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

TITLE III. Of Debt, and of common Contracts. (Book 3)

Debt is a Right unto which one is obliged for the doing, or performance of some∣thing to another man, by reason of some contract, or agreement made with con∣sent of both parties; which Contract, is either Common, Speciall, or Reputed. Common contracts, are such as are grounded upon the Law of Nations; whereof some are perfected by consent or agreement only, as 1. Buying and selling, 2ly Letting and taking to hire, 3ly Partnership, 4ly and Procuration. O∣thers besides consent, require something to be delivered; as 1. Borrowing and Lending, things consisting in quantity, 2ly Things in specie, 3ly Committing and receiving things in trust. 4ly Enga∣ging, or leaving things in pawne.

1 Of a House burnt at the same time when it was bought and sold. D. 18. 1. 57.

PAulus puts a case thus, I bought, saies he, a cer∣tain House, when both the Seller and my selfe, were ignorant, that it was burnt, and relates, That Nerva, Sabinus; and Cassius were of opinion,

that nothing past in that bargaine, although the floore of the house remained, and that the mony paid, ought to be returned. But Neratius saies, That if a part of the house escaped the fire, it was consi∣derable, what proportion the part standing did beare, to that which is burnt; for if a greater part be consumed with fire, he that bought it, is not bound to stand to the bargaine, but may recover what mo∣ny he gave for the house. But if only halfe of the house, or lesse then halfe be burnt; then he ought to stand to the bargaine: so that an indifferent person judging, how much the value of the house is demi∣nished by the burning of the part thereof, he may have recompence accordingly.

2 Of a Poole bought with ten foot about it. D. 18. 1. 69.

RVtilia Polla, bought a certain Lake, or Poole, together with the ground round about it, to the space of ten foote. It was questioned, If the Lake happened by raine, or fresh waters falling into it, to be enlarged, so that the former ten foot round, were included therein, whether the next ten foot farther belonged unto her? Proculus answe∣red, He was of opinion, That the ground which ap∣peared about the Lake or Poole, when Rutilia Polla bought it, belonged unto her; and although the Lake increased, her right ought not to be extended to the ground farther round about it.

3 Of a ground sold, to be measured within Thirty daies. D. 18. 1. 40.

TItius sould a ground to Sempronius, which he esteemed at a hundred Acres, with this con∣dition, 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 esti∣mated 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 al∣lowance from Titius, according to the later estima∣tion. Paulus answered, That it was considerable, in what manner, the condition was conceived, and ex∣prest, 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 a∣greed, that the buyer within thirty daies next, should measure the ground, and signify the defect to the Seller (without limitation of time in that re∣spect,) although he signified some defect in the quantity, within thirty daies, he might demand al∣lowance 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 happe∣ned, 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 sa∣tisfaction 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 pur∣chaser, 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 sup∣posed 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 un∣der 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 break∣ing 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 con∣dition, 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 que∣stioned whether Sempronius might not recede from the bargaine, Maevius having failed to observe the condition. Labeo was of opinion, that he might, be∣cause in the condition, it was intended, that when∣soever Maevius should faile in performance, Sempro∣nius 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 re∣ceive them, the Wines were perished in goodnesse: It was questioned, first whether the Vintner might not refuse them, Secondly, if he were bound to re∣ceive 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 an∣swered, that if the Vintner bought them conditio∣nally, 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 fail∣ing in goodnesse, shall belong to the Merchant, be∣cause 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 satis∣faction to Sempronius; if he did not affirme, or un∣dertake 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 Ti∣tius 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 lya∣ble 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 cer∣tify 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 there∣in: 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 a∣gainst him. Javolenus answered. If you did so set out your worke to be done, that the undertaker should make good to you the sufficiency thereof, although, it were agreed that for every daies work

he should receive certain wages, yet if the worke be faulty or insufficient, he that undertook it, is bound to make it good. For it makes no difference whe∣ther the agreement were for one intire summe for the whole, or something to be paid for every daies work; if the finishing of the whole work belonged to the undertaker, and therefore he is liable to an action, if the work be defective or insufficient, un∣lesse the agreement, for paying wages by the day, were, that the owner might use his discretion in the raising thereof. For in that case the undertaker is not bound for the sufficiency thereof.

12 Of Corne agreed to be received in stead of Rent. D. 19. 2. 19. § 3.

ONe who had let out his ground for a certain Rent, afterwards agreed with the Tenant, that in lieu of so much money he should pay year∣ly a quantity of Corn; The Land-lord, as occasion served, refused to receive the Corn, and would not abate any thing out of his Rent in money: It was questioned, what remedy the Tenant might have. Vlpian said, It was in the Land-lords power, accord∣ing to the Lease, to sue for his Rent in money; but that the Tenant had right to be releeved, for so much as he was prejudiced in paying money, if it were more easie for him to have paid it in Corn.

13 Of the Tenants profits hindered by the Land-Lord. D. 19. 2. 30.

ONe took a Lease of a house, at twenty pounds a yeare rent, and did let out Lodgings, to particular persons, to the value of thirty pounds yearly. The Land-Lord before the time was expired, pretending the building was in decay, pul∣led down the house: It was questioned, what satis∣faction was due to the Tenant? Alfenus answered, If the house were so ruinous, that there was necessity to take it downe, the Tenant ought to receive, du∣ring his time, as much as he gained from his Lodg∣ings above the rent: but if there were no necessity, but the Land-Lord thought fit to have it built o∣therwise, according to his mind, he ought to give farther consideration, for so much as it might any way concerne the Tenant, that the Lodgers had not been removed.

