THE DIGEST OR PANDECTS. BOOK XII.

TITLE I. CONCERNING THINGS WHICH ARE CREDITED WHERE A CERTAIN DEMAND IS MADE, AND CONCERNING SUIT FOR RECOVERY.

1. Ulpianus, On the Edict, Book XXVI.

It is proper before we proceed to the interpretation of the terms to say something concerning the signification of the Title itself. As the Prætor has inserted under this Title many rules having reference to various contracts, he has, therefore, prefixed to the Title the words "Things which are credited," for this includes all kinds of contracts which we enter into, relying upon the good faith of others; for, as Celsus states in the First Book of Questions, the term "to credit" is a general one, and hence under this Title the Prætor treats of property loaned and pledged. For where we, relying upon the good faith of others, assent to anything, and are afterwards to receive something on account of this contract, we are said to give credit. The Prætor selected the term "thing" also as being a general one.

2. Paulus, On the Edict, Book XXVIII.

We make the loan called mutuum when we are not to receive in return the same article which we gave (otherwise this would be a loan for use or a deposit) but something of the same kind; for if it was of some other kind, as for instance, if we were to receive wine for grain, it would not come under this head.

(1) A gift of mutuum has reference to articles which can be weighed, counted, or measured, since people by giving these can contract a credit; because by payment in kind they perform the contract instead of paying in specie. For we cannot contract a credit with respect to other articles, because the creditor cannot be paid by giving him one thing in exchange for another, where he does not give his consent.

p>(2) A loan of this kind is so called mutuum. because the article becomes yours instead of mine, and therefore it does not become yours if the obligation does not arise.

(3) Therefore a credit differs from a mutuum just as a genus differs from a species; for a credit may exist separate from articles which can be weighed, counted, or measured, so that it is a credit where we are to receive the very same article in return. Moreover, a mutuum cannot exist in the case of money unless the money is paid down, but a credit can sometimes exist even though nothing is paid; as, for instance, where a dowry is promised after marriage.

(4) In a loan of this kind he who makes it must be the owner, and no objection can be raised because sons under paternal control and slaves can cause an obligation to arise by loaning money which is part of their peculium; for it is the same thing as if you pay money at my request, for I would then acquire a right of action even though the money did not belong to me.

(5) We can also give credit by means of words, where some act is performed for the purpose of creating an obligation, as, for instance, a stipulation.

3. Pomponius, On Sabinus, Book XXVII.

Where we give a mutuum, although we do not provide that what is equally good shall be returned to us, still it is not lawful for the debtor to restore an article of the same kind but which is inferior, for example, to return new wine instead of old; for in entering into a contract the intention of the parties must be considered equivalent to an express agreement, and in this instance the intention is understood to be that payment shall be made with an article of the same kind, and of the same quality as that which was loaned.

4. Ulpianus, On Sabinus, Book XXXIV.

Where a party has no reason or intention to lend at interest, but you being about to purchase certain land, desire to borrow money, although you do not desire to do so until you actually buy the property, and the creditor having perhaps some urgent need to go upon a journey, deposits the money with you on the condition that if you make the purchase you will be liable on account of the credit, this deposit is at the risk of the party who received it; for where anyone receives something for the purpose of selling it in order to make use of the purchase-money, he will hold the property at his own risk.

(1) Where an article is given in pledge, and the money advanced is paid, suit can be brought for its recovery. Again, if a tenant gathers crops after the period of five years has elapsed, it is established that they can be recovered by a personal action, provided they have not been gathered with the consent of the owner of the land; for if this has been done, then there is no doubt that an action for their recovery will not lie.

(2) Things which have been carried on shore by the force of a stream can also be recovered by a personal action.

5. Pomponius, On Sabinus, Book XXII.

If you are obliged to deliver something to me, and it should afterwards be lost on account of some act of yours which prevented you from delivering it to me, it is established that the loss must be borne by you. Where, however, the question arises whether you performed the act, it should be considered not only whether this was in your power or not, but also whether you were guilty of malicious intent in order to prevent it from being in your power; and also whether there was any just reason why you should know that you were compelled to deliver me the article.

6. Paulus, On the Edict, Book XXVIII.

An article is styled "certain" when the kind or quality which is the subject of an obligation is specifically designated either by name or by some description which performs the function of a name, and its quality and quantity are made manifest. Pedius states in the First Book of Stipulations, that it makes no difference whether anything is called by its own name, or pointed out with a finger, or described in so many words, since these methods perform common functions, any one of which is as good as another.

7. Ulpianus, On the Edict, Book XXVI.

Everything which can be inserted in a stipulation may also be included in the loaning of money, and therefore conditions may be imposed.

8. Pomponius, On Plautius, Book VI.

Hence a gift of mutuum sometimes remains in abeyance, in order to be confirmed by some subsequent act; as, for example, if I loan you a sum of money with the understanding that if a certain condition takes place, it will become yours and you shall be bound to pay me. In like manner, where an heir lends money which has been bequeathed as a legacy, and the legatee afterwards is unwilling to take it, for the reason that it is held that the money was the property of the heir from the day the estate was entered upon, he can bring an action to recover the money which was loaned. For Julianus says that even where delivery of property has been made by the heir, reference must be had to the time when the estate was entered upon, whether the legacy is rejected or accepted.

9. Ulpianus, On the Edict, Book XXVI.

A specific action for recovery will lie on account of everything and by reason of any obligation under which a positive claim can be made; whether it is based on an express contract or on one which is uncertain, for we are permitted to bring such an action on account of every kind of contract, provided an actual obligation exists; but where enforcement of the obligation is limited to a specified date, or is dependent upon some condition, I cannot bring an action before the time arrives, or the condition is fulfilled.

(1) This action will also lie on account of a legacy or under the Lex Aquilia, and proceedings may be instituted by means of it in a case of theft. Moreover, if proceedings are instituted under a decree of the Senate, this action will still lie; as, for instance, where the party who wishes to bring suit is one to whom an estate held in trust is to be delivered.

(2) This action may also properly be brought where anyone has bound himself either in his own behalf or as the agent of the other.

(3) Since, therefore, this specific action for recovery is available in all contracts, whether the contract was made by an act, by words, or by both together, certain cases must be mentioned by us with relation to which it may be discussed as to whether this action will be appropriate to the claims set forth.

(4) I paid you ten aurei, and I stipulated that the amount should be given to another party; which stipulation is void. Can I proceed by means of this action to recover ten aurei on the ground that there are two contracts existing, one which was entered into by means of an act, that is to say, by the payment of the money, and the other which was entered into verbally, that is to say without effect, because I could not stipulate for another? I think that I can.

(5) The case is the same where I took a stipulation from a ward without the authority of his guardian, and loaned him money with his guardian's consent; for, in this instance also, I shall be entitled to a suit for recovery based on the payment of the money.

(6) The same inquiry may be made if I paid you a certain sum of money and I stipulated that it should be returned under a condition which is impossible; since the action for recovery will still remain available, as the stipulation is null.

(7) Moreover, where I lend a man money and his property is afterwards placed under an interdict, and I then enter into a stipulation with him, I think that his case resembles that of the ward; since he also acquires rights by stipulation.

(8) Where I pay out my own money in your name, you being absent at the time and not aware of the fact, Aristo says that you will have a right to bring a personal action for recovery; and Julianus also, having been consulted with respect to this, states that the opinion of Aristo is correct, and that there is no doubt that if I should pay out my money in your name with your consent the obligation will be acquired by you, as we ask every day that money shall be lent by other parties in our name to those whom we wish to become our debtors.

(9) I deposited ten aurei with you, and afterwards I permitted you to make use of them; Nerva and Proculus are of the opinion that I will be entitled to a personal action for recovery, as for a mutuum, even before you have removed the money, and this is correct, and also appears so to Marcellus; for on account of your intention you have already become the possessor, and therefore the risk is transferred to the party who requested the loan, and he can be sued for its recovery.

10. The Same, On the Edict, Book II.

If, however, when I deposited the money with you in the beginning, I permitted you to make use of it, if you wished to do so; it is held that the loan does not exist before the money is removed, since it is not certain that anything is owing.

11. The Same, On the Edict, Book XXVI.

Where you asked me to lend you money, and, as I did not have it at the time, I gave you a dish or a lump of gold for you to sell and make use of the proceeds; and you sold it, I think that the money received for it constitutes a loan. But if, before you sold the dish or the lump of gold, you lost it through no negligence on your part, the question arises whether the loss falls upon me or upon you. It is my opinion that the distinction made by Nerva is perfectly correct, who thinks that it makes a great difference whether I had the dish or the lump of gold for sale or not, and that if I had, I must bear the loss just as if I had given it to someone else to be sold; but if it was not my intention to sell it, but the only object of the sale was that you might make use of the proceeds, you must be responsible for the loss especially if I lent it to you without interest.

(1) If I loan you ten aurei with the understanding that you shall owe me nine, Proculus very correctly says that you do not legally owe me any more than nine. But if I loan you that amount with the understanding that you shall owe me eleven, Proculus thinks that an action for recovery cannot be brought for more than ten.

(2) Where a fugitive slave lends you money, the question arises whether his owner can bring suit against you for its recovery? And, indeed, if my slave, who has been granted the management of his peculium, lends you money, the loan will stand; but where a fugitive slave, or any other slave lends money without the consent of his master, it does not pass to the party receiving it. What then is to be done? The money can be claimed, if it is still accessible, or if you have fraudulently relinquished possession of the same proceedings can be instituted for its production; but if you have expended it without fraudulent intent, an action for its recovery can be brought against you.

12. Pomponius, On Plautius, Book VI.

Where you receive money as a loan from an insane person, who you think is of sound mind, and the money is expended for your benefit, Julianus says the insane person will have a right of action for its recovery; for it is the rule that where a right of action is acquired by a party who is unaware of the fact, it is also, under the same circumstances, acquired by one who is insane.

Moreover, if anyone makes a loan to a slave and afterwards becomes insane, and the slave spends the money for the benefit of his master, an action for recovery can be brought in the name of the insane person. And where any one loans the money of another, and subsequently becomes insane, and the money is expended, the right to sue for its recovery is acquired by the insane person.

13. Ulpianus, On the Edict, Book XXVI.

Where a thief lets you have money as a loan, he does not transfer to you the property in the same; but if the money is expended, a right to bring suit for its recovery will arise.

(1) Wherefore, Papinianus says in the Eighth Book of Questions, "If I lend you money belonging to someone else, you are not liable to me in an action before you spend it." And he asks if you spend the money a little at a time, whether I have a right to sue for its recovery in the same way? He replies that I have, if I had been notified that the money belonged to another, and I then bring suit for part of it; because I have not yet ascertained whether the entire amount has been expended.

(2) Where a slave held in common by two joint-owners loans ten aurei, I think that whether he has been granted the management of his own peculium or not, if the money is spent, an action for five aurei will lie in favor of each owner. For Papinianus states in the Eighth Book of Questions, that if I lend you a hundred pieces of money which I own in common with another, I can bring a personal action to recover fifty, even though each individual coin was owned in common.

14. The Same, On the Edict, Book XXIX.

p>Where a son under paternal control having borrowed money in violation of the Decree of the Senate pays it, no exception can be pleaded against a suit brought by the father for the recovery of the money; but, where it has been expended by the creditor, Marcellus says that the personal action for recovery will not lie, since such a suit is only granted where the money was paid over under such circumstances as would permit an action to be brought if the ownership had been transferred to the party who received the money, but this is not the case in the proposed instance. Finally, where money is loaned contrary to the Decree of the Senate, and is repaid by mistake, the better opinion is that no action for its recovery will lie.

15. The Same, On the Edict, Book XXXI.

There are certain special rules which have been adopted with reference to money loaned; for if I order a debtor of mine to pay you money, you will become responsible to me, even though the money which you receive was not mine. Therefore, this rule being established with reference to two persons, it must also be observed where there is but one; so that, where you owe me money on account of a mandate, and it is agreed between us that you shall retain it as a loan, it is held that the money was paid to me and transferred from me to you.

16. Paulus, On the Edict, Book XXXII.

Where a joint-owner of money paid out his own money as a loan, he makes an absolute loan of said money, even though his co-owners did not consent; but if he paid out money which was owned in common, he does not make a valid loan, unless the others also consent, because he has only the right to dispose of his own share.

17. Ulpianus, Disputations, Book I.

Where a son under parental control who was at Rome for the purpose of pursuing his studies made a loan of money which was a part of his travelling expenses; Scævola gave it as his opinion that he could obtain relief by means of extraordinary proceedings.

18. Ulpianus, Disputations, Book I.

If I give you money as a present, and you accept it as a loan, Julianus says that it is not a present; but we should consider whether it is a loan. I think, however, that it is not a loan, and that the money does not, as a matter of fact, become the property of the party who receives it, as he did so with a different opinion. Hence, if he spends the money, although he is liable to a personal action for its recovery, he can, nevertheless, make use of an exception on the ground of fraud, because the money was expended in accordance with the wish of the party who gave it.

(1) Where I give you money as a deposit, and you accept it as a loan, it is neither a deposit nor a loan; and the same rule applies where you give money as a loan to be consumed and I accept it as a loan to be used for the purpose of ostentation; in both instances, however, if the money is expended, there will be ground for a personal action for recovery without an exception based on fraud.

19. Julianus, Digest, Book X.

The payment of money does not bind the party who receives it at all times, but only where it is understood that he shall be liable immediately. For where a party gives money mortis causa, he pays it out, but he does not bind him who receives it, unless something happens on which the obligation depends, as, for instance, where the donor recovered, or the party who received the money died before him. And where money is given in order that something may be done, so long as it is doubtful whether this will take place or not, liability will not exist; but, as soon as it becomes certain that it will not take place, the party who received the money will be liable; for instance, if I give Titius ten aurei under the condition that he will manumit Stichus before the next kalends, I will be entitled to no action before that time; but when the time has elapsed I can then bring suit, if the slave has not been manumitted.

(1) Where a ward lends money or pays it in discharge of a debt without the authority of his guardian, he has a right of action for recovery, if the money has been spent; or he will be released from the debt, for no other reason than that it is understood to have come into the hands of the party who received it through the act of the ward; therefore, if he who received the money as a loan or in payment of a debt, gives it to another party as a loan or a payment, then, if the money is spent, the party is liable to the ward, or he must discharge him from liability, and he will have a claim against the party to whom he paid the money, or he will be released from liability to him. For indeed, he who pays out the money of another as a loan, if it is spent, will have a claim against the party who received it; and likewise, he who pays out money to discharge a debt will be released from liability by the party who receives it.

20. The Same, Digest, Book XVIII.

Where I give you money in order that you may lend me the same money, is a loan made? I said in reply that, in instances of this kind, we do not use correct words, as such a contract is neither a donation nor a loan; it is not a donation, because the money is not given with the intention that it shall remain absolutely in the hands of the receiver; and it is not a loan because it is paid rather for the purpose of avoiding a debt than of making another party liable. Therefore, if a party who received money from me under the condition that he should lend it to me, and he does pay me the money which he receives, this will not be a loan, for I shall rather be considered to have received what already belonged to me. It must be understood in this way in order that the strict signification of the terms may be preserved; however the more liberal construction is that both transactions are valid.

21. The Same, Digest, Book XLVIII.

Some authorities have thought that a man who sues for ten aurei cannot be forced to accept five and then bring suit for the remainder; or, if he should allege that a certain tract of land is his, that he can only be compelled to bring suit for a portion of the same; but, in both instances, it is held that the Prætor would be more indulgent if he compels the plaintiff to accept what is offered him, since it is part of his duty to diminish litigation.

