Javolenus, On the Last Works of Labeo, Book I. Where a slave has tertian or quartan fever, or gout or epilepsy, he it not held to be legally sound, even on days when he is free from these diseases.

Javolenus, On the Last Works of Labeo, Book I. A man had, by his son, two grandsons who were under puberty, one of whom was under his control, and the other was not. He wished them to inherit equal portions of his estate, and provided that, if either of them died before reaching the age of puberty, his share should be transferred to the other; and in compliance with the advice of Labeo, Ofilius, Cascellius, and Trebatius, he appointed as his sole heir the grandson who was under his control, and charged him with the delivery of half of his estate to his other grandson when he arrived at puberty, and substituted the other heir for the one who was under his control, if the latter should die before reaching that age. 1We can substitute two heirs under different conditions for a son under the age of puberty; for instance, one of them can be substituted if the son should have no children, and another child should be born and die before reaching the age of puberty. 2A certain testator appointed four heirs, and substituted others for all of them except one, and the one for whom no substitute had been appointed, as well as one of the others, died during the lifetime of the father. Ofilius and Cascellius held that the share of the one for whom no one had been substituted also belonged to the substitute of the deceased heir; which opinion is correct.

Javolenus, On the Last Works of Labeo, Book I. A father appointed his emancipated son his sole heir, and ordered that, if he should not become his heir, his slave should be free and be his heir. The son demanded prætorian possession of his father’s estate on the ground of intestacy, alleging that he was insane, and in this way obtained possession of it. Labeo says that if his father should be proved to have been of sound mind when he made his will, the son will be his heir by virtue of the will. I think that this opinion is incorrect, for where an emancipated son declines to accept an estate given to him by will, it immediately passes to the substituted heir; nor can he be held to have acted in the capacity of heir who demands prætorian possession under another section of the Edict, in order to avoid taking advantage of his rights under the will. Paulus: “Proculus disapproves of the opinion of Labeo, and adopts that of Javolenus.”

Javolenus, On the Last Works of Labeo, Book I. Antistius Labeo says that if an heir is appointed as follows: “Let him be my heir, if he will make oath”, he will, nevertheless, not become the heir at once, even though he should be sworn before he performs some act in that capacity; because by taking the oath he is held merely to have disclosed his intention. I think, however, that he has acted in the capacity of heir if he has taken the oath as such. Proculus entertains the same opinion, and this is our practice. 1Where a slave is appointed an heir, and is alienated after having been ordered by his master to accept the estate, before he does so, a new order by his second master, and not that of his old one, is required.

Javolenus, On the Last Works of Labeo, Book I. Where a condition has reference to a certain class of persons, and not to individuals who are well known, we think that it relates to the entire will, and to all the heirs who have been appointed; but where the condition only has reference to certain individuals, we should consider it as relating only to that degree in which the said parties have been appointed heirs. 1Where a clause was inserted in a will providing that a “building may be erected in the Forum,” and it is not stated in what Forum, Labeo says that if it does not appear what the intention of the deceased was, the building should be erected in the Forum of the town in which the party who made the will resided. I also approve this opinion.

Javolenus, 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.

Javolenus, On the Last Works of Labeo, Book II. The slave of two masters was appointed an heir and ordered to enter upon the estate; if he did so, by the order of one of them, and then was manumitted, he could himself become the heir of half the said estate by entering upon the same.

Javolenus, On the Last Works of Labeo, Book II. “I charge my heir to deliver my slave, Stichus, to Lucius Titius,” or “Let him deliver my slave to him.” Cascellius says that, under a clause of this kind, the slave must be delivered; and Labeo approves his opinion, because where anyone is ordered to deliver anything, he is at the same time ordered to give it. 1A legacy of two marble statues, as well as all the marble in the possession of the testator was specifically bequeathed to a certain individual. Cascellius thinks that no other marble statue, except the two mentioned, is due. Ofilius and Trebatius are of the contrary opinion. Labeo adopts the conclusion of Cascellius, which I believe to be correct, because by leaving two statues, it can be held that the testator did not intend to leave any more when he bequeathed the marble. 2“I give and bequeath to my wife her clothing, jewels, and all gold and silver plate, which I have had made for her, or intended for her use.” Trebatius thinks that the words, “Which I have had made for her or intended for her use,” only refer to the gold and silver plate. Proculus holds that they refer to everything mentioned, and this opinion is correct. 3In a case where Corinthian vases were bequeathed to a certain person, Trebatius was of the opinion that the pedestals made to support them were due, as part of the legacy. Labeo, however, does not adopt this opinion, if the testator considered the said pedestals as vases. But Proculus very properly says that if the vases were not of Corinthian brass, they could be claimed by the legatee. 4Where articles made of tortoise-shell are bequeathed, Labeo and Trebatius are of the opinion that beds inlaid with tortoise-shell, whose feet are covered with silver, are due, which is correct.