14 Of the Tenants profits hindred, otherwaies then by the Land-Lord. D. 19. 2. 33.

IF a ground which I hired from you, for a cer∣tain time at an yearly rent, be confiscated, or sei∣sed to be imployed for some publique use; Africanus saies, you are liable to me, in regard I cannot make use thereof, although it be not in your power to make it good. For if you shall sell a ground unto me, and before I receive the free possession thereof, it be seized for the publique service, you are answe∣rable for the sale; which is to be understood, so farre as to returne the price or mony which I gave for it, not for what benefit I might have made thereof, in

case I had had the free or cleare possession thereof: & in like manner, I am of opinion, that concerning ground which is let out for rent, it ought to be ob∣served, that the rent which I have already paied, should be restored, for so much time as I could not enjoy the same, and that you are liable for no more: For if your Tenant be hindered by you, or any o∣ther, whom you could have restrained, you shall make good to him what it might concerne him, if he had enjoyed it; that is the profit which he might have made thereby. But if he be hindered by one whose greatnes, or power, you could not prevent, you are bound to no more then to restore, or remitt his rent.

15 Of unnecessary Charges laid out by a Partner. D. 3. 5. 27.

TItius and Seius two Brothers, one being of full age, the other a Minor, had a Country Farme, held in Common between them: the elder bro∣ther built thereon a larger House, with faire Galle∣ries, and when the younger came to age, and the ground was to be divided betwixt them, he deman∣ded allowance for the charges he had expended, in building thereupon. It was questioned, whether the younger brother were bound to allow any. Modesti∣nus answered, That what charges were laid out un∣necessarily, and for his own pleasure, he ought not to be allowed.

16 Of Losses befalling to one, of two partners. D. 17. 2. 52. § 4.

TWo Partners driving a joint Trade in certaine commodities, One of them took a journey to buy things conducing to their Trade, and fell amongst theeves, which rob'd him of his money and cloaths, and wounded his Servant: It was que∣stioned, how farre the other Partner ought to con∣tribute to the losse? Julianus said, The other Part∣ner ought to be joyned, and bear his part in the losse, not onely in the money, but also of the goods, and other things, which his Partner had not taken with him, but for the advancing of their common Trade, and also of the charges which were sustain∣ed, in providing Physicians to cure the Servant wounded, which is to be observed: Sayes he, if Goods suffer shipwrack which could not otherwise be conveyed but by Sea, for as the gain, so the losse must be common, if it happened not by the fault of one of the Partners.

17 Of a reputed Heir joyned with a surviving Partner, D. 17. 2. 62.

TItius and Seius being Partners, and having a joint stock, Titius died, and Maevius being re∣puted his heir, together with Seius, Sold the stock, and the proceed thereof was divided between them. Afterwards it appeared, that Sempronius was the true heir to Titius: It was questioned, whether Sempronius could recover any thing from Maevius,

the surviving partner. Neratius and Aristo were of opinion, That he could not, because Maevius recei∣ved no more, then what his own part was sold for; neither makes it any difference, whether either of them sold his severall part, or both joyned in the sale of the whole: And whatsoever Sempronius shall recover from Maevius the reputed heir; he shall en∣joy it wholly to himself, without rendring any part to Seius.

18 Of Equality to be kept in division amongst Partners. D. 17. 2. 63.

LƲcius, Gaius, and Attius, three Partners, deal∣ing in the same Trade jointly, and some diffe∣rence arising amongst them: First Attius sued Lucius, and had his entire third part adjudged unto him. Afterwards Gaius commenced the like sute a∣gainst Lucius for a partition, but there remained not so much as to make up his third part, equall to that which Attius had received: It was questioned whe∣ther Gaius might sue Attius, to returne something of what he had received, to make their parts equall. It was resolved by Vlpian, that he might: Because it was unjust, that out of the same Partnership one should gain or keep more then another, which opi∣nion is grounded on Equity.

19 Of one Requesting another, to Buy something, whereof he might have a share, buying the whole himselfe. D. 17. 2. 52.

MAevius and Gaius had two grounds, the one adjoyning to the other, and Lucius Titius a third ground, abutting upon those two; Maevius understanding that the third ground was to be sould, requested Gaius to buy the same, to the end, that the part abutting upon his ground, might be annexed thereunto (whereunto it seems Gaius a∣greed) Afterwards Maevius, without acquainting Gaius therewith, bought the whole ground for his own use: It was questioned, whether Gaius might not sue him to communicate to him a part thereof. Julianus answered, It was a doubtfull businesse. For if it were desired only, that Gaius should buy the ground of Lucius Titius, and suffer Maevius to have part thereof, Gaius had no ground of action against Maevius for purchasing the whole. But if it were a∣greed, that it should be done, as a common busines, Gaius might have his remedy, that Maevius reserving one part to himselfe, should convey the other unto him.

20 Of undertaking to save one Harmelesse during another mans life. D. 17. 1. 59. § 5.

LVcius Titius by his letter, gave order to Seius to lend a hundred pounds, to Blaesus Severus his kinsman, and bound himselfe, to save him in∣damnified, both for the mony, and interest there of, as long as Blaesus Severus should live: Seius having

lent the mony to Blaesus Severus, often times deman∣ded the same of Lucius Titius, and at length Blaesus Severus died. It was questioned, whether Lucius Ti∣tius stood bound after his death. Paulus answered, That the obligation, which arose from his order, became perpetuall, being not satisfied upon demand; although in the following words of the order, it were exprest that he would save him harmlesse as long as Blaesus Severus lived.

21 Of Vndertaking as much in effect as was desired. D. 17. 1. 62.

LVcius Titius wrote to Gaius Seius, desiring that he would be bound with Publius Maevius, to Sempronius, for an hundred pounds, and en∣gaged himselfe, that if Publius Maevius failed, he would make it good: Gaius Seius was not bound with Publius Maevius, but in stead thereof, gave or∣der to Sempronius to lend so much, and afterwards being sued paid the same: It was questioned, whe∣ther he might have remedy against Lucius Titius, upon his Letter, not having observed his request therein? Scaevola answered, That he might, having done the same in effect.

