De tutelae et rationibus distrahendis et utili curationis causa actione
(Concerning the action to compel an accounting for guardianship, and the equitable action based on curatorship.)
1 Ulpianus libro trigesimo sexto ad edictum. In omnibus quae fecit tutor, cum facere non deberet, item in his quae non fecit, rationem reddet hoc iudicio, praestando dolum, culpam et quantam in suis rebus diligentiam. 1Unde quaeritur apud Iulianum libro vicensimo primo digestorum, si tutor pupillo auctoritatem ad mortis causa donationem accommodaverit, an tutelae iudicio teneatur. et ait teneri eum: nam sicuti testamenti factio, inquit, pupillis concessa non est, ita nec mortis quidem causa donationes permittendae sunt. 2Sed et si non mortis causa donaverit tutore auctore, idem Iulianus scripsit plerosque quidem putare non valere donationem, et plerumque ita est: sed nonnullos casus posse existere, quibus sine reprehensione tutor auctor fit pupillo ad deminuendum, decreto scilicet interveniente: veluti si matri aut sorori, quae aliter se tueri non possunt, tutor alimenta praestiterit: nam cum bonae fidei iudicium sit, nemo feret, inquit, aut pupillum aut substitutum eius querentes, quod tam coniunctae personae alitae sint: quin immo per contrarium putat posse cum tutore agi tutelae, si tale officium praetermiserit. 3Officio tutoris incumbit etiam rationes actus sui conficere et pupillo reddere: ceterum si non fecit aut si factas non exhibet, hoc nomine iudicio tutelae tenebitur. de servis quoque interrogationes, sed et quaestiones habendas et hoc officio iudicis convenire placuit. nam divus Severus decrevit, cum neque inventaria neque auctionalia proferentur, remedio eo uti debere, ut rationes a servis qui rem gesserant proferantur: has rationes si esse mala fide conscriptas a servis dicunt tutores, etiam in quaestionem servi interrogari poterunt. 4Praeterea si matrem aluit pupilli tutor, putat Labeo imputare eum posse: sed est verius non nisi perquam egenti dedit, imputare eum oportere de largis facultatibus pupilli: utrumque igitur concurrere oportet, ut et mater egena sit et filius in facultatibus positus. 5Sed si munus nuptiale matri pupilli miserit, non eum pupillo imputaturum Labeo scripsit: nec perquam necessaria est ista muneratio. 6Si pupillis tutores pater dedit, inter quos et libertum suum, perque eum voluerit tutelam administrari, et tutores certam summam ei statuerunt, quia aliter se exhibere non poterat, habendam eius rationem quod statutum est Mela existimat. 7Ergo et si ex inquisitione propter rei notitiam fuerit datus tutor eique alimenta statuerint contutores, debebit eorum ratio haberi, quia iusta causa est praestandi. 8Sed et si servis cibaria praestiterit vel libertis, scilicet rei pupilli necessariis, dicendum est reputaturum: idemque et si liberis hominibus, si tamen ratio praestandi iusta intercedat. 9Item sumptus litis tutor reputabit et viatica, si ex officio necesse habuit aliquo excurrere vel proficisci. 10Nunc tractemus, si plures tutelam pupilli administraverint, pro qua quisque eorum parte conveniendus sit. 11Et si quidem omnes simul gesserunt tutelam et omnes solvendo sunt, aequissimum erit dividi actionem inter eos pro portionibus virilibus exemplo fideiussorum. 12Sed et si non omnes solvendo sint, inter eos qui solvendo sunt dividitur actio. sed prout quisque solvendo est, poterunt conveniri. 13Et si forte quis ex facto alterius tutoris condemnatus praestiterit vel ex communi gestu nec ei mandatae sunt actiones, constitutum est a divo Pio et ab imperatore nostro et divo patre eius utilem actionem tutori adversus contutorem dandam. 14Plane si ex dolo communi conventus praestiterit tutor, neque mandandae sunt actiones neque utilis competit, quia proprii delicti poenam subit: quae res indignum eum fecit, ut a ceteris quid consequatur doli participibus: nec enim ulla societas maleficiorum vel communicatio iusta damni ex maleficio est. 15Usque adeo autem ad contutores non venitur, si sint solvendo contutores, ut prius ad magistratus qui eos dederunt vel ad fideiussores veniatur: et ita imperator noster Ulpio Proculo rescripsit. quod enim Marcellus libro octavo digestorum scripsit, quodque saepissime rescriptum est, quamdiu vel unus ex tutoribus idoneus est, non posse ad magistratus qui dederunt veniri, sic erit accipiendum, si non contutor ob hoc conveniatur, quod suspectum facere vel satis exigere noluit. 16Hanc actionem etiam in heredem tutoris competere constat. 17Sed et heredi pupilli aeque competit similibusque personis. 18Non tantum ante condemnationem, sed etiam post condemnationem desiderare tutor potest mandari sibi actiones adversus contutorem, pro quo condemnatus est. 19Rationibus distrahendis actione non solum hi tenentur tutores, qui legitimi fuerunt, sed omnes, qui iure tutores sunt et gerunt tutelam. 