Ulpianus, On the Edict, Book XXXV. When the law pardons anything which is past it forbids it for the future.

The Same, On the Edict, Book XXXV. If he who has released a debtor by force makes payment, he does not exempt the latter from liability, because he pays the penalty of his own act.

Ulpianus, On the Edict, Book XXXV. Where a party performed an act while in slavery, he is not compelled to render an account of it after being manumitted. When, however, such a connection between the transactions exists that the account of what was done in slavery cannot be separated from the acts performed in freedom; it is settled that what was done in slavery can be brought into court in an action on mandate, or on business transacted. For if while he was in slavery, the party purchased land, and built a house upon it, and the house fell down, and then, after he was manumitted, he should rent the ground, the lease of the land would only be included in the suit based on business transacted, for the reason that nothing more arising from the transactions of previous date could be included; unless the account of the business done during the time that the party was free cannot be made up without it.

Ulpianus, On the Edict, Book XXXV. Where property belonging to a minor or a ward which the law does not forbid to be sold, is alienated, the sale is valid. If, however, great loss results to the ward or the minor, even if there is no collusion, the sale may be rescinded by complete restitution.

Ad Dig. 23,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14.Ulpianus, On the Edict, Book XXXV. Inquiry is made by Julianus whether a marriage contracted before the twelfth year takes the place of a betrothal. I have always approved the opinion of Labeo, who held that if a betrothal had preceded a marriage, it would still continue to exist, even after the girl had begun to live with her husband; but if it had not been contracted previously, and the girl had been brought to the house of her husband, the betrothal could not be considered to have been made. Papinianus also concurs in this opinion.

The Same, On the Edict, Book XXXV. We should consider persons who are mentioned in a codicil confirmed by a will to be testamentary guardians. 1Those, however, who are appointed by law, should not be considered testamentary guardians.

The Same, On the Edict, Book XXXV. It is perfectly certain that testamentary guardians should not be compelled to give security for the preservation of the property of their wards. Still, when one of several offers to furnish security that he will administer the office alone, he should be heard, as is provided by the Edict. Moreover, the Prætor very properly inquires of the others whether they also are willing to give security, for if they are ready to do so, they should not be excluded by the offer of the first one; but if security is furnished by all, all can administer the trust, so that any of them who prefers to receive security rather than administer it will be rendered safe. 1By no means, however, is a guardian who offers to give security always to be preferred. For what if he was a suspicious person, or one who is infamous to whom the guardianship should not be entrusted, even if he gave security? Or, if he had already been guilty of many crimes in the administration of the guardianship, should he not rather be dismissed and expelled from his office, than be allowed to administer it alone? Those who do not give security should not rashly be rejected, because, generally speaking, persons who are of good repute, solvent, and honest, should not be excluded as guardians, even if they do not furnish security, nor, indeed, should they be ordered to furnish it. 2Therefore the examination instituted by the Prætor is twofold in its nature; on the one hand, it must be ascertained who, and what kind of a person he is who offers to give security; and on the other, the character and qualifications of his fellow guardian should be investigated. For it is necessary to learn what their standing and honesty are, so that they may not be subjected to the insult of being compelled to give security.

Ulpianus, On the Edict, Book XXXV. If none of the guardians volunteer to give security, but a certain person who is not a guardian appears, and requests that the guardians furnish it, or, if they do not do so, that the guardianship should be given to him, he being ready to provide security; he should not be heard. For guardianships ought not to be entrusted to a stranger, and testamentary guardians should not be compelled to give security contrary to law. 1This Edict with reference to the furnishing of security applies to testamentary guardians. Where, however, guardians are appointed after an examination, Marcellus says that this Edict is also applicable to them, and this is also indicated by an Address of the Divine Brothers. They therefore come under the same rule, hence if the majority of the guardians so decide, he shall administer the guardianship whom the majority may select, although the terms of the Edict specifically apply to testamentary guardians. 2Where a guardian is appointed by will for a posthumous child, he cannot administer the office until the posthumous child is born. An action on the ground of voluntary agency will, however, be granted to the substituted ward as against the guardian. But where the child is born, and the guardian is removed from office before he discharges any of its duties, he will be liable to this same action. If, however, he transacts any business after the child is born, he will be liable to an action on guardianship with reference also to any matters which he has previously attended to, and his entire administration will be included in this action.

