The Same, On the Edict, Book XXX. If anyone destroys a will left with him after the death of the testator, or mutilates it in any way, the person mentioned therein as heir will be entitled to an action against him on the ground of fraud. The same action should be granted to those to whom legacies have been bequeathed.

Ulpianus, On the Edict, Book XXX. Where money has been deposited, the judge should not tender the oath in order that the party may swear to the amount of his interest, since the value of the coins is certain; unless he should swear as to what his interest was to have the money returned to him on the appointed day; for what if he had to pay a sum of money under a penalty, or on account of a pledge, and the pledge was sold because the other party had refused to pay the money which had been deposited with him?

The Same, On the Edict, Book XXX. In a suit for the recovery of stolen property, the party is liable not only for the amount which came into his hands, but also for all of it, if he is the sole heir; but where he is heir to a share, he is liable to the same proportion of such a share in the stolen property as he is entitled to in the estate.

Ulpianus, On the Edict, Book XXX. Where a pledge has been stolen, and the creditor brings an action for theft, Papinianus is of the opinion that he must credit on the debt everything that he recovers; and this is correct, even though the theft was committed through the negligence of the creditor. Much more should this be held with reference to what he obtains by a suit for recovery. But let us consider whether what the debtor himself paid to the creditor under an action for theft or one for recovery shall be credited on the debt; and, indeed, it has been frequently stated and handed down that he is not required to restore to him what he himself has paid under an action for theft. Papinianus says the same thing in the Ninth Book of Questions. 1Papinianus also says that, where the creditor, actuated by fear, returned to the debtor a slave who had been pledged, and whom he had received in good faith for that purpose, the same rule applies; for if he institutes proceedings because he had done this on account of duress, and he recovers quadruple damages, he will not return anything out of what he obtained, nor shall he credit it upon the debt. 2If a thief gives property in pledge, an action on pledge as well as for the profits can be brought by him, although he cannot make the profit his own; for a thief can be sued not only for the profits of property which is in existence, but also for the recovery of the value of that which has been consumed; and therefore the fact that the creditor was a bona fide possessor will be an advantage to him. 3If, after the pledge has been sold, the debtor who obtained possession of the property by sufferance, or who leased it, does not relinquish possession, he will be liable to a counter action. 4Where a creditor, when he sold the property pledged, promised double damages (for this is customary, and having been sued in a case of eviction he had judgment rendered against him) would he have a right to a counter action on pledge? It may be said that he would have such a right, provided he made the sale without fraud or negligence, and transacted the business as the diligent head of a household should do. Where, however, a sale of this kind was, in no wise, profitable, but the party sold it for as much as he could have obtained even if he had not given the promise, he cannot have recourse to this action.

Ulpianus, On the Edict, Book XXX. The nice question has been asked me; if the creditor has obtained from the Emperor a Decree that he shall have possession of the pledge, and has been deprived of it by a better title, will he have a right to a counter action on pledge? It seems to me that the obligation growing out of the pledge is terminated, and that there is a withdrawal from the contract; nay more, there is an equitable action arising from the purchase of which he can avail himself, just as if the property had been given up to him by way of payment, so as to satisfy him for the amount of the debt or of the interest he had in the matter; and the creditor would be entitled to a set-off, if an action on pledge, or one based on any other ground, should be brought against him. 1The question arises whether anyone who has paid the creditor in counterfeit money can bring the action on pledge, because the money has been paid? It is established that he cannot bring an action on pledge, nor will he be released from the debt because counterfeit money does not release the party who pays it; and, indeed, the money should be returned to him. 2Where a creditor sells a pledge for more than was due, but has not yet recovered the price from the purchaser, can he be sued in an action on pledge for payment of the surplus? Or must the debtor wait until the purchaser pays, or have a transfer of the rights of action against the latter made to him? I am of the opinion that the creditor should not be compelled to make payment, but that the debtor should wait, or, if he does not do so, that the rights of action against the purchaser should be assigned to him, but at the risk of the vendor. Where, however, he has already received the money he must surrender the surplus. 3Where the creditor has maltreated property which was pledged or has injured slaves, this must be taken into consideration in the action on pledge. It is evident, however, that, if he has employed force against them on account of their bad behavior, or has placed them in chains, or has brought them before the Prefect or the Governor; it must be said that the creditor is not liable to the action on pledge, therefore, if he has prostituted a female slave, or compelled her to perform any other improper act, the pledge of this slave is at once released.

