Ulpianus, On the Edict, Book IX. And those, as well, who, by reason of some chronic disease, are unable to transact their own business.

Ulpianus, 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;

Ulpianus, 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.

Ulpianus, 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;

Ulpianus, 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:

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

Ulpianus, 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;

Ulpianus, 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.

The 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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,

Ulpianus, 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.

The 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.

The 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.

The Same, On the Edict, Book IX. No one is allowed to institute proceedings in the name of a city or a curia except he who is authorized to do so by law; or, where there is no law, he is authorized by a vote of the members, when two-thirds, or more then two-thirds of them are present.

Ulpianus, On the Edict, Book IX. The islands belonging to Italy are a part of Italy, and the adjacent islands are a part of each province.

Ulpianus, On the Edict, Book IX. Pomponius states that a guardian can be appointed for a minor who is engaged in litigation, for the purpose of establishing his civil status. This is correct, but the appointment will only be valid if the minor should be ascertained to be free.

The Same, On the Edict, Book IX. If the guardian should gain the suit, or should lose it, the action to enforce the judgment should be granted in favor of, or against the ward; and this is especially the case where the guardian did not appear voluntarily in court, or where he could not authorize his ward to act, either on account of the absence of the latter, or because of his youth; and this rule the Divine Pius stated in a Rescript. It is also set forth in many rescripts that an action to enforce the judgment should always be granted against the ward, where the guardian has lost the case, unless the ward rejected the estate of his father; for then it has been repeatedly laid down in rescripts that this cannot be done, either against the guardian or the ward, and that the property of the guardian cannot be taken in execution. 1Marcellus goes still farther in the Twentieth Book of the Digest, and says that if the guardian gives security, and the ward subsequently rejects the estate, relief must also be granted his sureties. Where, however, the ward does not reject the estate, relief must be granted the sureties to the same extent as to the guardian himself, especially if he has given security on account of the absence or infancy of his ward.

The Same, On the Edict, Book IX. This can be done either in shares, or by districts. Where it is divided in this manner, any one of them can be barred by an exception having reference to the share, or the district in which he does not administer the guardianship.

Ulpianus, On the Edict, Book IX. It is generally conceded that a guardian need not give security that the ward will ratify his act, for the reason that he himself has a right to bring the matter into court. But what if it should be doubted whether he was a guardian, or would continue to be such, or whether the business had been entrusted to him? It is just that his adversary should not be deceived. The same rule applies in the case of a curator, as Julianus has stated.

Ulpianus, On the Edict, Book IX. Trebatius and Pegasus hold that statues erected in a town do not belong to the citizens; but the Prætor must see that whatever has been placed there with the intention of rendering it public shall not be removed by any private person, not even by him who erected it. Therefore, the citizens will be entitled to an exception against anyone claiming the statues, and to an action against anyone having possession of them.

Ulpianus, On the Edict, Book IX. An agent who is appointed by a guardian must, by all means, give security; but the agent of a municipality, the head of a university or the curator of property appointed with the consent of creditors, is not personally required to give security.