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
from being a Senator if the sonne were conceived before that time and borne afterwards he shall rather be held a Senators sonne then otherwise for most are of opinion that the time of conception ought to be regarded Vlpian saies farther That if one have both his Grand-Father and his Father Senators he shall be held the sonne and grand-child of a Senator Whereupon it is againe questioned whether if the Father were degraded before the sonne were conceived although he have not the reputation of a Senators sonne he may not be respected as the Grand-child of a Senator and it is held saies he that he may so that the dignity of the Grand-father shall more availe him then the disgrace of his Father shall doe him prejudice 12 Of Senators Wives and Daughters D. 1. 9. 8. 12. SEnators Wives and Daughters are held honourable because Husbands communicate their honours to their Wives Fathers to their daughters but it is questioned whether they continue so when they are married to men of a lower ranke Vlpian saies that as long as they continue single or are married to men of equall degree they retaine their dignity not otherwise and therefore if Women who were married to such as have borne the Office of Consul afterwards became Wives to men of lesser dignity they did sometimes but rarely obtaine by the Princes favour to retaine their former condition which favour as he saies Antoninus the Emperour vouchsafed to Julia Mamea his consengermane 13 Of the Pro-Consuls naming a Deputy before he enters into his Province D. 1. 16. 4. 5. THe Pro-Consul after he entred into the Province which was assigned unto him usually committed authority to his deputy and it was questioned whether if before that he entred he appointed a Deputy it were of force to which Vlpian sayd That he could not do it for it were absurd that he should conferre authority upon any other before he were invested therewith himselfe and it is certaine he hath none untill hee come into the Province But he saies if the Pro-Consul before he comes into the Province doe make a Deputy and when he comes there continues in the same mind It ought to be thought that the Deputy hath power and authority not from the time of his nomination but from the time the Pro-Consul entred into the Province Papinian saies That it may so happen that the Pro-Consul may make his Deputy although he be not entred into his Province as if by extraordinary necessity he be staied upon the way and the Deputy may come there timely enough before him SECT III. Of the reputed state and condition of Persons The reputed state or condition is when persons in common estimation are held to be such as in truth they are not or may be otherwise whether they be of private or of publique quality as Reputed free-men Married persons lawfull Children of full age Tutors Magistrates Persons of credit or infamous persons 1 Of Freedome enjoyed by a will which after-wards proves voyd D. 40. 4. 29. LVcius Titius put away his wife being great with child and shee being delivered of a sonne left it to the mercy of him that should find it This child was taken up and bred by a stranger but was unknown both to the Father and Mother whether it were living or no The Father being dead left a will wherein divers bondmen were made free and no mention made of the Sonne Some years after the sonne being owned by the Mother and Grandmother of the Fathers side the Will being held void he enjoyed the estate as the proper heire to his Father It was then questioned whether they to whom freedome was given in the will ought to be held bondmen or free Scaevola answered that the Sonne although he were ignorantly past by in his Fathers will had no prejudice it being made voide but that the persons who were made free in that Will and had remained in that condition by the space of five years should be reduced to servitude was contrary to that favour which the Law affords to freedome 2 Of Persons cohabiting as Man and Wîfe D. 23. 2. 24. 39. 5. 31. IF a man not known to be married did cohabit and keep company with a Woman It is questioned whether shee is to be reputed his Wife or his Concubine Modestinus answered That he who converseth with a Woman ingenuous or free borne ought to be conceived to doe it rather in the way of marriage then of keeping her as his Concubine unlesse shee were one who was known formerly to have demeaned her selfe dishonestly Papinian saies it is considerable whether the affection and respect of a Husband towards a Wife were used betwixt them their qualities being compared and the manner of their mutuall society being observed For true marriage is not made only by Indentures or writings 3 Of a Child borne in Wedlock D. 1. 6. 6. IT is generally held for a rule saith Vlpian That a child borne during marriage betwixt the Husband and the Wife is the Husbands child But suppose saith he that the Husband hath been absent from his Wife ten years and returning findes with his Wife a child of a year old In that case hee agrees with Julianus that it is not the Husbands child But whereas the same Julianus affirmes That it is not to be endured that he who cohabits altogether with his Wife should disclaime her child as none of his Vlpian admits not that without distinction but holds with Scaevola That if it be notorious that the Husband by reason of sicknesse or some other impediment could not lye with his Wife or were disabled from getting a child although one be borne in the same house and the neighbours had taken notice thereof it ought not to be reputed his child 4 Of a Minor upon view allowed by the Magistrate to be of full age D. 4. 4. 32. ONe under the age of twenty five years addressing himselfe to the Magistrate by shewing his visage made a false proofe of being of full age his Curators well knowing that he was yet a Minor continued in the administration of his estate In the mean time after his age was allowed by the Magistrate and before he had compleated his twenty five years monies which were owing to his estate were paied unto him and spent foolishly by him It was questioned who were in danger for the mispending these monies and whether the Curators might have been excused if they had persisted in the same error and yeelded up their administration of the estate Paulus answered that they who paid in the monies due to his estate were freed by Law and ought not to be farther questioned for the same but it is certain that the Curators who knowing him to be a Minor did continue in that charge ought not to have suffered him to receive the monies due and are liable for the same but if they had submitted to the Magistrates judgement and had desisted from the
