Pomponius, On Sabinus, Book VI. Where a legacy is bequeathed to one of several heirs in the following terms, “Let him retain what he owes me;” it is the duty the judge has in an action for partition to prevent the co-heirs from exacting payment from the heir aforesaid; but, where one heir is ordered to retain what another owes, it is the duty of the judge to require the rights of action to be assigned to him in proportion to the share of a co-heir in the estate.

Pomponius, On Sabinus, Book VI. For the action can be brought against a party with whom property has been deposited, to whom it has been loaned, or by whom it has been rented.

Ad Dig. 13,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Note 2.Pomponius, On Sabinus, Book VI. Where a debtor sold and delivered property which he had pledged, and you lent him money which he paid to the creditor to whom he gave the pledge, and you entered into an agreement with him that the article which he had already sold should be pledged to you; it is established that your act is void, because you accepted in pledge property which belonged to another; for, according to this arrangement, the purchaser has come to have in his possession an article which has been released from the pledge; and it makes no difference that the property pledged was released by the use of your money.

Pomponius, On Sabinus, Book VI. “I bequeath to Titia all my slaves who are weavers, except those whom I have bequeathed to another by this will. I bequeath to Plotia all my slaves, born in my house, except those whom I have bequeathed to another.” As certain slaves born in his house were also weavers, Labeo says that since it cannot be ascertained which slaves who were weavers the testator did not bequeath to Titia unless it is known which ones he bequeathed to Plotia, and as this can not be ascertained, those must not be excepted from either legacy who belong to both classes, and therefore they are common to both legatees; for this is the rule of law where nothing is expressly excepted from either of two legacies. 1Where, however, a legacy was bequeathed in the following terms: “All my slaves, who are weavers, except those born under my roof,” and again, “All the slaves born under my roof except the weavers,” those who were both born under his roof and were weavers, will not be included in either legacy. 2It makes no difference whether a legacy is bequeathed “To Titius and Mævius,” or “To Titius together with Mævius;” for in both these instances the legacy is held to have been bequeathed conjointly. 3If an heir should deliver Stichus to one of two parties to whom he was charged to deliver him, and, before proceedings were instituted against him by the other legatee, Stichus should die, the heir will not be liable, because it is understood that no blame attached to him.

Pomponius, On Sabinus, Book VI. A legatee cannot accept a part of his legacy and reject the remainder; his heirs, however, can do so, so that one of them can accept his share, and another reject his own. 1If we should conclude not to accept a legacy which was left to Us, the state of affairs will be the same as if the legacy had not been bequeathed; and therefore we say that if a tract of land is left to me, which is charged with servitudes in favor of my property, the servitudes will not be confused. Moreover, if a slave is bequeathed to a person on account of whom the legatee can institute proceedings for theft, the right of action will remain unimpaired.

Ad Dig. 30,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 639, Note 4.Pomponius, On Sabinus, Book VI. If I should bequeath to you certain female slaves to be delivered by the substitute of a minor heir, and you purchase said slaves from the said heir, and alienate them before you know that they have been bequeathed to you, Neratius, Aristo, and Ofilius hold that the legacy will be valid. 1Ad Dig. 30,45,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 20.Where an heir is charged in general terms with the delivery of a slave, he is not obliged to warrant that he is sound, but he should warrant him not to be liable for theft or damages; because he should provide a slave such as the legatee may be permitted to retain. The health of a slave, however, has nothing to do with the title to him, but the rule is applicable where a slave has committed a theft or some damage for which he is responsible, in order to prevent his master from retaining him; just as a tract of land may happen to be liable for debts so that its owner cannot hold it. 2Where, however, a certain slave is bequeathed, he should be delivered such as he is.

Pomponius, On Sabinus, Book VI. Where the slave of the heir has misappropriated the property bequeathed, and sold it without the knowledge of his master, Atilicinus thinks that an action in factum should be granted the legatee, so that the master may be compelled to surrender his slave in satisfaction for the damage, or pay out of the peculium of the latter what he received by the sale of the property. 1Where one of the heirs killed a slave, it does not seem to me that his co-heir should be held liable in any respect, as it was not his fault that the act was committed, and the property is no longer in existence.

Pomponius, On Sabinus, Book VI. Where anyone bequeaths “his slaves,” those also held in common with others, as well as those in whom another enjoys the usufruct, are also included.

The Same, On Sabinus, Book VI. Where an heir is charged to permit me to enjoy the use of certain land by the year, and he is guilty of default at the beginning of the year, when I ought to cultivate the land, he will be liable to me for the entire year, even though he should afterwards permit me to cultivate it, because I have been excluded from putting in the crops; just as where he is charged with furnishing me the daily labor of Stichus, and he sends him to me, not in the morning but at the sixth hour of the day, he will be liable to me for the value of the entire day’s work of the slave.

