THE DIGEST OR PANDECTS. BOOK XIII.

TITLE I. CONCERNING THE ACTION FOR THE RECOVERY OF STOLEN PROPERTY.

1. Ulpianus, On Sabinus, Book XVIII.

Where property is stolen, suit for its recovery can be brought by the owner alone.

2. Pomponius, On Sabinus, Book XVI.

Both insane persons and infants are liable to an action based on theft where they have become necessary heirs, although suit cannot be brought against them personally.

3. Paulus, On Sabinus, Book IX.

Where a slave is sued in an action based on theft, it is certain that damages can be claimed to the amount of the interest of the plaintiff; as, for instance, where he was appointed heir, and his master may be in danger of losing the estate; and Julianus is of this opinion. Moreover, if the action is brought for a slave who is dead, the plaintiff will obtain the value of the estate.

4. Ulpianus, On Sabinus, Book XLI.

Where a slave or a son under paternal control commits a theft, an action can be brought against the owner of the slave for whatever came into his hands; and with respect to the remainder, the owner can surrender the slave by way of reparation.

5. Paulus, On Sabinus, Book IX.

An action arising from theft can be brought against a son under paternal control, for no one is ever liable to an action of this kind but the party who committed the theft or his heir.

6. Ulpianus, On the Edict, Book XXXVIII.

Hence, even where a theft is committed with the assistance and advice of another party, the latter will not be liable to this action, although he will be to an action for theft.

7. The Same, On Sabinus, Book XLII.

Where a party has made good the loss as a thief, it is perfectly certain that this is no bar to an action for recovery of the property; for by payment of the loss the right of action for theft is extinguished, but not the right of action for recovery of the stolen property.

(1) The action for theft is brought for the lawful penalty, but the action for recovery for the property itself; and the result is that neither the right of action for theft is lost by the one for recovery nor the action for recovery by that of theft. Therefore, a party who is the victim of a theft has a right of action for theft, a right of action for damages, and a right of action for recovery, and he is also entitled to an action for production. The action for the recovery of stolen property, because it involves proceedings to obtain the property itself, renders the heir of the thief also liable, and not only while the slave who was stolen is living, but also after his death. Where, however, the slave who was stolen lost his life while in possession of the heir of the thief — or even when he was not in his possession — after the death of the thief; it must be said that the action will continue to lie against the heir.

What we have stated with reference to the heir is equally applicable to all other successors.

8. The Same, On the Edict, Book XXVII.

In the case of stolen property suit for recovery can be brought for the articles themselves; but can this be done only so long as they still exist, or where they have ceased to be in existence? If, indeed, the thief has surrendered them, then there is no doubt that suit for their recovery cannot be brought; but if he did not surrender them, a right of action for the recovery of their value still remains, for the articles themselves cannot be delivered.

(1) Where an action is brought for the recovery of stolen property, the question arises at what time the appraisement of its value should be made? It is, however, established that the time must be considered when the property was of the greatest value it ever possessed, and especially since a thief will not be released by giving up property which is deteriorated; for a thief is considered to be always in default.

(2) Finally, it must be said that the profits are also included in this action.

9. The Same, On the Edict, Book XXX.

In a suit for the recovery of stolen property, the party is liable not only for the amount which came into his hands, but also for all of it, if he is the sole heir; but where he is heir to a share, he is liable to the same proportion of such a share in the stolen property as he is entitled to in the estate.

10. The Same, On the Edict, Book XXXVIII.

A thief can be sued for the recovery of stolen property whether he is a manifest thief or a non-manifest one. A manifest thief, however, will only be liable to an action for recovery where the possession of the property stolen has not been obtained by the owner; for no one is liable to a suit for recovery after the owner has taken possession of the property. Therefore, Julianus, in order that he may proceed with the discussion of the action for recovery in the case of a manifest thief, supposes that the thief, after being caught, has either killed, broken to pieces, or spilled what he had wrongfully appropriated.

(1) A person also who is liable for robbery with violence, (so Julianus states in the Twenty-second Book of the Digest), can be sued in an action for the recovery of the property.

(2) There is ground for an action for recovery only so long as the ownership of the property has not been lost to the proprietor by his own act; and therefore, if he transfers it to another, he cannot bring suit for its recovery.

(3) Wherefore Celsus states in the Twelfth Book of the Digest, that if the owner bequeaths the stolen property to the thief absolutely, the heir cannot bring an action against him to recover it; and where the bequest was not made to the thief himself but to another, the same rule is applicable, and an action for recovery will not lie, as the ownership is lost by the act of the testator; that is to say of the owner.

11. Paulus, On the Edict, Book XXXIX.

Nor can the legatee himself bring a personal action, for this is only available by the person whose property has been stolen or by his heir; but the legatee has a right to recover property which was bequeathed to him by means of another action.¹

¹ Vindicatio. This was an action in rem, and differed from the condictio in that it was based on ownership, and was brought for the recovery of specific property; while the condictio was an action in personam, and was available where a contract had been entered into and violated, or a tort committed, and damages were asked for. The aim of the vindicatio being the acquisition of something corporeal and definite, the number of persons concerned was not considered; the application of the condictio was, on the other hand, restricted to a single individual. Ownership being essential to establish the right to bring the vindicatio, the plaintiff was required to satisfactorily prove his title at the initial stage of the proceedings. The scope of the condictio was greatly extended in practice under the Empire. — ED.

12. Ulpianus, On the Edict, Book XXXVIII.

Consequently Marcellus very properly states in the Seventh Book, that if the property stolen still remains yours you can bring a personal action to recover it; but if you lose the ownership in some other way than by your own act, you can likewise bring suit to recover it.

(1) Therefore he very aptly says that where the property is held in common, it makes a difference whether you instituted proceedings against your co-owner by an action for partition, or he brought suit against you, and if you instituted proceedings for this purpose you will lose the right to bring a personal action for recovery, but if he did so, he will still retain that right.

(2) Neratius, in the Books of Parchments, states that it is held by Aristo that he to whom property had been pledged can, if it should be stolen, bring an action for an uncertain amount of damages.

13. Paulus, On the Edict, Book XXXIX.

Where cups have been made out of stolen silver, Fulcinius says that a personal action can be brought, and therefore in the proceedings for their recovery an estimate should be made of the value of any engraving which was done at the expense of the thief; just as where a slave-child is stolen and grows up, an estimate is made of his value when grown, even though he was reared under the care and at the expense of the thief.

14. Julianus, Digest, Book XXII.

Where a stolen slave has been bequeathed under some condition, then, as long as the condition is pending, the heir will have a right of • action for his recovery, but if the condition should be fulfilled after issue has been joined, the case must be dismissed; just as if the same slave had been directed by the testator to be free under a certain condition, and the condition was complied with after issue had been joined; for the plaintiff is no longer interested in securing the slave, and the property has ceased to be his without any fraudulent act on the part of the thief. Where judgment is rendered while the condition was pending, the judge must make an estimate of the sum the slave would have been worth if a purchaser had been found.

(1) In this action, however, the plaintiff is not obliged to furnish security to the party who is sued.

(2) Where an ox is stolen and killed, a personal action for recovery can be brought by the owner for the ox, the hide, and the flesh; that is, where the hide and the flesh have been handled in stealing, and suit to recover the horns may also be brought. Where, however, the owner obtains the value of the ox by a personal action for recovery, and afterwards brings a similar suit for any of the things above mentioned, he can undoubtedly be barred by an exception. On the other hand, if he should bring suit for the hide and recover its value, and then sue to recover the ox, and the thief tenders the value of the ox after deducting the value of the hide, the plaintiff will be barred by an exception on the ground of fraudulent intent.

(3) The same rule applies where grapes are stolen, for the must and the grape-stones can be recovered by a personal action.

15. Celsus, Digest, Book XII.

Where a slave steals from another party, he will be liable for theft in his own name if he becomes free; but a personal action for recovery cannot be brought against him unless he handled the property after he was free.¹

¹ The handling (contrectatio) of the stolen property was indispensable in order to constitute the offence of theft at Civil Law. — ED.

16. Pomponius, On Quintus Mucius, Book XXXVIII.

Where anyone commits a theft by using something which was lent to him or deposited with him, he can be compelled to account for doing so by a personal action for recovery on the ground of theft also, and this differs from the action to recover property loaned, because, even if the property had been destroyed without his malice or negligence, he will, nevertheless, be liable to a personal action for recovery; while in the action to recover property loaned he will not readily be held liable, except where he was guilty of negligence, and in an action on deposit he would not be liable at all unless malicious intent was established.

17. Papinianus, Questions, Book X.

It makes little difference, so far as the loss of the right of action to recover is concerned, whether, after a slave had been stolen, an offer is made to return him, or whether the case is placed under a different class or a different species of obligation; for it does not matter to me whether the slave is present or not, as the default which arose from the theft is disposed of by a kind of assignment of the claim.

18. Scævola, Questions, Book IV.

Where a party knowingly receives money which is not due, since this is the same as a theft, it should be considered whether, when an agent makes payment with his own money, he does not commit a theft upon himself? Pomponius says in the Eighth Book of the Epistles, that the agent has a right of action for recovery based on theft; and that I, also, have such a right, if I ratify the payment of money which is not due; but where one action is brought, the right to bring the other is extinguished.

19. Paulus, On Neratius, Book III.

Julianus says, with reference to a daughter who removed property belonging to her husband, that a personal action for recovery should be granted against her father to the extent of her peculium.

20. Tryphoninus, Disputations, Book XV.

Suppose a thief is prepared to defend a personal action brought against him for the recovery of stolen property; as long as the property exists I have a right to bring the action, but where it is afterwards destroyed, the ancient authorities held that the right still remained, because it was their opinion that where a man had, in the beginning, handled the property without the consent of the owner, he is always in default with reference to returning it, because he ought not to have removed it.

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TITLE II. CONCERNING SUITS FOR RECOVERY UNDER THE LAW.

1. Paulus, On Plautius, Book II.

Where an obligation is introduced by a new law, and it is not provided in the said law by what kind of an action we are to proceed, this must be done in accordance with this law.

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TITLE III. CONCERNING THE TRITICARIAN ACTION.

1. Ulpianus, On the Edict, Book XXVII.

He who brings suit for a certain sum of money must make use of the action to which the clause, "Where a certain demand is made," refers: but a party who sues for any other kind of property must do so by means of a Triticarian Action. And, generally speaking the property to be sued for in this action is anything except a definite sum of money, whether it is established by weight or by measure, and whether it is movable or a part of the soil. Therefore, we may also bring suit for a tract of land, whether it is under perpetual lease, or whether anyone has stipulated for a right, as, for instance, an usufruct, or a servitude attaching to either kind of estate.

