Scævola, Opinions, Book V. Where a minor was about to reject the estate of his father, his guardian made an agreement with several creditors of the estate that they would accept a certain proportion of their indebtedness. The curators of the minor made the same compromise with other creditors; and I ask whether the guardian, being himself a creditor of the father, was entitled to retain the same proportion of the debt? I have answered that the guardian who had induced the other creditors to accept a percentage of what was due, ought himself to be content with a similar amount.

Ad Dig. 12,6,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 31.Scævola, Opinions, Book V. The guardians of a ward paid certain creditors of his father out of the estate of the latter, but afterwards, the property not proving to be sufficient, they caused the ward to reject the estate; and the question arises whether the creditors would be obliged to return the overplus paid them by the guardian, or whether they must return all they received? I answered that, if no fraud had been committed, nothing was due to the guardians or to the ward, but that they were liable to the other creditors for the amount of the excess of the debts which had been paid.

The Same, Opinions, Book V. A debtor agreed that everything belonging to his land and everything added to it, placed upon it, brought to it, born upon it, or derived from it, should be encumbered. A portion of the said land was without tenants, and the debtor, for this reason, gave it to his steward to be cultivated, and furnished him at the same time with the slaves necessary for that purpose. The question arises, whether the slave, Stichus, who was the steward, and the other slaves designated for the cultivation of the land, as well as the underslaves of Stichus, were encumbered. The answer was that only those who were brought there with the intention of the master that they should remain permanently, and not such as were employed temporarily, were subject to the pledge.

The Same, Opinions, Book V. A woman gave a tract of land, which had been pledged as dowry to her husband, and by her will she appointed, as heirs, her husband and her children by him and by a former husband. The creditor, although he could have brought suit against the heirs, who were solvent, had recourse to the land. I ask whether, if a lawful possessor should tender him the amount of the debt, he would be compelled to transfer to him his rights of action. The answer is that what was asked does not seem to be unjust.

The Same, Opinions, Book V. A guardian, who was at the same time the co-heir of his ward, had an action brought against him for the execution of a trust, and bound himself for payment in full. The question arose whether an equitable action should be granted against the ward, after he had reached the age of puberty, for the recovery of his share of the amount. The answer was that it should be granted.

The Same, Opinions, Book V. A testator bequeathed a string of thirty-five pearls, which was in the possession of the legatee at the time of his death. I ask whether the said string of pearls should be restored to the heir, in order to enable him to reserve a portion of them under the Falcidian Law. The answer was that the heir could bring an action to compel its restitution to him, and if he preferred to do so, he could bring suit to recover that portion of the string of pearls which he was entitled to keep under the provisions of the Falcidian Law. 1The question arose whether the value of statues is subject to the operation of the Falcidian Law. The answer was that it is.

Ad Dig. 39,5,32Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 368, Note 11.Scævola, Opinions, Book V. Lucius Titius sent the following letter: “So-and-So to So-and-So, Greeting. You can make use of such-and-such an apartment and all the rooms above it, gratuitously; and I notify you by means of this letter that you can do so with my consent.” I ask whether the heirs of the writer can forbid the use of the apartment? The answer was that, according to the facts stated, the heirs of the person who wrote the letter can change the intention of the latter.

Scævola, Opinions, Book V. A certain man purchased, in good faith, a tract of land belonging to another, and began to build a house upon it before the time for acquiring possession of it by prescription had elapsed; and the owner of the land, having notified him before the term fixed by law had expired, continued to retain possession. I ask whether the prescription was interrupted, or, having once begun, continued to run. The answer was that, in accordance with the facts stated, it had not been interrupted.

Scævola, Opinions, Book V. Where anyone has begun to acquire a slave by usucaption, as a gift, and manumits him, the act of manumission is void, because he has not yet obtained the ownership of the slave. The question arose whether he had ceased to acquire him by usucaption. The answer was that with reference to the person in question, he seemed to have relinquished possession, and hence usucaption was interrupted.

Scævola, Opinions, Book V. Suit was brought against a female ward on a contract agreed to by her father and authorized by her guardian, and she lost her case. Her guardians afterwards caused her to reject her father’s estate, and hence it passed into the hands of the substitute, or her co-heirs. The question arose whether or not they would be liable by virtue of the decision. It was held that an action should be granted against them, unless judgment had been rendered against the ward through the fault of her guardians.

The Same, Opinions, Book V. Where a creditor receives a pledge to secure an old claim, I ask whether his act is of no effect, as having been performed for the purpose of defrauding the other creditors. The answer was that the creditor should not be prevented from pursuing the pledge, because he had agreed that it should be given as security for an old debt, unless this was done for the purpose of defrauding other creditors, and legal proceedings should be taken by which acts defrauding creditors are usually rescinded.

Scævola, Opinions, Book V. “It is allowed by the Law of Nations to build upon the sea-shore, unless the public use of it is interfered with by doing so.”

Scævola, Opinions, Book V. Inquiry has been made whether he who owns houses on both sides of a public stream has a right to build a bridge which will be his private property. The answer was that he cannot do so.

