3d, The guardian ought to appear in person in these suits, and not by attorney, L. 17. tit. 16. P. 6.; [L. 17. tit. 16. P. 6.;] and 4th, if he find himself prevented from doing so, he may name an attorney for a particular suit, which must be expressed in the power, the form [14] of which will be seen in L. 96. tit. 18. P. 3., [L. 96. tit. 18. P. 3.,] but always under the obligation of being subject to, or liable for the injury or damage which may result from this appointment, L. 96. tit. 18. P. 3. [L. 96. tit. 18. P. 3.] 5th, If sentence or final judgment be given against the guardian, in such suits, levy must not be made upon his property, but upon that of the minor, L. 17. tit. 16. P. 6. [L. 17. tit. 16. P. 6.] 6th, He ought to interpose his authority in the affairs and contracts of the minor; because otherwise the minor shall not be bound to the performance of the contract, or to those with whom he makes it, unless the obligation or covenant be beneficial to the minor, as laid down in L. 17. tit. 16. P. 6. [L. 17. tit. 16. P. 6.] 7th, He ought to provide for him education and instruction in those sciences or arts suited to his family, birth, and property, L. 16. tit. 16. P. 6. [L. 16. tit. 16. P. 6.] 8th, He ought to provide him with aliment from his personal property (caudales) according to the direction of the judge, leaving always the real property (finca") untouched; but when it is not fit to make known the state of his riches or poverty, the guardian may furnish it from his own means, and afterwards have recourse for remuneration to the property of the minor, L. 20. tit. 16. P. 6. [L. 20. tit. 16. P. 6.] 9th, He must provide him with a house or dwelling, which shall be the one that his father shall have pointed out in his will; and in case of no such direction, he shall be brought up in the house of his mother;" but should the minor have no mother, or should she marry a second time, he must be brought up in the house which the judge shall determine upon, who must take care of the minor, and attend to his welfare; but by no means shall he be brought up in the house of the person who may inherit the property of the minor, L. 19. tit. 16. P. 6. [L. 19. tit. 16. P. 6.]

The second obligation, which relates to the care of the property of the minor, is comprehended under the following rules: 1st, That the guardian cannot alienate or dispose of any of the moveable goods or chattles (muebles)" of the ward without the permission of the judge

I have translated "caudales" personal property, and "finca" real property; but I apprehend the meaning of the text, as gathered from L. 20. tit. 16. P. 6. is, that the interest of money, before the capital and personal property, such as money, and the rents or produce of real estate, shall be applied for the purposes mentioned, before recourse is had to the real property of the minor.

Being of good fame. Vide L. 19. tit. 16. P. 6.

7i. e. Personal property. The text makes use of "muebles," but the law quoted uses the word "cosas," which implies property in general, without distinction; whereas "muebles," in its fullest sense, only comprehends all sorts of personal property. Greg. Lop. Gl. 2. L. 4. tit. 5. P. 5. seems to think, that personal property is not understood by this law; and he appears to be supported in this opinion, from what may be inferred from L. 14. tit. 11. P. 4. ad fin. "mas si quisiesse dar la dote de las cosas muebles," &c. Vide also L. 18. tit. 16. P. 6. Since this was written, the possession of the edition of the text by Palacios, enables me to add, that the guardian may dispose of the personalty (cosas

of his domicile, which shall not be granted without cognisance of the cause of such alienation or sale, and of its utility to the minor, L. 4. tit. 5. P. 5. [L. 4. tit. 5. P. 5.]; however he may make such sale without the knowledge of the judge, when it is done for the purpose of providing a marriage portion (dote) for a female ward, L, 14. tit. 11. P. 4. [L. 14. tit. 11. P. 4.] 2d, Much less can he dispose of the real property of the minor, unless it be to enable him to pay debts due by the father, or to marry the brother of the minor; but then he must obtain the approbation of the judge for the purpose, L. 18. tit. 6. P. 6. and L. 14. tit. 11. P. 4. [L. 18. tit. 6. P. 6. and L. 14. tit. 11. P. 4.] 3d, And even in these cases, which furnish just causes for the alienation of the real property, the judge shall not consent to the sale of the house [ 15 ] of the father or grandfather of the minor10 in which it appears he was born, unless it cannot be possibly avoided, L. 18. tit. 16. P. 6. [L. 18. tit. 16. P. 6.] 4th, Neither can the guardian mortgage or pledge the real property without the authority of the judge, but he may the personal" provided manifest advantage result therefrom to the minor; for which purpose he may12 lay out the money so taken or borrowed on mortgage or pledge for the minor's profit and gain, L. 8. tit. 13. P. 5. [L. 8. tit. 13. P. 5.] 5th, That the guardian cannot purchase any thing belonging to the minor without the express permission of the judge13 and the consent of his co-guardians, L. 23. tit. 11. lib. 5. Rec. L. 4. tit. 5. P. 5. [L. 1. tit. 12. lib. 10. Nov. Rec.]; and even in this case it must be for the manifest advantage and utility of the minor, for if it be not, the minor has his remedy of restitution against the injury, the demand for which he must make judicially within four years after coming of age, L. 4. tit. 5. P. 5. [L. 4. tit. 5. P. 5.] 6th, But notwithstanding the guardian may, of his own authority, incur all necessary expenses; which the law allows, such as for the payment of schoolmasters, debts, marriage portions (dotes), &c., for the repayment of which all the property of the minor remains

muebles) not of a precious kind, without the anthority of the judge, according to the more commonly received opinion.

