[IDEM libro undecimo digestorum. ] §26.7.58.prQui negotiationem per Pamphilum et Diphilum prius seruos, postea libertos exercebat, suo testamento eos tutores reliquit et cauit, ut negotium eodem more exerceretur, quo se uiuo exercebatur: hique tutelam administrauerunt non tantum, cum impubes patroni filius fuisset, sed etiam post pubertatem eius.
[IDEM libro undecimo digestorum.] A person who conducted a business through Pamphilus and Diphilus, formerly slaves, afterwards freedmen, left them as guardians in his will and provided that the business should be carried on in the same manner as it was carried on during his lifetime. And they administered the guardianship not only while the son of their patron was below the age of puberty, but also after his puberty.
sed Diphilus quidem cum incremento negotiationis rationes optulit, Pamphilus autem putauit reddere oportere non ad incrementum negotiationis, sed ad computationem usurarum, ut in tutelae iudicio solet.
But Diphilus indeed rendered accounts including the increase of the business, whereas Pamphilus thought he ought to render accounts not according to the increase of the business, but according to the computation of interest, as is customary in the action of guardianship.
quaesitum est, an secundum uoluntatem defuncti exemplo Diphili Pamphilus quoque rationem reddere debeat.
The question arose whether, according to the intention of the deceased, Pamphilus also ought to render accounts following the example of Diphilus.
respondit debere.
He answered that he ought to.
CLAUDIUS TRYPHONINUS: quia lucrum facere ex tutela non debet.
CLAUDIUS TRYPHONINUS: Because he ought not to make a profit out of the guardianship.
§26.7.58.1Ex duobus tutoribus pupilli altero defuncto adhuc impubere pupillo, qui supererat ex persona pupilli sui iudice accepto consecutus est cum usuris, quantum ex tutela ad tutorem defunctum peruenerat: quaesitum est, iudicio tutelae, quo experitur pubes factus, utrum eius tantum portionis, quae ab initio quod ex tutelae ratione peruenerat ad defunctum contutorem, usurae ueniant, an etiam eius summae, quae ex sortis usuris pupillo aucta post mortem eius ad superstitem aeque cum sorte translata sit aut transferri debuit.
When one of the two guardians of a ward died while the ward was still below the age of puberty, the survivor, having accepted a judge in the name of his ward, recovered with interest as much as had come to the deceased guardian from the guardianship. The question arose, in the action of guardianship, which is brought by the ward when he has reached puberty, whether interest is due only on that portion which from the beginning had come to the deceased co-guardian from the account of the guardianship, or also on that sum which, increased for the ward from the interest of the principal, was transferred or ought to have been transferred to the survivor after his death equally with the principal.
respondit, si eam pecuniam in se uertisset, omnium pecuniarum usuras praestandas: quod si pecunia mansisset in rationibus pupilli, praestandum, quod bona fide percepisset aut percipere potuisset, sed, faenori dare cum potuisset, neglexisset, cum id, quod ab alio debitore nomine usurarum cum sorte datur, ei qui accipit totum sortis uice fungitur uel fungi debet.
He answered that if he had converted that money to his own use, interest must be paid on all the money; but if the money had remained in the accounts of the ward, he must pay what he had received in good faith or could have received, but, though he could have put it out at interest, had neglected to do so, since what is paid by another debtor under the name of interest along with the principal serves, or ought to serve, in its entirety in place of the principal for him who receives it.
§26.7.58.2Testamento dati tutores, quod ruptum uidebatur, cessauerunt in administratione tutelae et a praeside tutor datus est pupillo, iussi autem sunt etiam hi, qui dati erant testamento tutores, tutelam administrare coniuncto eo, qui a praeside datus coeperat administrare: quaesitum est, ex testamento datos periculum antecedentis temporis administrationis utrum ex apertis tabulis, an ex quo iussi sunt, pertineat ad eos.
Guardians appointed by a will which seemed to have been revoked neglected the administration of the guardianship, and a guardian was given to the ward by the governor; but those who had been appointed by the will were also ordered to administer the guardianship in conjunction with the one who, having been appointed by the governor, had begun to administer. The question arose, regarding those appointed by the will, whether the risk of the administration of the preceding time belongs to them from the opening of the will, or from the time they were ordered to administer.
respondit ad eos de quibus quaereretur nullum antecedentis temporis periculum pertinere.
He answered that no risk of the preceding time belongs to those about whom the question was asked.
§26.7.58.3Pupillo herede instituto filiae exheredatae duo milia nummorum aureorum legauit eosdemque tutores utrisque dedit: quaesitum est, an ex eo die, quo duo milia potuerunt a substantia hereditatis et in nomina collocare neglexerint, usurarum nomine pupillae tutelae iudicio teneantur.
A person who appointed a ward as his heir bequeathed two thousand gold coins to his disinherited daughter, and gave the same guardians to both. The question arose whether, from the day on which they could have taken the two thousand from the assets of the inheritance and invested them in loans, but neglected to do so, they are liable to the ward (the daughter) under the name of interest in the action of guardianship.
respondit teneri.
He answered that they are liable.
§26.7.58.4Quaesitum est, an usurae pupillaris pecuniae, quas tutores debuerunt, cum ad curatorem transferuntur, in sortem computantur et uniuersae summae usuras debere curatores incipiant.
The question arose whether the interest on the ward's money, which the guardians owed, when transferred to the curator, is computed into the principal, and whether the curators begin to owe interest on the entire sum.
respondit omnis pecuniae, quae ad curatores transit, parem causam esse, quia omnis sors efficitur.
He answered that the case of all the money that passes to the curators is the same, because all of it becomes principal.