Paulus, Epitomes of the Digest of Alfenus, Book I. Where one party has granted another a right of passage or of driving cattle through a specified place, it is certain that he can grant either of these rights to several persons through the same place, just as, where anyone has imposed a servitude on his own house in favor of his neighbor, he can, nevertheless, impose a similar servitude on the same house in favor of as many other persons as he wishes.

Alfenus Verus, Epitomes of the Digest by Paulus, Book I. If a slave, without the knowledge of his master, sells property belonging to his peculium, the purchaser can acquire it by usucaption.

Alfenus, Epitomes, Book I. He who has lost his citizenship does not deprive his children of any rights, except those which would pass to them from him if he should die intestate while in the enjoyment of his citizenship; that is to say, his estate, his freedmen, and anything else of this kind that can be found. Whatever, indeed, is not derived from their father but from their family, from their town, and from the nature of things, will remain theirs entirely. Therefore, brothers who are legitimate will become heirs to one another, and will be entitled to the guardianship and estates of agnates, for not their father, but their ancestors, gave them these rights.

Paulus, Epitomes of the Digest of Alfenus, Book II. But where the trees are larger he cannot cut them down.

Paulus, Epitomes of the Digest of Alfenus, Book II. Light is the power of seeing the sky, and a difference exists between light and view; for a view of lower places may be had, but light cannot be obtained from a place which is lower.

Paulus, Epitomes of the Digest of Alfenus, Book II. A party who had two adjoining tracts of land and sold the upper one. In the agreement it was stated that the purchaser should have the lawful right to discharge water upon the lower tract of land through an open ditch. The question then arose, if the purchaser should receive water from another tract, and wishes to discharge it upon the lower one, can he do so legally, or not? I answered that the lower neighbor was not obliged to receive more water than was necessary for the purpose of draining the land of the purchaser.

Alfenus, Epitomes of the Digest by Paulus, Book II. It is held that a boat is no part of a ship and has no connection with it, for a boat is itself a little vessel; but everything which is attached to a ship, as, for instance, the rudder, the mast, the yards and the sails, are, as it were, the members of the ship.

The Same, On the Epitomes of the Digest, by Paulus, Book II. “If my mother, Mævia, and my daughter Fulvia, should be living, then let Lucius Titius be my heir.” Servius was of the opinion that if the testator never should have a daughter and his mother should survive, Titius would still be his heir, because where anything that is impossible is inserted into a will it has no force.

Alfenus Verrus, Epitomes of the Digest by Paulus, Book II. Where the following was inserted in a will: “Let my heir be charged with a hundred aurei,” but did not add “the payment of,” it is settled that the legacy will be due.

Alfenus, On the Digest of the Epitomes by Paulus, Book II. As the question has been raised what should be considered a bequest of lambs, certain authorities hold that only lambs six months old are meant. The better opinion, however, is that those are bequeathed which are less than a year old. 1Where urban male and female slaves are bequeathed, I gave it as my opinion that muleteers are not included in the legacy; for only such slaves should be included in this designation whom the head of the household is accustomed to have about him, for his personal service. 2Where wool, flax and purple destined for her use were bequeathed to a wife, as the testator had left her a great deal of wool of different kinds, the question arose whether she was entitled to all of it. The answer was that, if none of this wool had been intended for the use of his wife, but all of it was mixed together, the decision must be the same as where provisions were bequeathed, and the testator left many things which were used as provisions, and which he was accustomed to sell, for if he had drawn different kinds of wine to be Used by himself and his heir, it all should be held to be included in the term “provisions.” But when it was proved that the party who made the will was accustomed to sell a portion of his provisions, it was decided that the heir should furnish the legatee with the amount of supplies which would be sufficient for his requirements during the year. It seems to me that the same rule should apply to the wool, and that the woman should receive what would be enough for her use for the term of a year; since after what had ordinarily been required by her husband had been deducted, the remainder should not be bequeathed to the wife, but only what was especially intended for her use. 3Where land, and everything purchased or intended for the cultivation of the same was left, it was held that neither the slave who was the gardener, nor the forester was bequeathed, as the gardener was intended to adorn the land, and the forester was employed for the purpose of watching and protecting it, rather than for its cultivation. A donkey, used for working a machine, is considered to have been bequeathed, as well as sheep intended to manure the land, together with the shepherd, if one had charge of sheep of this kind.

Alfenus Verus, Epitomes of the Digest by Paulus, Book II. “Let my heir pay a hundred aurei annually to my daughter every time that she becomes a widow.” The question arose, if the daughter should become a widow in less than a year, whether she would be entitled to less than a hundred aurei. The answer was that, although the entire year had not yet elapsed, the whole amount would be due to her.

Alfenus Verus, Epitomes of the Digest by Paulus, Book II. An heir built a country-house on land, the usufruct of which had been bequeathed. He cannot demolish the building without the consent of the usufructuary, any more than he can remove a tree from the land which he had planted there; but if he should demolish the house before the usufructuary forbids him, he can do so with impunity.

Alfenus, Epitomes of the Digest by Paulus, Book II. Where the utensils of a country-house are bequeathed, the better opinion is that the furniture is not included. 1Servius gave it as his opinion, where a vineyard and everything appertaining to it was left, that there were no such things as implements used for the cultivation of a vineyard. Cornelius, when his opinion was asked upon this point, replied that stakes, poles, and hoes are implements which belong to a vineyard; which is correct. 2A certain man left to his wife a tract of land where he himself resided, equipped for cultivation just as it was. When advice was taken whether the female slaves, who were spinners and weavers, were included in the devise, the answer was that they did not, properly speaking, constitute part of the equipment of the land; but, as the testator who devised the property lived upon it, there could be no doubt that the female slaves and other property which were on the premises for the use of the head of the household should be held to be embraced in the bequest.

