The Same, Disputations, Book III. Where a stranger gives a dowry for a woman, and it is agreed that in whatever way the marriage may terminate the dowry shall be returned to him, and no marriage should take place; then, because the agreement only had reference to matters which happened after marriage, and the marriage was not celebrated, the question will arise whether the woman has a right of action for recovery, or whether the party who gave the dowry is entitled to one? It is probable, however, that, in this instance also, the party who gave the dowry had a view to his own interest; for he who made the gift on account of the marriage can, if the marriage is not performed, bring an action for recovery as if on the ground of want of consideration, unless the woman should be able to prove by the most convincing evidence that he did this rather for her benefit than for his own advantage. But where a father gives a dowry for his daughter, and an agreement of this kind is made; then, unless the intention was manifestly different, Marcellus says that the father has a right to bring a personal action for its recovery.

The Same, Disputations, Book III. There is nothing surprising that a pledge is created where, for any cause whatsoever, a magistrate places the party in possession; since our Emperor, together with his father, stated very frequently in Rescripts that a pledge can also be created by will. 1It should be remembered that where a pledge is created by order of a magistrate, this is not legally done until the property has actually come into possession.

Ad Dig. 14,5,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 268, Note 2.The Same, Disputations, Book III. Should it be discussed in this instance whether what is due to others should be deducted? And, indeed if the parties who contracted with him when he was under the control of another are creditors, it may properly be held that the position of the prior claimant is the preferable one; except where there is a privileged creditor, for, not without reason consideration will be paid to this prior creditor. But if there are creditors who contracted with him after he became his own master, I think that they should be considered.

The Same, Disputations, Book III. Where anyone sells a tract of land which has descended to him by hereditary right, in the following terms: “You may purchase this land for the same amount for which it was bought by the testator,” and it is subsequently ascertained that it was not purchased by the testator at all, but that it was given to him; it is held that the sale was made without any price, and therefore that it resembled one made under a condition, which is void if the condition did not take place.

Ulpianus, Disputations, Book III. Sometimes the position of the second creditor is preferable to that of the first; for example, where the money which the second creditor borrowed has been spent for the preservation of the property itself; as for instance where a ship was pledged, and I lent money for the purpose of equipping or repairing it.

The Same, Disputations, Book III. The same rule applies to property purchased with the money of a ward. Wherefore, if the property was purchased with the money of two wards, each of them will have a right in the pledge in proportion to the sums expended for the purchase. If, however, the property was not entirely bought with the money of one creditor, each creditor will be entitled to participate, that is, the first creditor and the one with whose money the property was purchased. 1Ad Dig. 20,4,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 10.If I should encumber to you any property which I may hereafter obtain, and expressly hypothecate to Titius a certain tract of land, provided I should, in time, acquire its ownership, and I subsequently do acquire it; Marcellus holds that both creditors have a right to the pledge. For it is not of much importance whether or not the debtor paid for the land out of his own funds, since, as it was bought with money obtained on pledge, the property is not to be considered pledged merely because the money was obtained from such a source.

The Same, Disputations, Book III. Where a daughter is under the control of her father, he can send a notice to her affianced, annulling the betrothal; but if she has been emancipated, he can neither do this, nor bring an action for property given by way of dowry, because the daughter herself, by marriage, constitutes the dowry, and extinguishes the right to recover the same which results from the fact that the marriage has not been consummated; unless it may suggest that the father gave the dowry in behalf of his emancipated daughter, under the condition that if he should not consent to the marriage, and, indeed, whether the marriage was contracted or not, he could recover what he gave; he will then be entitled to a personal action for its recovery.

Ulpianus, Disputations, Book III. Where a man keeps the daughter of his sister as a concubine, even though she be a freedwoman, he is guilty of incest.

Ulpianus, Disputations, Book III. Although a dowry may be constituted by the release of the husband from liability for a debt; still, if this was ante-nuptial, and the marriage did not take place; Scævola says that, having been made in consideration of marriage, which did not occur, the release is void, and therefore the obligation remains unimpaired. This opinion is correct. 1Ad Dig. 23,3,43,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 313, Note 6.Whenever a stranger releases a debtor for the purpose of constituting a dowry, and the marriage does not take place, the release will be of no effect, unless it was made because the creditor wished to donate the entire sum to the woman; for then it must be held that it was received by her through a fictitious delivery and then transferred to her husband. The right to a personal action for its recovery cannot, however, be acquired by the woman through the agency of a free person. 2It is clear that, if the marriage takes place and is afterwards dissolved, the woman will have the right to claim the dowry, unless the stranger has released the husband from liability; and he himself will be entitled to an action for recovery, if the marriage should for any reason be dissolved, for then the woman will not have a right to any such action. In accordance with this, where a dowry is constituted by the release of the husband from liability, and the marriage takes place, the result of the suit for the recovery of the dowry will be that, if the obligation from which the husband is released is unconditional, it will not be restored to its former condition; but the dowry must be paid in accordance with what is customary. But where the obligation was limited to a certain time, it should be restored to its former condition, if the time to which it is limited did not elapse before the marriage was dissolved, and if the debt was secured the security should be renewed. In like manner, if the obligation which was turned into a dowry is conditional, and a divorce takes place while it was pending, the better opinion is that the obligation ought to be restored under the same condition. Where, however, the condition was fulfilled during the existence of the marriage, the time during which the money can be demanded should date from the day of the divorce.

