Scævola, Questions, Book I. Pomponius says that if I approve of any transaction by you, even though it was badly done, still, you will not be liable to me on the ground of business transacted. It must be taken into consideration if it is not true that, so long as it is doubtful whether I will ratify it or not, the right of action based on business transacted is in abeyance; for, when it has once accrued, how can it be annulled by the mere will alone? He holds, however, that this is only true when you are not guilty of any bad faith. And Scævola states that even if I ratified what had been done, an action on the ground of business transacted will still lie; and where it is said that you are not liable to me, this is because I cannot disapprove of what I have once agreed to; and just as anything which has been properly done must be considered by the court as ratified, so, also must whatever has been approved by the party himself. Moreover, if no action based on business transacted will lie where I have given my approval, what must be done if the other party collects money from my debtor, and I approve of it? How can I recover it? And, also, suppose he has sold property belonging to me, how then can he recover any expense which he has incurred? For, as there is no mandate, an action based on business transacted will lie, even after ratification.

Scævola, Questions, Book I. Where a husband has transacted the affairs of his wife after a divorce has taken place, her dowry can be recovered not only by an action for dowry, but also on the ground of business transacted. This is the case where the husband was able to deliver the dowry while he was attending to the business; otherwise, he cannot be made responsible, for not exacting it from himself; but after he has lost his property, a full right of action on the ground of business transacted will lie against him; although if the husband is sued in an action for dowry he must be discharged. But in this instance a limit should be fixed, so if the statement of the complaint is: “As far as he was able although he afterwards lost his property”; where he was able to pay her during that time; for he was not guilty of wrong-doing, so far as his duty was concerned, if he did not immediately sell his property in order to obtain the amount, for he must have allowed some time to pass during which he appeared not to have done anything. If, in the meantime, before he had fulfilled his duty, the property was lost, he is not liable on the ground of business transacted any more than if he had never been able to pay the money. But where the husband is able to pay, an action founded on business transacted is permitted because there is danger if he ceases to be solvent. 1I do not think that a man who transacts the business of a debtor is bound to restore to him a pledge when he still owes the money, and there is no other way in which it can be paid. 2The action for the rescission of a contract does not belong to the class of actions based on business transacted, and is barred after six months have elapsed, if the party did not find the slave among the assets of the other; or, if he did find them, did not find, and therefore did not recover, certain additional property which belonged under the head of accessions, so that the slave was less valuable, or any thing that was acquired through the slave which was not derived from the property of the purchaser; and there was not enough obtained from the business of the purchaser for the vendor to satisfy his claim. 3Moreover, if the person who is transacting the business owes his principal on some other ground, and the obligation is one of long time, and the party is wealthy, he cannot be blamed for not paying the debt; that is, provided the payment of the interest does not give rise to complaint. The rule is different in the case where a guardian is a debtor to his ward, because there the latter was interested in the payment of the former debt, as he then might bring suit for the debt on the ground of guardianship.

Scævola, Questions, Book I. For it should also be considered whether, as far as human nature can determine, it can be ascertained that the money will be due:

Scævola, Questions, Book I. What is done by the majority of an assembly is considered to be the same as if it had been done by all.

Scævola, Questions, Book II. Where anyone wishes to have a will declared inofficious, although it may be denied that he is the son of the deceased, he is not entitled to the Carbonian possession of property, for this is only permitted where, if the party were actually the son he would be the heir, or the legal possessor of the estate; so that if, in the meantime, he should obtain possession, and be supported, his rights would not be prejudiced by any actions which might be brought by him. Where a party makes a claim of inofficiousness, he cannot bring any actions except one to obtain the estate, and he has no right to support. This is done to prevent him from being in a better position than if his adversary had acknowledged him to be the son of the testator.

