1Ulpianus, On the Edict, Book IX. An agent is one who transacts the business of another by the direction of his principal. 1An agent may be appointed to transact business generally, or one thing in particular; he may also be appointed in the presence of his principal, by a messenger, or by a letter, although some authorities (as Pomponius states in the Twenty-Fourth Book) think that anyone who undertakes the management of a single matter, is not an agent, just as a man is not properly styled an agent who undertakes to carry an article, or a letter, or a message; but the better opinion is that a party is an agent who is appointed to attend to only one transaction. 2The employment of agents is absolutely necessary, in order that those who are either unwilling, or unable to attend to their own affairs, may sue or be sued by means of others. 3An agent can be appointed even when he is absent;

2Paulus, On the Edict, Book VIII. Provided that the person who is appointed is known, and consents to his appointment. 1An insane person is not to be considered as absent, because he is deficient in intellect, and cannot ratify his appointment.

3Ulpianus, On the Edict, Book IX. An agent can also be appointed in a case which is not yet begun, or for future time, or under a condition, and also until a certain day.

4Paulus, On the Edict, Book VIII. And for an indefinite time.

5Ulpianus, On the Edict, Book VII. A .... is considered to be present who at the time is in his garden; ....

6Paulus, On the Edict, Book VI. And also one who is in the Forum, in the city, and where the buildings are continuous.

7Ulpianus, On the Edict, Book VII. So that his agent is held to be present.

8The Same, On the Edict, Book VIII. The son of a family can appoint an agent for the purpose of bringing an action, where it is one that he himself could bring, not only where he has property of his own, but any son of a family can do so; as for instance, having suffered an injury, he can appoint an agent to bring an action for injury, if his father is not present and no agent of his father desires to try the case, and where an agent is appointed by the son of the family himself his act will be valid. Julianus carries this still further, for he says where the son of a family has a son who is under the control of the same person that he is, and an injury is done to him through his son, and his grandfather is not present, the father can appoint an agent to prosecute for the injury which the grandson of the absent party sustained. The son of a family can also appoint an agent for the purpose of conducting the defence of a case in court. The daughter of a family can also appoint an agent for the purpose of bringing an action for injury. Valerius Severus stated, that where the daughter joins with her father in the appointment of an agent, this is superfluous, since it is sufficient for the father to make the appointment with the consent of his daughter. I am of the opinion, however, that if the father should happen to be absent, or is a man of suspicious character, (in both of which instances the daughter has a right to sue for her dowry), she can appoint an agent. The son of a family can also be appointed an agent for the purpose of bringing or defending an action. 1It is not customary for an agent to be appointed when he is unwilling. We must understand the term “unwilling” to mean not only where a party refuses, but also where he is not proved to have given his consent. 2Veteran soldiers can be appointed agents, but soldiers in active service cannot be appointed, even if the adversary consents; unless at the time that issue was joined this was overlooked through some accident, except in case the soldier was appointed in a matter in which he himself was interested; or where he appears as the representative of his company in the prosecution or defence, in which instance his appointment as agent is permitted. 3The Prætor says: “Where an agent has been appointed to defend a case, and, with his consent, his principal has agreed to pay the judgment, I will compel him to conduct the trial”. But he should not be compelled to do so under certain circumstances; as, for instance, where deadly enmity arises between the agent and the principal; as then Julianus says an action should not be permitted against the agent. The same rule applies where some high office has been conferred upon the agent, or where he is absent on business for the State;

9Gaius, On the Provincial Edict, Book III. Or if he alleges bad health, or a necessary journey.

10Ulpianus, On the Edict, Book VIII. Or where he is occupied with an estate which has descended to him, or where some other good reason exists. There is all the more reason for the agent not to be compelled to take charge of the case, if his principal is present.

11Paulus, On the Edict, Book VIII. If, however, the principal can be compelled to do so.

12Gaius, On the Provincial Edict, Book III. It is held that sometimes, even under these circumstances, an agent can be compelled to take charge of the case; as, for instance, where the principal is not present, and the plaintiff states that by further delay the property involved will be lost.

