1Ulpianus, 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.

2Paulus, On Sabinus, Book VIII. No one is liable to an action to account for the appropriation of property, unless the guardian abstracted it during his administration of the guardianship. 1Where he acted with the intention of stealing, he will also be liable to the penal action for theft. He is, therefore, liable at the same time to both actions, and one of them does not release him from the other. An action for the recovery of the property on the ground of theft will also lie, and if the ward should recover the stolen goods by means of it, this right of action will be extinguished, for the reason that the ward has lost nothing. 2Although this action is brought for double the amount, the recovery of the property is only half, and the penalty is therefore not double.

3Pomponius, On Sabinus, Book V. Where an action on guardianship, based on voluntary agency, is brought, and the amount due to the guardian or curator from his adversary is uncertain, security should be given by order of the judge to make good his loss on this account.

4Paulus, On Sabinus, Book VII. An action on guardianship can not be brought until the latter is terminated. It is terminated not only by puberty, but also by the death of the guardian or the ward. 1Julianus thinks that a son who has been emancipated can be held directly liable, if he has administered the guardianship. 2If he is still under the age of puberty, while administering the guardianship, his acts are void. 3An action on guardianship will not lie against the curator of an insane person, but an action on the ground of voluntary agency must be brought, which will lie while he is still transacting the business; because the same rule does not apply in this action, as in one on guarddianship, so long as he whose guardianship is being administered has not reached puberty.

5Ulpianus, On Sabinus, Book XLIII. Where a guardian does not return property deposited or loaned for use to him by the father, he is liable to an action, not only on the loan or deposit, but also on guardianship; and if he has received money to induce him to restore the property, it is held by many authorities that the said money can be recovered either by an action on deposit, or loan, or by a personal one. This opinion is reasonable, because the property was dishonorably acquired.

6The Same, On the Edict, Book XXXI. Where a son under paternal control has administered a guardianship, and, after having been liberated, is guilty of fraudulent conduct; the question arises whether an action on guardianship on this ground will lie against the father. It is just that the father should only be liable for the fraud of his son where the latter committed it before being emancipated.

7The 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;

8Papinianus, Questions, Book XXVIII. Even though the guardian may be reinstated in his former guardianship by the right of postliminium.

9Ulpianus, On the Edict, Book XXV. Where a guardian is away in the service of the State, and on this account has been excused during his absence, there is ground for an action on guardianship. Where, however, he ceases to be in the service of the government, and is discharged in consequence, anyone who is appointed in his stead can be sued in an action on guardianship. 1Where a guardian has been appointed for two brothers who have not reached puberty, and one of them comes under the legal guardianship of a brother who has attained his majority, Neratius says that the guardian who was appointed ceases to hold office. Therefore, for the reason that he is no longer guardian, the action on guardianship will lie against him in the name of the ward, although if he was appointed by will, he would not cease to be the guardian of the minor who is still under puberty, because testamentary guardianship always enjoys the preference over guardianship-at-law. 2Where a guardian is appointed by will, under a certain condition, and, in the meantime, another is appointed after an investigation, it must be held that there is ground for an action on guardianship, when the condition has been fulfilled, for the reason that the guardian ceases to be such. 3The same rule must be held to apply where a testamentary guardian has been appointed for a certain time. 4And, generally speaking, what has been handed down, namely, that a ward cannot bring a tutelary action against his guardian, is only true where the same guardianship is in existence; for it would be absurd for an account to be demanded for the administration of the business of a ward, where the guardian was still transacting it; still, where the guardian has ceased to do so, but a second time assumes the administration of the trust, he will be responsible to the ward for his former conduct during the guardianship, in the same way as if he had borrowed money from his father. Let us consider what would be the result of this opinion. It is evident that if there is but one guardian, he cannot proceed against himself, and he must be sued by a curator appointed for that purpose; but, suppose that he already had another guardian, who could bring an action on guardianship against his colleague, and conduct it? Not only is this the case, but if in the meantime he should cease to be solvent, his fellow-guardian can be held liable, because he did not bring an action against him in the first place. 5Where a curator is added to a guardian, even though the latter may have been denounced as suspicious, he will not be compelled to defend an action on guardianship, because the guardian is still in office. 6Where, however, the property of a guardian has been confiscated, it is established that an action should be granted against the Treasury to him who has been appointed curator in his stead, or to his fellow-guardians. 7The other actions, with the exception of that of guardianship, will lie against the guardian, even though he is still administering the trust; as, for instance, those of theft, damage, injury, and for the recovery of specific property.

10Paulus, On the Abridgment of the Edict, Book VIII. These actions are not granted to the ward as long as the guardian administers the guardianship, although they are extinguished by the death of the latter. The ward, however, will still be entitled to his action against the heir, because he is obliged to pay him.