Scævola, Questions, Book II. Where a man had several tracts of land and bequeathed the usufruct of all of them separately, he can be buried in any one of them, and the heir shall have the right of selection, and the opportunity to favor the others. A prætorian action will, however, be granted the usufructuary against the heir, to enable him to recover damages to the amount that the value of his usufruct is diminished by the selection. 1Where the heir of a woman buries her body on land belonging to her estate, he can recover from her husband the amount which he should contribute towards the expense of the funeral, which depends upon the value of the land. 2Where clothing is bequeathed to anyone, and he sells it for the purpose of paying the funeral expenses, it is held that a prætorian action based on a prior claim should be granted against the heir.

Scævola, Questions, Book II. For what is commonly stated, namely: that it is not lawful to lend to a son under paternal control, does not relate to the terms of the transaction, but to the payment of the money.

Scævola, Questions, Book II. On the other hand, it is very properly stated that, if you have entered into a stipulation with the head of a family, and afterwards lend the money to him when he has become a son under paternal control, the power of the Decree of the Senate should be exercised, because the substantial part of the obligation was completed by the payment of the money.

Scævola, Questions, Book II. With reference to what is due to a slave from strangers, the master should, by no means, have judgment rendered against him for the amount of the debt, where anyone brings suit on the peculium; since both the expense incurred in bringing the action and the result of the execution may be uncertain, and the delay of time granted to those who have been held judicially liable, or that consumed in the sale of the property, should be considered, if this is the better thing to do; therefore, if the party is ready to assign his rights of action he will be discharged. What is said where an action is brought against one of several partners, namely: that the entire peculium must be computed, because the proceeding is against the partner, will have the same result if the party is ready to assign his rights of action; and, in the case of all those whom we say are liable on this account since they have a right of action, the substitution takes the place of legal payment.

Scævola, Questions, Book II. If you owe anyone ten thousand sesterces or a slave, whichever he may choose, set-off of the debt will be admitted, if he states openly which he prefers.

Scævola, Questions, Book II. Where the vendor reserves the question of freedom in the sale of a slave, he will not be liable on the ground of eviction, if at the time that the slave was delivered he should become free, or should obtain his liberty when a condition prescribed by will is fulfilled. 1Where a vendor, in delivering a slave, states that he is to be free on a certain condition, it is understood that only the kind of freedom is referred to which can result from the fulfillment of a condition already prescribed by a will, and therefore if freedom was conferred at once by the will, and the vendor says that the slave will be liberated under a condition, he will be liable in case of eviction. 2On the other hand, where anyone sells a slave who has the prospect of freedom, and states the condition under which he will be entitled to be free, and in doing so causes his condition to be considered worse, because he would not be held to have excepted every condition under which the slave would be free, but only that which he indicated; as, for instance, if anyone should say that the slave was ordered to pay ten aurei to become free, and he should obtain his liberty after the lapse of a year, because his freedom had been granted in the following terms: “Let Stichus be free after a year,” the vendor will be liable in case of eviction. 3But what if a slave whom the vendor had declared would be free on the payment of twenty aurei had been, in fact, ordered to pay ten; would the vendor be considered to have told a falsehood with reference to the condition? It is true that he made a false statement with reference to the condition, and therefore certain jurists have held that, in this instance also, the stipulation would become operative in case of eviction. The authority of Servius, however, prevailed, who thought that under these circumstances an action on purchase would lie; because it was his opinion that he who stated that the slave had been ordered to pay twenty aurei had excepted the condition which depended upon the payment. 4A slave was ordered to be free after his accounts had been rendered; the heir sold and delivered him, and stated that he had been directed to pay a hundred aurei for his freedom. If nothing remained which the slave was obliged to pay when he rendered his accounts, he therefore became free as soon as the estate was entered upon, and liability for eviction was contracted for the reason that a man who was free was sold as one whose liberty was dependent on a condition. If the slave was a defaulter to the amount of a hundred aurei, it may be held that the heir did not tell a falsehood; and as the slave was ordered to render his accounts, it is understood that he was directed to make good the amount of money collected which remained unpaid. The result of this is, that, if he was in default for less than a hundred aurei, for example, only fifty, so that he would obtain his freedom when he paid this sum, the purchaser will be entitled to an action on sale to recover the remaining fifty aurei. 5Where anyone, at the time of the sale, states indefinitely that a slave will be conditionally free, but conceals the condition of his freedom, he will be liable to an action on sale if the purchaser is not aware of the fact; for, in this instance, it is settled that he who says that a slave has a prospect of freedom, and does not mention any condition, will indeed not be liable on the ground of eviction, if the condition is fulfilled, and the slave obtains his freedom; but he will be liable to an action on sale provided he concealed the condition which he knew had been prescribed; just as where a party sells a tract of land, and being aware that a certain servitude was due from it, stated indefinitely, “that all rights of way of every description would continue to be enjoyed by those entitled to them,” is properly held to have released himself from liability for eviction, but, because he deceived the purchaser, he will be liable to an action on sale. 6Where the amount stated to be included in a tract of land which is sold falls short, a part of the price is deducted in proportion to the value of all the jugera which the land was alleged to contain.