13Ulpianus, On the Edict, Book VIII. All these things should not indiscriminately be admitted or rejected, but should be settled by the Prætor after he has ascertained the facts.

14Paulus, On the Edict, Book VIII. If, after an agent has been appointed, deadly enmity arises between him and his principal, he cannot be compelled to take charge of the case, nor is a stipulation entered into to defend a case violated, as the conditions are different.

15Ulpianus, On the Edict, Book VIII. If the principal should die before issue is joined, and after a stipulation has been made by him that the judgment will be paid by the agent, the latter can be compelled to take charge of the case, provided, however, the principal entered into it with the knowledge of the agent; because, otherwise, it would be contrary to the rules of law for the agent to be bound for an act of which he had no knowledge; an action can, however, be brought under the terms of the stipulation because the suit was not defended. 1Where an agent is appointed for conducting a case for the partition of property, he is also held to be appointed for the purpose of defence, and a double bond must be furnished.

16Paulus, On the Edict, Book VIII. Before issue is joined, the principal has full power either to change the agent, or to take charge of the case himself.

17Ulpianus, On the Edict, Book IX. After issue has been joined, if the defendant has appointed an agent, he can either change him, or transfer the conduct of the case to himself, while the agent is still living, or residing in the city; but cause for this must first be shown. 1This is permitted, not only to the party who appointed the agent, but also to his heir and other successors. 2In making an investigation for cause, not only the matters that we mentioned above which do not compel an agent to take charge of a case, must be considered, but also his age;

18Modestinus, Pandects, Book X. Or any privilege of a religious character.

19Ulpianus, On the Edict, Book IX. If the agent is a suspicious person, or in prison, or in the power of the enemy, or of robbers:

20Paulus, On the Edict, Book VIII. Or if he is prevented by a criminal or a civil action, by ill health, or by important affairs of his own;

21Gaius, On the Provincial Edict, Book III. Or if he has been banished, or is concealed, or subsequently becomes the enemy of the principal;

22Paulus, On the Edict, Book VIII. Or if he is connected with his adversary by marriage, or becomes his heir;

23Ulpianus, On the Edict, Book IX. Or if a long journey, or some other similar matters prevent him;

24Paulus, On the Edict, Book VIII. Under such circumstances the agent ought to be changed, even at his own request.

25Ulpianus, On the Edict, Book IX. All these things should be observed, not only on the part of the defendant, but also with respect to the plaintiff. If the adverse party, or the agent himself, alleges that the principal is lying, this must be settled by the Prætor; for he is not to be tolerated as an agent who asserts his own right to be one, for he becomes liable to suspicion, by the fact that he is forcing his service upon an unwilling principal; unless, perhaps, he undertook the agency rather to justify himself than to merely carry it on, and he should be heard if he alleges: “That he is willing to surrender the agency if this can be done without injury to his reputation”. Moreover, he must be heard if he attempts to clear his character. If he states plainly that he was appointed agent in a matter in which he himself was interested, and proves this, he ought not to be deprived of the right of instituting proceedings in his own behalf. Again, if an agent desires to make use of some reservation, it will not be easy to deprive him of the right of action;

26Paulus, On the Edict, Book VIII. Unless the principal is ready to pay him.

27Ulpianus, On the Edict, Book IX. In the trial of the action, care must be taken not to permit the agent to be deprived of the conduct of the case, unless, the party is ready to deprive him of the whole of it; for if he wishes to take away only a portion and leave the remainder, the agent can justly refuse to accept this arrangement. This happens where an agent acts under the direction of a principal, but where no direction is given, and nothing is proposed in court, and you have not approved acts performed without your consent, they do not prejudice you; and therefore the transfer of the case to yourself is not necessary lest you may be oppressed by the acts of another party. Application for the change of an agent must be made before the Prætor. 1When a transfer of the case is made on the part of the plaintiff, we hold that a stipulation made by the defendant that he will comply with the judgment, is valid; and this opinion is adopted by Neratius and Julianus, and we still make use of this rule, provided the principal has accepted the security. But where the agent has accepted it, and the conduct of the case has been transferred to the principal, it is the better opinion that it is valid, and that the right of action under the stipulation is transferred from the agent to the principal. But where it is transferred from the principal, or from the agent to another agent, Marcellus has no doubt that the stipulation is valid; and this is the better opinion, and even though the right of action under the stipulation may have vested in the agent, still, an action on the same should be granted the principal, the direct right of action having been extinguished.

