CASES AND QVESTIONS Resolved in the CIVIL-LAW.

Collected by R. ZOUCH Professor of the CIVIL-LAW in OXFORD.

OXFORD, Printed by LEON. LICHFIELD, for THO. ROBINSON. A. D. 1652.

To the Reader.

THese Cases and Questions, be­ing Collected, and intended to be published, in the proper language of the Civill-Law, for the use of Students in that Profession, the Author was perswaded to publish them in English, that others also might discerne, that the study of that learn­ing conduceth to the knowledge of some things, worthy of consideration. It is true, that much herein may appear forraigne, in respect of the conditions of persons, and things with us; as, the quality of Slaves, or Bondmen, the compleating of full age, at the end of twenty five years, and the like: But the causes of doubts thereupon, and the reasons of the Resolutions, well consi­dered, may be applied to matters usuall, and currant amongst us. Some Resoluti­ons [Page] likewise may seem to be grounded, only upon the Authors opinions, and being com­pared with the Rules of Law, and other au­thorities, may be controverted; but those were intended only for some discovery, and illustration; concerning which, such as will make farther inquiry, into the like cases. may receive better satisfaction, what is now offered being but an Essay, and is extracted only out of the Text of the Digests, The figures doe shew the Book, the Title, the Law, and sometimes the Paragraphs, whence the matters are taken. And it is, with hope of a good construction, left to the acceptance of your discretion.

Alban Hall in OXFORD June the 10. 1652.

ERRATA.

P. 74. l. 29. two acres, two hundred. p. 95. l. 32. like, little. p. 56. l. ult. & p. 57. l. 2. Maevius, Sevius. p. 117. Sally, Gally. p. 165. l. 14. or, ar. p. 191. l. 2. Maritine, Maritime. p. 222. l. 1. ought, ought not. 244. l. 16. the, He.

Cases and Questions, of Right and Judicature, resolved in the CIVIL-LAW.

The First Part. Cases and Questions of Right concerning
  • TIT. 1 THE State or Conditions of Persons.
  • TIT. 2 The Title to Lands or Goods.
  • TIT. 3 Debts.
  • TIT. 4 Penalties.
  • TIT. 5 Inheritances Testamentary.
  • TIT. 6 Legacies.
  • TIT. 7 Performance and Payment.
The Second Part. Cases and Questions of Judicature, concerning.
  • TIT. 1 Ordinary Iudicature.
  • TIT. 2 Arbitrement.
  • TIT. 3 Iudicature of the Admiralty.
  • TIT. 4 Iudicature of the Treasury.
  • TIT. 5 Iudicature of the Praetor or Chancellor.
  • TIT. 6 Iudicature of the Prince or Emperour.
  • TIT. 7 Iudicature Criminall.

TITLE I. Of the State and Condition of Persons.

SECT. I. Of the Common State or Condition of Persons.

  • 1 OF a Child born in the seaventh month. 1
  • 2 Of divers Childrē born at the same time. 2
  • 3 Of a Male child born before a Female. 2
  • 4 Of an Hermaphrodite. 3
  • 5 Of the computing of age. 3
  • 6 Of a Father and a Sonne perishing together. 4

SECT. II. Of the Speciall State or Condition of Persons.

  • 1 Of Freedome bequeathed in the second year af­ter the Testators death. 5
  • 2 Of Freedome bequeathed in consideration of service to be done. 6
  • 3 Of persons free-borne. 7
  • 4 Of a Citty or Corporation. 7
  • 5 Of one returned out of Captivity. 8
  • [Page] 6 Of one delivered up to the enemies. 9
  • 7 Of Marriage accomplisht. 9
  • 8 Of a Tutor appointed by a name uncertain. 10
  • 9 Of a Tutor appointed, in case another were not living. 10
  • 10 Of a Tutor altered by Errour. 11
  • 11 Of Senators Sonnes. 11
  • 12 Of Senators Wives, and Daughters. 12
  • 13 Of a Proconsul naming a Deputy before he en­ters into his Province. 12

SECT. III. Of the Reputed State or Condition of Persons.

  • 1 Of freedome enjoyed by Will, which afterwards proved voyd. 14
  • 2 Of persons cohabiting as Man and Wife. 15
  • 3 Of a Child borne in Wedlock. 15
  • 4 Of a Minor upon view allowed to be of full age 16
  • 5 Of one who was compelled to take upon him instead of a Tutor. 16
  • 6 Of a Magistrate promoted by Errour. 17
  • 7 Of Rich men to be preferred before others to office of dignity. 11
  • 8 Of honest men not to be removed from their charge in respect of poverty. 19
  • 9 Of infamy arising from punishment. 19
  • 10 Of a mans testimony rejected. 20

TIT. 2. Of title to Goods and Land.

SECT. 1. Of Common Right or Property.

  • 1 Of a Wild Beast chaced and wounded. 21
  • 2 Of a Wild Beast taken in a net. 22
  • 3 Of Pigges recovered from a Wolfe. 23
  • 4 Of a thing stolen afterwards lawfully bought. 24
  • 5 Of things composed by one, of another mans materialls. 24
  • 6 Of an Island newly arising in a river. 25
  • 7 Of ground where a River leaves its channell. 26
  • 8 Of mony given to the end that he who received it, should buy something therewith. 27
  • 9 Of monies lent to be given to another. 27
  • 10 Of monies given to one, to the end it should be given to another in the donors name. 28
  • 11 Of something which the owner gave consent to be digged up out of his ground. 28
  • 12 Of a guift of grant to dwell in some house or lodging. 29
  • 13 Of a guift given by way of reward. 29
  • 14 Of a guift of a thing morgaged to another, be­fore delivery. 30
  • 15 Of a guift voidable by the death of the donee, before the donor, both happening to dye at the same time. 31
  • 16 Of goods delivered in reference to a dower. 31
  • 17 Of a dower given upon condition, that part thereof be repaied to children. 32
  • 18 Of a covenant disposing the dower, in case the Mother should happen to dye before her child, or the child before the Mother. 33

SECT. 2. Of speciall Right or Commodity.

  • 1 Of the use and profits of a thing given to a Cor­poration. 34
  • [Page] 2 Of Rent due for profits formerly received. 35
  • 3 Of the profits of a Park or Warren. 36
  • 4 Of Profits and property consolidated. 36
  • 5 Of a Way or Passage granted indistinctly. 37
  • 6 Of a Way tacitly reserved. 38
  • 7 Of Service retained by parts. 38
  • 8 Of Service recovered after necessary disuse. 39
  • 9 Of a Service not to fish in the Sea. 39
  • 10 Of the usage of some not profiting others. 40

SECT. 3. Of Renued Right or Possession.

  • 1 Of Possession taken by Error. 41
  • 2 Of Possession retained of a thing hidden. 42
  • 3 Of fruits belonging to the possessor, where they are severed from the ground. 43
  • 4 Of charges laid out usefully by one in possession. 44
  • 5 Of windowes and doores set up in another mans house. 44
  • 6 Of one that sold another mans house becomning heire to the true owner. 45
  • 7 Of a Monument built by one who was in posses­sion of the estate. 45

TITLE III.

SECT. 1. Of Debt, and of common Contracts.

  • 1 Of a House burnt at the same time when it was bought and sold. 46
  • 2 Of a Poole bought with ten foot about it. 47
  • 3 Of a Ground sold to be measured within thirty daies. 48
  • 4 Of Trees blown downe after the view before the sale. 49
  • 5 Of Stone-quarries reserved in a ground sold. 49
  • 6 Of Lands sold disposed of otherwise by the [Page] Prince. 50
  • 7 Of a price conditioned to be paid once offered, afterwards neglected. 50
  • 8 Of losse in Wines, happening after the sale. 51
  • 9 Of notice to be given cōcerning Wines bought. 51
  • 10 Of a false estimation made by one hired to build a house. 52
  • 11 Of a Workman hired by great, receiving wages by the day. 52
  • 12 Of Corne agreed to be received in stead of rent. 53
  • 13 Of the Tenants profits hindered by the Land-Lord. 54
  • 14 Of the Tenants profits hindered otherwise then by the Land-lord. 54
  • 15 Of unnecessary charges laid out by a Partner. 55
  • 16 Of Losses befallen to one of two partners. 56
  • 17 Of a reputed Heyre, joyning with a surviving partner. 56
  • 18 Of equality to be kept in division amongst part­ners. 57
  • 19 Of one requesting another to buy something whereof he might have a share buying the whole to himselfe. 58
  • 20 Of undertaking to save one harmlesse during anothers life. 58
  • 21 Of undertaking as much in effect as was desired. 59
  • 22 Of power not to be extended to deceit. 59
  • 23 of on acting by a letter falsified. 60
  • 24 Of monie delivered as guift, received as loan. 60
  • 25 Of monies givē to be lent to him that gave it. 61
  • 26 Of monies ordered to be lent by one, received as lent by another. 62
  • 27 Of Plate delivered to be sold, instead of monies [Page] desired to be borrowed. 62
  • 28 Of a Horse lent failing in his journey. 63
  • 29 Of a thing lent to two and lost. 63
  • 30 Of a thing lent & lost, received by the owner. 64
  • 31 Of interest of mony deposited undertaken to be paid. 64
  • 32 Of faire and conscionable dealing touching things deposited in severall respects. 65
  • 33 Of a House engaged burnt, and rebuilt. 66
  • 34 Of a shop engaged for monies borrowed. 67
  • 35 Of cattell pawn'd and disposed of by the heyr. 67
  • 36 Of cattell engaged before they were put into the Landlords ground. 68
  • 37 Of goods profer'd, but sold before engagemēt. 68
  • 38 Of a thing engaged to one for rent due at a day, and before that day engaged to another for ready mony. 69
  • 39 Of a ground sold upon conditiō, & then engaged recovered for not performance of the condition. 69
  • 40 Of a ground engaged to three persons whereof the last redeemed it from the first. 70

SECT. 2. Of speciall Contracts.

  • 1 Of a Sale covenanted to be void, if the price be not paid at a day. 71
  • 2 Of a Sale covenanted to be void if within a set time more were offered. 72
  • 3 Of part of a ground warranted, recovered. 73
  • 4 Of 2 Horses sold one recovered frō the buyer. 73
  • 5 Of a ground sold, whereof a third person reco­vered part, and part was lost by the Sea. 74
  • 6 Of Land let, covenanted to be tilled. 75
  • 7 Of covenants unperformed on both sides. 76
  • 8 Of a covenant to doe no dammage to another mans house. 76
  • 9 of a covenant to pay mony, if such or such a thing be done. 77
  • [Page] 10 of mony due upon default of a condition, not to be required untill the time of performance. 78
  • 11 of a covenant to bind one to marriage under a forfeture. 78
  • 12 of a Surety not being liable, when and where the principall debtor is not. 79
  • 13 of disengaging the Security, before the debt be paid. 80

SECT. 3. Of Reputed Contracts.

  • 1 of a Grand-mother maintaining her Niece in Minority. 81
  • 2 of monies laid out in respect of one, proving to be for the benefit of another. 82
  • 3 of a debt acknowledged by a Factor, on his Ma­sters behalfe. 83
  • 4 of goods received by a Servant to the M. use. 83
  • 5 of a Tutors accompt to be made for interest not for gaines. 84
  • 6 of a Tutor answerable for gaine by speciall ap­poyntment. 84
  • 7 of Alimony and Education to be allowed to a Tutor for a Minor. 85
  • 8 of a Tutor keeping to his own use, a Minors goods, which a Chapman refused. 86
  • 9 of Curators of the City, not to be questioned for more then came to their hands. 86
  • 10 of the publique mony of the City lent to use. 87

TIT. IV. Of Penalty.

SECT. 1. Of offences wilfully committed.

  • 1 of Injury done occasioned by ones selfe. 89
  • 2 of an Injury done by Error or mistake of the person. 90
  • 3 of threatning and offering blowes. 91
  • 4 of disgracefull words but true. 91
  • 5 of hindering a man from honour. 91
  • [Page] 5 Of Injury done by a Magistrate. 92
  • 6 Of two or more stealing the same thing. 92
  • 7 Of an Infant stoln, detaind untill he was a mā. 93
  • 8 Of a Maid servant stoln, which was a harlot. 93
  • 9 Of two Bondservants pledges, whereof one was stolne. 94
  • 10 Of a Letter stolne or purloynd. 94
  • 11 Of Writings or Bonds purloyn'd or stolne. 95
  • 12 Of things taken up wereof the owner is not known. 96
  • 13 Of an Atturney receiving mony without com­mission. 97
  • 14 Of one taking privily what he had lent. 98
  • 15 Of one taking away what was stolne frō him. 98
  • 16 Of procuring credit for an unsufficent party. 99
  • 17 Of false cōmendations of a thing to be sold. 100
  • 18 Of making a false claime, to another mans pre­judice. 100
  • 19 Of the like. 101
  • 20 Of lending false weights. 101
  • 21 of a counterfeit Letter. 102

SECT. 2. Of Offences wrongfully committed. 103

  • 1 Of Corne fired by burning of furze. 103
  • 2 Of hurt done by lopping a tree. 104
  • 3 Of hurt done in sport or play. 104
  • 4 Of hurt done upon provocation. 105
  • 5 Of hurt done by way of correction. 105
  • 6 Of one killd by a Barbers razor struck with a Ball. 106
  • 7 Of a boy following two carts crusht to death. 106
  • 8 Of dammage done to Cattell found in another mans ground. 107

SECT. 3. Of Offences Imputed.

  • 1 Of an Offence committed out of the duty of ones office. 108
  • [Page] 2 Of dammage done by a Servant common to two Masters. 109
  • 3 Of one mans Ramme killing another. 109
  • 4 Of Water falling from a higher ground into a lower. 110
  • 5 Of a Banke removed by casualty. 111
  • 6 Of the like case. 111

TITLE V. Of Inheritances Testamentary.

SECT. 1. Of Institution of heyres in the first place.

  • 1 Of a child supposed in the womb made heyr. 113
  • 2 Of heyrs made of estates in severall places. 114
  • 3 Of a disposition of so much if a Sonne be borne, of so much if a Daughter, and a Sonne and a Daughter are borne. 115
  • 4 Of the like case. 116
  • 5 Of heyres made upon condition of marriage. 117
  • 6 Of heyres made upon an absurd condition. 117
  • 7 Of two heyres made upon condition not per­formed by one of them. 118

SECT. 2. Of Substitution.

  • 1 Of a Substitution if a Sonne or a Daughter shall not be a mans heyre. 119
  • 2 Of a Substitution, in case two sonnes dye with­out Children one of them having childrē. 120
  • 3 Of Substitution of one to be heyr, in case a child dyed before the age of ten; and of another, if before the age of fourteene. 121
  • 4 Of one substituted by the Father to a Son which was dumb, who afterwards had a childe. 121
  • 5 Of one substituted to the survivor of two, which both dye at the same time. 122
  • 6 Of a substitution upō severall contingencies. 123

SECT. 3. Of Devising in trust &c.

  • 1 Of an estate intended to one in trust, descending to his heyre. 124
  • 2 of maintenance lest in trust to be raised out of interest. 125
  • 3 of an heyre in two Wills, taking upon him by the latter, which was voyd in law. 126
  • 4 of cancelling one copy of a Will, whereof there were more remaining. 126

TIT. VI. Of Legacies.

SECT. 1. Of a Reall Legacy.

  • 1 of a Bondman bequeathed doubtfull between two, to be understood common to both. 128
  • 2 of Error in designing of bondmē bequeathed. 129
  • 3 of a flock of sheep or the like bequeathed. 130
  • 4 of a groūd bequeathed, enlarged or diminisht. 130
  • 5 of a ground bequeathed, there being two of the same name of different values. 131
  • 6 of a third part of goods bequeathed. 131
  • 7 of Jewells bequeathed afterwards altered. 132
  • 8 of three hundred pounds bequeathed with two hundred pounds deposited. 132
  • 9 of a Legacy designed in summes afterwards spent. 133
  • 10 of a Legacy given to a Wife, of as much as to one of the heyres, who had different summes. 133
  • 11 of a Legacy of what came unto the Testator out of another mans estate. 134
  • 12 of the same thing twice bequeathed to the same person. 134
  • 13 of the same Legacy given in severall Wills, 136
  • 14 of Legacies given contrary to a former declara­tion in the Will. 137

SECT. 2. Of Legacies consisting in Right.

  • 1 of Freedome bequeathed to two Bondmē if they remained with the Testator at his death. 138
  • 2 of the choyce of two things of severall names gi­ven, there being two of one name of severall values. 139
  • 3 of the choyce of a Legacy not to be varied. 139
  • 4 of a Legacy of Bonds to be understood as when the Will was made. 140
  • 5 of a debt remitted by way of Legacy. 141
  • 6 of an annuall payment to a Citty. 141
  • 7 of an yearly Legacy to officers of a Church. 142
  • 8 of an yearly Legacy given to uses afterwards dis­allowed. 142
  • 9 of a Legacy given to uses, no summe being ex­prest. 143
  • 10 of something in one ground, being given to be imployed in another. 143
  • 11 of a desire that a thing bequeathed, be not alie­nated to a stranger. 144

SECT. 3. Of Legacies in Trust.

  • 1 of a Legacy left in trust, paid before the time appoynted. 145
  • 2 of Persons to whom a trust was intended, to be understood in order as they are named. 146
  • 3 of a Legacy given for thirty years, not to be de­termined by death of him to whom it was given. 147
  • 4 of a Legacy given to one at the age of fourteen, being voyd if he died before. 147
  • 5 of a Legacy to be paid to a Girle upon Marriage, not to be paid before she be twelve years old. 148
  • 6 of a Legacy given to one who fell dangerously sick, transferred to another. 148
  • 7 of a Legacy given to, or taken from an uncertain Person. 149

TITLE VII. Of Performance and Payment.

SECT. 1. Of Reall Performance and Payment.

  • 1 Of Performance of some thing uncertain. 151
  • 2 Of Perform. of some thing, or value thereof. 151
  • 3 Of restoring what was borrowed when the va­lue thereof is mutable. 151
  • 4 Of a Bond-servant promised in one place, or ten pounds in another. 152
  • 5 Of the effect or construction of payment, when one paies a sum due in severall respects. 153

SECT. 2. Of Legall performance or Payment.

  • 1 Of mony due, tendered within a short time after it was agreed to be paid. 155
  • 2 Of Delay made after a tender of mony due. 156
  • 3 Of mony due tendered to the disadvantage of the Creditor. 156
  • 4 Of debts remitted in case the creditor dye. 157
  • 5 Of debts discharged by way of Legacy. 157
  • 6 Of a generall discharge by way of Legacy. 158
  • 7 Of a Personall discharge declared in a Will. 159

SECT. 3. Of Reputed Performance or Payment.

  • 1 Of Monies received to another mans use, and lost without imployment. 160
  • 2 Of goods lost by one who was fairely possest of the estate. 161
  • 3 Of things perishing in one mans possession, which might have perished in the possession of the true owner. 162
  • 4 Of hazard of monies due, lost after a tēder. 162
  • 5 Of the like case. 163
  • 6 Of the hazard of losse, where one thing or ano­ther is promised. 163
  • 7 Of a thing undertaken to be performed, which afterwards ceases to be in commerce. 164

PART II. TITLE I. Of Common and Ordinary Judicature.

SECT. 1. Concerning Persons, &c.

  • 1 Of a Minor proceeding as a Judge. 167
  • 2 of Judges having jurisdiction in causes of a cer­tain value or summe. 168
  • 3 of alteration of Judges appoynted to heare the same cause. 169
  • 4 of Departure out of a Jurisdiction after a suit commenced. 170

SECT. 2. Of Proofes, &c.

  • 1 of proofes lying on the Defendants part. 171
  • 2 of proving mony paid, to be due or not due. 172
  • 3 of proofe to be made by him, who alleadgeth what is contrary to common reputation. 172
  • 4 of monies mentioned to be due by one in his letter. 173
  • 5 of proofe contrary to a writing cancelled. 174
  • 6 of proving a thing beyond memory. 174
  • 7 of proofe by one Witnesse. 175

SECT. 3. Of Sentences given in ordinary causes.

  • 1 of Judges dissenting in their sentences. 176
  • 2 of divers persons cōdemn'd in the same sum. 176
  • 3 of a Sentence given betwixt two, not prejudi­cing a third party▪ 177

TIT. II. Of Arbitrement.

SECT. 1. Touching the Power of Arbitrators in generall.

  • 1 of a Reference made with power to assume an Umpier. 179
  • 2 of all differences referred, whereof some are o­mitted in the relation. 180
  • 3 of a Compromise of all matters to be determi­ned at the same time. 180
  • [Page] 4 of a third Arbitrator absent. 181
  • 5 of different judgements given by Arbitrators. 181
  • 6 of an Award given, and the parties not requi­red to observe it. 182

SECT. 2. Concerning Borderers and Partners.

  • 1 of two owners of one ground in commō, one of thē being sole owner of the next adjoyning. 183
  • 2 Of a Tree growing upon two severall grounds coming to be divided. 184
  • 3 Of goods given by a common servant. 184
  • 4 Of charges laid out to improve a common ground desired to be divided. 185
  • 5 Of a common ground to be divided, whereof one mans interest is pawn'd, the other sold. 186

SECT. 3. Concerning Co-heyres.

  • 1 Of compensation in recompence of things of un­equall value divided. 187
  • 2 Of charges bestowed by a Father on his Sonne in the way of Learning. 188
  • 3 Of a Sonnes portion pawn'd in his Fathers life time. 188
  • 4 Of a ground, wherein were Monuments of an­cestors desired to be divided. 189
  • 5 Of Brothers agreeing to a division without the Arbitrators consent. 190

TIT. III. Of Maritime Judicature.

SECT. 1. Of shipps, and freighting of shipps.

  • 1 Of a ship built with another mans materialls. 191
  • 2 Of profits due from another mans ship. 192
  • 3 Of monies lent to a master to repair his ship. 192
  • 4 Of goods remov'd out of a ship which was hi­red. 193
  • 5 Of a voyage hindered by prohibited goods. 194

SECT. 2. Of dammage done to ships and of things adventured at Sea.

  • 1 Of one ship doing dammage to another. 194
  • 2 Of dammage done to the tackle of a ship. 195
  • 3 Of a Merchant servant appointed to receive mo­ny, giving a longer time. 196
  • 4 Of Interest of monies adventured at Sea. 197
  • 5 Of Interest due, although not demanded. 198

SECT. 3. Of Contributions and Fishing.

  • 1 Of contribution for goods cast over board. 199
  • 2 Of losses sustained by a ship, not lyable to con­tribution. 200
  • 3 Of goods in a boat cast away. 201
  • 4 Of Exporting goods after a time limited. 201
  • 5 Of hindering one to Fish in the Sea. 202

TITLE IV. Of Judicature concerning the Treasury.

SECT. 1. Of things properly belonging to the Treasury.

  • 1. Of rescinding a sale made on behalfe of the Trea­sury 204
  • 2 Of publique grounds hired let out to others. 205
  • 3 Of the profits of publique grounds sold, arising within a time limited for more to be offer'd. 205

SECT. 2. Of Escheats and Forfeitures.

  • 1 Of one who received mony out of an estate in­forming against the heyre. 207
  • 2 Of prosecuting a forfeiture after the death of the delinquent. 207
  • 3 Of the like case. 208

SECT. 3. Of Estates questionable after Escheats and forfeitures.

  • 1 Of an Estate after death not due upon condem­nation. 209
  • 2 Of an estate forfeited for a false accusation, and the first mover freed. 210
  • 3 Of the forfeiture of one not to be construed in prejudice of another. 210
  • [Page] 4 of the condition of a Surety, when the Treasury succeeds the Debtor. 211

TIT. V. Of Judicature before the Praetor.

SECT. 1. Of Relieving Minors and Debtors.

  • 1 of an Act begun in minority, compleated in full age. 213
  • 2 of Restitution against a third person. 214
  • 3 of the author or occasion of feare, against which one sues to be restored. 215
  • 4 of a Release procured by force, of a debt enfor­ced. 215
  • 5 of restitution against the heyres of him, who hath gained from another by force or fear. 216
  • 6 of reducing Creditors to conformity. 216
  • 7 of the major part of Creditors, how to be un­derstood. 217

SECT. 2. Of Preventing Dammages.

  • 1 of Warning to be given to desist from a new worke. 218
  • 2 of one who bought the ground, where a new worke was begun. 219
  • 3 of the heyre of him who proceeded in a new worke. 219
  • 4 of one required to secure another, who sought not to be secured himselfe. 220
  • 5 of one desiring to be secur'd, who refused him­selfe to give security. 221
  • 6 of Dammage happening from one house to ano­ther without fault. 221
  • 7 of dammage happening, before a legall course was taken to prevent it. 222

SECT. 3. Of Decreeing matters agreeable to equity.

  • 1 of Treasure hid in another mans ground. 223
  • 2 of monies laid out to redeeme a prisoner. 224
  • [Page] 3 of Interest demanded for mony deposited. 224
  • 4 of an Heyre made in Trust, to convey the estate to the Testators Sonne or Mother. 225
  • 5 of a release procured by fraud. 226
  • 6 of the sale of a ground warranted as the seller possest the same. 226
  • 7 of grounds sold the measures mistaken. 227
  • 8 of a Covenant not to remove a Tennant. 228
  • 9 of Rent to be abated for improving the ground. 229

TIT. VI. Of the Emperours Audience.

SECT. 1. Of Causes in generall of Law and Equity.

  • 1 of the Fathers fact not debarring the Son from a benefit deserved from his Grand-father. 230
  • 2 of restoring a Minor, the Tutors having been negligent. 232
  • 3 of a promise procured by force. 233
  • 4 of recovering a mans own by force. 233
  • 5 of Wages due where no fault was in him who was hired. 234
  • 6 of Sureties, being liable for no more then they undertook. 235
  • 7 of a Legacy recoverable from the heyres, not payable as was appoynted. 235

SECT. 2. Of Causes Testamentary.

  • 1 of right to Legacies, in a Will where the names of the heyres are blotted out. 236
  • 2 of an Heyre made in stead of one supposed to be dead. 238
  • 3 of an Heyre trusted spending the estate. 238
  • 4 of the Father wasting an estate intended to his Sonne. 240
  • 5 of compelling one to performe a trust. 240

SECT. 3. Of Confirming or Reforming Sentences given by other Judges.

  • 1 Of an examination unduly taken by torture. 242
  • 2 Of a Sentence confirmed concerning the negoti­ation of a Factor. 243
  • 3 Of the heyre of one indebted to the publique to be sued before those who bought something of the estate. 243
  • 4 Of a sentence given by combination and corrup­tion of Witnesses. 244
  • 5 Of an Advocate compounding for the event of the suit. 244

TIT. VII. Of Criminall Judicature.

SECT. 1. Of the manner of proceedings &c.

  • 1 Of informations given against Offendors. 246
  • 2 Of one accused undertaking to accuse another. 248
  • 3 Of one being accused of what he was acquitted. 248
  • 4 Of the same Accuser, of another crime. 249
  • 5 Of an Offendor offering Bayle. 249
  • 6 Of proceeding against an offendor absent. 250
  • 7 Of crimes committed by the same person in seve­rall provinces. 250

SECT. 2. Of Publique Offences.

  • 1 Of the intention in homicide. 251
  • 2 Of killing persons found in adultery. 252
  • 3 Of Accessaries in homicide. 253
  • 4 Of a Minor not helping his Master. 253
  • 5 Of Parricide cōmitted by one supposed mad. 254
  • 6 Of Treason. 255

SECT. 3. Of the effect of Criminall proceedings.

  • 1 Of confession voluntarily and upon torture. 255
  • 2 Of offendors condemned restored▪ 256

TITLE I. Of the state and condition of per­sons; and of the common state or condition.

The state, or condition of Persons, is that right, which is inherent in themselves, and is either Common, Speciall, or Reputed.

SECT. I. The common state or condition is that which is considered, in naturall and or­dinary respects, as of Birth, Sex, Age, &c.

1 Of a Child borne in the seaventh month. D. 1. 5. 11.

A Woman being delivered of a sonne, in the seaventh month after she was married, It was doubted, whether the child were lawfully begotten? Whereupon Paulus gave his opini­on, That it was received as a thing unquestionable, from the authority of Hippocrates, that learned Physitian, that a perfect child may be borne in the seaventh Month, and that [Page 2] therefore the child so borne ought to be held a law­full sonne.

2 Of diverse Children borne at the same time. D. 1. 5. 15.

A Recusa a bondwoman, by her Masters will was made free, when she should be delivered of three children, At her first lying downe, she was delivered of one, at the next of three chil­dren; It was question'd whether any of the chil­dren ought to be held free-borne? Tryphonimus an­swered, That it was not to be doubted, but that the last of the fower, was borne free, Because nature doth not suffer two infants at the same time, to be delivered out of the Mothers Wombe, so that it might be discovered which was borne in the time of her servitude, and which afterward in the time of her freedome, shee her selfe becomming free as soon as the third child was borne: Vlpian saies the the same rule holds, if she were delivered of two at the first birth, and of two other at the second, for both of the second birth cannot be borne free, but the second only, and if by reason of uncertainty, there be any doubt, it is a question of fact, not of Lawe.

3 Of a Male child borne before a Female. D. 34. 5. 10. & 11.

FReedome was given to a bond woman, when she should be delivered of a male child, It happe­ned that at the same time she was delivered both of a male and of a female; It was questioned which of them was held to be free borne? Vlpian answered, That if it were certaine that the male [Page 3] child was first borne there was no further question to be made, either of the Mothers freedome, or of the daughters, but if the daughter were first borne, upon that birth neither the Mother nor any of the children became free, but if it were doubtfull which was first borne, and that doubt cannot be cleared by proofe, he saies in such cases, the most favourable judgement is to be given, and upon presumption that the male child was first borne, the mother shall be held free, and the daughter as borne of a free woman.

4 Of an Hermaphrodite. D. 1. 5. 9. & 10.

IN many points of the Law saies Papinean, the condition of a Woman is inferior to the condition of a Man, Whereupon Vlpian saies, It was questioned to whether sex an Hermophrodite was to be referred, and he addes for his opinion, That it ought to be referred to that sex which ap­pears most prevalent.

5. Of the computing of Age. D. 28. 1. 5. & 40. 1. 1.

A Man is allowed by Law to dispose of his goods, in his last will when he hath complea­ted the age of fourteen years. Whereupon it was question'd whether it were requisite that he should have past his fourteenth yeare, or it were sufficient to have attained to the last period thereof, as for example, if one that was borne on the first day of January, did make his will on the same day, in the fourteenth yeare of his age, whether the will were good in regard the whole day was not spent, and therefore the yeare was not fully compleat. Vl­pian [Page 4] answered, That the will was good, yea farther, that it had been good, if it were made, any time af­ter midnight of the day preceding, because, the space of a day, being the period of the yeare, at that houre, having attained to the last day, he might be said to have compleated his fourteenth yeare. He resolves the same in the case of making a bondman free, which none could doe, but he which had com­pleated the age of twenty years, which are held compleat in the like manner, For the Law is not, that he shall be permitted who is past the age of twenty years, but he shall be restrained who is with­in that age, and he cannot be said to be within that age, who hath attained to the last day of the twen­tieth yeare.

6 Of a Father and a Sonne perishing together. D. 34. 5. 8. §. 1.

WHen a Father together with his sonne pe­rished in the Warres; and the Father dy­ing the Mother of the sonne, supposing him to have dyed after his Father, claymed the e­state, as deriv'd from the sonne unto her; and the male kindred of the Father, as heirs to him, suppo­sing he survived, interposed for the same. The Em­perour Hadrian resolved that the father dyed first; and Tryphoninus agrees unto it, if the sonne were past a child, If Lucius Titius saies he, together with his sonne above the age of fourteen years, whom in his will he had made his heire dyed together, It is un­derstood the Sonne survived the Father, and was his heire, so that his inheritance is transferred to his successors, But, saies he, if the sonne were under the age of fourteen years, the Father is held to out­live the Sonne, unlesse the contrary be proved.

SECT. II. Of the speciall state, or condition of persons.

The speciall state: or condition of persons is that which hath relation to the Civill Law, or Law of the Country, either of private per­sons, as of Freemen, Cittizens, married peo­ple, Tutors, Curators &c. Or of publique place, as Senators, Magistrates, Officers and the like.

1 Of Freedome bequeathed in the second yeare after the Testators death. D. 40. 4. 41.

ONe in his last will ordained in this man­ner. I will that Stichus my bondman shall be free in the second yeare after my death. It was questioned what time of the second yeare, was considerable in this case. Pom­ponius answered that it was most probable, that the Testator intended at the beginning of the yeare, there is much difference betwixt these words, In the second yeare, and After the second yeare, for we are wont to call it the second yeare, when any part of the yeare is come or past, so that he that is appointed to be free in the second yeare, is ap­pointed to be free in all the daies of the second [Page 6] yeare, in which opinion agrees that of Labeo who saies, If freedome be bequeathed in these words, I will that Stichus be free within a yeare after my death, he shall be free presently after his death, for he saies, if he shall will that his bondman shall be free, if he give ten pounds to his heire within ten years, if he pay it presently, he shall be free without any further delay.

2 Of freedome be queathed in consideration of service to be done. D. 4. 4. 44.

MAevia bing ready to dye, made her bond-man Saccus and her bondwoman Eutychia and Hyrene free in these words▪ I will that Saccus, Eutichia, and Hirene my bondservants be all fee upon this condition, that they monthly by turnes, light tapers in my monument, and performe the rites belonging to my corps. When Saccus, Eu­tichia, and Hirene had failed in their due attendance, as was appointed, It was question'd whether they might enjoy their freedome. Modestinus answered that it could not stand with Maevius meaning nor was it implyed in her words that their being free, should depend upon their attendance, that being a duty to bee done by free persons, and that it was ra­ther a consideration why she made them free, then a condition, whereby their freedome should be su­spended, howsoever it was proper for the Judge, or Magistrate to compell them to performe that duty which the testatrix had enjoyned.

3 Of persons Free-borne. D. 1. 5. 5.

THose persons are held ingenious, or of free condition who are borne of a free woman, and it is held sufficient that she was free when she was delivered although she were a bond woman when she first conceived with child, and likewise if she were free when she conceived, and afterwards were become a bond woman when she was delive­red, it was held, that the child borne of her was free, because the calamity of the Mother ought not to prejudice the child in her wombe. It was further questioned, If a bond woman conceived or proved with child, and afterwards was made free, and then before she was delivered, became and continued a bondwoman, so that the child was both conceived, and borne in bondage whether this child was borne free? and it was resolved for the good of the child, that it ought to be held free-borne, it being suffici­ent for the child in the wombe, to have had the mo­ther free in the middle or mean time, betwixt the conception and the birth, Because, as Paulus saies, If there be any question concerning benefits be­longing to the child in the wombe, it is respected as already borne.

4 Of a Citty or Corporation. D. 3. 4. 7.

VLpian saies, If any thing be due, or owing to a City or corporation it is not due or owing to the particular persons thereof, nor if the City or corporation be indebted, are the particular persons bound to make satisfaction for the same, but [Page 8] he saies, The Successors of the City or Corporation ought to make good, what others formerly contra­cted, and it makes no difference whether all remain, or part, or whether the first persons be wholly changed, insomuch that if the corporation be redu­ced to one person, he may sue, or be sued in the name of the whole.

5 Of one returned out of Captivity. D. 49. 15. 5. & 12. §. 9.

HEE that is taken prisoner by enemies be­comes their bondman, but if he returne again into his country, hee is forthwith restored to his former condition, saith Pomponius, unlesse he chuse rather to returne to the enemy. And so it was resolved in the case of Attiiius Regulus (who being taken prisoner by the Carthaginians, was by them sent back to Rome) that he could not recover his former condition, because he had obliged himselfe by oath, to returne to Carthage. And therefore when a dispensation was proposed, touching Menander, a forreyner, who had received freedome amongst the Romans, That notwithstanding he, being imployed as an Interpreter, was sent back into his own coun­try, he should continue a Citizen of Rome, It was held unnecessary. For if he had a purpose to remain in his own country he would cease to be a Citizen of Rome, and if he had a mind to returne thither a­gaine, he would continue a Citizen although no dispensation to that purpose was granted. It is o­therwaies saith Tryphoninus in the case of a bond ser­vant, for if he be taken prisoner and made free by the enemies, if his Master shall recover him, and bring him within the Roman territories he shall re­maine his bondman, although he have a desire to re­turne back unto the enemies, Because as Sabinus [Page 9] writes, Every man hath a free power to make him­selfe a Citizen where he listeth, but cannot dispose of another mans right.

6 Of one delivered up to the Enemies. D. 50. 8. 17.

IF any one laied violent hands upon an Ambas­sadour of the Enemies, he ought, saith Q. Mucius, to be delivered up unto them, whom if the ene­mies refused to receive, It was questioned whether he continued a Citizen of Rome? and some were of opinion, That he did continue so, others held o­therwise, Because whom the people of Rome delive­red up into the power of the Enemy, they seemed to deprive of the priviledge of a Cittizen, as much as if they had banished him out of their dominions, of which opinion was Publius Mucius; and this questi­on was especially moved in the case of Hostilius Mancinus concerning whom by a speciall Law it was ordained, That he should be held a Citizen of Rome, although he had been delivered unto, and re­fused by the enemies, in consequence whereof, he afterwards bore the Office of Praetor.

7 Of marriage accomplisht. D. 3. 1. 15.

A Marriage was held compleat, when the Wo­man who had given her consent was led, or brought home to the Husbands house. & there­upon Vlpian being consulted, answered, That if a le­gacy were given to a woman, upon condition when she was married to one of such a family, said it be­came due as soon as she was brought within his dores, although it so happened, that she never entred into his chamber, because it is consent, not carnall company, that makes a marriage: & so Cinna reports [Page 10] that when one had brought home his wife, and that evening, going abroad to supper, fell into the river Tyber, and was drowned, it being thereupon questioned, whether she ought to observe the usuall time of mourning, as for her husband, it was resol­ved that she ought.

8 Of a Tutor appointed by a name uncertaine. D. 26. 2. 30.

ONe in his will apointed Titius to be Tutor to his sonne, there were at the same time two, to wit the Father and the sonne, whose names were Titius, and it did not appeare which of them was intended by the Testator, It was questioned who in point of right, ought to be esteemed as Tutor Paulus answered, that he ought to be esteemed de­signed, whom the Testator intended, but if that did not appeare, the right was not wanting, but the proofe, and therefore neither of them was to be held as Tutor.