20Considerandum est in hac actione, utrum pretium rei tantum duplicetur an etiam quod pupilli intersit. et magis esse arbitror in hac actione quod interest non venire, sed rei tantum aestimationem. 21In tutela ex una obligatione duas esse actiones constat: et ideo, sive tutela fuerit actum, de rationibus distrahendis agi non potest, sive contra, tutelae actio quod ad speciem istam perempta est. 22Hunc tamen tutorem, qui intercepit pecuniam pupillarem, et furti teneri Papinianus ait: qui etsi furti teneatur, hac actione conventus furti actione non liberatur: nec enim eadem est obligatio furti ac tutelae, ut quis dicat plures esse actiones eiusdem facti, sed plures obligationes: nam et tutelae et furti obligatur. 23Hanc actionem sciendum est perpetuam esse et heredi similibusque personis dari ex eo quod vivo pupillo captum est: sed in heredem ceterosque successores non dabitur, quia poenalis est. 24Haec actio tunc competit, cum et tutelae actio est, hoc est finita demum tutela.
1 Ulpianus, On the Edict, Book XXXVI. In this action a guardian must render an account of everything that he did, of every act which he should not have committed, as well as of those which he failed to perform; and he shall be responsible for malice, negligence, and a lack of such diligence as he would employ in his own affairs. 1For this reason, the question is asked by Julianus, in the Twenty-first Book of the Digest, whether a guardian is liable to an action on guardianship in case he authorized his ward to make a donation mortis causa. He asserts that he will be liable, for he says that this resembles the execution of a will, a right not granted to wards, and thus they should not be permitted to make donations mortis causa. 2But where a guardian permits his ward to make a donation which is not mortis causa, Julianus states that there are many authorities that hold that the donation is not valid, and this is generally true, but some instances may arise in which a guardian can, without blame, allow his ward to diminish his estate; for example, where a decree of the Prætor authorized it, as where the guardian furnished support to the mother or sister of the ward who have no other means of subsistence. For he says that, as the judgment in a case of this kind is rendered in good faith, no one can tolerate that either the ward or his substitute should complain because persons so nearly related to him have been provided with food. On the other hand, he thinks that an action on guardianship can be brought against the guardian, if he neglects the performance of so plain a duty. 3A guardian is required to keep accounts of his administration and render them to his ward. For if he does not do so, or does not produce them after they have been made out, he will be liable on this ground to an action on guardianship. It has been established that slaves can be examined and put to the question to obtain information, and this is a part of the duty of the judge; for the Divine Severus decreed that in case neither an inventory nor an account of sales was produced, this remedy should be used in order that accounts might be obtained from the slaves who had transacted the business; and if the guardians should allege that these accounts had been fraudulently made up by the slaves, that the latter could also be interrogated, after having been put to torture. 4Moreover, where a guardian has furnished support to the mother of a ward, Labeo thinks that he will not be responsible. The better opinion, however, is that, unless he provided for her when she was in absolute want, he will not be responsible where the estate of the ward is large. Hence, both of these conditions must exist, namely, the mother must be in want, and that the son in possession of considerable property. 5But if the guardian should give a wedding present to the mother at the time of her second marriage, Labeo states that he will not be responsible to the ward for the same. And yet a gift of this kind is by no means a necessary one. 6Where a father appoints several guardians for his children, and one of his freedmen among them, and desires the guardianship to be administered by the latter, and the other guardians agree upon a certain sum to be paid to him, because otherwise he would not be able to support himself, Mela is of the opinion that the account of what has been allowed should be rendered. 7And therefore, where a guardian was appointed after an examination instituted to ascertain the condition of the estate of the ward, and his fellow-guardians have allowed him support, they should render an account of this, because there is a good reason for doing so. 8But if the guardian has furnished provisions to slaves or to freedmen, who were actually necessary for the transaction of the affairs of the ward, it must be said that an account must be rendered of it. The same rule applies to the case of freemen, if a good reason exists for rendering the account. 