Labeo, Epitomes of Probabilities by Paulus. Where no water has yet appeared, no right of way to it, nor any canal for the conduct of the same can be established. Paulus says, I think, that this is not true, by any means; because a grant can be made permitting you to look for water, and, if it should be found to convey it.

Labeo, Epitomes of the Probabilities of Paulus, Book I. If you have made a contract for the transportation of slaves, freight is not due to you for a slave who died on the ship. Paulus says that, in fact, the question is what was agreed upon, whether freight was to be paid for those who were loaded on the ship, or only for those who were carried to their destination? And if this cannot be established, it will be enough for the master of the ship to prove that the slave was placed on board. 1If you hired a ship on condition that your merchandise was to be transported by her, and the master of the ship, without being compelled by necessity, placed your property on an inferior vessel, being aware that you did not wish this to be done; and your merchandise was lost, together with the ship in which it was last transported, you will be entitled to an action on the contract of leasing and hiring against the master of the first ship. Paulus, on the other hand, says that this is not true, provided both ships were lost on the voyage, since it occurred without the malice or negligence of the sailors. The rule is the same if the first master, having been detained by public authority, was prevented from sailing with your merchandise. This rule is also applicable if he entered into a contract with you under the condition that he would pay you a certain penalty if he did not, by a day agreed upon, land your goods in a place to which he had agreed to transport them, and he was not to blame if he did not wait; even though the penalty was remitted to him. We must observe the same rule in a similar imaginary case, where it is proved that the master, having been prevented by illness, was unable to sail, if his ship became unfit for navigation without any malicious intent or negligence of his. 2If you hire a ship capable of transporting two thousand jars and place jars on board, you are liable for the freight of two thousand jars. Paulus says that the fact is, if you hire the entire capacity of the ship, the freight for two thousand jars will be due, but if the freight was agreed upon according to the number of jars placed on board, the contrary rule will apply; for you owe for the transportation of as many jars as you placed on board.

Labeo, Probabilities, Book I. Where it is stated in a contract that the rent of a house shall belong to the purchaser; whatever the said house is rented for should be paid to the purchaser. Paulus says that this is not altogether true, for if you rent an entire house to one tenant for a certain sum, and the tenant sublets it for a larger amount, and, in selling the house, you state that the rent is to be paid to the purchaser, that only is included which the tenant owes you for the entire house. 1If you sold a tract of land in which you have a burial-place and do not expressly except it, you will have no security on this account. Paulus says that this opinion is, by no means, just, provided a public highway runs by the side of the burial-place. 2If, where a house is sold, lodgings in the same are reserved for the occupants under the terms of the sale, such a reservation is properly made with reference to all the occupants of said house, with the exception of the owner. Paulus, however, says that if you had given free lodgings to anyone in the house which you sold, and you should make the reservation in such a way that the occupants, or any one of them, will have rent to pay at a certain time, you will not properly provide for this; for it is necessary to make an express reservation with reference to them. Therefore, the purchaser can, with impunity, prevent the occupants from lodging in the house.

Labeo, Probabilities, Book I. If you make a contract for digging a canal, and complete it, and, before it is accepted, it is destroyed by accident, the risk will be yours. Paulus says that, even if the accident occurred through some fault of the ground, the party hiring the work to be done must be responsible; but if it happened because the work was defective, you must bear the loss.

Labeo, Probabilities of the Epitomes, by Paulus, Book I. If a house which you have a right to sell under the terms of a contract of pledge is consumed by fire, and is afterwards rebuilt by your debtor, you will have the right with reference to the new building.

The Same, Epitomes of Probabilities, by Paulus, Book I. Where a house is bequeathed to anyone, he will be entitled to all the buildings situated on the land belonging to said house. Paulus: This rule, however, does not apply where the owner possessed two adjoining houses, and a room of one of them was destined for the use of the other, and employed for this purpose; for, under these circumstances, the said room will cease to be accessory to the building to which it is attached, and will become accessory to the other.

Labeo, Abridgment of Probabilities by Paulus, Book I. Paulus: If a son under paternal control, who had a wife from whom he had received a dowry, should afterwards become the head of a household, and, as is customary, bequeath the dowry to her, the legacy will still be due, even though he did not become the heir of his father.

Labeo, Abridgment of Probabilities by Paulus, Book I. If you wish to devise to anyone a tract of land with its equipment it makes no difference what form you use, whether you devise the land with its equipment or the land and its equipment, or the land furnished with its equipment. Paulus: I indeed am of the contrary opinion, for there is this difference between legacies, namely, if the testator who made the devise should employ the following form, “I leave the land with its equipment,” and the land should be alienated, the devise will be of no force or effect; but if he used either of the other forms it will be valid.