Ulpianus, On the Edict, Book XXXV. No one appoints legal guardians, for the Law of the Twelve Tables constitutes them such. 1While, however, it is certain that they should be compelled to give security, many authorities hold that even a patron and his son, as well as his other descendants, can be forced to give bond for the preservation of the property of their wards. It is better to leave it to the judgment of the Prætor, after proper investigation, whether the patron and his children should furnish security or not; so that if the party in question is honest, the security may be remitted, and especially if the estate is of small value. Where, however, the patron is of inferior rank, or of doubtful integrity, it must be held in this case that there is ground to exact security, if either the amount of the responsibility, or the rank of the person, or any other good reason should require it to be given. 2The question arises in the case of legal guardians, and in that of those appointed by magistrates, whether the guardianship can be granted to one of them alone. Labeo says that guardianship can be properly granted to one of them, for it may happen that the others are either absent, or insane. This opinion should be accepted on account of its utility, and the administration of the guardianship granted to one of the parties. 3Can these guardians then institute proceedings against one another, in accordance with the rule above stated? The better opinion is, that if all of them did not give security, or if the time for giving it has expired (for sometimes security is not required of them, or it has not been sufficient or the municipal magistrates by whom they were appointed either could not exact it, or were unwilling to do so), it may be said with respect to them, that proceedings can be instituted where security has not been furnished. 4Can the same be said with reference to patrons, especially where security is not given? I think that, in the case of patrons, proceedings cannot be instituted, unless where there is good cause for it, in order that no one may lessen the expectation of succession. For if guardianship should not be granted to one patron, he will still be liable for any loss caused by his co-patron who alone improperly administers the affairs of the ward. 5Where a legal guardian forfeits his civil rights, it must be said that he no longer has a right to act, and that the guardianship having been terminated, there is ground for the appointment of a guardian by the court.

The Same, On the Edict, Book XXXV. Where certain guardians are appointed, and some of them are not present, the Divine Pius stated in a Rescript that a temporary guardian should be appointed to perform the duties of the office.

Ulpianus, On the Edict, Book XXXV. A guardian can be compelled by extraordinary proceedings to carry on and administer the guardianship. 1From this the guardian may ascertain that, if he delays to exercise his functions after he has been appointed, he does so at his own risk. For it was decided by the Divine Marcus that where a party knows that he has been appointed a guardian, and does not, within the time prescribed by law, offer a reasonable excuse, if he has one, he will be responsible for his failure to act. 2It is sufficient for a guardian to completely defend his ward, whether he undertakes to do this himself, or under the instructions of the latter. Guardians should not be compelled to give security in order to conduct the defence of their wards. They are, therefore, permitted to institute proceedings themselves, whether they prefer to do so on their own responsibility, or to produce their wards in court; but they can only proceed themselves in cases where their wards are infants, or are absent; but where they have passed their seventh year, and are present, they can be authorized to act by their guardians. 3In the case of minors, those who bring actions against them can either summon the minor himself to court, for the purpose of suing him with the consent of his curator; or they can proceed against the curator himself to the end that he may conduct the case. Where, however, the minor is absent, proceedings must, in every instance, be instituted against his curator. 4In the discharge of their duty, however, the right to bring personal actions against the debtors of wards or of minors should not be refused to either guardians or curators, nor should they be denied the right to give their consent to the former to bring such actions.

The Same, On the Edict, Book XXXV. Where several curators have been appointed, Pomponius states in the Sixty-eighth Book on the Edict that even what has been done by any one of them should be ratified. For in the case of the curators of an insane person, the Prætor can grant the administration of the curatorship to one of them, to avoid the loss of any advantage to the person who is insane, and he will ratify any transaction of his which is not fraudulent. 1Where a grandfather, or a father of the person under his control, designates by will which of the guardians shall administer the guardianship, the Prætor held that the latter should do so. And it is reasonable that the wishes of a parent should be considered, who have merely consulted the best interests of his son. The Prætor follows the same rule with reference to those whom a parent has designated in his will, and he himself confirms them in their office; so that if a parent should mention the person whom he wishes to administer the guardianship, he alone shall administer it. 2Therefore, the other guardians will not administer the guardianship, but they will be what we commonly call “honorary guardians”. But let no one think that no responsibility attaches to them, for it is established that suit can be brought against them also after the property of the administering guardian has been exhausted; for they have been appointed to act as the observers and supervisors of his acts, and they will be liable if they do not denounce him as suspicious, when, at any time, they perceive that he is conducting himself improperly. Therefore, they must assiduously exact an accounting from him, and carefully pay attention to the manner in which he conducts himself, and if there is money to be deposited, they must see that this is done, for the purpose of purchasing land. Those persons deceive themselves, who think that honorary guardians are not in any respect responsible, for they are liable in accordance with what we have above stated. 3Although the Prætor may state that he will certainly confer the guardianship upon the party designated by the testator, still, he sometimes avoids doing so, as, for instance, where the father has acted without proper consideration; or where he was a minor under twenty-five years of age; or where, at the time he made the appointment, the guardian appeared to be a man of good and thrifty habits, but was afterwards guilty of bad conduct, of which the testator was ignorant; or where the trust was conferred upon a party on account of his prosperous circumstances, and he was afterwards deprived of his property. 4Then, where the father only appointed one guardian, sometimes curators are associated with him. For our Emperor, together with his father, stated in a Rescript that, where anyone appoints as guardians his two freedmen, one for the administration of property in Italy, and the other for the administration of property in Africa, curators should be associated with them; the wishes of the father were not complied with. 5What has been stated with reference to guardians should also be observed in the case of curators whom the father appointed by will, and who should be confirmed by the Prætor. 6Therefore it is apparent that the Prætor should be careful to avoid having the guardianship administered by several persons; for although the father may not have designated any certain individual to administer it, still, the Prætor must provide that this be done by one person alone. For, indeed, it is more easy for a single guardian both to bring actions and defend them, and that the administration of the guardianship be not distributed among several individuals. 7Where a guardian has not been selected by the testator, or where he is unwilling to act, then he shall administer the trust who shall be appointed by the majority of the guardians. The Prætor must therefore order them to assemble, and if they do not do so, or, having assembled, do not come to any conclusion; after proper investigation, he himself shall determine who shall administer the guardianship. 8It is clear that if the guardians do not accept the decision of the Prætor, but all of them desire to administer the guardianship, because they have no confidence in the person who has been selected, and are not willing that a stranger should be substituted at their risk; it must be held that the Prætor can permit all of them to administer the trust. 9Moreover, if the guardians desire to divide the guardianship among themselves, they shall be heard, in order that the administration of the same may be distributed among them.

