Ad Dig. 12,1,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 16.The Same, On the Edict, Book XXIX. Where a son under paternal control having borrowed money in violation of the Decree of the Senate pays it, no exception can be pleaded against a suit brought by the father for the recovery of the money; but, where it has been expended by the creditor, Marcellus says that the personal action for recovery will not lie, since such a suit is only granted where the money was paid over under such circumstances as would permit an action to be brought if the ownership had been transferred to the party who received the money, but this is not the case in the proposed instance. Finally, where money is loaned contrary to the Decree of the Senate, and is repaid by mistake, the better opinion is that no action for its recovery will lie.

Ad Dig. 14,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Ulpianus, On the Edict, Book XXIX. Where, however, several persons have the management of a ship between them, they must be sued in proportion to their shares in the same, for they are not regarded as masters for one another. 1Where several persons having the management of a ship appoint one of their number to be the master, they can be sued on his account for the entire claim. 2Where a slave belonging to several persons manages a ship with their consent, the same rule applies as where there are several managers. For it is clear that if he acted with the consent of any one of them, the latter will be liable for the entire amount; and therefore I think that in the case above mentioned all of them are liable in full. 3If a slave who had control of a ship with the consent of his owner should be alienated, the party who alienated him will, nevertheless, be liable. Hence he would also be liable if the slave should die, for the owner of the ship will be liable after the death of the master. 4These actions are granted without limitation of time both in the favor of heirs, and against them. Hence, if a slave who has control of a ship with the consent of his master should die, this action will be granted after the expiration of a year, although an action De peculio is not granted after a year has elapsed.

Ulpianus, On the Edict, Book XXIX. The advantage of this Edict is far from being of trifling importance, as a master, who, otherwise, enjoys a privilege in the case of contracts made by a slave (since he is liable only for the amount of the peculium, the estimate of which is made after what is due to the master has been deducted), is, nevertheless, called upon by this Edict to contribute like any other creditor, if he was aware that the slave was transacting business with property belonging to the peculium. 1Although the term “merchandise” is one of limited signification, and does not apply to slaves who are fullers, tailors, weavers, or dealers in slaves, still, Pedius says in the Fifteenth Book that the Edict must be held to embrace transactions of every description. 2Merchandise of the peculium we do not understand to mean the same as the peculium itself, for the latter is considered to indicate the remainder after what has been due to the master has been deducted; but merchandise of the peculium renders a master liable to the Tributorian Action, even though there may be nothing whatever in the peculium, only however, where the business is transacted with his knowledge. 3In this instance we understand the word “knowledge” to signify that which includes consent, but (as I think) not merely consent but tolerance, for the master need not wish it, but he must not be unwilling. Hence, if he is aware of the facts, and does not protest and evince opposition, he will be liable under the Tributorian Action. 4The term “control” must be extended to both sexes, and also to all such as are subject to the power of others. 5The Tributorian Action will be applicable not only to slaves, but also to such as are serving us in good faith, whether they are free born, the slaves of others, or those in whom we have an usufruct,

Ulpianus, On the Edict, Book XXIX. Where, however, a slave is held in common, and both owners are aware of the fact, an action will be granted against either of them, but if one of them knows and the other is ignorant, an action will be granted against the one who knows; and whatever is due to the one who was ignorant will be deducted in full. But if anyone should sue the owner who is ignorant, since proceedings are brought against him on the peculium, what was due to the party who knew will be deducted, and, indeed, in full; for if he himself was sued in the action on the peculium, what is owing to him would be deducted in full. This Julianus stated in the Twelfth Book of the Digest. 1If the slave of a ward or of an insane person, with the knowledge of his guardian or curator, employs the funds of the peculium in business transactions, I am of the opinion that the fraud of the guardian or of the curator should not prejudice the ward, or the insane person, nor should it be a source of gain to him; and hence he ought not to be liable to the Tributorian Action, on account of the fraud of the guardian, only so far as he may have derived any advantage from it. I think that the same rule applies to an insane person, although Pomponius, in the Eighth Book of Epistles, stated that if a guardian is solvent, his ward is liable on account of his fraud, and it is evident that he will be liable to such an extent that he must assign the right of action which he has against his guardian. 2Again, if fraud was committed by the ward himself, and he is of such an age as to be capable of it, it has the effect of rendering him liable; although his knowledge may not be sufficient for the transaction of business. What course must then be pursued? The knowledge of the guardian and curator should furnish ground for this action, and I have shown to what extent fraud may cause injury.

Ulpianus, On the Edict, Book XXIX. Ad Dig. 14,4,5 pr.ROHGE, Bd. 6 (1872), S. 85: Umfang der Ermächtigung des Inspectors einer Feuerversicherungsgesellschaft zur Feststellung des Schadens.ROHGE, Bd. 6 (1872), S. 403: Recht des durch den Procuristen Betrogenen, die ganze Contractsobligation gegen den Geschäftsführer oder gegen den Principal geltend zu machen.Pomponius does not doubt, however, neither do we, that the knowledge and the malicious intent of an agent prejudice the principal. 1Where the sub-slave of my slave transacts business, and I am aware of the fact, I shall be liable to the Tributorian Action, but if I am not aware of it, and the chief slave is, Pomponius states in the Sixtieth Book, that an action De peculio should be granted, and that nothing should be deducted from the peculium of the sub-slave for what he owes to the chief slave, while what is due to me should be deducted. But if both of us were aware of the facts, he says that both the Tributorian Action and the one on the peculium will lie; the Tributorian Action on account of the sub-slave, and that on the peculium on account of the chief slave; but the plaintiff must decide under which action he would rather proceed, but in such a way that contribution shall be made of both what is due to me and what is due to the chief slave, while if the latter was ignorant of the facts, whatever was due to him from the sub-slave should be deducted in full. 2Moreover, where a female slave transacts business, we hold that the Tributorian Action will lie. 3Again, it makes little difference whether the contract is entered into with the slave himself or with his business manager. 4The terms, “On account of the business,” are added with good reason, in order to prevent every kind of transaction carried on with him from affording ground for the Tributorian Action. 5By means of this action it is established that everything connected with the merchandise, or which has been received on account of it, shall be subject to contribution. 6Those who have slaves under their control are called upon to contribute, together with the creditors of the business. 7The question arose, however, whether the master has a right to share in the division of the merchandise only to the extent of what is due to him on account of the same; or whether he can do so on account of other matters? Labeo says that this is the case where money is due to him for any reason whatsoever; and that it makes very little difference whether the slave became indebted to him before or after the business was transacted, for it is sufficient that he has lost the privilege of deduction. 8What would be the case, however, if those who contracted with the slave received the merchandise itself by way of pledge? I think that it should be said that they will be preferred to the master by the right of pledge. 9Whether the debt is owing to the master or to those who are under his control, contribution must be made in every instance. 10Where there are two or more masters, contribution should be made to each of them in proportion to his debt. 11The entire peculium, however, is not subject to contribution, but only that which is connected with the business, whether it consists of merchandise, or whether the price of the latter has been received and placed in a peculium. 12Again, if money was due for merchandise from parties to whom the slave was accustomed to make sales, this also will be subject to contribution to the extent of the receipts. 13If, in addition to merchandise, this slave has in the shop utensils belonging to the business, are these also subject to contribution? Labeo says that they are, and this is perfectly just, for generally, and in fact always, such tools are derived from the stock. Other articles, however, which he had in the peculium will not be liable to contribution, as for instance, if he had silver or gold, except where he acquired them with money obtained from trade. 14Moreover, if he employed slaves in the business who had been acquired with the proceeds of the same, these also will be subject to contribution. 15If the slave had several creditors, but some of them were engaged in certain branches of commerce, are all of them to be brought in and called upon to share in the contribution; for example, if he was engaged in two kinds of business, such as cloak making and the weaving of linen, and had separate creditors? It is my opinion that they should be called upon separately to share in the contribution, for each of them gave credit rather to the business than to the party himself. 16Moreover, if he had two shops devoted to the same kind of business, and I, for example, purchased goods at the shop in the Bucinum, and someone else made purchases in that across the Tiber; I think it would be perfectly just that the contributions should be made separately, to avoid having one set of creditors indemnified out of the property of the other, and the latter suffer loss. 17It is evident that if merchandise is offered for sale in the same shop, even if what was there had been obtained with the money of one of the creditors, it will all be subject to contribution, unless it was pledged to the creditor. 18Ad Dig. 14,4,5,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 370, Note 11.If, however, I have delivered my merchandise to be sold, and it is still in existence, let us consider whether it will not be unjust that I should be called upon for contribution? If, however, I have only a claim against the slave, there will be ground for contribution, but if this is not the case, for the reason that property which is sold does not cease to belong to me, even though I have disposed of it, unless the money has been paid, or a surety furnished, or satisfaction made in some other manner; it must be said that I can bring an action for recovery. 19Contribution, however, is made in proportion to the amount which is due to each one; and therefore if one creditor appears asking for contribution, he will obtain his share in full, but since it may happen that there is one other or several other creditors of the business conducted with a peculium, this creditor must furnish security that he will refund pro rata if other creditors should appear.

