THE DIGEST OR PANDECTS. BOOK XLVI.

TITLE I. CONCERNING SURETIES AND MANDATORS.

1. Ulpianus, On Sabinus, Book XXXIX.

A surety can be added to every obligation.

2. Pomponius, On Sabinus, Book XXII.

A surety can be taken for property which was loaned for use, or deposited, and he will be liable; even if the deposit or the loan was placed in the hands of a slave, or a ward, but only where those for whom security was given have been guilty of fraud or negligence.

3. Ulpianus, On Sabinus, Book XLIII.

He who has promised to furnish security is considered to have complied with the stipulation, if he gives anyone for this purpose who can be rendered liable and be sued. If, however, he gives a slave, or a son subject to paternal authority, under circumstances when an action De peculia cannot be granted, or a woman, who can avail herself of the aid of the Decree of the Senate, it must be said that he has not complied with the stipulation to furnish security. If he gives a surety who is not solvent, it is clear that he should be considered to have complied with the agreement, because he who accepted the surety approved him as solvent.

4. The Same, On Sabinus, Book XLV.

A surety can be taken in an action on mandate, or in one for business transacted, which I am about to bring against the person for whom I became surety.

(1) A surety is not only liable himself, but he also leaves his heir liable, because he occupies the position of a debtor.

5. The Same, On Sabinus, Book XLVI.

Julianus says that, generally speaking, he who becomes the heir of a person for whom he appeared as surety is released so far as the latter is concerned, and is only liable as the heir of the principal debtor. Finally, he says that if the surety becomes the heir of him for whom he made himself responsible, he will be liable as the principal debtor, but will be released as surety; still a principal debtor who succeeds a principal debtor is liable under two obligations; for it cannot be ascertained which one of them annuls the other; but, in the case of a surety and a principal debtor, this can be easily determined, because the obligation of the principal debtor is the more binding. When any difference exists between the obligations; it can be held that one is annulled by the other. Where, however, they are both of the same force, and it cannot be ascertained why one of them should be annulled rather than the other, he refers this matter to an example in which he desires to show that there is nothing new in the fact that two obligations may exist in the same person at the same time. This is his example. If one of two joint-promisors becomes the heir of the other, he will be liable to two obligations. Likewise, if one joint-stipulator becomes the heir of the other, he will benefit by two distinct obligations. It is evident that, if he instituted proceedings under one of them, he will make use of both; that is to say, because the nature of the two obligations which he had is such that, if one of them is brought into court, the other will also be disposed of.

6. The Same, On Sabinus, Book XLVII.

I stipulate with a debtor, but do not take a surety, and afterwards I wish a surety to be furnished. If I add a surety, he will be liable.

(1) It makes little difference whether I bind the surety absolutely, or from a certain time, or under some condition.

(2) A surety can, moreover, be furnished for a future as well as for a past obligation, provided this obligation is a natural one.

7. Ulpianus, Digest, Book LHI.

For where what has been paid cannot be recovered, it is proper that a surety for this natural obligation should be received.

8. Ulpianus, On Sabimis, Book XLVII.

In Greek, a surety is taken as follows: "In my good faith, I order, I say, I wish," or "I wish, with a certain determination of mind." If, however, anyone should say "I affirm," it will be the same as if he had uttered the words, "I say."

(1) It should also be remembered that a surety can be furnished for every kind of obligation, whether with reference to the property, verbally, or by consent.

(2) It should also be remembered that a surety can be taken for anyone who is liable under the Prætorian Law.

(3) A surety can be received after issue has been joined in the case, because the civil and natural obligation remains. This was admitted by Julianus, and is our practice. Hence, if the principal debtor loses his case, the question arises whether he can have recourse to an exception, for he is not released by operation of law. If he is not accepted for the payment of the judgment, but merely for the proceedings in court, it is very properly held that he can make use of an exception. Where, however, he has been taken for the entire case, he will not be entitled to an exception.

(4) Where a surety is given by a testamentary guardian he will be liable.

(5) If, however, the action is derived from a crime, we think that the better opinion is that the surety will be liable.

(6) And, generally speaking, no one doubts that a surety can be received in all kinds of obligations.

(7) The following rule is applicable to all those who are liable for others: namely, if they are made use of in order to impose more severe terms upon them, it has been decided that they will not be at all responsible. It is clear that they can be accepted in matters of inferior importance, for which reason a surety is very properly taken for a small amount. Again, the principal debtor being absolutely liable, the surety can be bound from a certain time, or under some condition. If, however, the principal debtor should be liable under a condition, and the surety absolutely, he will be released.

(8) If anyone should stipulate for Stichus, and receive a surety as follows, "Do you promise, on your good faith, to deliver Stichus, or pay ten aurei?", Julianus says that the surety will not be bound, because his condition is rendered harder, so that if Stichus should happen to die, he would still be liable.

Marcellus, however, says that he is not liable, not only because his condition is rendered more onerous, but also for the reason that he has been accepted rather for another obligation. Finally, a surety cannot be received for a person who has promised to pay ten aurei, as follows, "Do you promise to pay ten aurei, or deliver Stichus?" although, in this instance, his condition is not rendered more burdensome.

(9) Julianus also says that where anyone has stipulated for a slave, or ten aurei, and takes a surety as follows, "Do you promise to deliver a slave, or pay ten aurei, whichever I wish?" the surety will not be bound, because his condition is rendered more onerous.

(10) On the other hand, where anyone stipulates for "A slave, or ten aurei, whichever the stipulator wishes," he can properly take a surety under the following terms, "Ten aurei, or a slave, whichever you wish," for Julianus says that in this way the condition of the surety is improved.

(11) But if I interrogate the principal debtor as follows, "Stichus and Pamphilus?" and the surety as follows, "Stichus, or Pamphilus?" I shall put the question properly, because the condition of the surety is rendered less burdensome.

(12) There is no doubt whatever that one surety can be taken for another surety.

9. Pomponius, On Sabinus, Book XXVI.

Sureties can properly be taken for a part of the money, or for a part of the property.

10. Ulpianus, Disputations, Book VII.

When a creditor doubts whether the sureties are solvent, and one of them, who is selected by him to be sued, is ready to give security, so that his fellow-sureties may be sued for their shares at his risk, I hold that he should be heard; but only provided he offers security, and that all his fellow-sureties who are said to be solvent are at hand. For the purchase of the claim is not always easy when the payment of the entire debt is not free from difficulties.

(1) The action is divided between the sureties, where they do not deny their liability. For, if they do deny it, the benefit of division should not be granted. A son under paternal control can give security for his father, and his act will not be without effect. In the first place, because, when he becomes his own master, he can be held liable to the extent of his means; and, besides this, judgment can be rendered against him, even if he remains subject to his father's authority. Let us see, however, whether his father will be liable for the reason that he is held to have acted by his order. I think that this rule is applicable to all contracts; but if he became surety for his father without the knowledge of the latter, this action will not lie; still suit can be brought against his father on the ground that the proceeding was for the benefit of his property. It is clear that, if the emancipated son has paid the debt, he should be entitled to an equitable action, and the same action can be brought by him if he remains under the control of his father, and has paid the money for the latter, out of his peculium castrense.

11. Julianus, Digest, Book XII.

Where anyone has lent money to a son under paternal control in violation of the Decree of the Senate, and the son is dead, he cannot take a surety from his father, because he is entitled to no action, either civil or praetorian, against his father, and there is no estate for which sureties can become liable.

12. The Same, Digest, Book XLIII.

It is evident that a surety can properly be taken on account of the action De peculio, which will lie against the father.

13. The Same, Digest, Book XIV.

If you lend ten aurei to Titius, by my direction, and bring an action on mandate against me, Titius will not be released from liability; but I ought not to have judgment rendered against me in your favor, unless you assign to me the rights of action which you have against Titius.

Likewise, if you bring an action against Titius, I will not be released, but I will only be liable to you for the amount which you cannot collect from Titius.

14. The Same, Digest, Book XLVII.

When the principal debtor becomes the heir of his surety, the obligation of suretyship is extinguished. What, then, must be done? If the principal debtor is sued for the claim, and makes use of the exception to which the surety was entitled, a replication in factum should be granted, for recourse can be had to one on the ground of fraud.

15. The Same, Digest, Book LI.

If you have stipulated with me without any consideration, and I have given a surety, and am unwilling for him to make use of an exception, but prefer that he shall pay, in order that he may bring an action on mandate against me, the exception should be granted him, even against my consent; for he has more interest in keeping his money than in recovering it from the principal debtor, after having paid the stipulator.

If one of two sureties who have become liable to you for twenty aurei should either pay you, or promise to pay you five aurei, to prevent you from suing him, the other will not be released; and if you proceed to collect fifteen aurei from him, you will not be barred by an exception. If you attempt to collect the remaining five aurei from the former surety, you can be barred by an exception on the ground of fraud.

16. The Same, Digest, Book LIII.

A surety cannot be rendered liable to a person to whom the principal debtor is not liable. Wherefore, if a slave owned in common by Titius and Sempronius is specifically stipulated to be given to Titius, and his surety should be asked, "Do you promise to give this to Titius, or Sempronius?" Titius, indeed, can demand it from the surety, but Sempronius appears to have been introduced for the sole purpose that payment might be made to him before issue is joined in the case, while Titius is not aware of the fact, or is unwilling that this should be done.

(1) A person who has promised to pay at a certain place is, to some extent, subjected to a more severe condition than if he had been simply interrogated, for he cannot make payment in any other place than that in which he agreed to pay, if the stipulator is unwilling for him to do so. Wherefore, if I interrogate the principal debtor absolutely, and I accept the surety with the addition of payment in a certain place, the surety will not be liable.

(2) Even if the principal debtor, while at Rome, should promise to make payment at Capua, and the security at Ephesus, the surety will not be liable any more than if the principal debtor had promised to pay under a condition, and the surety had agreed to do so on a certain day, or had promised absolutely.

(3) A surety can be accepted whenever any civil or natural obligation, which is applicable to him, exists.

(4) Natural obligations are not estimated solely by the fact that some action can be brought on account of them, but also where the money, once paid, cannot be recovered. For although natural debtors cannot strictly be said to be indebted, still they may be considered such, and those who receive money from them to have obtained that to which they were entitled.

(5) Where a stipulation has been entered into which is to take effect at a specified time, and a surety has been accepted under a condition, the rights of the latter will remain in suspense, so that, if the condition is complied with before the time prescribed, he will not be liable; but if the time and the condition should coincide, or if the. condition should be fulfilled after the specified time has elapsed, he will be liable.

(6) When a surety is accepted under the following terms, "Will you be responsible if the principal debtor does not pay the forty aurei which have been lent to him?" it is probable that the intention was that if the principal debtor did not pay when called upon, the surety would be liable; but if the principal debtor, before being notified to pay, should die, the surety will be liable, because, even in this case, it is true that the principal debtor did not make payment.

17. The Same, Digest, Book LXXXIX.

It is usual to grant relief to sureties by compelling the stipulator to sell any rights of action which he may have against the others to him who is ready to pay the entire debt.

18. The Same, Digest, Book XC.

He who delegates his debtor is understood to pay as much money as is due to him; and therefore, if a surety delegates his debtor, even though he may not be solvent, an action on mandate can immediately be brought.

19. The Same, On Minicius, Book IV.

A slave became surety for a certain person without the knowledge of his master, and paid the money due, in his name. The question arose whether or not the master could recover the amount from the person to whom it had been paid.

The answer was that it was important to ascertain in whose name the slave had become surety, for if he had done so with reference to his peculium, then his master could not recover what he had paid out of his peculium, but anything which he had paid on account of his master could be recovered by him. If, however, he became surety for an amount greater than his peculium, any money belonging to his master, which he had paid, could also be recovered, and what he paid out of his peculium could be recovered by a personal action.

20. Javolenus, Epistles, Book XIII.

But where the owner of the slave paid the money, he cannot recover it from him for whom he became surety, but he can do so from the person to whom he paid it, since a slave cannot become liable as surety. Hence it follows that he cannot recover it from him for whom he became surety, as he himself is liable for the debt, and will not be released by the payment of money due under an obligation for which the slave was not responsible.

21. Africanus, Questions, Book VII.

An heir received a surety from the debtor of an estate, and then transferred the estate under the Trebellian Decree of the Senate. It is held that the obligation of the surety remains unimpaired. The same rule should be observed in this case which is applicable when an heir, against whom an emancipated son obtains praetorian possession of an estate, accepts a surety. Therefore, in both instances, the rights of action pass with the estate.

(1) There is nothing new in the fact that a surety is liable under two different obligations for the payment of the same sum of money; for if he was accepted from a certain day, and afterwards accepted absolutely, he will be bound by both obligations; and if a surety becomes the heir of his fellow-surety, the result will be the same.

(2) I lent money to your slave, you manumitted him, and then I accepted him as surety. If he gave security for the obligation which is payable to you within a year, the slave is said to be liable. If, however, it was done on account of the natural obligation, which is his own, it is better to hold that the agreement is void; for it is incomprehensible that a surety can become liable for himself.

But if this slave, after manumission, should become the heir of his surety, it is held that the obligation of suretyship continues to exist, and that the natural obligation will still remain, so that if the civil obligation is extinguished, he cannot recover what has been paid.

Nor can it properly be alleged in opposition to this, that when a principal debtor becomes the heir of his surety, the obligation of the surety is extinguished; for the reason that then the double civil obligation cannot exist with reference to the same person. And, on the other hand, if the surety should become the heir of the manumitted slave, the same obligation against him will continue to exist, although he is naturally liable, and no one can become surety for himself.

(3) If the stipulator should appoint his debtor his heir, he absolutely annuls the liability of the surety, whether the obligation of the debtor was a civil or a natural one; as no one can bind himself with reference to a third party while acting for the latter. When, however, the same stipulator appoints the surety his heir, there is no doubt that he, at once, cancels the sole obligation of the surety. The proof of this is, that if possession of the property of the debtor is delivered to the creditor, it must also be said that the surety will still remain liable.

(4) When you and Titius are jointly liable for the same sum of money, he who became surety for you can also answer as surety for Titius, although the same money is due to the same person; and this obligation will not be void, so far as the creditor is concerned. Indeed, in some cases, it will be productive of benefit, for instance, if he should become the heir of him for whom he previously became surety; for then, the first obligation having been extinguished through merger, the second one will continue to exist.

(5) When the surety becomes the heir of the stipulator, the question arises whether, as he himself has required payment, so to speak, from himself, he will be entitled to an action on mandate against the principal debtor. The answer was that, as the principal debtor remains liable, the creditor cannot be understood to have collected the money from himself, as surety. Therefore, he should bring an action under the stipulation, rather than one on mandate.

22. Florentinus, Institutes, Book VIII.

A surety can be accepted even before the estate has been entered upon, if the principal debtor is dead, because the estate performs the function of a person in the same way as a municipality, a decurion, and a partnership.

23. Marcianus, Rules, Book IV.

"If I stipulate for ten aurei for myself, or for Titius," Titius cannot take a surety, because he was added only for the purpose of payment.

24. Marcellus, Opinions.

Lucius Titius, desiring to become surety to Septicius for his brother, Seius, wrote to him as follows: "If my brother asks you, I request you to pay him the money, on my responsibility, and at my risk." After having written this letter, Septicius paid the money to Seius; and Titius, having afterwards died, left certain heirs, and among them his brother, Seius, a third part of his estate. If, because the action to which Septicius was entitled against his brother Seius was extinguished by merger, on account of the third part of the estate to which Seius had become the heir to his brother Titius, I asked whether Septicius could bring an action for the entire amount against the other heirs. Marcellus answered that an action on mandate could not be brought against the co-heirs of Seius for the larger part of the estate, but only for their hereditary shares.

25. Ulpianus, On the Edict, Book XL

Marcellus says that if anyone should become surety for a ward who has incurred liability without the authority of his guardian, or for a spendthrift, or an insane person, the better opinion is, that he will not be entitled to relief, as an action on mandate will not lie in their favor.

26. Gaius, On the Provincial Edict, Book VIII.

According to a Rescript of the Divine Hadrian, an obligation is not divided among sureties by operation of law. Therefore, if any one of them should die, without having an heir, before paying his share of the indebtedness, or should become poor, his portion of the liability will be added to that of the others.

27. Ulpianus, On the Edict, Book XXII.

Where there are several sureties, and one of them has been accepted absolutely, and another from a certain time, or under some condition, the one who was accepted absolutely is entitled to relief, as long as the condition can be fulfilled; that is, in such a way that, in the meantime, he can only be sued for an individual share.

If, however, he who was accepted under a condition should not be solvent at the time when it is fulfilled, Pomponius says that the case must be restored to the previous condition of absolute suretyship.

(1) Moreover, if one surety appears for another, or if there are several, the same rule which was established by the Divine Hadrian must be observed with reference to them.

(2) Again, if there is any doubt whether the principal surety is solvent or not, the means of the following surety must be added to his own.

(3) Pomponius says that relief should be granted to the heirs of a surety, just as it would be granted to the surety himself.

(4) If there is a surety who is at once the principal debtor, and a surety of the surety, the original surety cannot ask that the obligation be divided between himself and the one who has become responsible for him, for the original surety occupies the position of a debtor, and a debtor cannot request that the obligation be divided between him and his surety. Hence, if one of two sureties gives a surety, the obligation is not divided with reference to him for whom he became responsible; but the better opinion is, that it is divided so far as the surety himself is concerned.

28. Paulus, On the Edict, Book XXV.

If one surety maintains that the others are solvent, the exception should be granted him that he will pay, "If the others should prove insolvent."

29. The Same, On the Edict, Book XVIII.

If I have stipulated under an impossible condition, I cannot be compelled to furnish a surety.

30. Gaius, On the Provincial Edict, Book V.

Anyone can become surety for another, even if the promisor is not aware of the fact.

31. Ulpianus, On the Edict, Book XXIII.

If a surety or anyone else wishes to pay the creditor for the debtor, before the time when the claim becomes due, he should wait for the day when payment must be made.

32. The Same, On the Edict, Book LXXVI.

The exception relating to the principal debtor, and, indeed, where he is unwilling, as well as all the other advantages attaching to the case, are available by the surety and the other accessories who are liable.

33. The Same, On the Edict, Book LXXVII.

If Titius should bequeath a slave his freedom, and appoint him his heir, and I had previously asked for him, and had received security on.his account in case he actually belonged to Titius, it must be said that the right of action against him should be transferred, and if this is not permitted to be done, the stipulation will become operative.

If, however, the slave belonged to me, the plaintiff, and he should not enter upon the estate by my order, the sureties will be liable on the ground that no defence was made. But where the slave enters upon the estate by my order, the stipulation disappears.

It is clear that if the slave was mine, and I deferred the acceptance of the estate until I obtained a favorable decision in court, and then I order him to accept it, and, in the meantime, I wish to institute proceedings because the suit was not defended, the stipulation will not become operative, because an arbiter would not decide in this manner.

34. Paulus, On the Edict, Book LXXII.

Those who promise responsibility as sureties can assume a lighter, but not a heavier, burden. Therefore, if I stipulate for myself with the principal debtor, and I cause a surety to promise for me, or for Titius, Julianus thinks that the condition of the surety is better, because he can even pay Titius. If I have stipulated with the principal debtor for payment to myself, or to Titius, and with the surety only for payment to me, Julianus says that the condition of the surety is more onerous. But what if I should stipulate with the principal debtor for Stichus, or Pamphilus, and with the surety only for Stichus ? Will the surety be in a better or in a worse condition if he does not have the right of selection? It is true that his condition will be better, because he will be released from liability by the death of Stichus.

35. The Same, On Plautius, Book II.

When anyone becomes surety for a slave he is liable in full, even if there is nothing in the peculium of the slave. It is clear that if he becomes surety for the master, against whom he has a right of action De peculia, he will only be liable for the amount of the peculium at the time when judgment was rendered.

36. The Same, On Plautius, Book XIV.

Where a creditor, who has a principal debtor and sureties, receives the money due from one of the sureties, and transfers to him his rights of action, it may be said that they no longer exist, as he has received what he was entitled to, and all the others are released by the payment; but this is not the case, for he did not receive it by way of payment, but he, as it were, sold the claim on the debtor, and he still had the right of action, because he was obliged to assign these rights to the person who paid him.

37. The Same, On Plautius, Book XVII.

If anyone who has been released after the time has passed for the collection of a debt gives a surety, the surety will not be liable, as security given by mistake is void.

38. Marcellus, Digest, Book XX.

If I stipulate "For Stichus or Pamphilus, whichever the promisor may select," I cannot take a surety for Stichus or Pamphilus, whichever the surety may choose to be responsible for; because it would be in his power to give a different one from that which the principal debtor might select.

(1) I received a surety from Titius, who owed me ten aurei conditionally under the terms of a will, and I became his heir, and afterwards the condition upon which the legacy depended was fulfilled, I ask whether the surety is liable to me. The answer was, that if the legacy was bequeathed to you under a condition, and, after having received a surety from the testator you became his heir, you cannot consider the surety as liable, because there is no debtor for whom the surety can be liable, and there is nothing that is due to you.

39. Modestinus, Rules, Book II.

An action should not be granted to permit this surety to proceed against his fellow-surety; and therefore, if, of two sureties for the same amount, one, after having been selected by the creditor, makes payment in full, and the rights of action are not assigned to him, the other surety cannot be sued either by the creditor or by his fellow-surety.

40. The Same, Rules, Book HI.

Where there are two joint-debtors, and a surety is given by one or both of them, he can properly be accepted for the whole amount of the debt.

41. The Same, Opinions, Book XIII.

If sureties have been accepted for a sum which cannot be collected by a curator, and after the minor became of age, the amount could have been collected by the same curator, or by his heirs, and he who was a minor fails to assert his rights and becomes insolvent, a praetorian action can properly be brought against the sureties.

(1) The same authority gave it as his opinion, that if one of several mandators has judgment rendered against him in full and is notified to make payment, he can petition that all rights of action available against those who directed the same act to be performed be assigned to him.

42. Javolenus, Epistles, Book X.

If I accept a surety under the following terms, "Do you agree to be responsible for the delivery of a thousand measures of wheat, to be paid for with your money, as security for the ten aurei which I have lent?" the surety will not be liable, because he cannot become responsible for something different from what has been lent, because the estimate of the value of the property which is considered as merchandise can be made in money; just as a sum of money can be estimated in merchandise.

43. Pomponius, Various Passages, Book VII.

If, having stipulated with Titius, I accept you as surety, and afterwards I stipulate with another for the same money, and receive another surety, they will not be joint-sureties, for the reason that they are sureties in two different stipulations.

