Tryphoninus, Controversies, Book X. A slave named Arescusa was declared to be free by will if she brought forth three children; and at her first delivery she had one child, and at her second she had three. The question then arose as to which of the said children were free? The condition on which her freedom pended had to be fulfilled by the woman, and there was no doubt that the last child was born free; for nature does not permit two children to come forth from their mother’s womb at the same time, by one movement, so that the order of birth being uncertain, it does not appear which one was born in slavery, and which was born free. Therefore, the condition having been fulfilled at the time the birth began, namely that the child should be born of a free woman, it is the one born last, just as if any other condition imposed on the freedom of the woman had been fulfilled at the moment of her delivery; for example, that she should be manumitted on condition that she gave ten thousand sesterces to the heir, or to Titius; and at the instant when she was delivered she fulfilled the condition through the agency of someone else; it would necessarily be held that she was already a free woman when she brought forth the child.

The Same, Disputations, Book X. Where a woman about to marry her debtor who owes her money at interest promises him, by way of dowry, what he owes her; the interest which has become due after the marriage has taken place does not constitute part of the dowry, because the entire obligation is cancelled; just as if all the debt had been paid to the woman, and she had given it by way of dowry.

Tryphoninus, Disputations, Book X. Bæbius Marcellus promised Bæbius Maryllus a hundred aurei, by way of dowry for his daughter, and it was agreed between them that the dowry should not be claimed during the existence of the marriage; or, if the daughter should die during marriage without leaving any children, after the death of her father, half of the dowry should remain in the hands of Maryllus, and half of it should be returned to the brother of the woman; and these matters were also set forth in a stipulation. Marcellus having died leaving a son and a daughter, and having bequeathed the entire dowry to his daughter, Maryllus divorced his wife by whom he had a daughter, and his wife died, leaving her brother and her daughter heirs to equal shares of her estate. Maryllus brought suit before Petronius Magnus, the Prætor, for the entire dowry, against the son of Marcellus, who was his heir, on the ground of the promise of the same; alleging that it had been agreed upon between the two parties that if the woman died without leaving any children, half of the dowry should remain in the hands of her husband, and that the proper construction of the agreement was that the entire dowry should belong to him if the woman should have a son or a daughter. On the other hand, it was held that the exception based on the common agreement was also advantageous to the heir, but that, in the case proposed, the heir being, as it were, the representative of the deceased, could not protect himself by means of an exception on the ground of contract; but that, if he himself had been sued for the dowry during the lifetime of the woman, he might have barred Maryllus by this exception, because a divorce had taken place, and he could interpose the same defence, even after the death of his sister. Therefore it was decided that the heir must be released from liability for the said claim, but that there should be nothing in this opinion to prevent the assertion of the claim based on the trust, under the terms of which Maryllus was entitled to half of the estate as the heir of his wife, obtained through his daughter by hereditary right.

Tryphoninus, Disputations, Book X. But what if out of a sum of a hundred aurei, which a husband presented to his wife, fifty should be lost through a debtor, and the wife should have the other fifty doubled by the interest? The husband cannot recover more than fifty from her on account of the said donation.

Tryphoninus, Disputations, Book X. Cicero, in his oration for Cluentius Avitus, said that when he was in Asia, a certain Milesian woman, having received money from certain substituted heirs, produced an abortion on herself, by means of drugs, and was sentenced to death. If, however, any woman, after a divorce, should commit a violent act upon her viscera, for the reason that she was pregnant and did not wish to bear a son to her husband, whom she hated, she ought to be punished by temporary exile; as was stated by our most excellent Emperors in a Rescript.