Papinianus, Questions, Book I. Whatever authority is specially conferred either by a law, a decree of the Senate, or an Imperial Constitution, is not transferred when delegated, but any powers acquired by the right of magistracy can be delegated. Therefore, those magistrates are in error who, having authority conferred upon them by law or by a decree of the Senate, (such for instance as the Lex Julia de Adulteriis, and others of the same kind) to preside in a criminal trial, delegate their jurisdiction. A very strong argument in favor of this is, that in the Lex Julia de Vi it is expressly provided: “That he to whom the jurisdiction belongs can delegate it if he departs.” He can not delegate it unless he is absent, although any other jurisdiction can be delegated by one who is present. Where a master is said to have been killed by his slaves, the Prætor cannot delegate the right to try them, which was conferred upon him by a decree of the Senate. 1He to whom jurisdiction has been delegated possesses none peculiar to himself, but must only exercise that of the magistrate who conferred it upon him; for while it is true that by the custom of our ancestors jurisdiction can be transferred, the authority conferred by law cannot be transferred. For this reason no one says that the Deputy of a Proconsul has the right of imposing penalties when jurisdiction has been delegated to him. Paulus states that the authority attaching to jurisdiction is also delegated with it.

Papinianus, 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.

Ad Dig. 45,1,116ROHGE, Bd. 13 (1874), Nr. 62, S. 174: Schadlosbürgschaft. Einwand der Vorausklage.The Same, Questions, Book IV. If, after having stipulated for ten aurei from Titius, you stipulate with Mævius for all that you cannot obtain from Titius, there is no doubt that Mævius can be compelled to assume responsibility for the payment of the entire amount. If, however, you bring an action against Titius for the ten aurei, Mævius will not be released from liability until Titius has paid the judgment. Paulus says that Mævius and Titius are not liable under the same obligation, but that Mævius is liable on condition that you cannot collect the amount from Titius. Therefore, after Titius has been sued, Mævius will not be discharged from liability, because it is uncertain whether he will owe the money or not; and if Titius should pay, Mævius will not be released, as he was not liable; for the condition upon which the stipulation was dependent has failed; and Mævius cannot properly be sued, while the condition of the stipulation is still pending, for nothing legally can be demanded of him until Titius has been exhausted.

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

Papinianus, Questions, Book X. Paulus states in a note that an exception on the ground of legal ownership may be pleaded in bar of the Publician Action.

Papinianus, Questions, Book XII. Where, after the contract is made, the parties deduct something from the property purchased, this is considered to be included in the original contract, but where they make additions, we do not think that these form part of the contract. This takes place where something is added which supports the purchase; for instance where a bond for double the amount is furnished, or where a bond is furnished together with a surety. But in case the purchaser brings an action where the agreement is not valid, and the vendor also brings one, he will also have the right to avail himself of an exception. The question has very reasonably been asked whether the same rule applies where the price has been subsequently increased, or diminished; since the substance of the purchase consists of the price. Paulus states in a note that where everything remains in its original condition, and an agreement is afterwards made with reference to the increase or diminution of the price, the parties are held to have withdrawn from their former contract, and a new purchase to have been made. 1Papinianus says that where a sale is made in the following terms, namely: “This sale shall be void if it has reference to anything sacred, religious, or public,” and the property is not in public use, but belongs to the Treasury, its sale will be valid, and the vendor cannot avail himself of an exception because it will not be operative.

The Same, Questions, Book XIII. A son, who was his father’s heir, arrogated his disinherited brother and died, leaving the latter his heir. In this case the disinherited son will not have the right to demand possession of the estate of the freedman of his natural father. For although an adoption of this kind does not affect the rights of a son who is not disinherited, it will prejudice those of one that is; as the penalty imposed both by the Civil Law and the Prætorian Edict is not rendered inoperative by the act of adoption. Paulus says that anyone who obtains an estate by a different title than the one which he lost is not prejudiced by the latter, but is benefited by the one which he has acquired. Hence it has been settled by the Edict, that a patron, who is at the same time the son of a patroness, will not be excluded from, obtaining prætorian possession of the estate of a freedman, where he has committed some offence as patron. 1Papinianus: A freedman appointed Titius heir to his castrensian property, and another heir to his other property. Titius entered upon the estate. The better opinion seemed to us to be that the patron could not yet demand prætorian possession of the estate contrary to the provisions of the will. However, the following question arose, namely, if the person to whom the remainder of the estate had been left should refuse to accept it, would it accrue to Titius, just as if they had accepted two different shares of the same estate? It seems to me more equitable that the remainder of the estate should be considered to be without legal heirs. Therefore, Titius could not require the patron to contribute, as the former had lost nothing, nor had anything been taken from the remaining assets which had not yet been disposed of by the will. 2Where the minor son of a freedman, who is under the age of puberty and is alleged to be supposititious, obtains prætorian possession of the estate of his father, under the First Section of the Edict, the question arises whether the patron also can obtain prætorian possession. There is no doubt that those who are in the second degree cannot, under the Edict, be admitted to the succession, so long as there are others entitled to it under the First Section; for, as long as another possession has precedence, those that follow cannot be permitted to take place. There is no doubt that if a decision should be rendered against the child who is alleged to be supposititious, it is understood that possession will not be granted him; and the same rule will apply with reference to the patron, while the controversy is pending. It is clear that examination of the controversy should be deferred until the age of puberty, so far as the patron also is concerned. 3Where the will of a freedman is alleged to be forged by persons living in a province, and an appeal has been taken from the judgment, and, in the meantime, the daughter of the patron, whom the freedman appointed his heir, dies, the Divine Marcus decided that the share of the estate to which the daughter of the patron would have been entitled if she had lived should be preserved for her son.

Paulus, Questions, Book XXXI. Papinianus states in a note that it has been established that in all instances where servitudes have been extinguished by the entry of the heir, a legatee will be barred by an exception on the ground of fraud, if he does not permit the servitudes to be again imposed.