prætor et in provinciis præsides ex for them, at Rome by the præfect of inquisitione eis dare curatores. the city or the prætor, in the provinces by the præsides, after inquiry into the circumstances has been made.

D. xxvii. 10. 1.

The words of the law of the Twelve Tables with regard to the furiosus were: Si furiosus est, agnatorum gentiliumque in eo pecuniaque ejus potestas est. (CICERO, de Invent. ii. 50.) The prodigus was first interdicted by the magistrate; and this, Ulpian says, was recognised by custom even before the date of the Twelve Tables: Lege XII. Tabularum prodigo interdicitur bonorum suorum administratio; quod moribus ab initio interdictum est. (D. xxvii. 10. 1. pr.) He was then placed under the curatorship of the agnate. Hence Horace says:

While, however, the prodigus was interdicted, the furiosus was not, and what he did was valid if he was not mad at the particular time when he did it. The form of the interdiction of the prodigus is given by Paul: Quando tibi bona paterna avitaque nequitia tua disperdis, liberosque ad egestatem perducis, ob eam rem tibi are commercioque interdico. (Sent. iii. 4 a. 7.) The agnates were, however, the curatores legitimi of the prodigus, under the law of the Twelve Tables, only when the goods he was wasting had come to him as the successor ab intestato of an ascendant. (ULP. Reg. xii. 3.) But the prætor extended the interdiction of prodigi to all cases where there was a prodigal waste of goods, just as he extended the curatorship of furiosi to other forms of madness or incapacity (see next paragraph); and the magistrate appointed the curator in all cases which came under either head of this extension of the law by the prætor. The text further tells us that, although the legal curatorship of the agnate was still recognised in the cases of furiosi and prodigi wasting goods under an intestate succession to an ascendant, yet in practice the magistrate generally appointed; and even before this practice grew up, the magistrate, if he thought an agnate having the legal right to be curator unfit, would give the practical administration of the property to some one else. (D. xxvii. 10. 13.)

4. Sed et mente captis et surdis et mutis et qui morbo perpetuo laborant, quia rebus suis superesse non possunt, curatores dandi sunt.

4. Persons who are of unsound mind, or who are deaf, mute, or subject to any perpetual malady, since they are unable to manage their own affairs, must be placed tinder curators. D. xxvii. 10. 2.

The word furiosi, that is, the mad as opposed to the imbecile, in the law of the Twelve Tables, was taken strictly, and there was no legal curator for any one suffering under any other form of mental malady.

5. Interdum autem et pupilli curatores accipiunt, ut puta si legitimus tutor non sit idoneus, quia habenti tutorem tutor dari non potest. Item si testamento datus tutor vel a prætore vel a præside idoneus non sit ad administrationem nec tamen fraudulenter negotia administrat, solet ei curator adjungi. Item in locum tutorum, qui non in perpetuum, sed ad tempus a tutela excusantur, solent curatores dari.

5. Sometimes even pupils receive curators; as, for instance, when the legal tutor is unfit for the office; for a person who already has a tutor cannot have another given him; again, if a tutor appointed by testament, or by the prætor or præses, is unfit to administer the affairs of his pupil, although there is nothing fraudulent in the way he administers them, it is usual to appoint a curator to act conjointly with him. It is also usual to assign curators in the place of tutors excused for a time only, and not permanently. D. xxvi. 1. 13; D. xxvi. 2. 27 ; D. xxvi. 5. 15 and 16.

6. Quodsi tutor adversa valetudine vel alia necessitate impeditur, quo minus negotia pupilli administrare possit, et pupillus vel absit vel infans sit, quem velit, actorem periculo ipsius prætor vel qui provinciæ præerit, decreto constituet.

6. If a tutor is prevented by illness or otherwise from administering the affairs of his pupil, and his pupil is absent, or an infant, then the prætor or præses of the province will, at the tutor's risk, appoint by decree some one to be the agent of the pupil on the nomination of the tutor.

D. xxvi. 7. 24.

This agent is to be distinguished from a curator. He is merely a person who acts under the tutor, and for whom the tutor is responsible. If the pupil was present, and past the age of infancy, he, with the authorisation of the tutor, could appoint the agent, and there would be no necessity for the confirmation of a magistrate; hence the words et pupillus vel absit vel infans sit.

The uncertain duration of mental incapacity made the person entrusted with the care of one suffering under it be termed a curator, not a tutor; otherwise the sufferer might be as incapable of going through legal forms as an infant. An adolescent and a prodigus could go through all the forms of law, and therefore there was no necessity, in their case, for the curator having an auctoritas. If they went through the prescribed forms, they were legally bound, whether the curator consented or not; but unless the curator consented, the prætor would always interpose and relieve them from any consequences that might be prejudicial; and so they were not really bound, unless with the curator's

consent.

