Ulpianus, Disputations, Book II. Where, however, both parties apply to the court, it is customary to determine the question by lot.

The Same, Disputations, Book II. Where anyone makes use of ambiguous language, or his intention is doubtful, he must be understood in the sense which is most favorable to himself.

The Same, Disputations, Book II. Where a donation is made not mortis causa, but intervivos, and at all events with the understanding that it shall be included in the fourth, it may be said that suit cannot be brought on the ground of inofficiousness, if the party receives the fourth in the donation; or, if he receives less, the amount lacking, shall be made up according to the arbitration of some good citizen; or, under any circumstances, what has been donated must be placed in the common fund. 1Ad Dig. 5,2,25,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 26.Where a person who has no right to bring suit on the ground of an inofficious will, is permitted to do so, and attempts to have the will partially set aside, and selects some particular heir against whom to bring the action; it must be said that as the will is partly valid, and the parties who were entitled to preference over the plaintiff are excluded, the latter has properly brought the suit.

Ulpianus, Disputations, Book II. A certain man was appointed heir to a share of an estate and having been ordered by the Prætor to bury the testator, he sold a slave who had been granted his freedom by the will, and promised the purchaser double damages in case of eviction, and suit having been brought against him on account of this guarantee, he paid the money. The question arose whether he could, in an action for the partition of the estate, recover the amount he lost on account of his agreement to pay double the value of the slave? Let us see, in the first place, whether he should have given security for double the amount? And it seems to me that he should not have done so; for those only are required to give security for double the amount who make sales voluntarily; but where the party who makes the sale is performing a duty, he ought not to be compelled to promise any more than where the one who makes a sale was appointed by the Prætor to execute a judgment; and even then the party is not in such a condition that he can be compelled to do what those who sell at their own will are forced to do; for there is a great deal of difference between him who discharges a duty and him who sells voluntarily. Hence in the first place the party was not obliged to make a stipulation for double the value, but the Prætor should hold that the purchaser has a right of action on the sale against the actual heir, if the property sold should be recovered by reason of a superior title. If, however, the heir made a mistake and furnished the bond, and the slave acquired his freedom, suit may be brought on the stipulation; and if this should be done, it is only just that a prætorian action should be granted against the co-heir, (as the action for the partition of an estate will not lie) so as to prevent him from sustaining the loss. And, indeed, for anyone to be able to bring the action for the partition of an estate, he must not only be an heir, but he must also sue or be sued because of some act which he performed, or failed to perform, after he became an heir; otherwise the action for the partition of an estate will not lie. Hence, if anyone should perform any act with reference to the estate before he knew that he was an heir, there will be no ground for an action in partition, because the party is not held to have acted with the intention of an heir; and therefore where anyone performs an act before the estate has been entered upon, for instance, if he buried the testator, he will not be entitled to an action for partition, but if he did this after the estate was entered upon, we hold, in consequence, that he can recover by an action in partition the expenses which he incurred through the funeral.

