necessary, give security on the minor's behalf to abide the result of the action without judicial decree. In like manner he may sell, without judicial decree, a thing pledged to his ward for a debt (since landed property mortgaged cannot be sold without a decree). The same thing holds, if the father, or other person to whom a ward is heir, has pledged or mortgaged a thing or estate for a debt, or if the ward has given a similar pledge or mortgage (after obtaining judicial authority), and the tutor afterwards obtains a loan at the same or a lower rate of interest than that charged on the pledge or mortgage, and with the money so lent discharges such pledge or mortgage. Where the money has been borrowed at a higher rate of interest than was charged on the mortgage, and the mortgage is discharged, such loan will not be valid, unless there is a judicial decree. The sale of immovable property, which a minor has made without judicial decree and without his guardian's authority, will be valid, where the minor has conducted and represented himself as a major, and so deceived the purchaser (27, 9 § 13).

The terms of § 24 of the Cape Ordinance 105, 1833, are so imperative that one might be justified in holding that even where a minor represents himself to be a major, a sale of landed property cannot take place without a decree of the Court. There is no decision of any Court on the subject, and it would be safer to hold with Voet that in case of fraud the minor is bound by the sale, especially as, if this were not so, the onus of proving that the minor was of full age would be on the person who contracted with him.

339. Any alienations, which were null and void at the beginning, may be thereafter ratified, if the minor has attained the age of majority. Such ratification may take place even against the will of the adverse party, and may be express or tacit. A tacit ratification will be inferred if the ward, having attained majority, institutes an action of guardianship (actio tutelae) against the guardian (or a similar action against a curator), to recover the value or price of what was unlawfully sold (i.e., without judicial decree) during his minority. Such a ratification is entire, and cannot extend to one part of a transaction, while another part is neglected. If there has been ratification, the transaction may nevertheless be rescinded, if the former ward can show that there has been laesio enormis (though in Cape Colony, in terms of Act 8, 1879, § 8, relief on the

C.L.-VOL. I.

ground of laesio enormis is no longer obtainable). Ratification, according to Voet, is also implied where, since majority, the following terms have elapsed without an action brought by the former ward to set aside the transaction: (1) In the case of alienations with a burdensome title (ex oneroso titulo), five years; (2) in the case of alienations with a lucrative title (ex lucrativo titulo), ten years where the parties are present, twenty years where the parties are in different jurisdictions (27, 9 § 14).

The first case of prescription mentioned by Voet refers to alienations where the title is given for valuable consideration (onerosum) to the party acquiring from the ward; the second case refers to alienations without valuable consideration to the ward who alienates. It will be seen that the principle of law, that everything is to be construed in favour of minors, is followed in this matter as well, the term of prescription being much longer where the minor is in a less favourable position.

340. If a decree for an alienation has been made without hearing relatives or persons interested in the alienation of the ward's property, such relatives or interested persons may, before the sale, apply to the Court for such an order as may be deemed fit under the circumstances (27, 9 § 15).

See Grotius (1, 8, 6; Maasdorp, p. 26). Schorer (note 37) agrees with Voet that the relatives may obtain an interdict restraining the alienation. See also Dutch Consultations (part 1, No. 153).

341. Voet says that what has been laid down with regard to the alienation of minors' property applies to the property of churches, asylums founded for the benefit of orphans, and similar institutions, the persons having the administration of such property being quasitutors or curators (27,9 § 17. § 16 has been considered above, § 173). 342. Although there are many rules of law which apply to tutors and curators indiscriminately, there is this difference, that a tutor is generally regarded as appointed to the person, and a curator to the property, of the ward-although, in modern usage, guardians have jurisdiction over both persons and property. A guardian may be appointed to a minor even against the minor's will; but not a curator in Roman Law, except a curator ad litem, or a curator specially appointed to obtain an account of a guardian's administration. In modern law, however, there is no distinction (27, 10 §§ 1, 2).

343. Curators ad litem are not appointed so much by the Judge of the minor's domicile, as by the Judge of the Court before which the action, in which it is sought to make the minor a party, is brought. A curator ad litem cannot be compelled to give security rem pupilli salvam fore (27, 10 § 2).

See Van Zyl's Theory of the Judicial Practice (chap. 2, p. 17, ed. 1893; 2nd ed. p. 20, and the authorities there collected) on the appointment of a curator ad litem.

344. Curators are appointed to insane persons, and those who have not the proper control of their mental functions, since they cannot give their consent or apply their will to anything, have no mind of their own, and are not capable of committing wrong, so that they are, by a fiction of law, treated as persons who are absent, asleep, or dead. According to Roman-Dutch Law (although this is otherwise in South African practice), a judicial or magisterial decree is not necessary to declare a person of unsound mind. Everything done by a lunatic before the appointment of a curator, during lunacy, is ipso jure null and void; and, on the contrary, what is done by a lunatic during a lucid interval, or after his reason is finally restored to him, will hold good. A judicial decree is necessary for the appointment of a curator to a lunatic, in order that such a curator may interfere without risk in the administration of the lunatic's affairs (27, 10 § 3).

