The Institutes of Justinian. Anonymous

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СКАЧАТЬ Lunatics and prodigals, even though more than twentyfive years of age, are by the statute of the Twelve Tables placed under their agnates as curators; but now, as a rule, curators are appointed for them at Rome by the prefect of the city or praetor, and in the provinces by the governor, after inquiry into the case.

      4 Curators should also be given to persons of weak mind, to the deaf, the dumb, and those suffering from chronic disease, because they are not competent to manage their own affairs.

      5 Sometimes even pupils have curators, as, for instance, when a statutory guardian is unfit for his office: for if a pupil already has one guardian, he cannot have another given him. Again, if a testamentary guardian, or one appointed by the praetor or governor, is not a good man of business, though perfectly honest in his management of the pupil's affairs, it is usual for a curator to be appointed to act with him. Again, curators are usually appointed in the room of guardians temporarily excused from the duties of their office.

      6 If a guardian is prevented from managing his pupil's affairs by illhealth or other unavoidable cause, and the pupil is absent or an infant, the praetor or governor of the province will, at the guardian's risk, appoint by decree a person selected by the latter to act as agent of the pupil.

TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS

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      To prevent the property of pupils and of persons under curators from being wasted or diminished by their curators or guardians the praetor provides for security being given by the latter against maladministration. This rule, however, is not without exceptions, for testamentary guardians are not obliged to give security, the testator having had full opportunities of personally testing their fidelity and carefulness, and guardians and curators appointed upon inquiry are similarly exempted, because they have been expressly chosen as the best men for the place.

      1 If two or more are appointed by testament, or by a magistrate upon inquiry, any one of them may offer security for indemnifying the pupil or person to whom he is curator against loss, and be preferred to his colleague, in order that he may either obtain the sole administration, or else induce his colleague to offer larger security than himself, and so become sole administrator by preference. Thus he cannot directly call upon his colleague to give security; he ought to offer it himself, and so give his colleague the option of receiving security on the one hand, or of giving it on the other. If none of them offer security, and the testator left directions as to which was to administer the property, this person must undertake it: in default of this, the office is cast by the praetor's edict on the person whom the majority of guardians or curators shall choose. If they cannot agree, the praetor must interpose. The same rule, authorizing a majority to elect one to administer the property, is to be applied where several are appointed after inquiry by a magistrate.

      2 It is to be noted that, besides the liability of guardians and curators to their pupils, or the persons for whom they act, for the management of their property, there is a subsidiary action against the magistrate accepting the security, which may be resorted to where all other remedies prove inadequate, and which lies against those magistrates who have either altogether omitted to take security from guardians or curators, or taken it to an insufficient amount. According to the doctrines stated by the jurists, as well as by imperial constitutions, this action may be brought against the magistrate's heirs as well as against him personally;

      3 and these same constitutions ordain that guardians or curators who make default in giving security may be compelled to do so by legal distraint of their goods.

      4 This action, however, will not lie against the prefect of the city, the praetor, or the governor of a province, or any other magistrate authorized to appoint guardians, but only against those to whose usual duties the taking of security belongs.

TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION

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      There are various grounds on which persons are exempted from serving the office of guardian or curator, of which the most common is their having a certain number of children, whether in power or emancipated. If, that is to say, a man has, in Rome, three children living, in Italy four, or in the provinces five, he may claim exemption from these, as from other public offices; for it is settled that the office of a guardian or curator is a public one. Adopted children cannot be reckoned for this purpose, though natural children given in adoption to others may: similarly grandchildren by a son may be reckoned, so as to represent their father, while those by a daughter may not. It is, however, only living children who avail to excuse their fathers from serving as guardian or curator; such as have died are of no account, though the question has arisen whether this rule does not admit of an exception where they have died in war; and it is agreed that this is so, but only where they have fallen on the field of battle: for these, because they have died for their country, are deemed to live eternally in fame.

      1 The Emperor Marcus, too, replied by rescript, as is recorded in his Semestria, that employment in the service of the Treasury is a valid excuse from serving as guardian or curator so long as that employment lasts.

      2 Again, those are excused from these offices who are absent in the service of the state; and a person already guardian or curator who has to absent himself on public business is excused from acting in either of these capacities during such absence, a curator being appointed to act temporarily in his stead. On his return, he has to resume the burden of tutelage, without being entitled to claim a year's exemption, as has been settled since the opinion of Papinian was delivered in the fifth book of his replies; for the year's exemption or vacation belongs only to such as are called to a new tutelage.

      3 By a rescript of the Emperor Marcus persons holding any magistracy may plead this as a ground of exemption, though it will not enable them to resign an office of this kind already entered upon.

      4 No guardian or curator can excuse himself on the ground of an action pending between himself and his ward, unless it relates to the latter's whole estate or to an inheritance.

      5 Again, a man who is already guardian or curator to three persons without having sought after the office is entitled to exemption from further burdens of the kind so long as he is actually engaged with these, provided that the joint guardianship of several pupils, or administration of an undivided estate, as where the wards are brothers, is reckoned as one only.

      6 If a man can prove that through poverty he is unequal to the burden of the office, this, according to rescripts of the imperial brothers and of the Emperor Marcus, is a valid ground of excuse.

      7 Illhealth again is a sufficient excuse if it be such as to prevent a man from attending to even his own affairs:

      8 and the Emperor Pius decided by a rescript that persons unable to read ought to be excused, though even these are not incapable of transacting business.

      9 A man too is at once excused if he can show that a father has appointed him testamentary guardian out of enmity, while conversely no one can in any case claim exemption who promised the ward's father that he would act as guardian to them:

      10 and it was settled by a rescript of M. Aurelius and L. Verus that the allegation that one was unacquainted with the pupil's father cannot be admitted as a ground of excuse.

      11 Enmity against the ward's father, if extremely bitter, and if СКАЧАТЬ