Gaius, On the Edict of the Urban Prætor; Title, The Action Having Reference to Taking Care of Rain-water. The vendor, or the donor, however, will be liable for damages sustained as well as for expenses incurred by the plaintiff through the interdict Quod vi aut clam.

The Same, On the Edict of the Urban Prætor, Under the Head of the “Prevention of Threatened Injury.” In noxal actions, the rights of those who are absent in good faith are not lost, but, on their return, power is given them to make a defence in accordance with what is proper and just, whether they are the owners or have some right in the property in dispute, such as creditors and usufructuaries.

Gaius, On the Edict of the Urban Prætor: Title, Concerning Threatened Injury. It may then very properly be said that these proceedings should not be taken where the owner of the ruined house failed to furnish security, not through negligence on his part, but on account of some obstacle which prevented him from doing so.

Gams, On the Edict of the Urban Prætor: Title, Concerning Threatened Injury. In a stipulation for indemnity against threatened injury, the rights of those who are absent in good faith are not prejudiced; if, after their return, power is granted them to give security which is only just, whether they are the owners of the property, or have any rights therein, either as creditors, usufructuaries, or ground lessees. 1If any damage is apprehended through the bad condition of a house, or any other structure, which may happen with reference to a building situated either in the city or in the country, or in a private or a public place, the Prætor must see that security is furnished to the person who fears that such damage will occur.

The Same, On the Edict of the Prætor, Concerning Legacies, Book I. Where a bequest is made as follows: “I give to Seius ten slaves, to addition to the ten which I have directly bequeathed to Titius.” Then if only ten are ascertained to belong to the estate, the legacy is void; but if more than that number remain after Titius has selected his ten, the legacy will be valid with respect to the others; but for no greater number than the ten which were bequeathed. If less than ten should remain, the bequest will be valid with reference to as many as are found. 1The bequest is conditional when expressed as follows, “I give Stichus to So-and-So, if he is willing to accept him,” and it does not pass to the heir, unless the legatee is willing to take it; although, otherwise, where a legacy is bequeathed without the addition, “If he wishes to accept,” it will be transferred to the heir of the legatee; for it is one thing in law where something is tacitly included, and another where it is expressed in words. 2If a house should be bequeathed, even though it has been gradually rebuilt, so that none of the original materials remain, we nevertheless say that the legacy will be valid; but if, after the house has been torn down, the testator should build another in its place, we must hold that the legacy is annulled, unless it should be proved that the intention of the testator was otherwise.

The Same, On the Edict of the Prætor, Concerning Legacies, Book I. Where a slave is bequeathed to one of several heirs, and is said to have maliciously committed some act against the estate, as, for instance, to have removed the accounts; he shall not be adjudged to the heir before being put to the torture, if the other heirs desire it. The same rule applies if he is bequeathed to a stranger. 1Ad Dig. 30,67,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Where the same property is bequeathed to two heirs out of several who have been appointed for different shares, each of the heirs will be entitled to half of the legacy, and not in proportion to their shares of the estate.

The Same, On the Edict of the Prætor Concerning Legacies. Ad Dig. 30,69 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 17.It is accepted that a legacy can be bequeathed to a slave who has himself been disposed of by will; because at the moment the estate is entered upon the slave is acquired by the legatee, and then the legacy follows him. 1Where an heir alienates a slave under a certain condition, and the condition is afterwards fulfilled, he can, nevertheless, be demanded by the legatee, and the legacy is not extinguished. 2If a testator should direct some of his heirs to pay a debt, his creditors will not be entitled to an action against them, but they can proceed against the remaining co-heirs, as it is to their interest that this should be done. In this instance, not only another party than the one to whom the testator ordered property to be given will be entitled to an action, but others besides; as, for example, if he should direct a dowry to be given to his son-in-law, or to the man betrothed to his daughter, in her name. For neither the son-in-law nor the betrothed will be entitled to an action, but the girl will be, as she has the greatest interest in the matter. 3Where a tract of land which was devised is charged with a servitude, it must be delivered in the condition in which it is. But if it is devised as follows, “In the best possible condition,” it must be delivered free from all servitudes. 4Where a slave who was engaged in transacting the business of the testator is bequeathed, he should not be delivered before he renders his accounts; and if judicial proceedings are instituted to compel his delivery, the court shall also take his accounts into consideration. 5Where there is some doubt whether the property left is in existence, for example, if it should be uncertain whether a slave who has been bequeathed is living, it has been decided that a testamentary action can be brought, and it is the duty of the judge to compel the heir to furnish a bond by which he agrees to search for the property, and if he finds it, deliver it to the legatee.

