1Papinianus, Questions, Book III. Where a judgment is rendered in good faith, the rate of interest is determined by the decision of the court, according to the custom of the place where the contract was made, provided the amount does not exceed that fixed by law. 1If a partner should have judgment rendered against him on account of his having misappropriated the funds of the partnership, and converted them to his own use, he must, by all means, pay interest on the same, even if he was not in default. 2However, a judge who is to preside in a bona fide action cannot properly order security to be given by the defendant that, if he loses the case, he will pay interest until the judgment is satisfied, since it is in the power of the plaintiff to cause execution to be issued. Paulus states in a note that it is not part of the duty of the judge to concern himself with what takes place after a decision has been rendered. 3Papinianus says a broader interpretation should be given with reference to restitution made by a guardian in favor of his ward. For no one now doubts that when a guardian renders his account he must pay interest up to the time that he makes restitution, whether the judge receives it up to the day that the decision was rendered, or whether this is done out of court. It is clear that where the ward declines to institute proceedings in an action on guardianship, and the guardian voluntarily enters into an agreement with him, tenders him the money, and deposits it in a sealed bag, he will not be liable for interest from that time.

2The Same, Questions, Book VI. It is generally settled that although a personal action may be brought after issue has been joined, liability attaches to all the accessories to the property. The reason for this opinion is, that the property ought to be delivered in the same condition in which it was when suit was brought for its recovery, and therefore, that all crops that have been obtained, and any offspring born of slaves must be surrendered.

3Ad Dig. 22,1,3ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.The Same, Questions, Book XX. In the case of a demand made upon a surety where an heir was in default after a judicial decision had been rendered, the Emperor Marcus Antoninus ordered that where the time established by law in favor of parties who had lost their cases had elapsed, the surety could recover everything which had been acquired by his principal up to the time of the judgment. This decree must be understood to apply where the party had not been in default before the decision of the judge, although it cannot readily happen that recourse may be had to the court where default has not previously taken place; for instance, where the principle of the Lex Falcidia becomes applicable. If, however, the heir is in default before application is made to the judge, he being liable for the delivery of the profits from that time; for which reason, as he has already lost the case, will he be released from liability for the profits after the lapse of the time fixed by law, since that period is granted him for the purpose of satisfying the judgment, and not for obtaining any advantage for himself? 1In proceedings of this kind which are not subject to arbitration, and are not bona fide actions, after issue has been joined, everything connected with the property for which suit is brought must be delivered to the plaintiff, up to the time of the judgment. It is certain that the party will be free from liability for the profits after a decision has been rendered. 2It sometimes happens that although the profits of an estate or the interest on money is not expressly bequeathed, it is, nevertheless due; as, for example, where anyone requests that any of his property should be left after his death, it shall be delivered to Titius; for as diminutions made in good faith are not included in this trust, if proportionate diminutions of other property should have taken place, any remaining profits must be given up in accordance with the will of the testator. 3Pollidius, having been appointed heir to one of his female relatives, was asked by her to deliver to the daughter of the woman, when she had reached a certain age, any property belonging to her estate which might come into his hands; and the mother stated in her will that she had decided upon this step to prevent the property from being placed under the control of guardians, and that she preferred that a near relative should have charge of it. She directed the said Pollidius to retain a certain tract of land for himself, and I stated to the Prætorian Prefect that all the profits which had been acquired in good faith from the property of the deceased by Pollidius should be delivered, not only because the mother had left to him the tract of land, but also for the reason that she had preferred this method of creating a trust to the less reliable one of guardianship. 4Where manufactured gold or silver is left in trust, and default takes place, a discussion usually arises as to whether an estimate of interest should be made. It is evident that if the testator left the metal of which the articles were composed with the intention that it should be sold, and the trust discharged by means of the money obtained, or that maintenance should be furnished; it must be held that any fraudulent conduct of the heir should not go unpunished. If, however, the testator left the vases to be used by his heir, it would be improper for interest to be demanded, and therefore it can not be exacted.