Javolenus, On the Last Works of Labeo, Book II. Where an usufruct is bequeathed to a woman until her dowry has been entirely paid, and one of the heirs gives her security for his share of the estate but the others do not; Labeo says that the woman will cease to enjoy the usufruct to the extent of said share. The same will take place where the woman is in default in accepting the security. 1An owner left to his tenant the usufruct of certain land which he cultivated. The tenant will have a right of action against the heir, in order that the judge may compel the latter to release him from liability under his contract.

Javolenus, On the Last Works of Labeo, Book II. When a bequest is made as follows, “I give and bequeath to Publius Mævius all the annual crops of the Cornelian Estate,” Labeo thinks this should be understood to be the same as if the usufruct of the land had been left, because this seems to have been the intention of the testator.

Javolenus, On the Last Works of Labeo, Book II. A certain individual charged his heir to give to his wife wine, oil, grain, vinegar, honey, and salt-fish. Trebatius said that the heir was not obliged to deliver any more of each article to the woman than he desired, since it was not stated how much of each article was to be given. Ofilius, Cascellius, and Tubero think that the entire amount of the said articles which the testator left was included in the legacy. Labeo approves of this, and it is correct. 1“Let my heir deliver to Lucius Titius a hundred measures of wheat, each of which shall weigh a hundred pounds.” Ofilius holds that nothing is bequeathed, and Labeo agrees with him, as wheat of this kind does not exist; which opinion I think to be true.

Javolenus, On the Last Works of Labeo, Book II. A certain testator had two adjoining tracts of land, and the oxen used on one tract, after the work there was completed, were then removed to the other. He bequeathed both tracts, with all the equipment. Labeo and Trebatius think that the oxen ought to belong to the land where they worked, and not where they were accustomed to remain. Cascellius holds the contrary opinion. I adopt the view of Labeo.

Javolenus, On the Last Works of Labeo, Book II. When the equipment of a tract of land is devised, Tubero thinks that all the cattle which the land can support are included in the devise. Labeo is of the contrary opinion, for he says if, when the land could support a thousand sheep, two thousand were kept there, how many of them should we decide ought to be included in the devise? No inquiry should be made as to how many sheep the testator ought to have had there for the purpose of constituting the number to be included in the devise, but how many he actually had on the land; for the estimate should not be made from the number or the amount that was left. I concur in the opinion of Labeo. 1A certain individual, who had potteries on his land, employed the services of his potters for the greater portion of the year in farm labor, and afterwards devised the land with its equipment. Labeo and Trebatius think that the potters should not be included in the equipment of the land. 2Where all the equipment of a tract of land was left with the exception of the cattle, Ofilius improperly holds that the shepherds and the sheep are included in the bequest.

Javolenus, On the Last Works of Labeo, Book II. Where toilet articles intended for women are bequeathed to a wife, Ofilius and Labeo gave it as their opinion that she will only be entitled to such as have been given to her by her husband for her own use. If this should be interpreted otherwise, great harm would result when a goldsmith or a silversmith makes such a bequest to his wife. 1Where a legacy was bequeathed as follows, “I leave to So-and-So the silver which may be found in my house at the time of my death,” Ofilius holds that silver deposited with the testator or loaned to him, ought not to be included. Cascellius is of the same opinion with reference to silver that was loaned. Labeo thinks that what was deposited with him will be due to the legatee, if it was left with him forever as treasure, and not merely for temporary safe-keeping; because the words, “Which may be found in my house at the time of my death,” should be understood to mean that which was ordinarily there. I approve of this opinion. 2Attius says Servius held that where a testator left a certain person the silver “which he might have on his Tuscan estate when he died;” that also was included in the legacy, which, before the testator’s death, had, by his direction, been taken from the city to the Tuscan estate. The case, however, would be different if it had been removed without his order.