44. Javolenus, Epistles, Book XI.

You stipulated that certain work should be done to your satisfaction before a certain date, and you received sureties who, if it should not be done within the prescribed time, agreed to be liable for the amount that you would have paid for having it done; and because the work was not performed, you gave it to a contractor, and as the latter did not furnish security, you did the work yourself. I ask whether the sureties will be liable. The answer was, that according to the terms of the stipulation mentioned by you, the sureties will not be liable, for you do not do what was agreed upon in the stipulation, that is to say, you did not contract for the work to be performed, although you did so afterwards; for the contract which was subsequently made was just the same as if it had not been entered into, since you immediately began to do the work yourself.

45. Scævola, Digest, Book VI.

A surety for the vendor of two tracts of land, one of which was afterwards evicted, having been sued by the purchaser, had judgment rendered against him for a certain amount. The question arose whether he could bring suit against the heir of the vendor before the time when he could be forced to obey the judgment. The answer was that he could do so, but that there was good reason for the court to compel the surety either to be defended, or be released from liability.

46. Javolenus, On the Last Works of Labeo, Book X.

Whenever the law is opposed to sales, the surety is also released; and there is all the more reason for this, because the principal debtor can be reached by a proceeding of this kind.

47. Papinianus, Questions, Book IX.

If the penalty of deportation is imposed upon a debtor, Julianus says that a surety cannot be accepted for him, as the entire obligation against him is extinguished.

(1) If a son under paternal control accepts a surety in a matter having reference to his peculium as follows, "Do you become responsible for as much money as I may lend?" and, having become emancipated, he lends the money, the surety will not be liable to the father if the principal debtor is not, but on the ground of humanity he ought to be liable to the son.

48. The Same, Questions, Book X.

If Titius and Seia should become sureties for Mævius, the woman having been discharged, we will grant an action for the entire amount against Titius, as he could have known, and ought not to have been ignorant of the fact that a woman cannot become a surety.

(1) The following question seems to be similar; namely, if one surety obtains complete restitution on account of his age, should the other assume the entire burden of the obligation? He, however, ought only to be charged with it, if the minor should subsequently become security, on account of the uncertainty of restitution because of his age.

When, however, the minor was fraudulently induced by the creditor to become surety, relief should not be granted the creditor against the other surety; any more than if the minor, having been deceived by a novation, should desire a praetorian action to be granted him against his former debtor.

49. The Same, Questions, Book XXVII.

If an heir, omitting a debtor who has been released by a will, brings suit against his surety, the surety can take advantage of an exception based on fraud, on account of the dishonorable act of the heir; and the same exception would also have benefited the principal debtor, if he had been sued.

(1) If one of two heirs of a surety, through mistake, pays the entire amount due, certain authorities hold that he is entitled to a personal action, and therefore that his fellow-surety remains liable. They believe that the obligation of the co-heir continues to exist, even if suit should not be brought; because the creditor who, thinking that he is liable, pays a part to him who has discharged the entire indebtedness, will not be entitled to a personal action to recover this part.

Where, however, two sureties have been accepted, for example, for twenty aurei, and one of two heirs of the other surety pays the entire sum due to the creditor, he will, indeed, be entitled to a personal action to recover the ten aurei which he did not legally owe. But, could he recover the remaining five if the other surety was solvent, is a question which should be considered. For in the beginning, the heir or heirs of the surety should be heard, just as the surety himself should be; so that each of the sureties may be sued for his respective share. In both instances, the opinion that the payment of a sum of money which was not due should not be recovered is at once more harsh and more convenient, for a Rescript of the Divine Pius states this in the case of a surety who had paid the entire amount of the claim.

(2) Where a surety, who promised at Rome that he would pay a sum of money at Capua, and if the promisor should be at Capua, the question arose whether he could immediately be sued. I answered that the surety would not immediately be liable any more than if he had made the promise at Capua, when the principal debtor had not been able to reach that city, and that it makes no difference if no one "doubts that the surety would not yet be liable, for the reason that the promisor himself was not.

On the other hand, if anyone should say that because the debtor is at Capua the surety is immediately liable, without taking into consideration the time to which he was tacitly entitled; the result would be that, in this case, the surety could be sued at a time when the debtor himself could not be, if he were at Rome. Therefore, it is our opinion that the obligation of suretyship includes the implied condition of necessary time to which both parties, that is to say, the promisor as well as his surety, are entitled; since if a different conclusion was arrived at, this would be understood to impose a more burdensome condition upon the surety, in violation of the rule of law.

50. The Same, Questions, Book XXXVII.

A creditor, who became the heir to a portion of the estate of his debtor, accepted his co-heir as surety. So far as his own share of the estate is concerned, the obligation is extinguished by merger or (more correctly speaking) by the power of payment. But, with reference to the share of the co-heir, the obligation remains unimpaired, that is to say, not the obligation of his suretyship but the hereditary obligation, since the larger one has rendered the smaller of no force or effect.

51. The Same, Opinions, Book HI.

The action should be divided between those sureties who have become responsible for the entire amount, and their own equal shares. The case would be different, where the following words were used, "Do you promise to be responsible for the entire amount, or your respective share of the estate," for then it is settled that each one will only be liable for his individual share.

(1) A surety who has paid a portion of the amount due either in his own name, or in that of a promisor, cannot refuse to have suit brought against him for the division of the remainder. For the amount which each of them owes individually should be divided between those who are solvent at the time of the judgment. It is, however, more equitable to come to the relief of the party who paid by means of an exception if the other was solvent at the time when issue was joined.

(2) Two joint-debtors gave separate sureties. The creditor is not obliged against his will to divide the actions between all the sureties, but only between those who became responsible for each of the debtors.

It is clear that if he wishes to divide his action among all of them, he cannot be prevented from doing so, any more than if he should sue the two debtors for their respective shares of the debt.

(3) A creditor is not compelled to sell a pledge, if, having abandoned the pledge, he wishes to sue the person who simply became surety.

(4) The action having been divided among the sureties, some of them, after issue was joined, ceased to be solvent; but this fact has no reference to the responsibility of one who is solvent, nor will the plaintiff be protected in case of his minority, for he is held not to have been deceived when he had recourse to the Common Law.

(5) Where the property of a surety against whom judgment has been rendered is claimed by the Treasury, and the action is afterwards divided between the sureties, the Treasury will be considered to occupy the position of an heir.

52. The Same, Opinions, Book XI.

The loss of a pledge by the ruin of a house affects the surety as well as the principal debtor. Nor does it make any difference if the surety was accepted as follows, "At least as much as may be realized over and above the value of the pledge, if sold," for, by these words it is agreed that the entire debt shall be included.

(1) The action having been divided among the sureties, if the party against whom judgment was rendered ceases to be solvent, the fraud or negligence of the guardians who could have obtained the execution of the judgment will prejudice them. For if it is established that the action having been divided between sureties who were not solvent, relief by means of complete restitution will be applied for in the name of the ward.

(2) It is settled that sureties who have been given by farm tenants are liable for the money expended in the cultivation of the land, because this kind of an agreement draws to itself the obligation of a lease. Nor does it make any difference whether they render themselves liable immediately, or after some time has elapsed.

(3) Where there are several mandators of the same sum of money, and one of them is selected to be sued, the others are not released from liability by his discharge, but all of them will be released by the payment of the money.

53. The Same, Opinions, Book XV.

The sureties of a person accused of a capital crime may properly be sued under a contract, and without being able to oppose an exception pleaded by the creditor, who has accused the principal debtor.

54. Paulus, Questions, Book HI.

If the creditor who received a surety for money lent is deceived in the contract of pledge, he can bring the contrary action on pledge; and, in this action, his entire interest will be included. This proceeding, however, does not affect the surety, for he has become responsible, not for the pledge, but for the money loaned.

55. The Same, Questions, Book XI.

If I stipulate as follows with Seius, "Do you promise to pay any sum of money which I may lend to Titius, at any time?" and I receive sureties, and afterwards very frequently lend Titius money, Seius, as well as his sureties, will certainly be liable for all the sums loaned, and anything that can be obtained from his property should be credited equally upon all the debts.

56. The Same, Questions, Book XV.

If anyone should swear that he will give his services for a person who is not a freedman, and becomes his surety, he will not be liable.

(1) Likewise, when a son stipulates with his father, or a slave with his master, and a surety is accepted, he will not be liable; for no one can be bound to the same person for the same thing. On the other hand, when a father stipulates for his son, or a master for his slave, the surety will be liable.

(2) If you lend money belonging to another, as if it was your own, without any stipulation, Pomponius says that the surety will not be liable. But what if the money having been expended, the right to bring a personal action for recovery is established? I think that the security will be liable, for he is considered to have been accepted in order to be responsible for everything which might arise out of the payment of the money,

(3) A surety can be taken in an action of theft, and also for anyone who has violated the Aquilian Law. The rule is different in popular actions.

57. Scævola, Questions, Book XVIII.

A surety cannot be sued before the principal debtor becomes liable.

58. Paulus, Questions, Book XXII.

If, having stipulated with a tenant, I received a surety, the stipulation provides for all payments of rent, and therefore the surety will be liable for all of said payments.

(1) When, by his act, the principal debtor perpetuates the obligation, that of the surety also continues to exist; for instance, if he was in default in delivering Stichus, and the latter died.

59. The Same, Opinions, Book IV.

Paulus gave it as his opinion that a surety to whom pledges given by his fellow-sureties have been transferred, does not appear to be substituted in the place of the purchaser, but only in that of him who received the pledges, and therefore he must be accountable for the crops and the interest.

60. Scævola, Opinions, Book I.

He also held that whenever the principal debtor was discharged by his creditor, in such a way that a natural obligation remained, the surety continued to be liable; but when the obligation passed by a species of novation, the surety should be released either by law, or by means of an exception.

61. Paulus, Opinions, Book XV.

If, as has been stated, when money is lent it was agreed that it should be paid in Italy, it should be understood that the mandator has contracted in the same manner.

62. Scævola, Opinions, Book V.

If the surety has notified the creditor to compel the debtor to pay the money, or sell the pledge, and he does not attempt to collect the claim, can the surety bar him by an exception on the ground of fraud ? The answer was that he can not do so.

63. The Same, Opinions, Book VI.

It was agreed between a creditor and her debtor, that if the hundred aurei which she had lent were not paid as soon as they were demanded, that the creditor should be permitted within a specified time to sell certain ornaments which had been given by way of pledge, and, if the proceeds of the sale amounted to less than what was due as principal and interest, the difference should be paid to the creditor; and a surety was furnished. The question arose whether the surety would be liable for the entire amount. The answer was, that, according to the facts stated, the surety would be liable only for whatever was not realized by the sale of the pledge.

64. Hermogenianus, Epitomes of Law, Book II.

A surety who has tendered money to a minor of twenty-five years of age, and, apprehensive of complete restitution, has sealed and deposited it in a public place, can immediately bring an action on mandate.

65. The Same, Epitomes of Law, Book VI.

Just as the principal debtor is not liable unless he makes a personal promise, so likewise sureties are not bound unless they themselves agree to pay something or perform some act; for they promise without effect when they contract for the principal debtor to pay, or do something, because to promise the act of another is void.

66. Paulus, On Neratius, Book I.

If a slave belonging to another becomes surety for Titius, and pays the debt, Titius will be released from liability, if the master of the slave brings an action on mandate against him; for he who brings such an action is considered to have ratified the payment.

67. The Same, On Neratius, Book III.

After having made use of an exception, which should have benefited you, an unjust decision was rendered against you. You can recover nothing by virtue of the mandate, for the reason that it is more equitable that the wrong done to you should not be redressed rather than be transferred to another; provided that, through your own negligence, you caused the unjust decision to be rendered against you.

68. The Same, Decrees, Book III.

It has been decided that the sureties of magistrates, who have not promised to be liable for penalties or fines, should not be sued.

(1) Petronius Thallus and other persons became sureties for Aurelius Romulus, a farmer of the revenue, for the sum of a hundred aurei annually. The Treasury seized the property of Romulus as having a claim upon it, and sued the sureties for both principal and interest, which they refused to pay. The obligation of the sureties having been read, and they having bound themselves only for a hundred aurei every year, and not for the entire amount of the lease, it was decided that they were not liable for the interest, but that everything which had been collected from the property of Romulus should first be credited upon the interest, and the balance upon the principal; and if there was any deficit, recourse should be had to the sureties, just as in the case of the sale of pledges by a creditor.

(2) Sureties cannot be sued when the principal debtor has been released by a compromise.

69. Tryphoninus, Disputations, Book IX.

A guardian appointed for the son of a man to whom he was liable as surety should collect payment from himself, and even though released by lapse of time, he, as well as his heir, will still be liable in an action on guardianship, because proceedings are instituted against him on account of the guardianship and not as surety.

And if the guardian makes payment, not as surety, but in his fiduciary capacity, even though he may have been released by lapse of time, I held that he would be entitled to an action on mandate against the principal promisor; for the right to collect the debt attaches to both of these conditions; as, by payment, he has released the principal promisor from the obligation with reference to which he became surety for him, and not the title of the action, but the consideration of the debt should be taken into account. For although the guardian, who is also liable to his ward as surety, made payment with the authority of his ward, because the principal promisor was released, he who is both guardian and surety will also be freed from liability; which cannot be done by his own authority, even if he made payment, not with the intention of releasing himself, but especially for the purpose of releasing Titius, and he will be entitled to an action on mandate against him.

70. Gaius, On Oral Obligations, Book I.

If I stipulate conditionally with a principal debtor, I can bind a surety for both this condition and another, provided I unite .them; for, unless both of them should be fulfilled, he will not be liable, as the principal debtor is bound by one condition alone. If, however, I separate them, the condition of the surety will become more onerous, and on this account he will not be liable; because, whether a condition will affect both of the parties bound, or only one of them, it will be considered to hold him; while the principal debtor will not be liable unless the common condition is fulfilled. Therefore, either the surety will not be liable at all, or, which is the better opinion, he will be liable if the common condition is previously fulfilled.

(1) When sureties are interrogated under different conditions, it is a matter of importance to ascertain which one was first complied with. If it was the one imposed upon the principal debtor, the surety will also be liable when this condition is fulfilled, just as if from the very beginning the principal debtor had been absolutely bound, and the surety had been bound under a condition. On the other hand, however, if the condition of the surety should first be complied with, he will not be liable, just as if he had been absolutely bound from the beginning, and the principal debtor was only bound conditionally.

(2) When the principal debtor is liable for a tract of land, and the surety is accepted for the usufruct, the question arises whether the surety is liable to a less extent, or, indeed, whether he is liable at all, as having promised something else. It does seem to us to be doubtful whether the usufruct is a part of the property, or something which exists by itself. But as the usufruct is a right attaching to the land, it would be contrary to the Civil Law for the surety not to be bound by his promise.

(3) A surety can be accepted by a slave, just as his master, himself, can legally accept one for the amount due to him; and there is no reason why the surety should not be interrogated by the slave

himself.

(4) If you should stipulate with an insane person, it is certain that you cannot take a surety; for not only is the stipulation itself void, but no business at all is understood to have been transacted. If, however, I should accept a surety for an insane person, who is liable by law, the surety will also be liable.

(5) When it is commonly asserted that a surety cannot be received for criminal offences, it should not be understood that anyone who has been robbed cannot take a surety for the payment of the penalty for theft, as there is a good reason that penalties incurred by crimes should be paid; but rather in the sense that a person cannot bind the surety for part of the proceeds of a theft, which he desires to be given to him by someone with whom he committed the offence; or where, by the advice of another, he was induced to perpetrate a theft, he cannot take a surety from him with reference to the penalty for the crime.

In these instances, the surety does not become liable, because he is not furnished in a valid transaction, and partnership in an illegal act is of no force or effect.

71. Paulus, Questions, Book IV.

Uranius Antoninus became mandator for Julius Pollio and Julius Rufus, for money which the latter had borrowed from Aurelius Palma, they being joint-debtors of the latter. The property of Julius escheated to the Treasury, and at the same time, the Treasury became the successor of the creditor. The mandator alleged that he was relieved of liability by the law of merger, because the Treasury had succeeded the creditor, as well as the debtor. And, indeed, if there was but one debtor, I do not doubt that the surety, as well as the mandator, would be released; for even if an action should be brought against the principal debtor, the mandator would not be released, still, when the creditor succeeded the debtor, the obligation was disposed of, as it were, by the right of payment, and the mandator was also released, for the-additional reason that no one can be mandator for the same person to the same person.

But when there are two joint-promisors, and the creditor of one of them becomes his heir, there is good reason to doubt whether the other is not also released; just as if the money had been paid, or the person having been removed, whether the obligation is merged. I think that, by the acceptance of the estate, the principal debtor is released by the merger of the obligation, and that, on this account, his sureties are also released, because they cannot be liable to a person for himself, and, as they cannot begin to be in that position, so they cannot remain in it. Therefore, the other joint-debtor for the same sum of money is not released, and on this account, neither his surety nor his mandator can be relieved of liability. It is evident that, because he who had judgment rendered against him in the action on mandate can even select his creditor, he will be entitled to an exception on the ground of fraud, if suit is brought against him.

The creditor can proceed against the other debtor, either for the whole amount of the claim, if no partnership existed, or for a portion of it if the debtors were partners. If, however, the creditor should become the heir of the surety, or the surety the heir of the creditor, I think that it is settled that the principal debtor will not be released by the merger of the obligation.

(1) If we suppose that one of certain joint-debtors agreed that suit should not be brought against him, and the mandator afterwards made payment, he can also bring an action on mandate against the person with whom he made the agreement, for the agreement of the creditor does not deprive him of his right of action against a third party.

(2) It is established that a mandator is liable even if he directs a creditor to lend money, who is about to lend it at interest.

72. Gaius, On Oral Obligations, Book HI.

If a surety should bind himself under the condition that a ship will arrive from Asia, and I accept him with the understanding that the obligation will only render him liable during his lifetime, and while the condition is pending he receives a release from me, and the surety dies before the condition is fulfilled, I can immediately bring suit against the principal debtor, because even if the condition should be fulfilled, it could never establish an obligation against one who is already dead, and could not confirm the release which I had granted.

73. Paulus, On the Edict, Book LXXVI.

An agent brought a real action, and gave security that his principal would ratify what he had done. Having afterwards lost his case, his principal, on his return, brought suit for the same property, and the defendant, being in possession, refused to surrender it, and for this reason judgment was rendered against him for a considerable sum. The sureties are not liable for any more, as they are not to blame because the party in possession paid a penalty.

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TITLE II. CONCERNING NOVATIONS AND DELEGATIONS.

1. Ulpianus, On Sabinus, Book XLVI.

Novation is the transfer and transmission of a former debt into another civil or natural obligation; that is to say, when from the preceding liability a new one is created in such a way that the former is destroyed; for novation derives its name from the term "new," and from a fresh obligation.

(1) It is of no importance what the character of the first obligation may be, whether it is natural, civil, or praetorian, or whether it is oral, real, or based on consent. Therefore, whatever it is, it can be verbally renewed, provided the following obligation is binding either civilly or naturally, for instance, where a ward promises without the authority of his guardian.

2. The Same, On Sabinus, Book XLVHI.

All matters are susceptible of novation, for every contract, whether verbal or otherwise, can be substituted in this manner, and pass from any kind of an obligation whatsoever into an oral one, provided we know that this is done in such a way that the obligation is changed in this way. If, however, this is not the case, there will be two obligations.

3. Pomponius, On Sabinus, Book I.

A person who has been deprived of the management of his property cannot renew his obligation, unless he renders his position better.

4. Ulpianus, On Sabinus, Book V.

If I delegate to you someone who owes me an usufruct, my obligation is not altered by novation, although he who has been delegated can protect himself against me by an exception on the ground of bad faith, or by one in factum; not only while the usufruct is enjoyed by the person to whom I delegated him, but even after his death, because, after I die, he to whom the usufruct was delegated will continue to hold it to the disadvantage of the debtor.

This also applies to all obligations attaching to the person.

5. The Same, On Sabinus, Book XXXIV.

An obligation can be subjected to novation at a prescribed time, and even before the time arrives. Generally speaking, it is settled that a stipulation made for a specified period can become a novation; but that suit cannot be brought under the stipulation before the time arrives.

6. The Same, On Sabinus, Book XLVI.

If I should stipulate as follows: "Will you be responsible for any amount which I may not be able to collect from Titius, my debtor?"

a novation is not created, because the transaction is not for that purpose. When anyone has lent money without a stipulation and immediately makes one, there is but one contract. The same thing must be said where the stipulation was made first, and the money counted afterwards.

7. Pomponius, On Sabinus, Book XXIV.

For, when we stipulate for a loan, I do not think that the obligation arises from the counting of the money, and that afterwards the novation is created by the stipulation; because the intention is that there should be but one stipulation, and the counting of the money is understood to be done merely for the purpose of completing the contract.

8. Ulpianus, On Sabinus, Book XLVI.

If I stipulate for the delivery of Stichus to me, and when the promisor fails to deliver him, I again stipulate for him, the promisor is no longer responsible for the risk, as liability for the default has been released.

(1) Where legacies or trusts are included in the stipulation, and the intention was that it should be subjected to novation, this will take place; and if they were bequeathed absolutely, or to take effect at a certain time, novation occurs immediately. When, however, they were conditional, it will not take place at once, but when the condition is complied with; for, otherwise, where anyone stipulates for a prescribed time, he immediately creates a novation, if such was the intention, as it is certain that the date will arrive at some time or other. But where anyone stipulates under a condition, novation does not become operative immediately unless the condition is fulfilled.

(2) Where anyone stipulates with Seius, as follows, "Do you promise to pay whatever I stipulate for with Titius?" and I afterwards stipulate with Titius, does a novation take place so that Seius alone will liable? Celsus says that a novation does take place, provided this was the intention, that is to say that Seius should owe what Titius promised to pay. For he asserts that the condition of the first stipulation is complied with and novation occurs at the same time. This is our practice.

(3) Celsus also says that by the stipulation of paying the judgment, the action to enforce judgment is not subjected to novation; and this is reasonable, because in this stipulation the only thing involved is that a surety shall be provided, and that there shall be no departure from the obligation of the judgment.

(4) If I stipulate with a third party for the ten aurei which Titius owes me, or the ten which Seius owes me, Marcellus thinks that neither one of them is released, but that the third party can select him for whom he wishes to pay the ten aurei.

(5) When a husband stipulates with his wife for a dowry which was promised to her by a stranger, the dowry will not be doubled, but it has been decided that a novation will take place, if this was the intention. For what difference does it make whether she or someone else makes the promise? For if another person promises to pay what I owe, he can free me from liability, if this is done for the purpose of novation. If, however, he did not intervene in order to make a novation, both parties will, in fact, be liable; but if one of them pays, the other will be released. Still, if anyone stipulates for what is due to me, he does not deprive me of my right of action, unless he stipulates with my consent; but he who promises what I owe releases me from liability, even if I am unwilling that this shall be done.

