1Ulpianus, On the Edict, Book I. The following words, “If anyone,” include males as well as females.

2Paulus, On the Edict, Book I. The term “city” includes all that is surrounded by its walls; but the city of Rome is terminated by its buildings, which extend still farther. 1The greater part of the day includes the first, not the last, seven hours.

3Ulpianus, On the Edict, Book II. When twenty thousand paces are traversed each day in making a journey, this must be understood to mean that, if, after this enumeration, less than twenty thousand remain, they are considered an entire day of travel; as, for example, where a person travels twenty-one thousand paces, this is counted as two days’ journey. This enumeration, however, should only be made where nothing has been agreed upon as to what constitutes a day’s journey. 1Anyone who dies in the hands of the enemy is not held to have left an estate, because he dies a slave.

4Paulus, On the Edict, Book I. Proculus says that by the term “obligation” property is meant.

5The Same, On the Edict, Book II. The word “property” has a broader signification than that of “money,” because it also includes things which are not embraced in our patrimony; and the term “money” only has reference to what is included in a patrimonial estate. 1Ad Dig. 50,16,5,1ROHGE, Bd. 11 (1874), Nr. 51, S. 158: Merkmal des Werkverdingungsvertrages.Labeo says that by the terms “hiring and leasing of services” only those services are meant which are called by the Greeks apotelesma, and not ergon, that is to say, something which has been perfected by labor performed.

6Ulpianus, On the Edict, Book III. The terms “claim” and “property” refer to all contracts and obligations. 1The expression, “According to the laws,” must be understood to mean the spirit as well as the letter of the law.

7Paulus, On the Edict, Book II. By the word “engagement” is meant not only what a person agrees to after interrogation, but every stipulation and promise.

8The Same, On the Edict, Book III. The clause, “It will be necessary,” applies to the present, as well as to the future time. 1Exception is not included in the term action.

9Ulpianus, On the Edict, Book V. Marcellus, in a note on Julianus, says that anything which has been torn, broken, or taken by force is included in the term “destroyed.”

10The Same, On the Edict, Book VI. It is established that creditors should be understood to be those to whom something is due and collectible by any action or prosecution, or under the Civil Law, without the power of preventing its recovery either by pleading a perpetual exception, or by taking advantage of Prætorian Law, or of any extraordinary proceeding; whether the indebtedness is absolute, or is to be discharged within a certain time, or under some condition. When the debt is due under natural law, they do not, properly speaking, occupy the place of creditors. If, however, the claim should not be based upon money lent, but upon a contract, they are still understood to be creditors.

11Gaius, On the Provincial Edict, Book I. By the appellation of “creditors,” not only those are understood who have loaned money, but all to whom anything is due for any reason whatsoever.

12Ulpianus, On the Edict, Book VI. For instance, where anything is due to a person on account of a purchase, a lease, or any other transaction, or even because of a crime, it seems to me that he can be held to be a creditor. When, however, the indebtedness arises from some public proceeding, he cannot be said to occupy the place of a creditor before issue has been joined, but he can afterwards. 1He who is in default pays less than he owes, for less is paid when the time of settlement is deferred.

13The Same, On the Edict, Book VII. A marriageable virgin is also included in the term “woman.” 1Property is considered to have been lost (according to the opinion of Sabinus, which Pedius adopts), even if the substance of it remains, though the form is changed. Therefore, if property is returned spoiled or altered, it is considered to have been lost; as the workmanship is generally of more value than the article itself. 2Property which has been lost is considered to cease to be in that condition when it comes under our control in such a way that we cannot again lose possession of it. 3An example of this is where anything has long since been taken from us by theft. Property is also considered lost when it is no longer in existence.

14Paulus, On the Edict, Book VII. Labeo and Sabinus think that if clothing is returned torn, or any article is returned spoiled, as, for instance, a cup with the edge crushed, or a tablet with a painting erased, the property is said to be lost; because the value of such articles does not consist of the materials of which they are composed, but in the skill expended upon them. Likewise, if an owner ignorantly purchases property which has been stolen from him, it is very properly said to have been lost, even if he should afterwards ascertain the fact; because where the value of anything is lost, the thing itself is considered to be lost. 1A person is considered to have lost something when he cannot bring an action against anyone to recover it.

15Ulpianus, On the Edict, Book X. Property belonging to a city is improperly styled public, for only those things are public which belong to the Roman people.

16Gaius, On the Provincial Edict, Book III. We style him publican who leases the collection of the taxes of the Roman people. The term “public” has in many instances reference to the Roman people, for cities are in this respect considered as private individuals.

17Ulpianus, On the Edict, Book X. We include among public property not only such as is sacred and religious, and intended for the use of the people, but also that of towns, and the peculia of slaves belonging to the latter are undoubtedly considered public property. 1We must understand public taxes to mean those which the Treasury levies on certain articles, among which are the tax on merchandise in a harbor, or goods which are sold, as well as those on salt-pits, mines, and places where pitch is produced.

18Paulus, On the Edict, Book IX. The word munus is defined in three different ways: first, as a donation, and hence are derived the terms to bestow, or send gifts; second, a position which, when anyone is released from it, affords exemption from military service and civil employment, whence is derived the term “immunity;” third, an office, whence are derived military occupations, and certain soldiers are designated munifices. For this reason persons who assume civil employments are called municipal officials.

19Ulpianus, On the Edict, Book XI. Labeo, in the First Book On the Urban Prætor, defines the terms “to act,” “to transact,” and “to contract,” as follows. He says that the word act has a general application, and refers to anything which is done verbally, or with reference to the thing itself; for example, in stipulation or enumeration. A contract, however, has a broader meaning than that of an obligation, which the Greeks style an agreement, as, for instance, purchase, sale, hiring, leasing, partnership. The term “to transact” signifies to do something without words.

20Ad Dig. 50,16,20Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 2.The Same, On the Edict, Book XII. The expressions, “they contracted,” and “they transacted,” do not refer to the right of making a will.

21Paulus, On the Edict, Book XI. When the Emperor grants the possession of property, he is also considered to grant any obligations attaching to it.

22Gaius, On the Provincial Edict, Book IV. There is more included in the term “restitution” than in that of production; for to produce means to bring forward corporeal property, and to restore is to place someone in possession, and surrender the profits. Many other things are also included in the term “restitution.”

23Ulpianus, On the Edict, Book XIV. Under the term “property” are also included legal action and various rights.

24Gaius, On the Provincial Edict, Book VI. The term “inheritance” means nothing else than the right to succeed to everything which the deceased possessed.

25Paulus, On the Edict, Book XXI. We very properly say that a tract of land entirely belongs to us, even when another is entitled to the usufruct of the same; for the reason that the usufruct does not constitute a part of the ownership, but of a servitude, as, for instance, a right of way, or a right of passage. Nor is it incorrect to say that something is entirely mine, when no part of it can be said to belong to another. This was the opinion of Julianus, and it is correct. 1Quintus Mucius states that by the term “part” an undivided share in something is meant; for after property has been divided not a part, but all of it is ours. Servius very properly holds that the term “part” is applicable to both the above-mentioned cases.

26Ulpianus, On the Edict, Book XVI. Scævola, in the Eleventh Book of Questions, says that the child of a slave who has been stolen is not a part of the stolen property.

27The Same, On the Edict, Book XVII. A field is land on which there is no building. 1The term “stipend” is derived from stips, that is to say, a copper coin of little value. Pomponius says that the word “tribute” is also derived from the same source; and, in fact, tribute comes from intributio; or because it is paid to soldiers.

28Paulus, On the Edict, Book XXI. The term “alienation” also includes usucaption, for it is difficult to understand that he who permits property to be acquired by usucaption should not be considered to have alienated it. He, also, is said to alienate who loses servitudes by failing to make use of them. Anyone who does not avail himself of the opportunity of acquiring property is not understood to alienate it; as, for instance, one who abandons an estate, or fails to make a choice within a certain prescribed time. 1A proposition which does not include either a conjunctive or a disjunctive particle should be determined according to the intention of the party making it.

29The Same, On the Edict, Book VI. Labeo says that a conjunction should sometimes be understood as a disjunctive particle; as, for instance, in the following stipulation, “For me and my heir,” “You and your heir.”

30Gaius, On the Provincial Edict, Book VII. Some authorities hold that timber fit for cutting is such as is set apart for that purpose. Servius says that this also applies to trees which have once been cut, but have grown again from sprouts or roots. 1Ungathered stalks are heads of grain thrown down during the reaping, and not afterwards gathered, which peasants collect after the harvest has been removed. 2New ground is that which, after having been cultivated, is left for a year, and which the Greeks style neasin. 3“Virgin soil” is that on which the owner has not yet placed cattle for the purpose of pasturage. 4“Fallen acorns” are such as have themselves dropped from the tree. 5“Forest pasture” is that destined for the grazing of cattle.

