Ulpianus, On the Edict, Book XXXIV. We should consider the children of Senators to be not only their sons, but also all those descended from them or from their children, whether they be the natural or adopted offspring of the Senators from whom they are said to have descended; but in the case of a child, born to the daughter of a Senator, we must examine the condition of the father.

The Same, On the Edict, Book XXXIV. A woman must bring an action for her dowry where her husband has his residence, and not where the dotal contract was entered into; for this is not such a contract that it is necessary to take into consideration the locality where the said instrument was executed, so much as the place to which the woman herself, in accordance with the condition of marriage, would always have returned as to her home.

Ad Dig. 22,1,21ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Ulpianus, On the Edict, Book XXXIV. It must be remembered that not everything which is done for a good reason in order to postpone payment should be considered as default. For what if the debtor desires his friends to be present, or his sureties to be summoned at the time that the debt is paid, or intends to offer some exception? It is not held that he is guilty of default;

Ulpianus, On the Edict, Book XXXIV. Where a debtor is suddenly compelled to be absent on public business, and cannot entrust his defence to anyone, he is not held to be in default; and this is the case where he is in the power of the enemy. 1Sometimes it is customary for a party to be considered to be in default where there is no one against whom suit can be brought.

Ulpianus, On the Edict, Book XXXIV. Where a woman gives, by way of dowry, property which has been appraised, and afterwards is in default in delivering the same, and the property ceases to exist, I do not think that she will be entitled to an action.

The Same, On the Edict, Book XXXIV. The Divine Severus stated in a Rescript to Pontius Lucrianus that: “If a woman who has given a dowry, returns to her husband after having been divorced, without the annulment of the marriage contract, the magistrate before whom the matter is brought should have no hesitancy in deciding in her favor; as she certainly did not intend to return to the matrimonial condition without being endowed, and he must discharge his judicial duty just as the dowry had been renewed.”

Ulpianus, On the Edict, Book XXXIV. Where a father promised a dowry, and agreed that it should not be claimed by him while he was living, nor, in any event, so long as the marriage continued to exist, the Divine Severus decreed that the agreement should be interpreted just as if it had contained the addition, “While he was living.” For this is to be understood to have reference to paternal affection, and the wishes of the contracting parties, in such a way that the latter part of the agreement will be held to have reference to the lifetime of the father, as a different construction would separate the profits of the dowry from the expenses of marriage, which would be intolerable; and the result would be that the woman would be held to have no dowry. Hence it was brought about by this Rescript, that if the daughter should die while her father was living, or should be divorced without any blame attaching to her, the dowry could, by no means, be claimed by her husband, but that he could claim it if the father should die while the marriage existed.

The Same, On the Edict, Book XXXIV. If the divorce did not take place in accordance with the prescribed lawful formalities, donations made after such a divorce are of no effect, since it can not be held that the marriage was dissolved.

The Same, On the Edict, Book XXXIV. If a girl who has been emancipated should obtain a divorce in order that her husband may profit by her dowry, and defraud her father who could claim it as profectitious if she should die during marriage, relief should be granted the father to prevent him from losing the dowry, for the Prætor must come to the aid of the father just as much as to that of the husband. The right to claim the dowry should therefore be granted to the father, just as if his daughter had died during marriage.

Ulpianus, On the Edict, Book III. In a case of this kind it makes no difference whether the parties are living together or separately; since an action for property wrongfully appropriated can even be brought against a woman who has taken it into a house in which she is not living with her husband. 1A wife, a daughter-in-law, or the wife of a grandson can steal from her husband, her father-in-law, and the grandfather of her husband, but still she will not be liable for theft unless the son is not emancipated; for, in this instance, the daughter-in-law commits a theft against her father-in-law, and is liable to an action for theft.

Ad Dig. 25,2,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 454, Note 24.Ulpianus, On the Edict, Book XXXIV. If a woman, at the time of the divorce, introduces thieves into the house of her husband, and removes property by their agency, even if she herself does not handle it, she will be liable to an action for its wrongful appropriation. It is therefore true, as Labeo states, that a wife is liable to this action, even if the property does not come into her possession.