22. The Same, On Minicius, Book IV.

A loan of wine was made and proceedings were instituted to recover it; the question arose with reference to the time when an estimate of its value should be made, whether when it was delivered, when issue was joined in the suit, or when the case was decided? Sabinus answered that if it had been stated at what time it was to be restored, the estimate should be made of what it was worth at that date; but if not, its value should be estimated at the time when suit was brought. I asked at what place the valuation should be made? The answer was, if it had been agreed that it should be restored at a certain place, the valuation should be made there; but if this had not been mentioned, it should be appraised at the place where suit was brought.

23. Africanus, Questions, Book II.

If I take possession of a slave who is bequeathed to you, and sell him just as if he had been bequeathed to me, and he dies, then, Julianus says, that you can recover the purchase money from me as I have profited by means of your property.

24. Ulpianus, Pandects.

Where a party stipulates for any certain property, he does not acquire a right of action under the stipulation, but he must proceed through a personal action for recovery by means of which suit is brought for some specific things.

25. The Same, On the Office of Men of Consular Rank.

Where a creditor lends money for the repair of buildings, he will have a prior lien on the money which he lent.

26. The Same, Opinions, Book V.

If the agent of a soldier lends money and takes a surety, it is established that an action will be granted the soldier to whom the money belonged; just as in the case where the guardian of a ward or the curator of a youth stipulates for the repayment of money loaned which belonged to either of them.

27. The Same, On the Edict, Book X.

A municipal corporation can be bound by a loan, if the money is expended for its benefit; otherwise, those who contracted the loan will be liable as individuals, and not the corporation.

28. Gaius, On the Provincial Edict, Book XXI.

Where a creditor did not take proper security, he will not for that reason lose the right to exact payment for the amount of the debt which the pledge was not sufficient to secure.

29. Paulus, On Plautius, Book IV.

Where an owner employs his slave as his agent, Julianus holds that it may be said that he is liable to a personal action for recovery just as if he had contracted in pursuance of the order of the party by whom he was appointed.

30. The Same, On Plautius, Book V.

Where a party who is about to receive a loan of money promises his future creditor that he will repay him, he has the power to escape liability by not accepting the money.

31. The Same, On Plautius, Book XVII.

Where a personal action has been brought for the recovery of a tract of land or a slave, I am of the opinion that the present practice is that, after issue has been joined, everything which has accrued must be surrendered; that is to say, everything which the plaintiff would have been entitled to if delivery had been made of what was due at the time of the joinder of issue.

(1) I purchased your slave in good faith from a thief, without being aware of the facts, and the slave himself purchased a slave out of the peculium which belonged to you, and the latter slave was delivered to me. Sabinus and Cassius say that you can bring a personal action against me for the recovery of the second slave; but if I have lost anything through the business which he transacted, I, in my turn, will be entitled to an action against you. This is perfectly true for Julianus says that it must be considered whether the owner has an unimpaired right of action growing out of the purchase, but the vendor can bring a personal action for recovery against the bona fide purchaser. With reference to the money derived from the peculium, if it is still accessible, the owner can bring suit for its recovery, but he will be liable to the vendor in an action De peculio for the payment of the price; but if the money is spent, the right of action De peculio will be extinguished.

Julianus, however, should have added that the vendor is only liable to the owner of the slave on account of the purchase, if he pays him the entire price, as well as whatever would have been due to him if he had made the contract with a man who is free.

The same rule applies where I make a payment to a bona-fide possessor, if I am ready to assign to the owner any right of action which I may have against the said possessor.

32. Celsus, Digest, Book V.

If you request Titius and myself to lend you money and I order a debtor of mine to promise to furnish it to you, and you make a stipulation believing that he is the debtor of Titius, will you be liable to me? I am in doubt on this point, if you did not enter into any contract with me, but I think it is probable that you are liable; not because I lent you money (for this cannot be unless the parties consent); but because my money came into your hands, and therefore it is proper and just that you should repay it to me.

33. Modestinus, Pandects, Book X.

It is provided by the Imperial Constitutions that neither those who govern provinces nor their attendants, shall go into business, or lend money with or without interest.

34. Paulus, Sentences, Book II.

The officials who are in attendance on the Governor of a province can make loans with or without interest.

(1) The Governor of a province is not forbidden to borrow money at interest.

35. Modestinus, Opinions, Book III.

The risk of obligations for money lent attaches to the party by whose negligence it can be established that the risk was increased.

36. Javolenus, Epistles, Book I.

You owed me a sum of money without any condition, and by my direction you promised Attius to pay said sum of money under a condition. While this condition is pending, your obligation toward me is just the same as if you had promised me the money on the contrary condition; if, while the condition is pending, I bring suit, will this be of no effect? The answer was: I have no doubt that the money with reference to which I stipulated with you absolutely will remain as a loan to you, even if the condition relating to Attius — who, with my consent, stipulated for the payment of said money under a condition — is not fulfilled: for the legal position is the same as if no stipulation had been made by him, and, while the fulfilment of the condition is pending, I cannot bring an action for the money, because it is uncertain whether it may not be due under the stipulation, and I will be held to have brought my action too soon.

37. Papinianus, Definitions, Book I.

When a condition refers to the time when the obligation was contracted, the stipulation is not suspended, and if the condition is an actual one, the stipulation will hold, even though the contracting parties do not know that this is the case; for instance: "Do you promise to pay me a hundred thousand sesterces if the King of the Parthians is living?"

The same rule also applies where the condition refers to time which has passed:

38. Scævola, Questions, Book I.

For it should also be considered whether, as far as human nature can determine, it can be ascertained that the money will be due:

39. Papinianus, Definitions, Book I.

Therefore the clause only acquires the force of a condition when it relates to the future.

40. Paulus, Questions, Book III.

There was read in the court of Æmilius Papinianus, Prætorian Prefect and Jurist, an obligation of the following kind: "I, Lucius Titius, have stated in writing that I received from Publius Mævius fifteen aurei as a loan which was paid to me at his house, and Publius Mævius stipulated, and I, Lucius Titius, promised that the said fifteen aurei in current coin shall be duly paid on the next kalends. If on the day aforesaid the said sum shall not have been paid to the said Publius Mævius, or to whomsoever has a right to the same, nor any security has been given on account of it; then, for the time that has elapsed after payment was due, Publius Mævius stipulated and I, Lucius Titius promised that there should be paid by way of penalty, for every thirty days and for every hundred denarii one denarius. It was also agreed between us that I should be obliged to pay to the said Publius Mævius out of the sum aforesaid three hundred denarii of the entire sum every month, either to him or to his heir."

A question arose with reference to the obligation to pay interest, as the number of months specified for payment had elapsed? I stated that, as an agreement entered into at the same time is held to be a part of the stipulation, the result is that it is the same as if the party having stipulated for the payment of a certain sum of money every month, had later added an agreement for interest in proportion to the delay in the payments; and therefore interest on the first payment would begin to run at the end of the first month, and, likewise, after the second and third months, interest on the unpaid money would increase, but interest could not be collected on the unpaid principal until it could itself be collected.

Some authorities say that the agreement which was added only relates to the payment of the principal and not to the interest as well, since the latter had been plainly provided for by the stipulation in the former clause, and that the agreement would only admit of an exception; hence, if the money was not paid at the times indicated, the interest would be due from the date of the stipulation, just as if this had been expressly stated. But where the time for collecting the principal has been deferred, the result will be that interest also will accrue from the day when the party was in default; and if, as the said authorities held, the agreement would only render an exception available (although a different opinion afterwards prevailed), still, according to law, the obligation to pay interest could not be enforced; for a party is not in default where the money cannot be collected from him, because he can plead an exception in bar to the claim.

When, however, we stipulate for a certain quantity to be furnished where a condition is to be fulfilled, and it is collected in the meantime, as, for instance, where crops are concerned; the same provision may also be made with reference to interest, so that if the money is not paid by the specified day, what is due by way of interest may be paid from the day when the stipulation was entered into.

41. Africanus, Questions, Book VIII.

A testator having appointed his slave Stichus an accountant in a certain province, his will was read at Rome, by which the said Stichus was set free and appointed an heir to a portion of the estate; and Stichus, who was ignorant of his change of condition, continued to collect the money of the deceased, and made loans, and sometimes entered into stipulations and took pledges; an opinion was asked what was the law in the case? It was held that any debtors who had paid him were released from liability, provided they, also, were not aware that the owner of the slave was dead; but with reference to the sums of money which had come into the hands of Stichus, his co-heirs had no right to bring an action for the partition of the estate, but that one should be granted them on the ground of business transacted; and where he himself had loaned money, property in the same was only transferred in proportion to the amount to which he himself was an heir. This is the case, because if I give you money in order that you may lend it to Stichus, and I then die, and you, being ignorant of the fact, should give him the money, you will not transfer the property in the same; for, notwithstanding that it may be held that the debtors after paying him are released from liability, it is not settled that he has a right to dispose of the ownership of the money by lending it. Wherefore, if no stipulation for repayment was entered into, suit could not be brought for the money which was lent, in proportion to the share of the coheir, nor could the pledges be retained.

If, however, the stipulation was made for repayment, it is a matter of importance in what terms the stipulation was made; for instance, if he made it expressly in favor of Titius, his owner, who was dead at the time, there is no doubt that the stipulation would be void; but if he stipulated that the money should be repaid to him, it must be held that he acquired the benefit of the same from the estate; just as where freemen or the slaves of others serve us in good faith, whatever they acquire by means of our property belongs to us; so whatever is acquired through a portion of the estate is made for the benefit of the estate itself.

Where, however, an estate has been entered upon by the co-heirs, this rule cannot be held to equally apply; at all events, if they knew that Stichus was appointed co-heir together with them, as, in this instance, those cannot be considered to be bona-fide possessors who did not have the intention of holding possession. If, however, the case suggested has reference to co-heirs who are ignorant of the facts, for example, because they themselves were necessary heirs, the same opinion may still be given; and in this instance the result will be that if the said slave has co-heirs of the same condition, they will all be held to serve one another in good faith.

42. Celsus, Digest, Book VI.

If I stipulate for ten aurei from Titius, and I afterwards stipulate from Seius for the amount of the debt which I may fail to collect from Titius, then, if I bring suit against Titius for ten aurei, Seius will not be released from liability, otherwise the security provided by Seius will be worthless; but if Titius complies with the judgment, Seius will be no longer liable. If, however, I proceed against Seius, whatever the amount I can collect from Titius, when issue is joined between Seius and myself, is less than the obligation, so much the less can I subsequently collect from Titius.

(1) Labeo says that if you stipulate that a party shall see that ten aurei are paid, you cannot, for this reason, claim that ten should be paid to you, because the promisor can be released by finding a wealthier debtor; and, in fact, this means that the party cannot be compelled to join issue if he offers to provide a wealthier debtor.

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TITLE II. CONCERNING THE TAKING OF AN OATH, WHETHER VOLUNTARY, COMPULSORY, OR JUDICIAL.

1. Gaius, On the Provincial Edict, Book V.

A very important means for promptly disposing of litigation has come into use, that is to say, the religious character of an oath, by means of which controversies are decided either through the agreement of the parties themselves, or by the authority of the judge.

2. Paulus, On the Edict, Book XVIII.

The taking of an oath has the appearance of a compromise, and it has greater weight than the judgment of a court.

3. Ulpianus, On the Edict, Book XXII.

The Prætor says: "Where a party against whom suit is brought, after certain proposals have been offered, makes oath." We must understand the words "The party against whom suit is brought" to mean the defendant himself. The other words "After certain proposals have been offered," as not unnecessarily added; for if a defendant should take the oath without its being tendered to him by anyone, the Prætor will not recognize an oath of this description, as the party merely swears to himself; otherwise, it would be extremely easy for anyone who cares little for an oath to take it where no one tendered it to him, and thereby free himself from the burden of a suit.

(1) Where a party is sued in any kind of an action, if he makes oath it will be a benefit to him, whether the action is one in personam, in rem, or in factum, or where it is a penal action, or any other kind, or where the proceedings relate to an interdict.

(2) Where the oath is taken with reference to the civil condition of the person, the Prætor will sustain it; as, for instance, where I tendered you an oath and you swore that you were not under my control, the oath must be sustained.

(3) Wherefore, Marcellus states that an oath can be taken with reference to the question as to whether a certain woman is pregnant or not, and the oath must stand. Finally, he says that where the inquiry relates to possession, the oath must be sustained; for example, where a woman wishes to be placed in possession of property because she is pregnant, and when this is disputed by the other side, then she must either swear that she is pregnant, or the other party must swear that she is not, for if she herself makes oath, she can enter into possession without apprehension; and, on the other hand, if the oath is made against her, she cannot do so, even though she may be actually pregnant; and therefore Marcellus says that a woman who takes the oath will have the benefit of it, and will avoid legal proceedings on the ground of having taken possession in behalf of an unborn child, for the purpose of deception; nor can she be subject to force while she is in possession. But whether an oath will be an advantage so far as to prevent inquiry being made after a child is born as to whether it is the offspring of him who is said to be its father or not, is a question discussed by Marcellus, and he says that the truth ought to be ascertained, because the oath does not benefit or injure another; hence the oath of the mother will not benefit the child, nor will it cause any injury if the mother tenders it, and oath is made that she is not pregnant by a certain man.

(4) It is necessary for a party to swear in the terms in which the oath is tendered, but if I tender it for you, you may swear by God and you swear by your own head,

4. Paulus, On the Edict, Book XVIII.

Or the heads of your sons,

5. Ulpianus, On the Edict, Book XXII.

An oath of this kind will be of no effect. If, however, I required you to swear by your own salvation and you do so, I must abide by it; for every kind of an oath which is at all lawful and by which any one wishes to be sworn in his own behalf is suitable, and if it is taken, the Prætor will sustain it.

(1) The Divine Pius stated in a Rescript that if an oath was taken in accordance with some peculiar superstition, it must stand.

(2) When the oath has been taken, nothing else must be asked but whether the party was sworn, and the question as to whether anything is due is not considered, as this is sufficiently established by the oath.

(3) Where, however, a party tenders an unlawful oath, that is to say, one relative to a religion the profession of which is publicly forbidden; let us see whether it should be considered as if no oath had been taken; and this, I think, is the better opinion.

(4) Where an oath is taken, and the party is not released from being sworn, it must be held that the matter has never been submitted to determination by oath, and hence if he should afterwards be willing to be sworn, the oath will be of no advantage to him; because it was not taken with reference to the matter for which it was tendered.

6. Paulus, On the Edict, Book XIX.

A party waives an oath who, when he tenders it, and his adversary evinces a willingness to take it, he excuses him from doing so, being satisfied because the other party consents to be sworn. Where, however, the latter did not take it, but is afterwards ready to do so, and the plaintiff is unwilling to tender it; he is not held to have dispensed with it, for it can only be dispensed with when it is accepted.

7. Ulpianus, On the Edict, Book XXII.

The Prætor says: "With reference to a matter for which an oath has been tendered, I will not grant an action either against the party himself, or against him to whom the property belonged." The term "matter" must be understood to be applicable whether the oath is taken with reference to the entire property in question or only a portion of the same; for the Prætor promises that he will not grant an action with reference to what was sworn to, either against the party who took the oath, or against those who succeed to him to whom the oath was tendered,

8. Paulus, On the Edict, Book XVIII.

Even though they succeed to the property.

9. Ulpianus, On the Edict, Book XXI.

For, after the oath is taken, the action is refused; and if there should be any controversy, that is to say, if it is disputed whether the oath was taken or not, there is ground for an exception.

