other moyety is sufficiently secured in the other Bond-servant remaining Or whether he ought to have his action in respect to the whole summe because it might happen that the servant remaining might miscarry before the debt were paid Papinian answered That he ought to have his action in respect of the entire summe of ten pounds because therein regard was to be had of that which was stolne not of that which remained safe 11 Of a Letter stolne or Purloyned D. 47. 2. 14. § 17. A Letter sent by one man to another is intercepted by a third person who is therefore liable to an action of theft It was questioned who had right unto that action Vlpian saies It ought to be considered who had the right in the Letter whether he from whom or he to whom it was sent and said if it were delivered to the servant or some other belonging to the party to whom it was sent it ought to be held his proper letter especially if it concerne him to receive the same but if it were sent to be returned againe the right or property remained in him from whom it was sent because he had no purpose to loose or transferre the same He concludes That the right of action belongs to him whom it concerned not to have it stolne that is to him for whose profit or benefit the contents thereof were written It may be likewise questioned whether he to whom the letter was delivered to be conveyed might not bring his action for the same if it were stolne from him And it is resolved he might if he undertook the delivery and were paid for the same or were concerned in the contents as being to receive something or to have something done for him exprest therein 12 Of Writings or Bonds purloyned or stolne D. 47. 2. 27. 32. HEE that steales or purloynes another mans writings or bonds or the like is liable to an action of theft not only according to the value of the paper or parchment but also of the debt or summe contained therein saies Vlpian if it concerned the owner for so much as if the writing or bond were for ten pounds the action might be brought for twenty as the double value whereupon it was questioned If the summe or mony mentioned in the writing or bond were paid before it was stolne whether the action lay for so much the writing or bond being then of like concernment To which the same Vlpian answers Although the debt be paid the debtor may require to have his bond delivered up or pretend that mony was paid by him when none was due in which respects it concernes the Creditor to have the writing or bond in readines to prevent trouble which for want thereof might happen unto him Againe it is questioned If one who hath lost his bond hath other writings or means to prove his debt whether he may sue for the double value of what is contained in the bond for it seems he hath lost nothing whose debt is secured by another bond or writing some again doubt why an action should lye for more then the value of the paper or parchment Because that if upon the action of theft he can make it appeare what the debt was he may make the same likewise appeare when he shall have occasion to sue for the debt and if upon his action of debt he cannot make the summe appeare how can he be able to shew how farre the losse of the bond or writing concerned him Paulus answered That it might fall out that after the theft was committed the writings might come to his hands by which he might be able to prove how much it had concerned him and the right of action being once accrued from the theft continues although the case be altered afterwards 13 Of Things Taken up whereof the owner is not known D. 47. 2. 43. HEE that takes up any thing being on the ground and carries it away with a mind to gain the same is guilty of theft saies Vlpian whether he knowe the owner or know him not for it abates nothing in the point of theft that the owner of the thing is a person unknown but if the owner left it as a derelict that is a thing which he intended not to look after againe although he who took it up had a purpose to conceale and gaine the same it is no theft for theft is not committed unles there be some body who is prejudiced thereby which in this case cannot be Because it is received for a certain rule which Sabinus and Cassius deliver That he who leaves a thing with a mind never to have it againe ceases to be owner thereof but if it were not left as a derelict yet if he who took it up conceived it to be so he is not guilty of theft and againe if it were not left as a derelict nor he who took it up conceived it to be so yet if he had no intention to gain the same but to restore it to the owner he is free from guilt much more he who having found any thing setts up bills to signify so much although he demanded a reward for finding and preserving it 14 Of an Atturney receiving Mony without Commission D. 47. 2. 43. HEE who as a Proctor or an Atturny without any commission or authority receives mony seems to commit theft saies Vlpian but Neratius saies that is not to be admitted but with distinction For it is true if a debtor deliver unto him mony with an intention that it should be returned unto his Creditor and the Proctor detaine the same to himselfe it is theft For the mony still continues the debtors and the Proctors possessing himselfe thereof contrary to the owners minde undoubtedly committes theft but if the debtor supposing him to have power to receive such mony to his own use deliver the same although he therein be deceived the Proctor can in no waies be said to act as a theef receiving the mony according to the mind and will of the owner 15 Of one Taking privily what he had Lent D. 47. 2. 59. HEE who lent something unto another privily without the consent of him towhom it was lent took it away It was questioned Whether he were liable to an action of theft Julianus answered That he had not committed theft because he was owner of what he took away which yet he limits unlesse he to whom it was lent had some just cause to detaine the same for if he had laid out necessary charges for preserving the thing lent unto him it concerned him rather to keep the thing lent untill he were satisfied then afterwards to seek his remedy by way of suit for the same and that in such a case he might bring his action as in a case of theft 16 Of one Taking away what had been Stolne from him D. 47. 2. 48. ONe who had lost a piece of Silver plate brought an action of theft against him who had embezelled