28The Same, Disputations, Book I. Where my agent has accepted a bond for compliance with the judgment, I am entitled to an equitable action on the stipulation, just as one to. enforce judgment is given me. If my agent, by virtue of that stipulation, has brought suit without by consent, nevertheless, a right of action on the stipulation is granted me; hence it follows that my agent can be barred by an exception for bringing suit on the stipulation in the same way that he can when he brings suit on the judgment, where he has not been appointed in a matter in which he is himself interested, or empowered as agent for that very purpose. On the other hand, however, if my agent has given security to comply with the judgment, no action on the stipulation will be granted against me. If the party charged with my defence gives security, an action on the stipulation is not granted against me, because suit cannot be brought against me on the judgment.

29The Same, On the Edict, Book IX. If the plaintiff prefers to bring suit against the principal rather than against the person who is appointed agent in his own behalf, it must be said that he can do so.

30Paulus, Sentences, Book I. The agent of a plaintiff who has not been appointed in his own behalf, may ask that the expenses which he has incurred during the trial be paid out of the judgment, if the principal in the action is not solvent.

31Ulpianus, On the Edict, Book IX. Where anyone who has lost a case in which he appeared as agent becomes the heir of the principal, he cannot lawfully deny his liability on the judgment; and this happens where he is the heir to the entire estate. If, however, he becomes heir to only a share of the estate, and pays the entire amount, provided he was directed to pay it all, he would be entitled to an action of mandate against his co-heir; but if he was not directed to do so, a right of action on business transacted is granted him. This rule also applies if the agent pays and should not become an heir. 1It is not forbidden to appoint several agents in a case where several parties are interested. 2Julianus says that where a party has appointed two agents at different times, he is considered to have rescinded the appointment of the first by the appointment of the second.

32Paulus, On the Edict, Book VIII. Where several agents have been appointed at the same time for one purpose, he who acts first takes precedence; so that he who comes after cannot act as agent in a case which the former one has brought.

33Ulpianus, On the Edict, Book IX. It is said that a slave and the son of a family can both have an agent, and, so far as this applies to the son of a family it is correct; but, with respect to the slave, we dispute it. We admit, however, that a party can transact business relating to the peculium of a slave, and, in this instance, act as his agent; which opinion is also held by Labeo, but he is forbidden to bring suit. 1There is no doubt that he can have an agent to bring suit to establish his condition, not only for the administration of his property, but also to conduct actions either for or against him, whether they involve his possession as a slave, or his status as a freeman. On the other hand, it is clear that he can be appointed an agent. 2It is for the public welfare that absent persons should be defended by someone, and defences are also granted in capital cases. Therefore, whenever a party can be condemned while absent, it is but just that someone should be heard who will maintain his innocence, and speak in his favor; and this is customary, as appears from a Rescript of our Emperor. 3The Prætor says, “Where anyone asks that he be granted the right to bring an action in the name of another, he must defend him in accordance with the judgment of a good citizen, and he must furnish security to the person against whom he brings suit in the name of another that the party interested will ratify his acts”. 4It is held by the Prætor to be only just that he who acts as agent in behalf of another, should also undertake the same party’s defence. 5Where anyone appears as agent in a matter in which he is interested, it is still the rule that he should defend his principal, unless where the latter was compelled to appoint him.

34Gaius, On the Provincial Edict, Book III. Where anyone brings suit as agent in his own behalf, as, for instance, as the purchaser of an estate; ought he, on the other hand, to defend the vendor? It has been established that if the business was transacted in good faith, and not to defraud those who might wish to bring suit against the vendor, he will not be obliged to defend him.

