Ad Dig. 3,5,48ROHGE, Bd. 15 (1875), Nr. 69, S. 247: Zahlung einer fremden Schuld. Voraussetzung des Anspruchs gegen den befreiten Schuldner.ROHGE, Bd. 22 (1878), Nr. 80, S. 341: Rechnungslegung über den Erlös einer unbefugten dramatischen Aufführung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 10; Bd. II, § 431, Note 18.Africanus, Questions, Book VIII. Where a slave whom I have sold steals something from me, his vendor, and the purchaser sells the article, and then it ceases to exist, an action for the price should be granted me on the ground of business transacted; as would be the case if you had attended to some business which you thought to be yours, when in fact it was mine; or, on the other hand, you would be entitled to an action against me if, where you thought an estate belonged to you when it in fact belonged to me, you delivered to some person property of your own which had been bequeathed to you (since the payment of the legacy in this instance would release me).

Ad Dig. 12,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172, Note 10.Africanus, Questions, Book VIII. A testator having appointed his slave Stichus an accountant in a certain province, his will was read at Rome, by which the said Stichus was set free and appointed an heir to a portion of the estate; and Stichus, who was ignorant of his change of condition, continued to collect the money of the deceased, and made loans, and sometimes entered into stipulations and took pledges; an opinion was asked what was the law in the case? It was held that any debtors who had paid him were released from liability, provided they, also, were not aware that the owner of the slave was dead; but with reference to the sums of money which had come into the hands of Stichus, his co-heirs had no right to bring an action for the partition of the estate, but that one should be granted them on the ground of business transacted; and where he himself had loaned money, property in the same was only transferred in proportion to the amount to which he himself was an heir. This is the case, because if I give you money in order that you may lend it to Stichus, and I then die, and you, being ignorant of the fact, should give him the money, you will not transfer the property in the same; for, notwithstanding that it may be held that the debtors after paying him are released from liability, it is not settled that he has a right to dispose of the ownership of the money by lending it. Wherefore, if no stipulation for repayment was entered into, suit could not be brought for the money which was lent, in proportion to the share of the coheir, nor could the pledges be retained. If, however, the stipulation was made for repayment, it is a matter of importance in what terms the stipulation was made; for instance, if he made it expressly in favor of Titius, his owner, who was dead at the time, there is no doubt that the stipulation would be void; but if he stipulated that the money should be repaid to him, it must be held that he acquired the benefit of the same from the estate; just as where freemen or the slaves of others serve us in good faith, whatever they acquire by means of our property belongs to us; so whatever is acquired through a portion of the estate is made for the benefit of the estate itself. Where, however, an estate has been entered upon by the co-heirs, this rule cannot be held to equally apply; at all events, if they knew that Stichus was appointed co-heir together with them, as, in this instance, those cannot be considered to be bona fide possessors who did not have the intention of holding possession. If, however, the case suggested has reference to co-heirs who are ignorant of the facts, for example, because they themselves were necessary heirs, the same opinion may still be given; and in this instance the result will be that if the said slave has co-heirs of the same condition, they will all be held to serve one another in good faith.

Africanus, Questions, Book VIII. It is of no consequence whether something was given in the beginning without consideration, or whether it was given for a consideration which did not take place.

Africanus, Questions, Book VIII. You lent an article to me and then you took it away afterwards; you brought an action on loan, and I did not know that you had taken the article; the judge rendered a decision against me and I paid it. I afterwards ascertained that the article had been removed by you, and the question arose what kind of an action I could bring against you? The answer was that there could not be an action for theft, but that I would be entitled to a counter prætorian action on account of the loan. 1While in the army, I gave certain vessels to my companions to be used at the common risk, and my slave, having stolen them, deserted to the enemy, and was afterwards recovered without the vessels. It is established that I will be entitled to an action against my companions on the ground of loan, for their respective shares, but they can proceed against me for theft, on account of the act of my slave, since the claim for reparation follows the person. And if I lend you an article to be used at your own risk, and it is stolen by my slave, you can bring an action for theft against me on account of the act of the slave.

Africanus, Questions, Book VIII. Where a slave given in pledge commits a theft against the creditor, the debtor has a right to relinquish the slave by surrendering him for reparation. But if he gave him to me in pledge, knowing him to be a thief, although he may be ready to surrender him to me by way of reparation, I will, nevertheless, be entitled to an action on pledge, in order that I may be indemnified. Julianus says that the same rules must be observed where a slave is deposited or lent, and commits theft.