Pomponius, On Sabinus, Book VI. The choice of several slaves is bequeathed. In order that the sale of the slaves belonging to the estate may not be hindered while the legatee is making his choice, it is the duty of the Prætor to decree that unless he avails himself of his right within a certain time fixed by the latter, he will not be entitled to an action to recover the legacy. But what if, after the time had elapsed, and before the heir had sold the slaves, the legatee should desire to make a selection? The Prætor is accustomed to appoint a time, in order that the heir may not sustain any loss. What course should be pursued, if the time prescribed by the Prætor having expired, the heir should manumit some or all of the slaves? Would not the Prætor be obliged to maintain their freedom? The action must not be refused where everything remains intact. The same rule will apply where the heir has given away some of the slaves, or sold them, after the prescribed time has elapsed.

Pomponius, On Sabinus, Book VI. Where the choice of a slave is left to you, and the rest of them are bequeathed to me, it must be held by the Prætor that, unless you make a selection within a certain time, the right of action will be lost. 1Where, out of four bracelets, the two which I may choose are bequeathed to me, or only two are left; or where, in the first place, there were only two; the legacy is valid. 2Where the choice of a single slave is bequeathed to you and myself, and I make my selection, and do not change my mind, and you select the same slave, he will belong to both of us in common. If, however, I should die, or become insane, before you make your choice, the slave will not belong to us in common, because, as I have lost my mind, I am not considered to have given my consent. The more equitable rule, in this instance, will be that, as I have once made my choice, the slaves will belong to us as joint owners. 3If the choice of articles deposited with someone else is bequeathed to me, I can bring suit for the production of the same against the person with whom it was deposited; or I can proceed against the heir to compel him to bring an action on deposit against the party having the property, to compel him to give me an opportunity to make my selection.

Pomponius, On Sabinus, Book VI. Where provisions are left to one person, and wine to another, all the provisions will belong to the first legatee, with the exception of the wine. 1Where a hundred jars of wine are left to you to be selected as you may desire, you can institute proceedings under the will in order to obtain the opportunity to taste the wine; or you can bring suit to compel the wine to be produced, or to recover any damages you may have sustained because you were not permitted to taste it.

Pomponius, On Sabinus, Book VI. Where wine is bequeathed, it also includes the vessels, where they are not such as are reserved for constant use, for instance, jars and measures.

Pomponius, On Sabinus, Book VI. Where the following clause was inserted into a will, “I do give and bequeath all the utensils which are intended for the purpose of carrying on the business of my shops, and for furnishing the same, and for that of my mill and warehouse,” Servius held that the horses which were in the mills, and the slaves who were millers, as well as those employed in the shops, the woman who cooked, and the merchandise contained in the shop, were all considered to have been bequeathed. 1Where a house, fully equipped, is devised it was decided that the furniture is included, but not the wine; because where a house is devised ready furnished, wines cannot be understood to be there for that purpose. 2A female slave who was left constantly in charge of a country-house, and bequeathed as belonging to the same, is included in the devise just as a forester is, and for the same reason; since houses require guardians as well as land, on the one hand, to prevent the neighbors from trespassing, or appropriating the fruit, and on the other, to prevent anyone from removing any of the property contained in the house. The building, however, is undoubtedly considered a part of the land.

Pomponius, On Sabinus, Book VI. Furniture, or any domestic utensils belonging to the head of a family, but not including articles of silver or gold, or clothing,

Pomponius, On Sabinus, Book VI. Where clothing in general is left to one person, and women’s garments separately to another, the women’s garments will be removed and given to the party to whom they were specially bequeathed, and the remainder will belong to the other. The same rule applies with reference to silver articles included in ornaments, where ornaments suitable for women are bequeathed to one person, and all silver articles are bequeathed to another. Likewise, where two marble statues are left to you, and afterwards all the marble belonging to the testator is left to another legatee, no marble statue, excepting those two, is left to you. The same rule applies where the urban slaves of a testator are bequeathed to you, and the steward of the testator is bequeathed to me. 1Where an heir is directed to deliver a certain weight of silver to someone, he is discharged from liability by operation of law if he pays him money, provided that the money is of the same value as the silver; which opinion is correct, if a certain kind of silver was not bequeathed.

Pomponius, On Sabinus, Book VII. With reference to silver vessels used for drinking purposes, a doubt may arise whether those only used for actual drinking, or such as are employed for the preparation of beverages, as, for instance, strainers, and small pitchers are included. The better opinion is that they also should be included. 1Where perfumes are bequeathed, not only those which are used for pleasure, but also such as we employ in illness as comagena, essences distilled from lilies, roses, and myrrh, as well as pure nard, which women use for the purpose of appearing more elegant and clean. 2Cassius says with reference to basins used for washing the hands that, when his advice was asked, he gave it as his opinion where there were two legatees, to one of whom vessels for eating, and to the other those for drinking purposes were bequeathed, these should be considered as accessory to the table service of food.

Pomponius, On Sabinus, Book VI. When an heir was charged not to demand anything of the security, he can collect the debt from the principal debtor; but when he was forbidden to collect it from the latter, and demands it of the security, Celsus thinks that he will be liable to the principal debtor under the terms of the will. 1Celsus also says that he has no doubt that where an heir has been forbidden to collect a debt from a debtor, his own heir cannot collect it.