35Ulpianus, On the Edict, Book IX. However, the following persons acting as agents will be obliged to defend their principals, being such as are permitted to bring suit without a mandate, that is to say, children, provided they are under the control of others; parents, brothers, parties connected by affinity; and freedmen. 1A patron can, by means of an agent, accuse his freedman of being ungrateful, and the freedman can answer by an agent. 2Not only if the action is asked for by the agent, but also where he applies for a preliminary inquiry, or an interdict; or where he wishes to give security by a stipulation for the payment of legacies, or for the prevention of threatened injury; he will be obliged to defend his principal, while absent, in a competent court and in the same province. It would be a hardship, however, to be compelled to leave Rome and go into a province, or vice versa, or to go from one province to another, for the purpose of defending him. 3The term “defend” means to do whatever the principal would do in the conduct of a case, and to furnish proper security; and a harder condition should not be imposed upon an agent than upon his principal, except in giving security. With the exception of the security, an agent is held to undertake the defence when he assumes charge of the case. For which reason the question was asked by Julianus whether he can be compelled to do so, or whether it is sufficient, where no defence is offered, for an action to be brought on the stipulation; and Julianus says in the Third Book of the Digest, that he should be compelled to undertake the conduct of the case, unless he shows proper cause for refusing to act, or where he ought to be removed for some good reason. An agent also defends who permits what his principal would allow. An agent is held to conduct the defence even when he suffers the adverse party to take possession, where the latter demands security for the prevention of threatened injury, or for the payment of legacies,

36Paulus, On the Edict, Book VIII. Or where the notice of a new structure is given. If he permits a slave to be removed in a noxal case he is held to defend him provided, however, that in all these instances he furnishes security that his principal will ratify his acts.

37Ulpianus, On the Edict, Book IX. An agent must defend his principal in all kinds of actions, even in such as are not granted against an heir. 1The question arose, where an adversary brought several actions, and there were several defenders who were prepared to undertake the defence of the same, whether a party who is absent is held to be defended? Julianus says that he appears to be properly defended, and Pomponius states that this is now the practice.

38The Same, On the Edict, Book XL. However, we should not go to the extent of holding that if suit is brought for ten thousand aurei, and two defenders should appear ready to defend for five thousand each, they shall be heard.

39The Same, On the Edict, Book IX. An agent should defend his principal not only in actions, interdicts, and stipulations, but also with reference to interrogatories; so that, if he is interrogated in court, he may answer in every instance in which his principal could do so. Therefore, if he is asked whether the heir is absent, he must answer; and whether he answers or keeps silent, he will be liable. 1He who brings any kind of an action in behalf of another must furnish security that his principal in the case will ratify whatever is done. Sometimes, however, although the agent brings suit in his own name, he must still give security, that his acts will be ratified, as Pomponius states in the Twenty-Fourth Book; for instance, where the other party tendered an oath to the agent, and he swore that something was due to the principal; and, in this case, he acts in his own name on account of his oath, for this action could not be brought by the principal; nevertheless, the agent will be obliged to give security that it will be ratified. But where an agreement for something was made with the agent, and he brings suit on this ground, there is no doubt that there is good reason for requiring security for ratification; and this Pomponius stated to be the fact. 2Julianus raises the question as to whether the agent is obliged to give security that his principal alone will ratify his acts, or that the other creditors will likewise do so; and he says that security must only be given with reference to the principal; for in the words, “the party interested in the matter”, the creditors are not included; for an undertaking of this kind is not required of the principal himself. 3Where a father brings an action for the dowry of his daughter, he must give security that his daughter will ratify his act, and he must also defend her; as Marcellus stated. 4Where a father brings a suit for injury in the name of his son, as there may be two actions, one brought by the father, and one by the son, no bond for ratification is required. 5Where an agent contests the condition of anyone, whether the latter institutes proceedings against him as a slave, in order to obtain his freedom, or whether the agent brings suit to reduce to slavery a person who claims to be free, he must furnish security that his principal will ratify his act; and this is set forth in the Edict, so that, in either instance, he is considered as plaintiff. 6There is a case in which a party is obliged to give security for ratification as well as for compliance with the judgment in the same action; as, for instance, when application is made for complete restitution, where a minor is said to have been cheated in a sale, and the agent appears for the other party. In this case the agent must give security that his principal will ratify his act; as, otherwise, the principal, having returned, might wish to make some demands. Again, he must give security that he will comply with the judgment, so that if anything must be given to the minor on account of this restitution, it may be done. These things Pomponius mentioned in the Twenty-Fifth Book on the Edict. 7He also says that where a guardian is accused on account of being suspected, his defender must furnish security for ratification, far fear that the principal may return and attempt to set aside what has been done. It is not an easy matter to have anyone who is suspected accused by an agent, as the case involves reputation; unless it is clear that the agent has been specially appointed by a guardian; or, if the latter is absent, the Prætor is about to hear the case as if it was not defended.