(1) No one can, by means of this action, bring suit for his own property, except where he is permitted to do so in certain cases; as, for instance, in an action based on theft, or where movable property has been taken away by force.

2. The Same, On Sabinus, Book XVIII.

Sabinus states that where anyone has forcibly ejected another from his land, he can be sued for its recovery; and Celsus also holds the same opinion, but this rule applies only where the party who was ejected and brings the suit is the owner; but if he is not, Celsus states he can still bring an action for possession.

3. The Same, On the Edict, Book XXVII.

If it is asked, in this action, to what time the appraisement of the property for which suit is brought should date back; the better opinion is, as Servius says, that the time when judgment was rendered against the defendant ought to be considered. For, if the property has ceased to exist at the time of death, according to Celsus, we must grant some latitude, and not make the estimate from the very last moment of life, lest it be reduced to a very small amount; for instance, where a slave is mortally wounded. In either case, however, if the property is deteriorated after default, Marcellus states in the Twentieth Book that an estimate must be made of the amount to which the property is deteriorated, hence, if the party delivered a slave who, after default, had lost his eye, he is not released; and therefore the estimate must be reckoned from the date of the default.

4. Gaius, On the Provincial Edict, Book IX.

Where an action is brought for some kind of merchandise which should have been delivered on a certain day, for instance, wine, oil, or grain; Cassius says that the damages should be appraised in accordance with what the property would have been worth on the day when it should have been delivered, or if the day was not agreed upon, then, according to its value when issue was joined.

The same rule applies with reference to place, so that the valuation should first be made with reference to the place where the property should have been delivered, but where there was nothing agreed upon with reference to place, then the place where the action was brought should be taken into consideration. This law also applies to other matters.

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TITLE IV. CONCERNING PROPERTY WHICH MUST BE DELIVERED AT A CERTAIN PLACE.

1. Gaius, On the Provincial Edict, Book IX.

It was formerly held that a party did not have the power to bring suit in any other place than that where he had stipulated that the property which was the subject of the action should have been delivered; but, because this would be unjust, if the promisor never came to the place where, according to what he promised the property was to be delivered, (either because he failed to do so purposely, or for the reason that he was unavoidably detained elsewhere) and hence the stipulator could not obtain what belonged to him; it, therefore, seemed proper that an equitable action should be provided for this purpose.

2. Ulpianus, On the Edict, Book XXVII.

An arbitrarian action may be for the benefit of either the plaintiff or the defendant; and where it benefits the defendant, judgment is rendered for a smaller sum of money than what is claimed, and where it benefits the plaintiff, it is rendered for a larger sum.

(1) This action may arise out of a stipulation where I agree with you to pay me ten aurei at Ephesus.

(2) Where anyone brings suit under a stipulation that ten aurei should be paid to him at Ephesus, or a slave delivered to him at Capua, he should not, when he institutes proceedings, omit one of the two places, lest he may deprive the defendant of the advantage of locality.

(3) Scævola says in the Fifteenth Book of Questions that what tacitly exists in a stipulation is, indeed, not always under the control of the defendant and he can decide according to his judgment what he ought to do, but that it is not in his power to decide whether or not he is under an obligation. Therefore, where a party promises to deliver Stichus or Pamphilus he can choose which one he will give, so long as both are living; but where one of them dies, his right of choice is terminated, otherwise, it would be in his power to determine whether or not he was under any obligation, if he was not willing to deliver the living slave whom alone he was required to deliver. Wherefore, according to the facts stated, if a party promised to deliver something at either Ephesus or Capua, an action could not be brought against him if he had the choice of the place where he should be sued, for he would always select the other place, and the result would be that he would have the power to decide whether he was under any obligation whatever. Hence Scævola thinks that an action can be brought against him in either place, and without any addition of locality; and therefore we give the choice of the place of the action to the plaintiff. Scævola states in general terms that the plaintiff is entitled to choose where he will sue, and the defendant where he will pay, of course before suit is brought. Therefore he says there is an alternative of claim as well as an alternative of place, which necessarily gives the plaintiff the choice as to the claim on account of his right to select the place; otherwise, if you wish to reserve the option for the defendant you will deprive the plaintiff of the power to bring an action.

(4) Where anyone stipulates as follows, "At Ephesus and Capua," Scævola says he can bring suit for part of the claim at Ephesus and part at Capua.

(5) Where anyone stipulates for a house to be built, and does not mention the place, the stipulation is void.

(6) He who stipulates for ten aurei to be paid at Ephesus, and brings suit before the day on which he can arrive at Ephesus, proceeds improperly before the time; for it is the opinion of Julianus that a certain date is tacitly understood in a stipulation of this kind; hence I think that the opinion of Julianus is correct, and that where a party stipulates at Rome that delivery is to be made at Carthage on the same day, the stipulation is void.

(7) Moreover, Julianus discusses the following question, namely: where a party stipulated that payment should be made at Ephesus to either himself or to Titius, and if Titius should be paid elsewhere, whether he could, nevertheless, claim that payment should be made to himself; and Julianus says that there is no release from liability for the debt, and that therefore an action can be brought for the amount of the party's interest.

Marcellus, however, discusses the question separately, and states in a note on Julianus that it may be held that there is a discharge of the debt even if payment is made to me elsewhere, although I cannot be compelled to accept it if I am unwilling; and that it is evident, if there is no discharge, that it must be held that the right remains to sue for the entire amount; just as if some one built a house in another place than that where he promised to build it, he will not be released from any portion of his obligation. It seems to me, however, that the payment of a sum of money is different from the construction of a house, and therefore that suit can only be brought for the amount of the party's interest.¹

¹ That is to say, his interest in having the contract properly carried out; in other words, the amount of damages sustained by noncompliance with its terms. — ED.

(8) We must now treat of the duty of the judge who presides in this action; that is whether he should adhere strictly to the amount involved in the contract, or whether he should increase or diminish it, so that if it was to the interest of the defendant that payment should be made at Ephesus rather than at the place where suit was brought, this may be taken into account. Julianus, following the opinion of Labeo, also considered the position of the plaintiff, who sometimes might be interested in recovering payment at Ephesus; and therefore the benefit to the plaintiff must also be taken into consideration. For suppose he lent money on a maritime contract which was to be paid at Ephesus, where he himself owed money under a penalty or on a pledge, and the pledge was sold or the penalty incurred on account of your default? Or suppose he was indebted to the Treasury, and the property of the stipulator was sold for an extremely low price? The amount of the interest which he had in the matter must be considered in the arbitrarian action, and this indeed can be done so as to include a higher rate of interest than is legal.

What would be the case if he was accustomed to purchase merchandise; ought not an account to be taken of the profit and not merely of the loss which he suffered? I think that an account should be taken of the profit which he failed to obtain.

3. Gaius, On the Provincial Edict, Book IX.

This action is submitted to the decision of the judge for the reason that the prices of articles vary in different cities and provinces, and especially those of wine, oil, and grain; and so far as money is concerned, although it might seem to have one and the same power everywhere, still, in certain localities it is more easily obtained and at a lower rate of interest than in others, where it is harder to get and the rate of interest is heavy.

4. Ulpianus, On the Edict, Book XXVII.

Where suit is brought at Ephesus, only the actual amount can be demanded, and nothing more, unless the plaintiff had stipulated for it, or else the advantage of time is involved.

(1) Sometimes the judge who has jurisdiction of this action, as it is arbitrarian, should discharge the defendant, after having required him to provide security for payment of the money where it was promised. For, suppose it is stated that the money was tendered to the plaintiff, or deposited, or could readily have been paid there; should not the judge sometimes discharge the defendant? In short, the judge appointed to hear the action ought always to have equity before his eyes.

5. Paulus, On the Edict, Book XXVIII.

Where an heir is directed by the testator to pay something at a certain place an arbitrarian action will lie.

6. Pomponius, On Sabinus, Book XXII.

Or where money was lent with the understanding that it should be repaid at a certain place.

7. Paulus, On the Edict, Book XXVIII.

In bona-fide cases, even if it was agreed upon in the contract that something should be delivered at a certain place, an action can be brought on purchase, on sale, or on deposit, but an arbitrarian action will not lie.

(1) Where, however, a party stipulated that he would deliver the property at a certain place, this action must be employed.

8. Africanus, Questions, Book III.

Having stipulated that a hundred aurei should be paid to you at Capua, you received a surety; proceedings to recover the money should be instituted against the surety just as they should be against the promisor himself; that is to say, if an action is brought at any other place than Capua it ought to be an arbitrarian one, and the damages must be assessed at an amount equal to the interest that either the plaintiff or the defendant would have in the sum of money being paid at Capua rather than elsewhere. Nor should the obligation of the surety be increased because it was the fault of the principal debtor that the entire sum of a hundred aurei was not paid at Capua; for this case cannot properly be compared with an obligation for the payment of interest, for there there are two stipulations, but in this instance there is only one for money borrowed, and, with reference to the execution of the same, the amount of damages must be left to the discretion of the Court. I think that a very clear proof of the difference between these two cases is established by the fact that, if a portion of the money is paid after the party is in default and suit is brought for the remainder, the duty of the judge is to estimate the interest which the plaintiff has in payment to be made at Capua of only the amount involved in the action.

9. Ulpianus, On Sabinus, Book XLVII.

Where a person promises to pay at a certain place, he can do so at no other place than the one for which he promised, if the stipulator is unwilling.

10. Paulus, Questions, Book IV.

If, after default of payment at Capua, the creditor should wish to bring an arbitrarian action, and should first take a surety on account of said action, let us consider whether any amount that may be added by the decision of the court to the original debt will not be due and be included in the obligation, so that now if the principal should be paid, or suit is brought at Capua, the jurisdiction of the court is terminated; unless someone should say, for example, that the judge ought to render a decision for one hundred and twenty aurei, and a hundred of the entire amount is paid, this should be considered to be paid on the total, that is out of the principal and the penalty; so that the plaintiff would have a right of action for the amount still remaining due on the original debt, as well as the penalty which has accrued for default of payment of that amount. I do not think however that this can be accepted as sound; and the more so because the creditor is held to have remitted the penalty when he received the money.

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TITLE V. CONCERNING THE ACTION FOR MONEY PROMISED.

1. Ulpianus, On the Edict, Book XXVII.

In this Edict the Prætor favors natural equity, as he protects promises made by consent, since a breach of good faith is a serious matter.