31Ulpianus, On the Edict, Book XVIII. A “meadow” is land for whose harvest nothing is required but a sickle; and it is so called because it is already prepared for the crop to be gathered.

32Paulus, On the Edict, Book XXIV. Less is understood to have been paid than is due, even when nothing at all has been paid.

33Ulpianus, On the Edict, Book XXI. The term “publicly” means in the presence of several persons.

34Paulus, On the Edict, Book XXIV. The recovery of property is also included in the term “action.”

35The Same, On the Edict, Book XVII. He is understood to make restitution who surrenders the property in dispute to the plaintiff which the latter would have obtained if it had been delivered to him at the time judgment was rendered; that is to say, both the right of usucaption, and the profits.

36Ulpianus, On the Edict, Book XXIII. The term “litigation” signifies every kind of action, whether real or personal.

37Paulus, On the Edict, Book XXVI. The expression, “is necessary,” has no reference to the authority of the judge, who can render a decision for a larger or a smaller amount, but relates to the truth.

38Ulpianus, On the Edict, Book XXV. Labeo defines the term “prodigy” to mean everything which is born or produced contrary to nature. There are, however, two kinds of prodigies; one where something is born contrary to nature, for instance with three hands or feet, or with some other part of the body deformed; another, where something is considered to be unusual, and which the Greeks designate fantasmata, that is to say, apparitions.

39Paulus, On the Edict, Book LIII. The word “signed” signifies what is subscribed by anyone, for the ancients were accustomed to use this word instead of signature. 1The property of anyone is understood to be what remains after his debts are paid. 2To call someone to witness is to notify a person who is absent. 3An uncertain possessor is one of whom we have no knowledge.

40Ulpianus, Book LVI. An adjuration is the serving of notice in the presence of witnesses. 1The term “slave” likewise applies to females. 2Children are also included in the expression, “body of slaves.” 3A single slave is not included under the term “familia”; nor indeed do two slaves constitute a familia.

41Gaius, On the Provincial Edict, Book XXI. The word “arms” not only means shields, swords, and helmets, but also clubs and stones.

42Ulpianus, On the Edict, Book LVII. The terms “disgrace” and “infamy” have the same signification. Some things are disgraceful from their very nature, others are made so by the Civil Law, and, as it were, by national custom; for example, theft and adultery are by their nature dishonorable. To be condemned to administer a guardianship is not disgraceful by nature, but is so by the custom of the State, for that is not of itself disgraceful which may happen to a man of good repute.

43The Same, On the Edict, Book LVIII. Food, drink, the care of the body, and everything necessary to human life is embraced in the term “maintenance.” Labeo says that maintenance also includes clothing.

44Gaius, On the Provincial Edict, Book XXII. Everything else which we make use of for the protection and care of our bodies is included in this term.

45Ulpianus, On the Edict, Book LVIII. Labeo says that under the term “covering,” all clothing which anyone puts on is included; for there is no doubt that the term applies to cloaks and every kind of garments. Therefore, when we include clothing under the term “maintenance,” we do not mean bedclothes used at night, but all articles intended for dress.

46The Same, On the Edict, Book LIX. The words “decreed” and “decided” have the same meaning, for we are accustomed to make use of them indiscriminately, when we allude to judges who have the right of jurisdiction. 1We should understand the expression, “mother of a family,” to signify one who does not live unchastely, for the morals of the mother of a family distinguish and separate her from other women. Hence, it makes no difference whether she is married or a widow, freeborn or emancipated, as neither marriage nor birth, but good morals constitute the mother of a family.

47Paulus, On the Edict, Book LVI. The term “release” has the same force as payment.

48Gaius, On the Edict of the Urban Prætor, Title, “Those who can neither be Summoned nor Brought into Court.” We do not understand a person to be released who, although his chains have been removed, is still held by the hands; just as we do not understand anyone to be released who is retained in custody without chains.

49Ad Dig. 50,16,49Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 42, Note 3.Ulpianus, On the Edict, Book LIX. The term “property” has reference either to the natural or the Civil Law. Property naturally acquired is understood to be that which renders persons happy; for to make happy is to benefit. It must, however, be remembered that among our property should be reckoned not only that which is our own, but also any possessed by us in good faith, or which has reference to the surface and the soil. Whatever is acquired by legal actions, claims, and pursuit, is also included under the term “property,” for all these things are considered as part of our possessions.

50The Same, On the Edict, Book LXI. The term “daughter-in-law” applies also to the wife of a grandson, and extends even farther.

51Gaius, On the Provincial Edict, Book XXIII. Under the term “parent” is not only included the father, but also the grandfather, the great-grandfather, and others in the male ascending line, as well as the mother, the grandmother, and the great-grandmother.

52Ulpianus, On the Edict, Book LXI. Patroness is also included under the term “patron.”

53Paulus, On the Edict, Book LIX. It has often been stated that a conjunctive particle can be understood as a disjunctive one, and vice versa, and occasionally something which is separate from them both; for when the ancients said “agnates and cognates” this was understood to be disjunctive. When, however, it is stated, “His money or guardianship,” it is evident that a guardian cannot be appointed without control of the property; and when we say, “Which I have given or donated,” we include both. When, however, we say, “What he must either give or do,” it is sufficient to prove one of these two things. When the Prætor says: “If he redeems the gift, the present, and the services due from him,” and all these things have been prescribed, it is certain that all of them should be redeemed. Therefore, these particles are considered as conjunctive. 1Where some of these things are imposed, others cannot be exacted. 2Ad Dig. 50,16,53,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 453, Note 5.Likewise, it may be doubted in what way the following words, “By aid and advice,” should be understood; that is, whether they ought to be taken conjunctively or separately. The better opinion is, as Labeo says, that they should be understood separately, for the reason that it is one thing where anyone furnishes his aid in a theft, and another where he only gives his advice; and, indeed, according to the authority of the ancient jurists, the conclusion is arrived at that no one is considered to have aided in doing anything unless he gave bad advice; nor to have given bad advice, unless the illegal act was the result of it.

54Ulpianus, On the Edict, Book LXII. Conditional creditors are those who are not yet entitled to an action, but who will be entitled to it; or such as expect that an action will lie in their favor.

55Paulus, On the Abridgment of the Edict, Book XVI. A creditor is one who cannot be barred by a perpetual exception. He, however, who has reason to apprehend the pleading of a temporary exception, resembles a conditional creditor.

56Ulpianus, On the Edict, Book LXII. To scrutinize documents is to re-read and review them; to balance accounts is to compare the receipts and disbursements. 1Under the term “children” are included not only those who are under paternal control, but also all those who are their own masters, whether they are of the male or female sex, or descendants from females.

57Paulus, On the Edict, Book LIX. Those are called managers who have particular supervision of affairs, and are, more than others, required to manifest diligence and solicitude with reference to the business of which they have charge. And, indeed, the term “magistrate” is derived from master, and also instructors in any kind of learning are so called from the fact that they admonish or explain. 1Anyone who has received security is still considered to retain the right of recovery.

58Gaius, On the Provincial Edict, Book XXIV. Although there seems to be some subtle distinction between the transaction and the conduct of business, this, however, is incorrect, as no such distinction exists. 1We consider paternal freedmen to be properly called our freedmen; but we do not correctly designate the children of such freedmen our own freedmen.

59Ulpianus, On the Edict, Book LXVIII. An enclosed place into which merchandise is taken, and afterwards exported, is called a harbor. A place of this kind is not only enclosed, but also fortified: and therefore it is styled a by-way (angi-portus).

60The Same, On the Edict, Book LXIX. A site is not a tract of land, but a certain part of one. A tract of land includes everything which belongs to it, and we generally understand a site to mean land on which there is no building. It is, however, only our opinion and intention which distinguishes a site from a tract, for a small site can be called a tract, if we have the intention of considering it as such. It is not the size which makes the distinction between a site and a tract, but our intention, and any portion of a tract of land can be styled a tract, if we wish to call it such, and a tract can be considered a site, for if we add it to another body of land it will become a part of the latter. 1Labeo says that the term “site” not only applies to land in the country, but also to that in a city. 2A tract of land, however, has its limits, but those of a site cannot be ascertained until they have been determined and defined.

61Paulus, On the Edict, Book LXV. By the term “security” sometimes a mere promise is meant, by which the person who is entitled to protection remains satisfied.

62Gaius, On the Provincial Edict, Book XXVI. By the term “beam,” according to the Law of the Twelve Tables, every kind of material of which buildings are constructed is meant.

63Ulpianus, On the Edict, Book LXXI. “In your possession” has a broader meaning than “In your hands,” for what you have in your hands is whatever is held by you under any title whatsoever, but what is in your possession is, to a certain extent, retained by you as your own.

64Paulus, On the Edict, Book LXVII. A person who is intestate is not only one who did not make any will, but also one whose estate was not entered upon under the will.

65Ulpianus, On the Edict, Book LXXVI. The term “heir” not only has reference to the next heir, but to all others; for the heir of an heir, and so on in succession, is included in this appellation.

