The Same, Questions, Book I. For our Emperor Severus stated in a Rescript that in questions of doubt arising from statutory enactments, custom, or the authority of decisions which have always been decided in the same manner, should obtain the force of law.

Callistratus, Questions, Book I. Care must be exercised that a person be not appointed judge, whom either side expressly petitions for; as the Divine Hadrian stated in a Rescript that this would offer a bad precedent unless it should be especially allowed by the Emperor through respect for him whose appointment was requested.

Callistratus, Questions, Book I. Where anyone does not produce documents, the plaintiff is permitted to swear to the claim, so that judgment may be rendered against the defendant for an amount of damages equal to the interest the plaintiff has in having the documents produced; and this the Divine Commodus stated in a Rescript.

Callistratus, Questions, Book I. Hence, if partners begin to act separately, and each one of them transacts business on his own account, there is no doubt that the partnership is dissolved.

Callistratus, Questions, Book I. The Divine Claudius ordered by an Edict that the following should be added to the Cornelian Law: “If anyone, while writing the will or the codicil of another, should insert with his own hand the bequest of a legacy to himself, he shall be liable, just as if he had violated the Cornelian Law; and no pardon shall be granted to those who pretend to have been ignorant of the severity of the Edict.” Not only one who has drawn up the bequest of a legacy for his own benefit, with his own hand, is considered to have done so; but also he who, through the agency of his slave, or his son who is under his control, is honored by a legacy at the dictation of the testator. 1It is clearly provided by the Imperial Constitutions that if a testator specifically states, over his signature, that he has dictated to a slave belonging to anyone, that a legacy should be paid the master of the latter by his own heirs, the bequest will be valid; but the general signature of the testator will not avail against the authority of the Decree of the Senate, and therefore the bequest will be considered as not having been written, and the slave who wrote it for his own benefit should be pardoned. I think, however, that it would be safer for pardon to be asked from the Emperor, of course after the parties interested have relinquished their claim to what was left to them. 2The Senate likewise decreed that if a slave, by the order of his master, should write the bequest of his own freedom in a will or a codicil, for the very reason that it is written with his own hand he will not become free; but freedom can be granted to him under the terms of a trust, provided that, after the writing had been done, the testator signed the will or the codicil with his own hand. 3And as only the kind of freedom acquired by means of a trust was embraced in this Decree of the Senate, the Divine Pius stated in a Rescript that the spirit of the Decree, rather than the letter of the same should be followed; for when slaves obey their masters, they are excused through the necessity of the power to which they are subjected; but when the authority of the master is added, he having stated over his signature that he had dictated and read what had been written, he says that it is considered to have been written by the hand of the master himself, when this had been done by his desire. This, however, should not be extended so as to include free persons over whom the testator has no right. Still, it must be ascertained whether the same necessity for obedience did not exist, and whether those who did not comply had an honorable excuse when they failed to do what was not permitted. 4It was decided that pardon for violating the Cornelian Law should also be granted to a mother, for whose benefit the bequest of a legacy had been written by her slave at the dictation of her son. 5The Senate also made the same decision with reference to a daughter who, at the dictation of her mother, through ignorance of the law, wrote a bequest to herself. 6If anyone, after having appointed two heirs, should add that if either one of them died without leaving children, the estate should be given to the survivor, if he had children, but if both should die without any, the estate (what follows was written in another hand) should be given to the person who wrote the will: it is held that he who wrote the will should be released from the penalty of the Cornelian Law; but it would be more beneficent to permit him to acquire what has been mentioned above.

Callistratus, Questions, Book I. It is provided by the Imperial Mandates, which are communicated to Governors, that no one shall be sentenced to chains for life; and this was also stated by the Divine Hadrian in a Rescript.