Ulpianus, On the Edict, Book XXXIV. The Decree of the Senate enacted with reference to the recognition of children is in two parts, one of which has reference to the recognition of children by their parents, and the other to those who substitute spurious offspring. 1The Decree permits the woman herself, or her father under whose control she is, or anyone who is directed by either of them, in case she believes herself to be pregnant, to notify her husband, or her father under whose control she is, within thirty days after the divorce; or to leave the notice at his residence if there is no opportunity for personal service. 2We should understand the term “residence” to mean the lodging of the husband, if he lives in a city, but if he does not, but resides in a country house, or in a provincial town, the place where the parties have established their domicile during marriage. 3The wife should merely notify the husband that she is pregnant by him. She does not give this notice in order that her husband may send guards to watch her, for it is sufficient for her to inform him that she is pregnant. The husband should then either send persons to watch her, or should notify her that she is not pregnant by him; and it is permissible for this notification to be made by the husband himself, or by another party in his name. 4The penalty of the husband, if he does not send persons to watch, or does not notify the woman that she is not pregnant by him, is that he shall be compelled to recognize the child; and if he should not do so, to be punished with extraordinary severity. Therefore, he should answer the notice, or it should be answered in his name, that the woman is not pregnant by him. If this is done, it will not be necessary for him to recognize the child, unless it is really his own. 5It should be remembered that the notice does not proceed from the husband, but from the woman. 6If, however, the husband should offer guards to watch his wife, and she should not allow this; or if she does not give him notice of her condition; or if she should give him notice, but not consent to accept the guards appointed by the court, the husband or his father is at liberty to refuse to acknowledge the child. 7Where a woman does not give notice of her pregnancy within thirty days, but does so afterwards, she should be heard after proper cause is shown. 8If, however, she should entirely neglect to give the notice, Julianus says that this does not in any way prejudice the child. 9We should understand the thirty days subsequent to the divorce to be continuous, and not available days. 10In the Nineteenth Book of the Digest by Julianus, the following nice point is suggested. If the woman should not notify her husband of her condition within thirty days, but should be delivered of a child within that period, will the Decree of the Senate apply? He says that, in this instance, the Plautian Decree of the Senate will not be applicable, because it was not considered to have reference to a child who was born within thirty days, for the Senate appointed the thirty days for the notification of the pregnancy. I think, however, that this would not in any way prejudice the child. 11Just as, on the other hand, if the husband, after receiving notice from his wife, should send guards, this would not cause any prejudice to himself. He will, therefore, be permitted to deny that the child is his, nor will it prejudice him, because he placed a watch over the woman. This opinion is also stated by Marcellus in the Seventh Book of the Digest, for he says that if a party denies that a woman is his wife, or that she is pregnant by him, he can, without any prejudice to himself, very properly send persons to watch her, especially if he makes protest at the time that he does so. 12Julianus says in the Nineteenth Book of the Digest, that it is stated in the Decree of the Senate that if the woman should notify her husband that she had conceived by him, and he, after having been notified, should not send persons to watch or examine her, and does not declare in the presence of witnesses that she is not pregnant by him, he will be compelled to recognize the child when it is born; but it does not follow from this that if he says that the child is his, he must make it his heir if it was begotten by someone else. Still, he holds that when the case is heard in court, the admission of the father will establish a strong presumption in favor of the child. 13He also says that, on the other hand, where the woman, after a divorce has taken place, does not comply with what was prescribed by the Decree of the Senate, the father has the right not to acknowledge the child; and that it does not follow from this that, after the child is born, it cannot be declared to be his, but merely that the father will not be compelled to support it, if it should be proved to be his own offspring. 14Julianus also says that if a woman notifies her husband that she is pregnant, and he does not deny it, it must not be concluded from this that the child is his, although he can be compelled to support it. It would, however, be very unjust if, where a man has been absent for a long time, and having returned, finds his wife pregnant, and for this reason repudiates her, and he neglects to comply with any of the provisions of the Decree of the Senate, the child should be his heir. 15It is apparent from what has been said, that the child is in no way prejudiced, if the wife should fail to observe any of the provisions of the Decree of the Senate, when the child in fact belongs to her husband—and this not merely has reference to its rights, nor indeed to its maintenance, according to a Rescript of the Divine Pius; or if the husband has neglected to do what is prescribed by the Decree of the Senate, he can certainly be compelled to support the child, but he can repudiate it. 16It is clear that, if, after the woman has notified her husband, he should deny that she is pregnant by him, even though he may not send persons to watch her, he cannot prevent an examination being made to ascertain whether the woman is pregnant by him, or not. If this case is brought into court, and a decision be rendered on the point as to whether or not the woman is pregnant by her husband, the child must be recognized by the husband, whether it belongs to him, or not.

