1Ulpianus, 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.

2The Same, Disputations, Book III. A case has been proposed where two guardians, having been appointed by municipal magistrates without security being required, one of them died in poverty, and the other, after being sued by the ward, paid the entire amount. The question arose, whether this guardian would be entitled to an action against the municipal magistrates when he was aware that security was not required from his fellow-guardian. I stated it as my opinion that, since the claim of the ward against the guardian had been satisfied by the latter, neither the ward nor the guardian had any further recourse against the magistrates, for a guardian never has any right of action against a magistrate, as a Decree of the Senate gives relief to the ward; and especially is this the case when the guardian is to blame for not requiring security from his colleague, or for not denouncing him as suspicious, if, in accordance with the facts stated, he knew that he had not given security by order of the magistrates.

3Julianus, Digest, Book XXI. If no blame attaches to a guardian on this account it will not be unjust for him to be granted an action against the magistrates.

4Ulpianus, Disputations, Book III. The heirs of magistrates are not responsible in the same way as the latter, for the heir of a guardian is not liable upon the ground of the negligence of the deceased; as the magistrate indeed assumes all the responsibility, and his heir is only liable in case of fraud, or of negligence resembling fraud.

5Julianus, Digest, Book XXI. Two guardians divided the administration of the guardianship between them, and one died without leaving an heir. The question arose whether an action should be granted to the ward against the magistrate who did not see that security was given, or against the other guardian. I answered that it was more equitable for an action to be granted against the other guardian than against the magistrate; for the former, when he was aware that security had not been furnished to the ward, should have taken charge of the entire administration; and with respect to that portion which he had committed to the care of the other guardian, he resembled one who did not attend to the transaction of certain business of his ward. For although he may have transacted a certain portion of the business of his ward, he will still be liable for neglecting to attend to what he should have done.

6Ulpianus, On the Edict, Book I. A Rescript of the Divine Pius is extant which refers to the heir of a magistrate, and states that, after proper cause is shown, an action should be granted against him; for if the negligence of a magistrate should be so great as to cause him to fail to take any security, it is but just that he should be held to occupy the position of a surety, so that his heir may also be liable. Where, however, he took security, and the sureties at the time were solvent, but afterwards ceased to be; just as the magistrate himself can very properly refuse to answer in such an action, so his heir can refuse with even more justice. Finally, an action should not be granted against the heir of a magistrate, unless it is evident that the latter accepted sureties which were not perfectly solvent.

7Celsus, Digest, Book XI. I ask you to carefully note in the case of magistrates who have appointed a guardian whether an action should be granted against them for equal amounts, or whether it shall be optional with the ward to sue any of them that he pleases. The answer was that if the magistrates have acted fraudulently, so that sufficient security was not given to the ward, an action for the entire amount should be granted the latter against whomever he may select; but if this occurred merely through their negligence, and did not result from bad faith, I think that it would be more equitable for each one of them to be sued for his own share, provided that, in this way the property of the ward will be preserved.

8Modestinus, Opinions, Book VI. Magistrates exacted security from the curators of a minor for the preservation of his property, and one of them died without leaving an heir. I ask whether his colleague will be liable to indemnify the ward from the entire amount. Modestinus answered that there is no reason why he should not be required to do so.

9The Same, Pandects, Book IV. The question arose, where an action is granted against magistrates, should the principal be collected together with the interest, or can interest not be claimed, since it has been decided that interest on penalties cannot be recovered. It was stated in a Rescript by the Divine Severus and Antoninus, that interest can be collected, since the same action is granted against magistrates that lies against guardians.