Scævola, Questions, Book II. Where a husband has judgment rendered against him for a sum which he is able to pay, and he has claims equal to, but not greater than the amount of the dowry, he will not be compelled to assign his rights of action.

Scævola, Questions, Book III. If it is agreed between husband and wife that the profits of the last year of marriage, which have not yet been obtained, shall be applied for her benefit, a contract of this kind is valid.

Scævola, Questions, Book III. If I wish to give my wife absolutely, something which another person desires to give her mortis causa, what I order to be given to her will be void; because if the aforesaid party should regain his health, I will be liable to a personal action for recovery, and if he should die, I will, nevertheless, become poorer, for I will not have what I ought to be entitled to.

Scævola, Questions, Book III. If an heir should deliver only certain articles out of several which have been bequeathed, he can retain the entire Falcidian portion out of the remainder, and can interpose an exception on the ground of bad faith against the legatee, even with reference to the property which he has already delivered. 1If only one article has been bequeathed, and a part of the same has been delivered, the heir can reserve the entire Falcidian portion out of the remainder.

Scævola, Questions, Book IV. Where a party knowingly receives money which is not due, since this is the same as a theft, it should be considered whether, when an agent makes payment with his own money, he does not commit a theft upon himself? Pomponius says in the Eighth Book of the Epistles, that the agent has a right of action for recovery based on theft; and that I, also, have such a right, if I ratify the payment of money which is not due; but where one action is brought, the right to bring the other is extinguished.

Scævola, Questions, Book IV. If a father should appoint guardians for a daughter whom he has disinherited, and the will should be declared to be broken on account of the birth of a posthumous child, it will be best for the said guardians to be appointed for the ward, for the purpose of claiming the inheritance of the intestate.

Scævola, Questions, Book IV. If a freedman is in default in rendering his services, his surety will be liable, but the surety himself cannot be in default. A surety, however, who has agreed to furnish a substitute for the debtor will be liable for delay.

Scævola, Questions, Book IV. Or where the usufruct belongs to another.

Scævola, Questions, Book IV. If my co-heir has collected double damages on account of a theft perpetrated by a number of slaves, Labeo thinks I will not be prevented from bringing an action for double damages; and that, in this way, a fraud will be committed against the Edict; and that it is unjust for our heirs to collect more than we ourselves could have done. 1He also says that if the deceased recovered less than double damages, his heirs cannot properly bring suit for more than equal portions; but I think that the better opinion is that the heirs can sue for their shares, and that both heirs together cannot recover more than double damages including what the deceased collected.

Scævola, Questions, Book V. Where anyone who has been appointed heir by a testator is arrogated by him, it can be said that he has done enough for him, because before he adopted him, his appointment was merely that of a stranger.

