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. 1Where 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. 2Moreover, 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. 3If 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. 4Where 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.

Ulpianus, On Sabinus, Book XLIII. 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. 1But 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. 2Whether 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. 3Ad Dig. 12,7,1,3ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.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.

Ulpianus, On Sabinus, Book XLIII. A slave cannot owe anything, nor can anything be due to a slave; but when we make a misuse of this word we are rather indicating a fact, than referring the obligation to the Civil Law. Hence the master can rightfully demand from strangers what is owing to a slave, and with respect to what the slave himself owes, an action for this cause is granted against the master, on the peculium; and also to the extent that property has been employed in the affairs of the master.

The Same, On Sabinus, Book XLIII. If my slave directs someone to purchase him in order that he may be ransomed; Pomponius very aptly discusses the question whether he who has ransomed the slave voluntarily, can bring an action against the vendor to compel him to take him back; since the action of mandate is a reciprocal one. Pomponius says, however, that it is most unjust to compel me to take back a slave on account of the act of said slave, whom I wish to dispose of permanently; nor should I be liable to an action of mandate in this instance, any more than if I had sold him to you.

The Same, On Sabinus, Book XLIII. When a slave is sold, his peculium is not sold with him, and therefore he is not held to be sold with his peculium, whether this has not been reserved, or whether it has been specifically stated that the sale did not include the peculium. Hence, if anything forming part of the peculium has been stolen by the slave, it can be recovered by an action, just like any other stolen property; provided the said property has come into the hands of the purchaser.

The Same, On Sabinus, Book XLIII. If the wife should either give property to her husband and he should bestow it by way of dowry on behalf of their common daughter, or if she should permit him to give it by way of dowry for their daughter, after having made a donation to her husband; it can be held, in accordance with justice, that although the donation is of no force or effect, still, the gift of the dowry becomes valid by the subsequent consent of the wife.

Ulpianus, On Sabinus, Book XLIII. Where a guardian does not return property deposited or loaned for use to him by the father, he is liable to an action, not only on the loan or deposit, but also on guardianship; and if he has received money to induce him to restore the property, it is held by many authorities that the said money can be recovered either by an action on deposit, or loan, or by a personal one. This opinion is reasonable, because the property was dishonorably acquired.

Ulpianus, On Sabinus, Book XLIII. Where a slave is bequeathed, it is unnecessary to except his peculium, because, unless expressly specified, it is not included in the legacy.

Ulpianus, On Sabinus, Book XLIII. In entering into a stipulation for indemnity against threatened injury, an indefinite or extravagant valuation should not be made, as, for example, for stucco-work, or mural paintings; for even though great expense may have been incurred for these things, still, a moderate estimate should be made in the stipulation providing against threatened injury, because a just medium should be observed, and the extravagant luxury of anyone should not be encouraged. 1Whenever injury results from a defect in a party-wall, one of the joint-owners will not be liable for any damage sustained by the other, for the reason that it was caused by defective property owned in common. If, however, the damage resulted from one of them placing too great a weight against it, or upon it, it must be said that he alone will be responsible for the damage which was caused by an attempt to benefit himself. If the wall should collapse on account of too great a burden having been imposed upon it by both parties, Sabinus very properly says that both of them will be liable. But if one of them loses more property, or property of greater value than the other, it is best to hold that neither of them will be entitled to an action against the other, because both placed the same burden on the party-wall. 2Whenever several persons bring an action on a bond given to provide against threatened injury, for the reason that they have sustained damage with reference to the same property, for instance, a house, each of them should not sue for the entire amount, but in proportion to his share, because the damage which all are entitled to recover has not been sustained by each one in full, but merely for a part; hence Julianus says that an action only for a part will be in favor of each one of them. 3Likewise, if a house which is in bad condition, and threatens to fall, belongs to several persons, can an action be brought against each of them for the entire amount, or only for a part? Julianus says, and Sabinus approves his opinion, that they should be sued for the interest which each one has in the property. 4Where several owners of a house demand security against threatened injury and no one furnishes it, all of them should be placed in possession on the same footing; although they may have different shares in the ownership of the property. This is also stated by Pomponius.