Africanus, Questions, Book VIII. Lucius Titius appointed Stichus the master of a ship, and he, having borrowed money, stated that he received it for the purpose of repairing the ship. The question arose whether Titius was liable to an action on this ground only where the creditor proved that the money had been expended for the repair of the ship? The answer was that the creditor could properly bring an action if, when the money was lent, the ship was in such a condition as to need repairs; for, while the creditor should not be compelled to, himself, undertake the repair of the ship, and transact the business of the owner (which would certainly be the case if he was required to show that the money had been spent for repairs); still, it should be required of him that he know that he makes the loan for the purpose for which the master was appointed; and this certainly could not happen unless he also knew that the money was needed for repairs. Wherefore, even though the ship was in such a condition as to need repairs, still, if much more money was lent than was necessary for that purpose, an action for the entire amount should not be granted against the owner of the ship. 1Sometimes it should be considered whether the money was lent in a place in which that for which it was advanced could be obtained; for, as Africanus says, what would be the case if someone lent money for the purchase of a sail in an island of such a description that a sail could not be obtained there under any circumstances? And, in general, a creditor is obliged to exercise some care in the transaction. 2Almost the same rule applies where inquiry is made with reference to the institorian action; for, in this instance also, the creditor must know that the purchase of the merchandise for which the slave was appointed was necessary; and it will be sufficient if he made the loan to this end, but it should not also be required that he should himself undertake the task of ascertaining whether the money was spent for this purpose. The principle of tenancy in common extends not only to the ship but also to the cargo, unless otherwise provided for; the master, being regarded as the confidential agent of the owners, is held to be tacitly invested with authority to bind them without their consent in all matters having reference to the general management and navigation of the ship; a rule of unknown antiquity, but which is obviously derived from the earliest ages of commercial intercourse. He is personally liable for his contracts, from which responsibility, however, he may obtain exemption by special agreement. As in the case of a part-owner, he can sell or hypothecate all, or a portion of the cargo, as well as the ship, if any sudden against the others whose merchandise was saved, so that the loss may be distributed proportionally. Servius, indeed, answered that they should proceed against the master of the ship under the contract for transportation to compel him to return the merchandise of the others, until they make good their share of the loss. Even though the master does retain the merchandise, he will, in any event, be entitled to an action under the contract for transportation against the passengers.

Africanus, Questions, Book VIII. I deposited ten aurei with a son under paternal control, and I bring an action of deposit on the peculium. Although the son owes the father nothing, and holds these ten aurei he thought, nevertheless, that judgment should no more be rendered against the father than if there was no peculium besides this, for as this money remains mine, it is not included in the peculium. He also says that if any other person whosoever brings suit for the peculium, there should not be the least doubt that it must not be computed. Therefore I ought to bring an action for production, and when the property is produced, bring one to recover it. 1Where a girl who is about to marry a son under paternal control promises him a certain sum of money as dowry, and a divorce having been obtained, she brings an action for the whole amount against the father; should she be released from the entire promise, or ought what the son owes the father be deducted? He answered that she should be released from the entire promise, since if an action was brought against her on the promise, she could certainly protect herself by the exception based on malicious intent. 2Stichus has in his peculium Pamphilus, who is worth ten aurei, and the said Pamphilus owes the master five aurei. If an action on the peculium is brought on account of Stichus, it was held that the value of Pamphilus should be estimated, and, indeed, the entire value, without deducting what Pamphilus owes to the master, for no one can be understood to be himself in his own peculium; and therefore in this instance the master will suffer a loss, just as he would if he had made a loan to any other of his slaves who had no peculium. He says that it will appear more evident that this is true, if it is stated that the peculium was left to Stichus, who, if he brings suit under the will, will certainly not be compelled to suffer a deduction for the amount that his sub-slave owes, unless this is taken out of his own peculium; otherwise the result will be that if the sub-slave owes the master just as much, and he himself will be understood to have nothing in the peculium, which is certainly absurd. 3I lent money to a slave whom I had sold to you. The question arose whether the action De peculio should be granted to me against you, in order that what remained in my hands out of the peculium should be deducted. This, in fact, is not in the slightest degree true, nor will it make any difference whether I institute proceedings within a year from the time that I made the sale, or afterwards; for, indeed, an action against me will not be granted to others who contracted with him at that time. Again, on the other hand, where those who had contracted previously with this slave bring an action against me, I cannot deduct what he began to owe me afterwards. From this it is apparent that the liability of the peculium which remained in my hands is not, in any way, affected by contracts made at a later date.

