Pomponius, On Plautius, Book I. Where a guardian pays damages assessed on account of property purchased for his ward, not out of the money belonging to the latter, but out of his own property; a stipulation against eviction becomes operative in favor of the ward as against the vendor. 1Where a woman takes security against eviction from a tract of land which she purchased, and gives the same land by way of dowry, and someone afterwards deprives her husband of it by means of an action; the woman can immediately proceed against the surety on the ground of purchase, as having reduced the amount of her dowry, or rendered it worthless; provided the husband tendered to the claimant the value of the said property.

Pomponius, On Plautius, Book I. The slave of an insane person cannot be manumitted by a relative of the latter who has been appointed his curator, because the manumission of a slave is not included in the administration of the property. If, however, the insane person should owe the slave his freedom on account of a trust, Octavenus says that, in order to remove all doubt, the slave should be delivered by the curator to the person to whom he is to be transferred in order to be manumitted by him.

Pomponius, On Plautius, Book I. If I order my debtor to pay you, you cannot immediately, while you are stipulating, make a novation, although the debtor, by paying you, will be released.

Pomponius, On Plautius, Book I. If the daughter of an insane person should be divorced from her husband, it has been decided that the dowry can be paid to the agnate curator, with the consent of the daughter, or to the daughter with the consent of the agnate.

Pomponius, On Plautius, Book II. Where an agent is appointed for the collection of a legacy, and makes use of an interdict against the heir for the production of the will, an exception against the agent on the ground that he is not authorized to do this by the mandate, cannot be pleaded against him.

Pomponius, On Plautius, Book II. Where property which I purchased from Titius is bequeathed by me, and the legatee is sued by the owner of the same, he cannot notify my vendor of the eviction, unless the rights of action should be assigned to him, or where he has the property secured by hypothecation.

Pomponius, On Plautius, Book II. If you purchase a tract of land from Titius, which in fact belonged to Sempronius, and after the price was paid he delivers it to you, and Titius then becomes the heir of Sempronius, and sells and delivers the same land to Mævius; Julianus says that it is more equitable, for you have the prior lien, because if Titius himself had attempted to recover the land from you, he would have been barred by an exception; and if Titius himself had held possession of it, you could have recourse to the Publician Action.

Pomponius, On Plautius, Book III. If I should subsequently become the heir of a party in whose favor judgment has been rendered against me on account of security, I will be entitled to an action on mandate.

Pomponius, On Plautius, Book III. Julianus says that, if a wife promises her dowry to her surety, because she is indebted to him on account of his suretyship, after the marriage has taken place the husband can at once bring an action on mandate against the debtor; for the reason that he is understood to have lost money by means of which he could have paid expenses incurred during marriage. 1Where a party has become surety to deliver a slave for you, and he delivers another slave to the stipulator, he will not himself be released, nor will he release you; and therefore he will not be entitled to an action on mandate against you. But if the stipulator has obtained the said slave by usucaption, Julianus says that it must be held that there has been a release, and, in consequence of this, an action of mandate will lie, but only after usucaption has taken place.

Pomponius, On Plautius, Book III. Labeo says if there is no one who can be notified on the part of the promisor with reference to money which is to be transported, an instrument should be drawn up in the presence of witnesses, which will take the place of a notification.

Pomponius, On Plautius, Book III. When we stipulate that if the principal is not paid, a penalty shall be due every month, instead of the legal interest, even though a judgment may be obtained for the principal, the penalty will still continue to increase, because it is certain that the principal has not been paid.

Pomponius, On Plautius, Book III. A son under paternal control cannot make a novation of the action of his father, without the knowledge of the latter.

Pomponius, On Plautius, Book III. If payment of a sum of money which was not due should be made to an agent, proceedings can immediately be instituted under this stipulation against the agent, to compel ratification by the principal, so that it may be determined whether what has been improperly paid should be recovered from the principal, if he has ratified it; or whether a personal action should be brought against the agent, if the principal does not confirm the transaction. 1When an agent demands a tract of land, and gives security (as is customary) that his principal will ratify his act, and afterwards the principal sells the land, and the purchaser claims it, Julianus says that the stipulation that the transaction will be ratified becomes operative.

Pomponius, On Plautius, Book IV. Aristo gave it as his opinion that a man could not marry the daughter of his stepdaughter, any more than he could his stepdaughter herself.

Pomponius, On Plautius, Book IV. If a surety has been accepted for the payment of the debt or the judgment, it will be no advantage to him if the person for whom he bound himself has judgment rendered against him for the amount which he is able to pay. 1If the husband should not be solvent, he can take advantage of the fact that he is not able to make payment; for this privilege is granted to him personally, and will not profit his heir.

Pomponius, On Plautius, Book V. If, however, the heir should not make these repairs, and on this account the usufructuary should not be able to enjoy the property; the heir of the usufructuary will be entitled to an action on this ground for an amount of damages equal to the difference it would have made to the usufructuary if the heir had not failed to make said repairs; even though the usufruct has been terminated by the death of the usufructuary.

