Ad Dig. 4,4,38Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 117, Note 6.Paulus, Decrees, Book I. Æmilius Larianus purchased from Obinius the Rutilian tract of land, subject to the condition of payment on a certain day, and paid down a part of the purchase-money; it being understood that if, within two months from that date, he should not have paid half of the remainder of the price, the sale should be considered void; and also, if he did not pay the remainder within two months more, the sale should also be held to be void. Larianus, having died before the first two months had elapsed, was succeeded as heir by Rutiliana, a minor, whose guardians neglected to make payment within the specified time. The vendor, having served several notices upon the guardians, after a year had elapsed sold the property to Claudius Telemachus; and then the ward applied for complete restitution, and having lost the case before the Prætor, as well as the Prefect of the City, she appealed. I was of the opinion that the decision was correct, because her father, and not herself, made the contract; the Emperor, however, decided that, as the day when the condition was to be fulfilled came during the time when the girl was a ward, this was good cause why the condition of the sale should not be observed. I stated that she was rather to be granted restitution for the reason that the vendor, by notifying her guardians after the time when it was agreed that the sale should be annulled, and by demanding the purchase-money, should be held to have abandoned the condition which was for her benefit, and that I was not influenced by the fact that the time had afterwards elapsed; any more than I would have been had a creditor sold a pledge after the death of a debtor, when the day of payment had passed. Still, because the law of conditional avoidance was displeasing to the Emperor, he decreed that complete restitution should be granted. He was also influenced by the fact that former guardians, who had not applied for restitution, had been declared to be liable to suspicion. 1When it is stated that relief is not ordinarily granted to the son of a family after he has been emancipated, if he is still a minor, with reference to matters which he had neglected while under paternal control; this is only held to be the case where he would otherwise acquire property for the benefit of his father.

Paulus, Decrees, Book I. A certain woman appealed from the decision of a judge because, as she stated, in an action for the partition of an estate between herself and the co-heir, he had divided not only the property but the freedmen also, as well as an obligation for maintenance directed by the testator to be furnished to certain freedmen; which, she alleged was something that he had no right to do. On the other hand, it was stated that the parties had agreed to the division, and had paid sums for maintenance in accordance with the terms of the division for many years. It was decided that they must abide by the provision for maintenance; but the judge added that the division of freedmen was of no effect.

Paulus, Decrees, Book I. Titianus Primus appointed a slave for the purpose of lending money and taking pledges; and the said slave was also accustomed to bind himself for, and to pay the obligations of persons who dealt in barley. The slave having run away, and the party to whom he had been substituted to pay the price of the barley having sued his master on account of the business manager, he denied he could be sued on this ground, because he had not been appointed for the transaction of this business. But as it was proved that the same slave had transacted other business and had rented granaries, and paid money to many people, the Prefect of Subsistence rendered a decision against the master. We stated that he appeared to be a kind of surety, since he was paying the debts of another, for he assumed payment in behalf of others, but that it was not usual for an action to be granted against a master for a reason of this kind, nor did it appear that the master had directed him to do this. But as he seemed to have appointed the slave to act in his behalf in all these transactions, the Emperor confirmed the decision.

Paulus, Decrees, Book I. A creditor who, availing himself of his privilege, sells a pledge, is obliged to assign his rights; and if he is in possession of a pledge he must certainly transfer it.

The Same, Decrees, Book I. Interest is not exacted on money given to the Government by way of liberality. 1When interest on the price of a tract of land was demanded of a party who had purchased it from the Treasury, and the purchaser denied that possession had been delivered to him; the Emperor ruled that it was unjust for interest to be exacted of one who had not gathered the crops.

Paulus, Decrees, Book I. An action for theft will lie in favor of a creditor for the value of a pledge, but not for the amount of the debt. But when the debtor himself steals the pledge, the contrary is true; so that the action for theft can be brought for the amount of money due, and for the interest on the same.