(1) Where the oath has been taken or dispensed with, the defendant will be entitled to an exception both for himself and for others; and the plaintiff will acquire a right of action in which the only matter to be considered is whether he swore that something should be given him, or where he was prepared to swear and the oath was dispensed with.

(2) If judgment is rendered against a party after the oath has been taken, in a case where infamy is involved; the better opinion is that he becomes infamous.

(3) Where a party who is liable to me in a temporary action tenders me an oath in such a way that I must swear that he is obliged to pay, and I swear to this; he will not be released by lapse of time, for the reason that his liability is perpetuated after issue has been joined.

(4) Where anyone under twenty-five years of age tenders an oath, and states that advantage has been taken of him in doing so, he should file a replication in answer to an exception based upon the oath; as Pomponius says. I, however, am of the opinion that this replication should never be granted; but that, in most instances, the Prætor himself should investigate as to whether advantage was taken of the minor, and grant him complete restitution; for the mere fact that he is a minor does not establish the fact that he has been swindled. Moreover, this exception or inquiry ought not to extend beyond the time prescribed by law after the minor has reached his twenty-fifth year.

(5) Moreover, where a party tenders an oath to a debtor in fraud of his creditors, and a replication on the ground of fraud should be granted the creditors against an exception based upon the oath; and, moreover, if the party guilty of fraud tenders an oath to a creditor in order to have the latter swear that he should pay him ten aurei, and afterwards, when his property has been sold, he wishes to bring an action; either the action must be refused, or it may be opposed by an exception on the ground of defrauding creditors.

(6) Julianus says that the oath of a party who defends a case voluntarily or is appointed an attorney, if tendered by the adversary, will be a good defence and will provide the principal with an exception. Hence it must be said that the same rule applies where an agent is appointed to bring an action, and the defendant, having tendered an oath, swears that the amount should be paid to me; for this furnishes me with a right of action. This opinion is reasonable.

(7) Where the plaintiff has sworn, on the oath tendered by the party in possession, that the property is his, he will be entitled to an action; but this only applies to the party who tendered the oath and to these who have succeeded to his place; but if he should wish to make use of the privilege obtained by taking the oath in an action against another, his oath will be of no benefit to him;

10. Paulus, On the Edict, Book XVIII.

Because a transaction between certain parties should not injure anyone else.

11. Ulpianus, On the Edict, Book XXII.

Where an oath is tendered to a party in possession, and he swears that the property does not belong to the plaintiff, then, so long as he holds possession, he can make use of an exception based upon the oath against the party who tendered it; but if he should lose possession, he will not be entitled to the action, not even if the party who tendered him the oath is in possession; for he did not swear that the property was his, but merely that it did not belong to the other party.

(1) Hence, if, while he is in possession, the plaintiff having tendered him the oath he swore that the property was his; we hold, in consequence, that even though he should lose possession, and the party who tendered him the oath should acquire it, an action in factum should be granted him.

Again, it has been settled that any crops which may have been gathered from property which I have sworn to be mine must be restored to me, and that the offspring of female slaves and the young of cattle must be surrendered, after the oath is tendered.

(2) In like manner, if I should swear that the usufruct of any property is either mine or should be surrendered to me, an action will lie in my favor as long as I am entitled to the usufruct in the same; but in those cases in which the usufruct would be lost, I will have no right of action. Where, however, the party swears that he has an usufruct, or that he is entitled to one in property in which no usufruct can be created, because it would be consumed by use; my opinion is that the effect of the oath must be sustained, and, therefore, even though it should be held that he was properly sworn, I think that, on account of the oath, he can claim the usufruct if security is given.

(3) When a controversy exists between yourself and me with reference to an estate, and I swear that it belongs to me, I have a right to obtain whatever I would have been entitled to if judgment had been rendered in my favor in a suit for the estate; and you are required to deliver not only the property of which you had possession at the time, but also whatever you became possessed of afterwards; and the oath must be considered of as much importance as if my case had been proved, and therefore an equitable action will lie in my favor. If, however, I am in possession on account of a right to the estate, and you undertake to recover it from me, and I make oath against you; I shall be entitled to an exception based on said oath. It is clear that, if some other party institutes proceedings against me to recover the estate, there will be no doubt (as Julianus says), that the oath will be of no advantage to me.

12. Julianus, Digest, Book IX.

The same rule prevails where I wish to sue anyone who is in possession of property belonging to an estate; because if I should bring an action to recover the estate from you, and prove that it is mine, nevertheless, if I brought suit against another person it would be necessary for me to prove the same thing.

13. Ulpianus, On the Edict, Book XXII.

Where there are two patrons, and, one of them having tendered an oath, a freedman swears that he is not his freedman, will the other be entitled to possession of the entire property which patrons have a right to, or only to half of the same? It is said, by way of answer, that if the party to whom the oath was sworn was a patron, the other has a right to the possession of his own share of the property, and it will be of no benefit to him that the freedman made oath against the other; but the patron will have a great deal of consideration and authority if he applies to a judge in an attempt to prove that he is the sole patron, because the freedman swore that the other was not his patron.

(1) Julianus says that anyone who swears that a certain tract of land is his should, after sufficient time has elapsed to give him a title by prescription, also have a right to a prætorian action.

(2) Julianus also says that where a party swears that he did not commit theft, he is held to have made oath with reference to everything relating to the matter; and therefore he will not be liable to an action of theft, or to a personal action for recovery, for the reason that only a thief is liable to the latter action. Therefore, can anyone who swears that he did not commit theft, make use of an exception on this account, if a personal action for recovery is brought against him? Where the party who brings the action alleges that he is the heir of the thief, he cannot be refused a hearing, and he should be granted a special action for recovery against the heir of the thief, and the judge must not permit him to proceed if he attempts to prove that the party is a thief.

(3) Where anyone swears that I sold him something for a hundred aurei, he can bring an action based on the purchase for the performance of whatever is connected with the contract; that is to say, for the delivery of the property and for security against recovery by a genuine owner. Should it not, however, be considered whether he can be sued on the contract of sale for the recovery of the purchase-money? If, indeed, oath was taken with reference to this, that is to say, that the money was paid, no right of action will exist for the recovery of the latter; but if this was not sworn to, the party will, in consequence, be liable for the purchase-money.

(4) We say that the same rule applies where anyone swears that he entered into a partnership; for he can still be sued in a partnership action.

(5) Marcellus says that where anyone swears that he gave his land as security for ten aurei, he cannot bring suit on the pledge without paying ten aurei, but he adds that perhaps he can be sued for ten aurei on account of his oath; and this he entirely approves of. Quintus Saturninus concurs in this opinion, and he makes use of the case where a party swore that his former wife gave him certain property as a dowry; for he says that, in this instance, an equitable action for the dowry should be granted her, and I deny that this opinion exceeds the demands of justice.

(6) Where, in a pecuniary transaction, a party swears by the Genius of the Emperor that he is not obliged to pay, or that his adversary is entitled to payment, and perjures himself; or where he swears that he will pay within a certain time and does not do so; our Emperor and his father stated in a Rescript that he must be sent away to be whipped with rods, and the following notice attached to him, namely: "Do not swear rashly!"

14. Paulus, on the Edict, Book III.

Whenever an oath is taken with reference to property, it cannot be dispensed with in favor of a parent or a patron, and an oath is exacted with reference to property; for instance, where money is borrowed and the plaintiff swears that he should be paid, or the defendant swears that he is not obliged to pay.

The same rule applies where an oath is required with reference to mere promise to pay at a certain time.

15. The Same, On the Edict, Book VI.

Someone must be sent to their homes to administer the oath to distinguished persons, and to those who are prevented by illness from appearing in court.

16. Ulpianus, On the Edict, Book X.

When a patron marries his freedwoman, he cannot be compelled to swear in an action for the removal of property;¹ but if he himself tenders the oath to his freedwoman, he will not be compelled to swear that he did so for the purpose of annoyance.

¹ Actio rerum amotarum. If either husband or wife, during marriage, fraudulently removed or appropriated property belonging to the other, the injured party could not proceed against the delinquent in a suit for theft, but a special action in personam for the recovery of the article was granted. This procedure was considered necessary because of the community of ownership which was presumed to exist, as well on account of the infamy involved in the successful prosecution of an actio furti, which would have a tendency to degrade the marriage relation. It, however, in its consequences bore a certain resemblance to the actio furti, for property taken under such circumstances could not subsequently be acquired by usucaption. If the husband was under paternal control, his father could bring the suit. Where the wife was the defendant and was tendered the oath, she was absolutely compelled to take it, but she was precluded from tendering it in her turn. When the articles alleged to have been stolen could not be found, fourfold damages were assessed; the value of what was purloined being determined by the oath of the plaintiff.

This proceeding originally had reference to the fraudulent disposal of property by the wife in anticipation of a divorce, but its scope was afterwards extended, and the husband's liability, which did not exist in the beginning, was definitely established. — ED.

17. Paulus, On the Edict, Book XVIII.

Where an oath is tendered extrajudicially in accordance with an agreement, it cannot be tendered back again.

(1) A ward shall tender an oath with his guardian's consent, because, if he tenders it without it, an exception can be placed against him; but he is entitled to a replication, because he has no legal right to attend to his own affairs.

(2) Where a guardian who is administering a guardianship, or the curator of an insane person or a spendthrift, tenders an oath, it should be considered as ratified; as they dispose of property, and give receipts where money is paid, and can also bring a matter into court by means of a legal action.

(3) Moreover, where an agent tenders an oath, it must be sustained where he has control of all the property of his principal, or was especially directed to do this, or is an agent acting in his own behalf.

18. Ulpianus, On the Edict, Book XXVI.

But, otherwise, an agent who attempts to tender an oath should not be heard, as Julianus states in the Tenth Book of the Digest, nor can a defendant who has taken the oath subsequently be sued by the principal; and it is of not much benefit to him if security was furnished that the principal would ratify the act; for if the latter should sue him, the defendant will be compelled to show that he made oath in all sincerity, provided an exception is filed; but if he should bring suit based on the stipulation that the act would be ratified, he will be required to prove that perjury was committed by himself.

19. The Same, On the Edict, Book XXVI.

Therefore, if an agent was directed to bring suit, and he tendered an oath, he did something which he was not directed to do.

20. Paulus, On the Edict, Book XVIII.

Where a slave tenders an oath or takes one, it will be sustained if he has the administration of his peculium:

21. Gaius, On the Provincial Edict, Book V.

For he can lawfully receipt for money paid, and has the right to renew an obligation.

22. Paulus, On the Edict, Book XVIII.

Some authorities hold that an action De peculio should be granted against the owner where a slave tenders an oath to the plaintiff. The same rules apply to a son under paternal control.

23. Ulpianus, On the Edict, Book XXVI.

Where a slave swears that his owner is not obliged to pay, the latter is entitled to an exception, and his adversary, who tendered the oath to the slave, has no one but himself to blame.

24. Paulus, On the Edict, Book XXVIII.

It is much more true that the religious feeling of a son is advantageous to his father, where suit can be brought against the latter. But where parties of this kind tender the oath back, they do not render the legal position of those to whose authority they are subject any worse.

25. Ulpianus, On the Edict, Book XXVI.

If my slave, where an oath has been tendered in the first place or tendered back to him, swears that certain property belongs to his master, or should be delivered to him; I think that I am entitled to an action or an exception based on contract, on account of the sacred character of the oath and the terms of the agreement.

26. Paulus, On the Edict, Book XVIII.

Where any one is said to have sworn, it makes no difference what his or her sex, or age may be, for the oath should, by all means, be sustained against the party who was content with it when he tendered it; although a ward is never considered to have perjured himself, because it is not held that he can knowingly be guilty of deception.

(1) If a father swears that his son is not obliged to pay; Cassius stated as his opinion that an exception based on the oath should be granted to both father and son. Where a father swears that there is nothing in the peculium, an action can be brought against the son; and it can also be brought against the father in order to obtain an accounting for any peculium which may have been subsequently acquired.

(2) The taking of an oath may be considered as belonging to the same class as the renewal or assignment of an obligation, as it grows out of an agreement; although it also bears some resemblance to a judgment.

27. Gaius, On the Provincial Edict, Book V.

An oath also takes the place of payment.

28. Paulus, On the Edict, Book XVIII.

Where two creditors jointly interested enter into a stipulation, and the oath is tendered by one of them, it will also prejudice the other.

(1) Where the principal debtor takes an oath, it also benefits a surety; and where an oath is required of a surety it likewise benefits the principal debtor, as Cassius and Julianus say; for, because it takes the place of payment it must, in this instance also, be considered as doing so; provided that the oath was introduced with reference to the contract itself and the property in question, and not with respect to the person who was sworn.

(2) Where anyone promises to produce my debtor in court, and I tender him the oath, and he swears that he never promised to produce him, this should be of no advantage to my debtor; but if he swears that he himself is not at all indebted to me, a distinction ought to be made, and the proceedings amended by means of a replication; whether he made oath to the effect that after his promise he had produced the party, or, in fact, had paid what was due.

A distinction of the same kind can also be made in the case of a surety for a debt.

(3) Where one of two joint-debtors of a certain sum of money took the oath; this should also benefit the other.

(4) An exception based upon an oath can be used not only where a party brings an action on account of the matter for which he executed the oath, but also with reference to another case, provided the same question is concerned in the latter proceeding; for example, where an oath is required in an action on mandate, or in one based on business transacted, partnership, and others of the same kind; and then a specific action for recovery based on the same matters can be brought, for the reason that one action is annulled by the other.

(5) Where anyone swears that he did not commit robbery, he should not be permitted to derive any advantage from his oath in an action for theft, or in one for the recovery of stolen property; because theft is a different crime, being one that can be perpetrated secretly.

(6) Where suit is brought against a tenant on his lease, for instance, because trees have been cut down, and he swears that he did not cut them, and he is afterwards sued under the Law of the Twelve Tables for having cut trees, or under the Lex Aquilia for wrongful damage, or an interdict Quod vi aut clam is applied for against him; he can make a defence by means of an exception based upon his oath.

(7) Where a woman swears that she did not remove property belonging to her husband on account of a divorce, she cannot make a defence by means of an exception, if suit is brought against her for the recovery of the property, and if she contends that it is hers, another oath will be required; on the other hand, if she swore that the property was hers, this oath can be set up as a defence in an action for the removal of property which has been removed. And, indeed, it should be generally observed that where the same question comes up in a different action, an exception based upon the oath will be available.

(8) Therefore, where a party swears that judgment was not rendered against him, even though he is sued on a judgment based on a stipulation that the decision of the court will be obeyed; he can defend himself by means of an exception.

Where, however, on the other hand, he is sued on the stipulation that the decision of the court will be complied with, and he then swears that he is not obliged to pay, an exception cannot be properly pleaded against the party bringing suit on the judgment; for it may happen that the stipulation did not become operative, even though judgment was rendered against him, unless he should swear that this was not the case.

(9) Moreover, Pomponius says that where a man swears that some of his property was stolen, he does not immediately acquire a good cause of action for the recovery of the property.

(10) Again, since under this Section the oath affords ground for both an action and an exception, if the defendant takes an oath out of court, which is tendered by the plaintiff, and swears that he is not obliged to pay; and then the plaintiff, on the tender of the oath by the defendant, swears that he has a right to exact payment, or vice-versa; the last claim supported by oath will have more force, but this will not prejudice the point as to whether the other party has committed perjury; for the question is not whether the defendant was obliged to pay, but whether the plaintiff made oath that he was.

29. Tryphoninus, Disputations, Book VI.

Moreover, if you tender an oath, and I swear that you did not swear that I was obliged to pay you; then, in opposition to an equitable action by which it is intended to ascertain whether you made oath that you had a right to require payment, I can plead an exception based upon my oath for the purpose of disposing of the question included in the action.

