were delivered because the translation of the property was in suspence untill the Marriage was done and at the time of the Marriage the property was in Sempronius his heyre from whom it is undeniable that it could not be transferred without his consent But he was of opinion that in the favourable case of Dower the heyre should be compelled to give his consent to what his Father intended that his Sister might not be left without a Dower 17 Of a Dower given upon condition that part thereof be repaied to Children D. 23. 4. 23. THe father giving a Dower or Marriages portion with his Daughter Covenanted with her Husband that if she dyed leaving one or more children behind her the Husband should be contented with the third part and that the rest should be repaied to him the Father or after his death to such children as should remaine the Father dying first the Daughter dyed afterwards leaving children It was questioned whether by vertue of that coyenant the children might sue for the rest of the Dower the Grand-father dying before the Daughter Africanus answered that they might sue for the force of the covenant consisted in that if shee dyed during the Marriage with the Husband the Dower should be restored and it was all one in effect as if one contracted conditionally that when such a ship shall returne out of Asia you shall give to me or after my death to Lucius Titius tenne pound for although the ship returne not untill after his death the ten pound is due to his heyre 18 Of a Covenant of disposing the Dower in case the Mother should dye before her Child or the Child should dye before the Mother D. 23. 4. 23. IT was agreed betwixt the Father in Law the Sonne in Law that if the Daughter or Wife dyed leaving a child of a yeare old behind her the whole Dower should remaine with the Husband but if in the life time of the Mother the child should dye the Husband should returne a moyety of the Dower unto the Father in Law It happened that the Mother and the Child being in a ship which was cast away were both drowned together whereupon it was questioned what part of the Dower might be retained by the Husband Papinian answered That it being most probable that the Child perished before the Mother the Husband ought to retaine only a moyety thereof SECT II. Of Speciall Right or Commodity Speciall Right is that which is grounded on the Civill Law as Commodity or the Right which one hath to receive benefit out of things belonging to other men as to receive the use and profits of Lands during life or to have some use and conveniency in or from another mans possessions as a way passage or Water-course or the like which Rights are gained by Prescription or graunt c. 1 Of the Vse and Profits of a thing given to a Corporation D. 7. 1. 56. VVHen the property being reserved to one the profits are given to another they are generally given during the life of the party to whom they are given whereupon one giving the fruits and profits of some land to a Citty or Corporation It was questioned whether the Citty or Corporation might bring an action for the same it seeming unreasonable that those profits should be alienated from the property for ever because they cannot be determined by death as it is usuall when they are granted to a single person a Citty or Corporation never dying and so the property to the granters heyres would be of no use the profits alwaies going another way yet Caius saies it was resolved that the Citty or Corporation might bring their action whereupon it was farther questioned how long they ought to be maintained in receiving such fruits and profits and it was resolved for a hundred years because within that time the longest livers dye 2 Of Rent due for Profits formerly received D. 7. 1. 58. ONe gave the profits of some Land to his Daughter during her life and the property of the same to the Common-wealth the Daughter dyed in the month of December all the fruits and profits of those lands being received by her tenants in October before for which they were to pay their rent in March following It was questioned whether the heyre of the Daughter which dyed before that day had right to receive the whole rent due for that yeare or whether it should be divided betwixt the heyres of the Daughter and the Common-wealth to whom the profits belonged after her death Scaevola answered That the Common-wealth had no right to receive any thing from the Tenants But the heyre of the Daughter as the case is put ought to receive the whole rent 3 Of the profits of a Parke or Warren D. 7. 1. 62. IF the Use and Profits of a Parke or Warren be granted to one during life it is questioned whether he might take or kill the Deare and Conies which he found therein or hath right only to such as by his industry are brought into the Parke or Warren or are afterwards bred therein Tryphoninus answered It was a hard thing to distinguish the particulars which were first and which come in afterwards and therefore that his right be not altogether uncertaine he held it sufficient if the Grantee when he dyes leaves to the proprietory of all sorts as many as he found 4 Of Profits and Property Consolidated D. 7. 