66The Same, On the Edict, Book LXXIV. The word “merchandise” only applies to movable property.

67The Same, On the Edict, Book LXXVI. Anything which still remains under the control of the vendor is not correctly held to have been alienated, but it still may properly be said to have been sold. 1The term “donation,” generally speaking, is understood to include every kind of a gift, whether it was made mortis causa or not.

68The Same, On the Edict, Book LXXVII. The following clause, “To be done according to the judgment of Lucius Titius,” refers to a person who has a right to act, and does not apply to a slave.

69The Same, On the Edict, Book LXXVIII. The following words, “There is not, and shall not be any fraud in this transaction,” generally include every species of fraud which can be committed in the matter with reference to which the stipulation was entered into.

70Paulus, On the Edict, Book LXXIII. It must be remembered that, by the term “heir,” several successors are understood. For the term “heir” only refers to the next heir in very few instances, for example, in a pupillary substitution made as follows, “Whoever shall be my heir, let him also be my son’s heir,” for in this case, the heir of the heir is not included, because he is uncertain. Likewise, according to the Lex Ælia Sentia, the son who is the next heir can accuse a paternal freedman of being ungrateful, but he could not do so if he was the heir of the heir. The same rule applies to the right to exact services from a freedman, as a son who is the heir can demand them, but not if he has been removed from the succession. The following words, “The person to whom the property belongs,” are understood to refer to an heir who has succeeded to the entire ownership of the estate, either under the Civil or the Prætorian Law.

71Ulpianus, On the Edict, Book LXX. It is one thing to take property, and another to receive it. Anything is taken when it is acquired as the result of some act which has been performed. To receive something is for a person to obtain it, but not in order to hold it; and, therefore, no one is considered to take an article which he must surrender; as the expression “comes into his hands” is correctly said of property which will remain in his possession. 1The following words, “To legally indemnify me with reference to these matters,” mean that the stipulator shall not be liable for any risk or damage resulting from the transaction.

72Paulus, On the Edict, Book LXXVI. A part is also included in the term “property.”

73Ulpianus, On the Edict, Book LXXX. The following clause, “Do you promise to restore the property in good condition?” when inserted in a stipulation, includes the crops. The words, “in good condition,” mean according to the judgment of reliable citizens.

74Paulus, On the Edict of the Curule Ædiles, Book II. A signet ring is not embraced in the term “ornament.”

75The Same, On the Edict, Book L. He is held to make restitution who restores that which the plaintiff would have had if no controversy had arisen with reference to it.

76The Same, On the Edict, Book LI. He is understood to have paid who has made an exchange or a set-off instead of giving the purchase money.

77The Same, On the Edict, Book XLIX. By the term “income” is understood not only the crop of grain and vegetables, but also whatever is obtained from vines, timber, chalk-pits, and quarries. Julianus says it is not true that by the term “income” is meant whatever a man uses for food; as the flesh of animals, birds or wild beasts, and the fruits of trees cannot be so-called income. Grain includes everything which is contained in ears, as Gallus has properly defined it. Beans, and other pulse, can more properly be called income, for the reason that they are not contained in ears, but in pods, which Servius, in his Treatise on Alfenus, thinks should be classed under the head of grain.

78Paulus, On Plautius, Book III. The term “possession” sometimes means property, as has been held in the case of one who bequeathed his possession.

79The Same, On Plautius, Book VI. Necessary expenses are those which must be incurred to prevent the destruction or deterioration of property. 1Fulcinius says that useful expenses are any that improve the condition of a dowry, and do not permit the deterioration of anything from which an income is obtained by the wife; as, for instance, by making a larger plantation of trees than was necessary. Likewise, a husband cannot provide for the instruction of slaves if, by so doing, the woman, being ignorant of the fact, or unwilling, may be put to expense, and be forced to lose either her land or her slaves. We generally include in expenses of this kind those incurred by a husband for the construction of a mill or a warehouse, to be added to the dotal property. 2Expenses incurred for pleasure are such as only adorn property, and do not increase its income; for example shrubbery, fountains, ornamented stucco-work, hangings, and paintings.

80The Same, On Plautius, Book IX. Generally speaking, according to the spirit of the Law of the Twelve Tables, in the repetition of legacies by a testator in a substitution, the grants of freedom are also included.

81The Same, On Plautius, Book X. When the Prætor says, “The work must be restored to its former condition,” this means that the plaintiff can also recover any damages which he may have sustained; for under the term “restitution” all the interest of the plaintiff is included.

82The Same, On Plautius, Book XIV. The expression, “In addition,” has even reference to one to whom nothing is due; as, on the other hand, is the case where anyone is considered to have paid less than he owed, when he has not paid anything, even if nothing could be collected from him.

83Javolenus, On Plautius, Book V. That can not correctly be called “property” which is productive of more inconvenience than benefit.

84Paulus, On Vitellius, Book II. By the term “sons” we understand all children to be meant.

85Marcellus, Digest, Book I. Neratius Priscus held that three constituted a corporate body; and this rule should be followed.

86Celsus, Digest, Book V. What else is meant by the rights attaching to land and its nature than the enjoyment of its fertility, its salubrity, and its extent?

87Marcellus, Digest, Book XII. Alfenus says the City of Rome includes all that is encircled by its walls; but Rome also consists of all the buildings which adjoin it, for it should not be considered to be merely bounded by its walls, for when we say that we are going to Rome, we do so according to the ordinary acceptation of these words, even if we live outside of the city itself.

88Celsus, Digest, Book XVIII. A man leaves only as much money as his estate is worth. Hence we say that the estate of anyone is worth a hundred aurei if he had that amount in land, or other property. The same rule does not apply to the devise of land belonging to another, although it may be bought with the money of the estate; for anyone who has only money is not considered to have what can be purchased with it.

89Pomponius, On Sabinus, Book VI. Oxen are rather classed as cattle than as beasts of burden. 1By the expression, “When she shall be married,” the first nuptials are meant. 2There is a great deal of difference between paying a balance and rendering an account; as he who has been ordered to render an account is not obliged to pay the balance in his hands. A banker is considered to render his account, even if he does not pay any balance remaining in his hands.

90Ulpianus, On Sabinus, Book XXVII. He who delivers a house in the best condition possible does not mention that a servitude is due to it; but only that the house is free, and that no servitude is imposed upon it.

91Paulus, Trusts, Book II. In the terms, “My property,” and “Your property,” it must be said that rights of action are also included.

92The Same, Questions, Book VII. The “next of kin” is one whom no one precedes, and the most remote relative is one whom no one follows.

93Celsus, Digest, Book XIX. By the words “movable property” and “personal property” are meant the same thing, unless it appears that the deceased, by using the expression “movable” property, only intended to refer to animals because they moved themselves. This is correct.

94The Same, Digest, Book XX. The verb “to restore,” although it means to return, has, nevertheless, itself the signification of “to give.”

95Marcellus, Digest, Book XIV. The term “balance” means everything that remains due.

96Celsus, Digest, Book XXV. The shore of the sea is reckoned from the point reached by the greatest flow. It is said that Marcus Tullius was the first to establish this rule, when he served as arbiter in a certain case. 1When we say that land belongs to several persons, this does not merely mean that they hold it in common, but that part of it may be separately held by each one of them.

97The Same, Digest, Book XXXII. When we stipulate for “As much money as may come into your hands from the estate of Titius,” we mean that the property itself which comes into your hands, and not its value, should be taken into consideration.

98The Same, Digest, Book XXXIX. When anyone is born on the kalends of a bissextile year, it makes no difference whether his birth takes place on the preceding or succeeding day, and his birthday is said to be the sixth of the kalends; for these two days are only considered as one, and it is the last day, and not the first, which is intercalated. Therefore, if he should be born on the sixth of the kalends, in a year which is not intercalated, and when the intercalary day falls on the kalends, the preceding day will be that of his birth. 1Cato held that an intercalary, month was an addition to the others; and Quintus Mucius added all its days from the time when it was computed to the last day of the month of February. 2It is, however, established that there are twenty-eight days in the intercalary month.

99Ulpianus, On the Duties of Consul, Book I. We understand the word “investigation” to signify the right of judicial inquiry and jurisdiction. 1We should understand the neighboring, contiguous provinces to mean those which are joined to Italy, as for instance, Gaul. We should, however, include the Province of Sicily among them, as it is only separated from Italy by a narrow arm of the sea. 2It would be extremely difficult to define everything included under the term “instrument.” Instruments, properly speaking, are documents for whose production a delay should be granted; 3just as when time is asked for the production of someone who can conduct a case, for instance, a steward, although he may be in slavery, or of someone who has been appointed an agent, I think it may be held that a delay can be requested on account of the papers, in order to enable him to appear for the above-mentioned purpose.