Labeo, Probabilities, Book I. If you purchase a ship with its equipment, the boat belonging to it should be delivered to you. Paulus: By no means; for a ship’s boat is not part of its equipment, as the boat differs from it in size, but not in kind. It is necessary for the equipment of anything to be of a different description, no matter what it may be. This opinion is adopted by Pomponius, in the Seventh Book of the Epistles.

Labeo, Epitomes of Probabilities, By Paulus. If you have accused the freedman of your father of a capital crime, and your father has manumitted him, prætorian possession of the estate of the freedman cannot be granted to you under the Edict of the Prætor. Paulus: The contrary rule will apply if you should bring such an accusation against a slave who afterwards becomes the property of your father, and the latter subsequently manumits him.

Labeo, Epitomes of Probabilities, by Paulus, Book I. If you desire to permit one of your slaves to be liberated from servitude within a certain time, it makes no difference whether you make this provision under the condition that he “shall serve,” or “render his services for the term of three years, in order to become free.” 1Paulus: If anyone is ordered to be free if he promises to pay ten aurei to the heir, although a promise of this kind will be of no effect, he will, nevertheless, be liberated by making it.

The Same, Probabilities, Book II. You can bring an action on deposit against anyone who refuses to return your deposit on any other terms than that you pay him money, even though he may be willing to return it, on this condition, without delay and uninjured.

The Same, Probabilities, Book II. Where the right of succession to an estate is sold with the exception of a tract of land belonging thereto, and then the vendor acquires something on account of said tract of land, he must surrender it to the purchaser of the right of succession. Paulus says that, in an instance of this kind, inquiry must always be made as to the intention of the parties. If, however, this cannot be ascertained, the vendor must transfer the property which has been acquired by him in this way to the purchaser; for it appears to have come into his hands on account of the succession, and not otherwise; just as if in disposing of the succession he had not excepted the said tract of land.

The Same, Probabilities, Book II. Where a slave whom you have sold breaks a leg in doing something by your order, the risk is not yours, if you directed him to perform some act which he was accustomed to perform before the sale, and if you ordered him to do something which you would have ordered him to do, even if he had not been sold. Paulus says that this opinion is by no means correct; for if the slave had been accustomed to perform some dangerous task before the sale, it will be held that you were to blame for this; as, for instance, if you had been accustomed to compel your slave to go down into a vault, or into a sewer. The same rule of law applies if you were accustomed to order him to do something which the wise and diligent head of a family would not order his slave to do. What if this should be made the ground of an exception? He can, nevertheless, direct the slave to perform some new task which he would not have ordered him to perform if he had not been sold; for example, if he should order him to go to the home of the purchaser, who lived in a distant place, for certainly this would not be at your risk. Therefore, the entire matter merely has reference to the fraud and negligence of the vendor. 1Where it is stated in the contract that there were eighty casks buried in the ground, which were accessory to the land, and there are more than this; the vendor must give to the purchaser the above mentioned number, making his selection from all the others as he wishes, provided he delivers such as are sound. Where there are only eighty of them, they belong to the purchaser, just as they are; and the vendor will not be obliged to pay him anything for those that are not perfect.

Labeo, Epitomes of Probabilities, by Paulus, Book II. If a wife should purchase a slave with money given to her by her husband, or by someone who is under his control, and after the slave becomes her property, she should deliver him to her husband as a donation, the delivery will be valid, even though this is done with the same intention with which other donations are made, and no action for recovery can be granted her on this account.

Labeo, Epitomes of Probabilities by Paulus, Book II. If anyone, knowing that property is being stolen from him, does not prevent this from being done, he cannot bring an action for theft. Paulus: The contrary is certainly true. For if anyone knows that property has been stolen from him, and keeps quiet because he cannot prevent it, he can bring an action for theft. If, however, he could have prevented it, but did not do so, he can still bring an action for theft. In this way patrons are accustomed to commit thefts against their freedmen, and also anyone who is entitled to such respect or reverence that it prevents him from being resisted by another in his presence, is accustomed to commit a theft.

The Same, Probabilities, Book III. Where anyone bequeaths a slave to his wife, and orders him to be free in case she marries again, the slave will become free under this condition if she should marry a second time.

Labeo, Epitomes of Probabilities by Paulus, Book III. If your tenant has been forcibly ejected, you can proceed under the interdict Unde vi. The same rule should be adopted if the lessee of your house is forcibly ejected. Paulus: This also applies to a sub-tenant, or a sub-lessee.

Labeo, Epitomes of Probabilities by Paulus, Book IV. If you have not harvested the crops on a tract of land belonging to another of which you are merely in possession, you are not obliged to deliver anything produced by said land. Paulus, on the other hand, asks whether the crops become the property of the possessor because he gathered them on his own account? We must understand the harvesting of crops to mean not only where they are entirely gathered, but where this has begun and has proceeded to the extent that the crops have ceased to be supported by the land; as, for instance, where olives or grapes have been gathered, but no wine or oil has been made by anyone; for in this case, he who has gathered the crops is considered, from that time, to have obtained them.