Javolenus, On the Last Works of Labeo, Book II. Any balance due on the lease is also included in the legacy.

The Same, On the Last Works of Labeo, Book II. If your neighbor should, upon certain days, hinder you from using a highway when you wish to travel upon it in order to comply with a condition, and you are not to blame for not bringing an action against him to prevent him from doing this, these days shall not be included in the time imposed by the condition. 1A certain man made a bequest as follows, “If Publius Cornelius should pay my heir for the expense which I have incurred with reference to the Seian Estate, then let my heir deliver the Seian Estate to Publius Cornelius.” Cascellius said that the legatee ought also to pay to the heir the price of the land. Ofilius denies that the price is included in the term “expenses,” but that only those expenses are meant which the party paid out of the land after it had been purchased. Cinna holds the same opinion, and adds that an account of the expenses must be taken without deducting the profits. I think that this is the better opinion. 2A testator bequeathed a hundred aurei to Titius, and afterwards made the following provision in his will, “Let my heir give the sums of money which I have bequeathed, if my mother should die.” Titius survived the testator, and died during the life of the mother. Ofilius gave it as his opinion that, after the death of the mother, the heirs of Titius were entitled to the legacy, as it had not been left under a condition, but had been bequeathed absolutely in the first place, and the time of its payment had been added afterwards. Labeo says, “Let us see if this opinion is not false,” because it makes no difference whether a bequest is made as follows, “Let my heir pay to my legatee the money which I have bequeathed to him, if my mother should die,” or, in these terms, “Let him not pay the money, unless my mother should die,” for, in either instance, the legacy is given or taken away under a condition. I approve the opinion of Labeo. 3A master bequeathed five aurei to his slave, as follows: “Let my heir pay to my slave Stichus, whom I have ordered to be free by my will, the five aurei which I owe him on account.” Namusa says that Servius gave it as his opinion that the bequest of the slave was void, because a master cannot be indebted to his slave. I think that, according to the intention of the testator, the debt should rather be considered a natural than a civil one, and this is the present practice. 4A husband, who had received no dotal land, made the following testamentary disposition, “Let my heir give to my wife the Cornelian Estate, which she gave to me as her dowry,” Labeo, Ofilius, and Trebatius held that the devise of the land was, nevertheless, binding, because as the Cornelian Estate actually existed, the false designation did not affect the devise. 5Thermus Junior mentioned in his will the names of certain persons by whose advice he desired a monument to be erected to himself, and then made the following bequest, “Let my heir pay to Lucius, Publius, and Cornelius a thousand aurei for the purpose of erecting my monument.” Trebatius gave it as his opinion that this is just the same as if the bequest had been made on condition that the party should give security for the erection of the monument with the said money. Labeo concurs in the opinion of Trebatius, because it was the intention of the testator that the sum should be used for the erection of a monument. Both Proculus and myself approve this opinion.

Javolenus, 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.

Javolenus, On the Last Works of Labeo, Book III. If I have the usufruct of a garden, and a river covers it and then recedes; it is the opinion of Labeo that the usufruct is also restored, because the soil always remained in the same legal condition. I think that this is true only where the river covered the garden by reason of an inundation; for if its bed was changed and it flowed in that direction, I think that the usufruct is lost, as the ground of the former bed becomes public property, and cannot be restored to its former state. 1Labeo states that the same rule of law should be observed with reference to a right of way and a road; but I am of the same opinion with reference to these things as I am with reference to the usufruct. 2Labeo says that even if the surface of the ground is removed from my field and replaced with other soil, the land does not, for this reason, cease to be mine, any more than if the field were covered with manure.

Javolenus, On the Last Works of Labeo, Book II. The power of giving property in pledge is a product of the same.

