THE DIGEST OR PANDECTS. BOOK II.
TITLE I. CONCERNING JURISDICTION.
1. Ulpianus, Rules, Book I.
The duties of him who has the right of dispensing justice are very extensive; for he can grant the possession of estates, place the parties in possession, appoint guardians for minors who have none, and designate judges for litigants.
2. Javolenus, On Cassius, Book VI.
He to whom legal jurisdiction is given is also held to be invested with all the powers necessary for its exercise.
3. Ulpianus, On the Duties of Quæstor, Book II.
Official authority is either simple or mixed. Simple authority invests the magistrate with the right of inflicting the death penalty upon persons who are violators of the law, which is also designated "power". Mixed authority, which embraces legal jurisdiction, consists of the right of granting possession of property. Jurisdiction includes the power of appointing a judge.
4. The Same, On the Edict, Book I.
The right to order a bond to be executed by a prætorian stipulation, and to place a party in possession, rather belong to authority than to jurisdiction.
5. Julianus, Digest, Book I.
It was established by the custom of our ancestors that he only can delegate jurisdiction who possesses it in his own right, and not through delegation by another.
6. Paulus, On the Edict, Book II.
And this is because jurisdiction is not given to him in the first place, and has not been conferred upon him by law, which only confirms that which has already been delegated; and therefore, if anyone who has delegated his jurisdiction should die before the business over which jurisdiction has been delegated to him had begun to be transacted; Labeo says that the delegated authority is abrogated, just as it is in other cases.
7. Ulpianus, On the Edict, Book HI.
"If a person maliciously destroys a notice which has been entered in the register of an official, or written on papyrus, or any other substance, and which has reference to the general jurisdiction of the said official and not to any special matter; judgment should be rendered against him for fifty aurei, and anyone may bring suit for the same."
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(1) Slaves and sons of families also are affected by the terms of this edict; and the Prætor includes both sexes.
(2) If anyone should cause this damage before the notice has been published or while it is being published, the words of the Edict will be without effect; but Pomponius holds that the principle of the Edict is applicable to such a case.
(3) If the offence has been committed by slaves who are not defended by their masters, or by persons who are in poverty, corporeal punishment shall be inflicted.
(4) Malice is mentioned in the words of the Edict, because if anyone should commit such an act through ignorance or stupidity, or by the order of the Prætor himself, or through accident, he will not be liable.
(5) He who removes the document, even though he may not destroy it, is also liable under this Edict which includes both him who performs the act himself and him who orders another to perform it; but if anyone performs it without malice by the direction of another who was actuated by malice, the latter will be liable; and if both of them act maliciously both will be liable; and if several persons commit the act, whether they destroy documents, or order this to be done, all will be liable.
8. Gaius, On the Provincial Edict, Book I.
And this applies to such an extent that it will not be sufficient for only one of them to pay the penalty.
9. Paulus, On the Edict, Book HI.
If the entire body of slaves belonging to anyone should deface a register, the Edict does not treat this offence as it would a case of theft, where the master who wishes to defend the action pays as much in the name of one slave as a freeman would be compelled to pay, for then no action will lie against the others; the reason for which is perhaps that, in this instance, the offended dignity of the Prætor must be vindicated, and several acts are understood to have been committed; in the same manner as when several slaves have perpetrated a wrong, or have caused damage, because several acts have taken place, and not merely one, as in the case of theft.
Octavenus says that in this instance relief ought to be granted to the master, but this can only be maintained where the slave maliciously brings it about that the register shall be destroyed by another, because then there is only one conspiracy, and not several acts. Pomponius states the same thing in the Tenth Book.
10. Ulpianus, On the Edict, Book HI.
He who presides over the administration of justice ought not to render judgment in his own case, or in that of his wife or children, or of his freedmen, or of any others whom he has with him.
11. Gaius, On the Provincial Edict, Book I.
Where one person brings several actions against another and the amounts of the different claims demanded therein, if taken separately,
are within the jurisdiction of the judge, but the entire sum exceeds it, it was the opinion of Sabinus, Cassius, and Proculus that the actions could be tried before him; and this opinion was confirmed by a Rescript of the Emperor Antoninus.
(1) Where, however, the rights of actions are reciprocal in their character, and one party claims an amount under the limit, and another one over it, he who claims the smaller sum can proceed before the same judge; so that it may not be in the power of my adversary, if he wishes to annoy me, to prevent me from trying the case before the same judge.
