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 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 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
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
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 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 agreeable to the Will of the
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 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 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 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
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 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 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 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
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 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 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 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 to whom they
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 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 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 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
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 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 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 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 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 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 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
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 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 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 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 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.
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 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 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 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