De fideiussoribus positiones aliquot

...they can be sued for the whole amount, and it is within the discretion of the creditor whom he wishes to sue. However, by the rescript of the Divine Hadrian, they have the benefit of division provided for them, so that they may raise the exception of division.

XXIV.

This only applies if all are solvent at the time of the joinder of issue.

XXV.

Otherwise, this benefit is denied to him who denies that he acted as a surety and is convicted of falsehood.

XXVI.

Consequently, it is usually asked whether, if one of the sureties who has been sued pays the whole debt and neglects to raise the exception of division, he can recover from the creditor that which exceeds his own share? And we conclude that he cannot.

XXVII.

Relief is also given to a paying surety in that he can request from the creditor that the action be ceded to him, both against the debtor and against the co-surety.

XXVIII.

This, however, holds true only when that cession has been requested before payment.

XXIX.

In turn, a contrary action of mandate is available to the surety against the principal debtor for whom he paid the debt.

XXX.

Nor does it matter whether the mandate was entered into expressly or tacitly.

XXXI.

If, however, he intervened for one who was absent and unaware, he has available not an action of mandate, but an action for business managed.