22 Of Power not to be extended to deceit. D. 17. 1. 60. § 4.

LVcius Titius wrote unto Seius, his brothers sonne, That beyond the interest he had in him by nature, he gave him full power by this his Letter, as master of his estate, to order, and dispose thereof, as he should think fit, promising to allow and ratify the same. It was questioned, whether if he should dispose of any thing fraudulently, or to

the prejudice of the estate, the power were suffici∣ent? Scaevola answered, That the power was very large, but did not extend to any thing which might be done deceitfully.

23 Of ones Acting by a Letter falsified. D. 50. 1. 36.

TItius residing as a Student at Rome, the Magi∣strates of Ostia, where his friends dwelt, directed a Letter unto him, with an Order of the Town in∣closed, to be presented to the Emperour; for which service he was to receive a reward. But the Messen∣ger who undertook the delivery of the Letter, gave it to Lucius, who was there likewise, upon some oc∣casion of businesse of his owne, he rasing out the name of Titius inserted his owne; and according to the directions of the Magistrates of Ostia, deliver∣ed their Order to the Emperour: It was questioned, whether of them ought to receive the reward? and what he deserved, who misdelivered the Letter, and he who rasing out the right inserted a false name? Modestinus not weighing the latter, answers to the former, That in truth Titius could not de∣mand the reward, but he who delivered the Order, although he had falsified the name.

24 Of Money delivered as Guift, received as Loan. D. 12. 1. 18.

ONe delivered a summe of money to another with an intent to give it freely, the other re∣ceived it not otherwise then by way of Loan: It was questioned what the businesse amounted

unto? Julianus said, it was no free guift, and Pau∣lus said, it was no Loan, neither was the property of the money altered, because it was received in a way different from that, wherein the moneys were delivered, and therefore if the moneys were spent, by Law there lay an action at any time to recover the same, but he that was sued, had likewise the be∣nefit of a just exception, to wit, that the moneys were spent, according to the minde and meaning of him, who delivered the same.

25 Of Money given to be Lent to him who gave it. D. 12. 1. 20.

ONe gave money to another to the intent, that he who received it, should presently lend the same again to him who gave it, which was done accordingly: It was questioned whether this money were given or lent? Julianus said, That in this case there could be no free guift, nor no Loan; no guift, because the money was not given with an intent that it should remain with him that received it, and that there could be no Loan because it was done in pursuit of an agreement to free him, who first received it, not to oblige him to whom it was returned. But these things, Sayes he, are so, if they be understood according to the nicety, and subtilty of the words used; but by a fairer and a more reaso∣noble construction, the guift and the loan were both of force.

26 Of Mony ordered to be lent by one, received as lent from another. D. 12. 1. 32.

SEius requested Gaius and Sempronius to lend him a summe of Mony; Sempronius gave order, to a debtor of his, who owed him so much, to deli∣ver it. Seius received it, and undertook the pai∣ment thereof, as if that debtor had been engaged to Gaius, and had lent the mony in his name. It was questioned, whether Seius were bound to Sempro∣nius: and it is doubted, because Seius did not un∣dertake any thing, as to him. But it was resolved by Celsus, that he rather stood bound to Sempronius, not that he lent the mony, for that could not be, unles both parties had so agreed, but because it stood with Equity, and honesty, that the mony which came from Sempronius, should be repaied to him againe.

27 Of Plate delivered to be sould, instead of monies desired to be borrowed. D. 12. 1. 11.

TItius desired to borrow Ten pounds of Maevius, who having not so much monies to spare, deli∣vered to him a Silver Plate worth so much, and gave him power to sell it, and to make use of the Mony. It is not doubted, but that if Titius had sould the same, he must have become creditor for the Mo∣ny: but if the Plate were lost, before Titius could sell it, without any fault of his, It was questioned, whe∣ther Maevius or Titius should bear the losse. Vlpian saies Nerva distinguisht in the case, and was of opi∣nion, That if Maevius formerly had kept that plate

of Silver, with purpose to sell it, as his own occasi∣ons should require, if it were lost, the danger belon∣ged to him, as it must have done, if he had delive∣red it to another man, to sell for him. But if he formerly had, and kept it, not for any such purpose, but was contented, that it should then be sould, on∣ly that Titius might make use of the mony, the losse ought to fall upon Titius; especially if it were lent, without condition of interest, or exspectation of gaine thereby.

28 Of a Horse lent, failing in his Journey. D. 13. 6. 23.

ONe who had lent his Horse to another, to take a journey to a certain place, the Horse failing, would have recovered satisfaction of him, to whom it was lent. Pomponius told him, That if the Horse were tyred, or failed without his fault, to whom it was lent, he was not liable for any thing, because he that lent it, for such a journey, was in fault, the Horse being not able to performe the same.

29 Of a Thing Lent to two, and lost. D. 13. 6. 5. § 15.

ONe lent a Waggon, at the same time to two se∣verall persons, which was lost: It was questio∣ned, whether each of them were liable for the whole, or both of them, for their severall parts. Vl∣pian answered, That although the Waggon were not lent by parts, yet in effect, the use thereof, was in∣tended to be made by parts, because one of them to whom it was lent, could not make use of the whole alone, but in truth it being gratis or freely done,

each of them was bound, not onely to use no fraud, nor fault in the employment thereof, but also to use all diligence in keeping the same, and therefore each of them alone was bound to make good the whole; but if one upon sute had made satisfaction for the whole, the other was freed.

