substituted by the Father to a Son which was dumb who afterwards had a childe 121 5 Of one substituted to the survivor of two which both dye at the same time 122 6 Of a substitution upō severall contingencies 123 SECT 3. Of Devising in trust c. 1 Of an estate intended to one in trust descending to his heyre 124 2 of maintenance lest in trust to be raised out of interest 125 3 of an heyre in two Wills taking upon him by the latter which was voyd in law 126 4 of cancelling one copy of a Will whereof there were more remaining 126 TIT. VI. Of Legacies SECT 1. Of a Reall Legacy 1 of a Bondman bequeathed doubtfull between two to be understood common to both 128 2 of Error in designing of bondmē bequeathed 129 3 of a flock of sheep or the like bequeathed 130 4 of a groūd bequeathed enlarged or diminisht 130 5 of a ground bequeathed there being two of the same name of different values 131 6 of a third part of goods bequeathed 131 7 of Jewells bequeathed afterwards altered 132 8 of three hundred pounds bequeathed with two hundred pounds deposited 132 9 of a Legacy designed in summes afterwards spent 133 10 of a Legacy given to a Wife of as much as to one of the heyres who had different summes 133 11 of a Legacy of what came unto the Testator out of another mans estate 134 12 of the same thing twice bequeathed to the same person 134 13 of the same Legacy given in severall Wills 136 14 of Legacies given contrary to a former declaration in the Will 137 SECT 2. Of Legacies consisting in Right 1 of Freedome bequeathed to two Bondmē if they remained with the Testator at his death 138 2 of the choyce of two things of severall names given there being two of one name of severall values 139 3 of the choyce of a Legacy not to be varied 139 4 of a Legacy of Bonds to be understood as when the Will was made 140 5 of a debt remitted by way of Legacy 141 6 of an annuall payment to a Citty 141 7 of an yearly Legacy to officers of a Church 142 8 of an yearly Legacy given to uses afterwards disallowed 142 9 of a Legacy given to uses no summe being exprest 143 10 of something in one ground being given to be imployed in another 143 11 of a desire that a thing bequeathed be not alienated to a stranger 144 SECT 3. Of Legacies in Trust 1 of a Legacy left in trust paid before the time appoynted 145 2 of Persons to whom a trust was intended to be understood in order as they are named 146 3 of a Legacy given for thirty years not to be determined by death of him to whom it was given 147 4 of a Legacy given to one at the age of fourteen being voyd if he died before 147 5 of a Legacy to be paid to a Girle upon Marriage not to be paid before she be twelve years old 148 6 of a Legacy given to one who fell dangerously sick transferred to another 148 7 of a Legacy given to or taken from an uncertain Person 149 TITLE VII Of Performance and Payment SECT 1. Of Reall Performance and Payment 1 Of Performance of some thing uncertain 151 2 Of Perform of some thing or value thereof 151 3 Of restoring what was borrowed when the value thereof is mutable 151 4 Of a Bond-servant promised in one place or ten pounds in another 152 5 Of the effect or construction of payment when one paies a sum due in severall respects 153 SECT 2. Of Legall performance or Payment 1 Of mony due tendered within a short time after it was agreed to be paid 155 2 Of Delay made after a tender of mony due 156 3 Of mony due tendered to the disadvantage of the Creditor 156 4 Of debts remitted in case the creditor dye 157 5 Of debts discharged by way of Legacy 157 6 Of a generall discharge by way of Legacy 158 7 Of a Personall discharge declared in a Will 159 SECT 3. Of Reputed Performance or Payment 1 Of Monies received to another mans use and lost without imployment 160 2 Of goods lost by one who was fairely possest of the estate 161 3 Of things perishing in one mans possession which might have perished in the possession of the true owner 162 4 Of hazard of monies due lost after a tēder 162 5 Of the like case 163 6 Of the hazard of losse where one thing or another is promised 163 7 Of a thing undertaken to be performed which afterwards ceases to be in commerce 164 PART II. TITLE I. Of Common and Ordinary Judicature SECT 1. Concerning Persons c. 1 Of a Minor proceeding as a Judge 167 2 of Judges having jurisdiction in causes of a certain value or summe 168 3 of alteration of Judges appoynted to heare the same cause 169 4 of Departure out of a Jurisdiction after a suit commenced 170 SECT 2. Of Proofes c. 1 of proofes lying on the Defendants part 171 2 of proving mony paid to be due or not due 172 3 of proofe to be made by him who alleadgeth what is contrary to common reputation 172 4 of monies mentioned to be due by one in his letter 173 5 of proofe contrary to a writing cancelled 174 6 of proving a thing beyond memory 174 7 of proofe by one Witnesse 175 SECT 3. Of Sentences given in ordinary causes 1 of Judges dissenting in their sentences 176 2 of divers persons cōdemn'd in the same sum 176 3 of a Sentence given betwixt two not prejudicing a third party 177 TIT. II. Of Arbitrement SECT 1. Touching the Power of Arbitrators in generall 1 of a Reference made with power to assume an Umpier 179 2 of all differences referred whereof some are omitted in the relation 180 3 of a Compromise of all matters to be determined at the same time 180 4 of a third Arbitrator absent 181 5 of different judgements given by Arbitrators 181 6 of an Award given and the parties not required to observe it 182 SECT 2. Concerning Borderers and Partners 1 of two owners of one ground in commō one of thē being sole owner of the next adjoyning 183 2 Of a Tree growing upon two severall grounds coming to be divided 184 3 Of goods given by a common servant 184 4 Of charges laid out to improve a common ground desired to be divided 185 5 Of a common ground to be divided whereof one mans interest is pawn'd the other sold 186 SECT 3. Concerning Co-heyres 1 Of compensation in recompence of things of unequall value divided 187 2 Of charges bestowed by a Father on his Sonne in the way of Learning 188 3 Of a Sonnes portion pawn'd in his Fathers life time 188 4 Of a ground wherein were Monuments of ancestors desired to be divided 189 5 Of Brothers agreeing to a division without the Arbitrators consent 190 TIT. III. Of Maritime Judicature SECT 1. Of shipps and