The Same, On Sabinus, Book XLIII. Whoever serves anyone in good faith as a slave, whether he is the slave of another, or is free, will acquire for his possessor whatever he obtains by means of the property of the latter, while serving in good faith as a slave. He will, in like manner, acquire for him whatever he earns by his own labor, for it is, to a certain extent, considered as the property of the former, because he owes his labor to him whom he is serving in good faith. 1He will, however, acquire the property for his possessor only as long as he serves him in good faith as a slave; but as soon as he ascertains that he belongs to someone else, or is free, let us ascertain whether he will continue to acquire property for him. In examining this question, we must determine whether we shall consider the beginning of the possession, or all the moments included in it. The better opinion is that all the time should be taken into account. 2Generally speaking, it must be said that whatever he who is serving in good faith cannot acquire by means of the property of his possessor he will acquire for himself; but what he cannot acquire for himself by means of property other than that of his possessor, he will acquire for him whom he serves in good faith as a slave. 3Where anyone serves two persons in good faith as a slave, he will acquire property for both of them, but for each one in proportion to the use he has made of his capital. The question, however, may arise, whether what he acquires with the capital of one of them will partly belong to the person whom he is serving in good faith as a slave, and partly to his own master, if he is a slave; or, if he is free, whether it will belong to him whom he is serving in good faith, or whether he should acquire the entire amount for the benefit of him whose property he has used. Scævola discusses this point in the Second Book of Questions. He says that if a slave belonging to another serves two persons in good faith, and acquires property by the use of something belonging to one of them, it is reasonable to hold that he acquires it for him alone. He also says, if the slave mentions the name of him with reference to whose property he enters into a stipulation, there is no doubt that he makes the acquisition solely for him; because if he had stipulated expressly in the name of one of his masters with reference to his property, he would acquire the entire amount for his benefit. He afterwards adopted the opinion that where anyone is serving several masters in good faith as a slave, he will acquire for me alone, even if he had not stipulated with reference to my property, either in my name or by my express order; for it has been established that whenever a slave owned in common cannot acquire property for all his owners, he can acquire it for him alone who will be benefited thereby. I have repeatedly stated that Julianus held this opinion: which we also approve.

Ulpianus, On Sabinus, Book XLIII. He who has promised to furnish security is considered to have complied with the stipulation, if he gives anyone for this purpose who can be rendered liable and be sued. If, however, he gives a slave, or a son subject to paternal authority, under circumstances when an action De peculia cannot be granted, or a woman, who can avail herself of the aid of the Decree of the Senate, it must be said that he has not complied with the stipulation to furnish security. If he gives a surety who is not solvent, it is clear that he should be considered to have complied with the agreement, because he who accepted the surety approved him as solvent.

Ad Dig. 46,3,1ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.Ulpianus, On Sabinus, Book XLIII. Whenever a debtor, who owes several debts, pays one of them, he has the right to state which obligation he prefers to discharge, and the one which he selects shall be paid, for we can establish a certain rule with reference to what we pay. When, however, we do not indicate which debt is paid, he who receives the money has the right to say on what claim he will credit it, provided he decides that it shall be credited on a debt which, if he himself owed it, he would have paid, and be discharged from liability, where he actually owed it, that is to say an obligation which is not in dispute; or one for which no surety has been given, or which has not yet matured; for it appears perfectly just for the creditor to treat the property of the debtor as he would treat his own. Therefore, the creditor is permitted to select the debt which he desires to be paid, provided that he makes his selection as he would do with reference to his own property; he must, however, decide immediately, that is, as soon as payment is made.

Ulpianus, On Sabinus, Book XLIII. This, however, is not permitted to be done, after any time has elapsed. The result is, that he who receives it should always be considered to have credited the payment on the most onerous debt, for he would have done this with reference to an obligation of his own. 1Where nothing has been said by either party on this point with reference to debts which are payable on a certain date, or under a specified condition, that debt will be considered to have been discharged whose day of payment has arrived.