Callistratus, Questions, Book II. If, for the purpose of lightening an overloaded ship because she could not enter a river or reach a harbor with her cargo, a certain portion of the merchandise is placed in a boat to prevent the vessel from being in danger outside the river, or at the entrance of the harbor, or in the latter, and the boat is sunk, an account should be taken between those who have their merchandise preserved on the ship and those who lost theirs in the boat, just as if the latter had been thrown overboard. Sabinus also adopts this view in the Second Book of Opinions. On the other hand, if the boat is saved with part of the merchandise, and the ship is lost, no account should be taken with reference to those who lost their property in the ship, because jettison necessitates contribution only where the ship is saved. 1But where a ship, which has been lightened in a storm by throwing overboard the goods of a merchant, is sunk in some other place, and the goods of certain merchants are recovered by divers for compensation; Sabinus also says an account must be taken between the party whose goods were thrown overboard during the voyage for the purpose of lightening the ship, and those who subsequently recovered their goods by means of divers. But, on the other hand, no account must be presented by the party whose merchandise was thrown overboard during the voyage to those whose merchandise was not thereby preserved, if any of it was recovered by divers; for it cannot be held to have been thrown overboard for the purpose of saving the ship which was lost. 2But where jetsam is made from the ship, and the merchandise of anyone which remained on board, is damaged; it is a matter for consideration whether he should be compelled to contribute, since he ought not to be oppressed by the double loss of contribution and deterioration of his property. The point, however, may be maintained that he should contribute in proportion to the present value of his property. Thus, for example, where the merchandise of two persons was each worth twenty aurei, and that of one of them became only worth ten, on account of having been wet; the party whose property was not damaged should contribute in the proportion of twenty and the other in the proportion of ten. An opinion can, however, be given in this instance, if we make a distinction as to the cause of the deterioration; that is to say, whether the damage resulted on account of the exposure resulting from throwing the merchandise overboard, or for some other cause; for example, where the merchandise lay somewhere in a corner, and the waves reached it. In this instance the owner will be compelled to contribute, but in the former one, ought he not to be released from the burden of contribution because the jetsam also injured him? Or ought he to be liable even if his goods were deteriorated by the splashing of water on account of the jetsam? A still finer distinction should be made, namely, as to whether the greater loss is sustained through the damage, or through the contribution; for example, if the merchandise is worth twenty aurei, and the contribution is assessed at ten, the damage, however, amounts to two, and this having been deducted because of the loss, must the owner contribute the remainder? How then if the damage amounted to more than the contribution? For example, if the property was damaged to the amount of ten aurei, and the contribution amounted to two, there is no doubt that the party should not bear both burdens. But here let us see whether a contribution should not be made to him; for what difference does it make whether I lose my property by its being thrown overboard, or have it deteriorated by being exposed? For just as relief is granted to a party for the loss of his property, so, also, it should be granted to him whose property has become deteriorated on account of the jetsam. Papirius Fronto also stated this in an opinion.

Callistratus, Questions, Book II. Where several tracts of land are sold and expressly and specifically described in one and the same instrument of sale, each of these is not held to be a part of any other, but all the tracts are included in a single purchase. And, just as if anyone should sell several slaves by a single bill of sale, the action for eviction will include each head of said slaves individually; and just as also where a single purchase is made of several other articles, and only one bill of sale is drawn up, there are, however, as many actions for eviction as there are different kinds of property included in the purchase; so, in the case stated, the purchaser certainly will not be prohibited from bringing suit against the vendor if one of said tracts is evicted, because the transaction included several pieces of land conveyed by one instrument of sale.

Callistratus, Questions, Book II. Where a transaction shows that it has actually been concluded without any documentary evidence, it will be none the less valid because no written instrument with reference to it exists.

Callistratus, Questions, Book II. The Senate decreed that a freedman, who was also the guardian of his patron’s daughter, should be banished because she married him, or his son. 1I think that the foreign heir of a guardian should be included in the terms of the Decree of the Senate by which guardians and their sons are forbidden to marry their female wards; since marriages of this kind are prohibited to prevent wards from being cheated by those who are compelled to account to them for the administration of their guardianship. 2A guardian is not forbidden to give his daughter in marriage to his ward.

Callistratus, Questions, Book II. Where, however, it is evident that such action has not been taken, it must be held to be understood that the property immediately passes to the betrothed, and unless the marriage is solemnized it must be returned.

Callistratus, Questions, Book II. If it was stipulated in the dotal instrument that the dowry should remain in the hands of the husband for the benefit of the children, it can also be retained by him for the benefit of the grandchildren.