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
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
It is questioned Whether if he have not a Sonne Seius hath not right to be his heyre together with his Daughter or if he have not a Daughter Seius ought not to be co-heyre with his Sonne Julianus saies The Will was not well conceived For if it was his meaning that he should not have been his heyre in those cases he should have exprest it thus If neither my Sonne nor my Daughter shall be my heyre then Seius shall be my heyre It is true that it might be his intention That if he had a Sonne and a Daughter that both shall be his heyres and it might be his meaning that if he had but one Sonne and one Daughter that Seius should be his coheyre with the Sonne or Daughter or that it was his purpose that if he had neither a Sonne nor a Daughter Seius should be substituted as his sole heyre and he inclines to this opinion That the Testators meaning ought to be understood that whether he had a Sonne or a Daughter Seius the stranger should not be taken for his heyre unles he had expresly declared his mind to that purpose 2 Of a Substitution in case two Sonnes dye without Children one of them happening to have Children D. 36. 1. 57. § 7. SEmpronia having two Sonnes Lucius and Titius and a Niece named Claudia made both her Sons her heyres equally and then commended to their trust That if either of them should dye before the other leaving no Children he should restore his part of the estate unto the brother surviving and that if they should both dye without Children that then her whole estate should come unto her Niece Claudia Lucius dying first left a Sonne behind him Titius afterwards dyed without any Children It was questioned Whether his estate ought to descend unto the Niece Papinian answered That the condition of the Substitution being in these words If both the Sonnes dye without children at the first view it might seeme that Claudia the Niece could claime nothing because one of the Sonnes dying left a Sonne but he saies if it be better considered it may be thought absurd That the condition of the substitution by which the whole estate was conveyed failing yet the condition happening in part should not worke something as to derive the part of him who dyed without children to the Niece to whom in case both had so died she intended the whole estate 3 Of Substitution of one to be Heyre in case a Child dyed before the age of tenne and of another if before the age of fourteen years D. 28. 6. 43. ONe made his Will and therein ordained that his Sonne being an Infant should be his Heyre and then declared that if his Sonne shall dye before he accomplish the age of ten years Titius should be his Heyre and if he shall dye before he were of fourteen years compleat then Maevius should be his heyre It happened that the Son dyed when he was but eight years old It was questioned whether Titius alone ought to be admitted as his substitute or whether Maevius also were not to be joyned with him because it was certaine the Sonne dyed both within the age of ten and also within the age of fourteen years Paulus answered The Father had power to substitute an Heyre unto his Sonne in case he should dye at any time before he had compleated fourteen years and no longer But it is most reasonable that he having alotted severall times for two to succeed by way of Substitution that the time allotted to either should be understood severally unlesse it can be plainly shewed that the Testator intended otherwise 4 Of one Substituted by the Father to a Son that was Dumb who afterwards had a Child D. 28. 6. 43. MAevius having a Sonne of the age of fourteene years whom he intended to make his Heyre in the first place in regard he was dumbe and could not make a Will obtained leave of the Emperour to Substitute an heyre to his Sonne and did substitute Titius afterwards the Sonne who was mute his Father being dead married a Wife and by that Wife had a Sonne It was questioned Whether the Substitution of Titius were of force Paulus answered That it was usuall for the Emperour to interpret his own grant in the way of favour to any man But if the Will and pleasure of the Emperour be taken into consideration it may be conceived that his grant was to that effect only so long as the disability of the Sonne continued For if he had given licence to a Father to substitute to a Sonne who was then madde all men would think that the substitution should be void if the Sonne recovered his witts for if it should hold notwithstanding it would prove unjust as depriving a man of good understanding of the power to make a Will And for the same reason the Sonne having a Sonne who properly ought to be his heyre the substitution ought to be held as disanulled for it is no difference whether the Sonne attaine to the ability of making an heyre or begin to have an heyre whom the Law appoynts Neither is it probable That either the Father or the Emperour if they had thought on such a case would have done any thing for the disinheriting of the Grand-child 5 Of one Substituted to the Survivor of two who both dye at the same time D. 28. 6. 34. LVcius Titius had two young children whom he made his heyres and substituted Seius to him that should dye last of the two It happened that they dyed both at the same time It was questioned whether the substitution of Seius did hold and to whom he might be reputed to succeed Africanus answered That he ought to be understood substituted to both because he is understood to be last not only that is after another but he also that hath none after him as on the other side he is understood to be next not only who is before another but he also that hath none before him vid. 42. D. Eod. 6 Of a Substitution upon severall Contingencies D. 28. 5. 85. LVcius Titius made his will after this manner I doe ordaine that Seius my brother shall be the heyre of my whole estate and if he shall refuse to be my heyre or which God forbid shall dye before he take upon him as my heyre or shall have no Children then my will is that Stichus and Pamphylus my Bondmen shall be free and equally my heyres Seius the brother took upon him to be heyre to Lucius Titius the Testator but when he took it upon him he had no Children It was questioned Whether in that case Stichus and Pamphylus were not made free and became heyres to the estate because they were substituted first if he refused secondly if he dyed before he took upon him as heyre thirdly if he had no Children or suppose they shall not be free and heyres by vertue of the substitution Whether some part of the estate ought
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.
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