9Moreover, a guardian must account for the costs of a legal action, and for travelling expenses if, in the performance of his duties, it was necessary for him to go anywhere, or to make a journey. 10We must now consider instances where several guardians administer the affairs of a ward, and for what proportion each one of them should be sued. 11And, indeed, where all of them have administered the guardianship at the same time, and they are all solvent, it is perfectly just that the action should be divided among them equally, just as in the case of sureties. 12Where, however, all of them are not solvent, the action should be divided among those who are, and each of them can be sued in proportion to his pecuniary responsibility. 13Where a guardian, having been held liable for an act of his fellow-guardian, makes payment, or where he does so in case of an administration in common, and the rights of action have not been assigned to him, it was decreed by the Divine Pius, as well as by our Emperor and his father, that a prætorian action should be granted to the said guardian against his colleague. 14It is evident that where a guardian, who has been sued on account of fraud committed by himself and his fellow-guardians, makes payment, the rights of action should not be assigned, nor will a prætorian action lie, because he is suffering the penalty for his own offence, which renders him unworthy to recover anything from the other participants in the fraud. For no association of malefactors is recognized by the law, nor can any legal contribution for injury arise out of the commission of a crime. 15Therefore, where guardians are solvent, recourse cannot be had to their fellow-guardians, since in the first place application should be made to the magistrates who appointed them, or to their sureties; and this rule our Emperor stated in a Rescript to Ulpius Proculus. For Marcellus says, in the Eighth Book of the Digest, what had been very frequently set forth in Rescripts, namely, that when one of two guardians is solvent, recourse cannot be had to the magistrate who appointed them; but this is to be understood to apply only where the fellow-guardian was not removed because he had rendered himself liable to suspicion, or where the other did not require him to give security. 16It is settled that this action will also lie against the heir of a guardian. 17It can also be brought by the heir of a ward, and by similar persons. 18A guardian can demand that the rights of action against his fellow-guardian, on whose account he has had judgment rendered against him, can be assigned to him, not only before, but even after his condemnation. 19In an action to compel an accounting, not only are guardians at law liable, but all those who legally administer the estate in this capacity. 20In this action, should it be considered whether only double damages shall be paid, or the amount in which the ward is interested, in addition? I think the better opinion is that in this action the interest of the ward is not concerned, but merely the value of the property. 21It is settled that, under a guardianship, there are two rights of action arising out of a single obligation, and therefore if an action on guardianship is brought, one to compel an accounting will not lie; but, on the other hand, the right of action of guardianship which has reference to this matter is extinguished. 22Papinianus, however, says that a guardian who has appropriated the money of his ward is also liable to an action of theft. And if he, having been sued in this action, is held liable for theft, he will not be released from liability to an action for theft, for the liabilities incurred by theft and guardianship are not identical; so that it may be said that two suits can be brought for the same act, and there are likewise two obligations, for liability arises both from the guardianship and the theft. 23It should be noted that this action is a perpetual one, and is granted to the heir and his successors, to recover whatever was stolen from the ward during his lifetime. It shall not, however, be granted against the heir and his successors, because it is a penal one. 24This suit then can be brought whenever there is an action on guardianship, that is to say when the guardianship is terminated.
2 Paulus libro octavo ad Sabinum. Actione de rationibus distrahendis nemo tenetur, nisi qui in tutela gerenda rem ex bonis pupilli abstulerit. 1Quod si furandi animo fecit, etiam furti tenetur. utraque autem actione obligatur et altera alteram non tollet. sed et condictio ex furtiva causa competit, per quam si consecutus fuerit pupillus quod fuerit ablatum, tollitur hoc iudicium, quia nihil absit pupillo. 2Haec actio licet in duplum sit, in simplo rei persecutionem continet, non tota dupli poena est.