4. 17. SEmpronius gives the profits of his Land during life to Seius simply and the Property thereof to Titius upon condition Seius to whom the profits were given the event of the condition yet depending buyes of the heyre of Sempronius the Right and Property which then was in him whereby his right as usufructuary is consolidated with the right of Propriety afterwards the condition being sulfilled the property of the Land sell out to be in Titius It was questioned whether Seius had still the right as usufructuary to the Profits in regard Titius had only the property given unto him without the fruits and profits belonging to Seius during his life Julianus answered that Seius having drown'd his right as usufructuary to the profits in purchasing the property by consolidating the severall interests The rights which before were distinguished being made one Titius shall have the sole and full right in the Land and Seius by his own act loose the right of all profits as usufructuary to the same 5 Of a Way or Passage granted indefinitely by will D. 8. 1. 9. IF a man grant unto another liberty to have a way through his ground without limitation It is questioned whether the heyre of the granter or the legatary shall assigne the space of the way Celsus saies that the Legatary may make his choyce through any part of the ground as he shall please yet after a civill manner for that in generall words some things are tacitely excepted and therefore he shall not make choyce to goe through his Back-side nor through
a ground to Sempronius which he esteemed at a hundred Acres with this condition That Sempronius within Thirty daies might measure and signify the just quantity thereof and if he did not signify the same within that time he should stand to the measure at which it was estimated by Titius Sempronius within the time limited signified as he conceived something wanting in quantity and was abated accordingly in the price and after the thirty daies were expired he having a purpose to sell it unto another man measured the same and then found the quantity thereof to be a great deale lesse then he had fignified before It was questioned whether he might require farther allowance from Titius according to the later estimation Paulus answered That it was considerable in what manner the condition was conceived and exprest for if it were said he should measure the ground and signify the defect if there were any within thirty daies What he might signify after-wards would doe him no good but if it were agreed that the buyer within thirty daies next should measure the ground and signify the defect to the Seller without limitation of time in that respect although he signified some defect in the quantity within thirty daies he might demand allowance many years after for as much as he should make appeare to be more defective 4 Of Trees blown down after the view before the Sale D. 18. 6. 9. SEius having survayed a ground belonging to Maevius whereon stood many trees it happened that before he bought it some of those trees were blown downe by the Wind It was questioned whether Seius had any right to those trees Gaius answered That he had none because he bought them not those trees being severed from the ground at the time of the Sale But if Maevius knew so much and did not acquaint Seius who was ignorant therewith he ought to give Seius satisfaction for so much as the trees were worth 5 Of Stone-quarries reserved in a ground sold D. 18. 1. 77. ONe selling a ground excepted from the purchaser the stone quarries in that ground wheresoever After a long time some stone-quarries were discovered in that ground Tubero was of opinion that they belonged to him that sould the ground Labeo said It was considerable what was exprest in the exception If that were not cleare he was of opinion That the quarries newly found out were not reserv'd because no man is supposed to sell or reserve out of his sale that which is not in being and no quarries were held to be in being but such as did appear otherwise the whole ground might fall under the condition of quarries for it was possible that there might be quarries under the earth throughout the whold ground and Javolenus was of Labeo his opinion 6 Of Lands sould disposed of otherwise by the Prince D. 21. 2. 11. LVcius Titius a Roman bought Lands of a German beyond the Rhyne and payed down part of the price his heyre being afterwards sued for the remainder of the mony pleaded that Warre breaking out in those parts those Lands were taken away by the Emperours decree and given to his ould Souldiers in recompence of their service It was questioned whether that were sufficient matter to debarre the German from the remainder of the price Paulus answered That what happened after the bargaine was compleated did not concerne the Seller and therefore as the case was put the rest of the price ought to be paid 7 Of a Price condition'd to be paid once offered afterwards neglected D. 19. 