9. The Same, On Sabinus, Book XLV1I.

If a ward, having stipulated without the authority of his guardian, arrives at puberty, and ratifies the stipulation for the purpose of making a novation, the right of action on guardianship will be extinguished. If he does not ratify it, even though he brings suit on guardianship, he will also be entitled to one under the stipulation; but the judge, who has jurisdiction of the action on guardianship, ought not to render a decision against the guardian, without releasing him from the stipulation.

(1) Anyone who stipulates under a condition which is certain to be fulfilled is considered to have stipulated absolutely.

(2) Where anyone stipulates for a driveway, and afterwards for a right of passage, his act is void. Again, where anyone stipulates for an usufruct, and also for an use, his act will be void. Where, however, he stipulates for a right of passage, and afterwards for a driveway, he stipulates for something in addition, for a right of passage is one thing and the right to drive is another.

10. Paulus, On Sabinus, Book XI.

He to whom payment can legally be made can also make a novation, except in the case where I stipulate for myself, or for Titius; for Titius cannot make a novation, although payment can be legally made to him.

11. Ulpianus, On the Edict, Book XXVII.

To delegate is to give another debtor to a creditor, or to one whom he may direct, instead of one's self.

(1) Delegation takes place either by stipulation, or by joinder of issue in court.

12. Paulus, On the Edict, Book XXXI.

If anyone should delegate a debtor whom he knew could protect himself by an exception on the ground of fraud, he will resemble a person who makes a gift under such circumstances, as he is considered to rely upon an exception to annul his act. If, however, he promises his creditor through ignorance, he cannot have recourse to an exception against him because the latter receives what is his own; but he who delegated him will be liable in a personal action for recovery, or one for an uncertain amount, if the money was not paid, or for a certain amount if it was paid; and therefore, when he has paid it, he can bring an action on mandate.

13. Ulpianus, On the Edict, Book XXXVIII.

If I delegate to my creditor, as my debtor, someone who does not owe me, there will be no ground for an exception, but a personal action will lie against the person who delegated him.

14. The Same, Disputations, Book VII.

Whenever anything which is absolutely due is promised conditionally, for the purpose of creating a novation, the novation does not take place immediately, but only after the condition has been complied with. Therefore, if Stichus should happen to be the subject of the obligation, and should die while the condition is pending, the novation will occur, because the property, which was the object of the stipulation, was not in existence at the time when the condition was fulfilled. Hence Marcellus thinks that, even if Stichus was included in the conditional obligation, after he who promised him was in default, the default will be purged, and Stichus will not be included in the ensuing obligation.

(1) But where anyone, for the purpose of making a novation, stipulates absolutely for something which is due under a condition, he does not immediately create the novation, although an absolute stipulation seems to produce some effect, but the novation takes place when the condition is fulfilled. For a condition, once having been complied with, renders the first stipulation operative, and transfers it to the second. Therefore, if the promisor should be deported while the condition is pending, Marcellus says that novation will not take place, even if the condition is fulfilled, because there is no one who will be liable when this occurs.

15. Julianus, Digest, Book XIII.

Where a creditor stipulates for a penalty if payment should not be made at the designated time, and a novation takes place, the stipulation does not become operative.

16. Florentinus, Institutes, Book VIII.

A slave cannot make a novation without the consent of his master, even where the obligation involves his peculium, but he rather creates a new obligation than renews the former one.

17. Ulpianus, On the Edict, Book VIII.

Anyone can delegate his debtor, either by writing or by a gesture, when he is unable to speak.

18. Paulus, On the Edict, Book LVII.

When novation is properly made, all liens and pledges are released, and interest ceases to be due.

19. The Same, On the Edict, Book LXIX.

The exception on the ground of fraud, which can be opposed to anyone who delegates his debtor, does not affect the creditor to whom the debtor is delegated.

The same rule applies to all similar exceptions, and, indeed, even to that which is granted a son under paternal control by the Decree of the Senate. For he cannot make use of the exception against the creditor to whom he has been delegated by one who lent money contrary to the Decree of the Senate, because, making this promise, nothing is done in violation of the Decree of the Senate, and therefore he cannot recover what he has paid, any more than he can recover what he has paid in court.

The case is different where a woman has promised to pay contrary to the Decree of the Senate, for security is included in the second promise. The same rule applies to a minor who, having been deceived, is delegated; for, if he is still a minor, he is deceived a second time. It is otherwise if he has passed the age of twenty-five years, although he still can obtain restitution against his first creditor. Therefore, exceptions against his second creditor are refused him; because in private contracts and agreements the claimant cannot readily ascertain what transactions have taken place between the person delegated and his original debtor; or, even if he does know, he should simulate in order not to appear too inquisitive; and hence it is but reasonable that the exception against the original debtor should be refused him.

20. The Same, On the Edict, Book LXXII.

We can make a novation ourselves, if we are our own masters, or by others who stipulate with our consent.

(1) A ward cannot make a novation without the authority of his guardian; a guardian can do so, if it is to the interest of his ward, and as agent likewise, if he has charge of all the property of his principal.

21. Pomponius, On Plautius, Book I.

If I order my debtor to pay you, you cannot immediately, while you are stipulating, make a novation, although the debtor, by paying you, will be released.

22. Paulus, On Plautius, Book XIV.

If anyone, during my absence, stipulates with my debtor for the purpose of making a novation, and I afterwards ratify his act, I renew the obligation.

23. Pomponius, On Plautius, Book III.

A son under paternal control cannot make a novation of the action of his father, without the knowledge of the latter.

24. The Same, On Plautius, Book V.

A novation cannot arise from a stipulation which does not become operative. Nor can it be stated, in opposition to this, that if I stipu-

late with Titius, with the intention of renewing the debt which Sempronius owes me, under a condition, and while the condition is pending Titius should die, although the condition may have been fulfilled before the estate was entered upon, novation will take place; for, in this instance, the stipulation is not extinguished by the death of the promisor, but passes to the heir who, in the meantime, represents the estate.

25. Celsus, Digest, Book I.

No one has a right to renew an old debt by novation, solely because payment can sometimes legally be made to him. For payment can sometimes properly be made to those who are under our control, when none of them can, by himself, in accordance with law, substitute a new obligation for the old one.

26. The Same, Digest, Book III.

Where a man to whom Titius owes ten aurei, and Seius fifteen, stipulates with Attius that he shall pay him what one or the other of them owes, both the obligations are not subjected to novation; but it is in the power of Attius to pay for whichever one he wishes, and release him.

suppose, however, that it had been agreed that he should pay one or the other of the claims; for otherwise, he would be considered to have stipulated for both, and both would have been subjected to novation, if this had been intended.

27. Papinianus, Opinions, Book III.

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

28. The Same, Definitions, Book II.

Having stipulated for the Cornelian Estate, I afterwards stipulated for the value of the land. If the second stipulation was not made with the intention of creating a novation, the novation will not take place; but the second stipulation, by the terms of which not the land, but the money is due, will stand. Therefore, if the promisor should convey the land, the second stipulation will not be extinguished by operation of law, not even when the plaintiff institutes proceedings under the terms of the first one.

Finally, if the land, being improved, or having subsequently deteriorated without the fault of the debtor, is claimed, the present estimate may properly be considered; and if, on the other hand, its value is demanded, the appraisement at the time of the second stipulation should be accepted.

29. Paulus, Questions, Book XXIV.

There are many examples which show the distinction existing between a voluntary novation, and one derived from a judgment. The privileges of dowry and guardianship are lost, if the dowry is included in the stipulation after a divorce has taken place, or the action of guardianship is renewed by novation after puberty; if this was the express intention which was not referred to by anyone when issue was joined. For, in bringing suit, we do not render our position worse but better, as is usually said with reference to actions which can be terminated by lapse of time, or by death.

30. The Same, Opinions, Book V.

Paulus gave it as his opinion that if a creditor, with the intention of making a novation, should stipulate with Sempronius in such a way as to entirely abandon the first obligation, the same property could not be encumbered by the second debtor without the consent of the first.

31. Venuleius, Stipulations, Book III.

If I stipulate for something to be given me, and I afterwards stipulate for the same thing with the same person under a condition, with the intention of making a novation, the property must remain in existence in order for there to be ground for the novation, unless the promisor was required to give it. Therefore, if you are obliged to deliver me a slave, and you are in default in doing so, you will be liable even if the slave should die, and if, before he dies, you are already in default, and I stipulate with you for the same slave under a condition, and the slave afterwards dies, and then the condition is fulfilled, as you are already liable to me under the stipulation, novation will alscr take place.

(1) Where there are two joint-stipulators, the question arises whether one of them has the right to make a novation, and what right each acquires for himself. Generally speaking, it is established that payment may properly be made to one, and that if one institutes proceedings he brings the entire matter into court, just as where one is released, the obligation of both is extinguished. From this it may be gathered that each of them acquires for himself, just as if he alone had stipulated; except that each of them, by the act of him with whom the stipulation was jointly made, can lose his debtor. According to this, if one of the joint-stipulators enters into another agreement with a third party, he can, by novation, release him from liability to the other joint-stipulator, if such was his express intention; and there is all the more reason for this, as we think that the stipulation resembles payment.

Otherwise, what shall we say if one of them delegates the common debtor to his creditor, and the latter stipulates with him; or a woman orders a tract of land to be promised to her husband by way of dowry; or, if she was about to marry him, she should promise him the land as dowry? The debtor would be released, so far as both parties are concerned.

32. Paulus, On Neratius, Book I.

You are obliged to deliver me a slave, and Seius must pay me ten aurei. I stipulate for the purpose of making a novation with one of you, as follows, "What you, or Seius must give." Both obligations are subjected to novation.

Paulus: This is reasonable, because both of them are included in the last stipulation.

33. Tryphoninus, Disputations, Book VII.

If Titius, desiring to make a donation to me, and having been delegated by me, promises my creditor, who is the stipulator, he will not be entitled to use the exception against him in such a way as to have judgment rendered against him to the extent of his means; but he can properly make such a defence against me, because I demanded what he had already given him. The creditor, however, can collect the debt.

34. Gaius, On Oral Obligations, Book HI.

It cannot be doubted that a son under paternal control or a slave who is permitted to manage his own peculium has also the right to make the debts of the peculium the subject of novation, if the parties stipulate; and this is by all means the case if his condition will be improved by doing so. For if he directs a third party to stipulate, it makes a difference whether this is done with the intention of making a donation, or in order that he may transact the business of the son or the slave, and on this ground the action on mandate with reference to the peculium is acquired by them.

(1) There is no doubt whatever that the relative of an insane person, or the curator of a spendthrift, has the right of novation, if this is to the advantage of the said insane person or spendthrift.

(2) In a word, we should remember that there is nothing to prevent the novation of several obligations by one agreement, as for instance, if we stipulate as follows, "Do you promise to pay what Titius and Seius are obliged to pay me?" for although they are liable for different reasons, still both are released by the right of novation, as the liability of both is united in the person of him with whom we now stipulate.

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TITLE III. CONCERNING PAYMENTS AND RELEASES.

1. Ulpianus, On Sabinus, Book XLIII.

Whenever a debtor, who owes several debts, pays one of them, he has the right to state which obligation he prefers to discharge, and the one which he selects shall be paid, for we can establish a certain rule with reference to what we pay. When, however, we do not indicate which debt is paid, he who receives the money has the right to say on what claim he will credit it, provided he decides that it shall be credited on a debt which, if he himself owed it, he would have paid, and be discharged from liability, where he actually owed it, that is to say a'n obligation which is not in dispute; or one for which no surety has been given, or which has not yet matured; for it appears perfectly just for the creditor to treat the property of the debtor as he would treat his own. Therefore, the creditor is permitted to select the debt which he desires to be paid, provided that he makes his selection as he would do with reference to his own property; he must, however, decide immediately, that is, as soon as payment is made.

2. Florentinus, Institutes, Book VIII.

When this is done, the creditor should be at liberty not to receive the money, or the debtor not to pay it, if either of them desires it to be applied to the settlement of some other claim.

3. Ulpianus, On Sabinus, Book XLIII.

This, however, is not permitted to be done, after any time has elapsed. The result is, that he who receives it should always be considered to have credited the payment on the most onerous debt, for he would have done this with reference to an obligation of his own.

(1) Where nothing has been said by either party on this point with reference to debts which are payable on a certain date, or under a specified condition, that debt will be considered to have been discharged whose day of payment has arrived.

4. Pomponius, On Quintus Mucius, Book HI.

And this preferably applies to a debt which I owe in my own name, rather than to one for which I have given sureties; and rather to one which a penalty is attached than to one in which no penalty is involved; and rather to one for which security has been furnished than to one which has been contracted without it.

5. Ulpianus, On Sabinus, Book XLIII.

With reference to debts which are due at the present time, it is decided that whenever any money is paid without stating on what debt it shall be credited, it should be considered to have been paid on the one which is most burdensome. If, however, one is not more burdensome than another, that is to say, if all the obligations are alike, it should be paid upon the oldest one. A debt which is given with security is considered more burdensome than one which has been contracted without it.

(1) If anyone has given two sureties, he can pay in such a way as to release one of them.

(2) The Emperor Antoninus, with his Divine Father, stated in a Rescript that when a creditor obtains his money by the sale of pledges, and interest is due, some of it by the Civil Law, and some by Natural Law, whatever is paid by way of interest shall be credited on both kinds of obligations; as, for instance, where some interest is due by virtue of a stipulation, and some is due naturally as the result' of an agreement.

If, however, the amount of the interest due under the Civil Law is not equal to that due under the other, what has been paid should be credited on both, but not pro rata, as the terms of the Rescript show. But where no interest is due under the Civil Law, and the debtor simply pays interest which was not stipulated for, the Emperor Antoninus, together with his Father, stated in the Rescript that it ought to be credited on the principal. At the bottom of the Rescript was added the following clause, namely, "What has been generally decided as to the interest being first paid seems to have reference to such interest as the debtor is compelled to pay," and as interest paid under the terms of an agreement cannot be recovered, any more than if it had not been paid under that name, it will not be considered as paid at the desire of him who received it.

(3) The question is asked by Marcellus, in the Twentieth Book, if anyone agrees with a debtor that he will accept him for the principal and interest, whether the payment of the principal and interest shall be pro rata, or whether the interest should first be paid, and if anything remains, it should be credited upon the principal? I do not doubt that a provision of this kind with reference to the principal and the interest calls for the payment of the interest first, and that then, if there is any surplus, it ought to be credited on the principal.

6. Paulus, On Plautius, Book IV.

For it is not the order of the written instrument which should be considered, but what appears to be the intention of the parties must be determined according to law.

7. Ulpianus, On Sabinus, Book XLIII.

Where something is due, both on an obligation in which infamy is involved, and on one which is not of that character, payment is held to be made on that which involves disgrace. Hence, if anything is due on account of a judgment, or on a claim for which judgment has not been rendered, I think that payment should be applied to the judgment; and Pomponius adopts this opinion. Therefore, in a case in which liability increases by denial, or in one involving a penalty, it must be said that payment should be considered to be made on the latter, by the settlement of which the release of the penalty will be effected.

8. Paulus, On Sabinus, Book X.

Pomponius says that it has very properly been stated that when the terms and the contracts are the same payment will be held to have been made pro rata on all the sums in question.

9. Ulpianus, On Sabinus, Book XXIV.

I stipulate that payment shall be made to me or to Stichus, the slave of Sempronius. Payment cannot be made to Sempronius, although he is the master of the slave.

(1) A man who owes ten aurei, by the payment of half of this sum will be released from liability for half of his obligation, and only the remaining five aurei will be due. Likewise, where anyone owes Stichus and delivers a part of him, he is liable for the remainder. If, however, he owes a slave, and delivers a part of Stichus, he will not, for that reason, cease to owe a slave. Finally, an action can be brought against him to recover the slave. But when the debtor delivers the remaining part of Stichus, or the creditor is to blame for not accepting him, the former will be released.

10. Paulus, On Sabinus, Book IV.

When I stipulate for myself or for Titius, Titius cannot bring suit, or make a novation, or give a release; he can only be paid.

11. Pomponius, On Sabinus, Book VIII.

If I stipulate for payment to be made to me or to a ward, and the promisor pays the ward without the authority of his guardian, he will be released, so far as I am concerned.

12. Ulpianus, On Sabinus, Book XXX.

Payment can legally be made to a genuine agent. We should consider a genuine agent to be one who has been specially authorized, or to whom the management of all the property of the principal has been entrusted.

(1) Sometimes, however, payment is legally made to a person who is not an agent; as, for instance, to one whose name is inserted in the stipulation, where someone stipulates for payment for himself or for Titius.

(2) If, however, anyone should direct me to pay Titius, and afterwards forbid him to receive the money, and I, not knowing that he had been forbidden to receive it, pay him, I will be released; but if I am aware of it, I will not be released.

(3) The case is different, if you suppose that someone has stipulated for himself, or for Titius. For even if he forbids me to pay Titius, I will, nevertheless, be released if I pay him; because the stipulation has a certain condition which the stipulator cannot alter.

(4) But even if I pay someone who is not a genuine agent, but the principal ratifies the payment, a release will take place; for ratification is equivalent to a mandate.

13. Julianus, Digest, Book LIV.

The principal, however, should ratify the act as soon as he is informed of it, but with some degree of latitude and allowance, and it should include a certain period of time. As in the case of a legacy, where either its acceptance or rejection is concerned, a certain period of time, which is neither too small or too great, and which can better be understood than expressed in words, should be permitted.

14. Ulpianus, On Sabinus, Book XXX.

If anyone should make payment under the condition that he can' recover the money by a personal suit, if the principal does not ratify

the act of the agent, and he does not ratify it, an action will lie in favor of him who made payment.

(1) There are some guardians who are called honorary; there are others who are designated for the purpose of giving information; others still, are appointed to transact business; or the father prescribes this, so that, for instance, one of them shall administer the guardianship, or the transaction of business is entrusted to a single guardian, with the consent of the others; or the Prætor issues a decree with reference to this effect. Therefore, I say that no matter to what kind of a guardian payment may be made, even to an honorary guardian (for responsibility attaches to him), it is properly done; unless the administration of the guardianship has been forbidden him by the Prætor, for if this is the case, payment cannot legally be made to him. I hold that the same rule applies where anyone knowingly pays guardians accused of being suspicious, for the administration of the guardianship is, in the meantime, considered to be forbidden them.

(2) If payment is made to a guardian who has been removed, the debtor pays one who has ceased to be a guardian, and for this reason he will not be released.

(3) But what if he has paid someone in whose place a curator should be appointed; for example, a man who has been perpetually, or temporarily banished ? I say that if he pays him before the curator has been substituted for him, he should be released from liability.

(4) Even if he has paid a guardian who is about to be absent on public business, the payment will be legal. And, indeed, he can pay him during his absence, provided another has not been appointed in his place.

(5) Payment may properly be made to a single guardian, whether the guardians are legal or testamentary, or have been appointed as the result of a judicial inquiry.

(6) Let us see whether payment can legally be made to a guardian appointed for the purpose of giving information, because he was appointed to advise his fellow-guardian. But, as he is a guardian, and payment to him has not been prohibited, I think that if it is made, a release will take place.

(7) Payment may properly be made to the curator of an insane person, as well as to the curator of one who cannot take care of himself, either on account of his age, or for any other good reason. It is, however, settled that payment can legally be made to the curator of a ward.

(8) It is clear that a ward cannot pay without the authority of his guardian. If he should pay money, it does not become the property of him who received it, and can be recovered by an action. It is evident that if it has been expended the ward will be released from liability.

15. Paulus, On Sabinus, Book VI.

Payment cannot be made to a ward without the authority of his guardian. He cannot delegate a debtor, because he cannot alienate anything. If, however, the debtor has paid him, and the money is safe, upon the demand of the ward for payment a second time, the debtor can bar him by an exception on the ground of fraud.

16. Pomponius, On Sabinus, Book XV.

If a release is granted to a debtor conditionally, and the condition is afterwards complied with, he will be understood to have been released some time before. Aristo says that this takes place even should payment actually be made, for he holds that if anyone promises money under a condition, and pays it with the understanding that if the condition should be complied with payment shall be considered to have been made, and the condition is fulfilled, he will be released; and no objection can be raised because the money previously became the property of the creditor.

17. The Same, On Sabinus, Book XIX.

Cassius says that if I have given money to anyone to enable him to pay my creditor, and he pays it in his own name, neither of the parties will be released. I will not be, because it was not paid in my name, and he will not be, because he paid what was belonging to another, but he will be liable under the mandate. If, however, the creditor should spend the money without being guilty of fraud, he who paid it in his own name will be released, for fear that, if it were decided otherwise, the creditor might profit by the transaction.

18. Ulpianus, On Sabinus, Book XLI.

Where anyone pays a slave who has been appointed to collect the money, after his manumission, if this is in accordance with the contract of his master,, it will be sufficient that he was not aware that the slave had been manumitted. If, however, the money was paid for some reason connected with the peculium, even though the master knew that the slave had been manumitted, still, if *he did not know that he had been deprived of his peculium, he will be released from liability. In both cases, however, if the manumitted slave did this for the purpose of taking the money from his master, he will be guilty of theft. For if I direct my debtor to pay a sum of money to Titius, and I then forbid Titius to accept it, and the debtor is not aware of this, and pays Titius, who pretends to be the agent, the debtor will be released, and Titius will be liable in an action of theft.

19. Pomponius, On Sabinus, Book XXI.

My fugitive slave, pretending to be a freeman, lent you money which he had stolen from me. Labeo says that you are liable to me, and if you, believing him to be free, should pay him, you will be released, so far as I am concerned. If, however, you pay another by his order, or you ratify such a payment, you will not be released; because, in the first instance, the money becomes mine, and is understood to be paid, as it were, to myself. Hence, my slave, by collecting what he lent as part of his peculium, will release the debtor, but if he delegates him or makes a novation, this will not be the case.

20. The Same, On Sabinus, Book XXII.

If I pay you by giving you an article of mine which was due to you, but which was pledged to another, I will not be released; because the property can be recovered from you by the person who received it in pledge.

21. Paulus, On Sabinus, Book X.

If, having stipulated with Titius for ten aurei, you then stipulate with Seius to pay you whatever you cannot collect from Titius; even if you bring an action for ten aurei against Titius, Seius will still not be released. But what if Titius, having had a judgment rendered against him, should not be able to pay anything? Even if you first bring suit against Seius, Titius will not, in any respect, be discharged from liability, for it is uncertain whether Seius will owe anything at all. Finally, if Titius discharged the entire debt, Seius will not be considered to have been a debtor, for the reason that the condition upon which his indebtedness depended has failed to be fulfilled.

