The Same, Opinions, Book II. Where an agent pledges his own faith for the title of lands which he sold, he will not be released from liability from his obligation by the aid of the Prætor even after he has ceased to act as agent; for an agent who assumes the bond of an obligation for his principal cannot refuse to support his burden.

Ad Dig. 3,5,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 8.Papinianus, Opinions, Book II. A certain man directed a freedman or a friend to borrow money, and the creditor, on the faith of the letter, made the agreement, and the surety was given. In this instance, although the money was not expended upon property, still an action is granted to the creditor or his surety, against the party, on the ground of business transacted; which certainly bears a resemblance to the Actio Institoria. 1A man who was transacting business for Sempronius, ignorantly attended to a matter in which Titius was interested. He will be liable to Sempronius also, on account of this particular matter, but he can make an application to the court for a bond of indemnity against Titius, to whom a right of action is granted. The same rule applies to the case of a guardian. 2Where a case was ready to be heard, and the defendant did not appear, a friend of his voluntarily took his place, and stated the cause of his absence to the court. The latter will not be considered to have been guilty of negligence, if he did not appeal where a judgment was rendered against the party who was absent. Ulpianus says in a note, that this is correct, because the first party in default lost his suit; but where a friend defends an absent person and permits judgment to be taken against him, and brings suit on the ground of business transacted, he will be rendered liable, if he does not appeal when he could do so. 3A person who transacts the business of another is obliged to pay interest on any money in his possession, after the necessary expenses have been settled. 4A testator stated that his freedman should be paid a certain sum of money for the expense of erecting a monument; and if anything beyond that amount was expended, suit cannot be brought for it on the ground of business transacted, or on that of a trust, since the wish of the testator established a limit to the expenditure. 5The heir of a guardian, who is a boy under the age of puberty, is not liable for matters attended to by his guardian with reference to the property of the female ward of his father; but the guardian of the boy may be sued in his own name on the ground of business transacted. 6Although a mother may transact the business of her son in accordance with the will of his father, through the inducement of natural affection; still, she will not have authority to appoint an agent, at her own risk, for the purpose of instituting legal proceedings, because she cannot herself legally act in behalf of her son, or alienate her property, or discharge a debtor of the minor by accepting payment. 7Where one party defended a case in which a common right of water was involved, and judgment was rendered in favor of the owner of the land; he who paid the necessary, reasonable expenses in the case where both were interested, will be entitled to an action on the ground of business transacted.

Papinianus, Opinions, Book II. An arbiter ordered certain slaves to be restored within a specified time, and, as they were not restored, he ordered the party to pay a penalty to the Treasury, in compliance with the terms of the agreement for arbitration. No right is acquired by the Treasury by reason of such an award, but there is, nevertheless, liability for the penalty under the stipulation, because the decision of the arbiter was not obeyed.

The Same, Opinions, Book II. The functions of a judge are not interfered with by the fact that, after a suit has been begun against all the guardians, some of them have been absent on public business; since the administration of those who are present can be distinguished and investigated separately from that of those who are not defended. 1Where a person in whose behalf an action has been brought by an agent is afterwards ascertained to be a slave, the debtor should be discharged; but the principal will not be barred for this reason, if he should subsequently decide to bring the action himself.

The Same, Opinions, Book II. Ad Dig. 5,2,16 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Noten 24, 27.Where a son has already instituted proceedings on the ground of inofficiousness of his mother’s will, against his brother who was appointed heir to a portion of the estate, and gains his case; a daughter who did not bring suit, or did not succeed, cannot lawfully share in the inheritance with her brother. 1A father obtained possession of the estate of his son by the right of manumission, in opposition to the provisions of the will, and look possession of the property; and afterwards a daughter of the deceased, whom he had disinherited, very properly prosecuted an action on the ground that the will was inofficious, and then the possession which the father obtained was annulled; for, in the former proceedings, the question to be determined was the legal position of the father, and not the legality of the will; and hence it was necessary for the entire estate to be restored to the daughter together with the profits of the same.

The Same, Opinions, Book II. The heir of an insane person will be compelled to indemnify the substitute or a relative in the next degree for the profits of the intermediate time by means of which the said insane person seems to have become enriched through his curator; with the exception of such expenses as have been incurred either necessarily or beneficially with reference to the estate. Where, however, any necessary expense has been incurred in behalf of the said insane person, it must also be excepted; unless the said insane person had other sufficient property by means of which he could be supported. 1Interest on profits received after the action to recover an estate has been brought is not to be paid. A different rule is applicable where they were received before the action for recovery of the estate was brought, and for that reason increased the assets.

Papinianus, Opinions, Book II. Where expenses have been incurred by a bona fide possessor with reference to a tract of land which it is apparent belongs to another; he cannot bring an action to recover said expenses from anyone who presented him with the land, or from the owner of the same; but, through the aid of an exception on the ground of fraud, he can be reimbursed for said expenses, by order of Court, on equitable considerations; that is to say, where the expenses exceed the amount of the profits collected before issue was joined, for where a set-off is permitted, the owner will be required to return the amount to which the expenses exceed the profits, if the land has been benefited.

