It must be observed that in consequence of the correal relation existing between surety and principal debtor, by litis contestatio with the one the other was already liberated: an attempt was made to obviate this result by the form of the so-called 'suretyship of indemnity,' but it was entirely removed by Justinian. Paul. ii. 17, § 16: Electo reo principali fideiussor vel heres eius liberatur.' Cels. Si ego decem stipulatus a Titio, dein- Imp. Iust.: generali lege sancimus nullo In the Justinianean Law there remains (1) only the suretyship by 'fideiussio,' which had already become rather informal in the later Classical Law, like stipulatio in general. a a Cf. § 128; because if they have paid anything for the principal debtor, see Arndts, they have an action of mandate against him for the purpose of 'Pandekten,' recovering it; and sponsors by the l. Publilia have yet further $353. a special action for double the amount, which is called the actio§ 117. depensi. 1 When the choice has fallen upon the principal debtor, the surety or his heir is released. 2 If I have stipulated for ten, &c., from Tit. and afterwards stipulate for them from S., S. is not released in respect of the deficiency in what I am able to recover from T. . . . but if T. should satisfy the judgment, S. will be liable no further. 3 -we by a general lex enact that, by the selection of one of the sureties or of the debtor himself, the other is in no way released, neither does the debtor himself obtain a release if the sureties or one of them have been selected, . . . but the creditor's right remains intact until his claim is wholly satisfied. ... BOOK III. Pt. I. Ch. II. • For the Eng- Ulp. Sciendum est generaliter, quod si quis se scripserit fideiussisse, videri omnia sollemniter acta.-D. 45, 1, 30.1 Iul. Fideiussor accipi potest, quotiens est aliqua obligatio civilis vel naturalis cui applicetur. -D. 46, 1, 16, 3.2 Ulp. Stipulatus sum a reo nec accepi fideiussorem; postea volo adiicere fideiussorem ; si adiecero, fideiussor obligatur.-Adhiberi autem fideiussor tam futurae quam praecedenti obligationi potest.-1. 6 pr., § 2 eod.3 (2) Besides the 'beneficium divisionis ex epistula D. Hadriani,' the sureties further have the 'beneficium cedendarum actionum' and the beneficium excussionis s. ordinis'a (the principal debtor being sued before the surety). Iul. Fideiussoribus succurri solet, ut stipulator compellatur ei, qui solidum solvere paratus est, vendere ceterorum nomina.-1. 17 eod.* Nov. 4, c. i. Si quis crediderit et fideiussorem . acceperit, non statim ab initio fideiussorem conveniat neque debitore neglecto intercessoribus molestus sit, sed primo eum, qui pecuniam accepit et debitum contraxit, conveniat." 1 It should in general be understood that, if a man has in writing stated that he has become surety, all formalities are supposed to have been observed. 2 A surety can be taken as often as there is any civil or natural obligation to which he may be joined. 3 I have taken a stipulation from a debtor and have not taken a surety; afterwards I wish to join a surety: if I shall join him, the surety is made liable.-Now a surety can be joined both to a prospective and to an already existing obligation. It is customary to exonerate sureties by stipulators being compelled to sell the claims against the rest to him who is prepared to discharge the full amount. * If a man have made an advance and taken a surety, let him not at once from the outset sue the fidejussor, nor neglecting the debtor press the sureties, but let him first sue the person who took the money and contracted the debt. BOOK III. Pt. I. Ch. II. A peculiar form of suretyship with the characteristics of Public Law is the 'praedis obligatio' (praedibus praediisque cavere praedes dare praediaque subsignare), common in the older Law in respect of contracts by the state and communities (especially in respect of locationes)" and strictly administrative. In these the surety a § 123, ad fin. with his whole property (familia pecuniaque)—originally with his person also-was bound by way of pledge particularly in respect of the lands made over, so that, in case of the claim falling due, all was forthwith made subject to sale (praedes praediaque vendere) by auction, without judicial intervention praediatores; ius praediatorium).