30 Of a Thing Lent and Lost, received by the Owner. D. 13. 6. 17. §. 21.

ONe lost a horse which he had borrowed, and paid the price thereof, the owner afterwards received his horse again: It was questioned, what was due to him who had paid for it? Labéo said, He might recover by suit either the thing which he had paid for, or the price which he gave for it. It was further questioned, If he who lent something to anothet stole away the same, and by suit recovered the value, whether the theft being dis∣covered, he might not be sued as a thief? Africanus answered, That he conld be sued as a theef, for ta∣king his own, but he might be compelled to returne the horse to him who had paid for it.

31 Of Interest of money deposited, undertaken to be paid. D. 16. 3. 28.

QVintius Cecilius wrote to Paccius in this man∣ner: These are to signifie to you, that the fif∣ty pounds, which you desired should be left with me, are put to mine account, which I shall be carefull to see employed, that you may receive inte∣rest

for the same: It was questioned, whether if no interest were received, it might be recovered upon this Letter? Scaevola answered, That the interest ought to be paid, although none were received by Cecilius, nor the moneys were any waies employed to his use.

32 Of fair and conscionable Dealing, touching things deposited, in severall respects. D. 16. 3. 31.

AS in other Contracts, so especially in things deposited, or left in trust (saith Tryphoninus) conscionable or fair dealing is required, which conscionable or fair dealing ought to be regulated by the greatest Equity that may be: But he makes a question whether that Equity ought to be estimated, meerly according to the Law of Nations, as betwixt man and man? Or whether respect also to the civill Law, made for the good of the Common-wealth, ought not to be had? And by way of instance sup∣poses, That one who was guilty of some Capitall crime, left in trust with his friends a hundred pounds, and was afterwards convicted, and his goods adjudged to be confiscated; In which case, How shall the friend, trusted with the money, acquit himselfe? He sayes, if the Law of Nature and Nati∣ons only be looked upon, the money is to be resto∣red to him, who left it in trust: But if the civill law or the law of the Countrey be considered, it shall ra∣ther be brought into the publique Treasury, because it is just, that he who hath publickly offended, for example, and deterring of others, should be reduced to penury, and deprived of his goods. He makes another Enquiry: Whether this faire dealing and Equity ought to be considered in respect

of those persons only, betwixt whom the contract for restoring what was left, was made, or whether regard should be likewise had to other persons, whom the businesse doth concern; As for example, A Theef or Robber took away a pack of goods from an honest man, called Titius, and left the same in trust with Seius, who knew nothing of the theft or robbery; whether ought Seius afterwards under∣standing the truth, to restore the goods to the theef or robber, or to Titius? He sayes, If regard be had to the persons of him who left, and the other who received the goods in trust, It stands with fair dealing and equity, that he who deposited the goods should receive the same, but that, If Equity that be regarded, which results out of the whole businesse, and relates to all the persons that are concerned therein: they ought to be restored to Titius, from whom they were wrongfully taken away; and there∣upon he concludes, That that is best justice which so renders to every man his own, that it be not di∣verted from him, who hath a better title thereunto; and addes, That if Titius come not to demaund his goods, the evill getting thereof shall not hinder, but that he, who left them in trust, ought again to receive the same.

33 Of a House engag'd, burnt and rebuilt. D. 20. 1. 29. § 2.

A House being engaged for debt, was afterwards burnt down, and Ludicius Titius buying the ground whereon it stood, built another house thereon. It was questioned, Whether the Creditor had any right to that house? Paulus answered, That the right was not extinct, and what was built on the ground followed the condition thereof; but he

that built the house, being ignorant of the engage∣ment, was not bound to render it to the Creditor, unlesse he were satisfied for the charges in building; in regard by his means the Creditors right had been improved.

34 Of a Shop engaged for moneys borrowed. D. 20. 1. 54.

A Mercer, being indebted for a considerable sum of money, engaged his Shop by way of security for the same: It was questioned first, whether the Wares in the Shop were engaged, Secondly, whether the present wares or any other, that should be brought into their room, might be sued for as liable for the debt? Scaevola answered, First, That the wares in the Shop were included, for otherwise the Security had been to no purpose; Secondly, That although the wares which were in the Shop were at severall times all sold, and others brought in their room, yet all, that at the death of the Mercer were found in his Shop, were liable, as engaged for the debt.

35 Of Cattell pawn'd, and disposed of by the Heir. D. 20. 1. 26. § 2.

LVcius Titius borrowing money engaged, by way of Security for the same, certain grounds, and the stock of Cattell going thereon; He dying, his heirs divided the grounds betwixt them, and the stock of Cattell being worn out, put other Cat∣tell in those grounds, the money being unpaid, the Creditor entred on the grounds, and distrain'd the Cattell: It was questioned, whether he had any

right to the Cattell, which were afterwards found on the ground? Modestinus answered, That if they were not the same Cattell, which were first enga∣ged, nor proceeding from them, the Creditor had no right unto them.

36 Of Cattell engaged, before they were put into the Land-lords ground. D. 20. 4. 11. § 2.

THe Tenant agreed with the Land-lord, that whatsoever Cattell he should put into his ground, they should be engaged for the rent, and having a flock of sheepe, he borrowed a summe of mony, and obliged them for paiment thereof, and afterwards he put them into his ground: It was questioned, whether of the two, had better right for satisfaction from the sheep? Gaius answered, That the later, to whom they were engaged simply, had better right then the former, to whom they were to become engaged, when they were to be put into his ground; which happened after the other engagement.

