peret, mandati eum non acturum Papinianus libro tertio responsorum scribit, quia de mutua pecunia eum habet obligatum: et ideo usuras eum petere non posse quasi ex causa mandati, si in stipulationem deductae non sunt. (5.) Idem Papinianus libro eodem refert fideiussori condemnato, qui ideo fideiussit, quia dominus procuratori mandauerat ut pecuniam mutuam acciperet, utilem actionem dandam quasi institoriam, quia et hic quasi praeposuisse eum mutuae pecuniae accipiendae uideatur. (6.) Si cui mandauero, ut a Titio stipuletur, potero cum eo cui mandaui agere mandati, ut eum accepto liberet, si hoc uelim: uel, si malim, in hoc agam, ut eum deleget mihi uel si cui alii missioned Titius to borrow money from his own (the mandator's) managing slaves, he cannot proceed ex mandato; because he holds Titius bound for money lent; and therefore he cannot claim interest as though the transaction were mandate, unless the interest was secured by stipulation'. 5. Papinian also states in the same book that an utilis actio, analogous to the actio institoria, must be granted to a surety who has had to pay damages in a case where he made himself surety in the matter of a principal authorizing an agent to receive a loan; for in such a case the principal seems to have made the agent a kind of manager in the business of borrowing money. 6. If I have commissioned any one to make a stipulation with Titius, I can bring an action of mandate against my mandatarius to set Titius free by acceptilation, if that is my wish; or if I prefer it, I may bring an action to make him delegate Titius to me or

1 If Titius had been commissioned to borrow from a stranger, there would have been a mandate for the joint benefit of Titius and the stranger, and the mandator would have been liable to either of them for loss sustained. Now in all bonae fidei contracts, such as mandate, interest is due for delay of payment or performance; so that the stranger could claim interest from the mandator, and the latter could in his turn demand reimbursement from Titius, or could claim from Titius in the first instance because of his own liability to the stranger. But in the case suggested in the text, the mandator cannot be liable to

the actor, the latter being his own slave; and therefore has no claim on Titius; in fact from the outset the loan is in law regarded as coming from the mandator himself; he is the sole creditor of Titius for a mutuum, and the proceedings to recover mutuum being stricti juris, interest is not allowed. See Introduction, p. 4. (I. 3.)

2 The utilis institoria is granted to a procurator, and therefore to the surety who has paid on behalf of a procurator; for on making payment he has a right to the actions belonging to the procurator. C. 4. 25. 5. D. 14. 3. 19.

uoluero. et Papinianus libro eodem scribit, si mater pro filia dotem dederit eamque mandante filia uel illico stipulata sit uel etiam postea, mandati eam teneri, quamuis ipsa sit quae dotem dederit. (7.) Si quis ea, quae procurator suus et serui gerebant, ita demum rata esse mandauit, si interuentu Sempronii gesta essent, et male pecunia credita sit, Sempronium, qui nihil dolo fecit, non teneri. et est uerum eum, qui non animo procuratoris interuenit, sed affectionem amicalem promisit in monendis procuratoribus et actoribus et in regendis consilio, mandati non teneri, sed si quid dolo fecerit, non mandati, sed magis de dolo teneri. (8.) Si mandauero procuratori meo, ut Titio pecuniam meam credat sine usuris, isque non sine usuris crediderit, an etiam usuras mihi restituere debeat, uideamus. et Labeo scribit restituere eum oportere, etiamsi hoc mandauerim, ut gratuitam pecuniam daret, quamto any other person I please'. And Papinian states in the same book, that if a mother has given a marriage-portion on her daughter's behalf, and on the daughter's mandate has stipulated for its return either at once or subsequently, she is liable for mandate although she was herself the giver of the portion. 7. If a man has directed that the acts of his agent and his agent's slaves shall stand good only if done with the approval of Sempronius, and money has been lent on bad security, Sempronius, if guiltless of fraud, is not liable. And it is good law that any one who has interfered without the intention of becoming an agent, and has merely promised his good offices in advising agents or managing-slaves and in directing them by his counsel, is not liable for mandate; and even if he does anything fraudulently, he is not responsible in an actio mandati but rather in one de dolo. 8. If I have directed my agent to lend my money to Titius without interest, and he has lent it not without interest, let us consider whether he ought to account to me for the interest also. Labeo says that he ought to account for it, even if my mandate was that he should lend

1 These rights belong to a stipulator, therefore the mandatarius is bound to cede them to his mandator, or use them as his mandator directs. See Introduction, p. 5. (III. 4.)

2 We must suppose that the husband gives occasion for a divorce, and that the wife thereupon directs

her mother to stipulate for the return of the dos. When it has been repaid, the daughter can sue the mother for it ex mandato, although the money was originally the mother's; for on a divorce the dos belongs to the wife. Ulp. Reg. vi. 6.

