Ad Dig. 5,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 13.The Same, Questions, Book XI. In all bona fide actions, when the day of payment of money has not arrived, and anyone makes application for the execution of a bond, it will be allowed where proper cause is shown.

Papinianus, Questions, Book XI. Where a woman who was about to be married to a maternal uncle, gave a sum of money as dowry, but did not marry him, the question arose whether she could bring an action for the recovery of the money? I said that where money was paid for some immoral consideration which affected both the giver and the receiver, an action for recovery would not lie, and where both of them are equally culpable, the possessor has the advantage; and that anyone who adopted this principle perhaps would answer that the woman could not bring an action for recovery; but, on the other hand, it could be justly maintained that the question to be considered was not so much that the consideration was immoral, as that there was no consideration at all; since the money which was paid could not be converted into a dowry, as it was paid not for the purpose of unlawful cohabitation but on account of matrimony. 1A stepmother paid a sum of money as dowry for her marriage to her stepson, and a daughter-in-law also did this for her marriage to her father-in-law, and neither marriage took place. It would seem at first view that an action for recovery of the money would not lie, since an union of this kind is incest by the Law of Nations; still, in such instances it is the better opinion that there was no consideration for giving the dowry, and therefore an action for its recovery will lie.

Papinianus, Questions, Book XI. Where a husband and a wife accuse one another in court of bad conduct, and the judge declares that both of them have given cause for repudiation, the decision should be understood to mean that, as both had treated the law with contempt, neither can claim its benefit, as the offence of each is atoned for by that of the other.

Papinianus, Questions, Book XI. A husband manumitted a dotal slave without the consent of his wife. He was then appointed sole heir by the freedman to a share of the estate which he could, and should have acquired as patron, and ought have returned to his wife; the remaining portion, however, she will be entitled to recover by means of a dotal action, provided she was opposed to the manumission of the slave.

Papinianus, Questions, Book XI. All equitable actions to recover property wrongfully appropriated, which has come into his hands, can be brought against the father even during the lifetime of his daughter.

Papinianus, Questions, Book XI. Where an action is brought against a woman on the ground of property wrongfully appropriated after the marriage has been dissolved, the action is extinguished in case the marriage should be re-established.

Papinianus, Questions, Book XI. The Prætor orders magistrates to confirm guardians appointed by the will of a paternal uncle. They should also take security, nor will the wishes of a party who could not appoint a guardian excuse the negligence of the magistrate. Finally, the Prætor cannot issue his decree before the guardians, by means of an examination, shall have been declared eligible. Whence it follows that if they should not be solvent at the time the guardianship was established, an action will be granted against the magistrates for the amount which cannot be made good out of the property of the guardians.

Papinianus, Questions, Book XI. Where freedom and an estate are granted to a slave under the age of puberty by means of a trust, and the appointed heir refuses to accept the estate, the Senate decreed that he can be forced to do so, if this is demanded in the name of the minor; just as a guardian may be appointed for a male or female minor by someone who has the right of appointment, and he will retain the guardianship until the estate is delivered, and security given by the heir for the preservation of the property. The Divine Hadrian subsequently stated in a Rescript that the same rule should be observed in the case of a slave to whom freedom had been directly bequeathed. 1Although security for the preservation of the property of a minor can not readily be exacted from a patron; still, the Senate desired that he should be considered as a stranger who had deprived the minor slave of his freedom, so far as it was in his power, and that he should not be deprived of the right over the freedman which he possessed because he manumitted him in compliance with the terms of the trust; but that the guardianship should not be entrusted to him without the execution of a bond. But what if he did not give security? There is no doubt that the patron would not be allowed to retain the guardianship. 2When a girl has completed her twelfth year, the guardian ceases to exercise his authority; still, as it is customary for guardians to be appointed for minors when they request it; if she should desire her patron to be appointed curator, his good faith having been ascertained by an inquiry, shall take the place of a bond.

The Same, Questions, Book XI. Sabinus and Cassius hold that a guardian, who is administering the guardianship, becomes liable for his individual acts at different times, just as in various instances he is liable. 1In accordance with this opinion, where a slave is appointed to sell the property, or to collect the debts of his master, and after becoming free, he continues in the same employment; a suit based on voluntary agency can legally be brought against him on account of past transactions; even though he could not be held liable during the time he was in slavery (at least with respect to such matters as were connected with those that he transacted after obtaining his freedom), for it is held in the case of a ward, that he can bring an action on guardianship on account of any business which has been done after he arrived at puberty, where the recent acts are connected with the former ones, and that they cannot be divided so as to be placed in separate accounts. 2Hence the question arises which is usually discussed with reference to a son under paternal control for whom a guardian has been appointed by will, and he having been emancipated after the termination of the guardianship, the guardian continues to administer his office. It follows, from the opinion of Sabinus and Cassius, that the said son can be sued for the entire amount which relates to the business transacted after his emancipation; but so far as what took place before this time is concerned, whether he was not deprived of his peculium, or whether he was deprived of it, he will only be liable for the amount which he is able to pay. If the ward should prefer to bring an action de peculio against his father, based on the former administration (for the available year will be computed from the time when the guardianship began), in order that the father may not be taken advantage of by the computation of the entire period, only the time during which the son under paternal control administered the guardianship will be included.

Papinianus, Questions, Book XI. It must by no means be believed that he is deprived of the privilege of being excused who has obtained his freedom by means of a trust; for in almost every instance of this kind, the party who manumits a slave obtains no right as patron against the person of the freedman, except that the latter cannot summon him into court without the order of the Prætor.

The Same, Questions, Book XI. When Vivius Cerealis had been appointed heir, and directed to transfer the estate to his son Vivius Simonides, when he should be free from his control, and it was proved that many fraudulent acts had been committed for the purpose of avoiding the trust, the Emperor Hadrian ordered the estate to be delivered to the son, so that the father would have no right to the money as long as his son should live. For, as security cannot be given as long as paternal control exists, the Emperor inflicted this loss upon the father because of the fraud perpetrated by him. After a decree of this kind has been authorized, the son should, under such circumstances, be compared to the son of a soldier, where property is to be recovered from possessors, or where it is necessary to bring suit against the debtors of the estate. It is, however, in conformity for the reverence due to a father, in case the latter should be reduced to want, for the judge, in his discretion, to order some of the income of the estate to be given to him.

Papinianus, Questions, Book XI. The Divine Trajan compelled a father to emancipate his son whom he had treated badly, and in a way contrary to that dictated by paternal affection, and the son, having afterwards died, the father declared that he was entitled to the possession of his estate on account of having manumitted him. This, however, was refused him on the advice of Neratius Priscus and Aristo as the emancipation took place through necessity, because of the want of paternal affection.