11Ulpianus, 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.

12Paulus, On the Abridgment of the Edict, Book VIII. However, a son who is a guardian, cannot, on this ground, bring an action against his father before arriving at puberty; for this cannot be required of him, even after the guardianship is terminated.

13Ulpianus, 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.

14Gaius, On the Provincial Edict. Book XII. If, after the ward has reached puberty, the guardian should relinquish the administration even for a very short time, and afterwards resume it, there is no doubt that he can be sued in an action on guardianship, as well as in one on voluntary agency.

15Ulpianus, Disputations, Book I. Where a ward transacts business with one of his two guardians, and this results in his loss, the transaction will not benefit the other guardian, where both are guilty of fraud; nor is this unreasonable, since each one of them must pay the penalty for his fraudulent conduct. But if one of them, having been sued, should pay the ward what is due to him, this will release the other guardian against whom suit was not brought; for, even though both are guilty of fraud, still, it is sufficient for one of them to make payment; and the same rule applies as where property is loaned to, or deposited with two persons, to whose care it has been entrusted.

16The Same, On the Edict, Book LXXIV. If the action on stipulation is brought against a guardian while he is still administering the trust, or against those who represent him, a doubt will arise as to whether an action on guardianship cannot be brought, and whether one on stipulation will not lie. Many authorities think that this action should also be deferred, for reasons of convenience. 1The action can also be brought against the curator of a ward or a minor, even while the curatorship is still in existence.

17The Same, On the Duties of Consul, Book III. The Emperors Severus and Antoninus stated the following in a Rescript: “Since the question arises whether anything is due to you from guardians or curators, your petition is unreasonable, as you desire them to furnish the money to you for the expenses of the suit.”

18Papinianus, Questions, Book XXV. Where a guardian who is administering the affairs of a ward that has not yet reached puberty induces him to reject the estate of his father, a discussion usually arises whether an equitable action can be granted a ward after the property of his father has been sold. It is held that the action should be divided between the ward and the creditors of the father, in such a way that any deficiency in the account of the property due to the agency of the guardian shall be made up to the creditor. But whatever loss has ensued, either through the fraud or negligence of the guardian in causing his ward to wrongfully reject the estate, shall be left to the boy to be recovered by an action. The above-mentioned action undoubtedly will not lie before the ward has reached puberty, but is granted at once to the creditors.

19Ulpianus, Opinions, Book I. Where a claim due from a debtor has been approved by the last curator, the guardian cannot be sued for the claim.

20Papinianus, Opinions, Book II. It has been decided that the minor heir of one of two curators is entitled to complete restitution where the judgment was for the full amount. This proceeding will not afford a ground of action for recovery against the other curator, as having been required to pay a smaller sum of money than he should have paid, where the plaintiff is not of an age when he can obtain relief by law; but, on the ground of equity, relief should be granted him by means of a prætorian action to the extent that the other curator has been released from liability. 1Therefore, the suit which is granted, after the age of twenty-five, within the time fixed by law, for restitution against a guardian who has had judgment rendered against him in an action on guardianship, will not be useless; for the reason that the minor curators have had judgment rendered against him on account of this neglect. Hence, if the judgment has not been satisfied by the curators, the latter can, by means of an exception on the ground of fraud, compel the rights of action of the ward to be assigned to them.

21The Same, Definitions, Book I. When a ward transfers his right of action on guardianship to the guardian against whom a judgment has been rendered in full, to be enforced against his fellow-guardian, the right of action will not be extinguished, even though this is done after the judgment has been satisfied, because it is held that an account is not rendered for the share of the defeated guardian, but that the amount of the claim has been paid.

22Paulus, Questions, Book XIII. Where a defender of a guardian loses the case, he does not deprive the ward of his privilege, because the latter did not voluntarily contract with him.

23The Same, Opinions, Book IX. Where the heir of a guardian has been sued in an action on guardianship, his curator is not held to be released by operation of law, nor will an exception be granted him on the ground of res judicata. The same rule shall be observed with reference to the heirs of magistrates.

24The Same, Decisions, Book II. Where a guardian is appointed for a posthumous child, who is still unborn, an action on guardianship will not lie, for the reason that there is no ward, nor will he be liable as a party acting as a guardian because such a proceeding has no significance, nor can he be sued on the ground of voluntary agency, as he is not considered to have administered the affairs of an individual who is unborn, and therefore an equitable action will be granted against him.

25Hermogenianus, Epitomes of Law, Book V. Not only is the privilege of guardianship granted in favor of a ward against the property of a guardian, but also against that of one who has acted in his stead, as well as in the case of the curatorship of a male or female ward, or an insane man or woman, where security has not been furnished on this account.