The Same, Disputations, Book II. Where you receive money on the condition that you will go to Capua, and then at the time when you are prepared to start on your journey, the state of the weather, or your health prevents you from doing so; let us consider whether an action to recover the money can be brought on the ground of your failure to make the journey? Since you were not to blame for not going, it may be stated that an action to recover the money will not lie; but, as the party who paid it has a right to change his mind, there is no doubt that what has been paid can be recovered by an action, unless it would have been to your advantage not to have received the money for that purpose; or if the condition of things is such that, although you have not yet started you have, nevertheless, arranged your affairs so that you are compelled to go, or that you have already incurred the necessary expenses for the journey, so that it is evident, for instance, that you have expended more than you have received, an action for recovery will not lie; but if you have spent less, the action can be brought, provided, however, that you will be indemnified for what you have expended. 1Where one party delivers a slave to another with the understanding that he shall, within a certain time, be manumitted by him, and he who delivered the slave changes his mind and communicates this to the other party; and the slave should be manumitted after his mind has been changed, he who delivered the slave will, nevertheless, be entitled to bring an action because he changed his mind. It is evident, however, that if the other party does not manumit the slave, the constitution becomes operative, and renders the slave free, if the party who delivered him for this purpose has not yet changed his mind. 2Moreover, where anyone gives Titius ten aurei in order that he may purchase a slave with the money and manumit him, and he afterwards changes his mind; if the slave has not yet been purchased, the change of mind will give him a right of action to recover the money, if he makes this plain to Titius, lest he may purchase the slave afterwards and suffer loss. If, however, the slave has already been purchased, the change of mind will not injure the party who purchased him but, instead of the ten aurei which he received, he must surrender the slave that he purchased; or if, in the case proposed, the slave should have previously died he need not pay anything, provided his death was not caused by him. If, however, the slave has fled, and the party who purchased him was not to blame for it, he will not be required to pay anything; but it is clear that he must promise to restore him if he should ever come into his power. 3But if he received money in order to manumit a slave and he runs away before he is manumitted; let us consider whether what he received can be recovered by a personal action? If, indeed, he had been about to sell the said slave, and failed to do so because he had received money to manumit him, suit for recovery cannot be brought against him. But it is evident that he must give security that if the slave comes into his hands, he will return what he received, after deducting any diminished value the slave may have sustained on account of his flight. There is no doubt that if the party who made the payment is still desirous that the slave should be manumitted, but the other does not wish this to be done, because he is offered on account of his having taken to flight, he must return the entire amount that he received. If, however, the party who paid him the ten aurei chooses to have the slave himself delivered to him; the result will be, that either the slave must be delivered to him or the money which he paid be refunded. But if the party had no intention of selling the slave, then what he received must be returned, unless that if he had not received the money to manumit him he would have guarded him with greater care; for, in this instance, it is not just that he should be deprived of the slave and the entire price as well. 4Where, however, he accepted the money for the purpose of manumitting the slave, and the slave died; then, if he was in default with reference to the manumission, it follows that we must hold that he should refund what he received; but if he was not in default, having started on a journey to see the Governor of the province or any other magistrate before whom proceedings for manumission could be instituted, and the slave died on the journey; the better opinion is that, if he had the intention of selling the slave or of making use of him himself for some purpose, it must be held that he is not obliged to refund anything; for if he had no intention of doing these things, he must sustain the loss resulting from the death of the slave, since he would have died even if his owner had not received the money to manumit him, unless that the journey undertaken in order to manumit him happened to be the cause of his death; as, for instance, if he was killed by robbers, or crushed by the fall of a stable or by being run over by a vehicle, or lost his life in some other way, and this would not have occurred if the journey for the purpose of manumitting him had not been undertaken.

Ulpianus, Disputations, Book II. Sometimes the personal condition of the party establishes a ground for recovery; for example, where a ward without the authority of his guardian, or an insane person, or one who has been forbidden the management of his property, makes payment; for, generally speaking, there is no doubt that there is ground for an action under these circumstances; and where any money remains, suit can be brought for its recovery, but if it has been spent there will be ground for a personal action.

Ulpianus, Disputations, Book II. Marcellus states that a person who pretends to be the head of a family and enters into a stipulation under the direction of any one, is liable to an action on mandate, even though he cannot make good the amount; and, in fact, it is true that he should be liable, because he has been guilty of fraud. This also can be said with reference to all actions based on good faith.

Ulpianus, Disputations, Book II. Where one of two or more heirs of a party who could have been sued within a year, has an action brought against him, and the slave has been manumitted, or this has been directed to be done, or he has been sold or died, all the heirs will be released from liability; even though the party who is sued may not have judgment rendered against him for a larger amount than that of the peculium which he has in his hands, and this Julianus also stated. The same rule applies where the property was employed for the benefit of any of the heirs. Where, however, there are several usufructuaries or bona fide possessors, and one is sued, he releases the others, although he should not have judgment rendered against him for a greater amount of the peculium than that which he has in his possession. But although this takes place in accordance with the strict rule of law, still, equity demands that an action should be granted against those who are released by an accident of the law, so that recovery rather than the bringing of the suit should discharge them; for he who makes the contract with the slave has in his mind, as his property, the entire amount of his peculium, wherever it may be. 1But although in this action the former one is restored, still, an account should be taken of both the increase and the decrease; and, therefore, whether at present there is nothing in the peculium or something has accrued to it, the present state of the peculium must be considered. Hence, so far as both the vendor and the purchaser are concerned, this seems to us to be the better opinion, namely: that we can recover from the purchaser what has accrued to the peculium and the claim of the purchaser is not to be regarded as retroactive, to the time when the vendor was sued, and as included in the same legal proceeding. 2If the vendor of the slave sells him along with the peculium, and delivers the peculium, suit cannot be brought against him on the same, even within a year; for, as Neratius has stated, this price of the slave is not peculium.