Javolenus, On the Last Works of Labeo, Book III. A certain man who was accustomed to set down in his expense account all his clothing, as well as articles of different kinds, as “furniture,” bequeathed his household goods to his wife. Labeo, Ofilius, and Cascellius very properly deny that the clothing was embraced in the legacy, because it cannot be said that clothing is classed as furniture.

Javolenus, On the Last Works of Labeo, Book III. A certain individual that owned the slave Flaccus, who was a fuller, and Philonicus, who was a baker, left to his wife the baker Flaccus; and the question arose which of the slaves was due, and whether both of them were not included in the legacy. It was held, in the first place, that that slave was bequeathed whom the testator intended should form part of the legacy. If this could not be ascertained, an investigation should then be made to learn whether the master knew the names of his slaves. If this was the case, the slave would then be due whom he mentioned by name, even if he had made a mistake with reference to his trade. Where, however, the names of the slaves were unknown to him, the baker should be considered to be the subject of the legacy, just as if his name had not been mentioned.

Javolenus, On the Last Works of Labeo, Book III. The profits of any kind of property can be given in pledge.

Javolenus, On the Last Works of Labeo, Book IV. In a contract for the sale of land, the quarries on said land, wherever they might be, were reserved, and after a long time quarries were found on said land. Tubero gave it as his opinion that they belonged to the vendor; Labeo held that the intention should be considered, arid if this could not be ascertained, the said quarries could not be held to have been reserved, for no one would sell or reserve something which was not in existence, and no quarries are in existence unless they are visible and are worked. In case a different interpretation should be given, the entire tract would constitute a quarry if there should happen to be stone under all of it. I approve this opinion.

Javolenus, On the Last Works of Labeo, Book IV. A former slave had a son who was a freedman, and whom he appointed his heir, and he then inserted into his will: “If I should have no son who will become his own master, then let Damas the slave be free”. The minor son of the testator had been emancipated. The question arose whether Damas should be free. Trebatius declares that he should not, because the term freedman is also included in the appellation of son. Labeo holds the contrary opinion, because in this instance a true son must be understood. I adopt the view of Trebatius, in case it should become evident that the testator had reference to the said son.

Javolenus, On the Last Works of Labeo, Book IV. Labeo holds that a slave who is insane can be manumitted and obtain his freedom by every proceeding known to the law.

Javolenus, On the Last Works of Labeo, Book IV. “I give and bequeath Stichus to Attius, and if he pays him a hundred sesterces, let him be free.” If the slave pays the sesterces to Attius under the terms of the will, Labeo holds that the heir cannot recover them, because Attius received them from his own slave, and not from the slave of the heir. Quintus Mucius, Gallus, and Labeo himself think that the slave should be considered conditionally free, and Servius and Ofilius think that he should not. I adopt the former opinion, that is to say, that the slave belongs to the heir and not to the legatee, just as if the legacy had been taken away by the grant of freedom. 1“Let Stichus be free, when my debts are paid, or my creditors are satisfied.” Even though the heir should be rich, Stichus will, nevertheless, not be free before the creditors have received their money, or their claims have been satisfied, or security has been furnished them in some other way; which is the opinion of Labeo and Ofilius. 2Labeo and Trebatius held that if the heir should give a slave money for the purpose of transacting business he cannot become free under the terms of the will, by paying this money, because he is considered rather to have returned it than to have paid it. I think, however, that if the money formed part of his peculium, he will become free under the testamentary provision. 3“Let my slave Damas be free, after he has given his services to my heir for seven years.” The slave was implicated in a capital crime during the seven years, and the last year having elapsed, Servius stated that he should not be liberated. Labeo, however, held that he would be free after having served his master for seven years. This opinion is correct. 4Ad Dig. 40,7,39,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.“Let Stichus be free, if he pays a thousand sesterces to Attia.” Attia died during the lifetime of the testator. Labeo and Ofilius were of the opinion that Stichus could not become free. Trebatius agreed with them, if Attia died before the will was made; but if she died afterwards, he held that the slave would be free. The opinion of Labeo and Ofilius is reasonable, but it is our practice to consider the slave as free under the terms of the will. 5Where a slave is ordered to serve a stranger, no one can liberate him by furnishing his own labor in the name of the slave. The rule, however, is different where the payment of money is concerned; as, for instance, where a stranger liberates a slave by paying money in his behalf.

