ceded to him, not only against his co-sureties, but against the coguardians of the guardian for whom he has stood surety as well— just as the guardian would himself have had; and this recourse is only for a wrongful act on the part of the other guardians short of fraud, there being no recourse against the other guardians for a fraudulent act on the part of all the guardians, or for loss suffered through the fault, fraudulent or not, of the guardian for whom the surety has bound himself. It will be otherwise, if the surety claims cession of action against his co-sureties; for this he lawfully claims, the ward being entitled to call upon him to make good not only the negligence of the guardian for whom he stood surety, but his own fraud or gross negligence as well (27, 7 § 2).

Voet has put the latter part of the foregoing passage somewhat obscurely. It would seem to mean-in default of any judicial interpretation-that the surety has recourse for the acts of the guardian who is his principal not only against his co-sureties, but against his principal's co-guardians as well, unless the loss results from (a) the sole negligence of his principal, (b) the fraud of his principal. The surety will (it is submitted) have no recourse against his co-sureties where the loss occurs through (a) his fraud, (b) his gross negligence.

320. In Roman Law persons who nominated guardians were liable for their acts; this is not the case in Roman-Dutch Law, unless there has been fraud in connection with such nomination (27, 7 § 3).

In case of fraud on the part of persons nominating guardians, it would seem that such persons, when called upon to make good loss arising from such false and fraudulent nomination, must be made defendants in a general action on tort. They fill no official position, such as that of a guardian, or even a pro-tutor, and therefore the actio tutelae or protutelae will not apply.

321. As regards the liability of the heirs of guardians, the rule of modern Dutch Law is that, as heirs succeed to all the goods of the deceased, a person who has been injured through the fraud of a deceased guardian, whether it arises out of a contract or not, has an action for indemnity against the heirs of the deceased for the whole amount (in solidum) of the loss, even if no gain has thence resulted to the heir, or even if the inheritance (i.e., the estate) of the deceased is insolvent, so long as it has been adiated without an inventory since it is better that damage arising from the fraud of the deceased should be borne by him who acquires gain by right

of the deceased, or at least hopes for it, by adiating an inheritance as if it were in a flourishing financial condition (27, 7 §§ 4—6).

See Dutch Consultations (part 3, vol. 1, No. 165); Van Leeuwen (Cens. For. 1, 3, 1, 2); Paul Voet on the Institutes (on obligations arising from delict, No. 3).

322. Voet then proceeds to the consideration of actions against magistrates. The rules laid down by him can scarcely be said to be applicable at present, as he expressly excepts magistratus majores, and considers only the liability of magistratus municipales. In South African practice, all the work with reference to the appointment of guardians, and the care of funds belonging to wards, is in the hands of Masters of the Superior Courts, who discharge the functions which were in Holland-and at the Cape of Good Hope, before the establishment of the office of Master-entrusted to Orphan Chambers (27, 8 § 1).

At the Cape, Ordinance No. 103 of 1833 provides for the abolition of the Orphan Chamber within the Colony, and for the performance thenceforth (from July 5th, 1833) of the duties discharged before that time by the Orphan Chamber by the Master for the time being of the Cape Supreme Court. The subject of actions against the Master is provided for in Ordinance 103, § 10, and in Ordinance 105, § 43. As to the Transvaal, see Proc. 28, 1902, §§ 56 and 118. As to Orange River Colony, see Statutes, chap. 54, §§ 9 and 53. As to Natal, see Act 38, 1899, §§ 61 and 62.

323. Upon a consideration of the passages in Voet's Commentaries bearing on the subject, and of Van Leeuwen's remarks (Cens. For. 1, 1, 17, 4), it would not appear safe to lay down unreservedly that actions against magistrates lie in favour of wards. Van Leeuwen says: "The decision of this doubt is a difficult and intricate matter." Both writers hold that the action can only be brought where there is fraud or gross negligence (though Van Leeuwen would seem to go further, and to hold that slight negligence also creates a liability) on the part of the magistrate. It would (it is submitted) be safe to say that wards have an action where there has been fraud, collusion, or gross negligence (in connection with the funds in his charge) on the part of the Master (27, 8 §§ 2-5).

Grotius, in the Dutch Consultations (vol. 5, No. 133; De Bruyn, p. 466), lays down that where no proper security has been given by guardians, the Orphan Masters are liable in default.

324. With reference to the order in which guardians and others previously mentioned in this chapter are to be called upon for payment, the following rules must be observed: If there is only one guardian, he must first of all be summoned, next his sureties, and next the magistrates (if they can be held liable for anything). If several guardians have been appointed, one must find out whether one of them alone has administered the guardianship, or several. If one alone, he must be excussed before the others who did not administer, and next to him his heirs and sureties, if he has furnished any, the other guardians who did not administer having the right to avail themselves of the benefit of order or excussion, if they are called upon first of all, no matter whether one took upon himself the administration by private agreement, last will of a testator, or judicial authority (see Van Leeuwen, Cens. For. 1, 1, 18, 15, 16, 17). The same rule holds, if one of several guardians has of his own accord conducted the administration alone, the other guardians failing to administer, although they were aware of their appointment-so far as things which he has done of his own accord are concerned, and also matters connected with such doings; but with reference to things omitted or neglected by him, who has of his own accord done certain things, the risk and responsibility attaches to all the guardians alike; and one person, who has done. certain things, cannot be excussed first in respect of what he has left undone or omitted. But those are also considered to have administered a guardianship, who have given an express mandate to another guardian to conduct the guardianship; or who have accepted from a co-guardian as sufficient security rem pupilli salvam fore offered by him, and have allowed him to administer the whole of the guardianship; or who have ceded the administration to their co-guardians (27, 8 § 6).

