Pomponius, Epistles, Book V. Where, while the condition was pending, an heir left to a third party land devised by the testator under a condition, after the condition imposed by the first will has been complied with, the ownership of the property will not be lost by the prior legatee; nor can the heir render any part of the land religious, or impose a servitude upon the same, and if he does impose a servitude, it will be extinguished when the condition is fulfilled.

Pomponius, Epistles, Book VI. When an heir is charged with the delivery of wine which is contained in casks, and it is the fault of the legatee that he did not receive it, the heir will assume the responsibility if he pours out the wine; and if the legatee should bring suit to recover the wine from the heir, it was held that he would be barred by an exception on the ground of bad faith, if he does not pay the amount of damage sustained by the heir on account of his delay.

Pomponius, Epistles, Book VII. It is stated by Julianus that, when an heir who is charged to manumit a slave transfers the estate under the Trebellian Decree of the Senate, he can be compelled to manumit the slave; and if he should conceal himself, or be absent for some good reason, the Prætor, after proper cause is shown, must render a decision in accordance with the decrees of the Senate which relate to cases of this kind. If, however, the beneficiary to whom the estate was transferred should have the custody of said slave, he himself can manumit him; and it is proper that the same formalities should be observed with reference to him, as is usually done with reference to purchasers in general. Do you think that this is true? I, myself, actuated by the desire to acquire knowledge, have for seventy-eight years considered the following saying, which I have always in mind, as the best rule of life, “When I have one foot in the grave I shall still be glad to learn something.” Aristo and Octavenus very properly hold that the slave in question does not form part of the estate subject to the trust, because the testator, by asking the heir to manumit him, does not seem to have had in view that he should be delivered to the beneficiary of the same. If, however, he should be delivered through a mistake of the heir, the opinion of Julianus should be adopted.

Pomponius, Epistles, Book VIII. Slaves, in cases where liability for reparation follows the individual, should be defended in the place where it is alleged that they committed the offence, and therefore the owner is obliged to produce said slaves in the place where they are said to have committed the violence and he may lose the ownership of all of them if he does not defend them.

Pomponius, Epistles, Book VIII. Where the heir of a guardian has concluded a transaction which was commenced by the latter, he will be liable to an action on guardianship on this account.

Ad Dig. 30,46Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 20.The Same, Epistles, Book IX. What has been stated with reference to a legacy also applies to a person who has promised to furnish either Stichus, or some other slave.

Pomponius, Epistles, Book IX. A slave who is to be liberated on condition of paying a certain sum of money to Titius will become free if he pays the money out of his peculium, even without the consent of the heirs; but if Titius knowingly accepts the money against the consent of the heirs, he will only be considered to hold it as the possessor, and not the owner, and the heirs, who were unwilling that it should have been paid, can deprive him of it.

Pomponius, Epistles, Book IX. If you promise to deliver me a slave belonging to another, or if you have been ordered to do so by will, and the slave should be manumitted by his master before you are obliged to deliver him to me, this manumission will have the same effect as death, for if the slave should die you will not be liable. 1If, however, anyone who has promised to give a slave, and, having been appointed an heir by the master, he delivers him to be free under a condition, he will be released.

Ad Dig. 19,1,55Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 315, Note 3.Pomponius, Epistles, Book X. Where a slave who has been purchased or promised is in the power of the enemy, Octavenus thinks that the better opinion is that the sale and stipulation are valid, because it is a transaction entered into between the purchaser and the vendor; for the difficulty exists rather in furnishing what was agreed upon, than in the nature of the transaction, for even if the delivery of the slave should be ordered by the judge, it should be deferred until it can take place.

Pomponius, Epistles, Book X. Statues attached to their pedestals, pictures hung by chains or fastened to the walls, and lamps similarly affixed, do not form part of a house; for they are rather placed there as ornaments than as constituting parts of buildings. 1Labeo also says that the wall usually placed in front of a house constitutes a part of it.

