Javolenus, On Cassius, Book I. Therefore, where a man has appointed a posthumous heir, and, after the execution of the will, marries again, he is held to have been appointed who is the issue of the subsequent marriage.

Javolenus, On Cassius, Book I. If anyone should appoint heirs as follows: “Let Titius be heir to the first share, Seius to the second, Mævius to the third, and Sulpicius to the fourth”, equal shares of the estate will belong to the parties appointed; for the reason that the testator is held to have named them rather to show the order of their designation, than to prescribe the method of dividing the estate into shares.

Ad Dig. 28,5,64Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 604, Note 4.Javolenus, On Cassius, Book VI. Where heirs are appointed without the designation of their shares, it is important to ascertain whether they are appointed conjointly, or separately; because if any one of those appointed conjointly should die, his share will not belong to all the heirs, but only to the remaining ones who are appointed along with him; but where one of those appointed separately dies, his share will belong to all of the heirs appointed under the will.

Javolenus, On Cassius, Book I. Where a slave has been illegally manumitted by a will, he can be bequeathed by the same will, because freedom only takes precedence over a legacy where it was granted in accordance with law.

The Same, On Cassius, Book II. Whatever a slave, who was bequeathed, acquired before the estate was entered upon, he acquires for the estate.

Javolenus, On Cassius, Book II. Where a testator bequeathed his property, which was at Rome, to a certain person, he would also be entitled to whatever was stored for safe keeping in warehouses outside the City.

Javolenus, On Cassius, Book II. Where the right to select a slave from the entire body of those forming part of an estate is bequeathed, and the heir manumits one of them before the choice is made, he cannot, in the meantime, confer his freedom upon him, but he will lose the slave whom he manumitted, because if he is chosen by the legatee, he will belong to him, but if he is rejected, he will then become free.

Javolenus, On Cassius, Book II. The same rule applies to birds which are kept in houses near the sea.

Javolenus, On Cassius, Book II. A certain individual who had bequeathed the peculium of his slave undertook to defend him in court, and afterwards died. It was decided that the heir was not compelled to deliver the peculium on account of the legacy, unless security to indemnify him for any loss arising from the defence of the slave was furnished.

Javolenus, On Cassius, Book II. Where maintenance is bequeathed, food, clothing, and lodging are included, because without these the body cannot be sustained; but things which have reference to instruction are not embraced in the legacy,

Javolenus, On Cassius, Book II. Where anyone orders legacies, for the payment of which he does not fix any time, to be paid in one, two and three years, and bequeaths a sum of money to a minor when he shall arrive at the age of puberty, it is stated in the Commentaries of Gaius that the last legacy mentioned should be paid in one, two or three years after the boy arrives at puberty; because a more important condition than the term of payment is attached to the legacy. I think that the opposite opinion is correct, because where a time is prescribed, it has reference to the postponement of the payment of legacies which are due at present, but does not apply to those which are payable in the future, and the age of puberty establishes a certain date for the payment of the legacy. 1The same property was bequeathed to two persons, if they should pay a hundred aurei to the heir. If one of them should pay him fifty, he will be entitled to his share of the legacy, and the share of the one who did not pay will accrue to the other, dependent upon compliance with the condition.

The Same, On Cassius, Book II. Where a legacy is bequeathed to take effect when a woman marries, if she was already married and the testator was aware of the fact, the parties must wait for a second marriage, and it will make no difference whether the woman marries again during the lifetime of the testator or after his death.

Javolenus, On Cassius, Book IV. In appraising the value of an estate, the purchase-money obtained for its sale must be included, as well as the addition of whatever else it was worth, if this was done on account of business; but where it is disposed of in compliance with the terms of a trust, nothing more will be included than what the party acquired in good faith.

The Same, On Cassius, Book III. When land which is not built upon is devised, and, after the will was executed, a building is erected thereon, both the ground and the building must be delivered by the heir.

Javolenus, On Cassius, Book III. When a freedman, who has two patrons, passes one of them over in his will, and appoints a stranger heir to half of his estate, the patron who is appointed heir can claim the share to which he is entitled without deduction; and out of the other share which was left over and above what was due to him, and out of the remaining half bequeathed to the stranger, an amount shall be taken pro rata to make up the share to which the other patron is entitled by law.

Javolenus, On Cassius, Book IV. Where a husband made no subsequent provision with reference to a dowry, if, after a divorce has taken place, the woman should marry another man, and afterwards, having again been divorced, return to her first husband, the dowry will be tacitly restored to him unimpaired.