The Same, Epitomes of the Digest by Paulus, Book II. His own peculium was bequeathed to a manumitted slave. By another clause of the will the testator left all his female slaves to his wife. One of these formed part of the peculium of the slave who had been manumitted, and it was decided that she belonged to the said slave, and that it did not make any difference which bequest had been made first.

Paulus, Epitomes of the Digest of Alfenus, Book III. A testator made the following bequest to his daughter, “If my daughter, Attia, should marry with the consent of Lucius Titius, let my heir give her such-and-such a sum.” Titius having died before the testator Attia married, the question arose whether she would be entitled to the legacy. The answer was that she would. 1“Let my wife Attia take the boy Philargyrus and the girl Agathea from the slaves who will belong to me at the time of my death.” The testator sold Agathea, whom he owned at the time he made the will, and afterwards bought other female slaves, to one of whom he gave the name of Agathea. The question arose whether she should be considered as having been bequeathed. The answer was that she should be.

Alfenus Varus, Epitomes of the Digest of Paulus, Book II. Whatever a slave has lent, or deposited, out of his peculium, although he may be sold or manumitted afterwards, can legally be paid to him; unless something should take place from which if may be inferred that payment has been made against the consent of the person to whom the slave belonged at the time. Where, however, anyone borrows, at interest, money from him which belonged to his master, while the slave was conducting the business of his master with his permission, the same rule will apply. For he who made the contract with the slave is considered to have received the money from him, and paid it to him, with the consent of his master.

Paulus, Epitomes of Alfenus, Book II. The term “boy” has three significations: first, we call all slaves “boys”; second, we speak of a boy in contradistinction to a girl; and third, we make use of the word to denote the age of childhood.

Paulus, Epitomes of the Digest of Alfenus, Book III. Where several heirs were appointed, and one of them at the time was in Asia, his agent made a sale and kept the money as the share of his principal. It was subsequently ascertained that the heir who was in Asia had previously died, after having appointed his agent heir to half his share and another party to the other half; and the question arose in what way an action to recover the money derived from the estate could be brought? The answer was that it ought to be brought for the entire estate against the party who had been the agent, because the money belonging to the estate had come into the possession of the said agent through the sale; nevertheless, they must bring an action against this co-heir for half the estate. The result would then be that if all the money was in the possession of the party who had been the agent, they might recover the entire amount from him, with the assistance of the court; or if he had returned half of it to his co-heir, they could take judgment against him for half, and against his co-heir for the other half.

Paulus, Epitomes of The Digest of Alfenus, Book III. Where a man was sued for the recovery of a slave and also for a theft committed by the said slave; the question arose what it would be necessary for him to do if judgment was rendered against him in both cases, if the slave was recovered from him in the first place? The answer was that the judge should not compel him to deliver the slave, unless security was previously furnished that where any damages were paid by him he should be fully reimbursed for them, because he had joined issue in a case involving the same slave. Where, however, judgment was first rendered in the case involving the theft, and he surrendered the slave by way of indemnity, and then another judgment was rendered in favor of the plaintiff in the action for the recovery of the slave; the judge should not make an estimate of damages because the slave was not surrendered, since no negligence or malice could be attributed to the party in failing to deliver the slave.

Paulus, Epitomes of the Digest of Alfenus, Book III. A single joint-owner cannot legally put a slave owned in common to torture, except with respect to some matter in which all the parties were interested.

Paulus, Epitomes of the Digest of Alfenus, Book III. Where a ship is sunk or stranded, the opinion was given that whatever each one saves out of his own property he can keep for himself, just as in case of fire.

The Same, Epitomes of the Digest of Alfenus, Book III. Two persons formed a partnership to teach grammar, and to share among themselves any profits that might be obtained from this profession. After having agreed in the articles of partnership on what they wished to be done, they then stipulated with one another as follows: “Whatever is written above must be carried out, and cannot be opposed, and if the said provisions are not complied with, then twenty thousand sesterces shall be paid.” The inquiry arose whether if any of these provisions was violated, an action on partnership could be brought? The answer was that if, after their agreement had been made with reference to the partnership, they had stipulated as follows: “Do you promise that these provisions shall be observed as herein set forth?” The result would be that if the parties had done this for the purpose of changing their contract, an action on partnership would not lie, but the whole matter would be considered to have become a stipulation. But if they had not stipulated in these terms, “Do you promise that these provisions shall be observed as herein set forth?” but, as follows, “If these provisions are not observed, then ten aurei shall be paid;” it was held by him that the matter had not become a stipulation, but only what related to the penalty had been altered, because the party promising had not bound himself to do both things, that is, he would make payment and also perform the agreement, and that if he did not do so he would suffer the penalty; and therefore an action on partnership would be available. 1Two fellow freedmen formed a partnership for the purpose of sharing all “gains, profits, and emoluments,” and afterwards one of them, having been appointed an heir by his patron, a legacy was left to the other. The answer was that neither of them was obliged to place what he received in the partnership fund.

Paulus, Epitomes of the Digest of Alfenus, Book III. The ædile broke up some beds which a party had purchased, and which had been left on the highway. If they had been delivered to the purchaser, or if he was to blame for their not having been delivered, he must bear the loss.

Paulus, Epitomes of the Digest of Alfenus, Book III. If the beds had not been delivered, and the purchaser had not prevented their delivery by delay, the loss must be borne by the vendor. 1Where materials that have been purchased are lost by theft, after delivery, it is held that the purchaser must bear the loss; otherwise, the vendor must do so. Timbers are considered to have been delivered as soon as the purchaser has marked them.

Paulus, Epitomes of Alfenus, Book III. Whatever the vendor states is an accessory must be delivered sound and in good condition; as, for instance, where he says that a certain number of casks are an accessory to the land, he must furnish them whole and not broken.