Ulpianus, On the Edict, Book XXIX. He should also furnish security that, if anything else should be found to be due to the master, he will refund it to him pro rata; for suppose that a conditional debt is about to be due, or that there is one which has been concealed; this also must be admitted, for the master should not suffer injury, even though he may be called to share in the contribution. 1What, however, must be done if the master refuses to make contribution, or to take this trouble, but is prepared to surrender the peculium or the goods? Pedius states that he should be heard, and this opinion is equitable; and generally, the Prætor should appoint an arbiter, by whose intervention the goods belonging to the peculium may be distributed. 2Where, through the malicious contrivance of anyone, the result is that the proper contribution was not made, the Tributorian Action is granted against him, in order to compel him to make good the amount by which what was contributed is less than it should have been. This action acts as a restraint upon the malicious intent of the master. It is held that too little is contributed, if nothing is contributed. Where, however, he, being ignorant of what the slave has invested in merchandise, contributes too little, he is not held to have acted with malicious intent; but if, having ascertained the facts, he neglects to make proper contribution, he is now not free from fraud. Hence if he obtains payment to himself out of the merchandise, he is, in fact, held to have fraudulently contributed too little. 3Again, if he permitted the property to be destroyed, or to be converted to an improper purpose, or intentionally sold it at too low a price, or did not require payment from the purchasers; it must be held that he will be liable to the Tributorian Action, if fraudulent intent existed. 4Moreover, if the master denies that anything is due to anybody, it should be considered whether there is ground for the Tributorian Action. The opinion of Labeo that this action will lie is the better one; otherwise it will be expedient for the master to set up a denial. 5This action is both perpetual and granted against the heir, but only for the amount which conies into his hands:

Ulpianus, On the Edict, Book XXIX. What we state with respect to the heir will also apply to other successors. 1A party must elect by what kind of an action he will proceed, whether by the one on the peculium, or by the Tributorian Action, since he knows that he can not have recourse to the other. It is clear that if anyone desires to bring the Tributorian Action for one claim, and the one De peculio for another, he should be heard. 2Labeo says that if the peculium is bequeathed to a slave manumitted by will, the heir should not be liable to the Tributorian Action, as neither has obtained anything nor has been guilty of fraud. Pomponius, in the Sixtieth Book, states that the heir is liable to the Tributorian Action, unless he took care to obtain security for himself from the slave, or deducted from the peculium what should have been contributed. This opinion is not unreasonable, since he who acted in such a way as to avoid contribution is himself guilty of malicious contrivance. For the action against the heir with reference to what comes into his hands will be granted by us, as often as he is sued on account of the fraud of the deceased, but not when he is sued on account of his own.

Ulpianus, On the Edict, Book XXIX. The Prætor says: “After proper cause is shown I will grant an action for the amount that the party is able to pay against anyone who is emancipated or disinherited, or who has rejected the estate of the person under whose control he was at the time the former died; whether the business was transacted on his own responsibility, or with the consent of the party to whose control he was subject; and whether this was done for the benefit of his own peculium, or for that of the estate of him under whose control he was.” 1Further, if he had become his own master without emancipation, or was given in adoption and his natural father afterwards died, and, moreover, if he had been appointed heir to a very small share of the estate, it is perfectly just that, after investigation, an action should be granted against him for the amount that he is able to pay.

The Same, On the Edict, Book XXIX. But where the son is appointed heir of a larger portion of the estate, it is in the choice of the creditor whether he will sue him for the share of the estate to which he is entitled, or for the entire amount of the claim. In this instance also it is the duty of the judge to decide whether he should be sued only for the amount which he is able to pay. 1Sometimes, however, if the son is disinherited or emancipated, an action will be granted against him for the entire amount; for example, if, when the contract was made with him, he denied that he was the head of the household; for Marcellus stated in the Second Book of the Digest that an action can be brought against him on account of his falsehood, even if he is not able to pay. 2Although an action can be brought against him on his contracts only for the amount that he is able to pay, still, he may be sued for the entire amount on account of his offences. 3Relief is granted to the son alone, and not to his heir also; for Papinianus states in the Ninth Book of Questions that an action for the entire indebtedness should be granted against the heir of the son. 4But ought not the lapse of time be considered, so that, if proceedings are instituted without delay against the son, the action may be granted for what he is able to pay, but if many years have elapsed he should not be indulged in this way? It seems to me that it ought to be considered, for the investigation of the case will include this. 5Where a party brings suit on the peculium when he could have brought an action on the ground of having been expressly authorized, he is in the position of not being able subsequently to bring an action on the ground of special authority given; and this is the opinion of Proculus. But if the plaintiff, having been deceived, brings the action De peculio, Celsus thinks that he is entitled to relief, and this opinion is reasonable.

Ulpianus, On the Edict, Book XXIX. The words of the Macedonian Decree of the Senate are as follows: “Whereas, among the other causes of crime which nature bestowed upon him, Macedo also added indebtedness, and as he who lends money on doubtful security (without saying any more) often furnishes material for wrong-doing to parties who are evilly disposed; it is hereby decreed that no action or claim shall be granted to anyone who has lent money to a son under paternal control, even after the death of the parent to whose authority he was subject, so that those who, by lending money at interest, set an extremely bad example, may learn that the obligation of no son under paternal control can become a valid claim by waiting for the death of his father.” 1If the question as to whether the son is under parental control is in abeyance, for instance, because his father is in the hands of the enemy, the question as to whether the Decree of the Senate has been violated is itself in abeyance; for if he should again come under parental control, the Decree of the Senate will become operative, but if he does not, it will not apply; and therefore in the meantime an action should be refused. 2It is certain that if a party who has been arrogated borrows money and afterwards obtains restitution, so that he can be emancipated, the Decree of the Senate will be available, for he was a son under paternal control. 3Ad Dig. 14,6,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 6.Any office held by a son under paternal control will not cause the Macedonian Decree of the Senate to become inoperative; for even though he be Consul, or hold any other office, the Decree of the Senate applies, unless he should have castrense peculium, for in this instance the Decree of the Senate will not be applicable.

The Same, On the Edict, Book XXIX. Where anyone believed an individual to be the head of a family, not having been deceived by vain folly or ignorance of law, but because he was publicly considered by most persons to be such, and acted, made contracts, and performed the duties of offices as the head of a household, the Decree of the Senate will not be applicable. 1Wherefore, Julianus states in the Twelfth Book of the Digest that the Decree of the Senate will not apply in the case of a party who was accustomed to farm out the public revenues, and this has been frequently decided by the Emperor. 2Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Prætor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan; just as Julianus himself states in the Twelfth Book of the Digest, that if a son under paternal control makes a loan the Decree of the Senate is not applicable, since the money does not become a loan even if he had the unrestricted management of the peculium. For the father, when he granted him the management of the peculium, did not give him permission to waste it, and therefore he says the right to bring suit for the recovery of the money remains with the father. 3Ad Dig. 14,6,3,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 370, Note 11.Only he, however, violates the Decree of the Senate who lent money to a son under paternal control, not one who contracted otherwise, for example, one who has sold, leased, or entered into a contract of another kind, for it was the giving of money which was held to be dangerous to their parents. And therefore, even though I have become the creditor of a son under paternal control, either because of purchase, or on account of some other contract in which I have not paid down any money, but in which I made a stipulation; although the transaction has become a loan, still, as the payment of money did not take place, the Decree of the Senate will not be applicable. This, however, can only be said where no fraud on the Decree of the Senate is intended; so that the party who could not lend money preferred to sell to him, in order that he might have the price of the property instead of a loan. 4If I entered into a stipulation with a son under paternal control, and lent him money after he became the head of the household, whether his change of civil status had occurred through the death of his father, or he had become his own master in some other way without affecting his civil rights; it should be held that the Decree of the Senate is not operative, because the loan was made to one who was already the head of a family;

