Paulus, On Plautius, Book XVII. In fact, what only happens once or twice, as Theophrastus says, legislators omit.

The Same, On Plautius, Book XVII. No action will lie at Rome against persons whom the Emperor has summoned there, except where they make a contract during the time they remain. 1Envoys are compelled to answer in suits at Rome on account of offences committed while there in that capacity, whether they themselves commit them or their slaves. 2Where an action in rem is asked for against an envoy, and the said action is founded on present possession, shall it be granted? Cassius stated that the rule to be observed is that, if the action would cause the envoy to be deprived of all his slaves, it should not be granted; but if it only related to one slave out of several, it ought not to be refused. Julianus says, without making any distinction, that the action should be denied, and this is reasonable, since the action is not granted lest the party be turned aside from the duties of the office which he has undertaken.

Paulus, On Plautius, Book XVII. Cassius states with reference to an envoy who entered upon an estate, that, even where he enters upon it at Rome, an action cannot be brought against him, lest his mission might be interfered with; and this is true. An action is not even granted to legatees against him, but they can be put in possession of property belonging to the estate, unless he gives security, which rule also applies to creditors of the estate.

Paulus, On Plautius, Book XVII. But where an estate is delivered to him under the Trebellian Decree, an action against him will not be granted, whether the heir entered upon the estate voluntarily, or under compulsion; for it is certainly more convenient for the estate to be delivered to him; hence it should be considered as if he himself had entered upon the estate. 1On the other hand, if an envoy, during the time of his mission, enters upon an estate and delivers it, an action will be granted against the beneficiary of the trust; nor will an exception under the Trebellian law be available, on account of the position of the envoy; as this is for the personal benefit of the latter. 2In those instances where an envoy is not forced to join issue in an action, he cannot be compelled to make oath that he is not obliged to pay, for the reason that his oath takes the place of a joinder of issue. 3An envoy must promise reparation for threatened injury, or permit his neighbor to take possession of the building. 4Where the time for bringing an action is about to expire, the Prætor shall permit it to be brought against the envoy, if proper cause is shown, in order that issue may be joined, and the case transferred to the envoy’s place of residence. 5Ad Dig. 5,1,28,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.Where the head of a family dies and leaves a son, and his widow is pregnant, the son cannot legally collect from the debtors half the money loaned to them, although afterwards one son should be born; because several more might have been born, since, in the nature of things, it was certain that one child would be born. Sabinus and Cassius, however, are of the opinion that a fourth part of the debts might be collected, for the reason that it is uncertain whether three would not be born, and that we need not pay any attention to the nature of things where all are certain, as whatever is going to occur does occur; but we should consider our own ignorance.

Paulus, On Plautius, Book XVII. The ancient authorities were so solicitous to maintain the interest of an unborn child who would be free at birth, that they reserved all its rights unimpaired until the time it was to be born. This is apparent in the law of succession concerning those who are in a more remote degree of relationship than the unborn child, and who are not admitted to the succession, as long as it is uncertain whether or not a child will be born. Where, however, there are others in the same degree of relationship as the one that is unborn, then the question has arisen what share of the estate should remain in suspense, since it is impossible to ascertain how many may be born; hence, there are so many various and incredible accounts given with reference to this matter that they are usually classed with fables. It is said that four daughters were born of a married woman at a single birth; and, also, certain writers, who are not unreliable, have stated that five children were born of a Peloponnesian woman on four different occasions, and that many Egyptian women have had several children at once. We have seen three brothers, the Horatii, Senators, of one birth, girded for battle; and Lælius states that he had seen a free woman on the Palatine Hill who had been brought from Alexandria in order to be shown to Hadrian with her five children, four of whom he alleges she was said to have brought forth at one time, and the fifth four days afterwards. What conclusion must then be arrived at? Authors learned in the law have taken a middle course, namely, they have considered what might not very rarely occur; and as three might happen to be born on one occasion, they assigned a fourth share to the son already born; for (as Theophrastus says) what happens once or twice, legislators pay no attention to, and therefore if a woman is actually about to bring forth only one child, the heir that is living will be entitled, not to half of the estate, but only to a fourth of the same:

Paulus, On Plautius, Book XVII. The following should be borne in mind, namely, that if a woman is not pregnant, but it is thought that she is, her son in the meantime is sole heir to the estate, although he is not aware that he is such. 1The same rule applies in the case of a stranger, where he is appointed heir to a certain portion of an estate, and posthumous children to the remainder. But if the appointment of heirs should happen to be made in the following terms: “All children born to me, together with Lucius Titius, shall be heirs to equal shares”; doubt may arise whether he cannot enter upon the estate, just as one who did not know to what share he was entitled under the will. It is more advantageous, however, that he should be enabled to enter upon the estate if he does not know to what share of the same he is entitled, provided he is not ignorant of other matters which he should know.

The Same, On Plautius, Book XVII. This is the case where the property is at hand, if it is elsewhere, it passes, when the possessor obtains it by the consent of the plaintiff; and therefore it is not contrary to the rule that the estimate of the judge should only be made where the plaintiff gives security, “that nothing will be done by him to prevent possession of the property being delivered”.

