[IDEM libro nono responsorum. ] §26.7.46.prLucius Titius curator Gaii Seii tempore curae fundum Cornelianum locauit Sempronio, qui Sempronius reliqua traxit: pupillus aetate probata eundem quondam colonum Sempronium fecit procuratorem: quaero, an ex eo, quod ille ut procurator egit, omne debitum adulescens agnouisse uideatur eoque nomine curatorum suum liberasset.
[THE SAME, from the ninth book of Opinions.] Lucius Titius, curator of Gaius Seius, leased the Cornelian estate during the period of his curatorship to Sempronius, who fell into arrears with the rent. The pupil, after his age was approved, appointed the same Sempronius, formerly the tenant, as his procurator. I ask whether, by the fact that the latter acted as procurator, the young man is deemed to have acknowledged the whole debt and on that account released his curator.
Paulus respondit non ex eo, quod adultus eum, qui praedia eius coluit, procuratorem habere uoluit, debitum, quod ex conductione reliquatus est, adgnouisse eum uideri.
Paulus answered that the fact that the adult wished to have as his procurator the person who had cultivated his lands does not mean that he is deemed to have acknowledged the debt remaining unpaid from the lease.
§26.7.46.1Sempronii, qui ex pollicitatione debitor patriae suae exstiterat, bona res publica iussu praesidis possedit: quorum bonorum magistratus rei publicae tres curatores constituerunt, qui apud Graecos ἐπιμεληταὶ uocantur, qui postea inter se sine consensu rei publicae administrationem bonorum Sempronii diuiserunt: ex quibus quidam, cum reliqua traherent, idonei in ipso tempore administrationis esse desierunt: postea pupillus heres Sempronii, qui abstentus erat, ab imperatore impetrauit, ut bona paterna ei restituerentur: quaero, an ex bonis eorum, qui idonei sunt, indemnitati pupilli prospici debeat, cum indiuiduum his officium curae a magistratibus iniunctum sit.
The state, by order of the governor, took possession of the property of Sempronius, who had become a debtor to his own native city by reason of a promise. The magistrates of the state appointed three curators for this property, who are called ἐπιμεληταὶ among the Greeks, and who afterwards, without the consent of the state, divided the administration of Sempronius's property among themselves. Some of them, while they fell into arrears, ceased to be solvent during the very time of the administration. Afterwards, the pupil, the heir of Sempronius, who had abstained from the inheritance, obtained from the Emperor that his father's property should be restored to him. I ask whether the indemnity of the pupil ought to be provided for out of the property of those who are solvent, since an indivisible duty of care was imposed on them by the magistrates.
Paulus respondit, si pupillo in curatores bonorum actiones decerni placuerit, pro eius portione, qui idoneus non sit, magistratus conueniri oportere: alia enim causa est tutorum, alia eorum, qui rei publicae negotia administrant.
Paulus answered that if it should please that actions be granted to the pupil against the curators of the property, the magistrates ought to be sued for the share of the one who is not solvent; for the case of tutors is one thing, and that of those who administer the affairs of the state is another.
§26.7.46.2Tutorem, qui pecuniam pupillarem quamuis suo nomine faenerauit, non uideri contra constitutiones fecisse, quae prohibent pecuniam pupillarem in usus suos conuertere.
That a tutor who has lent pupillary money, even if in his own name, is not deemed to have acted contrary to the constitutions which prohibit turning pupillary money to one's own uses.
§26.7.46.3Quaesitum est, an eius pecuniae, qua tutor usus est, post finitam quoque tutelam in diem iudicii accepti easdem usuras praestare debeat.
It was asked whether, for the money which the tutor used, he ought to pay the same interest even after the tutelage is ended, up to the day of the joinder of issue.
Paulus respondit finita administratione eas usuras debere computari, quae in tutelae iudicio computantur.
Paulus answered that once the administration is finished, that interest ought to be calculated which is calculated in an action of tutelage.
§26.7.46.4Paulus respondit propter ea, quae post pubertatem nulla necessitate cogente, sed ex uoluntate sua tutor administrauit, fideiussorem, qui saluam rem fore cauit, non teneri.
