Paulus, On Sabinus, Book VI. Proculus says that a pipe attached to a party-wall, and which carries water from a cistern, or from the sky, is something which cannot legally exist; but that a neighbor cannot be prevented from having a bath-room against a wall of this kind, even though the wall might become damp; any more than he could be prevented from pouring out water in his own dining or bed-room. Neratius, however, says that the neighbor can be prevented from doing this, if the apartment was used for warm baths, so that it kept the wall constantly damp, and this was a source of injury to his neighbor. 1Where a room of earthenware is built against a party-wall, it can legally exist if it is so constructed that it will remain even if the party-wall is removed, provided it does not interfere with the repairs of the same. 2Sabinus says very properly that I can have a stairway against a party wall because it can be removed.

Paulus, On Sabinus, Book VI. Where one of several joint-owners stipulates for a right of passage through land held in common, the stipulation is void, as the right can not be given him; but where they all stipulate, or a slave owned in common by them does so, each of the joint-owners can bring an action asking that the right of way be granted him, because this can be granted by you to all of them in this manner; lest if the stipulator for the right of way should die and leave several heirs, the stipulation may become of no effect.

Paulus, On Sabinus, Book VI. Proceedings may be instituted for the partition of land held in common by co-heirs in such a way that only the property which is held in common and matters relating to it which are pending in court shall be included; but with reference to all other things the right of action for the partition of the estate remains unimpaired. 1Where an action for the partition of an estate or for the division of property held in common has been tried; the Prætor will sustain any decisions made by the Court by granting exceptions or actions. 2Where co-heirs have sold property while one of their number was absent, and in the transaction have managed fraudulently to obtain more than they were entitled to, they can be compelled to indemnify the party who was absent, either by an action for partition or by a suit for the estate. 3Any of the profits which an heir takes from the funds of an estate before it has been entered upon, Julianus says he will not have to surrender in an action for partition; unless when he took the same he knew that the land belonged to the estate. 4Parties who bring actions for the partition of an estate, or for the division of common property, or for the establishment of boundaries are both plaintiffs and defendants; and therefore they must swear that they have not instituted proceedings for the purpose of annoyance, and do not make a defence with the intention of causing unnecessary trouble. 5Where one of several co-heirs, on account of a stipulation relating to the estate, makes a payment through his own act, he cannot recover the amount from his co-heir; as, for instance, where the deceased promised that no malicious fraud should be committed by himself or by his heir, and that nothing should be done either by himself or by his heir which would prevent anyone from walking or driving over a road; and, in fact, even where the remaining heirs became liable through the act of one, for the reason that the condition of a stipulation relating to the estate is fulfilled, they will be entitled to an action for the partition of the estate against the party through whom the stipulation became operative. 6Where anyone stipulates that Titius and his heir shall ratify some act of his, and Titius dies leaving several heirs, he alone will be liable who neglected ratification; and, among the heirs of the party stipulating, he alone who has been sued can institute proceedings to enforce the liability. 7Where an usufruct is bequeathed to a widow “until her dowry shall be paid to her;” then, Cassius says that whatever is paid to her by way of dowry on behalf of a co-heir can be recovered by order of the arbiter in an action for partition, and the co-heir can be made to pay his share of the dowry; and this opinion is correct. 8Where two co-heirs have been charged to erect a statue, and one of them neglects to do so but the other erects it; Julianus says that it is not unjust to grant an action in partition, so that a part of the expenses may be paid, the amount of which would be approved by a good citizen.

Ad Dig. 10,3,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 142, Note 4.Paulus, On Sabinus, Book VI. A tree which grows up on a boundary line and also a stone which extends over two tracts, so long as they are attached to the soil belong to both owners, according to the position they occupy over the land of each; and they will not be included in an action for the partition of common property. But as soon as the stone is removed, or the tree uprooted or cut down, it becomes common and undivided property, and will be included in action for the partition of such property; for what was formerly in separate parts is now merged. Wherefore, where two masses of any substance belonging to two owners are mixed together, the entire mass is common property, even though some portion of the substance, as it was in the first place, exists separately; and so, also, where a tree or a stone are separated from the soil, the rights of ownership are merged. 1An arbiter for the purpose of dividing common property should not be appointed with reference to a vestibule, which is common to two houses, where either of the parties are unwilling; because where anyone is compelled to bid for such a vestibule, he necessarily will sometimes be obliged to pay the value of the entire house, if it has no other entrance. 2Where a right of way through the same place belongs to two of us, and one has incurred some expense with reference to it; Pomponius says rather harshly that either an action for partition or one on partnership will lie; for how can joint ownership be understood to exist in something which the parties use separately? A suit should be brought on the ground of business transacted. 3The judge who presides in an action for the partition of common property as well as in one for the partition of an estate, where a slave has taken to flight, must direct the parties who are before him to bid, and should then adjudge the slave to him who bids the highest; and there will be no danger that the penalty prescribed by the Lex Fabia will be incurred on account of the decree of the Senate. 4A watercourse is said by Labeo not to be included in an action for the partition of common property; for it is either a part of the land—and hence should not be considered in the trial—or it is separated from the land but is divided either with reference to the quantity or the time when it is to be used. Sometimes, however, rights may be separated from the land and still not be divided either by quantity or by periods of use; as, for instance, where the party to whom they belonged left several heirs, and, when this happens, it is suitable that these things also should be included in an action for partition; for Pomponius says that he does not see why they should not be included in an action for the partition of common property as well as in that of the partition of an estate. Therefore, in instances of this kind, they are also included in an action for the division of common property, just as the aforesaid rights are divided either by quantity or by periods of time.