Javolenus, On Cassius, Book IV. It is lawful for an agreement to be made after marriage, even if none has previously been, entered into. 1Agreements made for the purpose of returning a dowry should be entered into by all the parties who have either a right to recover the dowry, or from whom it can be recovered, in order that one of them, who is not a party to the proceedings, will not be able to obtain any advantage from the magistrate who may be called upon to enforce the agreement.

Javolenus, On Cassius, Book V. Where there are several guardians, it is superfluous to petition the Prætor to appoint a curator for the purpose of conducting a lawsuit against one of them, because the ward can begin the action with the authority of another guardian.

Javolenus, On Cassius, Book V. A mother lost her life in a shipwreck at the same time as her son who had reached the age of puberty. If it cannot be ascertained which of them died first, it is more natural to suppose that the son lived the longer.

Javolenus, On Cassius, Book VI. For adoption can only take place with persons between whom the natural relation of father and son might exist.

Javolenus, On Cassius, Book VI. He to whom legal jurisdiction is given is also held to be invested with all the powers necessary for its exercise.

Javolenus, On Cassius, Book VI. For the services should be rendered in the place where the patron resides, and of course at his expense for food and transportation.

Javolenus, On Cassius, Book VI. Services cannot be imposed upon a freedman in such a way that he shall be required to support himself.

Javolenus, On Cassius, Book VI. Where the estate of a person who directed that his slave should become free within thirty days after his death, if he rendered his accounts, was not entered upon until after the thirty days had expired, the manumitted slave cannot become free by the strict construction of the law, as the condition was not fulfilled; but the indulgence with which freedom is regarded causes the condition to be considered as complied with, if it was not the fault of the person upon whom it was imposed that this was not done. 1It is stated in the Books of Gaius Cassius that if a slave, who is to be conditionally free, should acquire any property before the condition upon which his liberty is dependent is complied with, it will not be embraced in the bequest of his peculium, unless the legacy was made to include the time when he was free. As the peculium is susceptible of both increase and diminution, let us see whether its increase by the heir will form part of the legacy, provided the slave is not deprived of it. This is our present practice.

Javolenus, On Cassius, Book VI. Anyone who has been granted exemption from the performance of municipal duties is not excused from becoming a magistrate, because the functions of the latter are more honorable than those attaching to other public employments; but all other extraordinary duties required from anyone temporarily, as, for instance, the repair of highways, should not be demanded of a person of this kind.

Javolenus, On Cassius, Book VI. The expression, “To be of the opinion,” means to determine and direct; hence, we are accustomed to say, “I am of the opinion that you should do this,” and “The Senate directed that such-and-such a thing should be done.” It is from this verb that the word “censor” is derived.

Javolenus, On Cassius, Book VII. A person of this kind should bring all the amounts, large and small, together, and in that way ascertain the share to be paid by the party who received the mandate. Many authorities adopt this rule. 1In like manner, in the following instance, where I directed you to purchase something for me at a certain price, and you transacted the business profitably with reference to the other joint-owners, and made the purchase at a low figure, you will have for your share the amount of your interest, provided it is within the sum contained in the mandate; but what if the parties who held the land in common with you were compelled to dispose of it at a low price, either on account of the bad condition of their affairs, or for some other reason? You should not make the same sacrifice, nor should you profit by this circumstance, as a mandate ought to be gratuitous, nor should you be permitted, on this account, to prevent the sale, because you knew that the purchaser was more anxious to obtain the property than he was at the time he directed you to purchase it. 2If I should direct you to purchase for me a tract of land, which is sold by certain parties, in such a way, however, that I shall not be bound by the mandate unless you purchase the entire tract, and you are unable to purchase it all; you will be transacting your own business with reference to the shares you have bought, whether you have an interest in the land or not. The result will also be that he to whom a mandate of this kind has been given, will, in the meantime, purchase the different shares at his own risk, and, unless he buys them all, they will remain in his hands, even though he does not want them. It is more probable that, since a party can undertake the execution of a mandate attended with such inconveniences, and has done so voluntarily, he should discharge his duty by purchasing the different shares, just as he ought to do in purchasing all of them together. 3If I direct you to purchase a tract of land for me, and do not add that I shall not be liable under the mandate unless you buy it all, and you purchase one, or several portions of the same; we will then undoubtedly be entitled to actions on mandate against one another reciprocally, even though you could not purchase the remaining portions of the land.

