[TRYPHONINUS libro nono disputationum. ] §46.1.69.prTutor datus eius filio, cui ex fideiussoria causa obligatus erat, a semet ipso exigere debet, et quamuis tempore liberatus erit, tamen tutelae iudicio eo nomine tenebitur, item heres eius, quia cum eo ob tutelam, non ex fideiussione agitur.
[TRYPHONINUS in the ninth book of Disputations.] A person appointed tutor to the son of him to whom he was obligated as a guarantor ought to exact payment from himself; and although he will have been released by the lapse of time, he will nevertheless be held liable on that account under the action on guardianship, and likewise his heir, because the action brought against him is based on guardianship, not on the guaranty.
et quamuis non quasi fideiussor, sed quasi tutor soluerit, etiamsi tempore liberatus est, mandati actionem eum habere aduersus reum promittendi dixi.
And I have said that although he paid not as guarantor but as tutor, and even if he has been released by time, he has an action of mandate against the principal debtor.
haeret enim in utraque causa adhuc illius debiti persecutio, nam eius solutione liberauit reum promittendi obligatione, in quam pro eo fideiusserat, et non titulus actionis, sed debiti causa respicienda est.
For under both heads the recovery of that debt still persists, since by his payment he released the principal debtor from the obligation in which he had become guarantor for him, and we must look not to the title of the action but to the cause of the debt.
licet enim is tutor, qui fideiussor apud pupillum pro reo est obligatus, soluit se auctore pupillo, quia reo promittendi liberato et ipse tutor idemque fideiussor liberabitur, quod sua auctoritate efficere non potest, tamen et si non pro se soluendi animo, sed pro Titio fecit, ut maxime eum liberet, habebit cum eo mandati actionem.
For although a tutor who is bound to his ward as guarantor on behalf of a debtor pays with his own authorization on behalf of the ward—which he cannot effect by his own authorization, because if the principal debtor is released, the tutor himself, who is also the guarantor, will be released—nevertheless, even if he did so not with the intention of paying for himself but on behalf of Titius, in order especially to release him, he will have an action of mandate against him.