(2) Where an action is brought by a number of persons at the same time, as for instance for the partition of an estate, the division
of common property, or the establishment of boundaries, should we in • order to ascertain the jurisdiction of the judge who has cognizance of the case, consider the value of the separate shares, which is the opinion of Ofilius and Proculus for the reason that each party is bringing suit for his own share; or should the entire value of the property rather be considered because the whole of it is in court and may perhaps be adjudged to one person? This is the opinion of both Cassius and Pegasus, and in fact it seems the more reasonable one.
12. Ulpianus, On the Edict, Book XVIII.
Municipal magistrates have no authority to inflict severe punishment upon a slave; the right of moderate castigation cannot, however, be denied them.
13. The Same, On Sabinus, Book LI.
He who orders anyone to act as judge must be a magistrate.
(1) A magistrate, or he who is invested with any authority, (as for instance, a Proconsul, a Prætor, or any other official who governs a province) cannot appoint a judge on the day on which he becomes a private person.
14. The Same, On the Edict, Book XXXIX.
It is an accepted rule which we make use of in law, that if anyone of higher, or of equal rank, submits himself to the jurisdiction of another, the latter can administer justice for and against him.
15. The Same, On All Tribunals, Book II.
If, through error, anyone appears before one Prætor while intending to appear before another, none of the proceedings which have been instituted will be valid, for no one is permitted to say that they agreed upon the judge; since, as Julianus stated, those who are in error do not agree. For what is so contrary to agreement as error, which always reveals ignorance?
16. The Same, On All Tribunals, Book HI.
The Prætor is accustomed to delegate his jurisdiction, and either delegate all or a portion of the same; while he to whom the right of dispensing justice has been delegated, exercises it in the name of him who appointed him, and not in his own.
17. The Same, Opinions, Book I.
As the Prætor can delegate his entire jurisdiction to one person, he can also delegate it to several, or he can do this with reference to a particular case; and especially where he has a good reason, for example, because he appeared as the advocate of one of the parties before becoming a magistrate.
18. Africanus, Questions, Book VII.
If it is agreed upon by the parties that another Prætor than the one who had jurisdiction of the case should hear it, and before applying to him one of them should change his mind, there is no doubt that he cannot be compelled to abide by an agreement of this kind.
19. Ulpianus, Trusts, Book VI.
In a case where an unmarried woman had undertaken a defence before a competent judge and was defeated, and afterwards married a man who was subject to a different jurisdiction, the question arose whether the judgment of the former court could be executed? I have said that it could, because judgment had been rendered before her marriage; but if this had occurred after the judge had taken cognizance of the case, and before judgment, I hold the same opinion, namely that the decision of the first judge was properly rendered. This rule should be observed generally in all cases of this description.
(1) When the amount is made the subject of inquiry with reference to jurisdiction, the sum claimed must always be considered, and not that which is due.
20. Paulus, On the Edict, Book I.
A judge who administers justice beyond his jurisdiction may be disobeyed with impunity. The same rule applies if he wishes to dispense justice where the amount is beyond his jurisdiction.
TITLE II.
EACH ONE MUST HIMSELF USE THE LAW WHICH HE HAS ESTABLISHED FOR OTHERS.
1. Ulpianus, On the Edict, Book HI.
The Edict is characterized by the greatest equity and is without just cause of complaint by anyone, for who will refuse to be judged by the same law which he himself applied, or caused to be applied to others?
(1) "If anyone invested with magistracy, or other authority has established a new rule against any party, he must himself be judged by the same, when his adversary demands it. Where anyone has obtained the application of a new law before an official invested with magistracy, or other authority, and subsequently some adversary of his demands it, he shall have his case decided against him by the same
law; that is to say, that whatever anyone thinks to be just with reference to another party he must suffer to prevail against himself as well."
(2) Moreover, these words, "What he who administers justice has established", we must accept according to the effect, and not according to the words; and therefore if anyone wishes to render a decision and is prevented from doing so, and his decision should not have any effect, the Edict does not apply, for the word "established" denotes something which has been perfected, a wrong which has been consummated and not merely begun; and therefore if anyone administers justice between parties over whom he has no jurisdiction, since the proceedings are void and his judgment has no force, We think that the Edict does not apply; for what does an attempt amount to when no injury resulted?
2. Paulus, On the Edict, Book III.
The malice of the presiding judge is punished by this Edict; for, if through the ignorance of an assessor the law was interpreted in a different manner than it should have been, this should not affect the magistrate, but the assessor himself.
3. Ulpianus, On the Edict, Book III.
When anyone has obtained an unjust decision against another, the same rule shall be applied to the party alone, where this took place on his own motion; but if he did not ask for it, it cannot be enforced against him. But where he obtained it, whether he made use of any rule or merely had permission to avail himself of it, but did not do so, he will be punished under this Edict.