9 Of a Tutor appointed in case another was not living. D. 26. 2. 33.

ONe appointed Tutors in this manner, I desire that Litius Titius should be Tutor to my son; if he be not living, then I appoint Gaius Plau­tius to be his Tutor, Lucius Titius out lived the Te­stator, and took upon him the Tutorship, and then died. Trebatius being consulted whether the Tutor­ship belong'd to Gaius Plautius held it did not, La­beo was of the contrary opinion, Proclus concurred with Labeo, but I (saies Javolenus) approve the judgment of Trebatius, because the words had rela­tion to the time of the Testators death.

10 Of a Tutor altered by error. D. 26. 2. 34.

ONe who had appointed tutors in his will after wards in a codiciall declared that he named others, because he understood the former were dead, or might have cause to excuse themselves. It was questioned whether, they who were named in the will, being living at the time of his death and pretending no excuse, did not continue Tutors. Scaevola answered that as the case was proposed he saw nothing but that they ought to continue.

11 Of Senators Sonnes. D. 1. 9. 5. & 7.

MAny priviledges belonging to the sonnes of Senators, It was questioned how the sonne of a Senator ought to be accompted, whether he whose Father is a Senator, or he only who is borne, his father being a Senator. Vlpian said it made no difference, whether he were borne, whilest the Fa­ther enjoyed the dignity of a Senator, or before his Father attained thereto. Labeo addes That he who is borne after the death of his Father, who was a Se­nator, ought to be reputed a Senators sonne, yea al­though the Father be degraded from being a Sena­tor, if the sonne were conceived before that time, and borne afterwards, he shall rather be held a Sena­tors sonne, then otherwise, for most are of opinion that the time of conception ought to be regarded. Vlpian saies farther, That if one have both his Grand-Father, and his Father Senators, he shall be held the sonne, and grand-child of a Senator: Whereup­on, it is againe questioned, whether if the Father [Page 12] were degraded, before the sonne were conceived, (although he have not the reputation of a Senators sonne) he may not be respected as the Grand-child of a Senator; and it is held (saies he) that he may, so that the dignity of the Grand-father shall more a­vaile him, then the disgrace of his Father shall doe him prejudice.

12 Of Senators Wives and Daughters. D. 1. 9. 8. & 12.

SEnators Wives, and Daughters are held honou­rable, because Husbands communicate their ho­nours to their Wives, & Fathers to their daugh­ters: but it is questioned, whether they continue so, when they are married to men of a lower ranke? Vlpian saies, that as long as they continue single, or are married to men of equall degree, they retaine their dignity, not otherwise; and therefore if Wo­men, who were married to such as have borne the Office of Consul, afterwards became Wives to men of lesser dignity, they did sometimes, but rarely, ob­taine by the Princes favour, to retaine their former condition, which favour, as he saies, Antoninus the Emperour, vouchsafed to Julia Mamea his consen­germane.

13 Of the Pro-Consuls naming a Deputy before he enters into his Province. D. 1. 16. 4. & 5.

THe Pro-Consul after he entred into the Pro­vince, which was assigned unto him, usually committed authority to his deputy: and it was questioned, whether, if before that he entred, he ap­pointed a Deputy, it were of force? to which Vlpian [Page 13] sayd, That he could not do it, for it were absurd, that he should conferre authority, upon any other, before he were invested therewith himselfe, and it is certaine, he hath none untill hee come into the Province, But he saies, if the Pro-Consul, before he comes into the Province, doe make a Deputy, and when he comes there, continues in the same mind, It ought to be thought, that the Deputy, hath pow­er and authority, not from the time of his nominati­on, but from the time the Pro-Consul entred into the Province. Papinian saies, That it may so hap­pen that the Pro-Consul may make his Deputy al­though he be not entred into his Province, as if by extraordinary necessity he be staied upon the way, and the Deputy may come there timely enough be­fore him.

SECT. III. Of the reputed state and con­dition of Persons.

The reputed state or condition is when persons in common estimation, are held to be such as in truth they are not, or may be otherwise, whe­ther they be of private, or of publique qua­lity, as Reputed free-men, Married persons, lawfull Children, of full age, Tutors, Magi­strates, Persons of credit, or infamous per­sons.

1 Of Freedome enjoyed by a will which after-wards proves voyd. D. 40. 4. 29.

LVcius Titius put away his wife, being great with child, and shee being delivered of a sonne, left it to the mercy of him that should find it, This child was taken up, and bred by a stranger, but was unknown, both to the Father and Mother, whether it were living or no, The Father being dead left a will, wherein di­vers bondmen were made free, and no mention made of the Sonne, Some years after, the sonne be­ing owned by the Mother and Grandmother of the Fathers side, the Will being held void, he enjoyed the estate, as the proper heire to his Father, It was [Page 15] then questioned, whether they to whom freedome was given in the will, ought to be held bondmen, or free? Scaevola answered that the Sonne although he were ignorantly past by in his Fathers will, had no prejudice, it being made voide, but that the per­sons who were made free, in that Will, and had re­mained in that condition, by the space of five years, should be reduced to servitude, was contrary to that favour which the Law affords to freedome.

2 Of Persons cohabiting as Man and Wîfe. D. 23. 2. 24. & 39. 5. 31.

IF a man not known to be married, did cohabit and keep company with a Woman, It is questio­ned whether shee is to be reputed his Wife, or his Concubine? Modestinus answered, That he who converseth with a Woman ingenuous, or free borne, ought to be conceived to doe it rather in the way of marriage, then of keeping her as his Concubine, un­lesse shee were one who was known formerly to have demeaned her selfe dishonestly? Papinian saies, it is considerable whether the affection, and respect of a Husband towards a Wife, were used betwixt them, their qualities being compared, and the man­ner of their mutuall society, being observed, For true marriage is not made only by Indentures or writings.

3 Of a Child borne in Wedlock. D. 1. 6. 6.

IT is generally held for a rule, saith Vlpian, That a child borne during marriage, betwixt the Hus­band and the Wife, is the Husbands child, But suppose, saith he, that the Husband hath been ab­sent [Page 16] from his Wife ten years, and returning findes with his Wife a child, of a year old, In that case hee agrees with Julianus, that it is not the Husbands child. But whereas the same Julianus affirmes, That it is not to be endured that he who cohabits alto­gether with his Wife should disclaime her child, as none of his, Vlpian admits not that without distin­ction, but holds with Scaevola, That if it be notori­ous, that the Husband, by reason of sicknesse, or some other impediment, could not lye with his Wife, or were disabled from getting a child, al­though one be borne in the same house, and the neighbours had taken notice thereof, it ought not to be reputed his child.

4 Of a Minor, upon view, allowed by the Magistrate to be of full age. D. 4. 4. 32.

ONe under the age of twenty five years, ad­dressing himselfe to the Magistrate, by shew­ing his visage, made a false proofe of being of full age: his Curators well knowing, that he was yet a Minor, continued in the administration of his e­state, In the mean time after his age was allowed, by the Magistrate, and before he had compleated his twenty five years, monies, which were owing to his estate, were paied unto him, and spent foolishly by him. It was questioned who were in danger for the mispending these monies, and whether the Curators might have been excused, if they had persisted in the same error, and yeelded up their administration of the estate. Paulus answered, that they who paid in the monies, due to his estate were freed by Law, and ought not to be farther questioned for the same, but it is certain that the Curators, who knowing [Page 17] him to be a Minor, did continue in that charge, ought not to have suffered him to receive the mo­nies due, and are liable for the same; but if they had submitted to the Magistrates judgement, and had de­sisted from the administration, and had given up their account, they had been in the same condition, as the Debtors who had paid the monies, and [...]ould not have been questioned for any thing.

5 Of a Magistrate promoted by Error. D. 1. 14. 3.

BArbarius Philippus, being a Slave or bondman, who had run away from his Master, coming to Rome and living there, in the quality or e­steeme of a Free-man, was made Praetor, & dispatch­ed many businesses publiquely, belonging to the Prae­tors office. It was questioned first, whether he were truly, or lawfully Praetor, in regard a slave or bond-man was not capable of that dignity: Pomponius said, that his condition hindered not, but that he might be made Praetor, because the People of Rome, or Em­perour had power to make a Bond-man Praetor, and if they had known him to be a slave, they might have made him free; Vlpian saies, it is certaine he was in possession of the office of the Praetor, and makes a second question, whether although he still continued a slave, whilest he bore the Praetors of­fice, the decrees made, and acts done by him in that time were good, and of force, for the benefit of those who were concerned in them; and concludes, that it was his opinion, That none of those acts or or­ders were void.

6 Of rich men to be preferred before others, to Offices of Dignity. D. 50. 4. 6.

ANtoninus and Verus the Emperours, being con­sulted by Rutillius Lupus, declared, that the constitution wherein it is provided, That e­very man in the same order as he was admitted to be of the Common Counsell, should be admitted to be a Magistrate, was to be observed when they were all fit men, and of sufficient ability, But if some be of mean fortunes, and their estates so spent, that they are not only disabled to sustaine places of dignity with credit, but also make hard shifts to mantain themselves, It is not profitable for them, nor ho­nourable for the City to conferre places of Magi­stracy upon them, especially when there be others who with more conveniency to themselves, and cre­dit of the publique, may be chosen to those places, and therefore commanded, that the wealthier per­sons, doe not, upon pretence of any such Constitu­tion, excuse themselves, and that they take notice, That then only, the order of admission into the Common Counsell is to be respected, when the per­sons are of ability to take upon them places of dig­nity.

7 Of honest men not to be removed from their charge, in respect of poverty. D. 26. 10. 8. & 5.

WEE hold him saies Vlpian a Tutor wor­thy to be suspected, whose manners or be­haviour in his place deserves it, For a Tu­tor albeit a poore man, if he be trusty and diligent; ought not to be removed, as one of whom there is cause of suspicion, and that man may rather be doubted, who being himselfe subject to suspition, hath given security, for it is better for the Minor to have his estate preserved, then to have writings of caution to preserve the same.

8 Of infamy arising from punishment. D. 50. 13. 5. § 2. & 3. 2. 22.

A Mans credit is impaired saies Callistratus, when retaining his freedome, yet hee undergoes some punishment, which derogates from his reputation, as when one is confined to some remote place, or degraded from his ranke, or debarred from bearing publique office, or if he who is a Plebeian, or of the common sort, hath been beaten with cud­gels, But Marcellus holds that to be true, if there were a just cause, for inflicting such a punishment, for (saies he) the beating with Cudgels does not render a man infamous, but the cause for which he was beaten, if it were such as deserved, by his con­demnation, to make him infamous.

9 Of a mans Testimony rejected. D. 3. 2. 21.

LVcius Titius sued Gaius Seius in a cause of inju­ry, and to make it good, procured the deposi­tions of some witnesses to be read unto the Judge, who giving no credit to the depositions, pro­nounced that Gaius Seius, had done no injury to Lu­cius Titius. It was thereupon questioned, whether they, whose testimonies were rejected, were to be held infamous: Paulus answered, There was nothing considerable, wherefore the witnesses should be held infamous, it being unreasonable, that by a sen­tence just or unjust given for one, others should re­ceive prejudice.

TITLE II. Of Title to Goods or Lands, and of Common Right or Pro­perty. Title to Goods or Lands, is that which a man hath in things Moveable or Immoveable, and is either Common, Speciall, or Reputed.

SECT. I. Common right to things, is that which is a­greeable to the Law of Nations, as Pro­perty which is the right of enjoying and disposing of a thing at pleasure, and is gained by Industry, as by taking what belongs to none else; or framing some­thing for ones own use, or having some­thing arising or accruing from what be­longed unto him, or by the guift of some other.

1 Of a Wild-beast, chased, and Wounded. D. 41. 1. 5.

IT was questioned, whether if a Wild-beast were so wounded, that it could not escape the pursuer, it were to be held forth with gained by him, who pursued & wounded it. Trebatius. was of opinion, That it was forthwith his, and ought to be held so, as long as he pursued in chase thereof [Page 22] but if he desisted from the pursuit thereof, it then ceased to be his, and might be gained by any else, who should pursue, and take the same, and there­fore, if whilest he, who wounded the beast, is in pursuit thereof, another steps in, and catches it, with a purpose to gaine it to himselfe, he saies, he is lya­ble to an action of theft, But most Lawyers else, as Gaius affirmes, are of opinion, that it is not his who wounded it, untill he doe actually take it because many things may fall out, which may prevent, and hinder the taking thereof, which saies he, is the tru­er opinion, but the Glosse observes, that what Tre­batius delivers, is held good by custome, and pra­ctice.

2 Of a Wild Beast taken in a net. D. 41. 1. 55.

ONe by letter, proposed a Case to Proculus in this manner, A wild Boare chancing to fall into, and so to be intangled in a toyle, or net pitched by you, was taken our and carried away by me, Whether doe you conceive, that I carried away your Boare, and if you doe conceive it was yours, suppose I had loosed it, and let it escape into the Woods, whether had it continued, or ceased to be yours? and if it ceased to be yours, what action might you bring against me for what I had done? Procu us returned by way of answer thus; It is consi­derable, whether the toyle or net were pitched in a publique or private place, and if in a private, whe­ther in mine own ground, or in the ground of ano­ther man, or if in the ground of another man, whe­ther with his consent or without his consent; more­over whether the Boare were so intangled, that it could not possibly get loose, or so that by much [Page 23] strugling it might have escap'd, But in conclusion, I am of opinion, saies he, that if it were brought within my power, the Boare was mine, but if after it became mine, you set it at liberty, it did then cease to be mine, and I ought to have an action of the case ngainst you, as it was resolved, when one had cast another mans cup into the Sea.

3 Of Piggs recovered from a Wolfe. D. 41. 1. 44.

POmponius handles this question, When the Wolfe had taken away Piggs from my Hog heard, a Country man of a neighbouring Village, fol­lowing them with his Mastife, recovered the piggs from the Wolfe, and when my Hog-heard deman­ded the same, it was thought disputable whether he had gained, or I did still retaine the property of them, For it might seeme, that he gained it, after a manner, in way of chase, or hunting, and as things taken at Sea, or Land, if they once get loose, cease to be theirs who took them, so if any thing belonging to us be taken by Wild beasts, they cease to be ours, when they are gotten out of the reach of our doggs which pursued after them, For who will say, when an Eagle or Hawke, hath snatched up Poultry, out of our Backsides, and fled away therewith, the pro­perty is not lost, why should not that which is ta­ken out of the mouth of a Wild beast be booty to him that recovered it? as if a man hath taken a Fish, a Hare, a Partridge, if they escape his hands, and an­other man take them, they are his own, But Pom­ponius was of opinion, although that were true which is argued of birds, beasts, and fishes, yet other things, whereof we had a property, continue ours as long as we conceive any hope of recovery, as any [Page 24] thing be lost by shipwrack, it doth not presently cease to be the Owners; but if any imbezill it he is lyable to pay fowerfold: And Vlpian is of opinion, That an Action of thest might be brought in this case; for although he that pursued the Wolfe, and recovered the Piggs, had no intention of stealing, yet when upon demand he refuseth to restore them, he seemed to conceale, and wrongfully to detaine the same.

4 Of a thing Stolne afterwards lawfully bought. D. 49. 15. 27.

A Bond-slave being taken from his Master, by Pirats or Robbers, afterwards fell into the hands of lawfull enemies and being recove­red in War from them, was sold by him who recove­red him, It was questioned whether he that bought the Bond-slave Bona fide, that is, not knowing any unlawfulnesse therein, had a good title to him, La­beo, Ofilius, and Trebatius were of opinion, that he had none, because he was stolne at the first, & nei­ther his being taken Prisoner by an enemy, nor his being recovered by a friend, can purge that blemish.

5 Of Things Composed by one out af another mans Materialls. D. 41. 1. 7. §. 7.

COncerning things composed, or made out of another mans materialls; Nerva and Proculus were of opinion that he who made a new thing for his own use, was proprietary thereof, be­cause that which was new made, was no mans else before, Sabinus and Cassius were of opinion, That it was more agreeable to naturall reason, that he who was proprietary of the matter, should be also owner [Page 25] of the thing made: and there is a middle opinion saith Gaius, which is reputed the truer, to wit, that if the thing composed, may be resolved into the mat­ter of which it was composed, the opinion of Sabi­nus and Cassius should take place; as when a Vessell is made of another mans matter, into which it may be resolved againe; but if it cannot be reduc'd to the same matter, then the opinion of Nerva, and Procu­lus should hold, as when Wine is made of another mans Grapes, or oyle out of another mans olives, in­to which the Wine or Oyle cānot be reduced again.

6 Of an Island newly arrising in a River. D. 41. 1. 56.

A Case was proposed to Proculus, in this man­ner; An Island arose in the river, over against the borders of my ground, and at the first, was such, that it did not any way extend in length, be­yond the bounds of my Land; it afterwards increa­sed by degrees, and proceeded so farre, that it reach­ed in length to be opposite, to the borders of the ground above and beneath, adjoyning to mine. It was questioned, whether those parts, which last accrued, belonged to me; because they were joyned to that which was mine before: or whether they now in right appertain to the other grounds, as they should have done, if at the first the Island had appeared of the same extent? Proculus answered; If the river in which (you writ) an Iland arose opposite to the bor­ders of your groūd, not exceeding the length there­of▪ be of the condition, that what is gained by casting up of the earth, becomes to be of private right, and at the first it lay nearer to your lands then to any mans else, who had lands on the other side, it be­came wholly yours, and that which afterward ac­crued unto it, by casting up of the earth is yours also, [Page 26] although it so increased, that it extended in length over against the grounds above, or below, as also, if by the same means, it had grown nearer to that which lay on the other side of the river.

7 Of a Ground, where a river leaves its Channell. D. 41. 1. 56.

IT was farther demanded of Proculus, as follow­eth: An Island arising nearer to my ground, then to the ground on the other side, and afterwards the whole river, which before divided it selfe, lea­ving that channell, where the greater part of it ran, made its current betwixt the Island and my ground. I desire to know, and that you signify unto me, whether you make any doubt, but that the Island still belongs to me, and that notwithstanding, part of the ground, where the streame forsook its Chan­nell, likewise belongs to me. Proculus answered, If the Island, at the beginning, being nearer to your ground, the river leaving the greater channell, which lay betwixt the Iland, and the ground on the other side, and wholly took its course betwixt the Island and your ground, yet howsoever the Island continues yours, but the ground or channell which lay betwixt the Island and the neighbours ground, on the other side, ought to be divided, so that the part thereof nearer to the Island ought to be estee­med yours, and that which is nearer to the Neigh­bours ground on the other side belongs to him, I conceive, that when on one side of the Island, the Channell proved dry ground, it ceased to be an Island, but for the better understanding of the busi­nes, I call that ground, an Island which was so be­fore.

8 Of Mony, given to the end, that he who received it, should buy something therewith. D. 39. 5. 2. §. 7.

ONe puts the case thus, I gave five pounds to Titius, on this consideration, that he should buy therewith to his own use Stichus a bond-servant, It was question'd whether Stichus dying before he could be bought, I had any Action to re­cover the five pounds? Julianus answered, The que­stion was rather of Fact, then of Law, for if I gave the five pounds to Titius, to that end, that he should buy Stichus, having no purpose, otherwise to have given it, Stichus being dead, I might by way of acti­on sue for it againe, but if without respect thereun­to, having a purpose to give him five pounds, un­derstanding that he had a purpose to buy Stichus, I told him, I gave it, that he might buy Stichus there­withall, It ought to be understood rather an occasi­on, then a condition of giving the mony, and that although Stichus were dead, yet Titius might retaine the mony.

9 Of monies lent, to be given to another. D. 39. 5. 19.

IF Gaius lent mony to Titius, to be paid to Seius, as a gift intended to him, and Titius after the death of Gaius, gave the same to Seius: Vlpian an­swered; It must be sayed, That whether Titius did know, or were ignorant of the death of Gaius, the mony became Seius his own, because the mony was his that gave it, and if he were ignorant of his death he cannot be question'd for the same, having recei­ved it, as lent, to be repaied to Seius, But if I gave [Page 28] order to one, to deliver mony to a third person, to whom I intended it, as a guift, and he being igno­rant of my death, performe the same, he shall have an action against my heyres to recover it; but if hee knew of my death before it was done, he shall have none.

10 Of Mony given to one, to the end it should be given to another in the Donors name. D. 39. 5. 25.

IF I gave something to you, to the end that you should give the same, in my name to Titius, and you give it to him, but in your own name, It is doubted, whether the property be transferred there­by. Javolenus answered, If I give a thing to you, to give it in my name to Titius, and you gave it in your own, as to the point of subtlety in Law, the proper­ty is not gained to him, and you are liable to an acti­on of theft: but it stands with the favour of Law, That if I sue him, who received that thing, that he may avoid my suit, by exception against my undue proceedings.

11 Of some thing, which the owner gave consent, to be digged up, out of his ground, and carried away. D. 39. 5. 6.

ONe by way of free guift, gave me leave to digge up stones, out of his Quarry, afterwards when they were digged up, forbad me to car­ry them away. Vlpian answered, as soone as the stones were digg'd, they were mine, neither could the ow­ner, by forbidding me to carry them away, make them cease to be mine, because they were mine by a [Page 29] kind of delivery. And it had been the same, if one hyred by me, had digged them; for he digged them for my use, but if one before they were digged had bought, or agreed with me for them, if before he had digged them up, I had changed my mind, the stones had continued mine; if afterwards, it was not in my power to alter what he had done.

12 Of a guift or grant to dwell in some houses or lodgings. D. 39. 5. 32.

LVcius Titius wrote a letter to Seius, to this pur­pose, You may make use of such lodgings as long as you please; and for such upper roomes, you may enjoy them freely: and that you might know, it is my will, that you should so doe, I wrote this letter unto you. It was questioned, whether af­ter his death, his heires might not forbid Seius any longer to dwell in, or make use of the same: Scaevola answered, that as the case was proposed, the heyre of Lucius Titius, might be of another mind.

13 Of a guift given by way of reward. D. 39. 5. 27. & 34.

AQuilius Regulus a young man, wrote to Ni­costratus in this manner; Because you alwaies cohabited with my Father, and I my selfe have much profited by your eloquence, and dili­gence, I give, and permit, that you should dwell in, and have the use of such a lodging, Regulus being dead: Nicosiratus was interrupted by his heyre, who intended, to make the grant [Page 30] voyde, for the future. He thereupon consulted Pa­pinian, who told him, it was not a meere free guift, but that Regulus requited him, as with a reward, for the paines which he had taken with him, and there­fore it being of another condition, then a meere free guift, he ought to enjoy the Lodgings, as long as he lived, which agrees with what Paulus delivers in the like case, to wit, if one recover another out of the hands of Theeves, or enemies, and in that re­spect receive something from him, this kind of guift, is altogether irrevocable; for in truth, it ought to be esteemed a recompence of an extraordinary service, which proceeding out of the consideration of his deliverance, is not to be valued in an ordina­ry way.

14 Of a guift of a thing Morgaged to another before delivery. D. 39. 5. 31.

LVcius Titius gave to Maevia by word of mouth, a certain ground, and within few daies after, before he had given possession thereof to Mae­uia, mortgaged that ground to Seius for a summe of mony, and within thirty daies after, he put Mevia into quiet possession thereof. It was questioned whether the guift were sufficiently confirmed, Scae­vola answered, as the case was proposed, it was suffi­ciently confirmed, but yet so, that Seius the Cre­ditor had still a strong obligation thereupon.

15 Of a Guift, voidable by the death of the Donee, before the Donor, both happening to depart the same time. D. 39. 6. 26. & 24. 1. 32: §. 14.

THe Declaration of the Emperour Antoninus concerning guifts, passing betwixt Husbands and Wives, shewes, that if the Donee dye be­fore the Donor, the guift is of no moment. It is therupon questioned, what may be resolved, if they both dye at the same time, as it may happen by burn­ing, or fall of a house; Vlpian answers, that if it can appeare, which of them expired first, the question is soon resolved; but if it cannot appeare, the doubt is more difficult: but he is rather of opinion that the guift is good; and grounds his opinion upon the words of the Declaration, which saies, If the party who received the guift shall first decease, but that party doth not seem to decease first, when both de­cease together at the same time, and therefore if, af­ter guifts bestowed from each to other, both dye to­gether, it may very rightly be sayed, that the guifts on both sides, are of force.

16 Of goods delivered in reference to a Dower. D. 23. 3. 9.

SEmpronius delivered goods to Maevius, to the in­tent, that if Maevius married his Daughter they should be for her Dower, or Marriage portion; but Sempronius dyed before the Marriage, and after his death Maevius married the Daughter; It was que­stioned, whether the Marriage ensuing, those goods became her Dower: Vlpian said, he doubted whether the property of the goods, were transferred on him [Page 32] to whom they were delivered, because the translati­on of the property, was in suspence, untill the Mar­riage was done, and at the time of the Marriage, the property was in Sempronius his heyre, from whom, it is undeniable, that it could not be transferred without his consent: But he was of opinion, that in the favourable case of Dower, the heyre should be compelled, to give his consent, to what his Father intended, that his Sister might not be left without a Dower.

17 Of a Dower given upon condition that part thereof be repaied to Children. D. 23. 4. 23.

THe father giving a Dower, or Marriages por­tion with his Daughter, Covenanted with her Husband, that if she dyed leaving one, or more children behind her, the Husband should be conten­ted, with the third part, and that the rest should be repaied to him the Father; or after his death, to such children as should remaine; the Father dying first, the Daughter dyed afterwards, leaving children: It was questioned, whether by vertue of that coyenant, the children might sue for the rest of the Dower, the Grand-father dying before the Daughter. Afri­canus answered that they might sue; for the force of the covenant consisted in that, if shee dyed during the Marriage with the Husband, the Dower should be restored: and it was all one in effect, as if one contracted conditionally, that when such a ship shall returne out of Asia, you shall give to me, or af­ter my death, to Lucius Titius, tenne pound; for al­though the ship returne not, untill after his death, the ten pound is due to his heyre.

18 Of a Covenant of disposing the Dower, in case the Mother should dye before her Child, or the Child should dye before the Mother. D. 23. 4. 23.

IT was agreed betwixt the Father in Law, & the Sonne in Law, that if the Daughter, or Wife dy­ed, leaving a child of a yeare old behind her, the whole Dower should remaine with the Husband; but if in the life time of the Mother, the child should dye, the Husband should returne a moyety of the Dower, unto the Father in Law. It happened that the Mother, and the Child being in a ship, which was cast away, were both drowned together: where­upon it was questioned, what part of the Dower might be retained by the Husband, Papinian answe­red, That it being most probable that the Child pe­rished before the Mother, the Husband ought to re­taine only a moyety thereof.

SECT. II. Of Speciall Right or Commodity.

Speciall Right is that which is grounded on the Civill Law, as Commodity, or the Right which one hath to receive benefit, out of things belonging to other men; as to receive the use and profits of Lands during life, or to have some use and conveniency in or from another mans possessions; as a way, passage, or Water-course, or the like: which Rights are gained by Prescription or graunt, &c.

1 Of the Vse and Profits of a thing given to a Corporation. D. 7. 1. 56.

VVHen the property being reser­ved to one, the profits are gi­ven to another, they are gene­rally given during the life of the party, to whom they are given; whereupon one giving the fruits and profits of some land to a Citty or Corporation, It was questioned, whether the Citty or Corporation might bring an action for the same, it seeming unreasonable, that those profits should be alienated from the property for ever, because they [Page 35] cannot be determined by death, as it is usuall when they are granted to a single person, (a Citty or Corpo­ration never dying) and so the property, to the gran­ters heyres, would be of no use, the profits alwaies going another way; yet Caius saies it was resolved, that the Citty or Corporation might bring their acti­on; whereupon it was farther questioned, how long they ought to be maintained in receiving such fruits and profits; and it was resolved, for a hundred years, because within that time, the longest livers dye.

2 Of Rent due for Profits formerly received. D. 7. 1. 58.

ONe gave the profits of some Land, to his Daughter during her life, and the property of the same, to the Common-wealth; the Daughter dyed in the month of December, all the fruits and profits of those lands, being received by her tenants in October before, for which they were to pay their rent in March following; It was questio­ned, whether the heyre of the Daughter which dy­ed before that day, had right to receive the whole rent due for that yeare, or whether it should be di­vided betwixt the heyres of the Daughter, and the Common-wealth, to whom the profits belonged after her death: Scaevola answered, That the Common-wealth had no right to receive any thing from the Tenants, But the heyre of the Daughter, as the case is put, ought to receive the whole rent.

3 Of the profits of a Parke or Warren. D. 7. 1. 62.

IF the Use, and Profits of a Parke or Warren be granted to one during life, it is questioned, whe­ther he might take or kill the Deare, and Co­nies, which he found therein; or hath right only to such, as by his industry are brought into the Parke or Warren, or are afterwards bred therein. Trypho­ninus answered, It was a hard thing to distinguish the particulars, which were first, and which come in afterwards, and therefore that his right be not altogether uncertaine, he held it sufficient, if the Grantee when he dyes, leaves to the proprietory, of all sorts, as many as he found.

4 Of Profits, and Property Consolidated. D. 7. 4. 17.

SEmpronius gives the profits of his Land, during life to Seius, simply; and the Property thereof to Titius, upon condition: Seius, to whom the pro­fits were given, (the event of the condition yet de­pending) buyes of the heyre of Sempronius, the Right and Property, which then was in him, whereby his right as usufructuary is consolidated, with the right of Propriety; afterwards the condition being sulfil­led, the property of the Land sell out to be in Titius: It was questioned, whether Seius had still the right as usufructuary to the Profits; in regard Titius had only the property given unto him, without the fruits, and profits, belonging to Seius during his life, Julianus answered that Seius having drown'd his right as usufructuary to the profits, in purchasing the property, by consolidating the severall interests, [Page 37] The rights which before were distinguished, being made one, Titius shall have the sole, and full right in the Land, and Seius by his own act loose the right of all profits, as usufructuary to the same.

5 Of a Way, or Passage granted indefinitely by will. D. 8. 1. 9.

IF a man grant unto another liberty to have a way through his ground, without limitation, It is questioned, whether the heyre of the granter, or the legatary, shall assigne the space of the way. Celsus saies, that the Legatary may make his choyce, through any part of the ground, as he shall please, yet after a civill manner; for that in generall words, some things are tacitely excepted, and therefore he shall not make choyce to goe through his Back-side, nor through his Vineyard, when he may conveni­ently goe some other way with lesse dammage to the ground, through which the way is granted. But this is certaine, that what way at first, he made choyce of, he must continue to use the same; and hath no power afterwards to make another choyce: & with Celsus, Sabinus concurres, who confirmes the opini­on, from the grant of a Water-course, which at first a man may have liberty to derive as he shall think fit, but after-wards he shall not draw it into any o­ther channell.

6 Of a way Tacitly reserved. D. 8. 3. 41.

AEMylius gave in his will to Olympicus the use of a house to dwell in, and left an Orchard, and Banqueting house, which lay behind it undi­sposed; the only passage thereunto being through the house bequeathed, it was questioned, whether Olympicus were bound to allow that passage to the heyre of Aemylius; Scaevola answered, that it was not due by way of service from the house, because no mans land, or house, can owe service to himselfe, But that the heyre ought to have right to passe that way, without giving offence to Olympicus.

7 Of Service retained by parts. D. 8. 3. 34.

IF the same ground be held in common by two men, one of them, by suffering a third person, to passe himselfe, or to drive his cattell through that ground, cannot create a service to the third par­ty. And for the same reason, saith Papinian, if two grounds, which owed service each to other, be­come common to the same owners, because (al­though service cannot be acquired in part) it may be retained by parts; the service due from the one to the other, shall not be extinguished. For although neither of the part-owners, be a single person to whom the service belongs, yet because the service is due, not to the person, but to the grounds, neither can freedome from the service be gotten, nor gained in part by one, nor the service in part be remitted by the other.

8 Of a Service recovered after necessary disuse. D. 8. 3. 34. & 35.

PApinian puts a question, If he who had a right to bring water into his ground, from a spring in the ground of another man, and that spring, having grown dry a long time, begin to run fresh againe, whether by not using it, the right be lost? Paulus resolves it by a precedent which Atilicinus relates. Caesar saies, he wrote to Statilius Taurus, in this manner, Some who were wont to draw water from a ground called Sutrinum, proposed their case unto me, to witt, That having for diverse years used to receive water, out of that ground into their own, the spring growing dry, they could not receive it, as they formerly had done; and that afterwards, the spring began to come againe: and they desired, that in regard they had failed of using their right, not out of any fault, or negligence of theirs, they might be restored unto their former right, whole request seeming to me not unreasonable, I thought fit, they should be relieved; and therefore, it is our pleasure, that what right they formerly had, be againe conti­nued unto them.

9 Of a Service not to Fish in the Sea. D. 8. 4. 13.

ONe who had two Lordships adjoyning, both lying neare the Sea, the one being called Hie­roniánum, the other Botrianum, sould the for­mer with this condition, that he who bought it, and those who should after enjoy it, should not use before, or neare the place, to take a speciall kind of Fishes, as for example Haddocks, in the Sea; It was [Page 40] questioned whether the condition were good; in regard no man, by private authority, can restraine the liberty of fishing in the Sea. Vlpian answers, ad­mitting that the Law allowed a liberty of such fish­ing; yet true and honest dealing requires, that the condition, made upon the sale, should be observed; and therefore, that both the buyer and his successor may be obliged to observe the condition.

10 Of the Vsage of some, not profiting others. D. 8. 6. 16.

THree Neighbours, which had severall grounds, had all right to admit water into their grounds, from a spring arising in a ground ad­joyning: one of them disusing his right, so long time as was sufficient to make him loose it; the o­ther two continued the use of bringing the water into their grounds: It was questioned, whether by the usage of those two, the right of the other were not preserved. Proculus saies, his right is lost: But if the right had been, to bring the water into a ground, which was common to three, although two had so long time disused it, by the usage of the third, the right of all had been maintained.

SECT. III. Of Reputed Right.

Reputed Right is that which one hath in his own and others opinion; as Possession fairely gotten, which is when one by lawfull means gaines something, which without his privity belonged to another man, whereby he hath a kind of right to use, and dispose thereof, as if it were his own, untill the true owner makes his claime or title appeare.

1 Of Possession taken by Errour. D. 41. 2. 34.

TItius having bought a ground of Maevi­us called Long-acre, Maevius gave him possession of a ground called Broad-acre. It was questioned, whether he had gai­ned the possession thereof. Vlpian said, if both in­tended the same groūd, although there was a mistake in the name, the possession was well enough taken: But if there were a mistake both in the name, [Page 42] and in the ground, he had gained no possession: It was farther questioned, whether although Maevius had not gained, yet Titius had not lost his possession in that ground; because a man out of his own mind and thought, may quit, and yeeld his possession, as Celsus, and Marcellus write; which although in some cases it may be admitted, yet Vlpian saies, that when the errour concernes the thing it selfe, no man can get the possession; neither in that case shall a man loose his possession, when he intended to yeeld it conditionally, if such an one should succeed him therein.

2 Of Possession retained of a thing hidden. D. 41. 2. 44.

TItius intending to take a journey, for better safety, did hide a pot of Mony in the ground; and when he returned, having forgotten the place where it was hid, could not find it, It was que­stioned, whether he having forgotten the place, ceased to have the possession of the mony, or if he afterwards remembred the place, whether he pre­sently, began to have again the possession thereof: Papinian answered, that he that hid the mony, re­tained the possession thereof, neither did the failing of his memory prejudice him therein, as long as no man else had seized the same; otherwaies it might be conceived, that a man lost the possession of his ser­vants or bond-men, as often as they removed out of his sight. It was farther questioned, whether the possession were retained, if the mony were hid in another mans ground; and he likewise answers, that the possession continues the same, unlesse the mony were removed; it being all one, whether the owner be possest thereof, in his own, or in another [Page 43] mans field, or whether he be possest thereof above or under ground.

3 Of Fruits belonging to the possessor, when they are severed from the ground. D. 41. 1. 48. & 6. 1. 78.

IT is without question, saies Paulus, That he which, bona fide, buyes any thing, although it truly belong to another man, gaines the profits thereof in the mean time; not only those, which proceed from his own endeavour and industry, but which way soever they arise. Because as to the fruits and profits of the thing, he is almost insteed of the owner: but it was questioned, what if the true ow­ner claime them, before they be carried away. He answers, that they become the possessors own as soon as they are severed from the ground: and there­fore, when Labeo elsewhere delivered, that an un­just possessor of the ground, was not answerable, if he had not carried away the fruits, Paulus repre­hends him, saying, It is the same, if he medled with them in his own name; for saith he, we ought to un­derstand, fruits to be received, not only when they are carried away, or converted, but when they are sirst gathered, as when Olives or Grapes, are taken from the boughes, although they be not converted into Wine or oyle; for by gathering them, one shall presently be reputed to have received the same.

4 Of charges laid out usefully, by one in Possession. D. 6. 1. 38.

ONe who unadvisedly bought a ground be­longing to another man, bestowed monies in building, and planting thereupon; afterwards the ground was recovered by the true owner: It was questioned, what remedy he might have for his ex­penses. Celsus saies, It is a busines which a good Judge ought to determine, taking into considerati­on the persons, and the circumstances thereof: For saies he, Imagine there was nothing done, but what the true owner would have done himselfe, it is rea­son he should repay the expenses, so far as his ground is improved thereby: but suppose he be a poore man, and cannot pay so much, unlesse he should sell himselfe out of house and home: It may be sufficient, to take away, of what he bestowed there, what may be done conveniently, so that the ground be not thereby made worse then it was be­fore; and this is thought just, that if the owner of the house, will give as much as it may be worth to the other, to have the things taken away, he may re­taine those things: for the Law does not favour any despitefull doings; as if he would take away rough­cast bestowed upon the wall, or deface pictures, whereby he should gaine nothing, but to doe to an­other a discurtesy.

