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
of sheep or his heard of Cattell which flock or heard after the making of the Will is increased at the Testators death It is questioned Whether more be due then were at the making of the Will Vlpain saies The Legatory hath right to those which were added afterwards Pomponius saies If some sheep or cattell dye and others be supplied in their places during the life of the Testator it is still the same flock or heard and if the flock or heard be deminisht so that one sheepe or two only remaine the Legatory hath right thereunto although it then cannot be called a flock or a heard As if a house be bequeathed and is afterwards burnt the ground whereon it stood is due 4 Of a Ground bequeathed enlarged or diminished D. 30. 1. 24. § 2. LVcius in his Will bequeathed a Ground called Titianum to Maevius and afterwards he layed or added a piece of another ground thereunto Pomponius saies the Legatary may demand the whole especially if the piece of ground which was added were his owne at the time of making the Will But if after the Will made he severd some part of the ground called Titianum and added it to another ground It was doubted Whether the Legatary had any right to that which was sever'd Pomponius saith That which was severed and added to another ground belongs not to him because it ceased to be part of that ground which was called Titianum Because the names of grounds of houses and the like are not affigned by nature but are imposed by men who are the owners at their pleasure 5 Of a Ground bequeathed there being two of the same name of different values D. 30. 1. 39. § 6. ONe who had two fields each of them called the Cornelian field of different values bequeathed one of them by the name of the Cornelian field The Legatary demanding that of the greatest value and the heyre offering the lesse Julianus being consulted said That in common understanding the heyre ought to be discharged by tendering that of the lesse value if the legatary could not prove that the Testator intended that of the greater 6 Of a Third part of Goods bequeathed D. 30. 1. 26. TItius by his will bequeathed a third part of his goods to Lucius It was questioned Whether the heyre were bound to deliver the third part in kind or the value of the third part Sabinus and Cassius were of opinion That it was sufficient for him to pay the value Proculus and Nerva affirmed Tthat a third part of the goods themselves might be demanded Pomponius said That the case of the heyre is more favourable then of the Legatary so that he may chuse whether he will deliver part of the goods themselves or the value of them which he saies is true in such goods as may be devided without losse but if they be such as cannot naturally be divided or being divided are not usefull he is bound to give the value 7 Of Jewels bequeathed afterwards altered D. 34. 2. 6. SEia having made Publius Maevius her heyre bequeathed to Antonia a Jewell containing a Pearle with Emeraulds afterwards shee took out of that Jewell the Pearle and Emeraulds and putting them into another Jewell added thereunto divers other pretious Stones by which it came to be of a farre greater value It was questioned Whether the heyre might be compelled to sever the Pearle and Emeraulds from the rest and give them to the Legatary Marcellus answered That the heyre ought not to be compelled thereunto For how saith he could that Legacy hold when the thing bequeathed doth not remaine in the same kind but is in a manner dissolved and the will of the Testatrix by the alteration seems to have beene changed 8 Of three Hundred Pounds bequeathed with two Hundred Pounds deposited D. 34. 5. 13. LVcius left in trust with Seius two hundred pounds afterwards in his Will he bequeathed as followeth I give to Seius with the two Hundred pounds which I left with him three Hundred pounds It was questioned whether three Hundred pounds or five Hundred pounds were due Iulianus saies That the summes severally taken declare some thing certain but as they are joyned in the Legacy they are something doubtfull but he was of opinion that both the summes were due because they were joyned together 9 Of a Legacy designed in summes afterwards spent D. 30. 1. 96. AVrelius in his last Will bequeathed as followeth I will that Pamphila shall receive out of my estate three Hundred pounds that is So much from my Factor so much which I have in the Garrison and so much of ready mony which I have lying by me he lived many years after the Will was made and disposed otherwise of those summes of mony It was questioned Whether the heyre who received what was sufficient out of the estate were bound to pay the Legacy Iulianus was of opinion That it was most probable that the Testator did rather signify unto the Heyre how the Legacy might be paid without any inconvenience to his estate then limit his bequest conditionally to those sums and that therefore the three Hundred pound was due to Pamphila 10 Of a Legacy given to the Wife of as much as to one of the Heyres who had different summes D. 32. 1. 29. § 1. ONe made his Will and disposed of his estate in different proportions to three heyres and bequeathed to his Wife as much as to one of his heyres Quintus Mucius and Gallus were of opinion That shee ought to have as much as he that had most because the summes of those that had lesse were comprehended in his that had most Servius and Ofilius were of opinion That she ought to have no more then he that had least because the heyres were charged to pay the Legacy to her and the words being directed to them it was in their power to pay such a part as they thought fit 11 Of a Legacy of what came to the Testator out of another mans estate D. 32. 1. 29. § 2. SEmpronius who was one of the heyres of Titius bequeathed as followeth What mony came unto my hands out of the estate of Titius I will that my heyre shall give so much to Seia It appeared by Sempronius his books that he had received an hundred pounds which the heyre was ready to pay to Seia if she would secure him or save him harmles if any thing should be recovered from him by others as belonging to Titius his estate Labeo was of opinion That he was bound to pay what appeared by the books to have bin received out of the estate and that Seia was not bound to save him harmles Alfenus Varus was of the contrary opinion Because that cannot be said to come to the hands of one as heire which in respect of that inheritance may be recovered from him Alfenus saies That Servius was of this opinion 12 Of the same thing twice Bequeathed to the same Person D. 30. 1. 34. § 2.