Ulpianus, On the Edict, Book XXIX. Also, if a son subject to paternal control becomes a surety, Neratius states in the First and Second Book of Opinions that the Decree of the Senate is not applicable. Celsus says the same thing in the Fourth Book, but Julianus adds that if a pretext is sought, in order that a son under paternal control, who was about to receive a loan, may become a surety, another party appearing as the principal debtor; the fraud committed against the Decree of the Senate causes prejudice, and that an exception should be granted to the son under paternal control as well as to the principal debtor, since relief is granted also to the surety of a son. 1He also says that if I accept two debtors, a son under paternal control and Titius, when the money was to come into the hands of the former, but I accept Titius as the principal debtor, in order that, as surety, he might not take advantage of the Decree of the Senate; an exception based upon this fraudulent act should be granted. 2Moreover, if a son under paternal control when his father had been exiled or was absent for a long time, promised a dowry for his daughter, and gave property of his father in pledge; the Decree of the Senate will not apply, and the property of the father will not be liable. It is evident that if the son becomes the heir of his father, and brings an action to recover the pledge, he will be barred by an exception on the ground of fraud. 3It should be considered whether we ought to hold that a loan is not only the payment of money, but, in fact, the delivery of everything which can be lent. The words, however, seem to me to refer to money paid, for the Decree of the Senate says, “Has lent money.” But if a fraud has been committed on the Decree of the Senate, for example, where grain, wine, or oil is lent, so that, these things having been sold, the money obtained from them may be used, relief should be granted to a son under paternal control. 4Where the son was under the control of one party when the loan was made, and is now under that of another, the intention of the Decree of the Senate remains, and an exception will therefore be granted. 5But if it was not the death of the father, but something else which happened to him, through which his civil status was changed, it must be said that the Decree of the Senate will be operative. 6The action should be denied not only to the party who lent the money, but also to his successors. 7Hence, if one person paid the money and another made the stipulation, the exception would be granted against the latter, even though he did not make the payment. But if one or the other of them was not aware that he was under the control of his father, the severe rule that the rights of both are prejudiced, is applicable. This is also the case where two debtors enter into the stipulation. 8Moreover, if I accepted two sons under paternal control as debtors, but thought that one of them was the head of a family; it will make a difference which of them got the money, so that, if I was aware that the one to whom the money went was a son under paternal control, I shall be barred by an exception; but if I did not know into whose hands it came, I will not be barred. 9The Decree of the Senate will apply whether the money was lent at interest, or without it. 10Although the Senate does not state to whom it grants the exception, still, it must be remembered that the heir of a son under paternal control, if he dies the head of a family, and his father, if he dies under paternal control, can make use of the exception. 11Sometimes, however, even though there is ground for the Decree of the Senate, still, an action will be granted against a third party; as, for instance, if a son under paternal control, who is a business manager, borrowed money; for Julianus states in the Twelfth Book that the business manager himself can make use of the exception based on the Decree of the Senate, if suit is brought against him; but the Institorian Action will lie against the party who appointed him. He further says that if the father himself had appointed him to carry on his business, or he was permitted to manage his own peculium the Decree of the Senate would not be available, since he would be held to have contracted with the consent of the father; for if the latter knew that he was transacting business, he may be held to have permitted this also, if he did not expressly forbid it. 12Thus, if he has borrowed money and employed it in his father’s business, the Decree of the Senate will not apply, for he borrowed it for his father and not for himself. But if in the beginning he did not borrow it for this purpose, but afterwards employed it in the business of his father, Julianus says in the Twelfth Book of the Digest that the Decree of the Senate does not apply, and that he must be understood to have received it in the first place with the intention of employing it in his father’s business. He will not, however, be held to have employed it in this manner if he pays to his father, for the settlement of his own debt, money which he has borrowed; and therefore, if his father was not aware of it, the Decree of the Senate will still be operative. 13Where it is stated that the Decree of the Senate does not apply in the case of a person who, being absent for the purpose of prosecuting his studies, borrowed money; it will be applicable if he, when borrowing the money, did not exceed a moderate limit, or, at all events, the amount with which his father was accustomed to provide him. 14Ad Dig. 14,6,7,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 11.If a son has borrowed money in order to satisfy someone who, if he should bring suit could not be barred by an exception, an exception based on the Decree of the Senate will not be available. 15Again, the Decree of the Senate will not apply if the father begins to pay what the son has borrowed, just as if he ratified the act. 16Ad Dig. 14,6,7,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 17.If, after he has become the head of a family, he pays part of the debt, the Decree of the Senate will not apply, and he cannot recover what he paid.

Ulpianus, On the Edict, Book XXIX. Ad Dig. 14,6,9 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 17.But if, when he has become the head of a family, he gives property by way of pledge, it must be said that the exception based on the Decree of the Senate should be refused him, to the extent of the value of the pledge. 1Ad Dig. 14,6,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 16.Where the son pays the creditor money which has been given to him, can a father claim said money as belonging to him, or can he recover it by a personal action? Julianus says that if, in fact, the money was given to him on the condition that he should pay it to the creditor, it must be held to have passed immediately from the donor to the creditor, and to have become the property of him who received it, but if it was merely given to him, the son had no right to dispose of the money, and therefore, if he paid it, an action for its recovery will lie in behalf of the father, in any event. 2This Decree of the Senate has reference also to daughters under paternal control, nor does it signify if they are said to have obtained ornaments with the money; for an action is refused by a Decree of the most eminent Order of the State to a party who has lent money to a son under paternal control; and it makes no difference whether the coins have been consumed, or still exist as part of the peculium. Much more, therefore, should a party who has lent money to a daughter under paternal control have his contract disapproved by the severity of the Decree of the Senate. 3Ad Dig. 14,6,9,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 477, Note 9.Relief is not only granted to a son under paternal control and to his father, but also to his surety, and to the party under whose direction he acted, and who themselves may have recourse to the action on mandate, unless they have intervened with the intention of making a gift; for then, as they have no recourse to him, the Decree of the Senate will not be applicable. If, however, the parties intervened, not with the intention of making a gift, but at the wish of the father, the entire contract will be held to have been approved by the latter. 4Those also have intervened in behalf of a son under paternal control without the consent of the father, cannot recover after they have made payment; for this was decreed also by the Divine Hadrian, and it may be said that they will not recover their money. Still, however, they are protected by a perpetual exception, and so is the son himself, but he does not recover, for the reason that those only cannot regain what they have paid who are released from an action by way of penalty on the creditors, and not because the law intended that they should be absolutely discharged from liability. 5Although they cannot recover after having paid,

Ulpianus, On the Edict, Book XXIX. Still, if not having pleaded an exception, they have judgment rendered against them, they can make use of the exception based on the Decree of the Senate. Julianus stated this in the case of a son who was himself under paternal control, just as in the case of a woman who becomes a surety.

Ulpianus, On the Edict, Book XXIX. The Prætor judged it to be the proper way to first explain the contracts of those who are subjected to the authority of another which give a right of action for the entire amount, and then to come to the present one, where an action is granted on the peculium. 1This Edict, moreover, is threefold, for from it arises an action on the peculium, one for property employed in the affairs of another, and one based upon the order of another. 2The words of the Edict are as follows: “Whatever business is transacted with him who is under the control of another.” 3Mention is made of him and not of her, still, however, an action is granted by this Edict on account of one belonging to the female sex. 4Where a contract is made with a son under paternal control or a slave who has not yet reached puberty, the action on the peculium is granted either against the master or the father, if the peculium of either of them has been increased in value. 5The word “control” is understood to be applicable both to the son and to the slave. 6The ownership of slaves should not be given greater consideration than the right of having authority over them; for we may be sued not only on account of our own slaves but also on account of those who are held in common, as well as of those who serve us in good faith as slaves, whether they are freemen, or the slaves of others.

Ulpianus, On the Edict, Book XXIX. Although the Prætor promises this action where business was done with a party who is under the control of someone, still, it must be remembered that the action on the peculium is granted even if he is under the control of no one; for instance, where a contract is made with a slave belonging to an estate before the estate is entered upon. 1Wherefore Labeo says that if a slave is substituted in the second or third degree, and a contract is made with him while the heirs of the first degree are deliberating, and, afterwards, when they reject the estate, he himself becomes free and an heir, it may be said that an action can be brought against him on the peculium, as well as on the ground of property employed in the affairs of another. 2It is of little importance whether a slave belongs to a man or a woman, for a woman can also be sued in an action on the peculium. 3Pedius states that even owners under puberty can be sued in the action on the peculium, for the contract is not made with the minors themselves, and the authority of the guardian must be considered. He also says that a ward cannot give his peculium to a slave without the authority of his guardian. 4We say also that the action on the peculium should be granted against the curator of an insane person; for even the slave of the latter may have a peculium, not where it has been conceded that he should have it, but where he was not prohibited from having it. 5It has been discussed, whether if a son under paternal control or a slave becomes surety for anyone, or incurs liability in any other way, or gives a mandate, an action on the peculium will lie? The better opinion is that in the case of a slave the cause for giving the security or the mandate should be considered; and Celsus in the Sixth Book approves of this opinion in the case of a slave who is a surety. Therefore, where a slave intervenes as surety, and not as managing property belonging to the peculium, his master will not be bound on account of the peculium. 6Julianus also stated in the Twelfth Book of the Digest that where a slave directs that a payment be made to my creditor, it should be ascertained what reason he had for giving this mandate. If he directed him to make payment to the party as to his own creditor, the master will be liable on the peculium, but if he only performed the duty of a voluntary surety, the master will not be liable on the peculium. 7What the same Julianus stated agrees with the following, namely; if I accept a surety from my son, whatever I receive from the said surety I shall be compelled to make good, not on the ground of property employed for my benefit, but in an action on mandate to the amount of the peculium. You may understand that the same rule applies in the case of the surety of a slave, and where another person pays me in behalf of my son who is my debtor. He also stated that if my son was not my debtor, the surety will be entitled to make use of an exception on the ground of fraud, and to bring a personal action for recovery if he has made payment. 8Where a slave who is assuming to be a freeman, consents to arbitration, the question arises whether an action on the peculium should be granted for the penalty for non-compliance with the award, this being, as it were an instance of voluntary agency, just as it is granted in the case of a maritime loan? The better opinion seems to both Nerva, the son, and myself to be that an action on the peculium arising from a reference to arbitration by a slave should not be granted, since an action is not granted against him if the slave is condemned in court. 9Where a son is accepted as a surety, or is voluntarily bound in any way, the question arises whether he makes his father liable on the peculium? The correct opinion is that of Sabinus and Cassius, who think that the father is always liable on the peculium, and that the son differs in this respect from the slave. 10Wherefore, the father will always be liable where a reference to arbitration is made. Papinianus also makes a similar statement in the Ninth Book of Questions; and he says that it makes no difference what point was referred to arbitration, whether it was one on which a party could have brought an action on the peculium against the father, or one on which he could not have done this, as suit is brought against the father on the stipulation. 11He also says that the father is liable to an action on a judgment to the amount of the peculium, and this view Marcellus likewise holds, even in a case on account of which a father would not be liable to a suit on the peculium; for just as in a stipulation a contract is made with the son, so also a contract is made in a case in court; hence the origin of the proceeding should not be considered as the source of the obligation, but the liability under the judgment. Wherefore, he is of the same opinion where the son, acting as a defender of another, has a decision rendered against him. 12It is established that a personal action for recovery on the ground of theft can be brought against a son under paternal control. The question arises, however, whether the action on the peculium should be granted against the father or the master, and the better opinion is that the action on the peculium should be granted for the amount by which the master has been pecuniarily benefited by the theft which was committed. Labeo approves of this opinion, for the reason that it is most unjust that by the theft of the slave, the master should profit without being accountable. For the action on the peculium will also lie in a case where property has been carried away, and an action is brought on account of a son under paternal control to the amount which has come into the hands of the father. 13If a son under paternal control who is a duumvir, did not take care that security be given to insure the safety of the property of a ward, Papinianus says in the Ninth Book of Questions that the action De peculio will lie. I do not think that the question whether the son was made a decurion with the consent of his father changes anything, for the father was obliged to provide for the public welfare.

