Paulus, Epitomes of the Digest of Alfenus, Book III. Where several heirs were appointed, and one of them at the time was in Asia, his agent made a sale and kept the money as the share of his principal. It was subsequently ascertained that the heir who was in Asia had previously died, after having appointed his agent heir to half his share and another party to the other half; and the question arose in what way an action to recover the money derived from the estate could be brought? The answer was that it ought to be brought for the entire estate against the party who had been the agent, because the money belonging to the estate had come into the possession of the said agent through the sale; nevertheless, they must bring an action against this co-heir for half the estate. The result would then be that if all the money was in the possession of the party who had been the agent, they might recover the entire amount from him, with the assistance of the court; or if he had returned half of it to his co-heir, they could take judgment against him for half, and against his co-heir for the other half.

Paulus, Epitomes of The Digest of Alfenus, Book III. Where a man was sued for the recovery of a slave and also for a theft committed by the said slave; the question arose what it would be necessary for him to do if judgment was rendered against him in both cases, if the slave was recovered from him in the first place? The answer was that the judge should not compel him to deliver the slave, unless security was previously furnished that where any damages were paid by him he should be fully reimbursed for them, because he had joined issue in a case involving the same slave. Where, however, judgment was first rendered in the case involving the theft, and he surrendered the slave by way of indemnity, and then another judgment was rendered in favor of the plaintiff in the action for the recovery of the slave; the judge should not make an estimate of damages because the slave was not surrendered, since no negligence or malice could be attributed to the party in failing to deliver the slave.

Paulus, Epitomes of the Digest of Alfenus, Book III. A single joint-owner cannot legally put a slave owned in common to torture, except with respect to some matter in which all the parties were interested.

Paulus, Epitomes of the Digest of Alfenus, Book III. Where a ship is sunk or stranded, the opinion was given that whatever each one saves out of his own property he can keep for himself, just as in case of fire.

The Same, Epitomes of the Digest of Alfenus, Book III. Two persons formed a partnership to teach grammar, and to share among themselves any profits that might be obtained from this profession. After having agreed in the articles of partnership on what they wished to be done, they then stipulated with one another as follows: “Whatever is written above must be carried out, and cannot be opposed, and if the said provisions are not complied with, then twenty thousand sesterces shall be paid.” The inquiry arose whether if any of these provisions was violated, an action on partnership could be brought? The answer was that if, after their agreement had been made with reference to the partnership, they had stipulated as follows: “Do you promise that these provisions shall be observed as herein set forth?” The result would be that if the parties had done this for the purpose of changing their contract, an action on partnership would not lie, but the whole matter would be considered to have become a stipulation. But if they had not stipulated in these terms, “Do you promise that these provisions shall be observed as herein set forth?” but, as follows, “If these provisions are not observed, then ten aurei shall be paid;” it was held by him that the matter had not become a stipulation, but only what related to the penalty had been altered, because the party promising had not bound himself to do both things, that is, he would make payment and also perform the agreement, and that if he did not do so he would suffer the penalty; and therefore an action on partnership would be available. 1Two fellow freedmen formed a partnership for the purpose of sharing all “gains, profits, and emoluments,” and afterwards one of them, having been appointed an heir by his patron, a legacy was left to the other. The answer was that neither of them was obliged to place what he received in the partnership fund.

Paulus, Epitomes of the Digest of Alfenus, Book III. The ædile broke up some beds which a party had purchased, and which had been left on the highway. If they had been delivered to the purchaser, or if he was to blame for their not having been delivered, he must bear the loss.

Paulus, Epitomes of the Digest of Alfenus, Book III. If the beds had not been delivered, and the purchaser had not prevented their delivery by delay, the loss must be borne by the vendor. 1Where materials that have been purchased are lost by theft, after delivery, it is held that the purchaser must bear the loss; otherwise, the vendor must do so. Timbers are considered to have been delivered as soon as the purchaser has marked them.

