Latin
Lines 1.279-1.287
Roman Law and Society, Institutes of Justinian 1.279-287
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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 actio may be brought against the magistrate who has accepted the security as sufficient. The subsidiary actio may be brought against a magistrate who has wholly omitted to take security, or has taken insufficient security; and the liability to this actio, according to the responses of the jurisprudenti as well as the imperial constitutiones, extends also to the heirs of the magistrate.
3. The same constitutiones 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.
4. Neither the prefect of the city, nor the praetor, nor the praeses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this actio, but only those whose ordinary duty is to exact the security.
XXV. Excusal of Tutors or Curators.
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 anyone 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 favor 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.