The Same, Digest of Epitomes by Paulus, Book III. A man who rented a house for thirty aurei, sub-let the separate rooms on such terms that he collected forty for all of them. The owner of the building demolished it, because he said that it was about to fall down. The question arose what the amount of damages should be, and whether the party who rented the entire house could bring an action on lease. The answer was that if the building was in such a bad condition that it was necessary to tear it down, an estimate should be made, and the damages assessed in proportion to the amount for which the owner had leased the premises, and that the time when the tenants were unable to occupy them should also be taken into consideration. If, however, it was not necessary to demolish the house, but the owner did so because he wished to build a better one, the judgment must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises. 1An ædile rented baths in a certain town for the term of a year, in order that they might be used gratuitously by the citizens. The baths having been destroyed by fire after three months, it was held that an action on lease could be brought against the proprietor of the baths, that a part of the price should be refunded in proportion to the time during which the baths were not available. 2Inquiry was made as to the action to be brought where a man hired mules to be loaded with a certain weight, and he who hired them injured them with heavier loads. The answer was that the owner could legally proceed either under the Lex Aquilia or in an action on lease, but that, under the Lex Aquilia, he could only sue the party who had driven the mules at the time; but, by an action on lease, he could properly proceed against him who hired them, even if someone else had injured them. 3A man who contracted for the building of a house stated in the agreement: “I will furnish the stone necessary for the work, and the owner shall pay to the contractor seven sesterces for each foot, and as much for the stone as for the labor.” The question arose whether the work must be measured before, or after it was completed. The answer was that it should be measured while it was still unfinished. 4A tenant received a house under the condition that he would return it uninjured, except so far as damage might result through violence or age. A slave of the tenant burnt the house, but not accidentally. The opinion was given that this kind of violence would not appear to have been excepted; and that it was not agreed that the tenant should not be responsible if a slave burnt it, but that both the parties intended that violence exerted by strangers should be excepted.

Alfenus, Epitomes of the Digest of Paulus, Book III. Two persons were walking along the Tiber; one of them having asked the other to show him his ring, he did so, and, while he was examining it, it fell from his hands and rolled into the Tiber. The opinion was given that an action in factum was available.

Alfenus, Epitomes of the Digest by Paulus, Book III. It is different where a father, in promising a dowry for his daughter, agrees that it shall be paid by him in one, two, three, four, and five years; and states that it shall be returned in the same manner, if the marriage should be dissolved, for this agreement will be valid if the daughter should become the heir of her father, and if she was present at the time when the contract was made.

Alfenus, Epitomes of the Digest by Paulus, Book III. A certain man requested his wife to cut down an olive plantation which was on the dotal land, in order to replace it with a new one. The man afterwards died after bequeathing the dowry to his wife, and it was decided that the wood which had been cut from the olive trees should be returned to her.

Alfenus, Epitomes of the Digest by Paulus, Book III. Where a slave, held in common by a husband and his brother, gave a young slave to the wife of the brother, it was held that the gift was not valid so far as the share belonging to the husband, which the slave had given, was concerned. 1The law will be the same where one of three brothers has a wife and gives her property held in common by them all, for one-third of the gift will not belong to the wife; but with reference to the other two-thirds, if the brothers knew that they were given, or, after this Was done, they confirm the act, the woman will not be obliged to make restitution.

Alfenus, Epitomes of the Digest by Paulus, Book III. I think that such things as are intended for the ordinary use of the head of the family should be included among household goods, where they have no distinct name peculiar to them. Therefore, articles which are employed in some trade, and are not adapted to the ordinary use of the head of the family, are not embraced in the term household goods. 1Small writing tablets and memorandum books are not classed as household goods.

The Same, Epitomes of the Digest of Alfenus, Book IV. A man who had two tracts of land, in the sale of one of them reserved the water which came from a spring on the land, and also a space of ten feet around it. The question arose whether the ownership of the ground reserved belonged to him, or merely whether he was entitled to access to it? The answer was that, “If what he retained was ten feet wide around said spring”, it should be held that the vendor had only a right of way.

Ad Dig. 10,4,19ROHGE, Bd. 11 (1874), Nr. 121, S. 395: Klage des Inhabers des Umlaufexemplars (Secunda) gegen den Verwahrer des Acceptexemplars (Prima) des Wechsels auf Herausgabe. Begründung der Klage.Paulus, Epitomes of Alfenus, Book IV. Any one who is interested can bring an action for production. A certain person, however, made inquiry as to whether this action was available to compel the production of the accounts of his adversary for his inspection, as he alleged had a great interest in having the same produced. The answer was that the law should not be employed to cause annoyance, and that terms ought not to be captiously construed, but that it was proper to consider with what intention the words were uttered; for, in accordance with this principle, if anyone was desirous of studying some branch of knowledge, he might state that he had an interest in such and such books being produced for his benefit, because if they were produced, after he had read them he would become a more learned and a better man.

Paulus, Epitomes of the Digest of Alfenus, Book IV. A man who sold a tract of land stated in the contract: “That the purchaser should measure the land within the next thirty days, and should give him notice of the measurement, and if he did not do so Within that time, the vendor should be released from his obligation.” The purchaser gave notice of the measurement within the stated time, Which was found to be less in extent than he supposed, and on this account he received money from the vendor. He afterwards sold the land, and when he himself was measuring it for his own purchaser, he found that there was very much less land in the tract than he thought there was. The question arose whether the amount of the deficiency could be recovered from his vendor. The answer was that the terms of the contract should be examined. For if it had been stated “That the purchaser should measure the land within the next thirty days, and notify the owner how much was lacking in the measurement,” and he notified him after the thirtieth day had passed, it would be of no advantage to him; but if it had been set forth in the agreement “That the purchaser should measure the land within the next thirty days, and notify him of the measurement of the same,” even though he notified him that the tract was smaller in size than had been supposed, he could, even after several years, bring an action to recover the value of the deficiency. 1In a contract for the sale of land the vendor granted the right to obtain water; and the question arose whether a right of way to the water was also included. The answer was that this seemed to have been the intention of the parties, and therefore that the vendor was compelled to grant a right of way. 2A party who sold a field, stated that it contained eighteen jugera, and stipulated that after it had been measured he should receive a certain price for each jugerum. The field was found to contain twenty jugera, and it was held that payment for twenty was due. 3The vendor of a tract of land reserved the grain that had been sowed with the hand, and on the tract a crop had grown from grain which had fallen from the stalk. The question arose whether this was included in the contract. The answer was that the intention should be carefully considered, but, according to the terms of the agreement, the intention seemed to be that what had fallen from the stalk should not be included, any more than if it had fallen from the sack of the sower, or had grown from seeds dropped by birds. 4Where a party sold a tract of land and reserved the entire crop of the same, it was held that reeds and wood that were cut were included in said crop. 5A slave stated that casks which were on land belonging to his master were accessory to the same. It was held that the casks, which had been bought by the slave who had cultivated the land, and which formed part of his peculium, should be delivered to the purchaser. 6The wheel also by which the water is drawn is a part of the building as well as the bucket.