37 Of Goods profer'd but sold before engagement. D. 20. 3. 4.

TItius having a desire, to borrow mony of Maevi∣us, promised security, and designed, or shewëd some goods, which he would engage; but before he received the mony, he alienated some of those goods: It was questioned, whether the goods aliena∣ted, were liable to Maevius for his debt? Paulus an∣swered, after the security offered, or promised, it was in the power of Titius, not to borrow, and of Maevius, not to lend the mony, and that the contract,

for engaging the goods, was to be understood of the goods at the time, when mony was lent, and there∣fore, it was to be considered, only, what goods were his at that time.

38 Of things engaged to one, for Rent due at a day, and before that day, engaged to another, for ready Mony. D. 20. 4. 9.

ONe who hired a bathing roome, for a terme, to commence from the Kalends of May fol∣lowing, agreed, that his Bond-man Eros, should be engaged to the owner as security, untill his rent were paid. The same man before the Ka∣lends of May, borrowing Mony of another man, gave his Bondman Eros pledge for the same: It was que∣stioned whether of the two had better right to the Bondman? Africanus answered, That he who rented out the Bathing roome, had the better right, for al∣though nothing were due to him, when the Bond-man was engaged to the other Creditor, who lent the mony, yet because, before that time, he had a right to the Bondman, which could not be taken from him, without his consent, his interest was better then the others.

39 Of a Ground sold upon condition, and then en∣gaged, recovered, for not performance of the condition. D. 20. 1. 31.

ONe, who owed an yearly tribute to the Com∣monwealth, sold a ground, upon condition, that if the Tribute were unpaid, he the former owner might resume the same: Afterwards, he that bought it, engaged the groūd unto another for a sum

money, and neither the Buyer nor the Creditor, to whom it was engaged, paying the Tribute: It was decreed, that the first owner might resume the ground: It was thereupon questioned, whether any right remained to the Creditor to whom it was en∣gaged? Scaevola answered, That the first owner just∣ly resuming his right, the engagement vanisht, and became of no effect.

40 Of a Ground engaged to three persons, whereof the last redeemed it from the first, D. 20. 4. 12. §. 8.

LVcius first borrowing money of Titius, agreed with him, that a certaine ground should stand engaged for payment thereof. He afterwards borrowed money of Maevius, and agreed with him, that when that ground was disengaged from Titius, it should be liable to him for his money. In the third place, Sempronius lent money to Lucius, to pay Titius, and it was agreed, that the same ground should be engaged to him in the room, or place of Titius; It was questioned, Whether Maevius who lent money in the second place, or Sempronius who came in the third, had better interest to the ground? Martianus was of opnion, that Sempronius, with whom it was agreed, that he should be in the room or place of Titius had the better title.

SECT. II. Of speciall Contracts.

Speciall Contracts are such, wherein according to the Law and Custome of the Countrey, something is added, besides the nature of a common contract, by speciall Govenant or agreement; or when some∣thing is promised in solemn and formall words or writing; or undertaken by a surety on anothers behalf.

1 Of a Sale covenanted to be be void, if the price be not paid at a day. D. 18. 3. 8.

POsthumia sold certain grounds to Gaius Sei∣us, and took five pounds of him by way of earnest, and appointed a certain time, for payment of the rest of the money; and co∣venanted with him, That if he should fail of pay∣ment at the time appointed, he should loose his earnest, and the ground should be unsold: Gaius Seius at the time appointed brought his money seald up in baggs, and before witnesses, offered himselfe ready to pay the same. But Posthumia did not appear at that time: the next day, he was required by an Officer of the publique Treasury, not to pay any mo∣ny

to Posthumia, untill he had paid his publique debt? It was questioned, whether Posthumia might not resume her right in the grounds, according to the Covenant, the mony being unpaid? Scaevola an∣swered, that as the case was proposed, Gaius Seius had done nothing against the covenant or agree∣ment.

2 Of a Sale covenanted to be void, if within a set time more were offered. D. 18. 2. 17.

ONe who had two Bondmen, sold them, to two severall persons, for ten pounds a peece, in case no man should offer, or give more; within ten daies, within which time, one offered for both these Bondmen thirty pounds: It was que∣stioned, whether, and how far the former sale were voyd? Julianus answered, That it was considerable, whether he would give twenty pounds for one of them, and ten pounds for the other, or whether he would give fifteen pounds for each of them; for if the former were intended, then the sale was voyd, touching him, for whom twenty pound was offe∣red; if the latter, the sale was voyd for both, and the second Chapman, was to be admitted to the bar∣gaine; but if it were uncertaine, for which, or in what respect, the greater summe was offered, there was no sufficient ground, why the former bargaine should not hold good.

3 Of part of a Ground, warranted, recovered. D. 21. 2. 45.

ONe selling a ground, shewed the bounds thereof, and warranted it to be an hundred acres, of which if any were evicted, or reco∣vered, it was to be at his perill. After the sale, part of the ground shewed by him, was recovered by another man, yet that which remained, amounted to an hundred acres: It was questioned, whether the seller, were liable at his perill for that which was recovered? Africanus answered, That he was liable, in regard that Land which was recovered, might be better then any part of that which remained.

4 Of two Horses sold, one recovered from the Buyer. D. 21. 2. 49.

ONe bought two Horses for five pounds a peice; one of them being recovered from him, he was offered ten pounds for the other: It was questioned, Whether according to the custome, he were bound to pay the mony, and interest for that which was recovered? Africanus answered, that he was lyable, although he had sold them both toge∣ther for ten pounds.