Javolenus, On Cassius, Book VII. Where a master orders his slave to sell property to a certain person, and he sells it to another, the sale will not be valid. The same rule applies to a person who is free, since a sale cannot be made to a party to whom the owner was unwilling that the property should be sold. 1Where the contents of a tract of land have been described, it is superfluous to mention the boundaries of the adjacent tracts. If they are mentioned, it is also necessary to state the names of the vendors of the same, if any of them should happen to have adjoining land.

Ad Dig. 18,6,17ROHGE, Bd. 11 (1874), Nr. 97, S. 295: Folge des Annahmeverzuges des Frachtguts seitens des Empfängers. Befugnis des Frachtführers zum Verkaufe, nicht Verpflichtung.ROHGE, Bd. 13 (1874), Nr. 68, S. 207: Unterlassung von Schadensabwendungs-Maßregeln seitens des vertragstreuen Contrahenten.Javolenus, On Cassius, Book VII. Where the purchaser of a slave asks permission to hire him until he can pay his price, he will acquire nothing through the services of said slave, since he is not held to be delivered whose possession is retained by the vendor through hiring him. The purchaser will be responsible for the slave, where anything happens to him without the fraud of the vendor.

Javolenus, On Cassius, Book VII. Granaries, which are usually made of boards, belong to the building, if their foundations are in the earth; but if they are above ground, they should be classed as movable property. 1Tiles which have not yet been placed upon buildings, although they have been brought there for that purpose, are included in the class of personal property. A different rule applies to those which have been removed with the intention of being replaced, for they are accessories to the house.

Javolenus, On Cassius, Book VII. We can sometimes deliver to another the possession of property which we ourselves do not hold; as, for instance, when he who possesses an article as heir, and, before becoming the owner of the same, claims it under a precarious title from the real heir. 1Property which has been thrown overboard in a shipwreck cannot be acquired by usucaption, since it has not been abandoned, but merely lost. 2I think that the same rule of law applies to property which has been thrown into the sea to lighten the ship, as that cannot be considered as abandoned which has been temporarily relinquished on account of safety. 3When anyone claims the property of another by a precarious title, and leases it from him, possession of the same will revert to the owner.

Javolenus, On Cassius, Book VII. Property delivered as a legacy can be acquired by usucaption on this ground, even though the owner of it may be living,

Javolenus, On Cassius, Book VII. No one can acquire property by usucaption on account of a legacy, unless he himself had a right to make a will for the benefit of the testator, because possession of this kind depends upon testamentary capacity.

Ad Dig. 3,5,27ROHGE, Bd. 17 (1875), Nr. 21, S. 78: Legitimation des Verkäufers, der den Speditionsvertrag in eigenem Namen geschlossen, den dem Käufer aus der Nichterfüllung entstandenen Schaden als seinen eigenen einzuklagen.ROHGE, Bd. 18 (1876), Nr. 22, S. 97: Begründung des Anspruchs des Postfiskus auf Ersatz aus dem Verluste eines Geldbriefbeutels. Berufung auf die Verbindlichkeit, dem Absender Ersatz zu leisten.Javolenus, On Cassius, Book VIII. Where anyone has transacted the business of Seius by the direction of Titius, he is liable to Titius in an action of mandate, and in the action the amount of the interest of both Seius and Titius should be taken into consideration; the interest of Titius, however, must be determined by the amount he has to pay Seius, to whom he is liable either on mandate, or for business transacted. Titius has a right of action also against the party whom he directed to attend to the affairs of another, before he himself pays anything to his principal; because he is held to have lost the amount for which he was liable.

Javolenus, On Cassius, Book VIII. If a work is destroyed by superior force before it has been accepted by the employer, he must bear the loss, if the work was of such a character that he should have accepted it.

Javolenus, On Cassius, Book IX. When the individual on whose account issue has been joined in a noxal action is decided to be free, during the course of the trial, the defendant should be discharged; and the interrogation will be of no benefit because it was made in court; since where anyone has a right of action against another on account of a third party, he cannot transfer the liability of said party to one who confesses in court that he is his slave; as, for instance, if he confesses that the slave of another is his own; still, as no action can be brought against another person on account of a man who is free, liability cannot be transferred by means of any interrogatory or confession. The result in this case is that no action can properly be brought with reference to a freeman against someone who has made a confession. 1In general, confessions are considered only where what is included in the confession can be accepted as in conformity with law and nature.

Javolenus, On Cassius, Book IX. A surety, although he may have paid the money by mistake before it is due, can not, nevertheless, bring suit against the creditor; nor can he, indeed, bring an action on mandate to which he may be entitled against the principal debtor, before the day of payment arrives.