Scævola, Questions, Book V. If a son under the control of his father, after having been appointed his heir, enters upon his estate, and an emancipated son demands prætorian possession of the same contrary to the provisions of the will, and he himself does not do so, no contribution by way of collation should be made for his benefit; and it is so stated in the Edict. I think, however, that just as he can legally retain the estate in proportion to his share, because he can demand prætorian possession of it, so, also, he certainly should contribute by way of collation for the benefit of his brother, as the latter suffers wrong through his obtaining prætorian possession.

Scævola, Questions, Book V. Where anyone who has a son under his control adopts a stranger in the place of his grandson, just as if he had been born to his son, and afterwards emancipated his son, the grandson will not be joined with the emancipated son in the prætorian possession, because he has ceased to be included among the children of the latter.

Scævola, Questions, Book V. Therefore, if the Decree of the Senate does not apply, neither will the Favian Action, as the property can be recovered by another proceeding.

Scævola, Questions, Book V. If a ward, without the authority of his guardian, promises Stichus to give a surety, and the slave dies after the ward has been in default, the surety will not be liable on this account; for no default can be understood to take place where no right to make a demand exists. The surety, however, will be liable to the extent that he can be sued during the lifetime of the slave, or afterwards, if he himself should be in default.

Scævola, Questions, Book V. No one is understood to be in default where the claim is void.

