VI.

THE ENACTMENTS OF JUSTINIAN. THE DIGEST OR PANDECTS.

(Continued)

BOOK III.

TITLE I.
CONCERNING THE RIGHT OF APPLICATION TO THE COURT.

1. Ulpianus, On the Edict, Book VI.

The prŠtor has proposed this Title for the purpose of preserving order, and maintaining his dignity; and to prevent applications from being made to him casually and indiscriminately.

(1) With this end in view, he established three classes of persons, namely: those whom he forbade to apply to him and all others whom he permitted only to apply in their own behalf; and still others, whom he permitted to apply both for certain persons and for themselves.

(2) To apply to the court is to state one's own wish, or that of one's friend before a magistrate who has jurisdiction, or to oppose the wish of another.1

(3) The prŠtor begins with those who are absolutely forbidden to make an application to him, and in this portion of the Edict he has reference to those whom he excused by reason of youth, or on account of some accident. He forbids the party to apply to him on the ground of youth, when he is under seventeen years of age, for the reason that he considered this age to be too young to appear in public; although it is stated that Nerva, the son, gave opinions publicly on questions of law at that age, or a little later.

The prŠtor forbids a party to appear before him on account of accident, for instance where he is deaf and cannot hear at all; for no one ought to be allowed to make an application to court who is unable to hear the decree of the prŠtor, as this would be a source of danger to him, since if he did not hear the decree, he could be punished, as being contumacious, if he did not obey.

(4) The prŠtor states: "If the parties have no advocate I will give them one". Not only is the prŠtor accustomed to show this favor to such persons, but also he will do so where anyone is not able to obtain an advocate for certain reasons; as for instance, because of the intrigues of his adversaries, or through fear.

1 The postulatio was the first step in criminal procedure which ended in the formal and written accusation of a crime. There might be any number of accusers who appeared before the prŠtor either separately or concurrently, but only the first or principal one was permitted to actively conduct the prosecution. The subsequent accusers were designated subscriptores. The postulatio — which set forth the charge and the names of the parties — as soon as it was committed to writing, was placed conspicuously in the Forum. (Cicero, In CŠcil, Divin, 15.) — ED.

(5) Under the second section of the Edict those are referred to who cannot appear for others, and in this portion of it the prŠtor includes such as are incapacitated by their sex, or by an accident, and he also mentions persons who are branded with infamy.

On the ground of sex, he forbids women to appear for others, and the reason for this prohibition is to prevent them from interfering in the cases of others, contrary to what is becoming the modesty of their sex, and in order that women may not perform duties which belong to men. The origin of this restriction was derived from the case of a certain Carfania, an extremely shameless woman, whose effrontery and annoyance of the magistrate gave rise to this Edict.

On account of accident, where a prŠtor rejects the application of a man who is entirely blind, because he cannot see the insignia of the magistracy and pay them proper respect. Labeo says that Publius, a blind man, the father of Asprenas Nonius, had his chair turned around, and was denied a hearing by Brutus, when he wished to make a statement before him. But although a blind man cannot appear in court for another, he can still retain his Senatorial dignity, and perform the duties of a judge. Can he then, also hold the office of a magistrate? We will consider this matter. There is an example of one who did hold such an office, for Appius Claudius, a blind man, was present at public councils, and gave a very severe opinion in the Senate with reference to prisoners taken from Pyrrhus. The better opinion is for us to say that he can hold the office of magistrate which he has already obtained, but should be forbidden to aspire to a new one; and this rule has been established by many examples.

(6) He also forbids a party to appear before him in behalf of others, who has suffered his body to be used like that of a woman. If, however, he has been violated by robbers or by enemies, he should not be branded with infamy, as Pomponius says. A party who has been convicted of a capital crime cannot appear in behalf of another. It is also forbidden, by a decree of the Senate, that a person who has been convicted in court of false accusation, shall appear before a judge of inferior jurisdiction. Moreover, a man who has hired himself to fight with wild beasts is forbidden to appear. We should understand the term "wild beasts" to rather apply to their fierceness, than to the kind of animals; but what if the animal should be a lion, but a tame one, or some other animal which was tame but still provided with teeth? For this reason a man who has hired himself to fight, is branded with infamy by that very fact, whether he fight or not; because if he should fight, when he did not hire himself to do so, he would not be liable but only one who has hired himself for that purpose. Therefore, the ancient authorities hold that those are not liable who, for the sake of showing their courage, do this without compensation; unless they suffer themselves to be honored in the arena; for I think that, in this instance, they cannot avoid being branded with infamy. Where, however, anyone hires himself to hunt wild beasts, or to fight with one that is committing damage in the neighborhood, outside the arena, he is not to be branded with infamy; hence the prŠtor permits persons to ap-

pear in court before him in their own behalf, who have not fought with wild beasts in order to show their courage, but forbids them to do so for others. Nevertheless, it is perfectly proper to permit such persons, where they are exercising the office of guardian, or any other of the game kind, to appear in behalf of those whose affairs they are transacting. Where anyone violates this provision of the Edict, he is not permitted to appear for others, but may also be punished by a pecuniary fine, whose amount is to be arbitrarily fixed by the judge.

(7) As we stated in the beginning of this Title, the prŠtor divides parties who cannot appear into three classes, and the third of these is one by which he does not refuse them altogether the right of appearing, but says that they must not appear for everybody, and they are, so to speak, less guilty than those mentioned under former heads.

(8) The prŠtor says: "Those who are forbidden to appear by law, plebiscite, a decree of the Senate, an edict, or an Imperial Ordinance, unless in behalf of certain persons, cannot appear before me in court for anyone else than persons authorized by law". All others who are branded with infamy by the Edict of the prŠtor are included in this Edict, and cannot appear except in their own behalf, and in that of certain specified persons.

(9) The prŠtor then adds: "Where any one of those who are mentioned above has not been restored to his original condition". One who is included in "those mentioned above", is understood to mean one of those who come under the third clause of the Edict, who are forbidden to appear in behalf of certain persons; for if they were included under the other clauses, complete restitution would be obtained with difficulty.

(10) Pomponius asks what restitution the prŠtor has reference to, whether it is that granted by the Emperor, or that granted by the Senate? And he is of the opinion that either is referred to; but the inquiry arises as to whether the prŠtor can grant restitution, and it seems to me that such decrees of the prŠtor should not be observed unless they form part of the duties of his jurisdiction; as in the case of youth, where anyone has been deceived, and in the other instances which We snail examine under the Title, "Concerning Complete Restitution". The proof of this opinion is that where anyone is convicted of an offence involving infamy, and the sentence is annulled by complete restitution, Pomponius thinks that he is freed from the infamy.

(11) The prŠtor also says: "They cannot appear for anyone except a parent, their patron, their patroness, their children, or the parents of their patron or patroness"; with reference to which persons we have spoken more fully under the Title: "Concerning Summons". He also adds "Or in behalf of their children, their brother, sister, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, stepdaughter, male or female ward, or a person of either sex who is insane".

2. Gaius, On the Provincial Edict, Book I.

Or for an idiot of either sex, (for curators are also appointed for persons of this description).

3. Ulpianus, On the Edict, Book VI.

"Where guardianship, or curatorship, has been given over any such persons by a parent, or by a majority of the guardians, or by a magistrate who had jurisdiction in the matter."

(1) When affinity is mentioned, we must not understand that which formerly existed, but that which exists at the present time.

(2) Pomponius says that the words, daughter-in-law, son-in-law, father-in-law, and mother-in-law are intended to include degrees which are more remote than those which the preposition pro generally designates.

(3) And that, with reference to curators, he ought to have added persons who are dumb, and others for whom it is customary to appoint curators, that is to say, persons who are deaf, spendthrifts, and minors.

4. Paulus, On the Edict, Book V.

Those also, for whom, on account of ill health, the prŠtor is accustomed to appoint curators:

5. Ulpianus, On the Edict, Book IX.

And those, as well, who, by reason of some chronic disease, are unable to transact their own business.

6. The Same, On the Edict, Book VI.

I am of the opinion that those can appear in court without violation of the Edict, who, not voluntarily but through necessity, are discharging the duties of an office, even if they are such as cannot appear in their own behalf.

(1) Where anyone is forbidden to act as an advocate, if this has reference to the time during which the magistrate exercises jurisdiction, I think that he can afterwards appear before his successor.

7. Gaius, On the Provincial Edict, Book VII.

Where the prŠtor forbids any person to appear before him, the prohibition is absolute, even if his adversary consents for this to be done.

8. Papinianus, Questions, Book II.

The Emperor Titus Antoninus stated in a Rescript: "That he who had been forbidden to practice the profession of an advocate for the term of five years, was not forbidden to appear in court in behalf of anyone after the five years had elapsed". The Divine Hadrian also stated in a Rescript, "That a man could appear in court after he returned from exile"; nor was any distinction made as to the crime for which the sentence for silence or exile was imposed; otherwise, after the time of the punishment had elapsed, it might be still further prolonged contrary to the terms of the sentence.

9. The Same, Opinions, Book I.

A who is forbidden to appear in behalf of another for a reason which does not imply infamy, and therefore is not deprived of the right

of appearing for every one, is only legally excluded from appearing for others in the province over which the governor who imposed the sentence has jurisdiction; and he is not forbidden to do so in any other, even though it may have the same name.

10. Paulus, Rules.

Those who act in behalf of the Treasury are not prohibited from acting for their children, their parents, or their wards, of whose guardianship they have charge, even though the case may be in opposition to the Treasury.

(1) Decurions are also forbidden to conduct causes against their own municipal towns, except for such persons as have been previously mentioned.

11. Tryphoninus, Disputations, Book V.

It was stated by our Emperor in a Rescript: "That a guardian is not forbidden to appear for a ward in a matter in which he had been employed as an advocate against his father". And he is also allowed by this to act against the Treasury; even where he had appeared for the Treasury previously in some proceedings against the father of his ward.

(1) Who those are that are considered infamous will be explained in the following Title.

TITLE II. CONCERNING THOSE WHO ARE BRANDED WITH INFAMY.

1. Julianus, On the Edict, Book I.

The words of the prŠtor are as follows: "He who is discharged from the army for disgraceful conduct, either by the Emperor, or by one to whom authority has been granted to act in the matter, is branded with infamy. This also applies to one who appears upon the stage for the purpose of acting, or declaiming; to one who follows the occupation of a procurer; to one who has been convicted in court of false accusation or betrayal of his client's interest; to one who has been convicted of theft, robbery, injury, bad faith, or fraud, in his own name, or has compromised any of these offences; to one who has been condemned in his own name in an action based on partnership, guardianship, mandate, or deposit, in a direct action; to one who gave his daughter, who was under his control in marriage after the death of his son-in-law, he knowing him to be dead before the time had elapsed which is customary for a widow to mourn for her husband; to one who married her, being also aware of this, without the order of the person under whose control he was; to him who permitted him to marry her while he was under his control, being aware of the above mentioned facts; and also to one who, on his own responsibility, and not by the order, or in the name of the party under whose control he was, permits any male or female whom he has under his control, to contract two betrothals, or two marriages at the same time".