40The Same, On the Edict, Book IX. Pomponius says that all kinds of actions cannot be brought by an agent. Hence, he states that an interdict cannot be applied for to remove children who are said to be under the control of some person who is absent, unless, as Julianus holds, proper cause is shown; that is to say, if he has been expressly directed to do this; and the father is prevented by ill health, or for some other good reason. 1Where an agent demands security for the prevention of threatened injury, or for the payment of legacies, he must himself give a bond for ratification. 2Also he who is acting as defender, and against whom a real action is brought, must, in addition to the ordinary security to comply with the judgment, also execute an undertaking for ratification; for, indeed, if the party whose defender appears comes forward and claims the land after it had been declared to be mine by the judgment, will it not seem that he had not ratified it? In fact, if there had been a general agent, or the party himself had conducted his own case, and been defeated, and then brought suit against me to recover the property; would he be barred by an exception on the ground of res judicata?” This Julianus stated in the Twentieth Book of the Digest, for when property was decided to be mine, it was decided the same time that it was not his. 3A bond for ratification is also required from an agent before issue is joined, since, after this has been done, he cannot be compelled to furnish it. 4With regard to those persons of whom we do not require a mandate, it must be held that if it is evident that they are bringing suit against the wishes of those for whom they appear, their applications should be rejected. Therefore, we do not require them to prove that they have consent, or a mandate, but merely that they are not acting against the will of their principal, even though they may offer a bond for ratification.

41Paulus, On the Edict, Book IX. Women are permitted to bring suit for their parents where proper cause is shown; for example, if their parents are prevented by disease, or by old age, and have no one to represent them.

42The Same, On the Edict, Book VIII. Although an agent cannot be appointed in a popular action, nevertheless, it is very properly stated that where a party brings suit with reference to a public right-of-way, and would sustain some private loss by being prevented from doing so; he can appoint an agent, as he could in a private action. With much more reason can an agent be appointed to bring suit for the violation of a tomb by a party interested. 1An agent can be appointed under the Lex Cornelia, in an action for injury; for, although the action is employed for the public welfare, it is nevertheless of a private nature. 2The obligation which usually exists between principal and agent gives rise to an action of mandate; sometimes, however, an obligation based upon mandate is not contracted; which occurs when we appoint an agent in his own behalf, and promise, under the circumstances, to comply with the judgment; for if we pay anything on account of the promise, we cannot bring suit on mandate, but on the ground of sale, if we have sold an estate; or on account of some former mandate, as is done when a surety appoints the principal debtor his agent. 3He to whom an estate has been restored under the Trebellian Decree of the Senate, can legally appoint the heir his agent. 4Likewise, the creditor in the Servian Action can legally appoint the owner of the property pledged his agent. 5Moreover, if a party makes an agreement, concerning a preexisting debt, with one of the several joint creditors, and appoints another of them to bring suit on the agreement, his right to do so cannot be denied. And where there are two joint debtors, one of them can appoint the other to defend him. 6Where there are several heirs, and a suit is brought for the partition of the estate, or one for the division of common property; it is not permissible for the same agent to be appointed by several principals, since the matter cannot be settled without adjudications and condemnations. But it is certain that it will be permitted where there are several heirs of one co-heir. 7Where a debtor remains concealed after issue has been joined, his sureties are not held to legally defend him, unless one of them defends him for the entire amount involved; or all, or several of them appoint one of their number to whom the management of the case shall be entrusted.