4The Same, Questions, Book XXVII. If you make a stipulation, “For property to be given to you, and complete possession of the same to be delivered,” reason suggests that you should afterwards obtain the profits of said property which have been collected by having recourse to a general action on stipulation, on account of the last words of the clause. It should be considered whether the same rule will apply to the offspring of a female slave in a case of this kind; for, with reference to the first words of the clause, whether they relate to the fact of the property being promised, or to the effect of the delivery by the transfer of ownership, offspring is not included. But if the purchaser, with the intention of renewing the obligation, stipulated with the vendor in this way, the fact of the delivery was understood to be agreed upon, for the reason that it is not probable that the vendor promised more than he would be compelled to furnish in an action on purchase. Still, on account of the words, “And complete possession to be delivered,” it can be held that the accounting for the offspring becomes operative on account of the stipulation being general in its character; for after the female slave has been delivered, the party to the stipulation would be entitled to include any child subsequently born on his premises. 1Where a child is born to a female slave after the sale has been contracted, but before the stipulation has been entered into, or any property is acquired by the vendor through the agency of the slave, he can recover it by means of an action on purchase; but he cannot do so by means of an action based on the stipulation, for whatever is not transferred to a new obligation can be recovered under the former right.

5The Same, Questions, Book XXVIII. It is proper to generally state that, in a bona fide action, no guarantee which is contrary to good morals will be accepted.

6The Same, Questions, Book XXIX. Ad Dig. 22,1,6 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 259, Note 7.Where a controversy arose with an heir, which had reference to a transaction involving the property of a father or master, and the question of interest was discussed, the Emperor Antoninus decided that interest should be paid, for the reason that the master himself or the father had paid it for a long time. 1Our Emperor Severus also ordered that the sum of ten thousand sesterces should be paid out of the Treasury by way of dowry, to the daughter of Flavius Athenagoras, whose property had been confiscated, because she alleged that her father had paid her interest on her dowry.

7The Same, Opinions, Book II. A debtor, who owed a sum of money bearing interest, tendered the amount to his creditor, and when the latter refused to accept it, he placed it in a bag, and sealed and deposited it. Reason demands that from this day there should be no interest due. If, however, suit should afterwards be brought to compel the debtor to pay, and he should fail to do so, the money will not be idle from that time.

8The Same, Opinions, Book VII. Where horses have been left in trust, after default, the first foal must be furnished as profit, but a second one as accessory, just as in the case of the offspring of a female slave.

9The Same, Opinions, Book XI. Where money was lent at interest, and double the amount was contracted for if it should not be paid within a certain time; I gave the opinion that the debtor is not liable for anything more than the legal rate of interest; hence the stipulation will be operative in proportion to the time which has elapsed after a deduction has been made of the surplus interest. 1The stipulation for interest becomes operative even though the debtor may not be sued; nor is a stipulation for legal interest held to be void where it is made under the condition that it will be due if interest at a lower rate should not be paid at the appointed time, for it is not a penalty, but a higher rate of interest that is promised for a lawful reason. Where, however, there was no one to whom the money could be paid after the death of the creditor, it is established that the debtor is not in default during that time. Therefore, if a higher rate of interest is demanded, and was agreed upon in the first place, an exception on the ground of bad faith can properly be interposed.

10Paulus, Questions, Book II. The possessor should surrender a child born to a female slave after issue has been joined, but he is not obliged to give it up if it was born before proceedings were instituted for the recovery of the mother, unless the plaintiff expressly brought the suit for said child.

11The Same, Questions, Book XXV. Gaius Seius, who was in the habit of transacting public business, lent money belonging to the Government at the ordinary rate of interest, but the custom existed to exact a higher rate where the interest was not paid within a certain time. Some of the debtors were in default in paying their interest, others paid more than they owed, and the result was that everything due by way of interest was made up, even that of those who had failed to pay anything. The question arose whether the surplus interest which was collected from some of the debtors, by way of penalty, according to the prevalent custom, should profit Seius himself, or should enure to the benefit of the Government? I answered that if Gaius Seius stipulated for interest from the debtors, that alone must be paid to the Government which, according to the rule, it was customary to collect from them, even though all the claims were good. 1Ad Dig. 22,1,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 439, Note 7.What if a public slave should have obtained an obligation bearing interest for the benefit of the Government? It is just that, although by law this interest should be due to the Government, still, on account of certain claims which are bad, a set-off of the surplus interest should be made, if the Government was not prepared to seize the property of all the debtors. Marcellus states almost the same opinion with reference to guardians.

