[AFRICANUS libro octauo quaestionum. ] §12.1.41.prEius, qui in prouincia Stichum seruum kalendario praeposuerat, Romae testamentum recitatum erat, quo idem Stichus liber et ex parte heres erat scriptus: qui status sui ignarus pecunias defuncti aut exegit aut credidit, ut interdum stipularetur et pignora acciperet.
[AFRICANUS, from the eighth book of Questions.] The will of a man who in a province had put his slave Stichus in charge of his ledger was read in Rome, in which the same Stichus was written as free and as heir to a part. Unaware of his status, Stichus either collected or lent the deceased's money, sometimes entering into stipulations and accepting pledges.
consulebatur quid de his iuris esset.
Advice was sought as to what the law was on these matters.
placebat debitores quidem ei qui soluissent liberatos esse, si modo ipsi quoque ignorassent dominum decessisse.
It was agreed that those debtors who had paid were indeed discharged, provided they too were ignorant of the master's death.
earum autem summarum nomine, quae ad Stichum peruenissent, familiae herciscundae quidem actionem non competere coheredibus, sed negotiorum gestorum dari debere.
However, with respect to those sums which had come to Stichus, a partition of inheritance action does not lie for the co-heirs, but an action for business management ought to be granted.
quas uero pecunias ipse credidisset, eas non ex maiore parte, quam ex qua ipse heres sit, alienatas esse: nam et si tibi in hoc dederim nummos, ut eos Sticho credas, deinde mortuo me ignorans dederis, accipientis non facies: neque enim sicut illud receptum est, ut debitores soluentes ei liberentur, ita hoc quoque receptum, ut credendo nummos alienaret.
On the other hand, as for the money which he himself had lent, it was not alienated beyond the portion in which he himself was heir; for even if I give you coins to lend to Stichus, and then you, being ignorant after my death, give them, you will not make them the property of the recipient. For it is not the case that, just as that rule is accepted that debtors paying him are discharged, so also this rule is accepted that by lending he alienates the coins.
quare si nulla stipulatio interuenisset, neque ut creditam pecuniam pro parte coheredis peti posse neque pignora teneri.
Therefore, if no stipulation had intervened, neither could the money be demanded as lent in proportion to the co-heir's share, nor would the pledges be bound.
quod si stipulatus quoque esset, referret, quemadmodum stipulatus esset: nam si nominatim forte Titio domino suo mortuo iam dari stipulatus sit, procul dubio inutiliter esset stipulatus.
But if he had also stipulated, it would matter how he had stipulated; for if by chance he stipulated that it should be given specifically to Titius, his master, who was already dead, he would undoubtedly have stipulated in vain.
quod si sibi dari stipulatus esset, dicendum hereditati eum adquisisse: sicut enim nobismet ipsis ex re nostra per eos, qui liberi uel alieni serui bona fide seruiant, adquiratur, ita hereditati quoque ex re hereditaria adquiri.
But if he stipulated that it should be given to himself, it must be said that he acquired it for the inheritance; for just as acquisition is made for ourselves from our own property through those who serve us in good faith as free men or as another's slaves, so acquisition is also made for the inheritance from the hereditary property.
post aditam uero a coheredibus hereditatem non aeque idem dici potest, utique si scierint eum sibi coheredem datum, quoniam tunc non possunt uideri bonae fidei possessores esse, qui nec possidendi animum haberent.
But after the inheritance has been entered upon by the co-heirs, the same cannot equally be said, especially if they knew that he had been appointed as their co-heir, because then they cannot be seen as good faith possessors, having not even the intention to possess.
quod si proponatur coheredes eius id ignorasse, quod forte ipsi quoque ex necessariis fuerint, potest adhuc idem responderi: quo quidem casu illud euenturum, ut, si suae condicionis coheredes iste seruus habeat, inuicem bona fide seruire uideantur.
But if it is assumed that his co-heirs were ignorant of this, because perhaps they too were necessary heirs, the same answer can still be given; in which case indeed it will happen that, if that slave has co-heirs of his own condition, they seem to serve each other in good faith.