Ulpianus, On the Edict, Book XXIX. The father or master can be sued on account of a deposit only to the extent of the peculium, and where advantage has been taken of me through any wrongful conduct of theirs. 1Moreover, the father or master is liable only to the amount of the peculium, where any property has been delivered to a son under paternal control, or to a slave to be held on sufferance. 2Where a son under paternal control has tendered an oath, and it has been taken, an action on the peculium should be granted, as if a contract had been entered into; but it is different in the case of a slave. 3The peculium is so called on account of its being a trifling sum of money or a small amount of property. 4Tubero, however, defines peculium to be (as Celsus states in the Sixth Book of the Digest) what the slave has separate and apart from his master’s accounts with the permission of the latter, after deducting therefrom anything which may be due to his master.

Ulpianus, On the Edict, Book XXIX. Celsus himself approves of this opinion of Tubero. 1Ad Dig. 15,1,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 484, Note 7.And he adds that a ward of an insane person cannot grant a peculium to his slave, but the peculium which has been previously granted (that is before the insanity occurred, or where it was created by the father of the ward), will not be taken away by these conditions. This opinion is correct, and agrees with what Marcellus added in a note on Julianus, namely: that it can happen that where a slave has two masters he may have a peculium with reference to one, but not with reference to the other; for instance, where one of the masters is insane or a ward, if, as he says, some hold that a slave cannot have a peculium unless it is granted by his master. I think, however, that in order for the slave to have a peculium, it is not necessary that it should be granted by his master, but that it cannot be taken away. The free administration of the peculium is a different matter, for this must be explicitly granted. 2It is evident, however, that it is not necessary for him to know all the details of the peculium, but to be generally informed as to them; and Pomponius inclines to this opinion. 3Pedius states in the Fifteenth Book that a minor, as well as a son and a slave, can have a peculium, since he says that in this instance, everything depends upon the grant of the master, and therefore if the slave or the son should become insane, he will retain the peculium. 4Property of all kinds, both chattels and land, may be included in the peculium; the party may also have in his peculium sub-slaves as well as the peculium of the latter, and, in addition to this, even claims due from their debtors. 5Moreover, if anything is owing to the slave in an action of theft or in any other action, it is counted as part of the peculium, and as Labeo says, an estate and a legacy likewise. 6Again, he will have in his peculium whatever his master owes him, for suppose he has expended money in the business of his master, and the latter is willing to remain his debtor, or his master has brought suit against one of his debtors. Wherefore, for example, if the owner has recovered double damages for eviction on account of a purchase by the slave, the amount must be turned into his peculium, unless the master should happen to have had the intention that this should not form part of the peculium of the slave. 7In like manner, if a fellow-slave owes him anything, it will belong to the peculium, provided he has a peculium, or shall acquire one afterwards.

Ulpianus, On the Edict, Book XXIX. But if the master causes any damage to his slave, this will not be credited to the peculium, any more than if he stole it. 1It is clear that if a fellow-slave has committed any damage to property, or stolen it from the other, this will be considered to form part of the peculium, and Pomponius holds the same opinion in the Eleventh Book, for if the master either has recovered or can recover anything from a party who has stolen property from the peculium, this, Neratius says, in the Second Book of Opinions, must be credited to him. 2The peculium, however, is to be computed after what is due to the master has been deducted, for the master is presumed to have been more diligent, and to have proceeded against his slave. 3To this explanation Servius adds: “Where anything is due to those who are under his control,” for no one doubts that this also is owing to the master. 4Moreover, that also will be deducted which is due to those persons who are under the guardianship or care of the master or father, or whose business he is attending to, provided he is free from fraud; since if he destroys or diminishes the peculium by fraudulent acts, he will be liable; for if the master is always presumed to be more diligent and to bring suit, why may he not be said also to have proceeded against himself in this instance, in which he would be liable either on the ground of guardianship, or of business transacted, or in an equitable action? For, as Pedius very properly says, the amount of the peculium is diminished by what is owing to the master or father, because it is not probable that the master would consent to the slave having in his peculium what is owing to him. And, indeed, since, in other instances, we say that one who is attending to business for another or who is administering a guardianship, has recovered money from himself, why should he not in this case of peculium also have recovered what he ought to have done? Therefore this opinion may be defended, just as if he had paid the amount to himself, where anyone attempts to bring an action on the peculium. 5The creditor of the slave who has become the heir of his master, also deducts from the peculium whatever is owing to him, if he is sued, whether the slave has received his freedom or not. The same rule applies if the slave is bequeathed absolutely; for he can deduct what is due to him in this way, as if he had appeared and proceeded against himself, although he had, at no time, the ownership of the slave who was manumitted or bequeathed unconditionally; and this Julianus states in the Twelfth Book of the Digest. Julianus says in the same place, more positively, that it is certain if the slave has received his freedom on some condition, the heir can make the deduction, for he has become the master. To confirm his opinion, Julianus also states that if I become the heir of a party who, after the death of the slave or the son, could have been sued within a year on the peculium, there is no doubt that I can deduct what is owing to me. 6The master will make the deduction, whether the slave owes anything to him on a contract, or on accounts which remain unpaid. And also if he owes him because of some offence, as, for instance, on account of a theft which he has committed, the deduction will be made. It is a question, however, whether the amount of the theft itself, that is, only the loss which the master has sustained, shall be deducted, or in fact only so much as could be demanded if the slave of another had committed the offence; that is to say, with the penalties for theft. The former opinion is the more correct one, namely, that only the amount of the theft itself can be deducted. 7Where a slave has wounded himself, the master should not deduct this damage, any more than if he had killed himself or thrown himself over a precipice; for even slaves have a natural right to inflict injuries upon their bodies. But if the master has cared for the slave who has been wounded by himself, I think that he is indebted to his master for the expenses incurred; although if he had cared for him when he was ill, he would rather have been seeing after his own property. 8Again, if a master has bound himself on account of a slave, or, having done so has made payment, this will be deducted from the peculium; so, likewise, if money has been lent to him by the direction of his master; for Julianus states in the Twelfth Book of the Digest that this should be deducted. I think that this is true only where what was received did not come into the hands of the master or father, otherwise, he ought to charge this against himself. If, however, he becomes security for his slave, Julianus states in the Twelfth Book of the Digest, that this should be deducted; Marcellus, however, says that, in both instances, if the master has not yet lost anything, it is better that the money should be paid to the creditor, provided he gives security to refund it, if the master is sued on this account and pays anything; than that the deduction should be made in the first place, so that the creditor, in the meantime may profit by the interest on the money. Where, however, the master, having been sued, has judgment rendered against him, a deduction should be made in a subsequent action on the peculium, as the master or father has become liable on the judgment; for, if not having had judgment rendered against him, he should have paid the creditor anything on account of the slave, he could deduct this also.

Ulpianus, On the Edict, Book XXIX. Where a master who has been sued in a noxal action has paid the damages assessed, this ought to be deducted from the peculium; but where he surrendered the slave by way of reparation, nothing should be deducted. 1Moreover, if the master bound himself to pay something on account of the slave, this should be deducted; just as if the slave had promised to assume the obligation of a debtor to his master. The same rule applies if he has assumed an obligation to his master in consideration of his freedom, he, having become, to a certain extent, a debtor of his master, but only where suit is brought against him after he has been manumitted. 2Where, however, a slave has exacted payment from a debtor of his master, the question arises whether he has made himself a debtor to his master? Julianus, in the Twelfth Book of the Digest, says that the master will not be entitled to make a deduction, unless he ratified the collection of the money, and the same must also be said in the case of a son under paternal control. I think that the opinion of Julianus is correct, for we take into account natural debts in deductions from the peculium; for natural equity requires that a son or a slave should be released from liability because he seems to have exacted what was not due. 3It is a question, however, whether, what the master has once deducted, when he has been sued, he should again remove from the peculium, if suit is brought against him; or whether, where deduction has once been made, it should be held that he has been satisfied. Neratius and Nerva think, and Julianus also states in the Twelfth Book of the Digest, that if he really removed it from the peculium it should not be deducted, but if, in fact, he left the peculium in the same condition he should make a deduction. 4He further says that, if a slave has in his peculium a sub-slave worth five aurei, and he owes the master five, on account of which the master deducted the sub-slave, and the latter having afterwards died, the slave purchased another of the same value; he does not cease to be a debtor to the master, just as if the sub-slave had been a loss to the latter, unless he happened to die after he had taken him away from the slave and had paid himself. 5The same author very properly says that, if when the sub-slave was worth ten aurei, the master having been sued on the peculium paid five on account of the slave, because five were due to himself, and that afterwards the sub-slave died; the master can deduct ten aurei against another plaintiff on the peculium, because he had made the slave his debtor with reference also to the five aurei which he had paid on his account. This opinion is correct, unless he took the sub-slave away for the purpose of paying himself. 6What we have said, however, that is, that what is due to him who is sued on the peculium should be deducted, must be understood to mean if he could not recover this in any other way. 7Julianus then says that if a vendor who has sold a slave together with his peculium, is sued on the peculium, he should not deduct what is due to him, for he could have deducted this from the account of the peculium; and he can now bring a personal action to recover it as not having been due, since what is owing to the master is not to be included in the peculium. He can also, so he says, bring an action on sale. This is to be approved where there was so much in the peculium when it was sold that the master could satisfy his debt, but if afterwards there was an addition made to his claim, and the condition of the debt having been fulfilled, which debt the master has not satisfied, the contrary opinion must be held. 8He also asks, if anyone has obtained a slave on account of whom he had an action on the peculium, can he deduct what is owing to him since he is entitled to an action De peculio against the vendor? He says very properly that he can, for any other person, likewise, can choose whether he will bring suit against the vendor or the purchaser, and this party therefore selects deduction instead of suit. I do not see what the creditors have to complain of, since they themselves can sue the vendor if they think that perhaps there may be something in the peculium. 9But, not only what is owing to the party who is sued should be deducted, but also what may be owing to his partner, and Julianus holds this opinion in the Twelfth Book of the Digest; for, accordance with the same principle on which either may be sued for the entire amount, he has a right to deduct what is due to the other. This opinion is accepted:

Ulpianus, On the Edict, Book XXIX. But that neither party can deduct what is due to the other is not true in the case of purchaser and vendor, of usufructuary and the mere owner, and in that of others who are not partners, as well as the sole proprietor and the bona fide purchaser; and this Julianus states in the Twelfth Book.

Ulpianus, On the Edict, Book XXIX. But if there are two bona fide possessors, it must still be said that neither can deduct more than is due to him; and the same rule applies where there are two usufructuaries, because they have no partnership between them. The same rule sometimes also applies to the case of partners, if they should happen to have separate peculia among themselves, so that one of them cannot be sued on account of the peculium of the other. Where, however, the peculium is in common, they may be sued for the entire amount, and what is owing to each one of them shall be deducted.

Ulpianus, On the Edict, Book XXIX. If my ordinary slave has sub-slaves, can I deduct from the peculium of my ordinary slave what the sub-slaves owe me? And the first question is, whether their peculia are included in that of the ordinary slave. Proculus and Atilicinus think that as the sub-slaves belong to the peculium together with their own peculia, and indeed, what their owner (that is to say the ordinary slave) owes me can be deducted from their peculium, but that, however, which the sub-slaves themselves owe, can only be deducted from their own peculium. Moreover, if they are indebted, not to me but to the ordinary slave, the amount due will be deducted from their peculium as owing to a fellow-slave. That, however, which the ordinary slave owes to them will not be deducted from the peculium of the former, because their peculium is included in his. Servius was of this opinion, but I hold that their peculium will be increased, just as if a master is indebted to his slave.

Ulpianus, On the Edict, Book XXIX. Hence the question arises whether, if an action is brought on a peculium on account of the ordinary slave, proceedings can also be instituted with reference to the sub-slave, and I think this cannot be done. But where an action has been brought on the peculium of a sub-slave, one can also be brought on the peculium of the ordinary slave. 1There may be in my hands a peculium held by two different legal titles; as, for instance, if there is a dotal slave, he may have a peculium in which I am interested, and he may also have one in which my wife is interested, for what he has obtained through the business of the husband, or by his labor, belongs to the husband; and hence, if he has been appointed an heir, or a legacy has been bequeathed to him with reference to the husband, Pomponius says that he is not obliged to give it up. Therefore, if an action is brought against me on a contract in which I am interested, can I deduct everything that is owing to me, whether connected with my own business or with that of my wife? Or do we separate the cases of the husband and wife so far as the two peculia are concerned, to enable the origin of the debt for which suit is brought to be considered; so that if, in fact, proceedings are instituted with reference to the peculium in which the wife is concerned, I can deduct what is due from that contract, if on a contract in which I am interested I can deduct what belongs to me? This question is more clearly treated in the case of an usufructuary, whether suit on the peculium can be brought against him only on the contract which concerns him, or whether it can be brought on any contract? Marcellus states that the usufructuary is also liable, and on any contract, for he who makes the contract considers the entire peculium of the slave to be his own property. He says that it is evident that it must be admitted, in any event, that when the party who is interested in the matter has been first sued, he who has not obtained anything may be sued for the remainder. This opinion is the more reasonable one, and is approved by Papinianus. It must also be held in the case of two bona fide purchasers. But in the case of the husband, it is better to say simply that he is liable to the action on the peculium. If, however, the husband had paid something on account of a slave of this kind, can he deduct it as against the wife bringing an action on account of her dowry? And he says that if what was paid to the creditor relates to the peculium of each kind, it should be deducted pro rata from the peculium of both, and from this it may be understood that if the contract had reference to either peculium, there will be, on the one hand, a deduction made for the wife alone, and on the other, none will be made, if the contract had reference to that peculium which remained with the husband. 2Sometimes an action on the peculium is granted to the usufructuary himself against the master; as, for instance, if the slave has a peculium with reference to the former but with reference to the latter he has none, or less than what is due to the usufructuary. Conversely speaking, the same thing takes place, although in the case of two owners an action on partnership or one for the partition of common property will be sufficient;

Ulpianus, On the Edict, Book XXIX. The Prætor has also, for the best of reasons, charged to the peculium whatever the master had done with malicious intent through which the peculium is diminished. We must, however, understand malicious intent to signify where he has deprived him of the peculium, and also where he has permitted him to involve the affairs of the peculium to the prejudice of creditors; and Mela writes that this is an act performed with malicious intent. Moreover, if when anyone entertains the idea that some other party is going to bring an action against him, and transfer the peculium to someone else, he is not free from fraud. If, however, he pays the debt to a third party, I have no doubt that he is not liable, as he pays a creditor, and it is lawful for a creditor to be diligent in recovering what belongs to him. 1If the act is committed through the fraud of a guardian, the curator of an insane person, or an agent, it should be considered whether the ward, or the insane person, or the principal should be sued on the peculium? I think that if the guardian is solvent, the ward should make good what has been lost through his fraud, and especially is this the case if anything has come into his hands; and so Pomponius states in the Eighth Book of the Epistles. The same must be said in the case of a curator or an agent. 2A purchaser will not be liable for the fraud of the vendor, nor will the heir or other successor, except to the extent that property has come into his hands by reason of it. Whether the fraud has been committed before or after issue has been joined, it comes within the jurisdiction of the court. 3If the master or father refuses to answer in the action on peculium, he should not be heard, but he must be compelled to join issue as in the case of any other personal action.

Ulpianus, On the Edict, Book XXIX. The question arises whether the action on the peculium may be brought, even if there is nothing in the peculium when proceedings are instituted, provided only there is something in it at the time that judgment was rendered? Proculus and Pegasus say that it will, nevertheless, lie, for the claim is properly set forth, even though there may be nothing in the peculium. It has been established that the same rule applies with reference to an action for production, and an action in rem. This opinion is also approved by us. 1Where the action is brought against one who is heir to a share of the estate of his master or father, judgment must be rendered against him only to the amount of the peculium to which the heir who is sued is entitled. The same rule applies where property has been employed for his benefit, proportionately, unless he has used something for the benefit of the heir himself, nor can the heir be sued like one of the joint-owners, but only for his share. 2But if the slave himself is appointed heir to a share, the action may also be brought against him, in like manner. 3Where, however, the son is appointed, although only for a share, he will, nevertheless, be liable to an action for the entire amount, but if he wishes to obtain the proportionate obligation of his co-heir, he should be heard; for what if the property has been employed for the benefit of the father? Why should not the son recover from his co-heir what is included in the estate of his father? The rule is the same where the peculium, is very valuable. 4He who has once brought an action on the peculium, can again bring suit for the remainder of the debt if the peculium has been increased. 5Where a creditor has been beaten by a vendor by means of an exception grounded on the lapse of a year, relief should be granted him against the purchaser; but if this has been effected by any other exception, he should only be relieved to the extent that, where the amount which he could have obtained from the vendor has been deducted, he may recover the remainder from the purchaser. 6Where fraud is alleged, account must be taken of the time, for the Prætor might not permit fraud to be pleaded in bar after the term for bringing an action on fraud has elapsed, since this action is not granted after the expiration of the time established by law. 7In the case of the heir, however, the clause relating to fraud ought to be drawn up with reference to what has come into his hands, and not for more than this.