Ulpianus, Disputations, Book III. Where a husband has expended money belonging to the dowry for the purpose of ransoming from robbers any slaves necessary for the service of his wife, or in order that the woman may release from imprisonment one of her necessary slaves, he will be liable for what has been expended; and if only a portion of the dowry has been used, he will be liable for that portion, but if all of it has been consumed, the action on dowry will be extinguished. This rule applies with much more force where a father-in-law brings an action on dowry, for an action must be rendered for what has been expended for his benefit, whether the husband himself has done this, or whether he gave the money to the daughter in order that she might do it. If, however, the father should not institute proceedings, but, after his death, his daughter alone brings an action to recover her dowry, it must be held that the same rule will apply; for since an exception on the ground of fraud is included in an action on dowry, as in other bona fide actions; for it may be said (as is also held by Celsus) that this expense is included in an action on dowry, especially if it was incurred with the consent of the daughter.

The Same, Disputations, Book III. Ad Dig. 24,3,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 506, Note 4.Whenever a father gives a dowry and stipulates for its return, he does not transfer the right of action for the dowry to her person unless it was agreed that this shall be continuous. But if he intended to stipulate for the intervening time, he cannot do so without the consent of his daughter, even though she may be under his control; because he cannot make the condition of the dowry worse unless she consents. It is clear that if he gave the dowry before marriage, he can stipulate with reference to the interval, even before marriage, and without the consent of his daughter. 1Where anyone gives a dowry in behalf of a woman, and agrees that it shall be paid to him when the marriage is dissolved, no matter in what way this is done, and the husband afterwards pays the wife her dowry, it is most justly held that an action for the recovery of the dowry will, nevertheless, lie against the husband in favor of the party who gave it.

The Same, Disputations, Book III. He also can be denounced as suspicious who has given security, or who offers to give it; for it is more advantageous for the ward to have his property safe than to hold instruments merely providing for its preservation. Nor is a fellow-guardian to be tolerated who did not denounce his colleague as suspicious, because he had given security to his ward,

The Same, Disputations, Book III. A case has been proposed where two guardians, having been appointed by municipal magistrates without security being required, one of them died in poverty, and the other, after being sued by the ward, paid the entire amount. The question arose, whether this guardian would be entitled to an action against the municipal magistrates when he was aware that security was not required from his fellow-guardian. I stated it as my opinion that, since the claim of the ward against the guardian had been satisfied by the latter, neither the ward nor the guardian had any further recourse against the magistrates, for a guardian never has any right of action against a magistrate, as a Decree of the Senate gives relief to the ward; and especially is this the case when the guardian is to blame for not requiring security from his colleague, or for not denouncing him as suspicious, if, in accordance with the facts stated, he knew that he had not given security by order of the magistrates.

Ulpianus, Disputations, Book III. The heirs of magistrates are not responsible in the same way as the latter, for the heir of a guardian is not liable upon the ground of the negligence of the deceased; as the magistrate indeed assumes all the responsibility, and his heir is only liable in case of fraud, or of negligence resembling fraud.

Ulpianus, Disputations, Book III. Anyone who binds himself to make a donation can, according to a Rescript of the Divine Pius, only be sued for an amount which he is able to pay, for what he owes to his creditors must first be deducted; but what he is bound to give in the same manner to others should not be deducted.

Ulpianus, Disputations, Book III. We cannot manumit a slave who has been given in pledge.

Ulpianus, Disputations, Book III. When an action only for the recovery of interest lost is brought, there need be no apprehension that an exception on the ground of res judicata will operate as a bar in a suit for the principal, for, as it is rib advantage, neither, on the other hand, will it be any impediment. The same rule will apply where, in a bona fide contract, the plaintiff wishes only to collect the interest, for the interest still continues to run, because as long as the contract in good faith stands it will. do so.

Ulpianus, Disputations, Book III. Let us see whether any defect in the title of the plaintiff, or of the donor, or the testator who bequeathed me property, will prejudice my rights, if he did not have a good title to its possession in the first place. I think that it will neither be of any disadvantage nor of any benefit to me, for I can acquire by usucaption something which the party from whom I obtain the property cannot acquire in that manner. 1The following case has been proposed. A certain woman sold an article after having pledged it, and her heir redeemed it. The question arises whether the heir can make use of an exception on the ground of long possession against the creditor attempting to obtain possession of the pledge. I held that this heir who redeemed the pledge from a third party can avail himself of the exception, because he succeeds to the place of the latter, and not to that of him who pledged the property. The case is the same as if he had redeemed the property and subsequently became the heir.

Ulpianus, Disputations, Book III. When a creditor carries away property which has been pledged to him, he is not considered to handle it for the purpose of stealing it, but to take charge of his own pledge.

The Same, Disputations, Book III. A woman cannot be accused of adultery during marriage by anyone who, in addition to the husband, is permitted to bring the accusation; for a stranger should not annoy a wife who is approved by her husband, and disturb a quiet marriage, unless he has previously accused the husband of being a pander. 1When, however, the charge has been abandoned by the husband, it is proper for it to be prosecuted by another.

The Same, Disputations, Book III. In a case of incest (according to the opinion of Papinianus, which is also set forth in a Rescript), slaves are not liable to torture, because the Julian Law relating to Adultery does not apply.

Ad Dig. 49,14,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 246, Note 2.The Same, Disputations, Book III. When anyone binds himself to me, by encumbering any property “which he has, or may have,” and afterwards makes a contract with the Treasury; it should be remembered that the Treasury will have the preference so far as anything subsequently acquired is concerned. This was the opinion of Papinianus, and was also established by the constitutions, for the Treasury anticipates the lien of the pledge.

The Same, Disputations, Book III. It is decided that an heir has the same authority and rights that were enjoyed by the deceased.