That both the causes were to be determined before the Judge that hath Comisance 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 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 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 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
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 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 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 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 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
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 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
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. 2â— 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 bouÌ„d 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 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 bâ—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 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
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 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 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 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
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 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 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 be-because 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 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 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 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 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 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 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
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 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 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 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 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 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 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 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 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
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 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 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 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 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 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 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