Callistratus, Questions, Book II. Where a slave is directed to be free as follows, “Let my heir be charged with the delivery of such-and-such a tract of land to my slave, if he renders his accounts,” let us see whether the condition has reference to the grant of freedom, or to the legacy. And, indeed, if we decide that it only refers to the grant of freedom, no further consideration is necessary, for the legacy is absolute, and therefore void. If, however, the condition was imposed on the legacy, as some authorities very properly hold, it becomes legally payable at the very moment when the slave obtains his freedom. What then is the meaning of the words, “If he renders his accounts”? Certain jurists say that it signifies if he should give a statement of the balance in his hands, just as if there was no difference between the two conditions, “If he renders an account of the balance remaining in his hands,” or, “If he renders his accounts.” We, however, do not think that the condition only has reference to payment, or to some act which is to be performed, but that it includes both of these things, since if the slave should tender the balance of the money in a bag, he will not be released from liability, as this was not the intention of the testator, but he wished him to render his accounts in the way in which a slave usually does so; that is to say, that if he should first show the accounts to the heir, and then the calculations, in order that it may be ascertained whether they are correctly or incorrectly made out, and whether the receipts which have been taken correspond with the statement, or not. In this way the investigation begins with an act, and finishes with the payment of money. These words also mean that the heirs can ascertain from the examination of each item what is contained in the several accounts, for the heir is understood to have ordered the same thing to be done by his heirs which he himself would have done if he had been living. For he was certainly not accustomed to sign accounts, where his slave merely showed him the balance which was due, but he was accustomed to read them, scrutinize them, and take exception to them; therefore, where freedom is left to a slave under the condition, “If he renders his accounts,” it has not merely the signification that he will deliver to his heir all the bonds and documents relating to his administration, but that he will also pay him any balance remaining in his hands.

Callistratus, Questions, Book II. A private agreement cannot make anyone either the slave or the freedman of another.

Ad Dig. 41,1,59Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 6.Callistratus, Questions, Book II. Property purchased by my order does not become mine until the person who bought it has delivered it to me.

Callistratus, Questions, Book II. It is settled that a debtor who has transferred an entire estate, in accordance with the Trebellian Decree of the Senate, is not considered to have defrauded his creditors, if he also transfers the portion which he was entitled to retain by law, but that he has, with the greatest fidelity, complied with the wishes of the deceased.

The Same, Questions, Book II. Many precautions have been taken to hinder property from being stolen during a shipwreck, or to prevent strangers from coming in and taking possession of it. For the Divine Hadrian provided by an Edict that those who owned land on the shore of the sea should, when a ship either badly damaged or broken up within the boundaries of any of them, see that nothing was stolen from the wreck; and that the Governors of provinces should grant actions against them in favor of those who were searching for the property of which they had been deprived, to enable them to recover anything which they could prove had been taken from them during the shipwreck, by those who had possession of the same. With reference to such as are proved to have taken the property, the Governor should impose a severe sentence upon them, as upon robbers. And in order to render proof of the commission of crimes of this kind more easy, he permitted those who complained of having suffered any loss to go before the Prefect and give their evidence, and search for the guilty parties, in order that they might be sent before the Governor either in chains, or under bond, in proportion to the gravity of their offences. He also directed that security be taken from the owner of the property alleged to have been stolen not to desist from the prosecution. The Senate also decreed that neither a soldier, nor any private individual, nor a freedman, nor a slave of the Emperor, should interfere in the collection of articles dispersed by shipwreck.

Callistratus, Questions, Book II. By the term “children,” grandchildren and great-grandchildren, and all their descendants are understood, for the Law of the Twelve Tables includes all these under the term “proper heirs.” When the laws consider it necessary to use separate names for different relatives, for instance, sons, grandsons, great-grandsons, and their descendants, they do not mean that this shall extend to all who come after them. But when certain persons or degrees are not specified, but only those are mentioned who are descended from the same stock, they are included under the term “children.” 1Papirius Fronto, however, in the Third Book of Opinions, says that where land, with a farmer and his wife and children, is devised, the grandchildren descended from the sons are also included, unless the intention of the testator was otherwise; for it has been frequently decided that in the term “children,” grandchildren are also included. 2The Divine Marcus stated in a Rescript that anyone who left a grandson his heir was not considered to have died without issue. 3In addition to all this, Nature teaches us that affectionate fathers, who marry with the intention and desire to have children, inelude under the term all who are descended from them. For we cannot designate our grandchildren by a more loving name than that of children, since we have, and rear sons and daughters for the purpose of perpetuating our memory, for all time, by means of their offspring.