Africanus, Questions, Book VI. Therefore, he cannot be considered to properly defend an action in accordance with the judgment of a good citizen, who, by thwarting the plaintiff, prevents the matter in controversy from being brought to a conclusion. 1Where an agent is appointed to bring suit for two things, and he does so for only one, he will not be barred by an exception, and has brought the case into court properly.

Africanus, Questions, Book VI. Where a tract of land is held in common by you and myself, and you have conveyed your portion of it to me, and also a right of way to said tract through your own adjoining property; it was held that the servitude was properly created in that way; and that, in this instance, the ordinary rule that servitudes cannot either be imposed or acquired with reference to shares is not applicable; for in this case the servitude is not acquired with reference to a share, but is acquired with reference to the time when the entire property shall belong to me.

Africanus, Questions, Book VI. Generally speaking, if I bring a noxal action against you on account of the slave of a third party, who is serving you in good faith, and you surrender him to me by way of reparation; and then if, while I am in possession of him, his owner brings suit to recover him, I can bar him with an exception on the ground of malicious fraud, unless he tenders the damages which have been assessed; but if the owner himself should be in possession, I am entitled to the Publician Action, and if the defendant makes use of the exception, “Unless the defendant is his owner,” a replication based on malicious fraud can be interposed for my benefit. In accordance with this I can acquire ownership by use, although I am aware that I am in possession of the property of another, and, in fact, if it had been otherwise established, the result would be that a bona fide possessor would be subjected to the greatest injustice; since while, as a matter of law, he would be liable in a noxal action, the necessity is imposed upon him to submit to the payment of the damages assessed in the case. The same principle applies where no defence is made with reference to the slave, and I take him away by order of the Prætor; since, in this instance also, I have a legal ground of possession.

Ad Dig. 21,1,34ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Africanus, Questions, Book VI. Where several things of the same kind are sold at the same time, as, for instance, slaves, comedians, or singers, it is held that it must be ascertained whether one price was paid for all of them, or whether payment was made for each individually, since sometimes one sale, and then again, several, are understood to have been made. It is important for this to be asked, so that if any of said slaves happens to be diseased or unsound, it may be determined whether all of them should be returned at the same time. 1Sometimes, although prices have been fixed for each head, there is still but one purchase, so that all of them can be, or should be returned on account of the defect of a single one; for instance, where it is evident that the intention was to purchase or to sell them all together, as frequently occurs where slaves are actors; or where four-horse teams, or a pair of mules, are sold; so that it may be advantageous for the parties to have all, or none of them.

Africanus, Questions, Book VI. Still, we cannot say that the result will be that the stipulation becomes operative if the woman is about to marry the true owner of the slave, and gives him as dowry, even though she will, in this instance, not have any dowry; since, indeed, while it is true that she has no right to the slave, yet it is not a fact that she has been deprived of him by a judicial proceeding; and she will, nevertheless, be entitled to an action on purchase against the vendor.

Africanus, Questions, Book VI. You sold me a tract of land the usufruct of which belonged to Attius, but you did not mention that he was entitled to the usufruct. I sold the said tract to Mævius, after having reserved the usufruct. Attius was deprived of his civil rights, and it was held that the usufruct reverted to the property, for it could not vest in me at a time when it belonged to someone else. I could, however, bring suit against you, as vendor, on the ground of eviction, because it is just that I should be in the position in which I had a right to be, if the usufruct was then separated from the land. 1If you should grant me a right of way through the premises of another, it is held that you are liable in case of eviction; for wherever a right of way is granted through property belonging to the party who gives it, or whether it is granted through the land of another, he assumes liability for eviction. 2If I should sell you Stichus, and state that he is to be free on a certain condition, and that his manumission was dependent on the arrival of a ship from Asia, while the condition really was that if Titius should become consul he should be manumitted; the question arises if the ship should first come from Asia, and Titius should afterwards become consul, and the ownership of the slave should be lost through his obtaining his freedom; would I be liable on the ground of eviction? The answer was that I would not be liable, because the purchaser was guilty of bad faith, as the condition was fulfilled before he lost the property by eviction. 3Moreover, if I stated that a slave would be free after two years, while, in fact, he ought to become free at the end of a year, and after the lapse of two years he obtains his freedom; or if I should say that he was entitled to his freedom on the payment of five aurei, while, in reality, he had been ordered to pay ten, and, the ten having been paid, he gains his freedom; the better opinion is that in these instances I will not be liable.