the same a question and difference arising about the weight thereof the owner alledging it to be more the defendant denying it to be so much produced the piece which the owner presently snatched out of his hands and kept the same which notwithstanding he who embezelled it was condemned in the double value thereof whereupon it was doubted Whether the sentence were just Vlpian answered It was justly given for the thing it selfe which was stolne was not considerable in the action wherein by way of penalty the double value was to be allowed He likewise relates That when one had stolne some goods and sold the same the owner of the goods extorted from him the mony which was received for the price thereof It being questioned whether he had committed theft It was resolved he had because it was without all doubt that the procede or price of the thing stolne was not the stolne thing 17 Of Procuring Credit to an insufficient party D. 4. 3. 7. 8. LVoius being desired to lend mony to Seius whom he did not know enquired of Titius to whom Seius was known concerning his ability who affirmed that he was a man that might be trusted for such a summe The mony being thereupon lent Seius proving insolvent Lucius would have brought an action against Titius for deceitfull dealing but Caecidianus the Praetor would not give way unto it which Vlpian saies was rightly done because that action may not be brought but where there was a great and evident purpose of deceiving yet Gaius saies That if when he knew that he was of a broken condition for some gain to himselfe he affirmed his credit in regard he commended him with a purpose of deceiving another that action may be justly brought against him 18 Of a false commendation of a thing to be sold D. 4. 3. 37. ONe who desired to buy a Horse which was sure of foot repairing to an Horse-courser and enquiring for one of that condition had one shewed unto him which the owner knowing his qualities commended for a most sure horse or that would neither stumble nor trip with which commendation he sold his horse at a very good price The first journey wherein the buyer made triall of him he fell and broke the riders legge It was questioned whether the Horse-courser were not liable to the action of deceitfull dealing Vlpian said That which a seller speaks by way of commendations in generall is to be understood as neither spoken nor undertaken by him but if he gave some speciall commendations with a purpose to deceive the buyer he can neither be sued for his commendations nor for a promise but he may be questioned for deceitfull dealing 19 Of making a false claime to another mans prejudice D. 4. 3. 33. ONe having a commodity ready to sell towards the end of the Market the buyer having taken good likeing thereto another makes clayme to the commodity and threatens to bring a Sergeant to arrest it whereupon the buyer departed and the third person desisted his clayme whereby the sale was frustrated It was questioned what remedy he might have that received the prejudice Vlpian said That the true owner of the commodity might bring his action on the case for the satisfaction of his losse 20 Of the Like D. 4. 3. 9. § 3. LVcius being possest of some parcells of oyles taken out of a ship Seius arrested them as his own and began a suit against them The oyles being perishable in value it was agreed betwixt them that they should be put into the hands of Sempronius by way of sequestration to be sold by him and the mony to be kept for his use to whom they should be adjudged Seius let fall his suit It was questioned Whether Seius might be sued for deceitfull dealing Some were of opinion he might because Sempronius could not be sued to deliver the Oyles untill the cause were ended but Pomponius was of opinion That an action of the Case might be brought against Sempronius but if that he proved insolvent that then the action held against Seius 21 Of lending false Weights D. 4. 3. 18. § 3. IVnius being to sell a commodity Lucus knowingly lent him false weights to weigh his commodity withall Trebatius said he was liable to the action of deceitfull dealing Others were of a contrary opinion Because if the weights were too heavy the seller might recover what he had delivered too much and if they were too light the buyer might have the like remedy concerning the price but if it were agreed that the commodity should passe according to such weights and he with a purpose to deceive affirmed his weights to be just the action did hold 22 Of a Counterfeit Letter D. 4. 3. 38. LVcius who owed mony to Seius understanding that Seius was much obliged to Sempronius caused a Letter to be conveyed to Seius in the name of Sempronius wherein it was requested that he would remit that debt to Lucius Seius being deceived by this letter sent an acquittance of the debt of Lucius by him who brought the letter After-wards it appeared to him that the letter was false and counterfeited Whereupon Vlpian was advised what might be done in this case He resolved That Seius the Creditor if he were under the age of twenty five years might sue to be relieved and restored against that acquittance and if he were above that age he might bring his action against Lucius for cosenage or deceitfull dealing SECT II. Of Offences wrongfully Committed Offences are done wrongfully when one by fault or negligence doth hurt or dammagr to another man for which he is liable to make satisfaction according to the value of the thing at any time in a yeare sometimes what it was worth in thirty daies before 1 Of Corne fired by burning of Furze D. 9. 2. 30. § 3. IT was questioned If a man with intention to burne the Stubble or Furze upon the ground set fire thereunto which fire dispersing farther burnes another mans corne or vineyard how farre he is liable for the losse or dammage Paulus saies it is to be considered whether it were foolishly or negligently done for if he put fire on a windy day he ought not to be excused for he is supposed to doe a dammage which gives occasion thereof and he is in like fault who did not take care that the fire might not spread so farre but if all things requisite were observed he is without blame 2 Of Hurt done by Lopping a Tree D. 9. 2. 31. IT was questioned If one Lopping a Tree did throw down a bough or limme thereof whereby another mans Servant or beast was killed or hurt Whether he were liable for the losse Paulus saies he was liable in case it were done in a common high way if he did not give warning so that that falling thereof might have been avoided Mucius saies it is the same in a private way if it happened by that neglect which by a carefull man
were free when she conceived and afterwards were become a bond woman when she was delivered it was held that the child borne of her was free because the calamity of the Mother ought not to prejudice the child in her wombe It was further questioned If a bond woman conceived or proved with child and afterwards was made free and then before she was delivered became and continued a bondwoman so that the child was both conceived and borne in bondage whether this child was borne free and it was resolved for the good of the child that it ought to be held free-borne it being sufficient for the child in the wombe to have had the mother free in the middle or mean time betwixt the conception and the birth Because as Paulus saies If there be any question concerning benefits belonging to the child in the wombe it is respected as already borne 4 Of a Citty or Corporation D. 3. 4. 7. VLpian saies If any thing be due or owing to a City or corporation it is not due or owing to the particular persons thereof nor if the City or corporation be indebted are the particular persons bound to make satisfaction for the same but he saies The Successors of the City or Corporation ought to make good what others formerly contracted and it makes no difference whether all remain or part or whether the first persons be wholly changed insomuch that if the corporation be reduced to one person he may sue or be sued in the name of the whole 5 Of one returned out of Captivity D. 49. 15. 5. 12. §. 