Paulus, Opinions, Book V. I ask whether a surety who appears for a lessee will also be liable for interest on rent which has not been paid, or whether he can take advantage of the constitutions by which it is provided that those who pay money for others are only obliged to be responsible for the principal that is due. Paulus answered that even if the surety bound himself for everything relating to the lease, he also will be obliged to pay interest; just as the tenant is compelled to do, where he is in default for the payment of the rent. For, in contracts made in good faith, even though interest may not so much arise from the obligation, as it is dependent upon the decision of the judge, still, where the surety renders himself responsible for everything relating to the contract of the lessee, it seems but just that he also should bear the burden of interest, if he obligated himself as follows: “Do you bind yourself to the amount of a judgment justly rendered?” Or in these words: “Do you promise to indemnify me?” 1It was agreed by the lessor and the lessee of a tract of land that the tenant, Seius, should not be ejected against his will during the term of the lease, and if he was ejected, the lessor, Titius, should pay him a penalty of ten aurei; or, if the lessee, Seius, should desire to withdraw during the term of the lease, he should be compelled to pay ten aurei to the lessor, Titius, and the parties reciprocally stipulated with reference to this. I ask, as the lessee, Seius, did not pay the rent for two consecutive years, whether he could be ejected without Titius fearing to incur the penalty. Paulus answered that although nothing was stated in the penal stipulation with reference to the payment of the rent, still, it is probable that it was agreed that the tenant should not be ejected during the term of the lease, if he paid the rent, and cultivated the land, as he should do; so that if he understood to bring suit for the penalty, and had not paid the rent, the lessor could avail himself of an exception on the ground of bad faith. 2Paulus gave it as his opinion that, where anyone assigns a slave to his tenant after estimating his value, he will be at the risk of the tenant; and therefore, if he should die, his value, as appraised, must be made good by the heir of the tenant.

The Same, Opinions, Book V. Paulus was of the opinion that a general agreement covering all the property of the debtor was sufficient to establish the obligation of pledge; but that such property as was not included in that of the deceased, but was afterwards acquired by the heir in some other manner, could not be recovered in an action by a creditor of the testator. 1Where female slaves are pledged, the children born of them are also considered to be encumbered. Still, what we have stated with reference to their children being liable, whether an express agreement was made with reference to them or not, only applies where their ownership is acquired by the person who encumbered them, or to his heir. If, however, the children were born while the female slaves were in the possession of another master, no liability will attach to them under the pledge. 2A house which was given in pledge was burned; Lucius Titius purchased the ground on which it had stood, and erected a building thereon. The question arose as to what became of the pledge? Paulus answered that the right to the pledge still remained, and therefore the right of the soil was held to follow the usufruct; that is to say, so far as the right of pledge was concerned; but the bona fide possessors will not be compelled to surrender the house, unless the builder should receive the expenses incurred in its construction, to the extent that the property was rendered more valuable. 3Where a slave, with the knowledge and consent of his master, enters into an agreement that all the property of the latter shall be hypothecated, the slave himself, who made the contract, will form part of the property pledged.

The Same, Opinions, Book V. Titius, when he was about to borrow money from Mævius, executed an undertaking and indicated certain property to be given by way of pledge, and then, after he had sold some of the said property, he received the money. The question arose whether the property sold was liable to the creditor? The answer was that, since it was in the power of the debtor, after security had been given, not to receive the money, the obligation appeared to have been contracted with reference to the pledge at the time when the money was paid; and therefore the property which the debtor had in his possession when the money was paid should be taken into account.

The Same, Opinions, Book V. Paulus gave it as his opinion that where Sempronius, a first creditor, consented that the debtor should encumber the same property pledged to him to a third creditor, he is held to have released his right to the pledge, but that the third creditor was not subrogated to him, and therefore the position of the second creditor was improved. The same rule should be observed where the Government lends money as a third creditor. 1Where anyone prosecutes his claim to property by the right of pledge, it is usual for him to be barred from an action for the recovery of the property pledged, where the possessor makes him a tender of the amount of his claim; for no inquiry should be made with reference to the title of the possessor, when the right of the plaintiff is extinguished by the release of the pledge.

The Same, Opinions, Book V. I ask, if a slave has fled from the purchaser, and it has been decided that good cause for his return exists, whether the vendor should not pay the appraised value of the property carried away by the slave, before the latter is returned to him. Paulus answered that the vendor should be compelled not only to pay the price of the slave, but also the appraised value of what was stolen by him, unless he is ready to deliver up the slave by way of reparation for the property taken. 1I also ask if the vendor refuses to pay the appraised value of the property and the purchase-money, whether the slave should be retained, and an action on the peculium granted, or whether double the price of the slave sought to be returned should be demanded on the ground of a stipulation. Paulus answered that an action will lie for the recovery of the price of the slave, and also for double his value on account of the stipulation. An opinion has already been given with reference to the property stolen by the slave. 2I purchased a slave under the stipulation of double his value if he was returned, and he then ran away with some of my property. Having afterwards been found, and interrogated in the presence of respectable men as to whether he had previously run away from the house of the vendor, he answered that he had. I ask whether this answer of the slave is entitled to consideration. Paulus replied that if other proofs of his former flight are not lacking, then the answer of the slave should be believed.

Ad Dig. 46,2,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Note 2.The Same, Opinions, Book V. Paulus gave it as his opinion that if a creditor, with the intention of making a novation, should stipulate with Sempronius in such a way as to entirely abandon the first obligation, the same property could not be encumbered by the second debtor without the consent of the first.