tionem accommodat, quae tributoria appellatur. Praeterea 4 introducta est actio de peculio deque eo, quod in rem domini versum erit, ut, quamvis sine voluntate domini negotium gestum erit, tamen sive quid in rem eius versum fuerit, id totum praestare debeat, sive quid non sit in rem eius versum, id eatenus praestare debeat, quatenus peculium patitur. In rem autem domini versum intellegitur, quidquid necessario in rem eius impenderit servus, veluti si mutuatus pecuniam creditoribus eius solverit aut aedificia ruentia fulserit aut familiae frumentum emerit vel etiam fundum aut quamlibet aliam rem necessariam mercatus erit. Itaque si ex decem ut puta aureis, quos servus tuus a Titio mutuos accepit, creditori tuo quinque aureos solverit, reliquos vero quinque quolibet modo consumpserit, pro quinque quidem in solidum damnari debes, pro ceteris vero quinque eatenus, quatenus in peculio sit ex quo scilicet apparet, si toti decem aurei in rem tuam versi fuerint, totos decem aureos Titium consequi posse. licet enim una est actio, qua de peculio deque eo quod in rem domini versum sit agitur, tamen duas habet condemnationes. itaque iudex, apud quem de ea actione agitur, ante dispicere solet, an in rem domini versum sit, nec aliter ad peculii aestimationem transit, quam si aut nihil in rem domini versum intellegatur aut non totum. Cum autem quaeritur, quantum in peculio sit, ante deducitur, quidquid servus domino quive in potestate eius sit debet, et quod superest, id solum peculium intellegitur. aliquando tamen id, quod ei debet servus, qui in potestate domini sit, non deducitur ex peculio, veluti si is in huius ipsius peculio sit. quod eo pertinet, ut, si quid vicario suo servus debeat, id ex peculio eius non deducatur.

§ 4. Hitherto we have had to consider only contracts made by a slave with his master's knowledge or even by his express authority; upon which, for that very reason, the master was held liable in solidum, or at any rate was compellable to pay up to a certain limit, without his own claims enjoying any priority over those of ordinary trade creditors. This section deals with his liability on most of the slave's other contracts— those which he made without the master's knowledge, or even against his orders ('etiamsi prohibuerit contrahi cum servo dominus, erit in eum de peculio actio' Dig. 15. 1. 29. 1), but not upon obligations arising ex servi delicto (Dig. ib. 3. 11), or from contracts which were merely gifts to the other party, Dig. 39. 5. 7, or from those which a filiusfamilias made

5

Ceterum dubium non est, quin is quoque, qui iussu domini contraxerit cuique institoria vel exercitoria actio competit, de peculio deque eo, quod in rem domini versum est, agere possit sed erit stultissimus, si omissa actione, qua facillime solidum ex contractu consequi possit, se ad difficultatem perducat probandi in rem domini versum esse, vel habere servum peculium et tantum habere, ut solidum sibi solvi possit. Is quoque, cui tributoria actio competit, aeque de peculio et in rem verso agere potest: sed sane huic modo

on the strength of peculium castrense or quasi-castrense, Dig. 49. 17. 18. 5. Here the creditor is enabled to sue the dominus by the actio de peculio et in rem verso, in which two questions usually lie for the judge's consideration; (1) has the master himself derived any material advantage from the contract in question? No stress can here be laid on the language of the text above, which suggests that the dominus was liable only if the expenditure of the slave upon his affairs was necessary (necessario... rem necessariam); in Dig. 15. 3. 3. 2 and 4 ; ib. 5. pr. and 2 expenditure which is utilis, and in 3. 4 of the same Title an outlay which merely 'ad voluptatem domini spectat' is said to be recoverable by de in rem verso; and in fact this action lay wherever actio mandati or negotiorum gestorum would lie: ‘et regulariter dicimus totiens de in rem verso esse actionem, quibus casibus procurator mandati, vel qui negotia gessit, negotiorum gestorum haberet actionem, quotiensque aliquid consumsit servus, ut aut meliorem rem dominus habuerit, aut non deteriorem ' Dig. 15. 3. 3. 2. If in rem versio in this sense could be established, the master's own means were liable pro tanto; and the advantage which he had derived might have been so great that the creditor might conceivably obtain full payment in this manner, as e.g. where the slave had borrowed 50%., and spent the whole of it in paying his master's debts. But (2) if the master has derived no material benefit from the slave's contract, or at least not enough to make him liable to the creditor in solidum, the judge has to inquire into the amount of the slave's peculium (deducting the master's own claims against it), and to condemn the dominus to pay the creditor from it what is due to him, so far as it extends at the date of the condemnation, Dig. 15. 1. 30. pr. The master's liability to de peculio lasted for an annus utilis after the slave was alienated or manumitted, Dig. 15. 2. The reason why the dominus here enjoyed the privilege, which he did not possess under the circumstances described in § 3 supr., of paying his own claims against the slave from the peculium in full, was the fact that here the contract had in no way been sanctioned by him.