The Same, Epitomes of the Digest by Paulus, Book IV. Where a person sold and delivered a tract of land containing a hundred jugera, he showed a tract of much greater extent to the purchaser, if the latter should, in consequence, be evicted from a part of the land, the vendor will be obliged to make good the amount in proportion to the quality of the soil; even though the remaining portion may include a hundred jugera.

Alfenus, Epitomes of the Digest by Paulus, Book IV. A man who owned a field situated above that of another plowed it in such a way that the water was carried by the furrows and ridges upon the land of his neighbor below. The question arose whether he could be compelled by an action requiring him to take care of the rainwater, to plow in a different direction, so that the furrows would not be turned toward the premises of the neighbor. The answer was that he could not do anything to interfere with his neighbor plowing in any way that the latter desired. 1If, however, anyone plows across a water-course, and by means of the furrows, the water should be diverted upon the land of a neighbor, in such a way as to obstruct the water-course, he can be compelled to open it by means of this action. 2But if he should dig ditches by which the rain-water could injure a neighbor, he can be compelled by the court to fill them up, if it appears that the rain-water might afterwards cause damage, and judgment could be rendered against him, unless he did so; even though, before a decision was rendered, the water had not yet begun to flow through the ditches. 3When lakes either rise or fall, the neighbors have no right to do anything to affect either the increase or the diminution of the water.

Alfenus Varus, Epitomes of the Digest of Paulus, Book IV. Attius had a tract of land along a public highway; beyond the highway there was a river, and a field belonging to Lucius Titius. The river gradually surrounded the field, which was situated between the road and the river, and afterwards covered the road, then it receded little by little, and by alluvium returned to its ancient bed. The conclusion arrived at was that, since the river had covered both the field and the highway, the field became the property of him who owned land on the other side of the stream, and afterwards, having little by little receded to its former channel, the land was taken away from him whose property it had become, and was added to that of him who was on the other side of the highway, as his land was nearest to the river. The highway, however, which was public, could belong to no one by accession. It was decided that the highway offered no impediment to prevent the field which was left on the other side of it by alluvium from becoming the property of Attius, for the highway itself was also part of his land.

Alfenus, Epitomes of the Digest of Paulus, Book IV. If anyone makes an excavation for the purpose of taking out chalk, and removes it, he is a thief, not because he dug out the chalk, but because he took it away.

The Same, Epitomes of Alfenus, Book IV. When anyone sells a tract of land, reserving the fruit, he is understood to reserve the nuts, figs, and grapes whose skins are hard and purple, and are of the kind which we do not use in making wine, and which the Greeks call suitable for eating purposes.

Paulus, Epitomes of the Digest of Alfenus, Book V. The person who is required to replace a column which supported a neighboring house is the owner of the house subject to the servitude, and not he who wishes this to be done; for where it is stated in the written contract for the sale of a house that, “The wall must support the same burden as at present”, the meaning is clear enough that the wall must exist in perpetuity; for it is not stated in these words that the wall must be there forever, as this indeed could not happen, but that there should always be a wall of this kind to support the weight; just as where anyone binds himself to another that he will grant him a servitude in order to support his building, and if the house which is subject to the servitude and sustains the burden should be destroyed, another will be erected in its place.

Paulus, Epitomes of the Digest of Alfenus, Book V. The slave of a certain party without the knowledge of his master lent a dish, and the party to whom he lent it pledged it and took to flight, and he who received it in pledge said that he would not return it unless he received the money; which was paid to him by the slave, and he returned the dish. The question arose whether an action could be brought against him for the recovery of the money? The answer was that if he who received the dish in pledge knew that it belonged to another, he had rendered himself liable for theft; and therefore if he received money from the slave for the purpose of redeeming stolen property, an action could be brought against him. But if he did not know that the article which was deposited with him belonged to another, he is not a thief; and besides, if the money had been paid to him by the slave in behalf of the party from whom he had received the pledge, suit could not be brought against him for the recovery of the same.

Paulus, Epitomes of the Digest of Alfenus Verus, Book V. A party who had lent money to the owner of a boat, detained the boat in the river on his own authority, as the money was not paid at the appointed time; and the river afterwards rose and carried away the boat. The opinion was that, if the creditor had retained the boat against the consent of the owner, the boat was at his risk; but if the debtor had voluntarily agreed that he should retain it, he should only be indemnified for negligence, and not for superior force.