Ulpianus, Disputations, Book II. It is a question whether, in contracts entered into in good faith, the father or master should be liable merely for the peculium, or for the entire amount; just as had been discussed in the action on dowry, where a dowry is given to a son, whether the father can only be sued for the amount of the peculium? I, however, think that the action can be brought not only for the amount of the peculium, but also to the extent that the woman has been deceived and defrauded by the malicious contrivance of the father; for, if he holds the property and is not ready to surrender it, it is only just that he should have judgment rendered against him for the amount that it is worth; for Pomponius said that what is expressly stated in a case of a slave to whom property has been given in pledge must also be understood to apply to other bona fide actions. For if property has been given in pledge to a slave, the action can be brought not only for the peculium, and for what has been employed in the business of the master, but it has also this additional sentence: “To the extent that the plaintiff has been deceived and defrauded by the malicious contrivance of the master.” The master is held to have acted fraudulently if he is unwilling to make restitution when he has the power to do so.

Ulpianus, Disputations, Book II. Where a son under paternal control has agreed to pay what his father owed, it should be considered whether the action for the employment of property in the affairs of another ought to be granted. He did not, however, release his father, for he who makes such an agreement binds himself, indeed, but does not discharge his father from liability. It is evident that, if he pays after making the agreement, although he may be held to have done so in his own behalf, that is on account of his having made the agreement, he will, nevertheless, be properly said to have employed the property in the affairs of his father.

Ulpianus, Disputations, Book II. Where anyone has hired his services to two employers at the same time, he must satisfy the one who has first employed him.

The Same, Disputations, Book II. Wherever an ordinary action or exception will not lie, a prætorian action or exception will be available.

The Same, Disputations, Book II. Where a creditor has sold a pledge it may be considered whether, in case of eviction, the vendor can in a suit based on the sale, be compelled to assign the right of action which he has against the debtor. He is, however, entitled to a counter-action on pledge, and the better opinion is that he must make the assignment, for does it not seem more just to him that the purchaser should at least obtain this advantage, which he can do without causing any expense to the creditor?

Ulpianus, Disputations, Book II. Where a son under paternal control is appointed guardian by the Prætor, and his father assents to the appointment, he should be held liable for the entire amount, but if he does not assent, he will be liable only for the amount of the peculium. He will be considered to have approved of the appointment if he himself transacts the business of the guardianship, or consents that his son shall do so; or if he, in any way whatever, concerns himself with the office. Hence, where a man wrote to his son to administer the guardianship carefully, and said, “For you know that we are responsible”; I held that he should be considered to have approved of the appointment. It is clear that if he only advises his son, he should not be held to have given his approbation.

The Same, Disputations, Book II. Advice was taken whether a decision rendered by a judge, who is under twenty-five years of age, is valid. It is perfectly correct to hold that such a decision is valid, unless he was less than eighteen years of age. If a minor holds the office of a magistrate, it must certainly be said that his jurisdiction ought not to be questioned. If a judge, who is a minor, should be appointed with the consent of the parties, and they know his age, and agree that he shall preside in the case, it is most properly held that his decision will be valid. Hence, if a Prætor or a Consul, who is a minor, expounds the law and gives an opinion, his act will be valid; for the Emperor who appointed him a magistrate by his decree conferred upon him authority to transact all the business of his office.

Ulpianus, Disputations, Book II. An action De peculia is not usually granted against a father in criminal cases.