5 Of Windowes and doores set up in another mans house. D. 1. 6. 59.

ONe, who was but a Tenant, set up Windowes, and doores in his Land-Lords house; after a year, the Land-Lord took them downe: It was questioned, whether he that set them up might not claime them. Julianus answers, he might, For those [Page 45] things, which are fastned to another mans house, as long as they continue fastned, are held to belong to the house; and as soon as they are severed from it, re­turne to their former condition.

6 Of one that sold another wans house, becoming heyre to the true owner. D. 6. 1. 72.

GAius bought a house of Titius, which in truth did belong to Sempronius, and having paid the price, was put in possession thereof: after-wards Titius proved to be heyre to Sempronius, and went about, to sell the same house to another man. Vlpian said, It was great reason that Gaius should be preferred before any other; for if Titius himselfe af­ter he became heyre to Sempronius, should have sued Gaius, there lay a just exception against his action; and if Gaius should have sued him to make his title good, he could not have avoided it.

7 Of a Monument built by one who was in possession of the estate. D. 5. 3. 50.

ONe who was lawfully possest of a deceased mans estate, built a Monument, which was re­quired in the will: It was questioned, whe­ther he, being removed, by an heyre that had better right, might recover his charges. Papinian answe­red, that in regard the will of a man deceased ought to be observed, if he expended no more, then was conveniently necessary, or was prescribed by the Te­stator, he might either retaine so much in his hands, or recover it by way of suit, for although in strictnes of Law, no man could bring an action against an heyre, for not building a monument, yet by the Prin­ces, or Pontificiall power, he might be compelled thereunto.

TITLE III. Of Debt, and of common Contracts.

Debt is a Right unto which one is obliged for the doing, or performance of some­thing to another man, by reason of some contract, or agreement made with con­sent of both parties; which Contract, is either Common, Speciall, or Reputed. Common contracts, are such as are grounded upon the Law of Nations; whereof some are perfected by consent or agreement only, as 1. Buying and selling, 2ly Letting and taking to hire, 3ly Partnership, 4ly and Procuration. O­thers besides consent, require something to be delivered; as 1. Borrowing and Lending, things consisting in quantity, 2ly Things in specie, 3ly Committing and receiving things in trust. 4ly Enga­ging, or leaving things in pawne.

1 Of a House burnt at the same time when it was bought and sold. D. 18. 1. 57.

PAulus puts a case thus, I bought, saies he, a cer­tain House, when both the Seller and my selfe, were ignorant, that it was burnt, and relates, That Nerva, Sabinus; and Cassius were of opinion, [Page 47] that nothing past in that bargaine, although the floore of the house remained, and that the mony paid, ought to be returned. But Neratius saies, That if a part of the house escaped the fire, it was consi­derable, what proportion the part standing did beare, to that which is burnt; for if a greater part be consumed with fire, he that bought it, is not bound to stand to the bargaine, but may recover what mo­ny he gave for the house. But if only halfe of the house, or lesse then halfe be burnt; then he ought to stand to the bargaine: so that an indifferent person judging, how much the value of the house is demi­nished by the burning of the part thereof, he may have recompence accordingly.

2 Of a Poole bought with ten foot about it. D. 18. 1. 69.

RVtilia Polla, bought a certain Lake, or Poole, together with the ground round about it, to the space of ten foote. It was questioned, If the Lake happened by raine, or fresh waters falling into it, to be enlarged, so that the former ten foot round, were included therein, whether the next ten foot farther belonged unto her? Proculus answe­red, He was of opinion, That the ground which ap­peared about the Lake or Poole, when Rutilia Polla bought it, belonged unto her; and although the Lake increased, her right ought not to be extended to the ground farther round about it.

3 Of a ground sold, to be measured within Thirty daies. D. 18. 1. 40.

TItius sould a ground to Sempronius, which he esteemed at a hundred Acres, with this con­dition, That Sempronius, within Thirty daies, might measure, and signify the just quantity thereof, and if he did not signify the same within that time, he should stand to the measure, at which it was esti­mated by Titius. Sempronius within the time limited, signified as he conceived, something wanting in quantity, and was abated accordingly in the price: and after the thirty daies were expired, he having a purpose to sell it unto another man, measured the same, and then found the quantity thereof to be a great deale lesse, then he had fignified before, It was questioned, whether he might require farther al­lowance from Titius, according to the later estima­tion. Paulus answered, That it was considerable, in what manner, the condition was conceived, and ex­prest, for if it were said, he should measure the ground, and signify the defect, if there were any, within thirty daies: What he might signify after-wards, would doe him no good: but if it were a­greed, that the buyer within thirty daies next, should measure the ground, and signify the defect to the Seller (without limitation of time in that re­spect,) although he signified some defect in the quantity, within thirty daies, he might demand al­lowance many years after, for as much as he should make appeare to be more defective.

4 Of Trees blown down, after the view, before the Sale. D. 18. 6. 9.

SEius having survayed a ground, belonging to Maevius, whereon stood many trees, it happe­ned, that before he bought it, some of those trees, were blown downe by the Wind: It was questioned whether Seius had any right to those trees? Gaius answered, That he had none, because he bought them not, those trees being severed from the ground, at the time of the Sale. But if Maevius knew so much, and did not acquaint Seius, who was ignorant therewith, he ought to give Seius sa­tisfaction for so much as the trees were worth.

5 Of Stone-quarries reserved in a ground sold. D. 18. 1. 77.

ONe selling a ground, excepted from the pur­chaser, the stone quarries in that ground wheresoever: After a long time, some stone­quarries were discovered in that ground. Tubero was of opinion, that they belonged to him, that sould the ground; Labeo said, It was considerable, what was exprest in the exception; If that were not cleare, he was of opinion, That the quarries newly found out, were not reserv'd; because no man is sup­posed to sell, or reserve out of his sale, that which is not in being, and no quarries were held to be in being, but such, as did appear; otherwise, the whole ground might fall under the condition of quarries, for it was possible that there might be quarries un­der the earth, throughout the whold ground: and Javolenus was of Labeo his opinion.

6 Of Lands sould disposed of otherwise by the Prince. D. 21. 2. 11.

LVcius Titius a Roman, bought Lands of a German, beyond the Rhyne, and payed down part of the price; his heyre being afterwards sued, for the remainder of the mony, pleaded, that Warre break­ing out in those parts, those Lands were taken away by the Emperours decree, and given to his ould Souldiers, in recompence of their service: It was questioned, whether that were sufficient matter, to debarre the German from the remainder of the price. Paulus answered, That what happened, after the bargaine was compleated, did not concerne the Seller, and therefore as the case was put, the rest of the price ought to be paid.

7 Of a Price condition'd to be paid, once offered, afterwards neglected. D. 19. 1. 51.

SEmpronius sould a ground to Maevius, upon con­dition, that he should pay the price agreed on for the same, on the first of July following; at that time Sempronius was not ready to receive the mony, afterwards Sempronins being ready to receive it, Maevius was not provided to pay it: It was que­stioned whether Sempronius might not recede from the bargaine, Maevius having failed to observe the condition. Labeo was of opinion, that he might, be­cause in the condition, it was intended, that when­soever Maevius should faile in performance, Sempro­nius should be free, which was held good, unlesse Sempronius, had practised some fraud in the busines.

8 Of losse in Wines happening after sale. D. 18. 6. 4.

A Merchant, sould certain hogsheads of Wine to a Vintner, and appointed him a time to tast them, at the time appointed, the Merchant being from home, the Vintner could not come at the Wines to tast them; and when he came to re­ceive them, the Wines were perished in goodnesse: It was questioned, first whether the Vintner might not refuse them, Secondly, if he were bound to re­ceive them, whether the Merchant ought not, to give allowance, for so much as they prooved of lesse value, then others of the same growth. Vlpian an­swered, that if the Vintner bought them conditio­nally, if at such a time, upon tast, he liked them, he might refuse them; but if that be not so cleare, the bargaine may hold, but the hazard of the Wines fail­ing in goodnesse, shall belong to the Merchant, be­cause he was in fault, that they were not tasted.

9 Of notice to be given concerning Wines bought. D. 18. 6. 15.

TItius sould wine in Hogsheads, to Sempronius, which Wines, before they were taken away, grew fowle: It was questioned, who should beare the losse? Gaius said, That if Titius affirmed, they would continue good, he ought to give satis­faction to Sempronius; if he did not affirme, or un­dertake so much, whether Sempronius tasted them, or did not tast them sufficiently, he can blame no man so much as himselfe. But it is true, that if Ti­tius understood that they would not continue neat, untill the time, when they were to be removed, and [Page 52] did not give notice thereof to Sempronius, he is lya­ble to him; for not giving him notice.

10 Of a false estimation, made by one hired to build a house. D. 19. 2. 60. § 4.

TItius desired an Artificer, to consider, and cer­tify him, for what charges, a building of such a fashion, and proportion might be erected? He returned his judgement, That it might be done for two hundred pounds, whereupon Titius agreed with him to doe it, and furnisht him before hand, with a hundred pounds: Afterwards, when fifty pounds had been spent in the worke, he found that it could not be finisht under the charges of three hundred pounds. It was questioned, whether he were bound to suffer the Artificer to proceed there­in: Labeo answered, If he proceeded after he was forbidden, Titius might recover the fifty pounds, of the hundred, which was not laid out at the time, when he was forbidden.

11 Of a Workman hired to erect a Work by great, yet received Wages by the day. D. 19. 2. 51. 11.

IAvolenus puts this Case: I set out a worke to be done by great, or for the whole, yet so that I was to pay Wages every day; The worke when it was finisht was faulty, or unsufficiently done: It is questioned, Whether I might bring my action a­gainst him. Javolenus answered. If you did so set out your worke to be done, that the undertaker should make good to you the sufficiency thereof, although, it were agreed that for every daies work [Page 53] he should receive certain wages, yet if the worke be faulty or insufficient, he that undertook it, is bound to make it good. For it makes no difference whe­ther the agreement were for one intire summe for the whole, or something to be paid for every daies work; if the finishing of the whole work belonged to the undertaker, and therefore he is liable to an action, if the work be defective or insufficient, un­lesse the agreement, for paying wages by the day, were, that the owner might use his discretion in the raising thereof. For in that case the undertaker is not bound for the sufficiency thereof.

12 Of Corne agreed to be received in stead of Rent. D. 19. 2. 19. § 3.

ONe who had let out his ground for a certain Rent, afterwards agreed with the Tenant, that in lieu of so much money he should pay year­ly a quantity of Corn; The Land-lord, as occasion served, refused to receive the Corn, and would not abate any thing out of his Rent in money: It was questioned, what remedy the Tenant might have. Vlpian said, It was in the Land-lords power, accord­ing to the Lease, to sue for his Rent in money; but that the Tenant had right to be releeved, for so much as he was prejudiced in paying money, if it were more easie for him to have paid it in Corn.

13 Of the Tenants profits hindered by the Land-Lord. D. 19. 2. 30.

ONe took a Lease of a house, at twenty pounds a yeare rent, and did let out Lodgings, to particular persons, to the value of thirty pounds yearly. The Land-Lord before the time was expired, pretending the building was in decay, pul­led down the house: It was questioned, what satis­faction was due to the Tenant? Alfenus answered, If the house were so ruinous, that there was necessity to take it downe, the Tenant ought to receive, du­ring his time, as much as he gained from his Lodg­ings above the rent: but if there were no necessity, but the Land-Lord thought fit to have it built o­therwise, according to his mind, he ought to give farther consideration, for so much as it might any way concerne the Tenant, that the Lodgers had not been removed.

14 Of the Tenants profits hindred, otherwaies then by the Land-Lord. D. 19. 2. 33.

IF a ground which I hired from you, for a cer­tain time at an yearly rent, be confiscated, or sei­sed to be imployed for some publique use; Africanus saies, you are liable to me, in regard I cannot make use thereof, although it be not in your power to make it good. For if you shall sell a ground unto me, and before I receive the free possession thereof, it be seized for the publique service, you are answe­rable for the sale; which is to be understood, so farre as to returne the price or mony which I gave for it, not for what benefit I might have made thereof, in [Page 55] case I had had the free or cleare possession thereof: & in like manner, I am of opinion, that concerning ground which is let out for rent, it ought to be ob­served, that the rent which I have already paied, should be restored, for so much time as I could not enjoy the same, and that you are liable for no more: For if your Tenant be hindered by you, or any o­ther, whom you could have restrained, you shall make good to him what it might concerne him, if he had enjoyed it; that is the profit which he might have made thereby. But if he be hindered by one whose greatnes, or power, you could not prevent, you are bound to no more then to restore, or remitt his rent.

15 Of unnecessary Charges laid out by a Partner. D. 3. 5. 27.

TItius and Seius two Brothers, one being of full age, the other a Minor, had a Country Farme, held in Common between them: the elder bro­ther built thereon a larger House, with faire Galle­ries, and when the younger came to age, and the ground was to be divided betwixt them, he deman­ded allowance for the charges he had expended, in building thereupon. It was questioned, whether the younger brother were bound to allow any. Modesti­nus answered, That what charges were laid out un­necessarily, and for his own pleasure, he ought not to be allowed.

16 Of Losses befalling to one, of two partners. D. 17. 2. 52. § 4.

TWo Partners driving a joint Trade in certaine commodities, One of them took a journey to buy things conducing to their Trade, and fell amongst theeves, which rob'd him of his money and cloaths, and wounded his Servant: It was que­stioned, how farre the other Partner ought to con­tribute to the losse? Julianus said, The other Part­ner ought to be joyned, and bear his part in the losse, not onely in the money, but also of the goods, and other things, which his Partner had not taken with him, but for the advancing of their common Trade, and also of the charges which were sustain­ed, in providing Physicians to cure the Servant wounded, which is to be observed: Sayes he, if Goods suffer shipwrack which could not otherwise be conveyed but by Sea, for as the gain, so the losse must be common, if it happened not by the fault of one of the Partners.

17 Of a reputed Heir joyned with a surviving Partner, D. 17. 2. 62.

TItius and Seius being Partners, and having a joint stock, Titius died, and Maevius being re­puted his heir, together with Seius, Sold the stock, and the proceed thereof was divided between them. Afterwards it appeared, that Sempronius was the true heir to Titius: It was questioned, whether Sempronius could recover any thing from Maevius, [Page 57] the surviving partner. Neratius and Aristo were of opinion, That he could not, because Maevius recei­ved no more, then what his own part was sold for; neither makes it any difference, whether either of them sold his severall part, or both joyned in the sale of the whole: And whatsoever Sempronius shall recover from Maevius the reputed heir; he shall en­joy it wholly to himself, without rendring any part to Seius.

18 Of Equality to be kept in division amongst Partners. D. 17. 2. 63.

LƲcius, Gaius, and Attius, three Partners, deal­ing in the same Trade jointly, and some diffe­rence arising amongst them: First Attius sued Lucius, and had his entire third part adjudged unto him. Afterwards Gaius commenced the like sute a­gainst Lucius for a partition, but there remained not so much as to make up his third part, equall to that which Attius had received: It was questioned whe­ther Gaius might sue Attius, to returne something of what he had received, to make their parts equall. It was resolved by Vlpian, that he might: Because it was unjust, that out of the same Partnership one should gain or keep more then another, which opi­nion is grounded on Equity.

19 Of one Requesting another, to Buy something, whereof he might have a share, buying the whole himselfe. D. 17. 2. 52.

MAevius and Gaius had two grounds, the one adjoyning to the other, and Lucius Titius a third ground, abutting upon those two; Maevius understanding that the third ground was to be sould, requested Gaius to buy the same, to the end, that the part abutting upon his ground, might be annexed thereunto (whereunto it seems Gaius a­greed) Afterwards Maevius, without acquainting Gaius therewith, bought the whole ground for his own use: It was questioned, whether Gaius might not sue him to communicate to him a part thereof. Julianus answered, It was a doubtfull businesse. For if it were desired only, that Gaius should buy the ground of Lucius Titius, and suffer Maevius to have part thereof, Gaius had no ground of action against Maevius for purchasing the whole. But if it were a­greed, that it should be done, as a common busines, Gaius might have his remedy, that Maevius reserving one part to himselfe, should convey the other unto him.

20 Of undertaking to save one Harmelesse during another mans life. D. 17. 1. 59. § 5.

LVcius Titius by his letter, gave order to Seius to lend a hundred pounds, to Blaesus Severus his kinsman, and bound himselfe, to save him in­damnified, both for the mony, and interest there of, as long as Blaesus Severus should live: Seius having [Page 59] lent the mony to Blaesus Severus, often times deman­ded the same of Lucius Titius, and at length Blaesus Severus died. It was questioned, whether Lucius Ti­tius stood bound after his death. Paulus answered, That the obligation, which arose from his order, became perpetuall, being not satisfied upon demand; although in the following words of the order, it were exprest that he would save him harmlesse as long as Blaesus Severus lived.

21 Of Vndertaking as much in effect as was desired. D. 17. 1. 62.

LVcius Titius wrote to Gaius Seius, desiring that he would be bound with Publius Maevius, to Sempronius, for an hundred pounds, and en­gaged himselfe, that if Publius Maevius failed, he would make it good: Gaius Seius was not bound with Publius Maevius, but in stead thereof, gave or­der to Sempronius to lend so much, and afterwards being sued paid the same: It was questioned, whe­ther he might have remedy against Lucius Titius, upon his Letter, not having observed his request therein? Scaevola answered, That he might, having done the same in effect.

22 Of Power not to be extended to deceit. D. 17. 1. 60. § 4.

LVcius Titius wrote unto Seius, his brothers sonne, That beyond the interest he had in him by nature, he gave him full power by this his Letter, as master of his estate, to order, and dispose thereof, as he should think fit, promising to allow and ratify the same. It was questioned, whether if he should dispose of any thing fraudulently, or to [Page 60] the prejudice of the estate, the power were suffici­ent? Scaevola answered, That the power was very large, but did not extend to any thing which might be done deceitfully.

23 Of ones Acting by a Letter falsified. D. 50. 1. 36.

TItius residing as a Student at Rome, the Magi­strates of Ostia, where his friends dwelt, directed a Letter unto him, with an Order of the Town in­closed, to be presented to the Emperour; for which service he was to receive a reward. But the Messen­ger who undertook the delivery of the Letter, gave it to Lucius, who was there likewise, upon some oc­casion of businesse of his owne, he rasing out the name of Titius inserted his owne; and according to the directions of the Magistrates of Ostia, deliver­ed their Order to the Emperour: It was questioned, whether of them ought to receive the reward? and what he deserved, who misdelivered the Letter, and he who rasing out the right inserted a false name? Modestinus not weighing the latter, answers to the former, That in truth Titius could not de­mand the reward, but he who delivered the Order, although he had falsified the name.

24 Of Money delivered as Guift, received as Loan. D. 12. 1. 18.

ONe delivered a summe of money to another with an intent to give it freely, the other re­ceived it not otherwise then by way of Loan: It was questioned what the businesse amounted [Page 61] unto? Julianus said, it was no free guift, and Pau­lus said, it was no Loan, neither was the property of the money altered, because it was received in a way different from that, wherein the moneys were delivered, and therefore if the moneys were spent, by Law there lay an action at any time to recover the same, but he that was sued, had likewise the be­nefit of a just exception, to wit, that the moneys were spent, according to the minde and meaning of him, who delivered the same.

25 Of Money given to be Lent to him who gave it. D. 12. 1. 20.

ONe gave money to another to the intent, that he who received it, should presently lend the same again to him who gave it, which was done accordingly: It was questioned whether this money were given or lent? Julianus said, That in this case there could be no free guift, nor no Loan; no guift, because the money was not given with an intent that it should remain with him that received it, and that there could be no Loan because it was done in pursuit of an agreement to free him, who first received it, not to oblige him to whom it was returned. But these things, Sayes he, are so, if they be understood according to the nicety, and subtilty of the words used; but by a fairer and a more reaso­noble construction, the guift and the loan were both of force.

26 Of Mony ordered to be lent by one, received as lent from another. D. 12. 1. 32.

SEius requested Gaius and Sempronius to lend him a summe of Mony; Sempronius gave order, to a debtor of his, who owed him so much, to deli­ver it. Seius received it, and undertook the pai­ment thereof, as if that debtor had been engaged to Gaius, and had lent the mony in his name. It was questioned, whether Seius were bound to Sempro­nius: and it is doubted, because Seius did not un­dertake any thing, as to him. But it was resolved by Celsus, that he rather stood bound to Sempronius, not that he lent the mony, for that could not be, unles both parties had so agreed, but because it stood with Equity, and honesty, that the mony which came from Sempronius, should be repaied to him againe.

27 Of Plate delivered to be sould, instead of monies desired to be borrowed. D. 12. 1. 11.

TItius desired to borrow Ten pounds of Maevius, who having not so much monies to spare, deli­vered to him a Silver Plate worth so much, and gave him power to sell it, and to make use of the Mony. It is not doubted, but that if Titius had sould the same, he must have become creditor for the Mo­ny: but if the Plate were lost, before Titius could sell it, without any fault of his, It was questioned, whe­ther Maevius or Titius should bear the losse. Vlpian saies Nerva distinguisht in the case, and was of opi­nion, That if Maevius formerly had kept that plate [Page 63] of Silver, with purpose to sell it, as his own occasi­ons should require, if it were lost, the danger belon­ged to him, as it must have done, if he had delive­red it to another man, to sell for him. But if he formerly had, and kept it, not for any such purpose, but was contented, that it should then be sould, on­ly that Titius might make use of the mony, the losse ought to fall upon Titius; especially if it were lent, without condition of interest, or exspectation of gaine thereby.

28 Of a Horse lent, failing in his Journey. D. 13. 6. 23.

ONe who had lent his Horse to another, to take a journey to a certain place, the Horse failing, would have recovered satisfaction of him, to whom it was lent. Pomponius told him, That if the Horse were tyred, or failed without his fault, to whom it was lent, he was not liable for any thing, because he that lent it, for such a journey, was in fault, the Horse being not able to performe the same.

29 Of a Thing Lent to two, and lost. D. 13. 6. 5. § 15.

ONe lent a Waggon, at the same time to two se­verall persons, which was lost: It was questio­ned, whether each of them were liable for the whole, or both of them, for their severall parts. Vl­pian answered, That although the Waggon were not lent by parts, yet in effect, the use thereof, was in­tended to be made by parts, because one of them to whom it was lent, could not make use of the whole alone, but in truth it being gratis or freely done, [Page 64] each of them was bound, not onely to use no fraud, nor fault in the employment thereof, but also to use all diligence in keeping the same, and therefore each of them alone was bound to make good the whole; but if one upon sute had made satisfaction for the whole, the other was freed.

30 Of a Thing Lent and Lost, received by the Owner. D. 13. 6. 17. §. 21.

ONe lost a horse which he had borrowed, and paid the price thereof, the owner afterwards received his horse again: It was questioned, what was due to him who had paid for it? Labéo said, He might recover by suit either the thing which he had paid for, or the price which he gave for it. It was further questioned, If he who lent something to anothet stole away the same, and by suit recovered the value, whether the theft being dis­covered, he might not be sued as a thief? Africanus answered, That he conld be sued as a theef, for ta­king his own, but he might be compelled to returne the horse to him who had paid for it.

31 Of Interest of money deposited, undertaken to be paid. D. 16. 3. 28.

QVintius Cecilius wrote to Paccius in this man­ner: These are to signifie to you, that the fif­ty pounds, which you desired should be left with me, are put to mine account, which I shall be carefull to see employed, that you may receive inte­rest [Page 65] for the same: It was questioned, whether if no interest were received, it might be recovered upon this Letter? Scaevola answered, That the interest ought to be paid, although none were received by Cecilius, nor the moneys were any waies employed to his use.

32 Of fair and conscionable Dealing, touching things deposited, in severall respects. D. 16. 3. 31.

AS in other Contracts, so especially in things deposited, or left in trust (saith Tryphoninus) conscionable or fair dealing is required, which conscionable or fair dealing ought to be regulated by the greatest Equity that may be: But he makes a question whether that Equity ought to be estimated, meerly according to the Law of Nations, as betwixt man and man? Or whether respect also to the civill Law, made for the good of the Common-wealth, ought not to be had? And by way of instance sup­poses, That one who was guilty of some Capitall crime, left in trust with his friends a hundred pounds, and was afterwards convicted, and his goods adjudged to be confiscated; In which case, How shall the friend, trusted with the money, acquit himselfe? He sayes, if the Law of Nature and Nati­ons only be looked upon, the money is to be resto­red to him, who left it in trust: But if the civill law or the law of the Countrey be considered, it shall ra­ther be brought into the publique Treasury, because it is just, that he who hath publickly offended, for example, and deterring of others, should be reduced to penury, and deprived of his goods. He makes another Enquiry: Whether this faire dealing and Equity ought to be considered in respect [Page 66] of those persons only, betwixt whom the contract for restoring what was left, was made, or whether regard should be likewise had to other persons, whom the businesse doth concern; As for example, A Theef or Robber took away a pack of goods from an honest man, called Titius, and left the same in trust with Seius, who knew nothing of the theft or robbery; whether ought Seius afterwards under­standing the truth, to restore the goods to the theef or robber, or to Titius? He sayes, If regard be had to the persons of him who left, and the other who received the goods in trust, It stands with fair dealing and equity, that he who deposited the goods should receive the same, but that, If Equity that be regarded, which results out of the whole businesse, and relates to all the persons that are concerned therein: they ought to be restored to Titius, from whom they were wrongfully taken away; and there­upon he concludes, That that is best justice which so renders to every man his own, that it be not di­verted from him, who hath a better title thereunto; and addes, That if Titius come not to demaund his goods, the evill getting thereof shall not hinder, but that he, who left them in trust, ought again to receive the same.

33 Of a House engag'd, burnt and rebuilt. D. 20. 1. 29. § 2.

A House being engaged for debt, was afterwards burnt down, and Ludicius Titius buying the ground whereon it stood, built another house thereon. It was questioned, Whether the Creditor had any right to that house? Paulus answered, That the right was not extinct, and what was built on the ground followed the condition thereof; but he [Page 67] that built the house, being ignorant of the engage­ment, was not bound to render it to the Creditor, unlesse he were satisfied for the charges in building; in regard by his means the Creditors right had been improved.

34 Of a Shop engaged for moneys borrowed. D. 20. 1. 54.

A Mercer, being indebted for a considerable sum of money, engaged his Shop by way of security for the same: It was questioned first, whether the Wares in the Shop were engaged, Secondly, whether the present wares or any other, that should be brought into their room, might be sued for as liable for the debt? Scaevola answered, First, That the wares in the Shop were included, for otherwise the Security had been to no purpose; Secondly, That although the wares which were in the Shop were at severall times all sold, and others brought in their room, yet all, that at the death of the Mercer were found in his Shop, were liable, as engaged for the debt.

35 Of Cattell pawn'd, and disposed of by the Heir. D. 20. 1. 26. § 2.

LVcius Titius borrowing money engaged, by way of Security for the same, certain grounds, and the stock of Cattell going thereon; He dying, his heirs divided the grounds betwixt them, and the stock of Cattell being worn out, put other Cat­tell in those grounds, the money being unpaid, the Creditor entred on the grounds, and distrain'd the Cattell: It was questioned, whether he had any [Page 68] right to the Cattell, which were afterwards found on the ground? Modestinus answered, That if they were not the same Cattell, which were first enga­ged, nor proceeding from them, the Creditor had no right unto them.

36 Of Cattell engaged, before they were put into the Land-lords ground. D. 20. 4. 11. § 2.

THe Tenant agreed with the Land-lord, that whatsoever Cattell he should put into his ground, they should be engaged for the rent, and having a flock of sheepe, he borrowed a summe of mony, and obliged them for paiment thereof, and afterwards he put them into his ground: It was questioned, whether of the two, had better right for satisfaction from the sheep? Gaius answered, That the later, to whom they were engaged simply, had better right then the former, to whom they were to become engaged, when they were to be put into his ground; which happened after the other engagement.

37 Of Goods profer'd but sold before engagement. D. 20. 3. 4.

TItius having a desire, to borrow mony of Maevi­us, promised security, and designed, or shewëd some goods, which he would engage; but before he received the mony, he alienated some of those goods: It was questioned, whether the goods aliena­ted, were liable to Maevius for his debt? Paulus an­swered, after the security offered, or promised, it was in the power of Titius, not to borrow, and of Maevius, not to lend the mony, and that the contract, [Page 69] for engaging the goods, was to be understood of the goods at the time, when mony was lent, and there­fore, it was to be considered, only, what goods were his at that time.

38 Of things engaged to one, for Rent due at a day, and before that day, engaged to another, for ready Mony. D. 20. 4. 9.

ONe who hired a bathing roome, for a terme, to commence from the Kalends of May fol­lowing, agreed, that his Bond-man Eros, should be engaged to the owner as security, untill his rent were paid. The same man before the Ka­lends of May, borrowing Mony of another man, gave his Bondman Eros pledge for the same: It was que­stioned whether of the two had better right to the Bondman? Africanus answered, That he who rented out the Bathing roome, had the better right, for al­though nothing were due to him, when the Bond-man was engaged to the other Creditor, who lent the mony, yet because, before that time, he had a right to the Bondman, which could not be taken from him, without his consent, his interest was better then the others.

39 Of a Ground sold upon condition, and then en­gaged, recovered, for not performance of the condition. D. 20. 1. 31.

ONe, who owed an yearly tribute to the Com­monwealth, sold a ground, upon condition, that if the Tribute were unpaid, he the former owner might resume the same: Afterwards, he that bought it, engaged the groūd unto another for a sum [Page 70] money, and neither the Buyer nor the Creditor, to whom it was engaged, paying the Tribute: It was decreed, that the first owner might resume the ground: It was thereupon questioned, whether any right remained to the Creditor to whom it was en­gaged? Scaevola answered, That the first owner just­ly resuming his right, the engagement vanisht, and became of no effect.

40 Of a Ground engaged to three persons, whereof the last redeemed it from the first, D. 20. 4. 12. §. 8.

LVcius first borrowing money of Titius, agreed with him, that a certaine ground should stand engaged for payment thereof. He afterwards borrowed money of Maevius, and agreed with him, that when that ground was disengaged from Titius, it should be liable to him for his money. In the third place, Sempronius lent money to Lucius, to pay Titius, and it was agreed, that the same ground should be engaged to him in the room, or place of Titius; It was questioned, Whether Maevius who lent money in the second place, or Sempronius who came in the third, had better interest to the ground? Martianus was of opnion, that Sempronius, with whom it was agreed, that he should be in the room or place of Titius had the better title.

SECT. II. Of speciall Contracts.

Speciall Contracts are such, wherein according to the Law and Custome of the Countrey, something is added, besides the nature of a common contract, by speciall Govenant or agreement; or when some­thing is promised in solemn and formall words or writing; or undertaken by a surety on anothers behalf.

1 Of a Sale covenanted to be be void, if the price be not paid at a day. D. 18. 3. 8.

POsthumia sold certain grounds to Gaius Sei­us, and took five pounds of him by way of earnest, and appointed a certain time, for payment of the rest of the money; and co­venanted with him, That if he should fail of pay­ment at the time appointed, he should loose his earnest, and the ground should be unsold: Gaius Seius at the time appointed brought his money seald up in baggs, and before witnesses, offered himselfe ready to pay the same. But Posthumia did not appear at that time: the next day, he was required by an Officer of the publique Treasury, not to pay any mo­ny [Page 72] to Posthumia, untill he had paid his publique debt? It was questioned, whether Posthumia might not resume her right in the grounds, according to the Covenant, the mony being unpaid? Scaevola an­swered, that as the case was proposed, Gaius Seius had done nothing against the covenant or agree­ment.

2 Of a Sale covenanted to be void, if within a set time more were offered. D. 18. 2. 17.

ONe who had two Bondmen, sold them, to two severall persons, for ten pounds a peece, in case no man should offer, or give more; within ten daies, within which time, one offered for both these Bondmen thirty pounds: It was que­stioned, whether, and how far the former sale were voyd? Julianus answered, That it was considerable, whether he would give twenty pounds for one of them, and ten pounds for the other, or whether he would give fifteen pounds for each of them; for if the former were intended, then the sale was voyd, touching him, for whom twenty pound was offe­red; if the latter, the sale was voyd for both, and the second Chapman, was to be admitted to the bar­gaine; but if it were uncertaine, for which, or in what respect, the greater summe was offered, there was no sufficient ground, why the former bargaine should not hold good.

3 Of part of a Ground, warranted, recovered. D. 21. 2. 45.

ONe selling a ground, shewed the bounds thereof, and warranted it to be an hundred acres, of which if any were evicted, or reco­vered, it was to be at his perill. After the sale, part of the ground shewed by him, was recovered by another man, yet that which remained, amounted to an hundred acres: It was questioned, whether the seller, were liable at his perill for that which was recovered? Africanus answered, That he was liable, in regard that Land which was recovered, might be better then any part of that which remained.

4 Of two Horses sold, one recovered from the Buyer. D. 21. 2. 49.

ONe bought two Horses for five pounds a peice; one of them being recovered from him, he was offered ten pounds for the other: It was questioned, Whether according to the custome, he were bound to pay the mony, and interest for that which was recovered? Africanus answered, that he was lyable, although he had sold them both toge­ther for ten pounds.

5 Of a Ground sold, whereof a third person reco­vered part, and part, was lost by the Sea. D. 2 [...]. 2. 64.

ONe sould and gave possession of a ground, con­taining a thousand acres, whereof, the sea af­terwards breaking in, two hundred were lost, and Titius a third person, who had right to a fourth part, sued for two hundred and fifty acres, but reco­vered only two hundred acres: It was questioned, what he, who had covenanted to make double satis­faction to the buyer, for what should be recovered from him, was liable unto? Papinian answered, That he was liable only for a fifth part, that is, two hun­dred acres, not for the fourth, which was two hun­dred and fifty, although Titius had right to so much; for that which was lost by the seller he was not boūd to make good; but if the whole ground, after the sea had broken in, had been recovered by Titius, in strictnesse of Law, nothing of what was covenanted for, should have been abated unto the seller, no more then if after a horse is sold, he grow lean before he be recovered by another man. As on the other side, If after the sale, a thing be improved in value, and then recovered, the obligation for satisfaction in case of eviction, is still the same, as it was at the time of the sale, so that, if by receding or falling back of the sea, two acres of land accrue unto the ground, and of a thousand it become twelve hundred acres, and a fifth part of the whole be recovered, satisfaction shall be given, only for the two hundred acres, which were the fifth part of the thousand, at the time of the sale; because the recovery of part of the two hun­dred, which accrued afterwards by the falling away [Page 75] of the sea, belongs not to him who made the sale. It is further questioned, If after the sale of Lands or Grounds containing a thousand acres, two hundred acres be lost on the one side, by breaking in of the sea, and on the other side, two hundred be gained, by falling back of the sea, and then a fifth part indi­stinctly be recovered, for how much the seller shall be liable to make satisfaction: Papinian answered, he shall be liable neither for the fifth, nor the fourth part, of a thousand acres, but as if▪ of eight hundred, a hundred and sixty only had been recovered, for the other fourty acres which were lost in the whole, by the breaking in of the sea, are recompenced by what was gained on the other side.

6 Of Land Let, Covenanted to be till'd. D. 19. 2. 53.

ONe let Ground to another for seven years, for three pounds yearly rent, and covenanted, that if the Ground were not tilled and manured, the Land-lord might let the same to another man; and if it happened to be for a lesser summe, the former Tenant should make good the rest. The Ground after a year being not tilled, the Land-lord let the same to a third person at four pounds yearly, for the remainder of the term: It was questioned, whether the Land-lord ought not to allow the former Te­nant the surplusage, above the three pounds yearly? Julianus said, In such Covenants it is to be conside­red what was agreed betwixt the parties. But in the businesses in question, in regard nothing was provi­ded, in case the ground were let for more, it seems the covenant was inserted in favour of the Land-lord only.

7 Of Covenants unperform'd on b [...]th sides. D. 18. 5. 10.

TItus Cornelius, bought certain grounds, of Junius Blaesus; and having cause to suspect, that Nume­ria, and Sempronia might trouble him, by suing for the same, covenanted with Junius Blaesus, that part of the mony, should be detained in his own hands, untill a sufficient surety were given, to save him harmles; afterwards Junius Blaesus, added another covenant, that if by a certain day, the whole price were not paid, the grounds should remain to him as unsold. In the mean time Numeria commencing a suit concerning those grounds, Blaesus obtained a sentence against her, and then compounded with Sempronia: so that Titus Cornelius had no cause left, to doubt his title: It was questioned, no surety be­ing given by Blaesus, and the mony, at the time ap­pointed being unpaid by Cornelius, whether the sale were void? Scaevola answered, That if it were co­venanted, that a surety should be given before the mony were paid, and that was not done, there be­ing no fault in Titus Cornelius, the later covenant ought not to be insisted on, to make the sale voyd.

8 Of a Covenant to doe no dammage to another mans house. D. 39. 2. 25. & 26.

TItius, whose house owed no service to the house of Gaius his neighbour, gave him bond, that he would doe him no wrong or dammage, in building, [Page 77] or contriving any thing in his house: It was questio­ned, if Titius built his house higher, whereby the lights of Gaius his house were darkned, or made a well, whereby a spring of water, was drawn from the well of Gaius, whether he might sue Titius upon the bond? Proculus answered, That Gaius had no right to sue Titius, upon that occasion; for he is not held to suffer dammage, who is hindered from that benefite, which he formerly enjoyed; and Trebatius gives this reason, because it cannot be imputed as a wrong, when one does no more, then it is lawfull for him to doe.

9 Of a Covenant to pay mony, if such or such a thing be not done. D. 34. 5. 13. § 2.

LVcius bequeathed to Titius a house, and a ground, and made Maevius his heyre; Titius co­venanted with Maevius, that if Maevius did not convey unto him, such a certain house, or such a certain ground, that Maevius should pay unto him, a hundred pounds: At the time appointed, Maevius conveyed to Lucius the house agreed upon, but not the ground: It was questioned, whether he were liable to pay the hundred pounds, Julianus said, That he was liable to pay the hundred pounds, and that it was all one, whether the one or the other were unperformed. Indeed it were more evident, when divers things are proponnded, all which we would have done, if we covenant for a penal­ty, in case any of those things shall be o­mitted; and if diverse things be pro­propounded, [Page 78] whereof the performance of one is sufficient, to covenant, if none of those things shall be done, you shall pay a hundred pounds.