Ulpianus, On the Edict, Book XXIX. The Prætor says: “After the death of him who was under the control of another, or after he has been emancipated, manumitted, or alienated, I will grant an action only to the amount of the peculium, within a year from the time when proceedings could first have been instituted with reference to the matter, where anything has been done through the malicious intent of him under whose control the party was, on account of which the value of the peculium is diminished.” 1So long as the slave or the son is under control, the action on the peculium is not limited by time, but after his death, or after he has been emancipated, manumitted, or alienated, it becomes limited by time, that is to say to a year. 2The year will, however, be computed to the extent that it is available, and therefore Julianus says that if the obligation is conditional, the year must be computed, not from the time when the party was emancipated, but from that at which, if the condition was complied with, suit could be brought. 3The Prætor, with good reason, made the action temporary in this instance, for, as the peculium is extinguished by death or alienation, it is sufficient for the obligation to be extended for a year. 4Alienation and manumission, however, relate to slaves, and not to sons, but death refers to slaves as well as sons, emancipation, however, to sons alone. Moreover, if he ceases to be under control in some other way, without emancipation, the action will only lie for the term of a year. Also if the son becomes his own master through the death or deportation of his father, the heir of his father, or the Treasury, will be liable to the action on the peculium within a year. 5In case of alienation, a vendor is undoubtedly included, who is liable to an action on the peculium within a year. 6But also, if he has given away the slave, or exchanged him, or bestowed him by way of dowry, he is in the same position. 7So, likewise, is the heir of one who has bequeathed the slave, but not with his peculium; for if he had bequeathed him with his peculium, or had directed him to be free, a question might arise; and it seems to me to be the better opinion that the action De peculio should not be granted against a manumitted slave, nor against him to whom the peculium was bequeathed. Will the heir then be liable? Cæcilius says that he will be liable, because the peculium is in the hands of him who released himself from obligation by delivering it to the legatee. Pegasus, however, says that security should be furnished to the heir by him to whom the peculium has been bequeathed, because the creditors apply to him, and therefore if he delivers it without security, suit can be brought against him. 8Where the heir is asked to deliver up the estate the slave and the peculium being reserved, and an action on the peculium is brought against him, he cannot make use of the Trebellian exception; as Marcellus, when discussing this point, admits. He, however, to whom the estate is delivered, is not liable, as Scævola says, since he has not the peculium, nor has committed any fraudulent act to avoid having it. 9Pomponius also, in the Sixty-first Book, says that if an usufruct is extinguished, the action should be granted against the usufructuary within a year. 10The question was raised by Labeo whether if you, during the lifetime of the son whom you believed to be dead, brought an action, and, because the year had elapsed, were defeated by an exception; you should be permitted to again institute proceedings after the mistake had been discovered? He says you should be permitted to do so only for the amount of the peculium, but not for what had been employed for the benefit of the property of the other party; for in the former case the action with reference to any advantage which had been obtained by its employment was properly brought, because the exception based on the lapse of a year relates to the peculium, and not to what had been used for the benefit of the property.

Ulpianus, On the Edict, Book XXIX. Where those who are under the control of another have nothing in the peculium, or have something, but not the entire amount; the persons having them under their control are liable if what was received has been used for the benefit of their property, the contract being held to have been rather made with them. 1Nor does the action having reference to the employment of property in the affairs of another, seem to have been promised without effect, as that on the peculium would be sufficient; for Labeo very properly says that the property may be so applied, and the action on the peculium not be applicable; for what should be done if the owner had taken away the peculium without malicious intent? What if the peculium is put an end to by the death of the slave, and the year in which the suit can be brought has elapsed? For the suit having reference to the employment of property in the affairs of another is perpetual, and will lie whether the party has taken away the peculium without malicious intent, or the action on the peculium is terminated by the lapse of a year. 2Moreover, if several are bringing suits on the peculium, he should be benefited whose money has been employed in the business of the master, so that he will have the more profitable action. If someone has come forward and brought an action on the peculium, it should certainly be considered whether the action founded on the employment of property for another’s benefit will not lie. Pomponius states that Julianus is of the opinion that the action on the ground of the employment of property for another’s benefit is destroyed by the action on the peculium, because what has been employed for the benefit of the master and paid on account of the slave, has been bought into the peculium, just as if it had been paid by the master to the slave himself, but only so far as the master has paid in the action on the peculium what the slave had used in his affairs; otherwise, if he has not paid it, the action based on the employment of the property remains.

Ulpianus, On the Edict, Book XXIX. Ad Dig. 15,3,3 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 4.If, however, the slave pays his master a certain sum of money which he has borrowed from me, in order that he may be manumitted, the said sum of money should not be computed as forming part of the peculium, but there is held to have been employed in the business of the master any amount in excess of the value of the slave which the latter paid. 1Property is held to have been employed in the business of the master, if the slave uses in his master’s business the very article which he received; as, for instance (where he received wheat and used it up as food for the slaves of his master) or where he pays to one creditor of his master money which he has borrowed from another creditor. But if he made a mistake in paying, and thought a party to be a creditor who was not one, Pomponius says in the Sixty-first Book that this also is property employed for the benefit of the master, so far as the right of the latter to recover it as not being due is concerned; or where the slave, for the sake of transacting or managing the business of his master, performed any act (for example, if he borrowed money for the purpose of purchasing grain for the maintenance of his slaves, or in order to clothe them) or, when, having borrowed for the peculium, he afterwards uses the money for his master’s benefit; for the law which is at present in force provides that there may be an action on the ground of property employed for another’s benefit, even though he employs it at first for the benefit of the peculium, and afterwards in the business of his master. 2We state, as a general rule, that an action founded on the employment of property in the business of another will lie in those cases in which an agent would be entitled to an action on mandate, or a person who had transacted business without being empowered to do so, could bring suit on the ground of voluntary agency; and wherever the slave has consumed anything in order that the property of the owner might be improved, or not deteriorated. 3Thus, if a slave has obtained money in order to support, feed, and clothe himself, according to the custom of his master, that is to say, to the extent to which his master was in the habit of furnishing him with these necessaries; Labeo states that he will be held to employ the money for his master’s benefit and therefore this will be the case with reference to a son. 4But where, having borrowed money, he adorns his master’s house with stucco work and certain other things which are more for the purpose of pleasure than for that of utility, he will not be held to have employed the money in this manner; for the reason that an agent could not have charged this, unless he had happened to have the order of the master or his consent, nor should the master be burdened on account of what he himself would not have done. What course then should be pursued? The master should permit the creditor to remove these things—of course without injury to the house—lest the owner should be forced to sell it in order to make good the amount by which its value had been increased. 5Labeo also says that if a slave having borrowed money from me lends it to another, the owner is liable to the action based on property used for another’s benefit, because an obligation has been acquired by him; and this opinion is approved by Pomponius, if he did not make the obligation a liability of the peculium, but treated it as acquired on the account of his master. For which reason the master will be bound to the extent that if he did not think it was advantageous to himself to hold the obligation of the debtor, he could assign the rights of action to his creditor, and make him his agent. 6Labeo says that it is also an instance of the employment of property for the business of the master where a slave, having borrowed money, uses it with his master’s consent to purchase articles of luxury, for example, ointments, or anything which he may have obtained for pleasure, or for some dishonorable purpose; for we do not consider whether what was consumed was for the good of the master, but whether it was employed in his affairs. 7Hence, it is very properly said also that if a slave has procured grain for the purpose of feeding the slaves of his master, and has deposited the same in his master’s granary, and it has been destroyed, or spoiled, or burned, it is held to have been employed in the affairs of the master. 8Moreover, if he purchased a necessary slave for his master, and the slave died, or he propped up a building and it fell down; I should say that an action for property employed for the benefit of another will lie. 9Where, however, he received it for the purpose of employing it in the affairs of his master, but did not do so, and deceived the creditor; it is not held to be so employed, nor is the master liable, lest the credulity of the creditor prejudice the master or the craftiness of the slave injure him. What, however, would be the case if the slave was one who was in the habit of employing what he received in the affairs of his master? Even in this instance, I do not think that this injures a master if the slave receives it with a different intention, or if he received it with this intention but afterwards employed it for another purpose; since the creditor should be careful to ascertain the way in which it was employed. 10If the slave borrowed money for the purpose of purchasing clothing and the money is lost, who can bring the action for property employed for the benefit of another, the creditor or the vendor? I think, however, that if the price has been paid, the creditor will be entitled to the action based on the ground of property employed for another’s benefit, even though the clothing has been destroyed; but if the price has not been paid, but the money was given for the purpose that clothing should be purchased, and the money was lost, but the clothing has been divided among the slaves, the creditor will undoubtedly be entitled to the action for money employed in the business of another. But has not the vendor also a right of action, because his property has been used in the affairs of the master? Reason demands that he should be liable, hence the result is that the master will be liable to two parties on account of one transaction. Therefore, even if both the money and the clothing have been destroyed, it must be said that the master will be liable to both, since both intended to employ the articles in his affairs.

Ulpianus, On the Edict, Book XXIX. If a slave purchases articles, which are not necessary, as if they were required by his master, as, for instance, slaves; Pomponius says that they will be held to have been employed in his affairs to the extent of the true value of the slaves; but if he should purchase articles which were really necessary, the master will be held liable for the entire amount for which they were sold. 1He also says that, whether the master ratifies the contract of the slave or not, the action on the ground of property employed for his benefit will lie. 2An action based on his order can be brought for what the slave purchased for his master, if he did so at his desire, but if he did not make the purchase at his desire, but the master indeed ratified his act; or, on the other hand, if he purchased something necessary or beneficial to the master, an action for property employed for his benefit will lie; but if none of these conditions exist, an action on the peculium will lie. 3It is established that not only the money which passes at once from the creditor to the master is employed for the benefit of the latter, but also that which was in the peculium in the first place. This, however, is true in every instance in which the slave transacting his master’s business makes him more wealthy with the money of the peculium. Otherwise, if the master deprives the slave of the peculium, or sells him along with it, or disposes of the property belonging to the peculium and collects the price of the same, this is not held to be employed in the business of the master.

