were free when she conceived and afterwards were become a bond woman when she was delivered it was held that the child borne of her was free because the calamity of the Mother ought not to prejudice the child in her wombe It was further questioned If a bond woman conceived or proved with child and afterwards was made free and then before she was delivered became and continued a bondwoman so that the child was both conceived and borne in bondage whether this child was borne free and it was resolved for the good of the child that it ought to be held free-borne it being sufficient for the child in the wombe to have had the mother free in the middle or mean time betwixt the conception and the birth Because as Paulus saies If there be any question concerning benefits belonging to the child in the wombe it is respected as already borne 4 Of a Citty or Corporation D. 3. 4. 7. VLpian saies If any thing be due or owing to a City or corporation it is not due or owing to the particular persons thereof nor if the City or corporation be indebted are the particular persons bound to make satisfaction for the same but he saies The Successors of the City or Corporation ought to make good what others formerly contracted and it makes no difference whether all remain or part or whether the first persons be wholly changed insomuch that if the corporation be reduced to one person he may sue or be sued in the name of the whole 5 Of one returned out of Captivity D. 49. 15. 5. 12. §. 9. HEE that is taken prisoner by enemies becomes their bondman but if he returne again into his country hee is forthwith restored to his former condition saith Pomponius unlesse he chuse rather to returne to the enemy And so it was resolved in the case of Attiiius Regulus who being taken prisoner by the Carthaginians was by them sent back to Rome that he could not recover his former condition because he had obliged himselfe by oath to returne to Carthage And therefore when a dispensation was proposed touching Menander a forreyner who had received freedome amongst the Romans That notwithstanding he being imployed as an Interpreter was sent back into his own country he should continue a Citizen of Rome It was held unnecessary For if he had a purpose to remain in his own country he would cease to be a Citizen of Rome and if he had a mind to returne thither againe he would continue a Citizen although no dispensation to that purpose was granted It is otherwaies saith Tryphoninus in the case of a bond servant for if he be taken prisoner and made free by the enemies if his Master shall recover him and bring him within the Roman territories he shall remaine his bondman although he have a desire to returne back unto the enemies Because as Sabinus writes Every man hath a free power to make himselfe a Citizen where he listeth but cannot dispose of another mans right 6 Of one delivered up to the Enemies D. 50. 8. 17. IF any one laied violent hands upon an Ambassadour of the Enemies he ought saith Q. Mucius to be delivered up unto them whom if the enemies refused to receive It was questioned whether he continued a Citizen of Rome and some were of opinion That he did continue so others held otherwise Because whom the people of Rome delivered up into the power of the Enemy they seemed to deprive of the priviledge of a Cittizen as much as if they had banished him out of their dominions of which opinion was Publius Mucius and this question was especially moved in the case of Hostilius Mancinus concerning whom by a speciall Law it was ordained That he should be held a Citizen of Rome although he had been delivered unto and refused by the enemies in consequence whereof he afterwards bore the Office of Praetor 7 Of marriage accomplisht D. 3. 1. 15. A Marriage was held compleat when the Woman who had given her consent was led or brought home to the Husbands house thereupon Vlpian being consulted answered That if a legacy were given to a woman upon condition when she was married to one of such a family said it became due as soon as she was brought within his dores although it so happened that she never entred into his chamber because it is consent not carnall company that makes a marriage so Cinna reports that when one had brought home his wife and that evening going abroad to supper fell into the river Tyber and was drowned it being thereupon questioned whether she ought to observe the usuall time of mourning as for her husband it was resolved that she ought 8 Of a Tutor appointed by a name uncertaine D. 26. 2. 30. ONe in his will apointed Titius to be Tutor to his sonne there were at the same time two to wit the Father and the sonne whose names were Titius and it did not appeare which of them was intended by the Testator It was questioned who in point of right ought to be esteemed as Tutor Paulus answered that he ought to be esteemed designed whom the Testator intended but if that did not appeare the right was not wanting but the proofe and therefore neither of them was to be held as Tutor 9 Of a Tutor appointed in case another was not living D. 26. 2. 33. ONe appointed Tutors in this manner I desire that Litius Titius should be Tutor to my son if he be not living then I appoint Gaius Plautius to be his Tutor Lucius Titius out lived the Testator and took upon him the Tutorship and then died Trebatius being consulted whether the Tutorship belong'd to Gaius Plautius held it did not Labeo was of the contrary opinion Proclus concurred with Labeo but I saies Javolenus approve the judgment of Trebatius because the words had relation to the time of the Testators death 10 Of a Tutor altered by error D. 26. 2. 34. ONe who had appointed tutors in his will after wards in a codiciall declared that he named others because he understood the former were dead or might have cause to excuse themselves It was questioned whether they who were named in the will being living at the time of his death and pretending no excuse did not continue Tutors Scaevola answered that as the case was proposed he saw nothing but that they ought to continue 11 Of Senators Sonnes D. 1. 9. 5. 7. MAny priviledges belonging to the sonnes of Senators It was questioned how the sonne of a Senator ought to be accompted whether he whose Father is a Senator or he only who is borne his father being a Senator Vlpian said it made no difference whether he were borne whilest the Father enjoyed the dignity of a Senator or before his Father attained thereto Labeo addes That he who is borne after the death of his Father who was a Senator ought to be reputed a Senators sonne yea although the Father be degraded