10 Of Money due upon default of condition, not to be required untill the time of performance. D. 45. 1. 8.

LVcius Titius covenanted with Sempronius, that if he did not give him Sticchus his bondman, on the first of the Kalends of March, he should pay him ten pounds; Stichus the bondman died in the mean time, long before the Kalends of March: It was questioned, whether Sempronius might not then presently sue for the ten pounds; in regard it could not be possible that Lucius Titius should give him Stichus at the time appointed: Sabinus and Proculus answered, That he had no right to sue before the Kalends of March: which Paulus likewise approves; because the the whole obligation hath both a condi­tion, and a certaine day for performance: and al­though, as to the condition, it was in force, and the money became due, yet the day of payment of the money was not then come.

11 Of a Covenaut to binde one to Marriage, under a forfeiture. D. 45. 1. 134.

TItia having a son, who was a Batchelor, married with Gaius Seius, who had a young daughter unmarried: At the time of their Marriage, It was agreed between them, that the sonne and the daughter should contract espousalls together, and a Covenant was drawn up in writing, that on that side [Page 79] or part, whence any impediment should happen, to disappoint the compleating of the marriage, an hun­dred pounds should be forfeited to the other par­ty: Afterwards Gaius Seius dying, his daughter re­fused to be married, to the sonne of Titia: It was questioned whether the hundred pounds, covenan­ted to be forfeited, might be recovered from the heirs of Gaius Seius: Scaevola answered▪ That if Titia brought her action upon that Covenant, the heirs of Gaius Seius might take exception unto the unlaw­fulnesse thereof: Because it was alwaies held a di­shonest course, to entangle pesons, by danger of for­feitures, to contract either Espousals or Marri­ages.

12 Of a Surety, not being liable, when and where the principall debtor is not. D. 46. 1. 49.

SEmpronius borrowed money of Maevius, to be re­paid by him at Capua, and Cornelius as a sure­ty, bound himself for the performance thereof; Maevius understanding that Sempronius was arrived at Capua, & in that respect liable to his action there, demanded payment of the Money from Cornelius the surety, then remaining at Rome. Papinian being con­sulted thereupon, answered, That although the acti­on did lie at that time against Sempronius, then being at Capua, yet Cornelius the surety was no more liable to the action, then if he himself being at Cappua, had undertaken for the payment, when Sempronius the principall debtour was not yet arrived there; for in that case it was certain, the principall could not have been sued, there being a Tacit allowance of time for payment, in a remote place; and it were hard the [Page 80] surety should be sued, when the party principall was not liable to an action; and therefore he concludes, that the tacit allowance of time for paiment, is to be granted to both; and that they who are of ano­ther opinion, would contrary to the rule of Law, make the condition of the surety worse, then of the principall Debtor.

13 Of Disengaging the Security, before the debt be paid. D. 17. 1. 38.

LVcius Titius, at the request of Maevius his natu­rall sonne, gave way, that he should engage for a debt, a house, which was common to them both, without any intention of putting away his right therein: Afterwards Maevius dying, and lea­ving a Daughter under age, her Tutors began to question Lucius Titius, for some matters before the Judge; He desired that his interest in the house, might be freed, from Maevius their fathers engage­ment: It was questioned, whether the Judge might take order to free it? Marcellus was of opinion, that the Judge might proceed therein, taking into his consideration, the condition of the Debtors, the a­greement had betwixt them, and the length of the time, wherein the house had been engaged; which businesse, he saies, is not unlike that of a surety, which often falls out, when he sues to be discharged, before the debt be paid, for he ought not alwaies to stand expecting, when the principall Debtor will take order for payment, or the Creditor sue, and re­cover his mony, if the principall debtor be a long time negligent, and the surety himselfe prove lesse able to satisfy; which if he had in due time been en­forced unto, he might have had some remedy a­gainst [Page 81] him, for whom he was intreated to become engaged.

SECT. III.
Of Reputed Contracts.

Reputed contracts are, when, without mutuall or expres consent on both sides, one becomes ob­liged to another, by businesse voluntarily a­cted, or done, or being imploy'd in some pri­vate charge or publique office.

1 Of a Grandmother maintaining her Niece in Minority. D. 3. 5. 34.

NEsennius Apollinarius puts a case to Paulus, as followeth, The Grandmother took up­on her the managing of the Nieces estate; both being dead, the heyres of the Grand-mother, being sued, by the heyres of the Niece, for goods which belonged unto her, demanded allow­ance, for the Nieces diet, for which the Grandmo­ther, some years had been at charge. It was answe­red by the heires of the Niece, that the Grand-mo­ther out of her naturall affection, gave her Niece her dyet freely, and therefore no satisfaction was to be required for the same. It was replyed on the o­ther [Page 82] side, That the Grand-mother, might have been supposed, to have given the dyet freely, if the char­ges thereof, had appeared, to have been taken out of her own proper estate: other waies it was more likely, that it was done, out of that, which belon­ged to the Niece. Some were of opinion, that the charge should have been cast upon both estates. Paulus returned answer, That the determination of the difference, depended upon the matter of fact; the presumption of the Grand-mothers liberality, doth not alwaies hold; How if she openly professed, that she expected satisfaction from the Tutors, or from the child coming to years? And therefore he was of opinion, that the heires of the Grand-mo­ther, ought to be heard, if they can shew, the char­ges of the Nieces dyet, were put unto her account.

2 Of Monies laid out in respect of one, proving to be for the benefit of another. D. 3. 5. 45.

TItius conceiving his sister to be heire to Sem­pronius, by his will, payd mony to some, to whom Sempronius was indebted, which after-wards proved otherwise; Sempronius his sonne ap­pearing to be his heyre, It was questioned, whether the sonne were bound to give him satisfaction, for what he had laid out? Vlpian answered, although what Titius had done, was in contemplation of his sister, yet in truth, the sonnes estate, was better'd thereby, and therefore he might have recourse a­gainst him, who in equity, was bound to give him satisfaction.

3 Of a Debt acknowledged by a Factor, on his Masters behalfe. D. 14. 3. 20.

OCtavius Faelix a Scrivenor, imployed Octavius Terminalis in his businesse, who wrote to Do­mitius Faelix in this manner; Sir, There remaines in my Masters hands a hundred pounds, which I am to pay unto you, before the first of May, Octavius Faelix shortly after dyed, without any heyre, and left not goods sufficient to pay his debts: It was questioned, whether Octavius Terminalis was liable by his letter, to be sued for the hundred pounds? Scaevola answered, that by writing that letter, he was not bound in Law, neither was there any equi­ty why he should pay the same; because what he wrote, was in duty of his place under his Master, to shew the account, not to charge himselfe.

4 Of Goods received by the Servant, converted to the Masters use. D. 15. 3. 16.

ONe left his ground to his servant, to be tilled, or manured by him, and furnisht him with Oxen to that purpose, which proving unserviceable, he willed them to be sold, and with the monies, o­thers to be bought in their stead: the servant sold those Oxen, and bought others, but paid not for them, and afterwards proved nothing worth; he that sold the Oxen, demanded the mony of the Ma­ster; because the Oxen bought, were converted to his use: It was questioned, how farre the Master was answerable? Alfenus answered, That it was true, that the later Oxen were converted to the Masters [Page 84] use, deducting what the former Oxen were sold for, and therefore the Master was to be condemned in so much, as the later Oxen were of better value then the former.

5 Of a Tutors account, to be made for interest, not for gaines. D. 46. 7. 47. § 6.

TWo brothers driving a Trade together, as part­ners, one of them dyed, and left a sonne, to whom the Uncle, surviving became a Tutor; and selling all the commodities belonging to the trade, set out for his Nephew, his moiety in mony, and went on in the Trade alone, in his own name: It was questioned, what he was bound to make good to his Nephew? Scaevola answered, That he was bound to make good the use, or profit of the mony, but was not to account any thing for the gain made by his Trade.

6 Of a Tutor answerable for gaine by speciall appointment. D. 26. 7. 58.

LVcius Titius, who in his lifetime imployed Pam­philus and Diphilus in his Trade, and negotia­tion, in his will, appointed them Tutors to his children, & ordained, that they should manage his Trade and affaires, as formerly they had done. They took upon them, the administration of the estate, during the Minority of the children, and Diphilus put to their account, the profits which he raised by trade; but Pamphilus thought to be discharged, by giving an account only of the use mony, or interest, for so much as came unto his hands, as it is usuall [Page 85] when one is sued, by occasion of Tutorship: It was questioned, whether Pamphilus were not lyable to answer, for what he gained by imployment of the stock, as well as Diphilus? Tryphoninus answered, That the Testator willing, that they should man­nage the businesse for the Minors, as they had done for himselfe, he was liable.

7 Of Alimony, and Education to be allowed to a Tutor, for a Minor. D. 2. 2. 4.

ONe made his sonne a Minor, his heyre; and bequeathed to his Daughter for her Dower, two hundred pounds, and nothing else; and appointed Sempronius Tutor to them both; at the in­stance of the kindred, Sempronius, being called be­fore a Magistrate, was ordered, to allow her Alimo­ny, and to pay wages to such, as should instruct her in the Liberall Arts. The Sonne coming to full age, payd unto his Sister, then being of ripe years, the two hundred pounds, given to her as a legacy: It was questioned, whether he were also bound, to allow unto the Tutor, what he had expended for Alimony, and instruction of his sister? Julianus was of opinion, That although, without the order of the Magistrate, he had done those things, she ha­ving no other means to be maintained, the Tutor ought not to be questioned for the same.

8 Of a Tutor keeping to his own use a Minors goods, which a Chapman refused. D. 26. 7. 56.

A Tutor sold cattell, belonging to a Minor, and he that bought them, not paying the price, detained them to his own use, and al­lowed mony for them to the Minor upon his ac­count. The Tutor dying, his heyres enjoyed the cattell divers years. When the Minor came to full age, It was questioned, whether the late Minor, had any right to the Cattell? It was answered by Scaevola, as the case was proposed, he had no right.

9 Of Curators of the City, not to be questioned for more then came to their hands. D. 3. 5. 26.

A Citizen by his will bequeathed his goods to the City, the Magistrates appointed three Cu­rators, Titius, Seius, and Gaius, being then of good ability to manage the estate; they, of their own accords, divided the administration of the goods among themselves severally; it happened af­ter a while, that the will, by which the goods were bequeathed to the City, was proved to be voyd, and Sempronius next of kinne, was admitted as heyre: in the mean time Titius, one of the Curators failed In his estate, and dyed nothing worth: It was que­stioned, whether Sempronius might recover of the other two that part of the estate, which came to Ti­tius his hands? Modestinus delivered his opinion, [Page 87] that what was wanting, by his default, who mana­ged part alone by himselfe, ought not to be imputed to the other two Curators, and that the heyre must be contented to sustaine the losse.

10 Of the Publique Mony of the Citty let out to use. D. 22. 1. 11.

GAius Seius, who managed the publique Trea­sure of the City, lent mony to use, according to the custome of the place, for foure in the hundred; and in the same place, it was likewise the custome, if any debtors failed, at the time appoin­ted, to bring in the interest or use mony; that thence forth, they should pay after the rate of six in the hundred: it happened, that some Debtors, brought not in the monies at the time appointed, others brought in more then the usuall rate, at foure in the hundred, so that reckoning the one with the other, the Cities monies might be made good. It was questioned, whether the monies re­ceived, above the ordinary from debtors, should acquit Gaius Seius, by whose negligence, others had failed; or whether the advantage thereof, should redound wholly to the City, and Gaius Seius ought out of his own estate to make good the rest; Paulus answered, If Gaius Seius, contracted with the debtors, for such rates only, as were usuall, the monies so advanced were to be accounted to the City, but if by his own care and industry, he had raised more then was ordinarily taken, although by Law the monies belong to the City, yet it stands with Equity, that the monies raised above the ordi­nary [Page 88] rate; should be allowed in satisfaction, for what was wanting in the ordinary; unlesse the Ci­ty will take upon themselves, the hazard of all the monies lent out to their use.

TITLE IV. Of Penalty, and of Offences wilfully committed.

Penalty is a Right belonging to one man from another, to be suffered, or paid by him in re­spect of some offence, either malitiously or wrongfully committed, or imputed to one as done by him.

SECT. I. Offences malitiously committed, are such as are wilfully done; as, Injury to mens persons, Theft concerning their goods, & Deceiptfull Dealing in any businesse.

1 Of Injury done, occasioned by ones selfe. D. 47. 10. 15. § 15.

IT was held an Injury to attempt the chastity, or by alluring speeches, to move a Virgin or Woman, of free condition, to dishonesty. But if a Man, saies Vlpian, finding a Maid in the habit of a Bond-woman, attempt her chastity, the offence seems the lesse; much more if a Free Woman bee found in the habit [Page 90] of a Harlot, not of a Matron; and therefore if any man attempt her honesty, who appears not like a Matron, he is not liable to an action of injury.

2 Of an Injury done by Errour, or mistake of the Persons. D. 47. 10. 18. § 3.

IF one doe injury to another, whom he knowes not, as taking Lucius Titius, to be Gaius Seius, It was questioned, whether the party so injured, might require satisfaction, in regard the injury was not intended to him, and seems done to an uncer­tain person? Paulus answered, That which was prin­cipally intended is most prevalent; his purpose was to doe an injury, and the party injured, was a cer­tain person, although he took him to be otherwise then he was, and therefore the party injured might bring his action: but if one doe injury to a married Woman, whom he conceived to be a Widdow, he cannot be said to have done an injury to her Hus­band, because his purpose, in respect of one person, ought not to be transferred unto another, and his intention, and purpose in doing the injury, was in respect of her, as being a Widdow; but if he had known her to be a married woman, although he knew not whose Wife she was, her husband might bring an action in his own name; for if he were not ignorant, that she was a Wife, it may be supposed, he had a purpose to doe an injury to her Husband, whosoever he were.

3 Of Threatning, and offering Blowes. D. 47. 10. 5. & 15.

AN action of injury lying against him, who stroke, or beat another man, It was questio­ned, whether if one were not beaten, and struck, but had hands lifted up against him, and were much threatned to be beaten, he might bring his action? Labeo said, Although a direct action of injury, did not lye against him, yet he was lyable to an action of the case.

4 Of disgracefull Words, but True. D. 47. 10. 15. & 18.

THe Praetor affording a remedy, as in case of injury, if any man speak words to the dis­grace of another; It was questioned, whether he were answerable, who was able to justify defa­matory words? Paulus saies, That it stands not with equity nor justice, that he who spake disgracefully of a lewd person that deserved it, should be punisht for the same; because it is fit and necessary, that the crimes of men, that are guilty, should be made known and discovered.

5 Of hindering a man from Honour. D. 47. 10. 13. § 4.

IF one by his means hindred, that honour was not conferred upon another, as to have his Sta­tua erected, or the like; It was questioned, whe­ther he were not liable to an action of injury? Labeo said, He was not liable, although it were done with a purpose to disgrace him; because, saies he, there is [Page 92] much difference, betwixt doing a disgrace to a man, and not suffering him to receive Honour.

6 Of Injury done by a Magistrate. D. 47. 10. 13. § 6. & 32.

VLpian saies, that what is done by a Magistrate, in right of his power, is not lyable to an acti­on of Injury: and he elsewhere saies, That the Magistrate, hath no power to doe any thing injuri­ously; and that therefore he may be sued, as in a case of Injury, for what he does wrongfully, either as a private person, or by colour of his office; but makes it a question, whether he may be sued during his au­thority, or when it is expired? And resolves, That if he be a Magistrate of a higher ranke, who without prejudice cannot be called in question, the party grieved must exspect, untill his authority be deter­mined: but if he be a Magistrate of inferior sort, as such, who have not power of death, or imprison­ment, he may be sued, his Office depending.

7 Of Two or more Stealing the same thing. D. 47. 2. 21. § 4.

IF two or more, joyning their strength, steale a piece of Timber, worth twenty shillings, which simply alone, none of them could have carried away; It was questioned, whether they were all joyntly, or each of them severally, lyable to an acti­on for the double value thereof? Vlpian saies, That e­very one of thē was lyable; because it cannot be said, that each man stole his part, but every one of them, [Page 93] joyning in stealing the whole, by consequence, is lyable for the whole.

8 Of an Infant stolne, detained till he grew a Man. D. 47. 2. 67.

THe Sonne of a Bond-woman was stolne, when he was an Infant, and grew up to the state of a tall young man, in the possession, and ser­vice of him by whom he was stolne: It was questio­ned, according to what value the true owner might bring his action? Paulus answered; That the theft was still one and the same, and the action might be brought according to the greatest value at any time, whilest he remained, in the possession of him that stole him, that is, as the value was, when he was grown to a mans estate; not only as it was when he was an Infant, for saith he, what can be more rldi­culous, then to think, that he who stole him, should better his own condition, by long continuance of the theft.

9 Of a Maid-servant stolne, which was a Harlot. D. 47. 2. 39.

ONe inticed away a Harlot, which was ser­vant to another man: whereupon it was que­stioned, whether he had therein commit­ted theft? Vlpian answered, It was no theft, be­cause not the thing done, but the end wherefore [Page 94] it is done, ought to be respected: & the end where­fore the Harlot was inticed away, was not to make gaine, but to satisfie lust; so that in truth, the fact is worse then theft, and liable to another action more infamous.

10 Of two Bond-servants pledges, whereof one was stolne. D. 47. 2. 14. § 5.

ONe who had two Bond-servants, left with him as pledges, or pawnes for a debt of ten pounds, happened to have one of them stolne from him, the other remaining, being of no lesse value then ten pounds; It was questioned, whether he might bring his action only, in respect of the moyety of the debt, because his other moyety, is sufficiently secured, in the other Bond-servant re­maining? Or whether he ought to have his action, in respect to the whole summe? because it might hap­pen, that the servant remaining, might miscarry be­fore the debt were paid. Papinian answered, That he ought to have his action in respect of the entire summe of ten pounds; because therein regard was to be had of that which was stolne, not of that which remained safe.

11 Of a Letter stolne or Purloyned. D. 47. 2. 14. § 17.

A Letter sent by one man to another, is inter­cepted by a third person, who is therefore liable to an action of theft: It was questioned, who had right unto that action? Vlpian saies, It ought to be considered, who had the right in the Letter, whether he from whom, or he to whom it [Page 95] was sent: and said if it were delivered to the servant, or some other belonging to the party, to whom it was sent, it ought to be held his proper letter; espe­cially if it concerne him, to receive the same, but if it were sent to be returned againe, the right, or pro­perty remained in him, from whom it was sent; be­cause he had no purpose to loose, or transferre the same: He concludes, That the right of action belongs to him, whom it concerned, not to have it stolne, that is, to him for whose profit or benefit, the con­tents thereof were written. It may be likewise que­stioned, whether he to whom the letter was deli­vered to be conveyed, might not bring his action for the same, if it were stolne from him? And it is re­solved he might, if he undertook the delivery, and were paid for the same, or were concerned in the contents, as being to receive something, or to have something done for him exprest therein.

12 Of Writings, or Bonds purloyned or stolne. D. 47. 2. 27. & 32.

HEE that steales, or purloynes another mans writings or bonds, or the like, is liable to an action of theft; not only according to the value of the paper, or parchment, but also of the debt, or summe contained therein, (saies Vlpian) if it concerned the owner, for so much; as if the wri­ting, or bond were for ten pounds, the action might be brought for twenty, as the double value: where­upon it was questioned, If the summe, or mony men­tioned in the writing or bond were paid, before it was stolne, whether the action lay for so much, the writing or bond being then of like concernment? To which the same Vlpian answers, Although the debt be paid, the debtor may require to have his [Page 96] bond delivered up, or pretend that mony was paid by him, when none was due; in which respects, it concernes the Creditor to have the writing, or bond in readines, to prevent trouble which for want thereof, might happen unto him. Againe it is que­stioned▪ If one who hath lost his bond, hath other writings, or means to prove his debt, whether he may sue for the double value of what is contained in the bond; for it seems he hath lost nothing, whose debt is secured, by another bond or writing: some again doubt why an action should lye for more then the value of the paper or parchment? Because that if upon the action of theft, he can make it ap­peare, what the debt was, he may make the same likewise appeare, when he shall have occasion to sue for the debt; and if upon his action of debt, he can­not make the summe appeare, how can he be able to shew, how farre the losse of the bond, or writing concerned him? Paulus answered, That it might fall out, that after the theft was committed, the wri­tings might come to his hands, by which he might be able to prove, how much it had concerned him; and the right of action, being once accrued from the theft, continues, although the case be altered af­terwards.

13 Of Things Taken up, whereof the owner is not known. D. 47. 2. 43.

HEE that takes up any thing being on the ground, and carries it away, with a mind to gain the same, is guilty of theft, saies Vlpian, whether he knowe the owner, or know him not; for it abates nothing in the point of theft, that the owner of the thing, is a person unknown: but▪ if the [Page 97] owner left it, as a derelict, that is, a thing which he intended not to look after againe, although he who took it up, had a purpose to conceale, and gaine the same, it is no theft; for theft is not committed, un­les there be some body, who is prejudiced thereby, which in this case cannot be; Because it is received for a certain rule, which Sabinus, and Cassius deli­ver, That he who leaves a thing, with a mind never to have it againe, ceases to be owner thereof: but if it were not left as a derelict, yet if he who took it up, conceived it to be so, he is not guilty of theft: and againe, if it were not left as a derelict, nor he who took it up, conceived it to be so, yet if he had no intention to gain the same, but to restore it to the owner, he is free from guilt; much more he, who having found any thing, setts up bills to signi­fy so much, although he demanded a reward for finding and preserving it.

14 Of an Atturney, receiving Mony without Commission. D. 47. 2. 43.

HEE, who as a Proctor, or an Atturny, with­out any commission, or authority, receives mony, seems to commit theft, saies Vlpian: but Neratius saies, that is not to be admitted but with distinction; For it is true, if a debtor deliver unto him mony, with an intention, that it should be re­turned unto his Creditor, and the Proctor detaine the same to himselfe, it is theft, For the mony still continues the debtors; and the Proctors pos­sessing himselfe thereof, contrary to the owners [Page 98] minde, undoubtedly committes theft; but if the debtor, supposing him to have power to receive such mony to his own use, deliver the same, al­though he therein be deceived, the Proctor can in no waies be said to act as a theef, receiving the mo­ny according to the mind, and will of the owner.

15 Of one Taking privily what he had Lent. D. 47. 2. 59.

HEE, who lent something unto another pri­vily, without the consent of him towhom it was lent, took it away: It was questio­ned, Whether he were liable to an action of theft? Julianus answered, That he had not committed theft, because he was owner of what he took away; which yet he limits, unlesse he, to whom it was lent, had some just cause to detaine the same, for if he had laid out necessary charges, for preserving the thing lent unto him, it concerned him, rather to keep the thing lent, untill he were satisfied, then afterwards to seek his remedy, by way of suit for the same, and that in such a case, he might bring his a­ction, as in a case of theft.

16 Of one Taking away what had been Stolne from him. D. 47. 2. 48.

ONe, who had lost a piece of Silver plate, brought an action of theft, against him who had embezelled the same, & a question, and difference arising about the weight thereof, the owner alledging it to be more, the defendant, de­nying it to be so much, produced the piece, which the owner presently snatched out of his hands, and [Page 99] kept the same, which notwithstanding, he who em­bezelled it, was condemned in the double value thereof; whereupon it was doubted? Whether the sentence were just? Vlpian answered, It was justly given; for the thing it selfe, which was stolne, was not considerable in the action, wherein by way of penalty, the double value was to be allowed: He likewise relates, That when one had stolne some goods, and sold the same, the owner of the goods, extorted from him the mony, which was received for the price thereof, It being questioned, whether he had committed theft? It was resolved he had; be­cause it was without all doubt, that the procede, or price of the thing stolne, was not the stolne thing.

17 Of Procuring Credit to an insufficient party. D. 4. 3. 7. & 8.

LVoius being desired to lend mony to Seius, whom he did not know, enquired of Titius, to whom Seius was known, concerning his abili­ty, who affirmed, that he was a man, that might be trusted for such a summe: The mony being there­upon lent, & Seius proving insolvent, Lucius would have brought an action against Titius, for deceitfull dealing, but Caecidianus the Praetor, would not give way unto it, which Vlpian saies was rightly done; because that action may not be brought, but where there was a great and evident purpose of deceiving: yet Gaius saies, That if when he knew, that he was of a broken condition, for some gain to himselfe, he affirmed his credit, in regard he commended him with a purpose of deceiving another, that acti­on may be justly brought against him.

18 Of a false commendation of a thing to be sold. D. 4. 3. 37.

ONe who desired to buy a Horse, which was sure of foot, repairing to an Horse-courser, and enquiring for one of that condition, had one shewed unto him, which the owner knowing his qualities, commended for a most sure horse, or that would neither stumble, nor trip; with which commendation he sold his horse at a very good price. The first journey wherein the buyer made triall of him, he fell, and broke the riders legge. It was questioned, whether the Horse-courser were not liable to the action of deceitfull dealing? Vlpian said, That which a seller speaks by way of commen­dations in generall, is to be understood as neither spoken, nor undertaken by him; but if he gave some speciall commendations, with a purpose to deceive the buyer, he can neither be sued for his commen­dations, nor for a promise, but he may be questio­ned for deceitfull dealing.

19 Of making a false claime to another mans prejudice. D. 4. 3. 33.

ONe having a commodity ready to sell, towards the end of the Market, the buyer having taken good likeing thereto, another makes clayme to the commodity, and threatens to bring a Sergeant to arrest it; whereupon the buyer departed, and the third person desisted his clayme, whereby the sale was frustrated. It was questioned, what remedy he might have, that received the prejudice? Vlpian said, That the true owner of the commodity might bring his action on the case, for the satisfaction of his losse.

20 Of the Like. D. 4. 3. 9. § 3.

LVcius being possest of some parcells of oyles ta­ken out of a ship, Seius arrested them, as his own, and began a suit against them. The oyles being perishable in value, it was agreed betwixt them, that they should be put into the hands of Sem­pronius by way of sequestration, to be sold by him, and the mony to be kept for his use, to whom they should be adjudged, Seius let fall his suit. It was questioned. Whether Seius might be sued for de­ceitfull dealing? Some were of opinion he might; be­cause Sempronius could not be sued to deliver the Oyles, untill the cause were ended: but Pomponius was of opinion, That an action of the Case might be brought against Sempronius; but if that he proved in­solvent, that then the action held against Seius.

21 Of lending false Weights. D. 4. 3. 18. § 3.

IVnius being to sell a commodity, Lucus knowing­ly lent him false weights, to weigh his commodi­ty withall. Trebatius said he was liable to the a­ction of deceitfull dealing. Others were of a contra­ry opinion, Because if the weights were too heavy, the seller might recover what he had delivered too much; and if they were too light, the buyer might have the like remedy concerning the price: but if it were agreed that the commodity should passe ac­cording to such weights, and he with a purpose to deceive, affirmed his weights to be just, the action did hold.

22 Of a Counterfeit Letter. D. 4. 3. 38.

LVcius, who owed mony to Seius, understanding that Seius was much obliged to Sempronius, caused a Letter to be conveyed to Seius in the name of Sempronius, wherein it was requested, that he would remit that debt to Lucius; Seius being de­ceived by this letter, sent an acquittance of the debt of Lucius, by him who brought the letter: After-wards it appeared to him, that the letter was false, and counterfeited; Whereupon Vlpian was advised what might be done in this case. He resolved, That Seius the Creditor, if he were under the age of twenty five years, might sue to be relieved and re­stored, against that acquittance: and if he were above that age he might bring his action against Lucius for cosenage, or deceitfull dealing.

SECT. II. Of Offences wrongfully Committed.

Offences are done wrongfully, when one by fault or negligence, doth hurt or dammagr to another man, for which he is liable to make satisfa­ction, according to the value of the thing, at any time in a yeare, sometimes, what it was worth in thirty daies before.

1 Of Corne fired by burning of Furze. D. 9. 2. 30. § 3.

IT was questioned, If a man, with intention to burne the Stubble, or Furze upon the ground, set fire thereunto, which fire disper­sing farther, burnes another mans corne, or vineyard, how farre he is liable for the losse or dam­mage. Paulus saies, it is to be considered, whether it were foolishly or negligently done, for if he put fire on a windy day, he ought not to be excused; for he is supposed to doe a dammage, which gives oc­casion thereof: and he is in like fault, who did not take care, that the fire might not spread so farre; but if all things requisite were observed, he is without blame.

2 Of Hurt done by Lopping a Tree. D. 9. 2. 31.

IT was questioned, If one Lopping a Tree, did throw down a bough, or limme thereof, where­by another mans Servant or beast was killed, or hurt, Whether he were liable for the losse? Paulus saies, he was liable, in case it were done in a com­mon high way, if he did not give warning, so that that falling thereof might have been avoided. Muci­us saies, it is the same in a private way, if it happe­ned by that neglect, which by a carefull man might have been prevented; or if warning were given when it was too late: but if it fell out in a place where there was neither a publique nor private way, nothing is required, but that it be not wilful­ly done; For he ought not to be held faulty, that could not foresee, whether any were likely to passe that way or no.

3 Of Hurt done in Sport or Play. D. 9. 2. 52. § 4.

DIvers boyes playing at Ball together, when one strived to take the Ball, another thrust him aside, by occasion whereof he fell, and broke his legge: It was questioned, Whether the Ma­ster of the Boy ought not to have recompence ac­cording to the Law, against him who threw him downe? Alfenus answered, He could have no reme­dy, because the hurt was done, rather by chance, then by any wilfull fault.

4 Of Hurt done upon Provocation. D. 9. 2. 52.

A Shopkeeper in the night time, set a Lanthorn with a Candle upon his stall, a Bond-servant passing by, snatcht it up, and carried it away. The Shopkeeper following, demanded his Lant­horne, and laid hold of the Bond-servant, to hinder him from running away. Whereupon he, to free himselfe, struck the Shopkeeper with a pike staffe, whereupon the fray increasing, the Shopkeeper thrust out one of his eyes. It was enquired, Whether he were not liable to the Law, having unduly done a dammage? Alfenus answered, that he was of opini­on, That the dammage was not unduly, or wrong­fully done, unles wilfully, and of set purpose he had put out the eye, but that the fault was in him who first struck with his pike staffe, and if the shopkee­per had fought, before he had been strucken, he might have borne the blame.

5 Of Hurt done by way of Correction. D. 9. 2. 5. § 3.

A Shoomaker who had directed a boy how to doe his worke, finding the Boy had not ob­served his directions, struck him in the poll, with the last of a shooe, by occasion whereof he lost his eye: It was questioned What remedy might be given against him? Julianus said, he was not liable to an action of Injury, because he did it not with an injurious intent; but doubts not, but that he was lia­ble to make satisfaction: which is confirmed by Pau­lus, that the Masters too great severity is held a fault. Whereupon it was concluded, that the Father of the Boy might recover the losse he sustained in for­bearing his Worke, and the charges he was at in ha­ving him cured.

6 Of one Killed by a Barbers Razor, struck with a Ball. D. 9. 2. 11.

SOme young men playing with a Ball, one of them struck it so, that lighting upon a Barbers hand, having a Razor therein, by occasion thereof, the throat of a Servant, whom he was shaving, was cut; It was questioned. Who was liable forthe losse? Me­la saies he was liable, which was in fault. Proculus was of opinion, that the Barber was in fault; with whom Vlpian agrees, if the Barber did use his trade where men doe usually play at ball; yet confesseth, that it may not without reason be argued, That if one; knowing the Barbers chaire, to be in a place of danger, put himselfe under his hand, that the fault might be imputed to himselfe.

7 Of a Boy following two Carts, crusht to Death. D. 9. 2. 52. § 2.

TWo Carts drawn by Mules, were driven up the steep way leading to the Capitol. The Carters of the former, to help forward the Mules, set their shoulders to the Cart, and that chancing to fall backwards, withdrew themselves; whereupon the former falling upon the latter, forced it backward down the hill, so that a boy was crusht to death thereby: It was questioned, Against whom the Ma­ster of the Boy might bring his action? Alfenus an­swered, The judgement ought to be given accord­ing to the circumstances of the fact; for if the Carters, who put their shoulders to the uppermost Cart, wilfully withdrew themselves, and thereup­on the Mules could not stay it from falling back­ward, [Page 105] the action did lye against them; for they were no lesse faulty in suffering it to fall foule on the other, then if a man let fall a weapon, which he might have held, whereby another man is hurt. But if the Mules of the former, being skittish, started a­side, so that the Carters withdrew themselves, for feare least the Cart might have runne over them, no action lies against the men, but against the owners of the Mules. But if the fault were neither in the Mules, nor in the Men, as because the Mules were too weak to draw the weight, and striving there­with fell downe, and the men could no longer sup­port the Cart, neither were the owners of the Mules, nor the Carters liable. Howsoever it happe­ned; It is certaine no action lies against the owners of the later Mules, because they were forced to fall back.

8 Of Dammage done to Cattell, found in another mans ground. D. ad leg. Aquil. 39.

QVintus Mucius relates a Case, One mans Mare being great with fole, feeding in another mans ground, in driving out, cast her Colt. It was questioned, Whether the owner might bring his a­ction against him that drove her, because by driving her, he made her loose her Colt. It was held, that if he struck, or willingly, drove her away violently, he might bring his action. Pomponius adds, That al­though a man find another mans cattell in his ground, he ought so to drive them forth, as he would drive his own; Because if he hath received any dammage, he hath his proper remedy by way of action. And therefore he, who finds another mans cattell in his ground, cannot lawfully impound [Page 108] them in his own ground, nor drive them out other­wise then he would doe his own. But he ought to drive them out without doing them any hurt, or give notice to the owner to fetch them away.

SECT. III. Of Offences imputed.

Offences imputed are when one is affected by what is done by another; as when by ones Tu­tor, Servant, Cattell, or things in his possession another man is damnified, for which he is liable to the penalty of Law, or to make sa­tisfaction, according to the value of the dam­mage, or to deliver up his Bondservant or Cattell that did it, or to remove, or repaire, that whereby an annoyance is occasioned.

1 Of Wrong done out of the duty of ones Charge, not to be imputed to the party. D. 34. 9. 22.

HE who goes about to overthrow a Will, as made unduly, ought to receive no benefit by the Will if it stand good: Yet it stands with good reason, saies Triphoninus, That a Tutor, who on his Pupils behalfe, objects against a Will, although he faile in making good, what he intended, should not loose any Legacy given him therein; Because the necessity of his charge, and the trust reposed in him as a Tutor, ought to excuse him. For diverse [Page 109] rights or interests concurring in the same person, they are in themselves distinct; and so is the relation of a Tutor, from the condition of a Legatory: and whereas the opposition made to the Will, was not in the right of his own person, but for the interest of his Pupill, he ought to suffer nothing in his own condition: But what was given to the Pupill in the Will, proves voyd, unlesse by the Princes favour it be preserved.

2 Of Dammage done by a Servant common to two Masters. D. 9. 4. 17.

A Bond-servant which was common to two Masters, did a dammage wrongfully, to which one of the owners was privy; the o­ther was altogether ignorant. It was questioned, whether if the latter delivered up the Bond-servant, the other were freed? Paulus said, That if the dam­mage amounted to more then the Bond-servant was worth, the rest may be recovered of the other ow­ner, allowing him consideration, of a moyety of the value of the Bond-man, in regard of his interest in him.

3 Of one mans Ram killing another. D. 9. 1. 1. § 11.

IT happened that two Rammes, belonging to se­verall owners, fighting together, the one killed the other. It was questioned, Whether the ow­ner were bound to make satisfaction for the losse? Quintus Mucius answered, That if it can be proved, That the Ramme which was killed, did first provoke, and assault the other, the action [Page 108] would not hold; but if that which, without provo­cation, was first assaulted, was also killed, the ow­ner thereof ought to give satisfaction, or deliver up his Ram as liable for the dammage.

4 Of Water falling from a higher ground into a lower. D. 39. 3. 1. § 22.

IF a Work or Banke, anciently erected in one mans ground, being removed, the Water natu­rally falling into the lower ground, belonging to another, some annoyance, or inconvenience growes thereby▪ It was questioned, Whether he who suffered the inconvenience might have reme­dy? Labeo answered, he could have no remedy, be­cause the lower ground, alwaies owes that service to the higher, as to receive the water falling from it: but if by removing the worke or banke, the water falls more violently into the lower ground, then naturally it did, and thereby an annoyance, or in­convenience groweth; he confesses, that he may bring his action for remedy thereof. He saies more­over, That not only the nature, and scituation of the grounds, but the conditions imposed, or agreed upon, and the ancient use observed, time out of mind, ought to be considered: By the naturall sci­tuation, it is true, the lower ground owes such a ser­vice to the higher, and if there be any inconveni­ence therein, it is recompenced with another con­venience, because by fall of the water, the soyle is enriched, and improved; yet sometimes, by consent of parties, it is agreed, how watercourses should passe from one ground to another, and if there ap­peares no such conditions, or agreements the an­cient use ought to be observed.

5 Of a Banke removed by Casualty. D. 39. 3. 2. § 5.

IT happened, that the violence of a Land-floud brake down a banke in one mans ground, which kept in a Watercourse, from annoying the neighbours grounds which were neare it. It was questioned, Whether the owner of the ground were bound to repaire the banke? Alfenus answe­red, That if the banke were naturall, he was not bound to repaire it, nor could be compelled to suf­fer it to be repaired by others, and if it were artifi­ciall, and no man living could remember, that the owner of the ground had repaired it, he was like­wise free; but if in the memory of man, it had been repaired by the owner of the ground, he might be compelled thereto. Labeo said, If the banke were artificiall, although no man living could testify, that the owner of the ground had raised it, yet he might be required and compelled to suffer it to be repai­red: For although no man could bring an action, to compell another, to doe something for his benefit; yet he might bring one, to cause him to suffer, that to be done, whereby he himselfe could receive no prejudice. He affirmes the same, although the banke were naturall, and concludes, If the Law be defe­ctive, yet it consists with Equity.