The Same, Questions, Book VI. Where a husband, during his lifetime, gave certain property to his wife, and then bequeathed it to her in the ordinary way, it is held that the testator only had in his mind such donations as would not be valid by law, otherwise he would have bequeathed the legacy in vain, just as if he had expressed himself as follows: “I bequeath what I have legally presented to my wife,” or, “What I have given to my wife for the purpose of manumitting her slave, I do now bequeath to her,” as in both these instances the legacy would be void. 1An heir who was charged with a trust to deliver to me a certain tract of land, or pay me a hundred aurei, sold the land to Titius. As the choice was left to the heir of giving whichever he pleased, provided he gives me the entire property, I think that it is the duty of the Prætor, if Titius tenders the money, to forbid an action for the recovery of the land, since the case stands upon the same footing as it would if the land had not been sold; for, where an action is brought against the heir, the Prætor or the arbitrator ought to appraise the land at not more or less than a hundred aurei, if it should not be delivered.

Africanus, Questions, Book VI. Where a testator appointed his son and his grandson his heirs, and gave to his grandson under a trust certain lands, and whatever might be on them at the time of his death “with the exception of his account book,” and, when he died, a sum of money was found in his chest in which the notes and bonds of his debtors were kept, it was held by several authorities to be hardly probable that the testator had the said money in his mind when he created the trust. I, however, think that, when anyone wishes his account-book to be delivered to another, it should be taken into consideration, whether it ought to be understood that he expected only the notes of his debtors to be delivered, or whether he also included the money which might be found, if it was derived from the collection of claims, and was intended to be loaned again. I go still further, and hold that if the money had been collected and again invested in a similar manner, the change of obligations would neither annul or diminish the effect of the trust, so that if the same money was intended to be placed in the account book, that is to say for the purpose of making new loans, it would still be payable to the beneficiary under the terms of the trust. Again, I think that it can be maintained that not only the money collected from the debtors, but also such as was obtained from any other source with the intention of being invested in the same way, would belong to the beneficiary.

Africanus, Questions, Book VI. A person appointed sole heir to an estate, having been charged to transfer half of it to me absolutely, and half to you conditionally, alleged that he had reason to believe it to be insolvent, and upon my application entered upon the estate, and transferred the whole of it to me under the Decree of the Senate. When the condition was fulfilled, a doubt (which was not without foundation) arose, as to whether I should transfer to you the income of your share. It is held by several authorities that this should not be transferred, because it would not be paid by the heir if he had voluntarily accepted the estate, and it is sufficient for your right to be preserved unimpaired without your condition being improved. 1Still, the same authorities hold that where a person is appointed sole heir to an estate, and is asked to transfer a fourth of the same to me absolutely, and a fourth to you under a condition, and alleges that he has reason to think the estate to be insolvent, and is compelled by me to enter upon it, half of the estate must be delivered to you when the condition has been fulfilled. 2I do not think that in the proposed case I can avail myself of the Falcidian Law, although the appointed heir can do so, if he should have entered upon the estate voluntarily.

Africanus, Questions, Book VI. Where anyone stipulates as follows, “If a ship should come from Asia, or Titius should be made Consul,” no matter which condition is first fulfilled, the stipulation will become operative, but this will not be done a second time. For when one of two distinct conditions fails, the one which is fulfilled will necessarily render the stipulation operative.

Africanus, Questions, Book VI. The following stipulation, “As long as the case is not defended,” is annulled whenever the defence begins, or as soon as the obligation to defend it is at an end.

The Same, Questions, Book VI. A father, in the absence of his daughter, demanded a dowry which had been given by him, and furnished security that she would ratify the transaction, but she died before doing so. It was denied that the stipulation took effect; because although it was true that she had not ratified his act, her husband, nevertheless, had no interest in having the dowry transferred to him, for the entire dowry should be returned to the father after the death of his daughter. 1An agent, having collected money from a debtor who could have been released by lapse of time, gave security that his principal would ratify his act; and then, after the debtor had been released by prescription, the principal ratified it. It was held that the debtor, after having once been released, could bring an action against the agent; and the proof of this is, that if no stipulation was interposed, a personal action for recovery could be brought against the agent; but the stipulation had been introduced instead of such an action.