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1178

TUTOR.

was enough, if he made no opposition to it. (Ulp. Frag. tit. 11. s. 25.) The Negotiorum Gestio in which the Tutor acted alone took place when the Pupillus was an Infans, or absent, or Furiosns: it was his duty to preserve and improve the property and to do all necessary acts for that pur­pose. When the Pupillus was no longer Infans, he could do various acts with the Auctoritas of his Tutor: the auctoritas was the consent of the Tutor to the act of the Pupillus, which was necessary in order to render it a legal act. Thus it was a rule of law that neither a woman nor a pupillus could alienate a Res mancipi without the auctoritas of a Tutor : a woman could alienate a Res nee mancipi without such consent, but a pupillus could not. (Gaius, ii. 80.) The incapacity of the pupillus is best shown by the following instance : if his debtor paid a debt to the pupillus, the money became the property of the pupillus, but the debtor was not released, because a pupillus could not release any duty that was due to himself without the auctoritas of his Tutor, for he could alienate nothing without such auctoritas, and to release his debtor was equi­valent to parting with a right. Still if the money really became a part of the property of the pupillus, or, as it was expressed according to the phraseology of the Roman Law, si ex ea pecunia locupletior fadus sit, and he afterwards sued for it, the debtor might answer his demand by an Exceptio doli mali. (Gaius, ii. 84; Cic. Top. 11.) The subject of the incapacity of Impuberes and the consequent ne­cessity of the auctoritas of a Tutor is further ex­plained in the articles impubes and infans.

The tutela was terminated by the death or capitis deminutio maxima and media of the Tutor. The case of a Tutor being taken prisoner by the enemy has been stated. (Gaius, i. 187.) A legi-timus Tutor became disqualified to be Tutor legiti-mus if he sustained a capitis deminutio minima, which was the case if he allowed himself to be adopted (Gaius, i. 195 ; Ulp. Frag, tit, 11. s. 13); but this was not the case with a testamentary Tutor. The tutela ceased by the death of the pupillus or pupilla, or by a capitis deminutio, as for instance the pupilla coining in manum viri. It also ceased when the pupillus or pupilla attained the age of Puberty, which in the male sex was fourteen and in the female was twelve. [!mpubes.] The tutela ceased by the abdicatio of the testa­mentary Tutor, that is, when he declared " nolle se tutorem esse." The Tutor legitimus could only get rid of the Tutela, in such cases as he could get rid of it, by In jure cessio, a privilege which the Testamentary tutor had not. The person to whom the tutela was thus transferred was called Cessicius Tutor. If the Cessicius Tutor died, or sustained a Capitis deminutio, or transferred the tutela to another by the In jure cessio, the tutela reverted to the legitimus tutor. If the legitimus tutor died, or sustained a capitis deminutio, the cessicia be­came extinguished. Ulpian adds {Frag. tit. xi. s. 8) : " as to what concerns adgnati, there is now no cessicia tutela, for it was only permitted to transfer by the In jure cessio the tutela of females, and the legitima tutela of females was done away with by a Lex Claudia, except the tutela patro-norum." The power of the legitimus tutor to transfer the tutela, is explained when we consider what was his relation to the female. [testa-

MENTUM.]

tutela of a tutor was terminated, when he

TUTOR,

was removed from the tutela as suspectus, or when his excusatio was allowed to be justa ; but in both of these cases, a new tutor would be necessary. (Gaius, i. 182.)

The tutor, as already observed, might be re­moved from his office, if he was misconducting himself: this was effected by the Accusatio sus« pecti, which is mentioned in the Twelve Tables. (Gaius, i. 182 ; Dirksen, Uebersicht, dkc.der Zwolf Tafefa, 599—604.)

The Twelve Tables also gave the pupillus an action against the Tutor in respect of any mis­management of his property, and if he made out his case, he was entitled to double the amount of the injury done to his property. This appears to be the action which in the Digest is called Rationibus distrahendis, for the settlement of all accounts between the Tutor and his Pupillus. There was also the Judicimn tutelae, which com­prehended the Actio tutelae directa and Contraria, and like the Actio distrahendis rationibus could only be brought when the Tutela was ended. The Actio tutelae directa was for a general account of the property managed by the Tutor, and for its delivery to the pupillus now become Pubes. The tutor was answerable not only for loss through dolus malus, but for loss occasioned by want of proper care. This was an action Bonae fidei and consequently In incertum (Gaius, iv. 62). If the tutor was condemned in such a judicium, the con­sequence was Infamia. [infamia.] The tutor was intitled to all proper allowances in respect of what he had expended or done during his manage­ment of the property of the pupillus. The Tutor had the Actio tutelae contraria against the pupillus for all his proper costs and expenses ; and he might have also a Calumniae judicium, in case he could show that the pupillus had brought an action against him from malicious motives.

In order to secure the proper management of the property of a pupillus or of a person who was In curatione, the Praetor required the Tutor or Cura­tor to give security ; but no security was required from Testamentary Tutores, because they had been selected by the testator ; nor, generally, from Cu-ratores appointed by a Consul, Praetor or Praeses, for they were • appointed as being fit persons. (Gaius, i. 199.)

The Tutela of women who are puberes, requires a separate consideration. If they were not in Potestas or In Manu, yet they were under a Tutela.

It was an old rule of Roman Law that a woman could do nothing " sine auctore," that is without a tutor to give to her acts a complete legal character. (Liv. xxxiv. 2, the speech of Cato for the Lex Oppia.) The reasons for this rule are given by Cicero (pro Mtirena, c. 12), by Ulpian (Frag. tit. 11. s. 1) and by Gaius (i. 190) ; but Gaius con­siders the usual reasons as to the rule being founded on the inferiority of the sex, as unsatisfactory; for women who are puberes (perfectae aetatis) manage their own affairs, and in some cases a tutor must interpose his auctoritas (dicis causa), and frequently he is compelled to give his auctoritas by the Praetor. (Gaius, i. 190.) Ulpian also observes (Frag. tit. .11. s. 25) : " in the case of pupilli and pupillae, tutores both manage their affairs and give their auctoritas (et negotia gerunt et auctoritatem inter-ponwit~); but the tutores of women (mulieres, that is women who are puberes) only give their aucto-

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