Proculus, Epistles, Book I. Several persons by reason of a right were accustomed to conduct through the same canal water which had its source on the land of a neighbor, in such a way that each one, on a certain day allotted to him, conducted the water from its source through a ditch which was held in common, and then through one of his own, each succeeding the other who was immediately above him; and one of them failed to conduct any water during the time established by law for the loss of a servitude. I think that he lost the right to conduct the water, for it was not exercised by the others who did conduct it, and this right belonged to each one of the parties as his own, and could not be exercised by another. But where a water-course was attached to land belonging to several parties, it could have been used by one of them for the benefit of all those by whom the land was held in common. Again, where one of the parties entitled to a right of conducting water, and who did conduct it through the same channel loses the right to do so by failure to use his privilege, no right for this reason will accrue to the others who used the channel; and the benefit of the right which was lost as to the share of one party by non-user will belong to him through whose land was traversed by the water-course, and he would enjoy freedom from this much of the servitude.

Proculus, Epistles, Book II. Where anyone induces my slave to abandon possession of my property, the possession of the same is not actually lost; but an action on the ground of fraud will lie against the party in question, if I have suffered any loss.

Proculus, Epistles, Book II. A certain Hiberus, who owns a building in the rear of my warehouse, built bathrooms against the party-wall; although it is not lawful for anyone to conduct pipes along a party-wall, just as he has no right to build another wall over it; and the law applies with much more force to pipes, because, by means of them, the wall may be burned. I wish that you would speak to Hiberus about this, in order to prevent him from doing what is illegal. Proculus answered, “I do not think that Hiberus has any doubt in this instance that he is doing something which is not allowed in placing pipes along a party-wall”. 1According to the opinions of Capito, it is permitted to encrust a party wall with ornamental stucco, as I can have very valuable paintings on a wall of this kind; but if my neighbor demolishes the wall, and proceedings are instituted for the prevention of threatened injury, on a stipulation, paintings of this description cannot be appraised any higher than ordinary plaster; and this rule must also be observed with reference to decorative encrustation.

Proculus, Epistles, Book II. “Let Cornelius or Mævius, whichever one of them may desire to have my estate, be my heir.” Trebatius holds that neither of them is the heir, but Cartilius maintains that both of them are heirs. Whose opinion do you adopt? Proculus, I agree with Cartilius, and think that the addition, “Whichever one of them may desire to have my estate”, is superfluous; for if this addition had not been made, the result would be that whichever of them wished to take under the will would be the heir, and that the one who was not willing would not be. If, however, these parties were included in the number of necessary heirs, then this clause would not have been added in vain; and it would not only prevent the appearance, but would also have the effect of a condition; still, I would say that both of them would be heirs, if they desired to be.

Proculus, Epistles, Book II. A man bequeathed his wine and the vessels containing it. Trebatius denies that any wine, which is in casks, is included; and he holds that the intention of the testator was different from what is expressed in his words, and, moreover, casks are not classed as wine vessels. Although casks are not included in the term “wine vessels,” still, I do not agree with Trebatius in his opinion that the wine included in the casks, that is to say, which is not in vessels, is not bequeathed. I think, however, that it is true where wine is bequeathed to anyone with the vessels, that the measures and jars into which it is drawn are also bequeathed to the legatee; for we pour out wine into jars and measures, in order that it may remain in them, until we require it for use; and, again, we sell it together with said jars and measures. We place it in casks, however, with a different intention, that is to say, in order to draw it out of them into jars and measures, or to sell it without the casks.

Proculus, Epistles, Book II. A wild boar was caught in a trap which you set for the purpose of hunting, and after he was caught, I released him, and carried him away; is it your opinion that I have taken away your wild boar? And if you thought that it was yours, and I should release him and let him go into the woods, would he, in this instance, cease to be yours, or would he still remain your property? If he ceased to be yours, I ask what action you would be entitled to against me, and whether it would be necessary for an action in factum to be granted? The answer was, that we should first take into consideration the trap, and whether it does not make a difference if I set it on public or on private land; and if I set it on private land, whether I did so upon my own or upon that of another, and if I set it upon that of another, whether I did so with the permission of the owner of the said land, or without it. Moreover, it should be considered whether the wild boar was caught in the trap in such a way that he could not release himself, or whether, by struggling longer, he might have been able to escape. I think the conclusion should be that if the wild boar was under my control he became my property; but if you, by your act, restored him to his natural freedom, he ceased to belong to me; and I would be entitled to an action in factum; as was decided in a case where a person threw a cup belonging to another from a ship into the sea.

