suit (§ 2). 2. When they had a payment to receive. 3. When their tutors had to render their accounts. In any such case the rival litigant, the debtor, or the tutor was entitled, if not to nominate, certainly to refuse paying the adolescens until he nominated a special curatorthe object being to bar any renewal of the suit, and to avoid any question as to the payment or the accuracy of the account (1). If any person under twenty-five had once obtained a curator, he could not reassume the management of his property before twenty-five, unless the Emperor granted him a dispensation (ætatis venia) from waiting till twenty-five; but in order to obtain it, the man must be twenty and the woman eighteen (C. 2. 45. 2). § 3. § 1. The curatorship of lunatics and spendthrifts was alone legitima, and was vested by the Twelve Tables (p. 16) in the agnati (2); in other cases the curators were named by those magistrates who named the tutors; though curators were not to be named by testament, still if so named they might be confirmed by the magistrates. § 3. The curators of lunatics and spendthrifts were usually (solent) appointed by the magistrates after inquiry, and were therefore dativi; for not merely might such persons have no agnati, or none capable of acting as curators, but by the Twelve Tables the agnati were never curators, unless the lunatics or spendthrifts were the legal representatives of a pater-familias who had died intestate (Ulp. Reg. 12. 3); in all other cases, such as when the pater-familias left a will, they were dativi. As to the functions of a curator. Unlike the tutor, the curator was given, not to the person but to the goods, and often for a particular business; for every one of full age was capable of acting and binding himself (3) alone. Curators, however, as guardians of the property of adult lunatics, &c., were required to give their co-operation and sanction; and, when the persons in curatela were totally incompetent to act themselves, to appear for them as their attornies. TITLE XXIV.—OF THE SECURITY (CAUTIO) TO BE GIVEN BY TUTORS AND CURATORS. In order to secure the proper conduct of tutors and curators, various (1) The Prætors introduced in favour of adolescentes the restitutio in integrum, which avoided any act by which they were damaged. The lex Plotoria, probably the first which divided the puberes into two classes, subjected to infamy any one who took fraudulent advantage of an adultus. Perfecta ates was 25. (2) Curatela was not, like tutela legitima, bestowed on these agnati because they might succeed to the property; for the lunatic or spendthrift might have children who would exclude agnati, whereas impuberes could have none. And though the express provision as to agnati being tutors was by construction extended to the patron, this rule was not extended to the case of curators. (3) If not an absolute idiot, an adultus might marry without the aid of the curator (D. 23, t. 20). kinds of security (cautiones) were taken; amongst them we find, 1. The security to be furnished by them before beginning to act, without which no act of theirs was valid. 2. The inventory to be prepared before they took office (C. 5. 51. 13). 3. The implied hypothecation or charge on all their goods. 4. The oath required by Justinian (Nov. 78, c. 7), to administer the goods, like a good pater-familias. Pr. Cautio (cavere) means any guarantee or security. A promise by word or by writing, or a pledge, are cautiones; an oath is a cautio juratoria. When a third party comes in and adds his personal obligation to that of the principal debtor, the cautio then given is called satisdatio (guarantee) (1), and this was the one furnished by tutors and curators. Pr. Generally all tutors and curators were compelled to give security. But there were exceptions:-1. Testamentary tutors, for their fidelity and diligence were guaranteed by the testator's choice. 2. Tutors and curators nominated by the testament of the father of the pupillus or adultus, when the nomination required confirmation; but there was no exception when they were not named by the fathers but by some one else. 3. Tutors and curators dativi appointed after inquiry (2). Strictly, tutores legitimi were always obliged to give security; but the Prætor sometimes relieved the father and patron (D. 26. 4. 5. 1). § 1. It might indeed happen that even in some of these excepted cases a tutor or curator might have to provide security. Thus, suppose that several tutors or curators were appointed together; in this case there was only one, called onerarius, who managed the property, the others being honorarii, took no active share, but were still responsible to the pupillus. Any one of the tutors or curators might, by tendering security, compel his colleague to leave the management in his hands, or to furnish security himself, if he wished to undertake the management. § 1. If no one had been nominated manager by testament, or none offered security, such manager was appointed by the majority of the tutors or curators, and, if they disagreed, by the magistrate. But a single manager was not necessary, for the management might be divided amongst the joint-tutors and joint-curators, either by the terms of their appointment or at their own request, each undertaking a (1) It consisted in furnishing a fidejussor (B. 3, t. 20), i.e., one bound by stipulatio to answer for the conduct of the tutor or curator. The form was this:-First, the tutor or curator was asked, "Promittesne rem pupilli salvam fore? He answered, Promitto. Again, the fidejussor was asked, Fidejubesne rem pupilli salvam fore? He answered, Fidejubeo. But who put these questions? The pupillus or the adultus. For the right of action (actio ex stipulatu) particular district or distinct portion. And in this case the responsibility was not joint but several (D. 26. 7. 55). § 3. If tutors wrongfully refused to furnish security, they might be compelled to do so, by a seizure of their goods, which were kept as a pledge; if they still refused, they were deemed suspecti (t. 26). § 2. The person who was responsible for the sufficiency of the security was the magistrate who accepted it; à fortiori he was of course responsible when there was no security at all, for his duty was to have it provided. § 2. § 4. An actio subsidiaria lay against the magistrate in case of neglect in this respect; and, according to the Responsa Prudentum and the Imperial Constitutions, it lay against his representative, in case of gross negligence (D. 27. 8. 6). However, it lay only against inferior and not against superior magistrates; for it was not part of their duty to see security provided. TITLE XXV.