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5 There is no doubt that a person with whom a slave enters into a contract at the bidding of his master, or who can sue by the actions exercitoria or institoria, may in lieu thereof bring an action in respect of the peculium and of conversion to uses; but it would be most foolish of him to relinquish an action by which he may with the greatest ease recover the whole of what is owing to him under the contract, and undertake the trouble of proving a conversion to uses, or the existence of a peculium sufficient in amount to cover the whole of the debt.
So too, wherever a man is suable by either of the actions called exercitoria and institoria, he may, in lieu thereof, be sued directly by a condiction, because in effect the contract in such cases is made at his bidding.
The former lies against a master who has appointed a slave to be captain of a ship, to recover a debt incurred by the slave in his character of captain, and it is called exercitoria, because the person to whom the daily profits of a ship belong is termed an exercitor.
Pliny, Letters, ii, 20. Digest, xiv, 1 and 3 and 8 on the actio exercitoria and institoria. Cf. Codex, iv, 25, 4: et si a muliere magister navis praepositus fuerit, etc. CIL, xiv, 326. Martial, xi, 71. Apuleius, Metam., v, 10. Soranus, i, 1, ch. 1 and 2. E.g. Suetonius, Nero, 27. Carmina Priapea, 18 and 27. Ulpian, xiii, 1.
2 On the same principle the praetor grants two other actions, in which the whole amount due may be sued for; that called exercitoria, to recover the debt of a shipmaster, and that called institoria, to recover the debt of a manager or factor.
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