The Same, On the Edict, Book XXXVI. Let us consider who can take this oath where proceedings are instituted against the guardian, and against whom he can do so. The ward himself, indeed, cannot take it if he has not arrived at puberty, for this has very frequently been published in rescripts. The Divine Brothers stated in a Rescript that the guardian himself cannot be compelled to swear, or the mother of the ward be permitted to do so, even though she be ready to make oath; for it was held to be a serious matter for guardians who are ignorant of the facts, to incur the risk of perjury for the benefit of another, against their consent. It was also established by our Divine Emperor and his father that the curators of a ward or a minor could not be compelled to make oath with reference to a claim; but, where guardians or curators wish to manifest so much affection for the wards or minors under their charge, the authority of the law will not prevent trials from being ended in this way where issue has been joined between the parties; since the appraisement established by oath must be made, not with reference to the advantage of the party who is sworn, but to that of his principal in whose behalf an account of guardianship must be rendered. The minor, however, can be sworn if he wishes. 1The judge must tender the oath, but if anyone else should tender it, or if it should be taken without being tendered, it has no sanctity, and, in fact, is no oath at all; and this is stated in the Constitutions of our Emperor and his Divine Father. 2Any sum may be sworn to; but, I ask, can the judge fix a limit to the oath so as to restrict it to a certain amount, in order to prevent the party from taking the opportunity to swear to an immense sum? It is settled that it is in the discretion of the judge to tender the oath or not to do so; and therefore the question arises whether anyone who can refuse to tender the oath cannot also limit the amount to be sworn to; and this also is in the discretion of a judge acting in good faith. 3Moreover, it should be considered whether the judge who has tendered an oath is not entitled to refuse to follow it, and either to dismiss the case entirely, or to render judgment for a smaller amount than has been sworn to; and the better opinion is that where some unusually good cause exists, and new evidence has been discovered he can do so. 4It is well established that where negligence has been committed, the oath should not be tendered, but a valuation should be made by the judge.

The Same, On the Edict, Book XXXVI. The right to appoint guardians is conferred upon all municipal magistrates, and this is our practice; but the person appointed must be a resident of the same municipality, or of its territory and be subject to its jurisdiction.

The Same, On the Edict, Book XXXVI. The ward, however, must prove that the guardian was aware of his appointment.

The Same, On the Edict, Book XXXVI. Whenever a guardian lends money belonging to a ward at interest, a stipulation should be entered into in the following manner: the ward, or one of his slaves, should stipulate for the payment of the money. Where, however, the ward is not of an age to be able to stipulate, and has no slave, then the guardian under whose control he is should make the stipulation. In this instance, Julianus very properly states than an equitable action should be granted to the ward. If, however, the latter should be absent, there is no doubt that the guardian can stipulate in his name. 1Where the head of a family gives to his son, as guardian, a person for whom he has become security, it is the duty of the guardian to pay the debt to his creditor when the day of payment arrives; therefore, if he fails to do so, and his ward, having passed his minority, should pay the debt on account of the security given by his father, he can proceed against his guardian, not only by an action of mandate, but also by one on guardianship; for the guardian is responsible for non-payment of the debt. If, however, the guardian only became indebted after the expiration of a certain time, it is held by some authorities that this does not come within the scope of an action on guardianship, provided the day of payment did not arrive until after the termination of the trust. But if the day arrives during the existence of the guardianship, they hold that undoubtedly it will be embraced in the action. I am of the opinion that both these decisions are correct, where the guardian is in a fair way to become insolvent, but if he should be solvent, it will not come within the scope of the action of guardianship. Nor should anyone think that this will be of no effect; for if it should be said that it is included in the action, and there is ground for the claim to be preferred, the sureties will be liable if an undertaking has been given for the preservation of the property. 2Moreover, if the guardian should be liable to a suit which will be barred by lapse of time, it must be said that there is ground for the claim being included in the action on guardianship, in order that the action may become perpetual. 3And, generally speaking, with reference to what a guardian is liable for to his ward as against a third party, he is also liable as against himself, where he owes the debt, and perhaps even more so; for he cannot make others pay against whom he has no right of action, but he can do this where he himself is concerned. 4Where a guardian owes money to the father of his ward at a higher rate of interest than the pupillar rate; it must be considered whether he is liable to him for anything. And, indeed, if he has paid the principal, he is not liable for anything, for he was able to pay and not burden himself with interest; but if he did not make payment of the principal, he can be compelled to pay the interest which he should exact from himself. 5Just as the guardian should pay what he owes, so also he can collect from the ward what is due to him, if he is the creditor of the father of the former; for he can pay himself, provided there was any money in his hands with which to do so; and if the interest due to him should be at a higher rate, the ward will be discharged from liability for it, because the guardian could have paid himself, just as he could, and should have paid others. 6It is not necessary, in case he is sued, for him to pay after judgment is rendered; and therefore if the case of the ward is not well founded, he should notify him of the fact. Hence the Emperor Antoninus and his father prohibited guardians from rendering a ward liable for expenses, if they set up a useless defence, where suit was brought by a creditor; for guardians are not forbidden to acknowledge a bona fide claim. 7Not only can a guardian pay himself, but he can also make a record of money loaned to himself, as Marcellus states in the Eighth Book of the Digest; and he can render himself liable for money borrowed from his ward, by stating in his register that it was lent to himself. 8It is established that where a guardian is appointed with reference to the increase of an estate (as, for instance, on account of a subsequent accession to the estate of his mother, or with reference to any other augmentation), it is not customary for him to administer the property belonging to the former guardianship. If, however, he has failed to denounce the first guardian as suspicious, or to require security from him, he shall be punished. 9On the other hand, however, where a guardian or a curator is merely appointed for a minor, he will be responsible for any increase of the property which may afterwards take place, although it is customary for a curator to be appointed to have charge of the increase; which is not done for the reason that the said increase has no connection with the care of what has already been acquired, for so far as this is concerned, the general interest of the ward should also be taken into consideration. Therefore, where a new curator is appointed, the responsibility is shared with the guardian, or if one is not appointed, the former appointee is necessarily held liable for the proper administration of the trust.

