1Paulus, On the Edict, Book XXIV. The stipulation for the payment of a judgment becomes operative immediately after the decision is rendered; but the execution is postponed for the time granted to the principal debtor.

2The Same, On the Edict, Book LXXI. When the suit is ended the obligation is disposed of, and therefore it is held that under the stipulation the sureties are not liable for the payment of the judgment.

3Ulpianus, On the Edict, Book LXXVII. If anyone, being about to appear before a certain judge, should stipulate for the payment of a judgment, and bring suit in another court, the stipulation will not take effect, because the sureties did not subject themselves to the decision of this judge. 1An agent, a guardian, and a curator, can stipulate for the payment of a judgment. 2We should understand an agent to be one upon whom authority has been conferred, either specially for this purpose, or generally for the administration of all the property. And he is even considered to be an agent if his acts subsequently should be ratified. 3The question arises, if a child or a relative should happen to interfere in the transaction of business, or a husband should do so in behalf of his wife, persons from whom no mandate is required, whether the stipulation will take effect. The better opinion is that it should not, unless authority was granted, or what has been done is ratified; for while they are permitted by the Edict of the Prætor to act, this does not render them agents; and therefore, if anyone of this kind should offer his services voluntarily, he must again furnish security. 4What we have said with reference to a guardian, however, must be understood to mean that if he is a person who administered a guardianship, when he was not actually a guardian, he should not be designated by that appellation. 5But even if he is a guardian, and does not transact business as one, or if he is not aware that he is a guardian, or any other cause exists, it must be said that the stipulation will not take effect. For, by the Edict of the Prætor, the power of acting as guardian is granted to him to whom the guardianship was entrusted, either by the father, by the majority of the guardians, or by those invested with competent jurisdiction. 6By the term curator, we understand the curator of an insane person of either sex, or of a male or female ward, or of any other person, for example, a minor, and, under these circumstances, I think that the stipulation will take effect. 7If we suppose that a guardian appointed for any region or province, or for the administration of property in Italy, is intended, the result will be that we can say that the stipulation will only take effect if he acted with reference to matters which pertained to his administration. 8If the defendant, after having promised to pay the judgment, should lose his mind, the question arises whether the stipulation will become operative, for the reason that his case has not been defended. The better opinion is that it will become operative, if no one appears for his defence. 9A stipulation does not take effect merely because a case is not defended, as long as anyone can appear to undertake the defence. 10Where there are several sureties, after issue has been joined with one of them with reference to the clause, “Because the case is not defended,” the principal debtor can undertake the defence.

4Julianus, Digest, Book LV. He, also, against whom the action was brought should be discharged.

5Ulpianus, On the Edict, Book LXXVII. If, however, the surety, who is a party to the action, should have judgment rendered against him, the principal debtor will in vain undertake the defence. For even when payment of the debt has been made after the case had been decided, suit can be brought to recover what has been paid. 1If no one else appears for that purpose, one of several sureties or heirs can undertake the defence. 2For the reason that there are several claims included in a single sum, in this stipulation, if, in one of them, the stipulation should immediately take effect, this cannot occur, so far as any other is concerned. 3Now let us see what defence is required, and by whom, in order to prevent the stipulation from taking effect. And, if any one of the persons enumerated as having a right to undertake the defence should do so, it is clear that the case is properly defended, and that the stipulation will not take effect. Where, however, someone, outside of those above mentioned, comes forward to defend it, the stipulation will not, in this instance, become operative; provided he is prepared to undertake the defence in accordance with the judgment of a good citizen, that is to say, by furnishing security, as he is considered to undertake it if he gives security. If, however, he is merely ready to appear, and is not accepted, the stipulation will take effect, because the action was not defended. But where anyone accepts him, either with or without security, the result will be that it must be said that no part of the stipulation becomes operative, because he who accepts such a defender has no one to blame but himself. 4Where one of the sureties who has given bond for the payment of the judgment appears to defend the case, it has been decided that the stipulation for the payment of the judgment does not take effect, and that all other matters are in the same condition as if a stranger had undertaken the defence. 5The question arose, with reference to this stipulation, whether the sureties would be liable in an action on mandate, if they abandoned the defence. The better opinion is that they would not be liable; as they only became sureties for a definite amount, and their mandate related to this, and not to the defence of the case. 6But what if they had taken it upon themselves to defend the case, could they bring an action on mandate? Where, indeed, they were defeated, they could recover what they had paid out in satisfaction of the judgment, but they could, by no means, recover the cost of the litigation. If, however, they gained the case, they could recover the expenses of litigation, just as under a mandate, although they did not act in compliance with the mandate. 7Where, however, several sureties are ready to undertake the defence, let us see whether they should appoint a single defender, or whether it will be sufficient for each of them to undertake the defence of his own share, or substitute a defender. The better opinion is that, unless they appoint a representative, that is to say, if the plaintiff desires it, the stipulation will take effect on the ground that the case is not defended. For several heirs of a debtor are obliged to appoint an attorney for fear that, if the defence should be divided among several parties, it will subject the plaintiff to inconvenience. The case is otherwise with respect to the heirs of the plaintiff, or whom the necessity of appearing in court by a single representative is not imposed. 8It must be remembered that, for a case to be defended properly, this must be done before a court having jurisdiction.

