Ad Dig. 14,6,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 6.The Same, On the Edict, Book LXIV. To the extent that this has reference to the castrense peculium, since sons under paternal control perform the functions of heads of families, so far as the castrense peculium is concerned.

Ad Dig. 16,2,12ROHGE, Bd. 25 (1880), Nr. 9, S. 38: Kompensation verzinslicher Forderungen.The Same, On the Edict, Book LXIV. This law is applicable not only to the affairs of private individuals, but also those connected with the Treasury. Where, however, the money borrowed by the parties from one another bears interest, but the interest is at different rates, a set-off can, nevertheless, take place with reference to the sums due to the parties respectively.

Ulpianus, On the Edict, Book LXIV. If, however, the guardian should commit any fraudulent act with reference to outside matters, the ward would sustain no injury.

The Same, On the Edict, Book LXIV. Where anyone is charged in a will not to collect a debt from Titius, he cannot sue either him or his heir; nor can the heir of the heir bring an action; nor can the payment of the obligation be demanded of the heir of the debtor’s heir. The heir of the heir of the testator can also be charged not to collect the claim from the debtor.

Ulpianus, On the Edict, Book LXIV. Where suit is brought against a freedman to compel the performance of services, and his patron dies, it is established that the right of action does not pass to a foreign heir. If, however, there is a son, and he should not be the heir, even though issue may not have been joined in the case, he will, nevertheless, be entitled to the services of the freedman, unless he has been disinherited.

Ulpianus, On the Edict, Book LXIV. If a man who has made an assignment acquires anything else of trifling value, after the sale has taken place, his property cannot be sold a second time. But, in what way can we make an estimate of this, in order to determine its value? Must it be determined by the quantity of the property which has been acquired, or by its quality? I think that the question should be decided with reference to the quantity, provided we know that something has been left with him through compassion, as, for instance, a sum to be paid monthly or annually for his support; and in such a case, it is not necessary for his property to be sold a second time, for he should not be deprived of his daily subsistence. The same rule will apply if the usufruct of property from which he only receives a sum sufficient for his support has been either granted or bequeathed to him.

The Same, On the Edict, Book LXXV. The Prætor says: “Any contract which is made after the party whose property is sold has made up his mind to commit fraud, if he who made the contract is aware of this, will not admit of an action being granted on this ground.”