For vicarii servi see on Bk. ii. 20. 17 supr.' Id, quod ipsis (sc. vicariis) debet ordinarius servus, non deducetur de peculio ordinarii servi, quia peculium eorum in peculio ipsius est:' cf. Theophilus, ivan rò avrà πρόσωπον εὑρεθῇ δύο ἐνάντια ποιοῦν, καὶ αὐξον καὶ ἀπομειοῦν τὸ peculium.

§ 5. An advantage of de peculio over tributoria has been already

tributoria expedit agere, modo de peculio et in rem verso. tributoria ideo expedit agere, quia in ea domini condicio praecipua non est, id est quod domino debetur non deducitur, sed eiusdem iuris est dominus, cuius et ceteri creditores: at in actione de peculio ante deducitur quod domino debetur et in id quod reliquum est creditori dominus condemnatur. rursus de peculio ideo expedit agere, quod in hac actione totius peculii ratio habetur, at in tributoria eius tantum, quod negotiatur, et potest quisque tertia forte parte peculii aut quarta vel etiam minima negotiari, maiorem autem partem in praediis et mancipiis aut fenebri pecunia habere. prout ergo expedit, ita quisque vel hanc actionem vel illam eligere debet: certe qui potest probare in rem domini versum esse, de in rem verso agere debet. Quae diximus de servo et 6 domino, eadem intellegimus et de filio et filia aut nepote et nepte, patre avove cuius in potestate sunt. Illud proprie 7 servatur in eorum persona, quod senatus consultum Macedonianum prohibuit mutuas pecunias dari eis, qui in parentis erunt potestate: et ei qui crediderit denegatur actio tam adversus ipsum filium filiamve nepotem neptemve, sive adhuc in potestate sunt, sive morte parentis vel emancipatione suae potestatis esse coeperint, quam adversus patrem avumve, sive habeat eos adhuc in potestate sive emancipaverit. quae ideo senatus prospexit, quia saepe onerati aere alieno creditarum

pointed out in the passage cited at the end of note on § 3 supr. Gaius (iv. 74) thinks the former remedy as a rule preferable to the latter. As soon as the action selected had reached litis contestatio, the other was extinguished on account of the identity of the obligation which they lay to enforce, Dig. 14. 4. 9. 1.

§ 6. But the filiusfamilias, unlike the slave, could be sued in person on his own contracts; for the effect of judgment recovered against him see on Tit. 5. 2 supr. Sometimes too a man was liable on a contract when made by his son, but not when made by his slave: 'sed si filius fideiussor vel quasi interventor acceptus sit, an de peculio patrem obligat quaeritur. Et est vera Sabini et Cassii sententia existimantium semper obligari patrem de peculio, et distare in hoc a servo' Dig. 15. 1. 3. 9.

§ 7. The last two lines of this section lend some colour to the story related by Theophilus, that the SC. Macedonianum, which was passed in the time of either Claudius or Vespasian, derived its name from one Macedo who committed the crime of parricide in order to relieve himself from his pecuniary difficulties; cf. p. 41 supr. The enactment related to no contracts

pecuniarum, quas in luxuriam consumebant, vitae parentium 8 insidiabantur. Illud in summa admonendi sumus id, quod iussu patris dominive contractum fuerit quodque in rem eius versum fuerit, directo quoque posse a patre dominove condici, tamquam si principaliter cum ipso negotium gestum esset.

except loans of money, and to these it applied even if veiled beneath some transaction ostensibly of a different nature; 'sed si fraus sit senatus consulto adhibita, puta frumento vel vino vel oleo mutuo dato, ut his distractis fructibus uteretur pecunia, subveniendum est filiofamilias' Dig. 14. 6. 7. 3; and the age or rank of the filius by whom the money was borrowed was immaterial: 'in filiofamilias nihil dignitas facit quominus senatus consultum Macedonianum locum habeat: nam etiamsi consul sit vel cuiusvis dignitatis, senatus consulto locus est' Dig. ib. 2. The effect of the enactment was not to avoid the loan (so that it is weaker in its operation than the SC. Velleianum, p. 416 supr.), but simply to refuse an action for its recovery, or, if an action were in fact granted by the praetor because the facts were doubtful, to enable the defendant, if he could prove his title to the benefit of the law, to repel the plaintiff by exceptio SC. Macedoniani. Thus the obligation to repay the money subsisted naturaliter, so that condictio indebiti was excluded, though if the filius paid with money of his father's, the latter could recover it by vindicatio so long as the creditor still had it in his hands.

