62 THE LAW OF PERSONS removal of guardians on the ground of misconduct actual or anticipated ; (4) a tacit hypothec or legal mortgage upon the whole of the guardian's estate.^ The action rationibus distrahendis, ' for separation of accounts ', which was as old as the Twelve Tables,^ applied only to those who during their administration had carried ofE something from the ward's estate.^ It lay for twice the value of the thing taken. Voet seems to treat this remedy as still existing, but Groenewegen says that the penalty of double was disused.* In the Civil Law a subsidiary action lay in certain cases against the magistrates, when the ward had failed to obtain satisfaction from the guardian appointed by them.® Whether this action subsisted in the Roman- Dutch Law was much debated. Voet and others ® allowed it in case of fraud or gross negligence. But the Orphan Chamber, at aU events, was answerable for the moneys of minors committed to its keeping.' Removal With regard to the removal of guardians the Court, as diaM^'^ ^^^ upper guardian, has a wide judicial discretion,^ exer- cised usually OR the complaint of a co-guardian or near relatives of the ward.^ Incapacity, dishonesty, or insol- vency are the most frequent grotinds of removal. In South Africa the final order for sequestration or assign- ment of the guardian's estate ipso facto determines the office of tutor or curator.^" The Lastly, wards have a legal or tacit hypothec over the r^'t'h property of their tutors or curators in respect of debts pothec.
Cod. 5. 37. 20 (Constantine, a.d. 314). Dig. 26. 7. 55. 1.
' Dig. 27. 3. 2.
Groen. de leg. abr. ad Dig. 27. 3. 2. 2, and Cod. 9. 47 (rubric). Inst. 1. 24. 2.
" Van Leeuwen, 1. 16. 4, and Decker's note ; Cens. For. 1. 1. 17. 4 ; Voet, 27. 8. 5 ; Groen. de leg. abr. ad Inst. 1. 24. 4 ; Vinnius, ibid. ' Decker ad Van Leeuwen, 1. 16. 4. « Voet, 26. 10. 2. » Gr. 1. 10. 4. " Administration of Estates Act, 1913, sec. 84 ; and see sees. 32 and 73. But semhle, it was not so by the common law. See De VilUers
V. Stuckeris (1829) 1 Menz. 377.