12The Same, Opinions, Book XII. Seia borrowed money from Septitius, and it was agreed with reference to the interest: “That unless the above-mentioned interest was paid at the different times specified, or within three months, Seia would then be liable for a higher rate, and afterwards, at each payment, if the interest was not forthcoming in accordance with the prescribed condition, the said condition should be observed until the entire sum due was paid.” I ask whether the following words, “And afterwards, at each payment, if the interest is not forthcoming, in accordance with the prescribed condition, the said condition shall be observed,” mean that even though the first stipulation may become operative, still, the debtor cannot be sued for a larger amount of interest than was due at the time appointed for the first payment, when she was in default. Paulus answered that the stipulation contains several conditions, and that it is subject to the payment of a higher rate of interest; that is to say, that the condition should be considered with reference to each payment of a lower rate of interest which should have been, but was not made at the proper time, and therefore that the penalty for subsequent payment could be avoided.

13Scævola, Opinions, Book I. Where a debtor promised to pay interest at six per cent, and for many years paid interest at a lower rate, and the heir of the creditor brought suit for six per cent, although the debtor had done nothing to avoid payment at the lower rate, I ask whether an exception on the ground of bad faith, or one based on the contract can be interposed? I answered that, if the debtor had not been in default in paying the lower rate of interest, according to his custom, for so long a time, an exception could be interposed in accordance with the facts stated. 1The question arose whether an agent should pay interest on idle money, if his principal was not in a habit of lending money at interest, where an action has been brought on the ground of voluntary agency, or on that of mandate? The answer was that, if he had held the money on deposit and had done this in accordance with the custom of the mandator, he would not be obliged to pay anything by way of interest.

14Paulus, Opinions, Book XIV. Paulus gave it as his opinion that where a party is in default in discharging a trust, the offspring of female slaves must be given up. 1An heir was requested to surrender the estate to someone without the income from the same after his death. The question arose whether the offspring of female slaves, even if born during the lifetime of the heir, should be given up, on account of the words of the will by which the testator intended to indicate that the income alone of the estate should be reserved. Paulus answered that any children born to female slaves before the trust became operative, were not included therein. Neratius also says in the First Book that where an heir was requested to deliver a female slave he is not required to deliver her offspring, unless the child was born while he was in default in discharging the trust. Nor do I think that it makes any difference whether the female slave was the special object of the trust, or whether she was merely a part of the estate left in trust.

15The Same, Opinions, Book XVI. Paulus holds that it is not necessary to pay interest on any profits acquired after issue has been joined, and which the judge, in the discharge of his duty, directs to be turned over, nor on those which have been collected before that time, and which are stated to have been fraudulently obtained by the possessor.

16The Same, Decrees, Book I. Interest is not exacted on money given to the Government by way of liberality. 1When interest on the price of a tract of land was demanded of a party who had purchased it from the Treasury, and the purchaser denied that possession had been delivered to him; the Emperor ruled that it was unjust for interest to be exacted of one who had not gathered the crops.

17The Same, On Interest. Where a man bound himself to pay interest at the rate of five per cent per annum, and if he failed to do so for any one year, he would then pay six per cent on the entire sum of money from the day on which he borrowed it, and after paying the interest for some years the stipulation finally became operative; the Divine Marcus stated in a Rescript addressed to Fortunatus: “Go to the Governor of the province who will reduce to the measure of its just requirements the stipulation whose injustice you complain of.” This Constitution far exceeds the proper limit. What course should then be pursued? The matter must be adjusted so that, in the future, the interest will only increase from the day of default. 1The Divine Pius stated in a Rescript: “You are claiming accrued interest due with very little justice, as the interval of a long time indicates that you have neglected to collect it, for the reason that you intended, by not demanding it from your debtor, to render yourself more agreeable to him.” 2In the case of an implied trust, the Divine Pius stated in a Rescript that the heir should be deprived of all profits, and that they should be turned over to the debtor; and therefore that the heir should be deprived of the benefit of the interest. 3Where a trust cannot be executed for the benefit of a ward because he has no guardian, the Divine Pius stated in a Rescript that the heir is not considered to be in default. Therefore, nothing is due to him who has been absent on public business, or has been prevented by any other just cause from bringing an action for restitution. For how can a party be to blame who cannot pay, even if he wishes to do so? The same principle does not apply in this case as in that where relief is given to minors who have failed to obtain an advantage, for interest is not imposed on account of the gain to the plaintiff, but because of the delay of those who should make payment. 4Where a party makes a contract with reference to a lease, unless it is agreed that interest shall be due on rent which is not promptly paid, the lessee will not be obliged to pay interest except in case of default. 5The Treasury does not pay interest on account of any contract entered into by it, but collects it; as is customary in the case of the keepers of public privies who are slow in paying their rent; and also in the case of those from whom taxes are due. But where the Treasury takes the place of a private individual, it is the custom for it also to pay interest. 6Where debtors pay interest under six per cent, and they then become debtors to the Treasury, after their obligations have been transferred to the Treasury, they will be compelled to pay six per cent. 7It is very well known that those who are sued on account of their mismanagement of public funds are liable to the payment of interest. The same rule is observed where persons have charge of public works, if money remains in their hands; but with reference to what they have paid to contractors, even though they paid it negligently, the interest will be remitted to them. This is the case, however, where no fraud exists, otherwise interest will also be due. 8Ad Dig. 22,1,17,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 259, Note 2.Where no definite time has been specified by persons who have bequeathed statues or paintings to be erected or hung in some public place, the time shall be fixed by the Governor; and if the heirs do not comply, they must pay to the Government interest at the rate of one-third of one per cent a month.