5 Of a Ground sold, whereof a third person reco∣vered part, and part, was lost by the Sea. D. 2••. 2. 64.

ONe sould and gave possession of a ground, con∣taining a thousand acres, whereof, the sea af∣terwards breaking in, two hundred were lost, and Titius a third person, who had right to a fourth part, sued for two hundred and fifty acres, but reco∣vered only two hundred acres: It was questioned, what he, who had covenanted to make double satis∣faction to the buyer, for what should be recovered from him, was liable unto? Papinian answered, That he was liable only for a fifth part, that is, two hun∣dred acres, not for the fourth, which was two hun∣dred and fifty, although Titius had right to so much; for that which was lost by the seller he was not boūd to make good; but if the whole ground, after the sea had broken in, had been recovered by Titius, in strictnesse of Law, nothing of what was covenanted for, should have been abated unto the seller, no more then if after a horse is sold, he grow lean before he be recovered by another man. As on the other side, If after the sale, a thing be improved in value, and then recovered, the obligation for satisfaction in case of eviction, is still the same, as it was at the time of the sale, so that, if by receding or falling back of the sea, two acres of land accrue unto the ground, and of a thousand it become twelve hundred acres, and a fifth part of the whole be recovered, satisfaction shall be given, only for the two hundred acres, which were the fifth part of the thousand, at the time of the sale; because the recovery of part of the two hun∣dred, which accrued afterwards by the falling away

of the sea, belongs not to him who made the sale. It is further questioned, If after the sale of Lands or Grounds containing a thousand acres, two hundred acres be lost on the one side, by breaking in of the sea, and on the other side, two hundred be gained, by falling back of the sea, and then a fifth part indi∣stinctly be recovered, for how much the seller shall be liable to make satisfaction: Papinian answered, he shall be liable neither for the fifth, nor the fourth part, of a thousand acres, but as if▪ of eight hundred, a hundred and sixty only had been recovered, for the other fourty acres which were lost in the whole, by the breaking in of the sea, are recompenced by what was gained on the other side.

6 Of Land Let, Covenanted to be till'd. D. 19. 2. 53.

ONe let Ground to another for seven years, for three pounds yearly rent, and covenanted, that if the Ground were not tilled and manured, the Land-lord might let the same to another man; and if it happened to be for a lesser summe, the former Tenant should make good the rest. The Ground after a year being not tilled, the Land-lord let the same to a third person at four pounds yearly, for the remainder of the term: It was questioned, whether the Land-lord ought not to allow the former Te∣nant the surplusage, above the three pounds yearly? Julianus said, In such Covenants it is to be conside∣red what was agreed betwixt the parties. But in the businesses in question, in regard nothing was provi∣ded, in case the ground were let for more, it seems the covenant was inserted in favour of the Land-lord only.

7 Of Covenants unperform'd on b••th sides. D. 18. 5. 10.

TItus Cornelius, bought certain grounds, of Junius Blaesus; and having cause to suspect, that Nume∣ria, and Sempronia might trouble him, by suing for the same, covenanted with Junius Blaesus, that part of the mony, should be detained in his own hands, untill a sufficient surety were given, to save him harmles; afterwards Junius Blaesus, added another covenant, that if by a certain day, the whole price were not paid, the grounds should remain to him as unsold. In the mean time Numeria commencing a suit concerning those grounds, Blaesus obtained a sentence against her, and then compounded with Sempronia: so that Titus Cornelius had no cause left, to doubt his title: It was questioned, no surety be∣ing given by Blaesus, and the mony, at the time ap∣pointed being unpaid by Cornelius, whether the sale were void? Scaevola answered, That if it were co∣venanted, that a surety should be given before the mony were paid, and that was not done, there be∣ing no fault in Titus Cornelius, the later covenant ought not to be insisted on, to make the sale voyd.

8 Of a Covenant to doe no dammage to another mans house. D. 39. 2. 25. & 26.

TItius, whose house owed no service to the house of Gaius his neighbour, gave him bond, that he would doe him no wrong or dammage, in building,

or contriving any thing in his house: It was questio∣ned, if Titius built his house higher, whereby the lights of Gaius his house were darkned, or made a well, whereby a spring of water, was drawn from the well of Gaius, whether he might sue Titius upon the bond? Proculus answered, That Gaius had no right to sue Titius, upon that occasion; for he is not held to suffer dammage, who is hindered from that benefite, which he formerly enjoyed; and Trebatius gives this reason, because it cannot be imputed as a wrong, when one does no more, then it is lawfull for him to doe.

9 Of a Covenant to pay mony, if such or such a thing be not done. D. 34. 5. 13. § 2.

LVcius bequeathed to Titius a house, and a ground, and made Maevius his heyre; Titius co∣venanted with Maevius, that if Maevius did not convey unto him, such a certain house, or such a certain ground, that Maevius should pay unto him, a hundred pounds: At the time appointed, Maevius conveyed to Lucius the house agreed upon, but not the ground: It was questioned, whether he were liable to pay the hundred pounds, Julianus said, That he was liable to pay the hundred pounds, and that it was all one, whether the one or the other were unperformed. Indeed it were more evident, when divers things are proponnded, all which we would have done, if we covenant for a penal∣ty, in case any of those things shall be o∣mitted; and if diverse things be pro∣propounded,

whereof the performance of one is sufficient, to covenant, if none of those things shall be done, you shall pay a hundred pounds.

10 Of Money due upon default of condition, not to be required untill the time of performance. D. 45. 1. 8.

LVcius Titius covenanted with Sempronius, that if he did not give him Sticchus his bondman, on the first of the Kalends of March, he should pay him ten pounds; Stichus the bondman died in the mean time, long before the Kalends of March: It was questioned, whether Sempronius might not then presently sue for the ten pounds; in regard it could not be possible that Lucius Titius should give him Stichus at the time appointed: Sabinus and Proculus answered, That he had no right to sue before the Kalends of March: which Paulus likewise approves; because the the whole obligation hath both a condi∣tion, and a certaine day for performance: and al∣though, as to the condition, it was in force, and the money became due, yet the day of payment of the money was not then come.