In order to bind a co-tutor who has not actively administered the guardianship, so as to render him liable to excussion, either along with the active administrator, or immediately after such active administrator and before the nominal guardians, there must be some conduct on the part of the co-tutor which is capable of being construed as an interference, in some way or another, with the guardianship. He must not be merely passive, silently acquiescing in the acts of the administering guardian. There must be some positive act, such as those instanced above; otherwise the co-tutor whom it is sought to make liable will have the benefit, not the burden, of excussion.

325. If all the tutors have had the administration, it must be seen, whether they have administered guardianship affairs jointly or severally. If they have done a thing jointly and collectively, they may be summoned at the choice of the ward to make payment each for all (singuli in solidum), having the benefit of division, if the remainder who were not summoned are solvent at a time when, the guardianship having ended, they could be called upon for payment -it being otherwise if, afterwards, on account of the ward's delay, some of them had ceased to be solvent (27, 8 § 6).

In other words, A., B., and C. are guardians. On the expiry of the guardianship, A. is called upon to pay 3007. C. is insolvent. A. pays 3007., and can then claim 1007. from B. If both B. and C. are solvent, A. may either claim 1007. from each, or may claim 2007. from B., leaving it to B. to proceed against C. for the remaining 1007.

326. If the guardians have conducted the administration separately, either as regards portions of the ward's property, or different places where the property is situate, one must again determine whether the division of administration has been made by private authority, or by authority or decree of the Judge or the testator. If the administration has been divided by private arrangement amongst the guardians, the ward may proceed against one of them in precisely the same manner as if the administration had been conducted jointly. In such a case, the guardians cannot claim the benefit of order or excussion. If the division of the administration has been made at the will of the testator or of a Judge, each guardian is held liable for the portion which he has separately administered, not for the portion administered by his co-guardian-unless he were negligent in claiming the removal of a suspected co-guardian, if it came within his province to claim such removal (27, 8 § 6).

The rules contained in the three foregoing sections (§§ 324, 325, 326) were acted upon by the Cape Supreme Court in Niekerk vs. Niekerk (1 M. 452). There certain children claimed from the defendant, one of their grandmother's executors, and one of the guardians of the said children while minors, their shares of the inheritance coming from their said grandmother. They sought to make defendant liable as having administered the estate along with the other executors and guardians. Defendant admitted his appointment as executor and guardian, but denied that he had administered the estate in such capacities, and claimed that the plaintiffs should first of all have recourse against the administering executors and guardians. The Court adopted the rules laid down by Voet (see § 324); held, that the least act of administration respecting the

estate of a minor renders the person who commits it an administering tutor, and deprives him of the benefit of claiming a previous excussion of the other administering tutor or tutors; and decided, that by making himself a party to and signing the liquidation account of the estate, the defendant must be deemed to have been an administering tutor. It was further held that, if the late administering guardian or any of the other two guardians were insolvent at the time when, by reason of their coming of age, the plaintiffs were entitled to have brought their actio tutelae against those guardians, the defendant could now be called upon to pay every deficiency which had been occasioned by the mal-administration of the estate, reserving to him his right of relief, pro ratâ, against his co-guardians who were solvent; but that, if any of the co-guardians who were solvent at the time of the expiry of the guardianship, consequent on the majority of the plaintiffs, had since become insolvent, the amount of their share of the deficiency must be deducted from the amount of the claim of the plaintiffs, and the loss which had thus been occasioned by the delay of the plaintiffs must fall on them, and not on the defendant, who, by the delay of the plaintiffs, had been prevented from operating his relief from the co-guardians who were solvent at the expiry of the guardianship, but had since become insolvent. The Court gave judgment for the plaintiffs, as claimed. See also In re Liesching (2 M. 329), and Brink vs. Smuts (3 M. 81).

327. There are cases where a co-tutor cannot even be held liable secondarily (in subsidium)—for instance, if a guardian, being possessed of means, suddenly becomes insolvent, when no blame can be imputed to the co-guardian; or if the co-guardian, who had to be called upon first of all, was able to pay at the time when action was instituted against him, and on account of delay ceased to be solvent (27, 8 § 7). § 41 of Ordinance 105, 1833, as we have seen, regulates the proceedings in case of insolvency of guardians in the Cape Colony. Similar proceedings are taken in the other South African Colonies.

328. Guardians are prohibited, in general, from alienating without judicial decree the immovable property of their wards, or such movable property as is capable of preservation and does not perish or deteriorate in value by effluxion of time, such as gold, silver, garments, gems, and other movables of value, like heirlooms and plate. The right to alienate a ward's movables without a judicial decree refers to such things as cannot be preserved by keeping, such as fruits and natural products, superfluous animals, worn-out clothes, and similar things which the guardian should alienate, unless he wants to cause loss to the ward. The alienation of such things may take place by private sale out of hand (27, 9 § 1).

See Grotius (1, 8, 6; Maasdorp, p. 26). Van der Keessel (§ 130) adopts the same rule, and lays down that guardians are incapable of alienating, not only