6The Same, On the Edict, Book LXXVIII. The stipulation for the payment of a judgment contains three clauses: one relating to the settlement of the claim; another to the defence of the case; and still another providing against the commission of fraud.

7Gaius, On the Provincial Edict, Book XXVII. If, before issue is joined, the attorney for the defendant should be forbidden by his client from appearing, and the plaintiff, not knowing that this had been done, should proceed with the case, will the stipulation take effect? Nothing else can be said than that it will take effect. When, however, anyone knowing of the prohibition imposed upon the attorney proceeds to trial, Julianus does not think that the stipulation will become operative. For, in order that it may do so, he says that it is not sufficient for issue to be joined with the person included in the stipulation, but it is necessary that the claim of that person should be the same as it was at the time when the stipulation was entered into. Hence, if he who was appointed attorney appears as the heir of his client, and as such conducts the case, or if he should do this even after he has been forbidden, the stipulation will not become operative. For otherwise, it has been decided that if anyone who is defending an absent person should give security, and afterwards should either be appointed his attorney, or become his heir, and conduct the case, the sureties will not be liable.

8Paulus, On the Edict, Book LXXIV. If the plaintiff, after security has been furnished, but before issue has been joined, becomes the heir of the possessor, the stipulation will be extinguished.

9Ulpianus, On the Edict, Book XIV. The stipulation for the payment of a judgment has reference to an indeterminate sum, for it becomes operative for the amount that the judge may decide to be due.

10Modestinus, Pandects, Book IV. If an attorney is appointed for the purpose of making a defence, he is ordered to give security for the payment of the judgment, by means of a stipulation which is not interposed by the attorney himself, but by the principal party in the case. If, however, the attorney defends someone, he himself is compelled to furnish security by the stipulation for the payment of the judgment.

11Paulus, On the Edict, Book LXXIV. If a slave, who is sought to be recovered by a real action, dies, after issue has been joined, and the possessor then abandons the suit, some authorities hold that the sureties given for the payment of the judgment will not be liable, because the slave having died, the property is no longer in existence. This is false, as it is expedient that a decision should be rendered not only for the purpose of preserving the right of action in case of eviction, but also on account of the profits.

12Pomponius, On Sabinus, Book XXVI. Where a defendant, after having given security for payment of the judgment, becomes a magistrate, he cannot be brought into court without his consent; still, if the suit is not defended, as in the judgment of a good citizen it should be, the sureties will be liable.

