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.