The senatusconsult, however, had no application in the following cases. The filiusfamilias himself was liable (1) if he had a peculium castrense or quasi-castrense, Dig. 14. 6. 2; (2) if after becoming sui iuris he ratified the contract (Cod. 4. 28 2) either expressly or by implication; e. g. by repaying part of the loan. Both filius and paterfamilias were liable (1) if the lender had reason for believing the filiusfamilias to be sui iuris, Dig. 14. 6. 3. pr. and 1. (2) If and so far as the loan was in rem patris versum, Dig. ib. 7. 12 and 13. (3) If the paterfamilias consented to the transaction, Cod. 4. 28. 2. Consent might be inferred from conduct, such as standing by and allowing the money to be lent, Dig. ib. 12 and 16, or his making the son his institor, or allowing him to trade with a peculium profectitium. Subsequent ratification by the pater, express or implied, had the same effect, Cod. 4. 28. 7. pr. (4) If the loan was contracted to pay a creditor against whom the senatusconsult could not be pleaded, Dig. ib. 7. 14. (5) If the son at the time of borrowing the money was a soldier, Cod. 4. 28. 7. 1. (6) If there was no genuine loan owing to the lender's defective capacity of alienation, as where he was a pupillus or alieni iuris, Dig. ib. 3. 2. If the creditor was a minor, he could get himself in integrum restitutus in spite of the senatusconsult, Dig. 4. 4. 11. 7. The exceptio SC. Macedoniani could be pleaded also by the filiusfamilias' surety, if the latter had a ius regressus against him, Dig. 14. 6. 9. 3.

§ 8. So too it is said in Dig. 12. 1. 29; 14. 3. 17. 4 and 5, that a direct

ei quoque, qui vel exercitoria vel institoria actione tenetur, directo posse condici placet, quia huius quoque iussu contractum intellegitur.

VIII.

DE NOXALIBUS ACTIONIBUS.

Ex maleficiis servorum, veluti si furtum fecerint aut bona rapuerint aut damnum dederint aut iniuriam commiserint, noxales actiones proditae sunt, quibus domino damnato permittitur aut litis aestimationem sufferre aut hominem noxae

condictio will lie against the dominus in lieu of actio institoria. It is, however, not a necessary inference from such passages that the civil law modified its own maxim, stated in the first note on this Title, though this is the explanation of Schrader, who says 'forsan civiles actiones, olim paucis casibus datae, postea demum ita creverunt, ut eundem fere ambitum, quem honorariae statim ab initio occupabant, tenerent.' But, as Savigny remarks (Oblig. § 54), this makes it difficult to understand why the actiones adiectitiae qualitatis should be described in the Corpus iuris as not only still useful but indispensable; and Savigny himself, noticing that it is only condictio (and not actiones civiles in general) which is spoken of as alternative to the praetorian remedies, limits its application to cases where the slave or filiusfamilias had borrowed money with the superior's consent, or spent it, when borrowed, in his interest. This conjecture is supported by the fact that in the text above the concurrence of condictio with the actiones adiectitiae qualitatis is generally affirmed, with the exception of de peculio; and (as we have just seen) if a filiusfamilias borrowed money, both condictio and de peculio were barred by the SC. Macedonianum, Cod. 4. 28. 6, Dig. 14. 6. 7. 10, which, however, did not exclude institoria and the rest. Another view is that the ground of the condictio was not the slave's or filiusfamilias' contract, but the simple fact that the superior had been enriched at the cost of the other contracting party.

Tit. VIII. If a slave committed a delict by his master's orders, the latter alone was answerable: 'servus nil deliquit qui domino iubenti obtemperavit ;' and even in other cases, if the master suspected and could have prevented the wrong, the injured person had his choice between a direct and a noxal action, Dig. 9. 4. 2-5. Otherwise the slave only was directly liable, and if manumitted could be sued, § 5 inf., Dig. ib. 6, unless it was against his own master that the delict had been committed, § 6 inf. While, however, he remained a slave no action could be brought against him, and accordingly the master could be sued on his account, though, as he was not bound to defend, he would probably prefer to abandon him to the plaintiff if the proofs were clear. If he defended the action, it was