir?

Marcianus, Rules, Book III. In the following instance, where a minor and his brother, who was his necessary heir, and was substituted for him, died at the same time, the question arises whether the brother would be the heir to his brother or not. Moreover, where two necessary heirs have been substituted for one another, and they perished together, will both be considered as the heirs of the testator, or will one of them be the heir of the other, that is to say, if they had been asked to deliver the estate to one another at the time of their death? In cases of this kind, if they should die at the same time, and it does not appear which of them was the first to lose his life, one of them will not be considered to have survived the other. 1However, with reference to the Falcidian Law, if a master dies at the same time as his slaves, the latter will not be reckoned as forming part of his estate at the time of his death.

Modestinus, Rules, Book III. Where an unborn child is placed in possession of an estate, no legatee can be given possession of it to provide for the payment of the legacy.

Marcianus, Rules, Book III. It is very properly held that even the profits which have already been obtained are included in the Favian and Calvisian Actions, since it is the intention of the Prætor to annul every fraudulent act of a freedman.

The Same, Rules, Book III. The son of a deaf or dumb father can manumit a slave by his order. The son of an insane person, however, cannot do so.

Marcianus, Rules, Book III. Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting. 1Pomponius, also, in the Fifth Book of Various Passages, says that if the purchaser knows, or thinks that the usufruct of the property belongs to another, he can still obtain the latter by long-continued possession. 2The same rule applies, as he says, if I purchase property which I know has been pledged.

Marcianus, Rules, Book III. When either a husband or a wife builds upon land which one of them has given to the other, it is the opinion of several authorities that they can hold the property by means of an exception on the ground of fraud.

Marcianus, Rules, Book III. Ad Dig. 46,3,46 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 13.If anyone should give to his creditor with his consent, by way of payment, one kind of property instead of another, and it should be evicted, the former obligation will continue to exist. If the property should only partly be evicted, the obligation for the entire amount will still remain unimpaired, as the creditor would not have accepted it if there had been any doubt as to the title. 1Ad Dig. 46,3,46,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 13.But even if, for example, he had given two tracts of land instead of paying his debt, and one of them was evicted, the obligation would remain unimpaired. Therefore, when one article is given in payment for another, a release from liability is effected, and it absolutely belongs to the person who receives it. 2But where anyone, through fraud, gives in payment a tract of land which is estimated at more than it is worth, he will not be released unless he makes up the deficiency.

Marcianus, Rules, Book IV. A holy place is one which is defended and protected from the injuries of men. 1The word “sacred” is said to have been derived from the word sagmina, certain plants which were usually carried by the ambassadors of the Roman people to prevent their persons from being violated; just as the Greek Ambassadors carried those which are called khrukia. 2Cassius states that Sabinus very properly gave the opinion that the walls of a city were holy, and that it was necessary for persons to be prohibited from placing anything against them.

The Same, Rules, Book IV. Where a party is ordered by an arbiter to pay a sum of money in accordance with the terms of arbitration, and fails to do so, he must pay the penalty in pursuance of the agreement, but if he afterwards makes payment he will be released from the penalty.

Marcianus, Rules, Book IV. Because the affair has come to such a pass that the right to bring suit could not have originally existed.

Marcianus, Rules, Book IV. An action is granted a husband against his wife on account of corrupting a slave, even while marriage exists, but only for simple damages in consideration of matrimony.

Marcianus, Rules, Book IV. In actions in rem and in those for production, as well as in bona fide proceedings, an oath is taken with reference to the claim. 1The judge, however, can fix a certain amount up to which the party may swear; for he had a right in the first place not to tender him the oath. 2Moreover, where the oath is taken, the judge has a right either to dismiss the case, or to render judgment against the defendant for a smaller amount. 3In all these instances, however, the oath with reference to the claim can be taken only where fraud exists, and not on account of negligence; for the judge makes an estimate of what comes under the latter. 4There is no question that sometimes an oath is taken with reference to the claim in an action of strict law; for example, where a party who promised to deliver Stichus makes default, and Stichus dies; as the judge cannot make an estimate of the value of property which no longer exists, without tendering an oath.