30. Paulus, On the Edict, Book XVIII.

Pedius says that where a man, in an action in which the amount is increased by the denial of the defendant, swears that something is owing to him, he acquires a right to bring suit for simple and not for double damages; for it is abundantly sufficient that the plaintiff should be freed from the necessity of proving his case, since, leaving out this part of the Edict, his right of action for double damages remains unimpaired; and it may be said that in a case of this kind the principal cause of action is not the object of the proceeding, but that the oath of the plaintiff should take effect.

(1) If I swear that you are obliged to deliver Stichus to me, and such a slave is not in existence, you, as defendant, are not required to pay me his value, except in case of theft or because of your default; for in either of these instances the value of the slave must be stated, even after his death.

(2) Where a woman swears that ten aurei are due to her on account of dowry, that entire amount must be paid; but if she swears that she paid ten aurei by way of dowry, inquiry will not be made as to the mere fact whether the amount was paid, but it will be considered as paid, and whatever portion should be returned must be given to her.

(3) In a popular action, an oath which has been exacted can be used against others only if it was demanded in good faith; for, where anyone institutes proceedings, this does not prevent a public action, unless the proceedings were instituted through collusion.

(4) Where a freedman, after his patron has tendered him the oath, swears that he is not his freedman, the oath must be sustained; so that no claim for services, nor one for the possession of the property of an estate contrary to the provisions of the will, can be considered.

(5) If I swear that I have a right to have a usufruct transferred to me, this should be done only where I give security that I will make use of it in the way that a good citizen would do, and that, when the usufruct terminates, I will restore it.

31. Gaius, On the Provincial Edict, Book XXX.

We must remember that sometimes, even after the oath has been exacted, it is permitted by the Imperial Constitutions to have recourse to ordinary proceedings, where the party interested alleges that new documents have been found which he now only desires to use. These Constitutions are held to be available solely where a party has been discharged by the court; for judges, after requiring an oath, are frequently accustomed to render a decision in favor of the party who was sworn; but where the matter has been settled between the parties by means of an oath, it is not permitted for the same case to be reheard.

32. Modestinus, Differences, Book III.

A ward cannot dispense with the oath.

33. Ulpianus, On Sabinus, Book XXVIII.

When a party swears by his own salvation, although he is held to swear by God (for when he swears in this way he has reference to the Divinity), still, if the oath had not been tendered him in this particular manner, he is held not to have sworn; and therefore he will be compelled to make oath again in the proper form.

34. The Same, On the Edict, Book XXVI.

An oath may be employed both with reference to money and to all other matters, for an oath may even be tendered in an action for services, and the adversary cannot complain of any injury done him, since he can tender the oath back. What then should be done if the defendant alleges that he is released because he thinks that Stichus, the slave whom he promised, is dead? In this case he cannot be protected by tendering the oath back; and therefore, for this reason, Marcellus thinks, and very properly, that he should either be excused from taking the oath, or that certain time should be granted him that he may ascertain the facts and then be sworn.

(1) A party who appears in defence of a municipality or of any corporate body can tender the oath, if he has an order to do so.

(2) An oath cannot be tendered to a ward.

(3) Neither an agent nor a defender can be compelled to swear; for it is stated by Julianus in the Ninth Book of the Digest that a defender cannot be compelled to swear and that it will be sufficient for a complete defence if he is prepared to join issue in the case.

(4) Where a party tenders an oath, he must himself first swear that he does not do so with a desire to cause annoyance, if this is required; and then the oath for him will be taken. This oath with reference to annoyance is dispensed with in the case of a patron or parents.

(5) If there is any doubt among the parties as to the nature of the oath to be taken, its terms are to be decided by the arbiter who hears the case.

(6) The Prætor says, "He who is asked to swear I will compel either to pay or to take the oath," and therefore the defendant must choose whether he will pay or swear, and if he does not swear, he will be compelled by the Prætor to pay.

(7) Another resource is, however, granted to the defendant, namely, that of tendering back the oath if he prefers to do so, and if he who brings the action refuses to accept the conditions under which he must be sworn, the Prætor will not permit the case to go on, and in doing so he acts most justly; since the conditions under which the oath must be taken should not be displeasing to the party who himself tendered one.

The plaintiff, however, cannot tender the oath relating to annoyance to the defendant who tenders back the oath, for, that the plaintiff should expect that an oath de calumnia¹ will be taken with reference to terms which he himself imposed, is something that ought not to be tolerated.

¹ The legal signification of the term calumnia is the fraudulent employment of judicial measures for the purpose of infringing the rights of another, or obtaining his property under false pretenses, either directly, or by the subornation of a third party. It generally applies to bringing a suit where no reasonable ground for doing so existed, or to taking money to prevent one from being brought; acts which in our times are known as blackmail and extortion. Under the Roman system of procedure, the first step after issue had been joined was the administration of the juramentum calumniæ, or "oath of calumny," which was taken by the parties and their attorneys, in which they all swore that the cause of action and the defense were, to the best of their knowledge and belief, legal and well founded; that they would try the case in accordance with the principles of justice, and had not inaugurated or promoted the litigation with the intention of, in any way, circumventing or annoying their adversary.

The law of Scotland recognizes the oath of calumny. It requires that both the parties, if present, and their advocates, "should at the outset depone that the cause he trowis" (believes) "is gude and leil" (just and true). This proceeding has, however, fallen into disuse, and the oath is but rarely exacted from the principals, and never from the advocates. The prosecuting witness in a criminal case can be compelled to take it, but the defendant cannot; nor can his representative, in a proceeding where prosecution for an illegal act may result, be obliged to swear to his own turpitude: "Nemo tenetur jurare in suam turpitudinem."

Formerly this oath could be demanded at any time during the trial of a case; the more modern practice, however, does not permit it to be administered unless the plaintiff's evidence is manifestly insufficient. It is also employed in actions for divorce, to avoid the danger of collusion. (Dickson, A Treatise on the Law of Evidence in Scotland, Vol. II, Title VI, Chaps. 1, 2.) — ED.

(8) It is not always proper for an oath to be again tendered in the same terms as at first; for, perhaps, on account of the diversity of things or persons, matters may arise which cause a difference to exist between them, and therefore if anything of this kind should occur, the terms of the oath should be decided by the judge.

(9) When the matter in dispute is referred to an oath, the judge discharges the party who swears and will hear the one who desires to tender the oath back, and if the plaintiff should swear, he must render a judgment against the defendant; and if the latter refuses to swear, but pays, he must discharge him, and if he does not pay, he must render judgment against him; and where the plaintiff, after the oath is tendered back, refuses to take it, he must discharge the defendant.

35. Paulus, On the Edict, Book XXVIII.

When the guardian of a ward tenders an oath where all other evidence is lacking, he must be heard, for circumstances may exist under which an action will be refused the ward.

(1) Where a spendthrift tenders an oath, he shall not be heard, and the same rule applies in other similar cases; for, whether the oath takes the place of an agreement, or of a debt, the payment of the execution of a judgment, it should not be allowed, except when tendered by those who are properly qualified for such things.

(2) Parties who cannot be compelled to join issue at Rome, cannot be compelled to make oath there; as, for example, provincial envoys.

36. Ulpiamis, On the Edict, Book XXVII.

Where the plaintiff tenders an oath with reference to money which had been merely promised, and the defendant swears, he can avail himself of an exception if an action is brought against him on the promise; but if he is sued for the principal — that is on account of the prior obligation — an exception cannot be pleaded, unless he swore with respect to this also, after the plaintiff had tendered him the oath.

37. Ulpianus, On the Edict, Book XXXIII.

If the oath has not been waived by the party who tendered it, and no oath has been taken denying that proceedings have been instituted for purposes of annoyance, the action will not be granted in consequence; for he has only himself to blame who proceeded to tender the oath before the denial that annoyance was intended was sworn to, so that he is in the same position as if he had dispersed with the oath.

38. Paulus, On the Edict, Book XXXIII.

Where a party is unwilling either to swear or to tender back the oath, it is an evidence of manifest depravity, and equivalent to a confession.

39. Julianus, Digest, Book XXX.

Where anyone agrees with his debtor that suit shall not be brought for the money if he swears that he did not "ascend the Capitol," or that he had done or had not done anything else whatsoever; and the latter makes oath accordingly, an exception on the ground of the oath should be granted him, and if he has paid he can recover the money; for an agreement is lawful where, in any case whatsoever, it is made dependent upon the condition of an oath.

40. The Same, Digest, Book XIII.

Where an oath is required from a debtor it effects a release of a pledge; for this resembles the discharge from liability for a debt, and certainly gives rise to a perpetual exception. Therefore, a creditor who brings suit for a penalty will be barred by an exception, and if the money has been paid it can be recovered; just as where an oath is interposed all controversy is at an end.

41. Pomponius, Rules.

Labeo stated that the oath may be dispensed with in favor of a party who is absent, or ignorant of the facts; and it can even be waived by letter.

42. The Same, Epistles, Book XVIII.

Where an oath was tendered by a creditor who had instituted proceedings against a ward for money which had been loaned, the latter swore that he was not obliged to pay, and then the creditor brought suit against his surety for the money; should he be barred by an exception based on the oath? Write to me what your opinion is. Julianus discusses the point more fully; for he says if the controversy that arose between the creditor and the ward was whether the ward had ever received the money, and it was agreed that the whole question should be settled if the ward would take an oath, and he swore that he was not obliged to pay; the natural obligation is disposed of by this agreement, and if any money has been paid it can be recovered.

If, however, the creditor maintained that he had made the loan, and the ward only defended himself upon the ground that his guardian had not intervened, and an oath of this kind is taken; the Prætor, in this instance, will not afford the surety any relief. But where it cannot be clearly proved what the agreement was, and it is doubtful (as very frequently happens) whether the controversy between the creditor and the ward was a question of fact or one of law; and the creditor, having tendered the oath, the ward took it; we must hold that the understanding between them was that if the ward should swear that he was not obliged to pay, the controversy should be considered at an end, and the money paid can be recovered; and we think that an exception should be granted the sureties.

(1) Where a surety swears that he is not obliged to pay, the defendant is protected by an exception founded on the oath; but if a surety should swear that he had never been surety at all for the sum demanded, this oath ought not to benefit the person who promised.

(2) Moreover, where the plaintiff tenders the oath, and a party who appears for either the absent or present defendant swears that the latter is not obliged to pay; an exception based upon the oath shall be granted to him in whose behalf the oath was taken.

The same rule is applicable where some one who appears in defence of a surety makes oath for an exception to be granted the principal.

(3) In like manner if the principal makes oath, his surety will be protected; because a decision in favor of either of them will benefit the other.

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TITLE III. CONCERNING AN OATH MADE IN COURT.

1. Ulpianus, On Sabinus, Book LI.

Where property is the subject of legal proceedings and an oath is taken with reference to the claim, we do not consider its value to be greater because the judgment may be for a larger amount on account of the contumacy of the defendant in not surrendering the property, as it does not by this means become more valuable; but its value is increased above what it is worth on account of the contumacy of the defendant:

2. Paulus, On Sabinus, Book XIII.

Whether we sue for something which is ours or whether proceedings are instituted for production.

(1) Sometimes the appraisement is made only with reference to the interest of the plaintiff in the action; for instance, where the negligence of the defendant in not surrendering or producing the property is to be punished; but when the fraud or contumacy of the party who does not surrender the property or produce it is to be punished, the value must be estimated in accordance with the amount which the plaintiff swore to in court with reference to the claim.

3. 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?

4. The Same, On the Edict, Book XXXVI.

Let us consider who can take this oath where proceedings are instituted against the guardian, and against whom he can do so. The ward himself, indeed, cannot take it if he has not arrived at puberty, for this has very frequently been published in rescripts. The Divine Brothers stated in a Rescript that the guardian himself cannot be compelled to swear, or the mother of the ward be permitted to do so, even though she be ready to make oath; for it was held to be a serious matter for guardians who are ignorant of the facts, to incur the risk of perjury for the benefit of another, against their consent.

It was also established by our Divine Emperor and his father that the curators of a ward or a minor could not be compelled to make oath with reference to a claim; but, where guardians or curators wish to manifest so much affection for the wards or minors under their charge, the authority of the law will not prevent trials from being ended in this way where issue has been joined between the parties; since the appraisement established by oath must be made, not with reference to the advantage of the party who is sworn, but to that of his principal in whose behalf an account of guardianship must be rendered. The minor, however, can be sworn if he wishes.

(1) The judge must tender the oath, but if anyone else should tender it, or if it should be taken without being tendered, it has no sanctity, and, in fact, is no oath at all; and this is stated in the Constitutions of our Emperor and his Divine Father.

(2) Any sum may be sworn to; but, I ask, can the judge fix a limit to the oath so as to restrict it to a certain amount, in order to prevent the party from taking the opportunity to swear to an immense sum? It is settled that it is in the discretion of the judge to tender the oath or not to do so; and therefore the question arises whether anyone who can refuse to tender the oath cannot also limit the amount to be sworn to; and this also is in the discretion of a judge acting in good faith.

(3) Moreover, it should be considered whether the judge who has tendered an oath is not entitled to refuse to follow it, and either to dismiss the case entirely, or to render judgment for a smaller amount than has been sworn to; and the better opinion is that where some unusually good cause exists, and new evidence has been discovered he can do so.

(4) It is well established that where negligence has been committed, the oath should not be tendered, but a valuation should be made by the judge.

5. Marcianus, Rules, Book IV.

In actions in rem and in those for production, as well as in bona fide proceedings, an oath is taken with reference to the claim.

(1) The judge, however, can fix a certain amount up to which the party may swear; for he had a right in the first place not to tender him the oath.

(2) Moreover, where the oath is taken, the judge has a right either to dismiss the case, or to render judgment against the defendant for a smaller amount.

(3) In all these instances, however, the oath with reference to the claim can be taken only where fraud exists, and not on account of negligence; for the judge makes an estimate of what comes under the latter.

(4) There is no question that sometimes an oath is taken with reference to the claim in an action of strict law; for example, where a party who promised to deliver Stichus makes default, and Stichus dies; as the judge cannot make an estimate of the value of property which no longer exists, without tendering an oath.

6. Paulus, On the Edict, Book XXVI.

It is otherwise where proceedings are taken on a stipulation or under a will, for then it is not customary for the claim to be sworn to.

7. Ulpianus, On the Edict, Book VIII.

It is generally taken for granted that no one but the party who has control of the case can make oath with reference to the claim; for Papinianus says that no one but a party who has joined issue in his own behalf can do so.

8. Marcellus, Digest, Book VIII.

Where a guardian who is in possession of the property of a person who has attained his majority refuses to surrender it to him; I ask whether judgment should be rendered against him for what the property is worth, or for the amount of the claim sworn to by the plaintiff? I answered that it is not just that the value, (that is what the property is worth), alone should be estimated, but that the contumacy displayed must be punished; and that the value of the property should rather be left to the judgment of the owner of the same by the power of making oath to the claim being granted to the plaintiff.

9. Javolenus, On Cassius, Book XV.

Where proceedings for theft are instituted, the value of the property at the time when the theft was committed must be sworn to, without adding the words, "Or more," because where property is worth more, it is, at all events, worth as much.

10. Callistratus, Questions, Book I.

Where anyone does not produce documents, the plaintiff is permitted to swear to the claim, so that judgment may be rendered against the defendant for an amount of damages equal to the interest the plaintiff has in having the documents produced; and this the Divine Commodus stated in a Rescript.

