Scævola, Digest, Book V. Ad Dig. 12,6,67 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 10.Stichus, having received his freedom under the will of the party whom he thought to be his owner, on condition that, for ten years after the death of the latter he would pay ten aurei annually to his heirs, paid the prescribed sum for eight years, as he was directed to do; he afterwards ascertained that he was born free, and did not make any payments for the remaining years, and he was also pronounced free born in court. The question arose whether he could institute proceedings for the recovery of the money as not having been due, and, if this was the case, by what kind of an action? The answer was that, if the money he paid had not been obtained either by his own labor or through the property of him whom he had served in good faith, an action could be brought for the recovery of the same. 1A guardian paid a larger sum than was due to the creditor of his ward, and did not give himself credit when he brought an action on guardianship; I ask whether he would have a right of action for recovery against the creditor? The answer was that he would. 2Titius, who had many creditors, among whom was Seius, having privately transferred his property to Mævius by a sale, with the understanding that the latter would satisfy his creditors, Mævius paid to Seius, as if it was owing to him, money which had already been paid by Titius; and the question arose whether, when receipts were afterwards found in the hands of Titius having reference to debts which had been partly paid, who had a right of action for the recovery of the money which had been paid without being due, Titius the debtor, or Mævius who had been appointed agent in his own behalf? The answer was that, in accordance with what had been stated, the party who paid last had the right of action. 3The same individual asked whether the agreement which it was customary to insert in the settlement of accounts, namely, that there should be no further controversy between the parties growing out of the said contract would bar the action for recovery. The answer was that nothing was stated which would render it a bar. 4Lucius Titius lent to Gaius Seius, who was under twenty-five years of age, a certain sum of money, and received from him a certain sum as interest. The heir of Gaius Seius, the minor, obtained from the Governor of the province an order for complete restitution against Publius Mævius to avoid paying the debt due to the estate; but no mention was made before the Governor of an action for the recovery of the interest on the principal which Seius, who was under twenty-five years of age, had paid, nor was any judgment rendered by him with reference to the same. I ask whether the heir of Gaius Seius, the said minor under twenty-five years of age, can bring an action for the recovery of the interest which the latter had paid to the creditor as long as he lived? The answer was that, according to the facts stated, an action would not lie for the recovery of what the deceased had paid as interest. I ask also, since you think that an action cannot be brought for recovery, whether the heir can retain the interest out of some other debt. The answer was “No, not even that.”

Scævola, Digest, Book V. Lucius Titius died while debtor to the Seii, and they persuaded Publius Mævius that the estate belonged to him, and caused him to write a letter to them in which he stated that he was their debtor in such a way as to admit that he was the heir of his paternal uncle; and in this letter he added that the amount due had been entered in his accounts. The question arose whether since nothing had come into the hands of Publius Mævius out of the estate of Lucius Titius, whether he could be sued for money promised in the letter aforesaid, and whether he could make use of an exception on the ground of fraud? The answer was that no civil action would lie on that ground, but that an action to collect money promised would not lie either, according to the facts stated. The inquiry was also made whether suit could be brought for the recovery of the interest which had been paid on the ground above-mentioned? The answer was that, in accordance with the facts stated, it could be.

Scævola, Digest, Book V. A party encumbered a vacant tract of land as security to a creditor, and delivered to him an instrument of purchase. When he desired to build on said land, a controversy arose with a neighbor with reference to the width of the tract, and, as he could not otherwise prove it, he requested the creditor to produce the title-deed which had been delivered by him, and, as he did not do so, he erected a smaller building, and in this way suffered damage. The question arose whether, if the creditor demands the money or brings an action for the recovery of the pledge, and an exception based on fraud is filed, the judge ought to take this damage into consideration? The answer was that if the creditor did not intend to impose upon the debtor by depriving him of the production of the instrument, the debtor could bring an action on pledge when the money was paid; but that if this was done intentionally, an action would lie against the creditor for the amount of his interest at that time, and before payment of the money. 1Titius received a loan of money from Gaius Seius under a pledge of leathern sacks; and while Seius had these sacks in his granary, a centurion, who was sent from the office of the commissary, took the sacks away to be used in the public service; and they were afterwards recovered at the instance of Gaius Seius, the creditor. I ask whether Titius, the debtor, or Seius, the creditor, should be responsible for the wear and tear resulting from their use? The answer is that, according to the facts stated, the creditor was not liable for damage resulting from the wear and tear of the sacks.