2 Paulus, On Sabinus, Book VIII. No one is liable to an action to account for the appropriation of property, unless the guardian abstracted it during his administration of the guardianship. 1Where he acted with the intention of stealing, he will also be liable to the penal action for theft. He is, therefore, liable at the same time to both actions, and one of them does not release him from the other. An action for the recovery of the property on the ground of theft will also lie, and if the ward should recover the stolen goods by means of it, this right of action will be extinguished, for the reason that the ward has lost nothing. 2Although this action is brought for double the amount, the recovery of the property is only half, and the penalty is therefore not double.
3 Pomponius libro quinto ad Sabinum. Si tutelae aut negotiorum gestorum agatur incerto hoc, quantum ab adversariis debetur tutori procuratorive, arbitratu iudicis cavendum est, quod eo nomine eis absit.
3 Pomponius, On Sabinus, Book V. Where an action on guardianship, based on voluntary agency, is brought, and the amount due to the guardian or curator from his adversary is uncertain, security should be given by order of the judge to make good his loss on this account.
4 Paulus libro octavo ad Sabinum. Nisi finita tutela sit, tutelae agi non potest: finitur autem non solum pubertate, sed etiam morte tutoris vel pupilli. 1Filium familias emancipatum, si tutelam administret, etiam directo teneri Iulianus putat. 2Si adhuc impubes tutelae agat, nihil consumitur. 3Cum furiosi curatore non tutelae, sed negotiorum gestorum actio est: quae competit etiam dum negotia gerit, quia non idem in hac actione, quod in tutelae actione, dum impubes est is cuius tutela geritur, constitutum est.
4 Paulus, On Sabinus, Book VII. An action on guardianship can not be brought until the latter is terminated. It is terminated not only by puberty, but also by the death of the guardian or the ward. 1Julianus thinks that a son who has been emancipated can be held directly liable, if he has administered the guardianship. 2If he is still under the age of puberty, while administering the guardianship, his acts are void. 3An action on guardianship will not lie against the curator of an insane person, but an action on the ground of voluntary agency must be brought, which will lie while he is still transacting the business; because the same rule does not apply in this action, as in one on guarddianship, so long as he whose guardianship is being administered has not reached puberty.
5 Ulpianus libro quadragesimo tertio ad Sabinum. Si tutor rem sibi depositam a patre pupilli vel commodatam non reddat, non tantum commodati vel depositi, verum tutelae quoque tenetur. et si acceperit pecuniam, ut reddat, plerisque placuit eam pecuniam vel depositi vel commodati actione repeti vel condici posse: quod habet rationem, quia turpiter accepta sit.
5 Ulpianus, On Sabinus, Book XLIII. Where a guardian does not return property deposited or loaned for use to him by the father, he is liable to an action, not only on the loan or deposit, but also on guardianship; and if he has received money to induce him to restore the property, it is held by many authorities that the said money can be recovered either by an action on deposit, or loan, or by a personal one. This opinion is reasonable, because the property was dishonorably acquired.
6 Idem libro trigesimo primo ad edictum. Si filius familias tutelam administraverit et liberatus patria potestate dolo aliquid fecerit, an actio tutelae patrem quoque hoc nomine teneat, quaeritur. et aequum est, ut eum dumtaxat dolum pater praestet, qui commissus est ante emancipationem filii.
6 The Same, On the Edict, Book XXXI. Where a son under paternal control has administered a guardianship, and, after having been liberated, is guilty of fraudulent conduct; the question arises whether an action on guardianship on this ground will lie against the father. It is just that the father should only be liable for the fraud of his son where the latter committed it before being emancipated.
7 Idem libro trigesimo quinto ad edictum. Si pupillus heres exstiterit ei, cuius tutelam tutor suus gesserat, ex hereditaria causa cum tutore suo habebit actionem. 1Si tutor in hostium potestatem pervenerit, quia finita tutela intellegitur, fideiussores, qui pro eo rem salvam fore spoponderint, et si quis existat defensor eius, qui paratus est suscipere iudicium tutelae, vel si quis sit curator bonis eius constitutus, recte convenientur:
7 The Same, On the Edict, Book XXXV. Where one ward becomes the heir of another whose trust his own guardian has administered, he will be entitled to an action against his guardian on the ground of inheritance. 1Where a guardian falls into the hands of the enemy, for the reason that the guardianship is understood to be terminated, an action can legally be brought against his sureties who have rendered themselves liable for the preservation of the property, and against anyone who appears as his defender, and is ready to conduct the case, whoever may be appointed the curator of his estate;
8 Papinianus libro vicesimo octavo quaestionum. quamvis iure postliminii tutelam pristinam possit integrare.
8 Papinianus, Questions, Book XXVIII. Even though the guardian may be reinstated in his former guardianship by the right of postliminium.