(1) If my procurator made this unjust demand, the question arises to whom this same rule should be applied. Pomponius thinks to me alone, that is if I delegated my authority to him for an especial purpose, or ratified it. Where, however, the guardian or curator of an insane person or of a minor makes such a demand, he himself shall be punished by this Edict. The same rule shall be observed against the procurator if he was appointed in a matter in which he was interested.
(2) This penalty is incurred by all who are included in the provisions of the Edict, not only by the petitioner who was injured by him, but by every one whomsoever who institutes proceedings at any time.
(3) If anyone for whom you are surety has obtained an order of court prohibiting any debtor from filing an exception against him, and you wish to file one in the matter in which you become surety; neither he nor you should obtain the same; although in the meantime you may suffer injury if your debtor is not solvent. But if you yourself come under the terms of the Edict, the principal debtor may plead the exception, but you cannot do so; and the penalty to which you are liable will not affect him, and hence you will have no right of action on mandate against him.
(4) If my son, while a magistrate, should come within the terms of this Edict, will the Edict be applicable in any actions which I may
bring in his behalf? I do not think so, as otherwise my condition will become worse on his account.
(5) When the Prætor says: "He must be judged by the same rule", is this penalty transmitted to the heir? Julianus stated that the action should not only be refused to him, but also to his heir.
(6) He also stated, and not without reason, that he was liable to the penalty of the Edict, not only with reference to rights of action in which he was involved when he came within the terms of the Edict, but also with reference to all those which were acquired for him subsequently.
(7) Julianus thinks that money already paid under such circumstances cannot be recovered, as there was still ground for payment under natural law, which prohibits recovery.
4. Gaius, On the Provincial Edict, Book I.
The Prætor very properly and justly inserted this exception: "Unless one of the parties has acted unjustly against some one who himself had acted in the same way against another." And, indeed, where a magistrate desires to sustain the Edict, or a litigant wishes to obtain the benefit of it, he might render himself liable and incur the penalty prescribed by the Edict.
TITLE III.
WHERE ANYONE REFUSES OBEDIENCE TO A MAGISTRATE RENDERING JUDGMENT.
1. Ulpianus, On the Edict, Book I.
It is permitted to all magistrates, with the exception only of Duumviri, to protect their administration by means of penalties in accordance with their official rights.
(1) He is presumed to refuse obedience to a magistrate having jurisdiction, who declines to execute what has finally been determined; as for example, where he will not allow someone to remove personal property from his possession, but permits it to be taken or carried away; and if he opposes the subsequent proceedings, it is then considered that he does not obey.
(2) If an agent, guardian, or curator refuses to obey a magistrate, he himself is punished, and not the principal or the ward.
(3) Labeo says that not only the defendant, but also the plaintiff, if he does not obey, is liable under this Edict.
(4) This suit is not for a sum which corresponds to the interest of the party who brings it, but is limited to the amount of damages sustained; and as it includes a mere penalty it is extinguished after the lapse of a year, and does not lie against the heir.
TITLE IV. CONCERNING CITATIONS BEFORE A COURT OF JUSTICE.
1. Paulus, On the Edict, Book IV.
To cite anyone before a court of justice is to summon him for the purpose of trying a case.
2. Ulpianus, On the Edict, Book V.
Neither a Consul, a Prefect, a Proconsul, nor any other magistrate who exercises authority, and has the power of restraining others and ordering them to be confined in prison, can be summoned to court; nor can a pontiff be summoned while performing a religious ceremony; nor can those be summoned either, who on account of the sacred character of the place cannot leave it; nor anyone employed in the service of the State who is riding along the public highway upon a horse belonging to the government.
Moreover, a man cannot be summoned who is being married, nor can the woman to whom he is being united, nor a judge while in the exercise of his judicial functions, nor any person who is trying his own case before the Prætor, nor anyone while conducting the funeral rites of a member of his household.
3. Callistratus, Judicial Inquiries, Book I.
Nor can those who are attending a funeral be summoned, which appears to be established by a Rescript of the Divine Brothers.
4. Ulpianus, On the Edict, Book V.
The same rule applies to those who are obliged to be present in court in some certain place for the purpose of litigation, as well as to insane persons, and infants.
(1) The Prætor says: "That no one without my permission can summon to court his parents, his patron or patroness, or the children or parents of his patron or patroness".
