Papinianus, Questions, Book II. Where a guardian promises to appear in court and comply with his agreement, and in the meantime his ward becomes of age, or dies, or rejects the estate, an action on the stipulation shall be refused; for if an action had been brought to recover the property itself, and judgment had been rendered against the guardian, and any of the above things had taken place; it has been settled that no action on the judgment could be instituted against him.

Ad Dig. 2,14,38ROHGE, Bd. 18 (1876), Nr. 25, S. 101: Verträge über unerlaubte, dem öffentlichen Interesse zuwiderlaufenden Handlungen. Ueberlassung des Ertrags aus der gesammten geschäftlichen Thätigkeit lebenslang.ROHGE, Bd. 21 (1877), Nr. 31, S. 86: Rechtsweg gegen einen Beschluß der Gesellschafter über Ausschließung eines Socius.Papinianus, Questions, Book II. Public law cannot be changed by the contracts of private persons.

Ad Dig. 2,15,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 331, Note 9.Papinianus, Questions, Book II. The vendor of an estate having assigned his rights to the purchaser, made a compromise with a debtor to the estate who did not know that it had been sold. The purchaser of the estate should take measures to collect the debt, and an exception on the ground of business transacted is granted the debtor because of his ignorance. The same rule applies to the case of a man who received an estate by virtue of a trust, if the heir makes a compromise with a debtor who is not aware that this has been done.

Papinianus, Questions, Book II. The Emperor Titus Antoninus stated in a Rescript: “That he who had been forbidden to practice the profession of an advocate for the term of five years, was not forbidden to appear in court in behalf of anyone after the five years had elapsed”. The Divine Hadrian also stated in a Rescript, “That a man could appear in court after he returned from exile”; nor was any distinction made as to the crime for which the sentence for silence or exile was imposed; otherwise, after the time of the punishment had elapsed, it might be still further prolonged contrary to the terms of the sentence.

Papinianus, Questions, Book II. It has been settled that a son, although disinherited, should mourn for the memory of his father; and the same rule applies to a mother whose estate does not pass to her son. 1Where anyone is killed in battle he must be mourned for, even though his body may not be found.

Papinianus, Questions, Book II. Where one of several guardians is sued because the others are not solvent, and this one requests it, they can all be brought before the same judge; and this is set forth in Imperial Rescripts.

Papinianus, Questions, Book II. Where payment is made through mistake, on grounds which are not valid in law or have no force or effect, an action for recovery can be brought.

Ad Dig. 19,5,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3.Papinianus, Questions, Book II. If I gave you ten aurei in order that you might manumit Stichus, and you failed to do so; I can at once bring an action præscriptis verbis to force you to pay the amount of my interest; and if I have no interest, I can bring an action against you to compel you to restore the ten aurei.

Papinianus, Questions, Book III. Where a judgment is rendered in good faith, the rate of interest is determined by the decision of the court, according to the custom of the place where the contract was made, provided the amount does not exceed that fixed by law. 1If a partner should have judgment rendered against him on account of his having misappropriated the funds of the partnership, and converted them to his own use, he must, by all means, pay interest on the same, even if he was not in default. 2However, a judge who is to preside in a bona fide action cannot properly order security to be given by the defendant that, if he loses the case, he will pay interest until the judgment is satisfied, since it is in the power of the plaintiff to cause execution to be issued. Paulus states in a note that it is not part of the duty of the judge to concern himself with what takes place after a decision has been rendered. 3Papinianus says a broader interpretation should be given with reference to restitution made by a guardian in favor of his ward. For no one now doubts that when a guardian renders his account he must pay interest up to the time that he makes restitution, whether the judge receives it up to the day that the decision was rendered, or whether this is done out of court. It is clear that where the ward declines to institute proceedings in an action on guardianship, and the guardian voluntarily enters into an agreement with him, tenders him the money, and deposits it in a sealed bag, he will not be liable for interest from that time.

Papinianus, Questions, Book II. A guardian or a curator is compelled to accept from a former guardian or curator, any credits which he may not think to be good, but he is not obliged to assume the risk of their collection.

Papinianus, Questions, Book II. The rights of slaves who are to be conditionally free cannot be injuriously affected by the heir.