Ulpianus, On the Edict, Book XXXIV. If, on the other hand, the judge should decide that the child does not belong to the husband, even though it is really his, it is settled that a decision of this kind is equivalent to law. This opinion Marcellus approves in the Seventh Book of the Digest, and we make use of it at the present time. 1For the reason that the Plautian Decree of the Senate has reference to children born after a divorce, another Decree of the Senate was enacted during the reign of the Divine Hadrian, which prescribed that children born during marriage must be recognized by their parents. 2But what if a child should be born after the death of its father, and during the lifetime of its grandfather, under whose control it would be placed, if it should be proved that the said child is the issue of the son of the grandfather? It should be considered what must be held in this instance. The opinion should be adopted that the question of its recognition should be left to its grandfather. 3But what if, in this case, the question should arise whether the child was born during marriage, or subsequently? It must be said that proceedings should be taken in accordance with the Decree of the Senate for the determination of this point. 4And what should be done if it was denied that the woman was the wife of the alleged husband? Julianus informed Sextus Cæcilius Africanus that there was ground for a preliminary inquiry. 5It must be held that these Decrees of the Senate are not applicable after the death of the father, if there is no relative under whose control the child can be placed. What claim to the estate could a child in this instance assert? Could he make such a claim, whether he was begotten by the person whose estate he demands, or not? What Julianus wrote in the Nineteenth Book of the Digest is true to the extent that, if proceedings for the recognition of the child had been begun during the lifetime of the father, and the latter should die before a decision was rendered, recourse must be had to the Carbonian Edict. 6These decrees of the Senate also have reference to children who are born their own heirs. The better opinion is, however, that they are not applicable where the child, whose recognition is in question, was not under the control of the party instituting the proceedings.

Ulpianus, On the Edict, Book XXXIV. The Prætor has most properly provided by this Edict that the possession which he promises in favor of an unborn child shall not give occasion to the depredations of others. 1He, therefore, establishes an action against a woman who fraudulently transfers this possession to another. For not only does he exercise his authority over the woman herself, but also over anyone under whose control she may be; that is to say, where another is allowed to obtain possession through their fraudulent acts, and he promises an action against them to the extent of the interest of the party who institutes the proceedings. 2The Prætor necessarily adds that where anyone has fraudulently obtained possession of the property he shall be compelled to relinquish it. He will, however, compel him to do this not through the authority of his office, or by means of his subordinates, but he attains his object better, and more in accordance with the Civil Law when, by means of an interdict, he compels the party in question to have recourse to the ordinary procedure. 3It is to the interest of him who institutes the proceedings, that another should not be allowed to obtain possession when the latter has consumed the income collected in good faith, or when a depredator has obtained possession, and the income cannot be recovered from him, for the reason that he is insolvent. 4This action will be granted even after the expiration of a year, because its object is the recovery of the property. 5If the woman who has committed the fraud is under paternal control, an action will be granted against her father, if any of the property has come into his hands.