Ad Dig. 28,2,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 576, Note 7.Scævola, Questions, Book VI. Gallus stated that posthumous grandchildren could be appointed heirs in the following terms, namely: “If my son should die during my lifetime, and within ten months after my death any grandchildren, either male or female, should be born to his wife, let them be my heirs.” 1Certain authorities hold that the appointment of heirs will be legal, even if the father does not mention the death of the son, but simply appoints his grandchildren his heirs; since it may be inferred from his words that in such an event the appointment will be valid. 2It must also be believed that Gallus held the same opinion with reference to grandchildren, when the testator says: “If my grandson should die during my lifetime, then my great-grandchild who is his issue,” etc. 3If, however, the grandson should die during the lifetime of the son, leaving his wife pregnant, and the testator should make a will; he can say: “If my son should die during my lifetime, then my great-grandson sprung from him shall be my heir.” 4While the testator’s son and grandson are still living, can the testator provide for the succession of his great-grandson, under the assumption that both the former will die during his lifetime? This also must be admitted, in order to prevent the will from being broken by the succession, if in fact the grandson should die, and then the son after him. 5Ad Dig. 28,2,29,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 557, Note 5.What if the testator should only anticipate the event of the death of his son, and what would be the result if the testator should suffer the interdiction of water and fire? What if the grandson, the father of the great-grandson appointed heir, as we have stated, should be emancipated? These instances, as well as any of those in which a lawful heir is born after the death of his grandfather, have no connection with the Lex Velleia. But, in accordance with the spirit of the Lex Velleia, all these matters should be taken into consideration, just as other cases should be admitted, for example, where death occurs. 6What course must be pursued where the person who makes the will has a son in the hands of the enemy? Why has it not been held that, if the son should die before returning from captivity, but after the death of his father, then the grandson who was born during their lifetime, or even after the death of his grandfather, could not break the will? This case has no relation to the Lex Velleia. The better opinion therefore is that, for the sake of convenience, and especially after the Lex Velleia, which disposed of many cases where a will could be broken, the interpretation should be adopted that, where a testator appoints his grandson who was born after his death, he shall be held to have appointed him legally. And no matter under what circumstances the grandson born after the testator’s death may become his heir, whenever he has been passed over in the will, he can break it. Even if its provisions are stated in general terms, for instance: “Any children born to me after my death, or whoever shall be born after my death, shall be appointed my heir”; provided such a child should be born his heir. 7Where anyone has a son, and appoints his grandson born of said son his heir, and his daughter-in-law, being pregnant, is captured by the enemy, and while in their hands, and, during the lifetime of the grandfather and his son, brings forth a child, and the latter, after the death of his father and grandfather returns; is this case included in the Lex Velleia, or must recourse be had to the ancient law, so that the grandson who is appointed may not break the will either under the ancient law or the Lex Velleia? This question may be raised, if, after the death of the son, the grandfather appoints his grandson his heir, and the latter returns after the death of his grandfather. However, when the will cannot be broken by him who was appointed, it makes no difference whether he is excluded from the succession by the ancient law or by the Lex Velleia. 8Someone perhaps may doubt whether, in this instance, if the grandson should be born after the execution of the will, and during the lifetime of his father and grandfather, he can be appointed an heir because his father had not been legally appointed. There should be no apprehension on this ground, for the grandchild is born of a lawful heir after the death of his ancestors. 9Hence, if a great-grandson, born of a grandson, can be admitted to the succession, if afterwards his son should be living, a son born to him will also be entitled to the succession. 10In all these instances, it must be observed that only a son who is under parental control can be appointed heir to any portion of an estate, for his disinheritance after the death of the testator will be void. It is not necessary, however, for the son to be disinherited if he is in the hands of the enemy and dies there; and certainly with respect to the grandson and great-grandson, we never require their appointment if their children are appointed heirs, because they can be passed over. 11Let us now examine the Lex Velleia. It prescribes that children born in our lifetime, in like manner, cannot break our wills. 12The first section of the law has reference to those who after they are born, will become proper heirs. I ask, if you should have a son, and appoint as your heir your grandson by said son, who is not yet born, and your son should die, and your grandson should be born during your lifetime, what will be the result? It must be held from the words of the law that the will is not broken, as it not only states in the first section if the grandson is appointed at the time during which the son was not in existence, but also if he should be born during the lifetime of his father. In this case, why should it be necessary for the time when the will was executed to be considered, since it is sufficient to observe the time when the grandson was born? For, in fact, the following are the words of the law: “He who makes a will can appoint as heirs all those children of the male sex who will be his proper heirs”; and also, “even though they may have been born during the lifetime of their father”. 13In the next section of the law, it is not provided that those who succeed to the place of the children can break the will; and this must be interpreted in such a way that if you have a son, a grandson, and a great-grandson, and after the death of the first two, your grandson having been appointed and succeeding the lawful heir, will not break the will. It has been very properly decided that the words: “If any one of his heirs should cease to be his heir”; have reference to all those cases to which we have stated the formula of Gallus Aquilius is applicable; for not only where a grandson dies during the lifetime of his father, the great-grandson succeeding his deceased grandfather does not break the will, but also where he survives his father and then dies, provided he has either been appointed heir, or been disinherited. 14It should be considered whether by the words of this last section, namely: “If any of his heirs should cease to be his heir, his children shall become heirs in his stead”, are susceptible of the interpretation that if, having a son in the hands of the enemy, you appoint your grandson by said son your heir, not only if your son should die during your lifetime, but even after your death and before he returns from captivity, he does not break the will by the succession, for the testator added nothing by which the time might be indicated, unless you may rather rashly hold that he has ceased to be a lawful heir during the lifetime of his father (although he died after the death of the latter), because he did not and could not return. 15The following case is a difficult one. If you have a son and you appoint your grandson, who is not yet born, your heir, and the latter is born during the life of his father, and then his father dies, he is not his heir at the time when he was born, nor afterwards, for by his succession he who has already been born is held to be forbidden to break the will. Hence, by the first section of the law, those children are permitted to be appointed heirs who are as yet unborn, and who, after they are born, will be proper heirs. By the second section, their appointment is not permitted, but the law forbids them to break the will; nor on this account should the second section be considered of inferior importance. However, the child who was not yet born at the time he was appointed should take the place of his father (which in fact he could not do by law), just as if he had been legally appointed. Julianus, however, held that the two confused sections of the law might be reconciled in such a way as to prevent wills from being broken. 16After adopting the opinion of Julianus, let us, however, examine whether if a grandson is born during the lifetime of his father, and is subsequently emancipated, he can voluntarily enter upon the estate. This opinion should be approved, for a party cannot become a proper heir by emancipation.