Ulpianus, On the Edict, Book XXX. A deposit is what is given to another for safe-keeping. It is derived from the word ponere, to place, and the preposition de adds to the meaning of the term, and indicates that everything which pertains to the safe-keeping of the article in question is entrusted to the good faith of the party. 1The Prætor says: “Where property has been deposited, I will grant an action for simple damages, for any other cause than a tumult, a fire, the ruin of a building, or a shipwreck. I will grant one for double damages against the depositary in those cases which are mentioned above. I will grant one for simple damages against the heir of him who is alleged to have been guilty of bad faith with reference to the property deposited, and I will grant an action for double damages where the heir himself has been guilty of fraud.” 2The Prætor, very properly placed by themselves those cases of deposit which result from necessity occasioned by accidental circumstances, and which do not depend upon the will of the party making the same. 3A person is understood to have made a deposit on account of a tumult, or of a fire, or for other causes, when he has no other reason to make it than the imminent danger arising from the above mentioned catastrophes. 4This distinction of causes is reasonable, since when anyone relies upon the faith of the depositary, and the deposit is not returned, he should be content with an action for the mere recovery of the property, or its value. When, however, he makes a deposit through necessity, the crime of perfidy increases in its seriousness, and the public welfare demands retribution, for it is injurious to violate a trust in cases of this kind. 5The accessories to property which is deposited are not included; as, for instance, where a slave who is clothed is deposited this does not apply to his garments, nor is a halter deposited with a horse, for the horse alone is deposited. 6If it is agreed upon that the party shall be responsible for negligence with reference to the deposit, the agreement is valid, for the law of contracts depends upon the agreement. 7It will not be held that damage resulting from fraud shall not be made good, even if this should be agreed upon; for a contract of this kind is contrary to good faith and good morals, and therefore should not be observed. 8Where clothing given to the keeper of a bath to be taken care of is lost, if he received no compensation for the care of it, I am of the opinion that he will be liable for the deposit only where he has been guilty of bad faith; but if he received compensation, an action can be brought against him on the ground of hiring. 9Ad Dig. 16,3,1,9ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Where anyone compels a slave, who has been entrusted to him for safe-keeping, to work in a mill, and he receives any remuneration for guarding him, I think that an action on hiring will lie against the miller. If, however, I myself received pay for the slave whom the miller took into the mill, suit can be brought against me for leasing him. Where the labor of the slave was set off against the compensation for his custody, a certain kind of leasing and hiring arises, but because no money is paid, an action will be granted on the terms of the contract. If, however, the party furnished the slave nothing else but food, and no agreement was made with reference to his labor, an action on deposit will lie. 10In leasing and hiring, and in matters in which an action should be granted on the terms of the contract, the parties who received the slave will be responsible for fraud and negligence; but, if they only furnished him with food, they will merely be responsible for fraud, since, (as Pomponius says), we must follow what was prescribed or agreed upon, provided we know what it is; and if anything was prescribed, the parties who received the slave will only be responsible for any fraud which is involved in the deposit. 11Ad Dig. 16,3,1,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 313, Note 3.If I request you to take some article of mine to Titius, in order that he may take care of it; Pomponius asks by what action I can institute proceedings against you? He thinks that I would be entitled to an action on mandate against you, but to one on deposit against the party who received the property; if, however, he received it in your name, you and he will be liable to me in an action on mandate, and he will be liable to you in an action on deposit, and this right of action you can assign to me when I sue you on mandate. 12Ad Dig. 16,3,1,12ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Where I have given you any property on condition that you will take care of it if Titius should not be willing to receive it, and he does not receive it; it should be considered whether merely an action on deposit, or also one on mandate will lie. Pomponius is in doubt on this point, but I think that an action on mandate will lie, because the mandate is of greater scope with reference to the condition of safe custody. 13Ad Dig. 16,3,1,13ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Pomponius also asks if I direct you to keep safely some property received from another in my name, and you should do this, will you be liable to an action on mandate, or to one on deposit? He rather holds that there should be an action on mandate, because this is the first contract. 14Ad Dig. 16,3,1,14ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur wegen Dolus nicht auch wegen culpa.Pomponius also asks, where you are willing for me to make a deposit with you, and you direct it to be made with your freedman, whether I can proceed against you by an action on deposit? He says if I had deposited the property in your name, that is to say, with the understanding that you are to take charge of it, I will have an action against you on deposit, but if you persuade me that I should rather make a deposit with the freedman, no action will lie against you, since the action on deposit must be brought against him; or will you be liable on mandate because I was transacting my own affairs? But if you directed me to make the deposit with the freedman at your risk, I do not see why an action on mandate will not lie. Labeo says that it is evident that if you have given security, the surety will, by all means be liable, not only if the party who received the deposit was guilty of fraud, but even if he is not, the property is still in his hands; for what if he, with whom the deposit was made, should become insane, or a ward, or should die without leaving an heir, a possessor of, or a successor to his estate? He will, therefore, be liable to make good what is customary in an action on deposit. 