[PAULUS libro quarto quaestionum. ] §13.4.10.prSi post moram factam, quo minus Capuae solueretur, cum arbitraria uellet agere, fideiussor acceptus sit eius actionis nomine, uideamus, ne ea pecunia, quae ex sententia iudicis accedere potest, non debeatur nec sit in obligatione, adeo ut nunc quoque sorte soluta uel si Capuae petatur, arbitrium iudicis cesset: nisi si quis dicat, si iudex centum et uiginti condemnare debuerit, centum solutis ex uniuersitate, tam ex sorte quam ex poena solutum uideri, ut supersit petitio eius quod excedit sortem, et accedat poena pro eadem quantitate.
[PAULUS from the fourth book of Questions.] If, after delay was made preventing payment at Capua, when the creditor wished to bring an action with an arbitration clause, a surety was accepted on account of that action, let us consider whether that money which can be added by the decision of the judge is not owed and does not form part of the obligation, so much so that now, even if the principal is paid or if the claim is made at Capua, the arbitration of the judge ceases: unless indeed someone should say that, if the judge ought to have condemned in one hundred and twenty, when one hundred is paid out of the total, it is deemed to have been paid both from the principal and from the penalty, so that there remains a claim for that which exceeds the principal, and the penalty is added in proportion to that same amount.
quod non puto admittendum, tanto magis, quod creditor accipiendo pecuniam etiam remississe poenam uidetur.
This I do not think should be admitted, all the more because the creditor, by accepting the money, is deemed also to have remitted the penalty.