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 civil-law, for the use of Students in that Profession, the Author was persuaded to publish them in English, that others also might discern, that the study of that learning conduceth to the knowledge of some things, worthy of consideration. It is true, that much herein may appear foreign, in respect of the conditions of persons, and things with us; as, the quality of Slaves, or Bondmen, the completing 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 usual, and currant amongst us. Some Resolutions likewise may seem to be grounded, only upon the Author's 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 do show 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, Herald   

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 judicature.  
TIT. 2 Arbitrement.  
TIT. 3 judicature of the Admiralty.  
TIT. 4 judicature of the Treasury.  
TIT. 5 judicature of the Praetor or Chancellor.  
TIT. 6 judicature of the Prince or Emperor.  
TIT. 7 judicature Criminal.    


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 Children 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 Son perishing together. 4    

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

1 Of Freedom bequeathed in the second year after the Testators death. 5  
2 Of Freedom bequeathed in consideration of service to be done. 6  
3 Of persons freeborn. 7  
4 Of a City or Corporation. 7  
5 Of one returned out of Captivity. 8  
6 Of one delivered up to the enemies. 9  
7 Of Marriage accomplished. 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 Error. 11  
11 Of Senators Sons. 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 freedom enjoyed by Will, which afterwards proved void. 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 Error. 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 man's testimony rejected. 20     

TIT. 2. Of title to Goods and Land.  

SECT. 1. Of Common Right or Property.  

1 Of a Wild Beast chased and wounded. 21  
2 Of a Wild Beast taken in a net. 22  
3 Of Pigs recovered from a Wolf. 23  
4 Of a thing stolen afterwards lawfully bought. 24  
5 Of things composed by one, of another man's materials. 24  
6 Of an Island newly arising in a river. 25  
7 Of ground where a River leaves its channel. 26  
8 Of money given to the end that he who received it, should buy something therewith. 27  
9 Of moneys lent to be given to another. 27  
10 Of moneys 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 gift of grant to dwell in some house or lodging. 29  
13 Of a gift given by way of reward. 29  
14 Of a gift of a thing mortgaged to another, before delivery. 30  
15 Of a gift voidable by the death of the donee, before the donor, both happening to die 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 die before her child, or the child before the Mother. 33    

SECT. 2. Of special 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 Renewed 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 windows and doors set up in another man's house. 44  
6 Of one that sold another man's house becomning heir 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 Pool bought with ten foot about it. 47  
3 Of a Ground sold to be measured within thirty days. 48  
4 Of Trees blown down after the view before the sale. 49  
5 Of Stone-quarries reserved in a ground sold. 49  
6 Of Lands sold disposed of otherwise by the Prince. 50  
7 Of a price conditioned to be paid once offered, afterwards neglected. 50  
8 Of loss in Wines, happening after the sale. 51  
9 Of notice to be given concerning Wines bought. 51  
10 Of a false estimation made by one hired to build a house. 52  
11 Of a Workman hired by great, receiving wages by the day. 52  
12 Of Corn agreed to be received in stead of rent. 53  
13 Of the Tenants profits hindered by the Landlord. 54  
14 Of the Tenants profits hindered otherwise then by the Landlord. 54  
15 Of unnecessary charges laid out by a Partner. 55  
16 Of Losses befallen to one of two partners. 56  
17 Of a reputed Heir, joining with a surviving partner. 56  
18 Of equality to be kept in division amongst partners. 57  
19 Of one requesting another to buy something whereof he might have a share buying the whole to himself. 58  
20 Of undertaking to save one harmless during another's life. 58  
21 Of undertaking as much in effect as was desired. 59  
22 Of power not to be extended to deceit. 59  
23 of on acting by a letter falsified. 60  
24 Of money delivered as gift, received as loan. 60  
25 Of moneys given to be lent to him that gave it. 61  
26 Of moneys ordered to be lent by one, received as lent by another. 62  
27 Of Plate delivered to be sold, instead of moneys desired to be borrowed. 62  
28 Of a Horse lent failing in his journey. 63  
29 Of a thing lent to two and lost. 63  
30 Of a thing lent & lost, received by the owner. 64  
31 Of interest of money deposited undertaken to be paid. 64  
32 Of fair and conscionable dealing touching things deposited in several respects. 65  
33 Of a House engaged burnt, and rebuilt. 66  
34 Of a shop engaged for moneys borrowed. 67  
35 Of cattle pawned and disposed of by the heir. 67  
36 Of cattle engaged before they were put into the Landlord's ground. 68  
37 Of goods proffered, but sold before engagement. 68  
38 Of a thing engaged to one for rend due at a day, and before that day engaged to another for ready money. 69  
39 Of a ground sold upon condition, & then engaged recovered for not performance of the condition. 69  
40 Of a ground engaged to three persons whereof the last redeemed it from the first. 70    

SECT. 2. Of special Contracts.  

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

SECT. 3. Of Reputed Contracts.  

1 of a Grandmother maintaining her Niece in Minority. 81  
2 of moneys laid out in respect of one, proving to be for the benefit of another. 82  
3 of a debt acknowledged by a Factor, on his Master's behalf. 83  
4 of goods received by a Servant to the M. use. 83  
5 of a Tutor's account to be made for interest not for gains. 84  
6 of a Tutor answerable for gain by special appointment. 84  
7 of Alimony and Education to be allowed to a Tutor for a Minor. 85  
8 of a Tutor keeping to his own use, a Minors goods, which a Chapman refused. 86  
9 of Curators of the City, not to be questioned for more than came to their hands. 86  
10 of the public money of the City lent to use. 87     

TIT. IV. Of Penalty.  

SECT. 1. Of offences wilfully committed.  

1 of Injury done occasioned by one's self. 89  
2 of an Injury done by Error or mistake of the person. 90  
3 of threatening and offering blows. 91  
4 of disgraceful words but true. 91  
5 of hindering a man from honour. 91  
5 Of Injury done by a Magistrate. 92  
6 Of two or more stealing the same thing. 92  
7 Of an Infant stolen, detained until he was a man. 93  
8 Of a Maid servant stolen, which was a harlot. 93  
9 Of two Bondservants pledges, whereof one was stolen. 94  
10 Of a Letter stolen or purloined. 94  
11 Of Writings or Bonds purloined or stolen. 95  
12 Of things taken up whereof the owner is not known. 96  
13 Of an Attorney receiving money without commission. 97  
14 Of one taking privily what he had lent. 98  
15 Of one taking away what was stolen from him. 98  
16 Of procuring credit for an unsufficent party. 99  
17 Of false commendations of a thing to be sold. 100  
18 Of making a false claim, to another man's prejudice. 100  
19 Of the like. 101  
20 Of lending false weights. 101  
21 of a counterfeit Letter. 102    

SECT. 2. Of Offences wrongfully committed. 103  

1 Of Corn fired by burning of furze. 103  
2 Of hurt done by lopping a tree. 104  
3 Of hurt done in sport or play. 104  
4 Of hurt done upon provocation. 105  
5 Of hurt done by way of correction. 105  
6 Of one killed by a Barber's razor struck with a Ball. 106  
7 Of a boy following two carts crushed to death. 106  
8 Of damage done to cattle found in another man's ground. 107    

SECT. 3. Of Offences Imputed.  

1 Of an Offence committed out of the duty of ones office. 108  
2 Of damage done by a Servant common to two Masters. 109  
3 Of one man's Ram killing another. 109  
4 Of Water falling from a higher ground into a lower. 110  
5 Of a Bank removed by casualty. 111  
6 Of the like case. 111     

TITLE V. Of Inheritances Testamentary.  

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

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

SECT. 2. Of Substitution.  

1 Of a Substitution if a Son or a Daughter shall not be a man's heir. 119  
2 Of a Substitution, in case two sons die without Children one of them having children. 120  
3 Of Substitution of one to be heir, in case a child died before the age of ten; and of another, if before the age of fourteen. 121  
4 Of one substituted by the Father to a Son which was dumb, who afterwards had a child. 121  
5 Of one substituted to the survivor of two, which both dye at the same time. 122  
6 Of a substitution upon several contingencies. 123    

SECT. 3. Of Devising in trust etc.  

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

TIT. VI Of Legacies.  

SECT. 1. Of a Real Legacy.  

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

SECT. 2. Of Legacies consisting in Right.  

1 of Freedom bequeathed to two Bondmen if they remained with the Testator at his death. 138  
2 of the choice of two things of several names given, there being two of one name of several values. 139  
3 of the choice of a Legacy not to be varied. 139  
4 of a Legacy of Bonds to be understood as when the Will was made. 140  
5 of a debt remitted by way of Legacy. 141  
6 of an annual payment to a City. 141  
7 of an yearly Legacy to officers of a Church. 142  
8 of an yearly Legacy given to uses afterwards disallowed. 142  
9 of a Legacy given to uses, no sum being expressed. 143  
10 of something in one ground, being given to be employed in another. 143  
11 of a desire that a thing bequeathed, be not alienated to a stranger. 144    

SECT. 3. Of Legacies in Trust.  

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

TITLE VII. Of Performance and Payment.  

SECT. 1. Of Real Performance and Payment.  

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

SECT. 2. Of Legal performance or Payment.  

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

SECT. 3. Of Reputed Performance or Payment.  

1 Of Monies received to another man's use, and lost without employment. 160  
2 Of goods lost by one who was fairly possessed of the estate. 161  
3 Of things perishing in one man's possession, which might have perished in the possession of the true owner. 162  
4 Of hazard of moneys due, lost after a tender. 162  
5 Of the like case. 163  
6 Of the hazard of loss, where one thing or another is promised. 163  
7 Of a thing undertaken to be performed, which afterwards ceases to be in commerce. 164     

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

SECT. 1. Concerning Persons, etc.  

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

SECT. 2. Of Proofs, etc.  

1 of proofs lying on the Defendants part. 171  
2 of proving money paid, to be due or not due. 172  
3 of proof to be made by him, who allegeth what is contrary to common reputation. 172  
4 of moneys mentioned to be due by one in his letter. 173  
5 of proof contrary to a writing canceled. 174  
6 of proving a thing beyond memory. 174  
7 of proof by one Witness. 175    

SECT. 3. Of Sentences given in ordinary causes.  

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

TIT. II. Of Arbitrement.  

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

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

SECT. 2. Concerning Borderers and Partners.  

1 of two owners of one ground in common, one of them being sole owner of the next adjoining. 183  
2 Of a Tree growing upon two several grounds coming to be divided. 184  
3 Of goods given by a common servant. 184  
4 Of charges laid out to improve a common ground desired to be divided. 185  
5 Of a common ground to be divided, whereof one man's interest is pawned, the other sold. 186    

SECT. 3. Concerning Coheirs.  

1 Of compensation in recompense of things of unequal value divided. 187  
2 Of charges bestowed by a Father on his Son in the way of Learning. 188  
3 Of a Son's portion pawned in his Father's life time. 188  
4 Of a ground, wherein were Monuments of ancestors desired to be divided. 189  
5 Of Brothers agreeing to a division without the Arbitrators consent. 190     

TIT. III. Of Maritime Judicature.  

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

1 Of a ship built with another man's materials. 191  
2 Of profits due from another man's ship. 192  
3 Of moneys lent to a master to repair his ship. 192  
4 Of goods removed out of a ship which was hired. 193  
5 Of a voyage hindered by prohibited goods. 194    

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

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

SECT. 3. Of Contributions and Fishing.  

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

TITLE IV. Of Judicature concerning the Treasury.  

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

1. Of rescinding a sale made on behalf of the Treasury 204  
2 Of public grounds hired let out to others. 205  
3 Of the profits of public grounds sold, arising within a time limited for more to be offered. 205    

SECT. 2. Of Escheats and Forfeitures.  

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

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

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

TIT. V. Of Judicature before the Praetor.  

SECT. 1. Of Relieving Minors and Debtors.  

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

SECT. 2. Of Preventing Damages.  

1 of Warning to be given to desist from a new work. 218  
2 of one who bought the ground, where a new work was begun. 219  
3 of the heir of him who proceeded in a new work. 219  
4 of one required to secure another, who sought not to be secured himself. 220  
5 of one desiring to be secured, who refused himself to give security. 221  
6 of Damage happening from one house to another without fault. 221  
7 of damage happening, before a legal course was taken to prevent it. 222    

SECT. 3. Of Decreeing matters agreeable to equity.  

1 of Treasure hid in another man's ground. 223  
2 of moneys laid out to redeem a prisoner. 224  
3 of Interest demanded for money deposited. 224  
4 of an Heir made in Trust, to convey the estate to the Testators Son or Mother. 225  
5 of a release procured by fraud. 226  
6 of the sale of a ground warranted as the seller possessed the same. 226  
7 of grounds sold the measures mistaken. 227  
8 of a Covenant not to remove a Tenant. 228  
9 of Rent to be abated for improving the ground. 229     

TIT. VI Of the Emperor's Audience.  

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

1 of the Father's fact not debarring the Son from a benefit deserved from his Grandfather. 230  
2 of restoring a Minor, the Tutors having been negligent. 232  
3 of a promise procured by force. 233  
4 of recovering a man's own by force. 233  
5 of Wages due where no fault was in him who was hired. 234  
6 of Sureties, being liable for no more than they undertook. 235  
7 of a Legacy recoverable from the heirs, not payable as was apppointed. 235    

SECT. 2. Of Causes Testamentary.  

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

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

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

TIT. VII. Of Criminal Judicature.  

SECT. 1. Of the manner of proceedings etc.  

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

SECT. 2. Of Public Offences.  

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

SECT. 3. Of the effect of Criminal proceedings.  

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

TITLE I. Of the state and condition of persons; and of the common state or condition.  
The state, or condition of Persons, is that right, which is inherent in themselves, and is either Common, Special, or Reputed.  

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

1 Of a Child borne in the seaventh month. D. 1. 5. 11.  
A Woman being delivered of a son, in the seaventh month after she was married, It was doubted, whether the child were lawfully begotten? Whereupon Paulus gave his opinion, That it was received as a thing unquestionable, from the authority of Hypocrates, that learned Physician, that a perfect child may be borne in the seaventh Month, and that therefore the child so borne aught to be held a lawful son.   

2 Of divers Children borne at the same time. D. 1. 5. 15.  
A Recusa a bondwoman, by her Master's will was made free, when she should be delivered of three children, At her first lying down, she was delivered of one, at the next of three children; It was questioned whether any of the children ought to be held freeborn? Tryphonimus answered, That it was not to be doubted, but that the last of the four, was borne free, Because nature doth not suffer two infants at the same time, to be delivered out of the Mother's Womb, so that it might be discovered which was borne in the time of her servitude, and which afterward in the time of her freedom, she herself becoming free as soon as the third child was borne: Ulpian says the the same rule holds, if she were delivered of two at the first birth, and of two other at the second, for both of the second birth cannot be borne free, but the second only, and if by reason of uncertainty, there be any doubt, it is a question of fact, not of Law.   

3 Of a Male child borne before a Female. D. 34. 5. 10. & 11.  
Freedom was given to a bond woman, when she should be delivered of a male child, It happened that at the same time she was delivered both of a male and of a female; It was questioned which of them was held to be free borne? Ulpian answered, That if it were certain that the male child was first borne there was no further question to be made, either of the Mother's freedom, or of the daughters, but if the daughter were first borne, upon that birth neither the Mother nor any of the children became free, but if it were doubtful which was first borne, and that doubt cannot be cleared by proof, he says in such cases, the most favourable judgement is to be given, and upon presumption that the male child was first borne, the mother shall be held free, and the daughter as borne of a free woman.   

4 Of an Hermaphrodite. D. 1. 5. 9 & 10.  
IN many points of the Law says Papinean, the condition of a Woman is inferior to the condition of a Man, Whereupon Ulpian says, It was questioned to whether sex an Hermaphrodite was to be referred, and he adds for his opinion, That it ought to be referred to that sex which appears most prevalent.   

5. Of the computing of Age. D. 28. 1. 5. & 40. 1. 1.  
A Man is allowed by Law to dispose of his goods, in his last will when he hath completed the age of fourteen years. Whereupon it was questioned whether it were requisite that he should have passed his fourteenth year, or it were sufficient to have attained to the last period thereof, as for example, if one that was borne on the first day of January, did make his will on the same day, in the fourteenth year of his age, whether the will were good in regard the whole day was not spent, and therefore the year was not fully complete. Ulpian answered, That the will was good, yea farther, that it had been good, if it were made, any time after midnight of the day preceding, because, the space of a day, being the period of the year, at that hour, having attained to the last day, he might be said to have completed his fourteenth year. He resolves the same in the case of making a bondman free, which none could do, but he which had completed the age of twenty years, which are held complete in the like manner, For the Law is not, that he shall be permitted who is past the age of twenty years, but he shall be restrained who is within that age, and he cannot be said to be within that age, who hath attained to the last day of the twentieth year.   

6 Of a Father and a Son perishing together. D. 34. 5. 8. §. 1.  
WHen a Father together with his son perished in the Wars; and the Father dying the Mother of the son, supposing him to have died after his Father, claimed the estate, as derived from the son unto her; and the male kindred of the Father, as heirs to him, supposing he survived, interposed for the same. The Emperor Hadrian resolved that the father died first; and Tryphoninus agrees unto it, if the son were passed a child, If Lucius Titius says he, together with his son above the age of fourteen years, whom in his will he had made his heir died together, It is understood the Son survived the Father, and was his heir, so that his inheritance is transferred to his successors, But, says he, if the son were under the age of fourteen years, the Father is held to outlive the Son, unless the contrary be proved.    

SECT. II. Of the special state, or condition of persons.  
The special state: or condition of persons is that which hath relation to the Civil Law, or Law of the Country, either of private persons, as of Freemen, Citizens, married people, Tutors, Curators etc. Or of public place, as Senators, Magistrates, Officers and the like.  

1 Of Freedom bequeathed in the second year after the Testators death. D. 40. 4. 41.  
ONe in his last will ordained in this manner. I will that Stichus my bondman shall be free in the second year after my death. It was questioned what time of the second year, was considerable in this case. Pomponius answered that it was most probable, that the Testator intended at the beginning of the year, there is much difference betwixt these words, In the second year, and After the second year, for we are wont to call it the second year, when any part of the year is come or passed, so that he that is appointed to be free in the second year, is appointed to be free in all the days of the second year, in which opinion agrees that of Labeo who says, If freedom be bequeathed in these words, I will that Stichus be free within a year after my death, he shall be free presently after his death, for he says, if he shall will that his bondman shall be free, if he give ten pounds to his heir within ten years, if he pay it presently, he shall be free without any further delay.   

2 Of freedom be queathed in consideration of service to be done. D. 4. 4. 44.  
MAevia b'ing ready to die, made her bondman Saccus and her bondwoman Eutychia and Hyrene free in these words▪ I will that Saccus, Eutichia, and Hirene my bondservants be all fee upon this condition, that they monthly by turns, light tapers in my monument, and perform the rites belonging to my corpse. When Saccus, Eutichia, and Hirene had failed in their due attendance, as was appointed, It was questioned whether they might enjoy their freedom. Modestinus answered that it could not stand with Maevius meaning nor was it employed in her words that their being free, should depend upon their attendance, that being a duty to be done by free persons, and that it was rather a consideration why she made them free, than a condition, whereby their freedom should be suspended, howsoever it was proper for the Judge, or Magistrate to compel them to perform that duty which the testatrix had enjoined.   

3 Of persons Freeborn. D. 1. 5. 5.  
THose persons are held ingenious, or of free condition who are borne of a free woman, and it is held sufficient that she was free when she was delivered although she were a bond woman when she first conceived with child, and likewise if she were free when she conceived, and afterwards were become a bond woman when she was delivered, it was held, that the child borne of her was free, because the calamity of the Mother ought not to prejudice the child in her womb. 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 freeborn, it being sufficient for the child in the womb, to have had the mother free in the middle or mean time, betwixt the conception and the birth, Because, as Paulus says, If there be any question concerning benefits belonging to the child in the womb, it is respected as already borne.   

4 Of a City or Corporation. D. 3. 4. 7.  
VLpian says, 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 says, 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  
HE that is taken prisoner by enemies becomes their bondman, but if he return again into his country, he is forthwith restored to his former condition, saith Pomponius, unless he choose rather to return 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 himself by oath, to return to Carthage. And therefore when a dispensation was proposed, touching Menander, a forreyner, who had received freedom amongst the Romans, That notwithstanding he, being employed 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 return thither again, he would continue a Citizen although no dispensation to that purpose was granted. It is otherways 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 remain his bondman, although he have a desire to return back unto the enemies, Because as Sabinus writes, Every man hath a free power to make himself a Citizen where he listeth, but cannot dispose of another man's right.   

6 Of one delivered up to the Enemies. D. 50. 8. 17.  
IF any one laid violent hands upon an Ambassador 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 privilege of a Citizen, 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 special 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 accomplished. D. 3. 1. 15.  
A Marriage was held complete, when the Woman who had given her consent was led, or brought home to the Husband's house. & thereupon Ulpian 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 doors, although it so happened, that she never entered into his chamber, because it is consent, not carnal 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 Tiber, and was drowned, it being thereupon questioned, whether she ought to observe the usual time of mourning, as for her husband, it was resolved that she ought.   

8 Of a Tutor appointed by a name uncertain. D. 26. 2. 30.  
ONe in his will appointed Titius to be Tutor to his son, there were at the same time two, to wit the Father and the son, whose names were Titius, and it did not appear which of them was intended by the Testator, It was questioned who in point of right, aught to be esteemed as Tutor Paulus answered, that he ought to be esteemed designed, whom the Testator intended, but if that did not appear, the right was not wanting, but the proof, 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, than 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 belonged to Gaius Plautius held it did not, Labeo was of the contrary opinion, Proclus concurred with Labeo, but I (says Javolenus) approve the judgement 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 Sons. D. 1. 9 5. & 7.  
MAny privileges belonging to the sons of Senators, It was questioned how the son of a Senator ought to be accounted, whether he whose Father is a Senator, or he only who is borne, his father being a Senator. Ulpian said it made no difference, whether he were borne, whilst the Father enjoyed the dignity of a Senator, or before his Father attained thereto. Labeo adds That he who is borne after the death of his Father, who was a Senator, aught to be reputed a Senators son, yea although the Father be degraded from being a Senator, if the son were conceived before that time, and borne afterwards, he shall rather be held a Senator's son, than otherwise, for most are of opinion that the time of conception ought to be regarded. Ulpian says farther, That if one have both his Grandfather, and his Father Senators, he shall be held the son, and grandchild of a Senator: Whereupon, it is again questioned, whether if the Father were degraded, before the son were conceived, (although he have not the reputation of a Senators son) he may not be respected as the Grandchild of a Senator; and it is held (says he) that he may, so that the dignity of the Grandfather shall more avail him, than the disgrace of his Father shall do him prejudice.   

12 Of Senators Wives and Daughters. D. 1. 9 8. & 12.  
Senator's 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 rank? Ulpian says, that as long as they continue single, or are married to men of equal degree, they retain 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, obtain by the Prince's favour, to retain their former condition, which favour, as he says, Antoninus the Emperor, vouchsafed to Julia Mamea his consengermane.   

13 Of the Proconsuls naming a Deputy before he enters into his Province. D. 1. 16. 4. & 5.  
THe Proconsul after he entered into the Province, which was assigned unto him, usually committed authority to his deputy: and it was questioned, whether, if before that he entered, he appointed a Deputy, it were of force? to which Ulpian said, That he could not do it, for it were absurd, that he should confer authority, upon any other, before he were invested therewith himself, and it is certain, he hath none until he come into the Province, But he says, if the Proconsul, before he comes into the Province, do make a Deputy, and when he comes there, continueth 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 Proconsul entered into the Province. Papinian says, That it may so happen that the Proconsul may make his Deputy although he be not entered into his Province, as if by extraordinary necessity he be stayed 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 public quality, as Reputed freemen, Married persons, lawful Children, of full age, Tutors, Magistrates, Persons of credit, or infamous persons.  

1 Of Freedom enjoyed by a will which afterwards proves void. D. 40. 4. 29.  
LVcius Titius put away his wife, being great with child, and she being delivered of a son, 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 Son, Some years after, the son being owned by the Mother and Grandmother of the Father's side, the Will being held void, he enjoyed the estate, as the proper heir to his Father, It was then questioned, whether they to whom freedom was given in the will, aught to be held bondmen, or free? Scaevola answered that the Son although he were ignorantly passed by in his Father's will, had no prejudice, it being made void, 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 freedom.   

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 she is to be reputed his Wife, or his Concubine? Modestinus answered, That he who converseth with a Woman ingenuous, or free borne, aught to be conceived to do it rather in the way of marriage, then of keeping her as his Concubine, unless she were one who was known formerly to have demeaned herself dishonestly? Papinian says, 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 mutual 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 Ulpian, That a child borne during marriage, betwixt the Husband and the Wife, is the Husband's child, But suppose, saith he, that the Husband hath been absent from his Wife ten years, and returning finds with his Wife a child, of a year old, In that case he agrees with Julianus, that it is not the Husband's child. But whereas the same Julianus affirms, That it is not to be endured that he who cohabits altogether with his Wife should disclaim her child, as none of his, Ulpian admits not that without distinction, but holds with Scaevola, That if it be notorious, that the Husband, by reason of sickness, or some other impediment, could not lie 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 himself to the Magistrate, by showing his visage, made a false proof 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 completed his twenty five years, moneys, which were owing to his estate, were paid unto him, and spent foolishly by him. It was questioned who were in danger for the mispending these moneys, and whether the Curators might have been excused, if they had persisted in the same error, and yielded up their administration of the estate. Paulus answered, that they who paid in the moneys, 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 moneys due, and are liable for the same; but if they had submitted to the Magistrates judgement, and had desisted from the administration, and had given up their account, they had been in the same condition, as the Debtors who had paid the moneys, and ●…ould not have been questioned for any thing.   

5 Of a Magistrate promoted by Error. D. 1. 14. 3.  
BArbarius Philippus, being a Slave or bondman, who had run away from his Master, coming to Rome and living there, in the quality or esteem of a Freeman, was made Praetor, & dispatched many businesses publicly, belonging to the Praetor's office. It was questioned first, whether he were truly, or lawfully Praetor, in regard a slave or bondman was not capable of that dignity: Pomponius said, that his condition hindered not, but that he might be made Praetor, because the People of Rome, or Emperor had power to make a Bondman Praetor, and if they had known him to be a slave, they might have made him free; Ulpian says, it is certain he was in possession of the office of the Praetor, and makes a second question, whether although he still continued a slave, whilst he bore the Praetor's office, the decrees made, and acts done by him in that time were good, and of force, for the benefit of those who were concerned in them; and concludes, that it was his opinion, That none of those acts or orders were void.   

6 Of rich men to be preferred before others, to Offices of Dignity. D. 50. 4. 6.  
Antoninus' and Verus the Emperors, being consulted by Rutillius Lupus, declared, that the constitution wherein it is provided, That every man in the same order as he was admitted to be of the Common Counsel, should be admitted to be a Magistrate, was to be observed when they were all fit men, and of sufficient ability, But if some be of mean fortunes, and their estates so spent, that they are not only disabled to sustain places of dignity with credit, but also make hard shifts to mantain themselves, It is not profitable for them, nor honourable for the City to confer places of Magistracy upon them, especially when there be others who with more conveniency to themselves, and credit of the public, may be chosen to those places, and therefore commanded, that the wealthier persons, do not, upon pretence of any such Constitution, excuse themselves, and that they take notice, That then only, the order of admission into the Common Counsel is to be respected, when the persons are of ability to take upon them places of dignity.   

7 Of honest men not to be removed from their charge, in respect of poverty. D. 26. 10. 8. & 5.  
WE hold him says Ulpian a Tutor worthy to be suspected, whose manners or behaviour in his place deserves it, For a Tutor albeit a poor man, if he be trusty and diligent; ought not to be removed, as one of whom there is cause of suspicion, and that man may rather be doubted, who being himself subject to suspicion, hath given security, for it is better for the Minor to have his estate preserved, then to have writings of caution to preserve the same.   

8 Of infamy arising from punishment. D. 50. 13. 5. § 2. & 3. 2. 22.  
A Man's credit is impaired says Callistratus, when retaining his freedom, yet he undergoes some punishment, which derogates from his reputation, as when one is confined to some remote place, or degraded from his rank, or debarred from bearing public office, or if he who is a Plebeian, or of the common sort, hath been beaten with cudgels, But Marcellus holds that to be true, if there were a just cause, for inflicting such a punishment, for (says he) the beating with Cudgels does not render a man infamous, but the cause for which he was beaten, if it were such as deserved, by his condemnation, to make him infamous.   

9 Of a man's Testimony rejected. D. 3. 2. 21.  
LVcius Titius sued Gaius Seius in a cause of injury, and to make it good, procured the depositions of some witnesses to be read unto the Judge, who giving no credit to the depositions, pronounced that Gaius Seius, had done no injury to Lucius Titius. It was thereupon questioned, whether they, whose testimonies were rejected, were to be held infamous: Paulus answered, There was nothing considerable, wherefore the witnesses should be held infamous, it being unreasonable, that by a sentence just or unjust given for one, others should receive prejudice.     

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

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

1 Of a Wild-beast, chased, and Wounded. D. 41. 1. 5.  
IT was questioned, whether if a Wild-beast were so wounded, that it could not escape the pursuer, it were to be held forth with gained by him, who pursued & wounded it. Trebatius. was of opinion, That it was forthwith his, and aught to be held so, as long as he pursued in chase thereof but if he desisted from the pursuit thereof, it than ceased to be his, and might be gained by any else, who should pursue, and take the same, and therefore, if whilst he, who wounded the beast, is in pursuit thereof, another steps in, and catches it, with a purpose to gain it to himself, he says, he is liable to an action of theft, But most Lawyers else, as Gaius affirms, are of opinion, that it is not his who wounded it, until he do actually take it because many things may fall out, which may prevent, and hinder the taking thereof, which says he, is the truer opinion, but the Gloss observes, that what Trebatius delivers, is held good by custom, and practice.   