18The Same, Opinions, Book III. If it was agreed in the beginning that, in case of the eviction of certain lands, the vendor shall refund the price, interest must also be paid after eviction, even though the purchaser may have paid to his adversary all the profits collected after the action for the ownership of the property was begun; as any inconvenience sustained during the intermediate time must be borne by the purchaser. 1Where the vendor dies after possession has been delivered, and it is uncertain who his successor will be, the interest on the price must be paid if it was not placed on deposit.

19Gaius, On the Law of the Twelve Tables, Book VI. Let us see whether judgment will also be rendered against the possessor in every case where suit is brought for the profits. For what if he should bring an action for silver, clothing, or anything else of this kind, or for the usufruct, or for the mere ownership of the property where the usufruct belongs to another? For no profit, to which this term can rightly be applied, can be understood to be derived from the mere ownership; nor, on the other hand can the usufruct properly be considered as profit. But what if an action is brought to recover the mere property? The profits will be included in the claim from the day that the usufructuary lost his usufruct. Moreover, if suit is brought for the usufruct, Proculus says that the defendant will have judgment rendered against him for all the profits which have been collected. Again, Gallus Ælius holds that if suit is brought for clothing, or a cup, whatever could be collected by way of rent, if the articles were leased, should be classed as profit. 1Where suit is brought to recover a right of way, it will be difficult for any profits resulting therefrom to be estimated, unless some advantage which the plaintiff could have enjoyed from the servitude should be classed as profits, if he was not prevented from doing so at the time that he brought the action; and this should be admitted as correct.

20Paulus, On Sabinus, Book XII. It is settled that, where illegal interest is united with the principal, the said interest will not be due, but this does not affect the principal.

21Ad Dig. 22,1,21ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Ulpianus, On the Edict, Book XXXIV. It must be remembered that not everything which is done for a good reason in order to postpone payment should be considered as default. For what if the debtor desires his friends to be present, or his sureties to be summoned at the time that the debt is paid, or intends to offer some exception? It is not held that he is guilty of default;

22Ad Dig. 22,1,22ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Paulus, On the Edict, Book XXXVII. Provided this is not done deceitfully for the purpose of committing fraud.

23Ulpianus, On the Edict, Book XXXIV. Where a debtor is suddenly compelled to be absent on public business, and cannot entrust his defence to anyone, he is not held to be in default; and this is the case where he is in the power of the enemy. 1Sometimes it is customary for a party to be considered to be in default where there is no one against whom suit can be brought.

24Paulus, On the Edict, Book XXXVII. Ad Dig. 22,1,24 pr.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Where anyone delays in making payment, but is ready to join issue in the suit, he is not held to be in default, at least if he has just cause for applying to the court. 1Where the principal debtor is in default, the surety is also liable. 2A debtor is in default to his creditor where he does not make payment either to the creditor himself or to someone whom he has directed to receive the money, or to him who is in the habit of transacting his business. In this instance it is not held that he acquires, anything through a free person, because these parties are only discharging their duties; just as where anyone arrests a thief in the act of stealing from me, he is transacting my business, and acquires for me a right of action for manifest theft. Again, where an agent makes a demand for a slave upon a promisor, he renders the stipulation perpetual.

