Marcianus, Rules, Book IV. A holy place is one which is defended and protected from the injuries of men. 1The word “sacred” is said to have been derived from the word sagmina, certain plants which were usually carried by the ambassadors of the Roman people to prevent their persons from being violated; just as the Greek Ambassadors carried those which are called khrukia. 2Cassius states that Sabinus very properly gave the opinion that the walls of a city were holy, and that it was necessary for persons to be prohibited from placing anything against them.

The Same, Rules, Book IV. Where a party is ordered by an arbiter to pay a sum of money in accordance with the terms of arbitration, and fails to do so, he must pay the penalty in pursuance of the agreement, but if he afterwards makes payment he will be released from the penalty.

Marcianus, Rules, Book IV. Because the affair has come to such a pass that the right to bring suit could not have originally existed.

Marcianus, Rules, Book IV. An action is granted a husband against his wife on account of corrupting a slave, even while marriage exists, but only for simple damages in consideration of matrimony.

Marcianus, Rules, Book IV. In actions in rem and in those for production, as well as in bona fide proceedings, an oath is taken with reference to the claim. 1The judge, however, can fix a certain amount up to which the party may swear; for he had a right in the first place not to tender him the oath. 2Moreover, where the oath is taken, the judge has a right either to dismiss the case, or to render judgment against the defendant for a smaller amount. 3In all these instances, however, the oath with reference to the claim can be taken only where fraud exists, and not on account of negligence; for the judge makes an estimate of what comes under the latter. 4There is no question that sometimes an oath is taken with reference to the claim in an action of strict law; for example, where a party who promised to deliver Stichus makes default, and Stichus dies; as the judge cannot make an estimate of the value of property which no longer exists, without tendering an oath.

Marcianus, Rules, Book IV. A creditor can bring a counter action on pledge against a debtor who has pledged the property of another, even though the debtor may be solvent.

Ad Dig. 18,1,45ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.The Same, Rules, Book IV. Labeo states in the Book of Recent Cases that, where anyone purchases, as new, clothing which has been renovated, it is held by Trebatius that the purchaser must be indemnified to the extent of his interest, if he ignorantly bought the renovated clothing. Pomponius also approves of this opinion, in which Julianus concurs, for he says that if the vendor was ignorant that the clothing was not new, he will be liable only for the value of the property itself, but if he was aware of the fact, he will also be liable for damages sustained by the purchaser on that account, just as if he had ignorantly sold a vase plated with gold for a solid one, for he must make good the gold which he sold.

Marcianus, Rules, Book IV. If a slave should commit a theft against his master, it is not necessary to state this at the time of the sale of the slave, for a return will not be granted for this reason. But if he said that this slave was not a thief, he will be liable on the ground of making such a representation and guarantee.

Marcianus, Rules, Book IV. Ad Dig. 22,1,32 pr.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 10 (1874), S. 274: Der Verkäufer muß sich nicht nur zur Lieferung der Waare bereit erklärt haben, sondern auch wirklich dazu bereit gewesen sein, um den Käufer in Verzug zu setzen.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 279, Note 4.Default is understood to apply, not to the property, but to the person; that is to say, where the party, after having been notified at the proper place, does not make payment; and this should be investigated by the court, for, as Pomponius says in the Twelfth Book of Epistles, the definition of this term is difficult. The Divine Pius stated in a Rescript addressed to Tullius Balbus, that the meaning of the word “default” cannot be determined by reference to any Constitution, nor by inquiry of legal authorities, since it is rather a question of fact than of law. 1Ad Dig. 22,1,32,1ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 281, Note 4.Proof of default is not sufficient where notice is served upon a slave of the absent debtor by the creditor, or the agent of the latter; since it is held that the master himself must be notified. But, if subsequently, when the creditor has the power to do so, he should neglect to prosecute the action instituted for the recovery of the debt, the debtor will not be understood to be in default from that time forward. 2In bona fide contracts, interest becomes due through default. 3But what if a son under paternal control and his father, to whom the liability of the former has passed, owe a debt which has been contracted by order of the father; or if the money has been expended for his benefit; or if it has become a part of the peculium of the son; which one of the parties must be considered to be in default? If only the father is sued on account of being in default, he cannot be held liable; still, an action will be granted against the son for the benefit of the creditor, to compel him to pay what the creditor has failed to collect from the father. Where, however, the son is in default, the creditor then can sue him for the entire sum, or he can sue his father only for the amount of the peculium. 4But where two debtors have bound themselves jointly, the default of one does not prejudice the rights of the other. 5Moreover, if a surety alone is in default, he will not be liable; just as if he had killed his slave Stichus, whom he had promised to deliver, but a prætorian action will be granted against him.