22. Ulpianus, On Sabinus, Book XLV.

A son under paternal control cannot release a debtor of his father against the latter's consent, as he can acquire an obligation for him, but he cannot diminish one.

23. Pomponius, On Sabinus, Book XXIV.

We can be released from liability by payment, or by appearance in court in our behalf, even against our consent, and without being aware of it.

24. Ulpianus, On Sabinus, Book XLVII.

When a surety has become responsible for ten aurei for two persons, he will be liable for twenty; and whether he pays twenty for them together, or ten for each one, he will release both debtors from liability. If, however, he pays five, let us see which of the two debtors he will release to that extent. The one mentioned in the release will be discharged from liability for that amount, or if this does not appear, the sum should be credited upon the oldest debt.

The same rule will apply where fifteen aurei are paid, if it is apparent what the intention was with reference to ten of them, and the remaining five will be credited on the other obligation. But where the intention cannot be ascertained, ten aurei will be credited on the oldest note, and five on the other.

25. Pomponius, On Sabinus, Book XXXV.

Where anyone who has been appointed heir to a portion of an estate pays the entire sum of ten aurei which the deceased had promised, he will be released from liability for the share to which he is

entitled as heir; and he can recover the remainder by a personal action. If, however, before he brings this action, the residue of the estate should accrue to him, he will also be liable for the balance; and therefore, if he brings a personal action to recover property which was not due, I think that he can be barred by an exception on the ground of fraud.

26. The Same, On Sabinus, Book XXXV.

If a creditor sells a tract of land which has been hypothecated to him, and collects all that was due, the debtor will be released. When the creditor gives a release of the price to the purchaser, or stipulates with him for it, the debtor will still be released. If, however, a slave, who has been pledged, is sold by the creditor, the debtor will not be released, as long as the slave can be recovered under the terms of a conditional sale; as is the case where any pledge is sold subject to rescission of contract.

27. Ulpianus, On the Edict, Book XXVIII.

The right of action arising from a stipulation and from a will continues to exist even if the property which was due has been delivered; and although the title to it may be defective, an action can still be brought to recover it; as, for instance, I can bring suit for a tract of land, even though it has been conveyed to me, provided some right guaranteed by the bond has not been transferred.

28. Paulus, On the Edict, Book XXXVIII.

Debtors are released by payment to anyone who transacts the business of the ward instead of his guardian; if the money becomes a part of the property of the ward.

29. Ulpianus, On the Edict, Book XXXVIII.

When Stichus and Pamphilus are promised to two persons, Stichus cannot be delivered to one and Pamphilus to the other, but the half of each one of them is due to each individual creditor. The same rule applies where anyone promises to give two Stichuses or two Pamphiluses, or ten slaves to another slave who belongs to two masters. For the expression "ten slaves," like "ten denarii", is ambiguous, and the half of the ten can be understood in two different ways. But with reference to money, oil, wheat, and other things of this kind, which are included in a common species, the intention appears to have been that the obligation should be divided by a number, when this is more convenient for the promisor and the stipulator.

30. The Same, On the Edict, Book LI.

If a debtor tenders money which he owes, and his creditor declines to accept it, the Prætor will refuse him an action.

31. The Same, Disputations, Book VII.

A great difference exists between artisans with respect to their talents, character, knowledge, and education. Therefore, if anyone promises to build a ship, or a house, or to excavate a ditch, and it is specially agreed that he shall do this with his own workmen, and the surety himself constructs the building, or makes the excavation, without the consent of the stipulator, the debtor will not be released from liability.

Hence, even if the surety should add the following clause to the stipulation, "Nothing shall be done by you to interfere with my right of way," and the surety prevents me from passing, he does not render the stipulation operative; and if he permits the servitude to be enjoyed, he does not hinder the stipulation from taking effect.

32. Julianus, Digest, Book XIII.

If a slave lends money out of his peculium, and his debtor, not knowing that his master was dead, pays the slave before the estate has been entered upon, he will be released.

The same rule of law will apply even if the debtor pays the money after the slave has been manumitted, provided he is ignorant of the fact that his peculium was not bequeathed to him; nor does it make any difference whether the money was delivered to him during the lifetime or after the death of his master, since, even in the latter instance, the debtor will be released, just as if the debtor had been ordered by his creditor to pay a sum of money to Titius; for although the creditor may be dead, still he does not pay it any the less properly to Titius, provided he was not aware that he was dead.

33. The Same, Digest, Book LII.

Where anyone stipulates that a tract of land shall be conveyed to him, or to Titius, even though the land should be given to Titius he will still be entitled to an action, if he is subsequently evicted; just as if he had stipulated for a slave, and the promisor had given Titius one who was to be free under a condition, and the slave should afterwards obtain his liberty.

(1) Where a man, who promised to give Stichus or Pamphilus, wounds Stichus, he is not released by delivering him, any more than if he had only promised Stichus, and delivered him after he had been wounded by him.

Likewise, where anyone promises to give a slave, and tenders him wounded, he will not be freed from liability. And where the case is pending in court, and the defendant tenders a slave who has been wounded by him, he should have judgment rendered against him; and even if he tenders a slave who has been wounded by someone else, he will have judgment rendered against him, if he can give another slave.

34. The Same, Digest, Book LIV.

Where anyone who has promised to give a slave, or pay ten aurei to you, or to Titius, delivers to Titius a part of the slave, and afterwards pays you ten aurei, he can bring an action to recover the part of the slave, not against Titius, but against you, just as if he had given to Titius with your consent, something that he did not owe him.

The same rule will apply if he should pay ten aurei after the death of Titius; as he can recover the share of the slave rather from you than from the heir of Titius.

(1) If two joint-stipulators contract that a slave shall be delivered to them, and the promisor delivers to each of them different shares of different slaves, there is no doubt that he will not be released. If, however, he gives to both of them the shares of the same slave, a release takes place, because the common obligation has such an effect that what is paid to two persons is held to have been paid to one.

On the other hand, when two sureties promise a slave shall be delivered, and they give shares of different slaves, they will not be released, but if they give shares of the same slave, they will be freed from liability.

(2) I stipulated for ten aurei to be paid to me, or a slave to be delivered to Titius. If the slave is delivered to Titius, the promisor will be released, so far as I am concerned; and before he is delivered I can demand the ten aurei.

(3) If I give Titius charge of all my business, and afterwards, without the knowledge of my debtors, I forbid him to transact it, the latter, by paying him, will be released; for he who gives anyone charge of his business is understood to direct his debtors to pay him as his agent.

(4) If my debtor, without any authority from me, should erroneously believe that he has my consent to pay money to another person, he will not be released; and therefore no one will be freed from liability by payment of an agent, who voluntarily offers himself to transact the affairs of another.

(5) If a fugitive slave who asserts that he is free sells any property, it has been decided that the purchasers are not released from liability to his master by paying the fugitive slave.

(6) If a son-in-law pays a dowry to his father-in-law, without the knowledge of the daughter of the latter, he will not be released, but he can bring a personal action for recovery against his father-in-law, unless the daughter ratines what he has done. The son-in-law, to a certain extent, resembles one who pays the agent of a person who is absent, because, in the case of a dowry, the daughter participates in the dowry, and is, as it were, a partner in the obligation.

(7) If I, desiring to make a donation to Titius, order my debtor to pay a sum of money to him, even though Titius may accept the money with the intention of rendering it mine, the debtor will, nevertheless, be released from liability. If, however, Titius afterwards gives me the same money, it will become mine.

(8) A testator appointed, as his heir, a son under paternal control from whom he had received a surety. If he should enter upon the estate by the order of his father, the question arises whether the latter can bring an action against the surety. I stated that whenever the principal debtor became the heir of him who received security, the sureties would be released, because they could not be indebted to the same person, on account of the same person.

(9) If a thief restores to someone claiming an estate property which he has collected from debtors of the estate, the latter will be released.

(10) If I stipulate that ten aurei shall be paid, or a slave be delivered, and I receive two sureties, Titius and Mævius, and Titius pays five aurei, he will not be released until Mævius also pays five. If, however, Mævius delivers a share of a slave, both of them will remain liable.

(11) Anyone who can protect himself by means of a perpetual exception can recover what he has paid, and therefore will not be released. Hence, when one of two promisors makes an agreement that nothing shall be demanded of him, even though he should make payment, the other will, nevertheless, remain liable.

35. Alfenus Varus, Epitomes of the Digest of Paulus, Book II.

Whatever a slave has lent, or deposited, out of his peculium, although he may be sold or manumitted afterwards, can legally be paid to him; unless something should take place from which it may be inferred that payment has been made against the consent of the person to whom the slave belonged at the time. Where, however, anyone borrows, at interest, money from him which belonged to his master, while the slave was conducting the business of his master with his permission, the same rule will apply. For he who made the contract with the slave is considered to have received the money from him, and paid it to him, with the consent of his master.

36. Julianus, On Urseius Ferox, Book I.

If my father should die, leaving his wife pregnant, and I, as heir, should demand payment of all the debts due to him; some authorities hold that I will still retain my rights of action, and if no child is afterwards born, that I can legally bring suit, because it is true that I am the only heir in existence.

Julianus says that the better opinion is that the entire estate to which I was heir was claimed by me before it was certain that a child would not be born; or the fourth part because three children could be born; or the sixth, because five could be born. For Aristotle has stated that five children can be born, because the womb of a woman has that many receptacles, and that there was a woman at Rome who came from Alexandria in Egypt, who had five children at one birth, all of whom survived. I have obtained confirmation of this in Egypt.¹

¹ While quintuplets are of comparatively rare occurrence, they are by no means so unusual as the statement in the text would lead one to suppose; and instances in which that number was far exceeded are recorded in the annals of medicine. In Ohio in 1872, and in Texas in 1888, women gave birth to six healthy children at once, all of whom survived. Reliable accounts have been given of the simultaneous birth of nine and eleven children, respectively, to different women in Italy, during the eighteenth century. The Countess of Altdorf, in Germany, is said to have had twelve at once. The famous Hispano-Arab surgeon Abulcasis, who lived in the eleventh century, speaks of fifteen children having been born to one woman at one time. The wife of Gilles de Frazegines, Constable of France, brought forth thirteen at a birth, all of whom were healthy and grew to maturity. In view of these examples, the case of quintuplets mentioned by Julianus does not seem to be extraordinary.

The not infrequent occurrence of supernumerary breasts in women, which is closely related to the phenomenon of multiple births, is unquestionably atavistic, a reminiscence of the time when, countless ages ago during the infancy of the human race, women had rows of mammae like the lower animals, and gave birth to litters of young at a time. This condition, known to physicians as polymazia, is often referred to by medical writers. Four breasts, disposed in two regular lines, have been frequently noted. The largest number on record, which was probably never exceeded in any primitive individual of the female sex, is ten, reported by Naugebauer, a German physician, in 1886. Anne Boleyn, Queen of England, had three.

It is a curious anatomical fact that nipples in symmetrical rows have been observed on the bodies of men, indicative of the early hermaphrodism of the race, which is also evidenced by the persistence of the veruniontanum and sinus procularis, in man, and of the clitoris and other parts of the organs of generation in woman. Anatomists, in dissection, have detected the existence of rudimentary mammae in numerous female subjects, where no sign of their presence was apparent upon the surface of the body. It is not improbable that their traces may be found in the tissues of every woman. (Vide Gould and Pyle, Anomalies and Curiosities of Medicine, Pages 153, 154, 298, 299.)—ED.

37. The Same, On Urseius Ferox, Book II.

Whenever one of several sureties has paid his share as having transacted the affairs of the principal debtor, this is considered the same as if the debtor himself had paid the share of the indebtedness for which one of the sureties was liable; but this does not diminish the amount of the principal, and only the surety, in whose name payment was made, is released.

38. Africanus, Questions, Book VII.

When anyone stipulates that payment shall be made to him, or to Titius, the better opinion is that it will only be properly made to Titius, when he remains in the same condition in which he was when the stipulation was entered into. If, however, he has been adopted, or sent into exile, or forbidden the use of fire and water, or has become a slave, it cannot be said that legal payment has been made, for this agreement, namely, "If he remains in the same condition," is understood to have been tacitly included in the stipulation.

(1) If I order my debtor to pay Titius, and, afterwards I forbid Titius to receive the money, and my debtor not being aware of the fact, pays him, it was held that the debtor was released, if Titius did not receive the money with the intention of profiting by it; otherwise, it would remain the property of the debtor, just as if he was about to steal it, and hence he cannot be released by operation of law; still, it is but just that relief should be granted him by means of an exception, if he is ready to assign to me the right of personal action, on account of theft, to which he is entitled against Titius; as is done where a husband, being desirous of making a donation to his wife, directs his debtor to pay her.

For, in this case also, because the money does not become the property of the woman, the debtor will not be released, but he can be protected against the husband by an exception, if he assigns to him the right of action which he has against his wife. In the case stated an action for theft will be in my favor, after a divorce has been granted, when it is to my interest that the money should not be appropriated.

(2) The action De peculia was brought against a master, and judgment having been rendered against him, he paid it. The opinion was given that the sureties received for the slave were released, for the same money can be used to satisfy several claims, because when security is given for the payment of a judgment, and judgment is rendered against the defendant, and he pays it himself, the sureties are released, not only on account of the satisfaction of the judgment but also under the stipulation.

This case is quite similar to the one where the possessor of an estate, believing himself to be the heir, makes payment, and the heir is not released; for this happens because the possessor, by paying money which was not due in his own name, can recover it.

(3) Where he who has promised a slave delivers one who is to be free under a condition, I think that the better opinion is that we should not wait for the fulfillment of the condition, but that the creditor can bring a personal action for recovery. If, however, in the meantime, the condition should fail to be fulfilled, the promisor will be released, just as if anyone had made payment through mistake, while a condition was pending, and it should be fulfilled before he brought the personal action. But it certainly can not be said, that if Stichus should die, and the condition should fail to be fulfilled, the debtor would be released, although if it was not fulfilled during his lifetime he would be freed from liability, since, in this case, you have, at no time, absolutely made the slave mine.

Otherwise, it might also be held that if you deliver me a slave in whom some other person enjoys the usufruct, and the slave should die during the continuance of the usufruct, you will be considered released by this delivery; which opinion can, by no means, be adopted, any more than if you had delivered a slave owned in common, and he should die.

(4) Where anyone becomes surety for a person who has returned after having been absent on public business, and he incurs no risk of being sued on this account, will the surety also be released after the expiration of a year? This opinion was not adopted by Julianus, even where no power to proceed against the surety existed. In this instance, however, in accordance with the terms of the Edict, restitution should be granted by means of an action against the surety himself, just as is done against a surety who kills the slave that had been promised.

(5) Where anyone who has become surety for you to Titius gives a pledge for the further security of his obligation, and you afterwards appoint him your heir, although you will not be liable by virtue

of the suretyship, still, the pledge will still remain encumbered. If the same person gives another surety, and appoints you his heir, he says that it is better to hold that the obligation of the debtor for whom security was taken having been extinguished, he also who had become his surety will be released.

39. The Same, Questions, Book VIII.

If, being desirous of paying the money, I deposit it by your direction with an assayer to be tested, Mela, in the Tenth Book, says that you do this at your own risk. This is true, in case it was your fault that the coins were not immediately tested, for then it will be the same as if I was ready to pay, and you, for some reason or other, refused to accept the money. In this instance, the money is not always at your risk, for what if I should tender it at an inopportune time or place? I think that the result would be that, even if the purchaser and vendor, having little confidence in one another, should deposit the money and the merchandise, the money will be at the risk of the purchaser, if he himself selected the person with whom it was deposited, and the same rule will apply to the merchandise, because the sale was perfected.

40. Marcianus, Institutes, Book HI.

If anyone should pay my creditor for me, even though I am not aware of it, I will acquire a right to bring suit to recover my pledge. Likewise, if anyone pays legacies, the legatees must relinquish possession of the estate; otherwise, the heir will be entitled to an interdict to compel them to surrender it.

41. Papinianus, On Adultery, Book I.

Where a creditor is accused of a crime, there is nothing to prevent the payment of money by his debtors; otherwise, many innocent persons would be deprived of the necessary means of defence.

42. Paulus, On Adultery, Book HI.

Nor is it held to be forbidden for payment to be made by the accused party to his creditor.

43. Ulpianus, Rules, Book II.

In all cases where persons are released from liability, the accessories are also released, for instance sureties, and property hypothecated or pledged; except where merger having taken place between the creditor and the sureties, the principal debtor is not released.

44. Marcianus, Rules, Book II.

In the payment of money, it sometimes happens that two obligations are discharged by one payment, at the same time; as, for instance, where anyone sells to his creditor the property which has been pledged to secure his debt; for it happens that, by the sale, the obligation of the debt is also extinguished.

Again, where a bequest is made by a creditor to a ward who has borrowed money without the authority of his guardian, under the condition that he will pay this money, the ward is held to have paid it for two reasons: first, to discharge his debt, as it will be credited on the Falcidian portion of the heir; and second, in order to comply with the condition to enable him to obtain the legacy.

Likewise, if the usufruct of a sum of money has been bequeathed, it happens, that by one payment the heir will be released from the obligation imposed by the will, and will render the legatee liable to himself. The same thing occurs where anyone has been ordered by the court to sell or lease property to another; for, either by selling or leasing, the heir will be freed from liability under the will, and will render the legatee liable to himself.

45. Ulpianus, Opinions, Book I.

It was held by Callippus that although a husband had promised his wife, who was the stipulator, that in case the marriage should be dissolved, the land which was hypothecated for the dowry should be given in payment, still it would be sufficient to tender the amount of the dowry.

(1) The same authority stated to Fronto, that if a guardian continued to administer the affairs of the guardianship, although he had been accused of a capital crime, payment could be made to him of what was actually due to his ward.

46. Marcianus, Rules, Book III.

If anyone should give to his creditor with his consent, by way of payment, one kind of property instead of another, and it should be evicted, the former obligation will continue to exist. If the property should only partly be evicted, the obligation for the entire amount will still remain unimpaired, as the creditor would not have accepted it if there had been any doubt as to the title.

(1) But even if, for example, he had given two tracts of land instead of paying his debt, and one of them was evicted, the obligation would remain unimpaired. Therefore, when one article is given in payment for another, a release from liability is effected, and it absolutely belongs to the person who receives it.

(2) But where anyone, through fraud, gives in payment a tract of land which is estimated at more than it is worth, he will not be released unless he makes up the deficiency.

47. The Same, Rules, Book IV.

Where payment is made to a ward without the authority of his guardian, and an inquiry is instituted to ascertain the time when he profited by it, the date on which he brought his action is taken into account; and this is done in order to determine whether he can be barred by an exception on the ground of fraud.

(1) It is evident (as Scævola says) that if the property was lost before issue had been joined, the ward is sometimes considered as having profited pecuniarily; that is to say, if he bought something which was necessary, and which should have been purchased with his own money. For he is considered to have profited by the transaction by the mere fact that he did not become any poorer. Hence the opinion was advanced that the Macedonian decree of the Senate does not apply to the case of a son under paternal control, if he borrowed money for necessaries and lost it.

48. Marcellus, Opinions.

Titia, in order to secure her dowry, obtained possession of the property of her husband, and acted in every respect as if she owned it, for she collected the income, and sold the chattels. I ask whether what she collected out of the property of her husband should be credited on her dowry? Marcellus answers that, in the case stated, it did not seem unjust for such a credit to be made, for what the woman collected under such circumstances should rather be considered a payment. But if the arbiter appointed to decide as to the recovery of the dowry should also require an account of the interest to be rendered, this must be computed in such a way that whatever came into the hands of the woman will not be deducted from the entire amount, but will first be credited on the interest to which she was entitled. This is not inequitable.

49. Marcianus, On the Hypothecary Formula.

We understand a sum of money to be paid naturally, where it is counted out to the creditor. If, however, it is paid to another by his order, or to his creditor, or to someone who is about to become his debtor, or even to a person to whom he intends to donate it, he should be released from liability.

The same rule will apply if the creditor ratifies a payment which has been made. Also, where the money is paid to a guardian, a curator, an agent, or any successor whomsoever, or to a slave who is a steward, this will be valid. If a release, for the purpose of extinguishing an hypothecation, is given by means of a stipulation or without it, the term "payment" cannot be adopted, but that of "satisfaction" may be.

50. Paulus, On Sabinus, Book X.

If, having promised you gold, I should, without your knowledge, give you copper instead, I will not be released, but I cannot recover it as having been paid without being due, because I gave it knowingly; nevertheless, if you bring suit for gold, I can bar you by means of an exception, if you do not return the copper which you received.

51. The Same, On the Edict, Book IX.

Payment can properly be made to a steward if he has been dismissed without the knowledge of the debtor; for he is paid with the consent of his master, and if he who pays him is not aware that his master has withdrawn it, he will be released.

52. Ulpianus, On the Edict, Book XIV.

Satisfaction is equivalent to payment.

53. Gaius, on the Provincial Edict, Book V.

Anyone can make payment in behalf of a debtor who is ignorant of the fact, even against his consent; for it is established by the Civil Law that the condition of a person can be improved who is not aware of it, and who is also unwilling.

54. Paulus, On the Edict, Book LVI.

The term "payment" is applicable to every release from liability made in any way whatsoever, and relates to the substance of the obligation, rather than to the delivery of the money.

55. Ulpianus, On the Edict, Book LXI.

Where anyone pays with the intention of again receiving the money, he will not be released, just as money which is paid in order to be returned is not alienated.

56. Paulus, On the Edict, Book LXII.

Anyone who directs payment to be made is himself considered to pay.

57. Ulpianus, On the Edict, Book LXXVII.

When anyone stipulates for ten aurei to be paid in honey, honey can be delivered to him before proceedings are instituted under the stipulation. If, however, an action has once been begun, and the ten aurei demanded, the debt can no longer be paid in honey.

(1) Again, if I should stipulate for payment to be made to me or to Titius, and I afterwards bring suit, payment can no longer be made to Titius, although it could have been done before issue had been joined.

58. The Same, On the Edict, Book LXXV.

If anyone should, in good faith, pay a person who had voluntarily taken charge of the business of another, when will he be released? Julianus says that he will be released when the principal ratines the transaction. He also asks whether a personal action can be brought against him for recovery, on this ground, before the principal ratifies the transaction. In answer to this, he says that it makes a difference with what intention the payment was made, whether this was done in order that the debtor might be discharged immediately, or only after the principal had ratified. the act. In the first instance, the agent can be sued at once, and then, when the principal has ratified what has taken place, the right of action will be extinguished; but, in the second instance, no cause of action will arise unless the principal refuses to ratify what the agent has done.

(1) If a creditor, to whose agent payment has been made without his knowledge, gives himself to be arrogated, the acceptance of the money will be valid if the father ratifies it, but if he does not do so, the debtor can recover what he has paid.