Marcianus, Rules, Book IV. A creditor can bring a counter action on pledge against a debtor who has pledged the property of another, even though the debtor may be solvent.

Ad Dig. 18,1,45ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.The Same, Rules, Book IV. Labeo states in the Book of Recent Cases that, where anyone purchases, as new, clothing which has been renovated, it is held by Trebatius that the purchaser must be indemnified to the extent of his interest, if he ignorantly bought the renovated clothing. Pomponius also approves of this opinion, in which Julianus concurs, for he says that if the vendor was ignorant that the clothing was not new, he will be liable only for the value of the property itself, but if he was aware of the fact, he will also be liable for damages sustained by the purchaser on that account, just as if he had ignorantly sold a vase plated with gold for a solid one, for he must make good the gold which he sold.

Marcianus, Rules, Book IV. If a slave should commit a theft against his master, it is not necessary to state this at the time of the sale of the slave, for a return will not be granted for this reason. But if he said that this slave was not a thief, he will be liable on the ground of making such a representation and guarantee.

Marcianus, Rules, Book IV. Ad Dig. 22,1,32 pr.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 10 (1874), S. 274: Der Verkäufer muß sich nicht nur zur Lieferung der Waare bereit erklärt haben, sondern auch wirklich dazu bereit gewesen sein, um den Käufer in Verzug zu setzen.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 279, Note 4.Default is understood to apply, not to the property, but to the person; that is to say, where the party, after having been notified at the proper place, does not make payment; and this should be investigated by the court, for, as Pomponius says in the Twelfth Book of Epistles, the definition of this term is difficult. The Divine Pius stated in a Rescript addressed to Tullius Balbus, that the meaning of the word “default” cannot be determined by reference to any Constitution, nor by inquiry of legal authorities, since it is rather a question of fact than of law. 1Ad Dig. 22,1,32,1ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 281, Note 4.Proof of default is not sufficient where notice is served upon a slave of the absent debtor by the creditor, or the agent of the latter; since it is held that the master himself must be notified. But, if subsequently, when the creditor has the power to do so, he should neglect to prosecute the action instituted for the recovery of the debt, the debtor will not be understood to be in default from that time forward. 2In bona fide contracts, interest becomes due through default. 3But what if a son under paternal control and his father, to whom the liability of the former has passed, owe a debt which has been contracted by order of the father; or if the money has been expended for his benefit; or if it has become a part of the peculium of the son; which one of the parties must be considered to be in default? If only the father is sued on account of being in default, he cannot be held liable; still, an action will be granted against the son for the benefit of the creditor, to compel him to pay what the creditor has failed to collect from the father. Where, however, the son is in default, the creditor then can sue him for the entire sum, or he can sue his father only for the amount of the peculium. 4But where two debtors have bound themselves jointly, the default of one does not prejudice the rights of the other. 5Moreover, if a surety alone is in default, he will not be liable; just as if he had killed his slave Stichus, whom he had promised to deliver, but a prætorian action will be granted against him.

Marcianus, Rules, Book IV. It is stated in a Rescript by the Divine Pius that, if a freedwoman, representing herself to be freeborn, should deceive a Senator and marry him, an action should be granted against her, just as in the case of the Prætorian Edict, for the reason that she can derive no advantage from her dowry, as it is void.

Marcianus, Rules, Book IV. If the emancipated son should demand prætorian possession contrary to the provisions of the will, it is established that the descendants and ascendants of the testator should be protected. If, however, various donations mortis causa should have been made to privileged persons by the testator, they must contribute pro rata to the share of the emancipated son, just as happens in the case of the division of an estate and legacies. 1Where, however, a father dies intestate, his son cannot complain of donations mortis causa, as no contribution of legacies takes place.