(2) By the word "parent" one must here understand those of both sexes. The question, however, arises whether this term may be indefinitely extended? Some hold that it only applies as far back as the great-great-grandfather, and that other ascendants are called "ancestors". Pomponius stated that this was the opinion of the ancient authorities; but Gaius Cassius says that the term applies to all ascendants without exception; which makes it more honorable, and this rule has very justly been adopted.
(3) Labeo held that those also should be considered parents who have become such in slavery, and not, as Severus said, that the term should only apply to instances where children are legitimate; so that where a son has been begotten in promiscuous intercourse, he cannot bring his mother into court.
5. Paulus, On the Edict, Book IV.
This is for the reason that the mother is always certain, although she may have been given to promiscuous intercourse; but the father is he whom the marriage indicates as such.
6. The Same, Sentences, Book I.
No one can cite his natural parents into court, for the same reverence must be preserved for all parents.
7. The Same, On the Edict, Book IV.
A man can summon with impunity the parents of his adoptive father, as they are not really his parents, since he is only cognate to those to whom he is also agnate.
8. Ulpianus, On the Edict, Book V.
A man cannot summon his adoptive father to court as long as he is under his control, which results rather from the right of paternal authority than from the order of the Prætor; unless the son has castrense peculium, and in this instance he can be permitted to do so where proper cause is shown, but he cannot summon his natural father while he is a member of an adoptive family.
(1) The Edict mentions the "patron" or the "patroness". Those are to be considered patrons who have manumitted a slave, or who have detected collusion; as for instance, where someone in a preliminary judicial proceeding had been declared to be a freedman, when in fact he was not; or where I have sworn that the party in question is my freedman; just as, on the other hand, I am not to be considered a patron if judgment is rendered against me; or where, if I tender the oath, the party swears that he is not my freedman.
(2) If, however, I have compelled my freedman or freedwoman to swear not to marry, I can be brought into court; and Celsus indeed says that no right over such a freedman passes to my son during my lifetime.
Julianus, however, holds the contrary, and many adopt his opinion; so that in an instance of this kind it may happen that a patron can be summoned, but his son, being innocent, cannot be.
9. Paulus, On the Edict, Book IV.
He, also, who has manumitted a slave under the terms of a trust cannot be brought into court, although he may be summoned to force him to manumit a slave.
10. Ulpianus, On the Edict, Book V.
If, under this rule, I purchase a slave upon the condition that I will manumit him, and he obtains his liberty by the Constitution of the Divine Marcus, I cannot be cited, as I am his patron; but if I purchase him with his own money, and have broken faith with him, I shall not be considered his patron.
(1) Where a female slave is forced to prostitute herself against the condition of her sale, she will have the vendor as her patron if she was sold under the condition that, "She would become free if she were forced to prostitute herself". But if the vendor, who reserved the right to take possession of her by seizing her, himself prostitutes her, since she still obtains her freedom, she does so through him who sold her, but
it is not proper that any honor should be shown him, as Marcellus holds in the Sixth Book of the Digest.
(2) We also consider a man a patron, even though he may have forfeited his civil rights, or where his freedman has lost his; as for instance where arrogation took place in a clandestine manner, since, as he must have concealed his status from him by whom he was arrogated, his act does not seem to be such as to entitle him to be considered freeborn.
(3) If, however, he has acquired the right of wearing gold rings, I think he should never fail to manifest respect for his patron, even though he may be qualified to exercise all the functions of a freeborn person.1 The case is different if he is restored to all the privileges of birth, for the Emperor can make a man free born.
(4) Anyone who is manumitted by an organized body, a corporation, or a city, can summon any member of the same to court, for he is not the freedman of any of them in particular. He must, however, show respect to all collectively; and if he wishes to bring an action against a municipality or a corporation, he must ask permission to do so under the Edict, although he may intend to summon one who has been appointed the agent of the others.
(5) By the terms "the children and parents of the patron and patroness", we must understand persons of both sexes.
(6) Where a patron has been reduced to the condition of a foreigner through the penalty of deportation, Pomponius is of the opinion that his privilege is forfeited; but if he should be reinstated, he will again enjoy the benefit of the Edict.
(7) The adoptive parents of a patron are also excepted, but only so long as the adoption lasts.
(8) If my son has been given in adoption, he cannot be brought into court by my freedman; nor can my grandson, who is born in an adoptive family. But where my emancipated son adopts a son, a grandson of this kind can be summoned, for he is a stranger to me.
(9) According to Cassius, we. may understand that the term "children", like that of "parents", extends beyond the great-great-grandson.