(1) The Prætor says, "Where a person makes a promise for a sum of money which is due." The term "person" must be understood to mean anyone at all, for women also are liable for promises to pay, if they do not act as sureties.

(2) Although nothing is stated in this Edict with reference to a minor, still, he is not liable for a promise without the authority of his guardian.

(3) The question arises whether, if a son under paternal control makes such a promise, he will be liable? I think that it is true that he will be liable, and that his father also will be liable to the extent of his son's peculium.

(4) Where anyone makes a stipulation which is void, but intended to make a stipulation and not a promise to pay; it must be held that the creditor cannot institute proceedings on account of a promise made, because the debtor did not act with the intention of making a promise, but of entering into a stipulation.

(5) The question has been asked whether a promise can be made for something else than what is due? But since it. has already been established that one thing can be delivered instead of another, there is nothing which prevents a promise being made for something else than what was due; for example, where a party who owes a hundred aurei promises grain of that value, I think that the promise is valid.

(6) The payment of a debt can be promised, no matter what the consideration may be; that is to say, no matter what the contract is, whether it is for a certain or an uncertain amount, and whether the party owes the purchase-money due on a sale, or money owing on account of a dowry, or on account of guardianship, or by reason of any other contract whatsoever.

(7) Even a debt due by natural law is sufficient.

(8) A person who is liable to a prætorian action, but not under the Civil Law, is liable for a promise; for it is held that what is due by prætorian law is a debt. Therefore, if a father or the owner of a slave makes a promise for which an action De peculio can be brought against him, he will be liable for the amount which there was in the peculium at the time when the promise was made; but if he promised more than that in his own name, he will not be bound for the excess.

2. Julianus, Digest, Book XI.

But if he promises in behalf of his son that he will pay ten aurei, even though only five should be in the peculium, he will be liable for ten on the promise.

3. Ulpianus, On the Edict, Book XXVII.

Where a husband promised a larger dowry than he is able to give, as he contracts a debt he is liable for all that he promises; but judgment shall be rendered in favor of the wife for the amount that he is able to pay.

(1) If anyone promises a sum of money which he owes by the Civil Law but does not owe by prætorian law, that is, because he is entitled to an exception; the question arises whether he is liable on account of the promise? It is true (as Pomponius states) that he is not liable, because the money which was promised is not due under prætorian law.

(2) Where anyone who owes money under both the Civil and prætorian law is bound by an obligation which is to become operative at some future time, will he be liable under a promise? Labeo says that he will be, and Pedius approves of his opinion. Labeo adds that this kind of promise was introduced mainly on account of those pecuniary obligations for which actions could not yet be brought, and I am not unwilling to adopt this opinion; for the principle is advantageous that a party who is bound from a certain time, by promising to make payment at that time will be liable.

4. Paulus, On the Edict, Book XXIX.

But if he promises to pay before that time, he will also be liable.

5. Ulpianus, On the Edict, Book XXVII.

Where anyone promises to pay at Ephesus, and also promises to pay at some other place, it is settled that he will be liable.

(1) Julianus thinks that an envoy who promised to repay at Rome something which he had received in a province can be sued there, and this opinion is correct; but if he promised to make payment at Rome, not while he was there, but while he was still in the province, an action on the promise will be refused.

(2) What we have stated, namely, that where a debt is owing a promise to pay it must have reference to the very property itself, does not by any means require that the party to whom the promise was made should be already a creditor; for if you promise to pay what I owe, you will be liable, and if a promise is made to me to pay what is due to you, an obligation arises.

(3) Julianus also says in the Eleventh Book: "Titius wrote me a letter as follows, 'I have stated in writing under the direction of Seius, that, if it should be proved that he owes you anything, I will give you security for the debt, and will pay it without any dispute.'" Titius, then, is liable for the payment of money promised.

(4) But where anyone promises that another will make payment, and not that he will do so for another, he is not liable; and this Pomponius states in the Eighth Book.

(5) Moreover, if you promise that you will pay me, you will be liable; but if you promise me that you will pay Sempronius, you will not be liable.

(6) Julianus says in the Eleventh Book of the Digest that a promise can be made to an agent; and this Pomponius holds must be understood to signify that you may promise to pay the agent, but not the principal.

(7) Moreover, a promise can be made to the guardian of a ward and to the representative of a municipality, as well as to the curator of an insane person.

(8) These persons will also be liable on any promises which they themselves make.

(9) Where a promise is made to the representative of a municipality, or to the guardian of a ward, or to the curator of an insane person or of a minor, in such a way that payment shall be made to the municipality, or the ward, or the insane person, or the minor; I am of the opinion that an equitable action should be granted to the municipality, or the ward, or the insane person, or the minor aforesaid.

(10) It is also established that a promise can be made even to a slave, and if this is done to the effect that payment shall be made either to the owner of the slave or to the slave himself, the slave will acquire a certain obligation for his master.

6. Paulus, Sentences, Book II.

The same rule applies where a promise is made to some one who is serving me as a slave in good faith.

7. Ulpianus, On the Edict, Book XXVII.

Even where a promise is made to a son under parental control it is valid.

(1) If I stipulate for payment to be made to me or to Titius, Julianus says that a promise cannot be made to Titius on his own account, because he has no right of action to recover the money, although payment can be made to him.

8. Paulus, On the Edict, Book XXIX.

If, however, you promise to pay either me or Titius, I have a right to bring an action; although, after you have made the promise that you will pay me alone you pay Titius, you will, nevertheless, be liable to me.

9. Papinianus, Questions, Book VIII.

Titius, however, will be liable to a personal action for the recovery of money not due, in order that what has been wrongfully paid to him may be refunded to the party who paid it.

10. Paulus, On the Edict, Book XXIX.

The same rule applies where there are two creditors under a stipulation, and a promise to pay is made to one of them, and payment is subsequently made to the other; because the party to whom the promise is made should be considered to be in the position of one who has been already paid.

11. Ulpianus, On the Edict, Book XXVII.

Therefore, a promise will also be valid so long as what is promised is actually due, even though, in the meantime, no one should appear who owes anything; as, for example, where, before the estate of the debtor is entered pon, or while he is held captive by the enemy, some one promises that he will make payment; for Pomponius states that a promise of this kind is valid since the money which is promised is in fact due.

(1) Where a man owing a hundred aurei promises to pay two hundred, he will only be liable for a hundred, because that is the amount of the money due; and therefore if anyone makes a promise to pay the principal together with the interest which is not due, he will be liable only for the principal.

12. Paulus, On the Edict, Book XIII.

Moreover, if ten aurei are due, and the party promises to pay ten and deliver Stichus, it can be said that he is only liable for the ten aurei.

13. The Same, On the Edict, Book XXIX.

Where anyone who owes twenty aurei promises to pay ten, he will be liable.

14. Ulpianus, On the Edict, Book XXVII.

Where a man promises to pay he will be liable, whether he specifies a certain amount or not.

(1) If anyone promises that he will give a pledge, then, if necessity for a pledge arises, even a promise of this kind must be admitted.

(2) Where anyone promises that some certain person will act as his surety, Pomponius states that he will, nevertheless, be liable; but what if the party refuses to act as surety? I think that he who made the promise will be liable, unless there was some other understanding, but what if the surety should die beforehand? If there should be a default, it is only just that the party who made the promise should be liable either to the amount of the interest of the creditor, or to offer as surety some other person not less solvent; but where there was no default, I rather think that he will not be liable.

(3) We can make a promise for payment whether we are present or absent; just as we can make an agreement by a messenger or in our own proper persons, and in any terms that we may choose.

15. Paulus, On the Edict, Book XXIX.

And although the party through whom I make you a promise to pay may be free, this will be no obstacle, as we can acquire property through a person who is free, because in this instance the party is considered only to offer his services.

16. Ulpianus, On the Edict, Book XXVII.

Where two of us make a promise for payment as two principal debtors, an action can be brought for the entire amount against either of us.

(1) Anyone can make a promise to pay at a certain place or time, and suit may be brought not only at the place mentioned in the promise but anywhere, as in the case of an arbitrarian action.

(2) The Prætor says: "If it should be apparent that the party who made the promise neither paid the debt nor did what he should have done, and the plaintiff was not to blame because the act which was promised was not performed."

(3) Therefore, if it was not the plaintiff's fault, a right of action will exist, even though he was prevented by the nature of the circumstances; but the better opinion is that the defendant is entitled to relief.

(4) There is some occasion for doubt with reference to the words of the Prætor, "The debtor did not do what he should have done," whether his words relate to the time mentioned in the promise, or whether we should refer them to the date when issue was joined; and I think that they refer to the time mentioned in the promise.

17. Paulus, On the Edict, Book XXIX.

But where he offers to make payment on another day, and the plaintiff is unwilling to receive it, although he has no good reason for refusing, it is but just that relief should be granted the defendant, either by an exception or by a proper interpretation, so that, up to the time of trial, the act of the plaintiff will injure himself; and that the construction of the words, "Did not do," may be that he did not perform what he promised up to the date which he mentioned, or at any time subsequently.

18. Ulpianus, On the Edict, Book XXVII.

Again, the words of the prætor, "The plaintiff was not to blame," also raise some doubt. Pomponius is uncertain, where the plaintiff was not responsible for the promise not being fulfilled at the time indicated, but was, either before or afterwards. I am of the opinion that these words also should be deemed to refer to the time mentioned in the promise. Thus, if the plaintiff having been prevented by violence, by illness, or by bad weather, does not appear; Pomponius states that he himself must suffer the consequences.

(1) With reference to what is added, namely: "And that the money for which payment was promised was actually due," this requires a more complete explanation; for, in the first place, it means that if a debt was due at the time when the promise was made, but not now, the promise will, nevertheless, hold, because the right of action is retroactive. Hence as Celsus and Julianus state, where a party is bound by an obligation on which suit can be brought against him only during a certain time and he promises payment, he should be held liable; even though the time during which suit could be brought has elapsed after the promise was made. Therefore, even if he promises that he will pay after the time of his obligation has expired, Julianus still thinks that the same rule will apply; since at the time when he made the promise he was under an obligation, although he referred it to a date when he would not have been liable.

(2) It is proper here to consider whether this action includes a penalty or is merely for the collection of the claim, and the better opinion is, as Marcellus himself thinks, that it is brought only for the collection of the claim.

(3) It was formerly a matter of doubt whether a party who brought this suit lost his right of action for the principal claim; and the safest opinion is that, when payment is made in a case of this kind, there will be a release from liability, rather than when issue is joined, since payment will benefit both obligations.