100The Same, On the Duties of Consul, Book II. We should understand distinguished persons to mean those of both sexes who are illustrious, as well as those who are entitled to Senatorial honors.

101Modestinus, Differences, Book VI. Some authorities think that a distinction exists between fornication and adultery, because adultery is committed with a married woman, and fornication with a widow. The Julian Law on Adultery, however, uses this term indiscriminately. 1A divorce is said to take place between husband and wife, but repudiation is considered to apply only to the wife, because it not improperly has reference to her personally. 2It is true that a disease means a temporary weakness of the body, but a defect is a perpetual corporeal hindrance; as, for instance, where one is purblind, and therefore a one-eyed man is defective. 3Some legal authorities hold that when slaves are bequeathed, female slaves are also included, as the term is common to both sexes.

102The Same, Rules, Book VII. A law is either derogated or abrogated. It is derogated when a part of it is stricken out; it is abrogated when it is entirely repealed.

103The Same, Rules, Book VIII. Although the word “capital” may appear to all those who speak Latin to have reference to reputation; still, this term should be understood to apply only to death, or loss of citizenship.

104The Same, Excuses, Book II. The term “children” also extends to grandchildren.

105The Same, Opinions, Book XI. Modestinus is of the opinion that the freedmen of a freedwoman of the testator are not included in the words, “My freedmen and freedwomen.”

106The Same, On Prescriptions. Letters of dismissal are those which are ordinarily styled letters of appeal. They are so called because by their means a case is sent to the court to which an appeal is made.

107The Same, Pandects, Book III. To “assign” a freedman is for a patron to declare to which of his children he desires his freedman to belong.

108The Same, Pandects, Book IV. A debtor is understood to be one from whom money can be collected against his will.

109The Same, Pandects, Book V. A purchaser in good faith is one who was not aware that the property which he bought belonged to another; or thought that he who sold it had the right to do so; as, for instance, that he was an agent, or a guardian.

110The Same, Pandects, Book VI. He is called an arbiter in whose hands several persons have deposited property which is in dispute, whether he has been appointed by a judge, to whom application had been made; or whether the property has been submitted to him for arbitration by those who claim it.

111Javolenus, 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.

112The 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.

113The Same, On Cassius, Book XIV. A serious illness is one which interferes with every kind of business.

114The Same, On Cassius, Book XV. No one is understood to be solvent unless he can pay everything that he owes.

115The Same, Epistles, Book IV. There is a question as to what difference exists between the possession of a tract of land or of a field. A tract of land includes everything belonging to the soil; a field is a kind of a tract which is adapted to the use of man. Possession, in law, is distinct from the ownership of land; for we call possession everything which we hold, without the ownership of the property belonging to us, or where there is no possibility of its becoming ours. Therefore possession indicates use, and a field means the ownership of the property. A tract of land is the common name for both the things above mentioned; for a tract of land and possession are different forms of the same expression.

116The Same, Epistles, Book VII. Labeo says that the clause, “Let any son born to my son, be my heir,” does not seem to include a daughter. Proculus is of the opposite opinion. Labeo appears to me to have followed the form of the words; Proculus the intention of the testator. I have no doubt that the opinion of Labeo is not correct.

117The Same, Epistles, Book IX. He is not considered to have paid less than he owed against whom an action for a larger sum will not lie.

118Pomponius, On Quintus Mucius, Book II. Those are enemies who declare war against us, or against whom we publicly declare war; others are robbers or brigands.

119The Same, On Quintus Mucius, Book III. The term “estate” undoubtedly includes one which may be onerous; for the name is the same in law as prætorian possession of property.

120The Same, On Quintus Mucius, Book V. By the following words of the Law of the Twelve Tables, “Let a man have a right to dispose of his property by will,” the most extensive power is considered to have been granted to appoint heirs, to bequeath legacies and grants of freedom, as well as to establish guardianships. This privilege, however, has been limited either by the interpretation of the laws, or by the authority of jurists.

121The Same, On Quintus Mucius, Book VI. The interest on money which we collect is not included in the term “profits,” because it is not derived from the property itself, but from another source, that is to say, from a new obligation.

122The Same, On Quintus Mucius, Book VIII. Servius says that if it was written in a will, “I appoint So-and-So guardians for my son, and for my sons,” guardians are only appointed for the male children, as by alluding to his son in the singular number, and then using the plural, the testator is considered to have had reference to persons of the same sex which he had previously mentioned. This, however, is a question of fact, and not of law; for it might happen that he only thought of his own at first, and afterwards, when appointing a guardian, had in mind all his children. This seems to be the more reasonable opinion.

123The Same, On Quintus Mucius, Book XXVI. The words “shall be” sometimes indicate past as well as future time; which is necessary for us to know. When a codicil is confirmed by a will in the following terms, “Whatever shall be included in my codicil,” do they refer to future, or to past time, if the testator had already drawn up a codicil? This must be determined by his intention; for as the word “is” relates not only to present, but to past time; so the words “shall be” not only indicate future, but sometimes, also, past time, for when we say “Lucius Titius is released from his obligation,” we refer to both past and present time; just as when we say, “Lucius Titius is bound.” The same rule applies when we say, “Troy is taken,” for this expression has no reference to the present time, but to something that has already occurred.

124Proculus, 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.

125The Same, Epistles, Book V. His grandson to his Uncle Proculus, Greeting. In the case of a person who promised a dowry as follows, “When it is convenient, I will give you a hundred aurei as my daughter’s dowry,” do you think that the dowry can be demanded immediately after the marriage takes place? Where he made the promise in the following words, “I will give you the dowry when I am able to do so,” if the last obligation is of any force, in what way do you interpret the words, “am able”? Do they mean after the debts have been paid, or before? Proculus: When anyone promises a dowry in the following terms, “I will pay you a hundred aurei, by way of dowry, when I am able to do so,” I think that a suitable interpretation can be given to them. For when anyone makes use of ambiguous language, he says what he believes is meant by the words which he employs. I think, however, that it is better to hold that he intended to say that he would give the dowry if he could do so after his debts were paid. The meaning may also be, “If I can do so consistently with the maintenance of my honor,” which interpretation is preferable. But if he had promised to do this, “When it will be convenient,” this means when I can bestow the dowry without incommoding myself.

126The Same, Epistles, Book VI. If I transfer to you a tract of land and say, “It is in the very best possible condition,” and then add, “It has not become any worse since I have acquired its ownership,” I will not be liable for anything else; for although it is stated in the first clause, “in the best possible condition,” this means that the land is free, and if the second part had not been added, I would be compelled to render it free; still, I think that I am sufficiently released by the second clause, because, so far as the rights attaching to the land are concerned, I am not obliged to guarantee anything more than that the title has not become any worse during my ownership.

127Callistratus, Judicial Inquiries, Book IV. By the term “clothing” is meant that ordinarily worn by both men and women, as well as theatrical costumes, whether used in a tragedy or comedy.

128Ulpianus, On the Lex Julia et Papia, Book I. The term “eunuch” is one of general application, and under it are included not only persons who are eunuchs by nature, but also those made such by crushing or pressure, as well as every other kind of eunuch whatsoever.

129Paulus, On the Lex Julia et Papia, Book I. Still-born infants are not considered either to have been born or begotten, because they have never been able to be called children.

130Ulpianus, On the Lex Julia et Papia, Book II. Anyone can very properly say that an estate which falls to a person as heir at law, or by will, legally belongs to him, because by the Law of the Twelve Tables testamentary estates are confirmed.

131The Same, On the Lex Julia et Papia, Book III. Fraud is one thing, and the penalty for it another; for fraud can exist without a penalty, but there cannot be a penalty for it without a fraud. A penalty is the punishment of an offence, a fraud is the offence itself and is, as it were, a kind of preparation for the penalty. 1A great difference exists between a fine and a penalty, for the term “penalty” is a general one, and means the punishment of all crimes; but a fine is imposed for some particular offence, whose punishment is, at present, a pecuniary one. A penalty, however, is not only pecuniary, but usually implies the loss of life and reputation. A fine is left to the discretion of the magistrate who passes sentence; a penalty is not inflicted unless it is expressly imposed by law, or by some other authority. And, indeed, a fine is inflicted where a special penalty has not been prescribed. Moreover, he can impose a penalty upon whom jurisdiction has been conferred. Magistrates and Governors of provinces alone are permitted by the Imperial Mandates to impose fines; anyone, however, who has a right to take judicial cognizance of a crime or a misdemeanor can inflict the penalty.

132Paulus, On the Lex Julia et Papia, Book III. Ad Dig. 50,16,132 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Note 12.A child dies at the age of a year who expires on the last day of the year; and the ordinary use of language shows this to be the case when it is stated “That it died before the tenth day of the kalends,” or “after the tenth day of the kalends”; for in both instances eleven days are understood. 1It is improper to say that a woman has brought forth a child, from whom, while dead, a child was removed by the Cæsarean operation.