(2) Where there are two joint-stipulators, and payment is made to the agent of one of them, who is absent, and before he ratifies it, payment is made to the other, the last payment as well as the first remains in abeyance; since it is uncertain whether the last stipulator has collected something which was due, or which was not due.

59. Paulus, On Plautius, Book II.

If I stipulate as follows, "Do you promise to pay me or Titius?" and the debtor agrees to pay me, although an action to collect money on an informal agreement will lie in my favor, the promisor can still pay him who has been added. And if I stipulate for myself or for Titius with a son under paternal control, the father can pay Titius out of the peculium, that is, if he wishes to pay in his own name, and not in that of his son; for when payment is made to the person who was added, it is considered to be made to me. Therefore, if payment of something which is not due is made to the person who has been added, Julianus says that suit can be brought against the stipulator to recover it, so that it makes no difference whether I direct you to pay Titius, or whether the stipulation was framed in this way in the beginning.

60. The Same, On Plautius, Book IV.

He who has given a slave that did not belong to him in payment, will be released, if the slave is acquired by usucaption.

61. The Same, On Plautius, Book V.

Whenever what I owe you becomes yours in perpetuity, and the title is perfect, and what has been paid cannot be recovered, the release will be complete.

62. The Same, On Plautius, Book VIII.

I directed my steward to be free by my will, and I bequeathed him his peculium. After my death, he collected money from my debtors. The question arises whether my heir can withhold what he collected from his peculium. If he collected the money after the estate had been entered upon, there can be no doubt that he cannot deduct it from his peculium on this account; because, having been made free, he will become liable himself if the debtors of the estate are released by payment.

But if the steward received the money before the estate was entered upon, and the debtors were released by the payment of the same, the amount unquestionably can be deducted from the peculium, because the steward begins to be indebted to the heir by having transacted his business, or complied with his mandate. If, however, the debtors are not released, and, in transacting my business, you were paid by them, and I did not afterwards ratify your act, and then, if I wish to bring an action on the ground of voluntary agency, the question arises whether I can do so properly if I give security to indemnify you against loss. I do not think that this is the case, for suit on the ground of voluntary agency cannot be brought, for the reason that I have not ratified the transaction, and hence the debtors remain liable, to me.

63. The Same, On Plautius, Book IX.

Where a debtor is the usufructuary of a slave, the slave can be liberated by means of a release, for he will be held to have acquired from the property of the usufructuary. We say the same thing in the case of an agreement.

64. The Same, On Plautius, Book XIV.

When, by my order, you pay what you owe me to my creditor, you are released so far as I am concerned, and I am freed from liability to my creditor.

65. Pomponius, On Plautius, Book I.

If the daughter of an insane person should be divorced from her husband, it has been decided that the dowry can be paid to the agnate curator, with the consent of the daughter, or to the daughter with the consent of the agnate.

66. The Same, On Plautius, Book VI.

If the debtor of a ward, by his direction and without the authority of his guardian, pays money to the creditor of the former, he releases the ward from liability to the creditor, but he himself remains bound. He, however, can protect himself by means of an exception. But if he was not indebted to the ward, he cannot bring a personal action for recovery against the latter, who is not responsible as he acted without the authority of the guardian; nor can he bring one against the creditor, with whom he contracted by the order of another. The ward, however, having been released from liability for his indebtedness, can be sued in a praetorian action for the amount by which he has been pecuniarily benefited.

67. Marcellus, Digest, Book XIII.

If anyone should promise two slaves, and deliver Stichus, and he afterwards becomes the owner of the said Stichus, he will be released from liability by delivering him. With reference to the payment of money, there is less doubt, and, indeed, almost none at all. For in Alfenus, Servius says that a creditor who is willing to accept less than is due from his debtor, and release him, can do so by frequently receiving a sum of money from him, returning it, and afterwards receiving it again; for instance, if a creditor, to whom a debtor owes a hundred aurei, is willing to release him on the payment of ten, and after haying received the ten, gives the same coins back to him, and afterwards receives them and returns them up to the full amount, and finally retains them, although this has not been accepted by certain authorities as being sufficient payment, because he who takes the money in order to refund it, seems rather to have paid it himself than to have received it.

68. The Same, Digest, Book XVI.

A slave, having been ordered to pay ten aurei to a ward and become free, if the ward is an heir, or the condition is merely personal, can the slave, by making payment to the ward in the absence of his guardian, obtain his freedom? Some difficulty will arise in comparing this condition with that which consists of an act; for instance, if he should give his services to a ward, which can be done without the intervention of his guardian. And, it is asked, what if he is ordered to make payment to an insane person, who has a curator; will he, by paying the curator, be released? suppose that a tract of land was left to someone on condition that payment should be made to a minor, or a person who is insane. It must be remembered that, in all these cases, payment can legally be made to the guardian or curator, but is not valid if made to the insane person or ward, for fear that what is paid may be lost by their weakness. For it was not the intention of the testator that the condition should be considered to have been complied with no matter in what way payment was made.

69. Celsus, Digest, Book XXIV.

If you surrender a slave by way of reparation for damage committed, and someone else has the usufruct in said slave, or he has been pledged for a debt to Titius, he in whose favor a judgment has been rendered against you can cause the judgment to be executed, and it will not be necessary to wait until the creditor evicts him. If, however, the usufruct should be extinguished, or the obligation of the pledge be discharged, I think that a release will take place.

70. The Same, Digest, Book XXVI.

Anything which has been promised on a certain date can be given or paid immediately, for all the intermediate time is understood to be left free to the promisor for the purpose of making payment.

71. The Same, Digest, Book XXVII.

When, having stipulated for ten aurei to be paid to myself or to Titius, I accept five; the promisor can properly pay the remaining five to Titius.

(1) If a surety pays the agent of the creditor, and the latter ratifies the payment after the time when the surety could have been released has elapsed, still, for the reason that the surety paid while he still was liable on account of his suretyship, he cannot recover what he paid, and he is just as much entitled to the action on mandate against the principal debtor as if he had paid the creditor when present.

(2) Again, if the creditor, not being aware that payment has been made to his agent, gives a release to the slave or the son of the debtor, and he afterwards learns of the payment, and ratifies it, it is confirmed; and the release which he gave becomes of no force or effect. And on the other hand, if he does not ratify the payment, the release remains valid.

(3) If, however, not being aware of the payment, he institutes legal proceedings, and ratifies the payment while the suit is pending, the party against whom the action is brought will be discharged; but if he does not ratify it, judgment shall be rendered against the defendant.

72. Marcellus, Digest, Book XX.

Where anyone who owes ten aurei tenders them to his creditor, and the latter, without any good reason, refuses to accept them, and afterwards the debtor loses them, without any fault of his own, he can protect himself by an exception on the ground of fraud, even though, after having been notified, he does not make payment; for, indeed, it is not just for him to be liable for the money which was lost, because he would not be liable if the creditor had been willing to take it. Wherefore, what the creditor was in default in receiving should be considered as having been paid. And certainly, if a slave formed part of a dowry, and the husband tendered him, and the slave died, or if he rendered money, and should lose it, after the woman has refused to accept the slave or the money, he ceases to be liable by operation of law.

(1) If you owe me Stichus, and are in default in delivering him, having promised him under a condition, and while the condition is pending Stichus dies, as the first obligation cannot be renewed, let us see whether suit can be brought to recover the slave, if there was no stipulation. It may, however, be said in reply that when the debtor promised the stipulating creditor under a condition, he does not appear to have been in default in the delivery of the slave. For it is true that he who was notified and refused to deliver him will be released from liability, if he tenders him subsequently.

(2) But what if the creditor should stipulate with another, without the knowledge of the debtor? In this instance, also, the debtor should be considered as having been released from liability; just as if anyone should tender a slave in the name of the debtor, and the stipulator should refuse to accept him.

(3) The same opinion was given in the case where a man, after a slave had been stolen from him, stipulated under a condition for all that the thief was able to pay, or do; for the thief will be released from liability to an action for recovery, if the owner of the slave should refuse to accept him when he is tendered.

If, however, the stipulation was entered into while the slave was in a province, and suppose that, before the thief or the promisor was able to obtain possession of him, the slave should die, there would be no ground for the application of the rule which we mentioned above; for, on account of the absence of the slave, he could not be considered to have been tendered.

(4) I stipulated for Stichus and Pamphilus, when Pamphilus belonged to me. If he should cease to be mine, the promisor will not be released by giving Pamphilus; for no contract is considered to have been made with reference to the slave, Pamphilus, either by way of obligation or payment. But where anyone stipulates for the delivery of a slave, the promisor, by giving one of the slaves who belonged to him at the time the stipulation was made, will be released. And, indeed, the stipulator, by the terms of the agreement, seems to have contracted for a slave to be delivered who did not belong to the promisor at the time. Let us suppose the stipulation was as follows: "Do you promise to give one of the slaves that Sempronius left?" If Sempronius left three, one of them would belong to the stipulator; and let us see if the other two slaves that belonged to someone else should die, whether the obligation would continue to exist. The better opinion is, that the stipulation will be extinguished, unless the remaining slave belonging to the stipulator should cease to be his before the death of the other two.

(5) Where someone who owes a slave gives Stichus, who is entitled to his freedom under the terms of a trust, he is not considered to have been released. For his delivery of the slave amounts to less than if he had given him while still liable to be surrendered by way of reparation for damage committed. Hence, will the same rule apply if he delivers a grave-digger, or some other degraded slave? In this instance, we cannot deny that he has given a slave, but it differs from the former ones, as he has a slave who cannot be taken away from him.

(6) The promisor of a slave must deliver such a one as the stipulator can manumit, if he desires to do so.

73. The Same, Digest, Book XXXI.

I gave a surety for twenty sesterces, and a pledge for ten, in order to secure thirty sesterces which I had borrowed. The creditor collected ten by the sale of the pledge. Does this sum of ten sesterces decrease the entire debt (as certain authorities hold), if, when paying the ten, the debtor said nothing about it; or (which is my opinion) is the surety entitled to be released from liability for the sesterces on all that is due, for the reason that, by mentioning this, the debtor could have brought it about; and as he did not say anything, he would be held rather to have intended to make payment of that which was secured? I am rather inclined to think that the owner of the obligation should be permitted to credit what was paid upon that part of the claim for which the debtor was severally liable.

74. Modestinus, Rules, Book HI.

Whatever is collected from the debtor as a penalty should enure to the benefit of the creditor.

75. The Same, Rules, Book VIII.

Just as a release annuls all preceding actions up to that time, so merger produces the same effect; for if a debtor becomes the heir of his creditor, the merger of the estate annuls the action to recover the debt.

76. The Same, Opinions, Book VI.

Modestinus holds that payment having been made of everything that was due on a tutelary account without any agreement, if, after a certain interval, the rights of action are assigned, the assignment is void, because no such right remains. If, however, this was done before payment, or if it was agreed between the parties that the rights of action should be assigned, and payment is made, and the assignment afterwards takes place, the rights of action will remain unimpaired; as, even in the last instance, the price of those which were assigned seems rather to have been paid than that the right which existed at the time has been extinguished.

77. The Same, Pandects, Book VII.

A contract for his services cannot be made by a master with his freedman for any time previous to obtaining his liberty.

78. Javolenus, On Cassius, Book XI.

When money belonging to another is paid without the knowledge or consent of the owner, it still continues to be his property. If it is mixed with other money, so that it cannot be separated, it is stated in the Books of Gaius that it will belong to the person who receives it; so that an action of theft will lie in favor of the owner against him who paid the money.

79. The Same, Epistles, Book X.

The money which you owe me, or any other property which I direct you to produce in my presence, when this is done, causes you immediately to be released, and the property to belong to me. For as the possession of the said property is not actually held by anyone, it is acquired by me, and is, as it were, considered to be delivered to me manu longa.

80. Pomponius, On Quintus Mucius, Book IV.

An obligation can be discharged in the same way in which it was contracted. Hence, when we have made an agreement with reference to any property, it should be discharged by the transfer of the thing itself, as, for instance, when we lend some article to be consumed, and its value in money is to be given in return; and where we have contracted for anything orally, the obligation should be discharged by the delivery of the article, or by words. By words, when the promisor is given a release; by the delivery of the article, when what was promised is given. Likewise, where a purchase, sale, or lease, is effected, if this is done by mere consent, the contract can be dissolved by a contrary agreement.

81. The Same, On Quintus Mucius, Book VI.

If I stipulate for payment to myself or to Titius, and Titius should die, you cannot pay his heir.

(1) If Titius should deposit a dish in my hands, and die leaving several heirs, and some of them notify me to deliver it, the best thing will be for the Prætor, after having been applied to, to order me to deliver the dish to some of the heirs, under which circumstances I will not be liable for the deposit to the remaining ones; but if I deliver it, in good faith and without having been ordered to do so by the Prætor, I will be released; or, what is more true, I will not be liable to the obligation resulting from the deposit. The best course to pursue, however, is to do this by the order of the magistrate.

82. Proculus, Epistles, Book V.

If Cornelius should give a tract of land which belongs to him, in the name of Seia, to her husband by way of dowry, and make no provision with reference to its return; and he does this in such a way that an agreement is entered into between Seia and her husband that, if a divorce should take place, the land shall be returned to Cornelius; I do not think that, if a divorce does take place, the husband can safely return the land to Cornelius, if Seia should forbid him to do so; just as, where no informal agreement was made, the woman, after the divorce, should direct the land to be returned to Cornelius, and then, before this was done, forbid it, it could not safely be returned to him.

If, however, before Seia forbade this to be done, her husband should return the land to Cornelius, and he had no reason to think that, if he did so, she would not consent, I do not think that it would be better or more equitable to deliver the land to Seia.

83. Pomponius, Various Passages, Book XIV.

If I lend money to your slave, and then purchase him, and, after having been manumitted, he pays me, he cannot recover the money.

84. Proculus, Epistles, Book VII.

You brought an action De peculia against a master for a debt of his slave, and it was held that the sureties were not released. If the same slave who had been entrusted with the management of his peculium should pay the money, you have read correctly that the securities will be released.

85. Callistratus, The Monitory Edict, Book I.

Less than the entire amount is paid either by quantity or by time.

86. Paulus, On the Edict, Book VIII.

It is our practice that payment cannot properly be made to the attorney in a suit; for it is absurd that it should be made before the case has been decided to one to whom the right to enforce judgment is not granted. If, however, it is given to him for the purpose of payment, he will be released after payment has been made.

87. Celsus, Digest, Book XX.

Where a debt is paid by my agent, I cannot recover it, as where anyone appoints an agent for the transaction of all his business he is considered to have directed him to pay his creditors the money to which they are entitled, and it is not necessary to wait until the principal ratifies the transaction.

88. Scævola, Digest, Book V.

A father died intestate and left his daughter his heir. Her mother transacted her business, and caused her property to be sold by bankers, and all this was entered upon their accounts. The bankers paid over all the proceeds of the sale, and, after this, for about nine years, her mother attended to whatever was to be done in the name of her minor daughter, and finally, gave her in marriage, and delivered her property to her.

The question arose whether the girl was entitled to any action against the bankers, when not she, but her mother, stipulated for the price of the property given to them to be sold. The answer was that if any doubt existed whether the bankers were released by law, after having paid over the money, it should be held that they were freed from liability.

Claudius: For the following question with reference to authority to act remains, that is, whether the price of the property which the bankers knew to belong to the minor appeared to have been paid in good faith to the mother, who did not have the right of administration. Hence, if they were aware of this, they would not be released from liability, that is to say, provided the mother should prove to be insolvent.

89. The Same, Digest, Book XXIX.

A creditor provided as follows with reference to several of his claims and notes: "I, Titius Mævius, acknowledge to have received and to have in my hands (for which I have given a release to Gaius Titius) all the balance on account, after a calculation has been made of the money for which Stichus, the slave of Gaius Titius, gave me a note." The question arose whether suit could be brought to collect other notes which were not signed by Stichus, but only by the debtor himself. The answer was that only that obligation had been extinguished on which it was stated payment had been made.

(1) Lucius Titius wrote to Seius, who owed him four hundred sesterces on two notes, one of which was for a hundred, and the other for three hundred, to send him the amount of the note for a hundred by Mævius and Septicius. I ask whether Seius would be released, if he alleged that he also paid to Mævius and Septicius the amount of the note for three hundred sesterces? The answer was that if the creditor did not direct him to pay the note for three hundred sesterces, or did not ratify the payment after it had been made, that he would not be released.

(2) Lucius Titius, in two different stipulations, one calling for fifteen aurei at a high rate of interest, the other for twenty at a lower rate, bound Seius on the same date, in such a way that the note for twenty aurei should be paid first, that is to say, on the Ides of September. The debtor, after the time for payment of both stipulations had elapsed, paid twenty-six aurei, and it was not stated by the creditor under which stipulation payment was made. I ask whether what had been paid discharged the obligation which was first due; that is to say, whether the principal of twenty aurei should be considered to be paid, and the remaining six paid by way of interest. I answered that it is customary to understand it in this way.

90. The Same, Digest, Book XXVII.

A son in the capacity of heir administered the estate of his father, lent money forming part of it to Sempronius, which he received in instalments, and afterwards, being a minor, rejected the estate. The question arose whether the curator of the father's estate would be entitled to an equitable action against Sempronius. The answer was that there was nothing in the case stated to indicate that he who had paid what he had borrowed should not be released.

91. Labeo, Epitomes of Probabilities by Paulus, Book VI.

If your debtor refuses to be released by you, and he is present, he cannot be discharged by you against his will.

Paulus: Further, you can release your debtor, if he is present, even without his consent, by substituting for him someone with whom you stipulate for payment of the debt with the intention of making a novation; and even if you do not give him a release, still, so far as you are concerned, the indebtedness is immediately extinguished, since, if you attempt to collect it, you will be barred by an exception on the ground of fraud.

92. Pomponius, Epistles, Book IX.

If you promise to deliver me a slave belonging to another, or if you have been ordered to do so by will, and the slave should be manumitted by his master before you are obliged to deliver him to me, this manumission will have the same effect as death, for if the slave should die you will not be liable.

(1) If, however, anyone who has promised to give a slave, and, having been appointed an heir by the master, he delivers him to be free under a condition, he will be released.

93. Scævola, Questions Publicly Discussed.

Where there are two joint-stipulators, and one of them appoints the other his heir, let us see whether the obligation will not be merged. It has been decided that it will not be merged. What was the advantage of this decision? If the heir brings suit to compel the property to be delivered to him, it must be given to him either because he is the heir, or because he is entitled to it in his own name. A great difference, however, exists in this case, for if one of the stipulators can be barred by a temporary exception arising from the contract, it is important to know whether the heir brings the action in his own name, or as the heir, so that in this way you can ascertain whether there will be ground for an exception, or not.

(1) Again, where there are two joint-promisors, and one of them appoints the other his heir, the obligation will not be merged.

(2) If, however, a principal debtor should make the heir his surety, the obligation will be merged. And it may be considered a general rule that, where a principal obligation is joined to one which is accessory, the two are merged, but where there are two principal obligations, one of them is added to the other rather for the purpose of strengthening the action rather than to produce a merger.

(3) What is the rule where a surety appoints the principal debtor his heir? The obligation will be merged, according to the opinion of Sabinus, although Proculus dissents from it.

94. Papinianus, Questions, Book VIII.

Where anyone to whom a debtor has paid money belonging to another continues to demand payment of what is due him while the said money is in his hands, and does not offer to return what he has received, he will be barred by an exception on the ground of fraud.

(1) If, however, I lend money which is owned in common, or I pay it, a right of action and a release will immediately arise with reference to my share, whether the undivided joint interest in the money be taken into account, or whether this money is considered, not as to its corporeal existence, but as to its amount.

(2) But when a surety pays money belonging to someone else, for the purpose of being. released from liability, and it is expended, he can bring an action on mandate. Therefore, if he pays the money which he purloined, he can bring an action on mandate after he has paid the amount of the judgment obtained in an action of theft, or in one for the recovery of property.

(3) Favius Januarius to Papinianus, Greeting: Titius owed Gaius Seius a certain sum of money under the terms of a trust, and also as much more for another reason, that he was unable to collect, but which, after it had been paid, could not be recovered. A slave, who was the agent of Titius, paid the sum of money during the absence of his master, it being equal to the amount of one of the claims, and stated that it should be credited on the entire indebtedness.

I ask upon which claim the amount which was paid should be considered to have been credited. The answer was that if Seius stated to Titius that the payment should be credited on the entire indebtedness, the term "indebtedness" would seem to indicate only the sum due under the trust, and not that for which he could not bring suit, and after the payment of which the money could not be recovered. But as the slave, who was the agent of Titius, paid the money during the absence of his master, the ownership of the said money would not pass to the creditor under the kind of obligation in which recourse could be had to an exception, even if payment was alleged to be made on this debt; because it is not probable that the master would have appointed his slave to pay the money on the debt which should not be paid; any more than to make payment out of the peculium in order to release the slave from liability as surety, which the slave had assumed without reference to the benefit of his peculium.

95. The Same, Questions, Book XXVIII.

"Do you promise to deliver Stichus or Pamphilus, whichever one I may desire?" One of the slaves being dead, the survivor alone can be claimed, unless there was delay in delivering the one who died, and whom the plaintiff had chosen; for then he alone who died should have been delivered, as if he had been the only one included in the obligation.

(1) When the promisor was entitled to make the choice, and one of the slaves should die, the survivor alone can be demanded. If, however, one of them should die by the act of the debtor, as he had the right of selection, although, in the meantime, he only can be demanded who can be delivered, the debtor cannot tender the estimated value of the one who is dead, if he should happen to be much less valuable than the other; for the reason that this rule has been established for the benefit of the claimant, and to punish the promisor. Still, if the other slave should afterwards die without the fault of the debtor, an action can, under no circumstances, be brought by virtue of the stipulation as the latter, at the time of his death, had not caused the stipulation to become operative. But, as fraud certainly should not remain unpunished, an action on this ground can, not unreasonably, be employed.

The rule is otherwise, so far as the person of a surety is concerned, if he kills the slave who was promised; because he will be liable in an action under the stipulation, just as he would be if the debtor should die without leaving an heir.

(2) The acceptance of an estate sometimes merges an obligation by operation of law; for instance, where a creditor enters upon the estate of the debtor, as his heir, or, on the other hand, the debtor enters upon that of the creditor. It sometimes takes the place of payment if a creditor, who had lent money to a ward without the authority of his guardian, should become his heir; for he does not reserve from the estate merely the sum by which the ward profited, but the entire amount of the debt.