19. Paulus, On the Edict, Book XXIX.

Where something is due under a condition, and the promise is made which renders it payable either absolutely or at a certain time, it will remain in abeyance under the same condition; so that if the condition is complied with the party will be liable, but if it is not, both rights of action will be extinguished.

(1) But where anyone owes a debt absolutely, and makes a promise for payment under a condition, Pomponius says that an equitable action can be brought against him.

(2) Where a father or the owner of a slave promises to make payment to the amount of what is contained in the peculium, the peculium will not be diminished for the reason that he obligated himself in this way; and even though the peculium may have been lost, he will, nevertheless, not be released from liability:

20. The Same, On Plautius, Book IV.

For neither the increase nor the decrease of the peculium will affect the right of action on the promise.

21. The Same, On the Edict, Book XXIX.

Where a party promises to deliver Stichus, and Stichus dies after he is in default, if he promises to pay his value, he will be liable.

(1) If you make a promise without mentioning the time of payment, it may be said that you will not be liable, although the terms of the Edict are susceptible of a broad interpretation; otherwise, proceedings may be instituted without delay, unless you have prepared to make payment just as soon as you promised to do so, but a reasonable time should be granted, for instance, not less than ten days, before the claim can be collected.

(2) In this action, as in other bona fide actions, the same oath shall charge his obligation if he merely tenders security; but where he promises that he will give security and he offers a surety or a pledge, he will not be liable, because it makes no difference in what way he provides security.

22. The Same, Abridgments, Book VI.

If after a sum of money has been promised to you, you deliver the estate under the Trebellian Decree of the Senate; then, since you transferred to another the right to bring suit for the original debt, you will be refused an action for the money due to you under the promise.

The same rule applies where the possessor of an estate loses it to one who has a better title; but the action in this case should preferably be granted to the beneficiary of the trust or to the party who gained the suit.

23. Julianus, Digest, Book XI.

Where a promisor agrees to deliver a slave and the slave dies when the former was to blame for his not having been delivered; even though he promised to deliver a slave, he will still be liable for a promise for the payment of money, and hence he must pay the value of the slave.

24. Marcellus, Opinions.

Titius sent a letter to Seius in the following words: "There remain in my hands fifty aurei of your loan on account of a contract of my wards, which I shall be obliged to pay you in current money on the Ides of May, and if I do not pay the said sum on the above mentioned day I shall then owe you so much as interest." I ask whether Lucius Titius has, by this bond, taken the place of his wards as debtor? Marcellus answered that, if a stipulation had been entered into, he would have taken it. I also desire to know if he did not do this, whether he is liable on his promise to pay? Marcellus answers that he is liable for the principal; as this is the more liberal and advantageous interpretation.

25. Papinianus, Questions, Book VIII.

A certain person owed me either one of two things, and promised to deliver one of them; the question arose whether he could deliver the one which he did not promise? I answered that he should not be heard if he now desired to break faith with reference to what had been promised.

(1) Where an oath has been tendered to you, and you swear that something is due to you, when you already have a right of action on account of it, you can properly proceed on the ground of a promise to pay; but if I did not voluntarily tender the oath, but did so being compelled by the necessity of tendering it back to you, no distinction exists, even though the necessity of tendering it back arose on account of your willingness and my respect; for no one doubts that a party acts with greater moderation when he tenders an oath back, than he does when he himself makes it.

26. Scævola, Opinions, Book I.

A certain man wrote a letter to his creditor as follows: "The ten aurei which Lucius Titius received as a loan from your chest are in my possession, and at your disposal, with the exception of the amount of interest." The answer was that, according to the facts stated, the party was liable to an action based on money promised.

27. Ulpianus, On the Edict, Book XIV.

It makes but little difference whether anyone promises to pay in the presence or in the absence of the debtor. Pomponius goes still farther in the Thirty-fourth Book, and states that anyone can make a promise for payment even without the consent of the debtor, and, therefore, he considers the opinion of Labeo to be incorrect, who thinks that if, after a party has made a promise on account of someone else, the principal should notify him not to pay, he ought to be granted an exception in factum; and Pomponius is not unreasonable in this; for when the party who made the promise is once bound, the act of the debtor should not enable him to avoid liability.

28. Gaius, On the Provincial Edict, Book IV.

Where anyone has promised that he will make payment, in behalf of another, he in whose behalf he made this promise will still remain bound.

29. Paulus, On the Edict, Book XXIV.

A person who is liable to an action for either injury, theft, or robbery, will be liable under a promise to pay.

30. The Same, Sentences, Book II.

Where anyone promises to pay money to one of two persons, for instance, to you or to Titius; then, although in strict law he remains bound by the proper action for the money promised, even if he should pay Titius, he will still have the right to an exception.

31. 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.

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TITLE VI. CONCERNING THE ACTION ON LOAN FOR USE AND THE COUNTER ACTION.

1. Ulpianus, On the Edict, Book XXVIII.

The Prætor says, "Whatever anyone is said to have loaned, I will grant an action for the same."

(1) The interpretation of this Edict is not difficult; there is only one thing to be noted, and that is that the party who drew the Edict referred to a loan, while Pacuvius mentioned using something. Labeo says, however, that there is the same difference between a loan and something given to be used, as there is between genus and species; for. movable property may be loaned, but what belongs to land cannot be, although what belongs to the land may be given to be used. But it is also apparent that land may very properly be said to be lent, and Cassius holds the same opinion. Vivianus goes still further, and says that a lodging can be lent.

(2) Parties under the age of puberty are not liable to an action on a loan for use, since a loan of this kind cannot exist with reference to a ward without the authority of his guardian; and this principle is applicable to such an extent that even if, after he reaches puberty, the boy commits fraud or is guilty of negligence, he will not be liable to the action, because in the beginning the loan was inoperative.

2. Paulus, On the Edict, Book XXIX.

Nor should an action on a loan for use be granted against an insane person, but an action for production should be granted against both; so that, when the property is produced, a suit may be brought for its recovery.

3. Ulpianus, On the Edict, Book XXVIII.

It seems to me, however, that if a ward is pecuniarily benefited, an equitable action on the loan should be granted against him, according to a Rescript of the Divine Pius.

(1) If the article lent is returned, but is returned deteriorated, it will not be held to be returned at all because it has been deteriorated, unless the loss is made good; for an article is properly said not to be returned, if it is returned in a deteriorated condition.

(2) In this action, as in other bona fide actions, the same oath shall be taken with reference to the claim, and so far as the value of the property is concerned, the time must be considered when the case was decided; although, in strict law, the time when issue was joined is that which must be taken into consideration.

(3) The heir of the party who received the loan can be sued for the same share which he has in the estate, unless he should happen to have the power to return the entire property, and does not do so; for then judgment will be rendered against him for the whole amount, since this would be in accordance with the decision of a good judge.

(4) Where a loan is made to a son under paternal control or a slave, the action must only be brought for the peculium, but the creditor can have a direct action also against the son himself. Moreover, if the party made the loan to a female slave or to a daughter under paternal control, an action De peculio is the only one that could be brought.

(5) The father or the owner will not have judgment rendered against him solely on account of the wrongful act of either the son or the slave, as fraud only on the part of the father or owner himself will be considered; a distinction which is made by Julianus, with reference to the action on pledge, in the Eleventh Book.

(6) There can be no loan of an article which is consumed by use, unless the person borrowed it for the purpose of pomp or ostentation.

4. Gaius, On Verbal Obligations, Book I.

Loans of money are frequently made for the purpose of enabling them to take the place of payment.

5. Ulpianus, On the Edict, Book XXVIII.

Where an agreement is made that the article lent shall be returned at a certain place or time, it is the duty of the judge to take into consideration the place or time mentioned.

(1) Where anyone brings this action, and accepts an estimate of the damages which is offered, he makes the article loaned the property of the party who tenders the money.

(2) We must now examine what it is that is to be taken into consideration in an action on loan for use, whether fraud or negligence, or every kind of risk; and, indeed, in contracts we are sometimes guilty of fraud and sometimes of negligence; of fraud in the case of deposit, because, as no benefit will be derived by the party with whom the property is deposited, it is reasonable that only fraud should be considered, unless where compensation happens to be made, for then (as has been enacted), negligence is included; or where it was agreed upon in the beginning that the party with whom the article was deposited should be responsible for both negligence and accident. Where, however, the advantage of both parties was concerned in a case of sale, hire, dowry, pledge, or partnership, responsibility attaches for both fraud and negligence. With reference to a loan, the entire advantage which accrues is generally that of the party to whom the property is lent; and therefore the opinion of Quintus Mucius, who thought that the party must be liable for negligence, and must also use diligence, is the more correct one.

(3) And if the property had been appraised before it was delivered, the entire risk must be assumed by him who agreed to be responsible for the amount of the appraisement.

(4) But where deterioration occurs, either through old age or disease, or where the property is stolen by robbers, or anything of this kind takes place; it must be said that the party who received the loan is not to be blamed for any of these things, unless some negligence occurred on his part. Hence, if any damage resulted through fire or the fall of a building, or any inevitable loss took place, the party will not be liable; unless, when he could have saved the property which was lent, he preferred to save his own.

(5) It is beyond question that he must use diligent care with reference to the property loaned.

(6) But whether he must use this care, where a slave has been loaned, was doubted by the ancient authorities; for sometimes a watch must be kept upon a slave, as where he is chained when lent, or where his age requires that he should be guarded; but if it was certain that the understanding was that the party who asked for him should guard him, it must be held that this should be done.

(7) Sometimes, however, the loss by death must be borne by the party who asked for the loan; since if I should lend you a horse for you to take to your villa, and you take it to war, you will be liable to an action on loan; and the same rule applies to the case of a slave. It is clear, however, that if I lent the horse to you in order that you might take it to war, the risk would be mine, for Nanusa says if I lend you a slave to plaster a wall, and he falls down from a scaffold, the risk is mine. I think, however, that this is true only where I lent him to you for the purpose of working on a scaffold; but if he should do his work on the ground, and you caused him to get up on a scaffold; or if, through some defect in the latter which was not built properly, even though not fastened by the party in question, or it happened through the age of the ropes or poles; I say that the party himself who requested the loan, must be responsible for the accident which occurred through his negligence. Mela stated that if a slave was lent to a stone-cutter and was killed by the fall of a scaffold, the artisan is liable to an action on loan, because he built the scaffold in a careless manner.