Africanus, Questions, Book VIII. A slave, having borrowed money for the business of his master, lost it without negligence; it was held that, notwithstanding this, an action for money employed in the business of another could be brought against the master. For, in like manner, if my agent, being about to spend money in my business, and having borrowed money lost it without negligence, he can properly bring an action against me on the ground of mandate, or on that of business transacted. 1I entered into a contract with Stichus the sub-slave of your slave Pamphilus; the action on the peculium and that for property employed in the affairs of another ought to be granted in such a way that whatever had been employed in your business or with reference to the peculium of Pamphilus, should be included in the same; that is to say, even if it was brought after Stichus had died, or been alienated. If, however, I bring suit after the death of Pamphilus, the better opinion is that, even though Stichus may be living, still, with reference to what has been employed for the benefit of the peculium of Pamphilus, the action should not be granted, except within a year from the time when he died; for I should then be held to be, as it were, instituting proceedings with reference to the peculium of Pamphilus, just as where I brought suit for what I lent by his direction. It should not concern us that Stichus, on whose peculium suit is brought, is living, since this property cannot be in his peculium, unless that of Pamphilus still remains. The same principle will compel us to hold that what has been employed for the benefit of the peculium of Pamphilus, must be made good in such a way that what Pamphilus owes you shall first be deducted, but what has actually been used in your business shall be made good even if what Pamphilus owes you had not been deducted.

The Same, Questions, Book VIII. If a woman becomes surety for one debtor, where there are two, the action is restored to the creditor as against both.

Africanus, Questions, Book VIII. Ad Dig. 17,1,34 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. II, § 370, Noten 10, 11.A man was in the habit of transacting the business of Lucius Titius, as his agent, and, after he had collected money from the debtors of the former, he sent him a letter in which he stated that a certain sum derived from his management of his business remained in his hands, and that he himself had borrowed the same, and was indebted for it with interest at six per cent. The question arose whether an action could be brought for this money, as lent, under these circumstances, and whether interest could be collected? The answer was that the money was not lent, otherwise it could be alleged that money would be considered loaned in every contract where there was no consideration. This case is not similar to the one where an agreement is made that you shall have, as a loan, money which has been deposited with you, and it is lent, because then the money which was mine becomes yours. Moreover, if I order you to borrow money from my debtor, it becomes a loan, for this is the indulgent interpretation; and the proof of this is that where a party who wishes to loan money to another gives him silver to be sold, he cannot legally bring an action for money loaned, and nevertheless, the money obtained for the silver will be at the risk of the party who received the silver. In the case stated, it must therefore be held that the agent will be liable to an action on mandate, so that, although the money was at his risk, he must still pay the interest which was agreed upon. 1I directed you, being heir to a share of an estate, to purchase for me a tract of land belonging to said estate at a specified price, and you did so. There is no doubt that an action on mandate will lie between us with reference to the shares of the other co-heirs. So far as your share is concerned, however, a doubt may arise whether an action on purchase or on mandate should be brought, for it is not unreasonable to believe that the purchase was made conditionally with regard to this share; because, in fact, the question is very important whether, if I should die before the bargain was concluded, and you, being aware of my death, refused to sell to another on account of my mandate, my heir would be liable to you on this account? And, on the other hand, if you should sell to another party, would you be liable to my heir? For if the purchase should be held to have been made under a condition, proceedings can be instituted in the same way as where any other condition had been complied with after death. If, however, proceedings had been begun under mandate, for example, if I had directed land belonging to someone else to be purchased, and death had taken place, as you were aware of this fact, and the mandate having been terminated, no action in your favor could be brought against my heir; but if action had been taken under the mandate, the course of procedure would be the same as in a case of purchase.

Africanus, Questions, Book VIII. I became surety for you that a certain slave should be delivered, and I complied with the agreement. When I bring an action of mandate against you, reference should be had to the time when I made payment, and not to that when the action was brought; and therefore, even though the slave should afterwards die, an equitable action will, nevertheless, lie. The rule is different in the case of a stipulation, for then the time when the action was brought is considered, unless it should happen that the promisor is responsible for not having made payment at the proper time, or the creditor neglected to receive it, for the failure of neither of the parties should benefit him.

