Paulus, On Plautius, Book II. After I accepted a legacy from you, I brought an action to recover the estate. Atilicinus says that it has been held by certain authorities that I am not entitled to an action for recovery against you, unless I refund the legacy. Still, let us consider whether the plaintiff who brings an action to recover the estate is only obliged to return the legacy where security is given him that, if judgment is rendered against him in the case, the legacy will be repaid to him; since it is unjust that in this instance the possessor should retain a legacy which he had paid, and especially where his adversary did not bring the action for the purpose of annoyance, but on account of a mistake; and Lælius approves this opinion. The Emperor Antoninus, however, stated in a Rescript that where a man retained a legacy under a will, an action for the recovery of the estate should be refused him, where proper cause was shown; that is, where the intention to cause annoyance was manifest.

Paulus, On Plautius, Book II. For if the plaintiff is aware of the facts, then he is not deceived by another, but by himself; and therefore the defendant will be discharged.

Paulus, On Plautius, Book II. If you kill my slave, I do not think that my affection for him should be considered; as, for instance, if anyone should kill your natural son whom you would be willing to purchase at a high price if he belonged to someone else; but the question involved is what is he worth generally speaking? Sextus Pedius says that the price of property is not fixed by affection or by beneficial interest, but on general principles; so that a man who has possession of his natural son as a slave, is none the more wealthy because if someone else had possession of him he would be willing to purchase him for a considerable sum of money; and the party who has possession of the son of another has not property enough to be equal to what he could sell that son for to his father; for under the Lex Aquilia, we can recover damages, and we will be considered to have lost either what we could have obtained, or what we were compelled to pay out. 1Ad Dig. 9,2,33,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 455, Note 6.An action in factum is granted with reference to damages which are not included in the Lex Aquilia.

The Same, On Plautius, Book II. Persons who, while answering, make false confessions, are bound by the same only where anyone has a right of action against another on account of a matter with reference to which he was interrogated; because where suit can be brought against another party if he were the owner, we render ourselves liable by our confession. Hence, where someone is under the control of his father, and I answer that he is my son, I will only be liable where his age appears to be such that he can be my son; because false confessions must agree with what is natural; and on this account the result would be that if I answered on behalf of the father I will not be held liable. 1Where anyone answers that the head of a household is his slave, he will not be liable to a noxal action; and even if a free man serves me in good faith as a slave, a noxal action cannot be brought against me; and if proceedings should be instituted, the right of action against the person who committed the illegal act will remain unimpaired.

Paulus, On Plautius, Book II. Where an obligation is introduced by a new law, and it is not provided in the said law by what kind of an action we are to proceed, this must be done in accordance with this law.

The Same, On Plautius, Book II. When anyone becomes surety for a slave he is liable in full, even if there is nothing in the peculium of the slave. It is clear that if he becomes surety for the master, against whom he has a right of action De peculia, he will only be liable for the amount of the peculium at the time when judgment was rendered.

Paulus, On Plautius, Book II. If I stipulate as follows, “Do you promise to pay me or Titius?” and the debtor agrees to pay me, although an action to collect money on an informal agreement will lie in my favor, the promisor can still pay him who has been added. And if I stipulate for myself or for Titius with a son under paternal control, the father can pay Titius out of the peculium, that is, if he wishes to pay in his own name, and not in that of his son; for when payment is made to the person who was added, it is considered to be made to me. Therefore, if payment of something which is not due is made to the person who has been added, Julianus says that suit can be brought against the stipulator to recover it, so that it makes no difference whether I direct you to pay Titius, or whether the stipulation was framed in this way in the beginning.

The Same, On Plautius, Book II. He commits a wrong who orders it to be committed. He, however, is not to blame who is compelled to obey. 1Anything which is in suspense is not considered to exist.