(8) Moreover, where a person uses the article lent to him in some other way than was intended, he is liable not only to an action on loan but also to one on theft; as Julianus states in the Eleventh Book of the Digest. He also says, "If I lend you a blank book and you cause your debtor to write therein a note to secure you, and I then erase this; if I lent the book to you in order that you might be secured, I am liable to you in a counter action." But if this is not the fact, and you did not inform me that the note was written, you will also be liable to me in an action on loan, and he says you will even be liable to an action on theft also; since you made use of the property loaned in a different way than you should have done, just as anyone is liable for theft if he uses a horse or a garment for a different purpose than that for which it was lent.

(9) To such an extent must diligence be exercised with reference to property loaned for use, that it must be employed even with respect to whatever follows the property in question; as, for instance, where I lent you a mare which was accompanied by a foal, the ancient authorities held that you were also obliged to use proper care in the treatment of the foal.

(10) It is evident that sometimes he who asked for a loan will be responsible only for malice displayed with reference to the property borrowed, as, for instance, where anyone entered into an agreement to this effect, or where the party made the loan only for his own benefit; for example, where he made it to his betrothed or to his wife, in order that she might be better attired when she was brought to him; or where the prætor exhibited games and made a loan to the actors, or someone voluntarily loaned things for this purpose to the Prætor.

(11) We must now examine in what particular instances an action on loan will be available; and the ancient authorities entertained doubts with reference to cases of this kind.

(12) I gave you something in order that you might pledge it to your creditor; you gave it in pledge; but you did not redeem it in order to return it to me. Labeo says that in this instance an action on loan will lie, and I think that this opinion is correct, unless I received some compensation, and then the action would be in factum on the contract of leasing and hiring. It is evident that if I give an article in pledge on your account and with your consent, an action on mandate will lie. Labeo also says, very properly, that if I am not guilty of negligence in redeeming the property pledged, but the creditor refuses to return it; you will then have a right of action on the loan only to the extent that I could assign to you my rights of action against him. It will, moreover, be held that I am not guilty of negligence if I have already paid the money, or I am prepared to pay it. It is clear that the costs of the proceedings and any other expenses must, in justice, be paid by the party who received the loan.

(13) If you ask me to lend you a slave with a dish, and the slave loses the dish, Cartilius says that you must assume the risk, since the dish is held to have been lent, and therefore you must also be responsible for negligence with reference to it. It is evident that if the slave takes to flight with the dish, the party who received the loan will not be liable, unless he was guilty of negligence in connection with the flight of the slave.

(14) If you ask me to furnish a dining-room for you as well as plate for service, and I do so; and then you request that I do the same thing on the next day, and as I cannot conveniently take the silver back to my house I leave it there, and it is lost; what action can be brought, and who must assume the risk? Labeo states with reference to the risk, that it makes a great deal of difference whether I placed someone to guard the property or not, for, if I did so, the risk is mine; but if I did not, the party to whom the property was left is responsible. I think, however, that an action on loan will lie, but that the party with whom the property was left must provide for its safe custody, unless some other arrangement was expressly agreed upon.

(15) Where a vehicle is lent or hired to two persons, Celsus, the son, says in the Sixth Book of the Digest that the question may arise whether each of them is liable for the entire amount, or only for a part of the same? He states that the entire ownership of anything cannot belong to two persons, nor can they have the entire possession, nor can one party be the owner of a portion of an article, for he can only have partial ownership of the entire article by means of an undivided share. However, the use of a bath, of a portico, or of a field, may belong to each party in its entirety, for I do not enjoy the use of a thing any the less because another also uses it; but where a vehicle is loaned or hired, I do have the use of a part of it, in fact, because I do not occupy the whole space of the vehicle; but he says it is the better opinion that I shall be responsible for fraud and negligence, as well as for diligence and care, with reference to the whole of it; wherefore, the two parties will be considered as joint-debtors, and if one of them, having been sued, pays the damages, the other will be released, and both of them will be entitled to an action for theft:

6. Pomponius, On Sabinus, Book V.

So that, if either one of them brings suit, the right of action of the other against the thief will be extinguished.

7. Ulpianus, On the Edict, Book XXVIII.

Therefore the question arises if one of the parties brings the action for theft, should he only be sued for the loan? Celsus says that if suit should be brought against the other, namely, the one who did not bring the action for theft, and he is ready for the former — that is the one who, because of his bringing the action for theft, profited by the article lent — to be sued at his risk, he should be heard, and be discharged from liability.

(1) If the lender has a right of action against the other joint-debtor under the Lex Aquilia, it should be considered whether he should not assign it, if the other had committed some damage which the party sued may be compelled to make amends for in an action on loan; since, even if the lender had a right of action against him under the Lex Aquilia, it is perfectly just that, when he brings suit on the loan, he should release the other right of action; unless someone might say that by instituting proceedings under the Lex Aquilia he will recover less than he recovered on account of the loan; and this appears to be reasonable.

8. Pomponius, On Sabinus, Book V.

We retain both the possession and the ownership of property lent for use.

9. Ulpianus, On the Edict, Book II.

For no one, by lending anything, makes it the property of the party to whom he lends it.

10. The Same, On Sabinus, Book XXIX.

Where a man who has received anything as a loan only uses it for the purpose for which he borrowed it, he will certainly not have to pay anything if he renders the article in no respect worse, through his own negligence; for if he does render it worse through his negligence, he will be liable.

(1) If I give an article to some one to enable him to examine it, the question arises whether he occupies the same legal position as one to whom property is lent? If, indeed, I gave it to him on my own account, because I wished him to ascertain its value, he will only be responsible to me for fraud; but if I gave it to him on his own account, he will also be responsible for its safe-keeping, and hence he will be entitled to an action for theft. But if the article is lost while it is being returned, and I had directed him as to the party by whom he should return it, the risk will be mine; but if he committed it to the care of some one whom he himself selected, he will also be responsible to me for negligence, if he received it on his own account;

11. Paulus, On Sabinus, Book V.

Because he did not select a suitable person in order that it might be carried securely.

12. Ulpianus, On Sabinus, Book XXIX.

But if he received it on my account, he will be responsible only for fraud.

(1) A slave who was sent to ask for an article which had been loaned, ran away after he had received it. If his master had directed that it should be given to him, he must sustain the loss; but if he sent the slave for the purpose of notifying the borrower to return the article lent, the party to whom it was lent will be responsible for the loss.

13. Pomponius, On Sabinus, Book XL

Where a person who received a loan has judgment rendered against him in an action on loan, on the ground that the property had disappeared; security must be furnished him that if the owner finds it, he will deliver it to him.

(1) Where a party receives something for the purpose of trying it, as, for instance, beasts of burden, and they are hired out by him, and he profits by this use; he must refund the actual amount which he obtained to him who let him have the animals on trial; for no one should be allowed to profit by anything before it is held at his risk.

(2) Where I lend an article to a free man who has been serving me in good faith as a slave, let us see whether I am entitled to an action on loan against him. Celsus, the son, says that if I had ordered him to do anything, I could proceed against him either by an action on mandate, or by an action for the construction of the contract,¹ and therefore the same rule should apply in the case of a loan. It makes no difference whether, if we contract with a freeman who is serving us in good faith as a slave, we do not do so intending to place him under an obligation, for it frequently happens that a tacit obligation arises in addition to what is intended at the time; as, for instance, where money which is not due is paid by mistake for the purpose of discharging a debt.

¹ The Actio Præscriptis Verbis was founded upon the ancient Præscriptio, which sometimes formed part of the Formula in the original pleadings of Roman jurisprudence. The derivation of the term is unknown. The action was a prætorian one applicable to innominate contracts, and was employed where suit could not be brought under the strict rules prescribed by the Civil Law. It was practically a proceeding to enforce compliance with the terms of a contract, and, if the defendant still refused performance, damages could be recovered by the plaintiff in proportion to the amount of injury he had sustained through the failure of his adversary to meet his obligations. — ED.

14. Ulpianus, On Sabinus, Book XLVIII.

If my slave lends you an article belonging to me, and you were aware at the time that I was unwilling that it should be lent to you; an action on loan, as well as one for theft, will lie in my favor, and I will be entitled to an action to recover the property on the ground of theft, as well.

15. Paulus, On the Edict, Book XXIX.

We can lend even the property of others which is in our possession, even though we know that it belongs to another:

16. Marcellus, Digest, Book V.

So that even if a thief or a depredator lends property he will be entitled to an action on loan.

17. Paulus, On the Edict, Book XXIX.

In a case of loan, an agreement that the bailee shall not be responsible for bad faith is not valid.

(1) The counter action on loans can be instituted without the direct action, just as the others which are designated counter actions.

(2) Where an action on loan is brought on account of an act of the heir, judgment will be rendered against him for the entire amount, even though he may be heir only to a share.

(3) Just as the making of a loan for use is an act of free will or of kindness, rather than of necessity, so also it is the right of the party who confers the favor to prescribe terms and limits with reference to the same. When, however, this has been done, (that is to say, after the loan has been made), then the prescribing of terms and going back and unseasonably depriving the party of the property loaned, not only interferes with the kindness displayed, but also with the obligation created by giving and receiving the property. For the transaction is participated in by both parties, and therefore rights of action arise on both sides; so that it is apparent that what was originally an act of generosity and good will is changed into mutual obligations and civil rights of action, as happens in the case of a party who has begun to attend to the business of someone who is absent; for he cannot allow the business to be neglected with impunity, since, if he had not undertaken it, perhaps someone else would have done so, for the assumption of a mandate depends upon the will, but to execute it is a matter of necessity. Therefore, if you lend me tablets in order that my debtor may give me security, you cannot properly demand that they be returned at an improper time; for if you had refused to lend them, I would either have purchased others, or have obtained witnesses.

The same rule applies where you lent me timbers with which to prop up a house, and then removed them, or even knowingly lent me some which you knew to be decayed; for we should be benefited, and not deceived when a favor is granted. In instances of this kind it must be held that the counter action can also be brought.

(4) Where two articles have been lent, Vivianus states that the action on loan can properly be brought for either of them, and what Pomponius states would seem to be true, if they are separate; for where a party has lent, for instance, a chariot or a litter, he cannot properly bring an action for separate portions of the same.

(5) I lost an article which you lent me, and I gave you its value in lieu thereof, and then the article came into your hands. Labeo says that in a contrary action you must either deliver the property to me, or restore to me what you received from me.