Africanus, Questions, Book VIII. A slave that you purchased from me together with his peculium, committed a theft against me before he was delivered to you. Although the property which he stole has been destroyed, I will, nevertheless, have the right to retain its value out of the peculium, that is to say, the act of the slave diminishes the peculium to the extent to which he has become my debtor on account of his crime. For even if he should steal something from me after his delivery, or I should not be entitled to an action for recovery from the peculium on that ground, or I should be entitled to it to the extent that the peculium was increased by the addition of the stolen property; I would still have a right, in the proposed case, to retain the peculium, and I could bring a personal action for recovery on the ground that I had paid more than was due, if the entire risk attached to you. In accordance with this, it must be held that if the said slave had stolen any money from me, and you, being ignorant of the fact that it had been stolen, should take and use it as a part of the peculium; I will be entitled to an action for recovery against you on the ground that property belonging to me had come into your hands without any consideration. 1Ad Dig. 19,1,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 389, Note 8a.If you should knowingly sell me property belonging to another, while I was ignorant of the fact, Julianus holds that I can properly bring an action on purchase against you, even before I am deprived of the property on the ground of a better title, for an amount equal to my interest in having it become mine; for although, on the other hand, it is true that the vendor is only liable for the delivery of the property to the purchaser, and not to transfer the title to him, still, for the reason that he should guarantee that he is not committing fraud, he who knowingly sells the property of another to one who is ignorant that it is not his, is liable. This rule is especially applicable if he should manumit a slave, or sell property which was to be given in pledge.

Ad Dig. 19,1,44Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.Africanus, Questions, Book VIII. And suppose that the vendor was only in moderate circumstances, he cannot be compelled to pay more than double the price.

Africanus, Questions, Book VIII. Where a tract of land which you have leased to me is confiscated, you will be liable to an action on lease to permit me to enjoy it, even though it is not your fault that I cannot do so; just as it is held if you contract for the building of a house, and the ground on which it is to be erected is destroyed, you will, nevertheless, be liable. For if you should sell me a tract of land, and it should be confiscated before delivery, you will be liable to an action on purchase; and this is true to the extent that you must return the price, and not that you will be obliged to indemnify me for anything more than my interest in having the vacant tract of land delivered to me. Hence, I think that the rule also applies to a lease, so that you must return the rent that I have paid for the time I was not able to enjoy the property, but you cannot be compelled to do this by any other action on lease; for if your tenant is prevented from enjoying the land either by you, or by another party whom you have the power to hinder from doing so, you must indemnify him to the extent of his interest in enjoying the property, and in this his profit is also included. If, however, he is hindered by anyone whom you cannot control, on account of his superior force or authority, you will not be liable to him for anything but to release the rent which has not been paid, or to refund that which has been paid.

Africanus, Questions, Book VIII. This distinction corresponds to that which was introduced by Servius, and has been approved by almost all authorities; that is to say, where a landlord prevents a tenant from enjoying the use of the house by making repairs upon it, it must be considered whether or not the house was demolished through necessity; for what difference would it make whether the lessor of a building is compelled to repair it on account of its age, or where the lessor of land is compelled to endure injury from a party whom he cannot prevent from inflicting it? It must be understood, however, that we make use of this distinction with reference to a person who has leased his land to be enjoyed, and has transacted the business in good faith; and not to one who has fraudulently leased land belonging to another and is unable to resist the owner of the same, when he prevents the tenant from enjoying it. 1When we hold land in common, and it is agreed upon between us that we shall have the renting of the same during alternate years for a certain amount, and you, when your year has expired, purposely destroy the crop of the ensuing year, I can proceed against you by means of two actions, one based on ownership, and the other on the ground of a lease; for my share is involved in the action on ownership, and yours only in the action on lease. Then, it is asked, will it not be the fact that, so far as my share is concerned, the loss sustained by me on your account must be made good by means of an action in partition? This opinion is correct, but, nevertheless, I think that that of Servius is also true, namely: “That where I make use of either one of the above-named actions the other will be destroyed.” This question we may ask more simply, if it is suggested that, where it has been agreed upon between two parties who have separate tracts of land belonging to them, each shall have a right to lease the land of the other, with the understanding that the crops shall be delivered by way of rent.