© b (praediatura; The universal succession of the purchaser is questionable. cCf. Gai. ii. 61, Varro de li. lat. vi. 74: Praes' qui a magistratu interrogatus, in publicum ut praestet,d (a and iv. 13, 16. quo et) quom respondet, dicit: 'praes.'1 Id. v. 40: 'Praedia' dicta, item ut praedes a praestando, quod ea pignore data publice mancupis fidem praestent. d? praes siet. Lex Mal. c. 63: QVASQVE LOCATIONES FECERIT € © Sc. II VIR. ACCEPTI SINT QVAEQVE PRAEDIA SUBDITA SVB- ... Ib. c. 64: QVICVMQVE IN COMMVNE MVNI- 1 A 'praes,' asked by the magistrate to afford public security, when he answers says, 'Praes.' 2 'Praedia' are so called, like as 'praedes' from praestare, because, being given in pledge, they publicly afford the guarantee of a surety. ... 3 'And the leases that he [i.e., the duumvir] shall make, all the laws that he shall promulgate, . . . and the sureties that may be accepted, and the lands which are made subject to mortgage, scheduled and bound, and the recognizances which are accepted for such lands he shall cause to be registered in common tables belonging to the citizens of that corporation, and the same shall exhibit.' Orafford security to sales.' ACCEPTA SVNT ERVNT, Ib. § 65: QvoS PRAEDES QVAEQVE PRAEDIA .. RES PETERE PERSEQVI RECTE POSSINT." ... 1 'Whatever bondsmen have been or shall be constituted for the common benefit of the citizens, and whatever lands have been or shall be taken in mortgage, . . . all these and all that belonged then to each of them when the bondsmen shall be constituted, and whatever hath afterwards begun to belong to them when they began to be bound . . . and those bondsmen and those lands which respectively have not been or shall not be discharged or released . . . the Duumviri shall have title and power to impose a condition upon the sale of these, provided they impose such condition on the sale of such things, which condition they that superintend the treasury at Rome ought to impose, according to the l. Praediatoria, upon the sale of the bondsmen and lands; or if he shall not meet with a purchaser, such conditions as he ought to impose on sales where there is no purchaser; and provided they impose a condition that the money be deposited in the public receptacle of the municipality.' ... 2 'Such bondsmen and lands . . . as they have sold by this statute, concerning them let him so lay down the law and give judgments, that they who have bought such bondsmen and lands may be able properly to sue for such things, and to claim and maintain such.' § 119. THIRDLY, LITTERARUM OBLIGATIO BOOK III. Pt. 1. Ch. II. Law,' pp. 330, sq. A mere written acknowledgment of debt (chirographum), while it serves as evidence for an existing claim, can never engender a claim. On the other hand, a strictly unilateral claim, in the form of a written composition, was already created in the LITERAL contract." a See Anct. This is closely connected with the Roman custom of keeping exact cash-books—' codices s. tabulae accepti et expensi—in which all mere receipts and outgoings (especially money-transactions) were entered, as taken out of the adversaria' after certain intervals (commonly, every month), according to chronological order, and under the headings Acceptum and Expensum. Ps. Ascon. in Cic. or. in Verr. ii. 1, § 60: Moris fuit, unumquemque domesticam rationem sibi totius vitae suae per dies singulos scribere, quo appareret, quid quisque de reditibus suis, quid de arte foenore lucrove seposuisset et quo die, et quid item sumtus damnive fecisset.' A litterarum obligatio' arose by the creditor's entering in his ledger (expensum alicui ferre), with the debtor's consent, the sum owing to him upon some lawful ground as if received by the debtor, and his again paying, i.e., crediting himself (transcriptio a re in personam) or another (transcriptio a persona in personam); to this act corresponded the converse process in the debtor's ledger, which, however, was not necessary. A claim that had so arisen was called 'nomen transcripticium,' b Cf. § 142, and see Brown, s. Gai. iii. §§ 128-130: Litteris obligatio fit Expensilatio. veluti nominibus transcripticiis; fit autem nomen transcripticium duplici modo, vel a re in personam, vel a persona in personam. -A re 1 There was a custom for every one to keep a household account day by day of all his doings, that it might appear what each had laid by from his returns, from his calling, gains or profit, and on what day, and what also he had incurred of expenditure or of loss. |