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
freighting of shipps 1 Of a ship built with another mans materialls 191 2 Of profits due from another mans ship 192 3 Of monies lent to a master to repair his ship 192 4 Of goods remov'd out of a ship which was hired 193 5 Of a voyage hindered by prohibited goods 194 SECT 2. Of dammage done to ships and of things adventured at Sea 1 Of one ship doing dammage to another 194 2 Of dammage done to the tackle of a ship 195 3 Of a Merchant servant appointed to receive mony giving a longer time 196 4 Of Interest of monies adventured at Sea 197 5 Of Interest due although not demanded 198 SECT 3. Of Contributions and Fishing 1 Of contribution for goods cast over board 199 2 Of losses sustained by a ship not lyable to contribution 200 3 Of goods in a boat cast away 201 4 Of Exporting goods after a time limited 201 5 Of hindering one to Fish in the Sea 202 TITLE IV. Of Judicature concerning the Treasury SECT 1. Of things properly belonging to the Treasury 1. Of rescinding a sale made on behalfe of the Treasury 204 2 Of publique grounds hired let out to others 205 3 Of the profits of publique grounds sold arising within a time limited for more to be offer'd 205 SECT 2. Of Escheats and Forfeitures 1 Of one who received mony out of an estate informing against the heyre 207 2 Of prosecuting a forfeiture after the death of the delinquent 207 3 Of the like case 208 SECT 3. Of Estates questionable after Escheats and forfeitures 1 Of an Estate after death not due upon condemnation 209 2 Of an estate forfeited for a false accusation and the first mover freed 210 3 Of the forfeiture of one not to be construed in prejudice of another 210 4 of the condition of a Surety when the Treasury succeeds the Debtor 211 TIT. V. Of Judicature before the Praetor SECT 1. Of Relieving Minors and Debtors 1 of an Act begun in minority compleated in full age 213 2 of Restitution against a third person 214 3 of the author or occasion of feare against which one sues to be restored 215 4 of a Release procured by force of a debt enforced 215 5 of restitution against the heyres of him who hath gained from another by force or fear 216 6 of reducing Creditors to conformity 216 7 of the major part of Creditors how to be understood 217 SECT 2. Of Preventing Dammages 1 of Warning to be given to desist from a new worke 218 2 of one who bought the ground where a new worke was begun 219 3 of the heyre of him who proceeded in a new worke 219 4 of one required to secure another who sought not to be secured himselfe 220 5 of one desiring to be secur'd who refused himselfe to give security 221 6 of Dammage happening from one house to another without fault 221 7 of dammage happening before a legall course was taken to prevent it 222 SECT 3. Of Decreeing matters agreeable to equity 1 of Treasure hid in another mans ground 223 2 of monies laid out to redeeme a prisoner 224 3 of Interest demanded for mony deposited 224 4 of an Heyre made in Trust to convey the estate to the Testators Sonne or Mother 225 5 of a release procured by fraud 226 6 of the sale of a ground warranted as the seller possest the same 226 7 of grounds sold the measures mistaken 227 8 of a Covenant not to remove a Tennant 228 9 of Rent to be abated for improving the ground 229 TIT. VI. Of the Emperours Audience SECT 1. Of Causes in generall of Law and Equity 1 of the Fathers fact not debarring the Son from a benefit deserved from his Grand-father 230 2 of restoring a Minor the Tutors having been negligent 232 3 of a promise procured by force 233 4 of recovering a mans own by force 233 5 of Wages due where no fault was in him who was hired 234 6 of Sureties being liable for no more then they undertook 235 7 of a Legacy recoverable from the heyres not payable as was appoynted 235 SECT 2. Of Causes Testamentary 1 of right to Legacies in a Will where the names of the heyres are blotted out 236 2 of an Heyre made in stead of one supposed to be dead 238 3 of an Heyre trusted spending the estate 238 4 of the Father wasting an estate intended to his Sonne 240 5 of compelling one to performe a trust 240 SECT 3. Of Confirming or Reforming Sentences given by other Judges 1 Of an examination unduly taken by torture 242 2 Of a Sentence confirmed concerning the negotiation of a Factor 243 3 Of the heyre of one indebted to the publique to be sued before those who bought something of the estate 243 4 Of a sentence given by combination and corruption of Witnesses 244 5 Of an Advocate compounding for the event of the suit 244 TIT. VII Of Criminall Judicature SECT 1. Of the manner of proceedings c. 1 Of informations given against Offendors 246 2 Of one accused undertaking to accuse another 248 3 Of one being accused of what he was acquitted 248 4 Of the same Accuser of another crime 249 5 Of an Offendor offering Bayle 249 6 Of proceeding against an offendor absent 250 7 Of crimes committed by the same person in severall provinces 250 SECT 2. Of Publique Offences 1 Of the intention in homicide 251 2 Of killing persons found in adultery 252 3 Of Accessaries in homicide 253 4 Of a Minor not helping his Master 253 5 Of Parricide cōmitted by one supposed mad 254 6 Of Treason 255 SECT 3. Of the effect of Criminall proceedings 1 Of confession voluntarily and upon torture 255 2 Of offendors condemned restored 256 TITLE I. Of the state and condition of persons and of the common state or condition The state or condition of Persons is that right which is inherent in themselves and is either Common Speciall or Reputed SECT I. The common state or condition is that which is considered in naturall and ordinary respects as of Birth Sex Age c. 1 Of a Child borne in the seaventh month D. 1. 5. 11. A Woman being delivered of a sonne in the seaventh month after she was married It was doubted whether the child were lawfully begotten Whereupon Paulus gave his opinion That it was received as a thing unquestionable from the authority of Hippocrates that learned Physitian that a perfect child may be borne in the seaventh Month and that therefore the child so borne ought to be held a lawfull sonne 2 Of diverse Children borne at the same time D. 1. 5. 15. A Recusa a bondwoman by her Masters will was made free when she should be delivered of three children At her first lying downe she was delivered of one at the next of three children It was question'd whether any of the children ought to be held free-borne Tryphonimus answered That it was not to be doubted but that the last of the fower was borne free