Gaius, Concerning Legacies under the Prætorian Edict, Book II. Although it is established that property which the heir is ordered to deliver, and which has been pledged or publicly hypothecated, must be released, still, where a husband has received property of this kind by way of dowry, and bequeaths it, his heir will not be compelled to release it, unless the testator specially desired this to be done.

The Same, On the Edict of the Prætor Relating to Legacies. A designation is incorrect where it is made as follows, “I bequeath the slave Stichus, whom I have bought of Titius, the Tusculan estate which was presented to me by Seius,” for if it is known to what slave or to what estate the testator referred, it will not be material if he whom he said that he had bought was really given to him, or if what he indicated had been donated to him he in fact had purchased. 1Therefore, where a slave is bequeathed as follows, “I bequeath to Titius my cook Stichus, my shoemaker Stichus,” although the slave may be neither a cook nor a shoemaker, he will belong to the legatee, if it should positively be ascertained that the testator had him in mind when he made the bequest. For even if the mistake is made in designating the person of the legatee, but it is clear to whom the testator intended to make the bequest, it will be as valid as if no error had been committed. 2This rule with reference to a false designation is still more applicable where the reason is incorrectly stated, as, for instance, as follows, “I give such-and-such an estate to Titius, because he has had charge of my business.” Likewise, “Let my son Titius receive, as a preferred legacy, such-and-such a tract of land, because his brother took such-and-such a sum of aurei from my chest,” for even if the brother did not take the said sum of money from the chest, the legacy will be valid. 3But if the legacy is mentioned in terms which impose a condition, for instance, as follows, “I give such-and-such a tract of land to Titius, if he has transacted my business,” “Let my son Titius receive such-and-such a tract of land, as a preferred legacy, if his brother took a hundred aurei from my chest,” the legacy will be valid if the legatee transacted the business, or his brother took a hundred aurei out of the chest. 4Where a legacy is bequeathed to anyone dependent upon his performing some act, as, for example, erecting a monument to the testator, or constructing some public work, or giving a banquet to the people of the city, or paying part of the legacy to another, the legacy will be considered to have been bequeathed under a certain modification.

Gaius, Concerning Legacies; On the Urban Edict. If the choice of a slave is given by the testator, or the slave is bequeathed without mentioning any particular one, the heir cannot annul or diminish the right of selection belonging to the legatee by manumitting some of the slaves, or all of them. For where the option or choice of a slave is granted, each slave is held to have been bequeathed under a condition.

Gaius, On the Edict of the Prætor, Concerning Legacies. Where an heir is directed to act in such a way that Lucius may obtain a hundred aurei, the heir will be compelled to pay that sum; because no one can act in such a way that I may obtain a hundred aurei unless he gives them to me. 1It is stated in a Rescript of Our Emperor that legacies bequeathed to villages, as well as those bequeathed to cities, are lawful.

Gaius, On the Edict of the Prætor Concerning Legacies, Book III. Where an usufruct is bequeathed to a municipality, the question arises how long it shall be entitled to the same, for if anyone should say that it was entitled to it in perpetuity, the mere ownership, if the usufruct should be perpetually separated from it, would be worthless; hence it is established that the municipality can hold it for a hundred years, which is the longest term of life.

Gaius, On the Edict of the Prætor with Reference to Legacies, Book III. The value of an estate is estimated after having deducted any expenses which may be incurred by the sale of property.

The Same, On the Edict of the Prætor with Reference to Legacies, Book V. Where, however, it is said that an heir who is entitled to his fourth under the will of the deceased is obliged to pay the legacies in full, we must understand that this applies where he receives the estate by hereditary right, for what anyone receives from his co-heir, as a legacy, shall not be charged to his fourth.

Gaius, On the Edict of the Prætor, Book III. Any property, however, which is given either by a co-heir, a legatee, or a slave who is to be free conditionally, for the purpose of complying with the condition, shall not be charged to the Falcidian portion, because it is obtained mortis causa. It is clear that if the heir should receive any money from the peculium of the slave, he must charge it proportionally to his share, because the said proportional share does not pass to him mortis causa, but he is understood to acquire it by hereditary right. 1For which reason it has been decided that any bequests which legatees have no right to receive, and which, on this account, will belong to the heirs, the latter do not obtain by hereditary right, and therefore they must be charged to the fourth; for it does not make any difference whether property is bequeathed to him in the first place, or whether, after it has been bequeathed, it remains in his hands.