Ad Dig. 19,2,31Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 12.The Same, Epitomes of the Digest by Paulus, Book V. Several persons loaded the ship of Saufeius with grain without separating it; Saufeius delivered to one of them his grain out of the common heap, and the vessel was afterwards lost. The question arose whether the others could bring an action against the master of the ship with reference to their share of the grain on the ground that he had diverted the cargo. The answer was that there are two kinds of leases of property, one of them where the article must itself be returned, as where clothing is entrusted to a fuller to be cleaned, or where something of the same kind must be given back; as, for instance, where a mass of silver is given to a workman to be made into vases, or gold is given to be made into rings. In the first instance, the property still belongs to the owner; in the second, he becomes the creditor for its value. The same rule of law applies to deposits, for where a party has deposited a sum of money without having enclosed it in anything, or sealed it up, but simply after counting it, the party with whom it is left is not bound to do anything but repay the same amount of money. In accordance with this, the grain seems to have become the property of Saufeius, and he very properly gave up a portion of it. If, however, the grain of each of the parties had been separately enclosed by means of boards, or in sacks, or in casks, so that what belonged to each could be distinguished, it could not be changed; for then the owner of the wheat which the master of the ship had delivered could bring an action for its recovery, and, therefore, the authorities do not approve of actions on the ground of the diversion of the cargo in this case, because the merchandise which was delivered to the master was either all of the same kind and at once became his, and the owner became his creditor (for it is not held that there was a diversion of the cargo since it became the property of the master); or the identical article which was delivered must be restored, and in this instance, an action for theft would lie against the master, and hence an action on the ground of the diversion of the cargo would be superfluous. Where, however, the merchandise was delivered with the understanding that the same kind should be returned, the party receiving it would only be liable for negligence, as liability for negligence exists where the contract is made for the benefit of both parties, and no negligence can exist where the master returned to one of the owners a portion of the grain, since it was necessary for him to deliver his share to one of them before the others, even though he would be in a better condition than the others by his doing so.

Alfenus Varus, Epitomes of the Digest of Paulus, Book VI. The question was raised whether a judge who had rendered an improper decision could render another on the same day. The answer was that he could not do so.

The Same, Epitomes of the Digest by Paulus, Book VIII. Where certain weavers who belonged to the testator at the time of his death were bequeathed, the question arose whether one of them whom he had subsequently appointed porter should be included in the legacy. The answer was that he was included, for he was not transferred to another trade but was only temporarily assigned to a different task.

Alfenus Verus, Epitomes of the Digest of Paulus, Book VIII. “I bequeath lodging for So-and-So along with So-and-So.” This is just the same as if the testator had left it “To So-and-So and So-and-So.”

Alfenus, Digest, Book II. If there should be a wall between two houses, which projects a half a foot or more towards the adjacent building, proceedings must be instituted alleging that the defendant ought not to permit the wall to project in this manner over the premises of the plaintiff without his permission. 1A certain part of the premises of Gaius Seius was subject to a servitude for the benefit of the house of Annius, which provided that Seius should have no right to put anything in that place; but Seius planted trees there, and under them kept basins and other vessels. All persons learned in the law advised Annius to bring suit against Seius on the ground that he had no right to have those things in that place without his consent. 2Ad Dig. 8,5,17,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 7.A neighbor placed a dunghill against the wall of another party from which the wall became damp; and advice was asked in what way he could compel his neighbor to remove the dunghill. I answered, that if he had done this in a public place he could be compelled to remove it by means of an interdict; but if it was done in a private place, it would be necessary to bring an action with reference to a servitude; and if there had been any stipulation for the prevention of threatened injury, the party could avail himself of the stipulation if he had sustained any damage on account of what had been done.

Alfenus, Digest, Book II. While a groom was leading a horse to the stable of an inn, the horse sniffed at a mule, and the mule kicked and broke the groom’s leg. An opinion was requested whether suit could be brought against the owner of the mule, on the ground that it had caused the injury, and I answered that it could.

Alfenus, Digest, Book II. Ad Dig. 9,2,52 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 18.Where a slave dies from the effect of blows, and this is not the result of the ignorance of a physician or of the neglect of the owner, an action for injury can be brought for his death. 1The keeper of a shop placed his lantern on a stone in a street at night, and a passer-by took it away; the shopkeeper followed him and demanded the lantern, and detained the party as he was trying to escape. The latter began to strike the shopkeeper with a whip which he held in his hand and to which an iron was attached, in order to compel him to release his hold. The struggle having become more serious, the shopkeeper knocked out the eye of the party who had taken away his lantern, and he asked for an opinion whether he could not be considered not to have inflicted unlawful damage, as he had been first struck with a whip? I answered that unless he had knocked out his eye designedly he would not be considered to have caused unlawful damage, because the party who first struck him with the whip was to blame; but if he had not first been beaten, but had fought with the party who is trying to take the lantern from him, the shopkeeper must be held to be responsible for the act. 2Mules were hauling two loaded wagons up the Capitoline Hill, and the drivers were pushing the first wagon which was inclined to one side in order that the mules might haul it more easily; in the meantime the upper wagon began to go back, and as the drivers were between the two wagons they withdrew, and the last wagon was struck by the first and moved back, crushing a slave boy who belonged to someone. The owner of the boy asked me against whom he ought to bring an action? I answered that it depended upon circumstances, for if the drivers who had hold of the first wagon voluntarily got out of the way, and the result was that the mules could not hold the wagon and were pulled back by its weight, then no action would lie against the owner of the mules, but an action under the Lex Aquilia could be brought against the men who had hold of the wagon; for if a party, while he was supporting something, by voluntarily releasing his hold enabled it to strike someone, he, nevertheless, committed damage; as for instance, where anyone was driving an ass and did not restrain it; or where anyone were to discharge a weapon, or throw some other object out of his hand. But if the mules gave way because they were frightened, and the drivers, actuated by fear of being crushed, released their hold on the wagon, then no action can be brought against the men but one could be brought against the owner of the mules. And if neither the mules nor the men were the cause of the accident, but the mules could not hold the load, or while striving to do so slipped and fell, and this caused the wagon to go back, and the men were unable to support the weight when the wagon was inclined to one side, then no action could be brought either against the owner of the mules or the men. This, however, is certain, that no matter what the circumstances were, no action would lie against the owner of the mules which were in the rear, as they did not go back voluntarily, but because they were struck. 3A certain man sold some oxen under the condition that he would permit the purchaser to try them, and he afterwards delivered them to be tried; and a slave of the purchaser while trying them was struck with the horn of one of the oxen. The question arose whether the vendor must pay damages to the purchaser? I answered that if the purchaser held the oxen as already purchased, he would not be compelled to pay; but if he had not obtained them with that understanding, then, if through the slave’s negligence he was wounded by the ox, damages would not have to be paid, but if it was due to the viciousness of the ox, they would be. 4Where several persons were playing ball, one of them pushed a small slave while he was trying to pick up the ball, and the slave fell and broke his leg. The question arose whether the owner of the slave could bring suit under the Lex Aquilia against the party who, by pushing him, had caused him to fall. I answered that he could not, as this seemed to have been done rather through accident than through negligence.