15The question arises whether an action on deposit can be granted against a ward with whom a deposit has been made without the authority of his guardian? It must be held that he can bring an action on the ground of fraud, if the deposit was made with him when he was old enough to be guilty of the offence, for an action will be granted against him for the amount by which he would have been pecuniarily benefited if he had not been guilty of fraud. 16Where the property deposited is returned in a deteriorated condition, an action on deposit can be granted, just as if it had not been returned at all; for when property is returned in a worse condition than it was in the first place, it can be said that it has not been returned at all on account of fraud. 17If my slave has made a deposit, I will, nevertheless, be entitled to an action on deposit. 18If I make a deposit with a slave, and bring suit against him after he has been manumitted, Marcellus says that the action will not lie; although we are accustomed to hold that anyone should be liable for fraud committed even in servitude, because both crimes and damages follow the person of the guilty, and therefore, in this instance recourse must be had to other actions which can be brought. 19This action will lie in favor of the possessor of property and other possessors, as well as in favor of him to whom restitution of an estate is granted under the Trebellian Decree of the Senate. 20Not only is fraud previously committed involved in an action on deposit, but also that which may be committed subsequently, that is to say, after issue has been joined. 21Hence, Neratius states that if property which has been deposited is lost without fraudulent contrivance, and is recovered after issue has been joined, the defendant will nevertheless, properly be required to make restitution, and that he should not be released from liability unless he does so. Neratius also says that even though the action on deposit may have been brought against you at a time when you did not have power to make restitution, as, for instance, when the warehouses were closed; still, if you had power to make restitution before judgment was rendered against you, you should be condemned unless you do so, because the property is in your hands; for inquiry should then be made whether you acted in bad faith since you did not have the property. 22It is stated by Julianus in the Thirteenth Book of the Digest, that anyone who deposits property can immediately bring an action on deposit, since he who received it is guilty of an act of bad faith because he does not return it when demanded. Marcellus, however, stated that he who does not return it to the person who claims it, cannot always be held to have acted fraudulently; for what if the property was in the province, or in a warehouse which could not be opened at the time judgment was rendered, or the condition upon which the deposit depended had not been fulfilled? 23There is no doubt that this action is a bona fide one. 24And, for this reason, the crops, all accessories, and the yield of flocks should be embraced in this action, lest only the bare article itself should be included. 25If you sold the property which was deposited, and you subsequently purchased it on account of the deposit, even if it should afterwards be destroyed without bad faith on your part, you will be liable for the deposit, because you once acted fraudulently when you sold the property. 26In an action on deposit also, a judicial oath is taken with reference to the value of the property. 27It seems to be perfectly just that I should be granted this action, not only if my slave, but if one who is serving me as a slave in good faith, deposited the property, if he deposited it as belonging to me. 28In like manner, I can bring this action if I have an usufruct in a slave, and what he deposited was part of his peculium, which belonged to me or was my property. 29Moreover, if a slave belonging to an estate makes a deposit, the heir, who afterwards enters upon the estate, can bring the action. 30Where a slave makes a deposit, whether he lives or dies, the master can properly bring this action; if, however, the slave is manumitted he cannot bring it. But if the slave should be alienated, he who owned him at the time when the deposit was made will still have a right of action, for the beginning of the contract must be taken into account. 31Where a slave belonging to two parties makes a deposit, each of his masters can bring an action on deposit for his share. 32If you restore property to Titius which has been deposited with you by a slave of whom you thought Titius to be the master, when he was not; you will not be liable to an action on deposit, so Celsus says, because there is no fraud on your part; but the master of the slave can bring an action against Titius to whom the property was delivered. If he produces the property, it can be recovered by an action, but if he used it up when he knew it belonged to someone else, judgment will be rendered against him, because he acted fraudulently to avoid remaining in possession. 33The following question is very appropriately asked by Julianus. If a servant deposited money with me in order for me to pay it to his master for his freedom, and I paid the money, will I be liable to an action on deposit? He states in the Thirteenth Book of the Digest that if I pay money in this manner which was, as it were, deposited with me for this purpose, and I notify you of the fact, you will not be entitled to an action on deposit, because you, knowing the fact, received the money, and therefore I have not been guilty of fraud; but if I pay the money, as if it was mine, for the purpose of obtaining the freedom of the slave, I will be liable. This opinion appears to me to be correct; for, in this instance, not only did the depositary not restore the property without bad faith, but he did not restore it at all, for it is one thing to restore it, and another to pay it out as if it was one’s own. 34Where money has been deposited with you with the understanding that you can use it, if you think best, you will be liable to an action on deposit before you make use of it. 35It frequently happens that property or money which is deposited, is left at the risk of the party to whom it is entrusted, for example, where the parties have especially agreed to this. Julianus states, however, that if anyone has offered himself as a depositary, he assures the risk of the deposit, so that he must be responsible not only for fraud, but also for negligence and safe-keeping, but not for accidents. 