The Same, Opinions, Book XI. “If you will pay me a part of your debt by a certain time I will give you a release for the remainder, and discharge you from liability.” While no right of action exists under these circumstances, nevertheless, it is settled that the debtor has a right to an exception.

The Same, Opinions, Book XI. Where a debtor who has paid a tax to a public slave, but without the consent of those to whom he should properly have paid the debt, the former obligation will continue to be in force; but a set-off will be granted to the extent of the peculium which the public slave has in his possession.

Papinianus, Opinions, Book XI. Where a surety appears for a tenant of public lands before an officer having charge of the same, and which the said officer has leased to the tenant, he will not be liable to the government; but the crops, in this instance, will remain as a pledge.

The Same, Opinions, Book XI. Where anyone is released from liability on condition that he will delegate his obligation to Titius, as debtor, and he does not comply with the condition of the contract, he will be liable to an action for an uncertain amount of damages. Hence it is the duty of the judge, not to see that the old obligation is restored, but that the promise shall be fulfilled, or judgment be rendered.

Papinianus, Opinions, Book XI. Ad Dig. 20,1,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 8.A general agreement in pledging property, even such as is afterwards obtained, is valid. In a case, however, where an agreement has been made with reference to property belonging to another which was not due to him who pledged it, but the ownership of it is afterwards acquired by the debtor, the creditor will hardly be entitled to an equitable action, if he was not ignorant that the property belonged to someone else, but the retention of the property in his possession will be the better mode of procedure. 1Where a slave is given by way of pledge, the creditor cannot sell his peculium, unless an agreement has been expressly entered into on this point. It makes no difference when the slave or his master acquired the peculium. 2Ad Dig. 20,1,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Noten 12, 13.Where a tract of land is given in pledge, and it is expressly agreed that the crops thereof shall also be pledged and a bona fide purchaser has consumed said crops, he cannot be compelled to restore them by an equitable action under the Lex Servia; for it is held that the lien of the pledge is not removed by usucaption, as the question of the pledge is distinct from the intention of the owner. The case is unlike the one involving the crops, since they never belonged to the debtor. 3It was agreed in a contract that, if interest on a debt was not paid when due, the crops of the property hypothecated should be set off against the interest, to the limit of that which was lawful. Although matters of less importance were included in the stipulation when it was made, it is held that the agreement is not void; since, if the lower rate of interest should not be paid at the appointed time, the parties could properly agree to pay more than the legal rate of interest. 4Ad Dig. 20,1,1,4ROHGE, Bd. 25 (1880), Nr. 85, S. 358: Darlehn zur Bezahlung einer für den Ehemann übernommenen Schuld.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18.Where a woman had given a tract of land to her husband and he had pledged it, and after a divorce, the woman recovered possession of her land, and gave it in pledge to the creditor on account of the debt, in this instance the pledge seems to have been only properly made with reference to the money for which she was indebted to her husband for having improved the land; that is to say where he had incurred greater expense than the value of the crops which he had taken from it; for the woman is held only to have transacted her own business to that amount, and not to have undertaken to transact that of another.

The Same, Opinions, Book XI. Where a creditor received pledges which had also been received by a second creditor in accordance with the terms of another agreement, and a renewal having afterwards been made, he added other pledges to the former ones, it was held that the advantage of priority remained with the first creditor, as he had practically been subrogated to himself. 1Where a tract of land was due to Titius on account of a mandate, and he for whom the business had been transacted pledged it before possession of the same had been delivered to him, and after it had been delivered, he pledged the same land again to another party, the position of the first creditor appears to be preferable, if the second creditor did not pay the price of the land to the party who transacted the business, and it would be held that his position would be preferable, dependent upon the amount that he paid and the interest on the same, unless the first creditor offered to return him the money. If, however, the debtor should pay money derived from some other source, the first creditor should be preferred. 2After a division of a tract of land by certain boundaries had been made, it was agreed between two brothers that, if one of them should not release his undivided share of the land, which had been given to a creditor by way of pledge, the other brother could sell half of the share of his brother obtained by the division. I thought that a contract of pledge should be understood to have been concluded, but that the first creditor ought not to be preferred to the second, since the second pledge seemed to apply to that portion which the brother could not encumber beyond his own share, without the consent of his joint-owner.

The Same, Opinions, Book XI. Where the time for the payment of the money is prolonged by consent, it is held to have been agreed that the power to sell the pledge shall not be exercised before the time has elapsed.

Papinianus, Opinions, Book XI. The friend of an absent debtor took charge of his business, and, with his own money, released the pledges without their having been offered for sale. It is held that the owner was restored to his former condition, and therefore the party who transacted his business cannot justly ask that he shall be granted a prætorian action under the Lex Servia. If, however, he is in possession of the property which was pledged, he can protect himself by an exception on the ground of bad faith. 1Where a vendor sold a tract of land, and received it by way of pledge as security for a portion of the purchase-money, and afterwards presented the remainder of the price to the purchaser by a letter sent to him, the vendor having died, it was decided that a donation made in this way was void. The Treasury, which succeeded to the vendor, appeared as claimant, but was not permitted to bring suit for the land on the ground that it had been pledged, because it was held that the lien on it had been released by the will of the party who made the donation, as the law makes the donation of money void where there is no ground for the release of a pledge. 2A party who appeared in defence of another who was absent, gave an undertaking that he would execute the judgment. The conduct of the case having been afterwards transferred to the principal party himself, the sureties given by him who appeared for the defence to insure the execution of the judgment, will not be liable, nor will the pledges which they gave be liable either.