2. Ulpianus, On the Edict, Book VI.

The words of the prŠtor: "Who is discharged from the army", must be understood to refer to one who wears the military insignia, as, for instance, where anyone up to the rank of centurion, or prefect of a cohort, or of a troop, or of a legion, or the tribune of a cohort, or of a legion, is discharged. Pomponius goes still further, and says that the commander of an army, even though he may wear the badges of consular rank, if dismissed by the Emperor for some disgraceful cause, is branded with this mark of infamy. Therefore if a general is discharged while in command of the army he is branded with infamy, and where the Emperor discharges him, and adds that this is done on account of disgraceful conduct, as he generally does, there is no doubt that he is branded with infamy under the Edict of the prŠtor. This is not the case, however, if a successor is appointed for him without his having incurred the displeasure of the Emperor.

(1) By an "army" we do not mean a single cohort, or a single troop, but several bodies of soldiers; hence we say that a man commands an army when he has charge of a legion, or a number of legions which, with the auxiliaries, have been entrusted to him by the Emperor. But, in this instance, where a man has been dismissed from the command of any body of soldiers, we must understand that he has been dismissed from the army.

(2) The phrase, "Discharged on account of disgraceful conduct", is added for the reason that there are several kinds of discharges, one of these is an honorable discharge allowed by the Emperor, where a man has finished his time of service, or where this was done previously through the indulgence of the Emperor; another is where a soldier is released from military service on the ground of ill health; and there is also dishonorable discharge. The latter occurs whenever he who orders it adds expressly that it is done on account of disgraceful conduct, and they ought always to add why the soldier is discharged. But where a man is degraded, that is to say deprived of his insignia of rank, he becomes infamous, even though the words, "degraded on account of disgraceful conduct", were not added. There is a fourth kind of discharge where a party enters the military service in order to avoid performing the duties of an office, but this does not affect his reputation, as has been very frequently stated in rescripts.

(3) A soldier who has been convicted under the Lex Julia de Adulteriis, becomes infamous to such a degree that the sentence itself ignominiously releases him from his oath.

(4) Those who have been dishonorably discharged are not allowed to live either at Rome, or where the Emperor resides.

(5) The prŠtor says: "He who appears upon the stage is infamous". The stage, as defined by Labeo, means any place whether public or private, or on the street, where anyone appears or moves about making an exhibition of himself; provided that it is a place where persons, without distinction, are admitted for the purpose of viewing a public show; and those who contend for gain, as well as all those who appear

upon the stage for compensation, are infamous; as Pegasus, and the younger Nerva have stated.

3. Gaius, On the Provincial Edict, Book I.

He who hires himself for the purpose of appearing in public exhibitions, and does not do so, is not branded with infamy; because the offence is not so disgraceful a one that even the intention to commit it should be punished.

4. Ulpianus, On the Edict, Book VI.

Sabinus and Cassius have given their opinion that athletes should not by any means be regarded as exercising the profession of an actor, because their object is to exhibit their strength; and, as a general thing, all men agree that it seems useful, and that neither musicians nor wrestlers, nor charioteers, nor those who wash horses, nor those who perform other duties in the sacred games, should be considered disgraced.

(1) Celsus holds that those who preside over the public games whom the Greeks call brabznlaV, do not practice the theatrical profession, for the reason that they perform a public service, and do not act as players; and indeed this place is at present granted by the Emperor as an extraordinary favor.

(2) The prŠtor says, "Who acts as a procurer". He acts as a procurer who profits by the prostitution of slaves; but where anyone obtains such profit by means of persons who are free, he is in the same category. Moreover, where he makes this his principal occupation, or as an addition to some other business; as, for instance, where he is an inn-keeper or a stable-keeper and has slaves of this kind for attendance on strangers, and, by means of their opportunities he obtains money in this manner; or if he is a bath-keeper, as is the custom in some provinces, and has slaves for the purpose of taking care of the clothes of customers, and these are guilty of such practices in the baths, he is liable to the punishment of a procurer.

(3) Pomponius is of the opinion that a slave who uses for this purpose other slaves who are his private property, is branded with infamy after he has obtained his freedom.

(4) A party guilty of calumny is also branded with infamy, if judgment is rendered against him on that account; for it is not sufficient that he should have committed the act, and the same rule applies to a prevaricator. A prevaricator is, so to speak, a person who is not consistent, but who betrays his own side by assisting the other; the name Labeo says is derived from Varia Gertatione, for whoever prevaricates takes his position on both sides and, in fact, on the side of his adversary.

(5) Moreover, "Anyone who has been convicted of theft, robbery, injury, or bad faith in his own name, or has compromised any of these offences, in like manner, is infamous".1

1 Under the Roman Law the condition of being infamous implied much more than the loss of reputation, it involved, in fact, to a large extent, the forfeiture

5. Paulus, On the Edict, Book V.

This is the case because a man who compromises a crime is considered as having committed it.

6. Ulpianus, On the Edict, Book VI.

The term theft must be understood to mean either that which is manifest or non-manifest.

(1) Where a party who has been convicted of theft, or any other infamous offence, appeals, he is not to be included among infamous persons while the case is pending, but where the time fixed for the appeal has elapsed, he is considered infamous from the date of his conviction; although if his appeal appears to be ill founded, I am of the opinion that he should be branded from that day, and not from the time of the judgment.

(2) Where anyone loses a case while acting for another, he does not incur infamy; and, therefore, neither my agent, nor defender, nor guardian, nor curator, nor heir, will be branded with infamy in an action for theft, or any other of the same character; not even if the action was defended by an agent from the beginning.

(3) "Or compromised." We understand compromise to mean where an agreement was made for a sum of money without reference to the amount; for, otherwise, if a party, by force or entreaty induces another not to proceed against him, he will be branded with infamy, so that no indulgence will be considered; which is inhuman. He who compromises for a given sum by order of the prŠtor is not deemed infamous.

(4) But where an oath has been tendered, and the party swears that he has done no wrong, he will not be considered infamous, because he, to a certain extent, proves his innocence by his oath.

(5) Where anyone loses a case of mandate, he is, by the terms of the Edict, branded with infamy; and this applies not only to him who accepted the trust, but also to those who did not keep faith, where the other party depended upon his doing so; as, for instance, where I have become your surety and have made payment, if I obtain judgment against you in an action of mandate, I render you infamous.

(6) It should, by all means, be added that an heir sometimes has judgment rendered against him on his own account, and therefore becomes infamous; for instance, if he is guilty of bad faith with reference to a deposit, or a mandate. For an heir cannot have judgment rendered against him on his own account in cases arising out of guardianship, and partnership, because he does not succeed a deceased person either in guardianship or partnership, but only incurs liability for debts of the deceased.

(7) A party who loses his case in a contrary action brought against him, is not infamous; and not without reason, for in contrary actions

of civil rights. In both England and the United States its effect was long confined to incompetency to testify in court, or to serve as a juror, based upon conviction of, and imprisonment for a felony. A similar rule prevailed in Scotland. (More, Lectures on the Law of Scotland, II, XI, 5.) — ED.

there is no question of bad faith, but only one of calculation, which is generally decided by the court.

7. Paulus, On the Edict, Book V.

In actions arising out of contracts, even though they involve infamy, and those who lose them are branded with it, still, where a party makes an agreement he does not become infamous, and very properly, since a compromise in cases of this kind is not disgraceful, as it is in the preceding ones.

8. Ulpianus, On the Edict, Book VI.

The prŠtor says "When the son-in-law is dead", and appropriately adds, "When he knows that he was dead", to prevent his being punished for ignorance; for, as the time of mourning is continuous, it is fitting that it should run from the day of the husband's death, even if his widow is ignorant of the fact; and therefore, if she learns of it after the time fixed by law, Labeo says that she can put on mourning, and leave it off, on the same day.

9. Paulus, On the Edict, Book V.

Husbands are not compelled to mourn for their wives. (1) There is no mourning for one betrothed.

10. The Same, On the Edict, Book VIII.

It is customary to obtain permission from the Emperor for a widow to marry within the time fixed by law.

(1) A woman can be betrothed during the time she is in mourning for her husband.

11. Ulpianus, On the Edict, Book VI.

Mourning for children or parents is no impediment to marriage.

(1) Even where the husband was such a person that it was not proper to mourn for him, by the custom of our ancestors his widow cannot be married until the period prescribed by law has elapsed; for the prŠtor goes back to the time during which a husband should be mourned, for this is customary in order to prevent confusion of blood.

(2) Pomponius thinks that where a woman has had a child within the time fixed by law, she can marry without delay, which I hold to be

correct.

(3) It is not customary, as Neratius says, to mourn for enemies, or for persons condemned for treason, or for those who hang, or otherwise lay violent hands upon themselves, not from being tired of life, but on account of bad consciences. Therefore if anyone, after the death of a husband of this kind, marries his widow, she will be branded with

infamy.

(4) He also is branded who marries her if he is aware of the fact; for ignorance of the law is not excusable, but ignorance of the fact is. He is excused who married her by the order of someone under whose control he was, and he who permitted him to marry her is branded with infamy. In both these instances, the rule is a very proper one, for

he who obeyed is worthy of pardon, and he who suffered him to marry is branded with ignominy.

12. Paulus, On the Edict, Book V.

He who marries a woman under such circumstances, by the order of his father, even if he retains her after he is freed from the control of his father, is not branded with infamy.

13. Ulpianus, On the Edict, Book VI.

What then if he did not suffer him to marry, but ratified the marriage after it was contracted, for instance, if in the beginning he was ignorant that the woman came within the terms of the Edict, but ascertains this subsequently? He will not be branded with infamy, for the prŠtor goes back to the commencement of the marriage.

(1) Where a party contracts two betrothals in the name of another, he will not be branded with infamy unless he contracted them in the name of a person of either sex whom he has under his control. Where a party suffers his son or his daughter to contract a betrothal, he is, to a certain extent, held to have contracted it himself.

(2) When the prŠtor says, "At the same time"; it is not to be understood that the betrothals were contracted at the same time, but also that they existed during the same period.