11. Paulus, Opinions, Book III.

Inquiry is not readily permitted where a party commits perjury in a case in which he is compelled by law to swear to a claim.

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TITLE IV. CONCERNING A SUIT FOR THE RECOVERY OF PROPERTY GIVEN FOR A CONSIDERATION WHICH DOES NOT TAKE PLACE.

1. Ulpianus, On the Edict, Book XXVI.

Where money is paid on account of some act which is not dishonorable, as that a son shall be emancipated, or a slave manumitted, or a suit abandoned; then, if the act is performed, an action for the recovery of the money will not lie.

(1) If I pay you ten aurei for fulfilling a condition, and I afterwards reject an estate or a legacy, I can bring suit to recover the money.

2. Hermogenianus, Epitomes of Law, Book II.

Where, however, the will is pronounced to be forged or inofficious, without criminality on the part of him who paid the money, the said ten aurei can be recovered by an action on the ground of failure of consideration.

3. Ulpianus, On the Edict, Book XXVI.

I paid you a certain sum of money to avoid your bringing me into court; and, hence I, as it were, disposed of the matter. Can I bring suit for recovery, if security is not furnished me that judicial proceedings will not be instituted? It is true that it makes a great deal of difference whether I paid the money for no other purpose than to avoid being brought into court, or that I should be promised that this would not be done; but if this was the consideration, namely, that I should be promised, I can bring suit to recover the money if the promise was not given; but if the understanding was merely that judicial proceedings should not be undertaken, no action for recovery will lie as long as this is not done.

(1) The same rule will apply if I pay you a sum of money on the condition that you do not manumit Stichus; for, in accordance with the distinction above stated, an action for recovery can either be granted or refused.

(2) But if I pay you the sum of money on the condition that you will manumit Stichus, and you do not do so, I can bring an action for its recovery; or, if I change my mind, I can still bring it.

(3) Where, however, I paid you the money on condition that you would manumit him by a certain time, what then? If the time has not yet elapsed, a suit to recover the money will be refused, unless I have changed my mind; but if it has elapsed, suit can be brought. But if Stichus is dead, can the money which was paid be recovered? Proculus says that if he died after the time had arrived when he could have been manumitted, an action for recovery will lie, otherwise not.

(4) And, indeed, if I did not pay you anything to induce you to manumit the slave, but it was agreed that I should pay you, you are at liberty to bring the action which arises from such a contract, that is, a personal action for recovery, even though the slave be dead.

(5) Where a freeman who was serving me as a slave in good faith pays me money on the condition that I will manumit him, and I do so, and he is afterwards proved to be free; the question arises, can he bring an action against me to recover the money? Julianus says in the Eleventh Book of the Digest that the manumitted party has a right of action for its recovery. Neratius also, in the Book of Parchments, states that a certain Paris, a dancer, who had paid Domitia, the daughter of Nero, ten aurei to obtain his freedom, brought an action against her to recover it, and the inquiry was not made as to whether Domitia received it knowing at the time that he was free.

(6) If anyone pays me ten aurei, with the understanding that he is a slave who expects to be free on a certain condition, when he was not ordered to do this; Celsus holds that he can bring suit to recover the ten aurei.

(7) Where a slave who was directed under a will to pay the heir ten aurei and become free, received his freedom absolutely under a codicil, but, being ignorant of the fact, paid ten aurei to the heir; can he bring an action for their recovery? He states that Celsus, his father, held that he could not recover them; but Celsus himself, being influenced by a feeling of natural justice, thinks that suit can be brought for their recovery. This opinion is the more correct one, although it is established (as he himself states) that a party who paid money with the expectation that he would be remunerated by the person who received it, or that the latter would be more friendly to him in the future, cannot recover it; because he was deceived by a false opinion.

(8) He also discusses here a nicer point, namely, as to whether a slave who thought that he would be conditionally free, did not transfer the property in the money which he paid to the party receiving it; since he paid it to the heir under the impression that it belonged to the heir instead of to himself, although the money was his, as he received it after his freedom had been granted him under the will. I am of the opinion that, if he paid it under this impression, it did not become the property of the heir; for even where I pay you my money as if it was your own, I do not make it yours.

What would be the case, then, if the party above mentioned did not pay it to the heir, but to someone else to whom he thought he had been ordered to pay it? If, indeed, he paid the money out of his peculium, he would not make it the property of the party who received it; but if another paid it for him, or he himself paid it after he became free, it would become the property of the person who received it.

(9) Although a slave freed under a condition is permitted to pay money out of his peculium, in compliance with some condition, still if the heir wishes to retain it, he can forbid him to pay it; for then the result will be that the slave will obtain his freedom just as if he had fulfilled the condition which he was forbidden to comply with, and the money will not be lost. But the party whom the testator wished to receive the money can bring an action in factum against the heir to compel him to obey the order of the testator.

4. The Same, On the Edict, Book XXXIX.

Where a creditor discharges his debtor after he had agreed to provide someone who would promise to make payment in his stead, and he does not do so; it may be held that the party who was discharged is liable to a suit for the recovery of the money.

5. The Same, Disputations, Book II.

Where you receive money on the condition that you will go to Capua, and then at the time when you are prepared to start on your journey, the state of the weather, or your health prevents you from doing so; let us consider whether an action to recover the money can be brought on the ground of your failure to make the journey? Since you were not to blame for not going, it may be stated that an action to recover the money will not lie; but, as the party who paid it has a right to change his mind, there is no doubt that what has been paid can be recovered by an action, unless it would have been to your advantage not to have received the money for that purpose; or if the condition of things is such that, although you have not yet started you have, nevertheless, arranged your affairs so that you are compelled to go, or that you have already incurred the necessary expenses for the journey, so that it is evident, for instance, that you have expended more than you have received, an action for recovery will not lie; but if you have spent less, the action can be brought, provided, however, that you will be indemnified for what you have expended.

(1) Where one party delivers a slave to another with the understanding that he shall, within a certain time, be manumitted by him, and he who delivered the slave changes his mind and communicates this to the other party; and the slave should be manumitted after his mind has been changed, he who delivered the slave will, nevertheless, be entitled to bring an action because he changed his mind. It is evident, however, that if the other party does not manumit the slave, the constitution becomes operative, and renders the slave free, if the party who delivered him for this purpose has not yet changed his mind.

(2) Moreover, where anyone gives Titius ten aurei in order that he may purchase a slave with the money and manumit him, and he afterwards changes his mind; if the slave has not yet been purchased, the change of mind will give him a right of action to recover the money, if he makes this plain to Titius, lest he may purchase the slave afterwards and suffer loss. If, however, the slave has already been purchased, the change of mind will not injure the party who purchased him but, instead of the ten aurei which he received, he must surrender the slave that he purchased; or if, in the case proposed, the slave should have previously died he need not pay anything, provided his death was not caused by him. If, however, the slave has fled, and the party who purchased him was not to blame for it, he will not be required to pay anything; but it is clear that he must promise to restore him if he should ever come into his power.

(3) But if he received money in order to manumit a slave and he runs away before he is manumitted; let us consider whether what he received can be recovered by a personal action? If, indeed, he had been about to sell the said slave, and failed to do so because he had received money to manumit him, suit for recovery cannot be brought against him. But it is evident that he must give security that if the slave comes into his hands, he will return what he received, after deducting any diminished value the slave may have sustained on account of his flight. There is no doubt that if the party who made the payment is still desirous that the slave should be manumitted, but the other does not wish this to be done, because he is offered on account of his having taken to flight, he must return the entire amount that he received. If, however, the party who paid him the ten aurei chooses to have the slave himself delivered to him; the result will be, that either the slave must be delivered to him or the money which he paid be refunded. But if the party had no intention of selling the slave, then what he received must be returned, unless that if he had not received the money to manumit him he would have guarded him with greater care; for, in this instance, it is not just that he should be deprived of the slave and the entire price as well.

(4) Where, however, he accepted the money for the purpose of manumitting the slave, and the slave died; then, if he was in default with reference to the manumission, it follows that we must hold that he should refund what he received; but if he was not in default, having started on a journey to see the Governor of the province or any other magistrate before whom proceedings for manumission could be instituted, and the slave died on the journey; the better opinion is that, if he had the intention of selling the slave or of making use of him himself for some purpose, it must be held that he is not obliged to refund anything; for if he had no intention of doing these things, he must sustain the loss resulting from the death of the slave, since he would have died even if his owner had not received the money to manumit him, unless that the journey undertaken in order to manumit him happened to be the cause of his death; as, for instance, if he was killed by robbers, or crushed by the fall of a stable or by being run over by a vehicle, or lost his life in some other way, and this would not have occurred if the journey for the purpose of manumitting him had not been undertaken.

6. The Same, Disputations, Book III.

Where a stranger gives a dowry for a woman, and it is agreed that in whatever way the marriage may terminate the dowry shall be returned to him, and no marriage should take place; then, because the agreement only had reference to matters which happened after marriage, and the marriage was not celebrated, the question will arise whether the woman has a right of action for recovery, or whether the party who gave the dowry is entitled to one? It is probable, however, that, in this instance also, the party who gave the dowry had a view to his own interest; for he who made the gift on account of the marriage can, if the marriage is not performed, bring an action for recovery as if on the ground of want of consideration, unless the woman should be able to prove by the most convincing evidence that he did this rather for her benefit than for his own advantage.

(1) But where a father gives a dowry for his daughter, and an agreement of this kind is made; then, unless the intention was manifestly different, Marcellus says that the father has a right to bring a personal action for its recovery.

7. Julianus, Digest, Book XVI.

Some one who thought that he owed a certain sum of money to a woman promised her betrothed, at her request, to pay it to him as dowry, and did so; and afterwards the marriage did not take place. The question arose whether the party who paid the money could recover it, or whether the woman could do so? Nerva and Atilicinus answered that since the party thought that he owed the money, and could have defended himself by an exception based on fraudulent intent, he himself could bring suit; but if he was aware that he did not owe the woman anything, and made the promise, the woman would have the right of action because the money would belong to her. If, however, he had been actually her debtor, and had paid the money before marriage, and the marriage did not take place; he can bring an action to recover the money, and no other right of the woman to payment of the debt would remain than that the debtor could be compelled to assign to her his right of action for recovery, and would be subject to no further liability.

(1) Where land is conveyed by way of dowry, and the marriage does not take place, it can be recovered by a personal action, and the crops also can be sued for. The same rule applies to a female slave and her children.

8. Neratius, Parchments, Book II.

With reference to what Servius states in his book on Dowries; that is, if a marriage has taken place between persons neither of whom has yet reached the proper age, whatever in the meantime has been given by way of dowry can be recovered; we must understand by this that if a divorce is obtained before either person has reached the lawful age, the money may be recovered, but so long as they remain in the state of matrimony the property cannot be recovered any more than where it is given as dowry by a betrothed woman to her betrothed husband, so long as the connection exists between them; for when anything is given on this account before the marriage has been consummated, then, (since it is given in such a way that it may become a dowry) it cannot be recovered as long as it is possible that this may happen.

9. Paulus, On Plautius, Book XVII.

If I intend to give money to a woman, and pay it to her betrothed as dowry by her direction but the marriage does not take place, the woman has a right of action for its recovery. But if I made a contract with her betrothed, and gave him the money with the understanding that if the marriage was performed the dowry would be acquired by the woman, but if it was not it should be returned to me; it is given as it were in consideration of something, and if this did not take place I can recover it from the betrothed husband.

(1) Where a person, through mistake, promises to the intended husband of a woman, by her direction, money which he does not owe, and the marriage takes place, he cannot avail himself of an exception on the ground of fraudulent intent; for, as the husband was transacting his own business, he is not guilty of fraud, and should not be deceived, which would be the case if he were compelled to take a wife who was without a dowry. Therefore, the aforesaid party has a right of action for recovery against the woman, and in it he can demand from her what he gave her husband, or that he shall be released from liability if he has not yet made payment. But if the husband should bring an action to recover the money after the marriage has been dissolved, the exception should only be a bar with reference to the amount which the woman would have received.

10. Javolenus, On Plautius, Book I.

Where a woman wishing to give a dowry to the man whom she intends to marry releases him from liability for the money which he owes her, and the marriage does not take place, she can very properly bring suit against him to recover the money; because it makes no difference, since he received it without consideration, whether it was actually paid to him or he obtained a release for it.

11. Julianus, Digest, Book X.

Where an heir who is directed by the decision of a freedman to erect a monument for a certain sum, pays the money to the freedman, and he, having received it, does not erect the monument, he will be liable to an action for the recovery of the money.

12. Paulus, On the Lex Julia et Papia, Book VI.

Where anyone brings an action for a donatio mortis causa on the recovery of the party from sickness, he can claim also the produce of the property donated, the children of female slaves, and anything else which may have accrued to the property donated.

13. Marcianus, Rules, Book III.

Where a son brings any property into hotchpot for his brother as if he were about to institute proceedings for the possession of the estate, and does not do so; Marcellus says in the Fifth Book of the Digest, that he is entitled to an action to recover it.

14. Paulus, On Sabinus, Book III.

Where a party pays money which he does not owe to one who falsely represents himself as an agent, the money cannot be recovered from the agent unless his alleged principal ratifies the transaction; but, as Julianus states, the principal himself would be liable. Where, however, the principal does not ratify the act, then if the money paid had been actually due, it can be recovered from the alleged agent himself; since an action for the recovery of money paid where there was no debt is not based on this fact, but on the ground that it was paid on account of something which did not take place, and no ratification was made; or suit may be brought because the false agent committed a theft of the money, since he can not only be sued for theft but also in a personal action for recovery.

15. Pomponius, On Sabinus, Book XXII.

Where one of your slaves was suspected of theft by a certain Attius, and you surrender the slave to be put to torture, under the condition he should be returned to you, if he were found to be not guilty; and then Attius delivered him to the Prefect of the Watch as one who was caught in the act, and the Prefect of the Watch inflicted the extreme penalty upon him; you are entitled to an action against Attius on the ground that he was obliged to deliver you the slave, because he was required to do this before his death.

Labeo says that you are entitled to an action for production, since Attius is responsible for preventing him from being produced. Proculus, however, says that for Attius to be obliged to deliver the slave you must have made him his slave, in which instance, you could not bring an action for his production; but if he had still remained yours, you could bring an action against Attius for theft, because he was making use of the property of another in such a way that he must have been aware that he was doing so against the will of the owner, or that if the latter had been aware of it he would have forbidden it.

16. Celsus, Digest, Book III.

I paid you a sum of money on the condition that you should deliver Stichus to me; is this kind of a contract one of incomplete purchase and sale, or does no other obligation arise from it than would from property given in consideration of something which did not take place? I am rather inclined to adopt the last opinion; and therefore, if Stichus had died, I could recover the amount which I gave on the condition that you would deliver Stichus to me. Suppose, for instance, that Stichus belonged to some one else, but you, nevertheless, delivered him to me; I can recover the money from you because you did not transfer the ownership of the slave to the party who received him; and, again, if Stichus is your property, and you are not willing to give security against his recovery by anyone having a better title, you will not be released so that I cannot bring suit to recover the money from you.

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TITLE V. CONCERNING THE ACTION FOR RECOVERY WHERE THE CONSIDERATION IS IMMORAL OR UNJUST.

1. Paulus, On Sabinus, Book X.

Everything which is given is parted with either with some purpose in view or for a consideration; and where it is given for some purpose it may be either immoral or honorable, and where it is immoral, the immorality may either attach to the giver and not to the receiver, or it may attach to the receiver and not the giver, or it may attach to both.

(1) Hence where anything is given for an honorable purpose, an action can be brought for its recovery only where the purpose for which it was granted was not accomplished.