The Same, On the Edict, Book XXXVI. It is the duty of the judge who has jurisdiction of the guardianship to allow expenses of the guardian, where they are not excessive; as, for instance, where he alleges that he incurred them for the maintenance or the instruction of the ward. 1The amount of the expenses allowed by the Prætor should be observed in accordance with his decree; but if he does not determine it, it should be decided by the judge in proportion to the means of the ward; for the guardian should not be permitted to present a claim for what he had expended, if this is more than what is just. 2And besides, even where the Prætor has prescribed the sum to be expended for support, and this is beyond the means of the ward, if the guardian did not advise the Prætor of the amount of property belonging to the ward, the account for the entire sum expended for his support should not be allowed; for the reason that if he had informed the Prætor, either the amount allowed would have been decreased, or so large a sum would not have been authorized by the decree. 3Where the father himself prescribed the amount to be expended for the maintenance of his children, whom he appointed his heirs at the time he did so, the guardian can render an account of it, unless the amount stated by the testator is beyond the means of the heirs; for then the guardian will be responsible for not having applied to the Prætor to have the allowance diminished.

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.

Ulpianus, On the Edict, Book XXXVI. The Prætor granted a counter-action on guardianship, and introduced it in order that guardians might the more readily accept the management of the trust; being aware that the wards would also be bound to them as the result of their administration. For although wards are not liable without the consent of their guardians, neither can a guardian compel his ward to encumber his property in his favor; still, it is admitted that a ward can be civilly responsible to his guardian as the result of his administration. For guardians must be urged in order to induce them to pay anything out of their own property for the benefit of their wards, though they know that they will be reimbursed for what they have expended. 1This action will lie, not only against a guardian, but also against anyone who transacts business in his behalf. 2It must be said, moreover, that where there is a curator either of a ward, a minor, an insane person or a spendthrift, the counteraction should also be granted to him. The same rule has been established with reference to the curator of an unborn child. This was the opinion of Sabinus, who held that the counter-action should also be granted to other curators for the same reasons. 3We hold that this action is available by a guardian after his term of office has expired, but so long as it lasts it will not lie. Where, however, a party transacts business in behalf of a guardian, or even administers a curatorship, there is ground for this action without delay, because in this instance, an action can also immediately be brought against him. 4Moreover, where anyone is sued in an action on guardianship, he can include in his account whatever he has expended on behalf of his ward. Therefore, it will be at his option to determine whether he will demand a set-off, or bring suit for his expenses. But what if the judge is unwilling to accept the account of his set-off, can he avail himself of the counter-action? He can undoubtedly do so. Where, however, his account has been rejected, and he has acquiesced, if he brings the counter-action, the judge ought not to decide that he shall be reimbursed for what he has expended. 5The question arises whether, in a proceeding of this kind, not only the expenses incurred for the benefit of the ward or for that of his property shall be included, but also whatever is owing to the guardian for other reasons (as, for instance, by the father of the ward, if anything should be due). I think the better opinion is that as the action brought by the guardian is undisputed, the counter-action should not be considered. 6Let us see, however, what should be done where the guardian had deferred reimbursing himself on account of his office, and therefore did not collect what was due to him. Can he be indemnified by means of a counter-action on guardianship? The latter seems to be the best opinion, for just as whatever the guardian has expended for the benefit of his ward can be recovered by the counter-action, so also he should recover what is due to himself, or obtain sufficient security for the claim. 7I think that if an obligation arises for any cause which is barred by lapse of time, the counter-action on guardianship will lie. 8It is held that this action should be granted even if suit is not brought in an action on guardianship, for sometimes the ward is not willing to institute proceedings on guardianship, for the reason that nothing is owing to him; or, on the other hand, more expense has been incurred in his behalf than should have been done; in which instance, the guardian should not be prevented from bringing the counteraction.