Ad Dig. 7,1,65Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.Pomponius, On Plautius, Book V. But as the usufructuary is obliged to repair anything which has been injured by his own act, or by that of any of his family; he should not be released, even though he is ready to relinquish the usufruct; for he himself is obliged to do everything that the careful head of a household would do in his own house. 1An heir is no more compelled to repair property which a testator left ruined by age, than he would be if the testator had left anyone the ownership of the same.

Pomponius, On Plautius, Book V. Julianus says that where the same slave is granted a sum under the terms of a trust, and is also ordered to be free, the heir must grant him his freedom; for he says that he is not, by virtue of the trust, compelled to pay the value of the slave, as he gives him his freedom to which he is entitled. 1But where freedom is granted to a slave conditionally, under the terms of a trust, and the slave himself is given at the time, the heir will not be obliged to deliver him, unless security is furnished by the beneficiary of the trust that, if the condition is fulfilled, he will liberate the slave; for in almost all cases freedom granted by virtue of a trust is considered as having been directly granted. Ofilius, however, says that if a testator bestowed freedom by means of a trust, with the intention of depriving the slave of a legacy, this opinion is correct. But if the legatee can prove that the heir was charged by the testator, he will still be obliged to pay the value of the slave to the legatee.

Pomponius, On Plautius, Book V. Judgment cannot be rendered by a magistrate or an arbiter against a person who is insane.

Pomponius, On Plautius, Book V. Although anyone may have only asked for a female slave under a precarious tenure, it is held that it was intended that he should be entitled to any offspring of the said female slave.

Ad Dig. 45,2,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 13.Pomponius, On Plautius, Book V. Where two joint-promisors are bound to deliver the same slave, the act of one prejudices the other.

The Same, On Plautius, Book V. A novation cannot arise from a stipulation which does not become operative. Nor can it be stated, in opposition to this, that if I stipulate with Titius, with the intention of renewing the debt which Sempronius owes me, under a condition, and while the condition is pending Titius should die, although the condition may have been fulfilled before the estate was entered upon, novation will take place; for, in this instance, the stipulation is not extinguished by the death of the promisor, but passes to the heir who, in the meantime, represents the estate.

Pomponius, On Plautius, Book VI. Aristo declares that just as anything built into the sea becomes private property, so whatever the sea encroaches upon becomes public property.

Pomponius, On Plautius, Book VI. Hence a gift of mutuum sometimes remains in abeyance, in order to be confirmed by some subsequent act; as, for example, if I loan you a sum of money with the understanding that if a certain condition takes place, it will become yours and you shall be bound to pay me. In like manner, where an heir lends money which has been bequeathed as a legacy, and the legatee afterwards is unwilling to take it, for the reason that it is held that the money was the property of the heir from the day the estate was entered upon, he can bring an action to recover the money which was loaned. For Julianus says that even where delivery of property has been made by the heir, reference must be had to the time when the estate was entered upon, whether the legacy is rejected or accepted.

Pomponius, On Plautius, Book VI. Where you receive money as a loan from an insane person, who you think is of sound mind, and the money is expended for your benefit, Julianus says the insane person will have a right of action for its recovery; for it is the rule that where a right of action is acquired by a party who is unaware of the fact, it is also, under the same circumstances, acquired by one who is insane. Moreover, if anyone makes a loan to a slave and afterwards becomes insane, and the slave spends the money for the benefit of his master, an action for recovery can be brought in the name of the insane person. And where any one loans the money of another, and subsequently becomes insane, and the money is expended, the right to sue for its recovery is acquired by the insane person.

Pomponius, On Plautius, Book VI. Although whatever we construct on the public shore or in the sea will belong to us, still, a decree of the Prætor must be obtained to permit this to be done; and, indeed, if anyone should do something of this kind which inconveniences others, he can be prevented by force; for I have no doubt that he who puts up the building will have no right to a civil action.

Pomponius, On Plautius, Book VI. He employs force who does not permit the party in possession to make use of the property in any way that he may desire, whether by sowing seed, or cultivating, or digging, or plowing, or building upon it, or by the commission of any other act which interferes with the free possession of the land by his adversary.

The Same, On Plautius, Book VI. If the debtor of a ward, by his direction and without the authority of his guardian, pays money to the creditor of the former, he releases the ward from liability to the creditor, but he himself remains bound. He, however, can protect himself by means of an exception. But if he was not indebted to the ward, he cannot bring a personal action for recovery against the latter, who is not responsible as he acted without the authority of the guardian; nor can he bring one against the creditor, with whom he contracted by the order of another. The ward, however, having been released from liability for his indebtedness, can be sued in a prætorian action for the amount by which he has been pecuniarily benefited.

Pomponius, On Plautius, Book IX. It is our practice to hold that the owners of land, in which they have set apart places of sepulture, have the right of access to the sepulchres, even after they have sold the land. For it is provided by the laws relating to the sale of real property that a right of way is reserved to sepulchres situated thereon, as well as the right to approach and surround them for the purpose of conducting funeral ceremonies.