not to be conferred upon them Scaevola answered That it was cleare that the Testator meant in the first place that his Brother should be his sole heyre and therefore it cannot be thought that he would have any man joyne or share with him Besides he provided so that in case his Brother should take upon him to be his heyre the substitution of Stichus and Pamphylus should not take effect as likewise it should not if before he had taken upon him to be heyre he had dyed leaving children behind him For it was the prudent care of the Testator so to provide that not only his brother but also his brothers children should be preferred in the inheriting the estate before his Substitutes SECT III. Of Devising in Trust Devising in Trust is when one is made Heyre to anothers use and trusted with the estate after some time to be conveyed unto him 1 Of an Estate intended to one in trust descending to his Heyre D. 36. 1. 46. SEius Saturninus Admirall of the Brittish Navie in his Will made Valerius Maximus Captaine of a Sally his heyre in trust requiring him to convey over the estate unto Seius Oceanus his Sonne when he should attaine to the age of seaventeen years Seius Oceanus dyed before he attained to that age After his death Mallius Seneca who was his Unkle as being next of kin demanded the estate Valerius Maximus detained the same conceiving that Seius Oceanus being dead before he had accomplish'd the age at which the estate by the Will of Saturninus was to be conveyed unto him he was not bound to restore it to any other Javolenus being consulted thereupon resolved That the estate left in trust for the good of Oceanus belonged to him to whom the other goods of Oceanus after his death were due and appertained Because for the nearnes of Oceanus his relation to his Father it might be presumed that the estate was intended simply or purely not upon condition if he should live so long and that the time of performance being prorogued to his age of seaventeen years the estate in the mean time was rather committed to the tuition of Valerius Maximus then left unto his Sonne upon an uncertain condition whereby his intention might be made void 2 Of Maintenance left in Trust to be raised out of Interest D. 36. 1. 78. § 12. CLodius requested his Heyres to restore to his Foster-child Gaius Maevius whatsoever should be raised by selling the third part of his estate when he should be fully fifteen years old and in the mean time they were desired to maintaine him out of the profits or Interest of the Mony The charges of his maintenance not rising to so much as the profits or interest of the money It was questioned Whether the surplusage were due unto Gaius Maevius when he came to the age of fifteen years Scaevola answered That it was his opinion The Testator intended the whole benefit or profits of his portion should come unto him 3 Of an Heyre in two Willes taking upon him from the latter which was voyd in Law D. 29. 2. 97. CLodius Clodianus having made a Will legally and therein appointed Sempronius to be his heyre did afterwards likewise nominate him his heyre in a Will which was not made according to Law Sempronius conceiving that the latter will was good took upon him as heyre by vertue of that Will which afterwards was found to be invalide the estate growing into question Papinian was of opinion that Sempronius had renounced the benefit of the former Will and had no right by the latter Paulus maintained the contrary That he which conceived the latter Will to be good did not renounce the benefit of the former 4 Of cancelling one coppy of a Will whereof there are more remaining D. 28. 4. 4. ONe who had compleatly made his will caused severall coppies thereof to be transcribed and to be laid up in the publique Office where Wills are kept afterwards he took from thence one of the coppies and cancelled it It was questioned Whether he had revok'd his will Papinian was of opinion That his Will being conteyned and appearing entirely in another coppy remaining in the Office it was not revok'd or made voide Paulus admitts that it might be done with a purpose to dye without a Will but they who were to succeed in that case and carry away the estate from the written heyres ought to prove that he had such a purpose TITLE VI. Of Legacies and of a Reall Legacy A Legacy is something due as given or bequeathed to one in the last Will or Testament of another and is either a Reall Legacy or a Legacy consisting in Right or a Legacy in Trust SECT I. A Reall Legacy is that which consists in some certain species or body as a thing moveable viz. a Bond-servant a Horse c. or immoveable as a House or ground c. or which is determin'd by quantity viz. by measure weight and number as mony corne wine c. 1 Of a Bondman Bequeathed doubtfull between two to be understood common to both D. 30. 1. 36. LVcius having divers Bondmen whereof some were so borne others bought and of either sort some were Weavers gave to Titia all the Weavers whom he had not given to any other in his will and to Plotia all his Bondmen borne whom he had not given to any else It was questioned to whom those did belong who were both Bondmen borne and likewise Weavers Labeo saies Because it cannot appeare which Weavers were not given to Titia unlesse it be known which were bequeathed to Plotia nor doth it appeare what Bond-men borne were given to Plotia The Bondmen borne who were likewise Weavers were excepted from neither Legacy and therefore they ought to be common to both for in this case it is all one as if there had been no exception But if he had bequeathed in this manner I give to Titia all my Weavers except my Bond-men borne and to Plotia all my Bond-men borne except my Weavers They which were both Bond-men borne and Weavers had been given to neither of them 2 Of Error in the designing of Bond-men bequeathed D. 34. 