9 Ulpianus libro vicensimo quinto ad edictum. Si tutor rei publicae causa abesse coeperit ac per hoc fuerit excusatus, quod rei publicae causa aberit, tutelae iudicio locus est. sed si desierit rei publicae causa abesse, consequenter desinit qui in locum eius datus est et tutelae conveniri poterit. 1Si duobus impuberibus fratribus tutor datus sit et alter eorum in legitimam tutelam fratris sui perfectae aetatis constituti reccidit, eum qui datus esset tutorem esse desisse Neratius ait. quia igitur desinit, erit tutelae actio etiam ex persona impuberis, quamvis, si testamento datus fuisset, non desineret esse tutor eius, qui adhuc erat impubes, quia semper legitima tutela testamentariae cedit. 2Si testamento sub condicione tutor datus sit, deinde alius medio tempore ex inquisitione, dicendum est locum esse tutelae iudicio existente condicione, quia tutor esse desinit. 3Sed et si quis testamento usque ad tempus fuerit datus, idem erit dicendum. 4Et generaliter quod traditum est pupillum cum tutore suo agere tutelae non posse hactenus verum est, si eadem tutela sit: absurdum enim erat a tutore rationem administrationis negotiorum pupilli reposci, in qua adhuc perseveraret. in qua autem desinit tutor et iterum coepit esse, sic ex pristina administratione tutelae debitor est pupillo, quomodo si pecuniam creditam a patre eius accepisset. quem igitur effectum haec sententia habeat, videamus: nam si solus tutor est, utique ipse secum non aget. sed vel per specialem curatorem conveniendus est vel pone eum contutorem habere, qui possit adversus eum iudicem accipere, ex qua causa cum eo tutelae agi potest. quin immo si medio tempore solvendo esse desierit, imputabitur contutoribus, cur non egerunt cum eo. 5Si tutori curator sit adiunctus quamvis suspecto postulato, non cogetur tutelae iudicium tutor suscipere, quia tutor maneret. 6Sed et si fuerit tutor confiscatus, adversus fiscum dandam esse actionem constat ei qui loco eius curator datus sit vel contutoribus eius. 7Ceterae actiones praeter tutelae adversus tutorem competunt, etsi adhuc tutelam administrant, veluti furti, damni iniuriae, condictio.
9 Ulpianus, On the Edict, Book XXV. Where a guardian is away in the service of the State, and on this account has been excused during his absence, there is ground for an action on guardianship. Where, however, he ceases to be in the service of the government, and is discharged in consequence, anyone who is appointed in his stead can be sued in an action on guardianship. 1Where a guardian has been appointed for two brothers who have not reached puberty, and one of them comes under the legal guardianship of a brother who has attained his majority, Neratius says that the guardian who was appointed ceases to hold office. Therefore, for the reason that he is no longer guardian, the action on guardianship will lie against him in the name of the ward, although if he was appointed by will, he would not cease to be the guardian of the minor who is still under puberty, because testamentary guardianship always enjoys the preference over guardianship-at-law. 2Where a guardian is appointed by will, under a certain condition, and, in the meantime, another is appointed after an investigation, it must be held that there is ground for an action on guardianship, when the condition has been fulfilled, for the reason that the guardian ceases to be such. 3The same rule must be held to apply where a testamentary guardian has been appointed for a certain time. 4And, generally speaking, what has been handed down, namely, that a ward cannot bring a tutelary action against his guardian, is only true where the same guardianship is in existence; for it would be absurd for an account to be demanded for the administration of the business of a ward, where the guardian was still transacting it; still, where the guardian has ceased to do so, but a second time assumes the administration of the trust, he will be responsible to the ward for his former conduct during the guardianship, in the same way as if he had borrowed money from his father. Let us consider what would be the result of this opinion. It is evident that if there is but one guardian, he cannot proceed against himself, and he must be sued by a curator appointed for that purpose; but, suppose that he already had another guardian, who could bring an action on guardianship against his colleague, and conduct it? Not only is this the case, but if in the meantime he should cease to be solvent, his fellow-guardian can be held liable, because he did not bring an action against him in the first place. 5Where a curator is added to a guardian, even though the latter may have been denounced as suspicious, he will not be compelled to defend an action on guardianship, because the guardian is still in office. 6Where, however, the property of a guardian has been confiscated, it is established that an action should be granted against the Treasury to him who has been appointed curator in his stead, or to his fellow-guardians. 7The other actions, with the exception of that of guardianship, will lie against the guardian, even though he is still administering the trust; as, for instance, those of theft, damage, injury, and for the recovery of specific property.