Paulus answered that on account of those things which the tutor administered after puberty, under no compelling necessity but of his own free will, the surety who guaranteed that the property would be safe is not held liable.
§26.7.46.5Tutelae iudicio tutor conuentus edidit librum rationum et secundum eum condemnatus soluit: postea cum a debitoribus paternis, quorum nomina libro rationum non inerant, exigere uellet pupillus, prolatae sunt ab his apochae tutoris: quaesitum est, utrum aduersus tutorem an aduersus debitores actio ei competat.
A tutor, sued in an action of tutelage, produced his account book, and having been condemned in accordance with it, paid. Afterwards, when the pupil wished to demand payment from his father's debtors whose names were not in the account book, the tutor's receipts were produced by them. It was asked whether an action lies for him against the tutor or against the debtors.
Paulus respondit, si tempore administrandae tutelae tutori tutelam gerenti debitores soluissent, liberatos eos ipso iure a pupillo: sed si cum tutore actum esset, posse eundem adulescentem propter eam causam tutelae experiri et aduersus exceptionem rei iudicatae doli mali uti replicatione.
Paulus answered that if, during the time of administering the tutelage, the debtors had paid the tutor while he was managing the tutelage, they were released from the pupil by operation of law; but if action had been taken against the tutor, the same young man could sue on that account in an action of tutelage and use a replication of fraud against the plea of res judicata.
§26.7.46.6Cum testamento duo tutores dati essent pupillo et alter ex his uita defunctus fuisset, in locum eius petente matre ex praesidis prouinciae praecepto a magistratibus alius tutor datus est, a quo magistratus satis exegerunt rem saluam fore: tutor testamento datus postea datum suspectum fecit: quaesitum est, in quantum teneatur.
When two tutors had been given to a pupil by testament, and one of them had departed this life, another tutor, on the petition of the mother, was appointed in his place by the magistrates by order of the governor of the province, from whom the magistrates required security that the property would be safe. The tutor appointed by testament afterwards accused the one appointed later of being suspect. It was asked to what extent he is liable.
Paulus respondit tutorem testamento datum pro ea parte conueniri oportere, pro qua parte administrauit: pro contutoris autem portione prius eos conueniri debere, qui pro eo se obligauerunt uel magistratus qui eum dederunt: tunc si solidum pupillus consequi non potuerit, de officio contutoris quaerendum, an suspectum facere debuerit, praesertim cum suspectum quoque eum postulasse dicatur.
Paulus answered that the tutor appointed by testament ought to be sued for that part which he administered; but for the portion of the co-tutor, those who bound themselves for him, or the magistrates who appointed him, ought to be sued first. Then, if the pupil cannot obtain the whole sum, inquiry must be made concerning the duty of the co-tutor, whether he ought to have accused him of being suspect, especially since he is also said to have demanded that he be declared suspect.
alias quidem cum magistratus plures tutores dant, non prius ad eos reuerti pupillus potest, quam omnes tutores excussi fuerint: in proposito cum unus a magistratibus datus proponeretur, non est uisum prius collegam conueniendum, qui et suspectum fecit et testamento datus est, perindeque habendos singulos, ac si in partes dimidias tutores dati essent.
Indeed, otherwise, when magistrates appoint several tutors, the pupil cannot return to them before all the tutors have been exhausted; but in the present case, since only one was proposed as appointed by the magistrates, it was not deemed that the colleague who both accused him of being suspect and was appointed by testament should be sued first, and each should be treated just as if they had been appointed tutors for half shares.
§26.7.46.7Tutoribus concessum est a debitoribus pupilli pecuniam exigere, ut ipso iure liberentur, non etiam donare uel etiam deminuendi causa cum iis transigere: et ideo eum, qui minus tutori soluit, a pupillo in reliquum conueniri posse.
Tutors are permitted to demand money from the debtors of the pupil so that they are released by operation of law, but not to make gifts or to compromise with them for the purpose of diminishing the estate; and therefore, he who has paid less to the tutor can be sued by the pupil for the remainder.