11 Of a Covenaut to binde one to Marriage, under a forfeiture. D. 45. 1. 134.

TItia having a son, who was a Batchelor, married with Gaius Seius, who had a young daughter unmarried: At the time of their Marriage, It was agreed between them, that the sonne and the daughter should contract espousalls together, and a Covenant was drawn up in writing, that on that side

or part, whence any impediment should happen, to disappoint the compleating of the marriage, an hun∣dred pounds should be forfeited to the other par∣ty: Afterwards Gaius Seius dying, his daughter re∣fused to be married, to the sonne of Titia: It was questioned whether the hundred pounds, covenan∣ted to be forfeited, might be recovered from the heirs of Gaius Seius: Scaevola answered▪ That if Titia brought her action upon that Covenant, the heirs of Gaius Seius might take exception unto the unlaw∣fulnesse thereof: Because it was alwaies held a di∣shonest course, to entangle pesons, by danger of for∣feitures, to contract either Espousals or Marri∣ages.

12 Of a Surety, not being liable, when and where the principall debtor is not. D. 46. 1. 49.

SEmpronius borrowed money of Maevius, to be re∣paid by him at Capua, and Cornelius as a sure∣ty, bound himself for the performance thereof; Maevius understanding that Sempronius was arrived at Capua, & in that respect liable to his action there, demanded payment of the Money from Cornelius the surety, then remaining at Rome. Papinian being con∣sulted thereupon, answered, That although the acti∣on did lie at that time against Sempronius, then being at Capua, yet Cornelius the surety was no more liable to the action, then if he himself being at Cappua, had undertaken for the payment, when Sempronius the principall debtour was not yet arrived there; for in that case it was certain, the principall could not have been sued, there being a Tacit allowance of time for payment, in a remote place; and it were hard the

surety should be sued, when the party principall was not liable to an action; and therefore he concludes, that the tacit allowance of time for paiment, is to be granted to both; and that they who are of ano∣ther opinion, would contrary to the rule of Law, make the condition of the surety worse, then of the principall Debtor.

13 Of Disengaging the Security, before the debt be paid. D. 17. 1. 38.

LVcius Titius, at the request of Maevius his natu∣rall sonne, gave way, that he should engage for a debt, a house, which was common to them both, without any intention of putting away his right therein: Afterwards Maevius dying, and lea∣ving a Daughter under age, her Tutors began to question Lucius Titius, for some matters before the Judge; He desired that his interest in the house, might be freed, from Maevius their fathers engage∣ment: It was questioned, whether the Judge might take order to free it? Marcellus was of opinion, that the Judge might proceed therein, taking into his consideration, the condition of the Debtors, the a∣greement had betwixt them, and the length of the time, wherein the house had been engaged; which businesse, he saies, is not unlike that of a surety, which often falls out, when he sues to be discharged, before the debt be paid, for he ought not alwaies to stand expecting, when the principall Debtor will take order for payment, or the Creditor sue, and re∣cover his mony, if the principall debtor be a long time negligent, and the surety himselfe prove lesse able to satisfy; which if he had in due time been en∣forced unto, he might have had some remedy a∣gainst

him, for whom he was intreated to become engaged.

SECT. III.

Of Reputed Contracts.

Reputed contracts are, when, without mutuall or expres consent on both sides, one becomes ob∣liged to another, by businesse voluntarily a∣cted, or done, or being imploy'd in some pri∣vate charge or publique office.

1 Of a Grandmother maintaining her Niece in Minority. D. 3. 5. 34.

NEsennius Apollinarius puts a case to Paulus, as followeth, The Grandmother took up∣on her the managing of the Nieces estate; both being dead, the heyres of the Grand-mother, being sued, by the heyres of the Niece, for goods which belonged unto her, demanded allow∣ance, for the Nieces diet, for which the Grandmo∣ther, some years had been at charge. It was answe∣red by the heires of the Niece, that the Grand-mo∣ther out of her naturall affection, gave her Niece her dyet freely, and therefore no satisfaction was to be required for the same. It was replyed on the o∣ther

side, That the Grand-mother, might have been supposed, to have given the dyet freely, if the char∣ges thereof, had appeared, to have been taken out of her own proper estate: other waies it was more likely, that it was done, out of that, which belon∣ged to the Niece. Some were of opinion, that the charge should have been cast upon both estates. Paulus returned answer, That the determination of the difference, depended upon the matter of fact; the presumption of the Grand-mothers liberality, doth not alwaies hold; How if she openly professed, that she expected satisfaction from the Tutors, or from the child coming to years? And therefore he was of opinion, that the heires of the Grand-mo∣ther, ought to be heard, if they can shew, the char∣ges of the Nieces dyet, were put unto her account.

2 Of Monies laid out in respect of one, proving to be for the benefit of another. D. 3. 5. 45.

TItius conceiving his sister to be heire to Sem∣pronius, by his will, payd mony to some, to whom Sempronius was indebted, which after-wards proved otherwise; Sempronius his sonne ap∣pearing to be his heyre, It was questioned, whether the sonne were bound to give him satisfaction, for what he had laid out? Vlpian answered, although what Titius had done, was in contemplation of his sister, yet in truth, the sonnes estate, was better'd thereby, and therefore he might have recourse a∣gainst him, who in equity, was bound to give him satisfaction.

3 Of a Debt acknowledged by a Factor, on his Masters behalfe. D. 14. 3. 20.

OCtavius Faelix a Scrivenor, imployed Octavius Terminalis in his businesse, who wrote to Do∣mitius Faelix in this manner; Sir, There remaines in my Masters hands a hundred pounds, which I am to pay unto you, before the first of May, Octavius Faelix shortly after dyed, without any heyre, and left not goods sufficient to pay his debts: It was questioned, whether Octavius Terminalis was liable by his letter, to be sued for the hundred pounds? Scaevola answered, that by writing that letter, he was not bound in Law, neither was there any equi∣ty why he should pay the same; because what he wrote, was in duty of his place under his Master, to shew the account, not to charge himselfe.