18. Gaius, On the Provincial Edict, Book IX.

Where property is lent, the same diligence must be exercised as any very careful head of a household employs with reference to his own property, so that he is not responsible for an accident, except those that cannot be resisted; as, for instance, the deaths of slaves which occur without malice or negligence on his part, attacks by robbers and enemies, the stratagems of pirates, shipwrecks, fires, and the escape of slaves whom it is not usual to keep under guard. With reference to what we have stated concerning robbers, pirates, and shipwreck, we must understand this to mean that where property has been lent to a man in such a way that he can take it with him on a journey; if, however, I should lend silver plate to anyone because he said that he was going to invite some friends to supper, and he takes it out of the country with him, there is no doubt that he will be responsible for anything that happens through the acts of pirates and robbers, or by reason of shipwreck. This is the case where the property was lent only as a favor to the borrower, but if it was done for the benefit of both parties, for example, where we invited a common friend to supper, and you take it upon yourself to manage the affair, and I lend you the plate; I am aware that certain authorities hold that you are only responsible for bad faith, but it should be considered whether you are not also liable for negligence, for the determination of negligence is ordinarily made on the same principle as where property is given in pledge or as dowry.

(1) Where property is pledged, loaned, or deposited, and it is deteriorated by the act of the party who received it, not only the actions which we have mentioned will lie, but also that under the Lex Aquilia; but where any one of these is brought, the right to the others will be extinguished.

(2) There may be good cause for an action to be brought against the person who lends the property; as, for instance, where this is done for expenses incurred, on account of the health of the slave, or for seeking him and bringing him back after he has run away; but the expenses of his maintenance must be borne by the party who received him in order to use him in accordance with natural law. But with reference to what we have stated concerning any expenses incurred on account of the health or the flight of the slave, this only applies to expenses which are larger in amount; for the better opinion is that moderate expenses, as, for instance, those of his support, must be borne by the same individual.

(3) Moreover, where anyone lends vessels which are defective, and the wine or oil which is put into them is spoiled, or runs out, judgment must be rendered against him on this account.

(4) Again, wherever a man can recover anything by a counter action he can retain it by the right of set-off, even when the direct action is brought against him. It may happen that what a party can recover on his part is of greater amount; or the judge may refuse to take the set-off into consideration; or proceedings are not instituted against him to obtain restitution of the article lent, because it has been destroyed by accident, or has been returned without judicial proceedings; so we say that a counter action is necessary.

19. Julianus, Digest, Book I.

There is no doubt that parties who agree to keep something safely, or receive it to be used, are not liable for unlawful damage committed by another; for how can we provide by either care or diligence against some one doing us wrongful injury?

20. The Same, On Urseius Ferox, Book III.

If I give silver lent by you to me to a slave of mine to be delivered to you, who is so reliable that no one would think that he would be imposed upon by any evil-minded persons, and if such persons obtain possession of the silver, the loss will not be mine.

21. Africanus, Questions, Book VIII.

You lent an article to me and then you took it away afterwards; you brought an action on loan, and I did not know that you had taken the article; the judge rendered a decision against me and I paid it. I afterwards ascertained that the article had been removed by you, and the question arose what kind of an action I could bring against you? The answer was that there could not be an action for theft, but that I would be entitled to a counter prætorian action on account of the loan.

(1) While in the army, I gave certain vessels to my companions to be used at the common risk, and my slave, having stolen them, deserted to the enemy, and was afterwards recovered without the vessels. It is established that I will be entitled to an action against my companions on the ground of loan, for their respective shares, but they can proceed against me for theft, on account of the act of my slave, since the claim for reparation follows the person. And if I lend you an article to be used at your own risk, and it is stolen by my slave, you can bring an action for theft against me on account of the act of the slave.

22. Paulus, On the Edict, Book XXII.

Where a slave whom I lent you commits a theft, the question arises whether a counter action on loan will be sufficient, just as this would lie if you had spent any money for the cure of the slave; or whether you can bring an action for theft? And, there is no doubt that the party who requested the loan can bring a noxal action for theft, and that the lender is liable to a counter action on loan, since he made the loan knowing that the slave was dishonest, while the other party was ignorant of the fact.

23. Pomponius, On Quintus Mucius, Book XXII.

If I lend you a horse to be used for the purpose of travelling to a certain place, and, through no negligence on your part, the value of the horse is diminished by the journey, you will not be liable to an action on loan; but I, myself, was negligent because I lent for such a long journey a horse which could not endure the fatigue.

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TITLE VII. CONCERNING THE ACTION ON PLEDGE AND THE COUNTER ACTION.

1. Ulpianus, On Sabinus, Book XL.

A pledge can be contracted not only by delivery, but also by mere agreement, even if no delivery is made.

(1) Let us therefore consider where a pledge has been contracted by mere agreement, whether, when anyone exhibits some gold as if he intended to deliver it by way of pledge, and he delivers brass, he will bind himself to pledge the gold? If follows that he will bind himself for the gold, but not for the brass, as the parties did not make an agreement with reference to the latter.

(2) However, where anyone when he delivers brass by way of pledge, states that it is gold, and gives it in pledge, it should be considered whether he does not make the brass a pledge, and whether as an agreement was made as to what was to be given, it may not be held to be pledged? This is the better opinion; still, the party who gave it will be liable to a counter action on pledge, without taking into account the fraud which he perpetrated.

2. Pomponius, On Sabinus, Book VI.

Where a debtor sold and delivered property which he had pledged, and you lent him money which he paid to the creditor to whom he gave the pledge, and you entered into an agreement with him that the article which he had already sold should be pledged to you; it is established that your act is void, because you accepted in pledge property which belonged to another; for, according to this arrangement, the purchaser has come to have in his possession an article which has been released from the pledge; and it makes no difference that the property pledged was released by the use of your money.

3. The Same, On Sabinus, Book XVIII.

When, having been assured by your debtor that you will receive the money he owes you immediately, you return him the property pledged, and he passes it out a window to some one whom he purposely stationed there to receive it; Labeo says that you can bring an action for theft, and also one for production against your debtor; and if you bring a counter action on pledge, and the debtor interposes an exception on the ground that the property pledged has been returned, a replication can be filed based on bad faith and fraud; since it is understood that the article was not returned but was removed by artifice.

4. Ulpianus, On Sabinus, Book XLI.

Where an agreement is made with reference to the sale of the property pledged, either in the first place or afterwards; then, not only is the sale valid, but the purchaser immediately obtains the ownership of the property. But, although nothing was agreed upon with reference to the sale of the property pledged, still, the law is that it can be sold, provided no agreement was entered into preventing it; but if an agreement was made that it should not be sold, and the creditor then sells it, he will be liable to an action for theft, unless the debtor was thrice notified to make payment, and did not do so.

5. Pomponius, On Sabinus, Book XIX.

The same rule of law applies whether it was agreed that no sale should be made at all, or where something has been done in violation of the agreement, either with reference to the amount, the condition, or the place where the property was to be sold.

6. The Same, On Sabinus, Book XXXV.

Although an agreement may be entered into that you shall be at liberty to sell land which is pledged to you, nevertheless, you cannot be forced to sell it, although the person who gave it to you in pledge may be insolvent; because the security was given on your account. Atilicinus, however, says that where proper cause is shown, the creditor can be compelled to sell; for what if the amount which is due is much less than the value of the property pledged, and the latter can be sold at present for more than it will bring hereafter?

It would be better, however, to say that the person who gave the pledge could sell it and pay what he owed when he has received the purchase-money; provided the creditor can be required to exhibit the property pledged, in case it is movable, if the debtor previously furnished him with sufficient security to indemnify him; for it would be oppressive for a creditor to be compelled to sell the property against his will.

(1) Where the creditor sells land which has been pledged with him for a larger amount than the debt, and lends the excess at interest, he must pay the interest received on this money to the party who gave him the pledge; and if he, himself, makes use of the excess he must also pay interest on the same; but if he retains it as a deposit, he will not be required to do so.

7. Paulus, Sentences, Book II.

Where a creditor, after the lapse of some time, restores the surplus, which he held on deposit, then, on account of his default, he should be compelled to pay the debtor interest on the same because of the delay.

8. Pomponius, On Sabinus, Book XXXV.

If I incur some necessary expense on account of a slave or a tract of land which I received by way of pledge, I shall be entitled not only to retain the same, but also to bring a counter action on pledge; for suppose that the slave was ill, and I paid out money to physicians, and the slave died; or suppose that I propped up a building or repaired it, and afterwards it was destroyed by fire, and I had nothing which I could hold as a lien.

(1) Where several slaves are given in pledge, and the creditor sells some of them for a certain amount of money, with the understanding that he will guarantee their title to the purchaser, and he pays his debt with the proceeds; he can retain the remaining slaves until he has been furnished security that he will be indemnified with reference to what he promised the purchaser by way of guarantee of the title to the other slaves.

(2) Where one of the heirs of a debtor pays his share of the debt, the entire property given in pledge can still be sold, just as if the debtor himself had paid a portion of the debt.

(3) If I stipulate for payment at the end of one, two, and three years, and I receive a pledge, and agree that unless the money is paid at each of the times specified I shall have the right to sell the property pledged; it is settled that I cannot sell it before the day when all the sums are due; and this is the case because by these words all the payments are indicated, and it is not true that the money is not paid on each day appointed for it, until all the days have arrived. But when all the times for payment have passed, then, even if only one portion should not be paid, the property pledged can be sold. But where it was stated in writing, "That if any one payment should not be made on the day appointed for the same," suit on the agreement can then be brought at once by the creditor.

(4) An agreement relating to the sale of property held in pledge should be drawn up in such a way that all the parties will be included in it; but if it only should have reference to the creditor himself, his heir also may legally sell the property, if nothing has been agreed upon to the contrary.

(5) Where a pledge can be sold on account of an agreement, this may be done not only on account of the unpaid principal, but also on account of other matters, as, for instance, interest and money expended on the property.

9. Ulpianus, On the Edict, Book XXVIII.

Where a debtor has given me in pledge property belonging to another, or has acted in bad faith with reference to the pledge, it should be said that the counter action will lie.

(1) A pledge can not only be given on account of money, but also for any other matter; as, for example, where a party gives a pledge to another that he will become his surety.

(2) We properly designate as a pledge something which is delivered to the creditor; and where not even possession passes to the creditor we call it hypothecation.

(3) In order for the action on pledge to be applicable, all the money must have been paid, or satisfaction be given with reference to the same. We understand by "satisfaction," such satisfaction as the creditor desires, even though no payment may be made; whether he wished that security should be given to him by other pledges so that he may relinquish the one he has, or by sureties, or by providing another debtor, or by the payment of money, or by mere agreement, the action on pledge will arise. And, generally speaking, whenever the creditor is willing to relinquish the pledge, it is considered to be satisfied if he has received such security as he wished, even though he may have been deceived with reference to it.