5. 28. SEmpronius had two Bond-men one called Flaccus a Fuller and the other Philonicus a Baker in his Will he bequeathed to Lucius his Bondman Flaccus the Baker It was questioned Whether of the Bondmen were due Javolenus saies It must be granted That that Bond-man is due whom the Testator intended but if that cannot appeare it is to be considered Whether the Testator did well know the names of his Bondmen and if he did that then he was due whom he mentioned by his proper name although he erred in his profession and if he were not well acquainted with their names then the Baker was understood to be bequeathed as if he had mentioned his profession only without his name 3 Of a flock of Sheepe or the like bequeathed D. 30. 1. 21. 22. IF one bequeath his flock
him to his or her kindred or to some of their freed men It was questioned Whether the Husbands Children failing he might make choyce to whom amongst his or her Kindred or Freed-men he would bestow these grounds Papinian answered That it did not belong to him to make choyce but that he ought to have respect unto the persons according to the order wherein they were mentioned in her request 3 Of a Legacy given for Thirty years not to be determined by death of him to whom it was given D. 33. 1. 18. LVcius Titius made Sempronius his heyre and gave a ground worth twenty pounds yearly to Maevius and willed that he should pay to Sempronivs yearly five pounds from the time of his the Testators death untill Thirty years were expired Sempronius dying after ten years It was questioned whether the five pounds yearly ought to be paid for the remainder of the time to the heyres of Sempronius Scaevola answered That it ought to be paid unto them unlesse Maevius could make it appeare that the Testator had relation to thirty years only in case Sempronius should live so long 4 Of a Legacy given to one at the age of fourteen being voyd if dyed before D. 36. 2. 22. A Legacy was given to Titius when he should be of the age of fourteen years he dyed before that age It was questioned whether the Legacy were due unto his heyres When that time was come Pomponius answered That no right past unto the heyres by his death because the Legacy depended not only upon a time but it was uncertaine whether that time should happen whereby the Legacy became conditionall as if he had said If he shall live to the age of foureteene and he that ceases to be can never be said to be of that age neither is there any difference whether it be said If he attaine or when he attains to such an age in regard the former by way of condition declares the time the other by a time makes a condition in both words a condition is implyed 5 Of a Legacy to be paid upon Marriage not to be paid before she be Twelve years old D. 39. 2. 30. ONe gave a Legacy to his Niece to be paid unto her as soone as she should be Married the Niece made a shift to get a Husband before she was twelve years old and demanded her Legacy Labeo said That the heyre might hold his hands untill she was past her Pupillage because She could not be held to be married whom the Law did not hold fit to have an husband 6 Of a Legacy given to one who fell dangerously sick transferr'd to another D. 34. 4. 31. § 4. CAecilia in her last Will gave a portion to Priscillianus her sonne and afterwards understanding that he was extreamly sick and not likely to outlive her declared That in consideration thereof she thought fit that what she had given unto her sonne Priscillianus should be divided betwixt her Husband Januarius and her sonne Marcianus she being dead and her Will publish'd Priscillianus was still alive yet dyed not long after It was questioned Whether the portion were due to the Father in Law and the Brother or to the heyre of Priscillianus Scaevola answered That he was of opinion that if he dyed of the same sicknesse or infirmity it was due to them Whence it is gathered that if he had recovered and dyed of another sicknesse it had been due unto the heyre of the sonne 7 Of a Legacy given to or taken from an uncertain Person D. 34. 4. 3. § 7. SEmpronius having two friends whose names were Titius In his will gave a House to Titius and a Ground to Titius Afterwards in that same Will he declared That what he had given to Titius should not be performed Vlpian saies If it doth not appeare whose Legacy he would make voyde both remaine good as if one having given a Legacy to Titius when there be two of that name if it doth not appeare whom he intended it is due to neither TITLE VII Of Performance and paiment and of Reall Performance Performance and Payment are the means whereby one is discharged or freed from what he was obliged or bound unto and is either Reall Legall or Reputed SECT I. Reall performance is when the very thing which was due is Really performed or paid 1 Of Performance of something which is uncertaine D. 45. 1. 106. HE who covenants to have a ground by such a name when there be divers grounds of the same name without any other note of distinction to be given unto him covenants for a thing uncertain saies Javolenus That is for such a ground as he who made the promise shall think fit to give and it remaines in his discretion which he will give untill that which he intended be delivered 2 Of Performance of something or the value thereof D. 23. 3. 