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.