Labeo, Epitomes of Probabilities by Paulus, Book IV. Just as urban and rustic slaves are distinguished, not by the place in which they are, but by the nature of their employment, so, likewise, urban provisions and household goods should be classified according to their use in a city, and not from the mere fact of their being situated there, or elsewhere; and it makes a great deal of difference whether provisions and household goods which are in the city are bequeathed, or where they are bequeathed as belonging to the city.

Labeo, Epitomes of Probabilities by Paulus, Book IV. If anything captured in war forms part of the booty, it does not return by the right of postliminium. Paulus: But if a prisoner taken in war flees to his home, after peace has been declared, and then the war having been renewed he again is captured, he returns by the right of postliminium, to which he was entitled when taken during the first war; provided that it was not agreed in the treaty of peace that captives should be returned.

Labeo, Epitomes of Probabilities by Paulus, Book IV. A penalty is a fine, and a fine is a penalty. Paulus: Both of these statements are false; for the difference between these things is apparent from the fact that an appeal cannot be taken from a penalty, for where anyone is convicted of an offence, the penalty for it is fixed, and must be paid at once; but an appeal can be taken from a fine, for it is not due unless an appeal is not taken, or the appellant loses his case; and it is the same as if the judge had passed upon it who was authorized to do so. Hence, the difference between these things becomes apparent, because certain penalties are prescribed for certain illegal acts; but this is not the case with fines, as the judge has power to impose any fine he pleases, unless the amount which he may impose is fixed by law.

Labeo, Epitomes of Probabilities by Paulus, Book V. If a penalty for failure to pay money transported by sea is promised, as is customary, even though on the first day when it is payable no one should be living who owed the said money, still, the penalty can be exacted, just as if there was an heir to the debtor.

Labeo, Probabilities, Book V. If anything which the ward does would tend to release his guardian from liability to him, the guardian cannot legally consent for him to do it.

Labeo, Epitomes of Probabilities by Paulus, Book V. Property which has been stolen cannot be acquired by usucaption before it has again come under the control of the owner. Paulus: Perhaps the contrary opinion is true; for if you should steal property which you have given to me in pledge, it becomes stolen goods, but it can be acquired by usucaption as soon as it again comes under my control.

Labeo, Epitomes of Probabilities, by Paulus, Book V. If I should make a release to you, I will not, for that reason, be freed from liability, so far as you are concerned. Paulus: But when a hiring, a lease, a purchase, or a sale has been made under an agreement, and the property has not yet been delivered, even though only one of the contracting parties may have consented to a release, all of them, however, will be discharged.

The Same, Epitomes of Probabilities by Paulus, Book VI. If you bring suit against me to recover a slave, and he dies after issue is joined, the profits must be estimated during the time that he lived. Paulus says, “I think that this is true only where the slave had not yet become so ill as to render his services worthless; for even if he had continued to live in that state of ill health, it would not be proper for the profits to be estimated during that time”.

Labeo, Epitomes of Probabilities by Paulus, Book VI. Where the promise of a dowry is involved, judgment should be rendered against the party who made it, without reference to his pecuniary resources. Paulus says that this is always true with reference to a stranger, but where a son-in-law claims the promised dowry from his father-in-law, while the connection between them exists, judgment will be rendered against the father-in-law in accordance with the amount which he is able to pay. If he brings an action after the marriage has been dissolved, I think that the amount to be paid will depend upon the circumstances and personal character of the parties. For what if the father-in-law had imposed upon his son-in-law by giving him reason to expect a dowry, when he knew that he was unable to furnish it, and had done this for the purpose of deceiving his son-in-law?

Labeo, Epitomes of Probabilities, by Paulus. If I send a letter to you, it will not become yours until it has been delivered to you. Paulus: I am of the opposite opinion, for if you send your secretary to me, and I send you a letter by way of answer, the letter will become yours as soon as I have delivered it to your secretary. The same thing happens in the case of a letter which I send to you merely as a favor; for instance, if you have asked me to recommend you to someone, and I send you a letter for that purpose. 1If an island in a river belongs to you, none of it is public property. Paulus: The contrary is true, for in this kind of islands, the banks of a river and the shores of the sea are, to a certain extent, public property; and the rule of law is the same with reference to a field which adjoins the bank, or the shore. 2If an island is formed in a public stream, which is near your property, it will belong to you. Paulus: Let us see if this is not false with reference to an island which is not contiguous to the channel of the river, but is suspended by branches, or some other light material, above the stream, so that the soil does not reach it, and the island can change its position. An island of this kind is, to a certain extent, public property, and belongs to the river itself. 3Paulus: If an island which is formed in the river becomes yours, and another island is afterwards formed between the first one and the opposite bank, the measure will be taken from your island, and not from your land on account of which the island became your property; for what difference does it make what the character of the land may be, on account of whose situation the ownership of the last island is claimed? 4Labeo, in the same Book, says that if anything is formed or built in a public place, it becomes public, and that an island which is formed in a public stream should also be considered public property.