The Same, Opinions, Book XI. Ad Dig. 21,2,68 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 237, Note 22.Where a pledge is sold under the condition that the creditor will not be liable for anything in case of eviction, even though the purchaser should not pay the price, but gives security to the vendor; if eviction takes place, the purchaser will not be entitled to an exception to avoid paying the price of the property. 1Where a creditor has preferred to take a claim owned by the debtor by way of substitution for the money due, and the pledges taken by the former creditor are evicted; he will be entitled to no action against the debtor whom he released.

The 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.

The Same, Opinions, Book XI. A woman charged with a trust in favor of the freedmen of her husband, at the time of her death left the enjoyment of the said land, not only to the freedmen of her husband, but also to her own. The latter, through ignorance of the law, having failed to claim the land to which they were entitled by the will of the husband, obtained the profits of the same with the others for a long time, in accordance with the terms of the trust. It was established that they should not, on this account, be held to have been deprived of the benefit of the first trust.

Papinians, Opinions, Book XI. A father gave his daughter, at the time of her marriage, certain property in addition to her dowry, retained her under his control, and appointed her co-heir with her brothers, subject to the condition that she would contribute her dowry, and any other property which he had given her when she was married, by way of collation. As the daughter did not accept the estate, it was held that she could interpose an exception, on the ground of bad faith, against her brothers who brought an action to recover the property not included in the dowry, for the reason that her father intended that she should have one or the other of these.

The Same, Opinions, Book XI. I gave it as my opinion that a father had not defrauded his creditors who, without waiting for his death, transferred the estate of his wife which had been left in trust to their son, after having released him from his control, without taking any account of the Falcidian portion; and I held that the father had fully executed his trust, and had perfectly discharged the duty required of him.

The Same, Opinions, Book I. Ad Dig. 44,2,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 24.An exception on the ground of res judicata will not operate as a bar against a co-heir who was not a party to the suit; and a slave, who has not yet been manumitted under the terms of a trust, cannot be. again claimed as a slave, after judgment has been rendered in favor of his freedom; but it is the duty of the Prætor to see that the judgment is complied with in this case, as he cannot decide in favor of the party who was defeated. For if suit to declare a will inofficious has been brought against one of the co-heirs, or two co-heirs have brought actions separately, and one of them gains his case, it has been established that the grants of freedom must take effect; still, it is the duty of the judge to provide for the indemnity of the party who is successful, and who is to manumit the slave. 1If a debtor brings suit to determine the ownership of property, which he pledged without notifying the creditor, and judgment is rendered against him, the creditor will not be considered to occupy the place of the defeated party, as the agreement with reference to the pledge preceded the decision.

The Same, Opinions, Book XI. Where both parties to the stipulation agree to the provision that no fraud has been, or shall be committed in the transaction, suit for an uncertain amount can be brought, in order that the stipulation may be expressed in a more proper manner. 1A woman who was living in the same house with a man with the intention of marrying him stipulated with him for the payment of two hundred aurei, if, during the time of the marriage, he resumed his custom of keeping a concubine. I gave it as my opinion that there was no reason why the woman could not recover the money under the stipulation, if the condition was fulfilled, as the agreement was in accordance with good morals. 2A man, having been banished to an island, made a promise, the stipulation being expressed as follows, “Do you promise to pay when you die?” the stipulation will not become operative unless the promisor should die. 3A stipulation with reference to fraud will bind the heir of him who makes the promise by the mere act of the latter; just as is the case in other contracts, for instance, those of mandate and deposit.

The Same, Opinions, Book XI. It is established that the acceptance of joint-promisors, who have become sureties for one another, is not illegal. Therefore, if the stipulator wishes to divide his action (for he is not compelled to divide it) he can sue the same person both as principal debtor, and surety for the other, to recover different parts of the amount due; just as if he proceed by separate actions against the two principal joint-promisors. 1Ad Dig. 45,2,11,1ROHGE, Bd. 24 (1879), Nr. 91, S. 354: Voraussetzung der Gleichheit der Antheile mehrerer Berechtigter. Legitimation zur Geltendmachung der Rechte Einzelner.Where it was stated in a written contract that So-and-So and So-and-So stipulated for a hundred aurei, and it was not added that they jointly stipulated, it was held that each of them had only stipulated for his share. 2Ad Dig. 45,2,11,2ROHGE, Bd. 24 (1879), Nr. 91, S. 354: Voraussetzung der Gleichheit der Antheile mehrerer Berechtigter. Legitimation zur Geltendmachung der Rechte Einzelner.On the other hand, where it is provided as follows, “Julius Carpus stipulates to pay so many aurei, and we, Antoninus Achilles, and Cornelius Dius, promise to pay them,” each of the promisors will owe his respective share; because it was not added that each had promised to be liable in full, so as to render them all jointly responsible.

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. 1Ad Dig. 46,1,52,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 10.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. 2It 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. 3Where 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.

The Same, Opinions, Book XI. Ad Dig. 46,3,96 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 31.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. 1Where 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 prætorian action against the said ward who was the heir of the magistrate. 2Ad Dig. 46,3,96,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 17.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. 3Where 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. 4When 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.

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.

The Same, Opinions, Book XI. The money having been recovered, an equitable action will be granted against the surety who was released.