Ad Dig. 45,1,113Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 2.Proculus, Epistles, Book II. When I stipulate for myself as follows: “Proculus, if the work is not completed, as I desire it to be, before the Kalends of June, do you promise to pay such-and-such a sum by way of penalty?” and I extend the time; do you think that it may be said that the work has not been done, as I wished it to be, before the Kalends of June, when I, myself, voluntarily gave more time for its completion? Proculus replied that it is not without reason that a distinction should be made whether the promisor was in default in not finishing the work before the Kalends of June, as was agreed upon in the stipulation; or, whether, as the work could not be completed before that date, the stipulator extended the time to the Kalends of August. For if the stipulator extended the time when the work could not be completed before the Kalends of June, I think that the penalty would attach; for it makes no difference if some time had passed before the Kalends of June, during which the stipulator did not desire that the work should be finished before that date; that is to say, that he did not expect something to be done which could not be done. Or, if this opinion is incorrect, even if the stipulator should die before the Kalends of June, the penalty will not be incurred; as being dead, he could not signify his wishes, and some time would remain after his death for the completion of the work. And I am almost inclined to believe that the penalty would be incurred, even if enough time to complete the work was not left before the Kalends of June. 1When anyone sells something, and promises to furnish sureties to the purchaser, and guarantees the property sold to be free from encumbrance, and the purchaser desires the property to be free from all liens, and he who promised that it should be under the stipulation is in default; I ask, what is the law? Proculus answered that the vendor will be responsible to the extent of the plaintiff’s interest, in accordance with the amount of damages assessed in court.

Proculus, 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.

Proculus, Epistles, Book IV. And although he who governs the province ought to be invested with authority to discharge the duties of all Roman magistrates, still, he should pay attention to what should be done in each case, rather than to what is done at Rome.

Proculus, Epistles, Book V. Where you are in possession of land belonging to me, and I make an agreement with you that you shall deliver possession of the same to Attius, and I bring suit to recover the property from you, I cannot be barred by an exception based upon contract, unless you have already delivered possession of the property, or the agreement between us made for your benefit, and it is not your fault that you did not deliver it.

Proculus, Epistles, Book V. I have pipes by which I conduct water on the public highway, and these, having burst, flooded your wall; I think that you are entitled to an action against me, in which you can allege that I have no right to allow water to flow from my premises against your wall.

Ad Dig. 17,2,76ROHGE, Bd. 3 (1872), S. 173: Unterschied zwischen Schiedsspruch und arbitrium boni viri bezüglich der Anfechtbarkeit.ROHGE, Bd. 4 (1872), S. 429: Unterschied zwischen Schiedsspruch und arbitrium boni viri bezüglich der Anfechtbarkeit.ROHGE, Bd. 18 (1876), Nr. 91, S. 345: Arbitrium merum, boni viri. Anfechtung propter magnam improbitatem.Proculus, Epistles, Book V. You formed a partnership with me under the condition that Nerva, our common friend, should decide with reference to the shares thereof; and Nerva decided that you should be a partner to the extent of one-third, and I to the extent of two-thirds of the capital. You ask whether this should be ratified in accordance with the rights of the partnership, or whether we are equal partners, nevertheless? I think that it would have been better for you to have made the inquiry whether we were partners to the extent of the shares which he had established, or whether to the extent of those which would have been apportioned by a good citizen; for there are two kinds of arbiters, one whose award we should obey whether it be just or unjust, which rule must be observed when recourse is had to arbitration by common consent of the parties. There is another kind, whose award must be compared with that which would be rendered by a good citizen, although the party who is to give it has been expressly selected;

Proculus, Epistles, Book V. I think that, in the case stated, the judgment of a good citizen should be followed, and all the more so, because a decision in an action on partnership is one where good faith is concerned.

