The Same, On Plautius, Book III. Where a surety has bound himself in a matter in which he was interested, in this instance he is to be considered as a principal debtor; and where an agreement is made with him, it is held to have been made with the principal debtor.

Ad Dig. 2,14,32Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 477, Note 20.Paulus, On Plautius, Book V. Where it is stated that, when an agreement is made with the principal debtor that suit shall not be brought against him, the surety is also entitled to an exception; and this was established for the benefit of the debtor, to prevent an action of mandate being brought against him. Therefore, if no action of mandate will lie, for instance, because the party became a surety with the intention of donating the debt, it must be held that the surety is not entitled to an exception.

Paulus, On Plautius, Book III. Where a party is not compelled to defend an action in a certain place; if he himself brings suit there, he can be compelled to defend suits also, and to appear before the same judge.

Paulus, On Plautius, Book III. This action includes whatever has been done, or ought to have been done for the common benefit by a party who knew that he had a fellow-owner. 1Any expenses, however, which I incurred while I believed that the land was my own, and which, if suit is brought for the recovery of a part of the land I can, of course, retain by pleading the exception on the ground of fraud; it should be considered whether I can retain them on account of the justice of the action itself, if suit in partition should be brought against me. I think the better opinion is that I can do so, because the action for the partition of common property is a bona fide one, but this is only the case where suit is brought against me; still, if I should dispose of my share, nothing will remain from which I can retain the expenses. Let us consider if a purchaser from me can retain them, for if an action is brought to recover a share from him, can he retain the amount on the ground of the expense which I incurred, just as I myself could do? The better opinion is that, in this instance, the expenses can be retained, and since this is the case, it is most justly held that I should be granted an equitable action against my co-owner on account of said expenses, even though the joint ownership still continues to exist. The rule is different, however, where I spend money upon my own property, as it were, which really belongs to another, or is held in common; for, in this instance, I have only the right of retention because I do not wish to bind anyone to myself; where I think property belongs to Titius which in fact belongs to Mævius, or that it is owned by me in common with another party who in reality is not my co-owner, I do this to bind another party to me; and as an action on the ground of business transacted is granted me against someone whose affairs I have attended to thinking that they were those of another, so also in the instance under consideration. Therefore, if I were to sell the land to another, for the reason that the case was such that I should be entitled to an action, one on the ground of business transacted should be granted me (as Julianus also says). 2If it should be agreed that no partition whatever shall be made, it is perfectly evident that an agreement of this kind would have no force; but if it was agreed that none should be made within a certain time, and this enures to the benefit of the property itself, such an agreement will be valid. 3Where it is agreed between joint-owners that the community of ownership shall not be divided within a certain time, there is no doubt that a party who is bound by an agreement of this kind is at liberty to sell; and therefore a purchaser from anyone who brings an action for the division of common property will be barred by the same exception by which the vendor himself would have been barred. 4If a joint-owner makes an agreement not to bring suit for his share, the joint ownership is, to all intents and purposes, terminated.

Paulus, On Plautius, Book III. Where a party swears that he is not obliged to pay, all controversy is terminated, and it must be stated that, in this instance, money which has been paid can be recovered.

The Same, On Plautius, Book III. Exceptions to which certain persons are entitled do not pass to others; as, for instance, where a partner, a father, or a patron, can plead an exception to have judgment rendered against him only for the amount which he is able to pay; this privilege is not granted to a surety. Hence the surety of a husband, who was given after the marriage has been dissolved, will have judgment rendered against him for the entire amount of the dowry. 1Ad Dig. 44,1,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 2.Exceptions which have reference to property can, however, also be pleaded by sureties; for example those based on res judicata, fraud, and where an oath has been exacted, if this was done under duress. Therefore, if the principal debtor entered into an agreement concerning the property, his surety will, by all means, be entitled to an exception. An exception based upon the appearance of a surety, on the ground that the claim will prejudice the right of freedom, can also be employed by him. The same must be said where anyone has become surety for a son under paternal control in violation of the Decree of the Senate, or for a minor of twenty-five years of age, who has been defrauded. If, however, he has been deceived with reference to the property, he will not be entitled to relief before he obtains restitution, and an exception should not be granted the surety.

The Same, On Plautius, Book III. If anyone should promise one of the joint-debtors that the principal will ratify the payment, and that it will not again be demanded, it must be said that the stipulation will take effect if the money is demanded by a party to the same obligation.

Paulus, On Plautius, Book III. The term “possession” sometimes means property, as has been held in the case of one who bequeathed his possession.

The Same, On Plautius, Book III. Any act of a magistrate which has no reference to his judicial duties is void.