10 Paulus libro octavo brevis edicti. Sed non dantur pupillo, dum tutor tutelam gerit: quamvis enim morte tutoris intereant, tamen pupillus cum herede eius actionem habet, quia sibi solvere debuit.
10 Paulus, On the Abridgment of the Edict, Book VIII. These actions are not granted to the ward as long as the guardian administers the guardianship, although they are extinguished by the death of the latter. The ward, however, will still be entitled to his action against the heir, because he is obliged to pay him.
11 Ulpianus libro trigesimo quinto ad edictum. Si filius familias tutelam administraverit, deinde fuerit emancipatus, remanere eum tutorem Iulianus ait et cum pupillus adoleverit, agendum cum eo eius quidem temporis, quod est ante emancipationem, in quantum facere potest, eius vero, quod est post emancipationem, in solidum, cum patre vero dumtaxat de peculio: manere enim adversus eum etiam post pubertatem de peculio actionem: neque enim ante annus cedit, intra quem de peculio actio datur, quam tutela fuerit finita.
11 Ulpianus, On the Edict, Book XXXV. Where a son under parental control administers a guardianship, and then is emancipated; Julianus says that he still remains guardlian, and when his ward grows up, an action can be brought against him for whatever he was able to pay during the time before he was emancipated, and after his emancipation for the entire amount; but his father can only be sued to the extent of the peculium. For the action de peculio will still lie against him after he has attained puberty; as the year from the emancipation within which an action de peculio is granted will not begin to run before the guardianship is terminated.
12 Paulus libro octavo brevis edicti. Filius autem tutor propter hoc suum factum cum patre agere non potest ante pubertatem, quia nec finita tutela hoc ab eo exigi potest.
12 Paulus, On the Abridgment of the Edict, Book VIII. However, a son who is a guardian, cannot, on this ground, bring an action against his father before arriving at puberty; for this cannot be required of him, even after the guardianship is terminated.
13 Ulpianus libro trigesimo quinto ad edictum. Si tutor post pubertatem pupilli negotia administraverit, in iudicium tutelae veniet id tantum, sine quo administratio tutelae expediri non potest: si vero post pubertatem pupilli is qui tutor eius fuerat fundos eius vendiderit, mancipia et praedia comparaverit, neque venditionis huius neque emptionis ratio iudicio tutelae continebitur. et est verum ea quae conexa sunt venire in tutelae actionem: sed et illud est verum, si coeperit negotia administrare post tutelam finitam, devolvi iudicium tutelae in negotiorum gestorum actionem: oportuit enim eum a semet ipso tutelam exigere. sed et si quis, cum tutelam administrasset, idem curator adulescenti fuerit datus, dicendum est negotiorum gestorum eum conveniri posse.
13 Ulpianus, On the Edict, Book XXXV. Where a guardian administers the affairs of his ward after puberty, he will be liable to an action on guardianship only for the amount without which his administration could not be conducted. Where, however, the guardian of a ward after puberty sells his property, or purchases slaves and land; an account of said sale or purchase will not be included in the action on guardianship; and it is true that only those matters which are connected with the guardianship are embraced in a proceeding of this kind. It is also true that if the guardian continues to administer the affairs of the trust after the latter has been terminated, the action on guardianship becomes merged in that of voluntary agency; for it becomes necessary for the guardian to exact from himself what is due by reason of the guardianship. Where, however, anyone after administering the guardianship is appointed curator of a minor, it must be said that he can be sued on the ground of voluntary agency.