Labeo, Epitomes of Probabilities by Paulus, Book III. Paulus: If anyone places a statue in a city with the intention that it shall belong to the city, and afterwards desires to claim it in court, he can be barred by an exception in factum.

Ad Dig. 46,3,91Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 354, Note 5.Labeo, Epitomes of Probabilities by Paulus, Book VI. If your debtor refuses to be released by you, and he is present, he cannot be discharged by you against his will. Paulus: Further, you can release your debtor, if he is present, even without his consent, by substituting for him someone with whom you stipulate for payment of the debt with the intention of making a novation; and even if you do not give him a release, still, so far as you are concerned, the indebtedness is immediately extinguished, since, if you attempt to collect it, you will be barred by an exception on the ground of fraud.

The Same, Epitomes of Probabilities by Paulus, Book VI. If you should return under the right of postliminium, you have not been able to acquire any property by usucaption while you were in the power of the enemy. Paulus: But if your slave should have obtained anything as peculium, while you were in that condition, you can acquire it by usucaption during that time, as we are accustomed to acquire by usucaption property of this kind, even without our knowledge; and in this manner an estate can be increased by a slave forming part of the same, although a posthumous child may not yet have been born, or the estate have been entered upon.

Ad Dig. 22,3,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 113, Note 9.Labeo, Epitomes of Probabilities, by Paulus, Book VII. Where it is the duty of an arbiter to decide a case, should he inquire whether a memorandum of the labor performed exists, or whether anyone remembers that the labor has been performed? Paulus says that when inquiry is made in a case of arbitration, as to whether a memorandum of the labor performed is in existence or not, it ought not to be asked whether anyone remembers the time, or under what consul the work was done, but whether it can be proved in any way whatsoever when it was done. And this should be accomplished, as the Greeks are accustomed to state, in a general way, for it cannot be retained in the memory that the work has been done; for example, within a certain year, since, in the meantime, no one will probably remember under what consuls it was performed. But where the opinion of all persons is that they did not hear of the work being done, or see it, or learn of it from any who might have seen it, or heard of it, and, no matter how far back one may go, no memorandum of the work performed can be found; this will be sufficient.

The Same, Epitomes of Probabilities by Paulus, Book VIII. If anything which our enemies have taken from us is of such a nature that it can return by the law of postliminium, as soon as it escapes from the enemy for the purpose of returning to us and comes within the boundaries of our empire, it should be considered to have returned under the law of postliminium. Paulus: But when a slave of one of our citizens, after having been captured by the enemy, escapes from them, and remains at Rome without either being under the control of his master, or in the service of anyone else, it should be held that he has not yet returned under the law of postliminium.

Labeo, Abridgments of Last Works by Javolenus, Book I. Soundness of mind is required of a testator at the time that he makes a will, but bodily health is not necessary.

Labeo, Abridgments of the Last Works of Javolenus, Book I. Where a father substituted for his son under the age of puberty the same persons whom he appointed his own heirs, and you in addition, you will be entitled to half of the estate of the son, and the other heirs of the father will be entitled to the other half, so that the undivided half will belong to you, and a division of the remaining half will be made in proportion to the shares of the estate of their father to which the others would have been entitled by inheritance.

Labeo, Epitomes of the Last Works of Javolenus, Book II. Ad Dig. 28,7,20 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.A woman who was indebted to her husband for money promised to him by way of dowry, appointed him her heir, “Under the condition that he would not claim or exact the money which she had promised as dowry”. I think that if the husband should notify the other heirs that he is not unwilling to give a release for what was due to him by way of dowry, he will immediately become the heir. If, however, he should be appointed heir under such a condition, I hold that he will, nevertheless, forthwith become the heir, because performance of the condition is impossible, and any such condition must be considered as not having been imposed. 1If anyone should be ordered to manumit a slave belonging to an estate, and to become the heir, even though he should manumit him, and perform an act which is void, he will, nevertheless, become the heir; for while it is true that he manumitted the slave, the freedom granted to the latter after the estate was entered upon will become valid in accordance with the wish of the testator. 2If anyone should appoint you an heir under the condition that you appoint him one, or bequeath something to him, it makes no difference in what degree he has been appointed an heir by you, or what has been left to him, provided you can prove that you have done this in any degree whatsoever.