Curators to lunatics or prodigals are in all respects analogous to curators of the property of minors, and the subject is, therefore, treated of in this place. In the Cape Colony, the rights and duties of curators to lunatics are regulated by Act No. 1, 1897. § 34 of the Act provides for the appointment by the Court of curators over the property of persons declared lunatic. § 13 of the Act appoints the Attorney-General, Solicitor-General, and Crown Prosecutor of Griqualand West ex-officio curators ad litem of persons detained under the Act by magisterial or judicial order. By § 34, the ex-officio curator ad litem may apply for the appointment of a curator of the property, where no curator has been appointed, and the estimated value of the corpus of the lunatic's property does not exceed 5001., or the income therefrom 501. per annum. Where the lunatic is capable of managing himself, but not his property, a curator may be appointed to the property, not to the person (§ 35). The Court (§ 36) may dissolve a partnership where one partner has been declared a lunatic by the Court. A copy of the order appointing a curator over a lunatic must (§ 37) be lodged with the Master of the Supreme Court. The Master grants (§ 38) a certificate of appointment to such curator, who must file an inventory, just as in the case of the estate of a deceased person (§ 39). Curators are entitled to the same remuneration (§ 40)

as executors. If a lunatic dies intestate, or if he dies testate and there is no executor, or none willing to act, the curator of the lunatic (i.e., curator bonis) shall continue to administer the estate, and distribute the assets as if he had been appointed executor dative (§ 41). The Court may (§ 42) grant authority to the curator to (1) sell the lunatic's property; (2) exchange or make partition of such property; (3) carry on or discontinue the lunatic's business; (4) grant leases of the lunatic's property; (5) perform any contract relating to such property entered into, before the lunacy, by the lunatic; (6) exercise any power or consent to such exercise where it is for the lunatic's benefit; (7) raise money on mortgage of the lunatic's property to pay his debts, or expenses of past, present, or future maintenance; (8) apply money for maintenance or benefit of the lunatic; (9) make such reports to the Court or the Master as the Court may deem fit. The terms of the Cape Act are practically identical with those of the Transvaal Proc. No. 36, 1902. As to Natal, see Law No. 1, 1868.

345. A curator, where a lunatic has lucid intervals, has the administration of the lunatic's property only during actual insanity. It is left to the discretion of the Judge to decide whether things done by a lunatic, who sometimes has lucid intervals, were done during a period of insanity or not. If there is no trace of insanity in what has been done, but everything seems to have taken place in accordance with custom and ordinary care, the burden of proving that the act was done during insanity should be on the person contesting the validity of the act. If, on the other hand, there are any signs of insanity, or if the alleged lunatic did not transact everything necessary to the business in hand, signifying merely his assent to what was proposed by a simple affirmation or response, the presumption will be that such an act was done during lunacy (27, 10 § 4).

346. It is the duty of a curator, while insanity lasts, to defend and protect the lunatic by his (the curator's) discretion and labour, and to look after his property, in the same way as guardians are bound to do in relation to their wards (27, 10 § 5).

347. It is still customary in modern law to interdict from the administration of their property, and to appoint curators over, such persons as place no limit to their expenditure, on the petition of their parents or other near relations. After such interdict has been granted, persons declared prodigals cannot alienate any goods or bind themselves, without the authority of the curator-so that not even a surety intervening on behalf of persons declared prodigals is validly bound (unless the transaction be entered into by the curator),

just as if he had stood surety to a lunatic. There is, however, this difference between the acts of a lunatic and those of a prodigal, that the contracts of a lunatic are ipso jure null and void, in what manner soever they have been entered into, even before a curator has been appointed to the lunatic as such (in other words, the acts of a lunatic during insanity, even before a curator's appointment, are void); while the acts of a prodigal, who squanders his substance, before a curator has been appointed and a judicial interdict given, are valid. If a prodigal has been placed under curatorship, he cannot again have the control of his affairs, even if his conduct improves, unless he first of all obtains the sanction of the Judge, and a decree restoring to him the right to administer his own affairs. According to Voet, a judicial decree restraining a prodigal from control of his own affairs is not sufficient of itself. The decree must be made known by publication. In this he is followed by Grotius (1, 11, 4), and Van Leeuwen (Cens. For. 1, 1, 16, 28). Van der Keessel (§ 165), and Van der Linden (1, 5, 8; Juta, p. 42) are silent on the subject. Van Leeuwen says: "Curators are appointed to spendthrifts, upon cause shown, not by the pupillary magistrate [the Master], but by the Court of Holland or the ordinary Judge; and the appointment is publicly proclaimed, and also the interdict, in order that all may have notice." Van Leeuwen (1, 1, 16, 28) and Van der Keessel (§ 166) concur with Voet in holding that a prodigal must be discharged from curatorship by judicial decree. In the same manner as a minor, a prodigal may, by contracting, improve his condition, where he contracts without his curator's assent. A prodigal may A prodigal may adiate an inheritance with his curator's authority. The fact that a person has been declared a prodigal does not absolve him from liability for crime or tort. A testamentary appointment by a father of curators to his major children who are insane or prodigals will not be valid. The Court may appoint not only parents as curators to their children, but children also as curators to their parents. Voet holds that a wife may be appointed curator to her husband (27, 10 §§ 6-10).

In holding that a wife may be curator to her husband, Voet draws no distinction between person and property. Van der Keessel arbitrarily states (§ 168) that the Dutch Law does not allow of a married woman being appointed curator