Paulus, On Plautius, Book XVI. Since judging is a public employment.

No translation given.

Paulus, On Plautius, Book XVI. Where those authorities who have a right to appoint guardians are absent, the Decurions are ordered to appoint them, provided the majority agree. There is no doubt that they can appoint one of their own number. 1There is no question that one of two municipal magistrates can appoint his colleague a guardian.

The Same, On Plautius, Book XVI. Julianus says that where a legacy has been left to a person under the condition that he pays his heir ten aurei and the heir gives him a receipt for what he owes him, he is not considered as having complied with the condition, as he would if he had actually made payment; but, as it was the heir’s fault that the condition was not complied with, the legacy can be claimed just as if this had been done.

Paulus, On Plautius, Book XVI. We cannot manumit a slave in the presence of one whose authority is equal to ours. A Prætor, however, can manumit a slave in the presence of a Consul. 1When the Emperor manumits a slave he does not touch him with a wand, but the slave who is manumitted becomes free by the mere expression of the Imperial will, in accordance with the law of Augustus.

The Same, On Plautius, Book XVI. A slave can be manumitted before a son under paternal control, who is acting as a magistrate, although he himself, being subject to paternal authority, has, as a private individual, no right to manumit a slave. 1A Prætor cannot manumit a slave in the presence of his colleague. 2A son can also manumit a slave in the presence of his father, with the consent of the latter.

The Same, On Plautius, Book XVI. “Let my slave, Stichus, be free, if my heir should alienate him.” This grant of freedom is void, because it has reference to the time when the slave will belong to another. Nor can the objection that a slave, who is to be free under a certain condition, will obtain his freedom by virtue of the will, even if he should be sold, be raised; for where freedom is legally granted, it cannot be annulled by the act of the heir. But what if a legacy is bequeathed in this manner? There is no reason to hold a different opinion under such circumstances, for no difference exists between a grant of freedom and a legacy, so far as this question is concerned. Therefore, freedom is not directly granted by the following clause, “Let my slave be free, if he ceases to belong to my heir,” because there is no instance where a concession of this kind will be available.

Paulus, On Plautius, Book XVI. When his peculium is bequeathed to a slave who was ordered to pay ten aurei to a stranger, and become free, but the heir prevents him from paying it, and the slave, having afterwards been manumitted, demands his peculium by virtue of the legacy, can the heir, by means of an exception on the ground of bad faith, deduct from his peculium the sum which the slave should have paid in order that he, and not the manumitted slave, may be benefited, because the money was not paid; or will the heir be considered unworthy to profit by the money, having acted contrary to the will of the deceased? As the slave lost nothing, and gained his freedom, it would be invidious for the heir to be fraudulently deprived of the money. 1In this case the question arises, if the slave should pay the money without the knowledge or consent of the heir, whether it would belong to the person who received it. Julianus very properly thinks that, in this instance, the right of the slave to pay the money is admitted even against the consent of the heir; and therefore it will become the property of him who receives it. 2Ad Dig. 40,7,20,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 288, Note 12; Bd. II, § 289, Note 26.If a slave is ordered to pay ten aurei to the heir, and the latter owes that sum to the slave, if the slave wishes to set off the amount, he will become free. 3A man to whom a slave was ordered to pay a certain sum of money in order to become free, died. Sabinus holds that if he had the ten aurei ready for payment, he would become free, because it was not his fault that they were not paid. Julianus, however, says that on account of the favor with which liberty is regarded, and by the law, as established, the slave will obtain his freedom even if the money was paid after his death, hence he obtains his freedom rather under the law than by virtue of the will; so that if a legacy was bequeathed to him at the time of the death of the person to whom he was directed to pay the money, he will obtain his freedom, but he will not be entitled to the legacy. Julianus is of the same opinion, so that, in this instance, he resembles other legatees. The case of a slave whom the heir prevents from complying with the condition is, however, different; for, in this instance, he obtains his freedom under the will. 4The Divine Hadrian stated in a Rescript that a slave who is ordered to pay a sum of money to the heir can pay it to the heir of the latter; and, if this was the intention of the testator, the same rule must be held to apply to a legatee. 5There are certain conditions which, by their nature, cannot be complied with simultaneously, but require a division of time; as, for example, where a slave is ordered to give the value of ten aurei in labor, because labor is reckoned by days. Therefore, if a slave who is to be free conditionally pays the aurei, one by one, he can be said to have complied with the condition. The case of labor is, however, different because it can necessarily only be performed a part of the time. But if the heir refuses to accept it, the slave will not become free immediately, but after the time required for the labor to be performed has elapsed. The same rule will apply where the slave is ordered to go to Capua and be free, and the heir forbids him to go; for then he will be free when the time necessary for him to go to Capua has expired, for time is considered essential in the performance of labor, as well as in making a journey. 6If a slave should receive his freedom as follows, “Let Stichus be free if my heir should not manumit him,” he can be manumitted by the heir, and he is not deprived of his liberty contrary to the will of the testator. But so short a time is not required that the heir will be compelled to hasten or to return from his journey immediately in order to manumit the slave, or to desist from the transaction of necessary business for that purpose. Nor, on the other hand, can the manumission be protracted for his lifetime, but the heir should emancipate the slave as soon as he can do so without great inconvenience to himself. If a time for the manumission has been prescribed, it must be taken into consideration.

The Same, On Plautius, Book XVI. If the estate of the testator was solvent at the time of his death, but ceased to be so when it was accepted, any grant of freedom by the testator which defrauds the creditors is void. For, as the increase of an estate is of benefit to liberty, so also its diminution injures it. 1Where a slave to whom freedom is bequeathed is ordered to pay to the heir a sum of money equal to his value and become free, let us see whether any fraud is committed against the creditor, because the heir obtains the amount mortis causa; or, indeed, where a stranger pays the amount for the slave; or the slave himself pays it out of other property than his peculium; is any fraud perpetrated? But, as the fact that the heir is wealthy is of no advantage to the bequest of freedom, so neither should the person who pays the money be able to profit by it.

The Same, On Plautius, Book XVI. In any transactions in which speech is not necessary, consent will be sufficient; and in matters of this kind a deaf person can take part, for the reason that he can understand and give his consent, as in hiring, leases, purchases, and other similar contracts.

Paulus, On Plautius, Book XVI. A rule is a statement, in a few words, of the course to be followed in the matter under discussion. The law, however, is not derived from the rule, but the rule is established by the law. Hence, a short decision of the point in question is made by the rule; or, as Sabinus says, a concise explanation of the case is given, which, however, in other instances to which it is not applicable loses its force.

The Same, On Plautius, Book XVI. When the intention of a person granting manumission is obscure, a decision should be rendered in favor of freedom.