Tryphoninus, Disputations, Book VIII. For he will not be able to recover from the debtor more than the amount of the debt. If, however, there had been an agreement for interest, and, five years, for instance, after having received the price of the property pledged the creditor, having lost his case, makes restitution to the purchaser, he can recover from the debtor interest for the intermediate time, because it is evident that nothing has been paid to him in such a way that it cannot be deprived of it. Where, however, he has only paid the price received, he will be barred by an exception on the ground of fraud from a claim for interest, since he has had the use of the purchase-money which he received from the buyer.

Tryphoninus, Disputations, Book VIII. Where a son or a slave, with reference to whom an action on the peculium alone has been brought, dies before the case is terminated, that peculium will be taken into consideration which any of the parties possessed when he died. 1Julianus says that where anyone by his will directs that his slave shall be freed, and bequeaths to him his peculium, he is understood to bequeath it at the time when he becomes free; and therefore all increase of the peculium, of whatever description, acquired before the estate was entered on, will belong to the manumitted slave. 2But where anyone bequeaths the peculium of the slave to a stranger, the question is as to the supposed intention of the testator; and the more probable opinion is, that whatever was in the peculium at the time of his death is bequeathed, with the understanding that any accessions which may be made to the property of the peculium when the estate is entered upon, as, for instance, the offspring of female slaves and the increase of flocks, are owing, but that whatever was given to the slave or he acquires by his own labor, does not belong to the legatee.

Tryphoninus, Disputations, Book VIII. Where anyone promises to pay either you or Titius, he cannot recover what he has paid to Titius; but if he has given him a pledge, and the latter received it before payment, he can recover it.

Tryphoninus, Disputations, Book VIII. The question arose if, after you had made a contract with a party and before you lent him any more money, Seius should lend the same debtor fifty aurei, and the debtor should encumber to him the property to an amount exceeding the value of what had been pledged to you, and then you should lend to the same creditor, for instance, forty aurei, which was the excess of the value of the property which you lent in the first place; would the surplus of the pledge be liable to him for the fifty aurei, or to you for the forty which you lent? Suppose that Seius was ready to tender you the amount loaned in the first place. I held that the result would be that Seius would be preferred with reference to the surplus value of the pledge, and if the sum lent in the first place, together with the interest, was tendered by him, he would be preferred to the first creditor, so far as the amount which he had subsequently lent to the same debtor is concerned.

Tryphoninus, Disputations, Book VIII. It was stated in a Rescript by the Emperor, in reply to an application made by Papinianus, that a creditor could purchase a pledge from his debtor, because it still belongs to the debtor. 1Ad Dig. 20,5,12,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 422, Note 4.Where property belonging to another has been pledged, and the creditor sells it, let us see whether the price received by the creditor will release the debtor from liability to a personal action on the ground of money loaned. And, indeed, it might be answered that is true if the sale was made on condition that no obligation would be incurred in case of eviction, because the price paid under such circumstances would certainly rather benefit the debtor, and also be a source of profit to the creditor, where this arises out of any contract made, or obligation assumed by the debtor; the debtor will, however, be released only so far as the creditor is concerned, but he will still be liable to the owner of the property where the pledge has not yet been lost through eviction, or he will be liable to the purchaser, after eviction, in an equitable action to prevent his profiting by the loss of another. If, for instance, a creditor, while proceeding against a possessor of the property pledged, deprives him of a greater amount of the crops than he is entitled to, he should receive them by way of satisfaction of what is owing to him. And where, on account of an unjust judicial decision, a creditor has deprived the owner of property which did not belong to the debtor, under the pretense that it was encumbered to him; and the question was asked whether; if the claim was paid it should be restored to the debtor, our Scævola held that it should be restored. If, however, the creditor who sold the property did not do so in a way that he would be absolutely sure of keeping the price, but would be compelled to return it under certain circumstances, I think that, in the meantime, nothing can be recovered from his debtor, but that his release would remain in abeyance. But if the creditor is sued in an action on sale and must indemnify the purchaser, he can recover the amount of the debt from the debtor, because it is evident that he was not released.

Ad Dig. 20,6,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7.Tryphoninus, Disputations, Book VIII. Where a debtor, after the oath has been tendered by his creditor, swears that he should not be obliged to pay, the pledge is released, because this proceeding has the same effect as if the debtor had been discharged from liability in court, for if he has been discharged by the judge, even though this was done unjustly, the pledge will, nevertheless, be released.

Tryphoninus, Disputations, Book VIII. Where a woman who is about to marry a son under paternal control, who is her debtor, promises, by way of dowry only the right of action which she has for his peculium, the amount that is due to her on this account at the time of the marriage must be taken into consideration. 1Where, however, being about to marry another person, she directs the said son, who is her debtor, to promise her dowry out of his peculium; the time when the dowry is promised must be taken into account so that the amount of the peculium may be estimated.

Tryphoninus, Disputations, Book VIII. Let us see whether a person to whom a release has been granted by a will, and against whom an action on the peculium is pending, shall be considered to occupy the position of a legatee, if, at the time when a legacy usually vests, nothing should be found in the peculium. Even if he is not yet a debtor, it does not follow that he would derive any advantage from the legacy, unless through the hope of some future addition to his peculium. Therefore, will his condition as legatee be in suspense, just as ii would be if, for any reason, he should render the expectation of the legacy doubtful? This is the better opinion.