The Same, Questions, Book VI. If Titius and myself should be appointed heirs, and by our appointment a posthumous child is disinherited, or one is not disinherited on account of our substitution as heirs, and Titius should die, I cannot enter upon the estate; for the will is broken on account of the appointment of a person by which the posthumous child is disinherited, and who is called to the succession as a substituted heir, by whom the posthumous child is not disinherited. 1Where, however, Titius and myself are substituted for one another, even though the posthumous child may not have been disinherited in that part of the will which mentions the substitution, and Titius either dies, or rejects the estate, I think that I can enter upon and become the heir of all of it. 2However, in the first case, even though Titius may be living, I cannot enter upon the estate without him, nor can he do so without me, for the reason that it is uncertain whether the will may not be broken by one of us refusing to accept, and therefore we should both enter upon the estate together.

The Same, Questions, Book VI. If a soldier should make a codicil, and die within a year after his discharge, the legacies bequeathed by his military will, in accordance with military law, must be fully paid, but it is held that those left by his codicil must be paid after the Falcidian portion has been deducted. This matter should be explained as follows: If the testator has four hundred aurei and bequeaths four hundred by his will, and a hundred by his codicil, out of the fifth part (that is to say eighty, which the legatee would be entitled to by the codicil if it was not subject to the Falcidian Law), the heir will be entitled to retain a fourth, that is to say twenty aurei.

Scævola, Questions, Book VIII. Certain authorities hold (as I recollect) that in Vivianus a controversy is explained which arose between Sabinus, Cassius, and Proculus with reference to the question whether legacies given, or taken away by a codicil from persons who died after they were appointed heirs, were due to the substitutes; that is to say, whether the giving or the taking away of the legacies was as valid where they were provided for by a codicil, as they were when provided for by a will. It is said that Sabinus and Cassius answered that this was the case, and that Proculus dissented. The conclusion of Sabinus and Cassius, (as they themselves assert) is that the codicil is considered as part of the will, and that it sustains the observance of the law with reference to the delivery of the property. Still, I venture to say that the opinion of Proculus is the more correct; for a legacy is of no force or effect which is bequeathed to one who, at the time the codicil was made, was not in existence, even though he was living at the time when the will was drawn up; as it should belong to him to whom it is given. Then the question should be asked whether the legacy was properly bequeathed, so that the rule of law shall not be inquired into before the existence of the person is ascertained. In the case stated, therefore, the bequest is of no force or effect, if it was made or taken away by a codicil, after the death of the heir; for the reason that the heir referred to was not in existence, and the deprivation or the grant of the legacy becomes void in consequence. This would not apply where a substitute is given for an heir appointed to the entire estate, as the codicil would be confirmed by the appointment. 1Where two heirs have been appointed, and substitutes assigned, and one of them should die, the legacies will still be considered valid; but some discussion arose with reference to the co-heir, and whether he owed the entire legacy, where the bequest was as follows: “Whoever shall be my heir.” Or must it be held that all is not due, for the reason that the heir who was substituted should pay a portion of the same, even though he himself does not owe it? The same discussion may arise with reference to specified obligations; but I think that there is much more ground for the co-heir being liable for the entire legacy, because the party who was joined with him is no longer in existence.

Scævola, Questions, Book VIII. If a tract of land of the value of a hundred aurei should be left to Seia, in lieu of her dowry, and the same should be devised to Mævius, the woman can recover, in addition, the amount which the Falcidian Law will take from Mævius, because they are not, so to speak, joint legatees of the same, as there is more included in the dowry of the woman than in the remainder of the land.

Scævola, Questions, Book VIII. If, after Stichus has been manumitted, his peculium should be left to him, and a slave belonging to said peculium is bequeathed to Titius, Julianus says that the amount deducted from the peculium on account of the debt due to the master will be added to that received by him to whom the sub-slave was bequeathed.