14 Gaius libro duodecimo ad edictum provinciale. Si post pubertatem tempore aliquo licet brevissimo intermiserit administrationem tutor, deinde coeperit gerere, sine ulla dubitatione tam tutelae quam negotiorum gestorum iudicio cum eo agendum est.
14 Gaius, On the Provincial Edict. Book XII. If, after the ward has reached puberty, the guardian should relinquish the administration even for a very short time, and afterwards resume it, there is no doubt that he can be sued in an action on guardianship, as well as in one on voluntary agency.
15 Ulpianus libro primo disputationum. Si ex duobus tutoribus cum altero quis transegisset, quamvis ob dolum communem, transactio nihil proderit alteri, nec immerito, cum unusquisque doli sui poenam sufferat. quod si conventus alter praestitisset, proficiet id quod praestitit ei qui conventus non est: licet enim doli ambo rei sint, tamen sufficit unum satisfacere, ut in duobus, quibus res commodata est vel deposita quibusque mandatum est.
15 Ulpianus, Disputations, Book I. Where a ward transacts business with one of his two guardians, and this results in his loss, the transaction will not benefit the other guardian, where both are guilty of fraud; nor is this unreasonable, since each one of them must pay the penalty for his fraudulent conduct. But if one of them, having been sued, should pay the ward what is due to him, this will release the other guardian against whom suit was not brought; for, even though both are guilty of fraud, still, it is sufficient for one of them to make payment; and the same rule applies as where property is loaned to, or deposited with two persons, to whose care it has been entrusted.
16 Idem libro septuagesimo quarto ad edictum. Si cum tutore ex stipulatu agatur vel cum his qui pro eo intervenerunt, erit dubitatio, an, quia tutelae agi non potest, nec ex stipulatu agi possit. et plerique putant etiam hanc actionem propter eandem utilitatem differendam. 1Cum curatore pupilli sive adulescentis agi poterit, etsi usque adhuc cura perseveret.
16 The Same, On the Edict, Book LXXIV. If the action on stipulation is brought against a guardian while he is still administering the trust, or against those who represent him, a doubt will arise as to whether an action on guardianship cannot be brought, and whether one on stipulation will not lie. Many authorities think that this action should also be deferred, for reasons of convenience. 1The action can also be brought against the curator of a ward or a minor, even while the curatorship is still in existence.
17 Idem libro tertio de officio consulis. Imperatores Severus et Antoninus rescripserunt in haec verba: ‘Cum hoc ipsum quaeratur, an aliquid tibi a tutoribus vel curatoribus debeatur, non habet rationem postulatio tua volentis in sumptum litis ab his tibi pecuniam subministrari’.
17 The Same, On the Duties of Consul, Book III. The Emperors Severus and Antoninus stated the following in a Rescript: “Since the question arises whether anything is due to you from guardians or curators, your petition is unreasonable, as you desire them to furnish the money to you for the expenses of the suit.”
18 Papinianus libro vicesimo quinto quaestionum. Cum tutor negotiis impuberis administratis pupillum paterna hereditate abstinet, bonis patris venditis tractari solet, utilis actio pupillo relinqui an creditoribus concedi debeat. et probatur actionem inter pupillum et creditores patris esse dividendam, scilicet ut quod rationi bonorum per tutorem deerit creditoribus reddatur, quod autem dolo vel culpa tutoris in officio pupilli perperam abstenti contractum est, puero relinquatur. quae actio sine dubio non prius competet, quam pupillus ad pubertatem pervenerit: sed illa confestim creditoribus datur.
18 Papinianus, Questions, Book XXV. Where a guardian who is administering the affairs of a ward that has not yet reached puberty induces him to reject the estate of his father, a discussion usually arises whether an equitable action can be granted a ward after the property of his father has been sold. It is held that the action should be divided between the ward and the creditors of the father, in such a way that any deficiency in the account of the property due to the agency of the guardian shall be made up to the creditor. But whatever loss has ensued, either through the fraud or negligence of the guardian in causing his ward to wrongfully reject the estate, shall be left to the boy to be recovered by an action. The above-mentioned action undoubtedly will not lie before the ward has reached puberty, but is granted at once to the creditors.
19 Ulpianus libro primo responsorum. Si probatum est nomen debitoris a novissimo curatore, frustra tutorem de eo conveniri.
19 Ulpianus, Opinions, Book I. Where a claim due from a debtor has been approved by the last curator, the guardian cannot be sued for the claim.