Ad Dig. 14,3,20Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 17.Scævola, Digest, Book V. Lucius Titius had a freedman appointed to take charge of a money-broker’s table, which he was conducting; and the said freedman gave an obligation to Gaius Seius in these words: “Octavius Terminalis transacting the business of Octavius Felix to Domitius Felis, Greeting. You have a thousand denarii in the bank of my patron, which I shall be bound to pay you the day before the Kalends of May.” The question arose whether Lucius Titius having died without an heir, and his property having been sold, Terminalis could lawfully be sued on account of this letter? The answer was that he was not legally bound by these words, nor was there any ground of equity on which he could be sued; as he wrote this in the performance of his duty as a business agent, for the purpose of maintaining the credit of the bank.

Scævola, Digest, Book V. A party left to one of his heirs certain lands as they were equipped, together with slaves and other property, and whatever was there. These slaves were indebted to the master with reference to their monthly accounts, as well as for other reasons. The question arose whether the action on the peculium would lie in favor of the other heirs against him for the money owed by them? The answer was that it would not lie.

The Same, Digest, Book V. A man married a girl under paternal control, the father having promised a dowry, and it was agreed between all the parties that either the father, or she herself, should meet the expenses of her support. The husband lent her money, as he very properly thought that the father would give her an allowance to the amount that he had proposed to give his daughter. She used this money for necessary purposes for herself and for the slaves which she had with her, and the management of his domestic affairs having been committed to her, she used a certain amount of the money of her husband for the same purpose. Then, before the father had paid the allowance, the daughter died, the father refused to pay the expenses, and the husband retained the property of his wife. I ask whether an action for money employed for his benefit will lie against the father? The answer was that if what was lent was expended for articles without which she could not maintain herself, or support the slaves of her father, an equitable action for property employed for another’s benefit should be granted.

The Same, Digest, Book V. Lucius Titius appointed his mother and his uncle, who were at the same time his creditors, his heirs, and charged them to transfer to Septitius any of his estate which might remain at the time of their death. The said heirs consumed a considerable part of the estate of the testator, and left several representatives who knew that Septitius had possession of many effects left from the estate of Lucius Titius. The question arose whether the heirs of the mother and the uncle could recover from Septitius anything which Lucius Titius owed them. The answer was that they could not do so. Claudius: The reason for this is that the obligations of the estate, having been merged, were extinguished; but that there could be a recovery on the ground of a trust, for those persons were destitute of justice who were alleged to have consumed much of the property belonging to the estate.

Scævola, Digest, Book V. A father died intestate and left his daughter his heir. Her mother transacted her business, and caused her property to be sold by bankers, and all this was entered upon their accounts. The bankers paid over all the proceeds of the sale, and, after this, for about nine years, her mother attended to whatever was to be done in the name of her minor daughter, and finally, gave her in marriage, and delivered her property to her. The question arose whether the girl was entitled to any action against the bankers, when not she, but her mother, stipulated for the price of the property given to them to be sold. The answer was that if any doubt existed whether the bankers were released by law, after having paid over the money, it should be held that they were freed from liability. Claudius: For the following question with reference to authority to act remains, that is, whether the price of the property which the bankers knew to belong to the minor appeared to have been paid in good faith to the mother, who did not have the right of administration. Hence, if they were aware of this, they would not be released from liability, that is to say, provided the mother should prove to be insolvent.