43The Same, On the Edict, Book IX. A person who is dumb and deaf is not forbidden to appoint an agent in any way in which he can do so; and persons of this description may also be appointed themselves; not, however, for the purpose of bringing suit, but for the transaction of business. 1When the question is asked if a certain individual can have an agent, it must be considered whether or not he is forbidden to appoint one, for this Edict is prohibitory. 2In popular actions, where a party acts as one of the people, he cannot be compelled to conduct the defence as an agent. 3Where anyone applies for the appointment of a curator for a party who is present, the latter must consent, unless he is of age; and if he is absent, the agent must be required to furnish security for ratification. 4The penalty to which an agent who does not defend his principal is liable is that the right of action shall be denied him. 5Where an agent brings suit, and a slave of the principal who is absent is present; Atilicinus says that security must be given to the slave, and not to the agent. 6Where a party is not compelled to defend someone who is absent, still, if he has furnished security that the judgment shall be complied with, on account of his having undertaken the defence, he can be forced to proceed; for if he does not, he who accepted the security will be deceived; as those who are not compelled to defend a case are required to do so after security has been furnished. Labeo thinks that indulgence should be granted where proper cause is shown, and if injury results to the plaintiff on account of lapse of time, the other party should be compelled to conduct the case; but if, in the meantime, some relationship by marriage has been destroyed, or enmity has arisen between the parties, or the property of the person who is absent has been taken possession of;

44Ulpianus, Disputations, Book VII. Or if he is about to depart on a long journey, or any other good reason should be advanced;

45Paulus, On the Edict, Book IX. He should not be compelled. Sabinus, however, thinks that it is not one of the functions of the Prætor to compel one party to defend another, but that suit can be brought under the stipulation, because the action was not defended; and if the agent has good reason for refusing to act in the case, his sureties will not be liable, because an arbitrator would not be a good man if he forced a party who had a valid excuse to undertake a defence. If he did not give security, but reliance was placed upon his promise, the same rule should be observed. 1Parties who act on behalf of the public, and who at the same time, defend matters in which they are personally interested, are permitted to appoint an agent upon showing proper cause; and anyone who brings suit afterwards will be barred by an exception. 2Where notice of a new structure has been given to an agent, and he avails himself of the interdict which provides: “that no force is to be used against the party who builds”; Julianus holds that he occupies the place of a defender, and cannot be compelled to furnish security that his principal will ratify his acts; and if he does furnish security, (Julianus says), “I do not understand under what circumstances suit can be brought on the stipulation”.

46Gaius, On the Provincial Edict, Book III. Where a party has undertaken the management of a case in his own name, and desires to appoint an agent whom the plaintiff can accept in his stead, he should be heard, if he gives security in the regular form that the judgment will be complied with. 1He who defends another in whose behalf he does not bring suit, has a right to conduct the defence with reference to one particular point. 2He who defends another is compelled to give security; for no one is understood to act as a proper defender in a suit with another party without giving security. 3It is also asked where a defender agrees to conduct a case, and the plaintiff obtains complete restitution, whether he can be compelled to take charge of the action for restitution? The better opinion is that he can be compelled to do so. 4An agent is required to render an account in good faith in matters connected with litigation, just as he is required to do in other business transactions. Therefore, whenever he obtains anything in a suit, whether he does so directly on account of the claim, or indirectly by means of it, he must surrender it in an action of mandate; so that if, by mistake, or through the erroneous decision of the judge, he obtains something that was not due, still, he must surrender it also. 5Again, on the other hand, whatever the agent pays on account of a judgment, he can recover by a counter action of mandate. He cannot, however, recover any penalty which he paid because of some unlawful act of his own. 6Equity demands that any expenses of the suit incurred in good faith by either the agent of the plaintiff, or by that of the defendant, shall be repaid to him. 7Where the transaction of business has been entrusted to two parties by the direction of another, and one of whom is a debtor of the person who appointed them, can the other legally bring suit against him? There is no doubt that he can, for he is none the less understood to be an agent, because the party against whom he brings suit is an agent also.