(2) Where, however, the receiver is the one guilty of immorality, even though the purpose be accomplished, an action can be brought for the recovery of the gift.

2. Ulpianus, On the Edict, Book XXVI.

For example, suppose I gave you something to induce you not to commit sacrilege or theft, or not to kill a man. In this instance, Julianus says that if I give it to you to prevent you from killing a man, an action for its recovery can be brought.

(1) Moreover, the rule is the same, if I gave you something on the condition that you would return to me property which I deposited with you, or would restore to me certain documents.

(2) Where, however, I gave you something on the condition that the judge would decide in my favor in a good cause, it has indeed, been stated that there will be ground for an action for recovery, but he who does this commits a crime, as he is held to corrupt the judge; and recently our Emperor decreed that he should lose his case.

3. Paulus, On Sabinus, Book X.

Where both the giver and the receiver are guilty of immoral conduct, we hold that suit cannot be brought for the recovery of the donation; as, for instance, where money is paid in order that an unjust judgment may be rendered.

4. Ulpianus, On the Edict, Book XXVI.

The same rule applies where money is paid in consideration of prostitution, or where a party who has been caught in adultery purchases immunity, as no action for recovery will lie; and this is the opinion of Sabinus and Pegasus.

(1) Moreover, where a thief pays to avoid being surrendered, since, in this instance, as both parties are guilty of immorality, no action for recovery will lie.

(2) Where, however, only the receiver is guilty of immoral conduct, Celsus says an action for recovery can be brought; for example, where I pay you to prevent you from injuring me.

(3) Money paid to a harlot, however, cannot be recovered, as Labeo and Marcellus state; but the principle is not the same, as the question is not whether there is immorality on both sides, but that it exists only on the part of the giver; as the woman acts in an immoral manner because she is a harlot, but she is not immoral when she accepts the money since she is a harlot.

(4) If I give you something in return for information, for example, in order that you may reveal the whereabouts of my fugitive slave, or tell me where a thief who has stolen my property may be found; suit cannot be brought for what I have, because you, in receiving it, were not guilty of immorality. But if you accept money from my fugitive slave to prevent you from giving information respecting him, I can bring an action against you to recover said money, just as if you were a thief; and if the thief himself, or the companion of a thief, or of a fugitive slave, received money from me in return for information; I am of the opinion that there will be ground for an action for the recovery of the same.

5. Julianus, On Urseius Ferox, Book III.

Where anyone receives money from my slave to prevent him from giving information concerning a theft which he committed, whether he gives the information or not, Proculus says that an action will lie for the recovery of the money.

6. Ulpianus, On Sabinus, Book XVIII.

Sabinus always approved of the opinion of the ancient authorities, namely, that where anything is in the hands of a party illegally, it can be recovered by a personal action; and Celsus also concurs in this opinion.

7. Pomponius, On Sabinus, Book XXII.

Where money has been obtained through a stipulation which was extorted by force, it is established that an action will lie for its recovery.

8. Paulus, Questions, Book III.

If you should promise Titius anything for an immoral consideration, you can bar him by an exception on the ground of malicious contrivance, or in factum; nevertheless, if you give it, you cannot bring an action for its recovery; since the more recent event, that is to say the stipulation, is disposed of, having been made of no effect by reason of the exception, and the former event, that is to say the immorality, remains. And, moreover, if the position of both the giver and the receiver is immoral, that of the possessor is preferable; and hence an action for recovery will not lie, although the money was paid on account of the stipulation.

9. The Same, On Plautius, Book V.

If I lend you clothes to be used by you, and afterwards I pay money for their return, it has been held that I can properly proceed by means of a personal action for recovery; because, although the money was paid for a certain purpose, and the purpose was accomplished, nevertheless, it was improperly paid.

(1) If you receive money from me as an incentive for you to return property which was rented to you, or sold to you, or placed in your custody, I will be entitled to an action against you based on lease, sale, or mandate; but if I paid you the money to induce you to deliver to me something which you owed by reason of a will or a stipulation, there will be merely a right to bring suit for recovery of the money paid you for this purpose; as was stated by Pomponius.

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TITLE VI. CONCERNING AN ACTION FOR THE RECOVERY OF MONEY WHICH IS NOT DUE.

1. Ulpianus, On the Edict, Book XXVI.

Now let us consider the case of money which was paid without being due.

(1) And, indeed, if anyone ignorantly pays what is not due, he can recover the same by means of this action; but if he paid it being aware that he did not owe it, an action for its recovery will not lie.

2. The Same, On Sabinus, Book XV.

Where anyone pays with the understanding that if it should appear that the money was not due, or that the Lex Falcidia is applicable, it shall be returned; an action for recovery will be available, for an agreement has been made between the parties.

(1) Where anything is paid in compliance with the terms of a will, but the will afterwards proves to be forged, or inofficious, or invalid, or should be set aside, it can be recovered; and if, after a long time, a debt should come to light, or codicils which have been long concealed should be produced, which contain a revocation of legacies already paid, or the legacies are diminished because bequests have been left to others; the same rule applies. This is the case because the Divine Hadrian stated in a Rescript that where an inofficious or forged will exists, an action should be granted the party in whose favor a decision was rendered with reference to the estate.

3. Papinianus, Questions, Book XXVIII.

The same course should be pursued where, after the legacies are paid, some new or unexpected event transfers the estate to others; for example, where a posthumous child is born whom the heir did not know was in its mother's womb, or where a son who was in the hands of the enemy and whom his father erroneously thought to be dead, returns; for the Emperor Titius Antoninus stated in a Rescript that a prætorian action should be granted to a posthumous son or to one to whom the estate had been awarded against the parties who had received legacies, because a possessor in good faith is liable for the amount by which he became more wealthy, and the risk of claims of this kind does not attach to a party who makes payment without being guilty of negligence.

4. Paulus, On Sabinus, Book III.

The Divine Hadrian stated in a Rescript that the same rule would apply if another will should be produced.

5. Ulpianus, On Sabinus, Book XVI.

It is no new doctrine that, where one party pays, another can bring an action to recover the money; for where a minor under twenty-five years of age, without proper consideration, enters upon an estate, and obtains complete restitution after the legacies have been paid; then, as set forth in the Rescript to Arrius Titianus, the right of action for recovery does not belong to him, but to the party entitled to the property of the estate.

6. Paulus, On Sabinus, Book III.

If your agent pays a debt which was not due, and you do not ratify his act, then, as Labeo states in the Books styled "Last Works," an action can be brought to recover the money, but if it was due, Celsus says it cannot be recovered; because where anyone appoints an agent to transact his business, it is held that he also directs him to pay his creditor; and it is not necessary afterwards to wait for him to ratify his acts.

(1) Labeo also says that if money which is not due is paid to an agent and his principal does not ratify his act, suit can be brought to recover it.

(2) Celsus says that anyone who pays a debt to an agent is immediately released, and no ratification should be considered; but where the agent receives what is not due, then ratification is required, because he would be held not to have directed that anything should be done with reference to the collection of this claim, and therefore, if his act is not ratified, suit must be brought against the agent for its recovery.

(3) Julianus says that neither a guardian nor an agent can bring an action for the recovery of money after they have paid it; and that it makes no difference whether they paid out their own money or that of the ward or principal.

7. Pomponius, On Sabinus, Book IX.

Where money which is not due is paid through mistake, suit may be brought for the recovery of the same money, or of an equal amount.

8. Paulus, On Sabinus, Book VI.

Where a third party pays a wife on account of a husband who is insolvent, he cannot bring suit to recover the money, since it is, to all intents and purposes, a debt due to the wife.

9. Ulpianus, On the Edict, Book LXVI.

For even if a husband, when he is absolutely unable to pay his debts, gives his wife the dowry, he is in such a position that he cannot bring an action to recover it.

10. Paulus, On Sabinus, Book VII.

He who has undertaken to pay a debt on a certain day is a debtor to such an extent that, if he pays the debt before the prescribed time, he cannot bring an action to recover the money.

11. Ulpianus, On Sabinus, Book XXXV.

If a party against whom an action De peculio is brought should, through carelessness, pay more than there is in the peculium, he cannot bring an action to recover it.

12. Paulus, On Sabinus, Book VII.

If I give you an usufruct in my land, thinking erroneously that I owe it to you, and I should die before bringing an action for its recovery, the right to bring the action will pass to my heirs.

13. The Same, On Sabinus, Book X.

Even a slave may be bound by a natural obligation; hence, if anyone should pay a debt for him, or the slave himself should do so after being manumitted (as Pomponius says), he cannot recover the money out of the peculium the free administration of which he enjoys; and on this account a surety who had been accepted for the slave will be liable, and a pledge given on his account will be retained; if, however, the slave who has the administration of his peculium gives anything as a pledge for what he owes, he should be granted a prætorian action to recover it.

(1) Moreover, where a ward borrows money without the authority of his guardian, becoming more wealthy thereby, and pays the same after he reaches puberty, he cannot bring an action for its recovery:

14. Pomponius, On Sabinus, Book XXI.

For it is only in accordance with natural equity that no one should profit pecuniarily by the injury of another.

15. Paulus, On Sabinus, Book X.

The right to recover anything which was not due is based upon natural law, and therefore the action will include any addition to the property, for instance, a child born of a female slave, or any land added by alluvium; and, indeed, it also includes crops gathered in good faith by the party to whom delivery was made.

(1) Moreover, where money belonging to another person was paid, an action will lie in order to obtain possession of the same; just as if I, laboring under a false impression, should deliver possession of certain property to you thinking that I was obliged to do so, I could bring suit for its recovery.

But if I should have made the possession yours, so that you could not be deprived of the property on the ground of prescription, even then I could properly bring an action against you for the recovery of money which had been paid without being due.

(2) Even if an usufruct in the property delivered belongs to another, I could bring suit against you for recovery leaving out the usufruct.

16. Pomponius, On Sabinus, Book XV.

Where a debt dependent upon a condition is paid by mistake, then, so long as the condition is pending, suit can be brought for its recovery; but if the condition has taken place, an action cannot be brought for it.

(1) But where something is to be delivered at an uncertain time, it cannot be recovered after that time has elapsed.

17. Ulpianus, On the Edict, Book II.

For, if I promise to give something when I die, and I give it before that time, Celsus says that I am not entitled to an action for its recovery; and this opinion is correct.

18. The Same, On Sabinus, Book XLVII.

Where anything is owing upon a condition which must inevitably take place, it cannot be recovered by an action after it has been delivered; although if it had to be given under another condition whose fulfillment was uncertain, an action could be brought for its recovery, even if it had been previously delivered.

19. Pomponius, On Sabinus, Book XXII.

Where a debtor is released from liability by way of inflicting a penalty of the person to whom the debt is due, the natural obligation remains unimpaired; and therefore if the money is paid it cannot be recovered.

(1) Even though a party may receive payment of a debt, due to him, still, if he who pays gives what he does not owe, there will be a right of action for its recovery; for instance, where anyone erroneously thinks that he is an heir or the possessor of the property of an estate pays a creditor of the same, in this instance, the true heir will not be released, and the party who paid can bring an action for recovery; for although anyone may receive something which is due to him, still, if the party who pays it pays what is not due, an action for its recovery will lie.

(2) If I am under the false impression that I owe a debt, and I pay it in coin, part of which belongs to another and part of it to me, I can bring an action for half the amount, and not for half of each share.

(3) If I think that I am obliged to deliver either Stichus or Pamphilus, while in fact I am obliged to deliver Stichus, and I deliver Pamphilus; I can bring an action for property given which was not due; for I cannot be held to have made the delivery in payment of what I owe.

(4) Where two debtors who owed ten aurei together paid twenty, Celsus says each of them can bring an action for the recovery of five; because since they owed ten, and paid twenty, what both paid over and above what was due both can sue to recover.

20. Julianus, Digest, Book X.

If a debtor and a surety unite in payment of a debt, they do not, in this instance, differ from two debtors who promise; wherefore, all that has been said with reference to the latter can also be applied to the former.

21. Paulus, Questions, Book III.

It is evident that where you state that there are two parties bound by the same obligation, not for the payment of the same sum of money but for the performance of some other act; for instance, the delivery of Stichus or Pamphilus, and the two were delivered together — or perhaps a toga, or a thousand denarii — it cannot be said that the same rule applies with respect to an action for recovery, that is that they can bring an action for separate shares; because in the beginning they could not have discharged the obligation in that way. Therefore in this case the creditor has the right to elect to which of the parties he will make the delivery, in order that the other may be prevented from bringing suit.

22. Pomponius, On Sabinus, Book XXII.

Moreover, if I think that I have promised anything to you or to Titius, while, in fact, no promise was made to either, for Titius was not personally included in the stipulation, and I deliver the article to Titius, I am entitled to an action to recover it from him.

(1) Where I, through mistake, conveyed a tract of land as free, when I ought to have reserved a right of way; I am entitled to a right of action for the recovery of an uncertain amount, in order that a right of way may be granted me.

23. Ulpianus, On Sabinus, Book XLIII.

Pomponius submits this nice question, namely: where anyone suspects that a compromise has been effected by a party to whom he is an heir, or by someone of whom he is the agent, and he delivers property in compliance with the terms of the presumed compromise, while in fact none was made; is there ground for an action for recovery? He says that there is, as the delivery of the property was made for a reason erroneously supposed to exist.

I think that the same rule applies where the compromise was not completed with reference to the matter on account of which delivery was made, and the same principle will prevail where the compromise is annulled.

(1) Where a party makes a compromise after a decision is rendered, and pays in compliance with the same, he can bring an action for recovery, because it has been held that the compromise is void; for this the Emperor Antoninus, together with his Divine Father, stated in a Rescript. Nevertheless, whatever has been paid in compliance with the terms of such a compromise can be retained, and credit given for the same in an action brought to enforce the judgment.

What then would be the case if an appeal was taken, or if it should be uncertain whether a decision was rendered, or whether it was valid? The better opinion is that the compromise remains in force; for it must be held that there is ground for these rescripts only where the compromise has reference to an absolutely certain decision which can, under no circumstances, be amended.

(2) Moreover, if payment was made on account of a compromise relative to a provision for maintenance left by will, it is evident that an action can be brought for the recovery of what was paid, because the compromise is annulled by a decree of the Senate.

(3) If anyone, after having entered into a compromise, nevertheless, has judgment rendered against him; while this is indeed wrongfully done, still the judgment is valid. The party, however, can plead an exception on the ground of fraud against anyone desiring to join issue — where, indeed, he made the compromise before issue was joined — but if this was done afterwards, he can, nevertheless, make use of an exception on the ground of bad faith committed subsequently; for he acts fraudulently who proceeds in spite of a compromise and still demands payment; and hence, if the defendant has judgment rendered against him, he can bring an action for the recovery of whatever he paid in compliance with the compromise. It is certain that he paid it for a consideration, and when anything is paid for a consideration it is not customary for an action to be brought, if the consideration takes place; but, in this instance, it cannot be held that the consideration took place, because the party did not abide by the compromise. Where then the right of action for recovery arises, there is no ground for an exception founded on the compromise, for the suit for recovery and the exception cannot both be operative.

(4) Where any law prescribes at the beginning that an action for double or quadruple damages will lie; it must be held that suit can be brought for the recovery of money which has been paid under the false impression that this was authorized by the law.

24. The Same, On Sabinus, Book XLVI.

Where a party who could protect himself by a perpetual exception promises to give something in order to be released, when he knew that he could take advantage of this exception; he cannot bring an action for recovery.