The Same, Opinions, Book II. If anyone who purchased land from someone who was not its owner interposes an exception on the ground of fraud, he will not be required to surrender the land to the owner, unless the money which was paid to a creditor who held the land in pledge for debts, together with the interest for the intermediate time is recovered by him, that is, provided the interest amounts to more than the profits which he recovered before the suit was brought, for they can only be set off against interest recently due on the principal; since it is only just that expenses should be allowed as in the case of improvements of land. 1Where a man gave his daughter, who was a female slave, not by way of dowry but as a portion of her peculium; then, if he does not bequeath her anything as peculium, the slave must be included among the assets of the estate. Where, however, a father disinherited his daughter in consideration of her dowry and peculium; and for that reason either left her nothing by his will, or left her that much less; a defence based upon the intention of her father will protect the daughter.

Papinianus, Opinions, Book II. Servitudes for the pasturage of cattle, and also that of taking them to water, where the principal income of the land is derived from cattle, are held to be attached to the land, rather than to the person; but if a testator designated some certain individual in whose favor he desired the servitude to be established, it will not pass from the said person to the purchaser of the land, or to his own heir.

Papinianus, Opinions, Book II. With reference to inquiries as to boundaries, the ancient memorials, and the authority of the census which had been taken before the suit was brought, must be followed; provided it is proved that no changes have resulted through a number of successions, and by the arbitrary acts of possessors tracts of land have been either added or taken away, and the boundaries subsequently altered.

The Same, Opinions, Book II. Property which a father has not divided among his children, after having given them rights of action instead of the division, belongs to said children in proportion to their respective shares in the estate, provided he did not give the property which he did not divide in general terms to one child; or it was not accessory to the property which was given.

Papinianus, Opinions, Book II. Even after an arbiter has been accepted, brothers who divide the common estate by consent perform the duties demanded by natural affection, and the division should not be revoked; even though the arbiter did not render a decision after the controversy was ended, unless relief should be granted on account of want of age.

The Same, Opinions, Book II. Where a surety was sued, he obtained an order of court to hold the land hypothecated to the creditor, by the right of purchase. A second creditor who had subsequently made a contract with reference to the same pledge, will, nevertheless, have the privilege of tendering the money which the surety had paid, together with the interest which, in the meantime, had accrued; for a sale of this kind, which is concluded for the purpose of transferring the possession of property pledged, is usually made on account of the requirements of the law.

The Same, Opinions, Book II. A debtor, who owed a sum of money bearing interest, tendered the amount to his creditor, and when the latter refused to accept it, he placed it in a bag, and sealed and deposited it. Reason demands that from this day there should be no interest due. If, however, suit should afterwards be brought to compel the debtor to pay, and he should fail to do so, the money will not be idle from that time.

Papinianus, Opinions, Book II. It has been decided that the minor heir of one of two curators is entitled to complete restitution where the judgment was for the full amount. This proceeding will not afford a ground of action for recovery against the other curator, as having been required to pay a smaller sum of money than he should have paid, where the plaintiff is not of an age when he can obtain relief by law; but, on the ground of equity, relief should be granted him by means of a prætorian action to the extent that the other curator has been released from liability. 1Therefore, the suit which is granted, after the age of twenty-five, within the time fixed by law, for restitution against a guardian who has had judgment rendered against him in an action on guardianship, will not be useless; for the reason that the minor curators have had judgment rendered against him on account of this neglect. Hence, if the judgment has not been satisfied by the curators, the latter can, by means of an exception on the ground of fraud, compel the rights of action of the ward to be assigned to them.

Papinianus, Opinions, Book II. A ward brought suit against his guardians and their sureties. The judge having cognizance of the case died before it came before him to be heard, and another judge was appointed against the sureties alone. It is the duty of the judge having jurisdiction to hold the guardians personally responsible for the larger part of the judgment, where they are solvent, and the administration of the trust was not separate, but in common.

Papinianus, Opinions, Book II. An heir, who is instituting a prosecution for poisoning, is not forbidden to transact urgent business relating to the estate, if he preserves all evidence and proofs of the crime.

The Same, Opinions, Book II. Where a slave, who is to be free under the condition of paying a certain sum out of his peculium to one of the heirs to the estate, does so, he must account for that sum as well by reason of the Falcidian Law, as where suit is brought for the estate, and also where restitution is made under the Trebellian Decree of the Senate. What the slave received as a donation, and paid, is considered to have been given out of his peculium, and if it was paid by another in his presence, and in his name, it is understood as having been paid by himself.

Papinianus, Opinions, Book II. When a case is submitted to the Emperor for examination, it can be recalled by the person who sent it.

The Same, Opinions, Book II. It has been established, that, in agreements, the intention of the contracting parties should rather be considered than the terms of the stipulation. Therefore, when municipal magistrates lease land belonging to their city, under the condition, “that the heir of the person who leases it shall enjoy it,” the right of the heir can also be transferred to his legatee.