Ulpianus, On the Edict, Book XXXVI. But what if the guardian should spend more money upon his ward than the latter’s property amounts to? Let us see whether he can recover this. Labeo states that he can. This opinion, however, should only be adopted where it is to the interest of the ward for the guardianship to be administered in this manner. If it is not expedient that this should be done, it must be said that the guardian of the ward must be discharged, for guardianship should not be administered in such a way as to ruin the wards. Therefore, the judge who has cognizance of the counter-action must take into consideration the advantage to the ward, and whether the guardian has incurred the expense in accordance with the duties of his office. 1It should be considered whether the counter-action to enable the guardian to obtain a release from the ward will lie. No one has held that a guardian can bring the counter-action to enable him to be released from suit on guardianship; but only with reference to a release from liability for anything which he may have lost on account of the discharge of his trust. He can, however, recover the money, if he has used any of his own for this purpose, together with interest, but only at three per cent, or at the rate which is customary in that part of the country; or such interest as the money was loaned at if it was necessary to lend it in order to relieve the ward for some good reason; or for interest from the payment of which he has liberated the ward; or for such interest as the guardian is entitled to, where it was of great advantage for the ward to be released from his obligations. 2It is clear that, if the guardian is obliged to lend at interest certain money belonging to his ward, and has also a sum to pay for him, he cannot himself collect interest from the latter, nor will he be obliged to pay him interest. 3Wherefore, if he has appropriated for his own use any money belonging to his ward, and afterwards expends an equal sum upon his ward’s property, he ceases to have employed that money for his own benefit, and will not be obliged to pay interest on the same. If he has previously expended money upon property belonging to his ward, and afterwards appropriates to his own use any of the funds of the latter, he will not be held to have used for his ward’s benefit the amount equal to that due to himself, and will not be liable for interest for the said sum. 4Let us see whether a guardian can recover interest on money advanced during his guardianship, or even after its termination; or whether he can only recover it after default of payment. The better opinion is that he can recover the amount due to him, for his money should not be idle. 5It must, however, be held that if the sum to be recovered is to be taken from the estate of the ward, he cannot collect interest from the latter. 6But what if the guardian could not reimburse himself out of the property of his ward, because the money was deposited to be used for the purchase of land? If, however, the guardian has not applied to the Prætor for payment of the money, or permission to reserve for himself what was due to him out of the amount to be deposited, and if he has requested this, but did not succeed in obtaining it, it must be held that he will not lose his interest if he brings the counter-action. 7It is sufficient for the guardian to have properly and diligently administered the affairs of his trust, even though his transactions may have terminated adversely. 8In the counter-action on guardianship is included whatever has been expended for the benefit of the property of the ward, both before and after the guardianship; where it is proved that such expenditures were connected with the affairs of the trust during the continuance of the same, whether the party merely acted as guardian and was afterwards appointed one, or whether he was the curator of an unborn child. If, however, he did not transact the business as acting guardian, he can obtain whatever he has previously expended; for whatever expenses he may have incurred with reference to the property of the ward must be deducted from the amount of the judgment in an action on guardianship; provided, however, that such expenses were incurred in good faith. 9It is evident that this action is a perpetual one, and that it is granted both in favor of and against an heir, as well as for and against any other successors who are interested in the matter.