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
Testator that whensoever the sonne should dye whether before or after the right to the estate accrued unto him it ought to be transferred unto the mother if it were not actually conveyed and that so it hath been practised 5 Of a Release procured by fraud D. 2. 14. 35. 36. TItius Maevius and Seius three brothers divided their Mothers estate between them and by writings gave each other releases Afterwards Maevius and Seius who were absent at their Mothers death found Titius had conveyed away and concealed out o◠the Inventory by which the division was made a summe of gold It was questioned Whether they might not sue Titius notwithstanding they had given him releases Modestinus answered That they might and if their releases were pleaded against them they might reply concerning the fraude 6 Of the Sale of a Ground Warranted as the Seller possessed the same D. 19. 1. 39. ALfenus sold a ground which he shewed to Paulus and warranted it as he possessed the same and being privy that some part of that which he shewed to Paulus did not belong to himselfe concealed the same It was questioned Whether he were bound to make good the sale for so much as he shewed Modestinus answered That he was bound because the generall words As he possessed extend not to what he knew to be otherwise For else Paulus was over reacht or deceived who if he had known any part thereof to belong to any other would not have bought the ground or not have given that price for it which opinion he maintaines the rather because by ancient Lawyers it hath been determined That if one selling a ground did warrant it except such services as were due if any were due and knew of some services due and did not acquaint the buyer therewith he ought to give satisfaction for the same Because a generall exception extends not to that which the seller particularly knew but only to those things which he was ignorant and could not certify the buyer 7 Of Grounds sold the Measures mistaken D. 19. 1. 42. ONe who had two grounds sold them severally to the same person and estimated them the one at two hundred acres the other at a hundred he who bought them upon measure found that which was estimated at two hundred acres to want ten and he that sold them proved that the ground estimated at a hundred contained a hundred and ten acres It was questioned What satisfaction was to be given Labeo was of opinion That although what was wanting in one was supplied in the other the seller was bound to make good that which was wanting Paulus conceived That if the purchaser brought his action he might be relieved by the exception of unconscionable dealing and gives instance of one that sold a Copps and a Vineyard as of equall quantities and what wanted in the Copps was supplied in the Vineyard in which case if there were any difference betwixt the one and the other it was for the buyers not the sellers advantage and concludes that in such cases the losse in the one should be compensed with the gaine in the other so that the buyer be not any waies prejudiced in the quality or goodnesse of the ground for in that respect he ought to have satisfaction 8 Of a Covenant not to remove a Tenant D. 19. 2. 54. § 1. TItius did let a house to Seius for seaven years at an yearly rent and it was covenanted betwixt them That if Titius should remove Seius within the terme he should by way of penalty pay to him ten pounds and if Seius should quit or leave the house within that time he should forfeit to Titius the like summ It happened that Seius paid no rent in two years It was questioned Whether Titius might not remove him without incurring the penalty Paulus answered Although nothing were mentioned in the agreement about paiment of the rent yet it must be the intendment of the agreement that Seius paying his rent and using the house as he ought should not be removed and thereupon if Seius upon that occasion being removed should sue for the penalty Titius might use the exception of unconscionable dealing against him 9 Of Rent to be abated for improving the ground D. 19. 2. 61. A Tenant which was no waies bound by his lease at his own cost planted a Vineyard in the ground which he held by occasion whereof the Landlords rent was improved to the value of ten pounds by the yeare some rent being unpaid the Landlord put him out and sued him for the rent It was questioned Whether he might not require allowance for his improving the ground Scaevola answered That if no allowance were made unto him and the Landlord sued him for his rent he might oppose the exception of unconscionable dealing or suing contrary to reason TITLE VI. Of the Emperour or Princes Audience Iudicature before the Emperour or Prince is when they in person heare causes which they either determine themselves or give direction for the determination As 1. Generally in all causes of Law and Equity 2. Specially concerning causes Testamentary 3. In Reforming or confirming sentences given by inferior Iudges SECT I. Of Causes in generall both of Law and Equity 1 Of the Fathers Fact not debarring the Sonne from a benefit derived from the Grand-father D. 37. 14. 17. WHen a Bondman was made free his Master became his Patron and amongst other benefits had a right to succeed in part of his estate when he dyed which right he forfeited in case he accused his freed man of any capitall crime Marcus Antoninus the Philosopher and Aelius Verus being Emperours it happened that the Grand-father having made his Bondman free his son called the freed man in question for his life and failing to make good his accusation the freed man was acquitted And afterwards both the accuser and the freed man died whereupon the grand-child of him that made the bondman free and sonne of him who had accused him wrongfully claimed part of the freed mans estate The case being brought before the Emperours They declared that they found it doubted amongst experienced Lawyers whether the grand-child as Patron ought to succeed in that case and that Proculus a man of eminent judgement was of a contrary opinion and that they themselves had given judgement otherwaies in the case of Caesia Longina which sentence was approved by their friend Volucius Maecianus a man of well grounded knowledge who profest That if he had been judge he should have given sentence the same way but afterwards upon mature deliberation advising with the same Maecianus and other Lawyers their friends for so the Emperours were pleased to grace men of that quality it appeared unto them That neither by the words nor by the intent of the Law the Nephew ought to be excluded by his fathers act from that right which descended unto him by his Grand-fathers making the bondman free and That many learned authors of the Law and amongst them