6 Of the like Case. D. 39. 3. 2. § 6.

NAmusa said, That if a current, passing into a lower ground, be obstructed or stopped with mud, by occasion whereof, some annoyance or inconvenience happens to a higher ground, the [Page 112] owner of the higher ground, may sue the owner of the lower ground, to suffer him to remove the obstructions, and cleanse the streame; be­cause the action holds, not only where some worke is raised by the hands of men, but also where it happens that some annoyance ariseth be­sides expectation and by chance. Labeo argues a­gainst Namusa's opinion, That the condition of grounds may admit alteration from the grounds themselves; and when such alteration happen, every man must rest contented, whether the grounds be made the worse or better: Likewise as if an altera­tion happen by an Earthquake, or violent tempest, upon which occasion, no man is bound to give way to have things restored to their former condition. But Paulus inclines to Namuza's opinion, saying, That whatsoever may be maintained in point of strictnesse of Law, this in Equity it ought to be ad­mitted.

TITLE V. Of Inheritances Testamentary, and of Institution of Heyres.

An Inheritance Testamentary, is a Right ari­sing from a last Will or Testament, of succeed­ing in the Testators whole estate, and is ei­ther by way of Institution, Substitution, or devising in Trust.

SECT. I. Institution is when one or more are ap­pointed Heyres in the first place.

1 Of a Child supposed in the Wombe made Heyre. D. 28. 2. 25.

LVcius Titius being in the City, when he made his Will, and having a Niece, to wit, his Daughters Daughter, great with child, then abiding in the Country, made the Child in his Nieces wombe one of his heyres. It happened that the same day that Titius made [Page 114] his Will in the City, his Niece in the Country was delivered of a Sonne. It was doubted, Whether he ought to be his heyre? because when the will was made, the child was not in the Mothers Wombe, but brought forth into the World. Paulus answe­red, That it is true, The words in the Will mentio­ned a child in the Wombe, which should be borne after the making thereof, but if, as the case is put, the Niece were delivered before the Will was made, the Testator not knowing so much, It ought in right to be allowed as heyre.

2 Of Heyres made of Estates in severall places. D. 28. 5. 35.

MArcus Aemylius a rich Citizen, having a great estate, partly in Italy, partly in Sicily, then a Province under the Romanes; made two Heires Cornelius, and Sergius, one, that was Cor­nelius, of that estate or goods which he had in Rome or Italy▪ the other Sergius, of what he had in the province of Sicily. He trading betwixt both places, It happened that in his life time, he had conveyed mony into Sicily, to buy goods or com­modities to be remitted to Rome. It was questio­ned, Whether that money or the proceede thereof, remaining at the time of his death with his Factors in Sicily, did belong to Cornelius, who was heyre for that estate and goods which he had in Italy, or to Sergius who was heyre to that estate which he had in Sicily? Vlpian answered, That in truth, it de­pended upon the will and meaning of M. Aemylius the Testator, what should be reputed good of the one place or of the other; because the Will of the Testator, if it may appeare, is all in all, and that must be followed which the Testator meant, Other­wise, [Page 115] it is to be understood, that those things are comprehended under the notion of things, or goods in Italy, which he had remaining there constantly, and provided so to have them. But if yet at any time, he conveyed the same into another place, not with a purpose that they should continue there, but to have them returned againe, those shall nei­ther increase the stock in the place whether they are conveyed, neither shall they diminish the stock of that place from whence they are sent. As for in­stance: If a man, out of that part of his patrimony which he hath in Italy, sends his servant with mo­ny into the Province, to buy commodities, and to returne with them to Rome. It is no doubt, but the mony and the commodities when they are bought, belong to that part of his patrimony, which is in Italy; and so Mucius determines, in the case of a Legacy. If one who hath grounds in severall places, and Cattell, as Oxen usually imployed in those se­verall grounds, and bequeath one of the grounds with the Cattell appertaining thereunto, and at his death, the Oxen of the other were sent thither, to till that ground, they shall not be comprehended in the legacy; because they were not destinated to that place, to continue there.

3 Of a Disposition of so much if a Sonne be borne, of so much if a Daughter, and a Sonne and Daughter both are borne. D. 28. 2. 13.

THe state being usually diviseable into twelve parts; One, whose Wife was great with child, made his Will in this manner; If my Wife be delivered of a Sonne, my will is that he shall have eight parts of my estate, and my Wife the rest, [Page 116] (which was foure) but if she be delivered of a Daughter, my Will is that my Daughter shall have foure parts, and my Wife the rest. It happened that she was delivered, both of a Sonne and of a Daugh­ter. It was questioned, How the estate should be de­vided? Julianus answered, That the estate was to be devided into seaven parts, whereof the Sonne was to have foure parts, the Wife two, and the Daughter one; For although he made no provision both for a Sonne and a Daughter, yet in regard he intended to his Sonne a double proportion, to that of his Wife, and to his Wife a double proportion to that of his Daughter, Therefore this division was agreeable to his mind, and, as Juventius Celsus affir­med, most reasonable.

Of the like Case. D. 28. 5. 81.

CLemens Patronus ordained in his last Will, his Wife being great with Child, That if a Sonne were borne unto him, he should be his sole Heyre, if two Sonnes, they should be equally his heyres, if two Daughters, likewise they should be his Heyres in the same manner, if a Sonne and a Daughter, he gave two parts of his estate to his Sonne, and a third part unto his Daughter. It hap­pened that there were two Sonnes and a Daughter borne. It was questioned, What was to be done in that case? Paulus answered▪ Whereas he intended, that the Sonnes should be equall, and that a Sonne should have a double proportion in respect of a Daughter, that the estate should be divided into five so that the Sonnes should have two parts a piece, and the Daughter should have one, that is, a fist part. vid. l. 47. D. eod.

5 Of Heyres made upon condition of Marriage. D. 28. 7. 23. 24.

LVcius Titius having two brothers, and a kins­woman, whom he well affected, made his Will, and disposed of his estate in this manner, He of my brothers, which shall marry my kinswo­man Fulvia, shall be heyre for nine parts of my e­state, and he that shall not marry her, shall be heyre for the other three parts. It was questioned, If she refused to marry either of them, or dyed, before ei­ther of them could marry her, how the estate should be devided betwixt them? Papinian answered, That the Brothers ought to be heyres equally, for the whole estate; because it is plaine, he made them both his heires, and the difference of the parts gi­ven unto them, depended upon the successe, or e­vent of the Marriage; to which Marcellus adds, That a condition, if one shall Marry such a Woman, or doe such a thing, ought to be understood perform'd, if there be no default in him, whereby he is not married, or the thing not done.

6 Of an Heyre made, upon an absurd condition. D. 28. 7. 27.

ONe in his Will, made another his Heyre, upon condition, that he should throw his ashes or his bones into the Sea. It was questioned, whe­ther, if he that was made heyre upon that conditi­on, if he did not performe it, ought to be put by the inheritance? Modestinus answered, It was first to be enquired, whether he who made his heyre, upon that condition, were in his witts, or right sences when he did it, which if it be clear, It is no questiō but the heyre, although this conditiō be not perfor­med, shall enjoy the estate, before him, to whom it [Page 118] might belong, in case the Will were void. For the heire was rather to be commended, then any way questioned, who forbore to cast the Testators ashes or bones into the Sea, but out of consideration of humane condition, committed them to buriall in a civill way.

7 Of two Heires made upon condition, not perfor­med by one of them. D. 28. 5. 44.

SEmpronius in his Will, made Titius and Caius his Heires, and enjoyned them to build a monu­ment for him, within a certain time; and then added, that if either of them should faile to per­forme it, both should be disinherited: Titius refu­sed to meddle with the estate; Caius alone built the Monument, and asked advice whether he might not hold as Heire to Sempronius, although Titius had not intermedled in the estate, nor joyned in the build­ing of the Monument. Alfenus answered, That no man was bound unto, or debarred from an inheri­tance, by anothers fact; but he that had performed the condition required in the will, although the coheire did not intermeddle, nor joyne with him, ought to enjoy the inheritance.

SECT. II. Of Substitution.

Substitution is when one or more are appointed Heires, in case such as were first named, shall dye before the Testator, or refuse to in­termeddle in his Estate.

1 Of a Substitution, if a Sonne or Daughter shall not be a mans Heyre. D. 34. 5. 13. § 6.

LVcius Titius made his will, and therein or­dained as followeth; If I shall have a Sonne, or a Daughter, he or shee shall be my Heire; if my Sonne or my Daughter shall not be my heyre, then Seius a stranger shall be my heyre. It is questioned, Whether if he have not a Sonne, Seius hath not right to be his heyre toge­ther with his Daughter, or if he have not a Daugh­ter, Seius ought not to be co-heyre with his Sonne? Julianus saies, The Will was not well conceived; For if it was his meaning, that he should not have been his heyre, in those cases, he should have ex­prest it thus; If neither my Sonne nor my Daugh­ter shall be my heyre, then Seius shall be my heyre. It is true, that it might be his intention, That if he had a Sonne, and a Daughter, that both shall be his heyres: and it might be his meaning, that if he had [Page 120] but one Sonne and one Daughter, that Seius should be his coheyre with the Sonne, or Daughter; or that it was his purpose, that if he had neither a Sonne, nor a Daughter, Seius should be substituted as his sole heyre; and he inclines to this opinion, That the Testators meaning ought to be understood, that whether he had a Sonne, or a Daughter, Seius the stranger should not be taken for his heyre, unles he had expresly declared his mind to that purpose.

2 Of a Substitution in case two Sonnes dye without Children, one of them happening to have Children. D. 36. 1. 57. § 7.

SEmpronia having two Sonnes Lucius and Titius, and a Niece named Claudia, made both her Sons her heyres equally; and then commended to their trust, That if either of them should dye before the other, leaving no Children, he should restore his part of the estate, unto the brother surviving; and that if they should both dye without Children, that then her whole estate should come unto her Niece Claudia. Lucius dying first, left a Sonne behind him, Titius afterwards dyed without any Children. It was questioned, Whether his estate ought to de­scend unto the Niece? Papinian answered, That the condition of the Substitution being in these words, If both the Sonnes dye without children, at the first view it might seeme, that Claudia the Niece could claime nothing, because one of the Sonnes dying, left a Sonne; but he saies, if it be better considered, it may be thought absurd, That the condition of the substitution, by which the whole estate was con­veyed, failing, yet the condition happening in part, should not worke something, as to derive the part of him who dyed without children, to the Niece to whom, in case both had so died, she intended the whole estate.

3 Of Substitution of one to be Heyre, in case a Child dyed before the age of tenne, and of another, if before the age of fourteen years. D. 28. 6. 43.

ONe made his Will, and therein ordained, that his Sonne being an Infant, should be his Heyre, and then declared, that if his Sonne shall dye before he accomplish the age of ten years, Titius should be his Heyre, and if he shall dye, be­fore he were of fourteen years compleat, then Mae­vius should be his heyre. It happened that the Son dyed, when he was but eight years old. It was que­stioned whether. Titius alone, ought to be admitted as his substitute, or whether Maevius also were not to be joyned with him, because it was certaine, the Sonne dyed both within the age of ten, and also within the age of fourteen years. Paulus answered, The Father had power to substitute an Heyre unto his Sonne, in case he should dye at any time, before he had compleated fourteen years, and no longer. But it is most reasonable, that he having alotted se­verall times, for two to succeed, by way of Substi­tution, that the time allotted to either, should be understood severally; unlesse it can be plainly shew­ed, that the Testator intended otherwise.

4 Of one Substituted by the Father, to a Son that was Dumb, who afterwards had a Child. D. 28. 6. 43.

MAevius having a Sonne of the age of fourteene years, whom he intended to make his Heyre, in the first place; in re­gard he was dumbe, and could not make a Will, obtained leave of the Emperour to Substitute [Page 122] an heyre to his Sonne, and did substitute Titius; af­terwards the Sonne, who was mute, his Father be­ing dead, married a Wife, and by that Wife had a Sonne. It was questioned, Whether the Substituti­on of Titius were of force? Paulus answered, That it was usuall for the Emperour, to interpret his own grant in the way of favour to any man. But if the Will and pleasure of the Emperour, be taken into consideration, it may be conceived, that his grant was to that effect, only so long, as the disability of the Sonne continued; For if he had given licence to a Father, to substitute to a Sonne who was then madde, all men would think, that the substitution should be void, if the Sonne recovered his witts; for if it should hold notwithstanding, it would prove unjust, as depriving a man of good under­standing, of the power to make a Will. And for the same reason, the Sonne having a Sonne, who pro­perly ought to be his heyre, the substitution ought to be held as disanulled; for it is no difference, whe­ther the Sonne attaine to the ability of making an heyre, or begin to have an heyre whom the Law ap­poynts. Neither is it probable, That either the Fa­ther, or the Emperour, if they had thought on such a case, would have done any thing for the disinhe­riting of the Grand-child.

5 Of one Substituted to the Survivor of two, who both dye at the same time. D. 28. 6. 34.

LVcius Titius had two young children, whom he made his heyres; and substituted Seius to him, that should dye last of the two. It happened that they dyed both at the same time. It was que­stioned; whether the substitution of Seius did hold; [Page 123] and to whom he might be reputed to succeed? Afri­canus answered, That he ought to be understood substituted to both; because he is understood to be last, not only that is after another, but he also, that hath none after him: as on the other side he is un­derstood to be next, not only who is before ano­ther, but he also that hath none before him. vid. 42. D. Eod.

6 Of a Substitution upon severall Contingencies. D. 28. 5. 85.

LVcius Titius made his will after this manner, I doe ordaine, that Seius my brother, shall be the heyre of my whole estate, and if he shall refuse to be my heyre, or, which God forbid, shall dye before he take upon him as my heyre, or shall have no Children, then my will is, that Stichus and Pamphylus my Bondmen shall be free, and equally my heyres. Seius the brother took upon him to be heyre to Lucius Titius the Testator; but when he took it upon him he had no Children. It was que­stioned, Whether in that case Stichus and Pamphylus were not made free, and became heyres to the e­state; because they were substituted, first if he refu­sed, secondly if he dyed before he took upon him as heyre, thirdly, if he had no Children; or suppose they shall not be free, and heyres by vertue of the substitution, Whether some part of the estate, ought not to be conferred upon them? Scaevola answered, That it was cleare, that the Testator meant in the first place, that his Brother should be his sole heyre; and therefore it cannot be thought, that he would have any man joyne, or share with him: Besides he provided so, that in case his Brother should take upon him to be his heyre, the substitution of Stichus [Page 124] and Pamphylus should not take effect, as likewise it should not, if before he had taken upon him to be heyre, he had dyed leaving children behind him; For it was the prudent care of the Testator, so to provide, that not only his brother, but also his bro­thers children should be preferred in the inheriting the estate before his Substitutes.

SECT. III. Of Devising in Trust.

Devising in Trust, is when one is made Heyre to anothers use, and trusted with the estate, after some time to be conveyed unto him.

1 Of an Estate intended to one in trust, descending to his Heyre. D. 36. 1. 46.

SEius Saturninus Admirall of the Brittish Navie, in his Will, made Valerius Maximus Captaine of a Sally, his heyre in trust, re­quiring him to convey over the estate unto Seius Oceanus his Sonne, when he should attaine to the age of seaventeen years. Seius Oceanus dyed be­fore he attained to that age. After his death Mallius Seneca, who was his Unkle, as being next of kin, [Page 125] demanded the estate; Valerius Maximus detained the same, conceiving, that, Seius Oceanus being dead, before he had accomplish'd the age, at which the e­state, by the Will of Saturninus was to be convey­ed unto him, he was not bound to restore it to any other. Javolenus being consulted thereupon, resol­ved, That the estate, left in trust for the good of O­ceanus, belonged to him, to whom the other goods of Oceanus, after his death were due, and appertai­ned; Because for the nearnes of Oceanus his relation to his Father, it might be presumed that the estate was intended simply or purely, not upon conditi­on if he should live so long; and that the time of performance, being prorogued to his age of seaven­teen years, the estate in the mean time was rather, committed to the tuition of Valerius Maximus, then left unto his Sonne upon an uncertain condition; whereby his intention might be made void.

2 Of Maintenance left in Trust, to be raised out of Interest. D. 36. 1. 78. § 12.

CLodius requested his Heyres, to restore to his Foster-child Gaius Maevius, whatsoever should be raised, by selling the third part of his e­state, when he should be fully fifteen years old; and in the mean time, they were desired to maintaine him, out of the profits or Interest of the Mony. The charges of his maintenance, not rising to so much as the profits or interest of the mo­ney; It was questioned, Whether the surplusage were due unto Gaius Maevius when he came to the age of fifteen years? Scaevola answered, That it was his opinion, The Testator intended the [Page 126] whole benefit or profits of his portion should come unto him.

3 Of an Heyre in two Willes taking upon him from the latter, which was voyd in Law. D. 29. 2. 97.

CLodius Clodianus having made a Will legally, and therein appointed Sempronius to be his heyre, did afterwards likewise nominate him his heyre, in a Will which was not made according to Law. Sempronius, conceiving that the latter will was good, took upon him as heyre by vertue of that Will, which afterwards was found to be invalide: the estate growing into question Papinian was of opinion, that Sempronius had renounced the benefit of the former Will, and had no right by the latter. Paulus maintained the contrary, That he which conceived the latter Will to be good, did not re­nounce the benefit of the former.

4 Of cancelling one coppy of a Will, whereof there are more remaining. D. 28. 4. 4.

ONe who had compleatly made his will, cau­sed severall coppies thereof, to be transcribed and to be laid up in the publique Office, where Wills are kept: afterwards he took from thence, one of the coppies, and cancelled it. It was questioned, Whether he had revok'd his will? Pa­pinian was of opinion, That his Will being contey­ned, and appearing entirely in another coppy, re­maining in the Office, it was not revok'd or made [Page 127] voide. Paulus admitts that it might be done with a purpose to dye without a Will: but they who were to succeed in that case, and carry away the estate from the written heyres, ought to prove that he had such a purpose.

TITLE VI. Of Legacies, and of a Reall Legacy.

A Legacy is something due, as given or bequeathed to one in the last Will or Testament of another, and is either a Reall Legacy, or a Legacy, con­sisting in Right, or a Legacy in Trust.

SECT. I.

A Reall Legacy is that which consists in some certain species or body, as a thing moveable, viz. a Bond-servant, a Horse, &c. or immoveable, as a House, or ground &c. or which is determin'd by quantity, viz. by measure, weight, and number, as mony, corne, wine, &c.

1 Of a Bondman Bequeathed, doubtfull between two, to be understood common to both. D. 30. 1. 36.

LVcius, having divers Bondmen, whereof some were so borne, others bought, and of either sort, some were Weavers, gave to Titia: all the Weavers whom he had not given to any other in [Page 129] his will▪ and to Plotia all his Bondmen borne, whom he had not given to any else. It was questio­ned, to whom those did belong, who were both Bondmen borne, and likewise Weavers? Labeo saies, Because it cannot appeare, which Weavers were not given to Titia, unlesse it be known which were be­queathed to Plotia; nor doth it appeare, what Bond-men borne, were given to Plotia: The Bondmen borne, who were likewise Weavers, were excep­ted from neither Legacy, and therefore they ought to be common to both; for in this case it is all one; as if there had been no exception. But if he had be­queathed in this manner, I give to Titia all my Weavers, except my Bond-men borne, and to Plo­tia all my Bond-men borne, except my Weavers, They which were both Bond-men borne, and Wea­vers, had been given to neither of them.

2 Of Error in the designing of Bond-men bequeathed. D. 34. 5. 28.

SEmpronius had two Bond-men, one called Flac­cus a Fuller, and the other Philonicus a Baker; & in his Will he bequeathed to Lucius his Bondman Flaccus the Baker. It was questioned, Whether of the Bondmen were due? Javolenus saies, It must be granted, That, that Bond-man is due, whom the Te­stator intended; but if that cannot appeare, it is to be considered, Whether the Testator did well know the names of his Bondmen, and if he did, that then he was due whom he mentioned, by his proper name, although he erred in his profession; and if he were not well acquainted with their names, then the Baker was understood to be be­queathed, [Page 130] as if he had mentioned his profession on­ly, without his name.

3 Of a flock of Sheepe, or the like bequeathed. D. 30. 1. 21. 22.

IF one bequeath his flock of sheep, or his heard of Cattell; which flock, or heard, after the ma­king of the Will, is increased at the Testators death: It is questioned, Whether more be due, then were at the making of the Will? Vlpain saies, The Legatory hath right to those, which were added afterwards. Pomponius saies, If some sheep or cattell dye, and others be supplied in their places, during the life of the Testator, it is still the same flock, or heard; and if the flock or heard, be deminisht, so that one sheepe, or two only remaine, the Legato­ry hath right thereunto, although it then cannot be called a flock or a heard. As if a house be be­queathed, and is afterwards burnt, the ground whereon it stood is due.

4 Of a Ground bequeathed, enlarged or diminished. D. 30. 1. 24. § 2.

LVcius in his Will bequeathed a Ground called Titianum to Maevius, and afterwards he layed, or added a piece of another ground thereunto. Pomponius saies the Legatary may demand the whole, especially if the piece of ground which was added, were his owne, at the time of making the Will. But if after the Will made, he severd some part of the ground, called Titianum, and added it to another ground, It was doubted, Whether the Legatary had any right to that which was sever'd? Pomponius saith, That which was severed, and added to another ground, belongs not to him; [Page 131] because it ceased to be part of that ground, which was called Titianum: Because the names of grounds, of houses, and the like, are not affigned by nature, but are imposed by men, who are the owners, at their pleasure.

5 Of a Ground bequeathed, there being two of the same name, of different values. D. 30. 1. 39. § 6.

ONe, who had two fields, each of them called the Cornelian field, of different values, be­queathed one of them by the name of the Cornelian field. The Legatary demanding that of the greatest value, and the heyre offering the lesse; Ju­lianus, being consulted, said, That in common un­derstanding the heyre ought to be discharged by tendering that of the lesse value, if the legatary could not prove, that the Testator intended that of the greater.

6 Of a Third part of Goods bequeathed. D. 30. 1. 26.

TItius by his will, bequeathed a third part of his goods to Lucius. It was questioned, Whether the heyre were bound, to deliver the third part in kind, or the value of the third part. Sabinus and Cassius were of opinion, That it was sufficient for him to pay the value. Proculus and Nerva affirmed, Tthat a third part of the goods themselves might be demanded. Pomponius said, That the case of the heyre, is more favourable, then of the Legatary; so that he may chuse, whether he will deliver, part of the goods themselves, or the value of them; which he saies is true, in such goods as may be devided with­out [Page 132] losse; but if they be such as cannot naturally be divided, or being divided, are not usefull, he is bound to give the value.

7 Of Jewels bequeathed, afterwards altered. D. 34. 2. 6.

SEia having made Publius Maevius her heyre, be­queathed to Antonia a Jewell, containing a Pearle, with Emeraulds: afterwards shee took out of that Jewell the Pearle, and Emeraulds, and putting them into another Jewell, added thereunto divers other pretious Stones, by which it came to be of a farre greater value. It was questioned, Whe­ther the heyre might be compelled, to sever the Pearle, and Emeraulds, from the rest, and give them to the Legatary? Marcellus answered, That the heyre ought not to be compelled thereunto; For how, saith he, could that Legacy hold? when the thing bequeathed, doth not remaine in the same kind, but is, in a manner dissolved, and the will of the Testatrix, by the alteration, seems to have beene changed.

8 Of three Hundred Pounds bequeathed, with two Hundred Pounds deposited. D. 34. 5. 13.

LVcius left in trust with Seius two hundred pounds, afterwards in his Will he bequeathed as followeth, I give to Seius, with the two Hundred pounds which I left with him, three Hun­dred pounds. It was questioned, whether three Hun­dred pounds, or five Hundred pounds were due? Iulianus saies, That the summes severally taken, de­clare some thing certain, but as they are joyned in the Legacy, they are something doubtfull, but he [Page 133] was of opinion, that both the summes were due, be­cause they were joyned together.

9 Of a Legacy designed, in summes afterwards spent. D. 30. 1. 96.

AVrelius in his last Will, bequeathed as follow­eth, I will that Pamphila shall receive out of my estate, three Hundred pounds, that is, So much from my Factor, so much which I have in the Garrison, and so much of ready mony, which I have lying by me: he lived many years after the Will was made, and disposed otherwise of those summes of mony. It was questioned Whether the heyre, who received what was sufficient, out of the estate, were bound to pay the Legacy? Iulianus was of opinion, That it was most probable, that the Testator did ra­ther signify unto the Heyre, how the Legacy might be paid, without any inconvenience to his estate, then limit his bequest conditionally, to those sums; and that therefore the three Hundred pound was due to Pamphila.

10 Of a Legacy given to the Wife, of as much as to one of the Heyres, who had different summes. D. 32. 1. 29. § 1.

ONe made his Will, and disposed of his estate, in different proportions to three heyres, and bequeathed to his Wife, as much as to one of his heyres. Quintus Mucius, and Gallus were of o­pinion, That shee ought to have as much, as he that had most; because the summes of those that had lesse, were comprehended in his that had most. Servius and Ofilius were of opinion, That [Page 134] she ought to have no more, then he that had least; because the heyres were charged to pay the Legacy to her; and the words being directed to them, it was in their power, to pay such a part as they thought fit.

11 Of a Legacy, of what came to the Testator, out of another mans estate. D. 32. 1. 29. § 2.

SEmpronius who was one of the heyres of Titius, bequeathed, as followeth, What mony came un­to my hands, out of the estate of Titius, I will that my heyre shall give so much to Seia. It appea­red by Sempronius his books, that he had received an hundred pounds, which the heyre was ready to pay to Seia, if she would secure him, or save him harmles, if any thing should be recovered from him by others, as belonging to Titius his estate, Labeo was of opinion, That he was bound to pay, what ap­peared by the books, to have bin received out of the estate, and that Seia was not bound to save him harmles. Alfenus Varus was of the contrary opini­on; Because, that cannot be said to come to the hands of one as heire, which in respect of that in­heritance may be recovered from him: Alfenus saies, That Servius was of this opinion.

12 Of the same thing twice Bequeathed to the same Person. D. 30. 1. 34. § 2.

SEmpronius in his Will bequeathed to Titius, this white Horse, and to Maevius ten pounds: after-wards in the same Will he againe gave to them, the same Legacies. It was questioned, Whether the [Page 135] heyre, by delivering the Horse to Titius, and the ten pounds to Maevius, were to be freed? Vlpian an­swered, That if the same certain thing, as a Horse, or the like, be bequeathed twice, it can be deman­ded but once; and the heire is discharged, if the Legatary receive, either the thing it selfe, or the va­lue thereof. But if no certain thing, or body, but some what consisting in quantity, as a summe of mo­ny, be so bequeathed, Antoninus Pius the Emperour hath determined, That the same might be paid againe, if by proofe it can be made appeare, that the Testator intended to double the Legacy: and the reason is evident, Because the guift of the same thing, can be made good but once; but the same summe, if it be the Will of the Testator, may be made good oftner. It was thereupon farther que­stioned, If a hundred pounds (being a summe of mony) left in a certain chest, were twice bequea­thed, in the same Will, whether it ought to be twice performed? Vlpian answered, That it ought not, be­cause that hundred pound, was a certain thing, and was of the same condition, as if he had bequeathed a certain Horse, or a certain house. And it is then likewise questioned, If something else besides mony, as five ounces of gold or silver, be bequeathed twice, in the same will, What is due to the Legatary? It is answered, That it is of the same condition as a summe of mony: and it is concluded, that if any thing determined by number, weight, or measure, be bequeathed oftner, If it appeare to be the Testa­tors will, it ought oftner to be performed.

12 Of the same Legacy given in severall Wills. D. 31. 1. 66.

MAevius made Sempronius his Heyre, and gave a moyety of a certain ground to Titius conditi­onally if he married Lucia. Sempronius likewise made his Will, and gave to Titius, a moyety of the same ground, upon the same condition. It was questio­ned, What was due, the condition being perfor­med? Julianus saies, It may be conceived, That the same moyety was intended in both Wills; but it is not credible, that Sempronius would have that be­come due by his Will, which was due before (by the Will of Maevius). And although, it may be objected, That by the constitution of the Emperour, it is de­clared, that if the same thing be twice given it is sufficient, if it be once performed; It may be an­swered, That, that constitution speaks of that, which is twice given in the same will, not in severall Wills: Againe, If a man bequeathed what he owes, it is reputed no Legacy in Law, unlesse there be something more in the Legacy, then was in the debt; and if the same thing only be given, upon the same condition, nothing at all accrues thereby to the Legatary.

13 Of Legacies given contrary to a former Declaration in the Will. D. 32. 1. 22.

ONe in the beginning of his Will, declared, That if therein he bequeathed any thing twice, to the same man, it should be but once performed. Afterwards, in the same Will, he wit­tingly gave to the same man severall Legacies. It was questioned, Whether they were due? Hermogeni­anus answered, That if he had said, he repented of the former Declaration, and thereupon willed, that the same man should have severall Legacies, they ought to be performed; Because the latter declara­tion of his Will, is of more force then the former, and no man can in his Will, make a Law to him­selfe, but that he may recede from the same.

SECT. II. Of Legacies consisting in right.

A Legacy consisting in Right, is that which hath its existence from Law; as in respect of Persons, Freedome, and Power to choose &c. Or in respect of things; as the use, and pro­fits of something, &c. Or in respect of Obli­gations and duties; as Annuities, Debts, &c.

1 Of Freedome bequeathed to two Bondmen, if they remained with the Testator at his death. D. 32. 1. 29. § 4.

LVcius, who had two Bondmen, called Sti­chus and Dama, in his Will provided thus, If Stichus and Dama at the time of my death shall be my Bondmen, Then I will, that Stichus and Dama shall be free men, and have a certain ground between them. Labeo was of opi­nion, That if either of them, in his life time, were made free, or sould, neither of them should be free, nor have this Legacy. But Tubero affirmed, That he who remained his Bondman, at the time of his death should be free, and have the Legacy: and Ja­volenus [Page 139] said, that the opinion of Tubero, was the more consonant to the Testators meaning.

2 Of the Choyce of two things of severall names gi­ven, there being two of one name, of severall values. D. 34. 5. 1.

SEmpronius bequeathed to Titius, his ground called Maevianum (because it was bought of Maevius) or his ground called Seianum (which he bought of Seianus.) The ground which he bought of Maevius being of large extent, was divided into two parcels, whereof one was called Maevianum the great, and the other Maevianum the lesse. It was questioned Whether Titius, having power to choose which he pleased, of that which was called Maevianum, or Sei­anum, might likewise choose as he pleased, either that which was called Maevianum the great, or that which was called Maevianum the lesse? Papinian an­swered, That it was to be considered, what propor­tion those two grounds held, with that which was called Seianum; and if the yearly value of the greater Maevianum, did but equall the rent of that which was called Seianum, he might make choyce of the greater; but if that did farre exceed, and the value of Maevianum the lesse were equivalent, the lesser only was left unto his choyce.

3 Of the Choyce of a Legacy, not to be varied. D. 33. 5. 20.

TItius in his Will appointed, that Lucius should make choyce of some part of the furniture of his Dineing roome, as he should think fit. Lu­cius taking a view of all the furniture, signified that [Page 140] he then made choyce of such pieces: Afterwards, be­fore he had received the things, of which he had made choyce, he declared, that he would have some other things. It was questioned, Whether he had power to vary, having made his choyce? Labeo an­swered, That he had not power to vary; because all the power of his election was determined in the first choyce, the property of the things chosen being invested in him, as soon as he had signified his as­sent.

4 Of a Legacy of Bonds, to be understood, as when the Will was made. D. 32. 1. 34. § 1.

MAevius made his two sonnes Titius and Gaius his heyres, and by way of speciall Legacy, bequeathed to Titius twenty of his Bonds, which he should make choyce of. Afterwards he suffered Titius, to mannage his busines, for the space of ten years, before Maevius his death; in which time Titius, out of an hundred old debts of small summes, contracted new debts by bond, for greater summes, so that almost the whole estate, was redu­ced into twenty bonds. It was questioned Whether he might make choyce of those twenty bonds? Scae­vola answered, He ought to make choyce of no o­ther, but such, as the Testator had, at the time of making his will.

5 Of a Debt remitted by way of Legacy. D. 34. 3. 28.

TItius in his Will, declared, whatsoever Seius owed unto him, should be remitted, by his heyre. It was questioned, Whether that only were remitted, which was due to the Testator, at the time of making the Will, or that also, which aftewards grew due for the use, and interest of the mony he owed? Scaevola answered, That he was of o­pinion, that whatsoever was due by occasion of that debt or obligation was remitted.

6 Of an Annuall payment to a City. D. 33. 1. 6.

MAevius by his last Will, gave an Annuall summe of mony, to the City where he dwelt; to maintaine yearly some publique exerci­ses, which he would have ordered by his heyres: his heyres dying, their successors refusing to pay the annuall summe, because the heyres were dead, who were appointed to order the publique exercises; It was thereupon questioned, Whether, in regard he had mentioned his heyres to that purpose, it was his meaning the Legacy should be temporary during their lives, or perpetuall to continue after their deaths? Modestinus answered, The Legacy was per­petuall, to be paid unto the City.

7 Of an yearly Legacy to the Officers of a Church. D. 33. 1. 20.

ATtia, who had procured a faire, to be kept yearly neere her house, in a ground belong­ing to it, charged her Heyres, after her death to pay out of the rents of that house, and the profits arising by the fayre, ten shillings every fayre day, to the Priests, Sacrists, and Officers of a certain Church. It was questioned, Whether the Legacy were due only to the Priests, Sacrists, and Officers, who were at that time, when the Will was made, during their lives, or to be continued also, to their Successors? Scaevola answered, That the Officers names were u­sed, but the Legacy was to be understood intended to the Church; and that it was to be paid, as long as the fayre continued.

8 Of an yearly Legacy given to uses afterwards disallowed. D. 33. 2. 16.

LYsimachus, to preserve his Memory with posteri­ty, gave unto the Citty where he dwelt, ten pounds yearly, to be raised out of the rents of certain houses, for the setting forth of some pub­lique shews, which afterwards were prohibited in that place. It was questioned, What should become of that Legacy? Modestinus answered, That where­as the use, for which the Legacy was given, could not be observed, It was not fit that the rents so be­queathed, should accrue unto the heyres of him who gave the same; and therefore the Magistrates of the City, together with the heyres, should consi­der [Page 143] and agree upon some other use, whereunto that Legacy might be converted, so that the Testators memory thereby might be preserved.

9 Of a Legacy given to uses, no summe being exprest. D. 31. 1. 30.

ONe in his last will bequeathed as followeth, I give to the Commonalty of Gravistan, for re­pairing the high way, which is in their Ter­ritory, so farre as to the High-way leading to Aure­lia. It was questioned, Whether the Legacy were good, no summe being named, or set downe? Juven­tius Celsus answered, That the words were some­thing imperfect, because no summe was set downe; yet it might be gathered, that so much was inten­ded, as was sufficient to doe the worke, If the Te­stators mind be not understood otherwise, in respect of the smallnes of his estate; in which case the Judge is to determine, what is fit to be done.

10 Of something in one ground, being given to be imployed in another. D. 33. 1. 12.

GAius Seius, having two Meadows one in a Vil­lage called Pontia, & the other in a Hamlet cal­ed Lucia, gave that in Pontia to Maevia, and that in Lucia to Seia: and afterwards he declared, That it was his will, That a quantity of Reed, and a quantity of Sallowes, should be received yearly out of the Meadowe in Pontia, to be bestowed, and imployed in the meadowe of Lucia. Maevia, who had the meadowes in Pontia, for some years allow­ed the Reed, and the Sallowes to Seia, who had the meadowe in Lucia: afterwards Seia being dead, It [Page 144] was questioned, Whether the Legacy ought any lon­ger to be performed? Paulus answered, That there was no service created by the Will, neither perso­nall for the party to pay during her life, nor reall to be paid out of the ground, but only an yearly Lega­cy, which determined with the life of the party to whom it was given.

11 Of a Desire that a thing bequeathed, be not alienated, to a Stranger. D. 32. 1. 38. § 4.

IVlius Agrippa, a Centurion of the first ranke, desi­red or left order in his Will, That neither his house, nor his Garden, in the Suburbs, should be sold, or alienated by his heyre, which was his own daughter, who left her daughter, and the Te­stators Grand-child her heyre, which dying, left the estate by her Will to a stranger. It was questio­ned, Whether the stranger should inherit the same, or rather Julia Agrippa, unto whom Julius Agrippa, the first Testator was Unkle? Scaevola answered, That the provision in the Will being no more, then a bare precept, or desire, he saw nothing, but that a stranger might inherit the house and garden.

SECT. III. Of Legacies in Trust.

A Legacy in Trust is, when some thing is be­queathed to one to the use of another; to be re­stored after some time, or after his death to whom it was first bequeathed.

1 Of a Legacy left in Trust, Payd before the time appointed. D. 33. 1. 15.

TItius having put a hundred pounds in trust, into the hands of Gaius, in his Will appointed, that after ten years, Gaius should pay the same to Publius, who within few daies after demanded the mony, and receiving it, wasted it foolishly, and then dy­ed. It was questioned, Whether the heyre of Publius, might not sue Gaius for the same, as being not paid, according to the will of the Testator? [Page 146] Javolenus answered, If the Legacy were ordered to be paid after ten years, out of respect to the Lega­tary, as being not fit to receive, or unlikely to keep the same, and the Trustees paying it sooner, were occasion that it was wasted, he is by no means to be excused: but if the payment were deferred in fa­vour of the party trusted, that in the mean time, he might make use thereof, there is no cause why he should be sued, he having done more for the Lega­tary, then he was bound to doe.

2 Of Persons, to whom a trust was intended, to be respected, in order as they are named. D. 31. 1. 77. § 32.

MAevia by way of Trust, requested her Hus­band, that if any of his Children survived him, he would leave certain grounds, which had been her own, unto them; and in case no Chil­dren should survive him, to his or her kindred, or to some of their freed men. It was questioned, Whe­ther, the Husbands Children failing, he might make choyce to whom amongst his, or her Kindred, or Freed-men, he would bestow these grounds? Papi­nian answered, That it did not belong to him, to make choyce, but that he ought to have respect un­to the persons, according to the order, wherein they were mentioned, in her request.