Labeo, On the Last Epitomes of Javolenus. Where a man had a concubine, and gave her the privilege of using the clothes of a former concubine, and then made a bequest as follows, “I leave her such-and-such clothing which I have purchased, and intended for her,” Cascellius and Trebatius deny that she is entitled to the clothing which was obtained for the first concubine, because a different rule prevails in the case of a wife. Labeo does not adopt this opinion, because, while it is true that in the case of a legacy of this kind the law governing a wife does not apply, the interpretation of the words used by the testator must be considered. The same rule applies to the case of a daughter, or to any other person whatsoever. The opinion of Labeo is correct. 1Where a legacy was bequeathed as follows, “I desire my wife, Titia, to have a share of my estate equal to the smallest one which any one of my heirs may have,” and the shares of the heirs were unequal, Quintus Mucius and Gallus held that the largest share was bequeathed, for the reason that the smaller share is included in the larger. Servius and Ofilius contended that the smallest share was meant, because when the heir was charged with the payment of the legacy, he had the power to give whatever share he chose. Labeo approves this opinion, and it is correct. 2Where a legacy was bequeathed as follows, “Let my heir pay to Seia a sum of money equal to that which I obtained from the estate of Titius,” Labeo thinks that the legacy includes what the testator had entered in his accounts as having been derived from the said estate; but he denies that security should be furnished to the heir by the legatee to protect him, in case the heir should afterwards be required to pay anything on account of the said estate. I, however, hold the contrary opinion, because it cannot be maintained that what the heir will have to pay on account of said estate has actually come into his hands. Alfenus Varus states that this was the opinion of Servius, and it is correct. 3Where a slave has been left to you in general terms, and the heir delivers Stichus to you, and he is evicted, Labeo says that you can proceed against him under the will, because the heir is not considered to have given you any slave, since you were unable to retain the one he gave you. I think that this is correct. But he also says that you should notify the heir of the eviction before instituting proceedings, for, if you did otherwise, an exception on the ground of bad faith could be filed against you in case you brought an action under the will. 4“If my slaves Stichus and Damus are in my possession at the time of my death, let them be free, and let them have for themselves such-and-such a tract of land.” Labeo thinks that if either of said slaves should be alienated or manumitted by their owner, after the will was executed, neither of them would become free. Tubero, however, thinks that the one who remained in the hands of the testator would be free, and be entitled to the legacy. I think that the opinion of Tubero is the one more in conformity with the intention of the deceased.

The Same, On the Last Epitomes of Javolenus, Book II. A testator who had four oil jars made the following bequest: “I bequeath two oil jars which are similar.” I gave it as my opinion that only a pair of jars was bequeathed, as the expression, “Two pairs of jars,” is not the same as “Two similar jars.” Trebatius is of the same opinion. 1Where a testator rented certain public gardens from the State, and bequeathed to Aufidius the produce of said gardens until the expiration of the lease under which they were rented, and charged his heir to pay the rent of said gardens and permit him to enjoy the same, I held that the heir was obliged to permit him to enjoy them, and moreover, that he would also be obliged to pay the rent of said gardens to the State. 2Where it was inserted into a will, “Let my heir pay five aurei to Stichus, my slave, and if Stichus should serve my heir as a slave for the term of two years, let him be free,” I think that the legacy will be due after the lapse of two years, for both it and the grant of freedom should be referred to that time. This was also the opinion of Trebatius. 3If you are charged to sell me a tract of land for a specified price, you will not be at liberty under the terms of said sale to reserve any of the crops of said land, because the price refers to the entire premises. 4Where I directed a party to purchase a tract of land for himself and me, to be held in partnership, and he then divided said land into two portions by boundaries, and, before delivering it to me, he devised it as follows, “I give to So-and-So my tract of land,” I denied that more than half the land was due, because it would not be probable that the testator, when he made the devise, intended that his heir should be charged with the mandate. 5“Let my heir pay two hundred aurei to my wife, while she remains with my son at Capua.” The son left his mother. I was of the opinion that as long as both parties resided at Capua, the legacy would be due to the mother, even though they did not live together. If, however, they should move to some other town, Trebatius says that the legacy would only be due for one year according to the time during which they lived together. Let us see whether a condition was not implied by the words, “While she remains with my son at Capua,” but that they shall be considered as superfluous. I do not adopt this opinion. Still, the legacy should be paid to her, provided it is not her fault if she did not reside with her son. 6If you are charged to deliver a house belonging to another, and you cannot purchase said house on any terms whatsoever, Attius says that the court must make an appraisement of its value, so that the heir may be discharged after the amount has been paid. The same rule applies if you could have bought the house and did not do so.

Labeo, On the Last Epitomes of Javolenus, Book II. A legacy was bequeathed as follows, “Let my heir give to Attia fifty aurei until she marries.” It was not stated that the money was to be paid annually. Labeo and Trebatius think that the entire sum is immediately due. It is, however, more equitable to hold that the legacy is payable annually. 1“Let my heir give to Attius, every year, two measures of Falernian wine which are to be taken from my estate.” It was held that the two measures of wine should be furnished even for a year when no wine was made, provided they could be obtained from the vintage of former years.

