Papinianus, Questions, Book VIII. Where a son who appears in behalf of his father keeps silent when interrogated, everything must be observed just as if he had not been interrogated.

Papinianus, Questions, Book VIII. There are persons who, although they cannot make a place religious, still can very properly make application for an interdict with reference to the burial of a dead body; as, for instance, where the mere owner of property buries or wishes to bury a corpse in land of which the usufruct is held by another, since, if he buries it there he will not make the place a lawful sepulchre, but if he is prevented from doing so, he can very properly make application for an interdict by means of which an inquiry can be instituted as to the right of ownership. The same rules apply to the case of a joint-owner who wishes to bury a dead body in ground held in common against the consent of his co-owner; for, on account of the public welfare, and in order that corpses may not lie unburied, we have ignored the strict rule which sometimes is dispensed with in doubtful questions relating to religious matters; for the highest rule of all is the one which is favorable to religion.

Ad Dig. 12,6,56Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 5.The Same, Questions, Book VIII. It is sufficient to establish a case of money not due where it is uncertain whether the defence based on an exception is temporary or perpetual. For, if the party enters into an agreement that suit shall not be brought against him until Titius becomes Consul, then, because an exception may become perpetual if Titius should die, which if Titius should obtain the consulship will be temporary, it may be stated with perfect correctness that whatever is paid in the meantime can be recovered. For as an agreement for money to be paid at a certain time does not any more give rise to an action for recovery than if the debtor made payment at the appointed time; so it is evident that where there is a lawful defence which is based on an uncertain ground a conditional obligation exists.

Papinianus, Questions, Book VIII. This suit, based on justice and equity, is ordinarily employed for the recovery of property which belongs to one party and is found in the possession of another without any right to the same.

Papinianus, Questions, Book VIII. Titius, however, will be liable to a personal action for the recovery of money not due, in order that what has been wrongfully paid to him may be refunded to the party who paid it.

Papinianus, Questions, Book VIII. A certain person owed me either one of two things, and promised to deliver one of them; the question arose whether he could deliver the one which he did not promise? I answered that he should not be heard if he now desired to break faith with reference to what had been promised. 1Where an oath has been tendered to you, and you swear that something is due to you, when you already have a right of action on account of it, you can properly proceed on the ground of a promise to pay; but if I did not voluntarily tender the oath, but did so being compelled by the necessity of tendering it back to you, no distinction exists, even though the necessity of tendering it back arose on account of your willingness and my respect; for no one doubts that a party acts with greater moderation when he tenders an oath back, than he does when he himself makes it.

Papinianus, Questions, Book VIII. It sometimes happens that existing and common actions will not lie, and we cannot find the proper name for the proceeding; so we readily have recourse to those designated in factum. In order that examples may not be wanting, I will give a few. 1Labeo states that a civil action in factum should be granted to the owner of merchandise against the master of a ship, where it is uncertain whether he leased the ship, or hired the services of the master, for the transportation of his goods. 2Likewise, where anyone delivers property to another for examination in order to establish the price of the same, a transaction which is neither a deposit nor a loan for use, and the party does not show good faith, a civil action in factum can be brought against him.

Papinianus, Questions, Book VIII. Ad Dig. 20,4,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 8.A certain man who promised a dowry for a woman accepted a pledge or an hypothecation to secure the restitution of the dowry to himself. Having paid a portion of it, the husband afterwards gave the same property in pledge to another party, and afterwards the remainder of the dowry was paid. A question arose with reference to the pledge. Since the party who promised the dowry is required to pay the entire amount on account of his promise, the times of payment should not be taken into account, but the date when the obligation was contracted. It cannot properly be said that it is in the power of the party not to pay the remainder of the money, because, under these circumstances, the woman would not seem to be endowed. 1The case of him who receives a pledge is different, when this is done to secure the payment of a debt within a certain time; where, for instance, the property was pledged to another before the money was paid.

The Same, Questions, Book VIII. Certain heirs sold property belonging to the estate, which had been pledged, and bound themselves to the extent of their respective shares in case of eviction. One of them released the pledge so far as his share was concerned, and the creditor acquired the property by eviction; the question then arose whether suit could be brought against both heirs. This was held to be the case, on account of the indivisible nature of the pledge, and there did not seem to be any remedy which could be applied, in order that, by interposing an exception on the ground of fraud, the rights of action might be assigned to the heir who paid the money to the creditor; because it could be asserted that both the parties had become liable for the entire indebtedness, but they would be entitled to an action for partition of the estate on this account. For what difference does it make if one of heirs should entirely release the pledge, or whether he should only do so with reference to his share, since the negligence of one heir should not be injurious to his co-heir?

Papinianus, Questions, Book VIII. A father gave as dowry for his daughter a certain sum of money which he had borrowed, or for which he had incurred liability. As soon as this money was expended the dowry became profectitious.

Papinianus, Questions, Book VIII. Where anyone to whom a debtor has paid money belonging to another continues to demand payment of what is due him while the said money is in his hands, and does not offer to return what he has received, he will be barred by an exception on the ground of fraud. 1If, however, I lend money which is owned in common, or I pay it, a right of action and a release will immediately arise with reference to my share, whether the undivided joint interest in the money be taken into account, or whether this money is considered, not as to its corporeal existence, but as to its amount. 2But when a surety pays money belonging to someone else, for the purpose of being. released from liability, and it is expended, he can bring an action on mandate. Therefore, if he pays the money which he purloined, he can bring an action on mandate after he has paid the amount of the judgment obtained in an action of theft, or in one for the recovery of property. 3Favius Januarius to Papinianus, Greeting: Titius owed Gaius Seius a certain sum of money under the terms of a trust, and also as much more for another reason, that he was unable to collect, but which, after it had been paid, could not be recovered. A slave, who was the agent of Titius, paid the sum of money during the absence of his master, it being equal to the amount of one of the claims, and stated that it should be credited on the entire indebtedness. I ask upon which claim the amount which was paid should be considered to have been credited. The answer was that if Seius stated to Titius that the payment should be credited on the entire indebtedness, the term “indebtedness” would seem to indicate only the sum due under the trust, and not that for which he could not bring suit, and after the payment of which the money could not be recovered. But as the slave, who was the agent of Titius, paid the money during the absence of his master, the ownership of the said money would not pass to the creditor under the kind of obligation in which recourse could be had to an exception, even if payment was alleged to be made on this debt; because it is not probable that the master would have appointed his slave to pay the money on the debt which should not be paid; any more than to make payment out of the peculium in order to release the slave from liability as surety, which the slave had assumed without reference to the benefit of his peculium.

Papinianus, Questions, Book VIII. When anyone gives an article to be examined, and he who receives it assumes the risk, he himself can bring the action for theft.

Papinianus, Questions, Book VIII. The question arose whether the right of action for violating a sepulchre belongs to the necessary heir, when he has not meddled with the property of the estate. I held that he can very properly bring this action, which is introduced in accordance with what is good and just. And, if he should bring it, he need have no apprehension of the creditors of the estate; for although this action is derived from it, still nothing is received through the will of the deceased, nor is anything obtained from the pursuit of the property, but only in consequence of the punishment inflicted by the law.