Ex libro V

Dig. 3,1,11Tryphoninus libro quinto disputationum. A principe nostro rescriptum est non prohiberi tutorem adesse pupillo in negotio, in quo advocatus contra patrem eius fuisset. sed et illud permissum ab eo est agere tutorem pupilli causam adversus fiscum, in qua adversus patrem pupilli antea advocatus fisci fuisset. 1Qui autem inter infames sunt, sequenti titulo explanabitur.

Tryphoninus, Disputations, Book V. It was stated by our Emperor in a Rescript: “That a guardian is not forbidden to appear for a ward in a matter in which he had been employed as an advocate against his father”. And he is also allowed by this to act against the Treasury; even where he had appeared for the Treasury previously in some proceedings against the father of his ward. 1Who those are that are considered infamous will be explained in the following Title.

Dig. 34,9,22Tryphoninus libro quinto disputationum. Tutorem, qui pupilli sui nomine falsum vel inofficiosum testamentum dixit, non perdere sua legata, si non optinuerit, optima ratione defenditur et, si libertum patris pupilli sui nomine capitis accusaverit, non repelli a bonorum possessione contra tabulas, quia officii necessitas et tutoris fides excusata esse debet. nec quisquam iudicum calumnia notabit tutorem, qui non suis simultatibus accusationem sub nomine pupilli instituit, sed cogente forte matre pupilli vel libertis patris instantibus. et si tutor reum aliquem postulaverit pupilli nomine et ideo non sit exsecutus, quod interim ad pubertatem pupillus pervenerit, non oportet dici in Turpillianum eum senatus consultum incidisse. discreta sunt enim iura, quamvis plura in eandem personam devenerint, aliud tutoris, aliud legatarii: et cum non suae personae iure, sed pupilli accusaverit, propriam poenam mereri non debet. denique pupillo relicta in eo testamento, nisi a principe conservata sint, pereunt: adeo ille est accusator, is defensor et quasi patronus. idem et Sabinus libris ad Vitellium scripsit.

Tryphoninus, Disputations, Book V. For the best of reasons, it can be maintained that a guardian who alleges in the name of his ward that a will is forged or inofficious, but is unable to prove his contention, does not lose his legacy. And even if he charges a freedman of the father of his ward with a capital crime, in the name of the latter, he shall not be excluded from possession of the estate in opposition to the terms of the will, because the requirements of his duty, and his responsibility as guardian should excuse him; nor can anyone convict a guardian of malicious prosecution who brings an accusation in the name of his ward, and not through any enmity entertained by himself, but, perhaps, induced by the representations of the mother of the ward, or at the instigation of the freedmen of the father. If a guardian accuses anyone of a crime in the name of his ward, and does not prosecute the case, because, in the meantime, the ward has arrived at the age of puberty, it must not be said that he has become liable to the Turpillian Decree of the Senate, as the rights are distinct, even though several are united in the same person, for the rights of a guardian are one thing, and those of a legatee another; and where a guardian brings an accusation, not in his own name, but in that of his ward, he does not deserve punishment. Finally, property left to a ward by a will under such circumstances is lost, unless it is preserved by order of the Emperor; to such an extent is he the defender, and, as it were, the patron of him who makes the accusation. Sabinus says the same thing in his works on Vitellius.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

Disputationum libri

Ex libro V