Scævola, Opinions, Book V. A surety having had judgment rendered against him on account of eviction was ready to return the land from which the purchaser was evicted, and everything else which was included in the contract of sale. If the purchaser pleads the exception based on res judicata, I ask whether he can be barred by one on the ground of fraud. The answer was that the exception can be pleaded against him, but that the judge will see that he satisfied the purchaser for all the damage which the latter has sustained.

Scævola, Opinions, Book V. If anyone should make the following promise, “I will pay you ten aurei upon the day that you demand them, and interest on the same every thirty days,” I ask if the interest will be due from the date of the stipulation, or from the time when the principal was demanded. The answer was that, according to the facts stated, the interest will be due from the day of the stipulation, unless it is clearly proved that the intention was otherwise. 1The question was also asked if I should pay the money as soon as it was demanded. The answer was that, according to the facts stated, it began to be due from the day on which the stipulation was made. 2Ad Dig. 45,1,135,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 6.Seia entered into a contract with Lucius Titius that, as he had directed her to buy a garden for him, when she had received the entire price of the same with interest, she would transfer the ownership of the garden to him. It was agreed between them immediately afterwards that he should pay her the entire amount before the first Kalends of April, and receive the garden. As all the purchase-money with interest was not paid by Lucius Titius to Seia before the Kalends of April, but he was ready to pay the balance, together with the interest, within a reasonable time, and if Seia refused to accept it, it was not his fault that the balance was not paid, the question arises, if Lucius Titius is still ready to pay the entire amount to Seia, whether he can bring suit under the stipulation. The answer was that he could, if he tendered the money not long afterwards, and if the woman did not suffer any damage on account of the delay; all of which should be referred to the decision of the court. 3Titius stated in an instrument in writing that a slave had been given and delivered to him by Seia, under the condition that he should not come into the hands of his brother, his son, his wife, or his brother-in-law. Seia having stipulated for this, Titius agreed to it, and after the lapse of two years died, leaving two heirs, Seia and his brother, to whom it had expressly been provided that the slave should not belong. The question arose whether Seia could bring suit under the stipulation against this brother, who was her co-heir. The answer was that she could do so, to the extent of her interest. 4A daughter, who instituted proceedings against a will as being inofficious, and afterwards compromised with the heirs by means of a stipulation, in which was inserted the clause relating to fraud, brought an action before the Prefect attacking the will as forged, but was unable to prove this. I ask whether she could be sued under the clause providing against fraud. I answered that whatever was done afterwards had nothing to do with the stipulation.

Scævola, Opinions, Book V. If the surety has notified the creditor to compel the debtor to pay the money, or sell the pledge, and he does not attempt to collect the claim, can the surety bar him by an exception on the ground of fraud? The answer was that he can not do so.

Scævola, Opinions, Book V. Ad Dig. 46,3,102 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 346, Note 3.A creditor postponed the acceptance of money tendered by his debtor in order to receive it at another time. This money, which the government was then using, was soon afterwards withdrawn from circulation by order of the Governor, as containing too much copper. Certain money belonging to a minor, which had been kept in order to be invested in good notes, was also rendered worthless. The question arose, who would be compelled to bear the loss? I answered that, according to the facts stated, neither the creditor nor the guardian would be compelled to bear it. 1The parties to a loan having agreed as to the principal of the debt but being involved in litigation with reference to the interest, it was finally decided on appeal that the interest which had been paid could not be recovered, and would not afterwards be due. I ask whether the money which had been paid should be credited on the interest, as was claimed by the plaintiff, or whether it should be employed to reduce the principal. I answered that if he who paid it said that he did so in order that it might be credited on the principal, it should not be credited as interest. 2Valerius, the slave of Lucius Titius, drew up the following receipt: “I have received from Marius Marinus such-and-such a sum of aurei to be credited on a larger amount.” I ask whether this amount should be credited for the coming year, as it constituted the balance for the past year. I answered that the payment should be considered a credit upon any sum which was previously due. 3Titius borrowed a sum of money, promised to pay interest at the rate of five per cent, and did so pay for a few years, and afterwards, without any agreement to that effect, but through mistake and ignorance, paid interest at six per cent. If the mistake should be discovered, I ask whether the amount which he had paid over and above the interest agreed upon in the stipulation would diminish the principal. The answer was, if he had paid more interest by mistake than he owed, any excess should be credited upon the principal.

The Same, Opinions, Book V. Ratification takes place not only by words but also by acts: hence if the principal, approving the act of his attorney, proceeds with the case which the latter began, the stipulation will not become operative.

Scævola, Opinions, Book V. Where anyone who transacts the business of another in good faith or as a guardian, or a curator, has been condemned, and has appealed; and, after the case had been protracted for a long time, the appeal finally was decided not to have been made on good grounds; the question arose whether, because judgment was rendered subsequently, the interest on the principal for the intermediate time is due. The answer is that, according to the facts stated, a prætorian action should be granted. 1The curator of a minor in a suit brought against the heirs of his guardian filed an appeal. As the young man had then passed the age of twenty-five years, and was in the army, he neglected to prosecute his appeal. Having returned from the army, I ask whether he himself should prosecute his appeal, or should apply to his curator to do so. The answer was that, in accordance with the facts stated, the soldier himself should proceed with the case in which he was interested.

Scævola, Opinions, Book V. If a copyist makes a mistake in transcribing a stipulation, this will not prevent the debtor and the surety from being liable.