Ad Dig. 17,2,80ROHGE, Bd. 3 (1872), S. 173: Anspruch eines Socius auf nicht bedungene Vergütung für geleistete Arbeiten.Proculus, Epistles, Book V. What would be the result if Nerva decided that one party should be a partner to the extent of one thousand shares, and the other to the extent of two thousand shares? The decision of a good citizen could not fail to be that we are not partners to the same extent; for example, just as if one of us should bring into the partnership more labor, skill, credit, and money than the other.

Proculus, Epistles, Book V. Where a woman directed her husband to give a certain sum of money which he owed her as dowry for their common daughter, and he did so, I think it should be considered whether he gave the dowry in his own, or his wife’s name. If he gave it in his own name, he will still owe the money to his wife, but if he gave it in his wife’s name, he will be released from liability to his wife.

Proculus, Epistles, Book V. Where a daughter under paternal control, who was married, dies, and her father pays her funeral expenses, he can immediately recover them by means of an action, even though the son-in-law was obliged to return the dowry after a certain date; and after he has received the expenses of the funeral, the remainder of the dowry can be paid at the time agreed upon.

Proculus, Epistles, Book V. If the party who bequeaths a legacy does so as follows, “I bequeath to Sempronius whatever Lucius Titius can be made to pay me,” and does not add that the sum is payable “at the present time,” I have no doubt that, so far as the interpretation and meaning of these words are concerned, that money is not included in the legacy which was not collectible at the time when the party who executed the will died; but, by adding the following words, “At the present time,” he would have plainly indicated that he intended also to include money which was not yet due.

Proculus, Epistles, Book V. Where a legacy was bequeathed as follows, “I leave my house and its contents at the time of my death,” I do not think that money collected from certain debtors of the testator, in order to again be invested in other similar claims, forms a part of the legacy. I thoroughly approve of the distinction made by Labeo, that the legacy will not be diminished because something may happen to be out of the house, any more than it may be increased because some other article happens to be there.

Proculus, Epistles, Book V. Where an heir is charged with the delivery of wine, he will be obliged to deliver whatever is contained in vases or jars, even though no mention was made of vessels. Moreover, although the wine may have been left with the vases and jars, still, that which is contained in casks is held to have also been left; just as where a testator bequeaths all his slaves with their peculium of each of them, those who have no peculium are considered to have likewise been bequeathed.

Proculus, Epistles, Book V. Where anyone bequeaths gold, silver, and pearls which are set in the gold, gold in which neither jewels nor pearls are set will be held to have been bequeathed.

Paulus, Epistles, Book V. If a person who has become insane retains possession of a forest, he does not lose possession of it as long as he remains in that condition, because a lunatic cannot lose the intention of possessing.

Proculus, Epistles, Book V. If Cornelius should give a tract of land which belongs to him, in the name of Seia, to her husband by way of dowry, and make no provision with reference to its return; and he does this in such a way that an agreement is entered into between Seia and her husband that, if a divorce should take place, the land shall be returned to Cornelius; I do not think that, if a divorce does take place, the husband can safely return the land to Cornelius, if Seia should forbid him to do so; just as, where no informal agreement was made, the woman, after the divorce, should direct the land to be returned to Cornelius, and then, before this was done, forbid it, it could not safely be returned to him. If, however, before Seia forbade this to be done, her husband should return the land to Cornelius, and he had no reason to think that, if he did so, she would not consent, I do not think that it would be better or more equitable to deliver the land to Seia.

The 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.

Proculus, Epistles, Book VI. If, when you sell a tract of land, you state in the contract that whatever you collect from the lessee as rent, shall belong to the purchaser; I think that you should not only show good faith, but also exercise diligence in the collection of said rent; that is to say, that you shall not merely avoid all fraudulent intent but also all negligence. 1Some persons are accustomed to add these words, “The vendor is without fraudulent intent,” and, even if this is not added, there should be no fraudulent intent. 2The vendor is not held to be free from fraudulent intent if he performs any act, or anything is done, to prevent the purchaser from obtaining possession of the land. In this instance, therefore, an action on purchase can be brought, not to compel the vendor to deliver the mere possession, since it might happen for many reasons that he could not do so, but in order that, if he has been guilty, or is now guilty of bad faith, an appraisement of damages for the same may be made.