3 Of a Legacy, given for Thirty years, not to be de­termined by death of him, to whom it was given. D. 33. 1. 18.

LVcius Titius made Sempronius his heyre, and gave a ground, worth twenty pounds yearly, to Mae­vius, and willed that he should pay to Sempro­nivs yearly five pounds, from the time of his, the Testators death, untill Thirty years were expired. Sempronius dying after ten years, It was questioned, whether the five pounds yearly ought to be paid, for the remainder of the time, to the heyres of Sempro­nius? Scaevola answered, That it ought to be paid unto them, unlesse Maevius could make it appeare, that the Testator had relation to thirty years only, in case Sempronius should live so long.

4 Of a Legacy given to one at the age of fourteen, being voyd if dyed before. D. 36. 2. 22.

A Legacy was given to Titius, when he should be of the age of fourteen years; he dyed be­fore that age; It was questioned, whether the Legacy were due unto his heyres, When that time was come? Pomponius answered, That no right past unto the heyres, by his death, because the Le­gacy depended not only upon a time, but it was un­certaine, whether that time should happen; where­by the Legacy became conditionall, as if he had said, If he shall live to the age of foureteene; and he that ceases to be, can never be said to be of that age: nei­ther is there any difference, whether it be said, If he attaine, or when he attains to such an age; in regard [Page 148] the former, by way of condition, declares the time, the other by a time makes a condition; in both words a condition is implyed.

5 Of a Legacy to be paid upon Marriage, not to be paid before she be Twelve years old. D. 39. 2. 30.

ONe gave a Legacy to his Niece, to be paid un­to her as soone as she should be Married; the Niece made a shift to get a Husband, before she was twelve years old, and demanded her Legacy. Labeo said, That the heyre might hold his hands, untill she was past her Pupillage; because She could not be held to be married, whom the Law did not hold fit, to have an husband.

6 Of a Legacy given to one, who fell dangerously sick, transferr'd to another. D. 34. 4. 31. § 4.

CAecilia in her last Will, gave a portion to Pris­cillianus her sonne; and afterwards, understand­ing that he was extreamly sick, and not like­ly to outlive her, declared, That in consideration thereof, she thought fit, that what she had given un­to her sonne Priscillianus, should be divided betwixt her Husband Januarius, and her sonne Marcianus: she being dead, and her Will publish'd, Priscillianus was still alive, yet dyed, not long after. It was que­stioned, Whether the portion were due, to the Fa­ther in Law, and the Brother, or to the heyre of Priscillianus? Scaevola answered, That he was of opi­nion, that if he dyed of the same sicknesse, or infir­mity, it was due to them: Whence it is gathered, that if he had recovered, and dyed of another sick­nesse, [Page 149] it had been due unto the heyre of the sonne.

7 Of a Legacy given to, or taken from an uncertain Person. D. 34. 4. 3. § 7.

SEmpronius having two friends, whose names were Titius; In his will gave a House to Titius, and a Ground to Titius. Afterwards in that same Will, he declared, That what he had given to Titius should not be performed. Vlpian saies, If it doth not appeare whose Legacy he would make voyde, both remaine good; as if one having given a Legacy to Titius, when there be two of that name, if it doth not appeare, whom he intended, it is due to nei­ther.

TITLE VII. Of Performance and paiment, and of Reall Perfor­mance.

Performance and Payment, are the means where­by one is discharged, or freed from what he was obliged or bound unto; and is either Re­all, Legall, or Reputed.

SECT. I. Reall performance is; when the very thing which was due is Really performed or paid.

1 Of Performance of something which is uncertaine. D. 45. 1. 106.

HE, who covenants to have a ground by such a name, (when there be divers grounds of the same name without any other note of distinction) to be given unto him, covenants for a thing uncertain; saies Ja­volenus, [Page 151] That is for such a ground as he who made the promise shall think fit to give; and it remaines in his discretion which he will give, untill that which he intended be delivered.

2 Of Performance of something or the value thereof. D. 23. 3. 10. § 6.

IF some things or goods be given in Dower, and an estimation of the value thereof be made; and it be afterwards agreed, that if the Marriage hap­pen to be dissolved, the things or goods themselves, or the valew of them shall be restored. Vlpian saies, If it be added, Which the Woman shall choose; it shall be in her power to make choyce, either of the goods or of the value; or if it be said, As the Hus­band shall like; it shall be at his choyce which he will restore: but if nothing be added concerning the choyce, yet it shall be in the Husbands power to restore the one or the other: For when one thing or another is promised, it is in the debtors discre­tion which he will make good; but if the things or goods be not extant, then the value, without all que­stion, ought to be restored.

3 Of Restoring what was borrowed, when the value thereof is mutable. D. 12. 1. 22.

ONe lent unto another, twenty Hogsheads of Candy Wine, to have as many repaid; which being not done, or performed, a sute was commenced for the same. The value, or price of those Wines being mutable; It was questioned, At what value the Wines to be restored, ought to be [Page 152] estimated, whether according to that which was the value, when they were delivered, or that which was the value, when they were sued for, or that which might be, when they should be adjudged? Sabinus answered, That if there were a time appoin­ted, for the repaiment of those Wines, the value was due according to that time; but if there were no time appointed, the value was to be allowed, as it was when the Wines were sued for. The like was questioned, If the value or price were different, in respect of severall places: And it was likewise resol­ved, That if any place were agreed on, the value of that place was due; but if no place were assigned, the value ought to be paid, which was currant in the place where the Wines were demanded.

4 Of one who promised to give a Bond-servant in one Place, or to pay Ten pounds in another. D. 13. 4. 2. § 2. & 3.

IF a man be bound to pay, or performe something, at a certain place; if he be sued for the same else­where, the Judge had power to take into conside­ration, and give allowance for so much as it con­cerned the Debtor, rather to have performed, or paid it where it was due, then where it was deman­ded: Whereupon it is questioned, If one hath pro­mised to give a certain Bondman at Capua, or to pay ten pounds at Ephesus, Whether he, to whom the promise was made, may not sue in one of those pla­ces, without respect to the other, or to any advan­tage, which the Debtor might have in making his choyce? Scaevola answered, That some things which are tacitely reserved in promises, are not alwaies in [Page 153] the Debtors power: What he will performe in such a case is left to his discretion, but whether he will performe any thing at all, is not: and therefore to the purpose, He who promised, or undertook to doe or performe something at Capua, or at Ephesus, if it shall be left to his discretion, where it shall be re­quired of him, it may happen, that he cannot be su­ed in any place; For as often as it shall be required, in one place, he may referre himselfe to another, whereby it may come to passe, that it shall be in his power, whether he will performe any thing at all: and therefore he give a generall rule in such cases, That the Creditor may make choyce, where he will demand, and the Debtor where he will per­forme or pay, provided it be done, before any de­mand made; and therefore when the performance of severall things, is referred to severall places, of necessity it followes, that the Creditor having the election of the place, by consequence hath the ele­ction of the thing, in respect of the place. Otherwise, if you allow the choyce to the Debtor, you deprive the Creditor of any action or remedy.

5 Of the Effect or Construction of Payment, when one payes a summe due in severall respects. D. 46. 3. 1. 2. 4.

LVcius Titius owed to Gaius Seius severall summs amounting to ten pounds, in severall respects, and of different consequences. He paid ten pounds, which was accepted, but not for any parti­cular debt. It was questioned, To what debt it might be accounted? Vlpian saies, It was in the discretion of the debtor, to determine for what debt he paid it, & it shal be understood to be paid as he determind; be­it [Page 154] is in his will to declare the condition of the pay­ment, but if he doe not declare, or determine for what debt he paid it, it is in the discretion of the Creditor, to put it to account of what debt he pleas­eth, so that he put it to the account of such a debt, as, if it were his own case, he would have first paid; Because, it is most agreeable to equity, that the Cre­ditor should so deale with the debtor, as he would have been dealt withall himselfe: And this ought to be done, when he receiveth the mony, so that it may be free for the Debtor, not to pay, as to the Creditor not to receive what is tendered, if either of them intend the payment in another respect: But if at the time of paiment nothing be declared on either side, it shall be understood to be paid, for that debt, the consequence whereof is most prejudi­ciall to the Debtor; as, for a mans own debt, rather then for that, for which he is bound, as a surety for another man; for that which is under a penalty, ra­ther than for that which is due simply: but if the debts be of equall consequence, it shall be under­stood to satisfy that debt which was first contra­cted.

SECT. II. Legall Performance, or payment, is when that which was due is tendred according to Law, or is Legally remitted.

1 Of Mony due, Tendred within a short time after it was agreed to be paid. D. 45. 1. 135. § 2.

SEia at the request of Lucius Titius bought certain Gardens convenient for him, and covenanted with him, that when she should receive the monies, which she had laid out, with the interest for the same, she should assigne unto him all her right in those Gardens; And, im­mediatly after, it was agreed betwixt them, That be­fore the first of Aprill following, Lucius Titius should pay unto her the whole summe, and receive the Gardens. Before the first of Aprill Lucius Titius tendred and paid unto her a good part of the mony laid out, and the interest, and within a short time after that day, he offered himselfe ready to pay the rest, which she refused to receive, and still refuseth. It was questioned, Whether he, having in that man­ner offered himselfe ready to make payment of what was agreed upon, might sue her to assigne over unto him the Gardens? Scaevola answered, That he might, [Page 156] if he offered himselfe ready to make payment, in a short time after the day appointed, in case she had received no prejudice by his failing at that time; the consideration whereof belonged to the cognizance, and determination of the Judge.

2 Of Delay made after a tender of Mony which was due. D. 19. 1. 51. § 1.

ONe bought a ground upon condition, That he paid his mony for it, upon the Calends of Ju­ly; and on that day, he who sold the Ground, was some way the cause that the mony was not paid. Af­terwards the buyer might have paid his mony, but neglected it. It was questioned, Whether the seller might insist upon the breach of the condition? La­beo said he might, Because in the bargaine of sale it was intended, that whensoever it should happen by the desault of the buyer, that the mony was not paid, he should incurre the penalty of the condition; and Javolenus is of opinion, that it is true, unlesse he who sold the ground used some fraud or de­ceit.

3 Of Mony due, tendered to the disadvantage of the Creditor. D. 45. 1. 122.

ONe, who had borrowed mony at Rome, to be paid in a Province farre remote, after three months, and had undertaken the payment in that place, within a few daies after at Rome repay­red to the Creditor, and before witnesse signified, that he was then, and there ready to pay the mony, [Page 157] deducting▪ what he had formerly given to the Cre­ditor, in consideration of the use of his mony for such a time. It was questioned, in regard he had tendered the entire summe, which he was obliged to pay, Whether the Creditor might not, at the end of the three months, demand the mony, where it was undertaken to be paid? Scaevola answered, It was in the power of the Creditor, at the time ap­pointed to demand the mony, where he had cove­nanted to have it paid.

4 Of Debts remitted in case the Creditor should Dye. D. 39. 6. 18. § 2.

TItias being sick, and having in her custody, bonds for debts, due unto her from Septicius and Maevius, with an intention to free them from those debts, delivered the bonds to Ageria, & required her, in case shee her selfe should dye, to de­liver them up to Septicius and Maevius; but in case she should recover, to restore them to her againe: Titia dying, Ageria as she was desired, delivered up the bonds to Septicius and Mevius. Laelia daughter of Titia, and her heyre, questioned Ageria for those bonds, and threatned to sue Maevius and Septicius for their debts; but Julianus advised them, that if she sued, they might plead in Barre the act of Titia, and except against her unjust vexation.

5 Of Debts discharged by way of Legacy. D. 34. 3. 28. § 1.

TItius having made his will, therein bequeathed to some debtors, the release, or discharge of what they owed. Afterwards, breaking up that Will, and reviewing it, he made another, in which he re­peats the former bequest, in these words, And to whomsoever I have bequeathed any thing in that Will which I brake open, I will have it stand good, as all things else which were written therein. It was questioned, Whether the estate being setled ac­cording to the latter will, the debtors who were freed, in the former Will, might not prevaile to be discharged from certain summs, for which they grew indebted after the former Will was made; and, if the heyres should demand those summes, Whether they might not except against their unjust dealing? Scae­vola answered, That they were not discharged from those summes.

6 Of a generall Discharge by way of Legacy. D. 34. 3. 31. § 4.

ONe in his will wrote as followeth, Moreo­ver I bequeath, and will have granted to Gaius Seius, who hath most amply deserved from me, that nothing be demanded of him, or his heyres in any respect, whether it be due by writings, or upon account, or received as loane, or underta­ken by way of suretyship. It was questioned, Whe­ther that only were bequeathed and remitted, which was due at the time when the Will was made, or whether that also were not remitted, which might afterwards accrue to the advancement of the debts by way of use or interest? Scaevola answered, That, [Page 159] as the case is proposed, It seemed that it was his in­tention by that Legacy to acquit and discharge him of whatsoever he owed.

7 Of a Personall Discharge declared in a Will. D. 34. 3. 20.

ONe in his Will declared as followeth, My Will is that Aurelius Sempronius my brother be not sued, in respect of any debt which he oweth to me; and that nothing be demanded of him, either for the principall or interest, as long as he lives: and farther I acquit the House and Posses­sions called Caprelata engaged unto me. Modestinus answered, That if the Debtor himselfe were sued, he had a just Plea by way of exception to defend himselfe; But the same would not hold in the per­son of his heyre, if after his death he should be sued for the same things.

SECT. III. Of Reputed performance and Payment.

Reputed Performance is, when that which was due, without delay, or fault of the Debtor, cannot be performed; as when the thing due is perished, and when it ceases to be in Com­merce.

1 Of Monies received to another mans use, and Lost without imployment. D. 3. 5. 13.

PAulus in his own person puts a case thus, A debtor of mine who owed me fifty pounds died; I adventured on the Admi­nistration of his estate, and laied out upon it ten pounds. Afterwards having put to sale some of his goods, I raised a hundred pounds, and put it up safe in a chest; This mony without any fault of mine was lost: The heyre of the Debtor appearing, and taking upon him the rest of the estate, a questi­on grew, Whether I might demand the fifty pounds, which the deceased owed me, and the ten pounds which I laid out? Julianus answered, The resoluti­on of the question, depends upon this considerati­on, Whether I were not in fault, in not employing [Page 161] the mony, as in paying my selfe, and other Credi­tors; For in that case I ought, not only to loose my fifty pounds, but also to make good the rest, unto the heyre, only deducting the ten pounds, which I laid out. But if there were just cause why I did not dispose of the mony, that then I ought to recover my debt of fifty pounds, and also the ten pounds which I laid out upon the estate.

2 Of Goods lost by one who was fairely possest of the estate. D. 5. 3. 18.

ONe, who was in possession of an Estate, or In­heritance, selling goods, delivered the mony to a Scrivenor, in whose hands it was lost. It was questioned, Whether he were answerable for it, having no part thereof? Labeo was of opinion that he was answerable; Because at his perill he tru­sted the Scrivenor. But Octavenus said, There could be no more required of him, then to passe over to the true heyre, his right of Action. Vlpian said he liked Labeo his opinion; in case that he, who delive­red it, were privy that he possest it unjustly: but if he were fairely, and lawfully possest thereof, Octa­veous his judgement was rather to be followed.

3 Of things perishing in one mans possession, which might have perisht in the possession of the true owner. D. 5. 3. 40.

PAulus saies, That whereas the Emperour Ha­drian ordained, That if any one in possession of an Inheritance were sued, that he should make good, what was extant, at the time when the sute was commenced; It may fall out sometimes to be very hard, For after a sute is commenced, it may happen, that Bondservants, Beasts, or Cattell, may dye naturally. It is true, that Proculus holds it to be just, when particular things are sued for; But Cassius holds the contrary, and Proculus his opinion is right, if it be held of an unlawfull possessor, and Cassius his is so also, touching one who is lawfully possest. For saies Paulus such a possessor, ought not to make good, things which perish naturally, nei­ther ought he to be enforc'd, for feare of such dan­ger, by declining a sute, unadvisedly to relinquish his right.

4 Of the hazard of Monies due, lost after a tender made. D. 46. 3. 72. & 102.

IF one, who owed ten pounds, made tender thereof to the Creditor, and he without any just cause refused to receive it; and afterwards the Debtor, without any fault of his, lost the mony; Marcellus said, If he be sued for the same, he hath a just exception, although, it being afterwards deman­ded, he paid it not; Because it is not Equity that he should stand bound, the mony being lost, who had [Page 163] been freed, if the Creditor would have received it; wherefore, that ought to be held as paid, which the Creditor, out of his own fault, neglected to re­ceive.

5 Of the like Case. D. 46. 3. 39.

ONe, being ready to pay mony to his Creditor, by his appointment, left it sealed up in baggs, with a Gold-smith, untill it might be tryed. Mela saies, The hazard thereof belongs unto the Creditor, which Africanus agrees to be true; yet so that it be considered, whether the Debtor were any way in fault, that it was not presently tried, For then the case were alike, as if one was ready to pay mony, when the Creditor for some reason could not receive it: In which case it is not alwaies at the ha­zard of the Creditor; for, What if it were tendred at an unseasonable time, or in an unfit place? And a­greeable to this he saies, it is, that if the buyer and seller of a commodity distrust each other, and leave in trust with a third person, the buyer his mony, and the seller his commodity, the losse of the mony shall be at the hazard of the buyer, if he made choyce of the person, with whom it was left, and so shall the commodity also; because the bargaine of sale was compleatly made.

6 Of the hazard of Losse, where one thing, or another is promised. D. 18. 1. 34. § 6.

IF one buy a Bond-servant in this manner, It is agreed, that Stichus or Pamphilus is sold unto me. Paulus saies, it is in the power of the Seller, to [Page 164] make good which he pleaseth; as when one cove­nants for one thing of two in the same manner: but one of the two being dead, that which remaines ought to be given; and therefore the hazard of the first belongs unto the seller, of the latter to the buy­er. But in case both dye together, the price of one shall be due to the seller; for one of the two lived some whiles at the hazard of the buyer: the same is to be said, although it were at the buyers discretion, to take which he pleased, if that only were left to his discretion, to take as bought, whether of the two he pleased, and not so that he might chuse, whether either of them should be bought or not.

7 Of a thing undertaken to be performed, which after-wards ceases to be in commerce. D. 45. 1. 83. § 5.

WHen one promised, or undertook to give something which was of common use, or Stichus when he was a Bond-servant, he is discharged of his obligation, if, without any act of his, that thing becomes dedicated to holy uses, or that bondman becomes a freeman; yea Paulus af­firmes farther, That if afterwards by lawfull means, the thing consecrated became to be in commerce, or of common use, or the Bond-man from a Free-man became againe to be a Bond-man, the former obli­gation shal not be reviv'd; because in this case it doth not hold, that the cause ceasing why it could not be given, it may now be given. For although he, who undertook to give a shippe being the owner there­of, if he take it in pieces, and out of the same timber, and planks, build it againe, begins to be obliged as before; because it is now the same ship. And although [Page 165] to the same purpose, that concurres which Pedius writes, viz. If I covenant to have a hundred vessells of wine, to be delivered unto me out of a certain ground, I have liberty to exspect, untill that ground may yeeld so much; so that if the ground yeelding so much, without the fault of him who undertook the performance thereof, it perisheth, I may exspect a gaine untill it yeeld sufficient, that what was under­taken may be performed: and that in these cases ac­cording to the alterations of the things, the obliga­tion may cease, and be renued againe. But the mat­ters in the case proposed, as of a thing becoming consecrated, and of a Bond-servant being made free, or of a different condition; Insomuch that to make promise of a consecrated place, when it shall prove to be prophane, or of a Free-man when he shall be­come a slave, is not admitted by Law; because in their present condition they are not liable to any such obligation, and those things only are subject thereunto, which in their own nature may be per­formed at the present: and it stands not with civill, nor naturall respect, to attend the fall, or misfor­tune of a Free-man. For we properly trade and traffique in those things, which are in common use, and may instantly be reduced under our power. As touching Wines, when they are undertaken to be given, no particular thing, which may faile, but something in generall, which may at one time or o­ther be performed, is undertaken. And for what is instanced in a ship, which is a particular thing; it is to be understood, That if it be taken in pieces, with a purpose, that out of the materialls thereof, some other thing should be framed, although the purpose being changed, it be rebuilt againe, yet the first ship ceases to be, and that which is now built is another ship: but if the bords and planks of a ship, [Page 166] be taken a sunder, with an intention to repair the ship, the ship ceases not to be what it was; and the bords and planks being put together againe, it be­comes the same ship; as when the timber and mate­rialls of a house are taken downe, with an intenti­on to be set up againe, they still belong to the house; unlesse they be taken down to the very floore, and then set up againe, for in that case it may be reputed another house.

PART II. TITLE I. Of Common and Ordinary Judicature.

Iudicature by way of Common and Ordinary pro­ceedings is, when Causes of Common Right, are tried, and determined by ordinary Iudges, in a Legall and usuall way; wherein are considerable, 1. The Persons, 2. The Proofes, 3. The Sentences.

SECT. I. Concerning the Persons, as Judges, Parties, Councells, &c.

1 Of a Minor proceeding as a Judge. D. 42. 1. 37.

A Question was made, Whether a sentence was good, which was given by one, as a Judge, who was under the age of twenty five years? And it seemed to some, That it much consisted with Equity, that the sentence [Page 168] should be maintained, unlesse he were under the age of eighteen years. Vlpian said, That if in such mi­nority, he sustained the place of a Magistrate, his proceedings ought not to be disliked: Or if he were chosen a Judge, by consent of those, who knew he was not of perfect age, It may be well maintained, that the sentence was good; and therefore if a Mi­nor, being Praetor or Consul, pronounce a sentence, it shall be of force; For the Prince who conferred the Magistracy on him, hath enabled him thereun­to.

2 Of Judges having Jurisdiction, in Causes of a certain Value, or Summe. D. 2. 1. 11.

SOmetimes Jurisdiction, or Conusance, is grant­ed and limited to causes of a certain quantity, as under the value of five pounds. It is questio­ned, If one man at the same time, commence divers suits, before the same Judge, so limited, which be­ing taken singly, are within his Conusance, but ta­ken altogether are beyond it; Whether they may be determined by the same Judge? Sabinus, Cassius, and Proculus, were of opinion, That they might: and their opinion was confirmed, by the resolution of Antoninus the Emperour. It was also questioned, If two persons have causes of Suit one against another, one for a greater, the other for a lesser summe; Whether he that sues before a superior Judge, in respect of the greater, may be reconvented before an inferior Judge, in respect of the cause of a les­ser summe? Vlpian said, That both the causes were to be determined before the Judge that hath Co­misance [Page 169] of the greater summe; That it be not in the power of a contentious adversary, to draw another from his proper Judge. Thirdly, it was questio­ned, If severall persons, claime distinct interests in the same thing, as in a Suit to divide a common e­state, or to set out parts, in a common ground; Whether to the poynt of Jurisdiction, the particu­lar interests shall be considered singly, or the whole businesse? Ofilius, and Proculus were of opinion, That the particular interests were considerable; be­cause every one sues for his own part. But Cassius, and Pegasus held, that the whole businesse was to be respected, because the whole is brought into questi­on: and it may fall out, that the whole may be ad­judged to one particular. And Vlpian saies, That this opinion is more probable.

3 Of alteration of Judges, appointed to heare the same cause. D. 5. 1. 76.

THe case was put, Whether the alteration of the persons, doe not alter, the Judicature, or Court; As for example, a Commission was granted to five persons, to heare and determine a cause; and the party sued, bound himselfe with sure­ties, to performe the judgement of the Court: the cause depending, some of those Judges dyed, or were discharged, and others were appointed in their roomes; Whether he stands bound to performe the sentence, given by the Judges newly appointed, and the rest? Alfenus answered, that the same judicature continued, not only if one, or two were changed but if the whole number of Judges, at severall times, [Page 180] were altered; and saies, it holds not only in this case, That the thing continues the same, although the parts be changed, but in many other bodies; For it is held the same Legion, or Regiment of Souldiers, although many of the first be gone, and others re­cruited in their roomes: and the people of a Coun­try, are held the same, which it was an hundred years since, although none of that time remaine: And it is the same ship still in reputation, although it hath bin so often repair'd, that there is not a plank or a bord left, into the place of which, there hath not been some new piece added: Nay, saies he, If any should suppose, That by the alteration of the parts, the whole were not the same, it would fol­low by the same reason, That we our selves should not be the same men we were some few years since; Because as the Philosophers affirme, The Atoms or invisible parts of which we are compos'd, doe daily wast, and spend, and others from abroad accrue in their steads; and thereupon concludes, that were the same species, or forme continues, the same thing or body still remaines.

4 Of Departure out of a Jurisdiction, after a Suit commenced. D. 2. 1. 19.

A young Woman living at Bononia, was sued before the Judge of that place, and sentence there was given against her. Afterwards she was married to a Husband, who lived at Mutina out of that jurisdiction; It was questioned, Whether the Judge of Bononia, could put the sentence in execu­tion? Vlpian answered, That he might; because the sentence was given before the Marriage: Yea, he saies farther, That he is of opinion, that he might [Page 181] doe as much, although she had been married at any time, after the cause began to depend before him.

SECT. II. Of Proofes to be made in Or­dinary Proceedings.

1 Of Proofes lying on the Desendants part. D. 22. 3. 12.

TItius gave fifty pounds to Gaius in his Will; afterwards he gave the same summe to him in a Codicill. It is considerable, whether he intended to double the Le­gacy given in the Will, or only intended but one fifty pounds, and mentioned it in his Codicill, not remembring, that he had put it downe before in his Will. It was questioned, On whose part it lay to prove the intention? Celsus said, At the first sight, it seemed reasonable, that the Legatary suing, should prove his intention to double the Legacy. But in truth, the proofe sometimes lyes on the defendants part; for if one sue another for a debt, and he an­swers that he hath paid it, he ought to prove the payment. And in this case, whereas the Legatary pro­duceth two writings, and the heyre affirmes, that what is contained in the latter, is of no effect, it concernes him to prove the same.

2 Of proving Mony paid, to be Due, or not Due. D. 22. 3. 25.

ONe sued to recover mony, as paid unduely to another man, and the question grew, on whom it rested to prove, the mony duely, or unduely paid? Paulus said, The businesse may be thus moderated, If he who is charged to have re­ceived mony not due unto him, denies the receipt, and he who charged him proves the receipt, with­out distinction, he who denied the receipt, if he will be farther heard, ought to prove, that what he received was due; For it were very absurd, That he who denied the receipt of the mony, after that is proved, should require his adversary to prove that it was not due. But if at the first he acknowledge, that he received such mony, the presumption makes for him, that it was due; Because it is not to be con­ceived that any man, especially a provident, and discreet person, would throw away his mony, or be carelesse what became of it: and therefore he who affirmes, that the mony paid was not due, ought to prove, that either by errour, and mistake, or else by fraud, or some probable occasion, he was moved to pay the same.

3 Of Proofe to be made by him who alleadgeth, what is contrary to common reputation. D. 22. 3. 15.

GAius Seius having Brothers, by a Codicill gave them Legacies, and Maevius his reputed sonne, after his death succeeded him as heyre, and paid the Legacies to the Brothers, who recei­ved them, and gave acquittances for the same. After-wards, the Brothers, pretending that they under­stood, he was not sonne to Gaius Seius, questioned him for the estate, It was somewhat doubted, Whe­ther they, having under their hands, acknowledged the Legacies paid by him, as sonne to Gaius Seius; ought to be heard against him? Modestinus answered, That his condition, as sonne of Gaius Seius, was not confirm'd by the acquittances, given for the receipt of the Legacies, if the contrary could be proved: But Maevius being reputed the sonne of Gaius Seius, to prove the contrary, lay on the Brothers part.

4 Of Monies mentioned to be due in a Letter. D. 16. 3. 26. § 2.

TItius wrote to Sempronius, That he had in his keeping twenty pound; belonging to him, out of which Sempronius owed him five, and five more were due to Titius, upon Sempronius his Fathers ac­count: It was questioned, Whether this writing a­mounted to an obligation? Paulus answered, That the writing, being declaratory only, made no contract; but might be of use to prove [Page 184] the mony left in trust in the hands of Titius; but whether it were of any force to prove the sums due unto himselfe, he saies the Judge, out of other cir­cumstances, may determine.

5 Of Proofe contrary to a Writing Cancelled. D. 22. 3. 24.

A Writing or Bond, wherein was contained, that one was indebted to another, was found cancelled. It was questioned, Whether the Creditor were concluded thereby? Modestinus an­swered, That it was a great presumption, that the debt was satisfied; but if the Creditor by evident proofes, could make it appeare, that it was not sa­tisfied, he ought to be heard.

6 Of proving a thing beyond Memory. D. 22. 3. 28.

ONe brought an action against his Neighbour, for an annoyance proceeding from a worke in his ground, supposed to be of late erecti­on. The issue proved, whether within memory, or beyond? It was questioned, what should serve for proofe? Labeo was of opinion, That it was sufficient, if some could say, that they remembred when it was done, to prove it to have been done within memo­ry: Paulus adds, That it is not requisite to prove precisely the day, or yeare, when it was done; be­cause it may happen, that some may remember, that it was done in their time, and not be able to say in what year. On the other side, If it be the common opinion, that none living had seen, or heard when it was done, nor at any time had heard other men say, that they had seen or heard, when it was done, [Page 185] it ought to be supposed, that it was done beyond memory.

7 Of Proofe by one Witnesse. D. 33. 4. 14.

THeopompus, having a sonne called Caius, and two Daughters, the elder Attia, who was be­stowed in Marriage, and the younger Crispina, made all three his heyres equally: and afterwards in a Codicill declared as followeth, I desire that my daughter Crispina, be given in Marriage to one, whom my Kindred and friends shall approve; and for her portion, Pollianus knows my mind, how farre I intend to make her equall to her sister Attia. Crispina being Married according to her Fathers will, her Husband demanded as much, for her por­tion, as was given with her sister Attia, when shee was married: Gaius, and Attia refusing, the Husband produced Pollianus before the Judge, who being sworne, deposed, that it was the Fathers will, that his youngest Daughter, should have as much for her portion, as he had formerly given with her sister. It was questioned, Whether it ought to be so adjud­ged upon the deposition of a single witnesse? Scaevo­la answered, That the judge was to consider, that the Testator in his Will, had referr'd himselfe to the Testimony of the witnesse; and therefore out of the estate common to the three heyres, he was to al­low as much to the younger, as had been given to the elder.

SECT. III. Of Sentences given in Or­dinary Causes.

1 Of Judges dissenting in their Sentences. D. 42. 1. 38.

IT was questioned, If the Judges, who are to give sentence, are divided equally in their o­pinions, Which opinion ought to take effect? Paulus said, That if they were Judges in a cause concerning Freedome, or for a Will, they shall carry it who are for freedome, or for the Will: and if it be a cause of another nature, they who are for the Defendant: but if there be a condemnation in different summes, Julianus saies, That the sen­tence ought to hold, which is for the lesser summe.

2 Of divers Persons condemned in the same Summe. D. 42 1. 38.

FIve Persons, were condemned in the same summē, viz. of a hundred pound. It was questi­oned, Whether the sentence were divisible, ac­cording to the number of the persons, or indivisi­ble, so that each of them was liable to the whole? Papinian was of opinion, That it was divisible, and the parties condemned were to pay only Equall parts.

3 Of a Sentence given betwixt two, not preju­dicing a third party. D. 20. 4. 16.

CLaudius Felix engaged the same ground to three Creditors, first to Eutichiana, secondly to Turbo, and thirdly to Rufus. Rufus the third Creditor, having gotten possession of the ground, Eutichiana commenced a suit against him, for the same, wherein shee was overthrown, and sate down by the sentence; Afterwards Turbo commenced a suit against Rufus, and was likewise cast therein; but he appealed before the Judges of appeale. It was debated, Whether Rufus, having prevailed against Eutichiana the first, ought not to be maintained in his possession against Turbo the second Creditor; or Whether Eutichiana being removed by a sentence, to which she submitted, Turbo should not succeed her, and exclude Rufus. It was alleadg'd for Rufus, that it was a rule, that if the third Creditor satisfy the mony owing to the first, he shall succeed in his roome, for so much as he paid: and some were of opinion, that in this case also, the third Creditor having prevailed against the first, he ought to be preferr'd before the second; but Paulus by no means allowed thereof: His reason was, That the sentence given against the first, could not prejudice the se­cond, no more then if it had been given against the second, it should have prejudiced the first; And therefore he concludes, That the third Creditor, did not succeed in the place of the first, whom he removed, neither could the sentence given betwixt two parties, either availe, or prejudice any [Page 178] else, who was not party to the sute; and therefore, without any impeachment of the sentence given a­gainst the first, the right of the second Creditor re­maines entire.

TITLE II. Of Arbitrement.

Arbitrement is, when causes of difference are re­ferred to private Persons, by consent of the par­ties, or by appoyntment of the Ordinary Iudge, to be heard and determined, without Legall, and formall Proceedings, in which are considerable, 1. Touching the power of Arbitrators in gene­rall. 2. Concerning differences betwixt Borde­rers, and Partners, and 3. betwixt Coheyres, &c.

SECT. I. Touching the Power of Arbitrators in generall; as, concerning their choyce, their Commission, and Orders.

1 Of a Reference made, with Power to assume an Vmpier. D. 4. 8. 17. § 5.

IF a difference be referred, by way of Com-promise, to the determination of two Arbi­trators, with power given to them, if they shall not agree, to assume a third man: Vlpian is of opinion, that such a reference is not good; be­because [Page 180] they may differ about the person: but if it be agreed, that they shall assume Sempronius, the refe­rence is of force; because they have no power to dissent therein.

2 Of all differences refer'd, whereof some are omitted in the relation. D. 4. 8. 43.

LVcius Titius and Sempronius agreed to stand to the award of a certain Arbitrator, concerning all differences betwixt them. But by Error, or Mistake, Lucius Titius omitted to set downe in writing, some causes of difference on his part, and so the Arbitrator could determine nothing concern­ing those. It was questioned, whether he were so concluded, that he might not afterwards seek reme­dy, for those matters? Scaevola answered, He might, and not incur the penalty of the bond, to observe the award; But if those matters were purposely o­mitted, for his own advantage, he may afterwards sue, but he must pay the penalty.

3 Of a Com-promise of all matters, to be deter­mined at the same time. D. 4. 8. 25.

I It was agreed in a Com-promise, or reference, that an Arbitrator should, within a month, on the same day, pronounce of all differences refer­red unto him, and that if he saw cause, he might prorogue the businesse to a longer time. The Arbi­trator, within the time, delivered his judgement of some matters, and left others undetermin'd, pro­rogueing [Page 181] the businesse to a longer day. It was que­stioned, whether the parties were bound to stand to his award? Labeo answered, That they were not bound, only the prorogation was good: Vlpian ap­proves his opinion, because it is not in the Arbitra­tors power, to change, or lessen, what was agreed upon in the reference, and therefore he ought to have examined all the differences, and at once, to have given judgement concerning all.

4 Of a third Arbitrator absent. D. 4. 8. 27. § 3.

IF three be chosen Arbitrators, the award of two of them is effectuall, if the third be present, o­therwise not, saies Celsus, because the reference is to more then two, and the third person, if he had been present, might happily have moved the other two, to have been of his opinion; But put the case, the third man absent, was of the same opinion with the other two? Pomponius saies, the award is not good without him, because they ought all of them severally, to deliver their judgements.

5 Of different Judgements, given by Arbitrators. D. 4. 8. 27. § 3.

IF there be divers Arbitrators, and they give different judgements, as if of fower two ab­solve, and two condemne, the award is of no force. Hereupon Julianus puts a question, If of three Arbitrators one condemne a party in fifteene pounds, another in tenne, a third in [Page 182] five, in regard they all differ one from another, What effect shall the award take? He himselfe resolves it, saying, That the condemnation in five pounds, shall stand good; Because he that condemned in fifteen, and he that condemned in tenne, doe both imply the summe of five pounds, that summe being inclu­ded in both the other.

6 Of an Award given, and the Parties not required to stand to it. D. 4. 8. 44.

A Controversy grew betwixt Castellianus and Seius, about the limits and bounds of some grounds; and they chose an Arbitrator, who should determine the difference: he gave up his a­ward in the presence of the parties, and set out the bounds (but haply required neither of them, to stand to his award.) It was questioned, Whether, if Castellianus did not conforme thereunto, he were liable to pay the penalty, to which he was bound in the compromise? Scaevola answered, That if he did not submit, unto the determination made in the presence of them both, he was liable to the Penal­ty.

SECT. II. Concerning Borderers and Partners, as to the setting out, of the Limits and bounds of Lands adjoyning, and the making partition of things which were held in Common.

1 Of two owners in Common of one ground, one of them being sole owner, of the next adjoyning. D. 10. 1. 4. § 7.

IF Titius and Sempronius be owners in com­mon of one ground, and Sempronius alone of another adjoyning; It was questioned, Whe­ther they might be admitted to come to a try­all about the limits of those grounds? Pomponius said, They could not be admitted; because they, being partners, cannot become adversaries in the same Cause, but are held as one, and the same person: nei­ther whilest they continue so, can they be admitted indirectly; because he, that hath the ground sole to himselfe, and the ground common with another, may sell his right in either of them; and then a try­all may be had.

2 Of a Tree growing upon two severall grounds, coming to be divided. D. 10. 3. 19.

A Tree standing, and growing in the confines of two grounds, belonging to severall ow­ners, as long as it continues in the place, be­longs to both equally, for so much as ariseth from the roots in their severall grounds, and cannot come into division, as a thing common betwixt them: but if it shall be blown downe, by the Wind, or cut downe, and sever'd from the ground, it then be­comes wholly, without distinction of parts, com­mon to both, and may come into division saies Pau­lus, the right of property being confounded betwixt them.

3 Of Goods gotten by a common Servant, submitted to division. D. 10. 3. 24.

IF a Bond-man common to two Masters, with the mony or means of one of them, gained some­thing, it cannot be denied, but what he hath gained, is common to both, saith Julianus: but if they come to a division, of what is common betwixt them, he, out of whose mony, or means it was gained, shall be allowed to make his choyce thereof; because it agrees with faire dealing, that any one may assume that specially to himselfe, which was gained out of his own mony or means.

