The Same, Manuals, Book I. We do not always acquire a right of action by an agent, but we retain one that is already acquired; as, for instance, where suit is brought within the time prescribed by law; or where notice of objection to some new structure is served; so that we can make use of the Interdict Quod vi aut clam for here our former right is reserved for us.

Paulus, Manuals, Book I. A syndic can also be appointed in the case of notice of a new structure, and for the purpose of entering into stipulations; as for instance, in case of legacies, the prevention of threatened injury, or for the enforcement of a decree; although it is preferable for security to be given to a slave of the municipality, still, if it is given to the syndic, the party who has charge of the business of the municipality will have an equitable right of action.

The Same, Manuals, Book I. Where a slave in whom another party has an usufruct is surrendered, by way of reparation for damage, by the mere owner to the usufructuary; the servitude is merged and the usufruct terminated by the acquisition of the property.

The Same, Manuals, Book I. For no one can impose a servitude upon his own building, unless the grantor and the grantee have the buildings in sight, so that one can interfere with the other.

The Same, Manuals, Book I. A right of way can be granted through a place where a river flows, if it can either be crossed by a ford or there is a bridge; but it is different where it must be crossed by ferry-boats. This is the case where the river runs through the land of one of the parties; but it is otherwise if your land joins mine, and then comes the river, and the land of Titius, and then a highway up to which I wish to acquire a right of way. Let us consider whether there is anything to prevent you from giving me a right of way as far as the river, and then my receiving one from Titius as far as the highway. Again, let us consider whether the same legal principle will apply even if you are the owner of the land which is beyond the river on this side of the highway; because a right of way can be complete as far as a town, or as a highway, or as a river which must be crossed by ferry-boats, or as far as the land belonging to the same owner. If this be the case the servitude is not held to be interrupted, even though a public river intervenes between two tracts of land belonging to the same person.

Paulus, Manuals, Book I. It has been settled that several joint-owners, even where they do not join in the conveyance, may impose or acquire servitudes, on the ground that former acts are confirmed by more recent ones; so that it is the same as if all of them had made the grant at the same time. Therefore, if he who first granted the servitude should die, or dispose of his share in any other way, and afterwards his joint-owner should make a grant, the entire transaction will be void; for when the last one makes the grant the servitude is not considered to be acquired retroactively, but it is held to be the same as if when the last one made the grant all of them had done so; consequently, the last act will remain in abeyance until the new joint-owner makes a grant. The same rule applies where a grant is made to one of the joint-owners, and afterwards some such occurrence as those above mentioned with reference to the person of another joint-owner takes place. Hence, on the other hand, if any of these things should happen to one of the joint-owners who has not made a grant, all of them will be compelled to make a new grant; for only so much time is conceded to them as to enable them to make a grant even at different times, and therefore the grant cannot be made to one person, or by one person. The same rule applies where one party grants a servitude and another bequeaths it by will, for if all the joint-owners bequeath a servitude, and their estates are entered upon at the same time, it may be said that the servitude is properly bequeathed; but if the estates are entered upon at different times, the legacy does not legally vest; for it has been established that the acts of living persons may be suspended so far as their operation is concerned, but that those of deceased persons cannot.

Ad Dig. 17,2,83Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 142, Note 4.Paulus, Manuals, Book I. The question arose whether, where a tree which grows on the boundary line, or a stone which extends on each side of the line of two contiguous tracts of land, will belong proportionately to the owner of each tract; or, if the tree is cut down, or the stone removed, it will remain undivided; as occurs where two masses of metal belonging to two owners are melted together the entire mass becomes the common property of both; and thus, in this instance where a tree is separated from the soil, there is all the more reason for considering it to belong to both owners, than is the case with a mass of metal; since it only forms one body composed of the same substance. It is in accordance with natural reason, however, that, after the separation of the stone or the tree, each of the two owners should have the same share of the same to which he was entitled while it remained in the earth.

Paulus, Manuals, Book I. Where one person directs another to demand prætorian possession of an estate for him if he should deem it advisable, and, after the demand is made, he becomes insane, he will, nevertheless, acquire possession of the property. If, however, before the demand is made, he whom he ordered to make it should become insane, it must be said that he will not immediately acquire possession of the estate. Therefore, the demand for prætorian possession should be confirmed by ratification.

Paulus, Manuals, Book I. Where a donation mortis causa is made to a slave, let us see whose death must be taken into consideration, that is to say, the death of the master, or that of the slave himself, in order that there may be ground for a personal action to recover the property. The better opinion is that the death of the person to whom the donation was made should be considered; still, the donation does not follow the manumitted slave after the death of his master, before the will is opened.