Paulus, On Sabinus, Book VI. Where a third party pays a wife on account of a husband who is insolvent, he cannot bring suit to recover the money, since it is, to all intents and purposes, a debt due to the wife.

Paulus, On Sabinus, Book VI. Profit is understood to be whatever is derived from the industry of each of the partners.

Paulus, On Sabinus, Book VI. And for the reason that very often an inheritance passes to us as a debt from a parent or from a freedman.

Paulus, On Sabinus, Book VI. A debt due to a partner is not included in the capital of the partnership, unless it is derived from the profit obtained by one of the partners.

Paulus, On Sabinus, Book VI. A partner who alienates property under such circumstances violates the agreement relative thereto, and is liable to an action on partnership, or for the division of property held in common. 1Ad Dig. 17,2,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 306, Note 10; Bd. II, § 307, Note 3.If a partnership is dissolved in the absence of a partner, the ownership remains in common until the latter ascertains what he who withdrew from the partnership has acquired, for any loss should be borne by him alone who withdrew; but what the absent partner may have acquired belongs exclusively to him, and any loss resulting therefrom must be apportioned in common. 2In the formation of a partnership, nothing is gained by the partner giving security not to withdraw; because an inopportune withdrawal causes liability for damages by operation of law, in an action on partnership.

Paulus, On Sabinus, Book VI. A partner is none the less liable for any loss suffered by his fellow-partners on account of his negligence; even though the value of the partnership property may have been increased in many other ways by his industry. The Emperor Antoninus rendered this decision in a case brought before him on appeal.

Paulus, On Sabinus, Book VI. All debts contracted during the existence of the partnership must be paid out of the common fund, even though payment was not made until after the partnership has been dissolved. Therefore, if a partner entered into a contract under a condition, and the condition took place after the partnership had been dissolved, the indebtedness must be discharged out of the common property. Hence, if the partnership is dissolved in the meantime, security should be furnished to one another by the partners.

Paulus, On Sabinus, Book VI. Mucius states in the Fourteenth Book, that a partnership cannot be formed in such a way that one partner will suffer a certain part of the loss, and another receive a different share of the profit. Servius says in his Notes on Mucius, that such a partnership cannot legally be formed, for that only is understood to be profit which remains after all loss has been deducted, nor does loss exist unless all the profit has been previously deducted. A partnership can, however, be formed in such a way that different amounts of the profits remaining in the funds of the partnership, after all loss has been deducted, can be paid to the partners; and, in like manner, where loss has been sustained, different shares of it may be apportioned among the several partners.

Paulus, On Sabinus, Book VI. And he must also make good the effects of any negligence of the party of whom he is the lawful successor, even though he himself may not be a partner.

Paulus, On Sabinus, Book VI. Ad Dig. 17,2,38 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 13.The arbiter in an action on partnership should see that security is given for future loss or gain during the existence of the partnership. Sabinus thinks that this should be done in all bona fide cases, whether they are in general terms, for example, such as arise from partnership, or from voluntary agency, or from guardianship; or whether they are of a special character, as, for instance, where they are based on mandate, on loan for use, or on deposit. 1If you and I have formed a partnership, and the property derived from it is held in common, Proculus says that I can recover any expense I may have incurred on account of said property, and any profit you may have obtained from the same, by an action on partnership, or by one for the division of common property; and that one of these actions puts an end to the other.

Paulus, On Sabinus, Book VI. The same rule also applies to a tenant, and to a party who is transacting the business of another, as well as to one who is executing a mandate of ours, and to a guardian.

Paulus, On Sabinus, Book VI. But he will, nevertheless, also be liable to an action on partnership,

Paulus, On Sabinus, Book VI. The result of bringing the action on partnership is that the partner must be satisfied with one or the other of the two proceedings; because both have in view the recovery of the property, and not, as in an action for theft, merely the collection of the penalty.

Paulus, On Sabinus, Book VI. Nor does it make any difference whether the partner is compelled to surrender the property obtained by theft while the partnership is still in existence, or after it has been dissolved. The same rule applies to all actions which arise from dishonorable conduct, as, for instance, those based on injury, robbery with violence, the corruption of slaves, and others of this kind, as well as to all pecuniary penalties imposed in prosecutions for crime.

Paulus, On Sabinus, Book VI. Incestuous marriages confer no right of dowry, and therefore the husband can be deprived of everything which he receives, even though it comes under the head of profits.

Paulus, On Sabinus, Book VI. When the usufruct is added to the mere ownership given by way of dowry, it is held that this is an increase of the dowry and not a second one; just as where there is an accession made by alluvion.

Ad Dig. 26,7,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 439, Note 7.The Same, On Sabinus, Book VI. When, in an action on guardianship, the question arises what loans made by the guardian for the ward should be acknowledged; Marcellus thinks that if the guardian lent money belonging to his ward, and stipulated in his name, the claims which are considered to be good will belong to the ward, and those which are bad and improperly contracted will belong to the guardian. It is, however, held to be the better opinion for the guardian to leave the choice to the minor, in order that the latter may either accept or reject all which was done by the guardian with reference to the claims, so that it will be the same as if the guardian had transacted the business for himself. This rule also applies where the guardian lent money in the name of his ward.

Paulus, On Sabinus, Book VI. Payment cannot be made to a ward without the authority of his guardian. He cannot delegate a debtor, because he cannot alienate anything. If, however, the debtor has paid him, and the money is safe, upon the demand of the ward for payment a second time, the debtor can bar him by an exception on the ground of fraud.