[ULPIANUS libro uicensimo quinto ad edictum. ] §27.3.9.prSi tutor rei publicae causa abesse coeperit ac per hoc fuerit excusatus, quod rei publicae causa aberit, tutelae iudicio locus est.
[ULPIANUS in his twenty-fifth book On the Edict] If a guardian begins to be absent on public business and is thereby excused on the ground that he will be absent on public business, there is room for an action of guardianship.
sed si desierit rei publicae causa abesse, consequenter desinit qui in locum eius datus est et tutelae conueniri poterit.
But if he ceases to be absent on public business, consequently the person who was appointed in his place ceases to be guardian, and he (the original guardian) can be sued in an action of guardianship.
§27.3.9.1Si duobus impuberibus fratribus tutor datus sit et alter eorum in legitimam tutelam fratris sui perfectae aetatis constituti reccidit, eum qui datus esset tutorem esse desisse Neratius ait.
If a guardian has been appointed for two pupillary brothers and one of them falls back into the statutory guardianship of his brother who has reached full age, Neratius says that the person who had been appointed ceases to be his guardian.
quia igitur desinit, erit tutelae actio etiam ex persona impuberis, quamuis, si testamento datus fuisset, non desineret esse tutor eius, qui adhuc erat impubes, quia semper legitima tutela testamentariae cedit.
Since therefore he ceases, there will be an action of guardianship also on the part of the pupillus, although, if he had been appointed by will, he would not cease to be the guardian of him who was still a pupillus, because statutory guardianship always yields to testamentary guardianship.
§27.3.9.2Si testamento sub condicione tutor datus sit, deinde alius medio tempore ex inquisitione, dicendum est locum esse tutelae iudicio existente condicione, quia tutor esse desinit.
If a guardian has been appointed by will under a condition, and then another in the meantime after inquiry, it must be said that there is room for an action of guardianship when the condition is fulfilled, because he (the temporary guardian) ceases to be guardian.
§27.3.9.3Sed et si quis testamento usque ad tempus fuerit datus, idem erit dicendum.
But also if anyone has been appointed by will up to a certain time, the same must be said.
§27.3.9.4Et generaliter quod traditum est pupillum cum tutore suo agere tutelae non posse hactenus uerum est, si eadem tutela sit: absurdum enim erat a tutore rationem administrationis negotiorum pupilli reposci, in qua adhuc perseueraret.
And generally, the rule handed down that a pupillus cannot bring an action of guardianship against his guardian is true only so far as it is the same guardianship: for it was absurd for an accounting of the administration of the pupillus' affairs to be demanded from a guardian in which he still continued.
in qua autem desinit tutor et iterum coepit esse, sic ex pristina administratione tutelae debitor est pupillo, quomodo si pecuniam creditam a patre eius accepisset.
But in a case where a guardian ceases to be such and begins to be so again, he is a debtor to the pupillus on account of his former administration of the guardianship in the same way as if he had received loaned money from his father.
quem igitur effectum haec sententia habeat, uideamus: nam si solus tutor est, utique ipse secum non aget.
Let us see, therefore, what effect this opinion has: for if he is the sole guardian, he will certainly not sue himself.
sed uel per specialem curatorem conueniendus est uel pone eum contutorem habere, qui possit aduersus eum iudicem accipere, ex qua causa cum eo tutelae agi potest.
But he must either be sued through a special curator, or suppose that he has a co-guardian who can accept a judge against him, for which reason an action of guardianship can be brought against him.
quin immo si medio tempore soluendo esse desierit, imputabitur contutoribus, cur non egerunt cum eo.
Nay more, if in the meantime he ceases to be solvent, it will be imputed to the co-guardians why they did not bring an action against him.
§27.3.9.5Si tutori curator sit adiunctus quamuis suspecto postulato, non cogetur tutelae iudicium tutor suscipere, quia tutor maneret.
If a curator is appointed to assist a guardian, even though a suspect-guardian procedure has been initiated, the guardian will not be compelled to undergo an action of guardianship, because he remains guardian.
§27.3.9.6Sed et si fuerit tutor confiscatus, aduersus fiscum dandam esse actionem constat ei qui loco eius curator datus sit uel contutoribus eius.
But even if a guardian's property has been confiscated, it is established that an action against the imperial treasury is to be granted to the person appointed as curator in his place or to his co-guardians.
§27.3.9.7Ceterae actiones praeter tutelae aduersus tutorem competunt, etsi adhuc tutelam administrant, ueluti furti, damni iniuriae, condictio.
Other actions besides that of guardianship lie against a guardian, even while they are still administering the guardianship, such as for theft, damage under the Aquilian law, or a condictio.