Suretyship

The Roman law of suretyship was quite extensive. Not less than five forms of suretyship were employed at different times, but in Justinian's time the principal form in use was that known as fidejussio. The con- tract of suretyship was made by stipulation, though the principal debt might arise out of any form of contract or out of tort. The creditor would ask centum qua Titius mihi debet, eadem fide tua esse jubes? The surety (Fidejussor) replied fide mea esse jubeo. The surety bound both himself and his heirs. The contract of suretyship might be made after as well as before or at the time of the principal contract. Women were prohibited by- the Senatjis consultum Valleianum (A. D. 46) from becoming sureties.

The surety was bound to pay the creditor in case of the default of the principal debtor, but according to the earlier law the creditor could not sue the surety without first proceeding against the debtor. If the principal debtor was beyond the jurisdiction, the surety could not be sued. During the Empire this rule was changed so as to give the creditor the option of suing either the principal or the surety.

Justinian (Nov. 4, 1) restored the old rule with modifications by providing that if the principal debtor were within the jurisdiction he must be first sued or have made default, before the surety could be sued, except that bankers argentarii might first sue the surety, and if the principal were out of the jurisdiction, the surety might be sued.

If the surety paid the debt, he had a right of action (actio mandati) against the principal debtor for reimbursement. And the creditor was bound to turn over to the surety all the rights in rem, such as pledges (pignora) and mortgages (hypotheca) he held over the property of the debtor or others securing the debt. But if these rights were also held to secure other debts, he could not be compelled to surrender them until all the debts were discharged. (Hunter, 569.)

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Curators

By the Roman law a male became of age for all purposes upon reaching the age of puberty. Females, at least under the older law, never attained full legal capacity. Plainly, however, a law which gave to a boy of fourteen full power to manage his own affairs was unsafe for him, and modifications were introduced from time to time for his protection. By an early law of uncertain date passed for the relief of minors (le.r Plcetoria), they were permitted to apply to the prsetor for the appointment of a form of guardian known as a curator, who would be appointed on proof of the minor's incapacity to manage his own affairs. And in time it became the rule for magistrates to appoint a curator upon the minor's application. But a minor above the age of puberty could not be compelled to have a curator, except when, on being sued, he neglected or refused to apply for a curator, in which case a curator would be appointed on petition of the plaintiff to defend the suit. The du
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The Several Kinds of Tutors

(1) Testamentary Tutors. These were appointed by the will of the deceased paterfamilias of the pupil. This mode of appointment was authorized by the Twelve Tables. ( 2) Statutory Tutors. These succeeded to the tutela by virtue of the provisions of the Twelve Tables or of some other Statute, but only if there were no testamentary tutors. They were called legitimi tutor es. They were the agnates (by Justinian's legislation, the nearest of kin, whether agnates or cognates) who in case of the death of the pupil would succeed to his inheritance. They were appointed upon the principle that those who had the advantage of the inheritance ought to bear the burden of the tutela (ubi entolumentum successionis ibi et onus tutelcs). In this connection may be mentioned also the guardianship of the patron over his freedman, and of the father over his emancipated child. (3) In the absence of a testamentary or statutory tutor, power was ' given to certain magistrates to appoint
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Nexum

This was an ancient contract made by the ceremony of mancipation per aes et libram . Very little is known about it. Its application seems to have been very narrow, perhaps limited to the contract of loan. It was obsolete from a very early date.
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