Proculus, Epistles, Book II. Where anyone induces my slave to abandon possession of my property, the possession of the same is not actually lost; but an action on the ground of fraud will lie against the party in question, if I have suffered any loss.

Proculus, Epistles, Book II. A certain Hiberus, who owns a building in the rear of my warehouse, built bathrooms against the party-wall; although it is not lawful for anyone to conduct pipes along a party-wall, just as he has no right to build another wall over it; and the law applies with much more force to pipes, because, by means of them, the wall may be burned. I wish that you would speak to Hiberus about this, in order to prevent him from doing what is illegal. Proculus answered, “I do not think that Hiberus has any doubt in this instance that he is doing something which is not allowed in placing pipes along a party-wall”. 1According to the opinions of Capito, it is permitted to encrust a party wall with ornamental stucco, as I can have very valuable paintings on a wall of this kind; but if my neighbor demolishes the wall, and proceedings are instituted for the prevention of threatened injury, on a stipulation, paintings of this description cannot be appraised any higher than ordinary plaster; and this rule must also be observed with reference to decorative encrustation.

Proculus, Epistles, Book II. “Let Cornelius or Mævius, whichever one of them may desire to have my estate, be my heir.” Trebatius holds that neither of them is the heir, but Cartilius maintains that both of them are heirs. Whose opinion do you adopt? Proculus, I agree with Cartilius, and think that the addition, “Whichever one of them may desire to have my estate”, is superfluous; for if this addition had not been made, the result would be that whichever of them wished to take under the will would be the heir, and that the one who was not willing would not be. If, however, these parties were included in the number of necessary heirs, then this clause would not have been added in vain; and it would not only prevent the appearance, but would also have the effect of a condition; still, I would say that both of them would be heirs, if they desired to be.

Proculus, Epistles, Book II. A man bequeathed his wine and the vessels containing it. Trebatius denies that any wine, which is in casks, is included; and he holds that the intention of the testator was different from what is expressed in his words, and, moreover, casks are not classed as wine vessels. Although casks are not included in the term “wine vessels,” still, I do not agree with Trebatius in his opinion that the wine included in the casks, that is to say, which is not in vessels, is not bequeathed. I think, however, that it is true where wine is bequeathed to anyone with the vessels, that the measures and jars into which it is drawn are also bequeathed to the legatee; for we pour out wine into jars and measures, in order that it may remain in them, until we require it for use; and, again, we sell it together with said jars and measures. We place it in casks, however, with a different intention, that is to say, in order to draw it out of them into jars and measures, or to sell it without the casks.

Proculus, Epistles, Book II. A wild boar was caught in a trap which you set for the purpose of hunting, and after he was caught, I released him, and carried him away; is it your opinion that I have taken away your wild boar? And if you thought that it was yours, and I should release him and let him go into the woods, would he, in this instance, cease to be yours, or would he still remain your property? If he ceased to be yours, I ask what action you would be entitled to against me, and whether it would be necessary for an action in factum to be granted? The answer was, that we should first take into consideration the trap, and whether it does not make a difference if I set it on public or on private land; and if I set it on private land, whether I did so upon my own or upon that of another, and if I set it upon that of another, whether I did so with the permission of the owner of the said land, or without it. Moreover, it should be considered whether the wild boar was caught in the trap in such a way that he could not release himself, or whether, by struggling longer, he might have been able to escape. I think the conclusion should be that if the wild boar was under my control he became my property; but if you, by your act, restored him to his natural freedom, he ceased to belong to me; and I would be entitled to an action in factum; as was decided in a case where a person threw a cup belonging to another from a ship into the sea.

Ad Dig. 45,1,113Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 2.Proculus, Epistles, Book II. When I stipulate for myself as follows: “Proculus, if the work is not completed, as I desire it to be, before the Kalends of June, do you promise to pay such-and-such a sum by way of penalty?” and I extend the time; do you think that it may be said that the work has not been done, as I wished it to be, before the Kalends of June, when I, myself, voluntarily gave more time for its completion? Proculus replied that it is not without reason that a distinction should be made whether the promisor was in default in not finishing the work before the Kalends of June, as was agreed upon in the stipulation; or, whether, as the work could not be completed before that date, the stipulator extended the time to the Kalends of August. For if the stipulator extended the time when the work could not be completed before the Kalends of June, I think that the penalty would attach; for it makes no difference if some time had passed before the Kalends of June, during which the stipulator did not desire that the work should be finished before that date; that is to say, that he did not expect something to be done which could not be done. Or, if this opinion is incorrect, even if the stipulator should die before the Kalends of June, the penalty will not be incurred; as being dead, he could not signify his wishes, and some time would remain after his death for the completion of the work. And I am almost inclined to believe that the penalty would be incurred, even if enough time to complete the work was not left before the Kalends of June. 1When anyone sells something, and promises to furnish sureties to the purchaser, and guarantees the property sold to be free from encumbrance, and the purchaser desires the property to be free from all liens, and he who promised that it should be under the stipulation is in default; I ask, what is the law? Proculus answered that the vendor will be responsible to the extent of the plaintiff’s interest, in accordance with the amount of damages assessed in court.

Proculus, Epistles, Book II. The following words, “So-and-So or So-and-So,” are not only disjunctive, but subdisjunctive in their signification. They are disjunctive; for example, when we say, “It is either day or night,” for having suggested one of two things, the other is necessarily impossible, since to suppose one disposes of the other. Therefore, by a similar form of words, an expression can be subdisjunctive. There are, however, two kinds of subdisjunctives; one where in a proposition both things cannot be true, and neither of them may be; as, for instance, when we say, “He is either sitting or walking,” for as no one can do both these things at the same time, neither of them may be true, for example, if the person should be lying down. The other kind of disjunctive occurs in a statement where of two things neither may be true, but both of them can happen to be; for instance, when we say “Every animal either acts or suffers,” for there is no animal which neither acts nor suffers, but an animal may act and suffer at the same time.