8 Palacios (2) observes, that what L. 14. tit. 11. P. 4. cited, says, is, that a femme coverte under 25 years of age, may assign to her husband, with the authority of her curator (dote), out of her personal property; but that she cannot out of her real property, without the authority of the judge. He adds, that without the knowledge and consent of the judge, and without cognisance of the cause, the guardian cannot alienate the property of his ward, neither for the purpose of giving a marriage portion, (de dotar) to his female ward, or her sister, nor for any other purpose; and he refers to L. 18. tit. 16. P. 6. and others.

9 The sister of the minor, or the minor himself, and for other necessary, just, or lawful reason. Vide L. 18. tit. 16. P. 6., quoted in the text.

10 Nor the old servants of ditto. Vide the law quoted, L. 18. tit. 16. P. 6. ad fin. 11 It is the opinion of Palacios (4) that L. 8. tit. 13. P. 5. must be understood only to mean such personal property as is not precious or valuable.

12 Palacios observes, that it would be more correct to say, "ought to lay out or invest," inasmuch as L. 8. tit. 13. P. 5., cited in the text, directs it to be done.

13 L. 1. tit. 12. lib. 10. Nov. Rec. (L. 23. tit. 11. lib. 5. Rec.) makes no such exception; and see Azevedo on this law. N. 5. and 6.

and dare not, for such reason, attempt to perform the duty, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 5th, The person above seventy years of age, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] But these exemptions do not belong to the person paying tax (pechero) to the king, as observed by L. 12. tit. 14.; [L. 12. tit. 14.]; L. 6. Rec.1 [Lib. Rec.]

Lastly, those entitled to voluntary excuses by reason of delicacy, or courtesy, (honestidad), are, 1st, He who has entertained capital. enmity towards the father of the minor, or was his actual enemy, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, He who has or expects to have a law suit with the minor, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, The husband appointed guardian of the property of his minor wife, because, to avoid all suspicion with respect to himself, he ought to pray for the appointment, by the judge, of another guardian,2 L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.]

Necessary excuses are those for which a person appointed guardian cannot, although he might wish it, take upon himself the [ 18 ] charge of the administration, and are referred to in Title II.

§ 2. The guardians who wish to be excused from the burthen, ought to set forth their claim before a competent judge, for which purpose it is necessary, 1st, That a petition be presented within fifty days after the party knew of his appointment. 2d, That this process be instituted in the tribunal of the judge of the place in which the guardian resides who claims to be excused. 3d, That if he should be absent at a distance of more than 100 miles, he shall be allowed a day for every twenty miles of such excess, in addition to the thirty days which he is entitled to by reason of the 100 miles, in order to come to allege his excuse. 4th, That within four months3 the suit to determine the validity of the allegation of excuse shall be concluded. 5th, That if the party claiming to be excused shall feel himself aggrieved by the sentence of the judge, he may appeal to the superior court, L. 4. tit. 17. P. 6. [L. 4. tit. 17. P. 6.]

Cap. 2. Guardianship and curatorship end in many ways. 1st, By the age of the ward, which is fourteen in males, and twelve in females, as is inferred from the definition of guardianship and curatorship, L. 21. tit. 16. P. 6.; [L. 21. tit. 16. P. 6.]; and thus curatorship is terminated at twenty-five years. 2d, By the death or banishment of the guardian or ward, L. 21. tit. 16. P. 6. [L. 21. tit. 16. P. 6.] 3d, By the fulfilment or completion of the condition and time, which is peculiar to testamentary guardianship; because, as we have before

1 Omitted in Novisima Rec.--See Nota, p. 26. Table of Laws in Novisima Rec. edit. 1805; also L. 21. tit. 14.; lib. 6. Rec.; or L. 12. tit. 18. lib. 6. Nov. Rec.

2 But it should be remembered, that by the last law (14) of tit. 1. lib. 5. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.] a married man, who has attained 18 years of age, may admin. ister his own property, and that of his wife, without the necessity of praying for, nor of obtaining royal license (venia) for the purpose. Palacios (1).

3 To be counted from the day on which the fifty days began to run.

P. 6. Palacios (3).

L. 4. tit. 17.

That is, with respect to the first, when guardianship or tutelage ends, then curatorship begins.

TITLE IV.