Paulus, Decrees, Book I. A woman named Moschis, who was indebted to the Treasury on account of a lease for the farming of taxes, left several heirs, from whom, after the estate had been accepted, Faria Senilla and others, purchased certain lands. When suit was brought against them for a balance due from Moschis, they having alleged that the heirs of the latter were solvent, and that many other persons had bought property from them, the Emperor considered it just that recourse should first be had to the heirs, and that all the possessors should be sued for the balance. And this was his decision. 1Æmilius Ptolemy leased land from the Treasury, and gradually sublet it to several persons for a higher rent than he himself had agreed to pay. Suit was brought against him by the Managers of the Imperial Revenues for all that he had collected. This seemed to the Treasury to be both unjust and useless, as he had leased the land to the others at his own risk, and therefore it was decided that he could be sued only for the amount for which he, as lessor, had rendered himself liable.

Paulus, Decrees, Book I. The Emperor Severus said: “Even if Titius should be proved to have been born to a father who was in slavery, but of a mother who was free, he is not thereby prevented from becoming a decurion in the city of his birth.” 1There is no doubt that sailors cannot become decurions.

Paulus, Decrees, Book II. Romanius Appulus took an appeal from a judge, alleging that his colleague should not have been appointed with him in the guardianship, for the reason that the latter had been appointed by him while he was acting magistrate, on his own responsibility, to avoid his being subjected to a double liability, growing out of a single guardianship. The Emperor decreed that the same party could be surety for a guardian, and, nevertheless, be appointed a guardian. Therefore, he was retained in the guardianship.

Paulus, Decrees, Book II. Æmilius Dexter neglected to require security from guardians appointed during the time of his magistracy, and some of them having been excused, Dexter himself was appointed guardian by other magistrates who succeeded him. After his appointment, an action was brought against him for the entire amount, for two reasons; first, because he had appointed guardians at the time when he was a magistrate; and second, because he did not require security from them. On the other hand, it was said that although security was not required, still, the guardians were solvent at the time when the guardianship was terminated, and that the negligence of the curators should not be a source of injury to guardians. It was held that if the guardians were solvent at the time when the guardianship came to an end, even if security was not required, the responsibility will attach to the curators, otherwise, it will attach to the guardians and magistrates; that is to say, that he will be responsible who did not denounce his colleague as suspected, or did not require security when, on the expiration of the trust the guardian was found to be insolvent.

The Same, Decrees, Book II. Paula, having appointed Callinicus heir to a part of her estate, bequeathed by her will ten aurei to her daughter Jubentiana, and then, after some time, having executed a codicil, she left the hundred aurei to the same Callinicus, but did not add: “In addition to his share.” It was decided that both sums should be paid to him, especially as nothing had been left to the daughter of Callinicus by the codicil. 1Pompeius Hermippus appointed his son Hermippus heir to three-fourths of his estate, and his daughter Titiana heir to the remaining fourth, and left to each of them certain lands as preferred legacies; and he also directed that if Hermippus should die without issue, another tract of land should be given to his daughter. After having made his will, he made a codicil by which he left his daughter certain lands, and desired her to be content with them, together with what he had left her by his will. The property of Hermippus was forfeited to the Treasury, and his sister Titiana demanded the execution of the trust. The question arose, as her brother was requested to pay her so much instead of her share of the estate, whether her father intended that she should only receive what he had left her by the codicil. It seems to me that he had absolutely revoked his first will. The more equitable interpretation seemed to be that her father did not intend to deprive her of her share of the estate to which she would have been entitled during the lifetime of her brother, nor of that which the latter was to leave her at his death, if he should die without issue; and it was so decided. 2Julianus Severus, having appointed several heirs at the time of his death, left to his foster brother fifty aurei which he desired to be paid to him by Julius Maurus, his tenant, out of the rent of land that he owed him; and he also bequeathed certain property to the said Maurus. The Treasury raised a question as to the disposal of the estate, and Maurus paid the money to the Treasury, by order of the Imperial Steward, and the appointed heir afterwards gained the case against the Treasury. The foster-brother having died, his heir demanded the execution of the trust by the heir of Maurus; but the Emperor decided that he was not charged with the trust, but that he had only been mentioned to point out the source from which the trust could be obtained, and therefore that the heir of Severus should execute it.