2 Of a Wild Beast taken in a net. D. 41. 1. 55.  
ONe by letter, proposed a Case to Proculus in this manner, A wild Boar chancing to fall into, and so to be entangled in a toil, or net pitched by you, was taken our and carried away by me, Whether do you conceive, that I carried away your Boar, and if you do conceive it was yours, suppose I had loosed it, and let it escape into the Woods, whether had it continued, or ceased to be yours? and if it ceased to be yours, what action might you bring against me for what I had done? Procurus returned by way of answer thus; It is considerable, whether the toil or net were pitched in a public or private place, and if in a private, whether in mine own ground, or in the ground of another man, or if in the ground of another man, whether with his consent or without his consent; moreover whether the Boar were so entangled, that it could not possibly get loose, or so that by much struggling it might have escaped, But in conclusion, I am of opinion, says he, that if it were brought within my power, the Boar was mine, but if after it became mine, you set it at liberty, it did then cease to be mine, and I ought to have an action of the case ngainst you, as it was resolved, when one had cast another man's cup into the Sea.   

3 Of Pigs recovered from a Wolf. D. 41. 1. 44.  
POmponius handles this question, When the Wolf had taken away Pigs from my Hog heard, a Country man of a neighbouring Village, following them with his Mastiff, recovered the pigs from the Wolf, and when my Hogheard demanded the same, it was thought disputable whether he had gained, or I did still retain the property of them, For it might seem, that he gained it, after a manner, in way of chase, or hunting, and as things taken at Sea, or Land, if they once get loose, cease to be theirs who took them, so if any thing belonging to us be taken by Wild beasts, they cease to be ours, when they are gotten out of the reach of our dogs which pursued after them, For who will say, when an Eagle or Hawk, hath snatched up Poultry, out of our Backsides, and fled away therewith, the property is not lost, why should not that which is taken out of the mouth of a Wild beast be booty to him that recovered it? as if a man hath taken a Fish, a Hare, a Partridge, if they escape his hands, and another man take them, they are his own, But Pomponius was of opinion, although that were true which is argued of birds, beasts, and fishes, yet other things, whereof we had a property, continue ours as long as we conceive any hope of recovery, as any thing be lost by shipwreck, it doth not presently cease to be the Owners; but if any embezzle it he is liable to pay fowerfold: And Ulpian is of opinion, That an Action of thest might be brought in this case; for although he that pursued the Wolf, and recovered the Pigs, had no intention of stealing, yet when upon demand he refuseth to restore them, he seemed to conceal, and wrongfully to detain the same.   

4 Of a thing Stolen afterwards lawfully bought. D. 49. 15. 27.  
A Bondslave being taken from his Master, by Pirates or Robbers, afterwards fell into the hands of lawful enemies and being recovered in War from them, was sold by him who recovered him, It was questioned whether he that bought the Bondslave Bona fide, that is, not knowing any unlawfulness therein, had a good title to him, Labeo, Ofilius, and Trebatius were of opinion, that he had none, because he was stolen at the first, & neither his being taken Prisoner by an enemy, nor his being recovered by a friend, can purge that blemish.   

5 Of Things Composed by one out of another man's Materials. D. 41. 1. 7. §. 7.  
COncerning things composed, or made out of another man's materials; Nerva and Proculus were of opinion that he who made a new thing for his own use, was proprietary thereof, because that which was new made, was no man's else before, Sabinus and Cassius were of opinion, That it was more agreeable to natural reason, that he who was proprietary of the matter, should be also owner of the thing made: and there is a middle opinion saith Gaius, which is reputed the truer, to wit, that if the thing composed, may be resolved into the matter of which it was composed, the opinion of Sabinus and Cassius should take place; as when a Vessel is made of another man's matter, into which it may be resolved again; but if it cannot be reduced to the same matter, than the opinion of Nerva, and Proculus should hold, as when Wine is made of another man's Grapes, or oil out of another man's olives, into which the Wine or Oil cannot be reduced again.   

6 Of an Island newly arising in a River. D. 41. 1. 56.  
A Case was proposed to Proculus, in this manner; An Island arose in the river, over against the borders of my ground, and at the first, was such, that it did not any way extend in length, beyond the bounds of my Land; it afterwards increased by degrees, and proceeded so far, that it reached in length to be opposite, to the borders of the ground above and beneath, adjoining to mine. It was questioned, whether those parts, which last accrued, belonged to me; because they were joined to that which was mine before: or whether they now in right appertain to the other grounds, as they should have done, if at the first the Island had appeared of the same extent? Proculus' answered; If the river in which (you writ) an Island arose opposite to the borders of your ground, not exceeding the length thereof▪ be of the condition, that what is gained by casting up of the earth, becomes to be of private right, and at the first it lay nearer to your lands then to any man's else, who had lands on the other side, it became wholly yours, and that which afterward accrued unto it, by casting up of the earth is yours also, although it so increased, that it extended in length over against the grounds above, or below, as also, if by the same means, it had grown nearer to that which lay on the other side of the river.   

7 Of a Ground, where a river leaves its Channel. D. 41. 1. 56.  
IT was farther demanded of Proculus, as followeth: An Island arising nearer to my ground, then to the ground on the other side, and afterwards the whole river, which before divided itself, leaving that channel, where the greater part of it ran, made its current betwixt the Island and my ground. I desire to know, and that you signify unto me, whether you make any doubt, but that the Island still belongs to me, and that notwithstanding, part of the ground, where the stream forsook its Channel, likewise belongs to me. Proculus' answered, If the Island, at the beginning, being nearer to your ground, the river leaving the greater channel, which lay betwixt the Island, and the ground on the other side, and wholly took its course betwixt the Island and your ground, yet howsoever the Island continues yours, but the ground or channel which lay betwixt the Island and the neighbour's ground, on the other side, aught to be divided, so that the part thereof nearer to the Island ought to be esteemed yours, and that which is nearer to the Neighbour's ground on the other side belongs to him, I conceive, that when on one side of the Island, the Channel proved dry ground, it ceased to be an Island, but for the better understanding of the business, I call that ground, an Island which was so before.   

8 Of Money, given to the end, that he who received it, should buy something therewith. D. 39 5. 2. §. 7.  
ONe puts the case thus, I gave five pounds to Titius, on this consideration, that he should buy therewith to his own use Stichus a bond-servant, It was questioned whether Stichus dying before he could be bought, I had any Action to recover the five pounds? Julianus answered, The question was rather of Fact, then of Law, for if I gave the five pounds to Titius, to that end, that he should buy Stichus, having no purpose, otherwise to have given it, Stichus being dead, I might by way of action sue for it again, 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 therewithal, It ought to be understood rather an occasion, than a condition of giving the money, and that although Stichus were dead, yet Titius might retain the money.   

9 Of moneys lent, to be given to another. D. 39 5. 19  
IF Gaius lent money 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: Ulpian answered; It must be said, That whether Titius did know, or were ignorant of the death of Gaius, the money became Seius his own, because the money was his that gave it, and if he were ignorant of his death he cannot be questioned for the same, having received it, as lent, to be repaied to Seius, But if I gave order to one, to deliver money to a third person, to whom I intended it, as a gift, and he being ignorant of my death, perform the same, he shall have an action against my heirs to recover it; but if he knew of my death before it was done, he shall have none.   

10 Of Money 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 gift, gave me leave to dig up stones, out of his Quarry, afterwards when they were digged up, forbade me to carry them away. Ulpian answered, as soon as the stones were digged, 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 hired 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 gift 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 rooms, you may enjoy them freely: and that you might know, it is my will, that you should so do, I wrote this letter unto you. It was questioned, whether after his death, his heirs might not forbid Seius any longer to dwell in, or make use of the same: Scaevola answered, that as the case was proposed, the heir of Lucius Titius, might be of another mind.   

13 Of a gift given by way of reward. D. 39 5. 27. & 34.  
AQuilius Regulus a young man, wrote to Nicostratus in this manner; Because you always cohabited with my Father, and I myself 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 heir, who intended, to make the grant void, for the future. He thereupon consulted Papinian, who told him, it was not a mere free gift, but that Regulus requited him, as with a reward, for the pains which he had taken with him, and therefore it being of another condition, than a mere free gift, 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 Thiefs, or enemies, and in that respect receive something from him, this kind of gift, is altogether irrevocable; for in truth, it ought to be esteemed a recompense 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 gift of a thing Mortgaged to another before delivery. D. 39 5. 31.  
LVcius Titius gave to Maevia by word of mouth, a certain ground, and within few days after, before he had given possession thereof to Maevia, mortgaged that ground to Seius for a sum of money, and within thirty days after, he put Mevia into quiet possession thereof. It was questioned whether the gift 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 Gift, 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 Emperor Antoninus concerning gifts, passing betwixt Husbands and Wives, shows, that if the Donee die before the Donor, the gift is of no moment. It is thereupon questioned, what may be resolved, if they both die at the same time, as it may happen by burning, or fall of a house; Ulpian answers, that if it can appear, which of them expired first, the question is soon resolved; but if it cannot appear, the doubt is more difficult: but he is rather of opinion that the gift is good; and grounds his opinion upon the words of the Declaration, which says, If the party who received the gift shall first decease, but that party doth not seem to decease first, when both decease together at the same time, and therefore if, after gifts bestowed from each to other, both die together, it may very rightly be said, that the gifts 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 died before the Marriage, and after his death Maevius married the Daughter; It was questioned, whether the Marriage ensuing, those goods became her Dower: Ulpian said, he doubted whether the property of the goods, were transferred on him to whom they were delivered, because the translation of the property, was in suspense, until the Marriage was done, and at the time of the Marriage, the property was in Sempronius his heir, 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 heir 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 died 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 remain; the Father dying first, the Daughter died afterwards, leaving children: It was questioned, whether by virtue of that coyenant, the children might sue for the rest of the Dower, the Grandfather dying before the Daughter. Africanus answered that they might sue; for the force of the covenant consisted in that, if she died 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 return out of Asia, you shall give to me, or after my death, to Lucius Titius, ten pound; for although the ship return not, until after his death, the ten pound is due to his heir.   

18 Of a Covenant of disposing the Dower, in case the Mother should die before her Child, or the Child should die before the Mother. D. 23. 4. 23.  
IT was agreed betwixt the Father in Law, & the Son in Law, that if the Daughter, or Wife died, leaving a child of a year old behind her, the whole Dower should remain with the Husband; but if in the life time of the Mother, the child should die, the Husband should return a moiety 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 retain only a moiety thereof.    

SECT. II. Of Special Right or Commodity.  
Special Right is that which is grounded on the Civil 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 man's possessions; as a way, passage, or Watercourse, or the like: which Rights are gained by Prescription or grant, etc.  

1 Of the Use and Profits of a thing given to a Corporation. D. 7. 1. 56.  
When 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 City or Corporation, It was questioned, whether the City 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 usual when they are granted to a single person, (a City or Corporation never dying) and so the property, to the granters heirs, would be of no use, the profits always going another way; yet Caius says it was resolved, that the City 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 die.   

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 Commonwealth; the Daughter died 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 heir of the Daughter which died before that day, had right to receive the whole rent due for that year, or whether it should be divided betwixt the heirs of the Daughter, and the Commonwealth, to whom the profits belonged after her death: Scaevola answered, That the Commonwealth had no right to receive any thing from the Tenants, But the heir of the Daughter, as the case is put, aught to receive the whole rent.   

3 Of the profits of a Park or Warren. D. 7. 1. 62.  
IF the Use, and Profits of a Park or Warren be granted to one during life, it is questioned, whether he might take or kill the Dear, and Coneys, which he found therein; or hath right only to such, as by his industry are brought into the Park 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 uncertain, he held it sufficient, if the Grantee when he dies, 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) buys of the heir 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 fulfilled, 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 drowned his right as usufructuary to the profits, in purchasing the property, by consolidating the several 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 lose 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 heir of the granter, or the legatary, shall assign the space of the way. Celsus says, that the Legatary may make his choice, through any part of the ground, as he shall please, yet after a civil manner; for that in general words, some things are tacitly excepted, and therefore he shall not make choice to go through his Backside, nor through his Vineyard, when he may conveniently go some other way with less damage to the ground, through which the way is granted. But this is certain, that what way at first, he made choice of, he must continue to use the same; and hath no power afterwards to make another choice: & with Celsus, Sabinus concurres, who confirms the opinion, from the grant of a Watercourse, which at first a man may have liberty to derive as he shall think fit, but afterwards he shall not draw it into any other channel.   

6 Of a way Tacitly reserved. D. 8. 3. 41.  
AEMylius gave in his will to Olympicus the use of a house to dwell in, and left an Orchard, and Banqueting house, which lay behind it undisposed; the only passage thereunto being through the house bequeathed, it was questioned, whether Olympicus were bound to allow that passage to the heir of Aemylius; Scaevola answered, that it was not due by way of service from the house, because no man's land, or house, can owe service to himself, But that the heir ought to have right to pass that way, without giving offence to Olympicus.   

7 Of Service retained by parts. D. 8. 3. 34.  
IF the same ground be held in common by two men, one of them, by suffering a third person, to pass himself, or to drive his cattle through that ground, cannot create a service to the third party. And for the same reason, saith Papinian, if two grounds, which owed service each to other, become common to the same owners, because (although service cannot be acquired in part) it may be retained by parts; the service due from the one to the other, shall not be extinguished. For although neither of the part-owners, be a single person to whom the service belongs, yet because the service is due, not to the person, but to the grounds, neither can freedom from the service be gotten, nor gained in part by one, nor the service in part be remitted by the other.   

8 Of a Service recovered after necessary disuse. D. 8. 3. 34. & 35.  
PApinian puts a question, If he who had a right to bring water into his ground, from a spring in the ground of another man, and that spring, having grown dry a long time, begin to run fresh again, whether by not using it, the right be lost? Paulus resolves it by a precedent which Atilicinus relates. Caesar says, he wrote to Statilius Taurus, in this manner, Some who were wont to draw water from a ground called Sutrinum, proposed their case unto me, to wit, That having for divers years used to receive water, out of that ground into their own, the spring growing dry, they could not receive it, as they formerly had done; and that afterwards, the spring began to come again: and they desired, that in regard they had failed of using their right, not out of any fault, or negligence of theirs, they might be restored unto their former right, whole request seeming to me not unreasonable, I thought fit, they should be relieved; and therefore, it is our pleasure, that what right they formerly had, be again continued unto them.   

9 Of a Service not to Fish in the Sea. D. 8. 4. 13.  
ONe who had two Lordships adjoining, both lying near the Sea, the one being called Hieroniánum, the other Botrianum, sold the former with this condition, that he who bought it, and those who should after enjoy it, should not use before, or near the place, to take a special kind of Fishes, as for example Haddocks, in the Sea; It was questioned whether the condition were good; in regard no man, by private authority, can restrain the liberty of fishing in the Sea. Ulpian answers, admitting that the Law allowed a liberty of such fishing; yet true and honest dealing requires, that the condition, made upon the sale, should be observed; and therefore, that both the buyer and his successor may be obliged to observe the condition.   

10 Of the Usage of some, not profiting others. D. 8. 6. 16.  
THree Neighbours, which had several grounds, had all right to admit water into their grounds, from a spring arising in a ground adjoining: one of them disusing his right, so long time as was sufficient to make him lose it; the other two continued the use of bringing the water into their grounds: It was questioned, whether by the usage of those two, the right of the other were not preserved. Proculus says, his right is lost: But if the right had been, to bring the water into a ground, which was common to three, although two had so long time disused it, by the usage of the third, the right of all had been maintained.    

SECT. III. Of Reputed Right.  
Reputed Right is that which one hath in his own and others opinion; as Possession fairly gotten, which is when one by lawful means gains something, which without his privity belonged to another man, whereby he hath a kind of right to use, and dispose thereof, as if it were his own, until the true owner makes his claim or title appear.  

1 Of Possession taken by Error. D. 41. 2. 34.  
Titius' having bought a ground of Maevius called Long-acre, Maevius gave him possession of a ground called Broad-acre. It was questioned, whether he had gained the possession thereof. Ulpian said, if both intended the same ground, although there was a mistake in the name, the possession was well enough taken: But if there were a mistake both in the name, and in the ground, he had gained no possession: It was farther questioned, whether although Maevius had not gained, yet Titius had not lost his possession in that ground; because a man out of his own mind and thought, may quit, and yield his possession, as Celsus, and Marcellus write; which although in some cases it may be admitted, yet Ulpian says, that when the error concerns the thing itself, no man can get the possession; neither in that case shall a man lose his possession, when he intended to yield it conditionally, if such an one should succeed him therein.   

2 Of Possession retained of a thing hidden. D. 41. 2. 44.  
Titius' intending to take a journey, for better safety, did hide a pot of Money in the ground; and when he returned, having forgotten the place where it was hid, could not find it, It was questioned, whether he having forgotten the place, ceased to have the possession of the money, or if he afterwards remembered the place, whether he presently, began to have again the possession thereof: Papinian answered, that he that hid the money, retained the possession thereof, neither did the failing of his memory prejudice him therein, as long as no man else had seized the same; otherways it might be conceived, that a man lost the possession of his servants or bondmen, as often as they removed out of his sight. It was farther questioned, whether the possession were retained, if the money were hid in another man's ground; and he likewise answers, that the possession continues the same, unless the money were removed; it being all one, whether the owner be possessed thereof, in his own, or in another man's field, or whether he be possessed thereof above or under ground.   

3 Of Fruits belonging to the possessor, when they are severed from the ground. D. 41. 1. 48. & 6. 1. 78.  
IT is without question, says Paulus, That he which, bona fide, buys any thing, although it truly belong to another man, gains the profits thereof in the mean time; not only those, which proceed from his own endeavour and industry, but which way soever they arise. Because as to the fruits and profits of the thing, he is almost instead of the owner: but it was questioned, what if the true owner claim them, before they be carried away. He answers, that they become the possessors own as soon as they are severed from the ground: and therefore, when Labeo elsewhere delivered, that an unjust possessor of the ground, was not answerable, if he had not carried away the fruits, Paulus reprehends him, saying, It is the same, if he meddled with them in his own name; for saith he, we ought to understand, fruits to be received, not only when they are carried away, or converted, but when they are sirst gathered, as when Olives or Grapes, are taken from the boughs, although they be not converted into Wine or oil; for by gathering them, one shall presently be reputed to have received the same.   

4 Of charges laid out usefully, by one in Possession. D. 6. 1. 38.  
ONe who unadvisedly bought a ground belonging to another man, bestowed moneys in building, and planting thereupon; afterwards the ground was recovered by the true owner: It was questioned, what remedy he might have for his expenses. Celsus says, It is a business which a good Judge ought to determine, taking into consideration the persons, and the circumstances thereof: For says he, Imagine there was nothing done, but what the true owner would have done himself, it is reason he should repay the expenses, so far as his ground is improved thereby: but suppose he be a poor man, and cannot pay so much, unless he should sell himself out of house and home: It may be sufficient, to take away, of what he bestowed there, what may be done conveniently, so that the ground be not thereby made worse than it was before; and this is thought just, that if the owner of the house, will give as much as it may be worth to the other, to have the things taken away, he may retain those things: for the Law does not favour any despiteful doings; as if he would take away rough-cast bestowed upon the wall, or deface pictures, whereby he should gain nothing, but to do to another a discurtesy.   

5 Of Windows and doors set up in another man's house. D. 1. 6. 59  
ONe, who was but a Tenant, set up Windows, and doors in his Landlords house; after a year, the Landlord took them down: It was questioned, whether he that set them up might not claim them. Julianus answers, he might, For those things, which are fastened to another man's house, as long as they continue fastened, are held to belong to the house; and as soon as they are severed from it, return to their former condition.   

6 Of one that sold another wans house, becoming heir to the true owner. D. 6. 1. 72.  
GAius bought a house of Titius, which in truth did belong to Sempronius, and having paid the price, was put in possession thereof: afterwards Titius proved to be heir to Sempronius, and went about, to sell the same house to another man. Ulpian said, It was great reason that Gaius should be preferred before any other; for if Titius himself after he became heir to Sempronius, should have sued Gaius, there lay a just exception against his action; and if Gaius should have sued him to make his title good, he could not have avoided it.   

7 Of a Monument built by one who was in possession of the estate. D. 5. 3. 50.  
ONe who was lawfully possessed of a deceased man's estate, built a Monument, which was required in the will: It was questioned, whether he, being removed, by an heir that had better right, might recover his charges. Papinian answered, that in regard the will of a man deceased aught to be observed, if he expended no more, than was conveniently necessary, or was prescribed by the Testator, he might either retain so much in his hands, or recover it by way of suit, for although in strictness of Law, no man could bring an action against an heir, for not building a monument, yet by the Princes, or Pontificial power, he might be compelled thereunto.     

TITLE III. Of Debt, and of common Contracts.  

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

1 Of a House burnt at the same time when it was bought and sold. D. 18. 1. 57  
PAulus puts a case thus, I bought, says he, a certain House, when both the Seller and myself, were ignorant, that it was burnt, and relates, That Nerva, Sabinus; and Cassius were of opinion, that nothing past in that bargain, although the floor of the house remained, and that the money paid, aught to be returned. But Neratius says, That if a part of the house escaped the fire, it was considerable, what proportion the part standing did bear, to that which is burnt; for if a greater part be consumed with fire, he that bought it, is not bound to stand to the bargain, but may recover what money he gave for the house. But if only half of the house, or less than half be burnt; then he ought to stand to the bargain: so that an indifferent person judging, how much the value of the house is diminished by the burning of the part thereof, he may have recompense accordingly.   

2 Of a Pool bought with ten foot about it. D. 18. 1. 69.  
RVtilia Polla, bought a certain Lake, or Poole, together with the ground round about it, to the space of ten foot. It was questioned, If the Lake happened by rain, or fresh waters falling into it, to be enlarged, so that the former ten foot round, were included therein, whether the next ten foot farther belonged unto her? Proculus' answered, He was of opinion, That the ground which appeared about the Lake or Poole, when Rutilia Polla bought it, belonged unto her; and although the Lake increased, her right ought not to be extended to the ground farther round about it.   

3 Of a ground sold, to be measured within Thirty days. D. 18. 1. 40.  
Titius' sold a ground to Sempronius, which he esteemed at a hundred Acres, with this condition, That Sempronius, within Thirty days, might measure, and signify the just quantity thereof, and if he did not signify the same within that time, he should stand to the measure, at which it was estimated by Titius. Sempronius within the time limited, signified as he conceived, something wanting in quantity, and was abated accordingly in the price: and after the thirty days were expired, he having a purpose to sell it unto another man, measured the same, and then found the quantity thereof to be a great deal less, than he had signified before, It was questioned, whether he might require farther allowance from Titius, according to the later estimation. Paulus answered, That it was considerable, in what manner, the condition was conceived, and expressed, for if it were said, he should measure the ground, and signify the defect, if there were any, within thirty days: What he might signify afterwards, would do him no good: but if it were agreed, that the buyer within thirty days next, should measure the ground, and signify the defect to the Seller (without limitation of time in that respect,) although he signified some defect in the quantity, within thirty days, he might demand allowance many years after, for as much as he should make appear to be more defective.   

4 Of Trees blown down, after the view, before the Sale. D. 18. 6. 9  
SEius having survayed a ground, belonging to Maevius, whereon stood many trees, it happened, that before he bought it, some of those trees, were blown down by the Wind: It was questioned whether Seius had any right to those trees? Gaius answered, That he had none, because he bought them not, those trees being severed from the ground, at the time of the Sale. But if Maevius knew so much, and did not acquaint Seius, who was ignorant therewith, he ought to give Seius satisfaction for so much as the trees were worth.   

5 Of Stone-quarries reserved in a ground sold. D. 18. 1. 77.  
ONe selling a ground, excepted from the purchaser, the stone quarries in that ground wheresoever: After a long time, some stone-quarries were discovered in that ground. Tubero was of opinion, that they belonged to him, that sold the ground; Labeo said, It was considerable, what was expressed in the exception; If that were not clear, he was of opinion, That the quarries newly found out, were not reserved; because no man is supposed to sell, or reserve out of his sale, that which is not in being, and no quarries were held to be in being, but such, as did appear; otherwise, the whole ground might fall under the condition of quarries, for it was possible that there might be quarries under the earth, throughout the whold ground: and Javolenus was of Labeo his opinion.   

6 Of Lands sold disposed of otherwise by the Prince. D. 21. 2. 11.  
LVcius Titius a Roman, bought Lands of a Germane, beyond the Rhine, and paid down part of the price; his heir being afterwards sued, for the remainder of the money, pleaded, that War breaking out in those parts, those Lands were taken away by the Emperor's decree, and given to his old Soldiers, in recompense of their service: It was questioned, whether that were sufficient matter, to debar the Germane from the remainder of the price. Paulus answered, That what happened, after the bargain was completed, did not concern the Seller, and therefore as the case was put, the rest of the price ought to be paid.   

7 Of a Price conditioned to be paid, once offered, afterwards neglected. D. 19 1. 51.  
SEmpronius sold a ground to Maevius, upon condition, that he should pay the price agreed on for the same, on the first of July following; at that time Sempronius was not ready to receive the money, afterwards Sempronins being ready to receive it, Maevius was not provided to pay it: It was questioned whether Sempronius might not recede from the bargain, Maevius having failed to observe the condition. Labeo was of opinion, that he might, because in the condition, it was intended, that whensoever Maevius should fail in performance, Sempronius should be free, which was held good, unless Sempronius, had practised some fraud in the business.   

8 Of loss in Wines happening after sale. D. 18. 6. 4.  
A Merchant, sold certain hogsheads of Wine to a Vintner, and appointed him a time to taste them, at the time appointed, the Merchant being from home, the Vintner could not come at the Wines to taste them; and when he came to receive them, the Wines were perished in goodness: It was questioned, first whether the Vintner might not refuse them, Secondly, if he were bound to receive them, whether the Merchant ought not, to give allowance, for so much as they proved of less value, than others of the same growth. Ulpian answered, that if the Vintner bought them conditionally, if at such a time, upon taste, he liked them, he might refuse them; but if that be not so clear, the bargain may hold, but the hazard of the Wines failing in goodness, shall belong to the Merchant, because he was in fault, that they were not tasted.   

9 Of notice to be given concerning Wines bought. D. 18. 6. 15.  
Titius' sold wine in Hogsheads, to Sempronius, which Wines, before they were taken away, grew fowl: It was questioned, who should bear the loss? Gaius said, That if Titius affirmed, they would continue good, he ought to give satisfaction to Sempronius; if he did not affirm, or undertake so much, whether Sempronius tasted them, or did not taste them sufficiently, he can blame no man so much as himself. But it is true, that if Titius understood that they would not continue neat, until the time, when they were to be removed, and did not give notice thereof to Sempronius, he is liable to him; for not giving him notice.   

10 Of a false estimation, made by one hired to build a house. D. 19 2. 60. § 4.  
Titius' desired an Artificer, to consider, and certify him, for what charges, a building of such a fashion, and proportion might be erected? He returned his judgement, That it might be done for two hundred pounds, whereupon Titius agreed with him to do it, and furnished him before hand, with a hundred pounds: Afterwards, when fifty pounds had been spent in the work, he found that it could not be finished under the charges of three hundred pounds. It was questioned, whether he were bound to suffer the Artificer to proceed therein: Labeo answered, If he proceeded after he was forbidden, Titius might recover the fifty pounds, of the hundred, which was not laid out at the time, when he was forbidden.   

11 Of a Workman hired to erect a Work by great, yet received Wages by the day. D. 19 2. 51. 11.  
IAvolenus puts this Case: I set out a work to be done by great, or for the whole, yet so that I was to pay Wages every day; The work when it was finished was faulty, or unsufficiently done: It is questioned, Whether I might bring my action against him. Javolenus answered. If you did so set out your work to be done, that the undertaker should make good to you the sufficiency thereof, although, it were agreed that for every day's work he should receive certain wages, yet if the work be faulty or insufficient, he that undertook it, is bound to make it good. For it makes no difference whether the agreement were for one entire sum for the whole, or something to be paid for every day's work; if the finishing of the whole work belonged to the undertaker, and therefore he is liable to an action, if the work be defective or insufficient, unless the agreement, for paying wages by the day, were, that the owner might use his discretion in the raising thereof. For in that case the undertaker is not bound for the sufficiency thereof.   

12 Of Corn agreed to be received in stead of Rent. D. 19 2. 19 § 3.  
ONe who had let out his ground for a certain Rent, afterwards agreed with the Tenant, that in lieu of so much money he should pay yearly a quantity of Corn; The Landlord, as occasion served, refused to receive the Corn, and would not abate any thing out of his Rent in money: It was questioned, what remedy the Tenant might have. Ulpian said, It was in the Landlords power, according to the Lease, to sue for his Rent in money; but that the Tenant had right to be relieved, for so much as he was prejudiced in paying money, if it were more easy for him to have paid it in Corn.   

13 Of the Tenants profits hindered by the Landlord. D. 19 2. 30.  
ONe took a Lease of a house, at twenty pounds a year rend, and did let out Lodgings, to particular persons, to the value of thirty pounds yearly. The Landlord before the time was expired, pretending the building was in decay, pulled down the house: It was questioned, what satisfaction was due to the Tenant? Alfenus answered, If the house were so ruinous, that there was necessity to take it down, the Tenant ought to receive, during his time, as much as he gained from his Lodgings above the rent: but if there were no necessity, but the Landlord thought fit to have it built otherwise, according to his mind, he ought to give farther consideration, for so much as it might any way concern the Tenant, that the Lodgers had not been removed.   

14 Of the Tenants profits hindered, otherways then by the Landlord. D. 19 2. 33.  
IF a ground which I hired from you, for a certain time at an yearly rent, be confiscated, or seized to be employed for some public use; Africanus says, you are liable to me, in regard I cannot make use thereof, although it be not in your power to make it good. For if you shall sell a ground unto me, and before I receive the free possession thereof, it be seized for the public service, you are answerable for the sale; which is to be understood, so far as to return the price or money which I gave for it, not for what benefit I might have made thereof, in case I had had the free or clear possession thereof: & in like manner, I am of opinion, that concerning ground which is let out for rent, it ought to be observed, that the rent which I have already paid, should be restored, for so much time as I could not enjoy the same, and that you are liable for no more: For if your Tenant be hindered by you, or any other, whom you could have restrained, you shall make good to him what it might concern him, if he had enjoyed it; that is the profit which he might have made thereby. But if he be hindered by one whose greatness, or power, you could not prevent, you are bound to no more than to restore, or remit his rent.   

15 Of unnecessary Charges laid out by a Partner. D. 3. 5. 27.  
Titius' and Seius two Brothers, one being of full age, the other a Minor, had a Country Farm, held in Common between them: the elder brother built thereon a larger House, with fair Galleries, and when the younger came to age, and the ground was to be divided betwixt them, he demanded allowance for the charges he had expended, in building thereupon. It was questioned, whether the younger brother were bound to allow any. Modestinus answered, That what charges were laid out unnecessarily, and for his own pleasure, he ought not to be allowed.   