Paulus, Manuals, Book I. An usufruct cannot exist without a person, and therefore a slave belonging to an estate cannot legally stipulate for an usufruct. It, however, is said that an usufruct can be bequeathed to him, for the reason that its time does not begin immediately, while an unconditional stipulation cannot remain in abeyance. But what if the stipulation was made under a condition? It will not be valid, even in this instance, because a stipulation receives its power from the present time, although the right of action to which it gives rise may remain in suspense.

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

Paulus, Manuals, Book II. Where a partner is appointed sole heir to an estate, and the legacy is bequeathed to a slave held in common by both partners, without the grant of his freedom, this legacy is void. It is evident that a legacy can legally be bequeathed under a condition, and without the grant of freedom, since a bequest can be made legally to one’s own slave, and the heir be charged with the execution of it under a condition. Wherefore, where a partner is appointed an heir, a slave can be also appointed his co-heir, without the grant of his freedom, as, for instance, where he belongs to another; because a slave can be appointed an heir after his master has already been appointed.

Paulus, Manuals, Book II. Where, after a father or a master had been appointed an heir, and charged with a legacy payable to a son or a slave of the former, under a condition, neither can demand security for the preservation of the legacy. If, however, the son or the slave should be emancipated or manumitted while the condition is pending, and demands security, the question arises whether he should be heard, lest the benefit which he has received from his father or his master may be to his disadvantage, or whether the father and the master should blame themselves for having given them the power to make such a demand. The better opinion is to dispose of this point by adopting a middle course, and say that they can only be held liable for the hypothecation of their property.

Paulus, Manuals, Book II. The right to demand services sometimes remains even after the right of patronage has ceased to exist, which occurs in the case of the brothers of him to whom the freedman has been assigned; or with reference to the grandson of one patron, where there is a son of another patron.

Ad Dig. 41,1,62Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 528, Note 7.Paulus, Manuals, Book II. There are certain things which cannot themselves be alienated but pass by universal custom; hence a dotal tract of land and property which is not an object of commerce pass to the heir; for although it cannot be bequeathed to him, it, nevertheless, becomes his after his appointment.

The Same, Manuals, Book II. If, believing that I am indebted to you, I give you property in payment, usucaption can only take place if you yourself think that it is due. The case is different, if I think that I am bound on account of a sale, and therefore deliver the property to you, for no action will lie against me, and you, as the purchaser, will not be entitled to usucaption. The reason for the difference arises from the fact that, in other instances, the time of payment should be considered. Nor does it matter whether, at the time when I make the stipulation, I am aware that the property belongs to another or not, as it will be sufficient if I think it is mine, when you give it to me in payment for a purchase; however, not only the time when a contract was entered into, but also that of payment is taken into account, for no one can acquire property by usucaption as a purchaser who did not buy it, and he cannot, as in other contracts, say that it has been received in payment.

Paulus, Manuals, Book II. A son who has been disinherited, or who has rejected the estate of his father, cannot have judgment rendered against him, on a contract of his own, for more than he is able to pay. Let us see to what extent he shall be considered solvent, whether this relates to what remains after all his debts have been paid, as in the case of one who is sued on account of a donation, or does it apply to a husband and a patron, whose indebtedness is not deducted? It is unquestionably the law that payment should be made as in the case of a husband or a patron, for we should be more indulgent to a donor than to one who is obliged to discharge an actual debt,

Paulus, Manuals, Book II. If anyone should cause his property to be fraudulently sold, he will be liable in full. 1Where anyone refuses to admit a creditor to take possession of his property, which has been granted to him for its preservation, and the vendor pays the creditor all that he is entitled to, the question arises whether the debtor will be released. I think that he would act dishonorably who wishes to obtain a second time what he has already received.

Paulus, Manuals, Book II, And, even in prætorian stipulations, there can be two joint-stipulators.

The Same, Manuals, Book II. A slave owned in common, whether he makes a purchase or stipulates, even though he may pay the money out of his peculium which belongs to one of his masters, will, nevertheless, acquire for both of them. The case of a slave subject to an usufruct is, however, different.

Paulus, Manuals, Book II. Where anyone, in obedience to my mandate, makes a stipulation to be executed after my death, payment will legally be made to him, because such is the law of obligations. Therefore he can legally be paid, even against my consent. But when I have ordered my debtor to pay someone after my death, payment will not be legally made, because the mandate is annulled by death.

The Same, Manuals, Book II. He who has an interest in not having the property stolen is entitled to the action for theft, if he also has possession of it with the consent of the owner; that is to say, where, for instance, the property is. leased to him. He, however, who voluntarily administers affairs as a guardian, just like a regular guardian or curator, cannot bring an action for theft on account of property which has been stolen through his fault. Likewise, anyone to whom a slave is due either under the terms of a stipulation or by a will, although he has an interest, cannot bring the action for theft; nor can he do so who has become surety for a tenant.

The 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.