Javolenus, On the Last Works of Labeo, Book V. As often as a right of way or any other right attaching to land is purchased, Labeo is of the opinion that security should be given that nothing will be done by you to prevent the purchaser from availing himself of his right, because there can be no open delivery of a right of this description. I think that the use of such a right must be considered as equivalent to delivery of possession; and therefore interdicts corresponding to those relating to possession have been established.

Ad Dig. 18,1,79ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufgeldes nicht baar, sondern in Actien.Javolenus, On the Last Works of Labeo, Book V. You sold half of a tract of land on condition that the purchaser would lease you the other half, which you reserved for the term of ten years at a certain rent, payable annually. Labeo and Trebatius deny that an action on sale can be brought, to compel the purchaser to comply with what he agreed to. I am of the contrary opinion, even if you sold the land at a very low price in order that this lease might be made to you; for this is held to be part of the price of the land, since it was sold under this agreement. This is the law at the present time.

Javolenus, On the Lost Works of Labeo, Book V. Marcius was employed to build a house by Flaccus. After the work was partly done the building was destroyed by an earthquake. Massurius Sabinus says that if the accident took place through some force of nature, as for instance, an earthquake, Flaccus must assume the risk.

Javolenus, On the Last Works of Labeo, Book V. Where anyone who makes a will after having mentioned the first heirs loses the power of speech before he can mention the second ones, the better opinion is that he has begun to make a will rather than that he has made it; which view Verus stated, in the First Book of the Digest, was entertained by Servius; therefore the first heirs appointed cannot take under such a will. Hence Labeo thinks that this is correct, if it should be established that the testator who executed the will intended to appoint several heirs. I do not think that Servius intended anything else.

The Same, On the Last Works of Labeo, Book V. Among the crops of land is understood to be included everything which can be used by a man. For it is not necessary in this place to consider the time when they naturally mature, but the time when it is most advantageous for the tenant or the owner to gather them. Therefore, as olives which are not ripe are more valuable than they are after maturity, it cannot be held that they did not form part of the crops, where they are gathered before they are ripe.

The Same, On the Last Works of Labeo, Book V. Earthenware, and leaden vessels in which earth is placed, and flowers planted in pots, Labeo and Trebatius think constitute a part of the house. I think this to be correct, if they are fastened to the house so as to always remain there. 1Ofilius says that hand-mills should be classed with household goods, but those moved by animal power are appurtenant to the land. Labeo, Cascellius, and Trebatius think that neither should be classed as household goods, but rather as appurtenances. I think that this is true.

Javolenus, On the Last Works of Labeo, Book V. Labeo says that we can acquire possession of certain things by intention; as, for instance, if I purchase a pile of wood, and the vendor directs me to remove it, it will be considered to have been transferred to me, as soon as I place a guard over it. The same rule applies to a sale of wine where all the jars are together. But, he says, let us see whether this is an actual delivery, because it makes no difference whether I order the custody of the property to be delivered to me, or to someone else. I think that the question in this case is, that even if the pile of wood or the jars have not been actually handled, they should, nevertheless, be considered to have been delivered. I do not see that it makes any difference whether I, myself, take charge of the pile of wood, or someone else does so by my direction. In both instances, whether or not possession was obtained must be determined by the character of the intention.

Javolenus, On the Last Works of Labeo, Book VI. I lent you a horse and while you were riding it several others were riding with you, and one of them ran against your horse and threw you off, and the legs of your horse were broken in consequence of the accident. Labeo states that no action can be brought against you, but if the accident took place through the negligence of the rider he can be sued, but suit cannot be brought against the owners of the horse; and I think this is correct.

Javolenus, On the Last Works of Labeo, Book VI. If the debtor of a woman should promise a dowry to her betrothed, the woman can bring an action for the money against her debtor before the marriage; and Labeo says that the debtor will not be liable to the husband upon this ground afterwards. This opinion is incorrect, because the promise is in suspense as long as the obligation remains in this condition.