The Same, On the Edict of the Urban Prætor with Reference to Legacies, Book III. If, however, one of two heirs should fail to accept his share of the estate, and the other should become the sole heir to the same, will the Falcidian Law apply, just as if the entire estate had been left to the latter heir in the beginning, or should the two portions of it be considered separately with reference to the operation of the Falcidian Law? It is established that if the share of the legacy of him who became the heir is exhausted, the legatees will be benefited by the share which was not accepted, for the reason that it was not burdened with legacies, since those remaining in the hands of the heir will cause either nothing at all, or only a small sum to be deducted from what is to be paid to the other legatees. If, however, the share which was not accepted is exhausted, it will be subject to the operation of the Falcidian Law, just as if it belonged to the party by whom it was refused.

The Same, On the Edict of the Prætor with Reference to Legacies, Book III. Where a testator left an estate of four hundred aurei, and, having appointed his son who had not reached the age of puberty his heir, bequeathed him two hundred aurei, and substituted Titius and Seius for him as heirs, and charged Titius with a legacy of a hundred aurei; let us see what the law is, if the minor should die before the legacies with which the two substitutes were charged have been paid. The heir Titius is the only one who can make use of the Falcidian Law, for as the two hundred aurei forming part of the estate of the minor belong to him, he will owe two hundred on account of the legacy, that is a hundred out of the two hundred which the minor owed, and the hundred which he himself was ordered by the testator to pay. Therefore, having deducted the fourth of each of these sums, he will have fifty. The Falcidian Law, however, is not applicable to Seius personally, since the two hundred aurei belong to him as a part of the estate of the minor, and he will owe in legacies a hundred out of the two hundred which were left by the minor. If, however, the minor himself should pay the legacies, his guardians should see that the legatees furnish him with security. 1There are certain legacies which are not susceptible of division; for instance, those of rights of way, of rights of passage, and of rights to drive cattle through land, for things of this kind cannot partly belong to anyone. Where, however, an heir is directed to build some public work for a municipality, the legacy is considered to be undivided, for it is not understood that he constructed a bath, a theatre, or a racecourse, until it has assumed its proper form, which only happens at its completion. In cases of this kind, even though there are several heirs, they are individually liable, and the bequest belongs to all the legatees. Hence, where bequests which are not susceptible of division are made, they belong wholly to the legatee. Still, relief can be granted to the heir, if he notifies the legatee to return to him his share of the amount, after an estimate has been made of the value of the legacy. If he should not do this, the heir can avail himself of an exception on the ground of fraud, in bar to legal proceedings instituted by the legatee to recover the bequest.

Gaius, On the Edict of the Urban Prætor Concerning Legacies. When a dispute arises with reference to the amount of the donation, neither the children of female slaves, crops, rents, nor wages are held to be included.

Ad Dig. 50,17,56BOHGE, Bd. 1 (1871), S. 22: Auslegung zum Nachtheile des Contrahenten, welcher aus dem Vertrage ein Recht auf eine ihm vortheilhaftere Auslegung herleitet.ROHGE, Bd. 7 (1873), S. 1: Auslegung zum Nachtheile des Contrahenten, welcher aus dem Vertrage ein Recht auf eine ihm vortheilhaftere Auslegung herleitet.The Same, On Legacies Relating to the Urban Edict, Book III. In questions which are doubtful, the more benevolent opinion should always obtain the preference.

The Same, On the Urban Edict Relating to Freedom, Book II. The produce of a slave consists of his services, and on the other hand, the services of a slave are what he produces. And, as, in other matters, the produce is understood to be what is left after the necessary expenses have been deducted, this is also the case with refence to the services of slaves.

Ad Dig. 10,4,13ROHGE, 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.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 474, Note 5.Gaius, On the Edict of the Urban Prætor; Title, Cases Relating to Liberty. Where a freeman is said to be detained by anyone, an interdict is available against him who is said to detain him for the purpose of compelling him to produce him; as an action for his production is held to be of no force in a case of this kind, because it is considered to lie only in favor of one who has a pecuniary interest.

Gaius, On the Edict of the Prætor; Title, Concerning the Cause of Freedom, Book II. If a son demands that a freedman of his father shall be reduced to slavery, in order to preserve for himself a case of eviction against a third party, he will not lose the benefit of prætorian possession of the estate.

Gaius, On the Edict of the Urban Prætor, Title: Concerning Actions Relating to Freedom. Because the slavery to which our relatives are subjected causes us grief and injury.

Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. The right to appear in court should, however, only be granted to a patron where the liberty of his freedman is involved, and the latter has permitted himself to be sold without his patron’s knowledge.

Gaius, On the Edict of the Urban Prætor, Book II. It will be even more equitable to adopt such a course where the person who has been reduced to slavery is insane, or an infant; for this privilege should then not only be granted to near relatives but also to strangers.

Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. Where two parties, that is to say, the alleged usufructuary and the alleged owner, are defendants at the same time against him who has brought an action to obtain his freedom, one of them may happen to be absent. It may be doubted whether, under such circumstances, the Prætor can permit the one who is present to appear alone against the alleged slave, because the rights of the third party should not be prejudiced by the collusion or the negligence of another. It can more properly be held that one of them may proceed in such a way that the rights of the other will remain unimpaired. If the absent party should appear before the case has been terminated, he must be sent before the same judge, unless he gives a good reason why this should not be done; for instance, if he alleges that the judge is his enemy. 1We say that the same rule will apply where of two or more persons who assert that they are the owners of the alleged slave some are present, and others are absent. 2Therefore, in both cases, we must consider if the one who first instituted proceedings should be defeated, whether this will benefit the other, who gained his case, or vice versa; that is to say, if either one of them should succeed, whether this will profit the other; as the heir of a freedman obtains an advantage from the fact that his patron had been defrauded by the manumission of slaves. If it is held that a judgment rendered in favor of one will benefit the other; the result will be that if the latter again brings suit, he can be opposed by a replication on the ground that the matter has already been decided. If, indeed, it is held that he does not derive any advantage from the decision, the doubt will arise whether what was claimed by the party who lost the case belongs to either of them, or whether he against whom the action was brought, or he who was successful, is entitled to it; and it is evident that a prætorian action ought to be granted to the party who gained the case, as the Prætor should, by no means, permit the man to be part slave and part free.

Gaius, On the Edict of the Urban Prætor, Title: Actions with Reference to Freedom. Even though, during his flight he acted as a freeman, we hold that the same rule will apply.

Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. It is certain that in the action in factum under discussion, judgment should only be rendered for the amount of damages which were caused by fraud, and not for what was due to negligence. Therefore, even if the alleged slave should be released from liability in a case of this kind, still, suit can afterwards be brought against him under the Aquilian Law, as by this law he will also be liable for negligence. 1Again, it is certain that in this action not only our own property but also that of another for which we are responsible can be claimed as having been lent or hired. But it is clear that this proceeding does not apply to property merely deposited with us for safe-keeping, because it is not at our risk.

Gaius, On the Edict of the Urban Prætor: Title, Actions Relating to Freedom. If an option has been bequeathed to anyone demanding his liberty in court, whatever has been stated with reference to the bequest of an estate will also apply to that of an option. 1The right to bring a second action to obtain freedom is sometimes granted; as for instance, where a party alleges that he lost the first case because his freedom depended upon a condition which had not previously been complied with. 2Although it is commonly stated that, after a case involving freedom has been decided, the person whose condition was in controversy is considered to be free; still, if he is really a slave, it is certain that he, nevertheless, will acquire for his master whatever has been delivered to or promised him, just as if no question had arisen concerning his freedom. We shall see that there is no dispute as to his possession, since his master ceases to possess him after the case has been decided. The better opinion is that he acquires possession, although he is not possessed by him. And, as it has been settled that we acquire possession by our slaves, even if they are fugitives, why should it be wondered at that we also acquire possession by one whose right to freedom we deny?

Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. To prevent the excessive indulgence of certain masters toward their slaves from contaminating the highest Order in the State, through suffering their slaves to claim the right of free birth and to be judicially declared free, a Decree of the Senate was enacted in the time of Domitian, by which it was provided, that: “If anyone can prove that an act was due to collusion, and the man pronounced to be free was actually a slave, the latter will belong to him who exposed the collusion.”

Gaius, On the Edict of the Urban Prætor, Title: On Cases Involving Freedom. If a trespasser should expel both the owner and the usufructuary from a tract of land, and the usufructuary should lose his right on account of not having used it during the prescribed time, no one doubts that the owner can institute proceedings against the trespasser, either alone or with the usufructuary; or, if he should not do so, he can retain the usufruct after it has been restored to him, and any damages sustained by the usufructuary shall be recovered from him who was responsible for the loss.

