Ex Minicio libri
Ex libro V
Dig. 3,3,76Idem libro quinto ad Minicium. Titius cum absentem defenderet, satisdedit et prius quam iudicium acciperet desiit reus solvendo esse: quam ob causam defensor recusabat iudicium in se reddi oportere. quaero, an id ei concedi oporteat. Iulianus respondit: defensor cum satisdedit, domini loco habendus est. nec multum ei praestaturus est praetor, si eum non coegerit iudicium accipere, cum ad fideiussores eius iri possit et hi quidquid praestiterint a defensore consecuturi sint.
The Same, On Minicius, Book V. Titius, while he was defending a case for an absent party, gave security, and before issue was joined, the debtor became insolvent; for which reason the defender refused to permit issue to be joined as against himself. I ask whether he should be permitted to do this? Julianus answers that the defender should be held to occupy the place of the principal, when he gave security; and if the Prætor did not compel him to accept joinder of issue, it would not be of much benefit to him, as recourse could be had to the sureties, and whatever these paid could be recovered from the defender.
Dig. 23,3,49Idem libro quinto ex Minicio. Vir ab eo, qui uxori eius dotem facere volebat, certam pecuniam eo nomine stipulatus est, deinde acceptam eam fecit: quaerebatur, essetne ea pecunia in dotem. respondit, si acceptam non fecisset et promissor solvendo esse desisset, quaereremus, an culpa mariti ea pecunia exacta non esset: cum vero acceptam fecit, omnimodo periculum ad eum pertinebit: perinde enim est, ac si acceperit pecuniam et eandem promissori donaverit.
The Same, On Minicius, Book V. A certain man entered into a stipulation with a party concerning a sum of money which the latter wished to give as a dowry to his wife, and he then released him from liability for the same. The question arose whether or not this money constituted part of the dowry. The answer was that, if the husband had not released the promisor and he had become insolvent, we should inquire whether the money was not collected on account of the negligence of the husband, but as the husband released the debtor, he must, by all means, assume the entire responsibility; for the case is the same as if he had received the money, and then presented it to the promisor.
Dig. 24,1,39Iulianus libro quinto ex Minicio. Vir uxori pecuniam cum donare vellet, permisit ei, ut a debitore suo stipuletur: illa cum id fecisset, priusquam pecuniam auferret, divortium fecit: quaero, utrum vir eam summam petere debeat an ea promissione propter donationis causam actio nulla esset. respondi inanem fuisse eam stipulationem. sed si promissor mulieri ignorans solvisset, si quidem pecunia exstat, vindicare eam debitor potest: sed si actiones suas marito praestare paratus est, doli mali exceptione se tuebitur ideoque maritus hanc pecuniam debitoris nomine vindicando consequetur. sed si pecunia non exstat et mulier locupletior facta est, maritus eam petet: intellegitur enim ex re mariti locupletior facta esse mulier, quoniam debitor doli mali exceptione se tueri potest.
Julianus, On Minicius, Book V. A husband who wished to give a sum of money to his wife, permitted her to make a stipulation with his debtor. She did so, but before having received the money, she divorced herself from her husband. I ask whether the latter can recover the entire amount, or whether an action based on the promise will be void on account of the donation. I answered that the stipulation will be of no effect. If, however, the promisor, not being aware of the facts, should pay the woman, and the money has not been expended, the debtor can recover it. But where he is ready to assign his rights of action to the husband, he will be protected by an exception on the ground of fraud, and therefore the husband can recover this money by an action in the name of the debtor. If, however, the money is not in existence, and the woman has become more wealthy on account of it, the husband can claim it; for it is understood that the woman has become more wealthy through having received property belonging to her husband, since the debtor can protect himself by an exception on the ground of fraud.
Dig. 39,3,25Iulianus libro quinto ex Minicio. Is, cuius fundo via debetur, aquae pluviae arcendae agere potest fundi sui nomine, quoniam deteriore via facta fundo nocetur.
Julianus, On Minicius, Book V. Where a right of way is imposed upon the land of anyone, the person entitled to it can bring an action to compel care to be taken of rain-water for the benefit of the land, because by damaging the right of way the land also will be injured.
Dig. 40,12,30Iulianus libro quinto ex Minicio. Duobus petentibus hominem in servitutem pro parte dimidia separatim, si uno iudicio liber, altero servus iudicatus est, commodissimum est eo usque cogi iudices, donec consentiant: si id non continget, Sabinum refertur existimasse duci servum debere ab eo qui vicisset: cuius sententiae Cassius quoque est et ego sum. et sane ridiculum est arbitrari eum pro parte dimidia duci, pro parte libertatem eius tueri. commodius autem est favore libertatis liberum quidem eum esse, compelli autem pretii sui partem viri boni arbitratu victori suo praestare.
Julianus, On Minicius, Book V. Where two persons separately claim a man as their slave, and each of them alleges that he owns half of him, and, by one judgment, he is declared to “be free, and by another, he is pronounced to be a slave, the most convenient course will be for the judges to be compelled to agree. If this cannot be done, Sabinus states that it has been held that the man should be taken as a slave by the party who gained the case. Cassius (as well as myself), adopts this opinion, and, indeed, it is ridiculous for the man to be considered half slave, and also to be protected in the enjoyment of half his freedom. It is, however, convenient to decide that he was free, on account of the favor conceded to liberty, and to compel him to pay to the party who gained the case half of his value, as appraised by a reliable citizen.
Dig. 46,8,23Idem libro quinto ex Minicio. Procurator cum peteret pecuniam, satisdedit amplius non peti: post iudicium acceptum extitit, qui et ipse procuratorio nomine eandem pecuniam peteret: quaesitum est, cum is, qui postea peteret, procurator non esset et propter hoc exceptionibus procuratoriis excludi posset, num fideiussores prioris procuratoris tenerentur. Iulianus respondit: verius est non obligari fideiussores: nam in stipulatione cavetur non petiturum eum, cuius de ea re actio petitio persecutio sit, et ratum habituros omnes, ad quos ea res pertinebit: hic autem, qui procurator non est, nec actionem nec petitionem habere intellegendus est.
The Same, On Minicius, Book V. An agent, when bringing an action to collect a sum of money, gave security that no more would be demanded. If, after judgment has been rendered, another person should appear, who claimed the same money in the capacity of agent, as he who made the second demand was not really an agent, and for this reason could be excluded by an exception on the ground that he had no authority, the question arises whether the sureties of the first agent are liable. Julianus is of the opinion that they are not liable. For it was provided in the stipulation that he who has the right to bring an action to demand or to collect the debt will not do so; and that all those having an interest in the matter will ratify the transaction. He, however, who is not an agent, is not understood to have any right of action, or to be entitled to make any claim whatever.