The Same, On the Edict, Book XXXV. There is only ground for the deposit of money, (if it can be collected), where it is available for the purchase of land; for if the guardianship can be readily proved to be of so little pecuniary importance that land cannot be purchased for the ward with the money collected, the deposit need not be made. Therefore, let us consider what should be the value of the property subject to guardianship to justify a deposit. And, when the reason for the deposit is stated to be to purchase land for the wards, it is evident that this should not be held to have reference to insignificant sums of money. The amount cannot be stated in general terms, since it is more easy, where proper cause is shown, for an investigation to be made in individual instances. For the power of asking sometimes for the deposit of even small amounts should not be taken away, if the guardians appear to be liable to suspicion. 1A guardian is held to have exercised his functions where he has acted in any manner which at all concerns his ward, even though it should be unimportant; and, in this instance, the interference of those who are accustomed to compel guardians to administer their trusts is not required. 2Where, after a guardian has once acted, he ceases to discharge his duties, he can be proceeded against as being suspicious. 3When anyone directs the guardianship to be administered in his behalf, and this is done by the party who has been directed to do so, there will be ground for an action on guardianship; for he himself is considered to have administered it who administers it by another. Where he to whom the direction was given does not act, the guardian can be sued by means of a prætorian action. 4Where the debtor of a father administers the guardianship of the son, he will be liable to an action on guardianship, even on account of what he owed the father. 5If a guardian should not notify his ward, who had arrived at puberty, to apply for curators for himself (as he who has administered a guardianship is ordered to do by the Sacred Constitutions), will he be liable to an action on guardianship? I think the better opinion is that the action on guardianship will be sufficient, as the necessity to give notice is a part of the duty attaching to the guardianship, even though it may be given after puberty. 6If, after the minor has reached his twenty-fifth year, accounts have not been rendered, nor the documents relative to an action already begun have been produced, it concerns the good faith and probity of the curators to proceed with the action instituted by their advice. Therefore, if they fail to attend to these things which are required of them, I think that the better opinion is, that a suit based on voluntary agency will be sufficient, even though the time of the curatorship has expired; provided no account of this matter has been rendered. 7Julianus proposes the following in the Twenty-first Book of the Digest. A certain man, at his death, appointed guardians for his children, and added: “And I desire that they be not required to render an account.” Julianus says that these guardians should be held liable, unless they had shown good faith in the administration of their trust, although it was stated in the will that they should not be accountable; nor, as Julianus says, should anyone be prosecuted on this ground because of the trust. And this opinion is correct, for no one can by means of provisions of this description release another from the application of the public law, or change the form established in ancient times. Anyone, however, can bequeath to another, or leave him by means of a trust, an indemnification for some wrong which he has suffered on account of guardianship. 8Papinianus stated the following case in the Fifth Book of Opinions. A father directed the guardianship of his children to be administered by the advice of their mother, and, with this end in view, released the guardians. The duty of the guardians will not, for this reason, in any way be lessened, but it is proper for good citizens to adopt the beneficial counsel of the mother, although neither the release of the guardians, nor the wishes of the father, nor the intervention of the mother, will, in any way, diminish their responsibility. 9Guardians are permitted to disregard the directions of the father to a certain extent; as, where the latter provided that none of his property should be sold, or that none of his slaves or his clothing, or his houses, or any of his effects, which were perishable, should be disposed of; they can take no account of this wish of the father. 10The guardian is hereby notified that the responsibility of the trust will attach to him from the time that he knows that he is a guardian. It is sufficient if he has obtained the information in any way whatsoever, and it is not necessary for him to be notified in the presence of witnesses; for, if he has learned the fact from any source whatever outside of the will, there is no doubt that the responsibility will attach to him.