-OF THE EXCUSES WHEREOF TUTORS AND CURATORS MIGHT AVAIL THEMSELVES. Pr. Guardianship and Curatorship being public duties, no man could be relieved from them, except by some lawful excuse. The lawful excuses common to tutela and curatela were:— 1. The number of children: three at Rome; four in Italy; five in the provinces; but all must be alive, or must have fallen in battle. Children in the womb or adopted were not reckoned; those adopted or emancipated were reckoned by their natural father, for this excuse was in favour of population, and had no reference to the patria potestas. Grandchildren represented their deceased father. 2. The management of the treasury. This was first allowed as an excuse by Marcus Aurelius in his Semenstria (1). Fiscus was the private treasury of the Emperor, and was distinct from ærarium, the public one; but in later times they were united, and the excuse was available for a manager of either (§ 1). 3. Absence on the service of the Republic. This was a permanent excuse, when the tutor or curator was appointed in his absence, or within the year after his return; it was temporary only when he had been appointed previous to his absence, a curator being appointed till his return (§ 2). 4. The holding a magisterial office. This would relieve a man from (1) The earlier Emperors devoted six months a year to the administration of justice and the making of laws. Their collected decisions were called semenstria. undertaking a guardianship (tutela), but would not avail him so far as to allow him to resign after accepting it (§ 3). 5. A suit between the tutor or curator and the pupil or minor, if the question affected nearly all the goods of either, or a hæreditas (§ 4). 6. Three guardianships or curatorships, or even one, if complicated. The difficulty rather than the number was the point; but the party alleging the excuse must not have applied for the office (§ 5, 9). 7. Poverty; for both the offices in question were filled gratis, and would have been too burdensome for a poor man. M. Aurelius and Lucius Verus (divi fratres) introduced this provision (§ 6). 8. Disease. Whether this excuse was to avail permanently or for the time, depended on the character of the complaint (§ 7). 9. Want of education, if such as to incapacitate for business (§ 8). 10. A nomination as tutor, from a spiteful desire to impose a burden: the being unknown to the testator was nothing (§ 9, 10). 11. Inimicitia capitalis of tutor or curator against the father of the pupilli or adulti, or against the adulti themselves, there having been no reconciliation (§ 11). 12. A suit as to the status of the tutor by the pater-familias (§ 12). 13. The age of seventy. The being under twenty-five was good for the time. But Justinian made this last an absolute incapacity (§ 13). The same rule applied to idiots, to deaf and dumb. 14. The military profession (§ 14). 15. A liberal profession exercised in a man's native country, or in Rome, which was the common country, such as law, medicine or rhetoric. In provincial towns the number of persons so exempt was limited (§ 15). There were some excuses which were peculiar to curatorship. One who was tutor of a person could not be compelled to be his curator also nor could a husband be compelled to be curator of his wife, even though he had interfered in the management of the property (1) (§ 18, 19). § 16. Excuses were brought before the magistrate (2), within fifty running days, if the party dwelt less than one hundred miles from where the tutor or curator was appointed; but if he dwelt beyond that distance, there was a fixed period of thirty days plus one day for every twenty miles beyond the one hundred. According to Scævola, however, the time allowed must never be less than fifty days: for otherwise it (1) An exception to the principle that a party by interfering waived the excuse. Again, the excuse was waived by a previous promise to the pater-familias to be tutor to his children, or by allowing the period to elapse within which the excuse must be presented. (2) The tutor dativus, instead of appealing to a superior magistrate against the nomination, appeared before the magistrate who nominated, reserving an appeal if he rejected his excuses. might be that a person two hundred miles off would have had only thirty-five days: whereas one less than one hundred miles off would have had fifty. § 16. The time thus limited began to run on the day on which the tutor or curator knew of his appointment or of its confirmation. § 16. If the first excuses were rejected, others might be proposed within the given time. § 17. Excuses were not generally available for part of a tutela or curatela. The rule was, that the excuse must be for the whole but in like manner as the management might be divided, so sometimes there might be a partial excuse. § 20. The tutor or curator who alleged a false excuse, was not discharged from responsibility. On the contrary the allowance of such excuses was absolutely void-an exception to the rule that a judgment founded on false grounds must be reversed. TITLE XXVI.-OF TUTORS AND CURATORS SUSPECTI. A tutor or curator was suspectus, §§ 5, 12, 13, when he was unfaithful in performing his duties, or of bad character (t. 23, § 5). §§ 12, 13. Fidelity and good character are the only things regarded in a tutor or curator. Hence, poverty is no ground of suspicio, and hence neither the solvency of the suspectus, nor the satisfactory nature of the security produced, would stop charges against him. Indeed, as Justinian says, solvency and a good security would simply furnish additional time for a dishonest tutor or curator to waste the pupil's substance. § 8. The law of the Twelve Tables (VIII. p. 20) is the law under which a tutor or curator suspectus is sued, the object being to remove them from office as unfaithful officers. Hence, when the duties of the suspectus ceased, e.g., by his death, the suit also ceased; for its end was attained. § 1. The suit was brought before the Prætor at Rome, and before the governor (Prases) or legate of the proconsuls in the provinces. § 2. Any sort of tutor might become chargeable as suspectus: but if the tutor was patron of, related to, or of affinity with the pupil, his reputation was to be considered; and instead of being removed, a curator was associated with him, and even when removed he was spared the infamy commonly attached to suspecti found guilty of fraudulent malversation. § 3. The accusation being public, any citizen might bring it forward: even women, if they were moved by affection for the pupillus: for |