25Julianus, Digest, Book VII. A party who is aware that a tract of land is jointly owned by himself and another, and who gathers the crops from the same without the knowledge or consent of his fellow-owner, does not acquire a right to any greater portion of them than his interest in the land entitles him to. Nor does it make any difference whether he or his fellow-owner, or both of them, sow the seed, for the ownership of every kind of crop is acquired, not through the right to the seed, but through that to the soil; and just as where a party who knowingly has possession of a tract of land belonging to another, cannot acquire the ownership of any part of the crop, no matter in what way the land has been sown; so also, he who has possession of land belonging to himself and another, will acquire no right to the crop on that portion of the land which belongs to his fellow-owner. 1Ad Dig. 22,1,25,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.I sowed wheat on land belonging to another which Titius had bought in good faith; will Titius, the bona fide purchaser, have a right to the crop after it has been harvested? I answered that the profits obtained from a tract of land should be understood to closely resemble those which slaves acquire by their labor; for in gathering crops more consideration is paid to what produces them than to the seed from which they are derived, and therefore no one can ever doubt that if I should sow your wheat on my own ground, the crop and whatever may be collected from the harvest will belong to me. Again, a possessor in good faith has the same right to harvest the crop which is granted to the actual owner of the land. Besides, since crops of every kind, no matter by whom they have been sowed, belong to the usufructuary, much more does this apply to bona fide possessors who have a still better right to the crops, since they do not belong to the usufructuary until they have been gathered by him, but they belong to the bona fide possessor, without reference to how they may have been separated from the soil; just as in the case of a party who holds land on the condition of paying a tax, the crops become his as soon as they are separated from the soil. 2A bona fide purchaser sowed land of which he was in possession, and, before he harvested the crop, ascertained that the land belonged to someone else. The question arises, will he be entitled to the crop after it is harvested? I answered that a bona fide purchaser should be understood to have a right to harvest the crop, provided the land has not been evicted, for whatever a slave belonging to another, and whom I purchased in good faith, acquires for me by means of my property or by his own labor, is mine, so long as he is not evicted.

26Ad Dig. 22,1,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 184, Note 5; Bd. I, § 203, Note 6.The Same, On Minicius, Book VI. Julianus denies that game constitutes the profit of land, unless the profit of the land consists of game.

27Africanus, Questions, Book VIII. Where a debtor is in default to the head of a household, no inquiry is made as to whether he is in default to his heir; because the right passes to the next heir by inheritance, and is therefore also transmitted to all others in succession.

28Ad Dig. 22,1,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.Gaius, Daily Occurrences, Book II. Ad Dig. 22,1,28 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 5.The yield of flocks, such as milk, hair, and wool, is also considered profit. Therefore lambs, kids, and calves, at birth, immediately become the absolute property of a bona fide possessor, or an usufructuary. 1The offspring of a female slave is not, however, considered to be profit, and therefore belongs to the owner of the property. For it would seem absurd for a man to be classed under the term “profit,” when Nature has prepared the fruits of everything for the benefit of the human race.

29Marcianus, Institutes, Book XIV. It is settled that where anyone has stipulated for interest above the legal rate, or for compound interest, what is unlawfully added is not held to be added at all, and legal interest can be collected.

30Paulus, Rules. The interest on money lent by municipalities will be due to them, even under a contract without consideration.

31Ulpianus, Opinions, Book I. Where the following has been added to a stipulation, “and interest, if any is due,” it will be void if the rate of interest is not mentioned.

32Marcianus, Rules, Book IV. Ad Dig. 22,1,32 pr.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 10 (1874), S. 274: Der Verkäufer muß sich nicht nur zur Lieferung der Waare bereit erklärt haben, sondern auch wirklich dazu bereit gewesen sein, um den Käufer in Verzug zu setzen.ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 279, Note 4.Default is understood to apply, not to the property, but to the person; that is to say, where the party, after having been notified at the proper place, does not make payment; and this should be investigated by the court, for, as Pomponius says in the Twelfth Book of Epistles, the definition of this term is difficult. The Divine Pius stated in a Rescript addressed to Tullius Balbus, that the meaning of the word “default” cannot be determined by reference to any Constitution, nor by inquiry of legal authorities, since it is rather a question of fact than of law. 1Ad Dig. 22,1,32,1ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 281, Note 4.Proof of default is not sufficient where notice is served upon a slave of the absent debtor by the creditor, or the agent of the latter; since it is held that the master himself must be notified. But, if subsequently, when the creditor has the power to do so, he should neglect to prosecute the action instituted for the recovery of the debt, the debtor will not be understood to be in default from that time forward. 2In bona fide contracts, interest becomes due through default. 3But what if a son under paternal control and his father, to whom the liability of the former has passed, owe a debt which has been contracted by order of the father; or if the money has been expended for his benefit; or if it has become a part of the peculium of the son; which one of the parties must be considered to be in default? If only the father is sued on account of being in default, he cannot be held liable; still, an action will be granted against the son for the benefit of the creditor, to compel him to pay what the creditor has failed to collect from the father. Where, however, the son is in default, the creditor then can sue him for the entire sum, or he can sue his father only for the amount of the peculium. 4But where two debtors have bound themselves jointly, the default of one does not prejudice the rights of the other. 5Moreover, if a surety alone is in default, he will not be liable; just as if he had killed his slave Stichus, whom he had promised to deliver, but a prætorian action will be granted against him.