It occasionally happens that an obligation which is void is confirmed by the acceptance of an estate; for if an heir who delivered the estate in accordance with the Trebellian Decree of the Senate becomes the heir of the beneficiary of the trust, or a woman who is surety for Titius becomes his heir, the civil obligation will begin to lose the benefit of the exception on account of the inheritance of the person who was liable by law, for it is not proper to come to the relief of a woman who assumes responsibility in her own name.

(3) The common statement that a surety who becomes the heir of a principal debtor is released from liability as surety is true when the obligation of the principal promisor is ascertained to be greater. For if the principal debtor was only liable, the surety will be released.

On the other hand, it cannot be said that the obligation of the surety is not extinguished, if the debtor has a personal defence of his own; for if he lent money in good faith to a minor of twenty-five years of age, and he lost it, and the latter died within the time when he could have demanded complete restitution, leaving his surety his heir, it is difficult to hold that the right under the praetorian law by which the minor could obtain relief protects the obligation of the surety, which was the principal right, and to which the obligation of the surety was accessory, without taking into consideration the praetorian law. Therefore, the relief of restitution will be granted within the prescribed time to the surety who becomes the heir of the minor.

(4) A natural obligation is extinguished by operation of law, for instance, by the payment of money, as well as by a just agreement, or by an oath; because the bond of equity by which it is alone sustained is dissolved by the justice of the agreement, and therefore a surety given by a minor is said to be released for these reasons.

(5) The question arose whether anyone could stipulate as follows, "Do you promise to pay ten aurei to me, or to my son?" or as follows, "To me, or to my father?" A distinction can very properly be made in such cases, for when the son stipulates, the father is added only when the stipulation cannot be acquired for him; and, on the other hand, there is nothing to prevent the son from being added whenever the father stipulates, as where a father stipulates for his son, he is understood to stipulate for himself, when he does not do so expressly. In the case stated, it is clear that the son is added, not with reference to the obligation, but for the purpose of payment.

(6) I stipulate for an usufruct to be given to me, or to Titius. If Titius loses his civil rights, the power to pay him is not lost, because we can stipulate as follows: "Do you promise to pay me or Titius if his status changed?"

(7) When a lunatic or a ward is added, the money can properly be paid to his guardian or curator, if payment can legally be made to them also for the purpose of complying with a condition. This rule Labeo and Pegasus think should be adopted on account of its general convenience. It may be adopted, if the money was employed for the benefit of either the ward or the lunatic.

This is also the case, where anyone is ordered to pay a master, and pays his slave in order that he may pay his master. But where he is ordered to pay a slave, and he pays his master, he is not understood to have complied with the condition, unless he pays him with the consent of the slave.

The same opinion must be given with reference to payment, if Sempronius, having stipulated that ten aurei should be paid to him or to Stichus, the slave of Mævius, the debtor should pay the money to Mævius, the master of the slave.

(8) Where a creditor is in possession of the estate of his debtor which does not belong to him, and he obtains as much from it as would release the heir, if any other possessor of the estate were to pay him, it cannot be said that the sureties are released, for it must not be assumed that he from whom the estate has been evicted has paid the money.

(9) You have been guilty of fraud, in order to avoid being in possession of what you have taken from an estate belonging to another. If the possessor surrenders the property itself, or pays its appraised value in court, the transaction will be for your benefit, because the plaintiff has no further interest in the matter. If, however, you, having previously been sued, make payment on account of the fraud which you have committed, this will not, in any way, benefit the possessor of the property.

(10) If, by my order, you lend money to Titius, a contract of this kind resembles one made between a guardian and the debtor of his ward; and therefore, if the mandator is sued and has judgment rendered against him, reason suggests that the debtor will not be released, even though the money may have been paid, but the creditor must assign his rights of action against the debtor to the mandator, in order that the former may pay him. This has reference to the comparison which we have made with reference to the guardian and the debtor of his ward; for, as the guardian is liable to his ward for not having brought suit against his debtor, where suit is brought against one, the other will not be released; and if the guardian has judgment rendered against him, this fact will not benefit the debtor.

Moreover, it is usually stated that a contrary action on guardianship should be brought against the ward, to compel the latter to assign his rights of action against the debtors.

(11) If the creditor should lose his case against the debtor, through his own fault, it is probable that he can obtain nothing from the mandator by the action on mandate, as he himself was to blame for not being able to assign his rights of action to the mandator.

(12) If it is agreed between the purchaser and the vendor before anything has been delivered by either of them, that the sale should be annulled, the surety who has been received will be released upon the dissolution of the contract.

96. The Same, Opinions, Book XI.

The debtor of a ward, having been delegated by his guardian, paid the money to the creditor of the latter. Release will take place, if it is proved that this was done without any fraudulent arrangement with the guardian. When fraud is committed, however, the creditor of the guardian will be liable to the ward under the interdict based on fraud, if it should be established that he participated in it.

(1) Where a female ward became the heir of a magistrate who had fraudulently appointed a guardian for another minor, her guardians compromised with the latter. The female ward refused to ratify the compromise. She will, nevertheless, be released by the money of her guardian, and the guardians cannot bring a Prætorian action against the minor, who received that to which he was entitled. It is evident that, if the minor should prefer to refund the money to the guardian of the female ward, after having annulled the transaction, he will be entitled to a praetorian action against the said ward who was the heir of the magistrate.

(2) A sister to whom a legacy was due from her brother, who was the heir, after an action to collect the legacy had been brought, made a compromise; and, being content with the note of the debtor, took no further steps to obtain her legacy.

It was decided that, although no delegation was made, and no release took place, the risk of the note was still hers. Therefore, if she should claim the legacy, after having made the agreement, she could be legally barred by an exception based upon the agreement.

(3) Where pledges are given for two contracts at the same time, the creditor should credit any sum which he receives on the two contracts, in proportion to the amount of each debt, and the choice does not depend upon his will, as the debtor submitted the value of the property pledged to the said contracts in common. It was decided that, if the dates were separated, and the excess value of the pledges was liable, the first obligation would be legally paid by the price received for the pledge, and the second by the excess of the same.

(4) When anyone who has been appointed heir deliberates as to whether he will accept the estate, and money has been paid to a substitute by mistake to discharge a debt, and the estate afterwards falls to him, the reason for the condition disappears. On this account the obligation of the indebtedness is extinguished.

97. The Same, Definitions, Book II.

When a debtor pays money on account of several claims, and does not indicate which one of them he wishes to discharge, that which involves infamy is considered to be entitled to the preference; next, the one to which a penalty is attached; third, one which is secured by the hypothecation or pledge of property; and after this an individual obligation shall have priority, rather than one for which another is liable, as, for instance, that of a surety. The ancient authorities established this rule because it seemed to them probable that a diligent debtor, if properly advised, would transact his business in this manner.

Where none of these conditions exist, payment should first be made upon the oldest claim. If the amount paid is larger than that required by any single debt, the first obligation which has the preference having been discharged, the surplus will be considered to have been credited on the second one, either in full satisfaction, or for the purpose of diminishing it to that extent.

98. Paulus, Questions, Book XV.

A certain man encumbered his property, and afterwards placed an additional lien on one of the tracts of land by promising it as a dowry for his-daughter, and transferred it. If the latter should be evicted by the creditor, it must be held that the husband can proceed under the promise of the dowry, just as if the father had given, by way of dowry to his daughter, a slave who was to be free under a condition, or a legacy which had been conditionally bequeathed; for the delivery of these things cannot afford a release from liability, that is to say, except where they are certain to remain intact.

(1) A different opinion must be given with reference to the money or property which a patron, under the Favian Law, takes for himself after the death of his freedman; for this action, as it is recent, cannot revoke a release from liability when it has once been obtained.

(2) A minor of twenty-five years of age, who has been deceived by his creditor, is entitled to the benefit of this rule, and can obtain restitution of whatever he has paid on account of his debt.

(3) Where a father pays money belonging to a castrense peculium, we must understand this to be just as if he had made payment with what belonged to another; although it can remain in the possession of him to whom it was paid, if the son should die first, and intestate. But it is considered to be acquired only when the son dies, and the event has declared to whom it belongs. This is one of the cases in which matters, which subsequently occur, show what has previously happened.

(4) I can make a valid stipulation for ten aurei to be paid to me or to Titius absolutely on the Kalends; or conditionally to me on the Kalends of January, or to Titius on the Kalends of February. A doubt may arise as to its validity if it is to be paid to me on the Kalends of February, and to Titius on the Kalends of January. It is better, however, to say that the stipulation is valid, for as this stipulation has reference to a fixed time, payment cannot be made to me before the Kalends of February; and therefore payment can also be made to him.

(5) Where anyone stipulates for himself or for Titius, and says that if you do not pay Titius, you must pay him, he is held to have stipulated conditionally. Therefore, even if the stipulation was made as follows, "Do you stipulate to pay me ten aurei, or Titius five?" and five are paid to Titius, the principal debtor will be released, so far as the stipulator is concerned. This can be admitted if it was expressly understood a penalty should, so to speak, be imposed upon the promisor, if payment was not made to Titius. But where anyone stipulates simply for himself, or for Titius, Titius is only added for the sake of payment; and therefore where five aurei have been paid to him, the other five still remain in the obligation. And, on the other hand, if I stipulate for five aurei to be paid to me, and ten to be paid to him, and five are paid to Titius, the terms of the stipulation do not permit me to be released. Moreover, if he pays ten, and does not demand that five be refunded, ten will be due to me in an action on mandate.

(6) I stipulate for payment to me at Rome, or to Titius at Ephesus. Let us see whether, by payment to Titius at Ephesus, the debtor will be released from liability to me. If these are different acts, as Julianus thinks, the question is not the same. For, as the debtor is released on account of payment, which is the principal thing, he will be released, even if I should stipulate that Stichus be given to me, and Pamphilus to Titius, and he delivers Pamphilus to Titius; but when I stipulate merely for an act, for instance, for the construction of a house on my ground, or on that of Titius, if he builds on the ground of Titius, will not a release take place? for no one has said that, where one act is given for another, a release takes place. The better opinion is that, in this instance, it does take place, because one act is not considered to be performed for another, but the choice of the promisor is carried out.

(7) When a slave, subject to an usufruct, stipulates with reference to the property of the usufructuary, or for the benefit of the owner of the property, or for that of the usufructuary himself, the stipulation is void. But if he stipulates with reference to the property of the owner, for the benefit of the latter, or for that of the usufructuary, the stipulation will be valid; for, in this instance, the usufructuary can only receive payment, but cannot acquire any obligation.

(8) I promised land belonging to another, and the owner built a house on this land. The question arises whether the stipulation is extinguished. I answered that if I promised the slave of another, and he should be manumitted by his master, I will be released. The statement of Celsus is not accepted; that is to say, if the same slave should again be reduced to servitude by any law whatever, he will be considered as another slave. And he does not make use of a similar argument when he says that if, after you have promised a ship, the owner of the same ship should take it apart, and afterwards rebuild it with the same materials, you will be liable for it. For, in this instance, the ship is the same which you have promised to furnish, so that the obligation seems rather to have been suspended than extinguished. This case would be similar to that of the manumitted slave, if you suppose the ship to have been taken apart with the intention of converting the materials of which it was composed to other uses, and then the owner having changed his mind, they have been put together again. For this last ship seems to be a different one, just as the slave appears to be another man. The ground, however, on which the house was built causes a distinction to arise, for it does not cease to exist; and further, it can be claimed and its appraised value be paid, for the land is a part of the house, and, indeed, the greater part of it, since even the surface belongs to it. A different opinion, however, must be given if the slave who was promised should be captured by the enemy, for under these circumstances he cannot be claimed, just as if the time for doing so had not yet arrived; but if he should return under the law of postliminium, he can then lawfully be claimed, for this obligation remains in suspense, but the land continues to exist, just as all the other materials of which the building is composed.

Finally, the Law of the Twelve Tables provides that a person can recover timbers fastened to his house, but, in the meantime, it prohibits them from being removed, and directs that their appraised value should be paid.

99. Paulus, Opinions, Book IV.

Holds that a debtor should not be compelled to receive his money in other property, if he will sustain any loss by doing so.

100. The Same, Opinions, Book X.

Where curators or guardians are appointed in,a province, I ask whether money which was lent by them, at interest, in the province, under the condition that it should be paid at Rome, can be paid to them there, when the said curators or guardians did not have the administration of the property in Italy; and if payment is made to them, whether the debtor will be released. Paulus gave it as his opinion that the money which was due to a ward could properly be paid to his guardians or curators who transacted his business, and that those appointed guardians or curators in a province do not usually administer the affairs of their trust in Italy, unless the guardians in the province expressly provide that payment should be made to them at Rome.

101. The Same, Opinions, Book XV.

Paulus gave it as his opinion that those who are obliged to contribute equal shares under the terms of a trust do not appear to be released, because certain of their colleagues, through mistake, have contributed more than was due.

(1) Paulus also held that the obligation of the debtor who pays is one thing, and the claim of a creditor who sells a pledge is another; for when a debtor pays a sum of money, it is in his power to determine on what obligation he pays it. When, however, a creditor sells a pledge, he can credit the price of the same even upon something which is only due by nature, and therefore, after deducting this natural debt, he can demand the remainder as due.

102. Scævola, Opinions, Book V.

A creditor postponed the acceptance of money tendered by his debtor in order to receive it at another time. This money, which the government was then using, was soon afterwards withdrawn from circulation by order of the Governor, as containing too much copper. Certain money belonging to a minor, which had been kept in order to be invested in good notes, was also rendered worthless.

The question arose, who would be compelled to bear the loss? I answered that, according to the facts stated, neither the creditor nor the guardian would be compelled to bear it.

(1) The parties to a loan having agreed as to the principal of the debt but being involved in litigation with reference to the interest, it was finally decided on appeal that the interest which had been paid could not be recovered, and would not afterwards be due. I ask whether the money which had been paid should be credited on the interest, as was claimed by the plaintiff, or whether it should be employed to reduce the principal. I answered that if he who paid it said that he did so in order that it might be credited on the principal, it should not be credited as interest.

(2) Valerius, the slave of Lucius Titius, drew up the following receipt: "I have received from Marius Marinus such-and-such a sum of aurei to be credited on a larger amount." I ask whether this amount should be credited for the coming year, as it constituted the balance for the past year. I answered that the payment should be considered a credit upon any sum which was previously due.

(3) Titius borrowed a sum of money, promised to pay interest at the rate of five per cent, and did so pay for a few years, and afterwards, without any agreement to that effect, but through mistake and ignorance, paid interest at six per cent. If the mistake should be discovered, I ask whether the amount which he had paid over and above the interest agreed upon in the stipulation would diminish the principal. The answer was, if he had paid more interest by mistake than he owed, any excess should be credited upon the principal.

103. Mæcianus, Trusts, Book II.

When a debtor owing several debts pays money, Julianus very properly holds that it ought to be considered as credited on the obligation which, at the very time he paid it, he could have been compelled to satisfy in full.

104. The Same, Trusts, Book VIII.

Payments and releases made by the heir before the estate is transferred should be ratified.

105. Paulus, On the Falcidian Law.

When we say with regard to an heir that he should repay immediately to the surety of the testator what the surety had paid before the acceptance of the estate, must be understood to admit of some slight delay, for he need not come immediately with his bag of money.

106. Gaius, On Oral Obligations, Book II.

It is one thing to be able to pay Titius in accordance with the terms of a stipulation, and another for this to take place by my permission. For if payment is properly made by virtue of the stipulation, the creditor can legally be paid even if I forbid it to be done; but if I permit payment to be made, this will not be legal, if,,before it takes place, I notify the promisor not to pay.

107. Pomponius, Enchiridion, Book II.

An oral obligation is discharged either naturally or civilly. It is discharged naturally, for instance, by payment, or where the property mentioned in the stipulation has ceased to exist without the fault of the promisor. It is discharged civilly, for example, by a release, as where the rights of the stipulator and the promisor become united in the same person.

108. Paulus, Manuals, Book II.

Where anyone, in obedience to my mandate, makes a stipulation to be executed after my death, payment will legally be made to him, because such is the law of obligations. Therefore he can legally be paid, even against my consent. But when I have ordered my debtor to pay someone after my death, payment will not be legally made, because the mandate is annulled by death.

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TITLE IV. CONCERNING RELEASE.

1. Modestinus, Rules, Book II.

A release is a discharge from liability through mutual interrogation, by means of which both parties are freed from compliance with the same contract.

2. Ulpianus, On Sabinus, Book XXIV.

It is established that a ward can be discharged from liability by means of a release, without the authority of his guardian.

3. Paulus, On Sabinus, Book IV.

No-one can be freed from liability through an agent, nor can anyone be discharged by a release without a mandate.

4. Pomponius, On Sabinus, Book IX.

A release cannot be granted under a condition.

5. Ulpianus, On Sabinus, Book XXXIV.

A release to date from a certain time is of no force or effect, for a release discharges a person from liability in the same way as a payment.

6. The Same, On Sabinus, Book XLVII.

Where several stipulations have been entered into, and the promisor demands a release, as follows, "Do you acknowledge the receipt of what I have promised you?" and it is clear to what reference is made, it alone will be disposed of by the release. If this is not clear, all of the stipulations will be extinguished, provided we bear in mind that if I had intended to grant the release of one debt, and you had asked for the release of another, the transaction will be void.

7. The Same, On Sabinus, Book L.

It is certain that a release can be made as follows, "Do you acknowledge the receipt of ten aurei?", and the other party answers "I do."

8. The Same, On Sabinus, Book XLVIII.

The question arises whether a release which is of no effect can include a valid agreement. It includes an agreement, unless the intention is otherwise. Someone may say, "Can it not then be a consent?" Why can it not be? suppose that he who makes the release, being well aware that it will be of no effect, grants it; who would entertain any doubt that there was no agreement, since he did not have the consent required to render one valid?

(1) As a slave owned in common can stipulate for one of his masters, he can also receive a release for him, and by so doing, he entirely discharged him from liability. Octavenus is of the same opinion.

(2) A slave owned in common can receive a release from one of his masters for the discharge of the other; and this opinion is held by Labeo. Finally, in the Book of Probabilities, he says that if the slave has stipulated with his first master for the benefit of his second, who is his partner, he can demand a release from the second, and by means of it, release his first master, whom he himself had bound by an obligation. Hence it happens that an obligation is contracted and annulled by one and the same slave.

(3) Only a verbal contract can be dissolved by a release, for it destroys the oral obligation, as it, itself, is verbally made; for what has not been contracted by words cannot be annulled by them.

(4) A son under paternal control does not bind his father civilly by promising, but he binds himself. Hence a son under paternal control can ask for a release in order to be discharged from liability, because he himself is bound; but the father, by making the interrogatories with reference to the release, does not produce any legal effect, for the reason that not he himself, but his son, is bound.

The same rule applies to the case of slaves; for a slave can be discharged by a release, and even praetorian obligations are extinguished if they are against the master, because this is our practice, and a release is part of the Law of Nations. Therefore, I think that the release can be expressed in the Greek language, provided the same formula is used as in Latin, that is, "Do you acknowledge the receipt of so many denarii?" "I do."

9. Paulus, On Sabinus, Book XII.

A part of a stipulation can be annulled by a release, as where anyone says, "Do you acknowledge the receipt of five of the ten sesterces which I have promised to pay you?" And also if anyone should ask, "Do you acknowledge the receipt of half of what I have promised you?"

10. Pomponius, On Sabinus, Book XXVI.

If, however, it is not money, but some other property, as, for instance, a slave, which is the object of the stipulation, a release can be granted for a portion of the same, as it can be granted for the benefit of one of several heirs.

11. Paulus, On Sabinus, Book XII.

One method of acquisition is the liberation of an owner from an obligation; and therefore a slave in whom someone has the usufruct can, by obtaining a release, discharge the usufructuary, because he will be considered to acquire the property of the latter. Even when we have only the use of property, the same rule applies. We say the same thing with reference to a person who is serving us in good faith as a slave, as well as to others subject to our authority.

(1) If, however, I release the slave who has himself promised to pay me, I cannot avail myself of any praetorian action against his master, which is granted with reference to peculium, or on account of the benefit accruing to property.

(2) Where a slave belonging to an estate, before it is entered upon, asks for a release which the deceased promised to give, I think that the better opinion is that he will be freed from liability, so that, in this manner, the estate itself will be released.

(3) But even if the master is in the hands of the enemy, it must be said that a release is confirmed by the right of postliminium; for a slave can stipulate for his master who is in the hands of the enemy.

12. Pomponius, On Sabinus, Book XXVI.

Anything which is due from a certain date, or under a condition, can be disposed of by means of a release. This, however, will appear to be done only where the condition is complied with, or the time has arrived.

13. Ulpianus, On Sabinus, Book L.

It is better to say that the obligation for services promised by the oath of a freedman can be extinguished by a release.

(1) If what is the object of a stipulation is not susceptible of division, the release of a portion of it will be of no force or effect; as, for instance, where it is a servitude attaching to a rustic or an urban estate. It is clear that if an usufruct, for instance, of the Titian Estate, is the object of the stipulation, a release can be made for a part of it, and the usufruct of the remaining portion of the land will continue to exist. If, however, anyone should stipulate for a right of way, and a stipulation is granted for a right of passage, or a driveway, it will be of no effect. This opinion should also be adopted if a release is made for a driveway. But where a release is granted for both a passage and a driveway, the result will be that he who promised the right of way will be released.

(2) It is certain that anyone who stipulates for a tract of land, and consents to the release of the usufruct, or of a right of way through said land, commits an act which renders the release void; for he who grants a release must do so for the entire right, or that part of it which is included in the stipulation. These things, however, are not parts of the land, any more than if someone, having stipulated for a house, should give a release for the stones or windows, or for a wall, or a room.

(3) Where anyone having stipulated for an usufruct gives a release for the use, and does so believing that only the use was due, there will be no release. If, however, he did this in order to deduct it from the usufruct, when the use can be established without the usufruct, it must be held that the release is valid.

(4) Where anyone who stipulated for a slave gives a receipt for Stichus, Julianus, in the Fifty-fourth Book of the Digest, says that the release has an effect, and that is to extinguish the entire obligation; for what the promisor can pay to the stipulator, even against his consent, being the object of the release, discharges the former from liability.

(5) Where anyone stipulates for a tract of land, it is decided that the clause having reference to fraud cannot be included in the release, for this does not constitute a part of the debt, as what is due is one thing, and what is released is another.

(6) If anyone stipulates for Stichus, or ten aurei, under a condition, and receipts for Stichus, or ten aurei, and while the condition is pending, Stichus dies, the ten aurei will remain in the obligation, just as if a release had not been given.

(7) If a release is granted to a surety, where the principal debtor was liable on account of the property, but not by words, will he also be released? It is our practice that, although the principal debtor may not be bound by words, still he will be discharged from liability on account of the release granted to his surety.

(8) When a surety is given for a legacy payable under a condition, and a release is given him, the legacy will be due as soon as the condition upon which its payment is dependent is complied with.

