Paulus, On Sabinus, Book X. If I have a house in common with you and give security for the prevention of threatened injury for your part of said house; it must be stated that what I pay by way of damage I can sue you for rather on the ground of business transacted than on that of a common division of expense; because I was able to protect my own share without being forced to protect that of my partner.

Paulus, On Sabinus, Book X. The alienation of property by the possessor is necessary, not only for the payment of debts by the estate, but where expenses have been incurred by the possessor on account of the estate, or where property is liable to be destroyed or deteriorated by delay.

Paulus, On Sabinus, Book X. Where property for which suit is brought by an action in rem is estimated at the amount that the plaintiff makes oath to in court, the ownership of the same at once passes to the possessor; for I am considered to have compromised and arranged the matter with him, on the basis which he himself established.

Paulus, On Sabinus, Book X. Where anyone about to give a present to an usufructuary, promises a slave, who is subject to the usufruct on his own stipulation, he will be bound to the usufructuary; for the reason that it is customary for a slave to be able to enter into a stipulation in favor of the usufructuary.

The Same, On Sabinus, Book X. The phrase, “Based on the property of the usufructuary”, must be understood to refer to anything which the usufructuary may have presented or granted to the slave, or where the slave gained anything through the transaction of his business.

Paulus, On Sabinus, Book X. Where the mere owner of property wounds or kills a slave in whom I have the usufruct, an action should be granted me, as under the Lex Aquilia, for damages in proportion to the amount of my usufruct; and that portion of the year which elapsed previous to my usufruct must also be included in the assessment of said damages.

Paulus, On Sabinus, Book X. Where, however, a party who has received a slave in pledge kills or wounds him, suit can be brought against him under the Lex Aquilia and also on the pledge, but the plaintiff must be content with one or other of these actions.

Paulus, On Sabinus, Book X. Where persons dig pits for the purpose of catching bears or deer, and do this on the highway, and anything falls into them and is injured, they will be liable under the Lex Aquilia; but they will not be liable if they dug the pits in some other place where this is ordinarily done. 1This action, however, should only be brought where proper cause is shown; that is to say, where no notice was given, and the owner had no knowledge, and could not provide against the accident. And indeed, a great many instances of this kind are encountered, in which a plaintiff is barred if he could have avoided the danger;

The Same, On Sabinus, Book X. Where a trimmer of trees throws down a branch, or a man working on an elevation kills a passer-by, he is only liable where he threw down the object in a public place, and did not give warning, that the accident might be avoided. Mucius, however, states that even if this happened on private property, an action could be brought for negligence; because it is negligence when provision was not made by taking such precautions as a diligent man would have done, or warning was only given when the danger could not have been avoided. On this principle it does not make much difference whether the party injured was traversing public or private ground, since it very frequently happens that many persons go through private ground. If there is no roadway there, the party is only liable for malice where he throws something down on anyone who is passing by; for he cannot be held accountable for negligence, as he would be unable to conjecture whether anyone is going to pass through that place or not.

Paulus, On Sabinus, Book X. In this instance we understand knowledge to signify sufferance, so that where the party is able to prevent the act, and does not do so, he will be liable. 1Proceedings can be brought under the Lex Aquilia where a wounded slave is cured. 2If you kill my slave being under the impression that he is free, you will be liable under the Lex Aquilia. 3Where two slaves leap over burning straw and collide with one another, and both fall and one is burned to death; in this instance an action cannot be brought where it is not known which of them was overthrown by the other. 4Where parties commit damage because they could not otherwise protect themselves, they are guiltless; for all laws and all legal principles permit persons to repel force by force. But if I throw a stone at an adversary for the purpose of defending myself, and I do not hit him but do hit a passer-by, I will be liable under the Lex Aquilia; for you are only permitted to strike a person who is attacking you, and this solely where you do so in defending yourself, and not where it is done for the purpose of revenge. 5Where a party removes a wall which is useful, he is liable to the owner of the same for wrongful damage.

Paulus, On Sabinus, Book X. Where a slave has anything in his possession, his owner is liable in his own name to an action for production; but if the slave without the knowledge of his owner, is guilty of fraud to avoid being in possession, a noxal action for theft, or one for malicious fraud should be granted on account of the slave, but no prætorian action can be brought for production.

