[IDEM libro tertio responsorum. ] §46.1.51.prInter eos fideiussores actio diuidenda est, qui solidum et partes uiriles fide sua esse iusserunt.
[The same, in the third book of Opinions.] An action must be divided among those sureties who have guaranteed the whole sum and their proportional shares by their credit.
diuersum erit uerbis ita conceptis: 'solidum aut partem uirilem fide tua esse iubes?' tunc enim ab initio non nisi uiriles partes singulos debere conueniet.
The case will be different if the words are phrased thus: "Do you guarantee the whole sum or your proportional share by your credit?" For in that case, it is agreed from the beginning that individuals are liable for nothing but their proportional shares.
§46.1.51.1Fideiussor, qui partem pecuniae suo nomine uel rei promittendi soluit, quo minus residui diuisione facta portionis iudicium accipiat, recusare non debet: eam enim quantitatem inter eos qui soluendo sunt diuidi conuenit, quam litis tempore singuli debent.
A surety who has paid part of the money in his own name or in the name of the principal debtor should not refuse to accept judgment for the remaining portion after the division of the residue has been made; for it is agreed that there should be divided among those who are solvent that amount which individuals owe at the time of the joinder of issue.
sed humanius est, si et alter soluendo sit litis contestationis tempore, per exceptionem ei qui soluit succurri.
But it is more equitable, if the other party also is solvent at the time of the joinder of issue, that relief be given to the one who paid by means of an exception.
§46.1.51.2Duo rei promittendi separatim fideiussores dederunt: inuitus creditor inter omnes fideiussores actiones diuidere non cogitur, sed inter eos dumtaxat, qui pro singulis interuenerunt.
Two principal debtors have provided sureties separately: the creditor, against his will, is not compelled to divide his actions among all the sureties, but only among those who intervened on behalf of each debtor.
plane si uelit actionem suam inter omnes diuidere, non erit prohibendus, non magis quam si duos reos pro partibus conueniret.
Clearly, if he wishes to divide his action among all of them, he should not be prohibited, any more than if he were to sue two debtors for their respective shares.
§46.1.51.3Creditor pignus distrahere non cogitur, si fideiussorem simpliciter acceptum omisso pignore uelit conuenire.
A creditor is not compelled to sell a pledge if, omitting the pledge, he wishes to sue a surety who was accepted unconditionally.
§46.1.51.4Cum inter fideiussores actione diuisa quidam post litem contestatam soluendo esse desierunt, ea res ad onus eius qui soluendo est non pertinet, nec auxilio defendetur aetatis actor: non enim deceptus uidetur iure communi usus.
When, after the division of the action among the sureties, certain of them cease to be solvent after the joinder of issue, that circumstance does not affect the burden of the one who is solvent, nor will the plaintiff be protected by the benefit of age; for he who has used the common law is not deemed to have been deceived.
§46.1.51.5Bonis damnati fideiussoris fisco uindicatis inter fideiussores actio postea si diuidi coeperit, ut heredis, ita fisci rationem haberi oportet.
If the property of a condemned surety has been confiscated by the treasury, and the action afterwards begins to be divided among the sureties, account must be taken of the treasury, just as of an heir.