4.1.93 to 4.1.98

hand, he also has authority to determine how much the plaintiff should pay in the same case, and to render judgment against the defendant for the remainder. (62) Bona fide actions are such as the following: purchase and sale; leasing and hiring; the transaction of the business of others without authority; deposit; trust; partnership; guardianship; dotal property. (63) The judge also has a right not to consider any set-off, at all, as he is not expressly directed to do so by the terms of the formula; but, for the reason that this seems to be proper in a bona fide action, it is therefore held to be part of his duty. (64) The case of an action brought by a banker is different, for he is compelled to take account of a set-off, and to mention it in his statement; and to such an extent is this true, that he must make allowance for it in the first place, and only demand that the remainder shall be paid to him. For example, if he owes ten thousand sesterces to Titius, and Titius owes him twenty thousand, he should state his claim as follows: "If it appears that Titius owes him ten thousand sesterces more than he owes Titius." (65) Again, the purchaser of the estate of a bankrupt is directed to make a deduction when he brings his action, so that his adversary will only have judgment rendered against him for the balance which remains after having deducted what the purchaser of the estate owes the defendant on account of the insolvent debtor. (66) Between the set-off which is made against the claim of the banker, and the deduction to be taken from the claim of the purchaser of a bankrupt estate, there is this difference, namely: that property of the same kind and nature is only included in the set-off; as for instance, money is set-off against money; wheat against wheat; wine against wine; and it is even held by some authorities that wine cannot be set off against wine, or wheat against wheat, unless it is of the same nature and quality. In making the deduction, however, property is included which is not of the same kind. Hence, if the purchaser of the estate of a bankrupt brings an action for money due the latter, and he himself owes a certain quantity of grain or wine, after it has been deducted, suit shall be brought only for the remainder, whatever it may be.