[PAPINIANUS libro octauo quaestionum. ] §46.3.94.prSi is, cui nummos debitor soluit alienos, nummis integris pergat petere quod sibi debeatur, nec offerat quod accepit, exceptione doli summouebitur.
[PAPINIANUS, in the eighth book of Questions.] If he to whom a debtor paid another's money should, while the coins remain intact, proceed to demand what is owed to him, and does not offer what he received, he will be barred by the plea of fraud.
§46.3.94.1Sin autem communes nummos credam aut soluam, confestim pro parte mea nascetur et actio et liberatio, siue in singulis nummis communionem pro indiuiso quis esse intellegat siue in pecunia non corpora cogitet, sed quantitatem.
But if I lend or pay common money, immediately both an action and a release will arise for my share, whether one understands that there is an undivided co-ownership in each individual coin, or whether in the case of money one does not think of the physical bodies but of the quantity.
§46.3.94.2Sed et si fideiussor alienos nummos in causam fideiussionis dedit, consumptis his mandati agere potest: et ideo si eam pecuniam soluat, quam subripuerat, mandati aget, postquam furti uel ex causa condictionis praestiterit.
But even if a surety has given another's money for the purpose of the suretyship, once these coins are consumed, he can sue on the mandate; and therefore if he pays money which he had stolen, he will sue on the mandate after he has made satisfaction either for the theft or on account of a condictio.
§46.3.94.3Fabius Ianuarius Papiniano salutem.
Fabius Januarius to Papinian, greeting.
Cum Titius Gaio Seio deberet ex causa fideicommissi certam quantitatem et tantundem eidem ex alia causa, quae peti quidem non poterat, ex solutione autem petitionem non praestat, Titii seruus actor absente domino soluit eam summam, quae efficeret ad quantitatem unius debiti, cautumque est ei solutum ex uniuerso credito: quaero, id quod solutum est in quam causam acceptum uidetur.
Since Titius owed Gaius Seius a certain quantity on account of a trust, and the same amount to the same person on another account—which indeed could not be sued for, but, once paid, does not afford a petition for recovery—and Titius's slave agent, in the absence of his master, paid that sum which made up the quantity of one of the debts, and a receipt was given to him that it was paid from the entire debt; I ask, for which debt is that which was paid deemed to have been received?
respondi, si quidem Titio Seius ita cauisset, ut sibi solutum ex uniuerso credito significaret, crediti appellatio solam fideicommissi pecuniam demonstrare uidetur, non eam, quae petitionem quidem non habet, solutione autem facta repeti pecunia non potest.
I replied: if indeed Seius had given a receipt to Titius in such a way as to indicate that it was paid to him out of the entire debt, the term "debt" seems to designate only the trust money, not that which indeed has no action but, once payment is made, cannot be recovered.
cum uero seruus Titii actor absente domino pecuniam soluerit, ne dominium quidem nummorum in eam speciem obligationis, quae habuit auxilium exceptionis, translatum foret, si ex ea causa solutio facta proponeretur, quia non est uero simile dominum ad eam speciem soluendis pecuniis seruum praeposuisse, quae solui non debuerunt, non magis quam ut nummos peculiares ex causa fideiussionis, quam seruus non ex utilitate peculii suscepit, solueret.
But since Titius's slave agent paid the money in the absence of his master, not even the ownership of the coins would have been transferred to that class of obligation which had the benefit of an exception, if it were proposed that payment was made on that account, because it is not likely that the master appointed the slave to pay money for that class of obligation which ought not to be paid, any more than that he should pay coins of the peculium on account of a suretyship which the slave did not undertake for the benefit of the peculium.