Scævola, Questions, Book VIII. Reasons which immediately exclude the party from taking action must not be considered conditional with reference to trusts, but we can only consider those as such which cause delay with expense, where the legatee can receive his bequest after having furnished a bond. For we cannot say that the following cases are similar, namely, where property is bequeathed, “If the legatee will erect a monument,” and where it is bequeathed, “to enable him to erect a monument.”

Scævola, Questions, Book VIII. Where an heir is charged to sell a tract of land for five aurei, which is worth ten, there is no doubt that the five aurei will be subject to the operation of the Falcidian Law.

The Same, Questions, Book IX. If my slave, after having been appointed my heir, is charged with a legacy for my benefit, and acquires an estate for me, Msecianus denies that the legacy should be subject to the Falcidian Law because it is not valid.

Ad Dig. 10,2,37Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 608, Note 32.Scævola, Questions, Book XII. A party who brings an action for the partition of an estate does not admit that his adversary is his co-heir.

Ad Dig. 39,2,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16.Scævola, Questions, Book XII. You built a house, and I bring an action against you on the ground that you have no title to the same. You do not set up any defence. Possession should be granted me, but not in order that the house may be immediately demolished, for it would be unjust for this to take place at once, but it should be done within a certain time, unless you prove that you had the right to build it.

Scævola, Questions, Book XII. Where anyone stipulates as follows, “Will you pay ten aurei if a ship arrives, and Titius becomes Consul?” the money will not be due unless both of these events take place. The same rule applies to the opposite case, “Do you promise if a ship does not arrive, and Titius does not become Consul,” for it is essential that neither of these things should occur. The following written agreement resembles this, namely, “If a vessel does not arrive, and Titius is not made Consul.” When, however, the stipulation is in the following terms, “Will you pay if a ship arrives, or Titius becomes Consul?” it is sufficient for one of these events to take place. On the other hand, if it is expressed as follows, “Will you pay if a ship does not arrive, or Titius does not become Consul?” it will be sufficient if only one of these things does not occur.

Scævola, Questions, Book XIII. Relief is granted to a guardian who defends a young child, in order that an action for the enforcement of the judgment may be granted against the ward.

Scævola, Questions, Book XIII. If a minor rejects an estate, relief must be granted to the sureties given by him, if suit should be brought against them on account of some contract relating to the estate.

Scævola, Questions, Book XIII. Where a slave is bequeathed, Neratius says that if Pamphilus is rejected the act will be void, and therefore the legatee will still have the right of selection.

Scævola, Questions, Book XIII. Julianus says, “If I stipulate that nothing shall be done either by you or by Titius, your heir, to prevent me from using the right of way,” not only Titius will be liable, if he does anything to prevent this, but his co-heirs as well. 1A person who stipulates that a tract of land shall be conveyed to him, or Titius, even though the land may be conveyed to Titius, can still claim it, in order that he may be guaranteed against eviction; for he is interested, as he can recover the land from Titius in an action on mandate. If, however, he merely interposed Titius for the purpose of making a donation, it can be said that the principal debtor is at once released by its delivery.

Scævola, Questions, Book XIII. If I stipulate as follows, “Do you promise that force will not be employed by you, or by your heir?” and I bring suit against you because you used violence against me, any act of this kind committed by the heir will still properly remain subject to the terms of the stipulation; for it can take effect, even if force is subsequently employed by the heir, as reference is not merely made to a single act of violence. For, just as the person of the heir is included, so also are any act or acts of violence committed by him, in order that judgment may be rendered against him to the amount of the other party’s interest. Or, if we wish the stipulation to be as follows, “Do you promise that nothing shall be done by you or by your heir?” so that it may relate to only the first act of violence committed, and if this occurs, the stipulation will not take effect a second time, on account of any act of the heir. Therefore, if an action based on this act of violence is brought, nothing further can be done under the stipulation. This is not true.