(4) Anyone who has given the property of another in pledge can proceed by an action on pledge, if the debt has been paid by him.

(5) Where a party brings the action on pledge before payment has been made, although he did not proceed properly in doing so, still, if he tenders the money in court, he has a right to recover the property pledged and his interest as well.

10. Gaius, On the Provincial Edict, Book IX.

But if he is ready not to pay but to give satisfaction in some other way, for instance, if he wishes to give another debtor in his stead, this will be of no advantage to him.

11. Ulpianus, On the Edict, Book XXVIII.

It is not considered to be payment where issue is joined with the debtor with reference to the debt, or where a surety is sued.

(1) Where the obligation of the debt is renewed, this destroys the pledge, unless it is agreed that the pledge shall be renewed.

(2) If I receive a pledge from you with the understanding that I shall pay you money, and I fail to pay it, I will be liable to an action on pledge; although no payment has been made. The same rule will apply where a receipt has been given for the money loaned, or the condition on account of which the pledge was given should not be fulfilled, or a lawful agreement has been entered into that no demand for the money shall be made.

(3) If the property was pledged only with reference to the principal or the interest, the action on pledge can be brought where the money with reference to which the property was encumbered has been paid. But whether the interest was expressly mentioned in the stipulation or not, if the property was pledged with reference to it also, the action on pledge will not lie so long as any of it is due. The case is different where a party has promised to pay interest above the lawful rate, for this is absolutely illegal.

(4) Where the creditor left several heirs, and one of them is paid his share, the other heirs of the creditor should not suffer any injury, but having offered to the debtor what he has paid to their co-heir, they can sell the entire property. This opinion is not unreasonable.

(5) The money is understood to be paid not only where it was given to the party to whom the property was pledged, but where it was paid with his consent to someone else, or to one whose heir he is or to his agent, or to a slave appointed for the collection of claims. Therefore, if you rent a house and lease a part of it to me, and I pay the rent to your lessor, I can proceed against you by an action on pledge; for Julianus says that he can be paid. And if I pay a part of the rent to you and a part to him, the same rule must be said to apply. It is evident that the property which I brought into the house will be liable only for the amount of the rent of my room, as it is incredible that an agreement should have been made that my effects of trifling value should be liable for the rent of the entire house. It is held to have been tacitly agreed upon with the owner of the premises that the contract of the proprietor of the lodging-house should not benefit the former but that his own agreement should.

(6) An obligation by pledge through a free person is not acquired by us; and to such an extent does this principle apply that it cannot be acquired through an agent or guardian, and therefore they themselves can be sued in an action on pledge. Nor is this changed by what was decreed by our Emperor, namely, that possession may be acquired through a free person; for this is only applicable in order to enable us to obtain possession of property which has been pledged to us, but a free person will not always acquire the obligation itself for us.

(7) Where, however, my agent or guardian gives property in pledge, he himself can bring the action on pledge, and this applies to an agent if he had already been directed to give a pledge:

12. Gaius, On the Provincial Edict, Book IX.

Or if the management of the entire property or the party who was accustomed to borrow money on pledges has been entrusted to him.

13. Ulpianus, On the Edict, Book XXXVIII.

If, when a creditor was selling a pledge, an agreement was entered into between him and the purchaser that if the debtor should pay the purchase-money to the buyer, he shall be entitled to have his property returned; Julianus says it is also stated in a rescript that, on account of this agreement, the creditor is liable by the action on pledge to transfer to the debtor his action on sale against the purchaser. The debtor himself, however, can bring an action to recover the property, or one in factum against the purchaser.

(1) Both malice and negligence may be the subject of this action, as in the case of a loan for use. Safe-keeping also is included, but irresistible violence is not within its scope.

14. Paulus, On the Edict, Book XXIX.

Therefore, the same diligence which a careful head of a household is accustomed to exercise in his own affairs is required of the creditor.

15. Ulpianus, On the Edict, Book XXVIII.

When the creditor returns the pledge he should give the debtor security against fraud, and if a tract of land was pledged, he must give him security with reference to his title, if servitudes happen to have been lost through the failure of the creditor to make use of them.

16. Paulus, On the Edict, Book XXIX.

Where a guardian pledges the property of his ward without violation of the law, the pledge must be upheld; that is, if he receives the money for the benefit of the ward. The same rule applies in the case of the curator of a minor or insane person.

(1) It is certain that the creditor is entitled to a counter action on pledge. Hence, if the debtor gives property belonging to another, or which is pledged to a third party or to the State, he will be liable, although he is also guilty of the crime of swindling. Is this the case only where he is aware of the facts, or also where he was ignorant of them? So far as the offence is concerned, ignorance will be a sufficient excuse; but, with reference to the counter action, Marcellus states in the Sixth Book of the Digest that ignorance does not excuse him. When the creditor knowingly receives property which belongs to some one else, or is pledged to another, or which is damaged, a counter action will not lie in his favor.

(2) Even land subject to a perpetual lease can be pledged as well as that whose surface only is involved; because, at present, equitable actions are granted to parties in whom surface rights are vested.

17. Marcianus, On the Hypothecary Formula.

The Divine Severus and Antoninus, however, stated in a Rescript that the pledge will be binding without affecting the rent of the land.

18. Paulus, On the Edict, Book XXIX.

If you and I have agreed that a claim against a debtor of mine shall be pledged to you, this agreement must be sustained by the Prætor, so that he will protect you if you bring suit for the money, and the debtor if I bring suit against him. Therefore, if the obligation was a pecuniary one, you must set off your claim against the money collected; but if it was for any specific property, whatever you receive you will retain instead of a pledge.

(1) If the mere ownership is pledged, an usufruct which subsequently accrues will be included to the pledge, and the same rule applies to alluvial deposits.

(2) If real-property which is pledged is sold, the condition of the pledge still remains, since the land passes together with what is connected with it; as, for instance, in the case of a child born of a female slave after the sale has been made.

(3) Where a party has provided that a wood shall be pledged to him, Cassius says that a ship built of this material cannot be pledged by this agreement, because the material is one thing, and the ship another, and therefore in giving the pledge it should be expressly added, "Whatever is made of or derived from this wood."

(4) Where a slave pledges property belonging to his peculium, the transaction must be sustained if he had the free management of the peculium; for he can also alienate such property.

19. Marcianus, On the Hypothecary Formula.

We must understand the same rules to apply to a son under paternal control.

20. Paulus, On the Edict, Book XX.

The property of a third party can be given in pledge with the consent of the owner; and if it is given without his knowledge, and he ratifies the act, the pledge will be valid.

(1) Where property is pledged to several persons at the same time, they all have an equal right.

(2) If the creditor is to blame for not being paid, the action on pledge can properly be brought.

(3) Sometimes, even if the money has been paid, the action on pledge should be refused; for example, if the creditor had bought his pledge from the debtor.

21. The Same, Abridgments, Book VI.

Where a house is given in pledge, the site also is liable, for it is a part of the house; and, on the other hand, the right to the soil follows the building.

22. Ulpianus, On the Edict, Book XXX.

Where a pledge has been stolen, and the creditor brings an action for theft, Papinianus is of the opinion that he must credit on the debt everything that he recovers; and this is correct, even though the theft was committed through the negligence of the creditor.

Much more should this be held with reference to what he obtains by a suit for recovery. But let us consider whether what the debtor himself paid to the creditor under an action for theft or one for recovery shall be credited on the debt; and, indeed, it has been frequently stated and handed down that he is not required to restore to him what he himself has paid under an action for theft. Papinianus says the same thing in the Ninth Book of Questions.

(1) Papinianus also says that, where the creditor, actuated by fear, returned to the debtor a slave who had been pledged, and whom he had received in good faith for that purpose, the same rule applies; for if he institutes proceedings because he had done this on account of duress, and he recovers quadruple damages, he will not return anything out of what he obtained, nor shall he credit it upon the debt.

(2) If a thief gives property in pledge, an action on pledge as well as for the profits can be brought by him, although he cannot make the profit his own; for a thief can be sued not only for the profits of property which is in existence, but also for the recovery of the value of that which has been consumed; and therefore the fact that the creditor was a bona fide possessor will be an advantage to him.

(3) If, after the pledge has been sold, the debtor who obtained possession of the property by sufferance, or who leased it, does not relinquish possession, he will be liable to a counter action.

(4) Where a creditor, when he sold the property pledged, promised double damages (for this is customary, and having been sued in a case of eviction he had judgment rendered against him) would he have a right to a counter action on pledge? It may be said that he would have such a right, provided he made the sale without fraud or negligence, and transacted the business as the diligent head of a household should do. Where, however, a sale of this kind was, in no wise, profitable, but the party sold it for as much as he could have obtained even if he had not given the promise, he cannot have recourse to this action.

23. Tryphoninus, Disputations, Book VIII.

For he will not be able to recover from the debtor more than the amount of the debt. If, however, there had been an agreement for interest, and, five years, for instance, after having received the price of the property pledged the creditor, having lost his case, makes restitution to the purchaser, he can recover from the debtor interest for the intermediate time, because it is evident that nothing has been paid to him in such a way that it cannot be deprived of it. Where, however, he has only paid the price received, he will be barred by an exception on the ground of fraud from a claim for interest, since he has had the use of the purchase-money which he received from the buyer.

24. Ulpianus, On the Edict, Book XXX.

The nice question has been asked me; if the creditor has obtained from the Emperor a Decree that he shall have possession of the pledge, and has been deprived of it by a better title, will he have a right to a counter action on pledge? It seems to me that the obligation growing out of the pledge is terminated, and that there is a withdrawal from the contract; nay more, there is an equitable action arising from the purchase of which he can avail himself, just as if the property had been given up to him by way of payment, so as to satisfy him for the amount of the debt or of the interest he had in the matter; and the creditor would be entitled to a set-off, if an action on pledge, or one based on any other ground, should be brought against him.

(1) The question arises whether anyone who has paid the creditor in counterfeit money can bring the action on pledge, because the money has been paid? It is established that he cannot bring an action on pledge, nor will he be released from the debt because counterfeit money does not release the party who pays it; and, indeed, the money should be returned to him.

(2) Where a creditor sells a pledge for more than was due, but has not yet recovered the price from the purchaser, can he be sued in an action on pledge for payment of the surplus? Or must the debtor wait until the purchaser pays, or have a transfer of the rights of action against the latter made to him? I am of the opinion that the creditor should not be compelled to make payment, but that the debtor should wait, or, if he does not do so, that the rights of action against the purchaser should be assigned to him, but at the risk of the vendor. Where, however, he has already received the money he must surrender the surplus.