4 Of charges laid out, to improve a common Ground, desired to be divided. D. 10. 3. 14.

ONe laid out charges to improve a common ground, which he conceived to be solely his owne; Afterwards he finds, that it was com­mon to him with another. It was questioned, How he might have consideration for his charges, If a­ny one should challenge, or clayme a distinct part of that ground? It is admitted, that that part might be detained, untill the charges were satisfied, & hap­pily, if one claiming iuterest in common, sue to come to a division, in Equity he may be allowed the same; But it is farther questioned, if he who was at charges sell his part, whether the purchaser, may exspect the same consideration? And in case, one claime a distinct part, by way of property, it is granted, that he shall have the same power to re­taine, untill satisfaction be given unto him, and it is reasonable saith Paulus, That he should have it in this case also: But if he bestowed charges, conceive­ing the ground to be common to him, with Titius, whereas in truth, it was common to him with Mae­vius, whereas in the former case, he had only the remedy of retention, because laying it out, as upon his owne, he had no purpose to oblige any other, in this case he may have other remedy, because al­though he were mistaken in the owner, yet his purpose was to oblige the owner whosoever he was, no lesse then when one man in con­templation of another, doth busines for his use, and profit, whereby he hath a speciall Action a­gainst him, and therefore in this case also, when [Page 186] a common ground is improved, satisfaction shall be allowed in that suit, wherein things common are brought into division.

5 Of a Common ground, desired to be divided, where­in one mans interest was pawned, the others is sold. D. 10. 3. 7. § 13.

TItius and Sempronius having a ground common between them, Titius pawned his right and interest therein to Maevius, for a summe of mony, to be paid at a certain day: the day being past, and Titius his interest forfeited, Sempronius desirous to have what was common betwixt him and Titius divided, profered to Maevius, his choyce, to take at the best value his right and interest in the same ground, or to give to him the best value, for what belong'd to Titius: Maevius out-bidding Sempronius he yeelded up his right and interest in the ground unto him: Then Titius tendred to Maevius, the mo­ny which he had borrowed, and desired his former right, and interest in the ground, to be restored un­to him. It was questioned, Whether Maevius were bound to restore it? It was answered, (saith Vlpian) That Titius ought not to be heard, unlesse he would also redeeme the interest of Sempronius in the ground, which upon bidding more mony was ad­judged to Maevius; And it was shewed for reason, That if he who had right to part of a house had sold it, and, before delivery thereof, were called to ad­mit a division; and upon offerture of him who had the other part, that he who would give most should have both, that other part were adjudged to him, who had first sold his part, then not delivered; it [Page 187] was resolved, that he who had bought the first part, could not recover it, unlesse he would redeeme the whole; because the condition of him who first sold his right to a part, was much better now he having obtained the whole.

SECT. III. Concerning Co-heyres, as when an E­state or Inheritance devis'd amongst them, is desir'd to be divided.

1 Of Compensation in respect of things, of unequall value, divided. D. 10. 2. 52. § 2.

AN Arbitrator, chosen to divide an estate betwixt two brothers, thought it fit to allow some things in kind of unequall value to either of them, which he inten­ded to supply, by adjudging mony proportionably in respect of those things. It was questioned, Whe­ther he might make compensation after that man­ner? Julianus answered that he might.

2 Of charges bestowed by a Father on his Sonne, in the way of Learning. D. 10. 2. 5.

A Father furnished his sonne, being at his own disposing, and travelling abroad, to attain Learning, with many things necessary for his maintenance, and furtherance in that way. It was questioned, whether the Fathers estate coming to be divided, those allowances which his Father had given him, might not be computed into the Sonnes portion? Vlpian said, That if the Father in­tended not to give him creditonly for those things, but that out of his Fatherly affectiō, he furnisht him, with the same, it will not stand with Equity, to de­falcate any thing of his just portion, in respect thereof.

3 Of a Sonnes portion Pawned in his Fathers life time. D. 10. 2. 39.

A Father, in his lifetime, divided his goods a­mongst his two sonnes; and in his last Will, he confirmed that division, and provided, that what debts any of them owed, or should incur, he alone should undergoe the burthen thereof. Af­terwards one of his sonnes, with the Fathers privi­ty, borrowed mony, and with his consent, pawned some grounds, which his Father had assigned unto him, and held the possession of the same, after his Fathers death. It was questioned, Whether, if the mony being unpaid, the Creditor should sell those grounds, the Co-heyre upon a division of the estate, were bound to allow any thing to him in respect [Page 189] thereof. Scaevola answered, That as the case was pro­pose, he was not bound to allow him any thing.

4 Of a Ground, wherein were Monuments of Ancestors, desired to be divided. D. 10. 2. 30.

ONe puts a case to Modestinus thus, There is a certain ground common to me, and a young maiden, my Co-heyre, who is under the age of twelve years; in which ground the reliques of mine, and her Ancestors are preserved: the Tutors of the young Maiden, have a desire, to sell that ground; I doe not like it: but being not able to pur­chase the whole, I am willing to retaine, so much, as may come to my share; and would, as much as in me lies, observe the respect due unto that place. I would gladly know, Whether I may not obtaine of the Arbitrator, appointed, to divide the estate be­twixt us, that parting the rest of the inheritance, he may allot us severall portions in that ground? Mode­stinus answered, That he saw nothing, as the case was proposed, but that the Arbitrator appointed to divide the estate, might make partition of that ground as it is desired; and not meddle with the place where the Monuments are, but leave to the severall heyres, that entire right therein which be­longs unto them.

5 Of Brothers agreeing to division, without the Arbitrators consent D. 10. 2. 57.

AN Arbitrator being appointed betwixt two Brothers, they agreeing made a division a­mong themselves, as it becomed loving Bro­thers. It was questioned, Whether it were good, without the Arbitrators confirmation? Papinian said, It was good, unlesse by defect of age, it were insuf­ficient.

TITLE III. Of Maritine Judicature.

Maritine Judicature is, wherein Causes con­cerning Navigation and Trade by Sea, are discust; as 1. Concerning shipps, and freighting of shipps. 2. Concerning dam­mages done to shipps, and goods, or mo­nies adventured. 3. Concerning Contri­bution, Fishing, &c.

SECT. I. Of Shipps, and Freighting of Shipps.

1 Of a Ship built with another mans materialls. D. 6. 1. 61.

MInicius was askt the question, whether if one repaired his ship, with materialls belonging to another man, his right continued the same? To which he answered, It did. But Julianus said, That if in building a ship he had done so, the right had been otherwise; because the property of the whole ship shall be reckoned, from the right which any one hath, unto the keele, or bottome, [Page 192] which is the principall part, on which all the rest is built.

2 Of Profits due for another man Shippe. D. 6. 1. 62. & 7. 1. 12. § 1.

IF a shippe be in possession of one, who knowes he hath no right thereunto, he may be sued for such profits, as might have been made by the true owner, by employment thereof: But it is otherwise, if any one in the same manner, have monies in his hands, which belong to another man; for he is not bound to pay interest for the same. Papinian saies, That although interest, or use mony in that case, cannot be demanded, yet freight may; Because the only end of shipping, is the employment thereof, and therefore, if the ship be employed, the owner is liable to the danger, that may happen unto it: but mony is not intended, only to be put to use; and therefore he that puts it to use, runs the hazard, not the owner thereof.

3 Of Monies lent to a Master to repaire his Ship. D. 14. 1. 17.

LVcius Titius appointed Stichus Master of his shippe, who borrowed mony, and gave securi­ty for the same, as if he had received it, for the repairing of his shippe. It was questioned, Whether Lucius Titius were bound to repay the Mony, in case he who lent it, could not prove, that the Mony was imployed accordingly? Africanus answered, That the Creditor had sufficient cause of action, if, when the mony was lent, the shippe was in that conditi­on, that it was necessary, it should be repaired: For as it were unreasonoble, that the Creditor should [Page 193] be bound, to take upon him the care, of the repair­ing the ship, and supply the owners roome, (which must be so, if it should be necessary for him to prove that the mony was laid out upon the ship) so it stands with reason, that he be sure that he lends his mony on such an occasion, as whereby the Masters fact may oblige the owner, which he cannot doe o­therwise, unlesse he knowes, that the mony borrow­ed was necessary, for the repaire of the ship; and therefore, if the ship wanted some repaires, and a farre greater summe was lent, than was needfull, the owner shall not be liable for the whole.

4 Of Goods removed out of a ship that was hired. D. 14. 2. 10.

ONe hyred a ship, and conditioned to have his goods conveyed by Sea therein. The Master of the ship, not ignorant of the Merchants mind, without any necessary cause, removed those goods into another ship; which ship together with the goods, were cast away. It was questioned, Whe­ther the owner of the ship, which was taken to fraight, were lyable for those goods. Labeo said, That the Merchant had just cause of action against the owner, or Master of that ship. But Paulus saies, It were otherwise, if both the ships were cast away in the same voyage, and it so happened, without a­ny fraud, or fault of the Marriners.

5 Of a Voyage hindered by prohibited Goods. D. 19. 2. 61.

ONe let his ship for a certain freight, to goe a voyage from the Province of Cyrene, to Aqui­leia in Italy; which ship was laden with three thousand Jarres of Oyle, and eight thousand bushells of Corne: but it happened, that the ship was imbargued nine months, in the province; and at last the lading was taken away, as forfeited. It was questioned, Whether the owner, or master of the ship might require the freight agreed upon? Scaevola answered, That, as the case was proposed, he might.

SECT. II. Of Damages done to Ships: and of Goods, and Monies adven­tured at Sea.

1 Of one Ship doing Dammage to another. D. 9. 2. 29. § 2. 4.

IF one mans ship fell fowle upon the Barque of another, whereby dammage was done to the barque. It was questioned, How, and by whom satisfaction was to be given? Proculus said, If it were in the power of the Mariners, to [Page 195] have prevented the dammage, and by their fault it was omitted, they are liable to make satisfaction; because there is little difference, whether they had a hand in doing the hurt, or by not turning the helme, and by suffering the ship to fall foule, they occasioned the same; But if, by breaking of a Cable, or want of Marriners in the ship, the dammage hap­pened, the action lies against the Master of the ship. Alfenus saies, If one ship overrunne another come­ing towards her, an action lies, as in case of dam­mage done purposely: but if the ship were driven on so violently, that her course could not be staid, the owner is liable to nothing: and if any thing hap­pened, by the fault of the Marriners, Vlpian is of opinion, that a penalty due by Law, for a fault or negligence, is sufficient.

2 Of Dammage done to the Tackle of a ship. D. 9. 2. 29. § 5. & 3.

IF any man cut the Cable, whereby a ship was fastned, by occasion whereof, the ship perisheth, the owner hath his remedy, saith Vlpian, by an action of the case. But if one ship, by the violence of the Wind, be driven athwart the anchor cables of another, and the Marriners of that ship, having no other means to get cleare, doe cut the cable, Labeo saies, that no action lies against them. Labeo, and Proculus hold the like, If a ship be forsed to fall foule, on Fishermens netts. But if it happen by de­fault of the Marriners, they are liable to the penalty of dammage done by default: and in case they be bound to make satisfaction, for the netts broken, or spoyled, yet they are not liable for the value of fish, which may be supposed might have been taken, in those netts, in case they had not been broken▪ Be­cause, [Page 196] it is uncertain, whether any would have been taken, or no.

3 Of a Merchants servant, appointed to receive mony, giving longer time. D. 45. 1. 122.

CAllimachus at Beritum in Syria, borrowed mo­ny of Stichus, Servant, or Factor to Seius, li­ving in Rome, to be transported, at the ha­zard of Seius, to Brundusium in Italy; and covenan­ted to pay double interest for the same, for foure Months: and for performance, engaged all the goods he had laden at Beritum to be transported to Brundusium, and all such as he should lade at Brundu­sium to be brought back to Beritum. It was after-wards, more particularly agreed betwixt them, That when Callimachus was arrived at Brundusium, within a month after, he should, with such goods, as he bought there, returne againe in his ship to Beritum; or if within that month he should not relade his ship with goods, and set saile from thence, he should forthwith pay the mony borrow­ed, with the full interest, as if the voyage were fi­nisht; and defray the charges of Seius his servant, sent with him to receive the same, and to convey it to Rome: and this being propounded and required, by Stichus servant to Seius, was fully undertaken, and promised by Callimachus. The goods intended to be returned to Beritum▪ being laden aboard the ship before the day limited, Callimachus having some occasion of longer stay, Eros fellow-servant to Stichus, who was sent along with him, giving his consent, they put not forth to Sea, untill all the [Page 197] time limited was fully past; and afterwards in the returne, the ship and goods were cast away. It was questioned, Whether Callimachus were bound, to make good the mony borrowed, and interest there­of to Seius? It seemed that he was bound; because he did not set saile, from Brundusium, untill after the time, that he should have delivered in the mo­ny, to be conveyed to Rome. And whereas it, might be pleaded for him, that he stayed by the consent of Eros, servant to Seius, sent with him to attend that businesse: To that it might be replied, That Eros had no other commission, but to receive the mony at the time appointed, and to convey, or by exchange, to returne the same to Rome. Scaevola answered, That upon the whole matter, as it was proposed, Callimachus was bound to pay to Seius, both the mony borrowed, and interest.

4 Of Interest of Monies adventured at Sea. D. 22. 2. 6.

AN Usurer lent monies to a Merchant, at dou­ble interest, for which were engaged, the goods in a ship wherein the Merchant made his voyage; out of which, if the debt, and interest, could not be raised, It was agreed, that the Mer­chants goods laden abord other ships, and engaged for monies to other Creditors, should likewise be obliged for so much, as should remaine after the other Creditors were satisfied. The ship wherein the Merchant took his voyage, ha­ving goods enough to answer the whole debt, before the day, and place appointed for paiment thereof, was cast away. It was questioned, [Page 198] Whether the Usurer might have recourse against the goods in the other ship, in case any thing re­mained? Paulus answered, That in other contracts of lending mony, the hazard and losse of the thing lent, and what is engaged for it, belongs to the Re­ceiver, not to the Creditor. But when monies are lent, upon a Sea voyage, It is intended that the Cre­ditor, cannot demand any thing, unles the ship en­gaged, within the time prefixt for payment, arrive safely at the Port appointed: and therefore the con­dition failing in this case, the obligation for the principall, and consequently for the interest was determined, although some of the goods, which were engaged for payment, were saved in other ships. But it may be then demanded, In what case might the Creditor have been relieved, in respect of those goods? It was answered, In case the Mer­chants ship had safely arrived, and the goods there­in had proved insufficient, although that ship, af­ter the time appointed for paiment, had been cast away.

5 Of Interest due although not Demanded. D. 44. 7. 23.

MAevius, the owner of a ship, being bound from Genua to Naples, borrowed mony of Caius at Genua, to be paid at Naples, to the servant of Caius, on the first of September follow­ing; and, as the manner is, covenanted by way of penalty, to pay a certain summe weekly, for the ser­vants attendance. If the mony were not paid at that day, The servant at the day appointed, receiving part of the mony, demanded no more, at that time; and within a fortnight after, demanded the rest. It was questioned, Whether Maevius were bound to [Page 199] pay according to the Covenant, for that time, in re­gard nothing was demanded of him? Africanus an­swered, That what was agreed upon, by way of pe­nalty, was due for that time; and it had grown on due still, although it had not been at all demanded; neither could the payment thereof be avoyded, un­lesse the mony had been tendered, and Maevius in no way faulty that it was not paid. Otherwise it might be said, That if the servant, having begun to demand the mony, had afterwards by occasion of sicknesse desisted, the penalty were not due.

SECT. III. Of Contribution for losses su­stained in Sea voyages, and of Fishing, &c.

1 Of Contribution to be made for Merchants Goods cast over bord. D. 14. 2. 2. § 2.

MAny Merchants, having put divers sorts of commodities abord a ship, wherein likewise were diverse passengers; a violent storme arising, It was found necessary to cast out some mens goods: whereupon severall Queries were made, as, Whether such were bound, to contribute to the losse, who had no goods of burthen aboard the ship, but Pearles, jew­ells [Page 200] and the like, and if contribution were due for them, in what proportion was it to be made? Then, whether those who had no goods, at all on bord, were bound to pay any thing, as free-men having their lives saved. It was resolved, saith Paulus, That all ought to contribute, whom it concerned to have those goods cast over bord; because the goods sa­ved, owe that duty towards the goods lost, yea the owner ought to be charged, in regard of his ship. Secondly that the proportion was to be set, accor­ding to the value of the goods, which were cast a­way; but the lives of the passengers being free-men could admit no valuation, yet they were to pay for their cloaths, their rings, and all things else, which they carried about them, unlesse such as was taken with them, to be spent in the ship, as Victualls, or the like, which are exempted, because if it fall out, that there be want in the voyage, they must neces­sarily be delivered up, to be spent in common.

2 Of losses sustained by a Ship, not liable to Contribution. D. 14. 2. 6.

A Ship surprized with a violent storme at Sea, having her Masts, Sailes, and Takling burnt with lightning, put into Hippo in Africa, and there being furnisht with such necessaries, as could suddainly be gotten, sailed to Hostia, and dis­charged her lading safe, and in good condition. It was questioned, Whether they, to whom the ships lading did belong, were bound to contribute a­ny thing, to the losses of the shippe? Julia­nus answered, That they were not bound; for [Page 201] the charges were laid out rather to repaire the ship, than to preserve the Merchants goods.

3 Of Goods in a boat, cast away. D. 14. 2. 4.

A Ship being heavy laden, entring into a shal­low river, or Harbour, to avoid danger by easing the ship, some goods were put into a boat which was cast away. It was questioned, Whe­ther the goods in the ship ought to contribute to the losse of those cast away with the boat? Calli­stratus said, That they were bound, as much as if they had been cast out of the ship into the Sea; But if, after those goods, were put into the boat, the ship with her lading had been cast away, the goods preserved in the boat, should not have contributed to the losses in the ship; because contribution is due only when the ship is saved.

4 Of Exporting Goods, after a time limited for Exportation. D. 39. 4. 15.

CAesar, when he had rented out the Quarries in Creete, out of which Whetstones were digged, put out a Proclamation, wherein he prohibited, under penalty of forfeiture, that no man except his Farmour should convey any Whetstones, out of Creet, after the Ides of March; A Mer­chants ship laden with Whetstones, before the Ides of March, sailed out of the Port of Creet, and being brought back with crosse Windes, [Page 202] into the same part, put out from thence, the second time, after the Ides of March. It was questioned, Whether the ship and lading were forfeited, because the goods were exported out of the Iland, after the time limited? Alfenus Varus answered, Although what was exported out of the harbour, was expor­ted out of the Island, yet he that went out of the Iland, before the Ides of March, being driven back by a tempest, into the Harbour, and after that time set saile againe, ought not to be thought to have in­curred, the penalty of the Proclamation; Because, the whetstones were exported out of the Island, when the ship the first time, put to Sea out of the Harbour.

5 Of hindering one to Fish in the Sea. D. 47. 10. 13. § 17. & l. 14.

IF one will not suffer another to Fish, or draw a drag-net, in a publique Water, or streame: It was questioned, Whether he might not be sued in a cause of Injury? Some were of opinion, that he might be sued. Pomponius said, His case was like, as if one would not permit another, to make use of the common Bath, or publique Theater, who un­doubtedly was liable to an action of Injury. It was questioned farther, Whether, if one did hinder an­other man from fishing before his house, or habita­tion, that were ground for an action of Injury, or no? For it is certaine, that the Sea is common, as the aire it selfe, to all men, and it hath been often resolved, that no man ought to be prohibited, for taking fish in the Sea, no more, then from taking Foule, when he is in another mans ground, (al­though he be forbidden to come there,) yet it is [Page 203] received by common use and practice, saies Vlpian, although grounded upon no Law, that a man may hinder another from fishing before his house, or land; wherefore the use and practice being unrea­sonable, if a man be so hindered, he may bring his action of Injury; but if a man have a private right to a part, or Creek of the Sea, it is otherwise, and he may have an Injunction to maintaine his pos­session.

TITLE IV. Of Judicature concerning the Publique Treasury.

Iudicature concerning the Publique Treasury is, concerning such goods which belong to the pub­lique Revenues, 1. Originally, 2. Or hap­pening from Escheats and forfeitures, 3. Or de­rived from such Forfeitures and Escheats.

SECT. I. Goods Originally belonging to the Trea­sury, are such Lands, and Revenues, as anciently appertained to the Prince, or Common-wealth.

1 Of Rescinding a Sale, made on behalfe of the Treasury. D. 18. 5. 9.

LVcius Titius being indebted to the pub­lique Treasury, the Officers thereof entred upon a ground of his, as forfeited, and sold the same for lesse than the debt a­mounted unto, whereupon, he repairing to the President, and offering himselfe ready to pay, what [Page 205] was due to the publique Treasury, the President de­clared, that the sale should be made voyde; and de­creed, the ground to be restored to Lucius Titius: It was questioned, Whether upon the Presidents de­claration, and decree, Lucius Titius ought to be held possest of the ground? Scaevola answered, Not un­till the Treasury were satisfied for the debt, and he who bought the ground, had his mony repaid.

2 Of Publique grounds hired, let out to others. D. 49. 14. 47.

AEMylius Ptolemeus, hyred certain grounds, be­longing to the publique Revenues, and after-wards let out the same, by parcells, for a grea­ter value; He being questioned by the Officers of the Revenue, for what he received; Paulus said, It was unjust, and might prove prejudiciall to the Treasu­ry, if the immediat Tenant should run the hazard of recovery from the under-tenants, and be forc't to pay more, than what he had agreed for: and thereupon it was resolved, that he should be sued for no more, then what he had agreed for.

3 Of the Profits of publique grounds sold, arising within a time limited, for more to be offered. D. 49. 14. 50.

VAlerius Patronius, Surveyer of the publique Revenues, proposed the sale of some grounds, to Stalticius at a certain price, if within three months, more were not offered for thē; within that time, a greater summe being offered Stalticius made it good. It was questioned, to whom the fruits & pro­fits, received in the mean time, did belong? Patronius [Page 206] insisting upon it, that they belonged to the publique Revenue Paulus said, That it was certaine, if they were received, betwixt the first proposall, and the second offer, they belonged unto the seller, and therefore to the Revenue; and it made no diffe­rence, that it was the same man; to whom the first proposall of sale was made, and who afterwards gave the price, as it was advanced. But in regard, both those businesses happened before the vintage, the case seemed to be altered; and it was held, that the fruits and profits belonged unto the buyer. Pa­pinian, and Messius raised another opinion, Because the grounds were let unto a Tenant, and it was hard to take from him the fruits and profits, be­fore his time was exspired, and therefore they held, that the Tenant should receive the profits, and the purchaser have the rent for that yeare, least the treasury should be liable to give him satisfaction, in regard he did not enjoy, what he had contracted for: Whereupon, it was declared, That if the grounds were occupied by servants of the Treasu­ry, they should all accrue unto the purchaser; but if by Tenants, he should receive the rent. Tryphoninus started a farther doubt, to wit, What should become of the dry profits, as haply corne, or hay, which might be received before the sale was perfected? And it was likewise resolved, That if the day for payment of the rent happened not before, the pur­chaser should receive the rent, in lieu of those pro­fits also.

SECT. II. Of Estates liable to Escheats and Forfeitures.

1 Of one who received mony out of the Estate, informing against the Heyre. D. 29. 5. 26.

GAius Seius was indebted to Titius, in the summe of a hundred pounds, which was given to him by his Brothers Will, which he afterwards received of the heyres of Gaius Seius; and understanding that those heyres had not prosecuted the authors of Gaius Seius his death, he informed against them, to make the estate forfeited to the publique Treasury. It was questioned, Whether he, having received a hun­dred pounds, out of the estate, might be admitted to informe? Seaevola answered, As the case was pro­posed, he saw nothing but that he might.

2 Of Prosecuting a Forfeiture, after the death of the Delinquent. D. 29. 14. 48. § 7.

IF the heyre did not prosecute, the authors of the Testators death, the estate was confiscable to the publique Treasury: Gaius Seius languishing with sicknesse complained, that he was poysoned by a [Page 208] Bondman, and so died. Lucia Titia his sister, who was his heyre, neglected to prosecute the Bond-man: and she her selfe living ten years after, then dyed, she being dead, an informer made discovery of the estate, as forfeited: It was questioned, Whe­ther the offence died not with her? Paulus answe­red, That the penalty, not being corporall, but pe­cuniary, it was not extinguisht, by the death of the unworthy heyre.

3 Of the like. D. 46. 14. 9.

LVtius Titius made his sister his heyre, of some part of his estate, and his Wife of the rest. The sister accused the Wife for poysoning her Hus­band. Before the cause came to hearing, the Wife died. It was questioned, Whether the party accused being dead, the cause might be proceeded in, as concerning the estate which she had gained? Mode­stinus answered, Although the criminall cause was determined, by the death of the party, yet the Offi­cer of the publique Treasury, might prosecute and prove the goods wickedly gotten, to be forfeited to the Common-wealth.

SECT. III. Of Estates questionable, after Forfeitures and Escheats.

1 Of an Estate after death, not due upon Condemnation. D. 49. 14. 9.

LVcius made his mother his heyre, and desired her, when she died, to leave his estate to Cor­nelius Faelix; the mother for some crime being condemned, the Officers of the Treasury seized her whole estate: Cornelius Faelix, interposing, pleaded, that his right was to take place before the Treasury; because the Law admits so much: but it was not granted, because no right was to accrew unto him, untill after her death; and therefore in the mean time he was to be debarred.

2 Of an Estate forfeited, for a false accusation; and the first Mover freed. D. 48. 10. 24.

CAllimachus, in his Will, made Maximilla his daughter his heyre, for one twelfth part of his estate; and Proculus, with others, his heyrs for the rest; of whom it was required, that they should make Athaletus his Bond-man free, and give him a portion of his goods. Athalctus, before the Magistrate, in presence of Maximilla the daugh­ter, affirmed that he could prove, that the Will was forged, or falsified: whereupon Maximilla engaged her selfe, to justify that accusation, against Proculu., and the Scrivenor, who wrote the Will. The cause coming to hearing, nothing appeared, wherefore they should be condemned: and thereupon it was decreed, that the twelfth part given to Maximilla, should be returned as forfeited, into the publique Treasury. It was afterwards questioned, Whether Athaletus the Bondman, ought to receive any bene­fit by that Will. Scaevola answered, That as the case was proposed, he might.

3 Of the forfeiture of One, not to be construed in prejudice of Another. D. 32. 1. 27.

POmpeius Hermippus made his sonne Hermippus, his heyre, for nine parts; and his daughter Ti­tiana for a third part of his estate: and gave to either of them, certain grounds by way of Legacies. And a oreover, his will was, that if his sonne Her­mippus should dye without children, his daughter should have other grounds. Afterwards in a Codi­cill, [Page 211] he gave his daughter some other speciall grounds, and required her, that she should rest her selfe contented with those, in lieu of all her part of the inheritance, and legacies given in the Will. Hermippus the youngers estate was confiscated; but Titiana demanded, what was bequeathed unto her. It was thereupon questioned, What the Fathers in­tention was? Whether he would have her relin­quish her part of the inheritance only, or those things also, which her brother was required to leave her at his death, if he had no children? Pau­lus was of opinion, That she ought to relinquish all. But a milder judgement took place; which was, That she should relinquish only those things, which she was to receive during her brothers life; not those things, which were to come unto her, af­ter his death: and so the Court decreed.

4 Of the Condition of a surety, when the Treasury succeeds the Debtor. D. 46. 1. 72.

VArianius Antoninus procured, upon his Letter, Aurelius Palma, to lend a hundred pounds to Julius Pollio, and Julius Rufus, who were bound joyntly, and severally to pay the whole summe. It happened, that the estate of Julius Pol­lio was confiscated to the publique Treasury: and Aurelius Palma dying without heyres, the publique Treasury likewise succeeded in his estate. Vranius being sued, by the Officers of the Treasury, as ha­ving undertaken to Aurelius Palma, for the debt, Pleaded, that he was freed from his engagement to Palma, Pollioes and his estate being confounded in [Page 212] one. Paulus was of opinion, That if there had been but one debtor, to wit, Julius Pollio, the plea had been good; there being no doubt, but the surety is freed, when the principall debtor cannot be sued. But when two men are bound severally, for pay­ment of the same mony, and the Creditor becomes heyre to one of them, he saith, There is just cause to doubt, whether the other debtor be freed; or ra­ther by confusion of the obligation, the person on­ly of that debtor, be exempted. And he is of opini­on, That the Creditor succeeding one of the deb­tors his person is only freed, and the obligation re­maines: whereupon he concludes, That the other debtor continues bound, and also he that is enga­ged on his behalfe. But although an action lies a­gainst the surety by Law, yet in regard Vranius, if he receive prejudice by his engagement, hath liberty to bring his action against either of those, for whom he was engaged, If he be sued, on behalfe of the Treasury, he may except for so much, as Julius Pol­lio his estate was liable to him; and leave the Trea­sury to take course, against the other debtor, to re­cover a moyety of the debt, if they were partners therein, otherwise the whole.

TITLE V. Of Judicature before the Praetor or Chancellor.

Iudicature before the Praetor or Chancelor is, when Remedies are desired to be afforded, which in the ordinary course of Iustice cannot be obtained; as, 1. In Relieving Minors, and Debtors; 2. Preventing dangers; 3. And decreeing what is agreeable to Equity.

SECT. I. Of Relieving Minors & Debtors.

Reliefe of Minors and others is, when resti­tution is granted, against Acts done by them in Minority, or drawn by feare, or force &c. The relief of Debtors is by re­ducing of Creditors to conformity.

1 Of an Act begun in Minority, compleated, or taking effect in full age. D. 4. 4. 3.

IF one contract with a Minor, and the event thereof falls out whē he is become of full age. It? was questioned, Whether the beginning, or end of the businesse ought to be respected. Vl­pian saies, It is resolved, That if any one, coming to full years, approve what is done in his Minority, [Page 214] there is no cause, why he should be relieved, or re­stored against his own act: whereupon he relates, That Celsus was consulted by Fulvius Respectus, the Praetor, in this case, A Minor, of the age of twenty foure years, commenced a suit in a cause of account, against his Tutors heyre; and the cause depending, after he came to the age of twenty five years, the Tutors heyre obtained a sentence, wherein he was acquitted, Against which proceedings, and sen­tence, the late Minor sued to be relieved. Celsus thereupon advised the Praetor, That he ought not easily to be relieved, or restored; unlesse it were contrived by the cunning of his adversary, that he might be acquitted, when the other had attained to full age; for then the Minor might seeme, not only to have been over-reached, or deceived the last day, when the sentence was given, but in the whole course of proceedings, which were so projected, that the sentence for acquitting him, might be gi­ven, when the young man was of full age.

2 Of Restitution against a third Person. D. 4. 4. 13.

A Minor sold a piece of ground, and gave pos­session thereof: and he that bought it, sold the same againe, to another man. It was que­stioned, Whether the Minor might be restored, a­gainst the buyer in the second place? Labeo was of opinion, That if the second purchaser knew, that it was first sold by a Minor, restitution ought to be granted against him; but if he were ignorant there­of, and the first buyer were of ability to make satis­faction, he ought not to be questioned; and if the first were not of ability, then it was thought reasona­ble, [Page 215] that the Minor might be relieved against the se­cond, although he were ignorant.

3 Of the Author or occasion of Feare, against which, one sues to be restored. D. 4. 2. 9.

BY the Authority of the Praetor, one of full years, might be restored, if by feare, or force he had yeelded, or agreed to any thing, preju­diciall to himselfe. Yet Pomponius saies, Although the Pretors Edict speaks generally of force, and feare, It is to be considered, from whom the force, or by whom the feare was occasioned: and there­fore if one, who was a Prisoner amongst Pyrats, or Enemies, gave, or promised a reward to one, who should free him out of their hands, he shall not be relieved, by that Edict; For although the promise, or guift, proceeded from his feare of danger, from the Pirats, or Enemies, yet he, to whom it was made or given, received it only, as a reward of his honest endeavour.

4 Of a Release, procured by Force, of a Debt Enforced. D. 4. 2. 12.

IF one by force compelled another to seale a bond, for payment o [...] Mony to himselfe; and that man, or some other, on his behalfe, compell him, who hath the bond, to seale a release; although the release were procured by force, yet Pomponius saies, the Praetor, in this case, shall give no reliese; because, as it was lawfull to resist force with force, so he that by force is wrong'd, by force may help him­selfe.

5 Of Restitution against the Heyrs of him, who hath gained from another, by force, or feare. 5. D. 4. 2. 12.

THe heyre of him, who hath gotten any thing by force, or feare, although he be not liable to any penalty, yet is bound, (saies Vlpian) to restitution of what came unto his hands; for what was unjustly gotten, ought not to accrew to the heyrs advantage. But it is questioned, in case the heyre consumes such things, and dyes, Whether his heyre shall be liable to restitution? And it was resolved, That he is liable; because, it is sufficient, that it once came to the first heyres hands, other­wise it might be said, that he himselfe, which con­sumed it, was not afterwards liable: and the resolu­tion is most cleare, if the things were converted into mony, or any other profitable use: For so the Emperour Antoninus Pius, wrote to Claudius Fron­tinus, That the value of goods, belonging to an in­heritance, might be required of the heyre, although they were not extant; Because, his estate being im­proved by the procede of those goods, although the species were changed, it was obliged as much, as if the goods themselves were remaining.

6 Of reducing Creditors to Conformity. D. 2. 14. 8. § 19. & 9. & 10.

IF a Debtor whose estate is not sufficient to pay his full debts, agree with his Creditors, to ac­cept part of their monies; if they all agree in common, and declare, with what proportions they [Page 217] will be content, there is no doubt, but they are all bound, by the agreement. But if any dissent, they, so dissenting, are not bound to stand to the Agree­ment of the rest, yet Marcellus saies, The Praetor may interpose his authority, and confirme the agreement of the major part. And Accursius saies, This course stands with Equity and reason; because, if they doe not all yeeld to loose some thing, it may happen, many waies, that none of them shall recover any thing.

7 Of the Major part of Creditors, how to be understood. D. 2. 14. 8.

A Businesse of Compounding, betwixt a Deb­tor and his Creditors, depending; and the Creditors being of different dispositions; and their debts of differēt quantities: It was questioned, How the Praetor was to judge of a major part? Vlpi­an was of opinion, That he ought to respect, the major part, not according to the number of persons, but with consideration had to the quantity of their debts: but if the debts were of equall quantity, then, according to the number of the persons; and if it fell out, that the number of persons were equall, the one for Compounding, the other against it, al­though there were no major part, he might confirm the consent of the better sort.

SECT. II. Of Preventing Dammages.

Dammages are prevented, by granting In­junctions not to proceed in a new work, which may be prejudiciall to others; and to secure one mans house or possession, from danger imminent, from the house or possessions of another.

1 Of Warning to be given, to desist from a new Worke. D. 39. 1. 5. § 5.

IF one began a new work, which might be prejudiciall to another, and upon lawfull warning given doe not desist; the Pretor might cause him to demolish it, when it was finisht. Whereupon, it was questioned, When di­vers persons are concerned in an intended new worke, which might prove prejudiciall, To whom and by whom, warning is to be given? Vlpian saies, If the ground, or work belongs to severall persons, if warning be given to any one of them, it is suffici­ent, as if it were given to all: but if one of them proceeds in the worke; and the rest desist, they who desisted, are liable to nothing; for one mans act may not prejudice another, who acted not all▪ but, if there be many, who may be prejudiced by a new [Page 219] work, it is not sufficient for all, that one give warn­ing to desist; because, it may happen that some have just cause, to forbid the work, others have not.

2 Of one, who bought the ground, where a new Work was begun. D. 39. 1. 23.

MAevius, after warning given, not to pro­ceed in a new work, sold the ground, whereon the work was begun, to Sempro­nius; who knowing that such warning was given, yet proceeded to finish the same. It was questioned, Whether Maevius the seller, or Sempronius the buy­er, were lyable to amends? Javolenus answered, That if warning be given, to desist from a work be­gun, if it be afterwards finisht, the owner of the ground, or work is liable; because the warning is not personall, but reall, that is, it is in respect, of the thing, or work it selfe, not in respect of the owners interest, at that time: and that therefore, He only is bound thereby, who enjoyes the ground, or work, concerning which the warning was given.

3 Of the Heyre of him, who proceeded in a new Worke. D. 39. 1. 22,

WArning being given to Titius, to desist from a new work, He proceeding in building, and having finisht it, died. It was questioned, Whether his heyre might be compelled to demolish it? Marcellus answered, That he might be compelled, to suffer it to be demoli­shed, but not to be at the charge thereof; because, [Page 220] that kind of charge was imposed on him, whō con­temned the Praetors Injunction, by way of penalty; and matters of penalty regularly fall not on the heyres.

4 Of one required to secure another, who sought not to be secured himselfe from danger. D. 39. 2. 13. § 11.

IF danger were feared from a ruinous building, the Praetor might cause security to be given, or the possession of the building to be yeelded up. Titius having a ruinous house, and Maevius a house in good repaire adjoyning to it, Lucius, whose house was joyned to that of Maevius, desired, that the owners of both, might secure his house from danger. It was questioned, Whether Maevius, whose house was in good repaire, might be compelled thereunto? Vlpian answered, That he was as well liable, as Titius; because it might happen that the ruinous house, falling on that which was of good repaire, might occasion that house, to beat downe the house of Lucius: and if it be said, that there is no fault in the house of Maevius, being in good repaire, if the ruinous house, falling on it, should occasion losse, or dammage to the third. It is answered, That Maevius, the owner of the house in repaire, is deservedly questioned; because he omitted to pro­vide for his own indemnity; which he might have done, by procuring Titius to have entered bond, to save him harmlesse from any dammage, which might happen to him, by the house of Titius.

5 Of one, desiring to be secured from dammage, who refused himselfe to give security. D. 39. 2. § 11.

TItius having a ruinous house, adjoyning to the house of Sempronius, omitting to give bond to Sempronius to save him harmles according to the Praetors decree: Sempronius, by the Praetors autho­rity, was put in possession of the ruinous house: whereupon Titius, having another house in danger of the same, desired that Sempronius, who was put into possession thereof, might give him bond, to save his house indemnified. It was questioned, Whether he ought to doe so? Iulianus answered, That it was an unreasonable thing, that he, who yeelded the possession of his ruinous house, to be awarded from him, should desire him, to whom it was awarded, to doe that which he himselfe had refused to doe.