Gaius, On the Urban Edict, Under the Title, Concerning Notice to Suspend a New Work. A creditor, by whom a tract of land is held in pledge, can legally serve notice to discontinue a new work (that is to say where a servitude is involved), for the right to bring suit to recover the servitude is granted to him.

Ad Dig. 23,3,54Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 500, Note 1.Gaius, On the Edict of the Urban Prætor; Title, “Purchasers of Estates.” Property purchased with money belonging to a dowry is held to be dotal.

Gaius, On the Edict of the Prætor, Title “Publicans.” The ancients, in speaking of purchase and sale, made use of these terms without distinction.

Gaius, On the Edict of the Urban Prætor, Title: Farmers of the Revenue. It is provided by this Edict that if the property should be restored before issue has been joined, the right of action will be extinguished; still, after this, suit for the penalty can be brought. If, however, Ihe farmer of the revenue is ready to make restitution even after issue has been joined, he should be released from liability. 1We may ask whether the payment of double damages provided by the Edict is entirely a penalty, and suit can afterwards be brought for the recovery of the property; or whether the recovery of the property is included in the double damages, so that the penalty is only simple. The weight of opinion is that the property is included in the double damages.

Gaius, On the Edict of the Urban Prætor, Title, “Those who can neither be Summoned nor Brought into Court.” We do not understand a person to be released who, although his chains have been removed, is still held by the hands; just as we do not understand anyone to be released who is retained in custody without chains.

Gaius, On the Work Entitled, The Edict of the Prætor; Title, Decisions. For, on account of the honor attaching to marriage, an action against the wife implying infamy is refused.

Gaius, On the Edict of the Urban Prætor, Title: On Res Judicata. There is, at present, no doubt that he against whom judgment has been rendered can be released in many ways within the time prescribed for execution; although, during that time, proceedings in execution can not be instituted against him, because, where a case has been decided, the time fixed by law has been established in favor of the party who lost his case, and not against him.

The Same, Concerning Wills; On the Edict of the Urban Prætor, Book I. The appointment of an heir, as follows, “Those whom Titius may wish”, is defective, for the reason that it depends upon the desire of another. For the ancient authorities very frequently decided that the validity of wills must be derived from themselves, and not depend upon the wishes of others. 1Anyone who is in the hands of the enemy can legally be appointed an heir, because, by the law of postliminium, all his personal rights of citizenship remain in suspense, and are not annulled. Therefore, if he should return from captivity he can enter upon the estate. His slave can also legally be appointed heir, and if his master returns from captivity, he can be ordered to enter upon the estate. If, however, he should die, his legal successor will become his heir through the act of the slave.

Gaius, On the Edict of the Prætor Relating to Wills. Where questions arise with reference to matters foreign to the will, they must receive a just and liberal interpretation; but those which arise concerning the will itself must be determined in strict accordance with the rules of the written law.

The Same, Concerning Wills; On the Edict of the Urban Prætor, Book II. If anyone should write the following into a will, namely: “Let Titius be heir to half of my estate, and let the same Titius be heir to the other half if a ship arrives from Asia”, as the heir enters upon the estate by reason of an unconditional appointment, although the condition of the second appointment may still be pending, he becomes the heir to the entire estate, even if the condition should not be fulfilled, as its fulfillment will not, in any way, benefit him; since there is no doubt that if a party is appointed heir to half of an estate, and no other heir should afterwards appear, he is held to have been appointed heir to the whole of it.

The Same, Concerning Testaments; On the Edict of the Urban Prætor, Book II. Even though, properly speaking, a single article is not understood to be part of an estate.

The Same, Concerning Testaments; On the Edict of the Urban Prætor, Book II. For since an estate can be claimed on the ground of hereditary right by a party, who is in possession of a single article belonging to it, it cannot be doubted that what we have stated is true.

The Same, Concerning Testaments; On the Edict of the Urban Prætor, Book II. Where two appointed heirs, both having relinquished their rights under the will, obtain possession of an estate on the ground of intestacy, then, in accordance with the Prætorian Law, both will be considered as having entered upon the estate under the will, and an action will lie against each of them for his respective share. 1We should note that the benefit of the Lex Falcidia must be accorded to the heir against whom an action is granted in favor of the legatees by this section of the Edict.

Gaius, On Wills Relating to the Urban Edict, Book II. No one is considered to commit a fraud who does what he has a right to do.

Gaius, On the Edict of the Urban Prætor. All rights of action which are extinguished by death or by lapse of time continue to exist when they have once been brought into court. 1Nothing is considered to absolutely belong to anyone of which he can be deprived by some event.