133Ulpianus, On the Lex Julia et Papia, Book IV. Where anyone provides that something shall be done before his death, the very day on which he died is counted.

134Paulus, On the Lex Julia et Papia, Book II. A child is not considered a year old as soon as it is born, but is said to be of that age after three hundred and sixty-five days have elapsed, if the last day has begun, but is not completed; because, according to the Civil Law, we reckon the year, not by moments, but by days.

135Ulpianus, On the Lex Julia et Papia, Book IV. Where a woman brings forth a child that is deformed, or a monster, or defective, or which has something unusual in its appearance or its voice, and which has no resemblance to a human being, but seems to be rather an animal than a man, someone may ask, will it be any benefit to her to have brought such a creature into the world? The better opinion is, that consideration must be had for its parents, for they ought not to be censured, as they have done their duty as far as they could, nor should the mother be prejudiced, because an unfortunate occurrence has taken place.

136The Same, On the Lex Julia et Papia, Book V. It is evident that, under the term “son-in-law” are included the husbands of granddaughters, and great-granddaughters, and their descendants; whether they are the offspring of a son or a daughter.

137Paulus, On the Lex Julia et Papia, Book II. A woman who has brought forth three children at a birth is considered to have had three parturitions.

138The Same, On the Lex Julia et Papia, Book IV. Prætorian possession of an estate is included in the term “inheritance.”

139Ulpianus, On the Lex Julia et Papia, Book VII. Houses are considered to be built at Rome when they are erected contiguous to the city. 1He is considered to have finished a house who has completed it so that it can be occupied.

140Paulus, On the Lex Julia et Papia, Book VI. A man is understood to have acquired something, even though he may have acquired it for another.

141Ulpianus, On the Lex Julia et Papia, Book VIII. As a woman, when moribund, is considered to have had a child if it is taken from her by means of the Cæsarean operation; so, under other circumstances, she can be held to have had a child whom she did not bring forth at the time of her death; for instance, one who returns from the hands of the enemy.

142Paulus, On the Lex Julia et Papia, Book VI. A joinder of heirs can take place in three different ways, for it can either be made by means of the property itself; or by means of the property and words contained in the will; or by the words alone. There is no doubt that those are joined who are connected by both their names and by the property; for example, “Let Titius and Mævius be heirs to half my estate;” or “Let Titius and Mævius be my heirs;” or “Let Titius, with Mævius, be heirs to half of my estate.” Let us see, however, if we omit the particles “and” “and with,” whether the parties can be considered to be joined, for instance: “Let Lucius Titius, Publius Mævius be heirs to half of my estate,” or, “Let Publius Mævius, Lucius Titius, be my heirs; let Sempronius be the heir to half my estate.” As Titius and Mævius are entitled to half of the estate, they are understood to be joined with reference to the property, and the terms of the will. “Let Lucius Titius be heir to half of my estate; let Seius be the heir to the same share to which I have appointed Lucius Titius; let Sempronius be the heir to half of my estate.” Julianus says that a doubt may arise as to whether the estate was divided into three parts, or whether Titius was appointed heir to the same share as Gaius Seius. But, for the reason that Sempronius was also appointed an heir to half the estate, it is more probable that the two others were to share the same half and were made heirs conjointly.

143Ulpianus, On the Lex Julia et Papia, Book IX. Anyone is considered to have property if he is entitled to an action to recover it, for he has anything which he has a right to demand.

144Paulus, On the Lex Julia et Papia, Book X. Massurius stated in his Book on Memorials that a mistress was considered by the ancients to be a woman who lived with a man without being his wife, and who is now known by the name of friend, or by the slightly more honorable appellation, concubine. Granius Flaccus, in his Book on the Papirian Law, says that the word “mistress” means a woman who cohabits with a man who has a wife; and others hold one is meant who lives in his house, as his wife, without being married to him, and whom the Greeks call pallakyn.

145Ulpianus, On the Lex Julia et Papia, Book X. It must be said that by the term “individual share” the entire estate sometimes is meant.

146Terentius Clemens, On the Lex Julia et Papia, Book III. It is established that the grandfather and the grandmother of either a wife or a husband are included under the terms “father-in-law” and “mother-in-law.”

147The Same, On the Lex Julia et Papia, Book III. Persons who are born in the suburbs of the City are understood to be born at Rome.

148Gaius, On the Lex Julia et Papia, Book VIII. A man who has only one son or one daughter is not without children; for the expression, “He has children,” or “he has not children,” is always used in the plural number, just as writing tablets and codicils are.

149The Same, On the Lex Julia et Papia, Book X. For we cannot say of such a person that he is childless, and we must necessarily say that he has children.

150The Same, On the Lex Julia et Papia, Book IX. If I stipulate with you as follows: “Do you promise to pay me whatever I may fail to collect from Titius?” there is no doubt that if I should not collect anything from Titius you will be indebted to me for all that he owed me.

151Ad Dig. 50,16,151Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 594, Note 1.Terentius Clemens, On the Lex Julia et Papia, Book V. An estate is understood to have been granted to anyone when he can acquire it by entering upon the same.

152Gaius, On the Lex Julia et Papia, Book X. There is no doubt that both males and females are included under the term “man.”

153Terentius Clemens, On the Lex Julia et Papia, Book XI. When a child is in its mother’s womb at the time of its father’s death, it is understood to be legally in existence.

154Macer, On the Law Relating to the Twentieth. The thousand paces constituting a mile are not reckoned from the milestone of the City of Rome, but from the houses contiguous thereto.

155Licinius Rufus, Rules, Book VII. Where there is only one relative, he is included in the term “next of kin.”

156The Same, Rules, Book X. Anyone is understood to have had possession of property for the greater part of the year, even if he has held it only two months, provided his adversary has had possession of it for a shorter time, or not at all.

157Ælius Gallus, On the Meaning of Words Relating to the Law, Book I. A wall is one which is built either with or without mortar. 1A road is either a path, or a highway.

158Celsus, Digest, Book XXV. Cascellius states that, in legal phraseology, we frequently make use of the singular number when we wish to indicate several things of the same kind; for we say many a man has arrived at Rome, and also that there are bad fish. Likewise, in making a stipulation, it is sufficient to refer to the heirs in the singular number, “If the case is decided in favor of me, or my heir,” and again, “Whatever concerns you or your heir,” as it is clear that if there are several heirs, they are included in a stipulation of this kind.

159Ulpianus, On Sabinus, Book I. We also use the term “money” to denote gold coins.

160The Same, On Sabinus, Book II. Everything is included in the terms, “the others,” and, “the balance,” as Marcellus says with reference to a man to whom the choice of a slave was bequeathed, the others being left to Sempronius; for he holds that if he should not make a choice, all the slaves will belong to Sempronius.

161The Same, On Sabinus, Book VII. An unborn child is not a minor.

162Pomponius, On Sabinus, Book II. An ordinary substitution, by which an heir is substituted “for him who may die last,” is understood to have been made legally if there should be only one heir, in accordance with the Law of the Twelve Tables, by which, when there is only one heir, he is referred to as the next of kin. 1Where a testator makes the following provision in his will, “If anything should happen to my son, let my slave Damas be free,” and the son should die, Damas will become free; for although an accident may also happen to the living, death is understood by this expression, according to the ordinary signification of the language.

163Paulus, On Sabinus, Book II. The following words, “The very best and greatest possible,” may have reference to a single person. Likewise, the last will mentioned in the Edict of the Prætor has reference to the only will. 1Under the term “child” a girl also is included, for women who have recently brought forth children are called puerperse, and are generally styled by the Greeks.

164Ulpianus, On Sabinus, Book XV. There is no question that the word “daughters” includes posthumous children, while it is certain that the term “posthumous” is not applicable to a daughter who is already born. 1The word “share” does not always mean the half, but the part which is indicated by it; for anyone can be directed to have the largest share, or the twentieth, or the third, or as much as the testator pleases. If nothing is mentioned but the share, half of the estate will be due. 2The expressions “To have,” and “To come into one’s hands,” should be understood to mean legal possession.

165Pomponius, On Sabinus, Book V. Nothing is understood to “come into the hands of the heir” unless all the debts of the estate have been paid.

166The Same, On Sabinus, Book VI. Urban and rustic slaves are not distinguished from one another by the place, but by the nature of their respective occupations. For a steward may not be included in the number of urban slaves, as, for instance, one who keeps the accounts of transactions in the country, where he lives, for he does not differ greatly from a farmer. A slave attached to a household in a city is included among urban slaves. It should, however, be considered whether the master himself employs anyone in their stead, which can be ascertained from the number of the slaves and their sub-slaves. 1He is understood to have spent the night outside of a city who passed no part of it therein; for the expression means the entire night.

