Notae ad Scaevolae Digestorum libros
Ex libro XXIII
Dig. 40,4,59Scaevola libro vicensimo tertio digestorum. Titia servis quibusdam et ancillis nominatim directas libertates dedit, deinde ita scripsit: ‘et pedisequas omnes, quarum nomina in rationibus meis scripta sunt, liberas esse volo’. quaesitum est, an Eutychia, quae testamenti facti tempore inter pedisequas libertatem acceperat, mortis autem tempore inveniatur actori in contubernio tradita, ex generali capite pedisequarum libertatem consequi posset. respondit nihil impediri libertatem pedisequae, quod mortis demum tempore pedisequa esse desiit. 1Puram et directam domini sui testamento libertatem Stichus acceperat et ex hereditate multa per fraudem amovisse dicitur: quaesitum est, an non ante in libertatem proclamare debeat, quam ea, quae ex hereditate amovisse probari poterit, heredibus restitueret. respondit secundum ea, quae proponerentur, eum de quo quaereretur liberum esse. Claudius: videtur absolvisse et id de quo quaeritur: nam heredibus satis consultum est edicto de furtis. 2Lucius Titius testamento suo ita cavit: ‘Onesiphore, nisi diligenter rationem excusseris, liber ne esto’: quaero, an Onesiphorus ex his verbis libertatem sibi vindicare possit. respondit verbis, quae proponerentur, libertatem adimi potius quam dari.
Scævola, Digest, Book XXIII. Titia bequeathed freedom directly to certain of her male and female slaves, and then inserted the following provision in her will, “And I wish all the slaves attached to my personal service, whose names are inscribed in my registers, to be free.” The question arose whether Eutychia who, along with the other personal slaves, was emancipated at the time when the will was executed, and who, when the testatrix died, was married to a steward who was a slave, would obtain her freedom under the general head of “Slaves attached to my personal service.” The answer was that there was nothing to prevent her obtaining her freedom, even though at the time of the death of the testatrix she had ceased to be one of her attendants. 1Stichus received his freedom directly by the will of his master, and was accused of having fraudulently secreted much of the property of the estate. The question arose if, before he could demand his freedom, he should not restore to the heirs the property which he was proved to have taken. The answer was that, according to the facts stated, the slave in question should be free. Claudius: The point raised seems to have been finally disposed of, for the interest of the heirs will be sufficiently consulted by having recourse to the Edict concerning thefts. 2Lucius Titius provided by his will, “Onesiphorus shall not be free unless he renders an exact account of his administration.” I ask whether Onesiphorus can demand his freedom by virtue of these words? The answer was that, in accordance with what is stated, he is rather deprived of freedom than granted it.