16 Of Losses befalling to one, of two partners. D. 17. 2. 52. § 4.  
TWo Partners driving a joint Trade in certain commodities, One of them took a journey to buy things conducing to their Trade, and fell amongst thiefs, which robbed him of his money and clothes, and wounded his Servant: It was questioned, how far the other Partner ought to contribute to the loss? Julianus said, The other Partner ought to be joined, and bear his part in the loss, not only in the money, but also of the goods, and other things, which his Partner had not taken with him, but for the advancing of their common Trade, and also of the charges which were sustained, in providing Physicians to cure the Servant wounded, which is to be observed: Says he, if Goods suffer shipwreck which could not otherwise be conveyed but by Sea, for as the gain, so the loss must be common, if it happened not by the fault of one of the Partners.   

17 Of a reputed Heir joined with a surviving Partner, D. 17. 2. 62.  
Titius' and Seius being Partners, and having a joint stock, Titius died, and Maevius being reputed his heir, together with Seius, Sold the stock, and the proceed thereof was divided between them. Afterwards it appeared, that Sempronius was the true heir to Titius: It was questioned, whether Sempronius could recover any thing from Maevius, the surviving partner. Neratius and Aristo were of opinion, That he could not, because Maevius received no more, than what his own part was sold for; neither makes it any difference, whether either of them sold his several part, or both joined in the sale of the whole: And whatsoever Sempronius shall recover from Maevius the reputed heir; he shall enjoy it wholly to himself, without rendering any part to Seius.   

18 Of Equality to be kept in division amongst Partners. D. 17. 2. 63.  
LVcius, Gaius, and Attius, three Partners, dealing in the same Trade jointly, and some difference arising amongst them: First Attius sued Lucius, and had his entire third part adjudged unto him. Afterwards Gaius commenced the like suit against Lucius for a partition, but there remained not so much as to make up his third part, equal to that which Attius had received: It was questioned whether Gaius might sue Attius, to return something of what he had received, to make their parts equal. It was resolved by Ulpian, that he might: Because it was unjust, that out of the same Partnership one should gain or keep more than another, which opinion is grounded on Equity.   

19 Of one Requesting another, to Buy something, whereof he might have a share, buying the whole himself. D. 17. 2. 52.  
MAevius and Gaius had two grounds, the one adjoining to the other, and Lucius Titius a third ground, abutting upon those two; Maevius understanding that the third ground was to be sold, 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 doubtful business. 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 business, Gaius might have his remedy, that Maevius reserving one part to himself, should convey the other unto him.   

20 Of undertaking to save one Harmless during another man's 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 himself, to save him indamnified, both for the money, and interest there of, as long as Blaesus Severus should live: Seius having lent the money 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 perpetual, being not satisfied upon demand; although in the following words of the order, it were expressed that he would save him harmless as long as Blaesus Severus lived.   

21 Of Undertaking 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 himself, 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 brother's son, 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 dwelled, directed a Letter unto him, with an Order of the Town enclosed, to be presented to the Emperor; 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 business of his own, he rasing out the name of Titius inserted his own; and according to the directions of the Magistrates of Ostia, delivered their Order to the Emperor: 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 Gift, received as Loan. D. 12. 1. 18.  
ONe delivered a sum 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 business amounted unto? Julianus said, it was no free gift, 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 mind 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 gift, nor no Loan; no gift, 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, Says he, are so, if they be understood according to the nicety, and subtlety of the words used; but by a fairer and a more reasonoble construction, the gift and the loan were both of force.   

26 Of Money ordered to be lent by one, received as lent from another. D. 12. 1. 32.  
SEius requested Gaius and Sempronius to lend him a sum of Money; Sempronius gave order, to a debtor of his, who owed him so much, to deliver it. Seius received it, and undertook the payment thereof, as if that debtor had been engaged to Gaius, and had lent the money 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 money, for that could not be, unless both parties had so agreed, but because it stood with Equity, and honesty, that the money which came from Sempronius, should be repaied to him again.   

27 Of Plate delivered to be sold, instead of moneys desired to be borrowed. D. 12. 1. 11.  
Titius' desired to borrow Ten pounds of Maevius, who having not so much moneys 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 sold the same, he must have become creditor for the Money: 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 loss. Ulpian says Nerva distinguished in the case, and was of opinion, That if Maevius formerly had kept that plate of Silver, with purpose to sell it, as his own occasions should require, if it were lost, the danger belonged to him, as it must have done, if he had delivered it to another man, to sell for him. But if he formerly had, and kept it, not for any such purpose, but was contented, that it should then be sold, only that Titius might make use of the money, the loss ought to fall upon Titius; especially if it were lent, without condition of interest, or expectation of gain thereby.   

28 Of a Horse lent, failing in his Journey. D. 13. 6. 23.  
ONe who had lent his Horse to another, to take a journey to a certain place, the Horse failing, would have recovered satisfaction of him, to whom it was lent. Pomponius told him, That if the Horse were tired, or failed without his fault, to whom it was lent, he was not liable for any thing, because he that lent it, for such a journey, was in fault, the Horse being not able to perform the same.   

29 Of a Thing Lent to two, and lost. D. 13. 6. 5. § 15.  
ONe lent a Wagon, at the same time to two several persons, which was lost: It was questioned, whether each of them were liable for the whole, or both of them, for their several parts. Ulpian answered, That although the Wagon were not lent by parts, yet in effect, the use thereof, was intended to be made by parts, because one of them to whom it was lent, could not make use of the whole alone, but in truth it being gratis or freely done, each of them was bound, not only to use no fraud, nor fault in the employment thereof, but also to use all diligence in keeping the same, and therefore each of them alone was bound to make good the whole; but if one upon suit had made satisfaction for the whole, the other was freed.   

30 Of a Thing Lent and Lost, received by the Owner. D. 13. 6. 17. §. 21.  
ONe lost a horse which he had borrowed, and paid the price thereof, the owner afterwards received his horse again: It was questioned, what was due to him who had paid for it? Labéo said, He might recover by suit either the thing which he had paid for, or the price which he gave for it. It was further questioned, If he who lent something to another stole away the same, and by suit recovered the value, whether the theft being discovered, he might not be sued as a thief? Africanus answered, That he conld be sued as a thief, for taking his own, but he might be compelled to return the horse to him who had paid for it.   

31 Of Interest of money deposited, undertaken to be paid. D. 16. 3. 28.  
QVintius Cecilius wrote to Paccius in this manner: These are to signify to you, that the fifty pounds, which you desired should be left with me, are put to mine account, which I shall be careful to see employed, that you may receive interest for the same: It was questioned, whether if no interest were received, it might be recovered upon this Letter? Scaevola answered, That the interest ought to be paid, although none were received by Cecilius, nor the moneys were any ways employed to his use.   

32 Of fair and conscionable Dealing, touching things deposited, in several respects. D. 16. 3. 31.  
AS in other Contracts, so especially in things deposited, or left in trust (saith Tryphoninus) conscionable or fair dealing is required, which conscionable or fair dealing aught to be regulated by the greatest Equity that may be: But he makes a question whether that Equity ought to be estimated, merely according to the Law of Nations, as betwixt man and man? Or whether respect also to the civil Law, made for the good of the Commonwealth, ought not to be had? And by way of instance supposes, That one who was guilty of some Capital crime, left in trust with his friends a hundred pounds, and was afterwards convicted, and his goods adjudged to be confiscated; In which case, How shall the friend, trusted with the money, acquit himself? He says, if the Law of Nature and Nations only be looked upon, the money is to be restored to him, who left it in trust: But if the civil law or the law of the Country be considered, it shall rather be brought into the public Treasury, because it is just, that he who hath publicly offended, for example, and deterring of others, should be reduced to penury, and deprived of his goods. He makes another Enquiry: Whether this fair dealing and Equity ought to be considered in respect of those persons only, betwixt whom the contract for restoring what was left, was made, or whether regard should be likewise had to other persons, whom the business doth concern; As for example, A Thief or Robber took away a pack of goods from an honest man, called Titius, and left the same in trust with Seius, who knew nothing of the theft or robbery; whether ought Seius afterwards understanding the truth, to restore the goods to the thief or robber, or to Titius? He says, If regard be had to the persons of him who left, and the other who received the goods in trust, It stands with fair dealing and equity, that he who deposited the goods should receive the same, but that, If Equity that be regarded, which results out of the whole business, and relates to all the persons that are concerned therein: they ought to be restored to Titius, from whom they were wrongfully taken away; and thereupon he concludes, That that is best justice which so renders to every man his own, that it be not diverted from him, who hath a better title thereunto; and adds, That if Titius come not to demand his goods, the evil getting thereof shall not hinder, but that he, who left them in trust, ought again to receive the same.   

33 Of a House engaged, burnt and rebuilt. D. 20. 1. 29. § 2.  
A House being engaged for debt, was afterwards burnt down, and Ludicius Titius buying the ground whereon it stood, built another house thereon. It was questioned, Whether the Creditor had any right to that house? Paulus answered, That the right was not extinct, and what was built on the ground followed the condition thereof; but he that built the house, being ignorant of the engagement, was not bound to render it to the Creditor, unless he were satisfied for the charges in building; in regard by his means the Creditors right had been improved.   

34 Of a Shop engaged for moneys borrowed. D. 20. 1. 54.  
A Mercer, being indebted for a considerable sum of money, engaged his Shop by way of security for the same: It was questioned first, whether the Wares in the Shop were engaged, Secondly, whether the present wares or any other, that should be brought into their room, might be sued for as liable for the debt? Scaevola answered, First, That the wares in the Shop were included, for otherwise the Security had been to no purpose; Secondly, That although the wares which were in the Shop were at several times all sold, and others brought in their room, yet all, that at the death of the Mercer were found in his Shop, were liable, as engaged for the debt.   

35 Of cattle pawned, and disposed of by the Heir. D. 20. 1. 26. § 2.  
LVcius Titius borrowing money engaged, by way of Security for the same, certain grounds, and the stock of cattle going thereon; He dying, his heirs divided the grounds betwixt them, and the stock of cattle being worn out, put other cattle in those grounds, the money being unpaid, the Creditor entered on the grounds, and distrained the cattle: It was questioned, whether he had any right to the cattle, which were afterwards found on the ground? Modestinus answered, That if they were not the same cattle, which were first engaged, nor proceeding from them, the Creditor had no right unto them.   

36 Of cattle engaged, before they were put into the Landlords ground. D. 20. 4. 11. § 2.  
THe Tenant agreed with the Landlord, that whatsoever cattle he should put into his ground, they should be engaged for the rent, and having a flock of sheep, he borrowed a sum of money, and obliged them for payment thereof, and afterwards he put them into his ground: It was questioned, whether of the two, had better right for satisfaction from the sheep? Gaius answered, That the later, to whom they were engaged simply, had better right than the former, to whom they were to become engaged, when they were to be put into his ground; which happened after the other engagement.   

37 Of Goods proffered but sold before engagement. D. 20. 3. 4.  
Titius' having a desire, to borrow money of Maevius, promised security, and designed, or shewëd some goods, which he would engage; but before he received the money, he alienated some of those goods: It was questioned, whether the goods alienated, were liable to Maevius for his debt? Paulus answered, after the security offered, or promised, it was in the power of Titius, not to borrow, and of Maevius, not to lend the money, and that the contract, for engaging the goods, was to be understood of the goods at the time, when money was lent, and therefore, it was to be considered, only, what goods were his at that time.   

38 Of things engaged to one, for Rent due at a day, and before that day, engaged to another, for ready Mony. D. 20. 4. 9  
ONe who hired a bathing room, for a term, to commence from the Kalends of May following, agreed, that his Bondman Eros, should be engaged to the owner as security, until his rent were paid. The same man before the Kalends of May, borrowing Money of another man, gave his Bondman Eros pledge for the same: It was questioned whether of the two had better right to the Bondman? Africanus answered, That he who rent out the Bathing room, had the better right, for although nothing were due to him, when the Bondman was engaged to the other Creditor, who lent the money, yet because, before that time, he had a right to the Bondman, which could not be taken from him, without his consent, his interest was better than the others.   

39 Of a Ground sold upon condition, and then engaged, recovered, for not performance of the condition. D. 20. 1. 31.  
ONe, who owed an yearly tribute to the Commonwealth, sold a ground, upon condition, that if the Tribute were unpaid, he the former owner might resume the same: Afterwards, he that bought it, engaged the ground unto another for a sum money, and neither the Buyer nor the Creditor, to whom it was engaged, paying the Tribute: It was decreed, that the first owner might resume the ground: It was thereupon questioned, whether any right remained to the Creditor to whom it was engaged? Scaevola answered, That the first owner justly resuming his right, the engagement vanished, and became of no effect.   

40 Of a Ground engaged to three persons, whereof the last redeemed it from the first, D. 20. 4. 12. §. 8.  
Lvcius' first borrowing money of Titius, agreed with him, that a certain ground should stand engaged for payment thereof. He afterwards borrowed money of Maevius, and agreed with him, that when that ground was disengaged from Titius, it should be liable to him for his money. In the third place, Sempronius lent money to Lucius, to pay Titius, and it was agreed, that the same ground should be engaged to him in the room, or place of Titius; It was questioned, Whether Maevius who lent money in the second place, or Sempronius who came in the third, had better interest to the ground? Martianus was of opnion, that Sempronius, with whom it was agreed, that he should be in the room or place of Titius had the better title.    

SECT. II. Of special Contracts.  
Special Contracts are such, wherein according to the Law and Custom of the Country, something is added, besides the nature of a common contract, by special Covenant or agreement; or when something is promised in solemn and formal words or writing; or undertaken by a surety on another's behalf.  

1 Of a Sale covenanted to be be void, if the price be not paid at a day. D. 18. 3. 8.  
POsthumia sold certain grounds to Gaius Seius, and took five pounds of him by way of earnest, and appointed a certain time, for payment of the rest of the money; and covenanted with him, That if he should fail of payment at the time appointed, he should lose his earnest, and the ground should be unsold: Gaius Seius at the time appointed brought his money sealed up in bags, and before witnesses, offered himself ready to pay the same. But Posthumia did not appear at that time: the next day, he was required by an Officer of the public Treasury, not to pay any money to Posthumia, until he had paid his public debt? It was questioned, whether Posthumia might not resume her right in the grounds, according to the Covenant, the money being unpaid? Scaevola answered, that as the case was proposed, Gaius Seius had done nothing against the covenant or agreement.   

2 Of a Sale covenanted to be void, if within a set time more were offered. D. 18. 2. 17.  
ONe who had two Bondmen, sold them, to two several persons, for ten pounds a piece, in case no man should offer, or give more; within ten days, within which time, one offered for both these Bondmen thirty pounds: It was questioned, whether, and how far the former sale were void? Julianus answered, That it was considerable, whether he would give twenty pounds for one of them, and ten pounds for the other, or whether he would give fifteen pounds for each of them; for if the former were intended, than the sale was void, touching him, for whom twenty pound was offered; if the latter, the sale was void for both, and the second Chapman, was to be admitted to the bargain; but if it were uncertain, for which, or in what respect, the greater sum was offered, there was no sufficient ground, why the former bargain should not hold good.   

3 Of part of a Ground, warranted, recovered. D. 21. 2. 45.  
ONe selling a ground, showed the bounds thereof, and warranted it to be an hundred acres, of which if any were evicted, or recovered, it was to be at his peril. After the sale, part of the ground showed by him, was recovered by another man, yet that which remained, amounted to an hundred acres: It was questioned, whether the seller, were liable at his peril for that which was recovered? Africanus answered, That he was liable, in regard that Land which was recovered, might be better than any part of that which remained.   

4 Of two Horses sold, one recovered from the Buyer. D. 21. 2. 49.  
ONe bought two Horses for five pounds a piece; one of them being recovered from him, he was offered ten pounds for the other: It was questioned, Whether according to the custom, he were bound to pay the money, and interest for that which was recovered? Africanus answered, that he was liable, although he had sold them both together for ten pounds.   

5 Of a Ground sold, whereof a third person recovered part, and part, was lost by the Sea. D. 2●. 2. 64.  
ONe sold and gave possession of a ground, containing a thousand acres, whereof, the sea afterwards breaking in, two hundred were lost, and Titius a third person, who had right to a fourth part, sued for two hundred and fifty acres, but recovered only two hundred acres: It was questioned, what he, who had covenanted to make double satisfaction to the buyer, for what should be recovered from him, was liable unto? Papinian answered, That he was liable only for a fifth part, that is, two hundred acres, not for the fourth, which was two hundred and fifty, although Titius had right to so much; for that which was lost by the seller he was not bound to make good; but if the whole ground, after the sea had broken in, had been recovered by Titius, in strictness of Law, nothing of what was covenanted for, should have been abated unto the seller, no more than if after a horse is sold, he grow lean before he be recovered by another man. As on the other side, If after the sale, a thing be improved in value, and then recovered, the obligation for satisfaction in case of eviction, is still the same, as it was at the time of the sale, so that, if by receding or falling back of the sea, two acres of land accrue unto the ground, and of a thousand it become twelve hundred acres, and a fifth part of the whole be recovered, satisfaction shall be given, only for the two hundred acres, which were the fifth part of the thousand, at the time of the sale; because the recovery of part of the two hundred, which accrued afterwards by the falling away of the sea, belongs not to him who made the sale. It is further questioned, If after the sale of Lands or Grounds containing a thousand acres, two hundred acres be lost on the one side, by breaking in of the sea, and on the other side, two hundred be gained, by falling back of the sea, and then a fifth part indistinctly be recovered, for how much the seller shall be liable to make satisfaction: Papinian answered, he shall be liable neither for the fifth, nor the fourth part, of a thousand acres, but as if▪ of eight hundred, a hundred and sixty only had been recovered, for the other forty acres which were lost in the whole, by the breaking in of the sea, are recompensed by what was gained on the other side.   

6 Of Land Let, Covenanted to be tilled. D. 19 2. 53.  
ONe let Ground to another for seven years, for three pounds yearly rend, and covenanted, that if the Ground were not tilled and manured, the Landlord might let the same to another man; and if it happened to be for a lesser sum, the former Tenant should make good the rest. The Ground after a year being not tilled, the Landlord let the same to a third person at four pounds yearly, for the remainder of the term: It was questioned, whether the Landlord ought not to allow the former Tenant the surplusage, above the three pounds yearly? Julianus said, In such Covenants it is to be considered what was agreed betwixt the parties. But in the businesses in question, in regard nothing was provided, in case the ground were let for more, it seems the covenant was inserted in favour of the Landlord only.   

7 Of Covenants unperformed on b●th sides. D. 18. 5. 10.  
Titus' Cornelius, bought certain grounds, of Junius Blaesus; and having cause to suspect, that Numeria, and Sempronia might trouble him, by suing for the same, covenanted with Junius Blaesus, that part of the money, should be detained in his own hands, until a sufficient surety were given, to save him harmless; afterwards Junius Blaesus, added another covenant, that if by a certain day, the whole price were not paid, the grounds should remain to him as unsold. In the mean time Numeria commencing a suit concerning those grounds, Blaesus obtained a sentence against her, and then compounded with Sempronia: so that Titus Cornelius had no cause left, to doubt his title: It was questioned, no surety being given by Blaesus, and the money, at the time appointed being unpaid by Cornelius, whether the sale were void? Scaevola answered, That if it were covenanted, that a surety should be given before the money were paid, and that was not done, there being no fault in Titus Cornelius, the later covenant ought not to be insisted on, to make the sale void.   

8 Of a Covenant to do no damage to another man's house. D. 39 2. 25. & 26.  
Titius', whose house owed no service to the house of Gaius his neighbour, gave him bond, that he would do him no wrong or damage, in building, or contriving any thing in his house: It was questioned, if Titius built his house higher, whereby the lights of Gaius his house were darkened, or made a well, whereby a spring of water, was drawn from the well of Gaius, whether he might sue Titius upon the bond? Proculus' answered, That Gaius had no right to sue Titius, upon that occasion; for he is not held to suffer damage, who is hindered from that benefit, which he formerly enjoyed; and Trebatius gives this reason, because it cannot be imputed as a wrong, when one does no more, than it is lawful for him to do.   

9 Of a Covenant to pay money, if such or such a thing be not done. D. 34. 5. 13. § 2.  
LVcius bequeathed to Titius a house, and a ground, and made Maevius his heir; Titius covenanted with Maevius, that if Maevius did not convey unto him, such a certain house, or such a certain ground, that Maevius should pay unto him, a hundred pounds: At the time appointed, Maevius conveyed to Lucius the house agreed upon, but not the ground: It was questioned, whether he were liable to pay the hundred pounds, Julianus said, That he was liable to pay the hundred pounds, and that it was all one, whether the one or the other were unperformed. Indeed it were more evident, when divers things are proponnded, all which we would have done, if we covenant for a penalty, in case any of those things shall be omitted; and if divers things be propropounded, whereof the performance of one is sufficient, to covenant, if none of those things shall be done, you shall pay a hundred pounds.   

10 Of Money due upon default of condition, not to be required until the time of performance. D. 45. 1. 8.  
LVcius Titius covenanted with Sempronius, that if he did not give him Sticchus his bondman, on the first of the Kalends of March, he should pay him ten pounds; Stichus the bondman died in the mean time, long before the Kalends of March: It was questioned, whether Sempronius might not then presently sue for the ten pounds; in regard it could not be possible that Lucius Titius should give him Stichus at the time appointed: Sabinus and Proculus answered, That he had no right to sue before the Kalends of March: which Paulus likewise approves; because the the whole obligation hath both a condition, and a certain day for performance: and although, as to the condition, it was in force, and the money became due, yet the day of payment of the money was not then come.   

11 Of a Covenaut to bind one to Marriage, under a forfeiture. D. 45. 1. 134.  
TItia having a son, who was a Bachelor, married with Gaius Seius, who had a young daughter unmarried: At the time of their Marriage, It was agreed between them, that the son and the daughter should contract espousals together, and a Covenant was drawn up in writing, that on that side or part, whence any impediment should happen, to disappoint the completing of the marriage, an hundred pounds should be forfeited to the other party: Afterwards Gaius Seius dying, his daughter refused to be married, to the son of Titia: It was questioned whether the hundred pounds, covenanted to be forfeited, might be recovered from the heirs of Gaius Seius: Scaevola answered▪ That if Titia brought her action upon that Covenant, the heirs of Gaius Seius might take exception unto the unlawfulness thereof: Because it was always held a dishonest course, to entangle pesons, by danger of forfeitures, to contract either Espousals or Marriages.   

12 Of a Surety, not being liable, when and where the principal debtor is not. D. 46. 1. 49.  
SEmpronius borrowed money of Maevius, to be repaid by him at Capua, and Cornelius as a surety, bound himself for the performance thereof; Maevius understanding that Sempronius was arrived at Capua, & in that respect liable to his action there, demanded payment of the Money from Cornelius the surety, then remaining at Rome. Papinian being consulted thereupon, answered, That although the action did lie at that time against Sempronius, then being at Capua, yet Cornelius the surety was no more liable to the action, then if he himself being at Cappua, had undertaken for the payment, when Sempronius the principal debtor was not yet arrived there; for in that case it was certain, the principal could not have been sued, there being a Tacit allowance of time for payment, in a remote place; and it were hard the surety should be sued, when the party principal was not liable to an action; and therefore he concludes, that the tacit allowance of time for payment, is to be granted to both; and that they who are of another opinion, would contrary to the rule of Law, make the condition of the surety worse, then of the principal Debtor.   

13 Of Disengaging the Security, before the debt be paid. D. 17. 1. 38.  
LVcius Titius, at the request of Maevius his natural son, gave way, that he should engage for a debt, a house, which was common to them both, without any intention of putting away his right therein: Afterwards Maevius dying, and leaving a Daughter under age, her Tutors began to question Lucius Titius, for some matters before the Judge; He desired that his interest in the house, might be freed, from Maevius their father's engagement: It was questioned, whether the Judge might take order to free it? Marcellus was of opinion, that the Judge might proceed therein, taking into his consideration, the condition of the Debtors, the agreement had betwixt them, and the length of the time, wherein the house had been engaged; which business, he says, is not unlike that of a surety, which often falls out, when he sues to be discharged, before the debt be paid, for he ought not always to stand expecting, when the principal Debtor will take order for payment, or the Creditor sue, and recover his money, if the principal debtor be a long time negligent, and the surety himself prove less able to satisfy; which if he had in due time been enforced unto, he might have had some remedy against him, for whom he was entreated to become engaged.    

SECT. III.  
Of Reputed Contracts.  
Reputed contracts are, when, without mutual or express consent on both sides, one becomes obliged to another, by business voluntarily acted, or done, or being employed in some private charge or public office.  

1 Of a Grandmother maintaining her Niece in Minority. D. 3. 5. 34.  
NEsennius Apollinarius puts a case to Paulus, as followeth, The Grandmother took upon her the managing of the Niece's estate; both being dead, the heirs of the Grandmother, being sued, by the heirs of the Niece, for goods which belonged unto her, demanded allowance, for the Niece's diet, for which the Grandmother, some years had been at charge. It was answered by the heirs of the Niece, that the Grandmother out of her natural affection, gave her Niece her diet freely, and therefore no satisfaction was to be required for the same. It was replied on the other side, That the Grandmother, might have been supposed, to have given the diet freely, if the charges thereof, had appeared, to have been taken out of her own proper estate: other ways it was more likely, that it was done, out of that, which belonged to the Niece. Some were of opinion, that the charge should have been cast upon both estates. Paulus returned answer, That the determination of the difference, depended upon the matter of fact; the presumption of the Grandmothers liberality, doth not always hold; How if she openly professed, that she expected satisfaction from the Tutors, or from the child coming to years? And therefore he was of opinion, that the heirs of the Grandmother, aught to be heard, if they can show, the charges of the Niece's diet, were put unto her account.   

2 Of moneys laid out in respect of one, proving to be for the benefit of another. D. 3. 5. 45.  
Titius' conceiving his sister to be heir to Sempronius, by his will, paid money to some, to whom Sempronius was indebted, which afterwards proved otherwise; Sempronius his son appearing to be his heir, It was questioned, whether the son were bound to give him satisfaction, for what he had laid out? Ulpian answered, although what Titius had done, was in contemplation of his sister, yet in truth, the son's estate, was bettered thereby, and therefore he might have recourse against him, who in equity, was bound to give him satisfaction.   

3 Of a Debt acknowledged by a Factor, on his Master's behalf. D. 14. 3. 20.  
OCtavius Faelix a Scrivener, employed Octavius Terminalis in his business, who wrote to Domitius Faelix in this manner; Sir, There remains in my Master's hands a hundred pounds, which I am to pay unto you, before the first of May, Octavius Faelix shortly after died, without any heir, and left not goods sufficient to pay his debts: It was questioned, whether Octavius Terminalis was liable by his letter, to be sued for the hundred pounds? Scaevola answered, that by writing that letter, he was not bound in Law, neither was there any equity why he should pay the same; because what he wrote, was in duty of his place under his Master, to show the account, not to charge himself.   

4 Of Goods received by the Servant, converted to the Master's use. D. 15. 3. 16.  
ONe left his ground to his servant, to be tilled, or manured by him, and furnished him with Oxen to that purpose, which proving unserviceable, he willed them to be sold, and with the moneys, others to be bought in their stead: the servant sold those Oxen, and bought others, but paid not for them, and afterwards proved nothing worth; he that sold the Oxen, demanded the money of the Master; because the Oxen bought, were converted to his use: It was questioned, how far the Master was answerable? Alfenus answered, That it was true, that the later Oxen were converted to the Master's use, deducting what the former Oxen were sold for, and therefore the Master was to be condemned in so much, as the later Oxen were of better value than the former.   

5 Of a Tutor's account, to be made for interest, not for gains. D. 46. 7. 47. § 6.  
TWo brothers driving a Trade together, as partners, one of them died, and left a son, to whom the Uncle, surviving became a Tutor; and selling all the commodities belonging to the trade, set out for his Nephew, his moiety in money, and went on in the Trade alone, in his own name: It was questioned, what he was bound to make good to his Nephew? Scaevola answered, That he was bound to make good the use, or profit of the money, but was not to account any thing for the gain made by his Trade.   

6 Of a Tutor answerable for gain by special appointment. D. 26. 7. 58.  
LVcius Titius, who in his life-time employed Pamphilus and Diphilus in his Trade, and negotiation, in his will, appointed them Tutors to his children, & ordained, that they should manage his Trade and affairs, as formerly they had done. They took upon them, the administration of the estate, during the Minority of the children, and Diphilus put to their account, the profits which he raised by trade; but Pamphilus thought to be discharged, by giving an account only of the use money, or interest, for so much as came unto his hands, as it is usual when one is sued, by occasion of Tutorship: It was questioned, whether Pamphilus were not liable to answer, for what he gained by employment of the stock, as well as Diphilus? Tryphoninus answered, That the Testator willing, that they should manage the business for the Minors, as they had done for himself, he was liable.   

7 Of Alimony, and Education to be allowed to a Tutor, for a Minor. D. 2. 2. 4.  
ONe made his son a Minor, his heir; and bequeathed to his Daughter for her Dower, two hundred pounds, and nothing else; and appointed Sempronius Tutor to them both; at the instance of the kindred, Sempronius, being called before a Magistrate, was ordered, to allow her Alimony, and to pay wages to such, as should instruct her in the Liberal Arts. The Son coming to full age, paid unto his Sister, then being of ripe years, the two hundred pounds, given to her as a legacy: It was questioned, whether he were also bound, to allow unto the Tutor, what he had expended for Alimony, and instruction of his sister? Julianus was of opinion, That although, without the order of the Magistrate, he had done those things, she having no other means to be maintained, the Tutor ought not to be questioned for the same.   

8 Of a Tutor keeping to his own use a Minors goods, which a Chapman refused. D. 26. 7. 56.  
A Tutor sold cattle, belonging to a Minor, and he that bought them, not paying the price, detained them to his own use, and allowed money for them to the Minor upon his account. The Tutor dying, his heirs enjoyed the cattle divers years. When the Minor came to full age, It was questioned, whether the late Minor, had any right to the cattle? It was answered by Scaevola, as the case was proposed, he had no right.   