(3) Where the creditor has maltreated property which was pledged or has injured slaves, this must be taken into consideration in the action on pledge. It is evident, however, that, if he has employed force against them on account of their bad behavior, or has placed them in chains, or has brought them before the Prefect or the Governor; it must be said that the creditor is not liable to the action on pledge, therefore, if he has prostituted a female slave, or compelled her to perform any other improper act, the pledge of this slave is at once released.

25. The Same, On the Edict, Book XXXI.

Where a creditor has instructed pledged slaves in various trades, a counter action will lie if they have already acquired knowledge in these matters, or if the instruction was given with the consent of the debtor. But if neither of these was the case, and the trades were necessary, the counter action will lie, but not to the extent that the debtor will be compelled to lose the slaves on account of the amount of the expense; for, just as the creditor is not suffered to neglect the property through malice and negligence, so also he is not permitted to place what is pledged in such a condition that its recovery would be onerous to the debtor; as, for instance, where a large tract of land is given in pledge by a man who can hardly redeem it, and not even cultivate it, and you, having received it in pledge, cultivate it in such a way as to render it of great value; as, in fact, it is not just that I should be compelled to look for other creditors, or to sell what I wished to recover, or to leave it in your hands through the force of poverty. These matters should be considered by the judge, who should take a middle course, so as not to listen to the trifling objections of the debtor, or to the oppressive claims of the creditor.

26. The Same, Disputations, Book III.

There is nothing surprising that a pledge is created where, for any cause whatsoever, a magistrate places the party in possession; since our Emperor, together with his father, stated very frequently in Rescripts that a pledge can also be created by will.

(1) It should be remembered that where a pledge is created by order of a magistrate, this is not legally done until the property has actually come into possession.

27. The Same, Opinions, Book VI.

In the case where a creditor made a demand for money which had been loaned, and the debtor did not have the money on hand, he gave him certain articles of gold, in order that he might place them in pledge with another creditor. If the party who received them from the debtor holds them after they have been released by payment, he can be ordered to produce them; but if they are still in possession of the creditor, they are held to be liable with the consent of the owner; but the proper action can be brought by the owner of the property against his creditor to compel them to be delivered, as soon as they are released.

28. Julianus, Digest, Book XL

Where a creditor has received property in pledge and having lost possession of it proceeds by means of the Servian Action, and recovers damages; and the debtor afterwards brings suit for the same property, he will be barred by an exception, unless he offers him what was paid for it.

(1) Where a slave receives a pledge on account of his peculium, an action on pledge can be brought by the debtor against his master.

29. The Same, Digest, Book XLIV.

If you purchase the property of another in good faith, and give it to me in pledge, and request its return to be held by sufferance; and then the owner of said property appoints me his heir, it ceases to be a pledge, and merely the claim by sufferance will survive; and therefore your usucaption will be interrupted.

30. Paulus, Epitomes of the Digest of Alfenus Verus, Book V.

A party who had lent money to the owner of a boat, detained the boat in the river on his own authority, as the money was not paid at the appointed time; and the river afterwards rose and carried away the boat. The opinion was that, if the creditor had retained the boat against the consent of the owner, the boat was at his risk; but if the debtor had voluntarily agreed that he should retain it, he should only be indemnified for negligence, and not for superior force.

31. Africanus, Questions, Book VIII.

Where a slave given in pledge commits a theft against the creditor, the debtor has a right to relinquish the slave by surrendering him for reparation. But if he gave him to me in pledge, knowing him to be a thief, although he may be ready to surrender him to me by way of reparation, I will, nevertheless, be entitled to an action on pledge, in order that I may be indemnified. Julianus says that the same rules must be observed where a slave is deposited or lent, and commits theft.

32. Marcianus, Rules, Book IV.

A creditor can bring a counter action on pledge against a debtor who has pledged the property of another, even though the debtor may be solvent.

33. The Same, On the Hypothecary Formula.

Where a debtor has paid the money, he can make use of the action on pledge to recover property given in anmcrhoiV, for as there is a pledge he can make use of this term.¹

¹ As a general rule, a creditor has no right to use the article pledged. Where, however, a pactum antichreseos — which was a special contract, either express or implied, giving him the privilege of making use of the pledge, or of retaining the profits of the same by way of interest — was entered into, or accrued, he could do so. This agreement resembles, in every respect the Welsh mortgage of the English law, and from it the latter has evidently been derived. When a loan was made under these circumstances, interest could be collected in no other way and proceeds of the property only to the extent of the rate established by law could be retained. If the money was lent without mentioning interest, which was usually the case in a transaction of this kind, the delivery of the pledge tacitly carried with it the authority to use it, or appropriate a sufficient amount of what it might yield, as compensation for the loan. The creditor was compelled to account to the debtor for any surplus income which he received from this source, and restore the pledge in good condition, when the obligation was discharged.

The pactum antichreseos did not permit any of the profits to be applied to the payment of the principal, in which respect it differed from the vivium vadium of the Roman law, under which the pledge was returnable after the entire claim, both principal and interest, had been satisfied.

In Louisiana, where every kind of property, both corporeal and incorporeal, was susceptible of pledge, antichresis, as a special variety of this bailment, was in force, and was applicable to real estate as well as to slaves who were held to be part of the same. The creditor was liable for all expenses, and could use the income of the property to reduce first the interest, and then the principal of the debt. (Civil Code of Louisiana, Arts. 3101, 3142, 3144.)

Under both the English and American law, the bailee may use the pledge, under certain circumstances, but if he does, he is held to strict responsibility. "If," said Lord Holt, "the pawn be such as it will be the worse for using, the pawnee cannot use it, as clothes, &c; but if it be such as will be never the worse, as if jewels for the purpose were pawned to a lady, she might use them, but then she must do it at her peril; for whereas if she keeps them locked up in her cabinet, if her cabinet should be broken open and the jewels taken from thence, she would be excused; if she wears them abroad, and is there robbed of them, she will be answerable; and the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used." (Broom, Commentaries on the Common Law, Page 889.)

"He has generally only a right to hold; and if he uses, it is at his own peril; and he is liable for any loss which occurs while using. If he derive a profit from this use, he must allow for it; unless this use was equally profitable to the owner." "Where the lien is by act of party, it is held that the bailee may use the property as the owner would, unless it will be the worse for use. But the property will be at the risk of bailee while in use. Where, however, the special interest arises by operation of law, the bailee has no right to use." (Parsons, The Law of Contracts, Vol. II, Page 111, Vol. III, Page 237.)

In ancient India the unauthorized user of a pledge was regarded as a thief: "A pledge to be kept only must not be used by force, that is against consent; the pawnee so using it must give up his whole interest, or must satisfy the pawner, if it be spoiled or worn out, by paying him the original price of it; otherwise, he commits a theft of the pawn.

"The fool, who secretly uses a pledge without, though not against, the assent of the owner, shall give up half of his interest, as a compensation for such use." (Sir Wm. Jones, The Law of Menu, Pages 295, 296.)

34. Marcellus, Opinions.

Where Titius lent money to Sempronius, and received a pledge for the same, and the creditor was about to sell the pledge because the money was not paid; the debtor requested him to purchase the land at a certain price, and, when he did so, he wrote a letter in which he intimated that he had sold the said land to the creditor. I wish to know whether the debtor can revoke this sale by tendering the principal and interest which are due? Marcellus answered that, according to the facts stated, he cannot revoke it.

35. Florentinus, Institutes, Book VIII.

Where something is due on account of both principal and interest from a party who owes money secured by pledges, whatever is received from the sale of the pledges must be credited upon the interest, which it is established is due at the time, and then, if there is anything left it must be credited on the principal. A debtor should not be heard if, when he is well aware that he is hardly solvent, he desires to make a choice as to the claim on which he prefers the pledge to be released.

(1) A pledge only transfers possession to the creditor the ownership of the property remaining in the debtor; the latter, however, can make use of his property by sufferance and also under a lease.

36. Ulpianus, On the Edict, Book XI.

The question arises how a person may be liable who delivers brass instead of gold to a creditor by way of pledge? Sabinus states most properly in this instance, that if, where gold has been given, the party substitutes brass, he is liable for theft; but if, when the gold was given, he substituted brass, he is guilty of a base act, but is not a thief. I think, however, that in this case also, the action of pledge will lie, and Pomponius says the same. Moreover he can be judicially punished on the ground of swindling, as has been very frequently set forth in rescripts.

(1) Again if anyone knowingly and deliberately gives me property in pledge which belongs to another, or if he encumbers to me property already encumbered to another, and does not inform me of the fact, he can be punished for the same offence. It is evident that, if the property is of considerable value, and is pledged only for a small sum of money, it must be said that the offence of swindling does not exist, and also that the actions on pledge and on fraud will not lie, because the party who received the property as a second pledge was not taken advantage of in any way.

37. Paulus, On Plautius, Book V.

If I rent to the owner a pledge which was delivered to me I will retain possession of the same by renting it, because before the debtor leased it he did not have possession, while I have the intention of retaining it, and the party who leases it has not the intention of acquiring the same.

38. Modestinus, Differences, Book I.

The authority of a guardian is necessary to a ward who receives property in pledge, on account of the danger of an action on pledge.

39. The Same, Opinions, Book IV.

Gaius Seius gave his land to Lucius Titius as a pledge for money loaned, and afterwards it was agreed between them that the creditor should have possession of the pledge for a certain time, by way of setoff against his money. But, before the time had expired, the creditor, in stating his last wish, provided by his will that one of his sons should have the said tract of land, and added, "which I bought of Lucius Titius," while in fact he had not bought it. Gaius Seius, who was the debtor, along with others signed this will. I ask whether, by the fact that he signed it he prejudiced himself in any way, since no instrument evidencing the sale was produced, but only the agreement that the creditor should be entitled to the crops for a certain time? Herennius Modestinus answered that the contract of pledge was not affected because the debtor had signed the will of the creditor in which he stated that he had purchased the pledge.

40. 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.

(1) The 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.

(2) The 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.

41. Paulus, Questions, Book III.

You gave the property of another in pledge, and afterwards you became the owner of the same; an equitable action on pledge is granted to the creditor. The same rule does not apply, if I become the heir of Titius who encumbered my property without my consent; for, under these circumstances, the right of recovery of the pledge is not granted the creditor; nor, by any means, is it sufficient, in order to render the equitable action on pledge applicable, that the owner should be the same party who also owes the money. But if he had agreed with respect to the pledge, so that his deceit can be established, he cannot properly resist the bringing of an equitable action against him.

42. 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.

43. 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.

(1) Titius 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.

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