167Ulpianus, On Sabinus, Book XXV. The material of which it is composed is not included in the term “charcoal,” but is it included in that of “firewood”? Perhaps someone may say that it is not, for all wood is not firewood; but shall we include under the terms “firewood” or “charcoal” firebrands which have been extinguished, and other burnt wood which does not make any smoke, or shall we place it in a class of its own? The better opinion is that it has a class of its own. Wood which has been treated with sulphur is included in the term “firewood.” Wood which is prepared for torches does not come under the head of “firewood,” unless it was specially intended that this should be done. The same rule applies to olive seeds, acorns, and any other seeds. When pine cones are entire, they are included in the term “firewood.”

168Paulus, On Sabinus, Book IV. Poles and stakes are classed as building material, and therefore are not included under the term “firewood.”

169The Same, On Sabinus, Book V. The following clause is not only inserted in contracts for the delivery of property, but also in purchases, stipulations, and wills, namely, “In the best condition possible,” and means that land is guaranteed to be free from all encumbrances, but not that servitudes are due to it.

170Ulpianus, On Sabinus, Book XXXIII. It is held that all successors are meant by the word “heir,” although this may not be expressly stated.

171Pomponius, On Sabinus, Book XVI. Anything is properly said to have come into your hands where it has passed to another through you, as was determined in the case of an estate acquired by a freedman through his patron, who was a son under paternal control, for the benefit of his adoptive father.

172Ulpianus, On SoMnus, Book XXXVIII. It is established that a freedwoman is also included under the term “freedman.”

173The Same, On Sabinus, Book XXXVIII. Those are included under the term “colleagues” who possess the same authority. 1Anyone who is outside of the suburbs of a city is considered to be absent; but he is not considered to be absent while still within the suburbs.

174The Same, On Sabinus, Book XLII. It is one thing to allege that a slave is not a thief, and another to say that he will not be liable for theft or damage committed by him. For when a man says that a slave is not a thief, he has reference to his disposition; but when he says that he will not be liable for theft or damage committed by him, he states that he will not be responsible to anyone for his depredations.

175Pomponius, On Sabinus, Book XXII. In the term “To do” is also included that “To give.”

176Ad Dig. 50,16,176ROHGE, Bd. 24 (1879), Nr. 20, S. 66: Begriff der Zahlung. Willensübereinstimmung.Ulpianus, On Sabinus, Book XLV. It has been established that every kind of satisfaction should be understood to be included in the term “payment.” We say that he has paid who has done what he promised to do.

177The Same, On Sabinus, Book XLVII. The nature of the sophistry which the Greeks call a concise syllogism is disclosed where, by making slight changes in something which is absolutely true, a conclusion is arrived at which is evidently false.

178The Same, On Sabinus, Book XLIX. The term “money” not only includes coin, but all kinds of property, that is to say, everything which is corporeal; for there is no one who has any doubt that corporeal property is also included in the word “money.” 1Inheritance is a legal term which has reference to both the increase and the diminution of an estate, as an inheritance is greatly increased by the profits. 2The term “action” is both special and general; for the same word is used whether a claim is made against the person or against the property. We are, however, for the most part, accustomed to call the former personal and the latter real. I think that extraordinary proceedings are included under the term “pursuit,” as for instance, those arising from trusts, and any others which do not come within the scope of ordinary law. 3The expression, “He owes,” is understood to include every action whatsoever which can be brought against anyone; whether it is civil or prætorian, or involves the execution of a trust.

179The Same, On Sabinus, Book LI. There is no difference between the expressions, “As much as a thing is worth,” and “As much as a thing appears to be worth,” for it has been established that in both instances a true valuation of the property must be made.

180Pomponius, On Sabinus, Book XXX. By the term “hut,” every building erected for the purpose of protecting the crops on a farm, and not a house in town, is meant. 1Ofilius says that the word tugurium is derived from a roof, as a place is said to be covered with tiles; just as toga is so called because we use it as a covering.

181The Same, On Sabinus, Book XXXV. The verb, “To belong,” has an extremely broad signification, for it not only applies to such things as are included in our ownership, but also to those which we possess under any title, even if they are not ours; and we say that articles belong to us to which we have no title at present, but to which we may subsequently acquire one.

182Ulpianus, On the Edict, Book XXVII. The head of a household who is free cannot have a peculium, just as a slave cannot have an estate.

183The Same, On the Edict, Book XXVIII. The term “shop” means every kind of building which is fit for a habitation; evidently for the reason that these are generally closed with boards (tabulæ).

184Paulus, On the Edict, Book XXX. From it the words “tabernacle” and “contubernales” are derived.

185Ulpianus, On the Edict, Book XXVIII. We understand a furnished shop to be one in which the goods and the clerks are ready for business.

186The Same, On the Edict, Book XXX. To entrust something to anyone’s care means nothing more than to deposit it with him.

187Ad Dig. 50,16,187Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 17.The Same, On the Edict, Book XXXII. The expression, “Money collected,” relates not only to payment, but also to the delegation of the claim.

188Paulus, On the Edict, Book XXXIII. The verb, “To have,” is understood in two different ways: in one, where the right of ownership exists; in the other, where property purchased by anyone cannot be obtained without a contest. 1Security means responsibility assumed either with reference to persons or things.

189The Same, On the Edict, Book XXXIV. The expression, “To be obliged to do,” has the following signification; namely, that a person will abstain from doing something which is contrary to an agreement, or will take care that it is not done.

190Ulpianus, On the Edict, Book XXXIV. We must understand provincials to be persons who have their domicile in a province, and not those who are born there.

191Paulus, On the Edict, Book XXXV. The following difference exists between divorce and repudiation: repudiation may take place even before marriage; but a woman who is betrothed cannot properly be said to be divorced, since divorce is so called because the parties who separate are free to go their different ways.

192Ulpianus, On the Edict, Book XXXVII. The expression, “Or more,” does not include an unlimited sum of money, but a moderate one; just as the limiting clause, “Ten or more solidi,” has reference to the smaller sum.

193The Same, On the Edict, Book XXXVIII. These words, “As much as the property appears to be worth,” do not refer to the measure of damage, but to the estimated value of the property.

194Ulpianus, On the Edict, Book XXXIII. The same difference exists between a gift and a present as exists between genus and species; for Labeo says that a gift is a genus, and is derived from the verb “to give,” and that a present is a species, for it is a gift bestowed for some reason, for instance, on account of a birth, or a marriage.

195The Same, On the Edict, Book XLVI. The term “masculine” frequently extends to both sexes. 1Let us see how the word “family” should be understood. And indeed, it is understood in various ways, for it has reference to both property and persons; to property, as in the Law of the Twelve Tables where it is said, “Let the next of kin on the father’s side have the estate” (familia). The term “family” also has reference to persons, as where the same law referring to a patron and his freedman says, “From this family to that.” In this instance, it is established that the law has reference to individuals. 2The term “family” has reference to every collection of persons which are connected by their own rights as individuals, or by the common bond of general relationship. We say that a family is connected by its own rights where several are either by nature or by law subjected to the authority of one; for example, the father of a family, the mother of a family, and a son and a daughter under paternal control, as well as their descendants; for instance, grandsons, granddaughters, and their successors. He is designated the father of a family who has authority over the household, and he is properly so called even if he has no son, for we do not merely consider his person, but also his right. Then we also style a minor the father of a family, when his father dies, and each of the persons who were under his control begins to have a separate household, and all obtain the title of father of a family. The same thing happens in the case of a son who is emancipated, for he also has his own family when he becomes independent. We say that the family of all the agnates is a common one, because even though the head of the household may be dead, and each of them has a separate family, still, all who were under the control of him alone are properly said to belong to the same family, as they have sprung from the same house and race. 3We are also accustomed to apply the term “family” to bodies of slaves, as we explained, according to the Edict of the Prætor, under the Title of Theft, where the Prætor mentions the family of farmers of the revenue. In this instance, all slaves are not meant, but only those are designated who were appointed for this purpose, that is to say, for the collection of taxes. In another part of the Edict all slaves are included; as in the case of unlawful assemblies, and property taken by force, and also where suit for the annulment of a contract can be brought, and the property is returned in a worse condition through the act of the purchaser or his family; and finally, in the case of the interdict Unde vi, the term family embraces not only all the slaves, but also the children. 4The word “family” also applies to all those persons, who are descended from the last father, as we say the Julian Family, referring, as it were, to persons derived from a certain origin within our memory. 5The wife is the beginning and the end of her family.

196Gaius, On the Provincial Edict, Book XVI. The head of the family himself is included in the term “family.” 1It is clear that children do not belong to the family of the wife, because anyone who is born to a father does not follow the family of his mother.

197Ulpianus, On the Edict, Book L. “To inform” is to denounce, to impeach, to accuse, and to convict.

198The Same, On All Tribunals, Book II. We understand by the term “urban estates” not only all buildings which are situated in towns, but also inns, and such houses as are used for trade in the suburbs, and in villages, as well as palaces intended only for pleasure; but the materials, and not the location, are what constitute an urban estate. Hence, if there are any gardens attached to these buildings, it must be said that they are included under the term “urban estates.” It is clear that if these gardens afford more revenue than they do pleasure, that is to say, if they contain vines or olive trees, they should not be designated “urban estates.”