9. HEE that is taken prisoner by enemies becomes their bondman but if he returne again into his country hee is forthwith restored to his former condition saith Pomponius unlesse he chuse rather to returne to the enemy And so it was resolved in the case of Attiiius Regulus who being taken prisoner by the Carthaginians was by them sent back to Rome that he could not recover his former condition because he had obliged himselfe by oath to returne to Carthage And therefore when a dispensation was proposed touching Menander a forreyner who had received freedome amongst the Romans That notwithstanding he being imployed as an Interpreter was sent back into his own country he should continue a Citizen of Rome It was held unnecessary For if he had a purpose to remain in his own country he would cease to be a Citizen of Rome and if he had a mind to returne thither againe he would continue a Citizen although no dispensation to that purpose was granted It is otherwaies saith Tryphoninus in the case of a bond servant for if he be taken prisoner and made free by the enemies if his Master shall recover him and bring him within the Roman territories he shall remaine his bondman although he have a desire to returne back unto the enemies Because as Sabinus writes Every man hath a free power to make himselfe a Citizen where he listeth but cannot dispose of another mans right 6 Of one delivered up to the Enemies D. 50. 8. 17. IF any one laied violent hands upon an Ambassadour of the Enemies he ought saith Q. Mucius to be delivered up unto them whom if the enemies refused to receive It was questioned whether he continued a Citizen of Rome and some were of opinion That he did continue so others held otherwise Because whom the people of Rome delivered up into the power of the Enemy they seemed to deprive of the priviledge of a Cittizen as much as if they had banished him out of their dominions of which opinion was Publius Mucius and this question was especially moved in the case of Hostilius Mancinus concerning whom by a speciall Law it was ordained That he should be held a Citizen of Rome although he had been delivered unto and refused by the enemies in consequence whereof he afterwards bore the Office of Praetor 7 Of marriage accomplisht D. 3. 1. 15. A Marriage was held compleat when the Woman who had given her consent was led or brought home to the Husbands house thereupon Vlpian being consulted answered That if a legacy were given to a woman upon condition when she was married to one of such a family said it became due as soon as she was brought within his dores although it so happened that she never entred into his chamber because it is consent not carnall company that makes a marriage so Cinna reports that when one had brought home his wife and that evening going abroad to supper fell into the river Tyber and was drowned it being thereupon questioned whether she ought to observe the usuall time of mourning as for her husband it was resolved that she ought 8 Of a Tutor appointed by a name uncertaine D. 26. 2. 30. ONe in his will apointed Titius to be Tutor to his sonne there were at the same time two to wit the Father and the sonne whose names were Titius and it did not appeare which of them was intended by the Testator It was questioned who in point of right ought to be esteemed as Tutor Paulus answered that he ought to be esteemed designed whom the Testator intended but if that did not appeare the right was not wanting but the proofe and therefore neither of them was to be held as Tutor 9 Of a Tutor appointed in case another was not living D. 26. 2. 33. ONe appointed Tutors in this manner I desire that Litius Titius should be Tutor to my son if he be not living then I appoint Gaius Plautius to be his Tutor Lucius Titius out lived the Testator and took upon him the Tutorship and then died Trebatius being consulted whether the Tutorship belong'd to Gaius Plautius held it did not Labeo was of the contrary opinion Proclus concurred with Labeo but I saies Javolenus approve the judgment of Trebatius because the words had relation to the time of the Testators death 10 Of a Tutor altered by error D. 26. 2. 34. ONe who had appointed tutors in his will after wards in a codiciall declared that he named others because he understood the former were dead or might have cause to excuse themselves It was questioned whether they who were named in the will being living at the time of his death and pretending no excuse did not continue Tutors Scaevola answered that as the case was proposed he saw nothing but that they ought to continue 11 Of Senators Sonnes D. 1. 9. 5. 7. MAny priviledges belonging to the sonnes of Senators It was questioned how the sonne of a Senator ought to be accompted whether he whose Father is a Senator or he only who is borne his father being a Senator Vlpian said it made no difference whether he were borne whilest the Father enjoyed the dignity of a Senator or before his Father attained thereto Labeo addes That he who is borne after the death of his Father who was a Senator ought to be reputed a Senators sonne yea although the Father be degraded
That both the causes were to be determined before the Judge that hath Comisance of the greater summe That it be not in the power of a contentious adversary to draw another from his proper Judge Thirdly it was questioned If severall persons claime distinct interests in the same thing as in a Suit to divide a common estate or to set out parts in a common ground Whether to the poynt of Jurisdiction the particular interests shall be considered singly or the whole businesse Ofilius and Proculus were of opinion That the particular interests were considerable because every one sues for his own part But Cassius and Pegasus held that the whole businesse was to be respected because the whole is brought into question and it may fall out that the whole may be adjudged to one particular And Vlpian saies That this opinion is more probable 3 Of alteration of Judges appointed to heare the same cause D. 5. 1. 76. THe case was put Whether the alteration of the persons doe not alter the Judicature or Court As for example a Commission was granted to five persons to heare and determine a cause and the party sued bound himselfe with sureties to performe the judgement of the Court the cause depending some of those Judges dyed or were discharged and others were appointed in their roomes Whether he stands bound to performe the sentence given by the Judges newly appointed and the rest Alfenus answered that the same judicature continued not only if one or two were changed but if the whole number of Judges at severall times were altered and saies it holds not only in this case That the thing continues the same although the parts be changed but in many other bodies For it is held the same Legion or Regiment of Souldiers although many of the first be gone and others recruited in their roomes and the people of a Country are held the same which it was an hundred years since although none of that time remaine And it is the same ship still in reputation although it hath bin so often repair'd that there is not a plank or a bord left into the place of which there hath not been some new piece added Nay saies he If any should suppose That by the alteration of the parts the whole were not the same it would follow by the same reason That we our selves should not be the same men we were some few years since Because as the Philosophers affirme The Atoms or invisible parts of which we are compos'd doe daily wast and spend and others from abroad accrue in their steads and thereupon concludes that were the same species or forme continues the same thing or body still remaines 4 Of Departure out of a Jurisdiction after a Suit commenced D. 2. 1. 