9 Of Curators of the City, not to be questioned for more than came to their hands. D. 3. 5. 26.  
A Citizen by his will bequeathed his goods to the City, the Magistrates appointed three Curators, Titius, Seius, and Gaius, being then of good ability to manage the estate; they, of their own accords, divided the administration of the goods among themselves severally; it happened after a while, that the will, by which the goods were bequeathed to the City, was proved to be void, and Sempronius next of kin, was admitted as heir: in the mean time Titius, one of the Curators failed In his estate, and died nothing worth: It was questioned, whether Sempronius might recover of the other two that part of the estate, which came to Titius his hands? Modestinus delivered his opinion, that what was wanting, by his default, who managed part alone by himself, ought not to be imputed to the other two Curators, and that the heir must be contented to sustain the loss.   

10 Of the Public Money of the City let out to use. D. 22. 1. 11.  
GAius Seius, who managed the public Treasure of the City, lent money to use, according to the custom of the place, for four in the hundred; and in the same place, it was likewise the custom, if any debtors failed, at the time appointed, to bring in the interest or use money; that thence forth, they should pay after the rate of six in the hundred: it happened, that some Debtors, brought not in the moneys at the time appointed, others brought in more than the usual rate, at four in the hundred, so that reckoning the one with the other, the City's moneys might be made good. It was questioned, whether the moneys received, above the ordinary from debtors, should acquit Gaius Seius, by whose negligence, others had failed; or whether the advantage thereof, should redound wholly to the City, and Gaius Seius ought out of his own estate to make good the rest; Paulus answered, If Gaius Seius, contracted with the debtors, for such rates only, as were usual, the moneys so advanced were to be accounted to the City, but if by his own care and industry, he had raised more than was ordinarily taken, although by Law the moneys belong to the City, yet it stands with Equity, that the moneys raised above the ordinary rate; should be allowed in satisfaction, for what was wanting in the ordinary; unless the City will take upon themselves, the hazard of all the moneys lent out to their use.     

TITLE IV. Of Penalty, and of Offences wilfully committed.  
Penalty is a Right belonging to one man from another, to be suffered, or paid by him in respect of some offence, either maliciously or wrongfully committed, or imputed to one as done by him.  

SECT. I. Offences maliciously committed, are such as are wilfully done; as, Injury to men's persons, Theft concerning their goods, & Deceitful Dealing in any business.  

1 Of Injury done, occasioned by one's self. D. 47. 10. 15. § 15.  
IT was held an Injury to attempt the chastity, or by alluring speeches, to move a Virgin or Woman, of free condition, to dishonesty. But if a Man, says Ulpian, finding a Maid in the habit of a Bondwoman, attempt her chastity, the offence seems the less; much more if a Free Woman be found in the habit of a Harlot, not of a Matron; and therefore if any man attempt her honesty, who appears not like a Matron, he is not liable to an action of injury.   

2 Of an Injury done by Error, or mistake of the Persons. D. 47. 10. 18. § 3.  
IF one do injury to another, whom he knows not, as taking Lucius Titius, to be Gaius Seius, It was questioned, whether the party so injured, might require satisfaction, in regard the injury was not intended to him, and seems done to an uncertain person? Paulus answered, That which was principally intended is most prevalent; his purpose was to do an injury, and the party injured, was a certain person, although he took him to be otherwise then he was, and therefore the party injured might bring his action: but if one do injury to a married Woman, whom he conceived to be a Widow, he cannot be said to have done an injury to her Husband, because his purpose, in respect of one person, ought not to be transferred unto another, and his intention, and purpose in doing the injury, was in respect of her, as being a Widow; but if he had known her to be a married woman, although he knew not whose Wife she was, her husband might bring an action in his own name; for if he were not ignorant, that she was a Wife, it may be supposed, he had a purpose to do an injury to her Husband, whosoever he were.   

3 Of Threatening, and offering Blows. D. 47. 10. 5. & 15.  
AN action of injury lying against him, who stroke, or beat another man, It was questioned, whether if one were not beaten, and struck, but had hands lifted up against him, and were much threatened to be beaten, he might bring his action? Labeo said, Although a direct action of injury, did not lie against him, yet he was liable to an action of the case.   

4 Of disgraceful Words, but True. D. 47. 10. 15. & 18.  
THe Praetor affording a remedy, as in case of injury, if any man speak words to the disgrace of another; It was questioned, whether he were answerable, who was able to justify defamatory words? Paulus says, That it stands not with equity nor justice, that he who spoke disgracefully of a lewd person that deserved it, should be punished for the same; because it is fit and necessary, that the crimes of men, that are guilty, should be made known and discovered.   

5 Of hindering a man from Honour. D. 47. 10. 13. § 4.  
IF one by his means hindered, that honour was not conferred upon another, as to have his Statue erected, or the like; It was questioned, whether he were not liable to an action of injury? Labeo said, He was not liable, although it were done with a purpose to disgrace him; because, says he, there is much difference, betwixt doing a disgrace to a man, and not suffering him to receive Honour.   

6 Of Injury done by a Magistrate. D. 47. 10. 13. § 6. & 32.  
VLpian says, that what is done by a Magistrate, in right of his power, is not liable to an action of Injury: and he elsewhere says, That the Magistrate, hath no power to do any thing injuriously; and that therefore he may be sued, as in a case of Injury, for what he does wrongfully, either as a private person, or by colour of his office; but makes it a question, whether he may be sued during his authority, or when it is expired? And resolves, That if he be a Magistrate of a higher rank, who without prejudice cannot be called in question, the party grieved must expect, until his authority be determined: but if he be a Magistrate of inferior sort, as such, who have not power of death, or imprisonment, he may be sued, his Office depending.   

7 Of Two or more Stealing the same thing. D. 47. 2. 21. § 4.  
IF two or more, joining their strength, steal a piece of Timber, worth twenty shillings, which simply alone, none of them could have carried away; It was questioned, whether they were all jointly, or each of them severally, liable to an action for the double value thereof? Ulpian says, That every one of them was liable; because it cannot be said, that each man stole his part, but every one of them, joining in stealing the whole, by consequence, is liable for the whole.   

8 Of an Infant stolen, detained till he grew a Man. D. 47. 2. 67.  
THe Son of a Bondwoman was stolen, when he was an Infant, and grew up to the state of a tall young man, in the possession, and service of him by whom he was stolen: It was questioned, according to what value the true owner might bring his action? Paulus answered; That the theft was still one and the same, and the action might be brought according to the greatest value at any time, whilst he remained, in the possession of him that stole him, that is, as the value was, when he was grown to a man's estate; not only as it was when he was an Infant, for saith he, what can be more rldiculous, then to think, that he who stole him, should better his own condition, by long continuance of the theft.   

9 Of a Maidservant stolen, which was a Harlot. D. 47. 2. 39  
ONe enticed away a Harlot, which was servant to another man: whereupon it was questioned, whether he had therein committed theft? Ulpian answered, It was no theft, because not the thing done, but the end wherefore it is done, aught to be respected: & the end wherefore the Harlot was enticed away, was not to make gain, but to satisfy lust; so that in truth, the fact is worse than theft, and liable to another action more infamous.   

10 Of two Bond-servants pledges, whereof one was stolen. D. 47. 2. 14. § 5.  
ONe who had two Bond-servants, left with him as pledges, or pawns for a debt of ten pounds, happened to have one of them stolen from him, the other remaining, being of no less value than ten pounds; It was questioned, whether he might bring his action only, in respect of the moiety of the debt, because his other moiety, is sufficiently secured, in the other Bond-servant remaining? Or whether he ought to have his action, in respect to the whole sum? because it might happen, that the servant remaining, might miscarry before the debt were paid. Papinian answered, That he ought to have his action in respect of the entire sum of ten pounds; because therein regard was to be had of that which was stolen, not of that which remained safe.   

11 Of a Letter stolen or Purloined. D. 47. 2. 14. § 17.  
A Letter sent by one man to another, is intercepted by a third person, who is therefore liable to an action of theft: It was questioned, who had right unto that action? Ulpian says, It ought to be considered, who had the right in the Letter, whether he from whom, or he to whom it was sent: and said if it were delivered to the servant, or some other belonging to the party, to whom it was sent, it ought to be held his proper letter; especially if it concern him, to receive the same, but if it were sent to be returned again, the right, or property remained in him, from whom it was sent; because he had no purpose to lose, or transfer the same: He concludes, That the right of action belongs to him, whom it concerned, not to have it stolen, that is, to him for whose profit or benefit, the contents thereof were written. It may be likewise questioned, whether he to whom the letter was delivered to be conveyed, might not bring his action for the same, if it were stolen from him? And it is resolved he might, if he undertook the delivery, and were paid for the same, or were concerned in the contents, as being to receive something, or to have something done for him expressed therein.   

12 Of Writings, or Bonds purloined or stolen. D. 47. 2. 27. & 32.  
HE that steals, or purloynes another man's writings or bonds, or the like, is liable to an action of theft; not only according to the value of the paper, or parchment, but also of the debt, or sum contained therein, (says Ulpian) if it concerned the owner, for so much; as if the writing, or bond were for ten pounds, the action might be brought for twenty, as the double value: whereupon it was questioned, If the sum, or money mentioned in the writing or bond were paid, before it was stolen, whether the action lay for so much, the writing or bond being then of like concernment? To which the same Ulpian answers, Although the debt be paid, the debtor may require to have his bond delivered up, or pretend that money was paid by him, when none was due; in which respects, it concerns the Creditor to have the writing, or bond in readiness, to prevent trouble which for want thereof, might happen unto him. Again it is questioned▪ If one who hath lost his bond, hath other writings, or means to prove his debt, whether he may sue for the double value of what is contained in the bond; for it seems he hath lost nothing, whose debt is secured, by another bond or writing: some again doubt why an action should lie for more than the value of the paper or parchment? Because that if upon the action of theft, he can make it appear, what the debt was, he may make the same likewise appear, when he shall have occasion to sue for the debt; and if upon his action of debt, he cannot make the sum appear, how can he be able to show, how far the loss of the bond, or writing concerned him? Paulus answered, That it might fall out, that after the theft was committed, the writings might come to his hands, by which he might be able to prove, how much it had concerned him; and the right of action, being once accrued from the theft, continues, although the case be altered afterwards.   

13 Of Things Taken up, whereof the owner is not known. D. 47. 2. 43.  
HE that takes up any thing being on the ground, and carries it away, with a mind to gain the same, is guilty of theft, says Ulpian, whether he know the owner, or know him not; for it abates nothing in the point of theft, that the owner of the thing, is a person unknown: but▪ if the owner left it, as a derelict, that is, a thing which he intended not to look after again, although he who took it up, had a purpose to conceal, and gain the same, it is no theft; for theft is not committed, unless there be some body, who is prejudiced thereby, which in this case cannot be; Because it is received for a certain rule, which Sabinus, and Cassius deliver, That he who leaves a thing, with a mind never to have it again, ceases to be owner thereof: but if it were not left as a derelict, yet if he who took it up, conceived it to be so, he is not guilty of theft: and again, if it were not left as a derelict, nor he who took it up, conceived it to be so, yet if he had no intention to gain the same, but to restore it to the owner, he is free from guilt; much more he, who having found any thing, sets up bills to signify so much, although he demanded a reward for finding and preserving it.   

14 Of an Attorney, receiving Money without Commission. D. 47. 2. 43.  
HE, who as a Proctor, or an Attorney, without any commission, or authority, receives money, seems to commit theft, says Ulpian: but Neratius says, that is not to be admitted but with distinction; For it is true, if a debtor deliver unto him money, with an intention, that it should be returned unto his Creditor, and the Proctor detain the same to himself, it is theft, For the money still continues the debtors; and the Proctors possessing himself thereof, contrary to the owner's mind, undoubtedly commits theft; but if the debtor, supposing him to have power to receive such money to his own use, deliver the same, although he therein be deceived, the Proctor can in no ways be said to act as a thief, receiving the money according to the mind, and will of the owner.   

15 Of one Taking privily what he had Lent. D. 47. 2. 59  
HE, who lent something unto another privily, without the consent of him towhom it was lent, took it away: It was questioned, Whether he were liable to an action of theft? Julianus answered, That he had not committed theft, because he was owner of what he took away; which yet he limits, unless he, to whom it was lent, had some just cause to detain the same, for if he had laid out necessary charges, for preserving the thing lent unto him, it concerned him, rather to keep the thing lent, until he were satisfied, then afterwards to seek his remedy, by way of suit for the same, and that in such a case, he might bring his action, as in a case of theft.   

16 Of one Taking away what had been Stolen from him. D. 47. 2. 48.  
ONe, who had lost a piece of Silver plate, brought an action of theft, against him who had embezzled the same, & a question, and difference arising about the weight thereof, the owner alleging it to be more, the defendant, denying it to be so much, produced the piece, which the owner presently snatched out of his hands, and kept the same, which notwithstanding, he who embezzled it, was condemned in the double value thereof; whereupon it was doubted? Whether the sentence were just? Ulpian answered, It was justly given; for the thing itself, which was stolen, was not considerable in the action, wherein by way of penalty, the double value was to be allowed: He likewise relates, That when one had stolen some goods, and sold the same, the owner of the goods, extorted from him the money, which was received for the price thereof, It being questioned, whether he had committed theft? It was resolved he had; because it was without all doubt, that the proceed, or price of the thing stolen, was not the stolen thing.   

17 Of Procuring Credit to an insufficient party. D. 4. 3. 7. & 8.  
LVoius being desired to lend money to Seius, whom he did not know, enquired of Titius, to whom Seius was known, concerning his ability, who affirmed, that he was a man, that might be trusted for such a sum: The money being thereupon lent, & Seius proving insolvent, Lucius would have brought an action against Titius, for deceitful dealing, but Caecidianus the Praetor, would not give way unto it, which Ulpian says was rightly done; because that action may not be brought, but where there was a great and evident purpose of deceiving: yet Gaius says, That if when he knew, that he was of a broken condition, for some gain to himself, he affirmed his credit, in regard he commended him with a purpose of deceiving another, that action may be justly brought against him.   

18 Of a false commendation of a thing to be sold. D. 4. 3. 37.  
ONe who desired to buy a Horse, which was sure of foot, repairing to an Horse-courser, and enquiring for one of that condition, had one showed unto him, which the owner knowing his qualities, commended for a most sure horse, or that would neither stumble, nor trip; with which commendation he sold his horse at a very good price. The first journey wherein the buyer made trial of him, he fell, and broke the rider's leg. It was questioned, whether the Horse-courser were not liable to the action of deceitful dealing? Ulpian said, That which a seller speaks by way of commendations in general, is to be understood as neither spoken, nor undertaken by him; but if he gave some special commendations, with a purpose to deceive the buyer, he can neither be sued for his commendations, nor for a promise, but he may be questioned for deceitful dealing.   

19 Of making a false claim to another man's prejudice. D. 4. 3. 33.  
ONe having a commodity ready to sell, towards the end of the Market, the buyer having taken good liking thereto, another makes claim to the commodity, and threatens to bring a Sergeant to arrest it; whereupon the buyer departed, and the third person desisted his claim, whereby the sale was frustrated. It was questioned, what remedy he might have, that received the prejudice? Ulpian said, That the true owner of the commodity might bring his action on the case, for the satisfaction of his loss.   

20 Of the Like. D. 4. 3. 9 § 3.  
LVcius being possessed of some parcels of oils taken out of a ship, Seius arrested them, as his own, and began a suit against them. The oils being perishable in value, it was agreed betwixt them, that they should be put into the hands of Sempronius by way of sequestration, to be sold by him, and the money to be kept for his use, to whom they should be adjudged, Seius let fall his suit. It was questioned. Whether Seius might be sued for deceitful dealing? Some were of opinion he might; because Sempronius could not be sued to deliver the Oils, until the cause were ended: but Pomponius was of opinion, That an action of the Case might be brought against Sempronius; but if that he proved insolvent, that then the action held against Seius.   

21 Of lending false Weights. D. 4. 3. 18. § 3.  
IVnius being to sell a commodity, Lucus knowingly lent him false weights, to weigh his commodity withal. Trebatius said he was liable to the action of deceitful dealing. Others were of a contrary opinion, Because if the weights were too heavy, the seller might recover what he had delivered too much; and if they were too light, the buyer might have the like remedy concerning the price: but if it were agreed that the commodity should pass according to such weights, and he with a purpose to deceive, affirmed his weights to be just, the action did hold.   

22 Of a Counterfeit Letter. D. 4. 3. 38.  
LVcius, who owed money to Seius, understanding that Seius was much obliged to Sempronius, caused a Letter to be conveyed to Seius in the name of Sempronius, wherein it was requested, that he would remit that debt to Lucius; Seius being deceived by this letter, sent an acquittance of the debt of Lucius, by him who brought the letter: Afterwards it appeared to him, that the letter was false, and counterfeited; Whereupon Ulpian was advised what might be done in this case. He resolved, That Seius the Creditor, if he were under the age of twenty five years, might sue to be relieved and restored, against that acquittance: and if he were above that age he might bring his action against Lucius for cozenage, or deceitful dealing.    

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

1 Of Corn fired by burning of Furze. D. 9 2. 30. § 3.  
IT was questioned, If a man, with intention to burn the Stubble, or Furze upon the ground, set fire thereunto, which fire dispersing farther, burns another man's corn, or vineyard, how far he is liable for the loss or damage. Paulus says, it is to be considered, whether it were foolishly or negligently done, for if he put fire on a windy day, he ought not to be excused; for he is supposed to do a damage, which gives occasion thereof: and he is in like fault, who did not take care, that the fire might not spread so far; but if all things requisite were observed, he is without blame.   

2 Of Hurt done by Lopping a Tree. D. 9 2. 31.  
IT was questioned, If one Lopping a Tree, did throw down a bough, or limb thereof, whereby another man's Servant or beast was killed, or hurt, Whether he were liable for the loss? Paulus says, he was liable, in case it were done in a common high way, if he did not give warning, so that that falling thereof might have been avoided. Mucius says, it is the same in a private way, if it happened by that neglect, which by a careful man might have been prevented; or if warning were given when it was too late: but if it fell out in a place where there was neither a public nor private way, nothing is required, but that it be not wilfully done; For he ought not to be held faulty, that could not foresee, whether any were likely to pass that way or no.   

3 Of Hurt done in Sport or Play. D. 9 2. 52. § 4.  
DIvers boys playing at Ball together, when one strove to take the Ball, another thrust him aside, by occasion whereof he fell, and broke his leg: It was questioned, Whether the Master of the Boy ought not to have recompense according to the Law, against him who threw him down? Alfenus answered, He could have no remedy, because the hurt was done, rather by chance, then by any wilful fault.   

4 Of Hurt done upon Provocation. D. 9 2. 52.  
A Shopkeeper in the night time, set a Lantern with a Candle upon his stall, a Bond-servant passing by, snatched it up, and carried it away. The Shopkeeper following, demanded his Lantern, and laid hold of the Bond-servant, to hinder him from running away. Whereupon he, to free himself, struck the Shopkeeper with a pike staff, whereupon the fray increasing, the Shopkeeper thrust out one of his eyes. It was enquired, Whether he were not liable to the Law, having unduly done a damage? Alfenus answered, that he was of opinion, That the damage was not unduly, or wrongfully done, unless wilfully, and of set purpose he had put out the eye, but that the fault was in him who first struck with his pike staff, and if the shopkeeper had fought, before he had been strucken, he might have borne the blame.   

5 Of Hurt done by way of Correction. D. 9 2. 5. § 3.  
A Shoemaker who had directed a boy how to do his work, finding the Boy had not observed his directions, struck him in the poll, with the last of a shoe, by occasion whereof he lost his eye: It was questioned What remedy might be given against him? Julianus said, he was not liable to an action of Injury, because he did it not with an injurious intent; but doubts not, but that he was liable to make satisfaction: which is confirmed by Paulus, that the Masters too great severity is held a fault. Whereupon it was concluded, that the Father of the Boy might recover the loss he sustained in forbearing his Work, and the charges he was at in having him cured.   

6 Of one Killed by a Barber's Razor, struck with a Ball. D. 9 2. 11.  
SOme young men playing with a Ball, one of them struck it so, that lighting upon a Barber's hand, having a Razor therein, by occasion thereof, the throat of a Servant, whom he was shaving, was cut; It was questioned. Who was liable forth loss? Mela says he was liable, which was in fault. Proculus was of opinion, that the Barber was in fault; with whom Ulpian agrees, if the Barber did use his trade where men do usually play at ball; yet confesseth, that it may not without reason be argued, That if one; knowing the Barber's chair, to be in a place of danger, put himself under his hand, that the fault might be imputed to himself.   

7 Of a Boy following two Carts, crushed to Death. D. 9 2. 52. § 2.  
TWo Carts drawn by Mules, were driven up the steep way leading to the Capitol. The Carters of the former, to help forward the Mules, set their shoulders to the Cart, and that chancing to fall backwards, withdrew themselves; whereupon the former falling upon the latter, forced it backward down the hill, so that a boy was crushed to death thereby: It was questioned, Against whom the Master of the Boy might bring his action? Alfenus answered, The judgement ought to be given according to the circumstances of the fact; for if the Carters, who put their shoulders to the uppermost Cart, wilfully withdrew themselves, and thereupon the Mules could not stay it from falling backward, the action did lie against them; for they were no less faulty in suffering it to fall foul on the other, then if a man let fall a weapon, which he might have held, whereby another man is hurt. But if the Mules of the former, being skittish, started aside, so that the Carters withdrew themselves, for fear lest the Cart might have run over them, no action lies against the men, but against the owners of the Mules. But if the fault were neither in the Mules, nor in the Men, as because the Mules were too weak to draw the weight, and striving therewith fell down, and the men could no longer support the Cart, neither were the owners of the Mules, nor the Carters liable. Howsoever it happened; It is certain no action lies against the owners of the later Mules, because they were forced to fall back.   

8 Of Damage done to cattle, found in another man's ground. D. ad leg. Aquil. 39  
QVintus Mucius relates a Case, One man's Mare being great with foal, feeding in another man's ground, in driving out, cast her Colt. It was questioned, Whether the owner might bring his action against him that drove her, because by driving her, he made her lose her Colt. It was held, that if he struck, or willingly, drove her away violently, he might bring his action. Pomponius adds, That although a man find another man's cattle in his ground, he ought so to drive them forth, as he would drive his own; Because if he hath received any damage, he hath his proper remedy by way of action. And therefore he, who finds another man's cattle in his ground, cannot lawfully impound them in his own ground, nor drive them out otherwise then he would do his own. But he ought to drive them out without doing them any hurt, or give notice to the owner to fetch them away.    

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

1 Of Wrong done out of the duty of ones Charge, not to be imputed to the party. D. 34. 9 22.  
HE who goes about to overthrow a Will, as made unduly, aught to receive no benefit by the Will if it stand good: Yet it stands with good reason, says Triphoninus, That a Tutor, who on his Pupils behalf, objects against a Will, although he fail in making good, what he intended, should not lose any Legacy given him therein; Because the necessity of his charge, and the trust reposed in him as a Tutor, aught to excuse him. For divers rights or interests concurring in the same person, they are in themselves distinct; and so is the relation of a Tutor, from the condition of a Legatory: and whereas the opposition made to the Will, was not in the right of his own person, but for the interest of his Pupil, he ought to suffer nothing in his own condition: But what was given to the Pupil in the Will, proves void, unless by the Prince's favour it be preserved.   

2 Of Damage done by a Servant common to two Masters. D. 9 4. 17.  
A Bond-servant which was common to two Masters, did a damage wrongfully, to which one of the owners was privy; the other was altogether ignorant. It was questioned, whether if the latter delivered up the Bond-servant, the other were freed? Paulus said, That if the damage amounted to more than the Bond-servant was worth, the rest may be recovered of the other owner, allowing him consideration, of a moiety of the value of the Bondman, in regard of his interest in him.   

3 Of one man's Ram killing another. D. 9 1. 1. § 11.  
IT happened that two Rams, belonging to several owners, fight together, the one killed the other. It was questioned, Whether the owner were bound to make satisfaction for the loss? Quintus Mucius answered, That if it can be proved, That the Ram which was killed, did first provoke, and assault the other, the action would not hold; but if that which, without provocation, was first assaulted, was also killed, the owner thereof aught to give satisfaction, or deliver up his Ram as liable for the damage.   

4 Of Water falling from a higher ground into a lower. D. 39 3. 1. § 22.  
IF a Work or Bank, anciently erected in one man's ground, being removed, the Water naturally falling into the lower ground, belonging to another, some annoyance, or inconvenience grows thereby▪ It was questioned, Whether he who suffered the inconvenience might have remedy? Labeo answered, he could have no remedy, because the lower ground, always owes that service to the higher, as to receive the water falling from it: but if by removing the work or bank, the water falls more violently into the lower ground, then naturally it did, and thereby an annoyance, or inconvenience groweth; he confesses, that he may bring his action for remedy thereof. He says moreover, That not only the nature, and situation of the grounds, but the conditions imposed, or agreed upon, and the ancient use observed, time out of mind, aught to be considered: By the natural situation, it is true, the lower ground owes such a service to the higher, and if there be any inconvenience therein, it is recompensed with another convenience, because by fall of the water, the soil is enriched, and improved; yet sometimes, by consent of parties, it is agreed, how watercourses should pass from one ground to another, and if there appears no such conditions, or agreements the ancient use ought to be observed.   

5 Of a Bank removed by Casualty. D. 39 3. 2. § 5.  
IT happened, that the violence of a Land-floud broke down a bank in one man's ground, which kept in a Watercourse, from annoying the neighbour's grounds which were near it. It was questioned, Whether the owner of the ground were bound to repair the bank? Alfenus answered, That if the bank were natural, he was not bound to repair it, nor could be compelled to suffer it to be repaired by others, and if it were artificial, and no man living could remember, that the owner of the ground had repaired it, he was likewise free; but if in the memory of man, it had been repaired by the owner of the ground, he might be compelled thereto. Labeo said, If the bank were artificial, although no man living could testify, that the owner of the ground had raised it, yet he might be required and compelled to suffer it to be repaired: For although no man could bring an action, to compel another, to do something for his benefit; yet he might bring one, to cause him to suffer, that to be done, whereby he himself could receive no prejudice. He affirms the same, although the bank were natural, and concludes, If the Law be defective, yet it consists with Equity.   

6 Of the like Case. D. 39 3. 2. § 6.  
NAmusa said, That if a current, passing into a lower ground, be obstructed or stopped with mud, by occasion whereof, some annoyance or inconvenience happens to a higher ground, the owner of the higher ground, may sue the owner of the lower ground, to suffer him to remove the obstructions, and cleanse the stream; because the action holds, not only where some work is raised by the hands of men, but also where it happens that some annoyance ariseth besides expectation and by chance. Labeo argues against Namusa's opinion, That the condition of grounds may admit alteration from the grounds themselves; and when such alteration happen, every man must rest contented, whether the grounds be made the worse or better: Likewise as if an alteration happen by an Earthquake, or violent tempest, upon which occasion, no man is bound to give way to have things restored to their former condition. But Paulus inclines to Namuza's opinion, saying, That whatsoever may be maintained in point of strictness of Law, this in Equity it ought to be admitted.     

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

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

1 Of a Child supposed in the Womb made Heir. D. 28. 2. 25.  
LVcius Titius being in the City, when he made his Will, and having a Niece, to wit, his Daughter's Daughter, great with child, then abiding in the Country, made the Child in his Niece's womb one of his heirs. It happened that the same day that Titius made his Will in the City, his Niece in the Country was delivered of a Son. It was doubted, Whether he ought to be his heir? because when the will was made, the child was not in the Mother's Womb, but brought forth into the World. Paulus answered, That it is true, The words in the Will mentioned a child in the Womb, which should be borne after the making thereof, but if, as the case is put, the Niece were delivered before the Will was made, the Testator not knowing so much, It ought in right to be allowed as heir.   

2 Of Heirs made of Estates in several places. D. 28. 5. 35.  
MArcus Aemylius a rich Citizen, having a great estate, partly in Italy, partly in Sicily, than a Province under the Romans; made two Heirs Cornelius, and Sergius, one, that was Cornelius, of that estate or goods which he had in Rome or Italy▪ the other Sergius, of what he had in the province of Sicily. He trading betwixt both places, It happened that in his life time, he had conveyed money into Sicily, to buy goods or commodities to be remitted to Rome. It was questioned, Whether that money or the proceed thereof, remaining at the time of his death with his Factors in Sicily, did belong to Cornelius, who was heir for that estate and goods which he had in Italy, or to Sergius who was heir to that estate which he had in Sicily? Ulpian answered, That in truth, it depended upon the will and meaning of M. Aemylius the Testator, what should be reputed good of the one place or of the other; because the Will of the Testator, if it may appear, is all in all, and that must be followed which the Testator meant, Otherwise, it is to be understood, that those things are comprehended under the notion of things, or goods in Italy, which he had remaining there constantly, and provided so to have them. But if yet at any time, he conveyed the same into another place, not with a purpose that they should continue there, but to have them returned again, those shall neither increase the stock in the place whether they are conveyed, neither shall they diminish the stock of that place from whence they are sent. As for instance: If a man, out of that part of his patrimony which he hath in Italy, sends his servant with money into the Province, to buy commodities, and to return with them to Rome. It is no doubt, but the money and the commodities when they are bought, belong to that part of his patrimony, which is in Italy; and so Mucius determines, in the case of a Legacy. If one who hath grounds in several places, and cattle, as Oxen usually employed in those several grounds, and bequeath one of the grounds with the cattle appertaining thereunto, and at his death, the Oxen of the other were sent thither, to till that ground, they shall not be comprehended in the legacy; because they were not destinated to that place, to continue there.   

3 Of a Disposition of so much if a Son be borne, of so much if a Daughter, and a Son and Daughter both are borne. D. 28. 2. 13.  
THe state being usually diviseable into twelve parts; One, whose Wife was great with child, made his Will in this manner; If my Wife be delivered of a Son, my will is that he shall have eight parts of my estate, and my Wife the rest, (which was four) but if she be delivered of a Daughter, my Will is that my Daughter shall have four parts, and my Wife the rest. It happened that she was delivered, both of a Son and of a Daughter. It was questioned, How the estate should be divided? Julianus answered, That the estate was to be divided into seven parts, whereof the Son was to have four parts, the Wife two, and the Daughter one; For although he made no provision both for a Son and a Daughter, yet in regard he intended to his Son a double proportion, to that of his Wife, and to his Wife a double proportion to that of his Daughter, Therefore this division was agreeable to his mind, and, as Juventius Celsus affirmed, most reasonable.   