Pomponius, On Sabinus, Book VI. We can not only make a bequest releasing our debtor, but also one releasing our heir and anyone else whomsoever. 1An heir can be charged not to demand payment of a debtor within a certain time, but there is no doubt that he should not release him during the intermediate time; and if the debtor should die, the debt cannot be collected from his heir within the said period. 2It should be considered whether the heir can collect interest on penalties for the time during which he is forbidden to demand the debt. Priscus Neratius held that to make such a demand would be contrary to the will, which is correct. 3A bequest like the following, “My heir must not collect the debt from Lucius Titius alone,” does not pass to the heir of Lucius Titius, if, during the lifetime of the latter, nothing was done in opposition to the will by the heir attempting to collect the debt from him; for whenever property which is bequeathed attaches to the person of the legatee, it is in the nature of a personal servitude, and does not pass to his heir; but if it does not attach to his person, it will be transmitted to his heir. 4If the words granting the release refer to matters in rem, the effect is the same as if the heir had been specifically forbidden to collect the claim from either the debtor, or his heir, as the addition of the heir is of no force or effect; just as would be the case if the person of the debtor himself had not been included. 5He who is directed to render accounts is not considered to have complied with the wishes of the testator, if he does not produce his accounts, but merely pays the balance remaining in his hands. 6Where an heir is forbidden to bring suit against the agent who attended to the affairs of the deceased, it is not considered to be for the benefit of the legatee, if the obligation was contracted by the bad faith or the fraud of him who transacted the business, and the testator will be held to have entertained this opinion. Therefore, if the heir should institute proceedings against the agent on the ground of business transacted, and the latter brings suit under the will for an indeterminate amount, he can be barred by an exception on the ground of fraud. 7A release may also legally be bequeathed to anyone with whom I leave a deposit, or to whom I make a loan for use, or give property in pledge, or to one who is obliged to make good to me the proceeds of a theft.

Pomponius, On Sabinus, Book VI. Where a legacy is bequeathed in the following terms, “I give and bequeath to So-and-So such-and-such an article, whether it has been made or not,” the legacy does not pass to the heir, unless one or the other of the conditions has been fulfilled during the lifetime of the legatee; as the reason for which a legacy is due must always precede it, and not because it is certain that one or the other of two things will take place, and that the legacy will be due under all circumstances; for where a legacy is bequeathed as follows, “Let my heir give such-and-such property when he dies,” it is certain that the legacy will be due, and still it does not pass to the successor of the legatee, if the latter should die during the lifetime of the heir.

Pomponius, On Sabinus, Book IV. Where a patron has stipulated for services to be performed by his freedmen, he cannot demand them until after the time has passed when they are due. 1Nor can a part of the services be performed by the freedmen working a certain number of hours, because the obligation requires the labor of an entire day. Hence a freedman who has only worked six hours in the forenoon will not be released from labor for the entire day.

The Same, On Sabinus, Book VI. If you owe me Stichus or Pamphilus, and one of them should become my property in some way, you will owe me the other. 1A stipulation of this kind, “For each year,” is both uncertain and perpetual, and does not resemble a legacy, which is extinguished by the death of the legatee.

Pomponius, On Sabinus, Book VI. A person who can bring an action of theft is not entitled to any further proceeding based on the constant handling of the articles taken by the thief, even to recover any accession which may accrue to the property after it has been stolen. 1If I should bring suit to recover the property from the thief, I will still be entitled to a personal action. It may, however, be said that it is the duty of the judge who has jurisdiction of the case, not to order the restitution of the property, unless the plaintiff dismisses the personal action. If, however, the defendant, after having had judgment rendered against him in the personal action, pays the damages assessed, so that he is absolutely discharged from liability; or (which is the better opinion) if the plaintiff is ready to return the damages, and the slave is not given up to him, the possessor should have judgment rendered against him for the amount sworn to by the other party in court.

Pomponius, On Sabinus, Book VI. Oxen are rather classed as cattle than as beasts of burden. 1By the expression, “When she shall be married,” the first nuptials are meant. 2There is a great deal of difference between paying a balance and rendering an account; as he who has been ordered to render an account is not obliged to pay the balance in his hands. A banker is considered to render his account, even if he does not pay any balance remaining in his hands.

The Same, On Sabinus, Book VI. Urban and rustic slaves are not distinguished from one another by the place, but by the nature of their respective occupations. For a steward may not be included in the number of urban slaves, as, for instance, one who keeps the accounts of transactions in the country, where he lives, for he does not differ greatly from a farmer. A slave attached to a household in a city is included among urban slaves. It should, however, be considered whether the master himself employs anyone in their stead, which can be ascertained from the number of the slaves and their sub-slaves. 1He is understood to have spent the night outside of a city who passed no part of it therein; for the expression means the entire night.

Pomponius, On Sabinus, Book VI. When legacies pass to our heirs after our death, they will benefit those under whose control we were at the time that we acquired them. The case is different where we make stipulations; for if we stipulate under a condition, we will acquire the property, for the same parties under all circumstances, even if the condition should be fulfilled after we have been released from the authority of a master. Paulus: When a son under paternal control stipulates under a condition, and is then emancipated, and the condition is afterwards fulfilled, an action will lie in favor of his father, because, in the case of stipulations, the time when we contract is taken into account.