Papinianus, Questions, Book IX. Where a person stipulates for “Stichus or Damas, whichever he may choose,” and Titius brings suit, as agent, to recover one of them, and his principal ratifies his act; the result is that the matter is held to be brought under the jurisdiction of the court, and annuls the stipulation.

Papinianus, Questions, Book IX. At the time when there is nothing in the peculium, the father conceals himself, I, being about to bring an action De peculio against him, cannot be placed in possession of his property for the purpose of preserving it, because he who would be entitled to be discharged from liability if he had joined issue, is not concealing himself for the purpose of committing fraud. Nor does it make any difference if it should happen that a judgment against him may result; for, also, if a debt is due at a certain time, or under some condition, the party is not held to conceal himself on account of fraud, although he may be unjustly condemned by the judge. Julianus, however, thinks that a surety given at the time when there is nothing in the peculium is liable, since the surety can be accepted for a future right of action if he is accepted in this way. 1If a creditor appoints as heir a father who is liable on the peculium, since the time of death is regarded with a view to the operation of Lex Falcidia, the peculium in existence at that time will be taken into consideration. 2Even after the master has been sued on the peculium, a surety can be taken in behalf of the slave; and therefore, for the same reason as that for which if a slave should pay the money after issue has been joined in an action, he cannot recover it any more than if issue had not been joined, a surety will be held to have been lawfully accepted, because the natural obligation, which even a slave is held to incur, is not made an issue in the controversy. 3A slave belonging to another, while he was serving me in good faith, paid me money borrowed from Titius, in order that I might manumit him, and I did so; the creditor asked whom he could sue on the peculium. I said that, although in other instances the creditor would have the choice, yet in the one stated suit should be brought against the master, and he could bring an action against me for production of the money which had been obtained by him, and had not been alienated on account of the transaction which was said to have taken place with reference to the civil condition of the slave; nor should the distinction of those be admitted who think that if I do not manumit the slave, the money should belong to his master, but if the manumission takes place, the money is deemed to have been acquired by me, since it is given to me, rather on account of my business, than as being derived from my property.

Papinianus, Questions, Book IX. Therefore, although the surety, having filed a replication on the ground of fraud, loses the defence based on the exception, he will, nevertheless, not be entitled to a replication as against the woman, because he cannot allege ignorance of the facts. It would not be unjust, however, for an action on the ground of business transacted to be granted against a defender; because it is established by the Decree of the Senate that a proceeding on the ground of mandate is void, and he is released by payment of the money by the surety.

Papinianus, Questions, Book IX. The depositary can exercise his privilege, not only with reference to the remainder of the deposit which may be found among the assets of the banker, but also with reference to all other property of the banker who has been guilty of fraud; and this rule has been adopted on the ground of public utility. It is evident that the expenses necessarily incurred are always preferred claims, for, after they have been deducted, it is customary to make an appraisement of the property.

Ad Dig. 16,3,24ROHGE, Bd. 7 (1873), S. 117: Verwandtschaft des depositum irregulare mit dem Darlehnsvertrage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 379, Note 1.Papinianus, Questions, Book IX. Lucius Titius to Sempronius Greeting: “I notify you by this letter written by my own hand, that the hundred pieces of money which you loaned to me this day, and which have been counted by the slave Stichus, your agent, are in my hands, and that I will pay them to you on demand, when and where you desire me to do so.” The question arises whether any increase by way of interest is to be considered? I answered that an action on deposit will lie, for what is the loaning of anything for use but the depositing of it? This is true, if the intention was that the very same coins should be returned, for if it was understood that only the amount should be paid, the agreement exceeds the limits of the deposit. If, in the case which has been stated, an action on deposit will not lie, since it was only agreed to pay the same sum, and not the identical coins, it is not easy to determine whether an account of the interest should be taken. It has, in fact, been established that, in bona fide actions, it is the duty of the judge to decide that, with reference to interest, only such can be paid as the stipulation provides for. But is contrary to good faith and the nature of a deposit, that interest should be claimed before the party who granted the favor by receiving the money, is in default in returning it. If, however, the agreement was that interest should be paid from the beginning, the condition of the contract shall be observed.

Papinianus, Questions, Book IX. Where anyone becomes surety for another, relying on the honor of a third party who is present and does not object; he can hold both of them liable to an action on mandate. But if, in compliance with a mandate of one of the parties, he becomes surety unwillingly or in ignorance of the facts, he can only sue the one who gave him the mandate, and not him who incurred the obligation. It does not affect me, because the principal debtor is released by the money of the surety, for this happens even if you make payment in behalf of another by my direction.

Papinianus, Questions, Book IX. Where a partner promised a dowry in behalf of his daughter, and, before he paid it, died, having left her his heir, and she afterwards brought an action against her husband for her dowry; she was released by a receipt from her husband. The question arose whether, if she brought an action on partnership, she ought to receive the amount of the dowry as a preferred claim, if it had been agreed between the partners that the dowry should be taken out of the common fund? I say that the contract was not an unjust one, provided that the girl had not made it merely with reference to one of the partners; for, if the agreement was reciprocal, it did not make any difference if only one of the partners had a daughter. Moreover, if the father should recover the dowry which he had given after the death of his daughter during marriage, the money ought to be returned to the partnership, for we should interpret the contract equitably in this way. If, however, the marriage should be dissolved by a divorce during the existence of the partnership, the dowry would be recovered with its accessories, so that it could again be given to another husband. But if the first husband was not able to restore the dowry, another could not be taken from the funds of the partnership, unless this had been expressly agreed upon. In the example proposed, however, it seems to be most probable that the dowry was actually paid, or at least promised. For if the daughter had received the dowry by operation of law, after she became the heir of her father, the money ought not to be placed in the partnership fund, because she would be entitled to it, even if there should be another heir. But, if she was released by a receipt from her husband, money should not be credited to the partnership which had not been paid.

Ad Dig. 30,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 9.Papinianus, Questions, Book IX. Where a legacy has been bequeathed to a son under paternal control, or a slave belonging to another, or an estate is left to him; it must be left in trust to the father or master, and only under these circumstances will the trust have any force or effect, unless it is left to those through whom the benefit of the estate or the bequest will accrue to the said father or master. Again, Julianus, induced by a very good reason, gives it as his opinion that a father, whose son has been appointed an heir, must surrender the estate even to a stranger, after having deducted the portion granted by the Falcidian Law; since he is responsible as the representative of his son, for the reason that the latter cannot be held liable in his own right, and the father cannot be liable as heir, but is considered to have been charged with the trust in the capacity of a parent. Therefore, if the father was charged to deliver to his son, after his death, what came into his hands through a legacy or an estate bequeathed to his son, and the latter should die during the lifetime of his father, the father can retain this beyond all doubt, as the trust acquires its force from the person of the father.

Papinianus, Questions, Book IX. If the penalty of deportation is imposed upon a debtor, Julianus says that a surety cannot be accepted for him, as the entire obligation against him is extinguished. 1If a son under paternal control accepts a surety in a matter having reference to his peculium as follows, “Do you become responsible for as much money as I may lend?” and, having become emancipated, he lends the money, the surety will not be liable to the father if the principal debtor is not, but on the ground of humanity he ought to be liable to the son.

The Same, Questions, Book IX. Where a debtor steals a pledge, he can, under no circumstances, recover what he has paid in an action for theft.