Alfenus Verus, Digest, Book II. A slave owned in common, while in the hands of one of his owners, broke his leg while working; and the question arose what kind of an action the other owner could bring against him with whom the slave had been at the time? I answered that if the common property had been injured rather through negligence than through accident, he could recover whatever damages were assessed by an arbiter in an action for the partition of common property.

Alfenus Varus, Digest, Book II. The owner of a slave who had employed him as a steward manumitted him, and subsequently caused him to produce his accounts, and finding that they were not correct, he ascertained that the slave had spent the money on some woman. The question arose whether he could bring suit against this woman for corrupting the slave, as the slave was already free? I answered that he could, and that he could also do this for theft on account of the money which the slave had given her.

Alfenus, Digest, Book II. A certain party leased a tract of land to his slave for cultivation, and gave him oxen, and as these oxen were unsuitable for the work, he ordered them to be sold and others to be obtained by means of the money received. The slave sold the oxen, and bought others, but did not pay the money to the vendor, and afterwards became financially embarrassed. He who sold the oxen brought suit against the master in an action on the peculium, and for money which had been employed in his business, as the oxen on account of which the money was demanded were in possession of the master. The answer was, that no peculium was held to exist, except what remained after what the slave owed to the master had been deducted, and that it seemed to him that the oxen were, in fact, employed in the master’s affairs, but that he had paid on this account the amount that the first oxen had been sold for; and that judgment should be rendered against the master for the excess of the value of the last oxen.

Ad Dig. 18,6,12ROHGE, Bd. 6 (1872), S. 216: Klage des Mandanten gegen den Mandatar auf Ersatz des durch Verabsäumung der vertragsmäßigen Diligenz verursachten Schadens. Beweislast der DiligenzAlfenus Verus, Digest, Book II. Where a house which has been sold is burned, as a fire cannot take place without someone being responsible, what is the law? The answer is that, because a fire can take place without the fault of the head of the household, if it was not caused by the negligence of his slaves, the master will not necessarily be to blame. Hence, if the vendor exercises the same diligence in taking care of the house as thrifty and diligent men are accustomed to do, and any accident should happen, he will not be responsible.

Alfenus Verus, Digest, Book II. If anyone, when he sold a tract of land, stated that there were a hundred casks on the premises, which were accessory to the same; even though there was but one cask there, he will, nevertheless, be compelled to furnish a hundred casks to the purchaser.

Alfenus, Digest, Book II. It is not always necessary to make a deduction from the rent in the case where tenants have been put to a little inconvenience, with reference to a part of their lodgings; for the tenant is in such a position that if anything should fall on the building, and by reason of this the owner be compelled to demolish a portion of the same, he ought to bear the slight inconvenience resulting therefrom; but, in doing so, the owner must not open that part of the house of which the tenant is accustomed to make the most use. 1Ad Dig. 19,2,27,1ROHGE, Bd. 8 (1873), S. 341: Befugniß des Schiffsmanns auf Dienstentlassung wegen Kriegsgefahr nach ausgebrochenem Kriege.Again, the question is asked, if a tenant should leave on account of fear, will he be obliged to pay the rent, or not? The answer is that, if he had good reason to be afraid, even though there was not actually any danger, he will not owe the rent; but if there was no just cause for fear, it will still be due.

Alfenus Varus, Digest, Book II. A certain man promised indemnity against threatened injury to his neighbor. Tiles from his building were thrown by the wind upon those of his neighbor and broke them. The question arose whether any damages were to be paid. The answer was that this should be done if the accident resulted from any defect or weakness of the building, but if the force of the wind was such that it could even have demolished buildings that were strongly constructed, no damages could be collected. And even though it were provided in the stipulation that damages would be payable even if anything should fall, nothing would be considered to have fallen, where anything was thrown down either by the violence of the wind, or by any other external force, but only what fell of itself. 1A man who desired to rebuild a party-wall which he owned in common with his neighbor, before he demolished it, gave him security against threatened injury, and obtained the same from him. After the wall was removed, the lodgers in the rooms of the neighbor left, and the latter attempted to recover from the other joint-owner of the wall the rent which the lodgers had not paid. The question arose whether he could lawfully make such a demand. The answer was that, as the party-wall was being rebuilt, it was not necessary for the joint-owners of the same to give security to one another, nor could either of them, under any circumstances, be compelled to do so by the other; but if they did give security, they still could not give it for more than the half owned by each, for neither of them should give security, even to a stranger, for any more than this, when he intended to rebuild the party-wall. As, however, both had given security for the entire amount, the one who built the wall must be responsible for any damage sustained by his neighbor on account of the loss of his rent. 2The same neighbor applied for advice as to whether he could not recover what he had paid on this account, for the reason that it had been agreed by his neighbor that he would reimburse him for any loss which he might have incurred on account of what he had built, and he had lost the money which he had paid on account of the work which he had done. The answer was that he could not do so, because the loss which he had sustained was not due to any defect of construction, but by virtue of the stipulation.