20 Papinianus libro secundo responsorum. Alterius curatoris heredem minorem ut maiore pecunia condemnatum in integrum restitui placuit. ea res materiam litis adversus alterum curatorem instaurandae non dabit quasi minore pecunia condemnatum, si non sit eius aetatis actor, cui subveniri debeat: sed aequitatis ratione suadente per utilem actionem ei subveniri, in quantum alter relevatus est, oportet. 1Non idcirco actio, quae post viginti quinque annos aetatis intra restitutionis tempus adversus tutorem minore pecunia tutelae iudicio condemnatum redditur, inutilis erit, quod adulescenti curatores ob eam culpam condemnati sunt: itaque si non iudicatum a curatoribus factum est, per doli exceptionem curatores consequi poterunt eam actionem praestari sibi.
20 Papinianus, Opinions, Book II. It has been decided that the minor heir of one of two curators is entitled to complete restitution where the judgment was for the full amount. This proceeding will not afford a ground of action for recovery against the other curator, as having been required to pay a smaller sum of money than he should have paid, where the plaintiff is not of an age when he can obtain relief by law; but, on the ground of equity, relief should be granted him by means of a prætorian action to the extent that the other curator has been released from liability. 1Therefore, the suit which is granted, after the age of twenty-five, within the time fixed by law, for restitution against a guardian who has had judgment rendered against him in an action on guardianship, will not be useless; for the reason that the minor curators have had judgment rendered against him on account of this neglect. Hence, if the judgment has not been satisfied by the curators, the latter can, by means of an exception on the ground of fraud, compel the rights of action of the ward to be assigned to them.
21 Idem libro primo definitionum. Cum pupillus tutelae actione contra tutorem alterum tutori, quem iudex in solidum condemnavit, cessit, quamvis postea iudicatum fiat, tamen actio data non intercidit, quia pro parte condemnati tutoris non tutela reddita, sed nominis pretium solutum videtur.
21 The Same, Definitions, Book I. When a ward transfers his right of action on guardianship to the guardian against whom a judgment has been rendered in full, to be enforced against his fellow-guardian, the right of action will not be extinguished, even though this is done after the judgment has been satisfied, because it is held that an account is not rendered for the share of the defeated guardian, but that the amount of the claim has been paid.
22 Paulus libro tertio decimo quaestionum. Defensor tutoris condemnatus non auferet privilegium pupilli: neque enim sponte cum eo pupillus contraxit.
22 Paulus, Questions, Book XIII. Where a defender of a guardian loses the case, he does not deprive the ward of his privilege, because the latter did not voluntarily contract with him.
23 Idem libro nono responsorum. Convento herede tutoris iudicio tutelae curatorem eiusdem neque ipso iure liberatum videri neque exceptionem rei iudicatae ei dandam: idemque in heredibus magistratuum observandum.
23 The Same, Opinions, Book IX. Where the heir of a guardian has been sued in an action on guardianship, his curator is not held to be released by operation of law, nor will an exception be granted him on the ground of res judicata. The same rule shall be observed with reference to the heirs of magistrates.
24 Idem libro secundo sententiarum. Postumo tutor datus non nato postumo neque tutelae, quia nullus pupillus est, neque negotiorum gestorum iudicio tenetur, quia administrasse negotia eius quia natus non esset non videtur: et ideo utilis in eum actio dabitur.
24 The Same, Decisions, Book II. Where a guardian is appointed for a posthumous child, who is still unborn, an action on guardianship will not lie, for the reason that there is no ward, nor will he be liable as a party acting as a guardian because such a proceeding has no significance, nor can he be sued on the ground of voluntary agency, as he is not considered to have administered the affairs of an individual who is unborn, and therefore an equitable action will be granted against him.
25 Hermogenianus libro quinto iuris epitomarum. Non solum tutelae privilegium datur in bonis tutoris, sed etiam eius, qui pro tutela negotium gessit: vel ex curatione pupilli pupillaeve furiosi furiosaeve debebitur, si eo nomine cautum non sit.
25 Hermogenianus, Epitomes of Law, Book V. Not only is the privilege of guardianship granted in favor of a ward against the property of a guardian, but also against that of one who has acted in his stead, as well as in the case of the curatorship of a male or female ward, or an insane man or woman, where security has not been furnished on this account.