The Same, On the Edict, Book XXXV. The guardian who does not make out a schedule of the property, commonly called an inventory, is considered to have acted fraudulently, unless some necessary and just cause can be alleged for his not doing so. Therefore, if anyone fraudulently fails to make an inventory, he is in a position to be liable to indemnify the ward for his entire interest in the matter, which can be ascertained by an oath taken in court. Hence the guardian should not transact any business before the inventory has been made, unless there is something which cannot admit of even slight delay. 1Where a guardian is guilty of delay in the sale of perishable property, he does this at his own risk, for he should at once perform the duties of his office. But what if he says that he was waiting for his fellow-guardians, who have either failed to appear, or wished to excuse themselves; should he be excused? He will not be readily excused, for he should perform his duties, not indeed precipitately, but without any unnecessary delay. 2Ad Dig. 26,7,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 438, Note 6.An action on guardianship will lie against guardians, if they have made an injurious contract; for instance, if, through corruption or favor, they have purchased property which was not in good condition. But what if they had not acted dishonestly, or shown undue favor, but merely did not select property which was in good condition? One could very properly say, in this instance, that they ought only to be responsible for gross negligence. 3If, after the deposit of the money, guardians should neglect to purchase real estate, they begin to be liable for interest. For, although they must be compelled by the Prætor to make the purchase; still, if they fail to do so, they should be forced to pay interest on account of the delay, unless they are not responsible for the failure to purchase the property. 4Guardians must pay legal interest on money belonging to their wards which they convert to their own use, but only in case it is clearly established that they have employed it for their own purposes. But where a guardian did not lend the money at interest, or did not deposit it, he is not held to have converted it to his own use. The Divine Severus promulgated a decree to this effect, hence it must be proved that the guardian converted the money to his own use. 5We do not consider that a guardian has converted money to his own use who, being the debtor of the father of his ward, did not afterwards make payment to him; for he will be liable in this case for the same interest which he promised to pay to the father. 6Ad Dig. 26,7,7,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 439, Note 7.Where a guardian lends the money of his ward at interest in his own name, he can only be compelled to pay the interest which he himself collected, if the ward is willing to assume the risk of other loans. 7Where it was necessary to deposit money for the purchase of land, and this took place, interest will not run. Where, however, this was not done, and no direction was given to make the deposit, then only the interest due on money belonging to the ward must be paid, but if such direction was given, and the ward neglects to follow it, it should be considered what rate of interest will be payable. The Prætors are accustomed to warn guardians that if the deposit is not made, or if it is made after the time prescribed, lawful interest can be collected. Therefore, if this warning has been given, the judge having jurisdiction of the case, at any time, must follow the decree of the Prætor. 8The Prætors are accustomed to give the same warning with reference to those guardians who deny that they have anything in their hands for the support of their wards; so that, if it should be established that they did have anything, higher interest may be paid; and it is clear that the judge must pursue this course in addition to the infliction of another penalty. 9The guardian must pay interest on all sums of money remaining in his hands. 10It should be understood what the interest is which is designated “pupillar”. It appears that this rate of interest is the legal one which the guardian must pay on money which he has converted to his own use; but where he denies that there is any money in his hands, and the Prætor renders a decision against him, he must pay the legal interest; or where he has been guilty of delay in depositing the money and the Prætor has rendered a decision against him for legal interest. But where he denies that any money of the ward is in his hands, and he imposes the necessity of borrowing money at legal interest upon the ward for the purpose of meeting his expenses, the guardian will be liable for legal interest. The same rule applies where he collects legal interest from the debtors of the ward. He will also be liable for interest for other reasons, according to the custom of the province; that is, for either five per cent, or four per cent, or for any lower rate, if this is the practice in the province. 11Interest is not exacted from guardians immediately, but its collection or investment should be required after a certain time, that is to say, two months. It is customary to observe this rule in an action on guardianship. This delay or indulgence should not be granted to those who convert the money of wards or minors to their own use. 12Where a guardian or a curator retains for his own use interest which he has collected, he should be liable for the said interest, for it certainly makes very little difference whether he misappropriates either the principal or the interest of his ward. 13The heirs of a curator will be liable for the interest of money deposited in a chest, until they make application for the appointment of another curator in the place of the deceased. 14Where a guardian has judgment rendered against him on account of the acts of his fellow-guardian, the question arises whether he shall also be required to pay interest. It is established, as is stated in many rescripts, and as Papinianus holds in the Twelfth Book of Questions, that he must be also required to pay interest, if he has failed to denounce his fellow-guardian as suspicious. And, indeed, he should be compelled to pay the interest to which he is liable on account of his administration. 15It should be noted that a guardian owes interest on money remaining in his hands after the termination of his office, until the day on which he relinquished the guardianship.

