The Same, Opinions, Book III. Where an agent made an agreement with respect to property belonging to his principal, which was not contrary to the terms of his mandate, the principal can then bring suit, even if his agent is unwilling.

The Same, Opinions, Book III. A surety, through inexperience, received pledges or securities relating to another contract in which he was not interested, and paid both debts to the creditor, thinking that he could obtain indemnity by combining the securities. On account of this, a suit on mandate brought against him would be of no effect, and he himself could not bring suit against the debtor, but it would be necessary for each of them to sue the other on the ground of business transacted. In the trial of this it will be sufficient to take into consideration the negligence, but not the accident, for the reason that a surety is not considered to be a robber. The creditor in this instance, cannot be held liable in an action of pledge for the restitution of the property as he seems to have sold his right. 1Where a mother has received from a man who is betrothed to her daughter gifts for the latter of which the girl is ignorant; an action on mandate or deposit does not lie in her favor, but one can be brought on the ground of business transacted.

The Same, Opinions, Book III. A banker must be sued where the contract was made with him, and, in such a case, a postponement will not be granted except for good cause; as, for instance, to permit his books to be brought from a province. The same rule applies to an action on guardianship. 1Where the guardians of a female ward have a decision rendered against them in a province, the curators of the ward may be comoelled to comply with the decree at Rome, where the mother of the ward borrowed the money, and her daughter was her heir.

Papinianus, Opinions, Book III. If, however, the father has not yet recovered the dowry, the son alone may be sued, and he can charge the father with whatever he has paid on this account:

Ad Dig. 12,6,57ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.The Same, Opinions, Book III. With reference to the next payment in the name of a boy who has not reached puberty, the latter has a right of action for the recovery of the money. 1When a creditor directs that a debt shall be paid to his agent, in this instance, if more money is paid than was due, the agent will be liable to an action for the payment of what was not owing; but if the creditor, when appointing someone to receive payment, expressly mentioned a larger sum to be paid to him, an action for the recovery of money paid which was not due will lie against the party who appointed him, and the right of action will not be held to be taken away if suit is brought against the said agent in vain.

Papinianus, Opinions, Book III. A debtor cannot legally purchase a pledge which he has given to a creditor, because the purchase of one’s own property is void; for if he buys it for less than the amount of the claim and demands it, or brings suit for the ownership, the creditor is not obliged to restore possession to him unless he tenders payment of the entire debt. 1The son of a debtor, who is under the control of his father, cannot obtain possession of a pledge from a creditor with money belonging to his own peculium; and therefore if a patron of the debtor has obtained possession of the property of the estate contrary to the provisions of the will, he will acquire half of the ownership; for the pledge is released by the money which the son paid as a price out of the property belonging to his father. 2The money having been paid, the creditor should restore the possession of the pledge which was actually in his hands; nor can the debtor be compelled to pay anything more. Therefore, if the creditor has, in the meantime, himself given the pledge as security, and the owner of the same has paid the money which he owed, no action will be granted with reference to the second pledge, nor will the right of retention remain.

Ad Dig. 13,7,42ROHGE, Bd. 18 (1876), Nr. 40, S. 150: Kompensation des Pfandgläubigers bezüglich des an die Konkursmasse herauszuzahlenden Ueberschusses aus dem Erloese für das Pfand mit einer chirographischen Forderung an den Kridar.Ulpianus, Opinions, Book III. The creditor is legally bound to surrender the excess of the price together with interest, in an action brought relative to the giving of the pledge; and he should not be heard if he wishes to substitute the purchaser, since, in the sale, which is made in pursuance of an agreement, the creditor is transacting his own business.

Papinianus, Opinions, Book III. A prætorian action will be granted, as in the case of an Institorian Action, against a party who appointed an agent to borrow money; and this also is the case where the agent, who promised money to a party entering into a stipulation, is solvent. 1Where a master had a slave as business-manager at a table for receiving money, and after he had given him his freedom carried on the same business by his freedman, the fact of responsibility will not be removed by the change of civil condition. 2Where a son who was appointed by his father to have charge of his shop, borrowed money for the purpose of the business, and his father became his surety; he can be proceeded against by means of the Institorian Action, since, by becoming surety, he connected the act of borrowing the money with the business of the shop. 3A slave appointed solely for the purpose of lending money at interest does not, in the capacity of business manager, render his master liable in full, under Prætorian Law, by assuming a debt as surety; but so far as money which he promised to another (in consideration of the substitution of liability) at interest is concerned, an action can properly be brought against the master on the ground of money lent to the party who made the substitution.

Papinianus, Opinions, Book III. Where a party having made a contract with a woman in good faith proceeds against her because the money which he borrowed has been employed in transactions between husband and wife; he will not be barred by an exception based on the Decree of the Senate. 1Where slaves who have been appointed for the transaction of business, in contracting with another, bring suit against a woman whose obligation they think to be valid, an exception based on the Decree of the Senate will bar their owner; nor will the position of the latter be held to be prejudiced by the act of the slave, for nothing has been obtained by the owner, any more than when a slave buys land which is in litigation, or a man who is free. 2A wife substituted another woman as her debtor to her husband, and the husband paid the money to her creditor. If she guaranteed the solvency of the woman who was substituted to her husband, the exception based on the Decree of the Senate will not be available, because the woman is transacting her own business.