Ulpianus, On the Edict, Book XXIX. Ad Dig. 15,3,7 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 4.And, therefore, also, if the slave gives his master things forming part of the peculium, the action for property employed in his affairs will not lie; and this is true. 1Ad Dig. 15,3,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 4.It is evident that, if the slave should borrow money, and pay it to his master with the intention of giving it to him; provided he does not wish to make him a debtor to the peculium, an action for property employed in the affairs of the master can be brought. 2What Mela says is not true, namely, that if you give silver to my slave in order that he may make cups out of any silver he chooses, and then, after the cups have been made, the slave dies; you will be entitled to an action for property employed for the benefit of another against me, since I can bring an action to recover the cups. 3What Labeo says is entirely true, that is, if the slave purchases perfumes and ointments and uses them at a funeral which concerned his master, he will be held to have employed them in his master’s business. 4He also says that if I purchase from your slave an estate which belonged to you, and I pay money to the creditors, and then you deprive me of said estate, I can recover it by an action on purchase; for it would be held that it was employed in your affairs. Moreover, if I purchase an estate from a slave in order that I may set off what is due to me from said slave, even though I paid nothing, still I can recover in an action on purchase what has come into the hands of the master. I, however, do not think that the purchaser is entitled to an action for property employed in the business of another, unless the slave had the intention of employing it in his master’s affairs. 5If a son under paternal control, having borrowed money, gives it as dowry for his daughter, it is held to have been employed in the affairs of his father to the extent that the grandfather was about to give the dowry for the granddaughter. This opinion seems to me to be correct, only where he gave the money with the intention of transacting the business of his father.

Ulpianus, On the Edict, Book XXIX. Where a son has become surety for his father and has paid the creditor, he is held to have employed the money in the affairs of his father, because he released the latter from liability. 1What Papinianus states in the Ninth Book of Questions is an instance similar to this, namely: where a son undertook the conduct of a case as the voluntary defender of his father, and judgment was rendered against him, his father is liable to an action for property employed in his behalf, for the son released him from liability by undertaking his defence. 2Ad Dig. 15,3,10,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 4.Papinianus also discusses the case in which I stipulated with the son for what the father was compelled to pay, and then I brought suit against the son; for, in this instance, also, an action will lie for money employed for another’s benefit, unless the son, when he bound himself, intended to make a gift to his father. 3Wherefore, it can be said that if he appears in an action on the peculium as the defender of his father, the latter will be liable to the action for property employed for his benefit, to the extent of the peculium; and the benefit to be derived from this opinion will be that if the action De peculio should be terminated, he can be sued in that for money employed for his benefit. I think that the father is liable to an action for money employed for his benefit, even before an adverse decision was rendered, after issue has been joined in behalf of the father. 4Property is held to have been employed in the affairs of a father to the extent that any use of the same is made; and hence if a part has been employed, an action can be brought for that part. 5Ad Dig. 15,3,10,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 483, Note 4.But will the master be held liable only for the principal, or for the interest as well? And, indeed, if the slave promised interest, Marcellus states in the Fifth Book of the Digest that the master must pay it, but if he did not promise it, it certainly is not due, because it was not included in the agreement. It is evident that if I, having the master in mind, paid money to a slave who was not managing his master’s business, but I myself was managing it, I shall be able to institute proceedings to collect the interest also, by an action based on voluntary agency. 6We understand property to be employed in the business of a master when it continues to be so employed; and hence an action on the ground of property employed in his affairs will only lie where payment has not been made by the master to the slave or the son. If, however, this has been done to the prejudice of the creditor, that is to say, if the money has been paid to the slave or the son who is liable to lose it, since it has been paid, it ceases to have been employed for this purpose; but it is perfectly just that the action on the ground of malicious intent should lie either against the father or the master; for a debtor to the peculium, also, is not released from liability, if he fraudulently pays the slave what he owed him. 7Where the slave is a debtor of the master, and, having borrowed money from another pays him; he does not employ it in the business of the latter to the extent to which he is indebted to him, but he does so as far as the excess is concerned. Hence, if, when he owed his master thirty aurei, having borrowed forty, he paid the sum to his creditor, or spent it on the slaves; it must be said that an action for the employment of money in the business of another to the amount of ten aurei will lie; but if he owes the whole amount, it is not held to have been employed in this manner; for, (as Pomponius says), it is considered that relief is granted against the profit of the master, and therefore, if he was indebted to the master when he used the property in his affairs, it is held that nothing was employed for that purpose, but if afterwards he became indebted to him, it ceases to be employed for that purpose; and the same rule will apply if he should pay him. He says moreover, that if a master makes him a present of an amount equal to that which he paid the creditor in his behalf, and this was done with the intention of remunerating him, the money will not be held to have been employed for his benefit. If, however, he gave it to him in any other way, the use of the money for this purpose will still exist. 8He also makes the following inquiry. If he employed ten aurei in the business of his master, and afterwards borrowed the same amount from the latter, and, in addition to this, he has a peculium of ten aurei, should it be considered that the employment of the money in his master’s affairs has ceased? Or shall we, indeed, not take away the right of action for property employed in his affairs, as there is peculium from which the debt can be paid; or should we preferably make the deduction from each, pro rata? I think, however, that the action for money employed for the benefit of the master has ceased to be available, since he has become a debtor to the master. 9He also asks whether, if he has employed money in your affairs, and has become your debtor, and then your creditor for the same amount that he owed you, the action based on the employment of money for the benefit of another is revived, or whether it cannot be reestablished retroactively? The latter opinion is correct. 10He also discusses the point whether a son can employ property in the affairs of his father in accordance with what may transpire; for example, if the father and son are co-debtors, and the son, having borrowed money, pays it in his own behalf; or if you have lent money to the son under the direction of the father, and the son has paid you the debt. It seems to me that if the money had actually come into the hands of the father, it will be held to have been employed in his business; but if this was not the case, and the son paid while transacting his own affairs, an action on the ground of property employed in the business of another will not lie.

Ulpianus, On the Edict, Book XXIX. If property has been used in the business of one of two masters, the question arises whether he alone for whose benefit it was employed can be sued, or his partner as well? Julianus says that he alone should be sued in whose affairs the money was employed, just as where he alone directed the contract to be made; and I think this opinion to be correct.

Ulpianus, On the Edict, Book XXIX. An action is very properly granted against a master for the entire amount, on the ground that he has authorized a contract; for, to a certain extent, a contract is entered into with the party who ordered it to be made. 1Ad Dig. 15,4,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 12.Authority must, however, be understood, whether anyone gives it in the presence of a witness, or by a letter, or verbally, or by a messenger, or whether the authority was given in a specified contract, or in general terms; and therefore, if a party made a statement as follows: “Transact what business you desire with my slave Stichus, at my risk,” he is held to have directed that everything be done, unless a special agreement prohibits something. 2I ask, however, whether he can revoke this sanction before a debt is incurred. I think that he can do so, just as if he had given a mandate, and afterwards, having changed his mind, before the contract had been made, he had revoked the mandate and notified me. 3Also, if a father or a master has given a mandate, he is held to have conferred authority. 4And, moreover, if a master has signed the written contract of the slave, he will be liable in the proceeding aforesaid. 5But what if he becomes surety for the slave? Marcellus says that he is not liable to this action, for he intervened as a stranger; and he does not say this for the reason that the master is liable on the ground of security, but because to give authority is one thing, and to become surety is another; and he further says that even though the security may be worthless, he will not be liable on account of having given authority; and this is the more correct opinion. 6If anyone should ratify a transaction made by his slave or his son, an action on this ground will be granted against him. 7Where a ward, who is the owner, grants authority, he is undoubtedly not liable, unless he did so with the consent of his guardian. 8Where a contract is entered into with a slave by authority of the usufructuary, or with that of a person whom he is serving in good faith as a slave; Marcellus thinks that this action should be granted against him, and I also approve this opinion. 9Ad Dig. 15,4,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 13a.Where a contract is entered into with a slave by authority of the curator of a minor, or of an insane person, or of a spendthrift; Labeo thinks that the action should be granted against the party whose slave he was, and the same applies to a veritable agent. If, however, the latter is not a genuine agent, Labeo also says that the action should preferably be granted against the party himself.

