[IDEM libro quarto decimo disputationum. ] §26.7.55.prTres tutores pupillo dati sunt, unus tutelam gessit et soluendo non est, secundus Titio gerendam mandauit et Titius quaedam administrauit, tertius nihil omnino gessit: quaesitum est, quatenus quisque eorum teneatur.
[IDEM libro quarto decimo disputationum.] Three guardians were given to a ward; one administered the guardianship but is not solvent, the second mandated Titius to administer it and Titius managed certain affairs, and the third administered nothing at all. The question arose as to what extent each of them is liable.
et tutorum quidem periculum commune est in administratione tutelae et in solidum uniuersi tenentur.
Indeed, the risk of the guardians is common in the administration of the guardianship, and they are all liable in solidum.
plane si pecunia numerata pupilli inter eos distributa est, non in maiorem summam quisque eorum quam accepit tenetur.
Clearly, if the ready money of the ward has been distributed among them, each of them is not liable for a larger sum than he received.
§26.7.55.1Sed si ipsi tutores rem pupilli furati sunt, uideamus, an ea actione, quae proponitur ex lege duodecim tabularum aduersus tutorem in duplum, singuli in solidum teneantur et, quamuis unus duplum praestiterit, nihilo minus etiam alii teneantur: nam in aliis furibus eiusdem rei pluribus non est propterea ceteris poenae deprecatio, quod ab uno iam exacta est.
But if the guardians themselves have stolen the property of the ward, let us see whether they are individually liable in solidum under that action which is proposed from the Law of the Twelve Tables against a guardian for double the amount, and whether, even if one has paid the double amount, the others are nonetheless liable. For in the case of other multiple thieves of the same thing, there is no release from punishment for the rest on the ground that it has already been exacted from one.
sed tutores propter admissam administrationem non tam inuito domino contrectare eam uidentur quam perfide agere: nemo denique dicet unum tutorem et duplum hac actione praestare et quasi specie condictionis aut ipsam rem aut eius aestimationem.
But guardians, because of the administration allowed to them, are not so much seen to handle the property against the owner's will as to act treacherously. Finally, no one will say that a single guardian both pays the double amount under this action and, as if by a sort of condictio, either the property itself or its valuation.
§26.7.55.2Non solum ergo gessisse tutelam is creditur, qui alii gerendam mandauit, sed et qui satis a contutore accepit rem saluam pupillo futuram eique permisit administrationem totius tutelae, nec potest se defendere constitutionibus, quae iubent ante conueniri eum qui gessit.
Therefore, not only is he believed to have administered the guardianship who mandated another to administer it, but also he who accepted security from his co-guardian that the ward's property would be safe and permitted him the administration of the entire guardianship; nor can he defend himself by the constitutions which order that the one who actually administered be sued first.
§26.7.55.3Item in eo quod nemo gessit non utique eius periculum est, qui quaedam gessit, sed communiter omnium: exigi autem ab eo solo periculum ob alia quae non gessit non oportet, nisi si qua talia sunt, quae uel consummationem coeptorum ab eo desiderabant uel ita coniuncta fuerunt, ut separari non debuerunt.
Likewise, in that which no one administered, the risk is not solely that of him who administered certain things, but is common to all. However, it is not proper to demand the risk from him alone for other matters which he did not administer, unless there are some such matters as either required the completion of things begun by him or were so connected that they ought not to have been separated.
§26.7.55.4Quod autem dicitur desisse soluendo esse uel non esse contutores praestare debere, uideamus, qualem intellectum habet, id est utrum sufficit nihil deminutum esse de facultatibus contutoris, ex quo tempore datus est, sed eandem faciem patrimonii permansisse, an, etsi nihil post accidit, quod palam faciat deminutionem patrimonii, debet tamen contutor inquirere fortunas contutoris.
But as to the saying that they ought to make good the fact that their co-guardians have ceased to be solvent or are not solvent, let us see what kind of meaning this has; that is, whether it is sufficient that nothing has been diminished from the resources of the co-guardian from the time he was appointed, but the same state of his patrimony has remained, or whether, even if nothing happened afterwards to make a diminution of patrimony manifest, the co-guardian must nevertheless inquire into the fortunes of his co-guardian.
sed hoc et ex personae qualitate et ex temporis intercapedine, quo testamentum factum est, usque ad mortem patris aliam aestimationem accipere debet: nam aperte prodigo uel cuius bona uenierunt (licet obreptum fuerit praetori, qui decreto eum dedit) permittere contutori administrationem non debet, et potuit aliquid pater eorum post testamentum factum accidens ignorasse aut, cum destinatum haberet mutare testamentum, id non fecisse.
But this must receive a different assessment both from the quality of the person and from the interval of time from when the will was made until the death of the father. For he ought not to permit the administration to a co-guardian who is an open spendthrift or whose goods have been sold (even though the praetor who appointed him by decree was deceived), and their father might have been ignorant of something that happened after the will was made, or, although he intended to change his will, did not do so.