[PAULUS libro tertio quaestionum. ] §20.4.16.prClaudius Felix eundem fundum tribus obligauerat, Eutychianae primum, deinde Turboni, tertio loco alii creditori: cum Eutychiana de iure suo doceret, superata apud iudicem a tertio creditore non prouocauerat: Turbo apud alium iudicem uictus appellauerat: quaerebatur, utrum tertius creditor etiam Turbonem superare deberet, qui primam creditricem, an ea remota Turbo tertium excluderet.
[PAULUS in his third book of Questions.] Claudius Felix had pledged the same estate to three creditors: first to Eutychiana, then to Turbo, and in the third place to another creditor. When Eutychiana was asserting her right, she was defeated before the judge by the third creditor and did not appeal. Turbo, defeated before another judge, did appeal. The question was raised whether the third creditor, who had defeated the first female creditor, should also have priority over Turbo, or whether, once she was removed, Turbo would exclude the third creditor.
plane cum tertius creditor primum de sua pecunia dimisit, in locum eius substituitur in ea quantitate, quam superiori exsoluit: fuerunt igitur qui dicerent hic quoque tertium creditorem potiorem esse debere.
Clearly, when a third creditor pays off the first creditor out of his own money, he succeeds to the place of the latter to the extent of the sum he paid to his predecessor; therefore, there were some who said that in this case too, the third creditor ought to be preferred.
mihi nequaquam hoc iustum esse uidebatur.
To me, this seemed by no means just.
pone primam creditricem iudicio conuenisse tertium creditorem et exceptione alioue quo modo a tertio superatam: numquid aduersus Turbonem, qui secundo loco crediderat, tertius creditor, qui primam uicit, exceptione rei iudicatae uti potest? aut contra si post primum iudicium, in quo prima creditrix superata est a tertio creditore, secundus creditor tertium optinuerit, poterit uti exceptione rei iudicatae aduersus primam creditricem? nullo modo, ut opinor.
Assume that the first female creditor sued the third creditor in court and was defeated by the third by means of an exception or in some other way: can the third creditor, who defeated the first, use the plea of res judicata against Turbo, who had lent in the second place? Or, on the contrary, if after the first trial, in which the first female creditor was defeated by the third creditor, the second creditor prevailed against the third, will he be able to use the plea of res judicata against the first female creditor? By no means, in my opinion.
igitur nec tertius creditor successit in eius locum quem exclusit, nec inter alios res iudicata alii prodesse aut nocere solet, sed sine praeiudicio prioris sententiae totum ius alii creditori integrum relinquitur.
Therefore, neither did the third creditor succeed to the place of the person he excluded, nor is a matter adjudged between some parties accustomed to benefit or disadvantage another, but without prejudice to the prior judgment, the entire right is left intact for the other creditor.