The Same, Epistles, Book VI. Sempronius Proculus to his grandson, Greeting. Two wills written at the same time by the same testator, one of which was a copy, as is usually the case, were produced. In one of said wills a hundred, and in the other fifty aurei were left to Titius. You ask whether he will be entitled to a hundred aurei, or only to fifty. Proculus answered, that in this instance, favor should be extended to the heir, and therefore as both legacies can, under no circumstances, be due, only fifty aurei are payable.

The 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.

Ad Dig. 12,6,53ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Proculus, Epistles, Book VII. A master gave his slave freedom by his will, on condition of his paying ten aurei, and the slave, not knowing that the will was void, paid me the ten aurei; the question arises, who has a right of action to recover the money? Proculus answered that if the slave paid the money out of his peculium, when permission to do so had not been granted him by his master, the money remains the property of his master, and he can bring suit for the recovery of the same by an action in rem. But where another party, at the request of the slave paid me his own money, it becomes mine, and the owner of the slave on whose account it was paid can bring an action for its recovery; but a more indulgent, as well as a more practical method would be for the party who paid the money to himself recover what belongs to him directly from me.

Ad Dig. 23,3,67Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 422, Note 4.Proculus, Epistles, Book VII. Proculus to his grandson, Greeting. Where a female slave marries, and gives her husband money, as dowry, whether she knows that she is a slave or not, she cannot make her husband the owner of said money, and it will still remain the property of the person to whom it belonged before it was given as dowry to her husband, unless he should have obtained it by usucaption. And not even after the woman has become free, while living with the same man, will she be able to change the condition of this money. Hence, not even after a divorce has taken place, can she legally bring an action based on her right of dowry, or a personal action to recover the money, but the party to whom it belongs can legally sue for it. But if the husband has obtained a right to said money through usucaption after having had it in his possession, of course because he thought that the woman was free, I am confirmed in my belief that he has profited by the transaction, provided he obtained the right to the money by usucaption, before the marriage. I am of the same opinion where he obtained anything by means of said money before it became the dowry, provided he was not in possession of it, and was not guilty of fraud to avoid being in possession.

Proculus, Epistles, Book VII. You brought an action De peculia against a master for a debt of his slave, and it was held that the sureties were not released. If the same slave who had been entrusted with the management of his peculium should pay the money, you have read correctly that the securities will be released.

Proculus, Epistles, Book VIII. Where anyone who has a grandson by a son adopts another in the place of his grandson, I do not think that when the grandfather dies any bond of consanguinity will exist between the grandsons. But if he adopted him in such a way that he should be his grandson by legal right, for instance, as if he had been the son of Lucius his own son and the lawful wife of the latter, I am of the contrary opinion.

The Same, Epistles, Book VIII. Licinius Lucusta, to his friend Proculus, Greeting. I ask where a husband bequeaths a dowry to his wife, and gives her the choice of receiving slaves which she had given to him by way of dowry rather than money, if she should prefer to have them, and the wife selects the slaves, can she also claim any offspring of said slaves which may have subsequently been born to them? Proculus to his friend Locusta, Greeting. If the wife should prefer to receive the slaves rather than the money, the slaves themselves that, after having them appraised, she gave as dowry, and not their offspring, will be due to her. 1Where the possession of an estate is granted by the Prætor to the curator of an insane person, an action for the recovery of legacies can be brought against the curator, whose duty it is to defend the said insane person; but those who bring such an action must give security that, “If the estate should be evicted they will return what has been paid to them as legacies.”