Ulpianus, On the Edict, Book XXIX. In the first place, during the reign of the Divine Augustus, and subsequently during that of Claudius, it was forbidden by Imperial Edicts that women should become sureties for their husbands. 1Afterwards, a Decree of the Senate was enacted by which relief was granted in the most perfect manner to all women. The terms of this Decree of the Senate are as follows: “Whereas, Marcus Silanus and Velleius Tutor, Consuls, have made statements concerning the obligations of women who have become responsible for the debts of other persons, and have given advice on this subject, as to what was necessary to be done; and, whereas this matter relates to securities and the making of loans in behalf of others for whom women had become bound, and although it appears to have been formerly decided by law that no demand, on this account, could be made upon them, nor any action be brought against them when they performed the duties of men, and as it is not just for them to be liable to obligations of this description; therefore, the Senate has decreed that those to whom application is made in court must act properly and in conformity with the established mode of procedure, and exert themselves so that the will of the Senate with respect to this matter may be observed.” 2Therefore, let us examine the terms of this Decree of the Senate, after having previously eulogized the forethought of this most distinguished body of men which has brought relief to women on account of the weakness of their sex, in many supposed, as well as actual instances. 3Ad Dig. 16,1,2,3ROHGE, Bd. 14 (1875), Nr. 45, S. 114: Intercession der Ehefrau. Voraussetzung der intercessio tactita. Betrug. Beweislast, daß keine Schenkung zum Grunde gelegen.Relief is only granted to them, however, where they have not been guilty of deceit, and this the Divine Pius and Severus stated in a Rescript, for assistance is rendered to those who have been deceived, but not to such as are guilty of fraud; and this is set forth in the Rescript of Severus, written in the Greek language, which says that this Decree of the Senate is not for the purpose of aiding women who are guilty of deception, for it is the infirmity of women, and not their cunning, that deserves assistance. 4Every kind of obligation is included in the Velleian Decree of the Senate, whether women have rendered themselves liable verbally, by the delivery of property, or by any other contract whatsoever. 5Where a woman even appears voluntarily in defence of anyone, there is no doubt that she binds herself in his favor, for she assumes the obligation of another, since she exposes herself to have judgment rendered against him in a matter of this kind. Hence a woman is not permitted to undertake the defence of her husband, her child, or her father.

Ulpianus, On the Edict, Book XXIX. If, however, I make a contract in the beginning, when I am ignorant for whom she wishes this to be done, the Decree of the Senate undoubtedly will not apply; and this the Divine Pius and our present Emperor stated in a Rescript. 1Ad Dig. 16,1,4,1BOHGE, Bd. 2 (1871), S. 106: Voraussetzungen der tacita intercessio.Hence, if when she wished to make a gift to Titius, she borrowed a sum of money from me, and gave it to Titius, the Decree of the Senate will not apply; but if she was about to give it to you, and pays the money to your creditor, she does not bind herself, for the Senate intended to give relief to a woman who had obligated herself, and not to one who had made a donation; and this was done for the reason that a woman incurs an obligation with more facility than she makes donations.

Ulpianus, On the Edict, Book XXIX. Where persons bind themselves as sureties in behalf of the defender of a son who is absent, by the direction of his mother; the question arises whether relief will be granted them also by this Decree of the Senate? Papinianus says, in the Ninth Book of Questions, that they can make use of an exception, nor does it make much difference that they have given security for the defender, since they did so having in mind the direction of the mother. He says that it is evident that, if the party who accepted the said sureties was ignorant that the mother directed them to assume the obligation, the exception based on the Decree of the Senate can be met with a reply on the ground of fraud.

Ulpianus, On the Edict, Book XXIX. Although the giving of a pledge establishes an obligation, still, Julianus states in the Twelfth Book of the Digest that the restoration of a pledge does not constitute the giving of security, if a woman, who is the creditor, releases to the debtor the property which she received in pledge. 1Where a woman appears before the guardians of her son to prevent them from selling his land, and promises to indemnify them; Papinianus, in the Ninth Book of Questions, does not think that she bound herself as surety, for she did not accept either the old or new obligation with reference to another, but she herself contracted this obligation. 2Ad Dig. 16,1,8,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18; Bd. II, § 487, Note 3.Where a woman binds herself to Primus in behalf of Secundus, and afterwards binds herself in behalf of Primus to his creditor; Julianus states in the Twelfth Book of the Digest that she has bound herself twice, once for Primus to Secundus, and again for Primus to his creditor, and therefore she has contracted an obligation both for Primus, and against him. Marcellus, however, notes that a difference exists here, that is, whether it must be understood that the woman, in the beginning, has been substituted in the place of another, and has undertaken to assume the burden of the debtor from whom the creditor desired the obligation to be transferred; or whether she was substituted as a debtor, so that, if this was the case, there is but one giving of security. Hence, in accordance with this distinction, which existed at first sight where she has, so to speak, been substituted as a debtor, Marcellus will not grant her an exception based on the Decree of the Senate. However, after having judgment rendered against her, or even before this takes place, she will certainly be entitled to a personal action against the party by whom she has been substituted. 3Sometimes a suit for recovery will lie in favor of a woman who gives security, to recover what she has paid, or if she has not yet paid anything, to obtain her release from liability, for example, where, having bound herself in violation of the Decree of the Senate, she substitutes her debtor; as, in this instance, a personal action for recovery will lie in her favor against her creditor, just as if she brought suit for money which she had paid, for anyone who substitutes a debtor makes payment. 4Ad Dig. 16,1,8,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 13.But if he who has been substituted by the woman is not indebted to her, he can avail himself of the exception based on the Decree of the Senate, as he could have done if he had been her surety. 5It is evident that if a woman, being about to bind herself, substitutes her debtor, the Decree of the Senate will not apply, because, even though she paid the money, it will not be applicable; for the woman is granted relief by the Decree of the Senate, but does not make restitution of property which has been lost. 6If, however, she has substituted some one who was not her debtor, a fraud is held to have been committed against the Decree of the Senate, and therefore an exception will be granted. 7Where a woman becomes bound for a debtor, the former action is granted against him, even though he may have been discharged from liability by a release before the woman obligated herself. 8Ad Dig. 16,1,8,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 354, Note 6.Where a creditor has agreed with his debtor that the latter shall provide some one in his place, and this proposition having been accepted, he is thereupon released, and he then gives a woman as surety who can have recourse for aid to the Decree of the Senate, a personal action can be brought against him, just as if he had not given any surety; for what difference is there between not giving any, and giving one of this kind? Therefore, a prætorian action will not be necessary, since a personal action for recovery will lie. 9Marcellus also states that, if a creditor releases a woman after she has become a surety, an action for restitution should, nevertheless, be granted to the creditor, for he has released an obligation which is void. 10If a woman, after having become a surety, makes payment in such a way that she cannot recover, the former debtor can very properly refuse to defend an action brought against him; but, as the principal debtor is released, and the woman makes payment in such a way that she cannot recover, he cannot recover from her either, if he should pay, and the creditor should release him in the same manner. 11Although the action is restored against all those who are released, this is, however, not done in favor of all creditors; as, for instance, where there are two creditors who enter into a stipulation, and a woman becomes surety to one of them, the obligation is restored in the case of him alone to whom she became surety. 12Where a creditor becomes the heir of a woman who has assumed an obligation of this kind, it should be considered whether the action for restitution will not be available. Julianus says in the Twelfth Book that he is, nevertheless, entitled to the action for restitution, and this is not unreasonable, as he in fact succeeded to a woman not legally bound, and therefore this debt will not be taken into account in the administration of the Lex Falcidia. 13It is evident that, if you propose to me the case of a woman who has succeeded as heir to an original debtor, it must be said that she can be sued in an action for restitution as well as in a direct action, for it makes no difference whatever under which action proceedings are brought. 14Ad Dig. 16,1,8,14BOHGE, Bd. 2 (1871), S. 106: Voraussetzungen der tacita intercessio.ROHGE, Bd. 14 (1875), Nr. 45, S. 114: Intercession der Ehefrau. Voraussetzung der intercessio tactita. Betrug. Beweislast, daß keine Schenkung zum Grunde gelegen.If, when I am about to make a contract with you, a woman appears, and I prefer to make a contract with her, she is held to have bound herself as surety, and, in this instance, an action will be granted against you, the effect of which is rather to originate than to restore an obligation; so that, in consequence, you will be bound by the same kind of an obligation as that by which the woman is bound; for example, if the woman is bound by a stipulation, you also can be sued as under a stipulation. 15It should be considered whether, if a woman offered herself as a surety for a party who was not bound when a contract was made with him, he should be liable to this action; as, for instance, where a woman became surety for a ward without the sanction of his guardian. I think that the ward would not be bound unless he profited pecuniarily by the contract. Moreover, he for whom the woman became a surety, if he is under twenty-five years of age, can demand complete restitution, or if, while a son under paternal control, he entered into a contract in violation of the Decree of the Senate, he will be entitled to the same privilege.

Ulpianus, On the Edict, Book XXIX. These actions which are granted against those in whose behalf a woman has become surety, and against their heirs, are perpetual; for they have in view the recovery of the property, and they will be granted also in favor of prætorian successors as well as against them.

Ulpianus, On the Edict, Book XXIX. A peculium can also be bequeathed to someone who has none, for such a bequest can be made not only of peculium owned at the present time, but also of any which may subsequently be acquired.

Ulpianus, On the Edict, Book XXIX. It must be said with reference to the interdict Unde vi that, in the case of dispossession by a son under paternal control, his father will be liable for anything which has come into his hands.

The Same, On the Edict, Book XXIX. When money has been furnished for the commission of a crime, with the knowledge of a creditor, where, for instance, it has been given to purchase poison, or paid to robbers or assassins for the purpose of killing his father, he who obtained the money will be liable to the penalty for parricide, as well as those who lent it, or took measures to have it used in this way.

Ulpianus, On the Edict, Book XXIX. Appellants are not usually heard unless they have an interest in the suit, or have been commissioned to act, or are conducting the business of others, and their acts are ratified immediately. 1When, however, a mother sees the case of her son overthrown by a decision, and, induced by maternal affection, appeals, it must be said that she should be heard; and if she prefers to prepare the case, she should not be considered to have interfered, although in the beginning she could not have undertaken the defence.

The Same, On the Edict, Book XXIX. We grant an action against an heir for the amount by which he has profited through the fraud of the deceased, but this does not apply to any fraud of his own.