[ULPIANUS libro sexto fideicommissorum. ] §5.1.52.prSed et si suscepit actionem fideicommissi et aliis defensionibus usus hanc omisit, postea, quamuis ante sententiam, reuerti ad hanc defensionem non potest.
[ULPIANUS libro sexto fideicommissorum.] But even if he has accepted the action on a fideicommissum, and having used other defences, has omitted this one, he cannot afterwards return to this defence, even before judgment.
§5.1.52.1Si libertis suis tesseras frumentarias emi uoluerit, quamuis maior pars hereditatis in prouincia sit, tamen Romae debere fideicommissum solui dicendum est, cum apparet id testatorem sensisse ex genere comparationis.
If he wished grain tickets to be bought for his freedmen, even though the greater part of the inheritance is in a province, it must nevertheless be said that the fideicommissum ought to be performed in Rome, since it is clear from the nature of the purchase that the testator intended this.
§5.1.52.2Sed et si proponas quibusdam clarissimis uiris argenti uel auri pondo relicta et sit sufficiens ad huiusmodi fideicommissa Romae patrimonium: licet maior pars totius patrimonii in prouincia sit, dici oportet Romae esse praestandum: nec enim uerisimile est testatorem, qui honorem habitum uoluit his quibus reliquit tam modica fideicommissa, in prouincia praestari uoluisse.
But also if you suppose that a certain weight of silver or gold has been left to certain illustrious men, and there is a sufficient estate in Rome for this kind of fideicommissum, although the greater part of the entire estate is in a province, it ought to be said that the performance must be made in Rome; for it is not probable that the testator, who wished honor to be shown to those to whom he left such small fideicommissa, wished them to be performed in a province.
§5.1.52.3Si ea res quae per fideicommissum relicta est eo loci sit, dicendum est non debere praescribi ei qui petit, quasi maior pars hereditatis alibi sit.
If the thing which was left by way of fideicommissum is in that place, it must be said that no objection ought to be raised against the claimant on the ground that the greater part of the inheritance is elsewhere.
§5.1.52.4Sed si non fideicommissum petatur eo loci, sed fideicommisso satis, uidendum est, an haec praescriptio locum habeat: et non puto habere, quin immo, et si nihil sit eo loci, attamen iubendum satisdare.
But if it is not the fideicommissum itself that is claimed in that place, but security for the fideicommissum, we must see whether this objection has a place; and I do not think it does, but on the contrary, even if there is nothing in that place, he must nevertheless be ordered to give security.
quid enim ueretur, cum, si satis non dederit, mittatur aduersarius in possessionem fideicommissi seruandi causa?
For what does he fear, since, if he does not give security, his adversary is sent into possession for the purpose of preserving the fideicommissum?