Ad Dig. 35,1,111ROHGE, Bd. 11 (1874), Nr. 49, S. 148: Umfang der Beweislast des Mandatars in Erfüllung seiner Obliegenheiten.The Same, Epistles, Book XI. A slave who is ordered to be free under the condition of rendering his accounts must show that he has been honest in all the business transacted by him, and that he has not embezzled anything of what he received, and has not included in his accounts any expenses which he did not incur. He must also pay over whatever his accounts show remains in his hands by way of balance, for he cannot become free unless he, in this way, complies with the condition under which freedom was granted to him. He will not, however, be obliged to prove that the solvency of the debtors with whom he made contracts existed at the time of the death of his master, but that when he lent them money, their credit was such as would have induced the diligent head of a family to trust them.

Pomponius, Epistles, Book XI. I know that many persons, desiring that their slaves may never become free, are accustomed to insert the following clause in their wills, “Let Stichus be free when he dies.” Julianus, however, says that where freedom is granted at the last moment of life, it has no effect; as the testator is understood to have made a disposition of this kind for the purpose of preventing rather than of bestowing freedom. Hence, if the following should be inserted in a will, namely, “Let Stichus be free, if he should not ascend to the Capitol,” it will be of no force or effect, if it is evident that the testator intended to grant the slave his freedom at the last moment of his life, nor will there be ground for a Mucian Bond. 1If the following provision should be inserted in a will, “Let Stichus be free if he should go to Capua,” the slave will not be free unless he goes to Capua. 2Octavenus goes still further, for he holds that if a testator, having granted freedom to his slave under any condition whatsoever, should add, “I am unwilling that he be manumitted by my heir before the condition is fulfilled,” this, addition will be void.

Pomponius, Epistles, Book XI. It is stated in Julianus that if a private individual should allege that the estate of Lucius Titius belongs to him, when the same estate is claimed by the Treasury, the question arises whether the right of the Treasury should be first inquired into, and the actions of the other parties be allowed; or whether collection of the claims of the individual creditors should be stopped, in order to prevent the case of the government from being prejudiced. This was set forth in the Decrees of the Senate.

The Same, Letters, Book XII. Conditions like the following, “If they should erect a monument,” if imposed upon several persons, cannot be complied with unless by all of them at the same time. 1Likewise, “If Titius should pay to Symphorus and Januarius a hundred aurei, I leave him such-and-such a tract of land.” If Symphorus dies, will the devise be extinguished? I think that it ought to be interpreted in this way, if the legatee should pay the amount during the lifetime of either of the parties. According to the most indulgent interpretation, it must be said that, if Symphorus should die without Titius being in default, he could claim half of the land which was devised, if he tendered half the money to Januarius. 2A question arose with reference to the following case: A tract of land was devised to certain persons, if they paid a specified sum of money for funeral expenses, and for transporting the body into another province; for unless both of them made the payment, neither would be entitled to the devise, as the condition could not be complied with unless by both. We, however, are accustomed to make a more liberal interpretation in cases of this kind, just as where a tract of land is devised to two persons if they pay ten aurei, and one of them pays his share, he will be entitled to his portion of the devise. 3Priscus gives it as his opinion that a slave who is to become free on condition of rendering an account, cannot do this where the testator died, or where he himself may happen to be, or where he may desire to render it; but, in the meantime, he must present himself to the person to whom he is obliged to render the account, and by all means, if the latter should be absent on business for the State. It is, however, extremely probable that another conclusion might be arrived at in a case of this kind, where the rank of the parties and the distance of the places must be taken into consideration.

Pomponius, Epistles, Book II. Where one of two patrons assigns the freedman to his son, there is no reason why the other should not retain his rights over him unimpaired.

The Same, Letters, Book XVI. It is stated in the “Probabilities” of Labeo that the expression “To produce” has reference to the exhibition in court of the property in dispute. For anyone who appears in person does not, for that reason, produce the property in dispute; and he who produces a person who is either dumb, insane, or an infant, is not considered to produce him at all; for no one of this kind can, under any circumstances, properly be said to be present. 1The term “restitution” has reference not only to the body of the thing itself, but also to every right and condition attaching to it; hence complete restitution is meant by the law.