19. A young Woman living at Bononia was sued before the Judge of that place and sentence there was given against her Afterwards she was married to a Husband who lived at Mutina out of that jurisdiction It was questioned Whether the Judge of Bononia could put the sentence in execution Vlpian answered That he might because the sentence was given before the Marriage Yea he saies farther That he is of opinion that he might doe as much although she had been married at any time after the cause began to depend before him SECT II. Of Proofes to be made in Ordinary Proceedings 1 Of Proofes lying on the Desendants part D. 22. 3. 12. TItius gave fifty pounds to Gaius in his Will afterwards he gave the same summe to him in a Codicill It is considerable whether he intended to double the Legacy given in the Will or only intended but one fifty pounds and mentioned it in his Codicill not remembring that he had put it downe before in his Will It was questioned On whose part it lay to prove the intention Celsus said At the first sight it seemed reasonable that the Legatary suing should prove his intention to double the Legacy But in truth the proofe sometimes lyes on the defendants part for if one sue another for a debt and he answers that he hath paid it he ought to prove the payment And in this case whereas the Legatary produceth two writings and the heyre affirmes that what is contained in the latter is of no effect it concernes him to prove the same 2 Of proving Mony paid to be Due or not Due D. 22. 3. 25. ONe sued to recover mony as paid unduely to another man and the question grew on whom it rested to prove the mony duely or unduely paid Paulus said The businesse may be thus moderated If he who is charged to have received mony not due unto him denies the receipt and he who charged him proves the receipt without distinction he who denied the receipt if he will be farther heard ought to prove that what he received was due For it were very absurd That he who denied the receipt of the mony after that is proved should require his adversary to prove that it was not due But if at the first he acknowledge that he received such mony the presumption makes for him that it was due Because it is not to be conceived that any man especially a provident and discreet person would throw away his mony or be carelesse what became of it and therefore he who affirmes that the mony paid was not due ought to prove that either by errour and mistake or else by fraud or some probable occasion he was moved to pay the same 3 Of Proofe to be made by him who alleadgeth what is contrary to common reputation D. 22. 3. 15. GAius Seius having Brothers by a Codicill gave them Legacies and Maevius his reputed sonne after his death succeeded him as heyre and paid the Legacies to the Brothers who received them and gave acquittances for the same After-wards the Brothers pretending that they understood he was not sonne to Gaius Seius questioned him for the estate It was somewhat doubted Whether they having under their hands acknowledged the Legacies paid by him as sonne to Gaius Seius ought to be heard against him Modestinus answered That his condition as sonne of Gaius Seius was not confirm'd by the acquittances given for the receipt of the Legacies if the contrary could be proved But Maevius being reputed the sonne of Gaius Seius to prove the contrary lay on the Brothers part 4 Of Monies mentioned to be due in a Letter D. 16. 3. 26. § 2. TItius wrote to Sempronius That he had in his keeping twenty pound belonging to him out of which Sempronius owed him five and five more were due to Titius upon Sempronius his Fathers account It was questioned Whether this writing amounted to an obligation Paulus answered That the writing being declaratory only made no contract but might be of use to prove the mony left in trust in the hands of Titius but whether it were of any force to prove the sums due unto himselfe he saies the Judge out of other circumstances may determine 5 Of
for paiment 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 mony the hazard and losse of the thing lent and what is engaged for it belongs to the Receiver not to the Creditor But when monies are lent upon a Sea voyage It is intended that the Creditor cannot demand any thing unles the ship engaged within the time prefixt for payment arrive safely at the Port appointed and therefore the condition failing in this case the obligation for the principall and consequently for the interest was determined although some of the goods which were engaged for payment were saved in other ships But it may be then demanded In what case might the Creditor have been relieved in respect of those goods It was answered In case the Merchants ship had safely arrived and the goods therein had proved insufficient although that ship after the time appointed for paiment had been cast away 5 Of Interest due although not Demanded D. 44. 7. 23. MAevius the owner of a ship being bound from Genua to Naples borrowed mony of Caius at Genua to be paid at Naples to the servant of Caius on the first of September following and as the manner is covenanted by way of penalty to pay a certain summe weekly for the servants attendance If the mony were not paid at that day The servant at the day appointed receiving part of the mony demanded no more at that time and within a fortnight after demanded the rest It was questioned Whether Maevius were bound to pay according to the Covenant for that time in regard nothing was demanded of him Africanus answered That what was agreed upon by way of penalty was due for that time and it had grown on due still although it had not been at all demanded neither could the payment thereof be avoyded unlesse the mony had been tendered and Maevius in no way faulty that it was not paid Otherwise it might be said That if the servant having begun to demand the mony had afterwards by occasion of sicknesse desisted the penalty were not due SECT III. Of Contribution for losses sustained in Sea voyages and of Fishing c. 1 Of Contribution to be made for Merchants Goods cast over bord D. 14. 2. 2. § 2. MAny Merchants having put divers sorts of commodities abord a ship wherein likewise were diverse passengers a violent storme arising It was found necessary to cast out some mens goods whereupon severall Queries were made as Whether such were bound to contribute to the losse who had no goods of burthen aboard the ship but Pearles jewells and the like and if contribution were due for them in what proportion was it to be made Then whether those who had no goods at all on bord were bound to pay any thing as free-men having their lives saved It was resolved saith Paulus That all ought to contribute whom it concerned to have those goods cast over bord because the goods saved owe that duty towards the goods lost yea the owner ought to be charged in regard of his ship Secondly that the proportion was to be set according to the value of the goods which were cast away but the lives of the passengers being free-men could admit no valuation yet they were to pay for their cloaths their rings and all things else which they carried about them unlesse such as was taken with them to be spent in the ship as Victualls or the like which are exempted because if it fall out that there be want in the voyage they must necessarily be delivered up to be spent in common 2 Of losses sustained by a Ship not liable to Contribution D. 14. 2. 