Neratius, Parchments, Book VII. Where the same party defends two actions against the same estate, and judgment is rendered in favor of one of them, the question sometimes arises whether the estate should then be surrendered to him who gained the suit, just as would have been done if no defence had been made against the other; so that, in fact, if judgment should afterwards be rendered in favor of the other party, the defendant would be released from liability; since he was neither in possession, nor had acted fraudulently to avoid being in possession, as he had surrendered the property when he lost the case; or because it was possible that the other plaintiff might be able to obtain a decision in his favor, the defendant should not be obliged to surrender the estate unless security is given him, for the reason that he was compelled to defend the action for recovery of the estate against the other party. The better opinion is that it should be the judge’s duty to come to the relief of the defeated party by security or a bond, since in that way the property remains for the benefit of him who is slow in asserting his rights against the successful plaintiff who preceded him.

Neratius, Parchments, Book VII. Although you have become surety for my slave in a contract which was made with reference to my business, for example, if where a slave had purchased grain for the maintenance of the entire body of slaves, you gave security to the vendor of the grain; still, the better opinion is that you may bring the action De peculio on this account, but not an action based on the employment of property in the affairs of another; so that an action on the latter ground will lie in any contract solely in favor of the person who loaned the very property which has been employed in the affairs of the matter.

Neratius, Parchments, Book VII. It was held by both Aristo and Celsus, the father, that property could be deposited, and the performance of a mandate assumed, under the following condition, namely: “That the property should be at the risk of the party who received the deposit, or undertook the performance of the mandate.” This appears to me to be correct.

Neratius, Parchments, Book VII. Security may also be given for the payment of legacies to him to whom an action is granted on account of said legacies as against one who, having rejected his appointment as heir, has acquired the estate on the ground of intestacy; and, unless security is furnished, he will be placed in possession of it for the purpose of preserving the legacies, as the Prætor desires them to be secure, just as in the case of those due under the Civil Law. Aristo holds the same opinion.

The Same, Parchments, Book VII. If my agent recovers property which has been stolen from me, although, generally speaking, it is now almost conclusively settled that we can obtain possession by means of an agent, the property, nevertheless, will not again come under my control so that it can be acquired by usucaption, because to decide otherwise would be fallacious.

Neratius, Parchments, Book VII. When, in a second action, the question arises whether the property is the same as that which was the object of the first one, the following things must be considered: first, the parties interested; second, the property for which suit was brought; and third, the immediate cause of action. For now it is of no consequence whether anyone believes that he has a good cause of action, any more than if, after judgment had been rendered against him, he should find new documents to strengthen his case.