36Where money is deposited in a bag which is sealed, and one of the heirs of the person who made the deposit appears and claims it; it should be considered in what way the depositary must satisfy him. The money ought to be taken out of the bag either in the presence of the Prætor, or in that of respectable persons, and the claimant paid in proportion to his share of the estate. If, however, the depositary breaks the seal, this will not be done contrary to the intention of the deposit, since it took place by the authority of the Prætor, or in the presence of respectable persons. So far as to what remains in his hands is concerned, if he wishes to retain it after new seals have been placed upon it either by the Prætor or by the parties in whose presence the other seals were broken he can do so; or if he refuses to retain it, it may be deposited in a temple. Where, however, the property is such that it cannot be divided, the depositary should deliver it all to the claimant, after he has given proper security that he will be responsible for all above his share; but where security is not furnished, the depositary should place the property in a temple, and be released from liability to any action. 37Ad Dig. 16,3,1,37ROHGE, Bd. 10 (1874), S. 431: Deposition wegen Ungewißheit des Berechtigten.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 347, Note 3.Another example is given by Julianus in the Thirteenth Book of the Digest. He says that if the depositor dies, and two persons appear disputing with each other, each one asserting that he is the sole heir, the property should be delivered to him who is ready to defend it against the other claimant, that is to say, he who has received the deposit. If, however, neither will accept this responsibility, he says that it is most convenient that he should not be compelled by the Prætor to undertake the defence. Therefore, it is necessary for the property to be deposited in some temple until the right to the estate is judicially decided. 38Where anyone, in the presence of several persons reads a will which has been deposited with him, Labeo says that an action on deposit can properly be brought against him on account of the will; but I am of the opinion that an action for injury can also be brought, if the contents of the will were read in the presence of those parties with the intention that the secret provisions made by the testator should bedivulged. 39If a depredator or a thief makes a deposit, Marcellus states in the Sixth Book of the Digest that either of them will lawfully be entitled to an action on deposit; for it is to his interest to have it, because he may be held liable. 40Where anyone demands a deposit of gold or silver should the article only be designated or should the weight also be included? The better opinion is that both should be included; as, for instance, the dish, or cup, or bowl should be mentioned, and the material and weight should be added. Where, however, the article is purple which has not been used, or wool, the weight should in like manner be added; except where uncertainty exists as to the amount of the weight, and recourse is had to an oath. 41Where a chest which has been sealed is deposited, but the chest alone is claimed, should its contents be included? Trebatius says that the chest can be claimed, and that an action should not be brought for the individual articles of the deposit; but if the property is first exhibited and then deposited, the description of the clothing must be added. Labeo, however, says that the party who deposited the chest is held to have also deposited the separate articles contained therein, and therefore we must bring suit for the property. Then what if the party who received the deposit was ignorant that the property was there? It does not make much difference, since he received the deposit; and I think that an action can be brought for the property forming the deposit, even though the chest was sealed when placed in the hands of the depositary. 42It is established that a son under paternal control is liable for a deposit, because he is liable to other actions; but suit can also be brought against his father, but only with reference to the son’s peculium. The same rule applies to a slave, for he can be sued along with his master. It is evident, as Julianus stated and as it appears to us, that if suit is brought on account of persons who are under the control of anyone, the case may be tried; so that if any deceit or fraud has been committed by him under whose authority they are, or by the parties with whom the contract was made, their bad faith may become apparent. 43Where property is deposited with two persons, an action can be brought against either of them, nor will one of them be released if suit is brought against the other, for they are discharged from liability not by the choice of the depositor but by payment. Hence, if both are guilty of fraud, and one of them pays the amount of the claim, the other cannot be sued; just as in the case of two guardians. Where, however, one of them can either not pay anything, or an amount less than the claim, recourse can be had to the other. The same rule applies where one of them was not guilty of fraud, and therefore was discharged, for, in this instance, recourse can be had to the other. 44Where, however, two parties made a deposit, and both of them bring suit, if, indeed, they made the deposit with the understanding that one could remove all of it, he can bring an action for the entire amount; but if the understanding was that only the share in which each of them was interested could be removed by him, then it must be said that judgment should be rendered against a depositary for the share of each. 45If I make a deposit with you with the understanding that it shall be returned after your death, I can bring an action on deposit against you, and against your heir, for I can change my mind, and claim the deposit before your death. 46Hence, if I make a deposit with you to be returned after my death, both I and my heir can bring an action on deposit, if I have changed my mind. 47For the reason that only bad faith is involved in this proceeding, the question arose whether, if the heir sold the property deposited with the testator or lent to him for use, he being ignorant that the said property had been deposited or lent, will he be liable. For the reason that he did not act in bad faith, he will not be liable for the property. Will he, nevertheless, be liable at least for the price of it which came into his hands? The better opinion is that he will be liable, for he was guilty of bad faith in not giving up what came into his hands.