6. A Ship surprized with a violent storme at Sea having her Masts Sailes and Takling burnt with lightning put into Hippo in Africa and there being furnisht with such necessaries as could suddainly be gotten sailed to Hostia and discharged her lading safe and in good condition It was questioned Whether they to whom the ships lading did belong were bound to contribute any thing to the losses of the shippe Julianus answered That they were not bound for the charges were laid out rather to repaire the ship than to preserve the Merchants goods 3 Of Goods in a boat cast away D. 14. 2. 4. A Ship being heavy laden entring into a shallow river or Harbour to avoid danger by easing the ship some goods were put into a boat which was cast away It was questioned Whether the goods in the ship ought to contribute to the losse of those cast away with the boat Callistratus said That they were bound as much as if they had been cast out of the ship into the Sea But if after those goods were put into the boat the ship with her lading had been cast away the goods preserved in the boat should not have contributed to the losses in the ship because contribution is due only when the ship is saved 4 Of Exporting Goods after a time limited for Exportation D. 39. 4. 15. CAesar when he had rented out the Quarries in Creete out of which Whetstones were digged put out a Proclamation wherein he prohibited under penalty of forfeiture that no man except his Farmour should convey any Whetstones out of Creet after the Ides of March A Merchants ship laden with Whetstones before the Ides of March sailed out of the Port of Creet and being brought back with crosse Windes into the same part put out from thence the second time after the Ides of March It was questioned Whether the ship and lading were forfeited because the goods were exported out of the Iland after the time limited Alfenus Varus answered Although what was exported out of the harbour was exported out of the Island yet he that went out of the Iland before the Ides of March being driven back by a tempest into the Harbour and after that time set saile againe ought not to be thought to have incurred the penalty of the Proclamation Because the whetstones were exported out of the Island when the ship the first time put to Sea out of the Harbour 5 Of hindering one to Fish in the Sea D. 47. 10. 13. § 17. l. 14. IF one will not suffer another to Fish or draw a drag-net in a publique Water or streame It was questioned Whether he might not be sued in a cause of Injury Some were of opinion that he might be sued Pomponius said His case was like as if one would not permit another to make use of the common Bath or publique Theater who undoubtedly was liable to an action of Injury It was questioned farther Whether if one did hinder another man from fishing before his house or habitation that were ground for an action of Injury or no For it is certaine that the Sea is common as the aire it selfe to all men and it hath been often resolved that no man ought
Proculus with others his heyrs for the rest of whom it was required that they should make Athaletus his Bond-man free and give him a portion of his goods Athalctus before the Magistrate in presence of Maximilla the daughter affirmed that he could prove that the Will was forged or falsified whereupon Maximilla engaged her selfe to justify that accusation against Proculu and the Scrivenor who wrote the Will The cause coming to hearing nothing appeared wherefore they should be condemned and thereupon it was decreed that the twelfth part given to Maximilla should be returned as forfeited into the publique Treasury It was afterwards questioned Whether Athaletus the Bondman ought to receive any benefit by that Will Scaevola answered That as the case was proposed he might 3 Of the forfeiture of One not to be construed in prejudice of Another D. 32. 1. 27. POmpeius Hermippus made his sonne Hermippus his heyre for nine parts and his daughter Titiana for a third part of his estate and gave to either of them certain grounds by way of Legacies And a oreover his will was that if his sonne Hermippus should dye without children his daughter should have other grounds Afterwards in a Codicill he gave his daughter some other speciall grounds and required her that she should rest her selfe contented with those in lieu of all her part of the inheritance and legacies given in the Will Hermippus the youngers estate was confiscated but Titiana demanded what was bequeathed unto her It was thereupon questioned What the Fathers intention was Whether he would have her relinquish her part of the inheritance only or those things also which her brother was required to leave her at his death if he had no children Paulus was of opinion That she ought to relinquish all But a milder judgement took place which was That she should relinquish only those things which she was to receive during her brothers life not those things which were to come unto her after his death and so the Court decreed 4 Of the Condition of a surety when the Treasury succeeds the Debtor D. 46. 1. 72. VArianius Antoninus procured upon his Letter Aurelius Palma to lend a hundred pounds to Julius Pollio and Julius Rufus who were bound joyntly and severally to pay the whole summe It happened that the estate of Julius Pollio was confiscated to the publique Treasury and Aurelius Palma dying without heyres the publique Treasury likewise succeeded in his estate Vranius being sued by the Officers of the Treasury as having undertaken to Aurelius Palma for the debt Pleaded that he was freed from his engagement to Palma Pollioes and his estate being confounded in one Paulus was of opinion That if there had been but one debtor to wit Julius Pollio the plea had been good there being no doubt but the surety is freed when the principall debtor cannot be sued But when two men are bound severally for payment of the same mony and the Creditor becomes heyre to one of them he saith There is just cause to doubt whether the other debtor be freed or rather by confusion of the obligation the person only of that debtor be exempted And he is of opinion That the Creditor succeeding one of the debtors his person is only freed and the obligation remaines whereupon he concludes That the other debtor continues bound and also he that is engaged on his behalfe But although an action lies against the surety by Law yet in regard Vranius if he receive prejudice by his engagement hath liberty to bring his action against either of those for whom he was engaged If he be sued on behalfe of the Treasury he may except for so much as Julius Pollio his estate was liable to him and leave the Treasury to take course against the other debtor to recover a moyety of the debt if they were partners therein otherwise the whole TITLE V. Of Judicature before the Praetor or Chancellor Iudicature before the Praetor or Chancelor is when Remedies are desired to be afforded which in the ordinary course of Iustice cannot be obtained as 1. In Relieving Minors and Debtors 2. Preventing dangers 3. And decreeing what is agreeable to Equity SECT I. Of Relieving Minors Debtors Reliefe of Minors and others is when restitution is granted against Acts done by them in Minority or drawn by feare or force c. The relief of Debtors is by reducing of Creditors to conformity 1 Of an Act begun in Minority compleated or taking effect in full age D. 4. 4. 