Ulpianus, On the Edict, Book XXXV. The subject which we are about to discuss is one of frequent occurrence and extremely important, for guardians are every day charged with being suspicious. 1Therefore, let us examine, in the first place, how this charge of being suspicious originates; before whom a guardian or a curator can be accused of being suspicious; and finally, who can be removed, and by whom, and for what reasons; and what is the punishment of a suspected guardian. 2It should be remembered that the accusation of suspicion is derived from the Law of the Twelve Tables. 3We give the right of removing suspected guardians to the Prætors, at Rome, and in the provinces, to the Governors of the same. 4There was formerly some doubt as to whether a suspected guardian could be accused before the Deputy of the Proconsul. The Emperor Antoninus, along with the Divine Severus, stated in a Rescript to Braduas Mauricus, Proconsul of Africa, that this could be done, because when the jurisdiction of the Proconsul was delegated, the entire duty of dispensing justice passed to him. Therefore, if the Prætor delegates his jurisdiction, it must be said that a suspected guardian can likewise be accused before him to whom the authority was transferred; for, while this rescript only has reference to provinces, he also to whom jurisdiction has been delegated by the Prætor can take cognizance of the case of a suspected guardian. 5We have shown who can take cognizance of an accusation of suspicion; now let us see what guardians can be suspected. And, in fact, all guardians can be denounced as suspicious, whether they are testamentary, or not, or of some other kind. Hence a legal guardian can be accused, but what if he is a patron? The same rule will still apply, provided we remember that favor should be shown to a patron. 6The next thing in order is to see who can accuse a patron as being suspicious. And it should be remembered that this is a public action, that is to say, it is open to all. 7Moreover, even women are permitted to bring such an accusation, but only those can do so who are necessarily induced to proceed through affection, as, for instance, a mother, a nurse, and a grandmother. A sister, also, can denounce a guardian as suspicious (for a Rescript of the Divine Severus with reference to a sister is extant). And, indeed, the Prætor will permit any other woman to bring such an accusation, whose sincere affection he knows to exist, who does not transgress the modesty of her sex, and who has such a regard for the ward that she cannot bear to have injury inflicted upon him. 8Where anyone of plebeian rank is accused before the Prætor of any atrocious acts committed during his guardianship, he shall be sent to the Prefect of the City to be severely punished.

The Same, On the Edict, Book XXXV. A guardian can also accuse his fellow-guardian of being suspicious, either during his term of office, or after he has relinquished it, and while his fellow-guardian still continues the administration of the same. This the Divine Severus stated in a Rescript. The Divine Pius went still further in a Rescript addressed to Cæcilius Petinus, and held that a guardian who had been removed for being suspicious, could bring the same charge against his fellow-guardians. 1The freedmen of wards will act in a grateful manner if they denounce as suspicious the guardians or curators of the said wards, where they improperly conduct the affairs of their patrons, or of the children of the latter. But if they wish to accuse their own patron of being suspicious in the management of the guardianship, it is a better plan to reject their accusation, for fear that something more serious may be divulged during the inquiry; since the right to bring such a charge is open to all persons. 2Not only the curator of a minor, but also one of an insane person or a spendthrift, can be removed on the ground of suspicion. 3Moreover, anyone who has supervision of the interests of an unborn child, or of property without an owner, is not free from the danger of being called to account by this proceeding. 4Again, let us see whether a suspected guardian can be discharged without any accusation. The better opinion is that he should be discharged, if it should appear to the Prætor, from conclusive evidence of the facts, that he is suspicious. This should be understood as being for the benefit of wards. 5Now let us consider for what reasons suspected guardians may be removed. And it should be noted that it is permissible to accuse a guardian of being suspicious, if, on account of having committed fraud during his guardianship, he neglected his duties, or acted basely, or in any manner injuriously to his ward; or, while administering the trust, he misappropriated any of the property of the former. If, however, he has done anything of this kind before he assumed the office, even though it had reference to the property of the ward or the management of the guardianship, he cannot be accused of being suspicious, because the offence took place before his appointment. Hence, if he should have stolen any of the property of the ward before he became his guardian, he should be accused of the crime of robbing the estate, otherwise of theft. 6It may be asked if anyone who was the guardian of a ward, and was afterwards appointed his curator, can be accused of being suspicious, on account of offences committed during the guardianship. And, as an action on guardianship can be brought against him by his colleagues, it follows that it must be held that an accusation of suspicion cannot be brought, for the reason that an action on guardianship will lie after that office is relinquished and the duties of the other assumed. 7The same question may arise where it is stated that one having ceased to be guardian resumes the office; as, for instance, where he was appointed for a certain time, or under some condition, and he is appointed a second time, either on the fulfillment of some testamentary condition, or by the Prætor; for can he then be denounced as suspicious? And since there are two guardianships, if there is anyone who can bring a tutelary action against him, it would be perfectly proper to hold that an accusation for suspicion will not lie. 8If, however, there is but one guardian, as the investigation of his administration cannot be made, should he be removed from the management of the trust, as being suspicious, because he was guilty of improper conduct during his former guardianship. Hence the same rule can be said to apply in the case where a single curator was appointed after the termination of the guardianship. 9If a guardian should be appointed to hold his office as long as he remains in Italy, or as long as he does not go beyond sea, can he be accused of being suspicious on account of some act which he performed before he went beyond sea? The better opinion is that he can be accused, since the guardianship remains the same where it has intervals. 10Where anyone, who is about to be absent on business for the State, requests that another guardian be appointed in his stead, can he, after his return, be accused of being suspicious, because of some transaction which took place before his departure? Since he can be sued in a prætorian action on account of his previous administration, the accusation cannot be brought. 11Where a party who was appointed the curator of an unborn child, or of unoccupied property, was guilty of fraudulent conduct, and afterwards becomes the guardian of said child, is there any doubt that he can be accused of being suspicious on account of the fraud which he committed during his curatorship? If, indeed, he has any fellow-guardians, he cannot be accused, for the reason that an action can be brought against him, but if he has none, he can be removed from office. 12Where a guardian is an enemy of the ward or his relatives, and, generally speaking, if there is any good reason to induce the Prætor not to permit him to administer the guardianship, he should reject him. 13Severus and Antoninus stated in a Rescript to Epicurius that: “If guardians should sell property which it is forbidden to dispose of without a decree, the sale will be void; but if they fraudulently alienate the said property, they must be removed.” 14A guardian who does not demonstrate his ability to support his ward is suspicious, and can be removed. 15If, however, he does not conceal himself, but, being present, contends that no decree can be rendered against him, because the wards are poor; and if, after advocates have been appointed for the ward, the guardian is convicted of falsehood, he should be sent before the Prefect of the City; nor does it make any difference if someone does this in order that he himself may be appointed guardian by means of a fraudulent examination, or if, having been appointed in good faith, he intends to plunder the property of another. Therefore, he should not be removed on the ground of suspicion, but should be sent to the magistrate to undergo the penalty which is ordinarily imposed upon those who purchase a guardianship, through having corrupted the officers of the Prætor. 16Guardians who have not made an inventory, or who obstinately refuse to employ the money of the ward in the purchase of land, or deposit it until an opportunity for its investment may be found, are ordered to be imprisoned, and, in addition, should be regarded as being suspicious. It must be remembered, however, that all should not be treated with this severity, but only those of inferior rank; for I do not think that persons of high position should be confined in prison on this account. 17A guardian who, without proper consideration, or through fraud, induces his ward to reject an estate, can be accused as suspicious. 18Where a guardian is removed on account of laziness, idleness, stupidity, or incompetence, he relinquishes the guardianship or curatorship without any imputation against his integrity. When, however, he is not removed from office on account of fraud, but only that a curator may be joined with him, he will not be in bad repute, for the reason that he was not ordered to surrender the guardianship.