Of the like Case. D. 28. 5. 81.  
CLemens Patronus ordained in his last Will, his Wife being great with Child, That if a Son were borne unto him, he should be his sole Heir, if two Sons, they should be equally his heirs, if two Daughters, likewise they should be his Heirs in the same manner, if a Son and a Daughter, he gave two parts of his estate to his Son, and a third part unto his Daughter. It happened that there were two Sons and a Daughter borne. It was questioned, What was to be done in that case? Paulus answered▪ Whereas he intended, that the Sons should be equal, and that a Son should have a double proportion in respect of a Daughter, that the estate should be divided into five so that the Sons should have two parts a piece, and the Daughter should have one, that is, a fist part. vid. l. 47. D. eod.   

5 Of Heirs made upon condition of Marriage. D. 28. 7. 23. 24.  
LVcius Titius having two brothers, and a kinswoman, whom he well affected, made his Will, and disposed of his estate in this manner, He of my brothers, which shall marry my kinswoman Fulvia, shall be heir for nine parts of my estate, and he that shall not marry her, shall be heir for the other three parts. It was questioned, If she refused to marry either of them, or died, before either of them could marry her, how the estate should be divided betwixt them? Papinian answered, That the Brothers ought to be heirs equally, for the whole estate; because it is plain, he made them both his heirs, and the difference of the parts given unto them, depended upon the success, or event of the Marriage; to which Marcellus adds, That a condition, if one shall Marry such a Woman, or do such a thing, aught to be understood performed, if there be no default in him, whereby he is not married, or the thing not done.   

6 Of an Heir made, upon an absurd condition. D. 28. 7. 27.  
ONe in his Will, made another his Heir, upon condition, that he should throw his ashes or his bones into the Sea. It was questioned, whether, if he that was made heir upon that condition, if he did not perform it, aught to be put by the inheritance? Modestinus answered, It was first to be enquired, whether he who made his heir, upon that condition, were in his wits, or right senses when he did it, which if it be clear, It is no question but the heir, although this condition be not performed, shall enjoy the estate, before him, to whom it might belong, in case the Will were void. For the heir was rather to be commended, than any way questioned, who forbore to cast the Testators ashes or bones into the Sea, but out of consideration of humane condition, committed them to burial in a civil way.   

7 Of two Heirs made upon condition, not performed by one of them. D. 28. 5. 44.  
SEmpronius in his Will, made Titius and Caius his Heirs, and enjoined them to build a monument for him, within a certain time; and then added, that if either of them should fail to perform it, both should be disinherited: Titius refused to meddle with the estate; Caius alone built the Monument, and asked advice whether he might not hold as Heir to Sempronius, although Titius had not intermeddled in the estate, nor joined in the building of the Monument. Alfenus answered, That no man was bound unto, or debarred from an inheritance, by another's fact; but he that had performed the condition required in the will, although the coheir did not intermeddle, nor join with him, aught to enjoy the inheritance.    

SECT. II. Of Substitution.  
Substitution is when one or more are appointed Heirs, in case such as were first named, shall die before the Testator, or refuse to intermeddle in his Estate.  

1 Of a Substitution, if a Son or Daughter shall not be a man's Heir. D. 34. 5. 13. § 6.  
LVcius Titius made his will, and therein ordained as followeth; If I shall have a Son, or a Daughter, he or she shall be my Heir; if my Son or my Daughter shall not be my heir, than Seius a stranger shall be my heir. It is questioned, Whether if he have not a Son, Seius hath not right to be his heir together with his Daughter, or if he have not a Daughter, Seius ought not to be co-heyre with his Son? Julianus says, The Will was not well conceived; For if it was his meaning, that he should not have been his heir, in those cases, he should have expressed it thus; If neither my Son nor my Daughter shall be my heir, than Seius shall be my heir. It is true, that it might be his intention, That if he had a Son, and a Daughter, that both shall be his heirs: and it might be his meaning, that if he had but one Son and one Daughter, that Seius should be his coheyre with the Son, or Daughter; or that it was his purpose, that if he had neither a Son, nor a Daughter, Seius should be substituted as his sole heir; and he inclines to this opinion, That the Testators meaning ought to be understood, that whether he had a Son, or a Daughter, Seius the stranger should not be taken for his heir, unless he had expressly declared his mind to that purpose.   

2 Of a Substitution in case two Sons die without Children, one of them happening to have Children. D. 36. 1. 57 § 7.  
SEmpronia having two Sons Lucius and Titius, and a Niece named Claudia, made both her Sons her heirs equally; and then commended to their trust, That if either of them should die before the other, leaving no Children, he should restore his part of the estate, unto the brother surviving; and that if they should both die without Children, that then her whole estate should come unto her Niece Claudia. Lucius dying first, left a Son behind him, Titius afterwards died 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 Sons die without children, at the first view it might seem, that Claudia the Niece could claim nothing, because one of the Sons dying, left a Son; but he says, 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 work something, as to derive the part of him who died 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 Heir, in case a Child died before the age of ten, and of another, if before the age of fourteen years. D. 28. 6. 43.  
ONe made his Will, and therein ordained, that his Son being an Infant, should be his Heir, and then declared, that if his Son shall die before he accomplish the age of ten years, Titius should be his Heir, and if he shall die, before he were of fourteen years complete, then Maevius should be his heir. It happened that the Son died, when he was but eight years old. It was questioned whether. Titius' alone, aught to be admitted as his substitute, or whether Maevius also were not to be joined with him, because it was certain, the Son died both within the age of ten, and also within the age of fourteen years. Paulus answered, The Father had power to substitute an Heir unto his Son, in case he should die at any time, before he had completed fourteen years, and no longer. But it is most reasonable, that he having allotted several times, for two to succeed, by way of Substitution, that the time allotted to either, should be understood severally; unless it can be plainly showed, 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 Son of the age of fourteen years, whom he intended to make his Heir, in the first place; in regard he was dumb, and could not make a Will, obtained leave of the Emperor to Substitute an heir to his Son, and did substitute Titius; afterwards the Son, who was mute, his Father being dead, married a Wife, and by that Wife had a Son. It was questioned, Whether the Substitution of Titius were of force? Paulus answered, That it was usual for the Emperor, to interpret his own grant in the way of favour to any man. But if the Will and pleasure of the Emperor, be taken into consideration, it may be conceived, that his grant was to that effect, only so long, as the disability of the Son continued; For if he had given licence to a Father, to substitute to a Son who was then mad, all men would think, that the substitution should be void, if the Son recovered his wits; 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 Son having a Son, who properly ought to be his heir, the substitution ought to be held as disannulled; for it is no difference, whether the Son attain to the ability of making an heir, or begin to have an heir whom the Law appoints. Neither is it probable, That either the Father, or the Emperor, if they had thought on such a case, would have done any thing for the disinheriting of the Grandchild.   

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 heirs; and substituted Seius to him, that should die last of the two. It happened that they died 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 several Contingencies. D. 28. 5. 85.  
LVcius Titius made his will after this manner, I do ordain, that Seius my brother, shall be the heir of my whole estate, and if he shall refuse to be my heir, or, which God forbid, shall die before he take upon him as my heir, or shall have no Children, than my will is, that Stichus and Pamphylus my Bondmen shall be free, and equally my heirs. Seius the brother took upon him to be heir 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 heirs to the estate; because they were substituted, first if he refused, secondly if he died before he took upon him as heir, thirdly, if he had no Children; or suppose they shall not be free, and heirs by virtue of the substitution, Whether some part of the estate, ought not to be conferred upon them? Scaevola answered, That it was clear, that the Testator meant in the first place, that his Brother should be his sole heir; and therefore it cannot be thought, that he would have any man join, or share with him: Besides he provided so, that in case his Brother should take upon him to be his heir, the substitution of Stichus and Pamphylus should not take effect, as likewise it should not, if before he had taken upon him to be heir, he had died leaving children behind him; For it was the prudent care of the Testator, so to provide, that not only his brother, but also his brother's 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 Heir to another's 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 Heir. D. 36. 1. 46.  
SEius Saturninus Admiral of the British Navy, in his Will, made Valerius Maximus Captain of a Sally, his heir in trust, requiring him to convey over the estate unto Seius Oceanus his Son, when he should attain to the age of seaventeen years. Seius Oceanus died before he attained to that age. After his death Mallius Seneca, who was his Uncle, as being next of kin, demanded the estate; Valerius Maximus detained the same, conceiving, that, Seius Oceanus being dead, before he had accomplished 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 Son 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 Heirs, 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 maintain 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 Heir in two Wills taking upon him from the latter, which was void in Law. D. 29. 2. 97.  
Clodius' Clodianus having made a Will legally, and therein appointed Sempronius to be his heir, did afterwards likewise nominate him his heir, in a Will which was not made according to Law. Sempronius, conceiving that the latter will was good, took upon him as heir by virtue 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 copy of a Will, whereof there are more remaining. D. 28. 4. 4.  
ONe who had completely made his will, caused several copies thereof, to be transcribed and to be laid up in the public Office, where Wills are kept: afterwards he took from thence, one of the copies, and canceled it. It was questioned, Whether he had revoked his will? Papinian was of opinion, That his Will being contained, and appearing entirely in another copy, remaining in the Office, it was not revoked or made void. Paulus admits that it might be done with a purpose to die without a Will: but they who were to succeed in that case, and carry away the estate from the written heirs, aught to prove that he had such a purpose.     

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

SECT. I.  
A Real Legacy is that which consists in some certain species or body, as a thing movable, viz. a Bond-servant, a Horse, etc. or immovable, as a House, or ground etc. or which is determined by quantity, viz. by measure, weight, and number, as money, corn, wine, etc.  

1 Of a Bondman Bequeathed, doubtful 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 says, Because it cannot appear, which Weavers were not given to Titia, unless it be known which were bequeathed to Plotia; nor doth it appear, what Bondmen 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 Bondmen borne, and to Plotia all my Bondmen borne, except my Weavers, They which were both Bondmen borne, and Weavers, had been given to neither of them.   

2 Of Error in the designing of Bondmen bequeathed. D. 34. 5. 28.  
SEmpronius had two Bondmen, 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 says, It must be granted, That, that Bondman is due, whom the Testator intended; but if that cannot appear, 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, than the Baker was understood to be bequeathed, as if he had mentioned his profession only, without his name.   

3 Of a flock of Sheep, or the like bequeathed. D. 30. 1. 21. 22.  
IF one bequeath his flock of sheep, or his herd of cattle; which flock, or heard, after the making of the Will, is increased at the Testators death: It is questioned, Whether more be due, then were at the making of the Will? Vlpain says, The Legatory hath right to those, which were added afterwards. Pomponius says, If some sheep or cattle die, and others be supplied in their places, during the life of the Testator, it is still the same flock, or heard; and if the flock or heard, be diminished, so that one sheep, or two only remain, the Legatory hath right thereunto, although it then cannot be called a flock or a heard. As if a house be bequeathed, and is afterwards burnt, the ground whereon it stood is due.   

4 Of a Ground bequeathed, enlarged or diminished. D. 30. 1. 24. § 2.  
LVcius in his Will bequeathed a Ground called Titianum to Maevius, and afterwards he laid, or added a piece of another ground thereunto. Pomponius says the Legatary may demand the whole, especially if the piece of ground which was added, were his own, at the time of making the Will. But if after the Will made, he severed some part of the ground, called Titianum, and added it to another ground, It was doubted, Whether the Legatary had any right to that which was severed? Pomponius saith, That which was severed, and added to another ground, belongs not to him; because it ceased to be part of that ground, which was called Titianum: Because the names of grounds, of houses, and the like, are not affigned by nature, but are imposed by men, who are the owners, at their pleasure.   

5 Of a Ground bequeathed, there being two of the same name, of different values. D. 30. 1. 39 § 6.  
ONe, who had two fields, each of them called the Cornelian field, of different values, bequeathed one of them by the name of the Cornelian field. The Legatary demanding that of the greatest value, and the heir offering the less; Julianus, being consulted, said, That in common understanding the heir ought to be discharged by tendering that of the less value, if the legatary could not prove, that the Testator intended that of the greater.   

6 Of a Third part of Goods bequeathed. D. 30. 1. 26.  
Titius' by his will, bequeathed a third part of his goods to Lucius. It was questioned, Whether the heir were bound, to deliver the third part in kind, or the value of the third part. Sabinus and Cassius were of opinion, That it was sufficient for him to pay the value. Proculus and Nerva affirmed, Tthat a third part of the goods themselves might be demanded. Pomponius said, That the case of the heir, is more favourable, then of the Legatary; so that he may choose, whether he will deliver, part of the goods themselves, or the value of them; which he says is true, in such goods as may be divided without loss; but if they be such as cannot naturally be divided, or being divided, are not useful, he is bound to give the value.   

7 Of Jewels bequeathed, afterwards altered. D. 34. 2. 6.  
SEia having made Publius Maevius her heir, bequeathed to Antonia a Jewel, containing a Pearl, with Emeralds: afterwards she took out of that Jewel the Pearl, and Emeralds, and putting them into another Jewel, added thereunto divers other precious Stones, by which it came to be of a far greater value. It was questioned, Whether the heir might be compelled, to sever the Pearl, and Emeralds, from the rest, and give them to the Legatary? Marcellus answered, That the heir ought not to be compelled thereunto; For how, saith he, could that Legacy hold? when the thing bequeathed, doth not remain in the same kind, but is, in a manner dissolved, and the will of the Testatrix, by the alteration, seems to have been changed.   

8 Of three Hundred Pounds bequeathed, with two Hundred Pounds deposited. D. 34. 5. 13.  
LVcius left in trust with Seius two hundred pounds, afterwards in his Will he bequeathed as followeth, I give to Seius, with the two Hundred pounds which I left with him, three Hundred pounds. It was questioned, whether three Hundred pounds, or five Hundred pounds were due? julianus says, That the sums severally taken, declare some thing certain, but as they are joined in the Legacy, they are something doubtful, but he was of opinion, that both the sums were due, because they were joined together.   

9 Of a Legacy designed, in sums afterwards spent. D. 30. 1. 96.  
AVrelius in his last Will, bequeathed as followeth, I will that Pamphila shall receive out of my estate, three Hundred pounds, that is, So much from my Factor, so much which I have in the Garrison, and so much of ready money, which I have lying by me: he lived many years after the Will was made, and disposed otherwise of those sums of money. It was questioned Whether the heir, who received what was sufficient, out of the estate, were bound to pay the Legacy? julianus was of opinion, That it was most probable, that the Testator did rather signify unto the Heir, how the Legacy might be paid, without any inconvenience to his estate, then limit his bequest conditionally, to those sums; and that therefore the three Hundred pound was due to Pamphila.   

10 Of a Legacy given to the Wife, of as much as to one of the Heirs, who had different sums. D. 32. 1. 29. § 1.  
ONe made his Will, and disposed of his estate, in different proportions to three heirs, and bequeathed to his Wife, as much as to one of his heirs. Quintus Mucius, and Gallus were of opinion, That she ought to have as much, as he that had most; because the sums of those that had less, were comprehended in his that had most. Servius and Ofilius were of opinion, That she ought to have no more, than he that had least; because the heirs were charged to pay the Legacy to her; and the words being directed to them, it was in their power, to pay such a part as they thought fit.   

11 Of a Legacy, of what came to the Testator, out of another man's estate. D. 32. 1. 29. § 2.  
SEmpronius who was one of the heirs of Titius, bequeathed, as followeth, What money came unto my hands, out of the estate of Titius, I will that my heir shall give so much to Seia. It appeared by Sempronius his books, that he had received an hundred pounds, which the heir was ready to pay to Seia, if she would secure him, or save him harmless, if any thing should be recovered from him by others, as belonging to Titius his estate, Labeo was of opinion, That he was bound to pay, what appeared by the books, to have been received out of the estate, and that Seia was not bound to save him harmless. Alfenus Varus was of the contrary opinion; Because, that cannot be said to come to the hands of one as heir, which in respect of that inheritance may be recovered from him: Alfenus says, That Servius was of this opinion.   

12 Of the same thing twice Bequeathed to the same Person. D. 30. 1. 34. § 2.  
SEmpronius in his Will bequeathed to Titius, this white Horse, and to Maevius ten pounds: afterwards in the same Will he again gave to them, the same Legacies. It was questioned, Whether the heir, by delivering the Horse to Titius, and the ten pounds to Maevius, were to be freed? Ulpian answered, That if the same certain thing, as a Horse, or the like, be bequeathed twice, it can be demanded but once; and the heir is discharged, if the Legatary receive, either the thing itself, or the value thereof. But if no certain thing, or body, but some what consisting in quantity, as a sum of money, be so bequeathed, Antoninus Pius the Emperor hath determined, That the same might be paid again, if by proof it can be made appear, that the Testator intended to double the Legacy: and the reason is evident, Because the gift of the same thing, can be made good but once; but the same sum, if it be the Will of the Testator, may be made good oftener. It was thereupon farther questioned, If a hundred pounds (being a sum of money) left in a certain chest, were twice bequeathed, in the same Will, whether it ought to be twice performed? Ulpian answered, That it ought not, because that hundred pound, was a certain thing, and was of the same condition, as if he had bequeathed a certain Horse, or a certain house. And it is then likewise questioned, If something else besides money, as five ounces of gold or silver, be bequeathed twice, in the same will, What is due to the Legatary? It is answered, That it is of the same condition as a sum of money: and it is concluded, that if any thing determined by number, weight, or measure, be bequeathed oftener, If it appear to be the Testators will, it ought oftener to be performed.   

12 Of the same Legacy given in several Wills. D. 31. 1. 66.  
MAevius made Sempronius his Heir, and gave a moiety of a certain ground to Titius conditionally if he married Lucia. Sempronius likewise made his Will, and gave to Titius, a moiety of the same ground, upon the same condition. It was questioned, What was due, the condition being performed? Julianus says, It may be conceived, That the same moiety was intended in both Wills; but it is not credible, that Sempronius would have that become due by his Will, which was due before (by the Will of Maevius). And although, it may be objected, That by the constitution of the Emperor, it is declared, that if the same thing be twice given it is sufficient, if it be once performed; It may be answered, That, that constitution speaks of that, which is twice given in the same will, not in several Wills: Again, If a man bequeathed what he owes, it is reputed no Legacy in Law, unless there be something more in the Legacy, than was in the debt; and if the same thing only be given, upon the same condition, nothing at all accrues thereby to the Legatary.   

13 Of Legacies given contrary to a former Declaration in the Will. D. 32. 1. 22.  
ONe in the beginning of his Will, declared, That if therein he bequeathed any thing twice, to the same man, it should be but once performed. Afterwards, in the same Will, he wittingly gave to the same man several Legacies. It was questioned, Whether they were due? Hermogenianus answered, That if he had said, he repented of the former Declaration, and thereupon willed, that the same man should have several Legacies, they ought to be performed; Because the latter declaration of his Will, is of more force than the former, and no man can in his Will, make a Law to himself, but that he may recede from the same.    

SECT. II. Of Legacies consisting in right.  
A Legacy consisting in Right, is that which hath its existence from Law; as in respect of Persons, Freedom, and Power to choose etc. Or in respect of things; as the use, and profits of something, etc. Or in respect of Obligations and duties; as Annuities, Debts, etc.  

1 Of Freedom bequeathed to two Bondmen, if they remained with the Testator at his death. D. 32. 1. 29. § 4.  
LVcius, who had two Bondmen, called Stichus and Dama, in his Will provided thus, If Stichus and Dama at the time of my death shall be my Bondmen, Then I will, that Stichus and Dama shall be free men, and have a certain ground between them. Labeo was of opinion, That if either of them, in his life time, were made free, or sold, neither of them should be free, nor have this Legacy. But Tubero affirmed, That he who remained his Bondman, at the time of his death should be free, and have the Legacy: and Javolenus said, that the opinion of Tubero, was the more consonant to the Testators meaning.   

2 Of the Choice of two things of several names given, there being two of one name, of several values. D. 34. 5. 1.  
SEmpronius bequeathed to Titius, his ground called Maevianum (because it was bought of Maevius) or his ground called Seianum (which he bought of Sejanus.) The ground which he bought of Maevius being of large extent, was divided into two parcels, whereof one was called Maevianum the great, and the other Maevianum the less. It was questioned Whether Titius, having power to choose which he pleased, of that which was called Maevianum, or Seianum, might likewise choose as he pleased, either that which was called Maevianum the great, or that which was called Maevianum the less? Papinian answered, That it was to be considered, what proportion those two grounds held, with that which was called Seianum; and if the yearly value of the greater Maevianum, did but equal the rent of that which was called Seianum, he might make choice of the greater; but if that did far exceed, and the value of Maevianum the lesse were equivalent, the lesser only was left unto his choice.   

3 Of the Choice of a Legacy, not to be varied. D. 33. 5. 20.  
Titius' in his Will appointed, that Lucius should make choice of some part of the furniture of his Dineing room, as he should think fit. Lucius taking a view of all the furniture, signified that he then made choice of such pieces: Afterwards, before he had received the things, of which he had made choice, he declared, that he would have some other things. It was questioned, Whether he had power to vary, having made his choice? Labeo answered, That he had not power to vary; because all the power of his election was determined in the first choice, the property of the things chosen being invested in him, as soon as he had signified his assent.   

4 Of a Legacy of Bonds, to be understood, as when the Will was made. D. 32. 1. 34. § 1.  
MAevius made his two sons Titius and Gaius his heirs, and by way of special Legacy, bequeathed to Titius twenty of his Bonds, which he should make choice of. Afterwards he suffered Titius, to manage his business, for the space of ten years, before Maevius his death; in which time Titius, out of an hundred old debts of small sums, contracted new debts by bond, for greater sums, so that almost the whole estate, was reduced into twenty bonds. It was questioned Whether he might make choice of those twenty bonds? Scaevola answered, He ought to make choice of no other, but such, as the Testator had, at the time of making his will.   

5 Of a Debt remitted by way of Legacy. D. 34. 3. 28.  
Titius' in his Will, declared, whatsoever Seius owed unto him, should be remitted, by his heir. It was questioned, Whether that only were remitted, which was due to the Testator, at the time of making the Will, or that also, which aftewards grew due for the use, and interest of the money he owed? Scaevola answered, That he was of opinion, that whatsoever was due by occasion of that debt or obligation was remitted.   

6 Of an Annual payment to a City. D. 33. 1. 6.  
MAevius by his last Will, gave an Annual sum of money, to the City where he dwelled; to maintain yearly some public exercises, which he would have ordered by his heirs: his heirs dying, their successors refusing to pay the annual sum, because the heirs were dead, who were appointed to order the public exercises; It was thereupon questioned, Whether, in regard he had mentioned his heirs to that purpose, it was his meaning the Legacy should be temporary during their lives, or perpetual to continue after their deaths? Modestinus answered, The Legacy was perpetual, to be paid unto the City.   

7 Of an yearly Legacy to the Officers of a Church. D. 33. 1. 20.  
ATtia, who had procured a fair, to be kept yearly near her house, in a ground belonging to it, charged her Heirs, after her death to pay out of the rents of that house, and the profits arising by the fair, ten shillings every fair day, to the Priests, Sacrists, and Officers of a certain Church. It was questioned, Whether the Legacy were due only to the Priests, Sacrists, and Officers, who were at that time, when the Will was made, during their lives, or to be continued also, to their Successors? Scaevola answered, That the Officers names were used, but the Legacy was to be understood intended to the Church; and that it was to be paid, as long as the fair continued.   

8 Of an yearly Legacy given to uses afterwards disallowed. D. 33. 2. 16.  
LYsimachus, to preserve his Memory with posterity, gave unto the City where he dwelled, ten pounds yearly, to be raised out of the rents of certain houses, for the setting forth of some public shows, which afterwards were prohibited in that place. It was questioned, What should become of that Legacy? Modestinus answered, That whereas the use, for which the Legacy was given, could not be observed, It was not fit that the rents so bequeathed, should accrue unto the heirs of him who gave the same; and therefore the Magistrates of the City, together with the heirs, should consider and agree upon some other use, whereunto that Legacy might be converted, so that the Testators memory thereby might be preserved.   

9 Of a Legacy given to uses, no sum being expressed. D. 31. 1. 30.  
ONe in his last will bequeathed as followeth, I give to the Commonalty of Gravistan, for repairing the high way, which is in their Territory, so far as to the Highway leading to Aurelia. It was questioned, Whether the Legacy were good, no sum being named, or set down? Juventius Celsus answered, That the words were something imperfect, because no sum was set down; yet it might be gathered, that so much was intended, as was sufficient to do the work, If the Testators mind be not understood otherwise, in respect of the smallness of his estate; in which case the Judge is to determine, what is fit to be done.   

10 Of something in one ground, being given to be employed in another. D. 33. 1. 12.  
GAius Seius, having two Meadows one in a Village called Pontia, & the other in a Hamlet called Lucia, gave that in Pontia to Maevia, and that in Lucia to Seia: and afterwards he declared, That it was his will, That a quantity of Reed, and a quantity of Sallowes, should be received yearly out of the Meadow in Pontia, to be bestowed, and employed in the meadow of Lucia. Maevia, who had the meadows in Pontia, for some years allowed the Reed, and the Sallowes to Seia, who had the meadow in Lucia: afterwards Seia being dead, It was questioned, Whether the Legacy ought any longer to be performed? Paulus answered, That there was no service created by the Will, neither personal for the party to pay during her life, nor real to be paid out of the ground, but only an yearly Legacy, which determined with the life of the party to whom it was given.   

11 Of a Desire that a thing bequeathed, be not alienated, to a Stranger. D. 32. 1. 38. § 4.  
IVlius Agrippa, a Centurion of the first rank, desired or left order in his Will, That neither his house, nor his Garden, in the Suburbs, should be sold, or alienated by his heir, which was his own daughter, who left her daughter, and the Testators Grandchild her heir, which dying, left the estate by her Will to a stranger. It was questioned, Whether the stranger should inherit the same, or rather Julia Agrippa, unto whom Julius Agrippa, the first Testator was Uncle? Scaevola answered, That the provision in the Will being no more, than a bare precept, or desire, he saw nothing, but that a stranger might inherit the house and garden.    

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

1 Of a Legacy left in Trust, Paid before the time appointed. D. 33. 1. 15.  
Titius' having put a hundred pounds in trust, into the hands of Gaius, in his Will appointed, that after ten years, Gaius should pay the same to Publius, who within few days after demanded the money, and receiving it, wasted it foolishly, and then died. It was questioned, Whether the heir of Publius, might not sue Gaius for the same, as being not paid, according to the will of the Testator? Javolenus answered, If the Legacy were ordered to be paid after ten years, out of respect to the Legatary, as being not fit to receive, or unlikely to keep the same, and the trusties paying it sooner, were occasion that it was wasted, he is by no means to be excused: but if the payment were deferred in favour of the party trusted, that in the mean time, he might make use thereof, there is no cause why he should be sued, he having done more for the Legatary, than he was bound to do.   

2 Of Persons, to whom a trust was intended, to be respected, in order as they are named. D. 31. 1. 77. § 32.  
MAevia by way of Trust, requested her Husband, that if any of his Children survived him, he would leave certain grounds, which had been her own, unto them; and in case no Children should survive him, to his or her kindred, or to some of their freed men. It was questioned, Whether, the Husband's Children failing, he might make choice to whom amongst his, or her Kindred, or Freedmen, he would bestow these grounds? Papinian answered, That it did not belong to him, to make choice, 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 heir, and gave a ground, worth twenty pounds yearly, to Maevius, and willed that he should pay to Sempronius yearly five pounds, from the time of his, the Testators death, until 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 heirs of Sempronius? Scaevola answered, That it ought to be paid unto them, unless Maevius could make it appear, 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 void if died before. D. 36. 2. 22.  
A Legacy was given to Titius, when he should be of the age of fourteen years; he died before that age; It was questioned, whether the Legacy were due unto his heirs, When that time was come? Pomponius answered, That no right passed unto the heirs, by his death, because the Legacy depended not only upon a time, but it was uncertain, whether that time should happen; whereby the Legacy became conditional, as if he had said, If he shall live to the age of fourteen; 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 attain, 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 employed.   

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 soon 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 heir might hold his hands, until 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, transferred to another. D. 34. 4. 31. § 4.  
CAecilia in her last Will, gave a portion to Priscillianus her son; and afterwards, understanding that he was extremely sick, and not likely to outlive her, declared, That in consideration thereof, she thought fit, that what she had given unto her son Priscillianus, should be divided betwixt her Husband Januarius, and her son Marcianus: she being dead, and her Will published, Priscillianus was still alive, yet died, not long after. It was questioned, Whether the portion were due, to the Father in Law, and the Brother, or to the heir of Priscillianus? Scaevola answered, That he was of opinion, that if he died of the same sickness, or infirmity, it was due to them: Whence it is gathered, that if he had recovered, and died of another sickness, it had been due unto the heir of the son.   

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. Ulpian says, If it doth not appear whose Legacy he would make void, both remain good; as if one having given a Legacy to Titius, when there be two of that name, if it doth not appear, whom he intended, it is due to neither.     

TITLE VII. Of Performance and payment, and of Real Performance.  
Performance and Payment, are the means whereby one is discharged, or freed from what he was obliged or bound unto; and is either Real, Legal, or Reputed.  

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

1 Of Performance of something which is uncertain. 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; says Javolenus, That is for such a ground as he who made the promise shall think fit to give; and it remains in his discretion which he will give, until 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 value of them shall be restored. Ulpian says, If it be added, Which the Woman shall choose; it shall be in her power to make choice, either of the goods or of the value; or if it be said, As the Husband shall like; it shall be at his choice which he will restore: but if nothing be added concerning the choice, yet it shall be in the Husband's power to restore the one or the other: For when one thing or another is promised, it is in the debtor's discretion which he will make good; but if the things or goods be not extant, than the value, without all question, aught 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 suit 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, aught 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 repayment 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 several places: And it was likewise resolved, That if any place were agreed on, the value of that place was due; but if no place were assigned, the value ought to be paid, which was currant in the place where the Wines were demanded.   