(3) Moreover, where a woman is betrothed to one man and married to another, she is punished by the terms of the Edict.

(4) Since it is the act which is branded with infamy, likewise, where a man contracts marriage or betrothal with a woman whom he either cannot lawfully marry, or with whom marriage is not right, he will be branded with infamy.

(5) An arbiter does not incur infamy by reason of a reference to arbitration because his award is not in every respect equivalent to a

judgment.1

(6) As to what relates to infamy, it makes a great difference where judgment is rendered after the trial of a case in which something was stated which was not to the purpose, for infamy is not incurred by matters of this kind.

(7) Where a penalty more severe than that authorized by law is imposed, the reputation of the party is preserved. This has already been established by rescripts and opinions; as, for instance, where a magistrate banished a party who should have been fined a portion of his property, it must be said that by this more severe sentence the party has compromised for the maintenance of his reputation, and that therefore he is not infamous. Where, however, in a case of non-manifest theft, the judge fines the culprit fourfold the amount, the latter is, in fact, oppressed with an increased penalty; (for in a case of nonmanifest theft he only should be sued for double the amount) but this does not preserve his reputation, although if he had not been oppressed

1 This has reference to the award of an arbitrator who was selected by the common consent of the parties, and whose decision was not invested with the dignity and importance of one rendered by a regular judicial officer. — ED.

with a pecuniary penalty, he would still have been considered to have made a compromise.

(8) Conviction for the crime of swindling imposes infamy upon the offender, even though it may not be the subject of a criminal prosecution.1

14. Paulus, On the Edict, Book V.

Where a master defended his slave in a noxal action, and afterwards liberated him and made him his heir, and judgment was rendered against the slave in the same action, he does not become infamous, for the reason that he was not condemned on his own account, since in the beginning he was not a party to the joinder of issue.

15. Ulpianus, On the Edict, Book VIII.

A woman is branded with infamy who is placed in possession of an estate in the name of an unborn child by fraudulently representing that she was pregnant;

16. Paulus, On the Edict, Book VIII.

Whether she was not actually pregnant, or whether she had conceived by another.

17. Ulpianus, On the Edict, Book VIII.

She also ought to be punished who deceives the prŠtor, but a woman only is branded with infamy who does this while she is her own mistress.

18. Gaius, On the Provincial Edict, Book III.

A woman who is herself deceived by a false impression, cannot be held to have been fraudulently placed in possession.

19. Ulpianus, On the Edict, Book VIII.

No woman becomes infamous except one who has been judicially decided "to have been placed in possession of the property through fraud". This rule also applies to a father who permitted his daughter, while under his control, to fraudulently be placed in possession in behalf of her unborn child.

20. Papinianus, Opinions, Book I.

A party to whom the following words of a sentence of the governor of a province were addressed, namely: "You seem to have been the instigator of an accusation by means of a crafty device"; is held to rather cover him with shame than to brand him with ignominy, for he who urges anyone does not perform the functions of a mandator.

21. Paulus, Opinions, Book II.

Lucius Titius brought a charge against Gaius Seius, stating that he had suffered injury from him, and read written evidence to that ef-

1Stellionatus. This was a term of extremely broad signification, and included every kind of fraud and imposture not otherwise specifically classified as an offence by the Roman Law. — ED.

fect in the presence of the prŠtorian prefect. The prefect, without paying attention to the testimony, ruled: "That Lucius Titius had not suffered any injury at the hands of Gaius Seius". I ask whether the witnesses whose evidence was rejected are to be considered infamous from having given false testimony? Paulus answered that nothing was shown which would justify that the parties concerning whom the inquiry is made should be considered infamous, since it is not proper where a judgment, either just or unjust, is given in favor of one party for another to be prejudiced by it.

22. Marcellus, Public Affairs, Book II.

Blows with rods do not of themselves cause infamy, but the reason for which the person deserved to suffer the punishment does, if it was of such a nature as to render him who was convicted infamous. The same rule also applies to other kinds of punishment.

23. Ulpianus, On the Edict, Book VIII.

Mourning should take place for parents and children of both sexes, as well as for other agnates and cognates, in accordance with the dictates of affection and the mental suffering to the extent that a person may desire; but anyone who does not mourn for them is not branded with infamy.

24. The Same, On the Edict, Book VI.

The Emperor Severus stated in a Rescript that a woman was not branded with infamy, who had been compelled to prostitute herself for money while in slavery.

25. Papinianus, Questions, Book II.

It has been settled that a son, although disinherited, should mourn for the memory of his father; and the same rule applies to a mother whose estate does not pass to her son.

(1) Where anyone is killed in battle he must be mourned for, even though his body may not be found.

TITLE III. CONCERNING AGENTS AND DEFENDERS.

1. Ulpianus, On the Edict, Book IX.

An agent is one who transacts the business of another by the direction of his principal.

(1) An 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.

(2) The 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.

(3) An agent can be appointed even when he is absent;

2. Paulus, On the Edict, Book VIII.

Provided that the person who is appointed is known, and consents to his appointment.

(1) An insane person is not to be considered as absent, because he is deficient in intellect, and cannot ratify his appointment.

3. 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.

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

5. Ulpianus, On the Edict, Book VII.

A1 .... is considered to be present who at the time is in his garden; . . . .1

6. Paulus, On the Edict, Book VI.

And also one who is in the Forum, in the city, and where the buildings are continuous.

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

8. The 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

1 Original manuscript illegible.

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.

(1) It 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.

(2) Veteran 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.

(3) The prŠtor 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;

9. Gaius, On the Provincial Edict, Book III.

Or if he alleges bad health, or a necessary journey.

10. Ulpianus, 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.

11. Paulus, On the Edict, Book VIII.

If, however, the principal can be compelled to do so.

12. Gaius, 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.

13. Ulpianus, On the Edict, Book VIII.

All these things should not indiscriminately be admitted or rejected, but should be settled by the prŠtor after he has ascertained the facts.

14. Paulus, 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.

15. Ulpianus, 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.

(1) Where 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.

16. Paulus, 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.

17. 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.

(1) This is permitted, not only to the party who appointed the agent, but also to his heir and other successors.

(2) In 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;

18. Modestinus, Pandects, Book X.

Or any privilege of a religious character.

19. 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:

20. Paulus, 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;

21. Gaius, On the Provincial Edict, Book III.

Or if he has been banished, or is concealed, or subsequently becomes the enemy of the principal;

22. Paulus, On the Edict, Book VIII.

Or if he is connected with his adversary by marriage, or becomes his heir;

23. Ulpianus, On the Edict, Book IX.

Or if a long journey, or some other similar matters prevent him;

24. Paulus, On the Edict, Book VIII.

Under such circumstances the agent ought to be changed, even at his own request.

25. 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 prŠtor; 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;

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

27. 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 prŠtor.

(1) When 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.

28. The 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.

29. 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.

30. Paulus, 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.

31. 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.

(1) It is not forbidden to appoint several agents in a case where several parties are interested.

(2) Julianus 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.

32. Paulus, 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.

33. 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.

(1) There 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.

(2) It 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,1 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.

(3) The PrŠtor 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".

(4) It is held by the prŠtor to be only just that he who acts as agent in behalf of another, should also undertake the same party's defence.

(5) Where 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.

34. Gaius, 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.

35. 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 con-

1 Where the defendant in a criminal case failed to appear he was considered guilty, sentence was immediately passed upon him, and all his property was confiscated. Cicero refers to this in his prosecution of Verres. "Absens si iste esset damnatus, non tam sibi consuluisse quam invidisse vestri laudi videretur." (Cic. In C. Verres, II, 1.) This proceeding, so repugnant to our sense of justice, and in violation of the rule that an accused person cannot be condemned unheard, was, together with the presumption of guilt, adopted by the majority of European countries which derived their jurisdiction from the Civil Law. In all cases of felony and treason under the English and American practice, the verdict of the jury must be rendered in the presence of the defendant. So far as misdemeanors are concerned, however, the appearance of the accused party may sometimes be dispensed with. — ED.

trol of others; parents, brothers, parties connected by affinity; and freedmen.

(1) A patron can, by means of an agent, accuse his freedman of being ungrateful, and the freedman can answer by an agent.

(2) Not 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.

(3) The 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.

(4) 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,

36. Paulus, 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.

37. 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.

(1) The 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.

38. The 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.

39. 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.

(1) He 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.

(2) Julianus 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.

(3) Where 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.

(4) Where 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.

(5) Where 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.

(6) There 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.

{7) He 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 prŠtor is about to hear the case as if it was not defended.

40. 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.

(1) Where an agent demands security for the prevention of threatened injury, or for the payment of legacies, he must himself give a bond for ratification.

(2) Also 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.

(3) A 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.

(4) With 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.

41. Paulus, 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.

42. The 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.

(1) An 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.

(2) The 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.

(3) He to whom an estate has been restored under the Trebellian Decree of the Senate, can legally appoint the heir his agent.

(4) Likewise, the creditor in the Servian Action can legally appoint the owner of the property pledged his agent.

(5) Moreover, 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.

(6) Where 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.

(7) Where 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.

43. The 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.

(1) When 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.

(2) In popular actions, where a party acts as one of the people, he cannot be compelled to conduct the defence as an agent.

(3) Where 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.

(4) The penalty to which an agent who does not defend his principal is liable is that the right of action shall be denied him.

(6) Where 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.

(6) Where 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;

44. Ulpianus, Disputations, Book VII.

Or if he is about to depart on a long journey, or any other good reason should be advanced;

45. Paulus, On the Edict, Book IX.

He should not be compelled. Sabinus, however, thinks that it is not one of the functions of the prŠtor 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.

(1) Parties 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.

(2) Where 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".

46. Gaius, On the Provincial Edict, Book HI.

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.

(1) He who defends another in whose behalf he does not bring suit, has a right to conduct the defence with reference to one particular point.

(2) He 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.

(3) It 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.

(4) An 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.

(5) Again, 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.

(6) Equity 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.

(7) Where 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.

47. Julianus, 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.

48. Gaius, On the Provincial Edict, Book HI.

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".

49. Paulus, On the Edict, Book LIV.

The condition of the principal cannot be rendered worse by his agent without his knowledge.

50. Gaius, On the Provincial Edict, Book XXII.

In whatever way your agent may be discharged from liability by me, it should benefit you.

51. Ulpianus, 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.

(1) As 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.

(2) Where a man who has undertaken the defence of another, even though he may be of large means;

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

53. Ulpianus, On the Edict, Book LX.

He is not held to properly defend him unless he is ready to furnish security.

54. Paulus, 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.

(1) Guardians who have transacted the business of their office in any place must also be defended in that place.