Javolenus, On the Last Works of Labeo, Book VI. If the debtor of a woman should promise her betrothed a dowry, she cannot collect the money from her debtor before the marriage, because the promise is in suspense as long as the obligation remains in this condition.

Javolenus, On the Last Works of Labeo, Book VI. A wife gave to her husband, by way of dowry, land appraised at a hundred aurei, and then made an agreement with him to return the land to her at the same price in case of a divorce. The husband afterwards sold the said land for two hundred aurei, with the consent of his wife, and then a divorce took place. Labeo thinks that the husband should have the privilege of paying her two hundred aurei, or of returning the land, whichever he may choose; and that the obligation arising from the agreement should not be released. I think that Labeo gave this opinion because the land had been sold with the consent of the woman, otherwise it should, by all means, be returned. 1If a father promises a certain sum of money as a dowry for his daughter, and it is agreed that he shall not be compelled to pay it against his consent, I think that nothing can be collected from him; because the clause contained in the contract which stated that he could not be compelled to pay it, should be held to refer to the dowry.

Javolenus, On the Last Works of Labeo, Book VI. A husband opened marble quarries on dotal land. A divorce having taken place, the question arose to whom the marble which had been taken out but which had not yet been removed, belonged; and whether the wife or the husband should bear the expense incurred in working the quarries. Labeo said the marble belonged to the husband, but he denied that anything should be paid to him by the wife, because the expense was not necessary, and the land had been rendered less valuable. I think that not only necessary expenses but also those that are useful should be paid by the wife, and I do not believe that the land was decreased in value, if the quarries were of such a kind that the quantity of stone in them would, in time, be increased. 1If the wife should be in default, where an agreement was made that she should receive the land after paying the appraised value of part of the same to her husband; Labeo says that any profits collected in the meantime belong to the latter. I think that the better opinion is that the husband should be entitled to a proportionate share of the profits, and that the remainder should be refunded to the woman; which is the law at present.

Javolenus, On the Last Works of Labeo, Book VI. A man gave something to his wife after a divorce had taken place, to induce her to return to him; and the woman, having returned, afterwards obtained a divorce. Labeo and Trebatius gave it as their opinion in a case which arose between Terentia and Mæcenas, that if the divorce was genuine, the donation would be valid, but if it was simulated, it would be void. However, what Proculus and Cæcilius hold is true, namely, that a divorce is genuine, and a donation made on account of it is valid, where another marriage follows, or the woman remains for so long a time unmarried that there is no doubt of a dissolution of the marriage, otherwise the donation will be of no force or effect.

Javolenus, On the Last Works of Labeo, Book VI. Servius says that the husband is responsible for fraud and negligence with reference to all the property belonging to the dowry, which he has received, excepting money. This is also the opinion of Publius Mucius, for he decided in the case of Licinnia, the wife of Gracchus, whose dotal property had been lost in the sedition in which Gracchus was killed; as he held that the property should be restored to Licinnia, for the reason that Gracchus was to blame for the sedition. 1A husband gave money to his wife’s slave for the purchase of clothing, and this having been procured, a divorce took place within a year. It was held by Labeo and Trebatius that the clothing should be returned to the husband in the condition in which it was after the divorce. The rule of law would be the same if the husband had purchased the clothing and given it to the slave. If, however, the clothing should not be returned, the price of it can be set off by the husband against the dowry. 2A father ordered his daughter, who was under his control, to return her dowry to her father-in-law, a divorce having taken place; and after a part of the dowry had been paid, the father died. Labeo and Trebatius think that the remainder, if it had not been delegated or promised to be renewed to the father-in-law, should be paid to her; and this is correct. 3You received, by way of dowry, certain slaves whose value had been appraised, and an agreement was then entered into that, in case of a divorce, you should return slaves of equal value, but no mention was made of the offspring of female slaves forming part of the dowry. Labeo says that this offspring will belong to you, because it should be yours on account of the risk of losing the slaves which you are obliged to assume. 4A woman had a hundred aurei in the hands of her husband, as dowry, and a divorce having taken place, she stipulated through a mistake of her husband that he should be liable to her for two hundred. Labeo thinks that her husband will only be responsible for the dowry, whether the woman stipulated for the amount honestly or dishonestly. I adopt this opinion. 5A wife, after her divorce, received part of her dowry, and left part in the hands of her husband, and afterwards married another man, and then, having become a widow, she returned to her first husband, to whom she gave a hundred aurei, by way of dowry, without mentioning the money which remained out of the former dowry. If another divorce should occur, Labeo says that the husband will be compelled to return the remainder of the first dowry, under the same terms that he would have returned it if the first divorce had not taken place between them, as the remainder of the former dowry was transferred to the obligation of the second one. This I think to be correct. 6When a husband, without the order of his wife, during marriage, releases his father-in-law from the dowry which he had promised, Labeo says that this will be at the risk of the husband, even though it was done on account of the poverty of the father-in-law. This is true. 7Where anyone promises a dowry to a husband in behalf of his wife, and then, after having appointed the woman his heir, dies, Labeo says that the woman must assume the risk of that part of the dowry for which the husband was liable, for the reason that it would not be just for her to be enriched at the expense of her husband, and to hold him responsible for what he could not have exacted from her. I think that this is correct.