The Same, On the Edict, Book XXXV. It is customary for those guardians who have their residence in Italy to be excused from the administration of provincial matters.

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;

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.

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.

Ulpianus, On the Edict, Book XXXV. A false guardian who grants authority to a minor of twelve or fourteen years of age to make a contract shall be liable to an action in factum on the ground of fraud, no matter what his condition may be, whether he is his own master, or under the control of another. 1He who fraudulently grants authority to a minor will be liable under this Edict. 2Moreover, anyone who authorizes a daughter under paternal control to enter into a contract is liable. The same rule of law applies where anyone acting as guardian authorizes a female slave to borrow money; for in all these instances the contracting party is deceived by the agency of the guardian, for he would not have contracted with the minor without the intervention of the authority of the guardian. 3Julianus in the Twenty-first Book of the Digest discusses the point whether this action should be granted against a father who gave his daughter in marriage, while she was under twelve years of age. The weight of authority is that a father is to be excused who desired to introduce his daughter too soon into the family of her husband, for in doing so he is held to have acted rather from an excess of affection, than through malice. 4Julianus thinks, however, that if the daughter should die before reaching the age of twelve years, after having received her dowry, and he who was entitled to it had acted in bad faith, the husband can be barred by an exception on the ground of fraud when he sues for the dowry, in cases where he would have been benefited to the extent of all, or a part of it, if the marriage had been valid.

The Same, On the Edict, Book XXXV. It has been established that both the surety and his heirs shall be compelled to pay the same amount of interest as is required of the guardian himself.

Ulpianus, On the Edict, Book XXXV. Guardians and curators are prohibited by a decree of the Emperor Severus from disposing of the lands of wards and others under their care, whether they are situated in the country, or in a city. 1This decree was published in the Senate during the consulship of Tertyllus and Clement. 2Its provisions are as follows: “Moreover, Conscript Fathers, I forbid guardians and curators to sell either rustic or urban estates, unless parents have provided by will or by codicil that this may be done. If, however, debts exist to such an amount that they cannot be paid out of the proceeds of other property, then application can be made to the illustrious Urban Prætor, who in his discretion shall determine what lands may be alienated or encumbered, and a right of action will be reserved for the ward, if it should subsequently be established that the Prætor was imposed upon. Where the property is held in common with another, and the joint-owner applies for partition, or if a creditor who has received land by way of pledge from the father of the ward demands his rights, I hold that no new decree should be issued.” 3When the deceased had property which could have been sold during his lifetime, but did not provide by his will that this should be done, the sale of the same ought not to be made; for even if the testator desired to sell the property, he may not have thought that it should be disposed of after his death. 4Ad Dig. 27,9,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 212, Note 12.Where a minor under twenty-five years of age purchases land under the condition that it shall be pledged to the vendor, until the price of the same is paid, I do not think that the pledge is valid, for whenever the ownership of property is acquired by a minor he ceases to be liable.