Paulus, Decrees, Book II. A certain Osidius, having appointed his daughter Valeriana his heir, and granted freedom to his steward, Antiochus, and having devised to the latter certain tracts of land together with his peculium and whatever was due, not only from him but from the tenants, the legatee produced a statement written by the hand of the testator, showing what was owing from him and the tenants. The following was also inserted in this instrument: “Moreover, my steward must render an account of other property, that is to say, such as I have set aside for my use, namely grain, wine, and other articles.” The freedmen demanded these things from the heir, alleging that they were included in what remained due, and obtained a judgment in his favor from the Governor. When, on the other hand, it was stated by other interested parties that what remained due from the tenants, or even what was due from himself had not been demanded of him, and they claimed that the articles which had been set aside for the use of the deceased should not be included in the balance which was due, the Emperor interrogated the representative of the legatee, and, by way of example, asked: “Suppose there had been set aside a hundred thousand aurei, which were to be employed for the use of the testator, would you say that all that was left in the chest would be due to you?” He held that the appeal had been properly taken. It was alleged by the representative of the legatee, that certain sums of money had been collected from the tenants, after the death of the testator. The decision was that whatever was collected after his death should be delivered to the legatee.

Paulus, Decrees, Book II. Ad Dig. 36,1,76 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 568, Note 7.A man who had a son and a daughter made a will, and provided as follows for his daughter, “I charge you not to make a will until you have children,” the Emperor decided that a trust was created by this clause, and in this way the testator, by forbidding his daughter to make a will, manifested his desire that she should render her brother her heir, and that the said clause should be understood just as if the testator had charged her to transfer the estate to her brother. 1Fabius Antoninus left a son Antoninus, who had not reached puberty, and a daughter Onorata, and, after having disinherited them, appointed their mother Junia Valeriana, his heir, charging her with a legacy of three hundred aurei and other property for the benefit of his daughter, and then desired all the remainder of his estate to be delivered to his son Antoninus, when he attained the twentieth year of his age. He also directed that the said estate should be transferred to Onorata, if his son should die before reaching his twentieth year. The mother died intestate, leaving her two children her heirs-at-law. Afterwards, the son, having passed his nineteenth year and entered his twentieth, which he had not yet completed, died, leaving his daughter Favia Valeriana his heir. Her paternal aunt brought suit under the trust, as well as for a share of the estate under the will of the father, and gained her case before the Governor of the province. The guardians of Valeriana, the daughter of Antoninus, alleging her poverty, cited a Constitution of the Divine Hadrian by which he had ordered that where a certain age was required for the discharge of municipal duties, the year in which the person had entered should be considered to have expired. Our Emperor also, being influenced by the justice of the case, as well as by the words of the will, “When he reaches the twentieth year of his age,” although he said that he knew that a man who had entered his seventieth year was not excused from guardianship by the Divine Marcus, and although we cited the arguments of the law of Ælia Sentia, decided against the aunt who made the claim.

The Same, Decrees, Book II. Statius Florus, in his written will, had secretly charged his heir Pompey to give a tract of land and a certain sum of money to someone who had no right to receive it, and took the precaution of exacting a bond from Pompey obligating him to surrender what he had left to him as a preferred legacy. Afterwards the said Florus, having appointed the same Pompey and one Faustinus his heirs by a second will, did not bequeath any preferred legacies to Pompey. The person who had no right to receive the bequest informed against himself. The Emperors, having been consulted by the Managers of the Imperial Revenues, stated in a Rescript that if it could not be proved that the testator had changed his mind, the trust must be executed. And Pompey, having had judgment rendered against him in consequence, requested that the burden be borne by the entire estate, for the reason that he did not receive the preferred legacies, and it could not be held that the testator had only persevered in a part of his original intention. It was decided, in general, that the first will no longer existed, and if a preferred legacy had been left by the testator in his first will, it could not be demanded under the second, unless the second directed that this should be done. It was also decided that, because the heir could not prove that preferred legacies had been left to him, that he was obliged only to carry out the trust under the bond which he had executed. 1A mother, who had been appointed an heir, was requested to transfer the estate to Cornelius Felix, after her death. The appointed heir, having been condemned by the Treasury, and all her property seized, Felix alleged that he was not liable to the penalty, for this had been already decided. But as the day of the trust had not yet arrived, for the reason that he himself might die first, or that the mother might acquire other property, his application was in the meantime rejected.

The Same, Decrees, Book III. The Emperor ordered that a party should be heard who desired to prove that an amount was owing to him from the Treasury equal to that for which he himself was sued.