13Ulpianus, Disputations, Book VII. When a stipulation is made for the payment of a judgment, and the party does not defend the case, and afterwards he suffers judgment to be taken by default, the question arises, does the clause having reference to the judgment become operative? I said that the clause in the stipulation contained two things: one relating to the defence of the case, and the other to the judgment. Therefore, as the stipulation with reference to the payment of the judgment includes everything in one clause, if a decision is rendered, or the case is not decided, the question is very properly asked whether, for one of these reasons, the stipulation will become operative with reference to the other clause. For example, if anyone should stipulate, “If a ship should arrive from Asia,” or, “If Titius should become Consul,” it is established that no matter whether the ship arrives first, or Titius first becomes Consul, the stipulation will become operative. Where, however, it takes effect on account of the first clause, it cannot do so on account of the second, even though the condition may be complied with; for it is one of the clauses, and not both of them, which renders the stipulation operative. Hence it should be considered whether the stipulation having reference to the failure to defend the case will take effect, if this is not done; or whether one must believe that it does not become operative before issue is joined. The latter opinion is the better one; hence the sureties do not appear to be liable the very moment that the action is not defended. Therefore, if a case in which a defence is necessary should be terminated either by payment, by compromise, by a release, or in any other way, it has been decided that, in consequence, the clause that has reference to the failure to defend the case ceases to have any effect. 1If I, being about to bring an action in rem, should stipulate with the surety of an attorney to pay a judgment, and I afterwards intend to bring one in personam, but before doing so, I resolve to bring another, the stipulation will not take effect; because it appears that what has been done has reference to one thing, and the stipulation entered into has reference to another.

14Julianus, Digest, Book LV. When one of two sureties who have promised to pay a judgment pays his share because the case was not defended, the defence can, nevertheless, be undertaken; but he who made payment cannot recover anything, as the stipulation is extinguished, so far as his share is concerned, just as if he had received a release. 1Whenever proceedings are instituted against sureties under a stipulation to pay a judgment, on account of the case not having been defended, it is not inequitable to provide that the principal shall be released from liability for the first judgment; because, if this provision were omitted, the sureties could not have recourse to the action on mandate, or they would certainly be compelled to defend the principal against the first judgment.

15Africanus, Questions, Book VI. The following stipulation, “As long as the case is not defended,” is annulled whenever the defence begins, or as soon as the obligation to defend it is at an end.

16Ad Dig. 46,7,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 10.Neratius, Parchments, Book III. When I desire to institute proceedings against one of several sureties, under a stipulation to pay the judgment because the case has not been defended, and the surety is ready to pay his share, judgment should not be rendered in my favor against him. For it is not just for him. to be annoyed by an action, or be compelled to interpose a denial, where he is ready to pay what he owes without a judgment by which his adversary could not compel him to pay a larger sum.

17Venuleius, Stipulations, Book VI. When, through fraud, a case has not been completely defended, the stipulation will become operative under the clause relating to the payment of the judgment; for a suit is not considered to be properly defended in accordance with the opinion of a good citizen where a defence is not made for the entire amount of the property involved,

18The Same, Disputations, Book VII. A good citizen does not consider a case to be undefended in which the Prætor does not compel this to be done.

19The Same, Stipulations, Book IX. The last clause of the stipulation for the payment of a judgment, “That there is no fraud, and will be none,” indicates a permanent fact for the future. Therefore, if he who was guilty of fraud should die, his heir will remain liable; for the words, “will be none,” have great latitude, and refer to all coming time, and if fraud should be committed at any time, for the reason that it is true that there was fraud, this clause will become operative. 1And where the following is added, “If any fraud should be committed in this matter, do you promise to pay the entire value of the property?” the promisor will be liable to the penalty, even on account of fraud committed by a stranger. 2The clause relating to fraud, however, as is the case with other stipulations in which the time is not expressly mentioned, refers to the beginning of the stipulation.

20Scævola, Digest, Book XX. While a party to a suit was making a defence before Sempronius, the judge, it was provided by a stipulation that the amount decided to be due by Sempronius, the judge, should be paid. The plaintiff appealed from his decision, and the case having been taken before a competent court on appeal, and a decision rendered against the defendant, the question arose whether the stipulation would become operative. The answer was that, according to the facts stated, it would not become operative by law. Claudius: For this reason the following is added in a stipulation, “Or whoever may be substituted in his place.”

21The Same, Questions Publicly Discussed. Where one of several sureties is sued for not having defended a case, and it is afterwards defended, the other surety can be proceeded against to compel the execution of the judgment. If the principal promisor should die, leaving two heirs, and one does not defend the case and the other does, the former can be sued for not having done so, and the latter can be proceeded against to compel the execution of the judgment; as it is held that these two clauses cannot become operative against one and the same person. We say that the clause relating to the judgment would always take precedence over the others, and that it alone takes effect.