55. Ulpianus, 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.

56. The 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.

57. The Same, On the Edict, Book LXX1V.

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.

(1) Where a party neglects to offer an exception to an agent, he cannot introduce it subsequently, if he changes his mind.

58. Paulus, 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.

59. The Same, On Plautius, Book X.

He is also held to have been directed to pay creditors.

60. The 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.

61. The Same, On Plautius, Book 1.

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.

62. Pomponius, 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.

63. Modestinus, 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.

64. The 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.

65. The 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.

66. Papinianus, 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.

67. The 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 PrŠtor 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.

68. The Same, Opinions, Book HI.

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.

69. Paulus, 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.

70. ScŠvola, 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.

71. Paulus, Sentences, Book I.

An absent defendant can state the cause of his absence by means of an agent.

72. The 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.

73. The 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.

74. Ulpianus, Opinions, Book IV.

An official who acts for a city cannot transact public business through an agent.

75. Julianus, 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.

76. The 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 prŠtor 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.

77. Paulus, 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.

78. Africanus, 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.

(1) Where 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.

TITLE IV.

How PROCEEDINGS ARE INSTITUTED FOR, OR AGAINST CORPORATIONS.

1. Gaius, On the Provincial Edict, Book HI.

All persons are not permitted indiscriminately to form corporations, associations, or similar bodies, for this is regulated by laws, De-

crees of the Senate, and constitutions of the Emperors. Associations of this description are authorized, in very few instances; as, for example, the right to form corporations is permitted to those engaged as partners in the collection of public taxes, or associated together in working gold, silver, and salt mines. There are also certain guilds at Rome whose organization has been confirmed by Decrees of the Senate, and Edicts of the Emperors; as, for instance, those of bakers, and some others, as well as that of ship-owners, which also exists in the provinces.

(1) When persons are allowed to form associations under the title of a corporation, guild, or any other body of this kind, they are, like a municipality, entitled to have common property, a common treasure chest, and an agent or a syndic, and, as in the case of a municipality, whatever is transacted and done by him is considered to be transacted and done by all.

(2) Where an association has no one to defend it, the proconsul says that he will order its common property to be taken into possession, and if, having been warned, they do not take measures to defend themselves, he will order the property to be sold. We understand that an association has no agent, or syndic, when he is absent, or prevented by illness, or is otherwise incapable of transacting business.

(3) Where a stranger appears to defend a society, the proconsul permits him to do so, as happens in the case of the defence of private persons; because in this way the condition of the society is improved.

2. Ulpianus, On the Edict, Book VIII.

Where the members of a municipality, or of any association, appoint an agent to attend to their legal business, it must not be said that he shall be considered to have been appointed by several individuals, for he appears for the entire community, or association, and not for the members separately.

3. 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.

4. Paulus, On the Edict, Book IX.

It is evident that, in order to make up the two-thirds of the decurions, the person appointed may be included.

5. Ulpianus, On the Edict, Book VIII.

It must be noted, as Pomponius says, that the vote of a father will be accepted for the benefit of his son and, that of a son for the benefit of his father.

6. Paulus, On the Edict, Book IX.

The votes of those who are under the same control shall be counted in like manner; for each party casts his vote as a decurion, and not as a

person belonging to the household. The same rule is to be observed where votes are cast for the candidate for an office; unless some municipal law, or long established custom forbids it.

(1) If the decurions have decided that legal proceedings shall be instituted by the party selected by the duumvirs, he is considered to have been elected by the entire body, and therefore he can proceed; for it makes but little difference whether the body itself chose him, or someone who had authority to do so. But if they have decided that whenever a controversy arises, Titius should have authority to bring suit with reference to it; the resolution would be of no effect, because it cannot be held that the right to bring suit is conferred with reference to a matter which is not yet in controversy. At the present time, however, it is usual for all matters of this kind to be attended to by syndics, according to the custom of the various localities.

(2) Where an agent is appointed, can he afterwards be prevented from acting by a resolution of the decurions? Will he be barred by an exception? It is my opinion that it should be understood that he is only allowed to act so long as his permission lasts.

(3) Where the agent of a corporate body brings suit, he is also compelled to defend it when it is sued; but he is not required to give security for ratification. Sometimes, however, where doubt exists concerning the resolution which conferred authority upon him, I think that security for ratification should be furnished; therefore a syndic of this kind performs the functions of an ordinary agent, and a right of action for the execution of judgment is not conferred upon him by any edict, unless he was appointed with reference to a matter in which he was interested, and he can also accept a promise to pay. The power of a syndic can also be revoked for the same reason as that of an ordinary agent. The son of a family may be appointed a syndic.

7. Ulpianus, On the Edict, Book X.

As the prŠtor grants a right of action in behalf of a municipal corporation, so also he thought that it is perfectly just that the Edict should give a right of action against it. I am of the opinion, however, that a right of action is granted to a deputy against a municipality where he has incurred expense in some matter of public business.

(1) Where anything is owing to a corporation, it is not due to the individual members of the same, nor do the latter owe what the entire association does.

(2) In matters which have reference to the body of decurions, or to other associations, is a matter of no consequence whether all the members remain in it, or only a portion, or whether they are all changed; but where the entire body is reduced to a single member, the better opinion is that he can sue, and be sued, since the right of all is merged in one, and the name of association remains.

8. Javolenus, On Cassius, Book XV.

Where a municipal corporation is not defended by those who have charge of its affairs, and no common property exists of which posses-

sion may be obtained, payment must be made to those who bring suit for debts owing to the corporation.

9. Pomponius, On Sabinus, Book XIII.

If you have an interest in an estate in common with a municipality, a right of action can be brought by both of you for a division of the property. The same thing may be stated with reference to an action for the establishment of boundaries, and for the prevention of the flow of rain-water upon your premises.

10. Paulus, Manuals, Book I.

A syndic can also be appointed in the case of notice of a new structure, and for the purpose of entering into stipulations; as for instance, in case of legacies, the prevention of threatened injury, or for the enforcement of a decree; although it is preferable for security to be given to a slave of the municipality, still, if it is given to the syndic, the party who has charge of the business of the municipality will have an equitable right of action.

TITLE V. CONCERNING THE TRANSACTION OF THE BUSINESS OF OTHERS.

. 1. Ulpianus, On the Edict, Book X.

The following edict is a necessary one, since it is of great advantage to parties who are absent not to be exposed to the loss of possession of their property, or the sale of the same; or the alienation of a pledge; or an action for the recovery of a penalty; or to the loss of their property unjustly through their being unrepresented.

2. Gaius, On the Provincial Edict, Book HI.

Where a person has transacted the business of someone who is absent, even though the latter may not be aware of the fact; still, whatever he expends on behalf of the other, or whatever obligation he assumes with respect to the property of the absent party, he will be entitled to a right of action for it upon that ground. Thus, in this instance, a right of action arises on both sides, which is designated an action based upon the transaction of business; and in fact, as it is proper that he who acts for another should give an account of what he has done, and have judgment rendered against him for that reason, whenever he did not transact the business as he should, or retains any property derived from said business; so, on the other hand, it is but just to reimburse him for anything which he either lost, or is about to lose on this account, if he attended to the business properly.

3. Ulpianus, On the Edict, Book X.

The prŠtor makes use of the following language: "Where anyone has transacted the business of another, or attended to any matters in which a party was interested at the time of his death, 'I will grant him a right of action on this account.' "

(1) The term "anyone" is to be understood as also referring to women; for women have a right to bring suit based upon business transactions, and there is no doubt that suit can also be brought against them.

(2) "Transactions" must be understood as meaning one, or several.

(3) The term "another" refers to individuals of both sexes.

(4) Where a ward transacts business, suit can be brought against him to the amount by which he has become more wealthy, in accordance with a Rescript of the Divine Pius; but where he brings suit, he must allow his compensation to be set off.

(5) If I have transacted the business of an insane person I am, for that reason, entitled to an action against him. Labeo says that a right of action should be granted to the curator of an insane person of either sex.

(6) These words, "attended to any matters in which a person was interested at the time of his death"; refer to the time during which he transacted anyone's business after his death; and this it was necessary to state in the Edict, since he could not be said to have transacted the business of the testator who was already dead, nor that of the heir who had not yet entered upon the estate. Where, however, there was any addition to the estate after his death; as, for instance, the children of slaves, the young of animals, or crops, or if any of the slaves had acquired property; although these additions are not embraced in the terms of the Edict, they must, nevertheless, be considered as included therein.

(7) As this right of action arises from the transaction of business, it is available both for, and against the heir.

(8) If a party who has been appointed by the prŠtor to carry the judgment into execution defrauds me, I will be entitled to an action against him.

(9) Labeo says, that sometimes in an action founded upon business transacted, the only point to be considered is fraud; for example if, induced by affection, you have interfered in my affairs to prevent my property from being sold, you should only be liable in case of fraud. This opinion is founded on equity.

(10) Not only he who voluntarily, and impelled by no necessity, interfered in the affairs of others, and transacted them, is liable to this action; but also he who, impelled by some urgent necessity, or by the impression that such necessity existed, attended to them.

(11) The question is raised by Marcellus in the Second Book of the Digest, whether, when I had intended to offer to transact business for Titius, and you ordered me to do so, I would be entitled to both actions? I think that I would, just as Marcellus himself says if I took a surety when about to assume charge of the business; for he holds that under these circumstances as well, I would be entitled to an action against both.

4. The Same, On Sabinus, Book XLV.

Let us consider whether a surety would have a right of action in this instance, and it is certain that he has a right to bring one on the ground of the business transacted, unless he assumed the obligation entirely through generosity.

5. The Same, On the Edict, Book X.

Moreover, if I transacted your business while under the impression that you had directed me to that effect; here also a right of action, based upon the transaction of business, arises; but the action on mandate will not lie. The same rule will apply if I become surety for you, thinking that I had been directed by you to do so.

(1) And also if, while under the impression that the business of Titius was concerned, while in fact it was that of Sempronius, I attend to it; Sempronius alone will be liable to me in an action based on business transacted.

6. Julianus, Digest, Book III.

If I attend to the business of your ward, without your mandate, but to prevent you from being liable in an action of guardianship; I will render you liable to an action on the ground of business transacted and I will also be entitled to one against your ward, but only if he has become more wealthy on this account.

(1) Moreover, if I lend money to your agent on your account, to enable him to pay your creditor, or release property of yours which is pledged, I will have a right of action against you based on the transaction of business; but none against your agent, with whom I made a contract. But what would be the case if I stipulated with your agent? It can be stated that I have still an action against you, based on business transacted, because I interposed this stipulation by way of superabundance of caution.