10. § 6. IF some things or goods be given in Dower and an estimation of the value thereof be made and it be afterwards agreed that if the Marriage happen to be dissolved the things or goods themselves or the valew of them shall be restored Vlpian saies If it be added Which the Woman shall choose it shall be in her power to make choyce either of the goods or of the value or if it be said As the Husband shall like it shall be at his choyce which he will restore but if nothing be added concerning the choyce yet it shall be in the Husbands power to restore the one or the other For when one thing or another is promised it is in the debtors discretion which he will make good but if the things or goods be not extant then the value without all question ought to be restored 3 Of Restoring what was borrowed when the value thereof is mutable D. 12. 1. 22. ONe lent unto another twenty Hogsheads of Candy Wine to have as many repaid which being not done or performed a sute was commenced for the same The value or price of those Wines being mutable It was questioned At what value the Wines to be restored ought to be estimated whether according to that which was the value when they were delivered or that which was the value when they were sued for or that which might be when they should be adjudged Sabinus answered That if there were a time appointed for the repaiment of those Wines the value was due according to that time but if there were no time appointed the value was to be allowed as it was when the Wines were sued for The like was questioned If the value or price were different in respect of severall places And it was likewise resolved That if any place were agreed on the value of that place was due but if no place were assigned the value ought to be paid which was currant in the place where the Wines were demanded 4 Of one who promised to give a Bond-servant in one Place or to pay Ten pounds in another D. 13.
CASES AND QVESTIONS Resolved in the CIVIL-LAW Collected by R. ZOUCH Professor of the CIVIL-LAW in OXFORD OXFORD Printed by LEON LICHFIELD for THO. ROBINSON A. D. 1652. To the Reader THese Cases and Questions being Collected and intended to be published in the proper language of the Civill-Law for the use of Students in that Profession the Author was perswaded to publish them in English that others also might discerne that the study of that learning conduceth to the knowledge of some things worthy of consideration It is true that much herein may appear forraigne in respect of the conditions of persons and things with us as the quality of Slaves or Bondmen the compleating of full age at the end of twenty five years and the like But the causes of doubts thereupon and the reasons of the Resolutions well considered may be applied to matters usuall and currant amongst us Some Resolutions likewise may seem to be grounded only upon the Authors opinions and being compared with the Rules of Law and other authorities may be controverted but those were intended only for some discovery and illustration concerning which such as will make farther inquiry into the like cases may receive better satisfaction what is now offered being but an Essay and is extracted only out of the Text of the Digests The figures doe shew the Book the Title the Law and sometimes the Paragraphs whence the matters are taken And it is with hope of a good construction left to the acceptance of your discretion Alban Hall in OXFORD June the 10. 1652. ERRATA P. 74. l. 29. two acres two hundred p. 95. l. 32. like little p. 56. l. ult p. 57. l. 2. Maevius Sevius p. 117. Sally Gally p. 165. l. 14. or ar p. 191. l. 2. Maritine Maritime p. 222. l. 1. ought ought not 244. l. 16. the He. Cases and Questions of Right and Judicature resolved in the CIVIL-LAW The First Part. Cases and Questions of Right concerning TIT. 1 THE State or Conditions of Persons TIT. 2 The Title to Lands or Goods TIT. 3 Debts TIT. 4 Penalties TIT. 5 Inheritances Testamentary TIT. 6 Legacies TIT. 7 Performance and Payment The Second Part. Cases and Questions of Judicature concerning TIT. 1 Ordinary Iudicature TIT. 2 Arbitrement TIT. 3 Iudicature of the Admiralty TIT. 4 Iudicature of the Treasury TIT. 5 Iudicature of the Praetor or Chancellor TIT. 6 Iudicature of the Prince or Emperour TIT. 7 Iudicature Criminall TITLE I. Of the State and Condition of Persons SECT I. Of the Common State or Condition of Persons 1 OF a Child born in the seaventh month 1 2 Of divers Childrē born at the same time 2 3 Of a Male child born before a Female 2 4 Of an Hermaphrodite 3 5 Of the computing of age 3 6 Of a Father and a Sonne perishing together 4 SECT II. Of the Speciall State or Condition of Persons 1 Of Freedome bequeathed in the second year after the Testators death 5 2 Of Freedome bequeathed in consideration of service to be done 6 3 Of persons free-borne 7 4 Of a Citty or Corporation 7 5 Of one returned out of Captivity 8 6 Of one delivered up to the enemies 9 7 Of Marriage accomplisht 9 8 Of a Tutor appointed by a name uncertain 10 9 Of a Tutor appointed in case another were not living 10 10 Of a Tutor altered by Errour 11 11 Of Senators Sonnes 11 12 Of Senators Wives and Daughters 12 13 Of a Proconsul naming a Deputy before he enters into his Province 12 SECT III. Of the Reputed State or Condition of Persons 1 Of freedome enjoyed by Will which afterwards proved voyd 14 2 Of persons cohabiting as Man and Wife 15 3 Of a Child borne in Wedlock 15 4 Of a Minor upon view allowed to be of full age 16 5 Of one who was compelled to take upon him instead of a Tutor 16 6 Of a Magistrate promoted by Errour 17 7 Of Rich men to be preferred before others to office of dignity 11 8 Of honest men not to be removed from their charge in respect of poverty 19 9 Of infamy arising from punishment 19 10 Of a mans testimony rejected 20 TIT. 2. Of title to Goods and Land SECT 1. Of Common Right or Property 1 Of a Wild Beast chaced and wounded 21 2 Of a Wild Beast taken in a net 22 3 Of Pigges recovered from a Wolfe 23 4 Of a thing stolen afterwards lawfully bought 24 5 Of things composed by one of another mans materialls 24 6 Of an Island newly arising in a river 25 7 Of ground where a River leaves its channell 26 8 Of mony given to the end that he who received it should buy something therewith 27 9 