Javolenus, On Cassius, Book X. Where buildings are subject to a servitude that no portion of them shall be raised any higher, shrubs can be placed upon them above that height; but where the servitude relates to the view and the shrubs would obstruct it, this cannot be done.

Javolenus, On Cassius, Book X. A servitude may be acquired in favor of certain kinds of land, as for instance, vineyards, because this would have reference rather to the soil itself than to the surface of the same; so that, if the vineyards were removed, the servitude will remain. But if another intention existed when the servitude was created, an exception on the ground of malicious fraud will be necessary. 1Where an entire field is subject to a servitude of passage or the driving of cattle, the owner cannot do anything in the said field by which the servitude may be interfered with; because it is so extended that every clod is subject to it. But where the right of passage or to drive cattle is bequeathed without any limit, the limits shall be established at once, and where they are first established there will the servitudes be created, and the remaining parts of the field will be free. Hence, an arbiter must be appointed who, in both instances, should determine the direction of the right of way. 2The width of a driveway for cattle, and that of a pathway, is the one which was designated; and if nothing was said with reference to it, it must be fixed by the arbiter. In the case of a right of way the rule is different; for if the width is not stated, that which is established by law is the proper one. 3If the place is designated but the width is not given, the party can cross said place wherever he wishes. But if the place is not mentioned and the width is not stated, a right of way may be chosen over any portion of the land, but the width of the same must be that prescribed by law; and if there is any doubt as to the direction, the services of an arbiter must be enlisted to decide it.

Javolenus, On Cassius, Book X. It is not possible to provide that a monument shall only be built to a certain height, because what has ceased to be controlled by human law cannot be subject to a servitude; just as no servitude can be created providing that only a certain number of bodies shall be buried in one place.

Javolenus, On Cassius, Book X. Where a place subject to a right of way or a right to walk or drive is overflowed by a river, and before the time established for the loss of the servitude has elapsed, the land is restored by a deposit of alluvium, the servitude is also restored to its former condition. If, however, so much time should elapse that the servitude is lost, the owner of the land can be compelled to renew it. 1Where a highway is destroyed by the overflow of a river, or by the destruction of a building, the nearest neighbor must furnish a roadway.

Javolenus, On Cassius, Book X. If the work which causes damage by rain-water is erected in a public place, the action cannot be brought; but where the two tracts are separated by a public place, it can be. The reason for this is that the owner alone is liable under this action. 1Water cannot be conducted across a public highway without the consent of the Emperor.

Javolenus, On Cassius, Book X. The public cannot lose a highway by failing to make use of it.

Javolenus, On Cassius, Book XI. It is not in all cases where the decision of the arbiter is not obeyed that liability for the penalty arising from the arbitration is incurred, but only in those which have reference to the payment of money, or the performance of some service. Javolenus also states that an arbiter can punish the contumacy of a litigant by ordering him to pay a sum of money to his adversary; but a party must not be included among contumacious persons where he did not give the names of his witnesses in accordance with the decision of the arbiter. 1If an arbiter orders the time fixed for arbitration to be extended, where he is allowed to do this, the default of either party will not allow the penalty to be collected by the other.

Javolenus, On Cassius, Book XI. Anything which is taken from the sea does not begin to be the property of him who obtains it until the owner of said property begins to consider it as abandoned.

Javolenus, On Cassius, Book XI. Where a slave has agreed to pay a sum of money for his freedom, and has given a surety for that purpose, even though he may be manumitted by another person, the surety will, nevertheless, legally be bound, for the reason that the inquiry was not made to ascertain by whom he was manumitted, but merely to learn whether he has been manumitted.

Javolenus, On Cassius, Book XI. When money belonging to another is paid without the knowledge or consent of the owner, it still continues to be his property. If it is mixed with other money, so that it cannot be separated, it is stated in the Books of Gaius that it will belong to the person who receives it; so that an action of theft will lie in favor of the owner against him who paid the money.

The Same, On Cassius, Book XI. The shore of the sea is public as far as high-water mark. The same rule of law applies to a lake, unless it is all private property.

Javolenus, On Cassius, Book XII. But where anyone has sold a slave with the understanding that he was to receive a price for the peculium, the peculium is held to be in the hands of the party to whom the price of the same was paid.

Javolenus, On Cassius, Book XII. But where the heir was directed to deliver the peculium on receipt of a certain sum, the peculium is not held to be in the hands of the heir.

Javolenus, On Cassius, Book XII. The action founded on the employment of property for another’s benefit cannot be brought against anyone who has liberated a slave in consideration of money received; because, by granting him his freedom, he is not enriched by the money.