Paulus, Epitomes of Alfenus, Book III. Whatever the vendor states is an accessory must be delivered sound and in good condition; as, for instance, where he says that a certain number of casks are an accessory to the land, he must furnish them whole and not broken.

The Same, Digest of Epitomes by Paulus, Book III. A man who rented a house for thirty aurei, sub-let the separate rooms on such terms that he collected forty for all of them. The owner of the building demolished it, because he said that it was about to fall down. The question arose what the amount of damages should be, and whether the party who rented the entire house could bring an action on lease. The answer was that if the building was in such a bad condition that it was necessary to tear it down, an estimate should be made, and the damages assessed in proportion to the amount for which the owner had leased the premises, and that the time when the tenants were unable to occupy them should also be taken into consideration. If, however, it was not necessary to demolish the house, but the owner did so because he wished to build a better one, the judgment must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises. 1An ædile rented baths in a certain town for the term of a year, in order that they might be used gratuitously by the citizens. The baths having been destroyed by fire after three months, it was held that an action on lease could be brought against the proprietor of the baths, that a part of the price should be refunded in proportion to the time during which the baths were not available. 2Inquiry was made as to the action to be brought where a man hired mules to be loaded with a certain weight, and he who hired them injured them with heavier loads. The answer was that the owner could legally proceed either under the Lex Aquilia or in an action on lease, but that, under the Lex Aquilia, he could only sue the party who had driven the mules at the time; but, by an action on lease, he could properly proceed against him who hired them, even if someone else had injured them. 3A man who contracted for the building of a house stated in the agreement: “I will furnish the stone necessary for the work, and the owner shall pay to the contractor seven sesterces for each foot, and as much for the stone as for the labor.” The question arose whether the work must be measured before, or after it was completed. The answer was that it should be measured while it was still unfinished. 4A tenant received a house under the condition that he would return it uninjured, except so far as damage might result through violence or age. A slave of the tenant burnt the house, but not accidentally. The opinion was given that this kind of violence would not appear to have been excepted; and that it was not agreed that the tenant should not be responsible if a slave burnt it, but that both the parties intended that violence exerted by strangers should be excepted.

Alfenus, Epitomes of the Digest of Paulus, Book III. Two persons were walking along the Tiber; one of them having asked the other to show him his ring, he did so, and, while he was examining it, it fell from his hands and rolled into the Tiber. The opinion was given that an action in factum was available.

Alfenus, Epitomes of the Digest by Paulus, Book III. It is different where a father, in promising a dowry for his daughter, agrees that it shall be paid by him in one, two, three, four, and five years; and states that it shall be returned in the same manner, if the marriage should be dissolved, for this agreement will be valid if the daughter should become the heir of her father, and if she was present at the time when the contract was made.

Alfenus, Epitomes of the Digest by Paulus, Book III. A certain man requested his wife to cut down an olive plantation which was on the dotal land, in order to replace it with a new one. The man afterwards died after bequeathing the dowry to his wife, and it was decided that the wood which had been cut from the olive trees should be returned to her.

Alfenus, Epitomes of the Digest by Paulus, Book III. Where a slave, held in common by a husband and his brother, gave a young slave to the wife of the brother, it was held that the gift was not valid so far as the share belonging to the husband, which the slave had given, was concerned. 1The law will be the same where one of three brothers has a wife and gives her property held in common by them all, for one-third of the gift will not belong to the wife; but with reference to the other two-thirds, if the brothers knew that they were given, or, after this Was done, they confirm the act, the woman will not be obliged to make restitution.

Alfenus, Epitomes of the Digest by Paulus, Book III. I think that such things as are intended for the ordinary use of the head of the family should be included among household goods, where they have no distinct name peculiar to them. Therefore, articles which are employed in some trade, and are not adapted to the ordinary use of the head of the family, are not embraced in the term household goods. 1Small writing tablets and memorandum books are not classed as household goods.