The Same, Opinions, Book III. Where an agent is appointed to conduct his own case in court, and, after issue has been joined, suit is brought against him for a loan, he will justly be entitled to a set-off. 1A creditor is not obliged to set off what he owes to anyone else than his debtor, even though the creditor of him in whose behalf the party is sued for his own debt may desire to make use of a set-off.

The Same, Opinions, Book III. Where a father received the presents given to his daughter, who was her own mistress, on the day of her betrothal, or afterwards, his heir can properly be sued in an action on deposit to compel him to produce the property. 1Anyone who converts to his own use money which had been deposited with him, but not sealed up, with the understanding that he should return the same amount, and should have judgment rendered against him, in an action on deposit, for the interest from the time when he was in default.

Papinianus, Opinions, Book II. Where an attorney is appointed to conduct a case, and demands a larger fee, it must be considered whether his client desired to remunerate him for his services, and, in this instance, he must comply with what had been agreed upon; or whether the attorney had purchased the right of action with the expectation of realizing a larger sum of money, which is contrary to good morals.

The Same, Opinions, Book III. Where anyone has directed money to be loaned, the mandatary can sue the mandator without having recourse to the principal debtor, and without selling the pledges, and the creditor can even have recourse to him, if it is stated in the letter that he has a right to do so, even if the pledges are sold; for whatever is inserted in a contract for the purpose of removing all doubt, does not in any way restrict the effect of the Common Law. 1Where a surety has tendered the money in court, and, on account of the age of the party who is bringing the suit, has sealed it up, and publicly deposited it, he can immediately proceed by an action on mandate. 2It is none the less necessary to investigate the good faith of the mandatary during the entire time, where the owner of the property returns to the province after five years absence, having been compelled to leave on business for the State; although he may have renewed the mandate without having received an accounting. Hence, as it is the duty of the agent to transfer all that has been done during the first administration of the business into the account of the second, he will combine the matters attended to during the first period with those of the second. 3A salary which is dependent upon an uncertain promise cannot legally be collected by a resorting to extraordinary proceedings, nor have you the right to have it established by means of an action on mandate. 4It is necessary for an action on mandate to be brought for the recovery of bona fide expenses necessarily incurred; even though the agent may not have finished the business entrusted to him.

Ad Dig. 17,2,82ROHGE, Bd. 7 (1873), S. 433: Eine nützliche Verwendung für eine Gesellschaft ist dadurch allein, daß eine Sache zu Gesellschaftszwecken verwendet worden, noch nicht entstanden. Es muß der Gesellschafter ersichtlich für die Gesellschaft gehandelt haben.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 15.The Same, Opinions, Book III. One partner is not bound for the debts contracted by another, according to the law of partnership, unless the money was deposited in the common chest.

The Same, Opinions, Book III. If a temple is destroyed by an earthquake, the site of the building is not profane, and therefore cannot be sold. 1Where ground has been used for a garden, or for some other kind of cultivation, within the wall enclosing a tomb, it is profane and belongs to the purchaser, if the vendor did not expressly except it.

Papinianus, Opinions, Book III. The first purchaser, after better terms have been offered by another, cannot bring an action against the second for the money paid to the vendor, unless in compliance with the terms of the stipulation a substitution was made of the second purchaser for payment.

Papinianus, Opinions, Book III. Where the obligation of furnishing a lodging to freedmen is terminated by their death, the purchaser of the property will not be liable to the vendor on this account; if no other agreement was made than that a lodging should be furnished the freedmen in compliance with the will of the deceased, in addition to the price paid. 1Where a controversy arises, with reference to the ownership of property, before the price is paid; the purchaser is not compelled to pay it, unless solvent securities against his eviction are furnished by the vendor.

Papinianus, Opinions, Book III. In a contract of sale, nothing was stated with reference to the annual payment due for an aqueduct passing under a house at Rome. The buyer having been deceived would be entitled to an action on purchase on this ground; and therefore, if he should be sued in an action on sale for the price, the unexpected burden imposed upon him should be taken into consideration.

The Same, Opinions, Book III. Where a surety who has had pledges or mortgages assigned to him after he has paid a debt for money loaned, proceeds against the debtor by way of mandate, or brings suit against him on the ground of being his creditor; if he has been guilty of negligence with reference to the pledges, this must be taken into consideration. He cannot, however, sue him by means of the direct action on pledge.

Ad Dig. 20,4,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 235, Note 24.The Same, Opinions, Book III. He who, in general terms, has received the property of a debtor by way of pledge, is in a better position than he to whom a tract of land forming part of the property of the debtor is subsequently hypothecated. If, however, the agreement was made with the first creditor that other property shall only be liable by way of pledge where his right to that which he has accepted under a general hypothecation is not sufficient to secure the debt, and the second agreement fails, the second creditor will be found to be the sole, rather than the preferred one, so far as the pledge subsequently given is concerned.

