Paulus, Questions, Book XXII. I promised Titius to give him either Stichus or Pamphilus, Stichus being worth ten thousand sesterces and Pamphilus twenty; and the stipulator killed Stichus before I was in default. The question arose as to whether an action could be brought under the Lex Aquilia? I answered that as it has been stated that the least valuable slave has been killed, what is to be discussed in this case does not in any way differ from that between a creditor and a stranger. What then will be the measure of damages? Must it be ten thousand sesterces which is the value of the slave that was killed, or must it be the amount which I must pay, that is the amount of my interest? And what shall we say if Pamphilus were to die without any default on my part? Will the price of Stichus be diminished since the promisor is discharged? It will be sufficient to state that the value of the slave was greater when he was killed, or within the year. On this principle Stichus must be considered to have been worth more, even if he were killed after the death of Pamphilus, but within the year.

Paulus, Questions, Book XXII. If, having stipulated with a tenant, I received a surety, the stipulation provides for all payments of rent, and therefore the surety will be liable for all of said payments. 1When, by his act, the principal debtor perpetuates the obligation, that of the surety also continues to exist; for instance, if he was in default in delivering Stichus, and the latter died.

Paulus, Questions, Book XXII. An emancipated son, while writing his father’s will by the order of the latter, drew up the bequest of a legacy to a slave owned in common by himself and Titius. I ask how this question should be decided. The answer was, you have combined several questions; and under the Decree of the Senate by which we are forbidden to write the bequest of a legacy to ourselves or to those whom we have under our control, the said emancipated son will be liable to the same penalty, even though he wrote the bequest by the order of his father; for he is considered to be excused who is under the control of another, just as is the case with a slave, provided the order of the testator is evident from his signature; for I have ascertained that this was the intention of the Senate. 1The next question is, as it has been decided that anything that is unlawfully written is considered not to have been written at all, shall what was inserted for the benefit of a slave owned in common by the writer and another be considered as not written at all; or only that which has reference to the person who did the writing, so that the entire amount will be due to the other joint-owner? I found that Marcellus had made a note on Julianus, for as Julianus has stated, if someone inserted a clause for the benefit of Titius and himself, or for that of a slave owned in common, and it should be considered as not inserted at all, it would be very easy to ascertain how much was acquired by Titius and his joint-owner. Marcellus added that the other joint-owner would be entitled to the amount, just as if the name of the slave had been omitted on account of its being false. This rule should be observed in deciding the present question. 2A husband manumitted a dotal slave, and in his will inserted the bequest of a legacy to him. The question arose, what could the woman recover under the Julian Law? I answered that it must be said that the patron, as well as the emancipated son, was liable to the penalty of the Edict of the Divine Claudius, although if they should die, prætorian possession of their estates could be demanded. Hence, if the patron did not obtain anything from the estate of the freedman, he would not be liable to an action by the woman. But would he be liable for the reason that it was added in the law, “Or committed any fraudulent act to prevent it from coming into his hands”? He, however, did not commit any fraud against the woman, for merely to have formed this design was not doing anything to her disadvantage. Therefore, should we not grant an action to the woman, as the husband will be obliged to make restitution? But if he who wrote the bequest of the legacy by order of the testator had also, at the same time, by the order of the testator, entered into an agreement to deliver it to another, the Senate directed that he must, nevertheless, relinquish his legacy, and that it should remain in the hands of the heir, together with the charge of the trust.