Ulpianus, On the Edict, Book XXXVI. The Prætor, through necessity, established an action to take the place of that of guardianship. For very often it is uncertain whether a party has administered the guardianship as an actual guardian, or merely as one occupying his place, and therefore he prescribed an action available in either instance; so that whether the guardian was an actual one who attended to the business, or whether he was not, he would still be liable to the action. For great uncertainty frequently arises, so that it cannot be easily ascertained whether he who administered the trust was really a guardian, or whether he was not, but merely performed the duties of the office in that capacity. 1A man transacts business as a guardian who discharges the duties of one with reference to the affairs of minors, either when he thinks himself to be a guardian, or knowing that he is not, nevertheless pretends to be one. 2Hence, if a slave acts in the capacity of guardian, the Divine Severus stated in a Rescript that an equitable action should be granted against his master on account of the acts of the slave. 3There is no doubt that an action can be brought against a party who transacted the business of a minor in the capacity of guardian, even before the latter arrives at puberty, for the reason that he is not really a guardian. 4Wherefore, if anyone acting as a guardian transacts the business of a minor after the termination of his guardianship, he will be liable. 5If anyone should administer a guardianship as a pretended guardian before his appointment, and afterwards as a real guardian, he will also be liable for acts performed while he was administering the trust without legal authority, although said acts will be included in an action on guardianship. 6Where anyone performs the duties of a guardian with reference to the affairs of a minor who has already reached the age of puberty and who therefore cannot have a guardian, an action of this kind will not lie. The same rule applies to the case of an unborn child, for where anyone acts as a guardian, it is necessary for the individual whom he represents to be of an age to have one, that is to say under the age of puberty. However, an action on the ground of voluntary agency will lie in this instance. 7Where a curator appointed for a minor by the Prætor transacts the business, the question arises whether he will be liable as one occupying the place of a guardian. The better opinion is that this action will not lie, because the party performed the duties of a curator. However, where there is no guardian, and someone is compelled, either by the Prætor or the Governor to act as such, and, believing himself to be a guardian, administers the guardianship, it should be ascertained whether he is responsible for his acts in the capacity of guardian. The better opinion is that he should still be liable, even though he acted under compulsion, for the reason that he transacted the business with the intention of a guardian, even though he was not one in reality. The above-mentioned curator, however, did not transact the business as a guardian but as a curator. 8In the action against a person who has acted as guardian interest is also included. 9Should the party who has acted in the capacity of guardian only be held liable for the business which he transacted, or also for that which he should have attended to? And, indeed, he will not be liable for anything which did not concern the guardianship, nor for any matter which should not have had connection with it, while he acted as guardian. Where he transacted certain business, it should be considered whether he can be held liable for what he did not attend to, and he will be responsible to the extent that another would have been if he had transacted it. But if, knowing that he was not a guardian, he refrained from administering the trust, let us see whether he can be held liable, if he did not notify the near relatives of the ward to have a guardian appointed for the latter. The better opinion is that he will be liable.

The Same, On the Edict, Book XXXVI. As we have shown that an heir also can be sued in an action on guardianship, it should be considered whether fraud committed by the heir himself can be included in the case, or merely the manner in which he has administered his trust. An opinion of Servius is extant, in which he held that if the heir continued to transact the business of the ward after the death of the guardian, or had spent the money of the ward which he found in the chest of the guardian; or had collected money which the guardian had contracted for, he could be held liable in his own name in an action on guardianship; for since it is permitted for an oath to be taken against the heir with reference to the value of property which has been lost by him through his own fraudulent acts, it is evident that he can be held liable in an action on guardianship for bad faith on his part. 1It is evident that an heir will not be responsible for his own negligence. 2The heir of a guardian must pay interest on the money of the ward which he has invested, and the judge shall decide according to the principles of right and justice as to the amount of the interest, and the time for which it must be paid. 3Where sureties who have been named by guardians present themselves and are not opposed, and their names are permitted to be inscribed on the public records, it is just that they shall be held liable to the same extent as if a stipulation had legally been entered into. The same rule appears to apply to those who vouch for guardians, that is to say those who declare that they are solvent, for they occupy the place of sureties.