Of monies lent to be given to another 27 10 Of monies given to one to the end it should be given to another in the donors name 28 11 Of something which the owner gave consent to be digged up out of his ground 28 12 Of a guift of grant to dwell in some house or lodging 29 13 Of a guift given by way of reward 29 14 Of a guift of a thing morgaged to another before delivery 30 15 Of a guift voidable by the death of the donee before the donor both happening to dye at the same time 31 16 Of goods delivered in reference to a dower 31 17 Of a dower given upon condition that part thereof be repaied to children 32 18 Of a covenant disposing the dower in case the Mother should happen to dye before her child or the child before the Mother 33 SECT 2. Of speciall Right or Commodity 1 Of the use and profits of a thing given to a Corporation 34 2 Of Rent due for profits formerly received 35 3 Of the profits of a Park or Warren 36 4 Of Profits and property consolidated 36 5 Of a Way or Passage granted indistinctly 37 6 Of a Way tacitly reserved 38 7 Of Service retained by parts 38 8 Of Service recovered after necessary disuse 39 9 Of a Service not to fish in the Sea 39 10 Of the usage of some not profiting others 40 SECT 3. Of Renued Right or Possession 1 Of Possession taken by Error 41 2 Of Possession retained of a thing hidden 42 3 Of fruits belonging to the possessor where they are severed from the ground 43 4 Of charges laid out usefully by one in possession 44 5 Of windowes and doores set up in another mans house 44 6 Of one that sold another mans house becomning heire to the true owner 45 7 Of a Monument built by one who was in possession of the estate 45 TITLE III. SECT 1. Of Debt and of common Contracts 1 Of a House burnt at the same time when it was bought and sold 46 2 Of a Poole bought with ten foot about it 47 3 Of a Ground sold to be measured within thirty daies 48 4 Of Trees blown downe after the view before the sale 49 5 Of Stone-quarries reserved in a ground sold 49 6 Of Lands sold disposed
Because nature doth not suffer two infants at the same time to be delivered out of the Mothers Wombe so that it might be discovered which was borne in the time of her servitude and which afterward in the time of her freedome shee her selfe becomming free as soon as the third child was borne Vlpian saies 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 Lawe 3 Of a Male child borne before a Female D. 34. 5. 10. 11. FReedome 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 Vlpian answered That if it were certaine that the male child was first borne there was no further question to be made either of the Mothers freedome 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 doubtfull which was first borne and that doubt cannot be cleared by proofe he saies 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 saies Papinean the condition of a Woman is inferior to the condition of a Man Whereupon Vlpian saies It was questioned to whether sex an Hermophrodite was to be referred and he addes 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 compleated the age of fourteen years Whereupon it was question'd whether it were requisite that he should have past his fourteenth yeare 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 yeare of his age whether the will were good in regard the whole day was not spent and therefore the yeare was not fully compleat Vlpian 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 yeare at that houre having attained to the last day he might be said to have compleated his fourteenth yeare He resolves the same in the case of making a bondman free which none could doe but he which had compleated the age of twenty years which are held compleat 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 yeare 6 Of a Father and a Sonne perishing together D. 34. 5. 8. §. 1. WHen a Father together with his sonne perished in the Warres and the Father dying the Mother of the sonne supposing him to have dyed after his Father claymed the estate as deriv'd from the sonne unto her and the male kindred of the Father as heirs to him supposing he survived interposed for the same The Emperour Hadrian resolved that the father dyed first and Tryphoninus agrees unto it if the sonne were past a child If Lucius Titius saies he together with his sonne above the age of fourteen years whom in his will he had made his heire dyed together It is understood the Sonne survived the Father and was his heire so that his inheritance is transferred to his successors But saies he if the sonne were under the age of fourteen years the Father is held to out-live the Sonne unlesse the contrary be proved SECT II. Of the speciall state or condition of persons The speciall state or condition of persons is that which hath relation to the Civill Law or Law of the Country either of private persons as of Freemen Cittizens married people Tutors Curators c. Or of publique place as Senators Magistrates Officers and the like 1 Of Freedome bequeathed in the second yeare 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 yeare after my death It was questioned what time of the second yeare was considerable in this case Pomponius answered that it was most probable that the Testator intended at the beginning of the yeare there is much difference betwixt these words In the second yeare and After the second yeare for we are wont to call it the second yeare when any part of the yeare is come or past so that he that is appointed to be free in the second yeare is appointed to be free in all the daies of the second yeare in which opinion agrees that of Labeo who saies If freedome be bequeathed in these words I will that Stichus be free within a yeare after my death he shall be free presently after his death for he saies if he shall will that his bondman shall be free if he give ten pounds to his heire within ten years if he pay it presently he shall be free without any further delay 2 Of freedome be queathed in consideration of service to be done D. 4. 