Ulpianus, On the Edict, Book XXXV. But if one ward should purchase land with the money of another, and it was delivered to the ward or the minor, is he with whose money the said land was purchased entitled to the obligation or pledge? The better opinion is, that the right of pledge remains unimpaired, in accordance with the Constitution of our Emperor and his Divine Father, in favor of the ward with whose money the land was purchased. 1Land belonging to a ward can, nevertheless, be seized and sold by order of a magistrate, a Governor, or any other official having jurisdiction. Again, anyone can be placed in possession of the property of a ward by the Prætor; and the right of pledge may be contracted either for the purpose of preserving a legacy, or to provide against threatened injury, and the Prætor can order the property to be taken possession of as he shall direct. These obligations or alienations are effected through the authority of magistrates, and not with the consent of a guardian or a curator. 2The question may also be asked, where restitution of a tract of land belonging to a ward is demanded by a guardian, whether the tender of its value in court operates as an alienation. The better opinion is that it does so operate, for such an alienation does not depend upon the will of the guardian. 3The same thing must be said where land which belonged to the ward is demanded, and the guardians return it in opposition to the ward; for, in this instance, the alienation will be valid on account of the authority of the decision rendered. 4Where the ward enjoys the right of perpetual lease or of possession, let us see whether it can be disposed of by his guardians. The better opinion is that it cannot be, even though the title of the other party to the land may be better. 5Nor can an usufruct be alienated, even though the usufruct alone belongs to the ward. Hence, must it be assumed that the right is lost by non-user, if the guardian gave occasion for it? It is clear that it should be restored. Where, however, the ward owns the property, he cannot alienate either the usufruct or the use of the same, although the decree states nothing with reference to the usufruct. In like manner, it may be said that a servitude cannot be imposed on the land of a ward, or a minor, nor can one be extinguished. This rule is also established with reference to dotal lands. 6Where a ward has mines of alum, or metal, or any other substance, or chalk-pits, or silver mines, or anything else of this kind,