Labeo, On the Last Epitomes of Javolenas, Book II. Where anyone has a tract of land in common with you, and leaves the usufruct of said land to his wife, and, after his death, his heir applies to the court for partition of the land; Blæsus says that it was held by Trebatius that, if the judge should divide the land into different portions, the usufruct of the part allotted to you would not, under any circumstances, be due to the woman, but she would be entitled to the usufruct of the entire share assigned to the heir. I think this opinion is incorrect, for if, before the judgment was rendered, the woman was entitled to the usufruct of the undivided half of the entire tract of land, the judge could not, in deciding between the parties, prejudice the rights of the third. This last decision is the one adopted.

Labeo, On the Last Epitomes by Javolenus, Book II. Where the following was inserted into a will, “Let my heir give to my wife the sum of fifty aurei, which came into my hands through her and as much more in lieu of her dowry,” Alfenus Verus says that Servius was of the opinion that, although the dowry was only composed of forty aurei, fifty were, nevertheless, due, because an additional sum of fifty was added. 1Likewise, where a husband made a bequest to his wife, who had not brought him any dowry, in the following terms, “Let my heir give the sum of fifty aurei, instead of the money which I received from my wife by way of dowry,” Ofilius, Cascellius, and the pupils of Servius assert that the legacy is due to her; and hence it must be considered similar to the case where a slave, who is dead, has been bequeathed to someone, or a hundred aurei has been left in his stead. This is correct, because by these words not the dowry itself, but money in lieu of it is held to have been bequeathed.

Labeo, Epitomes of the Last Works of Javolenus, Book II. It is stated in the First Book of Aufidius, that when a bequest was made as follows, “Let him take and have for himself any coverings for table-couches which he may wish,” if he mentioned those he wanted, and then, before he took them, should say that he wanted others, he cannot change his mind and take the others; because he had disposed of his entire right of selection under the legacy by his first statement, in which he indicated those which he would take, as the articles become his immediately, just as if he had said that he would take them.

Labeo, Last Epitomes by Javolenus, Book II. A master manumitted his slave by his will, and left him his peculium. The slave owed his master a thousand sesterces, and paid them to the heir. I rendered the opinion that all the property composing the peculium was due to the enfranchised slave, if he had paid the money which he owed. 1A master manumitted his slave, who held a sub-slave in common with him, left the former his peculium, and then bequeathed specifically the sub-slave himself, who was held in common by them, to him and to his freedwoman. I held that a fourth part of the slave would belong to the freedwoman, and that the remaining three-fourths would belong to the freedman; which is also the opinion of Trebatius.

Labeo, Epitomes of the Last Works of Javolenus, Book II. A certain man left a large dish, one of medium size, and one still smaller, as follows: “I bequeath to So-and-So my smaller dish.” It was held that the dish of medium size was bequeathed, if it did not appear which dish the testator intended to designate.

Labeo, Epitomes of the Last Works of Javolenus, Book II. Where the daughter, granddaughter, great-granddaughter, or wife of the deceased, is not married, and has no property of her own, and has been placed in possession of the estate to insure the payment of legacies, she can use the property of said estate for her support.

Labeo, Epitomes of the Last Works of Javolenus, Book III. Where a legacy is bequeathed to a female ward, to take effect when she marries, and she should marry before being nubile, she will not be entitled to the legacy before she reaches the marriageable age; because a girl cannot be considered to be married when she is incapable of cohabitation.

Labeo, Last Works, Abridged by Javolenus, Book IV. I think that where anyone sells land, a servitude can be imposed upon it, even if it is not useful to him; for example, where a party would have no interest in a water-course, such a servitude can nevertheless be created, as there are certain things which we can have, even though they are of no advantage to us.

Labeo, Last Works, Epitomes of Javolenus, Book IV. It was stated in a contract that certain water-pipes referred to in a sale belonged to the purchaser. The question arose whether the building from which the water was conducted by the pipes was an accessory? I answered that it appeared that the intention was that it should be an accessory, although this was not contained in the written instrument. 1You purchased a tract of land from a certain person, the guardianship of whose son you afterwards administered, but you did not obtain possession of said land. I stated that possession could be delivered to you by causing the ward and his family to leave the premises, and that then you could enter into possession of the same. 2A man purchased a tract of land under the condition that possession of it should be delivered to him as soon as the price was paid. He died leaving two heirs, if one of them should pay the entire sum, he could retain his share in an action in partition; but if he only paid a part of the price, he could not bring an action on purchase against the vendor, since a debt contracted in this way cannot be divided. 3Where you sell grain which is uncut, and agree to make good any loss sustained by force, or by bad weather, and the said grain is destroyed by snow; if the fall was very great, and more than what usually took place at that season, an action on purchase can be brought against you.