Africanus, Questions, Book VIII. Titius lent Sempronius thirty aurei, it being agreed upon between them that, on the return of the money, Sempronius should pay the taxes which Titius owed, the interest being computed at six per cent; and in case the interest amounted to more than the taxes, Sempronius should return the surplus of said interest to Titius, and where the taxes were more than the interest, the excess should be deducted from the principal; but if the amount of the taxes should exceed both principal and interest, Titius should make good the amount to Sempronius; and no formal stipulation with reference to the matter was made between the parties. Titius asked for an opinion as to what action he could bring in order to recover from Sempronius the remainder of the interest, after payment of the taxes. The answer was that interest on the money lent was not actually due unless a stipulation had been entered into concerning the same; but in the case stated it should be considered whether the transaction should not be held to be a mandate agreed upon between the parties, rather than a loan at interest, unless the interest collected exceeded six per cent. The action for the recovery of the principal would not, indeed, be based on money loaned; for if Sempronius had either lost the money without bad faith, or had kept it unemployed, it must be said that he would not be at all liable on that ground. Wherefore, it is the safer plan for an action in factum to be granted for the construction of the contract, especially where it is also agreed that if the amount of the taxes exceeds the interest it should be deducted from the principal, which goes beyond the provisions of the law and the terms of the contract for money loaned.

Africanus, Questions, Book VIII. Ad Dig. 20,4,9 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 5.A certain man rented a bath from the next Kalends, and it was agreed that the slave Eros should be held by the lessor in pledge until the rent was paid. The lessee gave the same Eros in pledge to another person for money loaned before the Kalends of July. Advice having been taken as to whether, when this creditor brought suit for the recovery of Eros, the Prætor should protect the lessor, the opinion was that he should; for although the slave was given by way of pledge at a time when no rent was due, because at that time Eros had begun to be in such a position that the right of pledge attaching to him could not be released without the consent of the lessor, his position should be considered preferable. 1Ad Dig. 20,4,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 15.The authority goes still farther and holds that, where money is lent under a condition, a creditor should be protected against a subsequent creditor, provided the condition is not one which cannot be complied with without the consent of the debtor. 2If, however, an heir should make an agreement pledging his property on account of legacies bequeathed under a condition, and he afterwards pledges the same property already encumbered on account of money borrowed, and the condition upon which the legacies are dependent is subsequently fulfilled; it is held that, in this instance, he to whom the pledge was first given must be protected. 3Ad Dig. 20,4,9,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 8; Bd. I, § 241, Note 3.Titia gave a tract of land which was not hers in pledge to Titius, and subsequently pledged it to Mævius, and then, having become the owner of the property, she bestowed it upon her husband as a dowry, after its value had been appraised. It was decided that if the money was paid to Titius, Mævius would have no better claim to the pledge for that reason; for where the right of the first creditor was released, that of the second was confirmed, since the property was found to belong to the debtor. In the case proposed, however, the husband occupies the position of a purchaser, and therefore, since neither when the property was encumbered to Mævius, nor when payment was made to Titius, it was owned by the woman, at no time could the pledge to Mævius be valid. This, however, is only true where the husband accepted the land as dowry after it had been appraised, and did so in good faith; that is to say, if he was not aware that it was hypothecated to Mævius.

Africanus, Questions, Book VIII. Where one slave buys another who is diseased or unsound, and his master brings an action on purchase, or one for the return of the slave; it should be ascertained, not whether the master, but whether the slave was aware of these defects, so that it makes no difference whether he purchased the slave to be added to his peculium, or acquired him in the name of his master; or whether he purchased any particular slave, or one in general, by the order of his master; for then it becomes a question of good faith, whether the slave has not been deceived by the party with whom he transacted the business; and, on the other hand, whether the offence which the slave committed in making the contract should prejudice his master. If, however, the slave purchased the sub-slave by the order of his master, and the latter knew that he was unsound, the vendor will not be liable. 1Ad Dig. 21,1,51,1ROHGE, Bd. 6 (1872), S. 403: Recht des durch den Procuristen Betrogenen, die ganze Contractsobligation gegen den Geschäftsführer oder gegen den Principal geltend zu machen.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 21.Where such a transaction is made with an agent, there is no doubt that if the latter knew the slave to be diseased or unsound, he cannot bring an action on this account; although he himself will, nevertheless, be liable to an action based on voluntary agency. Where, however, the agent himself did not know that the slave was unsound, and purchased him by the direction of his principal, who was aware of it; and he brings an action before the return of the slave in the name of his principal, it is held that a valid exception cannot be interposed against him.