Marcianus, Rules, Book IV. It is more usual for women to manumit their foster-children, but this is also permitted in the case of men; and it is sufficient for one to be allowed to manumit a slave in whose support he has a more than ordinary interest. 1There are some authorities who think that women can manumit a slave for the purpose of marrying him, but this should be limited to a case where he was bequeathed to the woman who has been his fellow-slave. If a man, who is impotent, wishes to manumit a female slave for the purpose of marrying her, he can do so. This rule, howevery does not apply to one who has been castrated.

Marcianus, Rules, Book IV. Where anyone is asked to manumit a female slave, and delays doing so, and, in the meantime, she has a child; it has been established by an Imperial Constitution that under such circumstances the child will be born free, and will even be considered freeborn. There are, however, certain constitutions by which it is provided that the child is freeborn from the very time that the grant of freedom takes effect, and this rule should undoubtedly be observed; for freedom is not a private but a public matter, so that he who is under obligation to grant it should tender it voluntarily. 1Where, however, the female slave had a child before she was entitled to her freedom under the trust, and this had been purposely brought about by the heir, in order that she might not yet be entitled to her freedom, as where he delayed entering upon the estate in order that any children born to the said female slave would belong to him, it is settled that they should be manumitted, but they must be delivered to their mother to be set free by her and become rather her freedmen than those of the heir, for where the latter is unworthy to have slaves, he is not worthy of having freedmen.

Marcianus, Rules, Book IV. The same rule will apply where the heir did not designedly delay entering upon the estate, but deliberated as to whether or not he would accept it; and if he learned that he had been appointed heir after the slave had brought forth her child, it is decided that relief should be granted in this case; for, under such circumstances, the heir himself ought to manumit the child, and not deliver it to its mother to be emancipated. 1If, however, freedom has been directly bequeathed to the slave, and any of the above events should take place, in what way can relief be granted to the child? For, in these instances, freedom left under a trust is demanded, and the Prætor comes to the relief of the children, but where freedom is left directly, no such a demand is made. I think, however, that, in a case of this kind, the child is entitled to relief, and that the Prætor, having been applied to, may grant the mother an action in rem, just as where freedom is left by a trust. Hence, Marcellus, in the Sixteenth Book of the Digest, states that where children who have been manumitted by will before the estate is entered upon are acquired by usucaption, relief must be granted them, in order that their freedom may be preserved by the Prætor; and although they may have been to blame for suffering themselves to be acquired by usucaption, still, no responsibility can attach to children on this account.

Marcianus, Rules, Book IV. “If I stipulate for ten aurei for myself, or for Titius,” Titius cannot take a surety, because he was added only for the purpose of payment.

The Same, Rules, Book IV. Where payment is made to a ward without the authority of his guardian, and an inquiry is instituted to ascertain the time when he profited by it, the date on which he brought his action is taken into account; and this is done in order to determine whether he can be barred by an exception on the ground of fraud. 1Ad Dig. 46,3,47,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 14.It is evident (as Scævola says) that if the property was lost before issue had been joined, the ward is sometimes considered as having profited pecuniarily; that is to say, if he bought something which was necessary, and which should have been purchased with his own money. For he is considered to have profited by the transaction by the mere fact that he did not become any poorer. Hence the opinion was advanced that the Macedonian decree of the Senate does not apply to the case of a son under paternal control, if he borrowed money for necessaries and lost it.

Marcianus, Rules, Book IV. He who shows the way to a fugitive slave does not commit a theft.

Marcianus, Rules, Book V. A son, whether he is natural or adopted, who is under the control of his father, cannot in any way compel him to release him from it.

Marcianus, Rules, Book V. And where the adopted son, having arrived at puberty, proves that it is not advantageous to himself to be brought under the paternal control of the other, it is just that he should be emancipated by his adoptive father, and in this way be reinstated in his former condition.