TIT. XXIV. DE SATISDATIONE TUTORUM VEL
CURATORUM.

Ne tamen pupillorum pupillarumve et eorum, qui quæve in curatione sunt, negotia a tutoribus curatoribusve consumantur vel deminuantur, curat prætor, ut et tutores et curatores eo nomine satisdent.

To prevent the property of pupils and persons placed under curators being wasted or destroyed by tutors or curators, the prætor sees that tutors and curators give security against such conduct. But this is not always

Sed hoc non est perpetuum: nam
tutores testamento dati satisdare
non coguntur, quia fides eorum et
diligentia ab ipso testatore probata
est: item ex inquisitione tutores
vel curatores dati satisdatione non
onerantur, quia idonei electi sunt.

necessary; a testamentary tutor is not compelled to give security, as his fidelity and diligence have been recognised by the testator. And tutors and curators appointed upon inquiry are not obliged to give security, because they have been chosen as being proper persons.

GAI. i. 199, 200.

A patron and a father, when tutors, were ordinarily, though not as a matter of right, exempt from the necessity of giving caution. (D. xxvi. 4. 5. 1.) This necessity, therefore, only fell on tutores or curatores legitimi, and those appointed by inferior magistrates; those appointed by higher magistrates being only appointed after inquiry, which rendered the giving security needless. (See Tit. 20. 4.) The persons who became sureties (for the security demanded was always that of the guarantee of third persons) went through the form of fidejussio. The pupil or the person requiring a curator asked the surety whether he guaranteed the safety of the property, Fide jubesne rem salvam fore? And he answered, Fide jubeo. If the pupil or adult could not go through the ceremony, his slave, or, if he had no slave, or his means did not suffice to buy one, a slave appointed by the magistrate, went through the form for him. (See Bk. iii. Tit. 20; D. xlvi. 6. 2.)

Besides the guarantee taken for the fidelity of the tutor and curator, and the general liability of the whole of the tutor's or curator's property to make good any losses incurred through their neglect, a constitution of Constantine having subjected their property to a tacit hypothec in favour of the pupil or minor (C. v. 37. 20), those entrusted to their care had a further protection in the necessity under which the tutor and curator were to make an inventory of all the property of the pupil or the person requiring a curator (D. xxvi. 7. 3. 2), and, after the publication of the 78th Novel, by the tutor or curator being obliged to pledge himself by oath that he would act as a 'bonus paterfamilias' would act. (Nov. 78, cap. 7.)

1. Sed et si ex testamento vel inquisitione duo pluresve dati fuerint, potest unus offerre satis de indemnitate pupilli vel adulescentis et contutori vel concuratori præferri, ut solus administret, vel ut contutor satis offerens præponatur ei et ipse solus administret. Itaque per se non potest petere satis a contutore vel concuratore suo, sed offerre debet, ut electionem det contutori suo, utrum velit satis accipere an satis dare. Quodsi nemo eorum satis offerat, si quidem adscriptum fuerit a testatore, quis gerat, ille

1. If two or more are appointed by testament, or by a magistrate, after inquiry, as tutors or curators, any of them, by offering security for the indemnification of the pupil or adolescent, may be preferred to his co-tutor or co-curator, so that he may either alone administer the property, or may oblige his co-tutor or co-curator to give security, if he wishes to obtain the preference and become the sole administrator. Thus he cannot directly demand security from his cotutor or co-curator; he must offer it himself, and so give his co-tutor or

gerere debet: quodsi non fuerit adscriptum, quem major pars elegerit, ipse gerere debet, ut edicto prætoris cavetur. Sin autem ipsi tutores dissenserint circa eligendum eum vel eos, qui gerere debent, prætor partes suas interponere debet. Idem et in pluribus ex inquisitione datis probandum est, id est ut major pars eligere possit, per quem administratio fieret.

co-curator the choice to receive or to give security. If no tutor offers security, then the one, if any, appointed by the testator to manage the property shall manage it; but if no tutor is so appointed, then the administration will fall to him whom a majority of the tutors shall choose, as is provided by the prætorian edict. If the tutors disagree in their choice, the prætor must interpose. And in the same way, when several are appointed after inquiry by a magistrate, the majority of those appointed is to determine which of them shall administer.

