Ulpianus, Controversies, Book VI. The same thing should take place if Arescusa had first brought forth two children, and afterwards brought forth twins; for it must be held that both the latter are not born free, but only the one who was born last. The question, however, is rather one of fact than of law.

Ulpianus, Disputations, Book VI. Where a man induced by friendship for their father makes an application for the appointment of a guardian for minors, or takes measures for the removal of guardians who are suspected, he has no right of action against said minors, according to a Constitution of the Divine Severus.

The Same, Disputations, Book VI. Where a slave states that he has been purchased with his own money, and proves it, he will be free from the time when he was purchased; because the Imperial Constitution does not direct that he shall be declared free, but orders that his freedom shall be restored to him, hence his master can be required to manumit a slave who purchases himself with his own money; but if the master conceals himself, the precedents derived from decrees of the Senate relative to grants of freedom under a trust must be followed.

Ulpianus, Disputations, Book VI. Whenever services are demanded of a freedman, proof of his right to do so is required from the party who alleges that he is his patron; therefore Julianus holds that, although in a matter which is in controversy the patron is held to be entitled to possession, he who is said to be the freedman should not take the part of plaintiff, but he who asserts that he is the patron should do so. 1Ad Dig. 22,3,18,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 265, Note 17.Where anyone alleges that some fraudulent act has been committed, he must prove the fraud, even though he may have made this statement in an exception. 2The plaintiff should be compelled to prove the truth of an interrogatory which is made, that is, where it is alleged that a party who was interrogated in court answered that he was the sole heir; or if, having been interrogated, he is said to have remained silent, the same rule must be held to apply; and the blame must be placed not upon him who stated in his exception that he did not answer, but upon the plaintiff.

Ulpianus, Disputations, Book VI. Ad Dig. 34,5,10 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 640, Note 8.Where a legacy was left to the one of my relatives who may first ascend to the Capitol, and two of them are said to have done so at the same time, and it is not apparent which one arrived first, will the legacy be prevented from taking effect? Or, it may be asked, what is the rule if the testator made a bequest “to the one who should erect a monument to him,” and several of them erect one; or if a bequest is made to one who is the older of two persons, and both of them are of the same age; or where a legacy is bequeathed by the testator to his friend Sempronius, and there are two persons of the same name held in equal esteem? But if a legacy is bequeathed to two men of the same name, for instance, to two called Sempronius, and one of them is afterwards deprived of the legacy, and it does not appear which one was meant; will the legacy be extinguished, so far as both parties are concerned, or will its revocation be void? This question may also arise where freedom is left to several slaves of the same name, or to certain ones among them. The better opinion is that, in all these cases, the legacies and the grants of freedom should take effect, but where a revocation takes place it affects all the parties. 1It is clear that if a female slave should receive her freedom under the following provision, “Let her be free, if the first child she bears is a male,” and she brings forth a male and a female child at a single birth, and it is certain which one was born first, there should be no doubt with reference to her condition; that is to say, whether she will be free or not; nor should there be any doubt so far as that of the girl is concerned, for if she was born after the boy, she will be freeborn. If, however, there is any uncertainty in this respect, and it cannot be removed by judicial investigation, where matters are doubtful it is better to adopt the more equitable opinion, and to presume that the male child was born first, so that the slave may obtain her freedom and her daughter be freeborn.

Ulpianus, Disputations, Book VI. If anything besides was left to the slave, it is clear that the Senate declared that the Falcidian Law would be applicable. Therefore, Scævola says that the Falcidian Law will apply to anything which was bequeathed to the slave in addition to his freedom, and hence the price which is to be paid for him would be liable to contribution.