Ulpianus, On Sabinus, Book XLIII. With reference to debts which are due at the present time, it is decided that whenever any money is paid without stating on what debt it shall be credited, it should be considered to have been paid on the one which is most burdensome. If, however, one is not more burdensome than another, that is to say, if all the obligations are alike, it should be paid upon the oldest one. A debt which is given with security is considered more burdensome than one which has been contracted without it. 1If anyone has given two sureties, he can pay in such a way as to release one of them. 2Ad Dig. 46,3,5,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.The Emperor Antoninus, with his Divine Father, stated in a Rescript that when a creditor obtains his money by the sale of pledges, and interest is due, some of it by the Civil Law, and some by Natural Law, whatever is paid by way of interest shall be credited on both kinds of obligations; as, for instance, where some interest is due by virtue of a stipulation, and some is due naturally as the result of an agreement. If, however, the amount of the interest due under the Civil Law is not equal to that due under the other, what has been paid should be credited on both, but not pro rata, as the terms of the Rescript show. But where no interest is due under the Civil Law, and the debtor simply pays interest which was not stipulated for, the Emperor Antoninus, together with his Father, stated in the Rescript that it ought to be credited on the principal. At the bottom of the Rescript was added the following clause, namely, “What has been generally decided as to the interest being first paid seems to have reference to such interest as the debtor is compelled to pay,” and as interest paid under the terms of an agreement cannot be recovered, any more than if it had not been paid under that name, it will not be considered as paid at the desire of him who received it. 3The question is asked by Marcellus, in the Twentieth Book, if anyone agrees with a debtor that he will accept him for the principal and interest, whether the payment of the principal and interest shall be pro rata, or whether the interest should first be paid, and if anything remains, it should be credited upon the principal? I do not doubt that a provision of this kind with reference to the principal and the interest calls for the payment of the interest first, and that then, if there is any surplus, it ought to be credited on the principal.

Ulpianus, On Sabinus, Book XLIII. Where something is due, both on an obligation in which infamy is involved, and on one which is not of that character, payment is held to be made on that which involves disgrace. Hence, if anything is due on account of a judgment, or on a claim for which judgment has not been rendered, I think that payment should be applied to the judgment; and Pomponius adopts this opinion. Therefore, in a case in which liability increases by denial, or in one involving a penalty, it must be said that payment should be considered to be made on the latter, by the settlement of which the release of the penalty will be effected.

The Same, On Sabinus, Book XLIII. Where several criminal offences take place at the same time, this does not cause impunity to be granted for any of them, for one crime does not diminish the penalty for another. 1Therefore, where anyone robs a man and kills him, he is liable to an action of theft, for the reason that he robbed him, and to the Aquilian action, because he killed him; and neither one of these actions destroys the other. 2The same thing must be said if he robbed him by violence, and then killed him, for he will be liable to an action for robbery with violence, as well as under the Aquilian Law. 3Where a personal suit is brought for a slave who has committed theft, the question arose, whether one could also be brought under the Aquilian Law. Pomponius says that this can be done, because the action under the Aquilian Law calls for a different valuation than the one to recover property which has been stolen; as the Aquilian Law includes the greatest value of the stolen article during the year preceding the offence; but the personal action for recovery on account of theft does not go further back than the time of the joinder of issue. If, however, a slave has committed these offences, no matter under what noxal proceeding he may be surrendered, the other right of action will be extinguished. 4Likewise, if anyone beats a stolen slave with a scourge, he will be liable to two actions; that of theft and that of injury sustained; and if he should kill him, he will be liable to three actions. 5Again, if anyone has stolen a female slave belonging to another, and debauched her, he will be liable to two actions; for he can be sued for having corrupted the slave, as well as for having stolen her. 6Moreover, if anyone should wound a slave whom he has stolen, there will be ground for two actions against him; that authorized by the Aquilian Law, and the action of theft.

The Same, On Sabinus, Book XLIII. So far as the Civil Law is concerned, slaves are not considered persons, but this is riot the case according to natural law, because natural law regards all men as equal.