33Ulpianus, On the Duties of the Curator of the Government. Where the money of the Government has been well placed, the debtor should not be uneasy on account of the principal, and especially is this the case where the money bears interest; or if it does not do so, the Governor of the province should provide for the security of the Government, only he must not show himself to be a harsh and insulting collector, but he must act with moderation, and be kind and efficient, and humane and firm; for there is a great deal of difference between disdainful insolence and diligence which is not prompted by ambition. 1Again, he should take care that the public money is not lent without good pledges or security.

34The Same, On the Edict, Book XV. Interest takes the place of produce, and therefore should not be separated from it; hence in legacies and trusts, in actions on guardianship, and in all other bona fide actions, this rule is observed. Wherefore we say that the same principle applies to all other accessions.

35Paulus, On the Edict, Book LVII. Interest runs after issue has been joined in a case.

36Ulpianus, On the Edict, Book LXI. The rents of urban estates are considered to be profits.

37The Same, On the Edict, Book X. Interest is included in the counter-action based on the ground of voluntary agency, where I borrow money in order to pay your creditor, because he was either to be placed in possession of your property, or about to sell your pledges. But what if, having the money at home, I paid the debt for one of the above-mentioned reasons? I think that it is true that interest should be paid where I have freed you from such a great inconvenience, but only such as is customary in that part of the country should be considered due; that is, such as has been established in the case of bona fide actions. But if I should pay money after borrowing it, the interest which I myself have paid can be collected; provided that, by doing so, I have been of greater benefit to you than the value of this interest.

38Paulus, On Plautius, Book VI. Let us consider, in a general way, where the produce of property is included in a personal action. 1And, in fact, where a tract of land is transferred for some consideration or other, as, for instance, by way of dowry, or that a marriage may be renounced, the crops should also be given up, that is to say those which have been gathered during the time that the marriage contract lasted; but, so far as those which have been gathered afterwards are concerned, if there was any default with reference to the property on the part of him whose duty it was to surrender it, they should by all means be included. Even if it was the woman’s fault that the marriage was not solemnized, the better opinion is that the crops should be given up. The reason for this is that if the woman’s betrothed was not compelled to surrender the crops, he would have been able to neglect the land. 2Moreover, if I have paid money which was not due for land, and I bring suit to recover it, I ought also to recover the crops. 3The same rule applies where land is given mortis causa, and the party who gave it regains his health, and therefore a right to a personal action for its recovery arises. 4Ad Dig. 22,1,38,4ROHGE, Bd. 10 (1874), S. 248: Der particeps fraudis debitoris haftet den Gläubigern auf den vollen Ersatz des ihnen Entzogenen, ohne Rücksicht darauf, ob er es noch besitzt.ROHGE, Bd. 13 (1874), Nr. 122, S. 381: Besitz als Voraussetzung der actio Pauliana?In both the Fabian and Paulian Actions, by means of which property which has been disposed of for the purpose of defrauding creditors, is recovered, the produce of said property must also be returned; for the Prætor uses his authority to place everything in the same condition as if nothing had been alienated; and this is not unjust, for the words, “you shall return,” which the Prætor makes use of in this matter, have a broad signification, so that the produce of the property must also be surrendered. 5And, therefore, when the Prætor agrees to the restitution, the produce must also be given up; as in proceedings under the interdict based upon the commission of violence. 6Moreover, if, induced by force or fear, I give up property, it is not held to be restored to me unless the produce of the same is also restored; nor can my default deprive me of any of my rights. 7If I am entitled to an action to recover something which is not mine, as, for example, on a stipulation; I cannot recover the produce, even if the other party is in default. But if issue has been joined, then Sabinus and Cassius hold that, according to the principles of equity, any profits which may have afterwards accrued must be delivered up, in order that the case may be placed in its original condition. I think that this opinion is very correctly stated. 8The profits of property must also be restored in the case of a purchaser. 9In a partnership, however, the profits must be divided among the partners. 10Where I revoke the natural possession of property it remains mine; but let us see whether this applies to the profits. And, in fact, in cases of deposit and loan for use, the profits must be given up, as we have already stated. 11Again, in proceedings under an interdict based on force and clandestine action, the better opinion is that all accessions and profits should be returned. 12Crops gathered from land before marriage become part of the dowry, and should be returned along with it. 13The same principle applies to the profit of urban estates. 14Moreover, if I wish to divide a tract of land with you and you refuse, and I cultivate the land, should the crops from it be divided after the expenses have been deducted? I think that they should be divided. 15The profits should always be delivered in other bona fide actions. 16Where a dowry is left by a husband to his wife, the profits of the same obtained before marriage are included in the legacy.