Ulpianus, On the Edict, Book LXIV. It must be noted that a separation of the property of an estate is generally obtained by a decree of the Prætor. 1A separation is ordinarily granted to creditors for the following reasons, for instance, where a creditor has Seius for his debtor, and the latter dies, leaving Titius his heir; and Titius not being solvent, his property is offered for sale. The creditors of Seius allege that his estate is sufficient to satisfy their claims; and that the creditors of Titius should be content with the estate of the latter, and hence there is, as it were, a sale of the property of two different debtors. It may, however, happen that Seius was solvent, and would have been able to satisfy his creditors, if not for the entire indebtedness, at least for a portion of it. If, however, their obligations are merged with those of the creditors of Titius, they will not receive so much, because Titius was insolvent, and they will receive still less, because there are more of them. It is, therefore, perfectly just that the creditors of Seius who desire a separation of property should be heard, and obtain from the Prætor permission for the payment of each class of creditors separately. 2On the other hand, however, the creditors of Titius cannot obtain a separation of property, although anyone by obtaining another creditor may make the condition of his former creditor worse. Therefore, he who accepts the estate of my debtor will not, by doing so, make my condition any worse, because I have the right to obtain a separation of property. He, however, will render the condition of his creditors worse, if he enters upon an estate which is not solvent, for the creditors cannot demand a separation of property. 3Moreover, it should be noted that even if it is suggested that the estate had been encumbered by the heir, by means of a pledge, or an hypothecation, still, if the property belonged to the estate, he who obtained a separation of it would, for this reason, be preferred to a creditor to whom the property had been hypothecated. This was stated by Severus and Antoninus in a Rescript. 4A separation of property can also be obtained against the Treasury, or any municipality. 5The question arose whether the creditors of the heir could sometimes obtain a separation of property, if he had committed fraud against them when he entered upon the estate. No remedy is, however, afforded, for they must blame themselves if they entered into a contract with such a man, unless we hold that the Prætor can make use of an extraordinary proceeding for relief against the deceit of him who has contrived such a fraud. It is, however, difficult to adopt such an opinion. 6If, however, an heir, even though he may allege that he thinks the estate is insolvent, should be compelled to accept and transfer it, and there is no one to whom he can deliver it, for this happens under some circumstances, we must come to his relief (if he asks it), against the creditors of the estate. This the Divine Pius stated in a Rescript, which enabled the property of the testator to be sold, just as if the estate had not been accepted. I think that this relief should also be granted to the creditors of the heir, if they request it, even if the heir himself did not ask for it, just as any separation of the claims is granted. 7Let us see if, in the case where a minor under the age of puberty becomes the heir of his father, and dies before reaching that age, and property in the hands of the substitute, who had accepted the estate of the minor, is sold, the creditors of the father can demand a separation of property.” I think that they can do so, and I go still further, and hold that the creditors of the minor can also demand a separation as against the creditors of his heir. 8In accordance with this, let us see if Primus should appoint Secundus his heir, and Secundus appoint Tertius his own heir, and the property of Tertius is sold by his creditors, what creditors can claim a separation of property. I think that if the creditors of Primus request this, they should be heard, against both the creditors of Secundus and Tertius; if the creditors of Secundus ask for a separation, they can obtain it against the heirs of Tertius, but not against those of Primus. In a word, the creditors of Primus can obtain a separation of property against all the other creditors; the creditors of Secundus can obtain one against the creditors of Tertius, but not against those of Primus. 9Where the property of a son under paternal control is sold by his creditors, and he has a castrense peculium, can a distinction be made between the creditors of the castrense peculium and the other creditors? They should all be admitted together, unless the claims of those who made the contract before the son entered the military service ought, perhaps, to be separated. I think that this opinion should be adopted. Therefore, if the creditors, who made contracts before the son entered the service, should sell the castrensian property, they cannot come in with the subsequent creditors. Moreover, if any of the property has been employed for the benefit of the father, the creditor may perhaps be prevented from touching the castrense peculium, as he has a right to bring a special action against the father. 10It should be noted that only those creditors can obtain a separation of property who have not stipulated with the heir with the intention of entering into a new obligation. If, however, they have approached him with this intention, they will lose the benefit of a separation of property, because, having obtained the claim of the heir, they cannot now separate themselves from him whom, to a certain extent, they have chosen as their debtor. But if, in selecting the heir as their debtor, they have required interest from him in that capacity, the same rule should be adopted. 11It is also asked whether they can obtain a separation of property, if they have received security from the heir. I do not think that they can do so, for they have followed him who have induced them to change. But what if they accepted insufficient security? They themselves are to blame for not having received sureties who were solvent. 12It must also be remembered that after the property of the estate is merged with that of the heir, a separation of property cannot be obtained, for where property is united and mingled together, a separation cannot be demanded. But what if it consisted of distinct tracts of land, slaves, cattle, or anything else which can be divided? Under these circumstances, a separation can be demanded, nor will anyone who maintains that the property is merged be heard, as tracts of land cannot be merged, unless the possession of different persons is so joined and mingled that a separation cannot be effected, which very rarely occurs. 13When we have stated that a separation of property cannot be obtained after a long period of time, this must be understood to mean that it cannot be demanded after five years from the time when the estate was accepted have elapsed. 14In all these cases, in order to determine whether a separation of property should take place or not, the opinion of the Prætor or the Governor, and that of no one else must be obtained, that is to say, the opinion of him who can grant the separation. 15If a creditor should take a pledge from the heir, a separation of property should not be conceded to him, because he looks to the heir for payment. For he should not be heard who asserts that the heir is liable, having with that intention accepted him as his debtor in any manner whatsoever. 16Where there are several creditors, some of whom have claims against the heir as their debtor, and others have not, and the latter obtain a separation, the question arose whether they can admit the former to share with them. I think that this will not profit them, for they should be included among the creditors of the heir himself. 17It should also be noted that it is commonly held that the creditors of an heir can have anything of the residue of the property of the testator applied to the payment of their claims, but that the creditors of the testator can obtain nothing from the property of the heir. The reason for this is, that they who obtained the separation can only blame themselves, if, when the property of the heir was sufficient to pay them, they preferred that the estate of the deceased should be separated for their benefit, but the creditors of the heir are not to blame for anything of this kind. If, however, the creditors of the deceased petition to share in the property of the heir, they should not be heard; for the separation which they themselves demand removes them from all participation in the said property. But where the creditors of the deceased carelessly demand a separation of property, they are excusable, because their ignorance of the condition of the estate may be alleged as a just cause for their doing so. 18It must be remembered that a slave who has been appointed a necessary heir, with the grant of his freedom, can obtain a separation of property; so that if he does not meddle with the estate of his patron, he will be in a position to have whatever he may hereafter acquire separately together with anything which is due to him from the testator.