Marcianus, Rules, Book IV. It is stated in a Rescript by the Divine Pius that, if a freedwoman, representing herself to be freeborn, should deceive a Senator and marry him, an action should be granted against her, just as in the case of the Prætorian Edict, for the reason that she can derive no advantage from her dowry, as it is void.

Marcianus, Rules, Book IV. If the emancipated son should demand prætorian possession contrary to the provisions of the will, it is established that the descendants and ascendants of the testator should be protected. If, however, various donations mortis causa should have been made to privileged persons by the testator, they must contribute pro rata to the share of the emancipated son, just as happens in the case of the division of an estate and legacies. 1Where, however, a father dies intestate, his son cannot complain of donations mortis causa, as no contribution of legacies takes place.

Marcianus, Rules, Book IV. It is more usual for women to manumit their foster-children, but this is also permitted in the case of men; and it is sufficient for one to be allowed to manumit a slave in whose support he has a more than ordinary interest. 1There are some authorities who think that women can manumit a slave for the purpose of marrying him, but this should be limited to a case where he was bequeathed to the woman who has been his fellow-slave. If a man, who is impotent, wishes to manumit a female slave for the purpose of marrying her, he can do so. This rule, howevery does not apply to one who has been castrated.

Marcianus, Rules, Book IV. Where anyone is asked to manumit a female slave, and delays doing so, and, in the meantime, she has a child; it has been established by an Imperial Constitution that under such circumstances the child will be born free, and will even be considered freeborn. There are, however, certain constitutions by which it is provided that the child is freeborn from the very time that the grant of freedom takes effect, and this rule should undoubtedly be observed; for freedom is not a private but a public matter, so that he who is under obligation to grant it should tender it voluntarily. 1Where, however, the female slave had a child before she was entitled to her freedom under the trust, and this had been purposely brought about by the heir, in order that she might not yet be entitled to her freedom, as where he delayed entering upon the estate in order that any children born to the said female slave would belong to him, it is settled that they should be manumitted, but they must be delivered to their mother to be set free by her and become rather her freedmen than those of the heir, for where the latter is unworthy to have slaves, he is not worthy of having freedmen.

Marcianus, Rules, Book IV. The same rule will apply where the heir did not designedly delay entering upon the estate, but deliberated as to whether or not he would accept it; and if he learned that he had been appointed heir after the slave had brought forth her child, it is decided that relief should be granted in this case; for, under such circumstances, the heir himself ought to manumit the child, and not deliver it to its mother to be emancipated. 1If, however, freedom has been directly bequeathed to the slave, and any of the above events should take place, in what way can relief be granted to the child? For, in these instances, freedom left under a trust is demanded, and the Prætor comes to the relief of the children, but where freedom is left directly, no such a demand is made. I think, however, that, in a case of this kind, the child is entitled to relief, and that the Prætor, having been applied to, may grant the mother an action in rem, just as where freedom is left by a trust. Hence, Marcellus, in the Sixteenth Book of the Digest, states that where children who have been manumitted by will before the estate is entered upon are acquired by usucaption, relief must be granted them, in order that their freedom may be preserved by the Prætor; and although they may have been to blame for suffering themselves to be acquired by usucaption, still, no responsibility can attach to children on this account.

Marcianus, Rules, Book IV. “If I stipulate for ten aurei for myself, or for Titius,” Titius cannot take a surety, because he was added only for the purpose of payment.

The Same, Rules, Book IV. Where payment is made to a ward without the authority of his guardian, and an inquiry is instituted to ascertain the time when he profited by it, the date on which he brought his action is taken into account; and this is done in order to determine whether he can be barred by an exception on the ground of fraud. 1Ad Dig. 46,3,47,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 14.It is evident (as Scævola says) that if the property was lost before issue had been joined, the ward is sometimes considered as having profited pecuniarily; that is to say, if he bought something which was necessary, and which should have been purchased with his own money. For he is considered to have profited by the transaction by the mere fact that he did not become any poorer. Hence the opinion was advanced that the Macedonian decree of the Senate does not apply to the case of a son under paternal control, if he borrowed money for necessaries and lost it.

Marcianus, Rules, Book IV. He who shows the way to a fugitive slave does not commit a theft.