Ulpianus, On the Edict, Book XXX. The counter action of deposit is granted in favor of the party with whom the deposit is alleged to have been made, and in this action it is not necessary for an oath to be taken as to the amount; for proceedings are instituted, not on account of broken faith, but in order that the party who received the deposit may be indemnified. 1An action on deposit can be brought against a sequestrator, if, however, an agreement is made with the latter that he should produce the property deposited, at a certain place, and he does not do so, it is clear that he will be liable. But, if the agreement had reference to several places, it is in his discretion at which of them he will produce it, but where no agreement was made, he must be notified to produce the property before the Prætor. 2If the sequestrator wishes to relinquish his office, what course must be taken? Pomponius says that he must appear before the Prætor and having with his consent notified the parties who selected him, he must return the property to the one who appeared. I do not think, however, that this is always correct, for he frequently should not be allowed to relinquish an office which he has once undertaken, which would be contrary to the understanding with which the deposit was made, unless a very just cause arises; and when it is permitted, the property should be very rarely restored to the party who appears, but it ought to be deposited in some temple in accordance with the decision of a court.

Ulpianus, On the Edict, Book XXX. Where a slave is deposited with a sequestrator in order that he may be put to the torture, and because of his being chained or confined in an uncomfortable place, he, induced by pity, released him; I am of the opinion that this act very nearly resembles fraud, for, as he knew the purpose for which the slave was destined, he displayed his compassion at an improper time, since he should rather not have undertaken such a task than to have been guilty of deceit. 1The action on deposit is granted for the whole amount against an heir on account of the bad faith of the deceased, for even though we are not usually liable for the fraudulent act of a deceased person, except with reference to that portion of the estate which comes into our hands; still, in this instance, the bad faith descends from a contract which gives rise to an action to recover the property, and therefore a single heir will be liable for the entire amount, but where there are several heirs, each one will be liable for his share. 2Ad Dig. 16,3,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 271, Note 20.Whenever bankers become bankrupt, the accounts of the depositors must, in the first place, be considered; that is to say, those of such as have money on deposit which they have not placed at interest with the said bankers, or left with them to make use of. Therefore, if the property of the bankers is sold, the depositors will be entitled to their money before the privileged creditors; but this will only be done where the parties have not afterwards received interest, as they will be considered to have renounced their deposits. 3The question also arises whether the order in which the parties made their deposits shall be considered, or whether all the deposits together shall be taken into account. And it has been established that they were all on the same footing, for this has been settled by an Imperial Rescript.