D. xxvi. 2. 17. 19. 1; D. xxvi. 7. 3. 1. 7, 8, 9.

As it was generally most convenient that one tutor alone should act, although all continued responsible (D. xxvi. 7. 3. 2. 6), it was necessary that the tutor who did act, tutor onerarius (opposed to tutores honorarii, those who did not act), should give security to the co-tutors. If he did not, he could be compelled, by the means described in the text, either to do so or to allow some other co-tutor to take his place. Sometimes the tutelage was apportioned by the magistrate among the different tutors, and each had a separate duty to perform, for which he alone was responsible. (D. xxvi. 7. 3. 9.)

2. Sciendum autem est, non solum tutores vel curatores pupillis et adultis ceterisque personis ex administratione teneri, sed etiam in eos, qui satisdationem accipiunt, subsidiariam actionem esse, quæ ultimum eis præsidium possit afferre. Subsidiaria autem actio datur in eos, qui vel omnino a tutoribus vel curatoribus satisdari non curaverint, aut non idonee passi essent caveri. Quæ quidem tam ex prudentium responsis quam ex constitutionibus imperialibus et in heredes eorum extenditur.

2. It should be observed that it is not only tutors and curators who are responsible for their administration to pupils, minors, and the other persons we have mentioned, but, as a last safeguard, a subsidiary action may be brought against the magistrate who has accepted the security as sufficient. The subsidiary action may be brought against a magistrate who has wholly omitted to take security, or has taken insufficient security; and the liability to this action, according to the responses of the jurisprudents, as well as the imperial constitutions, extends also to the heirs of the magistrate. D. xxvii. 8. 1. 11, 12. 4. 6.

The heirs of the magistrate were only liable where the negligence of the magistrate had been very great. (D. xxvii. 8. 6.)

3. Quibus constitutionibus et illud exprimitur, ut, nisi caveant tutores vel curatores, pignoribus captis coerceantur.

3. The same constitutions also expressly enact, that tutors and curators who do not give security, may be compelled to do so by seizure of their goods as pledges.

C. v. 35. 2.

The magistrate would order a portion of their property to be seized, and retained until they gave security. (THEOPHIL. Paraphr.)

4. Neque autem præfectus urbis neque prætor neque præses provinciæ neque quis alius, cui tutores dandi jus est, hac actione tenebitur: sed hi tantummodo, qui satisdationem exigere solent.

4. Neither the præfect of the city, nor the prætor, nor the præses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this action, but only those whose ordinary duty it is to exact security.

D. xxvii. 8. 1. 1.

The words of the text, which are borrowed from Ulpian, do not quite accurately describe the law under Justinian, as the municipal magistrates, whose business it was to take security, could in some cases appoint tutors (Tit. 20. 5), and they were always liable to this action.

TIT. XXV. DE EXCUSATIONIBUS TUTORUM VEL
CURATORUM.

Excusantur autem tutores vel curatores variis ex causis: plerumque autem propter liberos, sive in potestate sint sive emancipati. Si enim tres liberos quis superstites Romæ habeat vel in Italia quattuor vel in provinciis quinque, a tutela vel cura possunt excusari exemplo ceterorum munerum: nam et tutelam et curam placuit publicum munus esse. Sed adoptivi liberi non prosunt, in adoptionem autem dati naturali patri prosunt. Item nepotes ex filio prosunt, ut in locum patris succedant: ex filia non prosunt. Filii autem superstites tantum ad tutelæ vel curæ muneris excusationem prosunt: defuncti non prosunt. Sed si in bello amissi sunt, quæsitum est, an prosint. Et constat, eos solos prodesse, qui in acie amittuntur: hi enim, quia pro re publica ceciderunt, in perpetuum per gloriam vivere intelleguntur.

Tutors and curators are excused on different grounds; most frequently on account of the number of their children, whether in their power or emancipated. For any one who at Rome has three children living, in Italy four, or in the provinces five, may be excused from being tutor or curator as from other offices, for the office of both a tutor and a curator is considered a public one. Adopted children will not avail the adopter, but though given in adoption are reckoned in favour of their natural father. Grandchildren by a son may be reckoned in the number, so as to take the place of their father, but not grandchildren by a daughter. It is only those children who are living that can be reckoned to excuse any one from being tutor or curator, and not those who are dead. It has been questioned, however, whether those who have perished in war may not be reckoned; and it has been decided, that those who die in battle may, but they only, for glory renders those immortal who have fallen for their country.

D. xxvii. 1. 2. 2, &c. ; D. xxvii. 1. 18.

It was considered a matter of public policy that tutors or curators should act when their assistance was necessary, and therefore those who were appointed were obliged to accept the office, unless they could establish any valid reason for being excused. This Title gives a number of grounds on which a person appointed tutor or curator was excused from holding the office. These grounds of excuse may be classed with tolerable accuracy under four heads. Tutors and curators were excused as-1. Having