The Same, On the Edict, Book XXVI. If you think that on account of a legacy you are obliged to make an agreement with your debtor that you will not bring suit against him; your debtor is not released by operation of law, nor can he bar your suit by means of an exception on the ground of contract, as Celsus has stated in the Twentieth Book. 1Ad Dig. 2,14,51,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 351, Note 3.He also said in the same place, “If you think incorrectly that you are obliged to pay a legacy to Titius, and you direct your debtor to pay it to him, and the latter, being at the same time, his debtor, makes an agreement with Titius not to sue him; this will not extinguish your right of action against your debtor, or his against his debtor either.”

Ulpianus, On the Edict, Book XXVI. We are usually accustomed to say that the matter before the court is that which was agreed upon by the litigants; but Celsus states that it is dangerous to apply to the defendant for information on this point, because he will always say that no agreement was made, in order to avoid losing his case. What then shall be done? It is better to hold that the subject of the trial is not what the parties agreed upon; but that is not the subject of the trial which it was expressly agreed that it should not be. 1A judge who has jurisdiction in cases of robbery cannot hear and decide actions in which money is involved.

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. 1As 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.

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.

Ulpianus, On the Edict, Book XXVI. Ad Dig. 12,1,9 pr.ROHGE, Bd. 9 (1873), S. 33: Klagen auf Feststellung eines obligatorischen Verhältnisses.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. 1This 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. 2This action may also properly be brought where anyone has bound himself either in his own behalf or as the agent of the other. 3Since, 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. 4I 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. 5The 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. 6The 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. 7Moreover, 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. 8Ad Dig. 12,1,9,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 313, Note 6; Bd. II, § 370, Note 12.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. 9I 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.

The Same, On the Edict, Book XXVI. Ad Dig. 12,1,11 pr.ROHGE, Bd. 4 (1872), S. 396: Hingabe von Werthpapieren als Darlehn mit der Verpflichtung der Restitution baaren Geldes.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. 1If 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. 2Where 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.

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. 1Wherefore, 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. 2Where 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.

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.

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.

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.

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.

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. 1A 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. 2An oath cannot be tendered to a ward. 3Neither 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. 4Ad Dig. 12,2,34,4ROHGE, Bd. 3 (1872), S. 323: Voraussetzung des wegen der Eideszuschiebung zu verlangenden Calumnieneides.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. 5If 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. 6The 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. 7Another 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 calumnia will be taken with reference to terms which he himself imposed, is something that ought not to be tolerated. 8It 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. 9When 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.

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. 1If 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.

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. 1The 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. 2But 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. 3Where, 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. 4And, 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. 5Where 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. 6If 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. 7Where 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. 8He 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. 9Although 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.

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. 1Moreover, 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. 2Where, 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.

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

Ulpianus, On the Edict, Book XXVI. Now let us consider the case of money which was paid without being due. 1And, 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.

The Same, On the Edict, Book XXVI. Ad Dig. 12,6,26 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.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. 1Interest, 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. 2Where 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. 3We 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. 4If 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. 5Moreover, 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. 6Marcellus 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. 7To 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. 8Where 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. 9If 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. 10If 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. 11Where 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. 12A 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. 13Ad Dig. 12,6,26,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 4.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. 14He 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.

Ulpianus, On the Edict, Book XXVI. Where services were left by will, when should they begin to be available, from the day when the legatee demands them, or from the time when the estate is entered upon? And who must bear the loss while the slave is ill? I think that the services are due from the time when they are demanded, and therefore if the slave should begin to be sick after that date, the loss must be borne by the legatee.

Ulpianus, Book XXVI. He who makes an assignment before he acknowledges his indebtedness, and before judgment is rendered against him, or he confesses in court, should not be heard.

Ulpianus, On Sabinus, Book XXVI. If I stipulate for the payment of ten aurei on demand, the stipulation contains a notice for the payment of the amount more quickly, and, as it were, without delay, rather than conditionally; and therefore, even if I should die before making the demand, the condition will not be considered to have failed.

Ulpianus, On the Edict, Book XXVI. Anything which a plaintiff is not allowed to do is not permitted the defendant. 1Where the right to property is obscure, it is better to favor the party who attempts to recover it than he who is striving to obtain it for the first time.