4. 44. MAevia bing ready to dye made her bond-man 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 turnes light tapers in my monument and performe the rites belonging to my corps When Saccus Eutichia and Hirene had failed in their due attendance as was appointed It was question'd whether they might enjoy their freedome Modestinus answered that it could not stand with Maevius meaning nor was it implyed in her words that their being free should depend upon their attendance that being a duty to bee done by free persons and that it was rather a consideration why she made them free then a condition whereby their freedome should be suspended howsoever it was proper for the Judge or Magistrate to compell them to performe that duty which the testatrix had enjoyned 3 Of persons Free-borne 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
of small summes contracted new debts by bond for greater summes so that almost the whole estate was reduced into twenty bonds It was questioned Whether he might make choyce of those twenty bonds Scaevola answered He ought to make choyce 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 heyre 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 mony 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 Annuall payment to a City D. 33. 1. 6. MAevius by his last Will gave an Annuall summe of mony to the City where he dwelt to maintaine yearly some publique exercises which he would have ordered by his heyres his heyres dying their successors refusing to pay the annuall summe because the heyres were dead who were appointed to order the publique exercises It was thereupon questioned Whether in regard he had mentioned his heyres to that purpose it was his meaning the Legacy should be temporary during their lives or perpetuall to continue after their deaths Modestinus answered The Legacy was perpetuall 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 faire to be kept yearly neere her house in a ground belonging to it charged her Heyres after her death to pay out of the rents of that house and the profits arising by the fayre ten shillings every fayre 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 fayre 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 Citty where he dwelt ten pounds yearly to be raised out of the rents of certain houses for the setting forth of some publique shews 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 heyres of him who gave the same and therefore the Magistrates of the City together with the heyres 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 summe being exprest 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 farre as to the High-way leading to Aurelia It was questioned Whether the Legacy were good no summe being named or set downe Juventius Celsus answered That the words were something imperfect because no summe was set downe yet it might be gathered that so much was intended as was sufficient to doe the worke If the Testators mind be not understood otherwise in respect of the smallnes 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 imployed in another D. 33. 1. 12. GAius Seius having two Meadows one in a Village called Pontia the other in a Hamlet caled 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 Meadowe in Pontia to be bestowed and imployed in the meadowe of Lucia Maevia who had the meadowes in Pontia for some years allowed the Reed and the Sallowes to Seia who had the meadowe 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 personall for the party to pay during her life nor reall 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 ranke desired or left order in his Will That neither his house nor his Garden in the Suburbs should be sold or alienated by his heyre which was his own daughter who left her daughter and the Testators Grand-child her heyre 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 Unkle Scaevola answered That the provision in the Will being no more then 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 Payd 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 daies after demanded the mony and receiving it wasted it foolishly and then dyed It was questioned Whether the heyre 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 Trustees 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 then he was bound to doe 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
to be prohibited for taking fish in the Sea no more then from taking Foule when he is in another mans ground although he be forbidden to come there yet it is received by common use and practice saies Vlpian although grounded upon no Law that a man may hinder another from fishing before his house or land wherefore the use and practice being unreasonable if a man be so hindered he may bring his action of Injury but if a man have a private right to a part or Creek of the Sea it is otherwise and he may have an Injunction to maintaine his possession TITLE IV. Of Judicature concerning the Publique Treasury Iudicature concerning the Publique Treasury is concerning such goods which belong to the publique Revenues 1. Originally 2. Or happening from Escheats and forfeitures 3. Or derived from such Forfeitures and Escheats SECT I. Goods Originally belonging to the Treasury are such Lands and Revenues as anciently appertained to the Prince or Common-wealth 1 Of Rescinding a Sale made on behalfe of the Treasury D. 18. 5. 9. LVcius Titius being indebted to the publique Treasury the Officers thereof entred upon a ground of his as forfeited and sold the same for lesse than the debt amounted unto whereupon he repairing to the President and offering himselfe ready to pay what was due to the publique Treasury the President declared that the sale should be made voyde and decreed the ground to be restored to Lucius Titius It was questioned Whether upon the Presidents declaration and decree Lucius Titius ought to be held possest of the ground Scaevola answered Not untill the Treasury were satisfied for the debt and he who bought the ground had his mony repaid 2 Of Publique grounds hired let out to others D. 49. 