Pomponius, Epistles, Book XVII. Labeo says that if you purchase several slaves for one price, and you wish to bring an action with reference to one of them, an appraisement of all the slaves should be made, just as is done in appraising land when suit is brought because of the loss of a portion of said land by eviction. 1He also says that if you sold several slaves for one price, and guaranteed them to be sound, and only a part of them are sound, an action can properly be brought with reference to all, because of the representation and guarantee. 2He also says that a beast of burden can wander away and escape, but proceedings cannot be instituted on the ground that it is a wanderer or a fugitive.

The Same, Epistles, Book XVIII. Where an oath was tendered by a creditor who had instituted proceedings against a ward for money which had been loaned, the latter swore that he was not obliged to pay, and then the creditor brought suit against his surety for the money; should he be barred by an exception based on the oath? Write to me what your opinion is. Julianus discusses the point more fully; for he says if the controversy that arose between the creditor and the ward was whether the ward had ever received the money, and it was agreed that the whole question should be settled if the ward would take an oath, and he swore that he was not obliged to pay; the natural obligation is disposed of by this agreement, and if any money has been paid it can be recovered. If, however, the creditor maintained that he had made the loan, and the ward only defended himself upon the ground that his guardian had not intervened, and an oath of this kind is taken; the Prætor, in this instance, will not afford the surety any relief. But where it cannot be clearly proved what the agreement was, and it is doubtful (as very frequently happens) whether the controversy between the creditor and the ward was a question of fact or one of law; and the creditor, having tendered the oath, the ward took it; we must hold that the understanding between them was that if the ward should swear that he was not obliged to pay, the controversy should be considered at an end, and the money paid can be recovered; and we think that an exception should be granted the sureties. 1Where a surety swears that he is not obliged to pay, the defendant is protected by an exception founded on the oath; but if a surety should swear that he had never been surety at all for the sum demanded, this oath ought not to benefit the person who promised. 2Ad Dig. 12,2,42,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 8.Moreover, where the plaintiff tenders the oath, and a party who appears for either the absent or present defendant swears that the latter is not obliged to pay; an exception based upon the oath shall be granted to him in whose behalf the oath was taken. The same rule is applicable where some one who appears in defence of a surety makes oath for an exception to be granted the principal. 3In like manner if the principal makes oath, his surety will be protected; because a decision in favor of either of them will benefit the other.

Pomponius, Epistles, Book XX. Whatever a husband must restore to his wife out of the peculium of a slave will form part of the dowry which is to be given up, and therefore the husband will be liable for fraud and negligence in the acquisition or preservation of the said peculium; and the profits obtained from the same, just as those of any other dotal property will belong to the husband.

The Same, Epistles, Book XX. It is stated by Aristo that, where a ward loses possession of any part of an estate through the fault of his guardian, there is no doubt that he will be liable for the amount in an action on the estate, if security has been given to the ward. Moreover, security is held to have been given, even if the guardian is solvent, so that the ward can recover from him the amount for which judgment is rendered against him in an action. Where, however, the guardian is not solvent, it should be considered whether the damage will be sustained by the ward or by the claimant of the estate; hence it must be held to be just as if the property was lost by accident, and just as if the ward himself who is free from blame had diminished, destroyed, or lost any property belonging to the estate. The inquiry can also be made with reference to a possessor who is insane, where any of the property is lost on account of his insanity. What is your opinion on this point? Pomponius says, “I think that the opinion of Aristo is correct. But why are you in doubt as to who should suffer the loss, if the guardian should prove insolvent; for as it can very properly be said that the ward can only be compelled to transfer the rights of action which he has against the guardian to the vendor of the property, so also the heir or the possessor of the estate, if through no fault of his (for instance, if he should be forcibly ejected from land belonging to the estate, or a slave forming part of it should be wounded by anyone without the fault of the possessor), he would only be obliged to assign the rights of action to which he was entitled on this ground. It must be said that the same rule will apply where any loss takes place through the negligence or fraud of the guardian of an insane person, just as in the case where a guardian or a curator entered into a stipulation, or sold property belonging to an estate. I also think that it should be admitted that anything which happens through the insanity of anyone, should remain unpunished; just as if it had been caused by some accident, and without the act of the party sued.”