4 Of one who promised to give a Bond-servant in one Place, or to pay Ten pounds in another. D. 13. 4. 2. § 2. & 3.  
IF a man be bound to pay, or perform something, at a certain place; if he be sued for the same elsewhere, the Judge had power to take into consideration, and give allowance for so much as it concerned the Debtor, rather to have performed, or paid it where it was due, then where it was demanded: Whereupon it is questioned, If one hath promised to give a certain Bondman at Capua, or to pay ten pounds at Ephesus, Whether he, to whom the promise was made, may not sue in one of those places, without respect to the other, or to any advantage, which the Debtor might have in making his choice? Scaevola answered, That some things which are tacitly reserved in promises, are not always in the Debtors power: What he will perform in such a case is left to his discretion, but whether he will perform any thing at all, is not: and therefore to the purpose, He who promised, or undertook to do or perform something at Capua, or at Ephesus, if it shall be left to his discretion, where it shall be required of him, it may happen, that he cannot be sued in any place; For as often as it shall be required, in one place, he may refer himself to another, whereby it may come to pass, that it shall be in his power, whether he will perform any thing at all: and therefore he give a general rule in such cases, That the Creditor may make choice, where he will demand, and the Debtor where he will perform or pay, provided it be done, before any demand made; and therefore when the performance of several things, is referred to several places, of necessity it follows, that the Creditor having the election of the place, by consequence hath the election of the thing, in respect of the place. Otherwise, if you allow the choice to the Debtor, you deprive the Creditor of any action or remedy.   

5 Of the Effect or Construction of Payment, when one pays a sum due in several respects. D. 46. 3. 1. 2. 4.  
LVcius Titius owed to Gaius Seius several sums amounting to ten pounds, in several respects, and of different consequences. He paid ten pounds, which was accepted, but not for any particular debt. It was questioned, To what debt it might be accounted? Ulpian says, It was in the discretion of the debtor, to determine for what debt he paid it, & it shall be understood to be paid as he determined; beit is in his will to declare the condition of the payment, but if he do not declare, or determine for what debt he paid it, it is in the discretion of the Creditor, to put it to account of what debt he pleaseth, so that he put it to the account of such a debt, as, if it were his own case, he would have first paid; Because, it is most agreeable to equity, that the Creditor should so deal with the debtor, as he would have been dealt withal himself: And this aught to be done, when he receiveth the money, so that it may be free for the Debtor, not to pay, as to the Creditor not to receive what is tendered, if either of them intend the payment in another respect: But if at the time of payment nothing be declared on either side, it shall be understood to be paid, for that debt, the consequence whereof is most prejudicial to the Debtor; as, for a man's own debt, rather than for that, for which he is bound, as a surety for another man; for that which is under a penalty, rather than for that which is due simply: but if the debts be of equal consequence, it shall be understood to satisfy that debt which was first contracted.    

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

1 Of Money due, Tendered within a short time after it was agreed to be paid. D. 45. 1. 135. § 2.  
SEia at the request of Lucius Titius bought certain Gardens convenient for him, and covenanted with him, that when she should receive the moneys, which she had laid out, with the interest for the same, she should assign unto him all her right in those Gardens; And, immediately after, it was agreed betwixt them, That before the first of April following, Lucius Titius should pay unto her the whole sum, and receive the Gardens. Before the first of April Lucius Titius tendered and paid unto her a good part of the money laid out, and the interest, and within a short time after that day, he offered himself ready to pay the rest, which she refused to receive, and still refuseth. It was questioned, Whether he, having in that manner offered himself ready to make payment of what was agreed upon, might sue her to assign over unto him the Gardens? Scaevola answered, That he might, if he offered himself ready to make payment, in a short time after the day appointed, in case she had received no prejudice by his failing at that time; the consideration whereof belonged to the cognizance, and determination of the Judge.   

2 Of Delay made after a tender of Money which was due. D. 19 1. 51. § 1.  
ONe bought a ground upon condition, That he paid his money for it, upon the Calends of July; and on that day, he who sold the Ground, was some way the cause that the money was not paid. Afterwards the buyer might have paid his money, but neglected it. It was questioned, Whether the seller might insist upon the breach of the condition? Labeo said he might, Because in the bargain of sale it was intended, that whensoever it should happen by the desault of the buyer, that the money was not paid, he should incur the penalty of the condition; and Javolenus is of opinion, that it is true, unless he who sold the ground used some fraud or deceit.   

3 Of Money due, tendered to the disadvantage of the Creditor. D. 45. 1. 122.  
ONe, who had borrowed money at Rome, to be paid in a Province far remote, after three months, and had undertaken the payment in that place, within a few days after at Rome repaired to the Creditor, and before witness signified, that he was then, and there ready to pay the money, deducting▪ what he had formerly given to the Creditor, in consideration of the use of his money for such a time. It was questioned, in regard he had tendered the entire sum, which he was obliged to pay, Whether the Creditor might not, at the end of the three months, demand the money, where it was undertaken to be paid? Scaevola answered, It was in the power of the Creditor, at the time appointed to demand the money, where he had covenanted to have it paid.   

4 Of Debts remitted in case the Creditor should Die. D. 39 6. 18. § 2.  
TItias being sick, and having in her custody, bonds for debts, due unto her from Septicius and Maevius, with an intention to free them from those debts, delivered the bonds to Ageria, & required her, in case she herself should die, to deliver them up to Septicius and Maevius; but in case she should recover, to restore them to her again: Titia dying, Ageria as she was desired, delivered up the bonds to Septicius and Mevius. Laelia daughter of Titia, and her heir, questioned Ageria for those bonds, and threatened to sue Maevius and Septicius for their debts; but Julianus advised them, that if she sued, they might plead in Bar the act of Titia, and except against her unjust vexation.   

5 Of Debts discharged by way of Legacy. D. 34. 3. 28. § 1.  
Titius' having made his will, therein bequeathed to some debtors, the release, or discharge of what they owed. Afterwards, breaking up that Will, and reviewing it, he made another, in which he repeats the former bequest, in these words, And to whomsoever I have bequeathed any thing in that Will which I broke open, I will have it stand good, as all things else which were written therein. It was questioned, Whether the estate being settled according to the latter will, the debtors who were freed, in the former Will, might not prevail to be discharged from certain sums, for which they grew indebted after the former Will was made; and, if the heirs should demand those sums, Whether they might not except against their unjust dealing? Scaevola answered, That they were not discharged from those sums.   

6 Of a general Discharge by way of Legacy. D. 34. 3. 31. § 4.  
ONe in his will wrote as followeth, Moreover I bequeath, and will have granted to Gaius Seius, who hath most amply deserved from me, that nothing be demanded of him, or his heirs in any respect, whether it be due by writings, or upon account, or received as loan, or undertaken by way of suretyship. It was questioned, Whether that only were bequeathed and remitted, which was due at the time when the Will was made, or whether that also were not remitted, which might afterwards accrue to the advancement of the debts by way of use or interest? Scaevola answered, That, as the case is proposed, It seemed that it was his intention by that Legacy to acquit and discharge him of whatsoever he owed.   

7 Of a Personal Discharge declared in a Will. D. 34. 3. 20.  
ONe in his Will declared as followeth, My Will is that Aurelius Sempronius my brother be not sued, in respect of any debt which he oweth to me; and that nothing be demanded of him, either for the principal or interest, as long as he lives: and farther I acquit the House and Possessions called Caprelata engaged unto me. Modestinus answered, That if the Debtor himself were sued, he had a just Plea by way of exception to defend himself; But the same would not hold in the person of his heir, if after his death he should be sued for the same things.    

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

1 Of Monies received to another man's use, and Lost without employment. D. 3. 5. 13.  
PAulus in his own person puts a case thus, A debtor of mine who owed me fifty pounds died; I adventured on the Administration of his estate, and laid out upon it ten pounds. Afterwards having put to sale some of his goods, I raised a hundred pounds, and put it up safe in a chest; This money without any fault of mine was lost: The heir of the Debtor appearing, and taking upon him the rest of the estate, a question grew, Whether I might demand the fifty pounds, which the deceased owed me, and the ten pounds which I laid out? Julianus answered, The resolution of the question, depends upon this consideration, Whether I were not in fault, in not employing the money, as in paying myself, and other Creditors; For in that case I ought, not only to lose my fifty pounds, but also to make good the rest, unto the heir, only deducting the ten pounds, which I laid out. But if there were just cause why I did not dispose of the money, that then I ought to recover my debt of fifty pounds, and also the ten pounds which I laid out upon the estate.   

2 Of Goods lost by one who was fairly possessed of the estate. D. 5. 3. 18.  
ONe, who was in possession of an Estate, or Inheritance, selling goods, delivered the money to a Scrivener, in whose hands it was lost. It was questioned, Whether he were answerable for it, having no part thereof? Labeo was of opinion that he was answerable; Because at his peril he trusted the Scrivener. But Octavenus said, There could be no more required of him, then to pass over to the true heir, his right of Action. Ulpian said he liked Labeo his opinion; in case that he, who delivered it, were privy that he possessed it unjustly: but if he were fairly, and lawfully possessed thereof, Octaveous his judgement was rather to be followed.   

3 Of things perishing in one man's possession, which might have perished in the possession of the true owner. D. 5. 3. 40.  
PAulus says, That whereas the Emperor Hadrian ordained, That if any one in possession of an Inheritance were sued, that he should make good, what was extant, at the time when the suit was commenced; It may fall out sometimes to be very hard, For after a suit is commenced, it may happen, that Bondservants, Beasts, or cattle, may die naturally. It is true, that Proculus holds it to be just, when particular things are sued for; But Cassius holds the contrary, and Proculus his opinion is right, if it be held of an unlawful possessor, and Cassius his is so also, touching one who is lawfully possessed. For says Paulus such a possessor, ought not to make good, things which perish naturally, neither ought he to be enforced, for fear of such danger, by declining a suit, unadvisedly to relinquish his right.   

4 Of the hazard of Monies due, lost after a tender made. D. 46. 3. 72. & 102.  
IF one, who owed ten pounds, made tender thereof to the Creditor, and he without any just cause refused to receive it; and afterwards the Debtor, without any fault of his, lost the money; Marcellus said, If he be sued for the same, he hath a just exception, although, it being afterwards demanded, he paid it not; Because it is not Equity that he should stand bound, the money being lost, who had been freed, if the Creditor would have received it; wherefore, that aught to be held as paid, which the Creditor, out of his own fault, neglected to receive.   

5 Of the like Case. D. 46. 3. 39  
ONe, being ready to pay money to his Creditor, by his appointment, left it sealed up in bags, with a Goldsmith, until it might be tried. Mela says, The hazard thereof belongs unto the Creditor, which Africanus agrees to be true; yet so that it be considered, whether the Debtor were any way in fault, that it was not presently tried, For then the case were alike, as if one was ready to pay money, when the Creditor for some reason could not receive it: In which case it is not always at the hazard of the Creditor; for, What if it were tendered at an unseasonable time, or in an unfit place? And agreeable to this he says, it is, that if the buyer and seller of a commodity distrust each other, and leave in trust with a third person, the buyer his money, and the seller his commodity, the loss of the money shall be at the hazard of the buyer, if he made choice of the person, with whom it was left, and so shall the commodity also; because the bargain of sale was completely made.   

6 Of the hazard of Loss, where one thing, or another is promised. D. 18. 1. 34. § 6.  
IF one buy a Bond-servant in this manner, It is agreed, that Stichus or Pamphilus is sold unto me. Paulus says, it is in the power of the Seller, to make good which he pleaseth; as when one covenants for one thing of two in the same manner: but one of the two being dead, that which remains aught to be given; and therefore the hazard of the first belongs unto the seller, of the latter to the buyer. But in case both die together, the price of one shall be due to the seller; for one of the two lived some while at the hazard of the buyer: the same is to be said, although it were at the buyers discretion, to take which he pleased, if that only were left to his discretion, to take as bought, whether of the two he pleased, and not so that he might choose, whether either of them should be bought or not.   

7 Of a thing undertaken to be performed, which afterwards ceases to be in commerce. D. 45. 1. 83. § 5.  
WHen one promised, or undertook to give something which was of common use, or Stichus when he was a Bond-servant, he is discharged of his obligation, if, without any act of his, that thing becomes dedicated to holy uses, or that bondman becomes a freeman; yea Paulus affirms farther, That if afterwards by lawful means, the thing consecrated became to be in commerce, or of common use, or the Bondman from a Freeman became again to be a Bondman, the former obligation shall not be revived; because in this case it doth not hold, that the cause ceasing why it could not be given, it may now be given. For although he, who undertook to give a ship being the owner thereof, if he take it in pieces, and out of the same timber, and planks, build it again, begins to be obliged as before; because it is now the same ship. And although to the same purpose, that concurres which Pedius writes, viz. If I covenant to have a hundred vessels of wine, to be delivered unto me out of a certain ground, I have liberty to expect, until that ground may yield so much; so that if the ground yielding so much, without the fault of him who undertook the performance thereof, it perisheth, I may expect a gain until it yield sufficient, that what was undertaken may be performed: and that in these cases according to the alterations of the things, the obligation may cease, and be renewed again. But the matters in the case proposed, as of a thing becoming consecrated, and of a Bond-servant being made free, or of a different condition; Insomuch that to make promise of a consecrated place, when it shall prove to be profane, or of a Freeman when he shall become a slave, is not admitted by Law; because in their present condition they are not liable to any such obligation, and those things only are subject thereunto, which in their own nature may be performed at the present: and it stands not with civil, nor natural respect, to attend the fall, or misfortune of a Freeman. For we properly trade and traffic in those things, which are in common use, and may instantly be reduced under our power. As touching Wines, when they are undertaken to be given, no particular thing, which may fail, but something in general, which may at one time or other be performed, is undertaken. And for what is instanced in a ship, which is a particular thing; it is to be understood, That if it be taken in pieces, with a purpose, that out of the materials thereof, some other thing should be framed, although the purpose being changed, it be rebuilt again, yet the first ship ceases to be, and that which is now built is another ship: but if the boards and planks of a ship, be taken a sunder, with an intention to repair the ship, the ship ceases not to be what it was; and the boards and planks being put together again, it becomes the same ship; as when the timber and materials of a house are taken down, with an intention to be set up again, they still belong to the house; unless they be taken down to the very floor, and then set up again, for in that case it may be reputed another house.     

PART II. TITLE I. Of Common and Ordinary Judicature.  
judicature by way of Common and Ordinary proceedings is, when Causes of Common Right, are tried, and determined by ordinary judges, in a Legal and usual way; wherein are considerable, 1. The Persons, 2. The Proofs, 3. The Sentences.  

SECT. I. Concerning the Persons, as Judges, Parties, Counsels, etc.  

1 Of a Minor proceeding as a Judge. D. 42. 1. 37.  
A Question was made, Whether a sentence was good, which was given by one, as a Judge, who was under the age of twenty five years? And it seemed to some, That it much consisted with Equity, that the sentence should be maintained, unless he were under the age of eighteen years. Ulpian said, That if in such minority, he sustained the place of a Magistrate, his proceedings ought not to be disliked: Or if he were chosen a Judge, by consent of those, who knew he was not of perfect age, It may be well maintained, that the sentence was good; and therefore if a Minor, being Praetor or Consul, pronounce a sentence, it shall be of force; For the Prince who conferred the Magistracy on him, hath enabled him thereunto.   

2 Of Judges having Jurisdiction, in Causes of a certain Value, or Sum. D. 2. 1. 11.  
SOmetimes Jurisdiction, or Conusance, is granted and limited to causes of a certain quantity, as under the value of five pounds. It is questioned, If one man at the same time, commence divers suits, before the same Judge, so limited, which being taken singly, are within his Conusance, but taken altogether are beyond it; Whether they may be determined by the same Judge? Sabinus, Cassius, and Proculus, were of opinion, That they might: and their opinion was confirmed, by the resolution of Antoninus the Emperor. It was also questioned, If two persons have causes of Suit one against another, one for a greater, the other for a lesser sum; Whether he that sues before a superior Judge, in respect of the greater, may be reconvented before an inferior Judge, in respect of the cause of a lesser sum? Ulpian said, That both the causes were to be determined before the Judge that hath Comisance of the greater sum; That it be not in the power of a contentious adversary, to draw another from his proper Judge. Thirdly, it was questioned, If several persons, claim distinct interests in the same thing, as in a Suit to divide a common estate, or to set out parts, in a common ground; Whether to the point of Jurisdiction, the particular interests shall be considered singly, or the whole business? Ofilius, and Proculus were of opinion, That the particular interests were considerable; because every one sues for his own part. But Cassius, and Pegasus held, that the whole business was to be respected, because the whole is brought into question: and it may fall out, that the whole may be adjudged to one particular. And Ulpian says, That this opinion is more probable.   

3 Of alteration of Judges, appointed to hear the same cause. D. 5. 1. 76.  
THe case was put, Whether the alteration of the persons, do not alter, the Judicature, or Court; As for example, a Commission was granted to five persons, to hear and determine a cause; and the party sued, bound himself with sureties, to perform the judgement of the Court: the cause depending, some of those Judges died, or were discharged, and others were appointed in their rooms; Whether he stands bound to perform the sentence, given by the Judges newly appointed, and the rest? Alfenus answered, that the same judicature continued, not only if one, or two were changed but if the whole number of Judges, at several times, were altered; and says, it holds not only in this case, That the thing continues the same, although the parts be changed, but in many other bodies; For it is held the same Legion, or Regiment of Soldiers, although many of the first be gone, and others recruited in their rooms: and the people of a Country, are held the same, which it was an hundred years since, although none of that time remain: And it is the same ship still in reputation, although it hath been so often repaired, that there is not a plank or a board left, into the place of which, there hath not been some new piece added: Nay, says he, If any should suppose, That by the alteration of the parts, the whole were not the same, it would follow by the same reason, That we ourselves should not be the same men we were some few years since; Because as the Philosophers affirm, The Atoms or invisible parts of which we are composed, do daily waste, and spend, and others from abroad accrue in their steads; and thereupon concludes, that were the same species, or form continues, the same thing or body still remains.   

4 Of Departure out of a Jurisdiction, after a Suit commenced. D. 2. 1. 19  
A young Woman living at Bononia, was sued before the Judge of that place, and sentence there was given against her. Afterwards she was married to a Husband, who lived at Mutina out of that jurisdiction; It was questioned, Whether the Judge of Bononia, could put the sentence in execution? Ulpian answered, That he might; because the sentence was given before the Marriage: Yea, he says farther, That he is of opinion, that he might do as much, although she had been married at any time, after the cause began to depend before him.    

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

1 Of Proofs lying on the Desendants part. D. 22. 3. 12.  
Titius' gave fifty pounds to Gaius in his Will; afterwards he gave the same sum to him in a Codicill. It is considerable, whether he intended to double the Legacy given in the Will, or only intended but one fifty pounds, and mentioned it in his Codicill, not remembering, that he had put it down before in his Will. It was questioned, On whose part it lay to prove the intention? Celsus said, At the first sight, it seemed reasonable, that the Legatary suing, should prove his intention to double the Legacy. But in truth, the proof sometimes lies on the defendants part; for if one sue another for a debt, and he answers that he hath paid it, he ought to prove the payment. And in this case, whereas the Legatary produceth two writings, and the heir affirms, that what is contained in the latter, is of no effect, it concerns him to prove the same.   

2 Of proving Money paid, to be Due, or not Due. D. 22. 3. 25.  
ONe sued to recover money, as paid unduly to another man, and the question grew, on whom it rested to prove, the money duly, or unduly paid? Paulus said, The business may be thus moderated, If he who is charged to have received money not due unto him, denies the receipt, and he who charged him proves the receipt, without distinction, he who denied the receipt, if he will be farther heard, aught to prove, that what he received was due; For it were very absurd, That he who denied the receipt of the money, after that is proved, should require his adversary to prove that it was not due. But if at the first he acknowledge, that he received such money, the presumption makes for him, that it was due; Because it is not to be conceived that any man, especially a provident, and discreet person, would throw away his money, or be careless what became of it: and therefore he who affirms, that the money paid was not due, aught to prove, that either by error, and mistake, or else by fraud, or some probable occasion, he was moved to pay the same.   

3 Of Proof to be made by him who allegeth, what is contrary to common reputation. D. 22. 3. 15.  
GAius Seius having Brothers, by a Codicill gave them Legacies, and Maevius his reputed son, after his death succeeded him as heir, and paid the Legacies to the Brothers, who received them, and gave acquittances for the same. Afterwards, the Brothers, pretending that they understood, he was not son to Gaius Seius, questioned him for the estate, It was somewhat doubted, Whether they, having under their hands, acknowledged the Legacies paid by him, as son to Gaius Seius; aught to be heard against him? Modestinus answered, That his condition, as son of Gaius Seius, was not confirmed by the acquittances, given for the receipt of the Legacies, if the contrary could be proved: But Maevius being reputed the son of Gaius Seius, to prove the contrary, lay on the Brother's part.   

4 Of moneys mentioned to be due in a Letter. D. 16. 3. 26. § 2.  
Titius' wrote to Sempronius, That he had in his keeping twenty pound; belonging to him, out of which Sempronius owed him five, and five more were due to Titius, upon Sempronius his Father's account: It was questioned, Whether this writing amounted to an obligation? Paulus answered, That the writing, being declaratory only, made no contract; but might be of use to prove the money left in trust in the hands of Titius; but whether it were of any force to prove the sums due unto himself, he says the Judge, out of other circumstances, may determine.   

5 Of Proof contrary to a Writing Canceled. D. 22. 3. 24.  
A Writing or Bond, wherein was contained, that one was indebted to another, was found canceled. 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 proofs, could make it appear, 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 work in his ground, supposed to be of late erection. The issue proved, whether within memory, or beyond? It was questioned, what should serve for proof? Labeo was of opinion, That it was sufficient, if some could say, that they remembered 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 year, 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 Proof by one Witness. D. 33. 4. 14.  
THeopompus, having a son called Caius, and two Daughters, the elder Attia, who was bestowed in Marriage, and the younger Crispina, made all three his heirs 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 far I intent to make her equal to her sister Attia. Crispina being Married according to her Father's will, her Husband demanded as much, for her portion, as was given with her sister Attia, when she was married: Gaius, and Attia refusing, the Husband produced Pollianus before the Judge, who being sworn, deposed, that it was the Father's 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 witness? Scaevola answered, That the judge was to consider, that the Testator in his Will, had referred himself to the Testimony of the witness; and therefore out of the estate common to the three heirs, 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 Freedom, or for a Will, they shall carry it who are for freedom, 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 sums, Julianus says, That the sentence ought to hold, which is for the lesser sum.   

2 Of divers Persons condemned in the same Sum. D. 42 1. 38.  
FIve Persons, were condemned in the same summen, 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 Equal 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 she was overthrown, and sat down by the sentence; Afterwards Turbo commenced a suit against Rufus, and was likewise cast therein; but he appealed before the Judges of appeal. 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 alleged for Rufus, that it was a rule, that if the third Creditor satisfy the money owing to the first, he shall succeed in his room, 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 preferred 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 than 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 avail, or prejudice any else, who was not party to the suit; and therefore, without any impeachment of the sentence given against the first, the right of the second Creditor remains entire.     

TITLE II. Of Arbitrement.  
Arbitrement is, when causes of difference are referred to private Persons, by consent of the parties, or by appointment of the Ordinary judge, to be heard and determined, without Legal, and formal Proceedings, in which are considerable, 1. Touching the power of Arbitrators in general. 2. Concerning differences betwixt Borderers, and Partners, and 3. betwixt Coheyres, etc.  

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

1 Of a Reference made, with Power to assume an Umpire. 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: Ulpian 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 descent therein.   

2 Of all differences referred, 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 down in writing, some causes of difference on his part, and so the Arbitrator could determine nothing concerning those. It was questioned, whether he were so concluded, that he might not afterwards seek remedy, for those matters? Scaevola answered, He might, and not incur the penalty of the bond, to observe the award; But if those matters were purposely omitted, for his own advantage, he may afterwards sue, but he must pay the penalty.   

3 Of a Com-promise of all matters, to be determined at the same time. D. 4. 8. 25.  
I It was agreed in a Com-promise, or reference, that an Arbitrator should, within a month, on the same day, pronounce of all differences referred unto him, and that if he saw cause, he might prorogue the business to a longer time. The Arbitrator, within the time, delivered his judgement of some matters, and left others undetermined, prorogueing the business to a longer day. It was questioned, whether the parties were bound to stand to his award? Labeo answered, That they were not bound, only the prorogation was good: Ulpian approves his opinion, because it is not in the Arbitrators power, to change, or lessen, what was agreed upon in the reference, and therefore he ought to have examined all the differences, and at once, to have given judgement concerning all.   

4 Of a third Arbitrator absent. D. 4. 8. 27. § 3.  
IF three be chosen Arbitrators, the award of two of them is effectual, if the third be present, otherwise not, says Celsus, because the reference is to more than two, and the third person, if he had been present, might happily have moved the other two, to have been of his opinion; But put the case, the third man absent, was of the same opinion with the other two? Pomponius says, the award is not good without him, because they ought all of them severally, to deliver their judgements.   

5 Of different Judgements, given by Arbitrators. D. 4. 8. 27. § 3.  
IF there be divers Arbitrators, and they give different judgements, as if of four two absolve, and two condemn, the award is of no force. Hereupon Julianus puts a question, If of three Arbitrators one condemn a party in fifteen pounds, another in ten, a third in five, in regard they all differ one from another, What effect shall the award take? He himself resolves it, saying, That the condemnation in five pounds, shall stand good; Because he that condemned in fifteen, and he that condemned in ten, do both imply the sum of five pounds, that sum being included in both the other.   

6 Of an Award given, and the Parties not required to stand to it. D. 4. 8. 44.  
A Controversy grew betwixt Castellianus and Seius, about the limits and bounds of some grounds; and they chose an Arbitrator, who should determine the difference: he gave up his award in the presence of the parties, and set out the bounds (but haply required neither of them, to stand to his award.) It was questioned, Whether, if Castellianus did not conform thereunto, he were liable to pay the penalty, to which he was bound in the compromise? Scaevola answered, That if he did not submit, unto the determination made in the presence of them both, he was liable to the Penalty.    

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

1 Of two owners in Common of one ground, one of them being sole owner, of the next adjoining. D. 10. 1. 4. § 7.  
IF Titius and Sempronius be owners in common of one ground, and Sempronius alone of another adjoining; It was questioned, Whether they might be admitted to come to a trial about the limits of those grounds? Pomponius said, They could not be admitted; because they, being partners, cannot become adversaries in the same Cause, but are held as one, and the same person: neither whilst they continue so, can they be admitted indirectly; because he, that hath the ground sole to himself, and the ground common with another, may sell his right in either of them; and then a trial may be had.   

2 Of a Tree growing upon two several grounds, coming to be divided. D. 10. 3. 19  
A Tree standing, and growing in the confines of two grounds, belonging to several owners, as long as it continues in the place, belongs to both equally, for so much as ariseth from the roots in their several grounds, and cannot come into division, as a thing common betwixt them: but if it shall be blown down, by the Wind, or cut down, and severed from the ground, it than becomes wholly, without distinction of parts, common to both, and may come into division says Paulus, the right of property being confounded betwixt them.   

3 Of Goods gotten by a common Servant, submitted to division. D. 10. 3. 24.  
IF a Bondman common to two Masters, with the money or means of one of them, gained something, it cannot be denied, but what he hath gained, is common to both, saith Julianus: but if they come to a division, of what is common betwixt them, he, out of whose money, or means it was gained, shall be allowed to make his choice thereof; because it agrees with fair dealing, that any one may assume that specially to himself, which was gained out of his own money or means.   

4 Of charges laid out, to improve a common Ground, desired to be divided. D. 10. 3. 14.  
ONe laid out charges to improve a common ground, which he conceived to be solely his own; Afterwards he finds, that it was common to him with another. It was questioned, How he might have consideration for his charges, If any one should challenge, or claim a distinct part of that ground? It is admitted, that that part might be detained, until the charges were satisfied, & happily, if one claiming iuterest in common, sue to come to a division, in Equity he may be allowed the same; But it is farther questioned, if he who was at charges sell his part, whether the purchaser, may expect the same consideration? And in case, one claim a distinct part, by way of property, it is granted, that he shall have the same power to retain, until satisfaction be given unto him, and it is reasonable saith Paulus, That he should have it in this case also: But if he bestowed charges, conceiveing the ground to be common to him, with Titius, whereas in truth, it was common to him with Maevius, whereas in the former case, he had only the remedy of retention, because laying it out, as upon his own, he had no purpose to oblige any other, in this case he may have other remedy, because although he were mistaken in the owner, yet his purpose was to oblige the owner whosoever he was, no less than when one man in contemplation of another, doth business for his use, and profit, whereby he hath a special Action against him, and therefore in this case also, when a common ground is improved, satisfaction shall be allowed in that suit, wherein things common are brought into division.   

5 Of a Common ground, desired to be divided, wherein one man's interest was pawned, the others is sold. D. 10. 3. 7. § 13.  
Titius' and Sempronius having a ground common between them, Titius pawned his right and interest therein to Maevius, for a sum of money, to be paid at a certain day: the day being past, and Titius his interest forfeited, Sempronius desirous to have what was common betwixt him and Titius divided, proffered to Maevius, his choice, to take at the best value his right and interest in the same ground, or to give to him the best value, for what belonged to Titius: Maevius out-bidding Sempronius he yielded up his right and interest in the ground unto him: Then Titius tendered to Maevius, the money which he had borrowed, and desired his former right, and interest in the ground, to be restored unto him. It was questioned, Whether Maevius were bound to restore it? It was answered, (saith Ulpian) That Titius ought not to be heard, unless he would also redeem the interest of Sempronius in the ground, which upon bidding more money was adjudged to Maevius; And it was showed for reason, That if he who had right to part of a house had sold it, and, before delivery thereof, were called to admit a division; and upon offerture of him who had the other part, that he who would give most should have both, that other part were adjudged to him, who had first sold his part, than not delivered; it was resolved, that he who had bought the first part, could not recover it, unless he would redeem the whole; because the condition of him who first sold his right to a part, was much better now he having obtained the whole.    

SECT. III. Concerning Coheirs, as when an Estate or Inheritance devised amongst them, is desired to be divided.  

1 Of Compensation in respect of things, of unequal value, divided. D. 10. 2. 52. § 2.  
AN Arbitrator, chosen to divide an estate betwixt two brothers, thought it fit to allow some things in kind of unequal value to either of them, which he intended to supply, by adjudging money proportionably in respect of those things. It was questioned, Whether he might make compensation after that manner? Julianus answered that he might.   

