Ad Dig. 6,1,63Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 337, Noten 2, 5.The Same, Questions, Book XII. Where anyone loses possession through negligence, but not on account of fraud, since he must allow an estimate to be made, he will be entitled to be heard by the court, if he asks that his adversary should be ordered to assign his right of action; and as the Prætor will grant him aid at any time where some one else is in possession, he will not be taken advantage of in any way. He should be granted relief, even if the party who received the sum assessed is in possession; and the latter will not readily be heard if he desires to refund the money after he has once received it under the decision of the judge at the risk of the defendant.

The Same, Questions, Book XII. A freedman cannot be compelled to become the guardian for the children of anyone but those of his patron or patroness, unless they have expectations of succeeding to the rights of the latter.

The Same, Questions, Book XII. Where there are several guardians, who did not administer the guardianship, and all of them are solvent; will the ward have the right to select which one he will sue, because no administration of the trust has taken place; or should all the guardians share the responsibility in common, as being debtors for the same sum of money? The latter opinion is the more reasonable one. 1If some of the said guardians are not solvent, the others will undoubtedly be liable; nor is this unjust, since, through his contumacy, each one of them becomes responsible for the entire loss sustained by the ward. 2Wherefore, the question arose whether the ward is obliged to assign all his rights of action to the guardian, whom alone he has sued, or, at least, a part of them? But, as the contumacy of each one should be punished, with what propriety can this be demanded?

Papinianus, Questions, Book XII. When a guardian is removed on account of suspicion, by a decree of the Prætor, he need have no apprehension of liability for the time to come, for it would be unjust for anyone to be removed from guardianship or curatorship, and still not be secure for the future.

Papinianus, Questions, Book XII. Where a father, after emancipation granted by him to his son, resumes control over him again by arrogation, I have stated that the disinheritance previously made by his father will prejudice his rights; for it is proper to be observed in almost every law that an adopted son can never be understood to hold that relation towards his real father, in order to prevent the truth of nature from being obscured by a mere formality; so that the son is not considered to have been brought under the care of his father, but to have been returned to his control. In the case suggested, I do not think that it makes much difference whether the father arrogated his disinherited son either as his son or his grandson. 1Where Titius is appointed an heir and adopted in the place of a grandson, and afterwards the son who was considered the father of said grandson dies, the will is not broken by the succession of the grandson, so far as he who has been appointed heir is concerned.

Papinianus, Questions, Book XII. Where a son is substituted for an heir who has been passed over, he will be entitled to the estate by virtue of the will, and not on account of his father dying intestate; for if anyone else had been substituted, and the son had been disinherited, the will would begin to be operative from the degree in which the son was disinherited.

Papinianus, Questions, Book XII. Where a freedman has satisfied the claim of his patron so far as the share of his estate to which he is legally entitled is concerned, but at the same time, being unwilling to concede it to him, attempts to deprive him of certain property, the question arises, how should the matter be decided? For what if, having appointed the patron his heir to the share to which he is legally entitled, he should bequeath him ten aurei, in addition, and charge him to manumit his own slave who is worth ten aurei, or less? It would be unjust for the patron to decide to accept the legacy, and not free his slave, but, having accepted his legal share, he cannot be compelled to accept the legacy and liberate the slave. This rule is adopted to prevent him from being forced to manumit a slave who is unworthy of it. But what course must be pursued, if, having appointed his patron his sole heir, the freedman should make the same request of him? If the patron has a substitute, a decision may be rendered in such a way that the patron, having received the share to which he was entitled, the remainder will pass to the substitute; so that if the slave can be purchased, he may obtain his freedom. Where, however, no substitution has been made, the Prætor, who has jurisdiction of the trust, may compel the patron who accepts the estate of the freedman to grant freedom to his slave.

The Same, Questions, Book XII. If, after having stipulated for a hundred slaves to be chosen by myself and my heir, I leave two heirs before I make my choice, the stipulation will be divided by the number. It will, however, be different if the heir should succeed after the slaves have been chosen.

Ad Dig. 46,6,12ROHGE, Bd. 4 (1872), S. 325: Rechtsverhältniß mehrerer Bürgen dem Gläubiger gegenüber. Regreß eines Mitbürgen an den andern zur Hälfte, ungeachtet letzterer nur zur letzten Stelle hat haften wollen. Beneficium cedendarum actionum, divisionis, excussionis.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 6.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.

The Same, Questions, Book XII. If I sell, but do not deliver a slave, and he is stolen without any fault of mine, the better opinion is that I will be entitled to an action for theft; and I am considered to be interested, either because the property was in my hands or because I will be obliged to assign my rights of action. 1When, however, the action of theft is postponed on account of the ownership, although it does not lie unless we have an interest, still, my benefit should be referred to the valuation of the article itself, even if I have no other interest. This is proved in the case of slaves who are to become free under a certain condition, and where a legacy is bequeathed conditionally. Otherwise, where an attempt is made to prove something else, the amount cannot be easily determined. Therefore, because the valuation solely depends upon the benefit, as the action for theft arises without taking the ownership into consideration, in instances of this kind the action for theft cannot be referred to the valuation of the article. 2If I have brought an action for the production of property, intending to make a choice of a slave who was bequeathed to me, and one of the slaves belonging to the estate has been stolen, the heir will be entitled to an action for theft, as he has an interest in the matter, and it makes no difference whether the slave should have been guarded. 3No matter how a robber perpetrates a theft, he should be considered a manifest thief. 4He, however, through whose fraudulent act a robbery is committed, is not liable for theft, but for robbery with violence. 5If Titius, in whose name a false agent has collected money which was not due, ratifies the payment, Titius, indeed, can himself bring an action for business transacted; but he who paid the money which was not due will be entitled to a personal action on that ground against Titius, and the action for theft will also lie against the false agent. But if Titius should be sued, he can not improperly avail himself of an exception on the ground of fraud, to compel the right of personal action for theft to be assigned to him. If, however, the money was due, and Titius ratifies the payment, the right of action for theft will be extinguished, because the debtor is released. 6Ad Dig. 47,2,81,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 4.A false agent can also commit a theft of money, if he deceives the debtor of another, by assuming the name of a genuine agent of the creditor. This also applies to the case of one who asserts that money is due to him as the heir of the creditor, Sempronius, when he is not the heir. 7A person who was accustomed to transact the business of Titius paid a false agent of his creditor in his name, and Titius ratified the payment. The right of action for theft will not arise in favor of Titius, because as soon as the money has been paid, the action can be brought by the person who paid it, as neither the ownership nor the possession of the money belong to Titius. Titius, however, will be entitled to a personal action for the recovery of money which was not due, and he who paid the money can bring the action for theft. If Titius is sued on voluntary agency, the money should be awarded to him by the decision of the court.