The Same, Questions, Book VIII. If I purchase two slaves from you, each for five aurei, and one of them is evicted, there is no doubt that I can lawfully proceed against you in an action of purchase, on the ground of eviction, even though the remaining slave is worth ten aurei; nor does it make any difference whether I purchase them separately, or both at once.

Africanus, Questions, Book VIII. Where a debtor is in default to the head of a household, no inquiry is made as to whether he is in default to his heir; because the right passes to the next heir by inheritance, and is therefore also transmitted to all others in succession.

Africanus, Questions, Book VIII. A woman gave a tract of land as her dowry, and, a divorce having taken place, she returned to her husband, and agreed with him that he should receive ten aurei by way of dowry, and give her back the land. The ten aurei were paid, but she died during marriage before the land was returned. The matter is one involving good faith, and, in compliance with the contract, the land can be recovered, since it was held by the husband without any consideration. 1This point will seem perfectly clear if reference be had to the action on pledge. For if I should transfer to you the Cornelian estate by way of pledge, and afterwards convey to you the Titian estate, under the agreement that you will restore the Cornelian estate to me, I think that there is no doubt whatever that I can immediately and properly bring an action on pledge against you, for the recovery of the Cornelian estate.

Africanus, Questions, Book VIII. If a woman promises, by way of dowry, to her husband who is her debtor, land for which he owes her, the said land becomes dotal. 1Where she promises him, as dowry, either the land or ten aurei which he owes her, he will have the right to decide of which of these the dowry shall consist. 2But if the husband owed Stichus, a tract of land, and his indebtedness was promised to him as dowry, and Stichus should die, the dowry will then consist of the land. 3Julianus says that the result of all this would be that if either the Cornelian or the Sempronian estate for which he was indebted was promised to him as dowry, whichever of these he selected would constitute the dowry; and it is evident that if he wished to alienate either of them he could not alienate the other. If, however, he afterwards should purchase the one that he alienated, he would still have the power to alienate the one which he had retained, if he desired to do so.

Africanus, Questions, Book VIII. Where a tract of land given as dowry is appraised in order that the woman may have the right of choice, it is held that the land cannot be alienated. The contrary rule, however, prevails, if this depends upon the will of the husband.

The Same, Questions, Book VIII. Titia obtained a divorce from Seius. Titius stated that she was under his control, and demanded that the dowry should be delivered to him, while she asserted that she was her own mistress, and wished to bring an action for the recovery of the dowry. The question arose what course the judge ought to take. I answered that he should refuse an action to the father, unless he could prove that his daughter was not only under his control, but had also given her consent to the suit, just as he should be refused even though he was able to prove that his daughter was under his control.

Africanus, Questions, Book VIII. Where marriage is re-established after a second divorce has taken place, it is held that a right of action continues to exist on account of property appropriated at the time of the first divorce, as well as on account of expenses incurred or donations made during the previous marriage.

Africanus, Questions, Book VIII. The appointment of a guardian is not legally made in the following terms: “Titius shall be the guardian of such-and-such of my children, whichever he prefers”. For what could we say if Titius refused to decide for which one of the children he preferred to be the guardian? 1A guardian can, however, be properly appointed in the following terms: “I appoint Titius to be the guardian of So-and-So, my son, if he is willing”.

The Same, Questions, Book VIII. Where an heir is directed, in general terms, to deliver any slave whom he wishes, and he knowingly delivers a thief who steals from the legatee, it is held that an action on the ground of fraud can be brought against him. However, as it is true that the heir is only liable for the delivery of a slave who is not of exceedingly bad character, he will be compelled to deliver another, and leave the former one by way of reparation for the damage.

The Same, Questions, Book VIII. If, being desirous of paying the money, I deposit it by your direction with an assayer to be tested, Mela, in the Tenth Book, says that you do this at your own risk. This is true, in case it was your fault that the coins were not immediately tested, for then it will be the same as if I was ready to pay, and you, for some reason or other, refused to accept the money. In this instance, the money is not always at your risk, for what if I should tender it at an inopportune time or place? I think that the result would be that, even if the purchaser and vendor, having little confidence in one another, should deposit the money and the merchandise, the money will be at the risk of the purchaser, if he himself selected the person with whom it was deposited, and the same rule will apply to the merchandise, because the sale was perfected.