Ad Dig. 44,1,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 321, Note 2; Bd. II, § 355, Note 6.Alfenus Varus, Digest, Book II. A son under paternal control sold a slave forming part of his peculium, and a stipulation was made for the price. The slave was returned under a conditional clause of the contract and afterwards died, and the father demanded from the purchaser the money which the son had stipulated should be paid to him. It was decided to be just that an exception in factum should be pleaded against him, setting forth that the money had been promised for the slave who had afterwards been returned under a condition of the contract.

Alfenus, Digest, Book II. A slave should not, under all circumstances, go unpunished, where he has listened to the commands of his master; for instance, when the latter has ordered him to kill someone, or to commit a theft. Wherefore, although a slave may commit piracy by order of his master, he should be prosecuted for doing so after he has obtained his freedom; and any act of violence which he may have committed, which is criminal, will render him liable to punishment. If, however, a quarrel arose on account of a controversy or a dispute, or force was employed for the purpose of maintaining a right to which his master was entitled, and no crime was perpetrated, then the Prætor should not grant an action on this ground against a freedman, who, when a slave, had obeyed the commands of his master.

Alfenus Varus, Digest, Book II. When it is stated in a will that the heir shall only expend a hundred aurei for funeral expenses, or for the erection of a monument, he cannot spend any less than that amount; but, if he desires to spend more, he can do so, and he will not be considered to have done anything contrary to the terms of the will.

Alfenus Varus, Digest, Book IV. A slave, having agreed to give a certain sum in order to obtain his freedom, paid it to his master, but the latter died before manumitting him, and ordered him to be free by his will, and also bequeathed him his peculium. The slave asked whether the money, which he had paid to his master in consideration of obtaining his freedom, should be refunded to him by the heirs of his patron, or not? The answer was that if, after the master had received the money, he kept an account of it as his own, it immediately ceased to form part of the peculium of the slave; but if, in the meantime, before he manumitted him, he set the money aside, as having been paid by the slave, it should be considered to belong to his peculium, and the heirs must return it to the manumitted slave.

Alfenus Varus, Digest, Book IV. A slave, who was ordered to be free by the will of his master under the condition of paying ten aurei to the heir, paid to the latter the wages of his labor, and as the heir received from the same a larger sum than ten aurei, the slave alleged that he was free. Advice was taken on this point. The answer was that the slave did not appear to be free, as the money which he had paid was not in consideration of his freedom, but on account of the labor which he had performed; and that he was no more free on this account than if he had leased a tract of land from his master and paid him the money instead of giving him the crops. 1A slave was ordered to be free after he had given his services to the heir for the term of seven years. He took to flight and remained absent for a year. When the seven years had expired, the opinion was given that he was not free, for he had not rendered his services to his master while he was a fugitive, and he would not become free until he had served his master for the number of days that he was absent. If, however, it had been stated in the will that he should be free after he had served seven years, he could become free if he served his master for the time of his flight, after his return.

Alfenus, Digest, Book V. He cannot be said correctly to be absent in the service of the State, who has joined an embassy on account of his own private affairs.

Alfenus, Digest, Book V. The head of a family appointed two heirs by his will, and ordered them to erect a monument for him within a certain time, and he afterwards inserted in his will: “Let him who does not do this be disinherited”. One of the heirs refused to enter upon the estate, and the other, inasmuch as he himself had built the monument, asked for an opinion as to whether he would not be entitled to the estate, because his co-heir had refused to accept it. The answer was that no one can be bound for, or deprived of, an estate by the act of another; but wherever anyone has complied with the condition, he will become the heir to the estate, even though none of the other heirs have entered upon the same.

Alfenus Verus, Digest, Book V. A certain individual inserted the following provision into his will: “When I die, let my slave Pamphilus have for himself his own peculium and let him be free.” It was asked whether or not the peculium should be held to have been legally bequeathed to Pamphilus, for the reason that he was directed to take the peculium before he became free. The answer was that there was no order to be observed in the two provisions, which in this instance were joined, and that it did not make any difference which of the two was mentioned or written first; and therefore that the peculium was held to have been legally bequeathed, just as if the slave had been directed to be free first, and to receive the peculium afterwards.

Alfenus Varus, Digest, Book V. Where the meaning of any testamentary provision cannot be ascertained, it is just as if it had not been written, but the other provisions will still be valid.

Alfenus Varus, Digest, Book V. A certain individual provided in his will that a monument, like that of Publius Septimius Demetrius which stands on the Salarian Way, should be erected to him, and if this was not done, that his heirs should be liable to a considerable fine. As no monument to Publius Septimius Demetrius could be found, but there was one erected to Publius Septimius Damas, and it was supposed that the party who made the will intended that a monument should be erected to him like the one aforesaid, the heirs asked advice as to what kind of a monument they would be obliged to erect, and whether they would be liable to the penalty if they did not erect any, because they could not find one to use as a pattern. The answer was that if it could be ascertained what kind of a monument the party who made the will intended to designate, even though he may not have described it in his will, it should still be erected in accordance with what he wished to indicate. If, however, his intention was not known, the penalty would have no force or effect, as there was no monument found which could serve as a pattern for the one which he ordered to be erected; but the heirs must, nevertheless, erect a monument corresponding in every respect with the wealth and rank of the deceased.

Alfenus, Digest, Book VI. The following case was suggested. Certain judges were appointed to hear the same action, some of them having been excused after it was tried, others were appointed in their stead; and the question arose whether the change of some individual judges left the case in the same condition, or placed it in a different one? I answered that not only one or two might be changed, but all of them as well, and that the action would continue to be the same that it was previously, and in fact this was not the only case in which it happened that though the parts were changed, still the thing itself was considered to be the same, but this occurred in many other instances. For a legion is considered to be the same, even though many of those belonging to it may have been killed, and others put in their places; and the people are deemed to be the same now as they were a hundred years ago, although not one of them may at present be living; and also, where a ship has been so frequently repaired that not even a single plank remains which is not new, she is still considered to be the same ship. And if anyone should think that if its parts are changed, an article would become a different thing, the result would be that, according to this rule, we ourselves would not be the same persons that we were a year ago, because, as the philosophers inform us, the very smallest particles of which we consist are daily detached from our bodies, and others from outside are being substituted for them. Therefore, where the outward appearance of anything remains unaltered, the thing itself is considered to be the same.