Paulus, Decrees, Book III. Clodius Clodianus, having made a will, afterwards appointed the same heir by another will, which was drawn up in such a way as to be of no force or effect. The appointed heir, thinking that the second will was valid, desired to enter upon the estate by virtue of it, but it was afterwards ascertained to be void. Papinianus held that he had rejected the estate granted by the former will, and could not accept it under the second. I held that he did not reject the first will, as he thought that the second was valid. It was finally decided that Clodianus died intestate.

Paulus, Decrees, Book III. A testator, whose will was not perfect, bequeathed freedom and a trust to a female slave whom he had reared. As all these bequests took effect under an intestate succession, it was asked whether the slave was manumitted by virtue of the trust. An interlocutory decree was rendered to the effect that even if the father had demanded that nothing be done ab intestato, his children, through respect for his memory, ought to have manumitted the slave to whom their father was attached. It was therefore decided that she was legally manumitted, and for this reason entitled to the benefit of the trust.

Paulus, Decrees, Book III. While it has been set forth in certain Imperial Constitutions that heirs, generally speaking, are not liable to a penalty, it has, nevertheless, been decided that if the deceased had been sued during his lifetime, his heirs will be subject to the penalty, on the principle that issue had been joined with the deceased.

The Same, Decrees, Book III. It has been decided that the sureties of magistrates, who have not promised to be liable for penalties or fines, should not be sued. 1Petronius Thallus and other persons became sureties for Aurelius Romulus, a farmer of the revenue, for the sum of a hundred aurei annually. The Treasury seized the property of Romulus as having a claim upon it, and sued the sureties for both principal and interest, which they refused to pay. The obligation of the sureties having been read, and they having bound themselves only for a hundred aurei every year, and not for the entire amount of the lease, it was decided that they were not liable for the interest, but that everything which had been collected from the property of Romulus should first be credited upon the interest, and the balance upon the principal; and if there was any deficit, recourse should be had to the sureties, just as in the case of the sale of pledges by a creditor. 2Sureties cannot be sued when the principal debtor has been released by a compromise.

Paulus, Decisions, Book III. A husband, as the heir of his wife, brought suit against Surus for money which he alleged the deceased had deposited with him during his absence, and, in proof of it, he produced a single witness, the son of his freedman. He demanded before the Agent of the Treasury that a certain female slave should be put to torture. Surus denied that he had received the money, and stated that the testimony of one man should not be admitted; and that it was not customary to begin proceedings with torture, even though the female slave belonged to another. The Agent of the Treasury caused the female slave to be tortured. The Emperor decided, on appeal, that torture had been unlawfully inflicted, and that the testimony of one witness should not be believed, and therefore that the appeal had been properly taken.

Paulus, Decrees, Book III. It was decided that Metrodorus, for having knowingly harbored a fleeing enemy, should be deported to an island; and that Philoctetis, who was aware that he was concealed, and kept the fact secret for a long time, should be relegated to an island.

The Same, Decrees, Book III. Valerius Patronus, Imperial Procurator, adjudged to Flavius Stalticius certain lands at a fixed price. The property was afterwards offered at an auction, and the same Stalticius purchased it, and was placed in full possession of the property. A question arose with reference to the crops gathered in the meantime. Patronus asserted that they belonged to the Treasury. And if they were gathered in the interim between the first sale at auction and the following adjudication, it is evident that they would belong to the vendor; for it is ordinarily said that when the adjudication is made within a certain time, then a better condition is secured. We should not experience any difficulty, for the reason that the person to whom the land had first been adjudged was the same. But as the two adjudications had been made before the vintage, this opinion was not adhered to, and it was decided that the crops belonged to the purchaser. Papinianus and Messius introduced a new decision on the ground that as the lands were leased to a tenant, it was unjust that he should be deprived of all the crops; but they held that he had a right to gather them, and that the purchaser should receive the rent for that year, for fear that the Treasury could be held liable by the tenant, as he had not been permitted the enjoyment of his lease, just as if this had been agreed upon at the time of the sale. It was also decided, in accordance with their opinion, that if the land had been cultivated by the owner, the purchaser would be entitled to all the crops, but as it was leased by the tenant, the purchaser should receive the rent. Having been asked by Tryphoninus what opinion they would hold with reference to certain dried fruits which had been formerly gathered on the land, they answered that if, after the decision had been rendered, the day for the payment of the rent had not yet arrived, the purchaser would also be entitled to them.