199The Same, On All Tribunals, Book VIII. We should consider a person to be absent who is not in the place where his presence is demanded; for we do not require that he be beyond seas, since he is absent if he happens to be outside the suburbs of the city; but if he is within the suburbs, he is not held to be absent if he does not conceal himself. 1Anyone who has been captured by the enemy is not considered to be absent, but he who is detained by robbers is.

200Julianus, Digest, Book II. The following stipulation, “To furnish a slave free from liability for damage committed,” is not held to apply to such offences as call for public prosecution and punishment.

201The Same, Digest, Book LXXXI. According to a just interpretation it should be understood, as we have often said, that as a daughter under paternal control is included under the term “son,” a grandson should likewise be included; and a grandfather also be understood to be designated by the term “father.”

202Alfenus Varus, Digest, Book II. When it is stated in a will that the heir shall only expend a hundred aurei for funeral expenses, or for the erection of a monument, he cannot spend any less than that amount; but, if he desires to spend more, he can do so, and he will not be considered to have done anything contrary to the terms of the will.

203The Same, Digest, Book VII. It was stated in the law relating to the collection of duties in the harbors of Sicily: “That no one should pay any duty on slaves which he was taking to his own house for private use.” The question arose if anyone should send slaves from Sicily to Rome, for the purpose of cultivating land, whether or not he would be compelled to pay duty on them. The answer was that in this law two points were involved: first, what did the words, “Take to his own house,” mean; and second, what was the meaning of the expression, “For his private use”? Therefore, if the word “house” meant where someone lived, inquiry should be made whether this was in a province, or in Italy; or whether his house could only properly be said to be in his own country. On this point it was decided that anyone’s house should be considered to be where he had his home, kept his accounts, and transacted his business. There is, however, great doubt as to the signification of the expression, “For his private use,” and it was decided that this only had reference to what was prepared for his subsistence. For the same reason it might also be asked with reference to slaves who are alleged to be for the use of their master whether stewards, porters, farmers, overseers, weavers, and farm laborers, who are employed in the cultivation of the soil, from which the owner obtains his living and supports himself, are meant; or whether all the slaves which any person purchased and kept for his own use, as well as those whom he employed for other purposes, and were not bought to sell again, are included. It seems to me that only those destined for the use of the head of the family, who are appointed for his personal service and support, which class includes valets, domestic, servants, cooks, attendants, and all others devoted to employments of this kind are meant.

204Paulus, Epitomes of Alfenus, Book II. The term “boy” has three significations: first, we call all slaves “boys”; second, we speak of a boy in contradistinction to a girl; and third, we make use of the word to denote the age of childhood.

205The Same, Epitomes of Alfenus, Book IV. When anyone sells a tract of land, reserving the fruit, he is understood to reserve the nuts, figs, and grapes whose skins are hard and purple, and are of the kind which we do not use in making wine, and which the Greeks call suitable for eating purposes.

206Julianus, On Minicius, Book VI. It is held that the expression “wine-jars” is properly applied to jars used at the wine press; for casks and other vessels are only classed as such while they contain wine; for, when they cease to do so, they have not this appellation, as they can be put to other uses; for instance, where grain is placed in them. The same rule applies to other earthen jars, when they are used for wine, just as it does to the former, for when they are empty, they are not included in the number of receptacles for wine, because other things can be kept in them.

207Africanus, Questions, Book III. Mela says that slaves are not included in the term “merchandise,” and for this reason those who sell them are not designated merchants, but dealers in slaves; and this is correct.

208The Same, Questions, Book IV. The terms “property” and “estate” apply to everything taken together, including the right of succession, but not to individual articles.

209Florentinus, Institutes, Book X. Where anyone is ordered to do something in the presence of Titius, he is not understood to have done it in his presence, unless Titius understands that this is the case; therefore, if he should be insane, or a child, or asleep, he is not considered to have performed the act in his presence. He must know that it is done, but it is not necessary that he should be willing, for what is ordered will be legally done, even against his consent.

210Marcianus, Institutes, Book VII. It has been decided that he who is born of urban slaves and is sent to the country to be brought up shall be classed as an urban slave.

211Florentinus, Institutes, Book VIII. By the term “real property” all buildings and all land are understood; in speaking of buildings in a city, however, we usually call them sedes, and in the country villas. A site without a building in a city is called area, and in the country ager, and the latter, when a house is erected upon it, is styled fundus.

212Ulpianus, On Adultery, Book I. We call those persons prevaricators who assist the cause of their adversaries, and while on the side of the plaintiff favor that of the defendant; for the term “prevaricator” is derived from the verb “varico,” to straddle.

213The Same, Rules, Book I. The expression “cedere diem” means to begin to owe a sum of money: “venire diem” means the day has come when the money can be collected. When anyone makes an absolute stipulation, the money begins to be due, and the day of payment arrives immediately. When he agrees to pay it at a certain time, the indebtedness begins at once, but the time of payment does not; when he agrees to pay it under a condition, the indebtedness is not incurred, nor is the sum payable, while the condition is pending. 1“Æs alienum” means what we owe to others: “æs suum” is what others owe us. 2Gross negligence is extreme negligence, that is to say, not to know what everybody else knows.

214Marcianus, Public Prosecutions, Book I. An “obligation,” properly speaking, is something which we are obliged to do according to law, custom, or the command of someone who has the right to order it to be done. Gifts, however, are, correctly speaking, things which we voluntarily give without being compelled to do so by either law or our duty; and if they are not given, no one can be blamed, and if they are given, the donor is generally entitled to praise. In a word, it has been decided that the two terms are not interchangeable, but that a gift may properly give rise to an obligation.

215Paulus, On the Lex Fufia Caninia. The word “power” has several meanings: with reference to magistrates, it signifies jurisdiction; with reference to children, it signifies paternal control; with reference to slaves, it signifies the authority of a master. But when we bring suit for the surrender of a slave by way of reparation for damage committed by him, against his master who does not defend him, we mean the body of the slave and the authority over him. Sabinus and Cassius say that, under the Atinian Law, stolen property is considered to have come under the control of the master, if he should have the power to recover it.

216Ulpianus, On the Lex Ælia Sentia, Book I. It is true that when anyone is imprisoned, he is not held to be either chained or placed in chains unless they are attached to his body.

217Javolenus, On the Last Works of Labeo, Book I. There is a great difference between the conditions, “When he will be able to speak,” and “After he shall have been able to speak,” for it is established that the latter has a broader signification than the former, which only has reference to the time when the person can speak for the first time. 1Likewise, when a condition is stated as follows, “Do this in so many days,” if nothing more should be added, the condition must be complied with within two days.

218Papinianus, Questions, Book XXVII. The words “to do,” include everything which can be done; just as “to give,” “to pay,” “to count,” “to judge,” “to walk.”

219The Same, Opinions, Book II. It has been established, that, in agreements, the intention of the contracting parties should rather be considered than the terms of the stipulation. Therefore, when municipal magistrates lease land belonging to their city, under the condition, “that the heir of the person who leases it shall enjoy it,” the right of the heir can also be transferred to his legatee.

220Callistratus, Questions, Book II. By the term “children,” grandchildren and great-grandchildren, and all their descendants are understood, for the Law of the Twelve Tables includes all these under the term “proper heirs.” When the laws consider it necessary to use separate names for different relatives, for instance, sons, grandsons, great-grandsons, and their descendants, they do not mean that this shall extend to all who come after them. But when certain persons or degrees are not specified, but only those are mentioned who are descended from the same stock, they are included under the term “children.” 1Papirius Fronto, however, in the Third Book of Opinions, says that where land, with a farmer and his wife and children, is devised, the grandchildren descended from the sons are also included, unless the intention of the testator was otherwise; for it has been frequently decided that in the term “children,” grandchildren are also included. 2The Divine Marcus stated in a Rescript that anyone who left a grandson his heir was not considered to have died without issue. 3In addition to all this, Nature teaches us that affectionate fathers, who marry with the intention and desire to have children, inelude under the term all who are descended from them. For we cannot designate our grandchildren by a more loving name than that of children, since we have, and rear sons and daughters for the purpose of perpetuating our memory, for all time, by means of their offspring.

221Paulus, Opinions, Book X. Paulus says that he can properly be styled a false guardian who is not a guardian at all; or who is appointed for a minor who already has a guardian, or has none; just as is the case of a forged will, which is not a will at all, or a false measure, which in reality is not a measure.

222Hermogenianus, Epitomes of Law, Book II. By the term “money” not only coin is understood, but all kinds of property, whether it is attached to the soil, or is movable, and which is corporeal as well as incorporeal.

223Paulus, Opinions, Book II. The definition of gross negligence is not to know what all persons know. 1We should not call those persons friends with whom we have only a slight acquaintance; but those with whom our fathers have entertained honorable and familiar relations.