(9) Where anyone stipulates with a surety as follows, "Do you promise to be responsible for what I shall lend to Titius?" and then, before he lends him the money, he gives a release to the surety, the principal debtor will not be discharged, but when the money is lent to him he will be liable. For, although we think that the surety is not released before the money is lent to the principal debtor, still the latter cannot be discharged by a release which precedes his obligation.

(10) The guardian or curator of an insane person cannot consent to a release, nor can an agent do so, but all these persons must make novations; for, in this way, they can grant releases. Nor can a release be made for their benefit, but if a novation is made first, they can be discharged by means of a release.

We are accustomed to apply this remedy with reference to an absent person, when we stipulate with someone for the purpose of making a novation of what the former owes us, and in this way we release him with whom we have stipulated. The result is that the absent person is released by the novation, and the one who is present is freed from liability by a release.

(11) An heir, as well as Prætorian successors, can release others, and be released in this manner.

(12) Where one of several joint-stipulators grants a release, it will apply to the entire amount which is due.

14. Paulus, On Sabinus, Book XII.

Unless the release agrees with the stipulation, and what is stated in the release is true, it is imperfect; because words cannot be annulled by words, unless they agree with one another.

15. Pomponius, On Sabinus, Book XXVII.

If anyone, who has promised Stichus, makes the following interrogation, "As I have promised Stichus, do you acknowledge the receipt of Stichus and Pamphilus?" I think that the receipt is valid, and that the mention of Pamphilus is merely superfluous; just as where a man who has promised ten aurei makes the following interrogation, "As I have promised you ten aurei, do you acknowledge the receipt of twenty?" he will be released from liability for ten.

16. Ulpianus, Disputations, Book VII.

Where a release is granted to one of several persons, who are liable, he alone will not be released, but also all of those who are liable with him; for whenever a release is granted to one of two or more persons who are liable under the same obligation, the others are also discharged, not because the release was granted to them, but because he who was freed from liability by the release was considered to have paid the debt.

(1) If a surety is granted for the payment of a judgment, and a release is given him, the person against whom the judgment was rendered will also be discharged from liability.

17. Julianus, Digest, Book LIV.

Where anyone stipulates for a slave or ten aurei, and receives a receipt for five, he extinguishes a part of the stipulation, and he can demand five, or the half of a slave.

18. Florentinus, Institutes, Book VIII.

A release and a discharge from liability can be granted either in one, or in several contracts, whether they are certain or uncertain; or with reference to some, reserving the others; or for all of them, for any reason whatsoever.

(1) The following is the formula of a stipulation and a release, drawn up by Gallus Aquilius: "All that you owe, or shall owe me for any reason whatsoever, either now or after a certain date, for which I can now, or shall be able to bring suit against you, on a claim, or a right to collect; or any property of mine which you have, hold, or possess, and all the value of any of the things aforesaid, Aulus Agerius has stipulated for, and Numerius Nigidius has promised to pay. And Numerius Nigidius has asked Aulus Agerius if he acknowledges the receipt of what he promised him, and Aulus Agerius has granted a release for the same to Numerius Nigidius."

19. Ulpianus, Rules, Book II.

If a release should be granted to someone who is not bound by words, but by the property, he will not, indeed, be freed from liability, but he can defend himself by an exception on the ground of bad faith, or on that of an informal agreement.

(1) The following difference exists between a release and a receipt: by a release, absolute discharge from liability takes place, even if the money has not been paid; but a receipt does not have this effect, unless the money has actually been paid.¹

¹According to the English and American Law, a receipt being merely an acknowledgment of the payment of money, or of the delivery of other personal property, is by no means conclusive; and, unlike other instruments in writing, is subject to modification and contravention by oral testimony. Not so, however, with a release, which, executed under seal, with all the formalities of a deed, estops the grantor from denying an act which had deliberately and solemnly been performed. A release being the formal renunciation of a right, its binding character was recognized by the earliest authorities of the Common Law. The effect of a general release is this stated by Littleton: "Also if a man release to another all manner of demands, this is the best release to him to whom the release is made that he can have, and shall enure most to his advantage. For by such release of all manner of demands, all manner of actions reals, personals, and actions of appeale, are taken away and extinct, and all manner of executions are taken away and extinct." (Littleton, Tenures, III, Vill, 508.)

The restriction attaching to a release he defines as follows: "No right passeth by a release, but the right which the releasor hath at the time of the release made." (Ibid., Ill, Vill, 446.)

But when relating to conveyances of real property, accompanied with covenants of warranty, it bars the grantor from claiming any right which may be subsequently acquired: "Albeit the release cannot barre the right for the cause aforesaid, yet the warranty may rebutt, and barre him and his heires of a future right which was not in him at that time." (Coke, Institutes, II, 265 a.)—ED.

20. The Same, On the Edict, Book LXXVII.

Where a release has been granted with reference to the clause providing for the payment of a judgment, Marcellus says that the remaining parts of the stipulation are extinguished, because they cannot be interposed except to enable the case to be decided.

21. Venuleius, Stipulations, Book XI.

If I stipulate for the purpose of making a novation on account of a legacy which was bequeathed to me under a condition, and I release my right to it before the condition is fulfilled, Nerva, the son, says that even if the condition should be fulfilled, I will not be entitled to an action under the will, because a novation took place, nor can I bring one under the stipulation, as the right to do so has been extinguished by the release.

22. Gaius, On Oral Obligations, Book III.

A slave cannot give a release by the order of his master.

23. Labeo, Epitomes of Probabilities, by Paulus, Book V.

If I should make a release to you, I will not, for that reason, be freed from liability, so far as you are concerned.

Paulus: But when a hiring, a lease, a purchase, or a sale has been made under an agreement, and the property has not yet been delivered, even though only one of the contracting parties may have consented to a release, all of them, however, will be discharged.

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TITLE V. CONCERNING PRAETORIAN STIPULATIONS.

1. Ulpianus, On the Edict, Book LXX.

There are three kinds of praetorian stipulations; namely, judicial, cautional, and common.

(1) We call those stipulations judicial which are interposed on account of a judgment, in order to procure its ratification, so that it may be paid, or notice served with reference to the construction of a new work.

(2) Cautional stipulations are those which take the place of a lawsuit, and are introduced to permit a new action to be brought; such are stipulations with reference to legacies and guardianships, to enable ratification to be made, and for the prevention of threatened injury.

(3) Common stipulations are those which are entered into for the purpose of causing a party to appear in court.

(4) It should be remembered that all stipulations are in their nature cautional, for in agreements of this kind the intention is that, by means of them, a person may be rendered more secure and safe.

(5) Some of these praetorian stipulations require security, others merely a promise; but there are very few of them which require a mere promise, and, when they are enumerated, it will be evident that those which are mentioned are not promises, but obligations with security.

(6) A stipulation made with reference to notice of a new work sometimes includes security, and sometimes a promise. Hence, after what kind of a notice to discontinue a new work should security be given? How should it be given? Security must be given for a work which is constructed on private property, but where it is constructed on public lands, a mere promise will be sufficient. Those, however, who contract in 'their own names promise; those who contract in the name of another furnish security.

(7) Likewise, in a case of threatened injury, sometimes a promise is made, and at others security is given; for when anything is built in a public stream, security is furnished, but a mere promise is made with reference to houses.

(8) Stipulation for double damages is a promise, unless an agreement was made that security should be furnished.

(9) Where, however, there is some controversy, as, for instance, if, for the purpose of annoying an adversary, it is stated that a stipulation should be interposed, the Prætor himself should decide the case summarily, and either order security to be furnished, or refuse it.

(10) But where anything is to be added, taken from, or changed in the stipulation, this belongs to the jurisdiction of the Prætor.

2. Paulus, On the Edict, Book LXXIII.

Praetorian stipulations either involve the restitution of the property, or an indeterminate amount,

(1) As, for instance, the stipulation with reference to notice of a new work, whereby it is provided that everything shall be restored to its former condition. Therefore, whether the plaintiff or the defendant dies, leaving several heirs; and whether either of them gains, or loses the case, everything must be restored to its former condition; for as long as anything remains it cannot appear that complete restitution has been made.

(2) A stipulation involves an indeterminate amount, when an agreement is made that the judgment shall be paid; that the principal will ratify what has been done; that injury will not be caused; and other things of this kind. With reference to these, it can be said that they are divided among the heirs, although it may be maintained that a stipulation made by the deceased, and which descends from him, cannot, in the persons of his heirs, render their condition different.

But, on the other hand, it is perfectly reasonable that if one of the heirs of the stipulator gains his case, the stipulation will become operative, so far as his share is concerned; since this is caused by the words of the stipulation: "As much as the property is worth."

(3) If, however, one of the heirs of the promisor is in possession of the entire property, Julianus says that judgment must be rendered against him in full. It may be doubted whether he himself, as well as his sureties, are liable under the stipulation, or even liable at all; and it is a question whether the stipulation becomes operative. If the possessor should die after issue has been joined, one of the heirs ought not to have judgment rendered against him for a larger share than he is entitled to from the estate, even though he may be in possession of all the land.

3. Ulpianus, On the Edict, Book LXX1X.

Generally speaking, in all praetorian stipulations security is furnished, even to agents.

4. Paulus, On the Edict, Book LXXV.

Prætorian stipulations are often interposed when, without the fault of the stipulator, the security ceases to exist.

5. The Same, Qn the Edict, Book XLVIII.

In all praetorian stipulations, it should be noted that if my agent stipulates for my benefit, an action will lie in my favor by virtue of the stipulation, if proper cause is shown.

The same thing happens where a factor is in such a position that, through his personal interposition, the principal will lose his merchandise; for example, where his property is to be sold, for the Prætor should come to the relief of the principal.

6. The Same, On Plautius, Book XIV.

In all praetorian stipulations in which something is to be previously done, and if it is not done, we impose a penalty, the stipulation takes effect on account of the penalty.

7. Ulpianus, On the Edict, Book XIV.

Prætorian security requires persons to appear for themselves, and no one can replace this kind of security by pledges, or by depositing money or articles of gold or silver.

8. Papinianus, Questions, Book V.

Paulus says that when anyone is appointed under a condition, and is recognized as capable of holding possession of the estate, he will be compelled to give security to the substitute, but for a more remote date. For the Prætor does not wish the benefit which he confers to become a source of deceit, and a man can seem to demand security for the purpose of annoyance, when another precedes him.

(1) When a legacy has been bequeathed to Maevius and to Titius, under opposite conditions, security is furnished to both of them, because both expect a legacy under the will of the deceased.

9. Venuleius, Stipulations, Book I.

In praetorian stipulations, if the language is ambiguous, it is the duty of the Prætor to interpret it, for its intention should be determined.

10. Ulpianus, Opinions, Book I.

Answers Valerianus. If the Prætor, who previously had ordered security furnished for three years afterwards, should direct it to be given for a longer time, because he desired that the first stipulation should be abandoned, he is considered to have granted an exception to those who were bound by the first stipulation.

11. Venuleius, Actions, Book VIII.

In stipulations which include a promise of as much as the property is worth, it is more convenient to mention a definite sum, for the reason that it is frequently difficult to prove the amount of the interest of each of the persons in question and this is reduced to a very small sum.

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TITLE VI. CONCERNING SECURITY FOR THE PROPERTY OF A WARD OR MINOR.

1. Paulus, On the Edict, Book XXIV.

Where security is given that the property of a ward shall be safe, proceedings can be instituted under this stipulation whenever the action on guardianship can be brought.

2. Ulpianus, On the Edict, Book LXXIX.

If a minor is absent, or cannot speak for himself, his slave can stipulate for him. If he has no slave, one should be bought for him. When, however, there is nothing with which to buy one, or it is not expedient to do so, we hold that a public slave can certainly stipulate in the presence of the Prætor¹.

¹ Public slaves, who were the property of the government, were often employed in positions of trust, and discharged duties involving considerable power and responsibility. They attended the tribunals, and served the orders of the various judicial and executive officials of the State, the quaestors, prætors, ædiles and consuls, in the capacity of messengers, lictors, firemen, guards, bailiffs, and executioners. Their enormous numbers, obstructing the courts of justice, and even interfering with the movements of the citizens, are often alluded to by Roman writers. "Stipati servis publicis -non modo prendi non possunt, sed etiam ultra submovent populwm." (Aulus Gellius, Noctæ Atticæ, XIII, 13.) Constant association with persons in authority, and their superior rank, caused them to be invested with many privileges not enjoyed by domestic slaves. As a rule, their duties were far less onerous. They were more frequently manumitted. They could own property, and even other slaves, and were authorized by law to dispose of half of their estates by will. They exercised subordinate religious functions, and, at times, concealed fugitives who had violated the law, and sought sanctuary in the temples. "Piso in asdevn Vestx pervasit, exceptusque misericordia publici servi et contubernio eius abditus non religione nee cierimoniis, sed latebra inminens exitium differebat." (Tacitus, Historic, I, 43.)

Under the judicial system of the Visigoths, royal slaves of superior station were permitted to testify in court, from which others of servile condition were excluded, as being absolutely unworthy of credit, especially in criminal cases. "Servo penitus non credatur, si super aliquem crimen obiecerit, aut ctiam si dominum suum in crimine impetierit; exceptis servis nostris, qui ad hoc regalibus servitiis mancipantur, ut non immerito palatinis officiis liberaliter honorentur, id est, stabulariorum, gillonariorum, argentariorum, cocorumque preepositi, vcl si qui pr xter hos superiori ordine vel gradu prascedunt." (Forum Judicum, II, IV, 4.) — ED.

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

Or the Prætor can appoint someone to whom security can be given.

4. The Same, On the Edict, Book LXXIX.

Such a slave does not acquire for the minor by operation of law, for he does not acquire; but a praetorian action based on the stipulation may be granted to the minor.

(1) A guarantee, however, is given to the minor under this stipulation, by means of the security.

(2) It should be remembered that not only the guardian is bound by this stipulation, but also he who transacts the business in the place of the guardian, as well as their sureties.

(3) He, however, who has not transacted the business will not be liable, for an action on guardianship cannot be brought against one who has not administered it; but he should be sued in a praetorian action, because he withdrew at his own risk, and still, neither he himself nor his sureties, will be liable in a suit based on the stipulation. Therefore, he should be compelled to undertake the management of the trust, in order that he may be rendered liable under the stipulation.

(4) It is decided that this stipulation becomes operative when the guardianship terminates, and that then the sureties begin to be liable.

The rule is different with reference to a curator. It is also different where someone has transacted the business in the place of a guardian. Therefore, stipulations of this kind, where there is a guardian, become operative when the guardianship comes to an end, but where anyone acting as a guardian has administered the trust, it is proper to hold that as soon as the estate begins to be insecure the stipulation will become operative.

(5) When a guardian is captured by the enemy, let us see whether the stipulation will become operative. A difficulty arises in this case, because the guardianship is terminated, although there is a prospect that it may be renewed. I think that the action can be brought.

(6) Generally speaking, it should be remembered that, for whatever reasons we have stated that an action on guardianship cannot be brought, it can be said for the same reasons that one can be brought under the terms of the stipulation, in order to preserve the property of the ward.

(7) If anyone, who has been appointed curator, should not administer the curatorship, the result will be that it must be said that the stipulation does not take effect; but, in this instance, what we stated with reference to a guardian should be repeated, with this 'difference, however, that the stipulation will take effect as soon as any of the property ceases to be secure, and the sureties will become liable, and the right of action will be revived.

(8) This stipulation has reference to all curators, whether they are appointed for children arrived at puberty, or for such as have not reached that age, or whether they have been appointed for spendthrifts, insane persons, or any others for whom this is ordinarily done.

5. Paulus, On the Edict, Book LXXVI.

If a son, who is under the control of an insane person, stipulates for the preservation of his property, he acquires an obligation for his father.

6. Gaius, On the Provincial Edict, Book XXVII.

The slave of a minor must stipulate, if the minor is absent, or cannot speak for himself. For if he is present, and can speak for himself, although he may be of such an age that he is incapable of understanding what he is doing; still, on account of the advantage resulting, it has been decided that he can legally stipulate, and act.

7. Modestinus, Rules, Book VI.

A testamentary guardian or curator does not demand security from his colleague, but he can give him the choice of either receiving or giving security.

8. Ulpianus, On the Edict, Book II.

Although a curator is appointed for certain specific purposes, a stipulation for the preservation of the property may be interposed.

9. Pomponius, On Sabinus, Book XV.

Where a ward stipulates with his guardian that his property shall remain secure, not only his patrimony, but also any credits, are considered to be included in the stipulation; for whatever can become the subject of an action on guardianship is embraced in this agreement.

10. Africanus, Questions, Book HI.

If, after a ward has arrived at the age of puberty, his guardian should be in default for some time in rendering an account of his administration, it is certain that, so far as the profits and interest of the intermediate time are concerned, he, as well as his sureties, will be liable.

11. Neratius, Parchments, Book IV.

When security is furnished to a ward for the preservation of his property, the stipulation will become operative if anything which should be given or done on account of the guardianship is not executed. For although the property itself may be secure, it is not so where something which should be paid or done on account of the guardianship is not carried into effect.

12. Papinianus, Questions, Book XII.

Where several sureties have been given by a guardian to his ward, no distinction should be made, but an action can be granted against any one of them, so that the rights of action can be assigned to the one against whom suit is brought. Nor should it be thought that this is a violation of the rule of law which says that guardians shall have judgment rendered against them in proportion to the share of the estate which each has administered; and that they can only be sued for the entire amount where the property has not been cared for by the others; and where they are proved to have failed to accuse one of their number of being liable to suspicion. For the equity of the judge, as well as the duty of a good citizen, appear to have required this provision of the law.

Moreover, those sureties who are civilly liable in full, when the others proceed against them, can ask that the action be divided; but when the ward brings suit, if he himself did not make the contract, and he is in the hands of his guardian, and is ignorant of everything, the benefit of dividing the action would appear to be productive of injury; as, under a single guardianship, many dissimilar questions may be presented to different judges for their decision.

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TITLE VII. CONCERNING SECURITY FOR THE PAYMENT OF A JUDGMENT.

1. Paulus, On the Edict, Book XXIV.

The stipulation for the payment of a judgment becomes operative immediately after the decision is rendered; but the execution is postponed for the time granted to the principal debtor.

2. The Same, On the Edict, Book LXXI.

When the suit is ended the obligation is disposed of, and therefore it is held that under the stipulation the sureties are not liable for the payment of the judgment.

3. Ulpianus, On the Edict, Book LXXVII.

If anyone, being about to appear before a certain judge, should stipulate for the payment of a judgment, and bring suit in another court, the stipulation will not take effect, because the sureties did not subject themselves to the decision of this judge.

(1) An agent, a guardian, and a curator, can stipulate for the payment of a judgment.

(2) We should understand an agent to be one upon whom authority has been conferred, either specially for this purpose, or generally for the administration of all the property. And he is even considered to be an agent if his acts subsequently should be ratified.

(3) The question arises, if a child or a relative should happen to interfere in the transaction of business, or a husband should do so in behalf of his wife, persons from whom no mandate is required, whether the stipulation will take effect. The better opinion is that it should not, unless authority was granted, or what has been done is ratified; for while they are permitted by the Edict of the Prætor to act, this does not render them agents; and therefore, if anyone of this kind should offer his services voluntarily, he must again furnish security.

(4) What we have said with reference to a guardian, however, must be understood to mean that if he is a person who administered a guardianship, when he was not actually a guardian, he should not be designated by that appellation.

(5) But even if he is a guardian, and does not transact business as one, or if he is not aware that he is a guardian, or any other cause exists, it must be said that the stipulation will not take effect. For, by the Edict of the Prætor, the power of acting as guardian is granted to him to whom the guardianship was entrusted, either by the father, by the majority of the guardians, or by those invested with competent jurisdiction.

(6) By the term curator, we understand the curator of an insane person of either sex, or of a male or female ward, or of any other person, for example, a minor, and, under these circumstances, I think that the stipulation will take effect.

(7) If we suppose that a guardian appointed for any region or province, or for the administration of property in Italy, is intended, the result will be that we can say that the stipulation will only take effect if he acted with reference to matters which pertained to his administration.

(8) If the defendant, after having promised to pay the judgment, should lose his mind, the question arises whether the stipulation will become operative, for the reason that his case has not been defended. The better opinion is that it will become operative, if no one appears for his defence.

(9) A stipulation does not take effect merely because a case is not defended, as long as anyone can appear to undertake the defence.

(10) Where there are several sureties, after issue has been joined with one of them with reference to the clause, "Because the case is not defended," the principal debtor can undertake the defence.

4. Julianus, Digest, Book LV.

He, also, against whom the action was brought should be discharged.

5. Ulpianus, On the Edict, Book LXXVII.

If, however, the surety, who is a party to the action, should have judgment rendered against him, the principal debtor will in vain undertake the defence. For even when payment of the debt has been made after the case had been decided, suit can be brought to recover what has been paid.

(1) If no one else appears for that purpose, one of several sureties or heirs can undertake the defence.

(2) For the reason that there are several claims included in a single sum, in this stipulation, if, in one of them, the stipulation should immediately take effect, this cannot occur, so far as any other is concerned.

(3) Now let us see what defence is required, and by whom, in order to prevent the stipulation from taking effect. And, if any one of the persons enumerated as having a right to undertake the defence should do so, it is clear that the case is properly defended, and that the stipulation will not take effect. Where, however, someone, outside of those above mentioned, comes forward to defend it, the stipulation will not, in this instance, become operative; provided he is prepared to undertake the defence in accordance with the judgment of a good citizen, that is to say, by furnishing security, as he is considered to undertake it if he gives security. If, however, he is merely ready to appear, and is not accepted, the stipulation will take effect, because the action was not defended. But where anyone accepts him, either with or without security, the result will be that it must be said that no part of the stipulation becomes operative, because he who accepts such a defender has no one to blame but himself.

(4) Where one of the sureties who has given bond for the payment of the judgment appears to defend the case, it has been decided that the stipulation for the payment of the judgment does not take effect, and that all other matters are in the same condition as if a stranger had undertaken the defence.

(5) The question arose, with reference to this stipulation, whether the sureties would be liable in an action on mandate, if they abandoned the defence. The better opinion is that they would not be liable; as they only became sureties for a definite amount, and their mandate related to this, and not to the defence of the case.

(6) But what if they had taken it upon themselves to defend the case, could they bring an action on mandate? Where, indeed, they were defeated, they could recover what they had paid out in satisfaction of the judgment, but they could, by no means, recover the cost of the litigation. If, however, they gained the case, they could recover the expenses of litigation, just as under a mandate, although they did not act in compliance with the mandate.