(2) If anyone has received money or other property, in order to bring it to me, I will be entitled to an action against him based on business transacted.

(3) Where anyone transacts my business, not through consideration for me but for the sake of profit, Labeo held that he was rather attending to his own affairs than mine; for he aims at his own advantage and not at mine, if he acts for the purpose of personal gain. Nevertheless, there is all the more reason that he should be liable to a suit based on business transacted. If, however, he has expended anything while attending to my business, he will be entitled to an action against me; not for what he has lost, since he was guilty of bad faith in meddling in my affairs, but merely to ascertain the amount by which I am enriched.

(4) Where anyone is foolish enough to think that while he was transacting his own business, he was attending to mine; no right of action will arise on either side, because good faith will not permit it. And if he transacted both his and my business believing that he was

only transacting mine, he will only be liable to me for mine. For if I direct anyone to transact my business, in which you also were interested, Labeo says that it must be held that if he attended to your affairs and was aware of the fact, he is liable to you in an action for business transacted.

(5) Where anyone, acting as my slave, transacts my business while he was either a freedman, or a freeborn person, a suit founded on business transacted will be granted him.

(6) If I attended to the affairs of your son or your slave, let us consider whether I shall be entitled to a suit against you on the ground of business transacted? It seems to me to be the better opinion to adopt the doctrine of Labeo which Pomponius approves in the Twenty-sixth Book, namely: if through Consideration for you I have transacted business relating to the peculium of either, you will be liable to me; but if through friendship for your son or your slave, or through consideration for them, I did this; then an action only to the amount of the peculium involved should be granted against the father or the owner. The same rule applies if I thought that they were their own masters, for if I purchase from your son a slave that he does not need, and you ratify the purchase, your ratification is not valid.

Pomponius states in the same place that he thinks that even if there is nothing in the peculium because the amount due to the father or owner is greater than its value; still, an action should be brought against the father for the amount by which he is enriched as the result of my administration.

(7) If I transacted the business of a man who was free, but who was serving you as a slave in good faith, and I did so thinking that he was your slave; Pomponius states that I would be entitled to a suit against you based on business transacted with reference to as much of the peculium of the slave as you can retain; but as to what he can remove, I have no right of action against you, but I have one against him. If, however, I knew that he was free, I should be entitled to an action against him for whatever peculium he could take, and also one against you for whatever you could retain.

(8) If I pay money to prevent a slave of Sempronius, whom I think belongs to Titius, from being killed; I will be entitled to a suit against Sempronius on the ground of business transacted, so Pomponius says.

(9) The question is asked by Pedius in the Seventh Book; if I notify Titius, as your debtor, out of court, to pay me when he is, in fact, not indebted to you, and you afterwards learn of it, and ratify what I have done; can you bring an action against me based on business transacted? He says that this may be doubted, because no business of yours was attended to, as the party was not your debtor, but he holds that the ratification makes the affair yours; and just as anyone from whom payment was exacted has a right of recovery granted against him who ratifies the act; in the same manner, he who has paid will be entitled to an action against me after ratification. Thus the ratification makes the affair yours, which was not yours in the beginning, but only transacted on your account.

(10) He also says that if I, in like manner, bring suit and exact payment from a debtor of Titius, whom I think to be your heir, when in fact, Seius is your heir; and you afterwards ratify what I have done, I will have a right of action against you, and you will have one against me, both based on business transacted. However, this is not your business which has been transacted, but your ratification makes it such; and the result is that the transaction is held to be yours, and suit can be brought against you on the part of the estate.

(11) What would be the case then, Pedius asked, if I, believing that you were the heir, should repair a house belonging to the estate, and you should ratify my act? Would I be entitled to an action against you? He says that there would be no ground for one, because the heir has become more wealthy through my act, and the transaction has been conducted with reference to the property of another; so it is not possible where a benefit accrues to another by the transaction itself that this should be held to be your business.

(12) Let us examine the case where a man, while transacting business for another, attended to some matters and neglected others, and another party noticing this, did not take charge of what was neglected, while a diligent man — for this is what we require — would have attended to all these things; should it be held that he ought to be considered liable in a suit based on business transacted, including those things which he neglected? I think this to be the better opinion, for truly if there was anything for which he was undoubtedly responsible, he should by all means be required to give an account of it; for even though he cannot be blamed for not having brought suit against the other debtors, since he had not the power to do so, as he was not authorized to institute any legal proceedings, still, he is to be held responsible for not having paid his own indebtedness; and if the debt did not bear interest it at once begins to be due; as the Divine Pius stated in a Rescript to Flavius Longinus, unless, as he says, he had released him from the payment of interest:

7. Paulus, On the Edict, Book IX.

Because the office of judge has the same force in bona-fide actions, as interrogation has in a stipulation expressly made for the same purpose.

8. Ulpianus, On the Edict, Book X.

If, however, he who administers the affairs of another belongs to that class who have no need of a mandate, he can be called to account for not having brought suit against a debtor, if a bond for ratification was tendered; provided he could easily give security. This is unquestionably true with respect to a personal debt, and therefore, if the liability of the party was to be terminated at a certain time, and he was released for that reason, he would, nevertheless, be liable in an action based on business transacted. The same rule must be held to apply to a case where an heir is not liable; which was the opinion of Marcellus.

(1) Moreover, if I bring suit for land which belongs to you, or to a city, and employ improper means while transacting either your busi-

ness or that of the city, and obtain more profit than I was entitled to; I shall be obliged to refund this to you, or to the city, although I could not have brought an action for it.

(2) If it happens, under any circumstances, that an account for set-off is not allowed by the court a contrary action can be brought; but if, after examination, the set-off should be rejected, the better opinion is that the contrary action cannot be brought, because the matter has already been judicially decided; and an exception on the ground of res judicata can be interposed.

(3) Julianus, in the Third Book treats of the following case. "Where one of two partners has forbidden me to transact the business of the partnership, and the other has not, will I be entitled to an action on the ground of business transacted against the partner who did not forbid me? The difficulty lies in the fact that if an action is granted against him, it would be necessary for the one who forbade me to be affected also; and it would be unjust for him who did not forbid me to be released by the act of another; for if I lend money to one partner against the express prohibition of the other, I would have a valid claim upon the former; and I think with Julianus that it should be held that an action on the ground of business transacted will lie against him who did not forbid me, so that he who did, shall not suffer loss in any respect, either through his partner, or through him who transacted the business.

9. ScŠvola, Questions, Book I.

Pomponius says that if I approve of any transaction by you, even though it was badly done, still, you will not be liable to me on the ground of business transacted. It must be taken into consideration if it is not true that, so long as it is doubtful whether I will ratify it or not, the right of action based on business transacted is in abeyance; for, when it has once accrued, how can it be annulled by the mere will alone? He holds, however, that this is only true when you are not guilty of any bad faith. And ScŠvola states that even if I ratified what had been done, an action on the ground of business transacted will still lie; and where it is said that you are not liable to me, this is because I cannot disapprove of what I have once agreed to; and just as anything which has been properly done must be considered by the court as ratified, so, also must whatever has been approved by the party himself. Moreover, if no action based on business transacted will lie where I have given my approval, what must be done if the other party collects money from my debtor, and I approve of it? How can I recover it? And, also, suppose he has sold property belonging to me, how then can he recover any expense which he has incurred? For, as there is no mandate, an action based on business transacted will lie, even after ratification.

10. Ulpianus, On the Edict, Book X.

But is an action granted me also for the expenses which I have incurred? I think that this is the case, unless it has been expressly agreed that neither party should have an action against the other.

(1) Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient if he conducted the business properly even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also adopted; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus very properly ridicules this opinion; for he states that the party who transacts business in a suitable manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household. What Julianus wrote is applicable where he who repairs a house or cures a sick slave is entitled to an action based on business transacted, if what he does is an advantage, even if the general result was not beneficial. I ask what must be done if he thought he was acting advantageously, but it did not profit the head of the household? I say that he will not be entitled to an action based on business transacted, for the beginning ought to be advantageous, even though we do not consider the result.

11. Pomponius, On Quintus Mucius, Book XXI.

If you transact the business of an absent party without his knowledge, you should be responsible both for negligence and fraud; but Proculus is of the opinion that you ought sometimes to be responsible for accidents, as for instance, where you attend to some new business in the name of the absent party which he was not in the habit of transacting, for example, by purchasing new slaves, or by engaging in some other enterprise, for if any loss to him resulted therefrom, you would be responsible; but any profit would belong to the absent party, and where profit accrued in some instances, and loss was sustained in others, the absent principal should set off the profit against the loss.

12. Ulpianus, On the Edict, Book X.

This action should be granted to the successor of a person who dies in the hands of the enemy, and to whom the business belonged.

(1) Where I have acted for a son under the control of his father, and who died in the service after making a will, an action should likewise be granted.

(2) It is also sufficient for business to be transacted advantageously in the case of persons who are living, as well as with reference to property left by those who are dead; even though the result may be different from what was expected.

13. Paulus, On the Edict, Book IX.

My debtor who owed me fifty aurei died. I undertook the care of his estate, and expended ten aurei. I then deposited in a chest a hun-

dred aurei which were the proceeds of the sale of property belonging to the estate, and this sum was lost without my fault. The question arose whether, if an heir should appear, I could bring an action against him for the sum of fifty aurei which I had lent, or for the ten which I had expended? Julianus says that the question which we should consider depends upon whether I had good reason for putting aside the hundred aurei; for, if I should have paid myself and the other creditors of the estate, I ought to be responsible not only for the sixty aurei, but for the remaining forty as well. I might, however, retain the ten which I expended; that is to say, I should only pay over ninety. If, however, there was good reason for putting aside the entire sum of a hundred; as, for instance, if there was danger that land forming part of the estate would be forfeited for taxes; or that the penalty for money borrowed on bottomry would be increased; or that payment would be required on account of an award; I could collect from the heir not only the ten aurei which I had expended in connection with the business of the estate, but also the fifty which were due to me.

14. Ulpianus, On the Edict, Book X.

Where the son of a family volunteers to transact the business of others, it is only just that an action should be granted against his father also, whether the son has property of his own, or whether his father has profited by his acts. Where a female slave has had charge of the business, the same rule applies.

15. Paulus, On the Edict, Book IX.

Pomponius states in the Twenty-sixth Book that, where business is transacted, the condition of the parties must be considered in the beginning; for, as he says: "Suppose I begin to transact the affairs of a minor who, in the meantime, arrives at the age of puberty? Or of a slave, or of the son of a family, and, in the meantime, he becomes free, or the father of a family?"