47Julianus, On Urseius Ferox. Where a man leaves two agents to attend to all his business, unless he expressly states that one is to bring suit against the other for money, it cannot be maintained that such a mandate was given to either of them.

48Gaius, On the Provincial Edict, Book III. Therefore, where such an express mandate was given, if one of them who is sued by the other alleges against the action: “that no direction was given to me to bring suit against debtors”; the plaintiff can reply: “or was given to me to bring suit against you”.

49Paulus, On the Edict, Book LIV. The condition of the principal cannot be rendered worse by his agent without his knowledge.

50Gaius, On the Provincial Edict, Book XXII. In whatever way your agent may be discharged from liability by me, it should benefit you.

51Ulpianus, On the Edict, Book LX. If a minor under twenty-five years of age appears as a defender, he is not the proper one in any case in which he is entitled to complete restitution; because a decree of this kind releases both him and his sureties. 1As to undertake a defence subjects a party to the same liability as the principal debtor, the defender of a husband should not be made liable for anything more than the husband himself can pay. 2Where a man who has undertaken the defence of another, even though he may be of large means;

52Paulus, On the Edict, Book LVII. Or of consular rank;

53Ulpianus, On the Edict, Book LX. He is not held to properly defend him unless he is ready to furnish security.

54Paulus, On the Edict, Book L. Neither a woman; nor a soldier; nor a person about to be absent on business for the State; nor one who is afflicted with a chronic disease; nor one about to assume the duties of a magistrate; nor one who cannot be compelled against his will to be a party to judicial proceedings, is understood to be a proper defender. 1Guardians who have transacted the business of their office in any place must also be defended in that place.

55Ulpianus, On the Edict, Book LXV. Where a man has been appointed agent in a matter in which he is interested, his principal is not to be preferred in bringing the suit, or in collecting money; since he who has a right of action in his own behalf can properly attend to these matters.

56The Same, On the Edict, Book LXVI. An agent appointed for the purpose of bringing an action for the recovery of personal property can properly apply for its production in court.

57The Same, On the Edict, Book LXXIV. He who appoints an agent for the purpose of instituting proceedings immediately should be understood to permit the agent to conduct the case to a conclusion afterwards. 1Where a party neglects to offer an exception to an agent, he cannot introduce it subsequently, if he changes his mind.

58Paulus, On the Edict, Book LXXI. An agent to whom has been committed, in general terms, the free transaction of business, can collect what is due, and can also exchange one piece of property for another.

59The Same, On Plautius, Book X. He is also held to have been directed to pay creditors.

60The Same, Opinions, Book IV. The power to compromise for the purpose of settlement is not included in a general mandate; and therefore if the party who gave the mandate does not afterwards ratify the compromise, he will not be prevented from making use of his original right of action.

61The Same, On Plautius, Book I. Plautius says that it is the opinion of everyone that an agent who has had judgment rendered against him cannot himself be sued; unless he was appointed in a matter in which he was interested, or offered himself for the place when he knew no bond had been furnished. The same rule must be observed where he himself offered to undertake the defence in the case, and give security.

62Pomponius, On Plautius, Book II. Where an agent is appointed for the collection of a legacy, and makes use of an interdict against the heir for the production of the will, an exception against the agent on the ground that he is not authorized to do this by the mandate, cannot be pleaded against him.

63Modestinus, Differences, Book VI. An agent appointed for the purpose of transacting the affairs of his principal, in general cannot alienate either the real or the personal property of his principal, nor his slave, without an express mandate to that effect; with the exception of fruits, or other things which may be easily spoiled.

64The Same, Rules, Book III. If he in whose behalf the defender appears should himself come into court before issue is joined, and ask permission to conduct the case in his own name, he ought to be heard, if proper cause be shown.