The Same, Opinions, Book III. Where the first creditor sells the pledge in compliance with the terms of the agreement, it is settled that the second creditor has no right to tender the money. 1Where, however, the debtor sells a pledge without consulting his creditors, and pays the price of the same to the first creditor, the second creditor can offer to the purchaser the amount paid to the first, together with the interest which has accrued in the meantime; for it makes no difference whether the debtor sells the property pledged, or pledges it a second time.

Papinianus, Opinions, Book III. It makes no difference whether the money to be transported is not at the risk of the creditor when it is received, or whether it ceases to be at his risk after a certain time, or upon the fulfillment of a certain condition; and therefore in either instance a higher rate of interest than is legal will not be due. In the first instance, a higher rate can never be demanded; in the second, when the risk has ceased to exist, neither pledges nor hypothecations can be retained for the purpose of collecting a higher rate of interest. 1If slaves should be sent with the money transported, for the purpose of collecting it when due, interest for every day mentioned in the stipulation will be payable to the limit of twelve per cent; but more than twice the amount cannot be collected. Where it was separately stated in the stipulation, with reference to the interest, when the money would be no longer at the creditor’s risk, whatever lawful interest was lacking in one clause will be supplied by the effect of the other.

Papinianus, Opinions, Book I. It has been decided that dotal land, the possession of which was retained by the husband after letters which he sent to his wife, in which he stated that the land would not become dotal, can be retained by the husband after the wife had died during marriage, for the reason that she would not be entitled to an action on contract.

The Same, Opinions, Book III. When sureties, who bound themselves to see that the property of the ward remained secure, ask that the latter shall bring an action against his guardian, before having recourse to them, and they promise that if he does so they will indemnify him for what he cannot recover from the guardian, it is held that an action to recover the balance shall be divided among the sureties who are solvent; because the obligation is held to have been assumed by them, as where money is loaned under the direction of several persons, the action is equally divided among them. For where what has been given by one is used for the release of another, why should the particular nature of an action exclude an equitable division?

Ad Dig. 39,5,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 98, Note 3; Bd. II, § 368, Note 6; Bd. III, § 621, Note 6.The Same, Opinions, Book III. A father donated an estate, which had been left to him, to his daughter, who had become her own mistress. The daughter must satisfy the creditors of the estate, and if she should not do so, and the creditors should have recourse to her father, she can be compelled by an action præscriptis verbis to defend her father against the creditors.

The Same, Opinions, Book III. The action should be divided between those sureties who have become responsible for the entire amount, and their own equal shares. The case would be different, where the following words were used, “Do you promise to be responsible for the entire amount, or your respective share of the estate,” for then it is settled that each one will only be liable for his individual share. 1Ad Dig. 46,1,51,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 10.A surety who has paid a portion of the amount due either in his own name, or in that of a promisor, cannot refuse to have suit brought against him for the division of the remainder. For the amount which each of them owes individually should be divided between those who are solvent at the time of the judgment. It is, however, more equitable to come to the relief of the party who paid by means of an exception if the other was solvent at the time when issue was joined. 2Ad Dig. 46,1,51,2ROHGE, Bd. 4 (1872), S. 325: Rechtsverhältniß mehrerer Bürgen dem Gläubiger gegenüber. Regreß eines Mitbürgen an den andern zur Hälfte, ungeachtet letzterer nur zur letzten Stelle hat haften wollen. Beneficium cedendarum actionum, divisionis, excussionis.Two joint-debtors gave separate sureties. The creditor is not obliged against his will to divide the actions between all the sureties, but only between those who became responsible for each of the debtors. It is clear that if he wishes to divide his action among all of them, he cannot be prevented from doing so, any more than if he should sue the two debtors for their respective shares of the debt. 3A creditor is not compelled to sell a pledge, if, having abandoned the pledge, he wishes to sue the person who simply became surety. 4Ad Dig. 46,1,51,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 10.The action having been divided among the sureties, some of them, after issue was joined, ceased to be solvent; but this fact has no reference to the responsibility of one who is solvent, nor will the plaintiff be protected in case of his minority, for he is held not to have been deceived when he had recourse to the Common Law. 5Where the property of a surety against whom judgment has been rendered is claimed by the Treasury, and the action is afterwards divided between the sureties, the Treasury will be considered to occupy the position of an heir.

Papinianus, Opinions, Book III. When a purchaser, having been delegated by the vendor, promises money as follows, “Whatever it is necessary to pay, or to do, on account of the sale,” novation takes place; and he does not owe to anyone interest for the following time.

Papinianus, Opinions, Book III. Where lands have been sold by the Treasury, it was decided that the purchaser is liable for any taxes already due thereon.

The Same, Opinions, Book III. Whatever is inserted in contracts for the purpose of removing ambiguity does not prejudice the Common Law.