I, myself, have stated that this is the better opinion, unless, in the beginning, I have only undertaken to attend to a single matter of business, and afterwards I have taken charge of another, with a different intention, at the time when the party either arrived at puberty, or became free, or the father of a family; for here several things, so to speak, were attended to, so that the action, as well as the judgment, will be arranged and regulated in accordance with the condition of the parties.

16. The Same, On Plautius, Book VII. •

When anyone transacts my business, there are not several different matters but only one contract; unless, in the beginning, the party undertook to do only one thing, and to retire when it was finished; for in this case if he undertook to do anything else after having changed his mind, there is a new contract.

17. Ulpianus, On the Edict, Book XXXV.

Where a party performed an act while in slavery, he is not compelled to render an account of it after being manumitted. When, how-

ever, such a connection between the transactions exists that the account of what was done in slavery cannot be separated from the acts performed in freedom; it is settled that what was done in slavery can be brought into court in an action on mandate, or on business transacted. For if while he was in slavery, the party purchased land, and built a house upon it, and the house fell down, and then, after he was manumitted, he should rent the ground, the lease of the land would only be included in the suit based on business transacted, for the reason that nothing more arising from the transactions of previous date could be included; unless the account of the business done during the time that the party was free cannot be made up without it.

18. Paulus, On the Edict, Book IX.

Proculus and Pegasus are of the opinion that a person who began to transact business while in slavery, must act in good faith; and therefore, the amount which he would have been able to make if some one else was managing his business, he must, as he did not exact it from himself, pay it over to his principal in an action based on business transacted; if his peculium amounted to so much that by retaining it, he could have made that sum. Neratius is of the same opinion.

19. The Same, On Neratius, Book II.

Even if he had no peculium, but was a debtor by nature and afterwards continued to act, he is bound to pay, himself; just as he who is liable in an action which would be barred by lapse of time, is also compelled by a suit based on business transacted to pay his principal, after the time has expired.

(1) Our ScŠvola says that he thinks the statement of Sabinus that the account ought to be rendered from the beginning should be understood to mean that it ought to show what was left at the time when the party first became free, and not that he should be held liable for any malice or negligence of which he was guilty while in slavery; and, therefore, if it is ascertained that, while he was in slavery, he expended money in an improper way, he should be released from liability.

(2) If I direct a freeman who is held as a slave by me in good faith to perform some act; Labeo thinks that I would not be entitled to an action on mandate against him; since he is under restraint by reason of his servile condition; hence an action based on business transacted will lie, because, on the one hand, he had a desire to attend to my affairs, and on the other, he was in a position where I could compel him to attend to them.

(3) While you were transacting my business during my absence, you, without knowing it, purchased property which belonged to me; and, being still ignorant of this fact, you acquired its ownership by prescription. You are not obliged to restore it to me in an action for business transacted; but if, before you obtained its ownership by prescription you had learned that the property was mine, you must employ someone to bring suit against you for it in my name, so that he may recover it for me, and give you an opportunity to enforce your stipu-

lation against eviction; and you will not be considered guilty of fraud in the employment of this person, since you should do this to avoid being liable in an action on business transacted.

(4) In an action based on business transacted, we must not only pay the principal, but, also the interest collected from the money of the other party, or even which we might have collected. On the other hand, also, we can by means of this action recover interest which we have paid, or interest which we might have collected on our own money, and which was expended in the business of the other party.

(5) I transacted the business of Titius while he was in the hands of the enemy; after his return I have a right of action against him based on business transacted, even though at the time when this was done he was not acting as principal.

20. Ulpianus, On the Edict, Book X.

But if he should die while in the hands of the enemy, both the direct action, and the counter action1 based on business transacted, will lie for, and against his successor.

21. Paulus, On the Edict, Book IX.

Servius was of the opinion, as is stated by Alfenus in the Thirty-ninth Book of the Digest, that when three men were captured by the Lusitanians, and one of them was released on condition of his bringing a ransom for all three, if he did not return, the two others would be required to pay a ransom for himself also; and he having refused to return, and for this reason, the others having paid his ransom, as well as their own, Servius answered that it was just for the prŠtor to grant them an action against him.

(1) Where one transacts business relating to an estate, he binds the estate to a certain extent to himself, and himself to the estate; and therefore, it makes no difference whether a minor heir to the estate exists, because the debt, together with the remaining burdens of the estate devolves on him.

(2) If, during the lifetime of Titius, I began to manage his business, I should not cease to do so when he dies. I am not obliged, however, to begin anything new, but it is necessary to finish what has been commenced, and to take care of it; as occurs when a partner dies, for so far as anything is done for the purpose of terminating business already begun is concerned, it makes no difference at what time it was finished, but it does at what time it was commenced.

(3) Lucius Titius attended to my business by your order; if he did not do so properly, you will be liable to me in an action based on business transacted, not only to force you to assign your rights of action against him, but also because you have acted imprudently in selecting

1 The actio contraria was of the nature of an utilis or equitable action. It was employed in the case of contracts where one of the parties obtained the principal advantage resulting from the transaction. If a defendant was sued in an actio directa for the recovery of property, he was, under certain circumstances, entitled to bring a counter action for unavoidable expenses disbursed, or damages result-

him, and you must indemnify me for any loss incurred through his negligence.

22. Gaius, On the Provincial Edict, Book III.

Where anyone, while transacting the business of an estate, or that of individuals, purchases property because it is necessary, he can bring an action based on business transacted for what he expended, even though the property was destroyed; for example, where he procured grain, or wine for slaves, and it was lost by some accident, such as fire, or the fall of a house. It should, however, be understood that the said fall, or fire must have occurred without his fault; for if he should have judgment rendered against him on account of either of said accidents, it would be absurd for him to be able to recover anything on account of the property destroyed.

23. Paulus, On the Edict, Book XX.

Where anyone, while transacting the business of another, has collected a debt which was not due, he can be forced to make restitution; but where he, in the course of the business, has paid a debt which was not due, it is the better opinion that he must blame himself for it.

24. The Same, On the Edict, Book XXIV.

If I pay money to an agent, with the intention that it shall belong to my creditor, the ownership of the same is not acquired by the creditor through the agent; the creditor, however, can, by ratifying the act of the agent, make the money his own, even against my consent; for the reason that the agent in receiving it only attended to the business of the creditor, therefore, I am discharged from liability by the ratification of the creditor.

25. The Same, On the Edict, Book XXVII.

Where anyone, while transacting business for another expends more than he should have done, he can recover from his principal the amount which he ought to have paid.

26. Modestinus, Opinions, Book I.

Where an estate left to a municipality in trust was ordered to be delivered, the magistrate appointed Titius, Seius, and Gaius as being suitable agents for the management of the property. These agents subsequently divided the administration of the estate among themselves, and did so without the authority or consent of the magistrates. Sometime afterwards, the will containing the trust under which the estate was to be turned over to the municipality, was proved in court to be void; and Sempronius appeared as the heir-at-law, ab intestato, of the deceased, but one of the aforesaid agents died insolvent, and without leaving an heir. I ask if Sempronius should bring suit against these agents of the estate, who would assume the risk caused by the

ing from the execution of the contract. Founded on subsequent and casual obligations which might be incurred, it was especially applicable as a remedy at the disposal of lenders on pledge and guardians against pledgors and wards. — ED.

insolvency of the deceased agent? Herennius Modestinus answered that the action based on business transacted could not be employed against anyone of the agents on account of what he alone had done, and that any loss must be borne by him who claimed the estate as heir-at-law.

27. The Same, Opinions, Book II.

Two brothers, one of age, and the other a minor, owned an unproductive tract of land in common. The older brother erected large buildings on the tract where the residence of his father stood, and when he divided the land with his brother, he claimed that he should be paid for what he had expended, since the property had been improved by what he had done; his younger brother having at that time become of age. Herennius Modestinus answered that he for whom the inquiry was made had no right of action on account of expenses incurred, when there was no necessity for them, and where they had been made only for the sake of pleasure.

(1) I gave it as my opinion that if Titius brought up his niece through affection for his sister, no action would lie against her on this ground.

28. Javolenus, On Cassius, Book VIII.

Where anyone has transacted the business of Seius by the direction of Titius, he is liable to Titius in an action of mandate, and in the action the amount of the interest of both Seius and Titius should be taken into consideration; the interest of Titius, however, must be determined by the amount he has to pay Seius, to whom he is liable either on mandate, or for business transacted. Titius has a right of action also against the party whom he directed to attend to the affairs of another, before he himself pays anything to his principal; because he is held to have lost the amount for which he was liable.

29. Callistratus, Monitory Edict, Book HI.

Where a father by his will, appointed a guardian for his posthumous son, and the guardian, in the meantime, administered the guardianship, and the child was not born; an action will lie against him, not on the ground of guardianship, but on that of business transacted; but if a posthumous child should be born, there will be an action on guardianship, and this would include both terms of administration, the one before the child was born, and the one afterwards.

30. Julianus, Digest, Book III.

An inquiry was made with respect to the following fact. A certain man was appointed by the resolution of a municipality to purchase wheat, and another person who was appointed to act under him as a subordinate curator spoiled the wheat, by mixing other grain with it. The price of the wheat which was bought for the municipality was charged to the curator; what kind of an action could the curator bring against the subcurator, so that he might be reimbursed for the loss which he had sustained on his account? Valerius Severus answered

that a guardian has a right of action against his fellow-guardian, on the ground of business transacted and, he also stated that the same right of action is granted one magistrate against the other; provided, however, that he was not aware of the fraud. In accordance with these opinions it must be said that the same rule applies to a subcurator.

31. Papinianus, Opinions, Book II.

A certain man directed a freedman or a friend to borrow money, and the creditor, on the faith of the letter, made the agreement, and the surety was given. In this instance, although the money was not expended upon property, still an action is granted to the creditor or his surety, against the party, on the ground of business transacted; which certainly bears a resemblance to the Actio Institoria.

(1) A man who was transacting business for Sempronius, ignorantly attended to a matter in which Titius was interested. He will be liable to Sempronius also, on account of this particular matter, but he can make an application to the court for a bond of indemnity against Titius, to whom a right of action is granted. The same rule applies to the case of a guardian.

(2) Where a case was ready to be heard, and the defendant did not appear, a friend of his voluntarily took his place, and stated the cause of his absence to the court. The latter will not be considered to have been guilty of negligence, if he did not appeal where a judgment was rendered against the party who was absent. Ulpianus says in a note, that this is correct, because the first party in default lost his suit; but where a friend defends an absent person and permits judgment to be taken against him, and brings suit on the ground of business transacted, he will be rendered liable, if he does not appeal when he could do so.

