Cases and questions resolved in the civil-lavv. Collected by R. Zouch professor of the civil-law in Oxford.

TITLE II. Of Arbitrement. (Book 2)

Arbitrement is, when causes of difference are re∣ferred to private Persons, by consent of the par∣ties, or by appoyntment of the Ordinary Iudge, to be heard and determined, without Legall, and formall Proceedings, in which are considerable, 1. Touching the power of Arbitrators in gene∣rall. 2. Concerning differences betwixt Borde∣rers, and Partners, and 3. betwixt Coheyres, &c.

SECT. I. Touching the Power of Arbitrators in generall; as, concerning their choyce, their Commission, and Orders.

1 Of a Reference made, with Power to assume an Vmpier. D. 4. 8. 17. § 5.

IF a difference be referred, by way of Com-promise, to the determination of two Arbi∣trators, with power given to them, if they shall not agree, to assume a third man: Vlpian is of opinion, that such a reference is not good; be∣because

they may differ about the person: but if it be agreed, that they shall assume Sempronius, the refe∣rence is of force; because they have no power to dissent therein.

2 Of all differences refer'd, whereof some are omitted in the relation. D. 4. 8. 43.

LVcius Titius and Sempronius agreed to stand to the award of a certain Arbitrator, concerning all differences betwixt them. But by Error, or Mistake, Lucius Titius omitted to set downe in writing, some causes of difference on his part, and so the Arbitrator could determine nothing concern∣ing those. It was questioned, whether he were so concluded, that he might not afterwards seek reme∣dy, for those matters? Scaevola answered, He might, and not incur the penalty of the bond, to observe the award; But if those matters were purposely o∣mitted, for his own advantage, he may afterwards sue, but he must pay the penalty.

3 Of a Com-promise of all matters, to be deter∣mined 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 refer∣red unto him, and that if he saw cause, he might prorogue the businesse to a longer time. The Arbi∣trator, within the time, delivered his judgement of some matters, and left others undetermin'd, pro∣rogueing

the businesse to a longer day. It was que∣stioned, whether the parties were bound to stand to his award? Labeo answered, That they were not bound, only the prorogation was good: Vlpian ap∣proves his opinion, because it is not in the Arbitra∣tors 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, o∣therwise 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 ab∣solve, 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 inclu∣ded 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 a∣ward 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 Penal∣ty.

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 com∣mon of one ground, and Sempronius alone of another adjoyning; It was questioned, Whe∣ther they might be admitted to come to a try∣all 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: nei∣ther 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 try∣all 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 ow∣ners, as long as it continues in the place, be∣longs 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 be∣comes wholly, without distinction of parts, com∣mon to both, and may come into division saies Pau∣lus, 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 some∣thing, 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 com∣mon to him with another. It was questioned, How he might have consideration for his charges, If a∣ny 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, & hap∣pily, 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 re∣taine, 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, conceive∣ing the ground to be common to him, with Titius, whereas in truth, it was common to him with Mae∣vius, 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 al∣though he were mistaken in the owner, yet his purpose was to oblige the owner whosoever he was, no lesse then when one man in con∣templation of another, doth busines for his use, and profit, whereby he hath a speciall Action a∣gainst 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, where∣in 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 at the best value his right and interest in the same ground, or to give to him the best value, for what belong'd to Titius: Maevius out-bidding Sempronius he yeelded up his right and interest in the ground unto him: Then Titius tendred to Maevius, the mo∣ny which he had borrowed, and desired his former right, and interest in the ground, to be restored un∣to him. It was questioned, Whether Maevius were bound to restore it? It was answered, (saith Vlpian) That Titius ought not to be heard, unlesse he would also redeeme the interest of Sempronius in the ground, which upon bidding more mony was ad∣judged to Maevius; And it was shewed for reason, That if he who had right to part of a house had sold it, and, before delivery thereof, were called to ad∣mit a division; and upon offerture of him who had the other part, that he who would give most should have both, that other part were adjudged to him, who had first sold his part, then not delivered; it

was resolved, that he who had bought the first part, could not recover it, unlesse he would redeeme the whole; because the condition of him who first sold his right to a part, was much better now he having obtained the whole.

SECT. III. Concerning Co-heyres, as when an E∣state or Inheritance devis'd amongst them, is desir'd to be divided.

1 Of Compensation in respect of things, of unequall value, divided. D. 10. 2. 52. § 2.

AN Arbitrator, chosen to divide an estate betwixt two brothers, thought it fit to allow some things in kind of unequall value to either of them, which he inten∣ded to supply, by adjudging mony proportionably in respect of those things. It was questioned, Whe∣ther he might make compensation after that man∣ner? Julianus answered that he might.

2 Of charges bestowed by a Father on his Sonne, in the way of Learning. D. 10. 2. 5.

A Father furnished his sonne, being at his own disposing, and travelling abroad, to attain Learning, with many things necessary for his maintenance, and furtherance in that way. It was questioned, whether the Fathers estate coming to be divided, those allowances which his Father had given him, might not be computed into the Sonnes portion? Vlpian said, That if the Father in∣tended not to give him creditonly for those things, but that out of his Fatherly affectiō, he furnisht him, with the same, it will not stand with Equity, to de∣falcate any thing of his just portion, in respect thereof.

3 Of a Sonnes portion Pawned in his Fathers life time. D. 10. 2. 39.

A Father, in his lifetime, divided his goods a∣mongst his two sonnes; and in his last Will, he confirmed that division, and provided, that what debts any of them owed, or should incur, he alone should undergoe the burthen thereof. Af∣terwards one of his sonnes, with the Fathers privi∣ty, borrowed mony, and with his consent, pawned some grounds, which his Father had assigned unto him, and held the possession of the same, after his Fathers death. It was questioned, Whether, if the mony being unpaid, the Creditor should sell those grounds, the Co-heyre upon a division of the estate, were bound to allow any thing to him in respect

thereof. Scaevola answered, That as the case was pro∣pose, he was not bound to allow him any thing.

4 Of a Ground, wherein were Monuments of Ancestors, desired to be divided. D. 10. 2. 30.

ONe puts a case to Modestinus thus, There is a certain ground common to me, and a young maiden, my Co-heyre, who is under the age of twelve years; in which ground the reliques of mine, and her Ancestors are preserved: the Tutors of the young Maiden, have a desire, to sell that ground; I doe not like it: but being not able to pur∣chase the whole, I am willing to retaine, so much, as may come to my share; and would, as much as in me lies, observe the respect due unto that place. I would gladly know, Whether I may not obtaine of the Arbitrator, appointed, to divide the estate be∣twixt us, that parting the rest of the inheritance, he may allot us severall portions in that ground? Mode∣stinus answered, That he saw nothing, as the case was proposed, but that the Arbitrator appointed to divide the estate, might make partition of that ground as it is desired; and not meddle with the place where the Monuments are, but leave to the severall heyres, that entire right therein which be∣longs unto them.

5 Of Brothers agreeing to division, without the Arbitrators consent D. 10. 2. 57.

AN Arbitrator being appointed betwixt two Brothers, they agreeing made a division a∣mong themselves, as it becomed loving Bro∣thers. It was questioned, Whether it were good, without the Arbitrators confirmation? Papinian said, It was good, unlesse by defect of age, it were insuf∣ficient.