25. The Same, On Sabinus, Book XLVII.

Where two parties became sureties for a debtor for ten aurei, and the debtor afterwards paid three, and then each of the sureties paid five, it was decided that he who paid last can bring suit for the recovery of three aurei; and this is reasonable, because after three had been paid by the debtor, seven remained due, and when these were paid, three were paid which were not due.

26. The Same, On the Edict, Book XXVI.

Where anyone does not pay the principal but pays interest which is not due, he cannot bring an action for its recovery if the principal on which he paid the interest was due; but if he should pay more than the legal rate, then the Divine Severus stated in a Rescript (which governs the practice of the present time) that he could not bring an action for its recovery, but credit will be given on the principal; and if he afterwards pays the principal, an action can be brought as for the recovery of principal not due. Hence, if the principal should be paid first, any interest above the legal rate which has been collected can be recovered as being principal which was not due. What would be the case if both should be paid at the same time? It can be said that, in this instance also, there would be ground for an action for recovery.

(1) Interest, however, above twofold the amount of the principal, or compound interest, cannot be inserted in a stipulation or collected, and if paid, it can be recovered by an action; just as interest on future interest can be.

(2) Where a party, erroneously believing that he owes a certain sum as principal, pays interest upon it; he can bring an action for its recovery and is not held to have knowingly paid what was not due.

(3) We understand the payment of money which is not due not only to refer to what is not owed at all, but to such as cannot be recovered because of a perpetual exception; wherefore, in this instance also, an action can be brought for its recovery, unless the party who paid it was aware at the time that he was protected by an exception.

(4) If I owe a hundred aurei, and I transfer a tract of land which is worth two hundred, just as if I was indebted for that amount; Marcellus states, in the Twentieth Book of the Digest, that an action to recover the land will lie, and the stipulation for a hundred aurei will remain in full force; for, although it is established that where property is delivered instead of money it may operate as a release of the obligation, still, if property of greater value is delivered through mistake, on account of a debt, no inseparable union arises between a share in the property and the sum of money, since no one is compelled against his will to accept joint ownership; but a right of action to recover the entire property remains, and the obligation is unimpaired; the land, however, will be retained until the money which is due has been paid.

(5) Moreover, Marcellus says that where a party who owes money delivers oil of greater value than the debt, as though he owed a larger amount, or if he gives oil as if owing a larger quantity, he can bring an action to recover the excess of the oil, but not all of it; and that, on this account, his obligation is terminated.

(6) Marcellus also says that, if I am entitled to part of a tract of land, and an appraisement is made as if I was entitled to all of it, and payment is made to me in money equal to the value of the entire tract, the whole amount of the purchase money cannot be recovered, but only the value of that part of the land to which I had no right.

(7) To such an extent does a perpetual exception give a right of action for recovery, as Julianus states in the Tenth Book, that if the purchaser of a tract of land directs his heir to release the vendor from the obligation arising from the sale, and afterwards the vendor, being ignorant of this, transfers the property, he will be entitled to an action to recover the land.

The same rule applies where a testator directs the release of his debtor, and the latter, not knowing this, pays the debt.

(8) Where anyone indebted with reference to the peculium of a son under paternal control pays him the debt, he will be released if he did not know that the latter had been deprived of his peculium; but if he knew it, and made payment, he will not be entitled to an action for recovery because he knowingly paid what was not due.

(9) If a son under paternal control borrows money contrary to the provisions of the Macedonian Decree of the Senate, and pays the same, and afterwards, having become the heir to his father, takes steps to recover the money; he will be barred by an exception from prosecuting the action for recovery.

(10) If anyone makes a payment erroneously under the impression that an award has been made against him in an arbitration, he can bring an action to recover the money.

(11) Where money which is not due is paid either to an heir or the possessor of the property of an estate, suit can be brought for its recovery if the party defends his right to the estate; but if he does not do so, suit can also be brought even for the recovery of money paid which was due.

(12) A freedman who incorrectly thought that he owed services to his patron performed them, but Julianus states, in the Tenth Book of the Digest, that he is not entitled to an action for recovery even though he performed the services thinking that he was obliged to do so; for a freedman is under a natural obligation to perform services for his patron. But where services of this kind were not performed for a patron, but the latter having asked him to perform some duty, he compromised with the patron for a sum of money and paid it, he cannot bring suit for its recovery. Where, however, he did not perform services for his patron which could be classed under the head of duty, but which were those of an artist; for instance, the painting of pictures and other things of this description, he, thinking that he was obliged to perform them, it should be considered whether he is entitled to an action for recovery. Celsus, in the Sixth Book of the Digest, holds that the reasons for the performance of the services are of such a character that they may not be rendered for or by the same person; since very frequently the strength of the man, or the time, as well as the circumstances, will change the ground for requiring them; and therefore a party may not be able to render them, even if he should be willing to do so.

He further states that services of this kind are subject to appraisement; and sometimes we are permitted to provide one thing and bring an action for the recovery of another; as, for example, suppose I convey land to you which I was not obliged to convey, and I bring an action to recover the crops; or I give you a slave whom I was not obliged to give you, and you sold him for a small amount without fraudulent intent; you are certainly only bound to refund as much of the purchase-money as you may have; or suppose I have increased the value of a slave at my own expense; should not these matters admit of an appraisement? He also says that in the case which is proposed a suit for recovery can be brought for the amount for which the services of the slave could have been hired.

It is asked by Marcellus, in the Twentieth Book of the Digest, where a claim for services on the ground of duty has been assigned by the patron, whether the freedman is not obliged to render such services? He says he is not obliged to do so, unless they relate to a trade and should be performed for another if the patron orders this to be done, but where the freedman performs services on the ground of duty, the claim for which has been assigned, he cannot bring an action for recovery against the creditor for whom he performed such services (where this was done with reference to another and the creditor had received that to which he was entitled) nor can he bring an action against his patron, because the services were due to him by natural obligation.

(13) Where anyone stipulates with me for ten aurei or Stichus, and I pay him five, the question arises can I bring an action for recovery? This question depends upon the facts as to whether I am not released to the amount of five aurei; for, if I am, an action for recovery will not lie; but, if I am not released, can such an action be brought? It has, however, been established (as Celsus states in the Sixth Book and Marcellus in the Twentieth Book of the Digest) that the claim for half an obligation cannot be annulled; so that if a party pays five aurei, the question as to whether he will be released must remain in abeyance, and he may be sued for the remaining five aurei or Stichus. Then, if he pays the remaining five, it must be held that he has discharged the original indebtedness, and if he delivers Stichus, he can bring an action to recover five aurei as not having been due. Thus his later payment will establish whether, when the first five were paid, they were due or not. But if after the five aurei were paid, and Stichus was delivered, I prefer to keep the five aurei and return Stichus; Celsus asks whether I should be heard? He thinks that, in this case there is ground for an action to recover five aurei, for even though both payment and delivery of the slave may have been made simultaneously, I should be permitted to retain whichever I prefer.

(14) He also says that if there are two heirs of the stipulator, that five aurei cannot be given to one of them and a share in Stichus to the other. The same rule applies where there are two heirs of the promisor; and, according to this, there will be no release unless either five aurei or a share in Stichus is given to each of them.

27. Paulus, On the Edict, Book XXVIII.

Where anyone thinking that he is obliged to make payment at some certain place, pays something that is not due, he can bring an action to recover the money anywhere that he chooses; for the special right of action for recovery does not follow the mistaken opinion of the person who pays.

28. The Same, On the Edict, Book XXXII.

Where a judge discharged a party improperly, and he who is discharged pays the debt voluntarily, he cannot bring an action to recover the money.

29. Ulpianus, Disputations, Book II.

Sometimes the personal condition of the party establishes a ground for recovery; for example, where a ward without the authority of his guardian, or an insane person, or one who has been forbidden the management of his property, makes payment; for, generally speaking, there is no doubt that there is ground for an action under these circumstances; and where any money remains, suit can be brought for its recovery, but if it has been spent there will be ground for a personal action.

30. The Same, Disputations, Book X.

Where anyone is both creditor and debtor in a case in which no set-off can be allowed, and he pays the debt; he has no right of action to recover the money because it was paid when it was not due, but he can bring an action for his own debt.

31. The Same, Opinions, Book I.

Where anyone, through mistake, makes provision for payment to a creditor of a larger amount than his share of the estate warrants, he has a right of action for recovery on the ground of a promise made for payment of what was not due.

32. Julianus, Digest, Book X.

Where anyone is obliged to deliver Pamphilus or Stichus, and delivers both of them at the same time, and afterwards either both or one of them should happen to die, he cannot recover anything; for what still remains will be applied to the payment of the obligation.

(1) Where a surety enters into an agreement that suit shall not be brought against him for money which is due, but through carelessness he pays it, he can bring a personal action against the stipulator to recover it, and therefore the principal debtor will remain liable, but he himself will be protected by his exception; nor does it make any difference whether the surety or his heir makes payment. If, however, the principal debtor should become heir to the surety, and pay the debt, he cannot bring an action for the recovery of the money, and he will be released.

(2) Where a woman believes that she is obliged to transfer property as dowry, and gives anything by way of dowry, she cannot bring suit for its recovery; for, leaving her mistaken opinion out of consideration, the question of duty remains, and what is paid on this account cannot be recovered by an action.

(3) Where a party promises in general terms to deliver a slave, the case is the same as where one is bound to give a slave or to pay ten aurei; and therefore if he delivers Stichus, thinking that he had promised to do so, he can bring an action for his recovery, and he will be released by giving any other slave whatsoever.

33. The Same, Digest, Book XXXIX.

If I build on your unoccupied land, and you obtain possession of it afterwards, there will be no ground for an action for recovery, because no business contract was made between us; for he who pays money which is not due, by this act transacts business to a certain extent, but when the owner of land takes possession of a building erected thereon by another, no business transaction takes place; for, in fact, even if a person who built upon the land of another should himself deliver possession, he would not have a right of action for recovery, because he would not, in any respect, have transferred the property to him who received it, as the owner would merely have obtained possession of what was already his. Therefore it is established that if the party who thought himself to be an heir should prop up a house which was part of the estate, he could be reimbursed for his expenses in no other way than by retaining the property.

34. The Same, Digest, Book XL.

Where an entire estate has been left in trust to some one and, in addition to this, a tract of land if he should pay ten aurei to the heir, and the heir states that he is doubtful as to the solvency of the estate, and relinquishes it in accordance with the Trebellian Decree of the Senate; the party aforesaid will have no reason to pay him the money, and hence he can recover by means of an action whatever he may have given for the purpose of complying with the condition.

35. The Same, Digest, Book XLV.

Where anyone pays a sum of money for the reason that no defence was made to an action for its recovery, even though he subsequently may be ready to set up a defence, he cannot recover what he has paid.

36. Paulus, Epitomes of the Digest of Alfenus, Book V.

The slave of a certain party without the knowledge of his master lent a dish, and the party to whom he lent it pledged it and took to flight, and he who received it in pledge said that he would not return it unless he received the money; which was paid to him by the slave, and he returned the dish. The question arose whether an action could be brought against him for the recovery of the money? The answer was that if he who received the dish in pledge knew that it belonged to another, he had rendered himself liable for theft; and therefore if he received money from the slave for the purpose of redeeming stolen property, an action could be brought against him. But if he did not know that the article which was deposited with him belonged to another, he is not a thief; and besides, if the money had been paid to him by the slave in behalf of the party from whom he had received the pledge, suit could not be brought against him for the recovery of the same.

37. Julianus, On Urseius Ferox, Book III.

I, being ignorant of the fact, purchased my own slave from you, and paid you the money for him. I am perfectly convinced that I am entitled to an action against you for the recovery of the money, and that such a suit can be brought against you for that purpose, whether you knew that the slave was mine, or were not aware of it.

38. Africanus, Questions, Book IX.

Where two brothers were under the control of the same party and one of them borrowed money from the other and paid it to him after the death of their father, the question arose can it be recovered by an action? The answer was that there was no doubt that suit might be brought for the amount of the share to which the heir was entitled to inherit from his father; but with reference to the share which his brother was to inherit, he could bring suit only in case that much had come into the hands of the brother out of his own peculium; for the natural obligation which existed was held to have been removed by the very fact that his brother had obtained part of the former's peculium, and therefore, if the peculium had been previously bequeathed to the son, that is to say, the same one who was indebted to his brother, a deduction of this amount could be made by the latter.

This exactly coincides with the opinion approved of by Julianus, that if the party had owed anything to a stranger and it had been collected from him after the death of his father; he would be entitled to a right of action for partition of the estate, in order to recover the amount from his co-heir to the extent that the creditor would have been able to collect from them by an action De peculio.

Therefore, where proceedings are instituted in an action for partition of the estate, it is only just for the peculium to be divided, so that the party shall be indemnified by his co-heir with reference to a certain portion of it; and hence, as he could defend himself against a stranger, much more should he be indemnified against what he owed his brother.

(1) The question has been asked whether, where a father lends money to his son and the latter pays it after being emancipated, he can bring an action for the recovery of the same? The answer was that if no part of the peculium remains in the possession of the father, an action cannot be brought by the son, and what proves that the natural obligation still exists is that if a stranger brought an action De peculio within a year, the father could deduct what the son owed him.

(2) On the other hand, where a father owed money to his son and paid the latter after he has been emancipated, he cannot recover it; for it is proved by the same argument that the natural obligation still exists in this instance, because if a stranger should bring an action De peculio within a year, the peculium would be held to include what the father owes him.

The same rule applies where a foreign heir pays a disinherited son what his father owed him.

(3) I received security for a legacy, when the surety paid me it appeared that I had no right to the legacy; and it was held that the surety could recover the money by an action.

39. Marcianus, Institutes, Book VIII.

Where anyone, when he can have security furnished him by the beneficiary of a trust, does not do so; the Divine Severus and Antoninus stated in a Rescript that he can bring an action to recover whatever he has paid over and above the amount.

40. The Same, Rules, Book III.

Where anyone is entitled to a perpetual exception, he has a right of action to recover anything paid by mistake; this, however, is not universally applicable, for where an exception is granted in behalf of the party against whom proceedings were instituted, he can bring suit to recover what he paid, as happens in the case of securities under the decree of the Senate; but where the exception is granted by way of grudge against the party to whom the money is due, whatever has been wrongfully paid cannot be recovered; for example, where a son under parental control borrows money against the Macedonian Decree of the Senate, and afterwards, having become his own master, pays it, he cannot bring an action to recover the same.

(1) Where a part of a house is left in trust from a certain day, and before the time when the trust vests, it burns, and the heir rebuilds it at his own expense, it is established that the expense of the same must be deducted from the amount included in the trust; and if the heir delivers the house without deducting the said expense, an action may be brought for the recovery of an uncertain amount on the ground that the heir paid more than was due.

(2) If a patron enters into an agreement with his freedman that suit shall not be brought against him for services, and anything should afterwards be paid by the freedman, suit may be brought to recover the same.

41. Neratius, Parchments, Book VI.

Where a ward, without the consent of his guardian, promises in a stipulation to make payment and does so, he will have a right of action for recovery; for the reason that he did not owe the money even under natural law.

42. Ulpianus, On the Edict, Book LXVIII.

It is not customary for penal sums which have been paid to be recovered by an action.

43. Paulus, On Plautius, Book III.

Where a party swears that he is not obliged to pay, all controversy is terminated, and it must be stated that, in this instance, money which has been paid can be recovered.

44. The Same, On Plautius, Book XIV.

An action for recovery cannot be brought against the party who has received that which is his own; even though payment was made by another person than the real debtor.

45. Javolenus, On Plautius, Book II.

Where a party sold an estate and transferred it to the purchaser, but failed to retain what the deceased owed him, he can bring an action for its recovery; as anything which is paid in excess of what is due can properly be recovered by a personal action.