2 Of charges bestowed by a Father on his Son, in the way of Learning. D. 10. 2. 5.  
A Father furnished his son, being at his own disposing, and travelling abroad, to attain Learning, with many things necessary for his maintenance, and furtherance in that way. It was questioned, whether the Father's estate coming to be divided, those allowances which his Father had given him, might not be computed into the Son's portion? Ulpian said, That if the Father intended not to give him creditonly for those things, but that out of his Fatherly affection, he furnished him, with the same, it will not stand with Equity, to defalcate any thing of his just portion, in respect thereof.   

3 Of a Son's portion Pawned in his Father's life time. D. 10. 2. 39  
A Father, in his life-time, divided his goods amongst his two sons; and in his last Will, he confirmed that division, and provided, that what debts any of them owed, or should incur, he alone should undergo the burden thereof. Afterwards one of his sons, with the Father's privity, borrowed money, and with his consent, pawned some grounds, which his Father had assigned unto him, and held the possession of the same, after his Father's death. It was questioned, Whether, if the money being unpaid, the Creditor should sell those grounds, the Co-heyre upon a division of the estate, were bound to allow any thing to him in respect thereof. Scaevola answered, That as the case was propose, he was not bound to allow him any thing.   

4 Of a Ground, wherein were Monuments of Ancestors, desired to be divided. D. 10. 2. 30.  
ONe puts a case to Modestinus thus, There is a certain ground common to me, and a young maiden, my Co-heyre, who is under the age of twelve years; in which ground the relics of mine, and her Ancestors are preserved: the Tutors of the young Maiden, have a desire, to sell that ground; I do not like it: but being not able to purchase the whole, I am willing to retain, so much, as may come to my share; and would, as much as in me lies, observe the respect due unto that place. I would gladly know, Whether I may not obtain of the Arbitrator, appointed, to divide the estate betwixt us, that parting the rest of the inheritance, he may allot us several portions in that ground? Modestinus answered, That he saw nothing, as the case was proposed, but that the Arbitrator appointed to divide the estate, might make partition of that ground as it is desired; and not meddle with the place where the Monuments are, but leave to the several heirs, that entire right therein which belongs unto them.   

5 Of Brothers agreeing to division, without the Arbitrators consent D. 10. 2. 57  
AN Arbitrator being appointed betwixt two Brothers, they agreeing made a division among themselves, as it becomed loving Brothers. It was questioned, Whether it were good, without the Arbitrators confirmation? Papinian said, It was good, unless by defect of age, it were insufficient.     

TITLE III. Of Maritine Judicature.  
Maritine Judicature is, wherein Causes concerning Navigation and Trade by Sea, are discussed; as 1. Concerning ships, and freighting of ships. 2. Concerning damages done to ships, and goods, or moneys adventured. 3. Concerning Contribution, Fishing, etc.  

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

1 Of a Ship built with another man's materials. D. 6. 1. 61.  
MInicius was asked the question, whether if one repaired his ship, with materials belonging to another man, his right continued the same? To which he answered, It did. But Julianus said, That if in building a ship he had done so, the right had been otherwise; because the property of the whole ship shall be reckoned, from the right which any one hath, unto the keel, or bottom, which is the principal part, on which all the rest is built.   

2 Of Profits due for another man Ship. D. 6. 1. 62. & 7. 1. 12. § 1.  
IF a ship be in possession of one, who knows he hath no right thereunto, he may be sued for such profits, as might have been made by the true owner, by employment thereof: But it is otherwise, if any one in the same manner, have moneys in his hands, which belong to another man; for he is not bound to pay interest for the same. Papinian says, That although interest, or use money in that case, cannot be demanded, yet freight may; Because the only end of shipping, is the employment thereof, and therefore, if the ship be employed, the owner is liable to the danger, that may happen unto it: but money is not intended, only to be put to use; and therefore he that puts it to use, runs the hazard, not the owner thereof.   

3 Of moneys lent to a Master to repair his Ship. D. 14. 1. 17.  
LVcius Titius appointed Stichus Master of his ship, who borrowed money, and gave security for the same, as if he had received it, for the repairing of his ship. It was questioned, Whether Lucius Titius were bound to repay the Money, in case he who lent it, could not prove, that the Money was employed accordingly? Africanus answered, That the Creditor had sufficient cause of action, if, when the money was lent, the ship was in that condition, that it was necessary, it should be repaired: For as it were unreasonoble, that the Creditor should be bound, to take upon him the care, of the repairing the ship, and supply the owner's room, (which must be so, if it should be necessary for him to prove that the money was laid out upon the ship) so it stands with reason, that he be sure that he lends his money on such an occasion, as whereby the Master's fact may oblige the owner, which he cannot do otherwise, unless he knows, that the money borrowed was necessary, for the repair of the ship; and therefore, if the ship wanted some repairs, and a far greater sum was lent, than was needful, the owner shall not be liable for the whole.   

4 Of Goods removed out of a ship that was hired. D. 14. 2. 10.  
ONe hired a ship, and conditioned to have his goods conveyed by Sea therein. The Master of the ship, not ignorant of the Merchant's mind, without any necessary cause, removed those goods into another ship; which ship together with the goods, were cast away. It was questioned, Whether the owner of the ship, which was taken to freight, were liable for those goods. Labeo said, That the Merchant had just cause of action against the owner, or Master of that ship. But Paulus says, It were otherwise, if both the ships were cast away in the same voyage, and it so happened, without any fraud, or fault of the Mariners.   

5 Of a Voyage hindered by prohibited Goods. D. 19 2. 61.  
ONe let his ship for a certain freight, to go a voyage from the Province of Cyrene, to Aquileia in Italy; which ship was laden with three thousand Jars of Oil, and eight thousand bushels of Corn: but it happened, that the ship was imbargued nine months, in the province; and at last the lading was taken away, as forfeited. It was questioned, Whether the owner, or master of the ship might require the freight agreed upon? Scaevola answered, That, as the case was proposed, he might.    

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

1 Of one Ship doing Damage to another. D. 9 2. 29. § 2. 4.  
IF one man's ship fell fowl upon the Bark of another, whereby damage was done to the barque. It was questioned, How, and by whom satisfaction was to be given? Proculus' said, If it were in the power of the Mariners, to have prevented the damage, and by their fault it was omitted, they are liable to make satisfaction; because there is little difference, whether they had a hand in doing the hurt, or by not turning the helm, and by suffering the ship to fall foul, they occasioned the same; But if, by breaking of a Cable, or want of Mariners in the ship, the damage happened, the action lies against the Master of the ship. Alfenus says, If one ship overrun another coming towards her, an action lies, as in case of damage done purposely: but if the ship were driven on so violently, that her course could not be stayed, the owner is liable to nothing: and if any thing happened, by the fault of the Mariners, Ulpian is of opinion, that a penalty due by Law, for a fault or negligence, is sufficient.   

2 Of Damage done to the Tackle of a ship. D. 9 2. 29. § 5. & 3.  
IF any man cut the Cable, whereby a ship was fastened, by occasion whereof, the ship perisheth, the owner hath his remedy, saith Ulpian, by an action of the case. But if one ship, by the violence of the Wind, be driven athwart the anchor cables of another, and the Mariners of that ship, having no other means to get clear, do cut the cable, Labeo says, that no action lies against them. Labeo, and Proculus hold the like, If a ship be forced to fall foul, on fisher-men's nets. But if it happen by default of the Mariners, they are liable to the penalty of damage done by default: and in case they be bound to make satisfaction, for the nets broken, or spoilt, yet they are not liable for the value of fish, which may be supposed might have been taken, in those nets, in case they had not been broken▪ Because, it is uncertain, whether any would have been taken, or no.   

3 Of a Merchant's servant, appointed to receive money, giving longer time. D. 45. 1. 122.  
CAllimachus at Beritum in Syria, borrowed money of Stichus, Servant, or Factor to Seius, living in Rome, to be transported, at the hazard of Seius, to Brundisium in Italy; and covenanted to pay double interest for the same, for four Months: and for performance, engaged all the goods he had laden at Beritum to be transported to Brundisium, and all such as he should lad at Brundisium to be brought back to Beritum. It was afterwards, more particularly agreed betwixt them, That when Callimachus was arrived at Brundisium, within a month after, he should, with such goods, as he bought there, return again in his ship to Beritum; or if within that month he should not relade his ship with goods, and set sail from thence, he should forthwith pay the money borrowed, with the full interest, as if the voyage were finished; and defray the charges of Seius his servant, sent with him to receive the same, and to convey it to Rome: and this being propounded and required, by Stichus servant to Seius, was fully undertaken, and promised by Callimachus. The goods intended to be returned to Beritum▪ being laden aboard the ship before the day limited, Callimachus having some occasion of longer stay, Erisychthon fellow-servant to Stichus, who was sent along with him, giving his consent, they put not forth to Sea, until all the time limited was fully passed; and afterwards in the return, the ship and goods were cast away. It was questioned, Whether Callimachus were bound, to make good the money borrowed, and interest thereof to Seius? It seemed that he was bound; because he did not set sail, from Brundisium, until after the time, that he should have delivered in the money, to be conveyed to Rome. And whereas it, might be pleaded for him, that he stayed by the consent of Eros, servant to Seius, sent with him to attend that business: To that it might be replied, That Eros had no other commission, but to receive the money at the time appointed, and to convey, or by exchange, to return the same to Rome. Scaevola answered, That upon the whole matter, as it was proposed, Callimachus was bound to pay to Seius, both the money borrowed, and interest.   

4 Of Interest of Monies adventured at Sea. D. 22. 2. 6.  
AN Usurer lent moneys to a Merchant, at double interest, for which were engaged, the goods in a ship wherein the Merchant made his voyage; out of which, if the debt, and interest, could not be raised, It was agreed, that the Merchant's goods laden aboard other ships, and engaged for moneys to other Creditors, should likewise be obliged for so much, as should remain after the other Creditors were satisfied. The ship wherein the Merchant took his voyage, having goods enough to answer the whole debt, before the day, and place appointed for payment thereof, was cast away. It was questioned, Whether the Usurer might have recourse against the goods in the other ship, in case any thing remained? Paulus answered, That in other contracts of lending money, the hazard and loss of the thing lent, and what is engaged for it, belongs to the Receiver, not to the Creditor. But when moneys are lent, upon a Sea voyage, It is intended that the Creditor, cannot demand any thing, unless the ship engaged, within the time prefixed for payment, arrive safely at the Port appointed: and therefore the condition failing in this case, the obligation for the principal, and consequently for the interest was determined, although some of the goods, which were engaged for payment, were saved in other ships. But it may be then demanded, In what case might the Creditor have been relieved, in respect of those goods? It was answered, In case the Merchant's ship had safely arrived, and the goods therein had proved insufficient, although that ship, after the time appointed for payment, had been cast away.   

5 Of Interest due although not Demanded. D. 44. 7. 23.  
MAevius, the owner of a ship, being bound from Genua to Naples, borrowed money of Caius at Genua, to be paid at Naples, to the servant of Caius, on the first of September following; and, as the manner is, covenanted by way of penalty, to pay a certain sum weekly, for the servants attendance. If the money were not paid at that day, The servant at the day appointed, receiving part of the money, demanded no more, at that time; and within a fortnight after, demanded the rest. It was questioned, Whether Maevius were bound to pay according to the Covenant, for that time, in regard nothing was demanded of him? Africanus answered, That what was agreed upon, by way of penalty, was due for that time; and it had grown on due still, although it had not been at all demanded; neither could the payment thereof be avoided, unless the money had been tendered, and Maevius in no way faulty that it was not paid. Otherwise it might be said, That if the servant, having begun to demand the money, had afterwards by occasion of sickness desisted, the penalty were not due.    

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

1 Of Contribution to be made for Merchant's Goods cast over board. D. 14. 2. 2. § 2.  
MAny Merchants, having put divers sorts of commodities aboard a ship, wherein likewise were divers passengers; a violent storm arising, It was found necessary to cast out some men's goods: whereupon several Queries were made, as, Whether such were bound, to contribute to the loss, who had no goods of burden aboard the ship, but Pearls, jewels and the like, and if contribution were due for them, in what proportion was it to be made? Then, whether those who had no goods, at all on board, were bound to pay any thing, as freemen having their lives saved. It was resolved, saith Paulus, That all aught to contribute, whom it concerned to have those goods cast over board; because the goods saved, owe that duty towards the goods lost, yea the owner ought to be charged, in regard of his ship. Secondly that the proportion was to be set, according to the value of the goods, which were cast away; but the lives of the passengers being freemen could admit no valuation, yet they were to pay for their clothes, their rings, and all things else, which they carried about them, unless such as was taken with them, to be spent in the ship, as Victuals, or the like, which are exempted, because if it fall out, that there be want in the voyage, they must necessarily be delivered up, to be spent in common.   

2 Of losses sustained by a Ship, not liable to Contribution. D. 14. 2. 6.  
A Ship surprised with a violent storm at Sea, having her Masts, Sails, and tackling burnt with lightning, put into Hippo in Africa, and there being furnished with such necessaries, as could suddenly be gotten, sailed to Hostia, and discharged her lading safe, and in good condition. It was questioned, Whether they, to whom the ships lading did belong, were bound to contribute any thing, to the losses of the ship? Julianus answered, That they were not bound; for the charges were laid out rather to repair the ship, than to preserve the Merchant's goods.   

3 Of Goods in a boat, cast away. D. 14. 2. 4.  
A Ship being heavy laden, entering into a shallow river, or Harbour, to avoid danger by easing the ship, some goods were put into a boat which was cast away. It was questioned, Whether the goods in the ship ought to contribute to the loss of those cast away with the boat? Callistratus said, That they were bound, as much as if they had been cast out of the ship into the Sea; But if, after those goods, were put into the boat, the ship with her lading had been cast away, the goods preserved in the boat, should not have contributed to the losses in the ship; because contribution is due only when the ship is saved.   

4 Of Exporting Goods, after a time limited for Exportation. D. 39 4. 15.  
CAesar, when he had rent out the Quarries in Crete, out of which Whetstones were digged, put out a Proclamation, wherein he prohibited, under penalty of forfeiture, that no man except his farmer should convey any Whetstones, out of Crect, after the Ides of March; A Merchant's ship laden with Whetstones, before the Ides of March, sailed out of the Port of Crect, and being brought back with cross Winds, into the same part, put out from thence, the second time, after the Ides of March. It was questioned, Whether the ship and lading were forfeited, because the goods were exported out of the Island, after the time limited? Alfenus Varus answered, Although what was exported out of the harbour, was exported out of the Island, yet he that went out of the Island, before the Ides of March, being driven back by a tempest, into the Harbour, and after that time set sail again, ought not to be thought to have incurred, the penalty of the Proclamation; Because, the whetstones were exported out of the Island, when the ship the first time, put to Sea out of the Harbour.   

5 Of hindering one to Fish in the Sea. D. 47. 10. 13. § 17. & l. 14.  
IF one will not suffer another to Fish, or draw a drag-net, in a public Water, or stream: It was questioned, Whether he might not be sued in a cause of Injury? Some were of opinion, that he might be sued. Pomponius said, His case was like, as if one would not permit another, to make use of the common Bath, or public Theatre, who undoubtedly was liable to an action of Injury. It was questioned farther, Whether, if one did hinder another man from fishing before his house, or habitation, that were ground for an action of Injury, or no? For it is certain, that the Sea is common, as the air itself, to all men, and it hath been often resolved, that no man ought to be prohibited, for taking fish in the Sea, no more, then from taking Fowl, when he is in another man's ground, (although he be forbidden to come there,) yet it is received by common use and practice, says Ulpian, 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 maintain his possession.     

TITLE IV. Of Judicature concerning the Public Treasury.  
judicature concerning the Public Treasury is, concerning such goods which belong to the public 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 Commonwealth.  

1 Of Rescinding a Sale, made on behalf of the Treasury. D. 18. 5. 9  
LVcius Titius being indebted to the public Treasury, the Officers thereof entered upon a ground of his, as forfeited, and sold the same for less than the debt amounted unto, whereupon, he repairing to the Precedent, and offering himself ready to pay, what was due to the public Treasury, the Precedent declared, that the sale should be made void; and decreed, the ground to be restored to Lucius Titius: It was questioned, Whether upon the Precedents declaration, and decree, Lucius Titius ought to be held possessed of the ground? Scaevola answered, Not until the Treasury were satisfied for the debt, and he who bought the ground, had his money repaid.   

2 Of Public grounds hired, let out to others. D. 49. 14. 47.  
AEMylius Ptolemeus, hired certain grounds, belonging to the public Revenues, and afterwards let out the same, by parcels, 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 prejudicial to the Treasury, if the immediate Tenant should run the hazard of recovery from the under-tenants, and be forced to pay more, than what he had agreed for: and thereupon it was resolved, that he should be sued for no more, than what he had agreed for.   

3 Of the Profits of public grounds sold, arising within a time limited, for more to be offered. D. 49. 14. 50.  
VAlerius Patronius, Surveyer of the public Revenues, proposed the sale of some grounds, to Stalticius at a certain price, if within three months, more were not offered for them; within that time, a greater sum 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 public Revenue Paulus said, That it was certain, if they were received, betwixt the first proposal, 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 proposal 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 year, lest 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 corn, 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 money out of the Estate, informing against the Heir. D. 29. 5. 26.  
GAius Seius was indebted to Titius, in the sum of a hundred pounds, which was given to him by his Brother's Will, which he afterwards received of the heirs of Gaius Seius; and understanding that those heirs had not prosecuted the authors of Gaius Seius his death, he informed against them, to make the estate forfeited to the public Treasury. It was questioned, Whether he, having received a hundred pounds, out of the estate, might be admitted to inform? 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 heir did not prosecute, the authors of the Testators death, the estate was confiscable to the public Treasury: Gaius Seius languishing with sickness complained, that he was poisoned by a Bondman, and so died. Lucia Titia his sister, who was his heir, neglected to prosecute the Bondman: and she herself living ten years after, than died, 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 corporal, but pecuniary, it was not extinguished, by the death of the unworthy heir.   

3 Of the like. D. 46. 14. 9  
LVtius Titius made his sister his heir, of some part of his estate, and his Wife of the rest. The sister accused the Wife for poisoning 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 criminal cause was determined, by the death of the party, yet the Officer of the public Treasury, might prosecute and prove the goods wickedly gotten, to be forfeited to the Commonwealth.    

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

3 Of the forfeiture of One, not to be construed in prejudice of Another. D. 32. 1. 27.  
Pompeius' Hermippus made his son Hermippus, his heir, for nine parts; and his daughter Titiana for a third part of his estate: and gave to either of them, certain grounds by way of Legacies. And a oreover, his will was, that if his son Hermippus should die without children, his daughter should have other grounds. Afterwards in a Codicill, he gave his daughter some other special grounds, and required her, that she should rest herself contented with those, in lieu of all her part of the inheritance, and legacies given in the Will. Hermippus the youngers' estate was confiscated; but Titiana demanded, what was bequeathed unto her. It was thereupon questioned, What the Father's intention was? Whether he would have her relinquish her part of the inheritance only, or those things also, which her brother was required to leave her at his death, if he had no children? Paulus was of opinion, That she ought to relinquish all. But a milder judgement took place; which was, That she should relinquish only those things, which she was to receive during her brother's life; not those things, which were to come unto her, after his death: and so the Court decreed.   

4 Of the Condition of a surety, when the Treasury succeeds the Debtor. D. 46. 1. 72.  
VArianius Antoninus procured, upon his Letter, Aurelius Palma, to lend a hundred pounds to Julius Pollio, and Julius Rufus, who were bound jointly, and severally to pay the whole sum. It happened, that the estate of Julius Pollio was confiscated to the public Treasury: and Aurelius Palma dying without heirs, the public Treasury likewise succeeded in his estate. Vranius being sued, by the Officers of the Treasury, as having undertaken to Aurelius Palma, for the debt, Pleaded, that he was freed from his engagement to Palma, Pollioes and his estate being confounded in one. Paulus was of opinion, That if there had been but one debtor, to wit, Julius Pollio, the plea had been good; there being no doubt, but the surety is freed, when the principal debtor cannot be sued. But when two men are bound severally, for payment of the same money, and the Creditor becomes heir to one of them, he saith, There is just cause to doubt, whether the other debtor be freed; or rather by confusion of the obligation, the person only of that debtor, be exempted. And he is of opinion, That the Creditor succeeding one of the debtors his person is only freed, and the obligation remains: whereupon he concludes, That the other debtor continues bound, and also he that is engaged on his behalf. But although an action lies against the surety by Law, yet in regard Vranius, if he receive prejudice by his engagement, hath liberty to bring his action against either of those, for whom he was engaged, If he be sued, on behalf of the Treasury, he may except for so much, as Julius Pollio his estate was liable to him; and leave the Treasury to take course, against the other debtor, to recover a moiety of the debt, if they were partners therein, otherwise the whole.     

TITLE V. Of Judicature before the Praetor or Chancellor.  
judicature before the Praetor or Chancellor is, when Remedies are desired to be afforded, which in the ordinary course of justice cannot be obtained; as, 1. In Relieving Minors, and Debtors; 2. Preventing dangers; 3. And decreeing what is agreeable to Equity.  

SECT. I. Of Relieving Minors & Debtors.  
Relief of Minors and others is, when restitution is granted, against Acts done by them in Minority, or drawn by fear, or force etc. The relief of Debtors is by reducing of Creditors to conformity.  

1 Of an Act begun in Minority, completed, or taking effect in full age. D. 4. 4. 3.  
IF one contract with a Minor, and the event thereof falls out when he is become of full age. It? was questioned, Whether the beginning, or end of the business ought to be respected. Ulpian says, It is resolved, That if any one, coming to full years, approve what is done in his Minority, there is no cause, why he should be relieved, or restored against his own act: whereupon he relates, That Celsus was consulted by Fulvius Respectus, the Praetor, in this case, A Minor, of the age of twenty four years, commenced a suit in a cause of account, against his Tutor's heir; and the cause depending, after he came to the age of twenty five years, the Tutor's heir obtained a sentence, wherein he was acquitted, Against which proceedings, and sentence, the late Minor sued to be relieved. Celsus thereupon advised the Praetor, That he ought not easily to be relieved, or restored; unless it were contrived by the cunning of his adversary, that he might be acquitted, when the other had attained to full age; for then the Minor might seem, not only to have been overreached, or deceived the last day, when the sentence was given, but in the whole course of proceedings, which were so projected, that the sentence for acquitting him, might be given, when the young man was of full age.   

2 Of Restitution against a third Person. D. 4. 4. 13.  
A Minor sold a piece of ground, and gave possession thereof: and he that bought it, sold the same again, to another man. It was questioned, Whether the Minor might be restored, against the buyer in the second place? Labeo was of opinion, That if the second purchaser knew, that it was first sold by a Minor, restitution ought to be granted against him; but if he were ignorant thereof, and the first buyer were of ability to make satisfaction, he ought not to be questioned; and if the first were not of ability, than it was thought reasonable, that the Minor might be relieved against the second, although he were ignorant.   

3 Of the Author or occasion of Fear, against which, one sues to be restored. D. 4. 2. 9  
BY the Authority of the Praetor, one of full years, might be restored, if by fear, or force he had yielded, or agreed to any thing, prejudicial to himself. Yet Pomponius says, Although the Praetor's Edict speaks generally of force, and fear, It is to be considered, from whom the force, or by whom the fear was occasioned: and therefore if one, who was a Prisoner amongst Pirates, or Enemies, gave, or promised a reward to one, who should free him out of their hands, he shall not be relieved, by that Edict; For although the promise, or gift, proceeded from his fear of danger, from the Pirates, or Enemies, yet he, to whom it was made or given, received it only, as a reward of his honest endeavour.   

4 Of a Release, procured by Force, of a Debt Enforced. D. 4. 2. 12.  
IF one by force compelled another to seal a bond, for payment o● Money to himself; and that man, or some other, on his behalf, compel him, who hath the bond, to seal a release; although the release were procured by force, yet Pomponius says, the Praetor, in this case, shall give no reliese; because, as it was lawful to resist force with force, so he that by force is wronged, by force may help himself.   

5 Of Restitution against the Heirs of him, who hath gained from another, by force, or fear. 5. D. 4. 2. 12.  
THe heir of him, who hath gotten any thing by force, or fear, although he be not liable to any penalty, yet is bound, (says Ulpian) to restitution of what came unto his hands; for what was unjustly gotten, ought not to accrue to the heirs advantage. But it is questioned, in case the heir consumes such things, and dies, Whether his heir shall be liable to restitution? And it was resolved, That he is liable; because, it is sufficient, that it once came to the first heir's hands, otherwise it might be said, that he himself, which consumed it, was not afterwards liable: and the resolution is most clear, if the things were converted into money, or any other profitable use: For so the Emperor Antoninus Pius, wrote to Claudius Frontinus, That the value of goods, belonging to an inheritance, might be required of the heir, although they were not extant; Because, his estate being improved by the proceed of those goods, although the species were changed, it was obliged as much, as if the goods themselves were remaining.   

6 Of reducing Creditors to Conformity. D. 2. 14. 8. § 19 & 9 & 10.  
IF a Debtor whose estate is not sufficient to pay his full debts, agree with his Creditors, to accept part of their moneys; if they all agree in common, and declare, with what proportions they will be content, there is no doubt, but they are all bound, by the agreement. But if any dissent, they, so dissenting, are not bound to stand to the Agreement of the rest, yet Marcellus says, The Praetor may interpose his authority, and confirm the agreement of the major part. And Accursius says, This course stands with Equity and reason; because, if they do not all yield to lose some thing, it may happen, many ways, that none of them shall recover any thing.   

7 Of the Major part of Creditors, how to be understood. D. 2. 14. 8.  
A Business of Compounding, betwixt a Debtor and his Creditors, depending; and the Creditors being of different dispositions; and their debts of different quantities: It was questioned, How the Praetor was to judge of a major part? Ulpian was of opinion, That he ought to respect, the major part, not according to the number of persons, but with consideration had to the quantity of their debts: but if the debts were of equal quantity, then, according to the number of the persons; and if it fell out, that the number of persons were equal, the one for Compounding, the other against it, although there were no major part, he might confirm the consent of the better sort.    

SECT. II. Of Preventing Damages.  
Damages are prevented, by granting Injunctions not to proceed in a new work, which may be prejudicial to others; and to secure one man's house or possession, from danger imminent, from the house or possessions of another.  

1 Of Warning to be given, to desist from a new Worke. D. 39 1. 5. § 5.  
IF one began a new work, which might be prejudicial to another, and upon lawful warning given do not desist; the Praetor might cause him to demolish it, when it was finished. Whereupon, it was questioned, When divers persons are concerned in an intended new work, which might prove prejudicial, To whom and by whom, warning is to be given? Ulpian says, If the ground, or work belongs to several persons, if warning be given to any one of them, it is sufficient, as if it were given to all: but if one of them proceeds in the work; and the rest desist, they who desisted, are liable to nothing; for one man's act may not prejudice another, who acted not all▪ but, if there be many, who may be prejudiced by a new work, it is not sufficient for all, that one give warning to desist; because, it may happen that some have just cause, to forbid the work, others have not.   

2 Of one, who bought the ground, where a new Work was begun. D. 39 1. 23.  
MAevius, after warning given, not to proceed in a new work, sold the ground, whereon the work was begun, to Sempronius; who knowing that such warning was given, yet proceeded to finish the same. It was questioned, Whether Maevius the seller, or Sempronius the buyer, were liable to amends? Javolenus answered, That if warning be given, to desist from a work begun, if it be afterwards finished, the owner of the ground, or work is liable; because the warning is not personal, but real, that is, it is in respect, of the thing, or work itself, not in respect of the owner's interest, at that time: and that therefore, He only is bound thereby, who enjoys the ground, or work, concerning which the warning was given.   

3 Of the Heir of him, who proceeded in a new Worke. D. 39 1. 22,  
WArning being given to Titius, to desist from a new work, He proceeding in building, and having finished it, died. It was questioned, Whether his heir might be compelled to demolish it? Marcellus answered, That he might be compelled, to suffer it to be demolished, but not to be at the charge thereof; because, that kind of charge was imposed on him, whom contemned the Praetor's Injunction, by way of penalty; and matters of penalty regularly fall not on the heirs.   

4 Of one required to secure another, who sought not to be secured himself from danger. D. 39 2. 13. § 11.  
IF danger were feared from a ruinous building, the Praetor might cause security to be given, or the possession of the building to be yielded up. Titius having a ruinous house, and Maevius a house in good repair adjoining to it, Lucius, whose house was joined to that of Maevius, desired, that the owners of both, might secure his house from danger. It was questioned, Whether Maevius, whose house was in good repair, might be compelled thereunto? Ulpian answered, That he was as well liable, as Titius; because it might happen that the ruinous house, falling on that which was of good repair, might occasion that house, to beat down the house of Lucius: and if it be said, that there is no fault in the house of Maevius, being in good repair, if the ruinous house, falling on it, should occasion loss, or damage to the third. It is answered, That Maevius, the owner of the house in repair, 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 harmless from any damage, which might happen to him, by the house of Titius.   

5 Of one, desiring to be secured from damage, who refused himself to give security. D. 39 2. § 11.  
Titius' having a ruinous house, adjoining to the house of Sempronius, omitting to give bond to Sempronius to save him harmless according to the Praetor's decree: Sempronius, by the Praetor's 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 do so? julianus answered, That it was an unreasonable thing, that he, who yielded the possession of his ruinous house, to be awarded from him, should desire him, to whom it was awarded, to do that which he himself had refused to do.   

6 Of damage, happening from one house to another, without fault. D. 39 2. 43.  
LVcius entered into a bond, to secure the house of Sempronius from any damage, which it might sustain, from the house of Lucius. The tiles, or slats of Lucius his house, being by a strong wind blown down, upon the house of Sempronius, the tiles, or slats of that house were broken. It was questioned, Whether Lucius were bound to make good the loss? Alfenus Varus answered, That if the slats, or tiles fell down by reason of any fault, or insufficiency in the building, he was bound to make the damage good; but if the force of the wind were such, that had the tiles been never so good, or sufficiently laid, they would have been blown down, he was no ways bound.   

7 Of Damage happening, before a Legal course was taken to prevent it. D. 39 2. 44.  
Titius', observing the house of Sempronius, adjoining to his, to be very ruinous, required him extra-judicially, to give him security of indemnity from that house, which Sempronius refused to do: and before Titius, could procure an order, from the Praetor, Sempronius his house failing, beat down 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 says, 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 strictness of Law▪ as, when men refuse to perform things committed to them in trust, or insist upon unconscionable pretences, and the like.  