Alfenus, Digest, Book VI. A party against whom a suit was brought for the recovery of land, was again sued by another for the same land; and the question arose if he should deliver the land to either of the plaintiffs by order of court, and afterwards judgment should be rendered in favor of the other plaintiff, how would he avoid sustaining a double loss? I answered that whichever judge decided the case first must order the land to be delivered to the plaintiff under the condition that he would execute a bond or give security to the possessor that if the other party recovered the land, he would deliver the same.

Alfenus, Digest, Book VII. An arbiter was selected under an agreement for arbitration, and, not having been able to make his award within the period mentioned in the agreement, ordered the time of the hearing to be extended. One of the parties was not willing to obey the order; hence an opinion was asked as to whether an action could be brought against him for the penalty arising from the arbitration? I answered that this could not be done, for the reason that authority had not been granted to the arbiter to extend the time.

Alfenus, Digest, Book VII. The following was inserted in the contract of a lease: “The lessee shall neither cut down trees, nor girdle nor burn them, nor permit anyone to girdle, cut down, or burn the same.” The question arose whether the lessee should prevent anyone whom he saw doing something of this kind, or whether he should keep such a watch upon the trees that no one could do this. I answered that the word “permit” includes both significations, but that the lessor seemed to have intended that the lessee should not only prevent anyone whom he saw cutting down trees, but should also be careful and take such precautions that no one could cut them down.

Alfenus Verus, Digest, Book VII. Where silver destined for the use of the testator is left by will to anyone, together with his wardrobe and his furniture, the question arises for what use these articles would seem to be intended; whether the silver designed for daily table service of the head of the household was meant, or whether the silver tables and other things of the same kind which the testator did not use continually, but was accustomed to lend for games, and on other important occasions were referred to. The better opinion is that the silver only is included in such a bequest which was designed for the ordinary table service of the testator.

Alfenus Varus, Digest, Book VII. Where a physician, who thought that if his freedmen did not practice medicine he would have many more patients, demanded that they should follow him and not practice their profession, the question arose whether he had the right to do this or not. The answer was that he did have that right, provided he required only honorable services of them; that is to say, that he would permit them to rest at noon, and enable them to preserve their honor and their health. 1I also ask, if the freedmen should refuse to render such services, how much the latter should be considered to be worth. The answer was that the amount ought to be determined by the value of their services when employed, and not by the advantage which the patron would secure by causing the freedmen inconvenience through forbidding them to practice medicine.

Alfenus Varus, Digest, Book VII. When the Emperor leased the quarries of the island of Crete, he inserted the following clause in the lease: “No one except the farmer of the revenue shall make an excavation, or remove, or take out a single stone from the quarries of the Island of Crete, after the Ides of March.” A ship belonging to a certain individual, which was loaded with flints, having departed from the harbor of Crete before the Ides of March, was driven back into the harbor by the wind and departed the second time after the Ides of March. Advice was asked whether the flints should be held to have been removed contrary to law after the Ides of March. The answer was that although the harbors, which themselves were parts of the island, should all be considered as belonging to it, still, as the vessel, having left the port before the Ides of March, was driven back to the island by a storm, and afterwards departed, it should not be held to have done so in violation of law; especially as the flints must be considered to have been removed before the time prescribed, since the ship had already left the harbor.

The Same, Digest, Book VII. Two sons under paternal control had, as part of the peculium of each, separate slaves. One of them, during the lifetime of his father, manumitted a young slave who belonged to his peculium. The father, by his will, bequeathed to each son his own peculium, as a preferred legacy. The question arose whether the above-mentioned slave became the freedman of both of the sons, or only of the one by whom he had been manumitted? The answer was that if the father made his will before the son manumitted the slave, he would only become the freedman of that one, for the reason that he would be considered to have been bequeathed with the remainder of the peculium. If, however, the father had made his will afterwards, he would not be held to have intended to bequeath the slave who had been manumitted; and as he did not bequeath the said slave as a preferred legacy, after the death of the father he would be the slave of the two brothers.

The Same, Digest, Book VII. It was stated in the law relating to the collection of duties in the harbors of Sicily: “That no one should pay any duty on slaves which he was taking to his own house for private use.” The question arose if anyone should send slaves from Sicily to Rome, for the purpose of cultivating land, whether or not he would be compelled to pay duty on them. The answer was that in this law two points were involved: first, what did the words, “Take to his own house,” mean; and second, what was the meaning of the expression, “For his private use”? Therefore, if the word “house” meant where someone lived, inquiry should be made whether this was in a province, or in Italy; or whether his house could only properly be said to be in his own country. On this point it was decided that anyone’s house should be considered to be where he had his home, kept his accounts, and transacted his business. There is, however, great doubt as to the signification of the expression, “For his private use,” and it was decided that this only had reference to what was prepared for his subsistence. For the same reason it might also be asked with reference to slaves who are alleged to be for the use of their master whether stewards, porters, farmers, overseers, weavers, and farm laborers, who are employed in the cultivation of the soil, from which the owner obtains his living and supports himself, are meant; or whether all the slaves which any person purchased and kept for his own use, as well as those whom he employed for other purposes, and were not bought to sell again, are included. It seems to me that only those destined for the use of the head of the family, who are appointed for his personal service and support, which class includes valets, domestic, servants, cooks, attendants, and all others devoted to employments of this kind are meant.