46. The Same, On Plautius, Book IV.

A party who pays in the name of the heir and with money belonging to the heir, legacies which are not due, cannot himself bring an action for the recovery of what he paid; but if he paid the money of the heir without the knowledge of the latter, then the owner of the money, it is held, can properly bring suit to recover it.

The same rules apply to corporeal property of all kinds.

47. Celsus, Digest, Book VI.

You promised, through a mistake, to pay money which was not due, and the party who was your surety paid it. I am of the opinion that, if the surety paid it in your name you will then be liable to the surety, and the stipulator will be liable to you; for it is not to be expected that you should first ratify his act, since you may be held to have directed the surety to make payment in your name. If, however, the surety made payment in his own name of a sum which he did not owe, he can bring an action against the stipulator as having paid money which was not due under the Law of Nations; but where there is a deficiency in the amount which he can recover from the party whom he paid, this he can recover from you by an action on mandate; provided he who was bringing suit in ignorance of the facts should not be barred by an exception.

48. The Same, Digest, Book VI.

Where anyone promises that, if something is done by him or when it has been done, he will pay ten aurei, and he pays the sum that he promised before the act is performed; he will not be held to have done what he promised, and therefore he can bring an action to recover the money.

49. Modestinus, Rules, Book III.

Suit can be brought for the recovery of money only against those to whom the money has been in some way paid, and not against those whom the payment benefits.

50. Pomponius, On Quintus Mucius, Book V.

Where anyone knowingly pays what he does not owe with the intention of afterwards bringing suit to recover it, he has no right of action.

51. The Same, On Quintus Mucius, Book VI.

In those cases in which we have a right of retention of property but no right of action to recover the same, if we deliver said property we cannot sue to recover it.

52. The Same, On Quintus Mucius, Book XXVII.

We make payment either for a good reason or for a purpose, and the reason may depend upon what has already passed, for example, where I make payment because I have obtained something from you or something has been done by you, so that, even if the reason is nonexistent, no action will lie for the recovery of the money; but payment for a purpose is made where some act is to be performed, and if this does not take place, a suit for the recovery of the money will lie.

53. Proculus, Epistles, Book VII.

A master gave his slave freedom by his will, on condition of his paying ten aurei, and the slave, not knowing that the will was void, paid me the ten aurei; the question arises, who has a right of action to recover the money? Proculus answered that if the slave paid the money out of his peculium, when permission to do so had not been granted him by his master, the money remains the property of his master, and he can bring suit for the recovery of the same by an action in rem. But where another party, at the request of the slave paid me his own money, it becomes mine, and the owner of the slave on whose account it was paid can bring an action for its recovery; but a more indulgent, as well as a more practical method would be for the party who paid the money to himself recover what belongs to him directly from me.

54. Papinianus, Questions, Book II.

Where payment is made through mistake, on grounds which are not valid in law or have no force or effect, an action for recovery can be brought.

55. The Same, Questions, Book VI.

Where a depredator rents urban estates, what he receives as rent cannot be recovered in an action by the party who paid it, but the trespasser will be liable to the owner. The same rule applies to money paid for transportation in ships which a person of this kind leased or controlled, as well as to compensation to slaves whose services were leased by him; for, indeed, where a slave who is not hired out pays the price of his services to a trespasser, as if he were his owner, the money paid does not become the property of the receiver. If such a party receives money for transportation by ships which he hired out as the owner, or the rent of tenants, he will be liable for money paid which was not due to him, and the party who pays is not released by doing so; so that it is usually held that suit can be brought to recover the profits from a trespasser, and this only can take place where the profits belonged to the owner.

56. The Same, Questions, Book VIII.

It is sufficient to establish a case of money not due where it is uncertain whether the defence based on an exception is temporary or perpetual. For, if the party enters into an agreement that suit shall not be brought against him until Titius becomes Consul, then, because an exception may become perpetual if Titius should die, which if Titius should obtain the consulship will be temporary, it may be stated with perfect correctness that whatever is paid in the meantime can be recovered. For as an agreement for money to be paid at a certain time does not any more give rise to an action for recovery¹ than if the debtor made payment at the appointed time; so it is evident that where there is a lawful defence which is based on an uncertain ground a conditional obligation exists.

¹ That is, if the debtor pays before the prescribed time has elapsed, and is thereby discharged from liability. — ED.

57. The Same, Opinions, Book III.

With reference to the next payment in the name of a boy who has not reached puberty, the latter has a right of action for the recovery of the money.

(1) When a creditor directs that a debt shall be paid to his agent, in this instance, if more money is paid than was due, the agent will be liable to an action for the payment of what was not owing; but if the creditor, when appointing someone to receive payment, expressly mentioned a larger sum to be paid to him, an action for the recovery of money paid which was not due will lie against the party who appointed him, and the right of action will not be held to be taken away if suit is brought against the said agent in vain.

58. The Same, Answers, Book IX.

A testator left a trust to a manumitted slave in such a way that he obtained his freedom by the will; and after he had received the money without applying to the court, he was pronounced to be freeborn. As the money left under the trust was not due, an action will lie for the recovery.

59. The Same, Definitions, Book II.

Where a surety who is legally released pays money through mistake, he will not be prevented from bringing an action for its recovery; but if the principal debtor should afterwards himself make payment by mistake, he cannot bring suit to recover, since the first payment, which was void, does not dissolve a natural or a civil obligation if the principal debtor was liable.

60. Paulus, Questions, Book III.

Julianus denied that a debtor who actually owed money could bring an action for its recovery after issue had been joined and while the suit was still pending; because he could not bring the action if he was discharged, or if judgment was rendered against him, for, even though he were discharged, he would still remain a debtor by natural law; and he states that his case would be similar to that of a party who promised that he would pay whether a certain ship came, or did not come from Asia, since occasion for payment arises from either ground.

(1) Where, however, a party who owes money absolutely, promises to pay it under a certain condition, with a view to renewal; many authorities hold that, if the money is paid while the renewal is pending, an action can be brought for its recovery, because it is still uncertain under which obligation he makes payment; and they hold that the same rule applies if we suppose that two different persons promise the same money, one absolutely, and the other under some condition, with the intention of renewing the contract. The cases, however, are not similar; as in that of the absolute and conditional stipulation, it is certain that the same party will be indebted.

61. Scævola, Opinions, Book V.

The guardians of a ward paid certain creditors of his father out of the estate of the latter, but afterwards, the property not proving to be sufficient, they caused the ward to reject the estate; and the question arises whether the creditors would be obliged to return the overplus paid them by the guardian, or whether they must return all they received? I answered that, if no fraud had been committed, nothing was due to the guardians or to the ward, but that they were liable to the other creditors for the amount of the excess of the debts which had been paid.

62. Mæcianus, Trusts, Book IV.

Where a trust has been inserted into a stipulation, even though it was not due, still, because it has been promised for the purpose of complying with an obligation by a party who was aware of the facts, it is due and payable according to law.

63. Gaius, Cases.

Neratius speaks of a possible case where a party who could not sue to recover what he had given, on the ground that he had discharged a debt, is still not released; for example, where he was obliged to deliver a certain slave, and gives one who was to be free under a certain condition; for, in this instance he is not released because he does not make the said slave the absolute property of the stipulator; still, he cannot recover him because he was paying a debt.

64. Tryphoninus, Disputations, Book VII.

Where a master owed money to his slave and paid him after he was manumitted, he cannot bring an action for its recovery; even though he paid thinking he was liable to proceedings to force him to do so, since he acknowledged a natural debt. For, as freedom exists under natural law and the domination of persons was introduced by the Law of Nations, the question as to whether a debt exists or not together with the right of action for its recovery, must be considered with reference to natural law.

65. Paulus, On Plautius, Book XVII.

In order that we may discuss the recovery of property by law in general terms, it must be understood that property is either delivered on account of a compromise, or for a past consideration, or in compliance with some condition, or for some act to be performed, or where there is no indebtedness; and in all these instances the question arises with reference to the recovery of the property.

(1) And, in fact, with reference to its delivery on account of a compromise, if there is not good reason for it, no action will lie for its recovery, since if there was a contest, the fact that the contest has been abandoned is held to be a good ground; but where evident fraud is disclosed and the compromise is void, the action for recovery will be granted.

(2) Moreover, where something is given for a past consideration, for example, because I thought that I had been assisted in my business by the person in question, although this was not true; then, for the reason that I wished to make him a gift, notwithstanding I was laboring under a false impression, an action for the recovery of the gift will not lie.

(3) I can, however, proceed by a personal action on account of a condition upon which the payment of a legacy or the transfer of an estate is dependent, even though no legacy was left me, or, if it was, I was deprived of it, so that I can bring suit for the recovery of what I gave; since I did not give it with the intention of making a contract, and because the object on account of which I had made the gift was not accomplished.

The same rule applies if I was either unwilling or unable to enter upon the estate. It cannot, however, be said to be applicable where my slave was appointed an heir under a condition and I give something, and afterwards, the slave having been manumitted, enters upon the estate; for in this instance the object is attained.

(4) What is given in consideration of an act to be performed confers a right of action in accordance with what is proper and just; as, for instance, if I give you something in order that you may perform some act, and you do not perform it.

(5) Where a party brings suit for the recovery of something which is not due, the profits and the offspring of female slaves that were given must also be returned, after all expenses have been deducted.

(6) Where grain has been delivered which was not due, its quality must be taken into consideration; and if the party has consumed it, an action can be brought for its value.

(7) In like manner, where lodgings were given, I can bring an action for the money, not indeed for the amount for which I could have rented them, but for the amount for which you would have rented them.

(8) Where I delivered you a slave that I did not owe you, and you manumitted him, if you did this knowingly you will be liable for his value, but if you did it ignorantly, you will not be liable; but you must make good the value of his services as a freedman, and transfer any estate obtained through him.

(9) Payment is not due, not only where it is absolutely not owing, but also where it is owing to another and is paid to a third party, or where what one man owes another he pays as if he himself owed it.

66. Papinianus, Questions, Book VIII.

This suit, based on justice and equity, is ordinarily employed for the recovery of property which belongs to one party and is found in the possession of another without any right to the same.

67. Scævola, Digest, Book V.

Stichus, having received his freedom under the will of the party whom he thought to be his owner, on condition that, for ten years after the death of the latter he would pay ten aurei annually to his heirs, paid the prescribed sum for eight years, as he was directed to do; he afterwards ascertained that he was born free, and did not make any payments for the remaining years, and he was also pronounced free born in court. The question arose whether he could institute proceedings for the recovery of the money as not having been due, and, if this was the case, by what kind of an action? The answer was that, if the money he paid had not been obtained either by his own labor or through the property of him whom he had served in good faith, an action could be brought for the recovery of the same.

(1) A guardian paid a larger sum than was due to the creditor of his ward, and did not give himself credit when he brought an action on guardianship; I ask whether he would have a right of action for recovery against the creditor? The answer was that he would.

(2) Titius, who had many creditors, among whom was Seius, having privately transferred his property to Mævius by a sale, with the understanding that the latter would satisfy his creditors, Mævius paid to Seius, as if it was owing to him, money which had already been paid by Titius; and the question arose whether, when receipts were afterwards found in the hands of Titius having reference to debts which had been partly paid, who had a right of action for the recovery of the money which had been paid without being due, Titius the debtor, or Mævius who had been appointed agent in his own behalf? The answer was that, in accordance with what had been stated, the party who paid last had the right of action.

(3) The same individual asked whether the agreement which it was customary to insert in the settlement of accounts, namely, that there should be no further controversy between the parties growing out of the said contract would bar the action for recovery. The answer was that nothing was stated which would render it a bar.

(4) Lucius Titius lent to Gaius Seius, who was under twenty-five years of age, a certain sum of money, and received from him a certain sum as interest. The heir of Gaius Seius, the minor, obtained from the Governor of the province an order for complete restitution against Publius Mævius to avoid paying the debt due to the estate; but no mention was made before the Governor of an action for the recovery of the interest on the principal which Seius, who was under twenty-five years of age, had paid, nor was any judgment rendered by him with reference to the same. I ask whether the heir of Gaius Seius, the said minor under twenty-five years of age, can bring an action for the recovery of the interest which the latter had paid to the creditor as long as he lived? The answer was that, according to the facts stated, an action would not lie for the recovery of what the deceased had paid as interest. I ask also, since you think that an action cannot be brought for recovery, whether the heir can retain the interest out of some other debt. The answer was "No, not even that."

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TITLE VII. CONCERNING AN ACTION FOR RECOVERY WITHOUT GROUND.

1. Ulpianus, On Sabinus, Book XL1II.

There is also the following kind of a personal action for recovery where anyone makes a promise without consideration, or where he pays something that was not due. Where a party makes a promise without consideration, he cannot bring an action for an amount which he did not give, but only for the obligation itself.

(1) But even though he may have promised for a consideration but the consideration did not take effect, it must be held that there would be ground for an action for recovery.

(2) Whether the promise was made without consideration in the beginning, or in consideration of a promise which is terminated, or did not take effect, it must be said that there will be ground for an action for recovery.

(3) It is established that a suit for recovery can be brought against the party only where the property came into his possession without a valid consideration, or for some consideration which has ceased to be valid.

2. The Same, On the Edict, Book XXXII.

Where a fuller made a contract to clean some clothes, and the clothes being lost, he is sued on the contract and pays their value to the owner, and the owner afterwards finds the clothes; what kind of an action must the fuller bring to recover the amount which he paid? Cassius says that he not only can bring an action on contract, but also one for recovery against the owner. I think that he has, at all events, a right of action under a contract, but with respect to the suit for a recovery there is a question, because he did not pay what was not due; unless, indeed, we can hold that an action for recovery can be brought on the ground that the money was paid without any consideration, for the clothes having been found, this would seem to be the case.

3. Julianus, Digest, Book VIII.

Where parties bind themselves without any reason for doing so, they can obtain a release by means of a suit brought for an uncertain amount, and it makes no difference whether the party contracted the entire obligation without any ground, or a greater one than there was any necessity for; unless, indeed, the proceedings brought to release him from every obligation whatsoever are different from those brought to discharge him from liability for part of the obligation; for example, where a party promised to pay ten aurei, for, if he had no reason to make the promise, he can, by means of an action for an uncertain amount obtain a release from the entire stipulation; but if he promised to pay ten aurei when he ought only to have promised five, he can, by means of an action for an uncertain amount, secure his release from the payment of five.

4. Africanus, Questions, Book VIII.

It is of no consequence whether something was given in the beginning without consideration, or whether it was given for a consideration which did not take place.

5. Papinianus, Questions, Book XI.

Where a woman who was about to be married to a maternal uncle, gave a sum of money as dowry, but did not marry him, the question arose whether she could bring an action for the recovery of the money? I said that where money was paid for some immoral consideration which affected both the giver and the receiver, an action for recovery would not lie, and where both of them are equally culpable, the possessor has the advantage; and that anyone who adopted this principle perhaps would answer that the woman could not bring an action for recovery; but, on the other hand, it could be justly maintained that the question to be considered was not so much that the consideration was immoral, as that there was no consideration at all; since the money which was paid could not be converted into a dowry, as it was paid not for the purpose of unlawful cohabitation but on account of matrimony.

(1) A stepmother paid a sum of money as dowry for her marriage to her stepson, and a daughter-in-law also did this for her marriage to her father-in-law, and neither marriage took place. It would seem at first view that an action for recovery of the money would not lie, since an union of this kind is incest by the Law of Nations; still, in such instances it is the better opinion that there was no consideration for giving the dowry, and therefore an action for its recovery will lie.

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