Labeo, Last Works, Epitomes of Javolenus, Book IV. You sold your right of succession to the estate of Cornelius; then Attius (to whom Cornelius bequeathed a legacy with which you, as heir, were charged) before he received the legacy from the purchaser, died, making you his heir. I think that an action on sale can properly be brought by you in order that payment of the legacy may be made to you, because the right of succession was sold at a lower price in order that the purchaser might pay the legacy; nor does it make any difference whether the money was due to Attius, who appointed you his heir, or to the legatee.

Ad Dig. 19,1,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 3.Labeo, Later Epitomes by Javolenus, Book IV. Good faith does not tolerate that, where a buyer, through the indulgence of some law, is not compelled to pay the price of the property purchased before it is delivered to him, the vendor shall be compelled to deliver it, and relinquish possession of the same. Where, however, possession has already been delivered, the result will be that the vendor will lose the property; for example, where the purchaser opposes the vendor, who claims the property, with an exception on the ground of sale and delivery; and hence the case will be the same as if the claimant had not either sold or delivered the property to him.

Labeo, Later Epitomes by Javolenus, Book IV. Where, however, the tenant still makes use of the house, he must pay the rent. 1Labeo thinks that the rent is due, even if the house is out of repair. 2The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease.

Labeo, Later Epitomes by Javolenus, Book IV. You leased an entire house for a gross sum, and then sold it under condition that the rent of the tenants should belong to the purchaser. Even though the lessee may have sub-let the said house for a larger amount, it, nevertheless, will belong to the purchaser, because the lessee owed it to you. 1It was stated in a contract for labor that it should be performed before a certain day, and then, if this was not done, the lessee should be liable to an amount equal to the interest of the lessor. I think that this obligation is contracted to the extent that a good citizen would fix the damages with reference to the time; because the intention of the parties seems to have been that the work should be completed within the time during which it could be done. 2A certain individual rented a bath in a town for forty drachmæ a month, and it was agreed that he should be furnished a hundred drachmæ for the repair of the furnace, the pipes, and other portions of the bath, and the lessee demanded the hundred drachmæ. I think that they were owing to him, if he gave security that the money would be expended for repairs.

Labeo, Last Works, Book IV. If a slave whom you have purchased demands his freedom, and an unjust decision is rendered in his favor by the judge, and the master of the said slave makes you his heir, after the case has been decided against you, or the slave becomes yours in any other way, you can again claim him as yours; and the rule relating to res judicata cannot be pleaded against you. Javolenus says this opinion is correct.

Labeo, Last Works, Epitomes of Javolenus, Book V. Where a vendor in a sale reserves all crops which have been sowed by hand, those which have been permanently planted are not held to have been reserved, but only such as are usually sowed every year, in order that their yield may be gathered; for, if this was interpreted otherwise, all vines and trees would be held to have been reserved. 1I stated that a purchase could not be made of property in the following terms, namely: “I shall enjoy the right to have my house project over yours,” and that on this account an action on purchase can be brought. 2The right to cut wood was sold for the term of five years, and the question arose to whom the acorns which might fall would belong? I am aware that Servius gave it as his opinion that what appeared to be the intention of the parties must be followed in this instance. If, however, this cannot be ascertained, any acorns which fell from trees, which were not cut down will belong to the vendor, and those which remained on the trees which were cut down, will be the property of the purchaser. 3No one can be held to have sold property whose ownership is in question, unless it was delivered to the purchaser; for this is either a lease, or some other kind of a contract.

The Same, Later Epitomes by Javolenus, Book V. Ad Dig. 19,1,51 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 13.Where the purchaser and the vendor are both in default with reference to the delivery and acceptance, the result will be the same as if the purchaser alone was responsible. For the vendor cannot be held to be in default with reference to the purchaser, when the latter himself is also guilty of delay. 1Ad Dig. 19,1,51,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 323, Note 9.Where you purchased a tract of land under the condition that you would pay the purchase-money on the Kalends of July; even though, when the time had expired, the vendor was at fault for the money not being paid to him, and afterwards you were to blame for not paying it; I stated that the vendor could avail himself of the condition stated in the contract, as against you; because in making the sale it was the intention of the parties that if the purchaser was in default for non-payment of the money, he would be liable for the penalty mentioned in the contract. I think this opinion to be correct, unless the vendor was guilty of fraud in the transaction.