uis, si periculo suo credidisset, cessaret, inquit Labeo, in usuris actio mandati. (9.) Idem Labeo ait, et uerum est, reputationes quoque hoc iudicium admittere et, sicuti fructus cogitur restituere is qui procurat, ita sumptum, quem in fructus percipiendos fecit, deducere eum oportet: sed et si ad uecturas suas, dum excurrit in praedia, sumptum fecit, puto hos quoque sumptus reputare eum oportere, nisi si salariarius fuit et hoc conuenit, ut sumptus de suo faceret ad haec itinera, hoc est de salario. (10.) Idem ait, si quid procurator citra mandatum in uoluptatem fecit, permittendum ei auferre, quod sine damno domini fiat, nisi rationem sumptus istius dominus admittit. (11.) Fideiussores et mandatores et si sine iudicio soluerint, habent actionem mandati. (12.) Generaliter Iulianus ait, si fideiussor ex sua persona omiserit exceptionem, qua reus uti non potuit, si quidem minus honestam, habere eum mandati

gratuitously: although, says Labeo, there would be no action of mandate with reference to the interest, if he lent at his own risk'. 9. Labeo also says, and with truth, that in this action counter-claims are allowed; and just as the agent is bound to account for fruits, so is it right for him to deduct the expenses incurred in getting them in. Moreover, if he has been put to expenses for his conveyance whilst visiting the land, I think he ought also to set off these expenses, unless he is salaried and there has been an agreement that he shall pay these charges out of his own pocket, that is to say out of his salary. 10. He also says, if an agent has erected anything for mere ornament 2 in excess of his mandate, he must be allowed to remove it, so far as he can do this without damage to his principal, unless the principal makes him an allowance for the expenditure. II. Sureties and mandators, even if they pay without waiting to be sued, have an action of mandate. 12. Julian states generally that if a surety has failed to use on his own behalf an exception which his principal could not have used, supposing that exception to be a dishonourable one, he has the action

actionem: quod si eam, qua reus uti potuit, si sciens id fecit, non habiturum mandati actionem, si modo habuit facultatem rei conueniendi desiderandique, ut ipse susciperet potius iudicium uel suo uel procuratorio nomine. (13.) Si fideiussori donationis causa acceptum factum sit a creditorė, puto, si fideiussorem remunerare uoluit creditor, habere eum mandati actionem: multo magis, si mortis causa accepto tulisset creditor uel si eam liberationem legauit.

11.

POMPONIUS libro tertio ex Plautio. Si ei, cui damnatus

of mandate: but that if he failed to use an exception which his principal could have used', and did this knowingly, he will not have the action of mandate, provided only he was able to apply to his principal and require him to defend the suit himself either on his own account or on his agent's'. 13. When a creditor has given to the surety (of his debtor) an acquittance as a present, I think that if the creditor wished to reward the surety, the latter has an action of mandate. Still more is this the case if the creditor gave the acquittance by way of donation mortis causa or left it to him as a legacy3.

11. Pomponius. If I subsequently become heir to a man

1 Which his principal could have used honourably or dishonourably; but which he himself could not use honourably. Taking advantage of the edict quod quisque juris" is an example of the kind of exception meant. See my edition of Julian's Edict, p. 35.

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2 Though the agent could not honourably employ a certain defence, yet honour did not prohibit him, but rather required him, to notify this fact to his principal.

3 If the surety in return for the acquittance gives up any right, great or small, civil or natural, then, as the actio mandati is bonae fidei and not stricti juris, he can lay his plaint that he is out of pocket to that extent. Probably the reward mentioned in the text is one due in honour, but not enforceable at law:

ex causa fideiussoria fueram, heres postea extitero, habebo mandati actionem.

12. ULPIANUS libro trigensimo primo ad edictum. Si uero non remunerandi causa, sed principaliter donando fideiussori remisit actionem, mandati eum non acturum.

(1.) Marcellus autem fatetur, si quis donaturus fideiussori pro eo soluerit creditori, habere fideiussorem mandati actionem. (2.) Plane, inquit, si filius familias uel seruus fuit fideiussor et pro his soluero donaturus eis, mandati patrem uel dominum non acturos, hoc ideo, quia non patri donatum uoluit. (3.) Plane si seruus fide

to whom I have had to pay damages as a surety, I shall still have the action of mandate.

12. Ulpian. But if he abandoned his right of action to the surety with no purpose of rewarding him, but simply as a gift, then the surety cannot proceed ex mandato'. 1. Marcellus however admits that the surety has an action of mandate when any one, with intent to benefit him, pays the creditor on his behalf". 2. But clearly, says he, if the surety was a filius familias or a slave, and I pay on his behalf with the intent of conferring on him a gift, the father or master will not have the action of mandate, for the reason that the payer did not intend a gift to the father3. 3. It is obvious, says the same Marcellus

1 This paragraph is to be read in connection with 10. 13, the excerpt from Pomponius being so inserted as to break the continuity of Ulpian's remarks. The surety in the case here suggested gives no consideration for the acquittance, and therefore it cannot be said that "pecunia ei abest."

2 It is the same as if a present had been made to the surety in money, and he had used the money to pay the debt.

It is clear that the stranger who pays on behalf of the son or slave confers on them a benefit: for if they had to fulfil their engagement, their peculium would be diminished, and though the father or master could recover the amount by actio mandati, there is no rule compelling him to replace the money in their

peculium. But still the present paragraph is difficult of explanation. In § we are told that payment by a friend of the surety is by a fiction treated as payment by the surety himself, and in § 3 that payment by a slave is by another fiction treated as payment by the master. The latter, however, is scarcely a fiction. Bartolus and Gothofred, nevertheless, consider it to be one, and then proceed to lay down a rule that a double fiction, or fiction upon a fiction, is inadmissible; and in § 2 they say there would be a double fiction, if recovery were allowed by the father or master, viz. the fiction that the stranger's payment was made by the son, and the fiction that the action acquired by the son is acquired by the father. A simpler explanation is that though the law