4 Of Goods received by the Servant, converted to the Masters use. D. 15. 3. 16.

ONe left his ground to his servant, to be tilled, or manured by him, and furnisht him with Oxen to that purpose, which proving unserviceable, he willed them to be sold, and with the monies, o∣thers to be bought in their stead: the servant sold those Oxen, and bought others, but paid not for them, and afterwards proved nothing worth; he that sold the Oxen, demanded the mony of the Ma∣ster; because the Oxen bought, were converted to his use: It was questioned, how farre the Master was answerable? Alfenus answered, That it was true, that the later Oxen were converted to the Masters

use, deducting what the former Oxen were sold for, and therefore the Master was to be condemned in so much, as the later Oxen were of better value then the former.

5 Of a Tutors account, to be made for interest, not for gaines. D. 46. 7. 47. § 6.

TWo brothers driving a Trade together, as part∣ners, one of them dyed, and left a sonne, to whom the Uncle, surviving became a Tutor; and selling all the commodities belonging to the trade, set out for his Nephew, his moiety in mony, and went on in the Trade alone, in his own name: It was questioned, what he was bound to make good to his Nephew? Scaevola answered, That he was bound to make good the use, or profit of the mony, but was not to account any thing for the gain made by his Trade.

6 Of a Tutor answerable for gaine by speciall appointment. D. 26. 7. 58.

LVcius Titius, who in his lifetime imployed Pam∣philus and Diphilus in his Trade, and negotia∣tion, in his will, appointed them Tutors to his children, & ordained, that they should manage his Trade and affaires, as formerly they had done. They took upon them, the administration of the estate, during the Minority of the children, and Diphilus put to their account, the profits which he raised by trade; but Pamphilus thought to be discharged, by giving an account only of the use mony, or interest, for so much as came unto his hands, as it is usuall

when one is sued, by occasion of Tutorship: It was questioned, whether Pamphilus were not lyable to answer, for what he gained by imployment of the stock, as well as Diphilus? Tryphoninus answered, That the Testator willing, that they should man∣nage the businesse for the Minors, as they had done for himselfe, he was liable.

7 Of Alimony, and Education to be allowed to a Tutor, for a Minor. D. 2. 2. 4.

ONe made his sonne a Minor, his heyre; and bequeathed to his Daughter for her Dower, two hundred pounds, and nothing else; and appointed Sempronius Tutor to them both; at the in∣stance of the kindred, Sempronius, being called be∣fore a Magistrate, was ordered, to allow her Alimo∣ny, and to pay wages to such, as should instruct her in the Liberall Arts. The Sonne coming to full age, payd unto his Sister, then being of ripe years, the two hundred pounds, given to her as a legacy: It was questioned, whether he were also bound, to allow unto the Tutor, what he had expended for Alimony, and instruction of his sister? Julianus was of opinion, That although, without the order of the Magistrate, he had done those things, she ha∣ving no other means to be maintained, the Tutor ought not to be questioned for the same.

8 Of a Tutor keeping to his own use a Minors goods, which a Chapman refused. D. 26. 7. 56.

A Tutor sold cattell, belonging to a Minor, and he that bought them, not paying the price, detained them to his own use, and al∣lowed mony for them to the Minor upon his ac∣count. The Tutor dying, his heyres enjoyed the cattell divers years. When the Minor came to full age, It was questioned, whether the late Minor, had any right to the Cattell? It was answered by Scaevola, as the case was proposed, he had no right.

9 Of Curators of the City, not to be questioned for more then came to their hands. D. 3. 5. 26.

A Citizen by his will bequeathed his goods to the City, the Magistrates appointed three Cu∣rators, Titius, Seius, and Gaius, being then of good ability to manage the estate; they, of their own accords, divided the administration of the goods among themselves severally; it happened af∣ter a while, that the will, by which the goods were bequeathed to the City, was proved to be voyd, and Sempronius next of kinne, was admitted as heyre: in the mean time Titius, one of the Curators failed In his estate, and dyed nothing worth: It was que∣stioned, whether Sempronius might recover of the other two that part of the estate, which came to Ti∣tius his hands? Modestinus delivered his opinion,

that what was wanting, by his default, who mana∣ged part alone by himselfe, ought not to be imputed to the other two Curators, and that the heyre must be contented to sustaine the losse.

10 Of the Publique Mony of the Citty let out to use. D. 22. 1. 11.

GAius Seius, who managed the publique Trea∣sure of the City, lent mony to use, according to the custome of the place, for foure in the hundred; and in the same place, it was likewise the custome, if any debtors failed, at the time appoin∣ted, to bring in the interest or use mony; that thence forth, they should pay after the rate of six in the hundred: it happened, that some Debtors, brought not in the monies at the time appointed, others brought in more then the usuall rate, at foure in the hundred, so that reckoning the one with the other, the Cities monies might be made good. It was questioned, whether the monies re∣ceived, above the ordinary from debtors, should acquit Gaius Seius, by whose negligence, others had failed; or whether the advantage thereof, should redound wholly to the City, and Gaius Seius ought out of his own estate to make good the rest; Paulus answered, If Gaius Seius, contracted with the debtors, for such rates only, as were usuall, the monies so advanced were to be accounted to the City, but if by his own care and industry, he had raised more then was ordinarily taken, although by Law the monies belong to the City, yet it stands with Equity, that the monies raised above the ordi∣nary

rate; should be allowed in satisfaction, for what was wanting in the ordinary; unlesse the Ci∣ty will take upon themselves, the hazard of all the monies lent out to their use.