Marcianus, Rules, Book V. Where anyone makes proper allegations in a suit with reference to a servitude which he enjoys in common with others, and loses the case in some way through his own negligence, it is not just that this should cause any damage to the other joint-owners; but if, through collusion, he abandons the suit to his adversary, an action on the ground of fraud should be granted to the others; as Celsus says, and he adds that this was also held by Sabinus.

Marcianus, Rules, Book V. In cases of this kind bets are allowed under the Titian, Publician, and Cornelian laws, but it is not lawful under other laws where the contest is not for the exhibition of skill.

Marcianus, Rules, Book V. The peculium is created, grows, decreases, and dies, and therefore Papirius Fronto very properly says that the peculium resembles a man. 1The question arose how a peculium is created. The ancients made a distinction in this respect, for if the slave has acquired what the master was not bound to furnish, this is peculium, but if he has acquired tunics or anything of this kind with which the master is bound to provide him, it is not peculium. Therefore peculium is created in this way, it grows when it is increased, it decreases when sub-slaves cease to exist or property is destroyed, it dies when it is taken away.

The Same, Rules, Book V. When a petition is filed for the appointment of a guardian for a minor who has one that is absent, the appointment, made as if he did not have any, is void. For whenever, through ignorance of the facts, such a petition is filed for the appointment of a guardian, the appointment will not be valid, especially since the promulgation of a Constitution of the Divine Brothers relative to this subject.

Marcianus, Rules, Book V. Where a legatee is charged to surrender his entire legacy to another, and desires to be released from the responsibility of guardianship, he will obtain his legacy for the purpose of delivering it to the beneficiary; this case being similar to that of an heir who brings an action claiming that the will is void, and loses his case.

The Same, Rules, Book V. The Divine Pius decided that a person was unworthy (as Marcellus states in the Twelfth Book of the Digest) who was clearly proved to have permitted the woman by whom he was appointed heir to die through his own negligence and fault.

Marciamis, Rules, Book V. Where an emancipated son is passed over in a will, I do not think that he can claim prætorian possession of the estate in opposition to the terms of the will, if the appointed heir should interpose an exception on the ground of fraud, based on a debt which he owed his father; for, in this instance, he has, as it were, abandoned the right to claim prætorian possession of the estate. This, however, must be understood to be applicable where the son was not willing to bar the heir claiming the debt, by means of the exception, “If possession of the estate contrary to the provisions of the will cannot be granted to the son,” but prefers to avail himself of an exception on the ground of bad faith.

The Same, Rules, Book V. Where a donation mortis causa is made in such a way that it cannot be revoked under any circumstances, it is rather a donation inter vivos than one mortis causa. Hence it should be considered as any other donation inter vivos, and will be void as between husband and wife; and the Falcidian Law will not apply, as it does in the case of donations mortis causa.

Marcianus, Rules, Book V. Where a slave has obtained his freedom as a reward for detecting the murderer of his master, he will become the freedman of the deceased.

Marcianus, Rules, Book V. Anyone is entitled to be a privileged creditor, after the Treasury, if he has lent money for the purpose of building, repairing, arming, or equipping a ship, as well as where he brings suit to collect the price of a ship which has been sold.

Marcianus, Rules, Book V. It is provided by certain Rescripts of the Divine Antoninus that there is ground for prescription, where long-continued possession of movable property has existed.

Marcianus, Rules, Book V. He does not commit the crime of lese majesty, who repairs the statues of the Emperor which have become damaged by age. 1Nor does he commit the crime of lese majesty who, having thrown a stone without aiming at anything, accidentally strikes a statue of the Emperor; and this was stated by Severus and Antoninus in a Rescript addressed to Julius Cassianus. 2The same Emperor stated in a rescript to Pontius that to sell the statues of the Emperor which had not yet been consecrated was not lese majesty.

The Same, Rides, Book IV. The Divine Severus and Antoninus stated in a Rescript addressed to Cassius Festus that if the property of private individuals deposited in a temple should be stolen, an action for theft, and not one for sacrilege should be brought.