Ulpianus, On the Edict, Book XXX. As the clause relative to the annulment of the sale in case of non-payment, which is inserted in the contract, is dependent upon the will of the vendor, for, if unwilling to do so, he cannot be compelled to carry it into execution.

The Same, On the Edict, Book XXX. If I deposit a sum of money with you for you to give to Titius if he brings back my fugitive slave, and you do not give it to him because he did not restore said slave, and you fail to return me the money, the best method is to proceed by an action for the construction of the contract, since the pursuer of the fugitive slave and myself did not deposit said money, as is done in sequestration.

Ulpianus, On the Edict, Book XXX. Where a concubine wrongfully appropriates property, it is the practice to hold her liable for theft. Consequently, we say that whenever a marriage is void, as, for instance, where a ward marries her guardian, or where matrimony is contracted, contrary to the laws, and in any other case where it is not valid, the action to recover property wrongfully appropriated will not lie, for the reason that it can only be brought where a divorce takes place. 1When we speak of property wrongfully appropriated, we have reference not only to that which the woman removes when she forms the intention of obtaining a divorce, but also to such as she removes while she is still married, if, when she leaves her husband, she conceals the property. 2Julianus says that not only property which is in existence is included in a suit for wrongful appropriation, but also such as has already ceased to exist. He says that, under these circumstances, a personal action can also be brought for its recovery. 3Where a woman wrongfully appropriates property which has been given in pledge to her husband, she will be liable to this action.

The Same, On the Edict, Book XXX. To entrust something to anyone’s care means nothing more than to deposit it with him.

The Same, On the Edict, Book XXX. Neither the pledge, nor the deposit, nor possession by a precarious title, nor the purchase, nor the hiring of one’s own property, can stand. 1The agreement of private individuals does not affect public law.

Ulpianus, On the Edict, Book XXX. No obligation is incurred by giving advice which is not fraudulent; if, however, it should be given with fraudulent and deceitful intent, an action for fraud will lie. 1The partner of my partner is not mine.