Ulpianus, Disputations, Book VI. An Epistle of the Divine Brothers, addressed to Urbius Maximus, sets forth that a slave purchased with his own money is in a position to demand his freedom. 1In the first place, such a slave cannot properly be considered to have been purchased with his own money, as a slave cannot have money of his own. But if we close our eyes, he must be held to have been bought with his own money, since he was not purchased with that of him who redeemed him from slavery. Hence, whether the money came from the peculium which belongs to the vendor, or from some fortunate acquisition by the slave; or was provided by the kindness or liberality of a friend; or whether someone advanced it, or promised it, or caused himself to be delegated; or whether the slave was ransomed by his undertaking to pay the debt, he must be considered to have been purchased with his own money. For it is sufficient if he who has lent his name to the purchase did not spend any of his own money. 2If a slave, purchased by someone who is unknown to him, should afterwards tender him the price for which he was sold, it must be said that he should not be heard, for this ought to be done in the beginning in order that a fictitious sale may be made, and a confidential agreement entered into between the purchaser and the slave. 3Therefore, if this was not done in the first place to enable the slave to be ransomed with his own money, or if the slave did not give the money with this intention, he will not be entitled to his freedom. 4Hence, it may be asked, when this was the intention in the beginning, and the purchaser hastened to pay the money, and he should afterwards be reimbursed, can the slave avail himself of the benefit of the Imperial Constitution? I think that he can do so. 5Therefore, if the purchaser should advance the money to the slave, and the latter repays it to him, he can acquire his freedom. 6Whether it was or was not mentioned in the contract (for instance, in the case of a sale), that the slave would be manumitted, the better opinion is that he will be entitled to his freedom. 7Hence, if anyone should purchase a slave with the money of the latter, but without agreeing to manumit him, the humane opinion of those who have treated the question in that the slave should obtain his freedom, as the purchaser was merely fictitious and lent the use of his name, and besides, he has lost nothing. 8It, however, makes no difference by whom a slave purchased with his own money is acquired, whether by the Treasury, by a municipality, or by a private individual, nor what may be the sex of the purchaser. If the vendor is under twenty years of age, the constitution will apply. Nor is the age of the purchaser taken into consideration, for, even if he is a minor, it is only just that he should keep his word, as, by doing so, he will not sustain any injury. The same rule is applicable to the purchaser who is a slave. 9The constitution does not apply to slaves who are absolutely incapable of being granted their freedom; as, for example, where a slave is to be sent out of the country, or has been sold or bequeathed by will under the condition that he shall never be manumitted. 10When a slave is ransomed with his own money, even though he did not pay the entire price, it must be said that he is entitled to his freedom if he contributed his labor to make up what was due, or if he afterwards obtained property by his industry. 11If he should purchase a part of himself with his own money, and the other part belonged to him already, the constitution will not apply, any more than if, having the ownership of himself, he only purchased the usufruct of the same. 12But what if he owned the usufruct of himself, and he purchased the ownership? In this case, he is in such a position that the Imperial Constitution will apply. 13Where two persons purchase a slave, one of them with his own money, and the other with the money of the slave, it must be held that the constitution will not be applicable, unless he who purchased him with his own money is prepared to manumit him. 14Where, however, anyone buys half of a slave, and acquires the other half by some profitable transaction, it must be said that there is ground for the application of the constitution.

The Same, Disputations, Book VI. Freedom can be granted under a trust as follows, “I charge my heir to manumit Stichus, if he should choose to do so,” even though nothing else in the will dependent upon the consent of the heir should be valid. 1It is clear that if freedom is bequeathed as follows, “If Stichus should be willing,” it can be granted him. 2Ad Dig. 40,5,46,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 633, Note 17.Where the following clause is inserted in a will, “I desire Stichus to be free if he is willing,” it seems to me that the grant of freedom can be held to be valid, because the words rather imply a condition, just as if a bequest should be made to me, “If Titius should ascend to the Capitol.” 3Where it was stated in a will, “If the heir should consent,” the trust will not be valid, but this will only be the case where the testator left everything to the discretion of his heir, “If he chooses.” Where, however, he left it to his judgment as a good citizen, we have no doubt that freedom should be granted; for it has been decided that a slave was entitled to be free where the testator made the following provision, “If you think proper, I ask you to manumit him,” for this must be understood to mean if you, as a good citizen, approve it. For where freedom is bequeathed as follows, “If you approve my will,” I think it should be granted, just as in the following case, “If he deserves it of you as a good citizen,” or “If he should not offend you as a good citizen,” or “If you approve of it,” or “If you do not disapprove it,” or “If you think that he is worthy.” For where a testator left a bequest of freedom under a trust, in the Greek words meaning, “I desire you to grant freedom to So-and-So, if you think best,” it was stated by the Divine Severus in a Rescript that the execution of the trust could be demanded. 4But, although a testator cannot leave it to the judgment of his heir whether or not he will grant freedom to a slave, he can let him decide when it shall be granted. 5A certain man, who bequeathed three slaves, charged his heir to manumit any two of them that he might select. A trust of this kind will be valid, and the heir can manumit whichever of the three slaves he chooses. And therefore if a legatee should claim those whom the heir wishes to manumit, he will be barred by an exception on the ground of bad faith.

Ulpianus, Disputations, Book VI. He is considered to be in possession as a legatee to whom the bequest has been left, for possession and usucaption based on the legacy will take place only in favor of the person to whom the property has been bequeathed.

Ad Dig. 42,8,14ROHGE, Bd. 10 (1874), S. 248: Der particeps fraudis debitoris haftet den Gläubigern auf den vollen Ersatz des ihnen Entzogenen, ohne Rücksicht darauf, ob er es noch besitzt.Ulpianus, Disputations, Book VI. By this action in factum, not only the ownership of the property, but also the rights of action of the debtor are restored. Therefore, it will lie to compel those who are not in possession of the property to restore it, and also against those who have a right of action to compel them to assign it. Hence, if he who is guilty of fraud has introduced Titius, in order that he may transfer the property to him, he should be compelled to assign his right by an action on mandate. Therefore, if the fraudulent debtor gives a dowry for his daughter to anyone, knowing that his creditors are defrauded thereby, the daughter will be liable, and will be forced to assign the right of action to recover the dowry, to which she is entitled against her husband.