Javolenus, On the Last Works of Labeo, Book VIII. Certain guardians were appointed as follows: “I appoint Lucius Titius guardian, and if he should not be living, I then appoint Gaius Plautius”. Titius lived and administered the guardianship, and afterwards died. Trebatius denies that the guardianship belongs to Plautius; Labeo holds the opposite opinion, and Proculus agrees with him; but I have adopted the opinion of Trebatius because the words of the testator have reference to the time of death.

Javolenus, On the Last Works of Labeo, Book IX. A man who owned a house leased an empty space adjoining the same to his next neighbor. The said neighbor, while building upon his own ground, threw the dirt for the excavation upon the said vacant space, and heaped it up higher than the stone foundation of the lessor; and the earth, having become wet by constant rains, weakened the wall of the lessor with moisture to such an extent that the building collapsed. Labeo says that only an action on lease will lie, because it was not the heaping up of the earth itself, but the moisture arising therefrom that subsequently caused the injury, but that an action on the ground of unlawful damage will only lie where the damage has not been produced by some outside cause. I approve this opinion.

Javolenus, On the Last Works of Labeo, Book IX. A fuller was released from liability to the owner in an action on hiring. Labeo denies that an action for theft will lie. Again, if he should bring an action for theft before the action for hiring was brought against him, and before judgment had been rendered with reference to the thief he should be released by the action on hiring, and the thief ought also to be discharged so far as he is concerned. If nothing of this kind previously occurred, judgment should be rendered against the thief in favor of the fuller, and this is the case because he has a right to the action for theft only to the extent of his interest. 1No one can give aid and advice to another who himself has no intention of committing a theft.

Javolenus, On the Last Works of Labeo, Book IX. If the owner of a lower house causes smoke to affect the building of his neighbor above him, or if a neighbor occupying a higher house throws or pours anything upon that of another, which is situated below, Labeo says that an action for injury cannot be brought. I think that this is not true provided it was thrown down upon the neighbor’s premises for the purpose of injuring him.

Javolenus, On the Last Works of Labeo, Book IX. Robbers stole your slave from you, and afterwards the said slave fell into the hands of the Germans, and then, the Germans having been defeated in battle, the slave was sold. Labeo, Ofilius, and Trebatius deny that the slave can be acquired through usucaption by the purchaser, because it was true that he had been stolen, and although he belonged to the enemy, and returned with the right of postliminium, this would be an obstacle.

The Same, On the Last Works of Labeo, Book X. Labeo and Trebatus think that brass vases placed under jets of water, and also other articles designed for pleasure rather than for use, are not included among household goods. Vessels of iridescent glass and of crystal, which are to be used for drinking purposes, it is said, should be classed as household goods.

Javolenus, On the Last Works of Labeo, Book X. Whenever the law is opposed to sales, the surety is also released; and there is all the more reason for this, because the principal debtor can be reached by a proceeding of this kind.