(3) A person who transacts the business of another is obliged to pay interest on any money in his possession, after the necessary expenses have been settled.

(4) A testator stated that his freedman should be paid a certain sum of money for the expense of erecting a monument; and if anything beyond that amount was expended, suit cannot be brought for it on the ground of business transacted, or on that of a trust, since the wish of the testator established a limit to the expenditure.

(5) The heir of a guardian, who is a boy under the age of puberty, is not liable for matters attended to by his guardian with reference to the property of the female ward of his father; but the guardian of the boy may be sued in his own name on the ground of business transacted.

(6) Although a mother may transact the business of her son in accordance with the will of his father, through the inducement of natural affection; still, she will not have authority to appoint an agent, at her own risk, for the purpose of instituting legal proceedings, because she cannot herself legally act in behalf of her son, or alienate her property, or discharge a debtor of the minor by accepting payment.

(7) Where one party defended a case in which a common right of water was involved, and judgment was rendered in favor of the owner of the land; he who paid the necessary, reasonable expenses in the case where both were interested, will be entitled to an action on the ground of business transacted.

32. The Same, Opinions, Book III.

A surety, through inexperience, received pledges or securities relating to another contract in which he was not interested, and paid both debts to the creditor, thinking that he could obtain indemnity by combining the securities. On account of this, a suit on mandate brought against him would be of no effect, and he himself could not bring suit against the debtor, but it would be necessary for each of them to sue the other on the ground of business transacted. In the trial of this it will be sufficient to take into consideration the negligence, but not the accident, for the reason that a surety is not considered to be a robber. The creditor in this instance, cannot be held liable in an action of pledge for the restitution of the property as he seems to have sold his right.

(1) Where a mother has received from a man who is betrothed to her daughter gifts for the latter of which the girl is ignorant; an action on mandate or deposit does not lie in her favor, but one can be brought on the ground of business transacted.1

33. The Same, Opinions, Book X.

The heir of a deceased husband cannot bring suit against his wife (who during marriage had the property of her husband under her control) for plundering an estate; and he will act more wisely if he should sue her for production of property on the ground of business transacted, if she actually attended to the affairs of her husband.

1 The term negotiorum gestio, which is encountered so frequently in Roman jurisprudence means, as is already apparent, an act of voluntary agency, gratuitously performed without the authority, and generally without the knowledge of the principal. It was a quasi contract, and differed from mandate in that it was undertaken by the agent at his own instance, and did not require the consent of the party interested; and resembled it by not involving the payment of any compensation. The intention of the agent was an essential factor of the transaction, for he must volunteer his services through motives of friendship, and with the desire to oblige the person who was entitled to the benefit of his act. The consent of the principal was always implied; if it was expressed, it was understood to be a contract of mandate. The negotiorum gestor, having interposed in matters in which he had actually no concern, in the absence of the party directly interested, was held to strict diligence; and the ordinary care he employed in the conduct of his own affairs was not sufficient to release him from responsibility, if some one else by employing greater diligence could have discharged his obligations in a more thorough and advantageous manner. Subsequent ratification was presumed, and this in every instance was absolutely necessary to establish the liability of the principal, as it had a retroactive effect and placed the act of the agent on the same footing as if it had been previously and expressly authorized. The latter had a right to be reimbursed for all necessary expenses incurred in the course of the business with which he had charged himself, but these he could not recover if he had had an opportunity of learning the wishes of his principal and did not avail himself of it; since by failing to do so the consent of the former could not legally

34. Paulus, Questions, Book I.

Nesennius Apollinaris to Julius Paulus, Greeting. A grandmother transacted the business of her grandson, and after the death of both of them the heirs of the grandmother were sued by the heirs of the grandson in an action based on business transacted, but the heirs of the grandmother filed a claim for support furnished the grandson. Answer was made to this that the grandmother had furnished it out of her own property through natural affection, since she had not asked that the amount of the maintenance should be fixed, and that it had not been fixed; and moreover, it has been established that if the mother had furnished maintenance she could not recover that which he had provided out of her own property under the inducement of natural affection. On the other hand, it was stated, and I hold it to be correct, that this is the case where it is proved that a mother had furnished maintenance out of her own property; but in the present instance it is probable that the grandmother who transacted the business of her grandson supported him out of his own property. It was a subject of discussion as to whether the expense should be considered as having been paid out of both estates, and I ask what seems to be the more just conclusion? I answered that the decision in this instance depends upon the facts. For I am of the opinion that what has been established in the case of the mother should not always be observed; for what would be the effect if the mother had positively stated that when she was supporting her son, she did so in order to bring an action either against

be presumed, and the maxim "Inviti negotia non geruntur", would apply. The agent was held to strict accountability in case of mismanagement or ordinary negligence, and was not only not entitled to reimbursement for his expenditures, but was also liable in an action for damages brought by his principal. As a rule, unauthorized interference in the affairs of others was regarded by the law with marked disfavor, a fact which is disclosed by the precept elsewhere set forth in the Digest: "Culpa est immiscere se rei ad se non pertinenti". (Dig. L, XVII. 36.)

With reference to this branch of the law of agency the rule in England is much less broad, and a self-appointed agent has never been invested with the power which he exercised under the Roman system, although Bracton includes negotia gesta under the head of quasi contracts. (Bracton, De Leg. et Consuetud. AngliŠ III, II, 10.)

The doctrine of the Civil Law, with certain unimportant modifications, prevails in Scotland. The negotiorum gestor is entitled to indemnification for his expenses, as well as for any obligations necessarily incurred by him in the discharge of his duty. He is legally authorized to protect the rights of his absent principal when they are endangered; but he cannot bring an action for his benefit. He is only responsible for gross negligence. (More, Lectures on the Law of Scotland, Vols. II, III, 1.) The general features of the Roman Law relative to the reciprocal obligations of the parties have been adopted by the Latin nations of Europe. In Prance, however, in a case of negotia gestata, it makes no difference whether the principal is aware that a voluntary agent has undertaken the conduct of his affairs, or not. The negotiorum gestor is only required to exercise the diligence of a careful householder. He is also bound to continue to discharge his duties even after the death of his principal, until his heir can take charge of the business. (Code Civil, Secs. 1372, 1373, 1374.) Similar provisions are contained in the Spanish, Italian and Portuguese Codes. (Cˇdigo Civil de Espa˝a, Secs. 1889, 1890, 1892. Codice Civile d'Italia, 1141, 1142, 1143. Cˇdigo Civil Portuguŕz, Secs. 1723, 1724, 1725.) — ED.

himself or his guardians? Suppose, for instance, that his father had died far from home, and that his mother, while returning to her country had supported her son and the slaves; in this instance the Divine Pius Antoninus established the rule that a suit on the ground of business transacted could be granted against the minor himself. Therefore, as the question is one of fact, I think that the grandmother or her heirs should be heard if they wish an accounting for maintenance, and especially so if it appears that the grandmother had entered the items in the expense account. I think that it by no means should be admitted that the expenses should be charged to both estates.

35. ScŠvola, Questions, Book I.

Where a husband has transacted the affairs of his wife after a divorce has taken place, her dowry can be recovered not only by an action for dowry, but also on the ground of business transacted. This is the case where the husband was able to deliver the dowry while he was attending to the business; otherwise, he cannot be made responsible, for not exacting it from himself; but after he has lost his property, a full right of action on the ground of business transacted will lie against him; although if the husband is sued in an action for dowry he must be discharged. But in this instance a limit should be fixed, so if the statement of the complaint is: "As far as he was able although he afterwards lost his property"; where he was able to pay her during that time; for he was not guilty of wrong-doing, so far as his duty was concerned, if he did not immediately sell his property in order to obtain the amount, for he must have allowed some time to pass during which he appeared not to have done anything. If, in the meantime, before he had fulfilled his duty, the property was lost, he is not liable on the ground of business transacted any more than if he had never been able to pay the money. But where the husband is able to pay, an action founded on business transacted is permitted because there is danger if he ceases to be solvent.

(1) I do not think that a man who transacts the business of a debtor is bound to restore to him a pledge when he still owes the money, and there is no other way in which it can be paid.

(2) The action for the rescission of a contract does not belong to the class of actions based on business transacted, and is barred after six months have elapsed, if the party did not find the slave among the assets of the other; or, if he did find them, did not find, and therefore did not recover, certain additional property which belonged under the head of accessions, so that the slave was less valuable, or any thing that was acquired through the slave which was not derived from the property of the purchaser; and there was not enough obtained from the business of the purchaser for the vendor to satisfy his claim.

(3) Moreover, if the person who is transacting the business owes his principal on some other ground, and the obligation is one of long time, and the party is wealthy, he cannot be blamed for not paying the debt; that is, provided the payment of the interest does not give rise to complaint. The rule is different in the case where a guardian is a

debtor to his ward, because there the latter was interested in the payment of the former debt, as he then might bring suit for the debt on the ground of guardianship.

36. Paulus, Questions, Book IV.

Where a man who is free, but serves me in good faith as a slave, has borrowed money and employed it for my benefit, let us consider by what action I must restore what he expended in my behalf; as he transacted the business for me not as a friend, but as his owner. An action based on the ground of business transacted should be granted, and this ceases to be proper as soon as his creditor is paid.

37. The Same, Opinions, Book I.

Where the business of a ward has been transacted without the authority of his guardian, it is customary to inquire, at the time issue was joined in the case, whether the ward has become enriched by the matter on account of which suit was brought against him.

(1) Where anyone transacts business for another in which money is involved, he is compelled also to pay interest and assume the risk in such investments, as he himself has contracted; except where, through accidental circumstances, the debtors have lost so much of their money that at the time when issue was joined in the suit they became insolvent.

(2) Where a father has charge of property belonging to his emancipated son and which he has given him, he is liable to a suit on the ground of business transacted.