6 Of dammage, happening from one house to another, without fault. D. 39. 2. 43.

LVcius entred into a bond, to secure the house of Sempronius from any dammage, which it might sustaine, from the house of Lucius. The tyles, or slats of Lucius his house, being by a strong wind blown downe, upon the house of Sempronius, the tyles, or slats of that house were broken. It was questioned, Whether Lucius were bound to make good the losse? Alfenus Varus answered, That if the slats, or tyles fell down by reason of any fault, or insufficiency in the building, he was bound to make the dammage good; but if the force of the wind were such, that had the tyles been never so good, or sufficiently laid, they would have been blown downe, he was no waies bound.

7 Of Dammage happening, before a Legall course was taken to prevent it. D. 39. 2. 44.

TItius, observing the house of Sempronius, ad­joyning to his, to be very ruinous, required him extra-judicially, to give him security of indemnity from that house, which Sempronius refu­sed to doe: and before Titius, could procure an or­der, from the Praetor, Sempronius his house failing, beat downe the house of Titius. It was questioned What remedy he might have? Africanus answered, That the Praetor could afford him none; because it was his own negligence, that he did not sooner seek remedy from the Praetor. But he saies, That if the Praetor having ordered, that security should be given, and, for default therein, had awarded pos­session of the house, from which the danger was feared, and the house happened to fall, before pos­session thereof could have been taken by the com­plainant, he was of opinion, That he ought to have the same satisfaction, which he might have had, by taking possession of the house.

SECT. III. Of Decreeing matters agreeable to Equity.

Matters are Decreed according to Equity, when what is desired is just, but cannot be allowed by strictnesse of Law▪ as, when men refuse to performe things commited to them in trust, or insist up­on unconscionable pretences, and the like.

1 Of Treasure hid in another mans Ground. D. 10. 4. 15.

ONe had Treasure concealed, or hid in another mans ground, and would not suffer him to digge for the same: that party could not be sued, to produce it, & haply, he knew not where it was. It was questio­ned, Whether he might be compelled, to suffer the other to search in his ground? Pomponius answered, That if he would take his oath, that he desired leave to search for it, without any prejudice to the owner of the ground, and will put in caution, to save him harmlesse, it stood with Equity that he should have a decree, or order, to digge, take up, and carry away the same.

2 Of Monies laid out to redeeme a Prisoner. D. 3. 5. 21.

THree Romans being taken prisoners in warre, by the Portugals one of them was let goe, up­on condition, that he should bring mony, for ransome of himselfe, and of the other two; and in case he should not returne, it was agreed, that the other two should be answerable for him. He neg­lecting to returne, the other two, at length, were forced to pay his ransome. It was questioned, What remedy they might have against him? Servius an­swered, That the Praetor in Equity, ought to con­demne him, for what they had laid out on his be­halfe.

3 Of Interest demanded for Mony deposited. D. 16. 3. 24.

LVcius Titius, by his Letter, signified to Sempro­nius, that he had received from his servant, a hundred pounds, as committed to his keep­ing; and that he would be ready, when, and where he should require, to restore the same. It was que­stioned, Whether Sempronius might demand Inte­rest with his mony? Papinian answered, That it is certain, that an action, for a thing deposited, did lie in this case; because the words, Committing, or Commending to his keeping, doe signify nothing else, but depositing; which is true, if it were done with an intent, that the same numericall mony should be restored: but if it were agreed, that so much in quantity, should be repaid, the businesse doth something differ from the nature of a thing deposited; and in that case, although an action for a [Page 227] thing deposited doth not lie, yet it ought easily to be yeelded, that interest should be due for the mo­ny. He addeth, That it is true, that in a businesse of this kind, the Judge may determine what is fit, as well as if the parties had expresly agreed thereupon: but he saith, It is both against the nature of a thing left in trust, and faire dealing, to require interest of him, who doth a curtesy, in keeping what is trusted with him, before he hath made any delay in delive­ry thereof.

4 Of an Heyre, made in Trust, to convey the estate to the Testators Sonne, or Mother. D. 36. 1. 25.

SEmpronius made Titius his heyre, and required of him, that what he should receive of his estate, he should, as soon as might be, convey unto his sonne; or if his sonne should dye, before it was done, unto his sonnes Mother. After the death of Sempronius, before Titius took upon him as heyre, the sonne died. It was questioned, Whether the e­state were due unto the Mother, or to the heyre of the sonne? Julianus answered, That if the sonne dyed before that time, when the estate ought to be conveyed unto him, the right was devolved unto the Mother; but if he dyed after that time, by Law it belonged to the heyre of the sonne. But whether it were the Testators meaning, that if the sonne dy­ed, at any time, before the estate were made over unto him, it should be conveyed, rather to the Mo­ther, then to the heyres of the sonne, the Praetor ought to determine, taking into his considerati­on, the quality of the Mother, and of the heyre of the sonne. But Marcellus said, That it is [Page 226] agreeable to the Will of the Testator, that whenso­ever the sonne should dye, whether before, or after the right to the estate accrued unto him, it ought to be transferred unto the mother, if it were not actually conveyed: and that so it hath been pra­ctised.

5 Of a Release procured by fraud. D. 2. 14. 35. & 36.

TItius, Maevius, and Seius, three brothers, divi­ded their Mothers estate between them, and by writings gave each other releases. Afterwards Maevius, and Seius who were absent, at their Mo­thers death, found Titius had conveyed away, and concealed out o [...] the Inventory, by which the di­vision was made, a summe of gold. It was questio­ned, Whether they might not sue Titius, notwith­standing they had given him releases? Modestinus an­swered, That they might: and if their releases were pleaded against them, they might reply concerning the fraude.

6 Of the Sale of a Ground, Warranted as the Seller possessed the same. D. 19. 1. 39.

ALfenus sold a ground, which he shewed to Paulus, and warranted it, as he possessed the same: and being privy that some part of that, which he shewed to Paulus, did not belong to him­selfe, concealed the same. It was questioned, Whe­ther he were bound to make good the sale for so much as he shewed? Modestinus answered, That he was bound; because the generall words [As he pos­sessed] extend not to what he knew to be other­wise: [Page 227] For else Paulus was over reacht, or deceived, who, if he had known any part thereof, to belong to any other, would not have bought the ground, or not have given that price for it; which opinion he maintaines, the rather, because by ancient Law­yers, it hath been determined, That if one selling a ground, did warrant it, except such services as were due, if any were due, and knew of some services due, and did not acquaint the buyer therewith, he ought to give satisfaction for the same; Because a ge­nerall exception extends not to that, which the sel­ler particularly knew, but only to those things which he was ignorant, and could not certify the buyer.

7 Of Grounds sold, the Measures mistaken. D. 19. 1. 42.

ONe who had two grounds, sold them seve­rally, to the same person; and estimated them, the one at two hundred acres, the other at a hundred: he who bought them, upon measure, found, that which was estimated at two hundred acres, to want ten, and he that sold them proved, that the ground estimated at a hundred, contained a hundred and ten acres. It was questioned, What satisfaction was to be given? Labeo was of opinion, That although what was wanting in one, was sup­plied in the other, the seller was bound to make good that which was wanting. Paulus conceived, That if the purchaser brought his action, he might be relieved by the exception of unconscionable dealing; and gives instance of one, that sold a Copps, and a Vineyard, as of equall quantities, and what wanted in the Copps, was supplied in the Vineyard; in which case, if there were any difference, betwixt [Page 226] the one and the other, it was for the buyers, not the sellers advantage; and concludes that in such cases, the losse in the one should be compensed with the gaine in the other, so that the buyer be not any waies prejudiced, in the quality, or goodnesse of the ground; for in that respect, he ought to have satisfaction.

8 Of a Covenant not to remove a Tenant. D. 19. 2. 54. § 1.

TItius did let a house to Seius, for seaven years, at an yearly rent, and it was covenanted be­twixt them, That if Titius should remove Sei­us, within the terme, he should by way of penalty pay to him ten pounds; and if Seius should quit, or leave the house within that time, he should forfeit to Titius the like summ. It happened, that Seius paid no rent in two years. It was questioned, Whether Titius might not remove him, without incurring the penalty? Paulus answered, Although nothing were mentioned in the agreement, about paiment of the rent, yet it must be the intendment of the a­greement, that Seius paying his rent, and using the house as he ought, should not be removed: and thereupon if Seius, upon that occasion being remo­ved, should sue for the penalty, Titius might use the exception of unconscionable dealing against him.

9 Of Rent to be abated, for improving the ground. D. 19. 2. 61.

A Tenant, which was no waies bound by his lease, at his own cost planted a Vineyard, in the ground which he held; by occasion whereof the Landlords rent was improved, to the value of ten pounds by the yeare: some rent being unpaid, the Landlord put him out, and sued him for the rent. It was questioned, Whether he might not require allowance for his improving the ground? Scaevola answered, That if no allowance were made unto him, and the Landlord sued him for his rent, he might oppose the exception of un­conscionable dealing, or suing contrary to reason.

TITLE VI. Of the Emperour, or Princes Audience.

Iudicature before the Emperour, or Prince, is when they in person heare causes, which they either determine themselves, or give direction for the determination. As 1. Generally in all cau­ses of Law and Equity, 2. Specially concerning causes Testamentary, 3. In Reforming or con­firming sentences given by inferior Iudges.

SECT. I. Of Causes in generall both of Law and Equity.

1 Of the Fathers Fact, not debarring the Sonne from a benefit derived from the Grand-father. D. 37. 14. 17.

WHen a Bondman was made free, his Master became his Patron, and amongst other benefits, had a right to succeed, in part of his estate, when he dyed, which right he forfeited, in case he accused his freed man, of any capitall crime, Marcus Antoninus the Philosopher, and Aelius [Page 231] Verus being Emperours, it happened that the Grand-father having made his Bondman free, his son called the freed man in question for his life, and failing to make good his accusation, the freed man was ac­quitted. And afterwards both the accuser, and the freed man died; whereupon the grand-child of him, that made the bondman free, and sonne of him who had accused him wrongfully, claimed part of the freed mans estate. The case being brought before the Emperours, They declared, that they found it doubted, amongst experienced Lawyers, whether the grand-child, as Patron, ought to succeed in that case; and that Proculus, a man of eminent judge­ment, was of a contrary opinion, and that they themselves, had given judgement otherwaies, in the case of Caesia Longina, which sentence was approved, by their friend Volucius Maecianus, a man of well grounded knowledge, who profest, That if he had been judge, he should have given sentence the same way, but afterwards, upon mature deliberation, ad­vising with the same Maecianus, and other Lawyers their friends, (for so the Emperours were pleased to grace men of that quality) it appeared unto them, That neither by the words, nor by the intent of the Law, the Nephew ought to be excluded, by his fa­thers act, from that right, which descended unto him, by his Grand-fathers making the bondman free; and That many learned authors of the Law, and amongst them, their friend Salvius Julianus, a man of dignity concurred with them in that opi­nion.

2 Of restoring a Minor, the Tutors having been negligent. D. 4. 4. 38.

AEMylius Largianus, bought a certain piece of ground of Obinius, and received in hand some part of the price, with this condition, That if within foure months, the rest of the price were not paid downe, the sale should bevoyde: Within the foure months, Largianus dyed, and Rutiliana his daughter, being under the age of twelve years, suc­ceeded as his heyre; Her Tutors neglecting to pay the rest of the price, Obinius (having oftentimes gi­ven them warning, and called upon them) after a years space, sold the same ground to Claudius Tele­machus. Rutiliana sued to be restored. The case be­ing heard by the Praetor, she was over ruled, and left without reliefe, whereupon she appealed to the Emperour, who advised with Paulus, about her case. Paulus told him, That it was his opinion, that she was justly overruled, because the businesse was contracted with her father, not with her. But the Emperour was otherwise inclined, because the time, wherein the sale was to become voyd, hap­pening after the estate, and interest was in her, and then by the Tutors negligence, the conditions of the sale were not performed. Paulus, then better considering of the businesse said, That he thought indeed, she might the better be restored, Because Obinius, after the day, wherein it was agreed, that the sale should become voyd, had given warning to the Tutors, to pay in the remainder of the price, by demanding whereof, he seemed to recede from [Page 235] that advantage, which he had of making the sale voyde; besides, the cause, or condition of making the sale voyd, was held no way favourable; so that it was resolved, and pronounced, That she should be restored: The Emperour was also the more in­clined to her, because, the Tutors neglecting not only to pay the mony, but also to desire restitution on her behalfe, seemed to have been consenting to betray her businesse.

3 Of a Promise procured by Force. D. 4. 2. 9. § 3.

WHen the Campanians by force, and feare, had caused a stranger, to promise in writ­ing, a great summe unto their Citty; The Praetor, by the directions of the Emperour, Vlpian being his Assessor, ordered, That if he had perfor­med the promise, he should recover, what he had paid, by way of action, if he had not performed it, and were sued, he should plead, that he was con­strained by force.

4 Of recovering a mans own by force. D. 4. 2. § § 13. & 13.

IF a Debtor be compelled to pay what he owed, he shall not be relieved by the Praetors Edict, saies Julianus, because he is not damnified, but he that committed the force, shall forfeit the debt; To that purpose Marcus the Emperour told Marcia­nus, If you have any cause of suit, it had been your best course, to have prosecuted it in a Le­gall way; and when Marcianus answered, That he had used no violence, the Emperour [Page 234] replied, you think there is no violence, without wounds, or blowes. It is violence, if any man strive against anothers will, to take what is due unto him, without any judiciall order, and thereupon decla­red, That if any one should be proved, to have got­ten mony, or goods from his debtor, without his consent, and to have acted as a Judge in his own cause, he should loose his debt.

5 Of Wages due, where no fault is in him that was hired. D. 19. 2. 19. § 9.

ANtonius Aquila a Senator of Rome, conditio­ned with one, who was a cunning work­man, to pay him for his service twenty pounds for one yeare; some time of the yeare being spent in the service, the Senator died, and the heyre refused to pay the wages, whereupon the workman complained, to the Emperours Antoninus and Se­verus, who returned answer to the Petition, That in case, as it was related, he were ready to have done his service to Aquila, and no failing was on his part, it was just, that he should receive his whole wages, unlesse he had been hired, and paied for the same time by some other man: and so Papinian saies, That the Emperours deputy dying in a remote pro­vince, his Retinue or Attendance ought to have their appointed allowance, if they were not enter­tained, for the same time by some other.

6 Of Sureties being Liable for no more then they undertooke. D. 46. 1. 68. § 1.

AVrelius Romulus, taking some publique Cu­stomes to farme, Petronius Thallus and others became bound for him, as sureties, for the payment of a hundred pounds yearly, to the Exche­quer, Romulus himselfe failing in payment, the Of­ficers of the Exchequer seized his goods, and sued the sureties, both for the principall debt unpaid, and for the Interest; whereupon they petitioned the Emperour, who upon reading of the bond, where­by it appeared, that they undertook, only for a hun­dred pounds a yeare, not for the whole burthen, or charge Declared, That they were not liable for the interest; and Ordered, that Romulus his goods should be extended, for paiment of the interest, and of the principall debt, so farre as their value would reach, and that the sureties should be held liable on­ly for the remainder; as it is practised, when goods engaged or pawned, are sold for paiment of debts.

7 Of a Legacy, recoverable from the heyres, not payable, as was appointed. D. 32. 1. 27. § 2.

IVlianus Severus made his sonnes Paulus and Juli­us his heyres in his Will, and bequeathed, fifty pounds to Cornelius his Nephew, and willed that Julius Maurus his Bayliffe, should pay the same, out of the rents of his grounds due unto him; The Of­ficers of the publique Treasury, questioning the e­state of Julianus Severus, and requiring those rents, [Page 234] Julius Maurus was compelled to pay them unto them; afterwards the heyres of Julianus Severus, obtained a sentence for the estate, against the Offi­cers of the publique Treasury. The Nephew to whom the Legacy was given, sued Maurus for the same; the Emperour being petitioned declared, That the Legacy was not due from Maurus, but that it was signified by the Testator, whence it might be paid, and therefore referred him, to recover it a­gainst his heyre.

SECT. II. Of Causes Testamentary.

1 Of right to Legacies in a Will, where the names of the Heyres are blotted out. D. 28. 4. 3.

MArcellus relates a Case, which in his time was debated in the Emperours presence, concerning one, who having made his Will, blotted out the names of his heyres, (supposing them unworthy;) in which case, the estate, after the Testators death, became confiscated; The question was, Whether the Lega­cies given in that Will, ought to be performed? Some being of opinion, That the Legacies were made voide; others, That no more was voide, but what was expunged, and that in a doubtfull case, [Page 239] it was the justest, and safest way to make a favoura­ble construction. He recites the case, pleading, and sentence given by the Emperour Antoninus, The case was thus, Valerius Nepos had made his Will, and af­terwards obliterated the names of those, whom he had written his heyres; The Emperour said, That the Legataries could pretend no right; and told the Advocates of the Treasury, That they should re­move the cause to the Judges thereof; Vivius Zeno being a Legatary in the Will, said, I beseech your Majesty, to heare me patiently, What doe you con­ceive shall become of the Legacies? Whereupon the Emperour said, Doe you think, that he who struck out the names of his heyres, would have the Will stand good for Legacies? Then Cornelius Pris­cianus Advocate for Vivius Zeno replied, He cancel­led only the names of the heyres: Then Calphurnius Longinus Advocate for the Treasury, Affirmed that there can no Will be good in any part, wherein there are no heyres; to whom Cornelius Priscillianus answered, He did not only bequeath Legacies but gave freedome unto Bondmen; The Emperour ha­ving heard what was said on both sides, comman­ded the parties, and Councell to withdraw, and ha­ving considered of the businesse, willed, that they should be againe admitted into his presence, and then declared, That he held it requisite, to make the most favourable construction in that businesse, which was, That that only should be held voyd, which was expunged, & although he had expunged the name of one Bondman, whom he had made free, yet he pronounced, that he also should be free, which it seems he granted in favour of freedome.

2 Of an Heyre made in stead of one supposed to be dead D. 28. 5. 92.

PActumeius Androsthenes, made Pactumeia Magnae daughter to Pactumeius Magnus, heyre to his whole estate; and in case she should faile, and her Father survive her, he substituted her father, in her place as heyre; It happened, that Pactumeius Magnus was slain, and it being commonly reported, That his daughter also was dead; Androsthenes altered his Will, and made Novius Rufus his heyre, premising these words, Because I could not be so happy, as to have those myne heyres, whom I in­tended, Therefore Novius Rufus shall be my heyre. Pactumeia Magna petitioned the Emperour to be re­lieved against that Will; and the cause being heard, although there was a reason inserted, for making Novius Rufus his heyre; yet because a false rumor ought not to create a prejudice; the Emperour, re­specting the Will, and intention of the Testator, thought she was to be relieved; and pronounced, That the estate or inheritance, belonged to Pactu­meia Magna, but withall, that she ought to performe the Legacies, given in the latter will, even as farre, as if she her selfe had been appoynted heyre therein.

3 Of an Heyre trusted spending the estate. D. 36. 1. 54.

CAius made Titius his heyre, and requested of him, that what should remaine of his estate, at the time of Titius his death, might be re­stored to Maevius. Titius before his death alienated, [Page 239] and spent much of the estate. It was questioned, whether Maevius might recover any thing by way of satisfaction, from Titius his heyre? Papinian answe­red, That if it were alienated, or spent purposely, to diminish the estate, which was intended to Maevius, he might recover some thing; but if that could not be proved, He had no cause of action; because in matters of trust, faire dealing only is required. But the Emperour Marcus, saies he, having the conu­sance of a cause, concerning an estate left in trust, in the same manner, declared, That the exspences, pretended to have been made necessary about the e­state, should not wholly be charged upon it, but if the heyre, had some other estate of his owne, his exspences should be laaid proportionably on that, together with the other; Which determination of the Emperour, Papinian confesseth consisted with Equity, and was not without an example; For when a Fathers estate, was to come into a distribu­tion amongst brothers, whereof one being a Soul­dier, had a peculiar estate of his owne, which he had gained by his service, and demanded allow­ance, for what he had disburst for his proper main­tenance; The Emperour determined, that those disbursements should be charged, as well upon his own peculiar, as upon his Fathers estate.

4 Of the Father wasting an Estate intended to his Sonne. D. 36. 1. 54.

LVcius Titius made Junius Cerealis his heyre, and requested him, to confer the estate upon Ju­nius Simonides his Sonne, when he should be at his own disposing; The Father prodigally wast­ing the estate, complaint was made, on behalfe of the sonne, to the Emperour Adrian, who, the mat­ter being proved, decreed, That the Father should forthwith render up the estate, and have nothing to doe with it, during his sonnes life; for, because he had formerly wasted the estate, and it did not a­gree with the respect, due from the sonne to the Fa­ther, to make him put in security to preserve the estate, (which amongst other persons might have been done) the Emperour deprived him of that be­nefit; which was given him by the will, yet it was thought proper, for the reverence due to the Fa­ther, from the Sonne, that if the Father fell into want, the Judge might take order, that he should be maintained, out of the profits of his Sonnes e­state.

5 Of compelling one to performe a trust. D. 36. 1. 16. § 17.

IN the time of the Emperour Antoninus Pius, there happened such a case. Pamphylus in his will made Theodatus, and Evarestus his heyrs, and be­queathed his Bondman Hermias to Theodatus, and required him, when he had taken upon him as heyre, to make Hermias free; and required of Eva­restus, when Hermias was free, to convey unto him, [Page 241] that part of the estate, which might come to him as heyre, which he had left unto him only in trust, for that purpose; Theodatus taking upon him as heyre, made Hermias free, but Evarestus, suspecting the e­state might prove troublesome, refused to take up­on him as heyre, and to intermeddle therewith, whereupon the Emperour being petitioned unto by Hermias, gave order to Cassius Dexter the Judge, to compell Evarestus to take upon him as heyre, and according to the trust to convey the estate unto Hermias.

6 Of a Legacy left by way of Confidence. D. 31. 1. 66. § 10.

ONe in his last Will wrote, That he made no doubt, but that his Wife, would leave unto their children, whatsoever she received of his estate. It was questioned, whether she were bound by those words? The Emperour Marcus de­clared that she was bound, as much as if he had gi­ven her an especiall charge to that purpose; and Pa­pinian saies, That the Emperours resolution was ve­ry necessary, That the confidence of a kind Hus­band, might not prove prejudiciall to the children, which ought to be as deare unto the Wife, as to himselfe.

SECT. III. Of Reforming or Confirming sentences given by other Judges.

1 Of an Examination unduely taken by Torture. D. 48. 18. 20.

A Husband being heyre to his Wife, de­manded mony of Surus, which he said, his Wife in his absence, had left in trust with him, and to that purpose produced one witnesse; and desired, the defendants Maid fer­vant might be examined by torture, Surus denied that he received any such Mony, and said, that his Servant ought not to be examined in that manner; but the Judge examined the Maid, as was desired, and finding her to agree with the other witnesse, condemned Surus, who thereupon appealed to the Emperour, who being inform'd of the proceedings, pronounced That the Maid servant was unduely ex­amined, and that credit was not to be given to one witnesse, and therefore Surus had just cause to ap­peale.

2 Of a sentence confirmed by the Emperour, touch­ing the negotiation of a Factor. D. 14. 5. 8.

TItianus intrusted his servant, with power to lend monies, and to take pledges or pawnes, and the same fervant, did likewise undertake for o­thers, who bought Barly, and paid for what he un­dertook; when the servant was run away, one who had trusted him, for the price of some Barly sued the Master, the Master pleaded, he was not liable, because he gave his servant no commission for such businesses, but when it was proved, that the same servant, had provided storehouses for Corne▪ and had paid divers others for the like commodities, The President or Judge, in such causes gave sen­tence against the Master; The cause being appealed, Paulus said, that there was a difference betwixt the Servants contracting himselfe, and undertaking by way of surety-ship for others, and that it was not likely, that the Master gave him any such commissi­on, and therefore could not be obliged by such his undertakings; But because it appeared, that he had a generall power to act under, and for his Master, the Emperour confirmed the sentence.

3 Of the heyres of one indebted to the Publique, to be sued before those, who bought of the estate. D. 49. 14. 47.

A Woman called Moschis, being indebted to the publique Treasury, left her estate unto her heyres; of whom Faria Sinilla and others bought certain grounds, those being sued for the [Page 244] debt, and arrears of Moschis, pleaded that her heyres were sufficiently able to pay the debt; The Empe­rour thought reasonable, that the heyres should first be sued, and that what could not be recovered from them, should afterwards be raised by those who were in possession of the estate.

4 Of a sentence given by combination and corruption of Witnesses. D. 42. 1. 33.

IVlius Tarentinus, presenting his Petition to the Emperour Adrian, complained, that by the com­bination of his adversaries, with false witnesses, corrupted with mony, the Judge had been swayed, to give sentence against him, and besought, that he might be relieved, or restored against that sentence; whereupon the signified his mind to the Praetor, in this manner, I have given order, that the Petition of Julius Tarentinus presented unto me, be sent unto you; and if he shall make it appeare, that he hath been opprest, by combination of his adversaries, and corruption of witnesses; I wish that you severe­ly punish it, and, if by such ill courses, the Judge hath been abused, let him be restored against that sentence.

5 Of an Advocate compounding for the event of the Suit. D. 17. 1. 6. § 7.

DAphnis being sued for land which he held, and the profits thereof received by him: Ma­rius Paulus his Advocate, in consideration of mony given, became surety that Daphnis should per­forme [Page 245] the Sentence of the Court; and then cove­nanted with Daphnis, That in case he should pre­vaile in the suit against his adversary, that he should convey the fifth part of the land, to a friend to his use. The Sentence passing against Daphnis. Clau­dius Saturninus the Praetor, ordered that Marius Paulus should see the Land restored, and pay ten pounds for the profits received; and for that con­trary to the Law he had contracted for part of the Land to be conveyed upon the event of the suit, he suspended him from pleading as an advocate. Marius Paulus having an intention to sue Daphnis for what he had been enforced to pay, by occasion of his suretiship. The Emperour being informed thereof, declared that he should have no remedy; because he had made an unlawfull contract.

TITLE VII. Of Judicature in Causes Criminall.

Iudicature in Causes Criminall is, when before speciall Iudges appointed to that purpose, Offen­ces done against the Publique, are Prosecuted for the inflicting of due punishment, concerning which, Cases and Questions happen; 1. Touch­ing the manner of Proceedings. 2. Touching the Offences committed, 3. Touching the effect of the Proceedings and Sentences.

SECT. I. The manner of Proceedings is in the Discovery, Apprehending, and tryall of Offendors.

1 Of Informations given against Offendors. D. 48. 3. 6.

THe Emperour Adrian, being consulted by Julius Secundus, concerning the in­formations given against Offendors, wrote unto him. This is not the first time, that notice hath been given, that too much [Page 247] credit ought not to be had to their advertisements, who take upon them to condemne, insteed of in­forming; And the directions of Antoninus Pius the Emperour are extant, which he publisht, when he had the goverment of Asia, to this purpose; That the Conservators of the Peace, when they had ap­prehended violent Theeves, should examine them, concerning their Companions and Receivers, and that they should send their examinations inclosed, and sealed to the President, and therefore they, who were sent, together with the accusations, ought to be heard againe, although any thing were signified by letters, or delivered by the Conserva­tors themselves, and so both the same Emperour, and others, signified concerning those, who were detected, and ordered to be enquired after; That they were not presently, to be taken for guilty per­sons, but to be newly proceeded against, if there were any, who could prove any thing against them, And therefore, when the Praesident intended to ex­amine the businesse, he should appoint the Conser­tor of the peace, to attend, and to maintaine what he had informed, and if it be found, that he had di­ligently, and faithfully discharged his duty, he should commend his service, but if it were indis­creetly done, and upon no good ground, he should tax his negligence; but if he found that his enqui­ries were captious, to entrap persons, or the Testi­monies were misreported, he should inflict on him, some punishment for example sake, that he might not presume hereafter to doe the like.

2 Of one accused undertaking to accuse another. D. 48. 1. 5.

IF one stand accused, it concernes him to clear himselfe, neither can he be admitted to accuse o­thers, before he himselfe be acquitted, For so it is ordained, by the Imperiall Constitutions, that par­ties accused clear themselves, by shewing their own innocence, not by charging crimes on other men, But this saith Vlpian, is questionable, whether he only may accuse another, who is acquitted, or whe­ther he also, who hath undergone the punishment due for his fault, in regard the Emperours have de­clared, that after one is condemned, he may not un­dertake to maintain an accusation, but he is of opi­nion, That that is meant, of such as are condemned to slavery, or banishment.

3 Of one being accused, of what he was once acquited. D. 48. 2. 7. § 2.

THe Emperour Antoninus Pius signified to Sal­vius Valens, that the President ought not to suffer one, to be accused of a crime, of which he had formerly been acquitted; But Vlpian saies, It is considerable, whether it be intended of the same accuser, or of another, and he is of opinion, That in regard, a judgement past betwixt some, makes no prejudice to others, If one who appears as a fresh accuser, prosecutes a cause, wherein he hath an in­terest, and can prove, that he had no notice of the former proceedings, out of some weighty reason, he may be admitted.

4 Of the same accuser, of another crime. D. 48. 2. 7. § 3.

HE who failed to make good an accusation touching one crime, offered to charge the same person with another: Vlpian was of o­pinion, that he ought not easily to be admitted, yet he confesseth, That the Emperour Antoninus Pius, wrote to Julius Candidus. that although the Father had failed, in maintaining an accusation, his Sonne ought to be allowed, to charge the same person, with some other crime.

5 Of an Offendor offering Baile. D. 48. 3. 3.

ANtoninus Pius the Emperour, being consulted by the Citizens of Antioch, what they might doe with an offendor, who offered baile; wrote unto them, That he, who would put in sure­ties for his appearance, ought not to be kept in pri­son, unlesse it be manifest, that he hath committed, such an offence, that he ought neither to be trusted upon his giving of sureties, nor on commitment to any guard, but ought to be used, as if he had deser­ved to undergoe the punishment of imprisonment, before he came to suffer that, which was to be in­flicted for his offence.

6 Of Proceeding against an Offendor absent. D. 48. 19. 5.

TRajan the Emperour being consulted, by Juli­us Fronto the Proconsvl, Resolved him, that a person absent ought not to be condemned, in a Criminall cause, and signified to Aufidius Seve­rus, That no man was to be condemned upon su­spition; because it was better a guilty person should be absolved, then that an innocent person should be condemned. But if men accused were obstinate, and refused to obey the summons, and decrees of the Magistrate, they might, saies Vlpian be condem­ned, although they never appeared in judgement, in Criminall causes, as it is usuall in causes private, and Civill, which he saies may be maintained, with­out imputation of contradiction, And putting the question how? He answers, If the penalty of a crime be only pecuniary, or such as tends to the deminu­tion of Credit, if being often summond, he obsti­nately absent himselfe, he may be proceeded against so farre, as to a banishment for a time; but if the crime requires a heavier censure, as the depriving him of life, or liberty, such penalties ought not to be inflicted upon absent persons.

6 Of Crimes committed by the same Person, in severall Provinces.

WHen one who had cōmitted Sacriledge in one Province, was appehended for a les­ser crime in another, P. Proculus the judge, consulted the Emperour Antoninus Pius what was to be done, who gave directions, that he should first [Page 251] try him, for the crime, for which he was appre­hended, and then send him to the place, where the sacriledge was committed.

SECT. II. Of Publique Offences, as Homicide, Parricide, Treason, &c.

1 Of the intent in Man-slaughter. D. 48. 8. 1. § 3.

ADrian the Emperour, to a petition, concern­ing one who was slaine, where the inten­tion was doubtfull, returned this answer. He that hath killed a man, if he did it not, with a purpose of killing him, may be acquitted, and he who wounded a man, with a mind to kill him, although he killed him not, ought to be con­demned, as a man-slayer, and that it is to be deter­mined, from the circumstances of the fact, for if he drew a sword, and struck a man therewith, it ought not to be doubted, but that it was done with a pur­pose of killing him, but if he struck him with a key, or with a pike-staffe, albeit with an Iron poynt, it shall not be thought, that it was done with a mind to kill him, and his punishment ought [Page 252] to be mitigated, who in a fray, or suddain quarrell, kills a man rather by chance, then of set purpose.

2 Of killing persons found in Adultery. D. 48. 5. 20. 22. 24. & 38.

IT was lawfull saith Pupinian, for the Father to kill an Adulterer with his daughter, found in the fact in his own house, and it was lawfull for the Husband to kill a person of base condition, found in Adultery with his Wife, and as he ob­serves, there was more power given to the Father, then to the Husband, to kill the Woman, and the Adulterer without distinction. Because the tender­nesse of a Father, will make him more circumspect in his resolution, but the heat and rashnesse of a Husband, needed to be limited. Yet Marcus Antoni­nus and Commodus his sonne being Emperours, and consulted upon occasion of the Husbands killing his Wife, returned answer, If the Husband tran­sported with indignation and griefe, killed his Wife found in Adultery, he ought not to be punisht with death, giving for reason, that the Emperour Antoni­nus Pius signified his mind to that purpose to Apol­lonius; the punishment of death, said he, may be re­mitted to him, who doth acknowledge that he kil­ed his Wife, found in Adultery, because it is a most difficult thing to overcome a passion, justly concei­ved; yet because in taking his own revenge, he did more then may be justified, he ought not to goe un­punisht; and therefore it may suffice, if he be a per­son of mean condition, to condemne him to the Mines; if he be one of better quality, to confine him to some Island.

3 Of Accessaries to Man-slaughter. D. 29. 5. 3. § 4.

IF the Master of a Family were killed in his own house, if any of his Bondmen were faulty, in not defending him▪ he was to suffer death. It happe­ned, that one was Bondman to two partners, in the same house, both being assaulted, he rescued the one, but not the other; It was questioned, whether he ought to suffer, for that he did not rescue both? Vlpian said, If it were in his power to have helped both, and he had neglected one, he might justly suffer; but if, when he could not relieve both, he chose rather to help one, it were hard to say; that he offended, in hasting to help one rather then the other.

4 Of a Minor not helping his Master. D. 29. 5. 3. 14.

THe Law not extending to Bondmen, under the age of fifteen, yet Trebius Germanus, being Pro-consul, put to death a Bondman within that age: and not without reason, saies Marcianus, for the young man did not want much of the age of fifteen, and lay at his Masters feet, when he was slaine, and did not afterwards reveale the slaughter and as it appeared, that he could not help his Master in that case, so it was certain, that he made no discovery afterwards; and such as are Minors, yet if they be of sufficient understanding, to discerne such a villa­ny, they are no more to be spared, in case of their Masters death, then of any other mischievous act.

5 Of Parricide, committed by one supposed Madde. D. 1. 18. 13. & 14.

MArcus and Verus the Emperours being con­sulted by Scapula Tertillus concerning Aeli­us Priscus who hed killed his Mother, ad­vised as solloweth; If it clearly appeare unto you, that Aelius Priscus was so distracted: with a totall continued, defect of understanding; that there could be no suspition, that in a dissembled madnes, his mother was killed by him, you may desist from the punishment of him, his madnesse it selfe, being a sufficient punishment, yet you are to take care, that he be kept in more closely; because such re­straint ought to be used, for his punishment, and preservation, and also for the security of others; But if, as often times it happens, his madnesse takes him by fitts, and at the time of the villany committed, he was free, he ought not to be excused, by colour of his disease, and touching this, you are to make good enquiry, that we being informed, may determine of the foulenesse of the fact: And whereas we un­derstand, by your letters, that he is kept at his Country house by servants, and friends of his own, you shall doe well, to call before you, such as at that time attended him, and to examine throughly how, and by what negligence, the fact happened to be committed, and as you shall find any of them more or lesse faulty, to censure them accordingly. For guards, or keepers are appointed for mad men, not only to look that they doe not mischiefe to themselves, but also that they be not destructive to others, which if it be done, it may be well imputed to their fault, who were more negligent then was fit in their imployment.

6 Of Treason. D. 48. 2. 20. & 48. 4. 11.

IT is generally observed, that for crimes prosecu­ted in the way of publique Judicature, the penal­ty, or forfeiture of goods, falls not upon the heyres, unlesse sentence be given, in the life time of the offendor, But Modestinus saies, It is otherwise in Treason, which may be prosecuted against the heyrs, to make goods confiscated, although the parties be dead, and that Severus and Antoninus the Empe­rours declared, that he that was guilty of that crime, might not alienate any of his goods, after the time of the sact committed. But Vlpian saies, that every one that is guilty of Treason, is not of that condi­tion, but he that is a Traitor in an eminent degree, as such who with an affection of enemies, practice something against the Prince, or the Common-wealth.

SECT. III. Of the effect of Criminall proceedings.

The effect of Criminall proceedings, is the Validity of Confession, voluntarily or upon Torture; of Respit given for Execution, of Pardon, or Restitution, and the like.

1 Of confession voluntarie, and upon Torture. D. 48. 18. 1. § 27.

HE is not alwaies to be believed, saith Vlpian, who voluntarily confesseth, he hath committed some hainous crime, for sometimes upon feare, or some o­ther occasion, men betray themselves, as appears by [Page 256] a letter written by the Emperours, to Voconius Saxa; who had signified to them, what happened in a cause wherein he had proceeded; Wellbeloved Saxa we cannot but commend your great discretion, and moderation, in that you condemned Primitius the Bondman, who out of feare to returne to his Ma­ster, confest that he had killed a man, he persisting in the same relation; as also for your Enquiry, by torture, after his complices, whom he falsely im­peacht as well as himselfe, that you might the bet­ter discover the truth of his confession; and that your providence was to good purpose, it afterwards appearing, upon the torture, that he had foolishly wronged himselfe, and others; you may therefore dispence with your sentence, and give order he be sold, that he may not returne againe under the pow­er of his Master, who we believe, will be contented, to receive the price, and part with such a servant.

2 Of Offendors condemned, restored. D. 48. 23. 2. & 3.

ONe who for an offence, had a punishment in­flicted, whereby he lost his freedome, and his goods, was restored to his freedome, but had his goods retained as forfeited to the publique Treasury; Papinian being consulted, answered, That his Creditors could bring no action against him, for any debt contracted by him before his punishment, but if he were restored to his goods, as well as to his freedome, he was liable to any ordinary action: Vlpian adds, That if he were restored to both by the Prince, but to avoid mens actions, he relinquisht the benefit of his goods, he cannot thereby free himselfe, from actions to which he formerly was subject.

FINIS.

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