39Modestinus, Differences, Book IX. Where mares have been left in trust, their foals are also due after the heir is in default. Where a number of horses have been left, even though there be no default, their offspring belongs to the increase of the drove.

40The Same, Rules, Book IV. The calculation of interest is legally made up to the day when the creditor sells his pledges.

41The Same, Opinions, Book III. Judgment having been rendered against a guardian, he delayed the execution of the judgment by taking an appeal. Herennius Modestinus gave it as his opinion that the judge who had jurisdiction of the appeal could also hold him responsible for interest during the intermediate time, if he ascertained that the appeal was fraudulently interposed for the purpose of delay. 1Lucius Titius, who owed the sum of a hundred aurei and interest on the same for a certain time, tendered and sealed up a smaller sum than he owed. I ask whether Titius did not owe interest on the money which he sealed up. Modestinus answered that if it was not agreed at the time of the loan that the debtor should be permitted to pay what he had borrowed by instalments, the payment of interest for the entire debt would not be affected; if, when the creditor was ready to receive the whole amount, the debtor who failed to make the payment of the entire sum only deposited a part of it. 2Gaius Seius borrowed a certain sum of money from Aulus Agerius on the following note: “The undersigned says that I have received, and I acknowledge having received from him, borrowed money to the amount of ten aurei, which I promise to pay to him on the Kalends of next July, together with the interest on the same that is agreed upon between us.” I ask whether interest can be collected on this instrument, and if so, how much. Modestinus answered that if it does not appear how much interest was agreed upon, it cannot be collected.

42Ad Dig. 22,1,42Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 14.The Same, Opinions, Book XI. Herennius Modestinus gave it as his opinion that crops taken from land after the ownership of the same had been acquired by means of a trust, belonging to the beneficiary; even though the greater part of the year had elapsed before the trust became operative.

43The Same, Opinions, Book XVIII. Herennius Modestinus held that a party who institutes proceedings in behalf of the Treasury can collect interest which was not included in the stipulation, after he has collected what is due to the Treasury for the time during which the debtor was in default.

44The Same, Pandects, Book X. No one can stipulate for a penalty instead of interest above the lawful rate.

45Pomponius, On Quintus Mucius, Book XXII. A wife, or a husband, acquires the right to the produce of property which has been given by one to the other, that is to say, what either has been acquired by his or her labor, for example, by sowing; but if an apple should be plucked, or a tree cut down, it does not become the property of the party responsible for the act, just as it would not belong to any bona fide possessor, because the produce is not derived from his or her personal exertion.

46Ulpianus, On the Edict, Book LXII. There is no doubt that whatever has been expended in gathering the crops should be deducted from the crops themselves.

47Ad Dig. 22,1,47ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 281, Note 4.Scævola, Digest, Book IX. It is held that where a party is ready to join issue in a case, and his adversary fails to file his complaint, he will not be held to be in default.

48The Same, Digest, Book XXII. A husband bequeathed to his wife the usufruct of the third part of his property, and the ownership of the said third part if she should have children. The heirs accused the wife of forging the will and of other crimes, by which they were prevented from claiming the legacies. In the meantime, a son was born to the woman, and the condition of the legacy was thereby fulfilled. The question arose, if it was established that the will was not forged, should the crops be delivered to the owner? The answer was that they should be.

49Javolenus, On the Last Works of Labeo, Book II. The power of giving property in pledge is a product of the same.