Pomponius, On Plautius, Book VII. Where an usufruct is bequeathed to me and to you at the charge of Sempronius and Mucius, heirs of the testator, I will be entitled to a fourth part from the share of Sempronius and another fourth part from the share of Mucius; and you, in like manner, will be entitled to two-fourths taken from their respective shares.

Pomponius, On Plautius, Book VII. Labeo says that a slave who is to be liberated by the heir under a certain condition cannot receive a legacy without the grant of his freedom while this is in abeyance under the terms of the will, for the reason that he is the slave of the heir. If, however, the heir inserted in his own will the same condition under which the slave was to obtain his freedom by that of the testator, the legacy will be valid. But if the slave should be ordered to be free while the heir is in default, it has very properly been decided that a legacy can be bequeathed to the slave without the grant of his freedom; because it would be superfluous to give him his freedom which he could not obtain under the will of the heir, but could obtain under that of the testator. 1“Let Stichus, or Pamphilus, whichever one my heir may choose, be given to Titius, provided he makes his choice upon the day on which my will shall be published.” If the heir does not say whether he prefers to give Pamphilus or Stichus, I think that he will be bound to give Stichus or Pamphilus, whichever one the legatee may select. If he says that he prefers to give Stichus, and Stichus should die, he will be released. If one of the two slaves should die before the time when the legacy vests, the survivor will remain subject to the obligation. Moreover, when the heir has once stated which one he prefers to give, he cannot change his mind, and this opinion was also held by Julianus.

Pomponius, On Plautius, Book VII. Where a man has two debtors who jointly owe him the same sum of money, that is to say, Titius and Mævius, and he makes a bequest as follows, “Let my heir pay to Mævius what Titius owes me, and let him pay to Seius what Mævius owes me,” he binds his heir by these words; for when the latter assigns to Mævius his right of action against Titius, Mævius is held to have been released by his act, and therefore the heir will be liable to Seius. 1Where a testator who has one debtor bequeaths the amount which he owes to him to two legatees separately, the heir is bound to satisfy both of the latter, one of them by assigning his right of action to him, and the other by paying him the money.

Pomponius, On Plautius, Book VII. What then must be done, as the creditor can bring an action under the will? The heir should not have judgment rendered against him, unless security is furnished him for defence against the debtor. Likewise, if the debtor should institute proceedings, the heir is required to do nothing more than to protect him against the creditor.

The Same, On Plautius, Book VII. Where freedom is granted as follows, “Let Stichus be free the twelfth year after my death,” it is probable that he will become free at the beginning of the twelfth year, for this was the intention of the deceased. There is, however, a great deal of difference between the two expressions, “the twelfth year,” and “after twelve years,” and we are accustomed to say “the twelfth year” when ever so little of the twelfth year has arrived, or elapsed. He who is ordered to be free the twelfth year is ordered to be free for every day during that year. 1Where the following provision is inserted in a will, “Let my slave, Stichus, be free, if he pays my heir a thousand sesterces at the end of one, two, and three years, after my death, or if he gives security to do so,” the slave cannot become free before the expiration of the third year, unless he pays the entire sum immediately, or gives security; as the advantage which the heir derives from immediate payment should be compensated by the rapidity with which the grant of freedom is made. 2Labeo says that where a testamentary grant of freedom is made as follows, “Let Stichus be free within a year after my death,” he will become free immediately. And if his freedom had been bequeathed as follows, “Let him be free, if he pays such-and-such a sum to my heir within ten years,” and he pays it at once, he will become free without delay.

Pomponius, On Plautius, Book VII. Where a person to whom the sum of a thousand sesterces has been bequeathed is charged to manumit a slave worth twenty, he cannot be compelled to execute the grant of freedom under the trust, if he does not accept the legacy.

Pomponius, On Plautius, Book VII. Labeo, in his Book of Last Works, states the following case: “Let Galenus, my steward, be free, if he appears to have carefully conducted my business, and let him retain all his property, and receive a hundred aurei in addition.” In this instance we should require such diligence as will benefit the master and not the slave. Moreover, good faith should be added to the diligence, not only in keeping the accounts, but also in the payment of any balance which may remain. By the word “appears” is meant “can be considered to have.” The ancients interpreted the following words of the Law of the Twelve Tables, “If rain-water causes damage,” to mean if it can cause damage. And if this question is asked before whom the abovementioned diligence must be established, we must answer that this ought to be decided by the heirs in accordance with the judgment of a reliable citizen; for instance, if a slave is ordered to be free on condition of his paying a certain sum of money, and it is not stated to whom he shall pay it, he will become free just as he would if the testator had written, “If he should pay the sum to my heir.” 1Pactumeius Clemens said that if a trust had been bequeathed as follows, “I charge you to deliver it to whichever of them you choose,” and the heir did not make any choice as to whom he should deliver the property, he must deliver it to all, and this was decreed by the Emperor Antoninus.

Pomponius, On Plautius, Book VII. When anyone promises to pay a sum of money within a year, or has judgment rendered against him requiring him to do so, he can pay it on any day during the year.