14. 47. AEMylius Ptolemeus hyred certain grounds belonging to the publique Revenues and after-wards let out the same by parcells for a greater value He being questioned by the Officers of the Revenue for what he received Paulus said It was unjust and might prove prejudiciall to the Treasury if the immediat Tenant should run the hazard of recovery from the under-tenants and be forc't to pay more than what he had agreed for and thereupon it was resolved that he should be sued for no more then what he had agreed for 3 Of the Profits of publique grounds sold arising within a time limited for more to be offered D. 49. 14. 50. VAlerius Patronius Surveyer of the publique Revenues proposed the sale of some grounds to Stalticius at a certain price if within three months more were not offered for thē within that time a greater summe being offered Stalticius made it good It was questioned to whom the fruits profits received in the mean time did belong Patronius insisting upon it that they belonged to the publique Revenue Paulus said That it was certaine if they were received betwixt the first proposall and the second offer they belonged unto the seller and therefore to the Revenue and it made no difference that it was the same man to whom the first proposall of sale was made and who afterwards gave the price as it was advanced But in regard both those businesses happened before the vintage the case seemed to be altered and it was held that the fruits and profits belonged unto the buyer Papinian and Messius raised another opinion Because the grounds were let unto a Tenant and it was hard to take from him the fruits and profits before his time was exspired and therefore they held that the Tenant should receive the profits and the purchaser have the rent for that yeare least the treasury should be liable to give him satisfaction in regard he did not enjoy what he had contracted for Whereupon it was declared That if the grounds were occupied by servants of the Treasury they should all accrue unto the purchaser but if by Tenants he should receive the rent Tryphoninus started a farther doubt to wit What should become of the dry profits as haply corne or hay which might be received before the sale was perfected And it was likewise resolved That if the day for payment of the rent happened not before the purchaser should receive the rent in lieu of those profits also SECT II. Of Estates liable to Escheats and Forfeitures 1 Of one who received mony out of the Estate informing against the Heyre D. 29. 5. 26. GAius Seius was indebted to Titius in the summe of a hundred pounds which was given to him by his Brothers Will which he afterwards received of the heyres of Gaius Seius and understanding that those heyres had not prosecuted the authors of Gaius Seius his death he informed against them to make the estate forfeited to the publique Treasury It was questioned Whether he having received a hundred pounds out of the estate might be admitted to informe Seaevola answered As the case was proposed he saw nothing but that he might 2 Of Prosecuting a Forfeiture after the death of the Delinquent D. 29. 14. 48. § 7. IF the heyre did not prosecute the authors of the Testators death the estate was confiscable to the publique Treasury Gaius Seius languishing with sicknesse complained that he was poysoned by a Bondman and so died Lucia Titia his sister who was his heyre neglected to prosecute the Bond-man and she her selfe living ten years after then dyed she being dead an informer made discovery of the estate as forfeited It was questioned Whether the offence died not with her Paulus answered That the penalty not being corporall but pecuniary it was not extinguisht by the death of the unworthy heyre 3 Of the like D. 46. 14. 9. LVtius Titius made his sister his heyre of some part of his estate and his Wife of the rest The sister accused the Wife for poysoning her Husband Before the cause came to hearing the Wife died It was questioned Whether the party accused being dead the cause might be proceeded in as concerning the estate which she had gained Modestinus answered Although the criminall cause was determined by the death of the party yet the Officer of the publique Treasury might prosecute and prove the goods wickedly gotten to be forfeited to the Common-wealth SECT III. Of Estates questionable after Forfeitures and Escheats 1 Of an Estate after death not due upon Condemnation D. 49. 14. 9. LVcius made his mother his heyre and desired her when she died to leave his estate to Cornelius Faelix the mother for some crime being condemned the Officers of the Treasury seized her whole estate Cornelius Faelix interposing pleaded that his right was to take place before the Treasury because the Law admits so much but it was not granted because no right was to accrew unto him untill after her death and therefore in the mean time he was to be debarred 2 Of an Estate forfeited for a false accusation and the first Mover freed D. 48. 10. 24. CAllimachus in his Will made Maximilla his daughter his heyre for one twelfth part of his estate and