The Same, Epistles, Book VIII. An island arose in a river opposite to my land. At first the length did not exceed the boundary of the latter, but afterwards the island increased in size, little by little, and projected opposite to the boundaries of my upper and lower neighbors. I ask whether the increase belongs to me, as it adjoins my premises, or whether the rule of law would be the same as it would if the island had been as long in the beginning as it is at present. Proculus answered, if the law of alluvium applies to the river, in which you have stated an island arose opposite to the boundary of your property in such a way that it did not exceed the length of the latter, and the island in the first place was nearer to your premises than to those of him who owned land across the stream, it all becomes yours, and whatever afterwards accrued to the island by way of alluvium also becomes yours, even though the increase was such as to cause the island to extend opposite to the boundaries of your upper and lower neighbors, or even to place it nearer to the property of him owning land across the river. 1I also ask, if an island arises near my bank, and afterwards the entire river begins to flow between my land and the said island, after leaving its own bed where the greater portion of it had flowed, whether you have any doubt that the island continues to be mine, and whether, nevertheless, a part of the bed itself which was left by the river will become my property. I request you to write me your opinion on this point. Proculus answered that if the island in the first place was nearer to your land, and the river, having left its principal channel, which it occupied between the island and the land of the neighbor who was on the other side of the stream, began to flow between the said island and your land, the island will continue to be your property; but the bed which was between the island and the land of the neighbor should be divided in the middle, so that the part which was nearer to your island will be understood to belong to you, and that which is nearer to the land of your neighbor will be understood to belong to him. I think that the bed of the river which dried up on the other side of the island has ceased to be an island; but In order that the matter may be better understood, in this instance, the field which was formerly an island will still be designated such.

Proculus, Epistles, Book VIII. I have no doubt that there are free and united nations which are strangers to us, and that between us and them the right of postliminium does not exist. For what need would there be for any right of postliminium between us and them, as they, when with us, retain their liberty, and the ownership of their property, just as they do at home; and the same happens to us when we are with them. 1A free people is one which, when united, is not subjected to the dominion of any other. Likewise, it may be united in friendship by an alliance on equal terms, or the provision that this people will zealously defend the majesty of another may be included in a treaty; for this is added in order that it may be understood that the latter is entitled to supremacy, and not that the former is not free. And just as we regard our clients as free, although, while being good men, they are not superior to us in authority or dignity; so those who should zealously defend our majesty should also be understood to be free. 2Where persons from allied states are accused of crime while with us, we punish them after they have been convicted.

The Same, Epistles, Book XI. Rutilia Polla bought the lake at the corner of the Sabatine estate, and ten feet of ground around said lake. I ask if the lake should become larger, whether the ten feet of land due to Rutilia Polla are those which are under water, or the ten feet around the water, after the lake has increased in size? Proculus answered: “I think that the lake which Rutilia Polla bought was sold to her in the condition that it was at the time, with the ten feet of land which then surrounded it, and because the lake afterwards increased in size she should not be entitled to the possession of more ground than she purchased.”

Proculus, Epistles, Book XI. Where a man sold certain lands to his wife, and an agreement was entered into at the time that, if the marriage was dissolved, the wife should transfer to her husband the said lands for the same price, if he desired her to do so, I think that an action in factum ought to be granted, and that this rule should also be observed with reference to other persons.

Proculus, Epistles, Book XI. Atilicinus to his friend Proculus, Greeting: “Where an agreement was made between a man and his wife before marriage, that, in case a divorce took place, the same time should be granted for the return of the dowry that was given for its bestowal; the woman gave the dowry to her husband five years after marriage. A divorce having taken place, I ask whether the husband should restore the dowry to his wife within five years, or whether he must do so within the time fixed by law? Proculus answered with reference to the time of returning the dowry: “I think that by an agreement the condition of the woman can be improved and cannot be made worse; therefore, if it is provided that the dowry shall be returned in a shorter time than that established by law, it should be carried out, but if it is agreed to return it after a longer time, such a contract is not valid.” As to this opinion, it is proper to state that if it is proved by the agreement that, after divorce, there should be the same delay for the return of the dowry as there was for its delivery after marriage, and if this delay in returning it was shorter than that authorized by law, the agreement will be valid, but if it is longer, it will not be.

The Same, On the Last Works of Labeo, Book III. A certain testator kept wine of Surrentum in earthen urns, and he bequeathed it to you in jars. Labeo and Trebatius gave it as their opinion that all the wine contained in the urns was bequeathed. 1Where sweetened wines are bequeathed, and no other designation is contained in the will, all the following are included in the legacy, namely: wine mixed with honey, wine made of raisins, new wine boiled and spiced, and similar beverages, including all those made of grapes, figs, dates, and dried fruits. 2Where a legacy is bequeathed as follows, “I give and bequeath the wine in my jars, my Aminisean and Greek wine, and all my sweet beverages,” Labeo thinks that nothing will be included under the latter term, except the beverages which have been made by mixing other substances with the wine contained in the jars of the testator. This opinion I do not reject.