Labeo, Last Epitomes by Javolenus, Book V. Where a house is rented for several years, the lessor must not only permit the lessee to occupy it from the Kalends of July of each year, but also to sub-let the same during the term of his lease, if he desires to do so. Therefore, if the said house remains in a dilapidated condition from the Kalends of January to the Kalends of July, so that no one can occupy it, and it cannot be shown to anyone; the lessee will not be obliged to pay any rent to the lessor. Nor, indeed, can he be compelled to occupy the house, if it has been repaired after the Kalends of July, unless the lessor was ready to furnish him another house suitable for his residence. 1I think that the heir of a lessee, even though he may not be a tenant, will, nevertheless, hold possession for the owner of the property. 2If a fuller loses your clothing, and you have the means to recover it, but do not wish to avail yourself of them; you can, nevertheless, bring an action on lease against the fuller. The judge, however, must decide whether it will not be better for you to bring an action against the thief and recover your property from him; of course, at the expense of the fuller. But if he should consider this to be impossible, he must then render judgment in your favor against the fuller, and compel you to assign your rights of action to him. 3An agreement having been entered into, a house was contracted for under the condition that it should be subject to the approval or disapproval of the owner, or his heir. The contractor, with the consent of the other party, made certain changes in the work. I have it as My opinion that the work did not seem to have been performed in compliance with the terms of the contract, but since the changes had been made with the consent of the owner, the contractor should be released. 4I directed you to make an estimate of the amount you would ask to build a house, and you answered me that you would build it for two hundred aurei. I gave you the contract for a certain sum, and I afterwards ascertained that the house could not be built for less than three hundred aurei. I had already paid you a hundred, a part of which you had expended, and I then forbade you to proceed with the work. I held that if you continued to do the work, I would be entitled to an action on lease against you, to compel you to refund to me the remainder of the money. 5You remove a harvest, while the tenant is looking on, when you are aware that it belongs to someone else. Labeo says that the owner can sue you for the grain, and that the tenant has a right, under his lease, to bring an action against the owner to compel him to do so. 6The lessor of a warehouse had posted upon it that he would not receive deposits of gold, silver, or jewels at his own risk, and afterwards he, knowingly, allowed articles of this kind to be left in said warehouse. Hence, I stated that he would be liable to you just as if the clause in the notice had been erased. 7Ad Dig. 19,2,60,7BOHGE, Bd. 1 (1871), S. 253: Verantwortlichkeit des Principals für den zugewiesenen Gehilfen.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 5.You employed a slave of mine who was a muleteer, and you lost a mule through his negligence. If he hired himself, I hold that I must make good the damage to you on the ground of property employed for my benefit, but only to the extent of the peculium of the slave. If, however, I myself leased him, I will not be responsible to you for anything else than fraud and negligence. But if you leased a muleteer from me without the designation of his person, and I deliver to you the one by whose negligence the animal perished, I say that I must be responsible to you for negligence, because I selected the slave who caused you loss of this kind. 8You hired a vehicle to carry your baggage and make a journey, and when a bridge was crossed, and the keeper demanded toll, the question arose whether the driver should pay toll for his carriage alone. I think that, if he knew when he hired his vehicle that he would cross the bridge, he should pay the toll. 9I hold that the lessee of an entire warehouse should not be responsible to the proprietor of the same for the custody of property, for which the proprietor himself should be liable to those who rented of him, unless it was otherwise agreed upon in the lease.

Labeo, Later Epitomes by Javolenus, Book V. Where it is agreed upon between you and your tenant that whatever property he brings upon your land shall be considered pledged until the rent is paid to you, or you are satisfied in some other way, and you then accept a surety from the tenant for the payment of the rent, I think that you are satisfied, and therefore that the personal property brought on your land by the tenant ceases to be encumbered.

Ad Dig. 3,5,42ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Labeo, On the Last Epitomes by Javolenus, Book VI. When you pay money in the name of a party who did not specially direct you to do so, you will be entitled to an action based on business transacted; since by that payment the debtor was discharged by his creditor, unless the debtor had some interest in not having the money paid.

Labeo, Last Epitomes of Javolenus, Book VI. Your slave deposited, in sequestration, a certain sum of money with Attius at the house of Mævius, on condition that it should be delivered to you if you proved that it was yours, but if you did not, that it should be delivered to Attius. I stated that suit could be brought for an unascertained amount against him with whom the money was deposited, that is, for its production, and having been produced, an action could be brought for its recovery, because your slave, in making the deposit, could not prejudice your rights.

Labeo, Abridgments by Javolenus, Book VI. Whenever a partnership is formed by the direction of anyone, either with the son of the latter or with another person, a direct action can be brought against the one who was in view when the partnership was formed.

Labeo, Epitomes of the Last Works of Javolenus, Book VI. A grandfather gave a dowry for his granddaughter, the daughter of his son, to his son-in-law, and then died. Servius denies that the dowry reverts to the father, and I agree with him, because it cannot be held to be derived from him, as he never owned any of the property. 1A father promised a hundred aurei to his daughter, by way of dowry, on condition that it should be paid when perfectly convenient. Ateius says that Servius gave it as his opinion, that the father should pay the dowry as soon as he could do so without subjecting himself to dishonor and infamy.

Labeo, Epitomes of Last Works, by Javolenus, Book VI. Where a man makes a donation to a woman who is not yet marriageable, I think that it will be valid.