3. IF one contract with a Minor and the event thereof falls out whē he is become of full age It was questioned Whether the beginning or end of the businesse ought to be respected Vlpian saies It is resolved That if any one coming to full years approve what is done in his Minority there is no cause why he should be relieved or restored against his own act whereupon he relates That Celsus was consulted by Fulvius Respectus the Praetor in this case A Minor of the age of twenty foure years commenced a suit in a cause of account against his Tutors heyre and the cause depending after he came to the age of twenty five years the Tutors heyre obtained a sentence wherein he was acquitted Against which proceedings and sentence the late Minor sued to be relieved Celsus thereupon advised the Praetor That he ought not easily to be relieved or restored unlesse it were contrived by the cunning of his adversary that he might be acquitted when the other had attained to full age for then the Minor might seeme not only to have been over-reached or deceived the last day when the sentence was given but in the whole course of proceedings which were so projected that the sentence for acquitting him might be given when the young man was of full age 2 Of Restitution against a third Person D. 4. 4. 13. A Minor sold a piece of ground and gave possession thereof and he that bought it sold the same againe to another man It was questioned Whether the Minor might be restored against the buyer in the second place Labeo was of opinion That if the second purchaser knew that it was first sold by a Minor restitution ought to be granted against him but if he were ignorant thereof and the first buyer were of ability to make satisfaction he ought not to be questioned and if the first were not of ability then it was thought reasonable that the Minor might be relieved against the second although he were ignorant 3 Of the Author or occasion of Feare against which one sues to be restored D. 4. 2. 9. BY the Authority of the Praetor one of full years might be restored if by feare or force he had yeelded or agreed to any thing prejudiciall to himselfe Yet Pomponius saies Although the Pretors Edict speaks generally of force and feare It is to be considered from whom the force or by whom the feare was occasioned and therefore if one who was a Prisoner amongst Pyrats
their friend Salvius Julianus a man of dignity concurred with them in that opinion 2 Of restoring a Minor the Tutors having been negligent D. 4. 4. 38. AEMylius Largianus bought a certain piece of ground of Obinius and received in hand some part of the price with this condition That if within foure months the rest of the price were not paid downe the sale should bevoyde Within the foure months Largianus dyed and Rutiliana his daughter being under the age of twelve years succeeded as his heyre Her Tutors neglecting to pay the rest of the price Obinius having oftentimes given them warning and called upon them after a years space sold the same ground to Claudius Telemachus Rutiliana sued to be restored The case being heard by the Praetor she was over ruled and left without reliefe whereupon she appealed to the Emperour who advised with Paulus about her case Paulus told him That it was his opinion that she was justly overruled because the businesse was contracted with her father not with her But the Emperour was otherwise inclined because the time wherein the sale was to become voyd happening after the estate and interest was in her and then by the Tutors negligence the conditions of the sale were not performed Paulus then better considering of the businesse said That he thought indeed she might the better be restored Because Obinius after the day wherein it was agreed that the sale should become voyd had given warning to the Tutors to pay in the remainder of the price by demanding whereof he seemed to recede from that advantage which he had of making the sale voyde besides the cause or condition of making the sale voyd was held no way favourable so that it was resolved and pronounced That she should be restored The Emperour was also the more inclined to her because the Tutors neglecting not only to pay the mony but also to desire restitution on her behalfe seemed to have been consenting to betray her businesse 3 Of a Promise procured by Force D. 4. 2. 9. § 3. WHen the Campanians by force and feare had caused a stranger to promise in writing a great summe unto their Citty The Praetor by the directions of the Emperour Vlpian being his Assessor ordered That if he had performed the promise he should recover what he had paid by way of action if he had not performed it and were sued he should plead that he was constrained by force 4 Of recovering a mans own by force D. 4. 2. § § 13. 13. IF a Debtor be compelled to pay what he owed he shall not be relieved by the Praetors Edict saies Julianus because he is not damnified but he that committed the force shall forfeit the debt To that purpose Marcus the Emperour told Marcianus If you have any cause of suit it had been your best course to have prosecuted it in a Legall way and when Marcianus answered That he had used no violence the Emperour replied you think there is no violence without wounds or blowes It is violence if any man strive against anothers will to take what is due unto him without any judiciall order and thereupon declared That if any one should be proved to have gotten mony or goods from his debtor without his consent and to have acted as a Judge in his own cause he should loose his debt 5 Of Wages due where no fault is in him that was hired D. 19. 2. 19. § 9. ANtonius Aquila a Senator of Rome conditioned with one who was a cunning workman to pay him for his service twenty pounds for one yeare some time of the yeare being spent in the service the Senator died and the heyre refused to pay the wages whereupon the workman complained to the Emperours Antoninus and Severus who returned answer to the Petition That in case as it was related he were ready to have done his service to Aquila and no failing was on his part it was just that he should receive his whole wages unlesse he had been hired and paied for the same time by some other man and so Papinian saies That the Emperours deputy dying in a remote province his Retinue or Attendance ought to have their appointed allowance if they were not entertained for the same time by some other 6 Of Sureties being Liable for no more then they undertooke D. 46. 1. 68. § 1. AVrelius Romulus taking some publique Customes to farme Petronius Thallus and others became bound for him as sureties for the payment of a hundred pounds yearly to the Exchequer Romulus himselfe failing in payment the Officers of the Exchequer seized his goods and sued the sureties both for the principall debt unpaid and for the Interest whereupon they petitioned the Emperour who upon reading of the bond whereby it appeared that they undertook only for a hundred pounds a yeare not for the whole burthen or charge Declared That they were not liable for the interest and Ordered that Romulus his goods should be extended for paiment of the interest and of the principall debt so farre as their value would reach and that the sureties should be held liable only for the remainder as it is practised when goods engaged or pawned are sold for paiment of debts 7 Of a Legacy recoverable from the heyres not payable as was appointed D. 32. 1. 