224Venuleius, Stipulations, Book VII. The term “chains” applies to both private or public restraint of liberty; “custody,” however, only has reference to public imprisonment.

225Tryphoninus, Disputations, Book I. A fugitive slave is not one who has merely formed the design of escaping from his master, even though he may have boasted that he intends to do so, but one who actually has begun his flight; for, as anyone may call a person a thief, an adulterer, or a gambler, from certain indications solely arising from his intentions, although he has never stolen anything from the owner, or corrupted any woman, but has merely resolved to do so, when an opportunity offered, still, he cannot be understood to have committed the offence until his design has been executed, and therefore it is established that a slave shall not be considered a fugitive or a vagabond, merely because he has had the intention of becoming one, but only after he has committed the act.

226The Same, Manuals, Book I. Gross negligence is a fault: a great fault is a fraud.

227The Same, Manuals, Book II. Prætorian possession of an estate is not conceded to the heirs of the heir, by the following clause of the Edict: “I will grant possession to him who is the heir of the deceased.” 1Again, in the following substitution, “Whosoever shall be my heir,” only the next heir is meant, or the appointed heir, even if he is not the one next in succession.

228The Same, On Judicial Inquiries. By the term “fellow citizens” is meant those who are born in the same town.

229The Same, On Implied Trusts. We should understand by the expression “matters transacted or completed,” not only such as are in dispute, but also those with reference to which no controversy exists.

230The Same, On the Orphitian Decree of the Senate. Among these are questions which have been judicially decided; are those with reference to which a compromise has been made; and those prescribed by lapse of time.

231The Same, On the Tertullian Decree of the Senate. When we say that a child, who is expected to be born, is considered as already in existence, this is only true where his rights are in question, but no advantage accrues to others unless they are actually born.

232Gaius, On Verbal Obligations, Book I. The statement, “Which are worth more than thirty aurei,” has reference both to a sum of money, and the valuation of property.

233The Same, On the Law of the Twelve Tables, Book I. The following expressions, “If he deceives,” “If he is in default,” “If he frustrates,” are the sources from which the term “calumniators” is derived because they annoy others with lawsuits through fraud and deceit. 1On the third day after the Kalends of January, prayers are offered for the preservation of the Emperor. 2Ordinarily speaking, whatever is discharged from a bow is called a dart; now, however, it means anything which is cast by the hand; and it follows that even a stone, or a piece of wood, or iron, are included in this term. It is so called because it is sent to a distance, and is what the Greeks designate something which is thrown to a distance. We can detect this meaning in the Greek word, for what we call a dart, they style which usually means something dispatched from a bow, but it also signifies anything projected by the hand. Xenophon informs us of this fact, for he says, “They carried darts, spears, arrows, slings, and also stones.” What is sent from a bow is what the Greeks call toceuma, that is to say, an arrow, but by us it is designated by the common name of “dart.”

234The Same, On the Law of the Twelve Tables, Book II. Those whom we style enemies the ancients called perduelles, indicating by this term that they were persons with whom they were at war. 1He is considered solvent who has sufficient property to satisfy any claim which may be brought against him by a creditor. 2Some authorities hold that the term “subsistence” has reference only to food; but Ofilius and Atticus say that under this term clothing and covering of every description are included, for without them no one can subsist.

235The Same, On the Law of the Twelve Tables, Book III. We properly apply the term “to carry,” to what anyone conveys by means of his body; “to transport,” to whatever one conveys by means of a beast of burden; and “to drive” has reference to animals. 1We call workers in wood not only those who polish lumber, but also all those who build houses.

236The Same, On the Law of the Twelve Tables, Book IV. Those who speak of poison, should add whether it is good or bad, for medicines are poisons, and they are so called because they change the natural disposition of those to whom they are administered. What we call poison the Greeks style farmakon; and among them noxious drugs as well as medicinal remedies are included under this term, for which reason they distinguish them by another name. Homer, the most distinguished of their poets, informs us of this, for he says: “There are many kinds of poisons, some of which are good, and some of which are bad.” 1Javolenus says that fruit is whatever has a seed, as in the case of the Greeks who call all kinds of trees akrodrua.

237The Same, On the Law of the Twelve Tables, Book V. A law which contains two negative statements rather permits than forbids. This is also noted by Servius.

238The Same, On the Law of the Twelve Tables, Book VI. The term “plebeian” applies to all citizens except Senators. 1To “call to witness,” is to give evidence. 2The word “pledge” is derived from the fist, because everything which is given by way of pledge is transferred by the hand. Wherefore some authorities hold, and it may be true, that a pledge, properly speaking, can only consist of movable property. 3All offences are embraced in the term “noxia.”

239Pomponius, Enchiridion. A minor is one who has not yet reached the age of puberty, and has ceased to be under the control of his father, either by the death of the latter or his own mancipation. 1The term “slaves” is derived from the fact that the commanders of our armies formerly were accustomed to sell their captives, and preserved them for this purpose, in preference to putting them to death. 2An inhabitant is one who has his domicile in some country, and whom the Greeks call paroikon, that is, “adjoining.” Those who dwell in cities are not called inhabitants, any more than those who have land near some town, and betake themselves to it, as to a resort. 3A public employment is an office conferred upon some private individual, by means of which extraordinary benefit results to the citizens individually and collectively, as well as to their property through his magisterial authority. 4A stranger is one whom the Greeks style apoikon, that is to say, one who has left his home to become a colonist. 5Certain authorities hold that decurions are so called for the reason that, in the beginning, when colonies were established, the tenth part of those who founded them, were usually formed into a body for the purpose of giving public counsel. 6The word “city” is derived from the verb urbo, which means to mark a boundary with a plow. Varus says that the curve of a plowshare, which is ordinarily used for tracing the boundaries of a city about to be built, is called urbum. 7The term “fortified town” (oppidum), is derived from ops, for the reason that its walls are constructed to provide for the safety of property. 8The word “territory” means all the land included within the limits of any city. Some authorities hold that it is so called, because the magistrates have a right to inspire fear within its boundaries, that is to say, the right to remove the people. 9It is doubtful whether the term “his” means the whole or a part; and therefore anyone who swears that something is not his should add that he has no joint-ownership in it with another.

240Paulus, On the Six Books of Imperial Decrees having Reference to Judicial Inquiries, Book I. The question arose whether the expression, “The dowry shall be returned in case the marriage is dissolved,” refers not only to divorce, but also to death; that is to say, whether this was the intention of the contracting parties in the present instance; and several authorities think that it was the intention, while the contrary opinion is held by others. On this account, the Emperor decided that “the agreement was that, under no circumstances, the dowry should remain in the hands of the husband.

241Quintus Mucius Scævola, Definitions. Movable property is such as is not attached to the soil, that is to say, everything which does not form part of a building or other structure.

242Javolenus, On the Last Works of Labeo, Book II. Labeo says that a mast forms part of a ship, but that small sails do not, because many ships would be useless without masts, and therefore they are considered as belonging to ships; sails, however, are held to be rather an addition to than parts of a vessel. 1Labeo says that a difference exists between what projects over, and what is inserted into anything as a projection, is put forward in such a way that it does not have a support, as for instance, balconies and roofs; and whatever is inserted into a building rests upon something, for example, joists and beams. 2Labeo says that where lead is used instead of tile to cover a house, it forms part of it; but that where it is used for the purpose of covering an open gallery it does not. 3Labeo says that a widow is not only a woman who has been married at some time, but also one who has not had a husband; for the term is also applied to a person who is idiotic or insane, and the word also means without the union of two persons. 4Labeo also says, that a building composed of boards erected for the purpose of protecting any place during the winter, and which is removed in the summer, is a house; as it is designed for perpetual use, although it is not attached to the soil, for the reason that it is removed for a part of the time.

243Scævola, Digest, Book XVIII. Scævola gave it as his opinion that it was generally accepted that those persons should be understood to be included in the term “freedmen” who have been manumitted under a first or a succeeding will, unless he by whom they were claimed could clearly show that this is contrary to the intention of the deceased.

244Labeo, 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.

245Pomponius, Epistles, Book X. Statues attached to their pedestals, pictures hung by chains or fastened to the walls, and lamps similarly affixed, do not form part of a house; for they are rather placed there as ornaments than as constituting parts of buildings. 1Labeo also says that the wall usually placed in front of a house constitutes a part of it.

246The Same, Letters, Book XVI. It is stated in the “Probabilities” of Labeo that the expression “To produce” has reference to the exhibition in court of the property in dispute. For anyone who appears in person does not, for that reason, produce the property in dispute; and he who produces a person who is either dumb, insane, or an infant, is not considered to produce him at all; for no one of this kind can, under any circumstances, properly be said to be present. 1The term “restitution” has reference not only to the body of the thing itself, but also to every right and condition attaching to it; hence complete restitution is meant by the law.