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. 1Hence 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. 2Where, 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.

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.

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. 1Moreover, 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:

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. 1Ad Dig. 12,6,15,1ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.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. 2Even if an usufruct in the property delivered belongs to another, I could bring suit against you for recovery leaving out the usufruct.

The Same, On Sabinus, Book X. In the sale of a slave, his peculium is always understood to be reserved. Where a slave who was sold took away with him a certain portion of his peculium, and an action of theft is brought against the purchaser on this account, the latter cannot have recourse to the vendor for double damages on the ground of a stipulation, because the vendor, at the time of the sale, should guarantee the slave to be free from liability for theft, or damage. This right of action, however, only originates after the sale has taken place.

The Same, On Sabinus, Book X. The utensils of a bakery, and all the vessels used for cooking, are not included in a bequest of provisions.

Paulus, On Sabinus, Book X. Provided always, that he is ready to give security for any rent which may have accrued; otherwise, the owner could justly retain his property by way of pledge. But even if he should retain it by way of pledge, and it should be destroyed by the fall of a neighboring house, it may be said that the owner would be liable to the tenant in an action on pledge, if he could have deposited the property in a safer place.

Paulus, On Sabinus, Book X. Several authorities hold that a party-wall, to be suitable, must be able to support the weights of both the houses which may legally be placed thereon.

Paulus, On Sabinus, Book X. The purchaser of a house cannot properly stipulate for indemnity before possession has been delivered to him; for the reason that the vendor is bound to exercise strict diligence with reference to the property, so far as the rights of the purchaser are concerned. It is certain that such a stipulation can be made, where the vendor is in no way to blame; for instance, if he permitted the purchaser to remain in the house under a precarious title, and when about to depart, he gave him the custody of the same. 1If security is not furnished with reference to a field, the plaintiff should be placed in possession of that part of it where some damage is apprehended. The reason for this is, that in the case of buildings, the portions which are in good repair may be pulled down by those which are ruinous, and this is not true of vacant land. It must, however, be said that, with reference to very large houses, the Prætor should sometimes determine, after investigation, in which part of the building the person, to whom security has not been given, should be placed in possession. 2Where a new wall is erected, the expense should be calculated after having deducted the cost of the old one to ascertain whether there is any excess; or if any of the old wall was used in the construction of the new one the value of it should be deducted in making the estimate.

Paulus, On Sabinus, Book X. If we stipulate for property to be delivered, we do not understand that its ownership shall be transferred to the stipulator, but merely that the article itself shall be delivered.

Paulus, On Sabinus, Book X. Pomponius says that it has very properly been stated that when the terms and the contracts are the same payment will be held to have been made pro rata on all the sums in question.

Paulus, On Sabinus, Book X. If, having stipulated with Titius for ten aurei, you then stipulate with Seius to pay you whatever you cannot collect from Titius; even if you bring an action for ten aurei against Titius, Seius will still not be released. But what if Titius, having had a judgment rendered against him, should not be able to pay anything? Even if you first bring suit against Seius, Titius will not, in any respect, be discharged from liability, for it is uncertain whether Seius will owe anything at all. Finally, if Titius discharged the entire debt, Seius will not be considered to have been a debtor, for the reason that the condition upon which his indebtedness depended has failed to be fulfilled.

Paulus, On Sabinus, Book X. If, having promised you gold, I should, without your knowledge, give you copper instead, I will not be released, but I cannot recover it as having been paid without being due, because I gave it knowingly; nevertheless, if you bring suit for gold, I can bar you by means of an exception, if you do not return the copper which you received.

Paulus, On Sabinus, Book X. If you manumit or alienate a slave, on whose account you are entitled to an action for injury, you will retain the right to bring the action.

Paulus, On Sabinus, Book II. As the injury done to the son may be greater than that done to the father, on account of the superior rank of the former.

Paulus, On Sabinus, Book X. When anything is done in compliance with the dictates of morality for the purpose of protecting the interests of the State, and this causes anyone to be insulted, nevertheless, for the reason that the magistrate did not act with the intention of causing injury, but had in view the vindication of the majesty of the Republic, he will not be liable to an action for injury.