crime of which he had formerly been acquitted But Vlpian saies It is considerable whether it be intended of the same accuser or of another and he is of opinion That in regard a judgement past betwixt some makes no prejudice to others If one who appears as a fresh accuser prosecutes a cause wherein he hath an interest and can prove that he had no notice of the former proceedings out of some weighty reason he may be admitted 4 Of the same accuser of another crime D. 48. 2. 7. § 3. HE who failed to make good an accusation touching one crime offered to charge the same person with another Vlpian was of opinion that he ought not easily to be admitted yet he confesseth That the Emperour Antoninus Pius wrote to Julius Candidus that although the Father had failed in maintaining an accusation his Sonne ought to be allowed to charge the same person with some other crime 5 Of an Offendor offering Baile D. 48. 3. 3. ANtoninus Pius the Emperour being consulted by the Citizens of Antioch what they might doe with an offendor who offered baile wrote unto them That he who would put in sureties for his appearance ought not to be kept in prison unlesse it be manifest that he hath committed such an offence that he ought neither to be trusted upon his giving of sureties nor on commitment to any guard but ought to be used as if he had deserved to undergoe the punishment of imprisonment before he came to suffer that which was to be inflicted for his offence 6 Of Proceeding against an Offendor absent D. 48. 19. 5. TRajan the Emperour being consulted by Julius Fronto the Proconsvl Resolved him that a person absent ought not to be condemned in a Criminall cause and signified to Aufidius Severus That no man was to be condemned upon suspition because it was better a guilty person should be absolved then that an innocent person should be condemned But if men accused were obstinate and refused to obey the summons and decrees of the Magistrate they might saies Vlpian be condemned although they never appeared in judgement in Criminall causes as it is usuall in causes private and Civill which he saies may be maintained without imputation of contradiction And putting the question how He answers If the penalty of a crime be only pecuniary or such as tends to the deminution of Credit if being often summond he obstinately absent himselfe he may be proceeded against so farre as to a banishment for a time but if the crime requires a heavier censure as the depriving him of life or liberty such penalties ought not to be inflicted upon absent persons 6 Of Crimes committed by the same Person in severall Provinces WHen one who had cōmitted Sacriledge in one Province was appehended for a lesser crime in another P. Proculus the judge consulted the Emperour Antoninus Pius what was to be done who gave directions that he should first try him for the crime for which he was apprehended and then send him to the place where the sacriledge was committed SECT II. Of Publique Offences as Homicide Parricide Treason c. 1 Of the intent in Man-slaughter D. 48. 8. 1. § 3. ADrian the Emperour to a petition concerning one who was slaine where the intention was doubtfull returned this answer He that hath killed a man if he did it not with a purpose of killing him may be acquitted and he who wounded a man with a mind to kill him although he killed him not ought to be condemned as a man-slayer and that it is to be determined from the circumstances of the fact for if he drew a sword and struck a man therewith it ought not to be doubted but that it was done with a purpose of killing him but if he struck him with a key or with a pike-staffe albeit with an Iron poynt it shall not be thought that it was done with a mind to kill him and his punishment ought to be mitigated who in a fray or suddain quarrell kills a man rather by chance then of set purpose 2 Of killing persons found in Adultery D. 48. 5. 20. 22. 24. 38. IT was lawfull saith Pupinian for the Father to kill an Adulterer with his daughter found in the fact in his own house and it was lawfull for the Husband to kill a person of base condition found in Adultery with his Wife and as he observes there was more power given to the Father then to the Husband to kill the Woman and the Adulterer without distinction Because the tendernesse of a Father will make him more circumspect in his resolution but the heat and rashnesse of a Husband needed to be limited Yet Marcus Antoninus and Commodus his sonne being Emperours and consulted upon occasion of the Husbands killing his Wife returned answer If the Husband transported with indignation and griefe killed his Wife found in Adultery he ought not to be punisht with death giving for reason that the Emperour Antoninus Pius signified his mind to that purpose to Apollonius the punishment of death said he may be remitted to him who doth acknowledge that he kiled his Wife found in Adultery because it is a most difficult thing to overcome a passion justly conceived yet because in taking his own revenge he did more then may be justified he ought not to goe unpunisht and therefore it may suffice if he be a person of mean condition to condemne him to the Mines if he be one of better quality to confine him to some Island 3 Of Accessaries to Man-slaughter D. 29. 5. 3. § 4. IF the Master of a Family were killed in his own house if any of his Bondmen were faulty in not defending him he was to suffer death It happened that one was Bondman to two partners in the same house both being assaulted he rescued the one but not the other It was questioned whether he ought to suffer for that he did not rescue both Vlpian said If it were in his power to have helped both and he had neglected one he might justly suffer but if when he could not relieve both he chose rather to help one it were hard to say that he offended in hasting to help one rather then the other 4 Of a Minor not helping his Master D. 29. 5. 3. 14. THe Law not extending to Bondmen under the age of fifteen yet Trebius Germanus being Pro-consul put to death a Bondman within that age and not without reason saies Marcianus for the young man did not want much of the age of fifteen and lay at his Masters feet when he was slaine and did not afterwards reveale the slaughter and as it appeared that he could not help his Master in that case so it was certain that he made no discovery afterwards and such as are Minors yet if they be of sufficient understanding to discerne such a villany they are no more to be spared in case of their Masters death then of any other mischievous act 5 Of Parricide committed by