The Same, Questions, Book VIII. When a slave owned in common steals something from one of his masters, it is established that an action in partition should be brought; and it is in the discretion of the judge to order that the other master make good the damage, or assign his share of the slave. The result of this appears to be that, even if he has alienated his share, an action can also be brought against the purchaser, as, in some respects, a noxal action follows the person. This rule, however, should not be pushed to the extent of holding that even if the slave should become free he can bring suit against him; just as an action could not be brought if he belonged entirely to the other master. Therefore, it is evident from this, that if the slave should die, there is nothing which the plaintiff can recover on this ground, unless the other joint-owner has obtained some benefit from the stolen property. 1He says that another result of this is, that if a slave, whom you have given to me in pledge, steals something from me, by bringing the contrary action of pledge I can compel you to make good the damage, or to surrender the slave to me by way of reparation. 2The same must be said with respect to a slave who it was agreed might be returned under certain circumstances, so that even the purchaser will be required to restore all accessions and profits; and, on the other hand, the vendor will be obliged to either make good the damage, or to surrender the slave by way of reparation for the injury sustained, unless an action for a larger amount can be brought. 3Where a man knowingly gives a thief in pledge to one who is ignorant of the fact, he can be compelled to make good all damages; for this is in conformity with good faith. 4In the action on purchase, however, what kind of a slave the vendor represented him to be must, by all means, be taken into consideration. 5Ad Dig. 47,2,62,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 378, Note 16; Bd. II, § 410, Note 18.But, with reference to what concerns the action on mandate, he says that he doubts whether it should also be held that all damages should be made good. And, indeed, this principle should be observed even more than in the preceding cases; so that if he who gave the order for the purchase of a certain slave did not know that he was a thief, he will, nevertheless, be compelled to make good all damages sustained; for it will be perfectly just for the agent to allege that he would not have suffered the damage if he had not received the order. This is still more evident in the case of a deposit, for although otherwise it would appear equitable that no more damage should be sustained by anyone than the slave himself is worth, it is much more equitable that the duty performed by one person to another for his benefit, and not for that of him who undertook it, should not injure the latter. And, as in the previously mentioned contracts of sale, lease and pledge, it was stated that the person who knowingly kept silent should be punished, so in these contracts, the negligence of those for whose benefit they are entered into, should only be injurious to themselves. For it is certainly the fault of the mandator who directed the other party to purchase such-and-such a slave for himself, and it is also the fault of him who deposited the property that they were not more diligent in giving warning as to the character of the slave who was deposited. 6With reference to a loan for use there is, however, reason for holding a different opinion, since only the convenience of him who requested the use of the property is concerned. Therefore, he who has made a loan for use, as in a lease, cannot lose anything beyond the value of the slave, if he is not guilty of fraud. Moreover, in this instance we ought to be a little more indulgent in the interpretation of fraud, because (as has already been stated) the person who lends the property does not profit by doing so. 7I think that this is true if no blame attaches to him who undertook to execute the mandate, or to take charge of the deposit, where the owner himself gave him any silver plate or a sum of money for safe-keeping; but on the other hand, where the owner did not do anything of this kind, a different opinion should be adopted. 8I leased you a tract of land, and (as is customary) it was agreed that I should be entitled to the crops by way of pledge for the rent. He says that if you should secretly remove them, an action for theft can be brought against you. But if you should sell the crops to someone else before they have been gathered, and the purchaser removes them, the result will be that we must hold that they have been stolen; for as long as they are attached to the soil they constitute a part of the land, and therefore belong to the tenant, for the reason that he is considered to gather them with the consent of the owner; which certainly cannot properly be said in the present instance. For how can they become the property of the tenant, when the purchaser gathers them in his own name? 9A slave who was ordered to be free under the condition of paying ten aurei was defended by the heir in a noxal action. While the case was still pending, the slave, having paid the ten aurei to the heir, obtained his freedom. The question arose whether he should be discharged unless he gave to the plaintiff the ten aurei which the heir had received. It was held that the source from which the money had been obtained should be taken into consideration. If it came from somewhere else than the peculium, the heir should pay it; because, if the slave had not yet gained his freedom, and had been surrendered by way of reparation, he would have paid the money to the person to whom he was delivered. If, however, the money was derived from his peculium, for the reason that he paid to the heir what the latter ought not to have permitted him to give him, a contrary decision should be rendered.