27. § 2. IVlianus Severus made his sonnes Paulus and Julius his heyres in his Will and bequeathed fifty pounds to Cornelius his Nephew and willed that Julius Maurus his Bayliffe should pay the same out of the rents of his grounds due unto him The Officers of the publique Treasury questioning the estate of Julianus Severus and requiring those rents Julius Maurus was compelled to pay them unto them afterwards the heyres of Julianus Severus obtained a sentence for the estate against the Officers of the publique Treasury The Nephew to whom the Legacy was given sued Maurus for the same the Emperour being petitioned declared That the Legacy was not due from Maurus but that it was signified by the Testator whence it might be paid and therefore referred him to recover it against his heyre SECT II. Of Causes Testamentary 1 Of right to Legacies in a Will where the names of the Heyres are blotted out D. 28. 4. 3. MArcellus relates a Case which in his time was debated in the Emperours presence concerning one who having made his Will blotted out the names of his heyres supposing them unworthy in which case the estate after the Testators death became confiscated The question was Whether the Legacies given in that Will ought to be performed Some being of opinion That the Legacies were made voide others That no more was voide but what was expunged and that in a doubtfull case it was the justest and safest way to make a favourable construction He recites the case pleading and sentence given by the Emperour Antoninus The case was thus Valerius Nepos had made his Will and afterwards obliterated the names of those whom he had written
his heyres The Emperour said That the Legataries could pretend no right and told the Advocates of the Treasury That they should remove the cause to the Judges thereof Vivius Zeno being a Legatary in the Will said I beseech your Majesty to heare me patiently What doe you conceive shall become of the Legacies Whereupon the Emperour said Doe you think that he who struck out the names of his heyres would have the Will stand good for Legacies Then Cornelius Priscianus Advocate for Vivius Zeno replied He cancelled only the names of the heyres Then Calphurnius Longinus Advocate for the Treasury Affirmed that there can no Will be good in any part wherein there are no heyres to whom Cornelius Priscillianus answered He did not only bequeath Legacies but gave freedome unto Bondmen The Emperour having heard what was said on both sides commanded the parties and Councell to withdraw and having considered of the businesse willed that they should be againe admitted into his presence and then declared That he held it requisite to make the most favourable construction in that businesse which was That that only should be held voyd which was expunged although he had expunged the name of one Bondman whom he had made free yet he pronounced that he also should be free which it seems he granted in favour of freedome 2 Of an Heyre made in stead of one supposed to be dead D. 28. 5. 92. PActumeius Androsthenes made Pactumeia Magnae daughter to Pactumeius Magnus heyre to his whole estate and in case she should faile and her Father survive her he substituted her father in her place as heyre It happened that Pactumeius Magnus was slain and it being commonly reported That his daughter also was dead Androsthenes altered his Will and made Novius Rufus his heyre premising these words Because I could not be so happy as to have those myne heyres whom I intended Therefore Novius Rufus shall be my heyre Pactumeia Magna petitioned the Emperour to be relieved against that Will and the cause being heard although there was a reason inserted for making Novius Rufus his heyre yet because a false rumor ought not to create a prejudice the Emperour respecting the Will and intention of the Testator thought she was to be relieved and pronounced That the estate or inheritance belonged to Pactumeia Magna but withall that she ought to performe the Legacies given in the latter will even as farre as if she her selfe had been appoynted heyre therein 3 Of an Heyre trusted spending the estate D. 36. 1. 54. CAius made Titius his heyre and requested of him that what should remaine of his estate at the time of Titius his death might be restored to Maevius Titius before his death alienated and spent much of the estate It was questioned whether Maevius might recover any thing by way of satisfaction from Titius his heyre Papinian answered That if it were alienated or spent purposely to diminish the estate which was intended to Maevius he might recover some thing but if that could not be proved He had no cause of action because in matters of trust faire dealing only is required But the Emperour Marcus saies he having the conusance of a cause concerning an estate left in trust in the same manner declared That the exspences pretended to have been made necessary about the estate should not wholly be charged upon it but if the heyre had some other estate of his owne his exspences should be laaid proportionably on that together with the other Which determination of the Emperour Papinian confesseth consisted with Equity and was not without an example For when a Fathers estate was to come into a distribution amongst brothers whereof one being a Souldier had a peculiar estate of his owne which he had gained by his service and demanded allowance for what he had disburst for his proper maintenance The Emperour determined that those disbursements should be charged as well upon his own peculiar as upon his Fathers estate 4 Of the Father wasting an Estate intended to his Sonne D. 36. 1. 54. LVcius Titius made Junius Cerealis his heyre and requested him to confer the estate upon Junius Simonides his Sonne when he should be at his own disposing The Father prodigally wasting the estate complaint was made on behalfe of the sonne to the Emperour Adrian who the matter being proved decreed That the Father should forthwith render up the estate and have nothing to doe with it during his sonnes life for because he had formerly wasted the estate and it did not agree with the respect due from the sonne to the Father to make him put in security to preserve the estate which amongst other persons might have been done the Emperour deprived him of that benefit which was given him by the will yet it was thought proper for the reverence due to the Father from the Sonne that if the Father fell into want the Judge might take order that he should be maintained out of the profits of his Sonnes estate 5 Of compelling one to performe a trust D. 36. 1. 16. § 17. IN the time of the Emperour Antoninus Pius there happened such a case Pamphylus in his will made Theodatus and Evarestus his heyrs and bequeathed his Bondman Hermias to Theodatus and required him when he had taken upon him as heyre to make Hermias free and required of Evarestus when Hermias was free to convey unto him that part of the estate which might come to him as heyre which he had left unto him only in trust for that purpose Theodatus taking upon him as heyre made Hermias free but Evarestus suspecting the estate might prove troublesome refused to take upon him as heyre and to intermeddle therewith whereupon the Emperour being petitioned unto by Hermias gave order to Cassius Dexter the Judge to compell Evarestus to take upon him as heyre and according to the trust to convey the estate unto Hermias 6 Of a Legacy left by way of Confidence D. 31. 1. 66. § 10. ONe in his last Will wrote That he made no doubt but that his Wife would leave unto their children whatsoever she received of his estate It was questioned whether she were bound by those words The Emperour Marcus declared that she was bound as much as if he had given her an especiall charge to that purpose and Papinian saies That the Emperours resolution was very necessary That the confidence of a kind Husband might not prove prejudiciall to the children which ought to be as deare unto the Wife as to himselfe SECT III. Of Reforming or Confirming sentences given by other Judges 1 Of an Examination unduely taken by Torture D. 48. 18. 20. A Husband being heyre to his Wife demanded mony of Surus which he said his Wife in his absence had left in trust with him and to that purpose produced one witnesse and desired the defendants Maid fervant might be examined by torture Surus denied that he received any such Mony and said that his Servant ought not