Papinianus, Questions, Book II. Ad Dig. 45,1,115 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 7.I stipulated as follows: “Do you promise to appear in a certain place, and if you do not do so, to pay fifty aurei?” If, through mistake, the time was omitted in the stipulation, when it was agreed that you should appear on a certain day, the stipulation will be imperfect. It is just the same as if something which could be weighed, counted, or measured had been stipulated for by me, without adding the weight, amount, or measure; or where a house was to be built, and the place was not mentioned; or a tract of land was conveyed, without giving its description. If, however, it was understood from the beginning that you might appear on any day whatsoever, and, if you did not do so, that you should pay a specified sum of money, this stipulation would be valid, just as any other made under a condition, and it would not become operative before it was established that the person who made the promise could not appear. 1Ad Dig. 45,1,115,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 286, Note 3.If, however, I should stipulate as follows, “Do you promise to pay a hundred aurei, if you do not ascend to the Capitol, or go to Alexandria?” the stipulation does not immediately become operative, even though you may be able to ascend to the Capitol, or to go to Alexandria; but only when it becomes certain that you can neither ascend to the Capitol, or go to Alexandria. 2Ad Dig. 45,1,115,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 286, Note 3.Again, if anyone stipulates as follows, “Do you promise to pay a hundred aurei if you do not deliver Pamphilus?” Pegasus says that the stipulation does not take effect before it becomes impossible for Pamphilus to be delivered. Sabinus, however, thinks that, according to the intention of the contracting parties, an action can be brought after the slave could have been delivered; but that proceedings cannot be begun under the stipulation, as long as it was not the fault of the promisor that he was not delivered. He sustains this opinion by giving the example of a legacy left for maintenance. For Mucius stated that if an heir was able to furnish maintenance, and did not do so, he would immediately become liable for the money bequeathed. This rule was adopted because of its utility, as well as on account of the wishes of the deceased, and the nature of the thing itself. Hence the opinion of Sabinus may be adopted, if the stipulation does not begin with a condition, for instance, “Do you promise to pay such-and-such a sum, if you do not deliver Pamphilus?” But what if the stipulation was expressed as follows, “Do you promise to deliver Pamphilus, and if you do not do so, do you promise to pay such-and-such a sum?” This undoubtedly would be true, if it was proved to be the intention that if the slave was not delivered, both the slave and the money would be due. If, however, it was promised that the money alone would be due if the slave was not delivered, the same opinion could be maintained; since it was established that the intention of the parties was that the slave should be delivered, or the money paid.

Papinianus, Questions, Book II. The Imperial Brothers stated in a Rescript that slaves who have been condemned to chains for a term could, after having served it, receive either their freedom, an estate, or a legacy; because a temporary punishment based from a judgment is equivalent to an annulment of the penalty. If, however, the benefit of freedom comes to them while in chains, the reason of the law and the words of the constitution are opposed to freedom. It is evident that if freedom was granted by a will, and that when the estate was entered upon, the time of the sentence had expired, the slave is understood to have been lawfully manumitted; not otherwise than if a debtor should manumit a slave given by way of pledge, and the estate should be entered upon after the pledge had been released.

Papinianus, Questions, Book II. The Emperor, Titus Antoninus, stated in a Rescript addressed to Lentulus Verus that the duties of magistrates were individual, but that their responsibility was common. This should be understood to mean that the responsibility only attaches to the entire body, if the property could not have been preserved by the one who transacted the business, nor by those who were his sureties, if he, at the time that he relinquished his office, was not solvent; but, on the other hand, if the person or the security was suitable or solvent when suit could have been brought, each one will be liable for whatever he administered. 1Where, however, he who appointed the magistrate on his own responsibility is solvent, should the action first be brought against him as a surety; or, indeed, will it be the same as if the business was improperly transacted by his colleague? It was decided that he should first be sued who appointed the magistrate, as in the case of a surety, since his colleague is proceeded against on account of his negligence, and to collect the penalty; but he who nominated the magistrate is sued because of his guarantee.

The Same, Questions, Book II. What, then, would be the rule, if one of the magistrates was absent for the entire year; or if, while present, he did not transact the public business through either obstinacy, ignorance, or ill health, and his colleague alone attended to it all, and it was not properly done? The following order shall be followed: first, he who conducted the public business, and those who were sureties for him, shall be sued for the entire amount, and after all these have been exhausted, he who appointed an insolvent person will be liable; and finally, the other magistrate, who did not attend to any public affairs, should be called to account. Nor can he who appointed the magistrate properly decline general liability, as he should have known that he whom he appointed took the office as an individual, and assumed common responsibility. For when two magistrates transact business, and money which is due can not be collected from one of them, he who nominated him can be sued for the entire amount when this is necessary.

Papinianus, Questions, Book II. It has been decided that those who temporarily have been removed from the Order of Decurions, for a crime which implies ignominy, are perpetually excluded. Those, however, who have been temporarily exiled for some trifling offence, as, for instance, one which grew out of some business transaction, should not be considered infamous.

Papinianus, Questions, Book II. He who is entitled to exemption from public employments cannot be compelled to assume the duties of one which is extraordinary, and which he has been commanded to exercise.