1. 51. SEmpronius sould a ground to Maevius upon condition that he should pay the price agreed on for the same on the first of July following at that time Sempronius was not ready to receive the mony afterwards Sempronins being ready to receive it Maevius was not provided to pay it It was questioned whether Sempronius might not recede from the bargaine Maevius having failed to observe the condition Labeo was of opinion that he might because in the condition it was intended that whensoever Maevius should faile in performance Sempronius should be free which was held good unlesse Sempronius had practised some fraud in the busines 8 Of losse in Wines happening after sale D. 18. 6. 4. A Merchant sould certain hogsheads of Wine to a Vintner and appointed him a time to tast them at the time appointed the Merchant being from home the Vintner could not come at the Wines to tast them and when he came to receive them the Wines were perished in goodnesse It was questioned first whether the Vintner might not refuse them Secondly if he were bound to receive them whether the Merchant ought not to give allowance for so much as they prooved of lesse value then others of the same growth Vlpian answered that if the Vintner bought them conditionally if at such a time upon tast he liked them he might refuse them but if that be not so cleare the bargaine may hold but the hazard of the Wines failing in goodnesse shall belong to the Merchant because he was in fault that they were not tasted 9 Of notice to be given concerning Wines bought D. 18. 6. 15. TItius sould wine in Hogsheads to Sempronius which Wines before they were taken away grew fowle It was questioned who should beare the losse Gaius said That if Titius affirmed they would continue good he ought to give satisfaction to Sempronius if he did not affirme or undertake so much whether Sempronius tasted them or did not tast them sufficiently he can blame no man so much as himselfe But it is true that if Titius understood that they would not continue neat untill the time when they were to be removed and did not give notice thereof to Sempronius he is lyable to him for not giving him notice 10 Of a false estimation made by one hired to build a house D. 19. 2. 60. § 4. TItius desired an Artificer to consider and certify him for what charges a building of such a fashion and proportion might be erected He returned his judgement That it might be done for two hundred pounds whereupon Titius agreed with him to doe it and furnisht him before hand with a hundred pounds Afterwards when fifty pounds had been spent in the worke he found that it could not be finisht under the charges of three hundred pounds It was questioned whether he were bound to suffer the Artificer to proceed therein Labeo answered If he proceeded after he was forbidden Titius might recover the fifty pounds of the hundred which was not laid out at the time when he was forbidden 11 Of a Workman hired to erect a Work by great yet received Wages by the day D. 19. 2. 51. 11. IAvolenus puts this Case I set out a worke to be done by great or for the whole yet so that I was to pay Wages every day The worke when it was finisht was faulty or unsufficiently done It is questioned Whether I might bring my action against him Javolenus
at the same time D. 4. 8. 25. I It was agreed in a Com-promise or reference that an Arbitrator should within a month on the same day pronounce of all differences referred unto him and that if he saw cause he might prorogue the businesse to a longer time The Arbitrator within the time delivered his judgement of some matters and left others undetermin'd prorogueing the businesse to a longer day It was questioned whether the parties were bound to stand to his award Labeo answered That they were not bound only the prorogation was good Vlpian approves his opinion because it is not in the Arbitrators power to change or lessen what was agreed upon in the reference and therefore he ought to have examined all the differences and at once to have given judgement concerning all 4 Of a third Arbitrator absent D. 4. 8. 27. § 3. IF three be chosen Arbitrators the award of two of them is effectuall if the third be present otherwise not saies Celsus because the reference is to more then two and the third person if he had been present might happily have moved the other two to have been of his opinion But put the case the third man absent was of the same opinion with the other two Pomponius saies the award is not good without him because they ought all of them severally to deliver their judgements 5 Of different Judgements given by Arbitrators D. 4. 8. 