OF THE EXCUSES OR EXEMPTIONS (EXCUSAS) OF GUARDIANS AND CURATORS, AND OF THE COMPLETION OF GUARDIANSHIP AND CURATORSHIP.

CAP. 1. As a guardian or curator appointed by either of the beforementioned ways may renounce or refuse this appointment, alleging in due time before the judge the excuse or cause, it is considered or determined that his office is personal and public, because the same things which generally excuse or exempt from a public personal office, also exempt from guardianship. Excuse or exemption is to show judicially some lawful reason for which one who is appointed guardian of any minor is not obliged to undertake the guardianship of his person or property, L. 1. tit. 17. P. 6. [L. 1. tit. 17. P. 6.]

§ 1. The excuses are either voluntary or necessary. Voluntary excuses are judicially admitted by reason of privilege, of inability, (impotencia) or of delicacy, (honestidad.) By reason of privilege [17] are excused, 1st, Those who have five lawful and natural sons born alive, although they may have lost some of them in war in the service of the king, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, Collectors of the royal rents, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, Ambassadors, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 4th, Judges actually employed, (en actual residencia), L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] Which four excuses are only admitted if proved before entering on the guardianship, but do not avail after, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 5th, Professors of grammar, rhetoric, logic, and medicine, if they are in the actual exercise of their callings in their country, or if out of it by royal command or permission, L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.] 6th, Doctors of law who are judges or counsellors; professors of philosophy and knights who are about the court of the king, L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.] 7th, He that is absent or abroad by order of the king, being appointed guardian provisionally by the judge; but after he returns to his country, the charge of guardianship again devolves to him, and he cannot be appointed to another guardianship within a year, unless by his own consent, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.]

Those who are exempted from the office of guardians by reason of inability or incapacity, are, 1st, He who is already burthened with three guardianships, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, The poor person (pordiosero) who only subsists upon what he obtains or earns daily, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, He who is continually sick and unable to attend to his own affairs, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 4th, He who can neither read nor write,

and dare not, for such reason, attempt to perform the duty, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 5th, The person above seventy years of age, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] But these exemptions do not belong to the person paying tax (pechero) to the king, as observed by L. 12. tit. 14.; [L. 12. tit. 14.]; L. 6. Rec.' [Lib. Rec.]

Lastly, those entitled to voluntary excuses by reason of delicacy, or courtesy, (honestidad), are, 1st, He who has entertained capital enmity towards the father of the minor, or was his actual enemy, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, He who has or expects to have a law suit with the minor, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, The husband appointed guardian of the property of his minor wife, because, to avoid all suspicion with respect to himself, he ought to pray for the appointment, by the judge, of another guardian, L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.]

Necessary excuses are those for which a person appointed guardian cannot, although he might wish it, take upon himself the [ 18 ] charge of the administration, and are referred to in Title II.

§ 2. The guardians who wish to be excused from the burthen, ought to set forth their claim before a competent judge, for which purpose it is necessary, 1st, That a petition be presented within fifty days after the party knew of his appointment. 2d, That this process be instituted in the tribunal of the judge of the place in which the guardian resides who claims to be excused. 3d, That if he should be absent at a distance of more than 100 miles, he shall be allowed a day for every twenty miles of such excess, in addition to the thirty days which he is entitled to by reason of the 100 miles, in order to come to allege his excuse. 4th, That within four months3 the suit to determine the validity of the allegation of excuse shall be concluded. 5th, That if the party claiming to be excused shall feel himself aggrieved by the sentence of the judge, he may appeal to the superior court, L. 4. tit. 17. P. 6. [L. 4. tit. 17. P. 6.]

Cap. 2. Guardianship and curatorship end in many ways. 1st, By the age of the ward, which is fourteen in males, and twelve in females, as is inferred from the definition of guardianship and curatorship, L. 21. tit. 16. P. 6.; [L. 21. tit. 16. P. 6.]; and thus curatorship is terminated at twenty-five years. 2d, By the death or banishment of the guardian or ward, L. 21. tit. 16. P. 6. [L. 21. tit. 16. P. 6.] 3d, By the fulfilment or completion of the condition and time, which is peculiar to testamentary guardianship; because, as we have before

Omitted in Novisima Rec.--See Nota, p. 26. Table of Laws in Novisima Rec. edit. 1805; also L. 21. tit. 14.; lib. 6. Rec.; or L. 12. tit. 18. lib. 6. Nov. Rec.

2 But it should be remembered, that by the last law (14) of tit. 1. lib. 5. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.] a married man, who has attained 18 years of age, may admin. ister his own property, and that of his wife, without the necessity of praying for, nor of obtaining royal license (venia) for the purpose. Palacios (1).

To be counted from the day on which the fifty days began to run. L. 4. tit. 17. P. 6. Palacios (3).

That is, with respect to the first, when guardianship or tutelage ends, then curatorship begins.