1 Of Treasure hid in another man's Ground. D. 10. 4. 15.  
ONe had Treasure concealed, or hid in another man's ground, and would not suffer him to dig 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 harmless, it stood with Equity that he should have a decree, or order, to dig, take up, and carry away the same.   

2 Of moneys laid out to redeem a Prisoner. D. 3. 5. 21.  
THree Romans being taken prisoners in war, by the Portugals one of them was let go, upon condition, that he should bring money, for ransom of himself, and of the other two; and in case he should not return, it was agreed, that the other two should be answerable for him. He neglecting to return, the other two, at length, were forced to pay his ransom. It was questioned, What remedy they might have against him? Servius answered, That the Praetor in Equity, aught to condemn him, for what they had laid out on his behalf.   

3 Of Interest demanded for Money 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 money? 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, do signify nothing else, but depositing; which is true, if it were done with an intent, that the same numerical money should be restored: but if it were agreed, that so much in quantity, should be repaid, the business 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 yielded, that interest should be due for the money. He addeth, That it is true, that in a business of this kind, the Judge may determine what is fit, as well as if the parties had expressly agreed thereupon: but he saith, It is both against the nature of a thing left in trust, and fair dealing, to require interest of him, who doth a courtesy, in keeping what is trusted with him, before he hath made any delay in delivery thereof.   

4 Of an Heir, made in Trust, to convey the estate to the Testators Son, or Mother. D. 36. 1. 25.  
SEmpronius made Titius his heir, and required of him, that what he should receive of his estate, he should, as soon as might be, convey unto his son; or if his son should die, before it was done, unto his son's Mother. After the death of Sempronius, before Titius took upon him as heir, the son died. It was questioned, Whether the estate were due unto the Mother, or to the heir of the son? Julianus answered, That if the son died before that time, when the estate ought to be conveyed unto him, the right was devolved unto the Mother; but if he died after that time, by Law it belonged to the heir of the son. But whether it were the Testators meaning, that if the son died, at any time, before the estate were made over unto him, it should be conveyed, rather to the Mother, then to the heirs of the son, the Praetor ought to determine, taking into his consideration, the quality of the Mother, and of the heir of the son. But Marcellus said, That it is agreeable to the Will of the Testator, that whensoever the son should die, whether before, or after the right to the estate accrued unto him, it ought to be transferred unto the mother, if it were not actually conveyed: and that so it hath been practised.   

5 Of a Release procured by fraud. D. 2. 14. 35. & 36.  
Titius', Maevius, and Seius, three brothers, divided their Mother's estate between them, and by writings gave each other releases. Afterwards Maevius, and Seius who were absent, at their Mother's death, found Titius had conveyed away, and concealed out o● the Inventory, by which the division was made, a sum of gold. It was questioned, Whether they might not sue Titius, notwithstanding they had given him releases? Modestinus answered, That they might: and if their releaseth were pleaded against them, they might reply concerning the fraud.   

6 Of the Sale of a Ground, Warranted as the Seller possessed the same. D. 19 1. 39  
ALfenus sold a ground, which he showed to Paulus, and warranted it, as he possessed the same: and being privy that some part of that, which he showed to Paulus, did not belong to himself, concealed the same. It was questioned, Whether he were bound to make good the sale for so much as he showed? Modestinus answered, That he was bound; because the general words [As he possessed] extend not to what he knew to be otherwise: For else Paulus was over reached, or deceived, who, if he had known any part thereof, to belong to any other, would not have bought the ground, or not have given that price for it; which opinion he maintains, the rather, because by ancient Lawyers, it hath been determined, That if one selling a ground, did warrant it, except such services as were due, if any were due, and knew of some services due, and did not acquaint the buyer therewith, he ought to give satisfaction for the same; Because a general exception extends not to that, which the seller particularly knew, but only to those things which he was ignorant, and could not certify the buyer.   

7 Of Grounds sold, the Measures mistaken. D. 19 1. 42.  
ONe who had two grounds, sold them severally, to the same person; and estimated them, the one at two hundred acres, the other at a hundred: he who bought them, upon measure, found, that which was estimated at two hundred acres, to want ten, and he that sold them proved, that the ground estimated at a hundred, contained a hundred and ten acres. It was questioned, What satisfaction was to be given? Labeo was of opinion, That although what was wanting in one, was supplied in the other, the seller was bound to make good that which was wanting. Paulus conceived, That if the purchaser brought his action, he might be relieved by the exception of unconscionable dealing; and gives instance of one, that sold a Copps, and a Vineyard, as of equal quantities, and what wanted in the Copps, was supplied in the Vineyard; in which case, if there were any difference, betwixt the one and the other, it was for the buyers, not the cellar's advantage; and concludes that in such cases, the loss in the one should be compensed with the gain in the other, so that the buyer be not any ways prejudiced, in the quality, or goodness of the ground; for in that respect, he ought to have satisfaction.   

8 Of a Covenant not to remove a Tenant. D. 19 2. 54. § 1.  
Titius' did let a house to Seius, for seven years, at an yearly rent, and it was covenanted betwixt them, That if Titius should remove Seius, within the term, he should by way of penalty pay to him ten pounds; and if Seius should quit, or leave the house within that time, he should forfeit to Titius the like sum. It happened, that Seius paid no rent in two years. It was questioned, Whether Titius might not remove him, without incurring the penalty? Paulus answered, Although nothing were mentioned in the agreement, about payment of the rent, yet it must be the intendment of the agreement, that Seius paying his rent, and using the house as he ought, should not be removed: and thereupon if Seius, upon that occasion being removed, should sue for the penalty, Titius might use the exception of unconscionable dealing against him.   

9 Of Rent to be abated, for improving the ground. D. 19 2. 61.  
A Tenant, which was no ways bound by his lease, at his own cost planted a Vineyard, in the ground which he held; by occasion whereof the Landlord's rent was improved, to the value of ten pounds by the year: some rent being unpaid, the Landlord put him out, and sued him for the rent. It was questioned, Whether he might not require allowance for his improving the ground? Scaevola answered, That if no allowance were made unto him, and the Landlord sued him for his rent, he might oppose the exception of unconscionable dealing, or suing contrary to reason.     

TITLE VI Of the Emperor, or Prince's Audience.  
judicature before the Emperor, or Prince, is when they in person hear causes, which they either determine themselves, or give direction for the determination. As 1. Generally in all causes of Law and Equity, 2. Specially concerning causes Testamentary, 3. In Reforming or confirming sentences given by inferior judges.  

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

1 Of the Father's Fact, not debarring the Son from a benefit derived from the Grandfather. D. 37. 14. 17.  
WHen a Bondman was made free, his Master became his Patron, and amongst other benefits, had a right to succeed, in part of his estate, when he died, which right he forfeited, in case he accused his freed man, of any capital crime, Marcus Antoninus the Philosopher, and Aelius Verus being Emperors, it happened that the Grandfather having made his Bondman free, his son called the freed man in question for his life, and failing to make good his accusation, the freed man was acquitted. And afterwards both the accuser, and the freed man died; whereupon the grandchild of him, that made the bondman free, and son of him who had accused him wrongfully, claimed part of the freed man's estate. The case being brought before the Emperors, They declared, that they found it doubted, amongst experienced Lawyers, whether the grandchild, as Patron, aught to succeed in that case; and that Proculus, a man of eminent judgement, was of a contrary opinion, and that they themselves, had given judgement otherways, in the case of Caesia Longina, which sentence was approved, by their friend Volucius Maecianus, a man of well grounded knowledge, who professed, That if he had been judge, he should have given sentence the same way, but afterwards, upon mature deliberation, advising with the same Maecianus, and other Lawyers their friends, (for so the Emperors were pleased to grace men of that quality) it appeared unto them, That neither by the words, nor by the intent of the Law, the Nephew ought to be excluded, by his father's act, from that right, which descended unto him, by his Grandfathers making the bondman free; and That many learned authors of the Law, and amongst them, their friend Salvius Julianus, a man of dignity concurred with them in that opinion.   

2 Of restoring a Minor, the Tutors having been negligent. D. 4. 4. 38.  
AEMylius Largianus, bought a certain piece of ground of Obinius, and received in hand some part of the price, with this condition, That if within four months, the rest of the price were not paid down, the sale should bevoyde: Within the four months, Largianus died, and Rutiliana his daughter, being under the age of twelve years, succeeded as his heir; Her Tutors neglecting to pay the rest of the price, Obinius (having oftentimes given them warning, and called upon them) after a years space, sold the same ground to Claudius Telemachus. Rutiliana sued to be restored. The case being heard by the Praetor, she was over ruled, and left without relief, whereupon she appealed to the Emperor, who advised with Paulus, about her case. Paulus told him, That it was his opinion, that she was justly overruled, because the business was contracted with her father, not with her. But the Emperor was otherwise inclined, because the time, wherein the sale was to become void, happening after the estate, and interest was in her, and then by the Tutor's negligence, the conditions of the sale were not performed. Paulus, than better considering of the business said, That he thought indeed, she might the better be restored, Because Obinius, after the day, wherein it was agreed, that the sale should become void, had given warning to the Tutors, to pay in the remainder of the price, by demanding whereof, he seemed to recede from that advantage, which he had of making the sale void; besides, the cause, or condition of making the sale void, was held no way favourable; so that it was resolved, and pronounced, That she should be restored: The Emperor was also the more inclined to her, because, the Tutors neglecting not only to pay the money, but also to desire restitution on her behalf, seemed to have been consenting to betray her business.   

3 Of a Promise procured by Force. D. 4. 2. 9 § 3.  
WHen the Campanians by force, and fear, had caused a stranger, to promise in writing, a great sum unto their City; The Praetor, by the directions of the Emperor, Ulpian being his Assessor, ordered, That if he had performed the promise, he should recover, what he had paid, by way of action, if he had not performed it, and were sued, he should plead, that he was constrained by force.   

4 Of recovering a man's own by force. D. 4. 2. § § 13. & 13.  
IF a Debtor be compelled to pay what he owed, he shall not be relieved by the Praetor's Edict, says Julianus, because he is not damnified, but he that committed the force, shall forfeit the debt; To that purpose Marcus the Emperor told Marcianus, If you have any cause of suit, it had been your best course, to have prosecuted it in a Legal way; and when Marcianus answered, That he had used no violence, the Emperor replied, you think there is no violence, without wounds, or blows. It is violence, if any man strive against another's will, to take what is due unto him, without any judicial order, and thereupon declared, That if any one should be proved, to have gotten money, or goods from his debtor, without his consent, and to have acted as a Judge in his own cause, he should lose his debt.   

5 Of Wages due, where no fault is in him that was hired. D. 19 2. 19 § 9  
Antonius' Aquila a Senator of Rome, conditioned with one, who was a cunning workman, to pay him for his service twenty pounds for one year; some time of the year being spent in the service, the Senator died, and the heir refused to pay the wages, whereupon the workman complained, to the Emperor's Antoninus and Severus, who returned answer to the Petition, That in case, as it was related, he were ready to have done his service to Aquila, and no failing was on his part, it was just, that he should receive his whole wages, unless he had been hired, and paid for the same time by some other man: and so Papinian says, That the Emperor's deputy dying in a remote province, his Retinue or Attendance ought to have their appointed allowance, if they were not entertained, for the same time by some other.   

6 Of Sureties being Liable for no more than they undertook. D. 46. 1. 68 § 1.  
AVrelius Romulus, taking some public Customs to farm, Petronius Thallus and others became bound for him, as sureties, for the payment of a hundred pounds yearly, to the Exchequer, Romulus himself failing in payment, the Officers of the Exchequer seized his goods, and sued the sureties, both for the principal debt unpaid, and for the Interest; whereupon they petitioned the Emperor, who upon reading of the bond, whereby it appeared, that they undertook, only for a hundred pounds a year, not for the whole burden, or charge Declared, That they were not liable for the interest; and Ordered, that Romulus his goods should be extended, for payment of the interest, and of the principal debt, so far as their value would reach, and that the sureties should be held liable only for the remainder; as it is practised, when goods engaged or pawned, are sold for payment of debts.   

7 Of a Legacy, recoverable from the heirs, not payable, as was appointed. D. 32. 1. 27. § 2.  
IVlianus Severus made his sons Paulus and Julius his heirs in his Will, and bequeathed, fifty pounds to Cornelius his Nephew, and willed that Julius Maurus his Bailiff, should pay the same, out of the rents of his grounds due unto him; The Officers of the public Treasury, questioning the estate of Julianus Severus, and requiring those rents, Julius Maurus was compelled to pay them unto them; afterwards the heirs of Julianus Severus, obtained a sentence for the estate, against the Officers of the public Treasury. The Nephew to whom the Legacy was given, sued Maurus for the same; the Emperor being petitioned declared, That the Legacy was not due from Maurus, but that it was signified by the Testator, whence it might be paid, and therefore referred him, to recover it against his heir.    

SECT. II. Of Causes Testamentary.  

1 Of right to Legacies in a Will, where the names of the Heirs are blotted out. D. 28. 4. 3.  
MArcellus relates a Case, which in his time was debated in the Emperor's presence, concerning one, who having made his Will, blotted out the names of his heirs, (supposing them unworthy;) in which case, the estate, after the Testators death, became confiscated; The question was, Whether the Legacies given in that Will, aught to be performed? Some being of opinion, That the Legacies were made void; others, That no more was void, but what was expunged, and that in a doubtful case, it was the justest, and safest way to make a favourable construction. He recites the case, pleading, and sentence given by the Emperor Antoninus, The case was thus, Valerius Nepos had made his Will, and afterwards obliterated the names of those, whom he had written his heirs; The Emperor said, That the Legataries could pretend no right; and told the Advocates of the Treasury, That they should remove the cause to the Judges thereof; Vivius Zeno being a Legatary in the Will, said, I beseech your Majesty, to hear me patiently, What do you conceive shall become of the Legacies? Whereupon the Emperor said, Do you think, that he who struck out the names of his heirs, would have the Will stand good for Legacies? Then Cornelius Priscianus Advocate for Vivius Zeno replied, He canceled only the names of the heirs: Then Calphurnius Longinus Advocate for the Treasury, Affirmed that there can no Will be good in any part, wherein there are no heirs; to whom Cornelius Priscillianus answered, He did not only bequeath Legacies but gave freedom unto Bondmen; The Emperor having heard what was said on both sides, commanded the parties, and Council to withdraw, and having considered of the business, willed, that they should be again admitted into his presence, and then declared, That he held it requisite, to make the most favourable construction in that business, which was, That that only should be held void, which was expunged, & although he had expunged the name of one Bondman, whom he had made free, yet he pronounced, that he also should be free, which it seems he granted in favour of freedom.   

2 Of an Heir made in stead of one supposed to be dead D. 28. 5. 92.  
PActumeius Androsthenes, made Pactumeia Magnae daughter to Pactumeius Magnus, heir to his whole estate; and in case she should fail, and her Father survive her, he substituted her father, in her place as heir; It happened, that Pactumeius Magnus was slain, and it being commonly reported, That his daughter also was dead; Androsthenes altered his Will, and made Novius Rufus his heir, premising these words, Because I could not be so happy, as to have those mine heirs, whom I intended, Therefore Novius Rufus shall be my heir. Pactumeia Magna petitioned the Emperor to be relieved against that Will; and the cause being heard, although there was a reason inserted, for making Novius Rufus his heir; yet because a false rumour ought not to create a prejudice; the Emperor, respecting the Will, and intention of the Testator, thought she was to be relieved; and pronounced, That the estate or inheritance, belonged to Pactumeia Magna, but withal, that she ought to perform the Legacies, given in the latter will, even as far, as if she herself had been apppointed heir therein.   

3 Of an Heir trusted spending the estate. D. 36. 1. 54.  
CAius made Titius his heir, and requested of him, that what should remain of his estate, at the time of Titius his death, might be restored to Maevius. Titius before his death alienated, and spent much of the estate. It was questioned, whether Maevius might recover any thing by way of satisfaction, from Titius his heir? Papinian answered, That if it were alienated, or spent purposely, to diminish the estate, which was intended to Maevius, he might recover some thing; but if that could not be proved, He had no cause of action; because in matters of trust, fair dealing only is required. But the Emperor Marcus, says he, having the conusance of a cause, concerning an estate left in trust, in the same manner, declared, That the expenses, pretended to have been made necessary about the estate, should not wholly be charged upon it, but if the heir, had some other estate of his own, his expenses should be laaid proportionably on that, together with the other; Which determination of the Emperor, Papinian confesseth consisted with Equity, and was not without an example; For when a Father's estate, was to come into a distribution amongst brothers, whereof one being a Soldier, had a peculiar estate of his own, which he had gained by his service, and demanded allowance, for what he had disbursed for his proper maintenance; The Emperor determined, that those disbursements should be charged, as well upon his own peculiar, as upon his Father's estate.   

4 Of the Father wasting an Estate intended to his Son. D. 36. 1. 54.  
LVcius Titius made Junius Cerealis his heir, and requested him, to confer the estate upon Junius Simonides his Son, when he should be at his own disposing; The Father prodigally wasting the estate, complaint was made, on behalf of the son, to the Emperor Adrian, who, the matter being proved, decreed, That the Father should forthwith render up the estate, and have nothing to do with it, during his son's life; for, because he had formerly wasted the estate, and it did not agree with the respect, due from the son to the Father, to make him put in security to preserve the estate, (which amongst other persons might have been done) the Emperor deprived him of that benefit; which was given him by the will, yet it was thought proper, for the reverence due to the Father, from the Son, that if the Father fell into want, the Judge might take order, that he should be maintained, out of the profits of his Son's estate.   

5 Of compelling one to perform a trust. D. 36. 1. 16. § 17.  
IN the time of the Emperor Antoninus Pius, there happened such a case. Pamphylus in his will made Theodatus, and Evarestus his heirs, and bequeathed his Bondman Hermias to Theodatus, and required him, when he had taken upon him as heir, to make Hermias free; and required of Evarestus, when Hermias was free, to convey unto him, that part of the estate, which might come to him as heir, which he had left unto him only in trust, for that purpose; Theodatus taking upon him as heir, made Hermias free, but Evarestus, suspecting the estate might prove troublesome, refused to take upon him as heir, and to intermeddle therewith, whereupon the Emperor being petitioned unto by Hermias, gave order to Cassius Dexter the Judge, to compel Evarestus to take upon him as heir, and according to the trust to convey the estate unto Hermias.   

6 Of a Legacy left by way of Confidence. D. 31. 1. 66. § 10.  
ONe in his last Will wrote, That he made no doubt, but that his Wife, would leave unto their children, whatsoever she received of his estate. It was questioned, whether she were bound by those words? The Emperor Marcus declared that she was bound, as much as if he had given her an especial charge to that purpose; and Papinian says, That the Emperor's resolution was very necessary, That the confidence of a kind Husband, might not prove prejudicial to the children, which ought to be as dear unto the Wife, as to himself.    

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

1 Of an Examination unduly taken by Torture. D. 48. 18. 20.  
A Husband being heir to his Wife, demanded money of Surus, which he said, his Wife in his absence, had left in trust with him, and to that purpose produced one witness; and desired, the defendants Maid fervant might be examined by torture, Surus denied that he received any such Money, and said, that his Servant ought not to be examined in that manner; but the Judge examined the Maid, as was desired, and finding her to agree with the other witness, condemned Surus, who thereupon appealed to the Emperor, who being informed of the proceedings, pronounced That the Maid servant was unduly examined, and that credit was not to be given to one witness, and therefore Surus had just cause to appeal.   

2 Of a sentence confirmed by the Emperor, touching the negotiation of a Factor. D. 14. 5. 8.  
TItianus entrusted his servant, with power to lend moneys, and to take pledges or pawns, and the same fervant, did likewise undertake for others, who bought Barley, and paid for what he undertook; when the servant was run away, one who had trusted him, for the price of some Barley sued the Master, the Master pleaded, he was not liable, because he gave his servant no commission for such businesses, but when it was proved, that the same servant, had provided storehouses for Corn▪ and had paid divers others for the like commodities, The Precedent or Judge, in such causes gave sentence against the Master; The cause being appealed, Paulus said, that there was a difference betwixt the Servants contracting himself, and undertaking by way of surety-ship for others, and that it was not likely, that the Master gave him any such commission, and therefore could not be obliged by such his undertake; But because it appeared, that he had a general power to act under, and for his Master, the Emperor confirmed the sentence.   

3 Of the heirs of one indebted to the Public, to be sued before those, who bought of the estate. D. 49. 14. 47.  
A Woman called Moschis, being indebted to the public Treasury, left her estate unto her heirs; of whom Faria Sinilla and others bought certain grounds, those being sued for the debt, and arrears of Moschis, pleaded that her heirs were sufficiently able to pay the debt; The Emperor thought reasonable, that the heirs should first be sued, and that what could not be recovered from them, should afterwards be raised by those who were in possession of the estate.   

4 Of a sentence given by combination and corruption of Witnesses. D. 42. 1. 33.  
IVlius Tarentinus, presenting his Petition to the Emperor Adrian, complained, that by the combination of his adversaries, with false witnesses, corrupted with money, the Judge had been swayed, to give sentence against him, and besought, that he might be relieved, or restored against that sentence; whereupon the signified his mind to the Praetor, in this manner, I have given order, that the Petition of Julius Tarentinus presented unto me, be sent unto you; and if he shall make it appear, that he hath been oppressed, by combination of his adversaries, and corruption of witnesses; I wish that you severely punish it, and, if by such ill courses, the Judge hath been abused, let him be restored against that sentence.   

5 Of an Advocate compounding for the event of the Suit. D. 17. 1. 6. § 7.  
DAphnis being sued for land which he held, and the profits thereof received by him: Marius Paulus his Advocate, in consideration of money given, became surety that Daphnis should perform the Sentence of the Court; and then covenanted with Daphnis, That in case he should prevail in the suit against his adversary, that he should convey the fifth part of the land, to a friend to his use. The Sentence passing against Daphnis. Claudius Saturninus the Praetor, ordered that Marius Paulus should see the Land restored, and pay ten pounds for the profits received; and for that contrary to the Law he had contracted for part of the Land to be conveyed upon the event of the suit, he suspended him from pleading as an advocate. Marius Paulus having an intention to sue Daphnis for what he had been enforced to pay, by occasion of his suretyship. The Emperor being informed thereof, declared that he should have no remedy; because he had made an unlawful contract.     

TITLE VII. Of Judicature in Causes Criminal.  
judicature in Causes Criminal is, when before special judges appointed to that purpose, Offences done against the Public, are Prosecuted for the inflicting of due punishment, concerning which, Cases and Questions happen; 1. Touching the manner of Proceedings. 2. Touching the Offences committed, 3. Touching the effect of the Proceedings and Sentences.  

SECT. I. The manner of Proceedings is in the Discovery, Apprehending, and trial of Offenders.  

1 Of Informations given against Offenders. D. 48. 3. 6.  
THe Emperor Adrian, being consulted by Julius Secundus, concerning the informations given against Offenders, wrote unto him. This is not the first time, that notice hath been given, that too much credit ought not to be had to their advertisements, who take upon them to condemn, instead of informing; And the directions of Antoninus Pius the Emperor are extant, which he published, when he had the government of Asia, to this purpose; That the Conservators of the Peace, when they had apprehended violent Thiefs, should examine them, concerning their Companions and Receivers, and that they should send their examinations enclosed, and sealed to the Precedent, and therefore they, who were sent, together with the accusations, aught to be heard again, although any thing were signified by letters, or delivered by the Conservators themselves, and so both the same Emperor, and others, signified concerning those, who were detected, and ordered to be enquired after; That they were not presently, to be taken for guilty persons, but to be newly proceeded against, if there were any, who could prove any thing against them, And therefore, when the President intended to examine the business, he should appoint the Consertor of the peace, to attend, and to maintain what he had informed, and if it be found, that he had diligently, and faithfully discharged his duty, he should commend his service, but if it were indiscreetly done, and upon no good ground, he should tax his negligence; but if he found that his inquiries were captious, to entrap persons, or the Testimonies were misreported, he should inflict on him, some punishment for example sake, that he might not presume hereafter to do the like.   

2 Of one accused undertaking to accuse another. D. 48. 1. 5.  
IF one stand accused, it concerns him to clear himself, neither can he be admitted to accuse others, before he himself be acquitted, For so it is ordained, by the Imperial Constitutions, that parties accused clear themselves, by showing their own innocence, not by charging crimes on other men, But this saith Ulpian, is questionable, whether he only may accuse another, who is acquitted, or whether he also, who hath undergone the punishment due for his fault, in regard the Emperors have declared, that after one is condemned, he may not undertake to maintain an accusation, but he is of opinion, That that is meant, of such as are condemned to slavery, or banishment.   

3 Of one being accused, of what he was once acquitted. D. 48. 2. 7. § 2.  
THe Emperor Antoninus Pius signified to Salvius Valens, that the Precedent ought not to suffer one, to be accused of a crime, of which he had formerly been acquitted; But Ulpian says, It is considerable, whether it be intended of the same accuser, or of another, and he is of opinion, That in regard, a judgement passed 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: Ulpian was of opinion, that he ought not easily to be admitted, yet he confesseth, That the Emperor Antoninus Pius, wrote to Julius Candidus. that although the Father had failed, in maintaining an accusation, his Son ought to be allowed, to charge the same person, with some other crime.   

5 Of an Offender offering Bail. D. 48. 3. 3.  
Antoninus' Pius the Emperor, being consulted by the Citizens of Antioch, what they might do with an offendor, who offered bail; wrote unto them, That he, who would put in sureties for his appearance, ought not to be kept in prison, unless 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 aught to be used, as if he had deserved to undergo the punishment of imprisonment, before he came to suffer that, which was to be inflicted for his offence.   

6 Of Proceeding against an Offender absent. D. 48. 19 5.  
TRajan the Emperor being consulted, by Julius Fronto the Proconsul, Resolved him, that a person absent ought not to be condemned, in a Criminal cause, and signified to Aufidius Severus, That no man was to be condemned upon suspicion; 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, says Ulpian be condemned, although they never appeared in judgement, in Criminal causes, as it is usual in causes private, and Civil, which he says 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 diminution of Credit, if being often summoned, he obstinately absent himself, he may be proceeded against so far, 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 several Provinces.  
WHen one who had committed Sacrilege in one Province, was appehended for a lesser crime in another, P. Proculus the judge, consulted the Emperor 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 sacrilege was committed.    

SECT. II. Of Public Offences, as Homicide, Parricide, Treason, etc.  

1 Of the intent in Manslaughter. D. 48. 8. 1. § 3.  
ADrian the Emperor, to a petition, concerning one who was slain, where the intention was doubtful, 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, aught to be condemned, as a manslayer, 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 pikestaff, albeit with an Iron point, 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 sudden quarrel, kills a man rather by chance, then of set purpose.   

2 Of kill persons found in Adultery. D. 48. 5. 20. 22. 24. & 38.  
IT was lawful saith Pupinian, for the Father to kill an Adulterer with his daughter, found in the fact in his own house, and it was lawful 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 tenderness of a Father, will make him more circumspect in his resolution, but the heat and rashness of a Husband, needed to be limited. Yet Marcus Antoninus and Commodus his son being Emperors, and consulted upon occasion of the Husbands killing his Wife, returned answer, If the Husband transported with indignation and grief, killed his Wife found in Adultery, he ought not to be punished with death, giving for reason, that the Emperor 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 than may be justified, he ought not to go unpunished; and therefore it may suffice, if he be a person of mean condition, to condemn him to the Mines; if he be one of better quality, to confine him to some Island.   

3 Of Accessaries to Manslaughter. 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? Ulpian 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 than 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 Proconsul, put to death a Bondman within that age: and not without reason, says Marcianus, for the young man did not want much of the age of fifteen, and lay at his Master's feet, when he was slain, and did not afterwards reveal 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 discern such a villainy, they are no more to be spared, in case of their Master's death, then of any other mischievous act.   

5 Of Parricide, committed by one supposed Mad. D. 1. 18. 13. & 14.  
MArcus and Verus the Emperor's being consulted by Scapula Tertillus concerning Aelius Priscus who head killed his Mother, advised as solloweth; If it clearly appear unto you, that Aelius Priscus was so distracted: with a total continued, defect of understanding; that there could be no suspicion, that in a dissembled madness, his mother was killed by him, you may desist from the punishment of him, his madness itself, 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 madness takes him by fits, and at the time of the villainy 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 foulness 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 do 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 less faulty, to censure them accordingly. For guards, or keepers are appointed for mad men, not only to look that they do not mischief 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 than was fit in their employment.   

6 Of Treason. D. 48. 2. 20. & 48. 4. 11.  
IT is generally observed, that for crimes prosecuted in the way of public Judicature, the penalty, or forfeiture of goods, falls not upon the heirs, unless sentence be given, in the life time of the offendor, But Modestinus says, It is otherwise in Treason, which may be prosecuted against the heirs, to make goods confiscated, although the parties be dead, and that Severus and Antoninus the Emperors declared, that he that was guilty of that crime, might not alienate any of his goods, after the time of the sact committed. But Ulpian says, 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 Commonwealth.    

SECT. III. Of the effect of Criminal proceedings.  
The effect of Criminal proceedings, is the Validity of Confession, voluntarily or upon Torture; of Respite given for Execution, of Pardon, or Restitution, and the like.  

1 Of confession voluntary, and upon Torture. D. 48. 18. 1. § 27.  
HE is not always to be believed, saith Ulpian, who voluntarily confesseth, he hath committed some heinous crime, for sometimes upon fear, or some other occasion, men betray themselves, as appears by a letter written by the Emperors, 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 fear to return to his Master, confessed 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 impeached as well as himself, 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 himself, and others; you may therefore dispense with your sentence, and give order he be sold, that he may not return again under the power of his Master, who we believe, will be contented, to receive the price, and part with such a servant.   

2 Of Offenders condemned, restored. D. 48. 23. 2. & 3.  
ONe who for an offence, had a punishment inflicted, whereby he lost his freedom, and his goods, was restored to his freedom, but had his goods retained as forfeited to the public 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 freedom, he was liable to any ordinary action: Ulpian adds, That if he were restored to both by the Prince, but to avoid men's actions, he relinquished the benefit of his goods, he cannot thereby free himself, from actions to which he formerly was subject.    
FINIS.