to be examined in that manner but the Judge examined the Maid as was desired and finding her to agree with the other witnesse condemned Surus who thereupon appealed to the Emperour who being inform'd of the proceedings pronounced That the Maid servant was unduely examined and that credit was not to be given to one witnesse and therefore Surus had just cause to appeale 2 Of a sentence confirmed by the Emperour touching the negotiation of a Factor D. 14. 5. 8. TItianus intrusted his servant with power to lend monies and to take pledges or pawnes and the same fervant did likewise undertake for others who bought Barly and paid for what he undertook when the servant was run away one who had trusted him for the price of some Barly sued the Master the Master pleaded he was not liable because he gave his servant no commission for such businesses but when it was proved that the same servant had provided storehouses for Corne and had paid divers others for the like commodities The President or Judge in such causes gave sentence against the Master The cause being appealed Paulus said that there was a difference betwixt the Servants contracting himselfe and undertaking by way of surety-ship for others and that it was not likely that the Master gave him any such commission and therefore could not be obliged by such his undertakings But because it appeared that he had a generall power to act under and for his Master the Emperour confirmed the sentence 3 Of the heyres of one indebted to the Publique to be sued before those who bought of the estate D. 49. 14. 47. A Woman called Moschis being indebted to the publique Treasury left her estate unto her heyres of whom Faria Sinilla and others bought certain grounds those being sued for the debt and arrears of Moschis pleaded that her heyres were sufficiently able to pay the debt The Emperour thought reasonable that the heyres should first be sued and that what could not be recovered from them should afterwards be raised by those who were in possession of the estate 4 Of a sentence given by combination and corruption of Witnesses D. 42. 1. 33. IVlius Tarentinus presenting his Petition to the Emperour Adrian complained that by the combination of his adversaries with false witnesses corrupted with mony the Judge had been swayed to give sentence against him and besought that he might be relieved or restored against that sentence whereupon the signified his mind to the Praetor in this manner I have given order that the Petition of Julius Tarentinus presented unto me be sent unto you and if he shall make it appeare that he hath been opprest by combination of his adversaries and corruption of witnesses I wish that you severely punish it and if by such ill courses the Judge hath been abused let him be restored against that sentence 5 Of an Advocate compounding for the event of the Suit D. 17. 1. 6. § 7. DAphnis being sued for land which he held and the profits thereof received by him Marius Paulus his Advocate in consideration of mony given became surety that Daphnis should performe the Sentence of the Court and then covenanted with Daphnis That in case he should prevaile in the suit against his adversary that he should convey the fifth part of the land to a friend to his use The Sentence passing against Daphnis Claudius Saturninus the Praetor ordered that Marius Paulus should see the Land restored and pay ten pounds for the profits received and for that contrary to the Law he had contracted for part of the Land to be conveyed upon the event of the suit he suspended him from pleading as an advocate Marius Paulus having an intention to sue Daphnis for what he had been enforced to pay by occasion of his suretiship The Emperour being informed thereof declared that he should have no remedy because he had made an unlawfull contract TITLE VII Of Judicature in Causes Criminall Iudicature in Causes Criminall is when before speciall Iudges appointed to that purpose Offences done against the Publique are Prosecuted for the inflicting of due punishment concerning which Cases and Questions happen 1. Touching the manner of Proceedings 2. Touching the Offences committed 3. Touching the effect of the Proceedings and Sentences SECT I. The manner of Proceedings is in the Discovery Apprehending and tryall of Offendors 1 Of Informations given against Offendors D. 48. 3. 6. THe Emperour Adrian being consulted by Julius Secundus concerning the informations given against Offendors wrote unto him This is not the first time that notice hath been given that too much credit ought not to be had to their advertisements who take upon them to condemne insteed of informing And the directions of Antoninus Pius the Emperour are extant which he publisht when he had the goverment of Asia to this purpose That the Conservators of the Peace when they had apprehended violent Theeves should examine them concerning their Companions and Receivers and that they should send their examinations inclosed and sealed to the President and therefore they who were sent together with the accusations ought to be heard againe although any thing were signified by letters or delivered by the Conservators themselves and so both the same Emperour and others signified concerning those who were detected and ordered to be enquired after That they were not presently to be taken for guilty persons but to be newly proceeded against if there were any who could prove any thing against them And therefore when the Praesident intended to examine the businesse he should appoint the Consertor of the peace to attend and to maintaine what he had informed and if it be found that he had diligently and faithfully discharged his duty he should commend his service but if it were indiscreetly done and upon no good ground he should tax his negligence but if he found that his enquiries were captious to entrap persons or the Testimonies were misreported he should inflict on him some punishment for example sake that he might not presume hereafter to doe the like 2 Of one accused undertaking to accuse another D. 48. 1. 5. IF one stand accused it concernes him to clear himselfe neither can he be admitted to accuse others before he himselfe be acquitted For so it is ordained by the Imperiall Constitutions that parties accused clear themselves by shewing their own innocence not by charging crimes on other men But this saith Vlpian is questionable whether he only may accuse another who is acquitted or whether he also who hath undergone the punishment due for his fault in regard the Emperours have declared that after one is condemned he may not undertake to maintain an accusation but he is of opinion That that is meant of such as are condemned to slavery or banishment 3 Of one being accused of what he was once acquited D. 48. 2. 7. § 2. THe Emperour Antoninus Pius signified to Salvius Valens that the President ought not to suffer one to be accused of a