38. Tryphoninus, Disputes, Book II.

A man who owed a debt which did not bear interest transacted the business of his creditor, and the question arose whether he could be compelled to pay interest on the above-mentioned sum by a suit based on business transacted. I stated that he would owe interest if he had been required to collect it for himself, but if the day for payment had not arrived at the time when he was transacting the business, he would not be compelled to pay interest; but if the time had elapsed, and he did not include the money owed by himself in the accounts of the creditor whose business he was transacting, he certainly would be compelled to pay interest in a bona-fide action. Let us see what interest he would owe, whether it would be that on which the same creditor would loan money to others, or would it be the highest rate? It is true that anyone who converts to his own use the money of a party whose guardianship or business he has charge of, or if a magistrate appropriates the money of a municipality, he must pay the highest rate of interest, as has been established by the Divine Emperors. But it is different in this instance, where a party did not appropriate money from the business which he was transacting, but borrowed it from a friend before he assumed the administration of the latter's affairs; for those to whom the above rule has reference were obliged to show good faith without compensation, at all events such as was absolute

and without any profit whatever; and where they appear to have abused their privileges they are forced to pay the highest rate of interest by way of a kind of penalty; but this party received property as a loan in a legal way, and is liable to interest because he did not pay the principal, and not because he appropriated to his own use money derived from the business which he was transacting. It makes a great deal of difference whether the indebtedness has just begun to be incurred, or whether it was done previously, because in the latter instance this is enough to make a debt bear interest which did not do so before.

39. Gaius, On Verbal Obligations, Book HI.

Where anyone pays a debt for another, even though the latter is unwilling, or ignorant of the fact, he discharges him from liability; but where money is owing to anyone, another cannot legally exact it without the consent of the former; for both natural reason and the law have established the rule that we may improve the condition of a man who is ignorant and unwilling, but we cannot make it worse.

40. Paulus, On Sabinus, Book X.

If I have a house in common with you and give security for the prevention of threatened injury for your part of said house; it must be stated that what I pay by way of damage I can sue you for rather on the ground of business transacted than on that of a common division of expense; because I was able to protect my own share without being forced to protect that of my partner.

41. The Same, On the Edict, Book XXX.

Where anyone has defended my slave in a noxal case, and I was ignorant of the fact, or absent, he will have a right of action against me for the entire amount on the ground of business transacted, and not one based on peculium.

42. The Same, On the Edict, Book XXXII.

If you undertake the transaction of my business at the request of my slave, and have done this merely at his suggestion, a suit based on business transacted will arise between us; but if you do so under the direction of my slave, it has been held that you can bring suit, not only to the extent of the peculium, but also on the ground of its having been for my benefit.

43. Labeo, On the Last Epitomes by Javolenus, Book VI.

When you pay money in the name of a party who did not specially direct you to do so, you will be entitled to an action based on business transacted; since by that payment the debtor was discharged by his creditor, unless the debtor had some interest in not having the money paid.

44. Ulpianus, Disputations, Book VI.

Where a man induced by friendship for their father makes an application for the appointment of a guardian for minors, or takes

measures for the removal of guardians who are suspected, he has no right of action against said minors, according to a Constitution of the Divine Severus.

45. The Same, Opinions, Book IV.

Where an expenditure of money is advantageously made by some one while transacting the business of another, which includes expenses honorably incurred to secure public offices which are obtained by degrees; the sum expended can be recovered by an action based on business transacted.

(1) Where slaves have received their freedom absolutely by will, they are not compelled to give an account of the matters which they transacted during the lifetime of their master.

(2) Titius, being under the impression that his sister was the testamentary heir of the deceased, paid a debt to the creditors of the estate. Although he did this with the intention of transacting the business of his sister, he was in fact doing it for the children of the deceased who would be the proper heirs of their father if there had been no will; and, because it is just that he should not be subjected to loss, it is established that he can recover what he has paid by a suit based on business transacted.

46. Africanus, Questions, Book VII.

You directed my son to buy you a tract of land, and when I heard of it I myself bought the land for you. I think it should be considered with what intention I made the purchase; for if I knew it to be on account of something which was necessary to you, and also it was your will that you would be glad to have the purchase, a right of action based on business transacted arises between us; as there would be if there had been no mandate of any kind, or if you would have ordered Titius to make the purchase, and I had made it because I could attend to the matter more conveniently. If, however, I made the purchase to prevent my son from being liable to an action on mandate, it is the better opinion that I could bring an action on mandate against you in his behalf, and you would be entitled to an action de peculio against me; because, even if Titius had executed a mandate, and, to prevent his being held liable on that account, I had made the purchase, I could bring an action against Titius on the ground of business transacted, and he could bring one against you, and you one against him, on mandate. The same rule applies if you ordered my son to be surety for you, and I become surety for you myself.

(1) If the suggestion is made that you have ordered Titius to become your surety, and for some reason he, having been prevented from doing so, I become your surety in order to release him from his promise, I will be entitled to an action based on business transacted.

47. Paulus, Sentences, Book I.

An action based on business transacted is granted to him who is interested in having a case of this kind brought.

(1) It makes no difference whether a party brings suit by a direct or other action, or whether suit is brought against him; (since in extraordinary proceedings where the use of formulas is not observed this distinction is superfluous), especially where both these actions have the same force and effect.

48. Papinianus, Questions, Book HI.

Where a brother, who transacts the business of his sister without her knowledge, stipulates for her dowry with her husband; an action can legally be brought against him on the ground of business transacted to compel him to release her husband.

49. Africanus, Questions, Book VIII.

Where a slave whom I have sold steals something from me, his vendor, and the purchaser sells the article, and then it ceases to exist, an action for the price should be granted me on the ground of business transacted; as would be the case if you had attended to some business which you thought to be yours, when in fact it was mine; or, on the other hand, you would be entitled to an action against me if, where you thought an estate belonged to you when it in fact belonged to me, you delivered to some person property of your own which had been bequeathed to you (since the payment of the legacy in this instance would release me).

TITLE VI. CONCERNING PERSONS WHO BRING VEXATIOUS ACTIONS.

1. Ulpianus, On the Edict, Book X.

"Where anyone is said to have received money for the purpose of causing annoyance, or to abstain from doing so, a right of action in factum will lie against him for a year to recover fourfold the amount which he is said to have received; and after a year one will lie for the actual amount."

(1) Pomponius states that this action is not only applicable to cases where money is involved, but also to public prosecutions, and especially as the party is liable under the Lex Repetundarum who receives money in consideration of doing something to cause annoyance or for refraining from doing so.

(2) Anyone who receives money before issue is joined in a case or who receives it afterwards, is equally liable.

(3) A Constitution of our Emperor directed to Cassius Sabinus, prohibits the giving of money to a judge or an adversary in public or private cases, or in those in which the Treasury is interested; and where this is done it orders the right of action to be lost. For it may be asked, if the adversary, not with vexatious intent but for the purpose of compromise, accepted the money; does the constitution apply? It is my opinion that it does not, since the right of action has ceased; for compromises are not forbidden but only base acts of extortion.

(4) Again, a party is also said to have received money where he has received something else instead of money.

2. Paulus, On the Edict, Book X.

Moreover, where anyone is released from an obligation this may be considered as receiving money; and also where money is loaned him to be used gratuitously, or property is sold or leased for less than its value. It makes no difference whether the party himself received the money, or ordered it to be paid to someone else, or ratified it after it had been accepted in his behalf by another.

3. Ulpianus, On the Edict, Book X.

In general, this rule also applies where a party obtains any benefit for such a consideration, whether he gets it from his adversary or from anyone else.

(1) Wherefore, if a party receives money for the purpose of causing some annoyance, he is liable whether he did so or not; and where he received it not to cause annoyance, if he does cause it, he is liable.

(2) He also is liable under this Edict who is depectus, which means one who has entered into a disgraceful contract.

(3) It should be observed that he who has paid money in order that some party might suffer annoyance, has himself no right of recovery, for he has acted dishonorably; but the right of action is granted to him on whose account the money was paid for the purpose of annoying him; for which reason if anyone receives money from you in consideration of causing me annoyance, and from me to prevent my being annoyed, he will be liable to me in two actions.

4. Gaius, On the Provincial Edict, Book IV.

An heir, however, is not entitled to this action, because it should be sufficient for him that he has a right of action to recover the money which was paid by the deceased:

5. Ulpianus, On the Edict, Book X.

But this action is granted against an heir for whatever has come into his hands; as it has been established that this dishonorable profit can be recovered from heirs, although criminal actions are extinguished; as, for instance, where money is given for falsification, or to a judge for a favorable decree, and is recovered from the heir, as anything else may be recovered which has been obtained in an unlawful manner.

(1) Also, in addition to this action, one to recover the money also lies, where the only base conduct is that of the party who received it; for if this also applies to the giver then he who possessed it is in a better position. If a suit for the money should be brought, would this right of action be lost, or should a suit for threefold the amount be granted? In a case of a thief we grant an action for fourfold the amount, as well as one for the recovery of the property. I am of the opinion that either of the actions alone is sufficient, for where an action for the recovery of the money will lie, then it is not necessary to grant an action in factum after the lapse of a year.

6. Gaius, On the Provincial Edict, Book IV.

The year when a person is paid money to prevent suit being brought against him begins at the time when the payment was made, if he then had power to bring suit to recover it. But in the case of a person with reference to whom another paid money to have suit brought against him, it may be doubted whether the year should be reckoned from the day when the money was paid, or from the day when the party knew that it had been paid; for where he does not know that there is reason for suit to be brought against him, he is held not to have the power of bringing one, and the better opinion is that the year should be reckoned from the time when he did know.

7. Paulus, On the Edict, Book X.

Where anyone has received money from another in order to prevent me from being subjected to annoyance, then, if it was given through my direction, or by my agent who had charge of all my business, or by a party who voluntarily acted in my behalf, and whose act I ratified, I am considered to have paid the money myself. But if another party did not pay it on my order, even though he did it through consideration for me in order that the act should not be committed, and I did not ratify what he did; then the party who paid the money can recover it, and I have a right of action for fourfold the amount.

(1) If the money was paid for the purpose of having a vexatious suit brought against the son of a family, the father also is granted this action. In like manner, if the son of a family should accept money to induce him to bring a vexatious suit against anyone, or not to bring it; an action will be granted against his father. If another party paid him money not to bring the action without any direction from me, he can then recover it, and I will have a right to bring suit for quadruple the amount.

(2) Where a farmer of the revenue retains a person's slaves, and money was paid to him which was not due, he, also, is liable in an action in factum by this section of the Edict.

8. Ulpianus, Opinions, Book IV.

When a competent judge is informed by an innocent man that he has paid money on account of a crime which was not proved against him; he must order what has been unlawfully extorted to be refunded, according to the terms of the Edict which treat of persons who are said to have received money either to cause annoyance, or to refrain from doing so; and he must inflict punishment in proportion to the crime upon the party who committed it.

9. Papinianus, On Adultery, Book II.

Where a slave is accused he shall be put to torture, if this is demanded; and if he is acquitted, the accuser shall be condemned to pay his master double his value; and, in addition to double his value, an inquiry shall be made as to whether the prosecution was instituted for the purpose of annoyance, as the crime of illegal prosecution is separate from any loss which has been sustained by the master through the torture of the slave.


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