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. 1Ad Dig. 12,1,31,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 45.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.

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. 1Where 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.

Paulus, On Plautius, Book XVII. Ad Dig. 12,6,65 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.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. 1And, 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. 2Ad Dig. 12,6,65,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.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. 3I 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. 4Ad Dig. 12,6,65,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.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. 5Where 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. 6Ad Dig. 12,6,65,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16.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. 7In 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. 8Where 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. 9Payment 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.

The Same, On Plautius, Book XVII. The free management of the peculium does not remain in the case of a fugitive or of a slave who has been stolen, nor in case of one who is not known to be either alive or dead. 1Anyone, to whom the management of the peculium has been given, can substitute his own debtor.

Paulus, On Plautius, Book XVII. If he to whom a slave has been donated mortis causa manumits him, he will be liable to an action to recover the value of the slave, as he knows that he can be sued if the donor should regain his health.

Paulus, On Plautius, Book XVII. Ad Dig. 45,1,91 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 265, Note 13.If I stipulate for a slave, and he should die without anyone being in default, even if the promisor should kill him, legal proceedings may be instituted. Where, however, the promisor neglects him when he is ill, will he be liable? When we consider whether this is the case, where an action is brought to recover a slave, and he has been neglected by the person who has possession of him, the latter will be liable on the ground of negligence; just as where anyone who has promised to deliver the slave to whom the stipulation has reference is presumed to be negligent in doing something, and not for refraining from doing something. The latter opinion should be approved, because he who promises to pay is responsible for payment, and not for the performance of some specific act. 1If, however, the property is in existence, but cannot be delivered, as, for instance, a tract of land which has become religious, or sacred, or a slave who has been manumitted, or even captured by the enemy, negligence is determined as follows: if the property belonged to the promisor at the time of the stipulation, or became his afterwards, and any of the occurrences above mentioned took place, he will still be liable. The same thing will occur if this happened through the agency of another, after the slave had been alienated by the promisor. Where, however, the slave belonged to someone else, and something of this kind occurred through the agency of another, the promisor will not be liable, because he did nothing, unless something of this kind took place after he delayed making payment. Julianus accepts this distinction. Again, if a slave who belonged to the promisor was taken from him for the reason that he was to be free under a certain condition, he should be considered to be in the same position as if he had promised the slave of another, because the slave ceased to belong to him without any act on his part. 2The question is asked if, not being aware that he owed the slave, he should kill him, will he be liable? Julianus thinks that this is the case where one, not knowing that he was charged by a codicil to deliver a slave, manumits him. 3Ad Dig. 45,1,91,3ROHGE, Bd. 7 (1873), S. 230: Erweiterung der Verpflichtungen des Schuldners durch Zahlungsverzug.ROHGE, Bd. 10 (1874), S. 263: Voraussetzung des Verzuges der Erfüllung, wenn dazu die Mitwirkung des Gläubigers erforderlich ist.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 28, Note 5.In the next place, let us consider the rule established by the ancients, that is to say, whenever the debtor is guilty of negligence, the obligation will continue to exist. How should this be understood? And, indeed, if the promisor acts in such a manner as to render himself unable to pay, the constitution becomes easy of comprehension. Where, however, he is only in default, a doubt may arise whether, if he should not afterwards delay, the former default will be disposed of. Celsus says, that he who is in default in delivering Stichus, whom he promised, can clear himself of the default by subsequently tendering the slave; for this is a question having reference to what is proper and equitable, and, in a case of this kind, pernicious errors are frequently, committed in relying too much on the authority of the science of the law. This opinion is probably correct, and is adopted by Julianus. For when the question of damages arises, and the case of both parties is the same, why should not the position of him who holds the property be preferable to that of him who attempts to obtain it? 4Now let us see to what persons this constitution applies. There are two things to take into account: first, we must inquire what persons are responsible for the continuance of the obligation; and second, for whom they cause it to be continued. The principal debtor certainly perpetuates the obligation, but is there any doubt that the other debtors also perpetuate it? It is the opinion of Pomponius that they do, for why should a surety extinguish his obligation by his own act? This opinion is correct, therefore the obligation is perpetuated both in their persons and in those of their successors, as well as in those of their accessories, that is to say, their sureties; for the reason that they have given their promise with reference to it under all circumstances. 5Let us see whether a son under paternal control, who made a promise by the order of his father, can prolong the obligation of the latter by killing the slave. Pomponius thinks that he can do so, because we understand the person who gives the order to be an accessory. 6The effect of this regulation is, that the slave can still be claimed, but it is held that a release may be granted, or a surety be accepted on account of the obligation. There is some doubt as to whether this obligation can be renewed, for the reason that we cannot stipulate for a slave who is not in existence, or for money which is not due. I think that a renewal can be made if it is agreed upon between the parties; which is also the opinion of Julianus.

Ad Dig. 46,1,37Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 112, Note 5; Bd. II, § 477, Note 10.The Same, On Plautius, Book XVII. If anyone who has been released after the time has passed for the collection of a debt gives a surety, the surety will not be liable, as security given by mistake is void.

The Same, On Plautius, Book XVII. Anything which is paid by the order of a creditor is the same as if it had been paid to the latter himself.