Ulpianus, On the Edict, Book XXXIV. Where possession is demanded by a woman in the name of her unborn child, and the oath having been tendered by the heir she swears that she is pregnant, the oath must be upheld, and she will not be liable on the ground that she has obtained possession through a false statement, nor shall any compulsion be applied to her after she has been sworn. If, however, she should bring forth a child, an inquiry can be made as to whether it is true that she was pregnant by her husband; for where an oath is taken between two persons, it cannot profit a third party, nor prejudice the rights of the others. Nor, under such circumstances, will the rights of the child be prejudiced. 1This Edict is based upon the same principle as the former one, for the Prætor, as it is easy to grant the woman possession of the estate in the name of her unborn child, should not fail to punish her false statement. 2A woman is held to have obtained possession fraudulently, who attempts to obtain possession being well aware that she is not pregnant. 3The Prætor promises this action within the available year, but not beyond it, because it is of the nature of a penal one. 4In like manner, in this instance the Prætor promises an action for the recovery of the amount of the interest of the plaintiff. 5The Prætor also promises this action against the father of the woman, provided it was by his act that she fraudulently obtained possession. 6This action can be brought by anyone whose interest it is that a woman should not be placed in possession of the estate; as, for example, either by a co-heir, who is waiting for a child to be born, or a person who has been substituted, or one who would inherit ab intestato if the woman should die. 7The interest of the plaintiff is, first of all, held to have reference to the maintenance which is claimed by the woman on the ground of her pregnancy; for nothing can be recovered on this account, unless the woman obtained possession of the estate through fraudulent representation. If, however, there was no fraudulent representation, she will not be compelled to pay anything, because she obtained support, without any reason, under the pretext of her pregnancy. 8Sometimes, the amount of the interest is increased, where, for instance, the heir being in doubt as to the woman’s pregnancy, is excluded from the estate. For Julianus says that this action should be granted to the heir who is excluded, if it was to his interest that the woman should not fraudulently obtain possession; because if this were not the case, the appointed heir, by entering upon the estate, would leave a more valuable inheritance to his own heir. The woman could also be blamed for the diminution of the value of the estate, as the heir did not accept it on account of the prospect of the birth of a child. 9Julianus also says in the Nineteenth Book of the Digest, that if an heir, who has been substituted, should die while the woman is in possession of the estate, his heir can collect its value from the woman by means of the same action. 10But it should be considered whether the legacies and other charges of the estate should be relinquished by the woman; and it seems to me that it can be held that the legatees have a right to avail themselves of this action against her, because it is to their interest that the estate should be entered upon. 11It is clear that relief must be given to slaves who have been liberated, as against the party who has brought this action in behalf of the estate; that is to say, that he shall be compelled to discharge the trust, as he has received their value. I think, however, that the Prætor should come to the relief of those who have been directly manumitted, and by his intervention should maintain their freedom. 12Where fraud exists on the part of a woman under paternal control, and her father has participated in it, he will be liable in his own name.

Ulpianus, On the Edict, Book XXXIV. The Prætor is frequently called upon to determine where children must be supported or reside, not only such as are posthumous, but all kinds of children. 1It is customary for him to decide, after taking into account the persons, their position, and the term of guardianship, where wards can be best supported, and sometimes the Prætor goes contrary to the will of the father. Hence, where a certain man provides in his will that his son should be reared by a party whom he had substituted, the Emperor Severus stated in a Rescript that the Prætor should determine in the presence of near relatives of the child whether this should be done; as the Prætor should act so that the ward may be supported and brought up by someone to whom no evil suspicion could attach. 2Although the Prætor does not promise that anyone who refuses to bring up a ward in his house shall be compelled to do so, still, the question arises whether, if he is unwilling, he can be compelled; as for instance, where a freedman, a parent, or any of the connections or relatives of the ward has been appointed. The better opinion is that sometimes this should be done. 3It is not improperly held that where a legatee or an heir refuses to bring up a ward, as he has been charged to do by will, he shall be refused rights of action; just as in the case of a testamentary guardian. This, however, only holds good where the bequest was made with this understanding, for if the testator knew at the time he made the bequest that the legatee would refuse to bring up the ward, the right of action will not be denied him. This rule was frequently stated by the Divine Severus.

Ad Dig. 35,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 10.Ulpianus, On the Edict, Book XXXIV. When a legacy is bequeathed under a condition, it does not become payable at once, but only after the condition has been complied with, and hence it cannot, in the meantime, be transferred by the heir.

The Same, On the Edict, Book XXXIV. When a husband does not prosecute the murderer of his wife, the Divine Severus stated in a Rescript that the dowry should be confiscated to the Treasury, to the extent of the husband’s interest.

Ulpianus, On the Edict, Book XXXIV. We must understand provincials to be persons who have their domicile in a province, and not those who are born there.