Scævola, Questions, Book XIII. If the slave of another who is serving two masters in good faith makes an acquisition by means of the property of one of them, reason dictates that he acquires it entirely for the benefit of him whose property was employed, whether he was serving one or both of his masters at the time; for in the case of genuine masters, whenever anything is acquired for the benefit of both, it is acquired for each one in proportion to his share, but if it is not acquired for one of them alone the other will be entitled to all of it. Therefore, the same rule will apply to the case stated and the slave who belongs to another, and is serving yourself and me in good faith, will acquire for me alone whatever is obtained by the use of my property, and he cannot acquire for you, because the profit was not derived from anything that was yours.

Scævola, Questions, Book XIII. An agent brought suit for fifty aurei. If his principal should bring suit for a hundred, the sureties who bound themselves for ratification would be liable for fifty, and for the interest which the debtor had in having the action for the fifty dismissed.

Scævola, Questions, Book XV. Where a testator appoints an heir as follows: “If my lawful heir refuses to accept my estate”, I think the condition of the will is not fulfilled, if the heir should claim the estate.

Scævola, Questions, Book XV. Where a father as well as his son have been captured by the enemy, and both die in captivity; even though the father may die first, the Cornelian Law does not confirm the substitution, unless the minor should die after returning home; although if both should die at home, the substitute will be entitled to the estate.

Scævola, Questions, Book XV. Where a tract of land with a right of way is devised to me, and, after the deduction of the Falcidian portion, the estimated value of the right of way is greater, I will be entitled to the land without incumbrance, and the right of way will be extinguished. If, however, the right of way should be bequeathed, and the estate should prove insolvent, the right of way will not be due. Where the land and the right of way are both devised, it should also be considered whether the heir will be entitled to make, from one or the other, a deduction of less than the value of the right of way. Strictly speaking, it may be said that, in this instance, the devisee will not only be entitled to the entire tract of land, but can also file an exception on the ground of bad faith, in order to obtain what is lacking, so that he may not have more than can be claimed under the Falcidian Law. Hence the right of way will only be lost where the requirements of the Falcidian Law amount to more than its value.

Scævola, Questions, Book XVI. Julianus refers to a person who owned nothing but two slaves; for if he had other property, why can it not be held that he has the power to manumit one of said slaves? For if one of them should die, he will still be solvent, and if one of them should be manumitted, he will also be solvent, and accidents which may occur are not to be considered; otherwise, the person who promised one of the slaves and indicated which one could not manumit any slave.

The Same, Questions, Book XVIII. If another law than that of Ælia Sentia, or a decree of the Senate, or even an Imperial Constitution prevents the grant of freedom to a slave, the latter cannot become a necessary heir, even though the testator may be insolvent. 1In the time of the Divine Hadrian, the Senate decreed that if a testator was not solvent when he died, and granted freedom to two or more slaves, and directed his estate to be given to them, if the appointed heir should say that he suspects that the estate would impose burdens upon him, he will be forced to accept it, in order that the slave first mentioned in the will may receive his freedom, and the estate be surrendered to him. The same rule must be observed in the case of those to whom freedom has been granted by virtue of a trust. Therefore, if the heir appointed in the first place wishes to enter upon the estate, no difficulty will arise; but if those slaves mentioned afterwards allege that they also should be free, and demand the surrender of the estate to them, an investigation must be made by the Prætor as to the solvency of the estate, and he must cause it to be delivered to all of said slaves who will become free. Where, however, the first slave is absent, and the one afterwards mentioned wishes to enter upon the estate, he shall not be heard, because if the first desires the estate to be given to him, he must be preferred, and the second must remain a slave.

Scævola, Questions, Book XVIII. A surety cannot be sued before the principal debtor becomes liable.

Scævola, Questions, Book XVII. Where a woman commits adultery through the agency of her husband, he can retain none of her dowry; for why should a husband disapprove of acts which he himself either previously corruptly caused, or subsequently assented to? If, however, anyone should maintain that, according to the spirit of the law, a husband who afforded an opportunity to his wife to prostitute herself cannot accuse her, his opinion must be held to be correct.