65The Same, On Inventions. Where a principal desires to relieve his agent, who is absent, from the necessity of giving security, he should send a letter to his adversary, and state therein that he has appointed a certain party to act against him, (mentioning in what case,) and promise that he will ratify all the acts performed by said agent; and, in this instance, if the letter is approved, it is understood that the party referred to appears as the agent of the principals as if he were present. Therefore, if afterwards, having changed his mind, he is not willing that the party should act as his agent, the proceedings, nevertheless, shall be considered valid.

66Papinianus, Questions, Book IX. Where a person stipulates for “Stichus or Damas, whichever he may choose,” and Titius brings suit, as agent, to recover one of them, and his principal ratifies his act; the result is that the matter is held to be brought under the jurisdiction of the court, and annuls the stipulation.

67The Same, Opinions, Book II. Where an agent pledges his own faith for the title of lands which he sold, he will not be released from liability from his obligation by the aid of the Prætor even after he has ceased to act as agent; for an agent who assumes the bond of an obligation for his principal cannot refuse to support his burden.

68The Same, Opinions, Book III. Where an agent made an agreement with respect to property belonging to his principal, which was not contrary to the terms of his mandate, the principal can then bring suit, even if his agent is unwilling.

69Paulus, Opinions, Book III. Paulus held that a party who appointed an agent to defend a case is not forbidden to appear in the same in his own behalf.

70Scævola, Opinions, Book I. A father appointed Sempronius, one of his creditors, the guardian of his son; and he, having administered the guardianship appointed his brother his heir, who himself died, and left the debt owed by his father in trust to Titius, and the rights of action were assigned to him by the heirs. The action of guardianship as well as that for money loaned being both derived from the estate of Sempronius, I ask whether the right of action on mandate is only granted him if he defends the heirs by whom the rights of action were assigned to him? I answered that he should defend them.

71Paulus, Sentences, Book I. An absent defendant can state the cause of his absence by means of an agent.

72The Same, Manuals, Book I. We do not always acquire a right of action by an agent, but we retain one that is already acquired; as, for instance, where suit is brought within the time prescribed by law; or where notice of objection to some new structure is served; so that we can make use of the Interdict Quod vi aut clam for here our former right is reserved for us.

73The Same, On the Office of Assessors. Where the defendant is ready to pay the money demanded, before issue is joined, suit having been brought by an agent, what must be done? It would be unjust for him to be compelled to join issue, and be regarded as a suspected person, because he did not tender the money when the principal was present. But if, at that time, he did not have the money, ought he be compelled to proceed with the case? What if the action was one in which infamy was involved? It, however, is settled that, before issue has been joined, the judge may order the money to be deposited in some sacred building, as is done in the case of money belonging to wards. Where issue has been joined, however, the whole matter devolves upon the judge for settlement.

74Ulpianus, Opinions, Book IV. An official who acts for a city cannot transact public business through an agent.

75Julianus, Digest, Book III. A party who defended an absent purchaser of land, who was also in possession, and who took charge of the case in his name, requested the vendor to undertake the defence, and the vendor demanded that the agent give security that the purchaser would ratify his acts. I am of the opinion that he ought to give security to the vendor for ratification; because if the latter should restore the land to the plaintiff, nothing would prevent the principal from bringing suit for the same, and the vendor would be compelled to defend the action a second time.

76The Same, On Minicius, Book V. Titius, while he was defending a case for an absent party, gave security, and before issue was joined, the debtor became insolvent; for which reason the defender refused to permit issue to be joined as against himself. I ask whether he should be permitted to do this? Julianus answers that the defender should be held to occupy the place of the principal, when he gave security; and if the Prætor did not compel him to accept joinder of issue, it would not be of much benefit to him, as recourse could be had to the sureties, and whatever these paid could be recovered from the defender.

77Paulus, On the Edict, Book LVII. When one person is defended by another it should be done in accordance with the judgment of a good citizen.

78Africanus, Questions, Book VI. Therefore, he cannot be considered to properly defend an action in accordance with the judgment of a good citizen, who, by thwarting the plaintiff, prevents the matter in controversy from being brought to a conclusion. 1Where an agent is appointed to bring suit for two things, and he does so for only one, he will not be barred by an exception, and has brought the case into court properly.