Quod cuiuscumque universitatis nomine vel contra eam agatur
(How proceedings are instituted for, or against corporations.)
1 Gaius libro tertio ad edictum provinciale. Neque societas neque collegium neque huiusmodi corpus passim omnibus habere conceditur: nam et legibus et senatus consultis et principalibus constitutionibus ea res coercetur. paucis admodum in causis concessa sunt huiusmodi corpora: ut ecce vectigalium publicorum sociis permissum est corpus habere vel aurifodinarum vel argentifodinarum et salinarum. item collegia Romae certa sunt, quorum corpus senatus consultis atque constitutionibus principalibus confirmatum est, veluti pistorum et quorundam aliorum, et naviculariorum, qui et in provinciis sunt. 1Quibus autem permissum est corpus habere collegii societatis sive cuiusque alterius eorum nomine, proprium est ad exemplum rei publicae habere res communes, arcam communem et actorem sive syndicum, per quem tamquam in re publica, quod communiter agi fierique oporteat, agatur fiat. 2Quod si nemo eos defendat, quod eorum commune erit possideri et, si admoniti non excitentur ad sui defensionem, venire se iussurum proconsul ait. et quidem non esse actorem vel syndicum tunc quoque intellegimus, cum is absit aut valetudine impedietur aut inhabilis sit ad agendum. 3Et si extraneus defendere velit universitatem, permittit proconsul, sicut in privatorum defensionibus observatur, quia eo modo melior condicio universitatis fit.
1 Gaius, On the Provincial Edict, Book III. All persons are not permitted indiscriminately to form corporations, associations, or similar bodies, for this is regulated by laws, Decrees 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. 1When 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. 2Where 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. 3Where 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 libro octavo ad edictum. Si municipes vel aliqua universitas ad agendum det actorem, non erit dicendum quasi a pluribus datum sic haberi: hic enim pro re publica vel universitate intervenit, non pro singulis.
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 Idem libro nono ad edictum. Nulli permittitur nomine civitatis vel curiae experiri nisi ei, cui lex permittit, aut lege cessante ordo dedit, cum duae partes adessent aut amplius quam duae.
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 libro nono ad edictum. Plane ut duae partes decurionum adfuerint, is quoque quem decernent numerari potest.
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 libro octavo ad edictum. Illud notandum Pomponius ait, quod et patris suffragium filio proderit et filii patri,
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 libro nono ad edictum. item eorum, qui in eiusdem potestate sunt: quasi decurio enim hoc dedit, non quasi domestica persona. quod et in honorum petitione erit servandum, nisi lex municipii vel perpetua consuetudo prohibeat. 1Si decuriones decreverunt actionem per eum movendam quem duumviri elegerint, is videtur ab ordine electus et ideo experiri potest: parvi enim refert, ipse ordo elegerit an is cui ordo negotium dedit. sed si ita decreverint, ut quaecumque incidisset controversia, eius petendae negotium Titius haberet, ipso iure id decretum nullius momenti esse, quia non possit videri de ea re, quae adhuc in controversia non sit, decreto datam persecutionem. sed hodie haec omnia per syndicos solent secundum locorum consuetudinem explicari. 2Quid si actor datus postea decreto decurionum prohibitus sit, an exceptio ei noceat? et puto sic hoc accipiendum, ut ei permissa videatur, cui et permissa durat. 3Actor universitatis si agat, compellitur etiam defendere, non autem compellitur cavere de rato. sed interdum si de decreto dubitetur, puto interponendam et de rato cautionem. actor itaque iste procuratoris partibus fungitur et iudicati actio ei ex edicto non datur nisi in rem suam datus sit. et constitui ei potest. ex isdem causis mutandi actoris potestas erit, ex quibus etiam procuratoris. actor etiam filius familias dari potest.
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. 1If 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. 2Where 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. 3Where 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 libro decimo ad edictum. Sicut municipum nomine actionem praetor dedit, ita et adversus eos iustissime edicendum putavit. sed et legato, qui in negotium publicum sumptum fecit, puto dandam actionem in municipes. 1Si quid universitati debetur, singulis non debetur: nec quod debet universitas singuli debent. 2In decurionibus vel aliis universitatibus nihil refert, utrum omnes idem maneant an pars maneat vel omnes immutati sint. sed si universitas ad unum redit, magis admittitur posse eum convenire et conveniri, cum ius omnium in unum recciderit et stet nomen universitatis.
7 Ulpianus, On the Edict, Book X. As the Prætor 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. 1Where 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. 2In 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 Iavolenus libro quinto decimo ex Cassio. Civitates si per eos qui res earum administrant non defenduntur nec quicquam est corporale rei publicae quod possideatur, per actiones debitorum civitatis agentibus satisfieri oportet.
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 possession may be obtained, payment must be made to those who bring suit for debts owing to the corporation.
9 Pomponius libro tertio decimo ad Sabinum. Si tibi cum municipibus hereditas communis erit, familiae erciscundae iudicium inter vos redditur. idemque dicendum est et in finium regundorum et aquae pluviae arcendae iudicio.
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 libro primo manualium. Constitui potest actor etiam ad operis novi nuntiationem et ad stipulationes interponendas, veluti legatorum, damni infecti, iudicatum solvi, quamvis servo potius civitatis caveri debeat: sed et si actori cautum fuerit, utilis actio administratori rerum civitatis dabitur.
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.