Javolenus, On Cassius, Book XII. If, indeed, the father was not about to give a dowry, it is not held to have been employed in his business.

The Same, On Cassius, Book XIII. He who obtains possession in such a way that he cannot retain it is not considered to have acquired it at all.

Javolenus, On Cassius, Book XIII. The interdict, requiring a person to produce a will, will not lie where any controversy with reference to the estate is pending, or any public question is involved. Therefore the will should in the meantime be deposited either in a temple or in the hands of some responsible person.

Javolenus, On Cassius, Book XIII. Fraud committed by a guardian, whether he is solvent or not, should not prejudice the rights of his ward in an interdict, or in any other legal proceeding.

Javolenus, On Cassius, Book XIV. Ad Dig. 9,2,37 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 455, Note 27.Where a freeman committed an injury with his own hands by order of another, an action under the Lex Aquilia can be brought against the party who gave the order; provided he had the right of commanding; but if he did not have it, proceedings must be instituted against the party who committed the act. 1Where a quadruped, on account of which a right of action exists against its owner because it has committed damage, is killed by another party against whom suit is then brought under the Lex Aquilia, the estimation of the value of said animal must be made, not with reference to what it is actually worth, but to the circumstances under which the right of action for damages exists; and the party who killed the animal must have judgment rendered against him in a suit under the Lex Aquilia to the amount of the interest the plaintiff had to settle the case through surrendering the animal by way of reparation, rather than by paying the damages which have been estimated.

Javolenus, On Cassius, Book XIV. Where a father substitutes an heir for his daughter, who has not yet arrived at puberty, any property which has been received as a legacy by the substitute from the father will not, when the estate passes to the former, be included in the computation made to ascertain the proportion due under the Falcidian Law. 1Where a legacy is claimed, and an oath was made in court by the legatee, the amount due under the Falcidian Law shall not be ascertained from the sum to which the legatee has made oath, but from the true value of the property which is claimed; for what accrues by way of penalty does not come within the scope of the Falcidian Law.

Javolenus, On Cassius, Book XIV. An exception should be granted to the surety of him who, for the purpose of making a donation, promised a sum of money greater than that authorized by law, even against the consent of the principal; for if the latter should not be solvent, the surety will lose the money.

The Same, On Cassius, Book XIV. A serious illness is one which interferes with every kind of business.

Javolenus, On Cassius, Book XV. Where a municipal corporation is not defended by those who have charge of its affairs, and no common property exists of which possession may be obtained, payment must be made to those who bring suit for debts owing to the corporation.

Javolenus, On Cassius, Book XV. A soldier who is at home on a furlough is not held to be absent in the service of the State. 1A person who gives his services for the collection of public taxes which have been farmed out, is not absent in the service of the State.

Javolenus, On Cassius, Book XV. When a party dies after having joined issue at Rome, his heir, even though he resides beyond sea, must defend the case at Rome, because he succeeds to the place of him by whom he was appointed heir.

Javolenus, On Cassius, Book XV. Where proceedings for theft are instituted, the value of the property at the time when the theft was committed must be sworn to, without adding the words, “Or more,” because where property is worth more, it is, at all events, worth as much.

Javolenus, On Cassius, Book XV. Any claim that can be destroyed by an exception cannot be included in a set-off.

Javolenus, On Cassius, Book XV. When a person to whom an article has been lent for use steals it, an action for theft as well as one on loan can be brought against him, and if the one for theft should be brought, the right of action on loan will be extinguished; and if the one on loan is brought, an exception can be pleaded in bar of the action for theft. 1Where property is held by anyone in the capacity of heir, the possessor will not be entitled to the action for theft, although he can obtain the property by usucaption; because he who is interested in not having it stolen can bring the action for theft. This, however, seems to be the interest of the person who would suffer the injury, and not of him who would be pecuniarily benefited.

Javolenus, On Cassius, Book XV. If anyone who receives property in pledge should sell it, when no agreement had been made with reference to its sale while pledged, or if he should dispose of it before the day of sale arrives, and the debt is not paid, he renders himself liable for theft.

Javolenus, On Cassius, Book XV. Anyone who sells a field, can, nevertheless, bring an action for the cutting of trees before the sale has been concluded.

The Same, On Cassius, Book XV. Exemption and immunity from public employments conceded to the children and descendants of anyone only have reference to persons belonging to his family.

The Same, On Cassius, Book XV. No one is understood to be solvent unless he can pay everything that he owes.