27. § 3. IF there be divers Arbitrators and they give different judgements as if of fower two absolve and two condemne the award is of no force Hereupon Julianus puts a question If of three Arbitrators one condemne a party in fifteene pounds another in tenne a third in five in regard they all differ one from another What effect shall the award take He himselfe resolves it saying That the condemnation in five pounds shall stand good Because he that condemned in fifteen and he that condemned in tenne doe both imply the summe of five pounds that summe being included in both the other 6 Of an Award given and the Parties not required to stand to it D. 4. 8. 44. A Controversy grew betwixt Castellianus and Seius about the limits and bounds of some grounds and they chose an Arbitrator who should determine the difference he gave up his award in the presence of the parties and set out the bounds but haply required neither of them to stand to his award It was questioned Whether if Castellianus did not conforme thereunto he were liable to pay the penalty to which he was bound in the compromise Scaevola answered That if he did not submit unto the determination made in the presence of them both he was liable to the Penalty SECT II. Concerning Borderers and Partners as to the setting out of the Limits and bounds of Lands adjoyning and the making partition of things which were held in Common 1 Of two owners in Common of one ground one of them being sole owner of the next adjoyning D. 10. 1. 4. § 7. IF Titius and Sempronius be owners in common of one ground and Sempronius alone of another adjoyning It was questioned Whether they might be admitted to come to a tryall about the limits of those grounds Pomponius said They could not be admitted because they being partners cannot become adversaries in the same Cause but are held as one and the same person neither whilest they continue so can they be admitted indirectly because he that hath the ground sole to himselfe and the ground common with another may sell his right in either of them and then a tryall may be had 2 Of a Tree growing upon two severall grounds coming to be divided D. 10. 3. 19. A Tree standing and growing in the confines of two grounds belonging to severall owners as long as it continues in the place belongs to both equally for so much as ariseth from the roots in their severall grounds and cannot come into division as a thing common betwixt them but if it shall be blown downe by the Wind or cut downe and sever'd from the ground it then becomes wholly without distinction of parts common to both and may come into division saies Paulus the right of property being confounded betwixt them 3 Of Goods gotten by a common Servant submitted to division D. 10. 3. 24. IF a Bond-man common to two Masters with the mony or means of one of them gained something it cannot be denied but what he hath gained is common to both saith Julianus but if they come to a division of what is common betwixt them he out of whose mony or means it was gained shall be allowed to make his choyce thereof because it agrees with faire dealing that any one may assume that specially to himselfe which was gained out of his own mony or means 4 Of charges laid out to improve a common Ground desired to be divided D. 10. 3. 14. ONe laid out charges to improve a common ground which he conceived to be solely his owne Afterwards he finds that it was common to him with another It was questioned How he might have consideration for his charges If any one should challenge or clayme a distinct part of that ground It is admitted that that part might be detained untill the charges were satisfied happily if one claiming iuterest in common sue to come to a division in Equity he may be allowed the same But it is farther questioned if he who was at charges sell his part whether the purchaser may exspect the same consideration And in case one claime a distinct part by way of property it is granted that he shall have the same power to retaine untill satisfaction be given unto him and it is reasonable saith Paulus That he should have it in this case also But if he bestowed charges conceiveing the ground to be common to him with Titius whereas in truth it was common to him with Maevius whereas in the former case he had only the remedy of retention because laying it out as upon his owne he had no purpose to oblige any other in this case he may have other remedy because although he were mistaken in the owner yet his purpose was to oblige the owner whosoever he was no lesse then when one man in contemplation of another doth busines for his use and profit whereby he hath a speciall Action against him and therefore in this case also when a common ground is improved satisfaction shall be allowed in that suit wherein things common are brought into division 5 Of a Common ground desired to be divided wherein one mans interest was pawned the others is sold D. 10. 3. 7. § 13. TItius and Sempronius having a ground common between them Titius pawned his right and interest therein to Maevius for a summe of mony to be paid at a certain day the day being past and Titius his interest forfeited Sempronius desirous to have what was common betwixt him and Titius divided profered to Maevius his choyce to take
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