Ulpianus, On the Edict, Book XXXVI. Subsidiary actions are not granted against the Order in general, but against the magistrates in particular, and they cannot be brought against the sureties of the latter, for these have bound themselves for the safety of the property of the Government, and not for that of the ward. Hence not those who nominated the magistrates shall be liable for this reason, but the magistrates alone. Where, however, the Order itself assumed the responsibility, it must be held that those are liable who were present; for it makes little difference whether they nominated the guardian, or became sureties for him, or whether they assumed the responsibility themselves. Therefore a prætorian action will lie against them. Where, however, a guardian is appointed by municipal magistrates, he is not held to have been selected by the entire Order. 1Neither the Prætor, nor anyone else invested with the right of appointing a guardian, shall be liable under this action. 2If the Governor of a province desires that the magistrates shall merely furnish a statement of the means of a guardian, in order that he himself may make the appointment, let us see to what extent they are liable, if at all. A Rescript of the Divine Marcus is extant by which he decides that those who file a report to the Governor with reference to this matter are not liable as if they themselves had made the appointment; but if they have been guilty of deception by making false statements through the inducements of either favor or money, they will be responsible. It is clear that if the Governor of the province orders them to require security, we have no doubt that they will be liable, even though he may have appointed a guardian. 3Where the Governor of a province, having received from others the names of parties to be appointed guardians, sends these names to the municipal magistrates, in order that they may obtain information with reference to the same, and he, having received it, appoints the guardians; the question arises whether the magistrates should be held liable in the same manner as those who furnish information to a Prætor. The question is asked, does it make any difference whether the magistrates themselves give the names that are selected to the Governor, or whether he receives them from someone else? I think that in both instances the magistrates will be liable, if they have been guilty of fraud or gross negligence. 4Not only wards, but also their legal successors, can avail themselves of subsidiary actions. 5Where curators, who are not entirely solvent, have been appointed, it must be said that magistrates are liable if the Governor made the appointment at their suggestion, or from among names approved by them. Where, however, the Governor sends the names to them for appointment, or does so after the appointment to require them to take security, the responsibility attaches to the magistrates. 6The magistrates shall also be responsible where no guardian or curator at all is appointed, but they will only be liable where, after having been notified, they do not make the appointment. Therefore, the magistrates will undoubtedly be liable for any wrong which either the minors or youths may suffer in the meantime, where they did not perform their duties after having been directed to do so. 7Again, it should be noted that if municipal magistrates purposely defer the appointment of a guardian until their term expires, or if they purposely delay the furnishing of security until their successors enter upon the duties of their office, it will be of no advantage to them. 8The Divine Hadrian stated in a Rescript that an action should be granted even against the party who was selected to examine the value of securities offered by a guardian. 9Where understanding existed between magistrates that guardians shall be appointed only at the risk of one of them, the Divine Hadrian stated in a Rescript that such a contract should not prejudice the rights of the ward; for the public law cannot be changed by a mere agreement of the Duumvirs; I think, however, that recourse should first be had to the party who assumed the liability, and that, as soon as his means were exhausted, his colleague should be called to account, just as where one alone had made the appointment we would hold that he should first be applied to, and afterwards his associate. 10Where persons who appear to be solvent are not to be found in the town where the wards were born, it is the duty of the magistrates to search for some thoroughly honest persons in the neighboring towns, and send the names to the Governor of the province, but they themselves cannot claim the right of appointment. 11Where a magistrate appoints a guardian who was solvent at the time, and does not require security from him, this will not be sufficient; but if he requires security, and the party is solvent, even though subsequently the guardian or his sureties become insolvent, no responsibility can attach to him who made the appointment; for magistrates should not be responsible to a ward for future events and accidents. 12Where the magistrate did not exact security, and the guardian was solvent at the time when the action on guardianship could be brought, this will be sufficient. 13Ad Dig. 27,8,1,13ROHGE, Bd. 6 (1872), S. 216: Beweislast bei einem Anspruche gegen den Mandatar wegen Verabsäumung der vertragsmäßigen Diligenz. Rechenschaftspflicht des Mandatars.Proof is not required of the ward that the sureties were not solvent when they were accepted; but the magistrates must show that they were solvent at that time. 14A ward is not a preferred creditor with reference to the property of a magistrate, but he will be entitled to share with other creditors. 15A magistrate shall require security in such a way that the slave of the ward, or the latter himself, if he is entitled to do so and is present, may stipulate with the guardians, as well as with their sureties, that his property will be secure; or if there is no one to enter into such a stipulation, a public slave must stipulate for the safety of the ward’s property, or the magistrate himself must do so. 16Where a public slave, or the magistrate himself, makes such a stipulation, it is clear that it must be held that an equitable action should be granted to the ward. 17The question arises, where the magistrate is a son under paternal control, and does not take measures to provide security for the ward, or when, through his fault, proper security is not furnished; should an action be granted against his father, and if so, for what an amount? Julianus says that the action should be granted against the father to the amount of the peculium, whether the son became a Decurion with his consent, or not; for even though he administered the magistracy with the consent of his father, still, the latter should not be sued for an amount in excess of the peculium, for the reason that a man who gives his consent for his son to become a Decurion, only thereby binds himself that the property of the Government will remain secure.