Title XIX: On Procurators

A layman can be a procurator for bringing and defending spiritual causes. — § 1. After joinder of issue a procurator can appoint another procurator, but not before, unless he was appointed concerning his own affair or received a mandate from his principal to substitute another, even without a definite person being named. — § 2. A procurator appointed for business can freely appoint another procurator at any time. This is what it says.

Boniface VIII. A judge is not judged to have acted indiscreetly by admitting a lay procurator to bring or defend spiritual causes, since, as a rule, one who is not expressly prohibited from exercising the office of procurator ought to be reputed suitable.

§ 1. Although after joinder of issue another procurator can be appointed by a procurator, since he has been made master of the litigation, nevertheless he cannot do so beforehand unless he was appointed concerning his own affair, or the power to substitute another—even without a definite person being expressed—was granted to him by the principal.

§ 2. A procurator appointed for business, however, can freely depute another at any time.

Before joinder of issue a procurator can be revoked even without cause, but after joinder of issue not without reasonable cause; nevertheless, the principal can properly be present in the cause with the procurator, especially if he fears collusion.

The same. Although a procurator can be freely revoked by the principal before joinder of issue, even without cause, afterward he cannot be revoked against his will unless it happens that he becomes hostile to the principal, becomes suspect, is joined by affinity to the adversary, becomes his heir, enters religion, travels on a long pilgrimage, is detained by illness or bonds, or another reasonable cause exists on account of which he is deservedly to be revoked. But although he cannot be revoked except as set forth above, the principal is by no means prohibited from being present in his cause together with that procurator, especially if he fears collusion.

A procurator having a mandate to substitute cannot revoke the person substituted by him after the mandate has been accepted, even if that person has not exercised it, unless he also had power to revoke. But if he was procurator for several causes and substituted in one, he remains procurator in the others. John Andrew.

The same. One who was substituted as procurator by a procurator having power from the principal concerning this cannot, after accepting the mandate, be revoked thereafter by that procurator, even if he has not exercised it—although it is judged otherwise concerning a delegate of the Apostolic See who commits his functions to another—unless the power to revoke had been granted to that procurator. But if, when he had been appointed generally for several or all causes, he substituted in only one of them, he is by no means prohibited from exercising the office of procurator in the others.

A general procurator does not perform acts requiring a special mandate unless there is either a specification of some of them or free power. This is what it says. Zenz.

The same. One who is appointed procurator for bringing and defending actions, and generally for all things, even if they require a special mandate, ought not by force of such generality to be admitted to an article in which a special mandate is required. But if some one or more of the articles requiring a special mandate had been specified and a general clause added, then he will also be admitted to those not expressed. Nor can a procurator, without a special mandate, tender an oath, transact, or make a pact, unless free administration of the goods or cause has been granted to him.

A general mandate for business extends also to judicial proceedings. — § 1. A son under paternal power can be a procurator even without his father’s consent. Zenz. — § 2. One older than twenty-five years can be deputed procurator for judicial proceedings, and one older than seventeen for business. This is what it says. Zenz.

The same. One who is generally appointed procurator for business can bring actions and litigate, except in those cases requiring a special mandate.

§ 1. A son under paternal power can become procurator not only for business but also for judicial proceedings without his father’s assent.

§ 2. Although someone can lawfully be deputed procurator for business after his seventeenth year, he cannot be deputed for judicial proceedings unless he is older than twenty-five years.

Of two procurators appointed together without qualification, one alone ought not to be admitted. But if they were appointed severally with full power, the one who first joins issue is admitted and the other wholly excluded, unless it was added that the condition of the one first taking up the matter is not to be better. In that case, if one does not prosecute and does not substitute another, the remaining procurator is to be admitted. This is what it says. — § 1. A procurator appointed severally with full power who had taken up the business and is excluded through an impediment does not reassume it unless the other is impeded. This is what it says. Dominicus. — § 2. In spiritual causes, of two procurators appointed together without qualification, the judge chooses the more suitable, who alone will be able to prosecute; nor is the other admitted even if the first is legitimately excluded. This is what it says. Dominicus.

The same. If two procurators are deputed together without adding “severally with full power,” one ought not to be admitted without the other. It is otherwise if they were appointed severally with full power; but then the condition of the one who first takes up the business through joinder of issue will be better. After such taking up, the other cannot thereafter intermeddle, since the former has been made master of the litigation, unless it was stated in the appointment that the condition of the one taking up the matter would not be better. For then, if it happens that the one who took it up becomes ill, dies, is absent, or is otherwise impeded, or perhaps is unwilling to prosecute, the other can undertake and complete the business begun by him, provided that the first did not substitute another. For if he did, that person ought to be preferred to the other procurator.

§ 1. Furthermore, where, no one having been substituted, the other undertakes to prosecute the business, the person who first took it up cannot later reassume it when the impediment ceases, unless perhaps it happens that the other is impeded.

§ 2. Indeed, in causes concerning elections, postulations, provisions, and other spiritual business, since such matters are known to require swifter expedition, we will that the following be specially observed: if several procurators were deputed together in them, not severally with full power, the judge, lest it happen that the business becomes entangled through their concurrence, may choose the more suitable from among them, and he alone is to prosecute. Whatever is done with the person thus chosen is to have full strength of force; nor is another afterward to be admitted to prosecute except in the manner in which we judged above that the person who did not take up the business is to be admitted after it was taken up by another.

A procurator who refuses to accept a mandate can change his mind for as long as the person appointing him perseveres in the same will.

The same. Although one who is appointed procurator by an absent person has said that he does not wish to undertake the mandate presented to him, nevertheless, notwithstanding this, he can accept it whenever he pleases for as long as the person appointing him perseveres in the same will.

A principal appointing a procurator whenever it happens that he is absent is not understood to revoke the procurator by conducting the cause himself; it is otherwise if he appointed him without qualification, unless he expressly protests that he does not intend to revoke him or this otherwise appears from probable conjectures. John Andrew.

The same. If you appoint someone procurator for a cause under the form, “whenever it happens that you are absent,” you are not known to revoke that procurator merely because you afterward conduct the cause yourself; rather, the same procurator will assume the office of procurator whenever it happens that you are absent.

It is otherwise if he was appointed by you without qualification. For then, whether before or after joinder of issue, if you come to the cause not to assist that procurator but to conduct the same cause, by conducting it you are judged to revoke him, unless you expressly say that you will him to remain in the office of procurator notwithstanding this, or unless it appears from some conjectures that you do this without an intention to revoke him—for example, if perhaps some article is impending concerning which you know the truth better, if the procurator himself is ill or perhaps absents himself, or if anything else happens on account of which your presence is opportune for the cause.

It says three things. First, that a procurator for contracting marriage ought to have a special mandate. Second, that such a procurator does not substitute another unless he has a mandate for this. Third, that if such a procurator, after being revoked, contracts marriage even in ignorance of the revocation, the marriage does not hold. John Andrew.

The same. A procurator is not judged suitable to contract marriage unless he has a special mandate for this. And although in other cases one appointed procurator for business can appoint another, nevertheless, in this case, because of the great danger that could threaten from so weighty an act, he cannot depute another unless this was specially committed to him. Indeed, if the procurator was revoked by the principal before he contracted, the marriage afterward contracted through him is of no moment, although both he and the woman with whom he contracted were wholly ignorant of a revocation of this kind, since the consent of the principal was lacking, without which the marriage could not have firmness.