Ulpianus, On the Edict, Book XXXV. I think that the better opinion is, that the alienation cannot be made in accordance with the spirit of the decree. 1It must be held that the same rule will apply where the ward owns salt-pits. 2Ad Dig. 27,9,5,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 441, Note 1.Where the ward possesses, in good faith, land which belongs to another, I think it should be held that his guardians cannot alienate it; for where anything is sold which appears to belong to a ward the sale will not be valid. 3Where a tract of land has been pledged to a ward, can his guardians sell it? I think that they can, for this is, as it were, the property of the debtor, that is to say, they sell what belongs to another. Where, however, the ward or his father acquires the right to possess the property on the ground of ownership, it must be said in consequence that it cannot be disposed of, because it is considered as land belonging to the ward. The same rule applies where the ward has been directed to take possession of property for the prevention of threatened injury. 4Where land has been devised, or left by way of trust to a ward who was appointed heir, to be transferred to Seius, can his guardians deliver the “said land without the authority of the Prætor? I think that if the testator devised his own property, the decree will not apply; but if the bequest has reference to the property of the ward, it should be held to come within the terms of the decree, and that it cannot be alienated without the consent of the Prætor. 5If a ward should enter into a stipulation, can he pay the money borrowed without the authority of the Prætor. The better opinion is that he cannot do so; otherwise a pretext for alienating the property of the ward would be obtained. 6But if a father should promise land by a stipulation, and the ward should succeed to him in the assumption of his obligation, it may be said more positively that he can give up the land without the authority of the Prætor. The same rule also applies where the ward, by hereditary right, succeeds another who obligated himself. 7On the same principle, if a father, or anyone else whom the ward succeeded, should have agreed to sell a tract of land, it may be said that the ward can conclude all the other terms of the sale without applying to the Prætor. 8A ward cannot reject the devise of a tract of land without the authority of the Prætor; for no one doubts that this is a case of alienation, as the property belongs to the ward. 9Guardians should not be granted the right to sell property of the ward indiscriminately, under the pretext of the payment of debts; for this method of disposing of such property ought not to be allowed. Hence the Senate left the determination of this matter to the Prætor, whose duty, in the first place, was to examine it and ascertain whether money for the purpose of discharging the debt could not be obtained elsewhere. Therefore, he should inquire whether the ward has any resources, either in cash, or in notes, upon which suit may be brought, or an interest in crops which have been stored, or has the expectation of receiving any income or other property. He must also ascertain whether there is anything else except the land that can be sold, and from the proceeds of which the claim may be satisfied. Then, if he should find that the debt cannot be discharged except by the sale of the land, he must permit this to be done; provided the creditor insists upon payment, or the rate of interest under which the debt was contracted offers an inducement for its settlement. 10The Prætor should also decide whether it will be more advantageous for him to allow the land to be sold, or to be encumbered. He must likewise exercise great care to prevent a larger sum from being borrowed by the encumbrance of the land than he may think necessary for the payment of the debt; or if the land is sold, that a considerable portion of it is not disposed of in order to discharge a moderate obligation. Where, however, the ward is the owner of a tract of less value, or one which is less useful to him, it is preferable for the Prætor to order this one to be sold, rather than the larger and more useful one. 11In the first place, then, whenever the Prætor is applied to by a party for permission to dispose of land, he should be required to inform himself concerning the estate of the ward, and not trust too much to the statements of guardians or curators, who, sometimes, for the sake of their own advantage, are accustomed to assure the Prætor that it is necessary to sell or encumber the land of a ward. He must, therefore, make inquiry of the near relatives of the ward or his parents, or of any of his faithful freedmen, or of anyone else who is familiar with the property of the ward, and where no one of this kind can be found, or where those who have been found are liable to suspicion, he must order accounts to be rendered, and also a memorandum of the property of the ward to be filed, and appoint an advocate for the latter who can advise the Prætor as to whether he should consent to the sale or encumbrance of the property. 12It may be asked, where the Prætor, having been applied to, permits property situated in the province to be sold, whether this act is valid. I think that it is valid, provided the guardianship is administered at Rome, and the guardians have charge of the administration of the property. 13However, to prevent the improper use of money which guardians have borrowed on account of an alleged debt of the ward, it is necessary for the Prætor to see that the borrowed money is paid to the creditors, and with reference to this to render a decree, and appoint a court officer, who shall report to him that the money has been employed for the purpose for which the alienation or encumbrance was asked. 14Where there is no debt to be paid, but the guardians allege that it is expedient for certain lands to be sold, or others to be purchased, or for others to be got rid of, it should be considered whether the Prætor ought to allow this to be done. The better opinion is, that he cannot do this, for full authority is not granted to a Prætor to dispose of property belonging to a ward, but only in case where a debt must be paid. Hence, where no debt is involved, if he should permit the land to be sold, we consequently hold that there is no sale, and that the decree is void, for permission is not granted to the Prætor to dispose of the property of a ward indiscriminately, but only where the demand for payment of debts is urgent. 15A ward retains his right of action if he can afterwards prove that the Prætor has been deceived. It should, however, be considered whether we should grant him a real or a personal action. The better opinion is that a real action should be granted, as well as a personal one against his guardians or curators. 16By lands held in common, we should understand such as are jointly held and undivided. Where, however, they are held in common, but the shares are separated, there is ground for a judicial decision, as the decree does not apply.

The Same, On the Edict, Book XXXV. Where lands are owned in common by wards who have different guardians, let us see whether the right of alienation belongs to each. And, as an application for permission to do this is necessary, I think that alienation will be prevented, as neither of the parties can ask for it, and each must wait for the application of the other. Again, if they have the same guardians, there is still greater reason for asserting that the alienation cannot take place. 1Where a ward gives land by way of pledge with the permission of the Prætor, there is no doubt that the alienation of said land can be prevented. It must be said, however, that the creditor can exercise his right, but he will be safer if he first makes application to the Prætor. 2Where a father or a relative is the guardian of a child, must the Prætor be applied to, if he or she wishes to encumber the property? The better opinion is that this ought to be done; however, the Prætor should be more inclined to consent to the demands of the father than to those of anyone else. 3Where the Prætor permits guardians to sell land, and they encumber it, or vice versa, will such an action be valid? My opinion is that where a party does something different from what has been authorized by the Prætor, the act is void. 4But what if the Prætor should decree as follows: “I permit the property to be sold or encumbered”? Will the guardian have a right to do what he pleases? The better opinion is that he will, provided we bear in mind that the Prætor has not properly performed his duty, for he should determine and select whether it is better for him to allow his property to be encumbered, or sold. 5Where a guardian encumbers property without a decree, although the obligation is not valid, there will, nevertheless, be ground for an exception based on fraud, if the guardian should pay the money loaned to him to a creditor who holds the land in pledge. 6It should also be considered whether the guardian can encumber the property to him. It must be said that if he receives the same principal, and the rate of interest is not higher, the obligation will be valid, and the rights of the first creditor pass to the second one.

The Same, On the Edict, Book XXXV. Or the Prætor can appoint someone to whom security can be given.

Ulpianus, On the Edict, Book XXXV. The cheating of one person does not afford ground to another for an action when he was not affected by it.