(7) Where, however, several sureties are ready to undertake the defence, let us see whether they should appoint a single defender, or whether it will be sufficient for each of them to undertake the defence of his own share, or substitute a defender.

The better opinion is that, unless they appoint a representative, that is to say, if the plaintiff desires it, the stipulation will take effect on the ground that the case is not defended. For several heirs of a debtor are obliged to appoint an attorney for fear that, if the defence should be divided among several parties, it will subject the plaintiff to inconvenience.

The case is otherwise with respect to the heirs of the plaintiff, or whom the necessity of appearing in court by a single representative is not imposed.

(8) It must be remembered that, for a case to be defended properly, this must be done before a court having jurisdiction.

6. The Same, On the Edict, Book LXXVIII.

The stipulation for the payment of a judgment contains three clauses: one relating to the settlement of the claim; another to the defence of the case; and still another providing against the commission of fraud.

7. Gaius, On the Provincial Edict, Book XXVII.

If, before issue is joined, the attorney for the defendant should be forbidden by his client from appearing, and the plaintiff, not knowing that this had been done, should proceed with the case, will the stipulation take effect? Nothing else can be said than that it will take effect. When, however, anyone knowing of the prohibition imposed upon the attorney proceeds to trial, Julianus does not think that the stipulation will become operative. For, in order that it may do so, he says that it is not sufficient for issue to be joined with the person included in the stipulation, but it is necessary that the claim of that person should be the same as it was at the time when the stipulation was entered into. Hence, if he who was appointed attorney appears as the heir of his client, and as such conducts the case, or if he should do this even after he has been forbidden, the stipulation will not become operative. For otherwise, it has been decided that if anyone who is defending an absent person should give security, and afterwards should either be appointed his attorney, or become-his heir, and conduct the case, the sureties will not be liable.

8. Paulus, On the Edict, Book LXXIV.

If the plaintiff, after security has been furnished, but before issue has been joined, becomes the heir of the possessor, the stipulation will be extinguished.

9. Ulpianus, On the Edict, Book XIV.

The stipulation for the payment of a judgment has reference to an indeterminate sum, for it becomes operative for the amount that the judge may decide to be due.

10. Modestinus, Pandects, Book IV.

If an attorney is appointed for the purpose of making a defence, he is ordered to give security for the payment of the judgment, by means of a stipulation which is not interposed by the attorney himself, but by the principal party in the case. If, however, the attorney defends someone, he himself is compelled to furnish security by the stipulation for the payment of the judgment.

11. Paulus, On the Edict, Book LXXIV.

If a slave, who is sought to be recovered by a real action, dies, after issue has been joined, and the possessor then abandons the suit, some authorities hold that the sureties given for the payment of the judgment will not be liable, because the slave having died, the property is no longer in existence. This is false, as it is expedient that a decision should be rendered not only for the purpose of preserving the right of action in case of eviction, but also on account of the profits.

12. Pomponius, On Sabinus, Book XXVI.

Where a defendant, after having given security for payment of the judgment, becomes a magistrate, he cannot be brought into court without his consent; still, if the suit is not defended, as in the judgment of a good citizen it should be, the sureties will be liable.

13. Ulpianus, Disputations, Book VII.

When a stipulation is made for the payment of a judgment, and the party does not defend the case, and afterwards he suffers judgment to be taken by default, the question arises, does the clause having reference to the judgment become operative? I said that the clause in the stipulation contained two things: one relating to the defence of the case, and the other to the judgment. Therefore, as the stipulation with reference to the payment of the judgment includes everything in one clause, if a decision is rendered, or the case is not decided, the question is very properly asked whether, for one of these reasons, the stipulation will become operative with reference to the other clause. For example, if anyone should stipulate, "If a ship should arrive from Asia," or, "If Titius should become Consul," it is established that no matter whether the ship arrives first, or Titius first becomes Consul, the stipulation will become operative.

Where, however, it takes effect on account of the first clause, it cannot do so on account of the second, even though the condition may be complied with; for it is one of the clauses, and not both of them, which renders the stipulation operative. Hence it should be considered whether the stipulation having reference to the failure to defend the case will take effect, if this is not done; or whether one must believe that it does not become operative before issue is joined. The latter opinion is the better one; hence the sureties do not appear to be liable the very moment that the action is not defended. Therefore, if a case in which a defence is necessary should be terminated either by payment, by compromise, by a release, or in any other way, it has been decided that, in consequence, the clause that has reference to the failure to defend the case ceases to have any effect.

(1) If I, being about to bring an action in rem, should stipulate with the surety of an attorney to pay a judgment, and I afterwards intend to bring one in personam, but before doing so, I resolve to bring another, the stipulation will not take effect; because it appears that what has been done has reference to one thing, and the stipulation entered into has reference to another.

14. Julianus, Digest, Book LV.

When one of two sureties who have promised to pay a judgment pays his share because the case was not defended, the defence can, nevertheless, be undertaken; but he who made payment cannot recover anything, as the stipulation is extinguished, so far as his share is concerned, just as if he had received a release.

(1) Whenever proceedings are instituted against sureties under a stipulation to pay a judgment, on account of the case not having been defended, it is not inequitable to provide that the principal shall be released from liability for the first'judgment; because, if this provision were omitted, the sureties could not have recourse to the action on mandate, or they would certainly be compelled to defend the principal against the first judgment.

15. Africanus, Questions, Book VI.

The following stipulation, "As long as the case is not defended," is annulled whenever the defence begins, or as soon as the obligation to defend it is at an end.

16. Neratius, Parchments, Book III.

When I desire to institute proceedings against one of several sureties, under a stipulation to pay the judgment because the case has not been defended, and the surety is ready to pay his share, judgment should not be rendered in my favor against him. For it is not just for him. to be annoyed by an action, or be compelled to interpose a denial, where he is ready to pay what he owes without a judgment by which his adversary could not compel him to pay a larger sum.

17. Venuleius, Stipulations, Book VI.

When, through fraud, a case has not been completely defended, the stipulation will become operative under the clause relating to the payment of the judgment; for a suit is not considered to be properly defended in accordance with the opinion of a good citizen where a defence is not made for the entire amount of the property involved,

18. The Same, Disputations, Book VII.

A good citizen does not consider a case to be undefended in which the Prætor does not compel this to be done.

19. The Same, Stipulations, Book IX.

The last clause of the stipulation for the payment of a judgment, "That there is no fraud, and will be none," indicates a permanent fact for the future. Therefore, if he who was guilty of fraud should die, his heir will remain liable; for the words, "will be none," have great latitude, and refer to all coming time, and if fraud should be committed at any time, for the reason that it is true that there was fraud, this clause will become operative.

(1) And where the following is added, "If any fraud should be committed in this matter, do you promise to pay the entire value of the property?" the promisor will be liable to the penalty, even on account of fraud committed by a stranger.

(2) The clause relating to fraud, however, as is the case with other stipulations in which the time is not expressly mentioned, refers to the beginning of the stipulation.

20. Scævola, Digest, Book XX.

While a party to a suit was making a defence before Sempronius, the judge, it was provided by a stipulation that the amount decided to be due by Sempronius, the judge, should be paid. The plaintiff appealed from his decision, and the case having been taken before a competent court on appeal, and a decision rendered against the defendant, the question arose whether the stipulation would become operative. The answer was that, according to the facts stated, it would not become operative by law.

Claudius: For this reason the following is added in a stipulation, "Or whoever may be substituted in his place."

21. The Same, Questions Publicly Discussed.

Where one of several sureties is sued for not having defended a case, and it is afterwards defended, the other surety can be proceeded against to compel the execution of the judgment. If the principal promisor should die, leaving two heirs, and one does not defend the case and the other does, the former can be sued for not having done so, and the latter can be proceeded against to compel the execution of the judgment; as it is held that these two clauses cannot become operative against one and the same person. We say that the clause relating to the judgment would always take precedence over the others, and that it alone takes effect.

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TITLE VIII. CONCERNING SECURITY FOR RATIFICATION.

1. Papinianus, Questions, Book XXVIII.

When anyone stipulates that an act will be ratified, although not the same but another person, against whom no action can be brought if ratification should take place, is sued, it has been decided that the stipulation will take effect; for instance, where a surety or another of the joint-possessors, who is a partner, is made defendant.

2. The Same, Opinions, Book XI.

In the agreement for ratification, the property of the party promising or stipulating should not be considered, but merely the interest of the stipulator in having the transaction ratified.

3. The Same, Opinions, Book XII.

A minor of twenty-five years of age, who was a creditor, desiring to collect his money, a man whom he had appointed his agent gave security to the debtor that payment of the obligation would be ratified. If complete restitution should be granted, it was decided that a suit for the collection of money which was not due could not be brought, and that the stipulation had not become operative.

The same rule will apply, if the minor should ratify the act of a false agent. Therefore, where a mandate had been given, it should be provided, "That if he, or his heir should obtain complete restitution, or anyone to whom the property in question belongs should do so, a sum of money equal to the value of the property shall be paid." If, however, there was no mandate, the ordinary clause referring to ratification ought to be inserted, and it would be more prudent to do this with the consent of the contracting parties. Otherwise, if there is no agreement to this effect, and the minor creditor does not give his consent, an action must be granted.

(1) A false agent gave security for ratification, and having lost the case, his principal appealed from the decision of the judge, and it appeared that the condition of the stipulation had failed to be fulfilled, as the unsuccessful party could have had recourse to a common remedy. If, however, the principal, not having ratified the act of his agent, should collect the money, the stipulation for ratification would take effect, so far as the money which the master had received is concerned, although the agent himself might have received nothing.

4. Scævola, Questions, Book XIII.

An agent brought suit for fifty aurei. If his principal should bring suit for a hundred, the sureties who bound themselves for ratification would be liable for fifty, and for the interest which the debtor had in having the action for the fifty dismissed.

5. The Same, Opinions, Book V.

Ratification takes place not only by words but also by acts: hence if the principal, approving the act of his attorney, proceeds with the case which the latter began, the stipulation will not become operative.

6. Hermogenianus, Epitomes of Law, Book I.

Where a guardian has been accused, or is liable to suspicion, his defender can be compelled to furnish security that his principal will ratify his act, if the guardian desires to defend the case.

7. Paulus, Opinions, Book III.

If a person who is not aware of the fact that suit has been brought for possession of his property should die, his heir, while the proceeding is pending, cannot ratify it.

8. Venuleius, Stipulations, Book XV.

An attorney instituted proceedings for the production of property, and his adversary was discharged because he did not have possession of it. Then, he having subsequently obtained possession of the same property, the principal brought an action against him to compel him to produce it.

Sabinus says that the sureties will not be liable, as this is a different matter; for even if the principal should bring the action in the first place, and, after his adversary had been discharged because he did not have possession of the property, he should bring another, he would not be barred by an exception on the ground of res judicata.

(1) If an agent has collected money from a debtor, and given him security that his principal will ratify his act, and the latter afterwards brings suit for the same sum of money, and loses the case, the stipulation will become operative; and if the agent pays the same money to his principal without an order of court, it can be recovered by a personal action.

Where, however, the debtor brings suit under the stipulation, it may be said that if the principal undertakes the defence of his agent he cannot improperly make use of an exception on the ground of bad faith against the debtor, because the obligation remains a natural one.

(2) If anyone should permit his status to be disputed by an agent, he should take security from him that he will not continually be molested on this account, and if the principal, or his representatives, does not ratify his act, namely, that the agent attempted to reduce the party in question to slavery; or if the latter obtained a judgment against the agent in favor of his freedom, the entire value of the property must be paid to him when his right to liberty has been established, that is to say, to the extent of his interest in not having his status placed in jeopardy, as well as for the expenses incurred by the litigation.

Labeo, however, thinks that a definite sum should be included, because the estimation of freedom is capable of indefinite extent; the stipulation, however, is held to become operative from the very moment when the principal refused to ratify the act of the agent.

Still, an action cannot be brought under the stipulation before a judgment has been rendered with reference to the freedom of the alleged slave, because if it should be decided that he was a slave, the stipulation becomes void, and if any action can be brought he is understood to have acquired it for his master.

9. Ulpianus, On the Edict, Book IX.

An agent who is appointed by a guardian must, by all means, give security; but the agent of a municipality, the head of a university or the curator of property appointed with the consent of creditors, is not personally required to give security.

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

Sometimes, by agreement, a stipulation for the ratification of an act is interposed; for instance, where an agent either sells, leases, or hires, or payment is made to him:

11. Hermogenianus, Epitomes of Law, Book VI.

Or he enters into a contract, or transacts any business whatsoever, in the name of a person who is absent.

12. Ulpianus, On the Edict, Book LXXX.

For anyone who makes a contract usually stipulates for ratification in order to be in a more secure position.

(1) To ratify an act is to approve and recognize what has been done by a false agent.

(2) Julianus says that it is important to know when the principal should ratify the payment made to his agent. Should this be done as soon as he is informed of it? The time should be understood with a certain latitude, and should not be too long or too short an interval, which can be better understood than expressed by words. What then would be the rule, if he did not ratify it immediately, but did so afterwards? This does not have the effect of interfering with the exercise of his right of action, and, because he did not ratify it in the first place, he says that he will still be entitled to his action. Therefore, if he should demand what had already been paid to his agent, he can bring suit under the stipulation, just as if he had not stated afterwards that he would ratify the payment. I think, however, that the debtor will be entitled to an action on the ground of fraud.

(3) Whether anyone sues, or takes advantage of a set-off, the stipulation that the principal will ratify the act immediately becomes operative. For no matter in what way the latter may show his disapproval of what has been done by the agent, the stipulation will take effect.

13. Paulus, On the Edict, Book LXXVI.

If the stipulation that the principal will ratify the act should become operative, I can bring an action for all my interest in the matter; that is to say, for all that I have lost, and all that I could have gained.

(1) Where a legacy is paid to an agent without judicial authority, Pomponius says that he must give security for ratification.

14. The Same, On Plautius, Book III.

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

15. The Same, On Plautius, Book XIV.

The words, "will not again be demanded," Labeo understands to mean, demanded in court. If, however, the debtor is summoned to court, and security is furnished that he will appear, and suit has not yet been begun, I do not think that the stipulation relating to the further demand of the money will take effect, for the claimant does not actually demand it, but merely intends to do so. But where the money was paid without a judgment, the stipulation becomes operative; for if anyone makes use of a set-off, or a deduction against the claimant, it is properly said that he can be held to have made a demand, and that the stipulation that the money will not be demanded a second time becomes operative. For even if an heir, against whom judgment has been rendered, should not make the demand, if he does either of these things, he will be liable under the will.

16. Pomponius, On Plautius, Book III.

If payment of a sum of money which was not due should be made to an agent, proceedings can immediately be instituted under this stipulation against the agent, to compel ratification by the principal, so that it may be determined whether what has been improperly paid should be recovered from the principal, if he has ratified it; or whether a personal action should be brought against the agent, if the principal does not confirm the transaction.

(1) When an agent demands a tract of land, and gives security (as is customary) that his principal will ratify his act, and afterwards the principal sells the land, and the purchaser claims it, Julianus says that the stipulation that the transaction will be ratified becomes operative.

17. Marcellus, Digest, Book XXI.

Titius brought suit for ten aurei in the name of a creditor against the debtor of the latter, and the principal ratified a part of the claim. It must be said that a portion of the obligation is extinguished, just as if he had stipulated for, or collected ten aurei, and the creditor had approved not all, but a part of the transaction. Therefore, if I have stipulated for ten aurei, or Stichus, whichever I wish, and, during my absence, Titius demands five, and I ratify his act, what has been done is considered valid.

18. Pomponius, On Sabinus, Book XXVI.

Where an agent has furnished security that his principal or the heir of the latter will ratify his act, and one of the heirs of the principal ratifies it, but the other does not, there is no doubt that the stipulation will take effect, so far as that part of the act which was ratified is concerned, because it becomes effective for something in which the stipulator is interested. For even if the principal himself should ratify the transaction in part, the stipulation will not become operative, except in part, as it does so only with reference to that in which the plaintiff has an interest. Hence, proceedings can be instituted several times under this stipulation, according to the interest of the plaintiff: because he brings the action; because of his expense; because of the persons he represents; and because, when judgment is rendered against him, he must pay. For it may happen under a stipulation for the prevention of threatened injury that the stipulator may bring several actions; as it is provided in the bond that, "If anything falls, is divided, is excavated, or is constructed, liability will result."

Suppose, then, that damage is repeatedly caused. There is no doubt that proceedings can be instituted, for if an action can only be brought when all possible injury has been sustained, it almost inevitably follows that this cannot be done before the time prescribed by the stipulation has passed, within which security was furnished for any immediate damage which might be caused. This is not correct.

19. Paulus, On Sabinus, Book XIII.

Whatever may be the interest of the stipulator is included in the agreement by which an agent provides that his principal will ratify his act.

The same rule applies to all the clauses having reference to fraud.

20. Ulpianus, Disputations, Book II.

Where rights of action are derived from the suits which an attorney brings, as well as from the stipulations that he desires to introduce, he must give security for ratification. Therefore, when an attorney introduces a stipulation for double damages, he is obliged to furnish security that it will be ratified. If, however, a stipulation against threatened injury is inserted by an agent, he must give security that his principal will ratify it.

21. The Same, Opinions, Book I.

It is proper that security for ratification by the principal should not be required in cases where someone sets forth in a petition presented to the Emperor that he has appointed an agent to act for him in this matter. If, however, security for the payment of the judgment is demanded of the agent, it will be necessary for him to obey the manifest rule of law.

22. Julianus, Digest, Book LVI.

When an agent, without a judgment, collects money which is not due, and his principal does not ratify the payment, but institutes proceedings to collect the same money, the sureties will be liable; and the right to the personal action under which the agent would have been responsible if the stipulation had not been interposed will be extinguished. For whenever money is paid to an agent, and his principal does not ratify the payment, I think that the effect is that the right of personal action for recovery will be extinguished, and that the sole proceeding to which he who paid the money which was not due will be entitled, against the agent, will be the one based on the stipulation.

In addition to this, the sureties must pay the expenses incurred in the suit. If, however, the principal should ratify the payment, the sureties will be released; but the same money can be recovered from the principal by means of a personal action.

(1) Where an agent collects money due to his principal without bringing suit, the same rule applies, with the difference that if the principal has ratified the transaction he cannot afterwards make another demand for the money.

(2) If an agent should collect a sum of money which was not due, by having an execution issued on the judgment, it can be said that whether the principal ratifies his act or not, the sureties will not be liable, either for the reason that there was nothing that the principal could ratify, or because the stipulator had no interest in having the ratification made; hence he who pays the agent suffers an injury.

It is, however, better to hold that if the principal does not ratify the transaction the sureties will be liable.

(3) Where, however, an agent who had not been directed to do so institutes judicial proceedings to collect money which is due, the better opinion is that the sureties will be liable for the entire amount, if the principal does not ratify the transaction.

(4) But when the agent makes a proper demand, he should not be compelled to guarantee that the principal will not profit by the injustice of the judge; for sureties are never liable on account of any damage caused by the wrongful act of a court. In this case it is better to hold that the sureties are only liable for the costs of the suit.

(5) Marcellus: If the principal does not ratify the transaction, but loses the case after it has been brought, nothing but the costs should be included in the agreement for ratification.

(6) Julianus: If, without an order of court, legacies should be paid to the agent of a person who is already dead, the stipulation will become operative unless the heir ratifies the transaction, that is, if the legacies were due; for then there is no doubt that it is to the interest of the stipulator to have the payment ratified by the heir, so that he may not be compelled to pay the same legacies twice.

(7) If, in a stipulation for ratification, it was expressly stated that Lucius Titius would ratify the transaction, as it was clearly the intention that the ratification of the heir and the other parties in interest should be omitted, it is difficult to hold that the clause having reference to fraud becomes operative. When the above-mentioned persons are omitted through inadvertence, an action under the clause having reference to fraud will undoubtedly lie.

(8) Where an attorney brings suit with reference to an estate, and afterwards his constituent demands a tract of land forming part of said estate, the stipulation for ratification becomes operative, because, if he was a genuine attorney, an exception on the ground of res judicata would act as a bar to his constituent.

The stipulation for ratification, however, generally becomes effective in cases in which, if the genuine attorney should proceed, the action, if brought by the constituent, will become of no avail, either by operation of law or through pleading an exception.

(9) When anyone, in the name of a father, brings an action for injury sustained, because his son was struck or beaten, he will be compelled also to include the son in the stipulation; and especially as the father may happen to die before being informed that his attorney had instituted proceedings; and thus the right of action for injury will return to the son.

(10) If an injury is inflicted upon a grandson, and the attorney for the grandfather, on this account, brings suit for injury sustained, not only the son, but also the grandson, must be included in the stipulation. For what will prevent both the father and the son from dying before they knew that the attorney has brought the action? In this case it would be just for the sureties not to be held liable, if the grandson should bring suit for injury sustained.

23. The Same, On Minicius, Book V.

An agent, when bringing an action to collect a sum of money, gave security that no more would be demanded. If, after judgment has been rendered, another person should appear, who claimed the same money in the capacity of agent, as he who made the second demand was not really an agent, and for this reason could be excluded by an exception on the ground that he had no authority, the question arises whether the sureties of the first agent are liable. Julianus is of the opinion that they are not liable. For it was provided in the stipulation that he who has the right to bring an action to demand or to collect the debt will not do so; and that all those having an interest in the matter will ratify the transaction. He, however, who is not an agent, is not understood to have any right of action, or to be entitled to make any claim whatever.

24. Africanus, Questions, Book V.

It is necessary for the possession of property, if acknowledged by anyone but the heir, to be ratified within the specified time, in order that it may be demanded. Therefore, it cannot be ratified after the one hundredth day has passed.

(1) If, however, he who made the demand should die, or become insane, let us see whether it can be ratified or not, for, generally

speaking, it should be ratified; just as where, in this instance, ratification takes place at a time when the person claiming possession cannot be benefited by it. The result of this is that, even if the agent should repent of having made the demand, ratification could not occur; which is absurd. Therefore, it is better to say that neither of these causes interferes with ratification.

25. The Same, Questions, Book VI.

A father, in the absence of his daughter, demanded a dowry which had been given by him, and furnished security that she would ratify the transaction, but she died before doing so. It was denied that the stipulation took effect; because although it was true that she had not ratified his act, her husband, nevertheless, had no interest in having the dowry transferred to him, for the entire dowry should be returned to the father after the death of his daughter.

(1) An agent, having collected money from a debtor who could have been released by lapse of time, gave security that his principal would ratify his act; and then, after the debtor had been released by prescription, the principal ratified it. It was held that the debtor, after having once been released, could bring an action against the agent; and the proof of this is, that if no stipulation was interposed, a personal action for recovery could be brought against the agent; but the stipulation had been introduced instead of such an action.

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