1 The early Romans wore rings of iron, which they employed as signets. The custom is said to have been introduced from Asia into Greece, and thence into Italy. None but freemen were allowed this privilege, and afterwards the grant of the jus annuli aurei, or right to wear a gold ring presented by the Emperor, rendered a manumitted slave to a certain extent a freeman. The rights of the patron were not, however, annulled under these circumstances, as they were by the legal fiction called "natalibus restitutio", or restoration to his original condition of freedom, which was presumed to be the birthright of every individual.
Under the Republic, the jus annuli aurei was a token of rank possessed only by senators, ambassadors, magistrates, and knights. It was special badge of the eguites, still, its bestowal did not ipso facto place the recipient in the body of knights, unless he possessed the necessary census qualifications.
Conviction of a crime, or the forfeiture of civil rights entailed the loss of the jus annuli. In the later days of the Empire the privilege was greatly extended, and all soldiers and citizens of whatever station were permitted to enjoy it. — ED.
(10) If a freedwoman has a child by her patron, neither she nor her son can bring the other into court.
(11) If the children of a patron have brought a capital accusation against a freedman of their father, or have claimed him as a slave, no honor is due to them.
(12) The prætor says that, "No one can summon them without my permission". It is permitted, however, if the action brought against the patron or his parents is not one involving infamy or shame, for in every instance good cause should be established; as sometimes in an action involving infamy, as Pedius holds, a freedman ought to be allowed to summon his patron, if he has done the former a serious injury; for example, scourged him.
(13) This respect should always be shown to a patron, even if he appears as the guardian, curator, defender, or agent of another; but where the guardian or curator is interested, he can be summoned with impunity, as Pomponius says, and this opinion is the better one.
11. Paulus, On the Edict, Book IV.
Although the prætor does not state that he will render judgment for a penalty where proper cause is shown, still Labeo says that his authority must be exercised with moderation; as for instance, if the freedman changes his mind and abandons his suit; or if the patron having been summoned does not appear; or if he has been summoned with his own consent; even though the terms of the Edict do not concede this.
12. Ulpianus, On the Edict, Book LVII.
If a freedman, in opposition to the Edict of the Prætor, should summon to court the son of his patron whom the patron himself has under his control, it should be held that, if the father is absent, relief should be granted to his son who is under his control, and that a penal action, that is to say one for fifty aurei, will lie against the freedman.
13. Modestinus, Pandects, Book X.
As, generally speaking, we cannot summon persons to whom respect should be shown, without an order of the prætor.
14. Papinianus, Opinions, Book I.
Where a freedman is accused by his patron, and he, being ready to defend himself, has frequently urged the Governor of the province to hear his case; it is not considered that, by so doing, he has summoned his patron who accused him.
15. Paulus, Questions, Book I.
A freedman presented a petition against his patron without concealing the fact that he was his freedman; and the question arose whether, if he obtained an Imperial Rescript in accordance with his wishes, the penalty of the Edict would be remitted? I have answered that I do not think that the Edict of the Prætor is applicable in this instance, for the reason that he who presents a petition to the Em-
peror or to a Governor, is not considered to have summoned his patron to court.
16. The Same, Opinions, Book II.
The question has arisen whether a guardian can, in the name of his ward, summon his patroness, without the permission of the prætor? I have answered the question by stating that he can summon his patroness in the name of his ward, without the prætor's consent.
17. The Same, Sentences, Book I.
Where anyone has given a bond in court for the appearance of another he is obliged to produce him. Again, where he has promised in an instrument which has been recorded that he will produce the party in question, even though he may not have given a bond in court, he will, nevertheless, be forced to produce him.
18. Gaius, On the Law of the Twelve Tables, Book I.
Many authorities have held that it was not lawful to summon anyone to court from his own house; because the house of every individual should be for him a perfectly secure refuge and shelter,1 and that he who summons a person therefrom, must be considered as having employed violence.
19. Paulus, On the Edict, Book I.
It is certain that a party is sufficiently punished if he does not defend his case, and keeps himself concealed, for the reason that his adversary is placed in possession of his property. But Julianus says that if he shows himself, or appears in public, he can be legally summoned.
20. Gaius, On the Law of the Twelve Tables, Book I.
There is no doubt that a man can be lawfully summoned from his vineyard, the bath, or the theatre.
21. Paulus, On the Edict, Book I.
Although a man who is in his own house may sometimes be summoned to court, still, no one should be forcibly removed from his residence.
22. Gaius, On the Law of the Twelve Tables, Book I.
It is not permitted to summon girls who have not arrived at puberty, and who are subject to the control of another.
(1) A man who is summoned should be dismissed in two instances; first, when anyone undertakes his defence; and second, when the controversy has been settled before the parties have come into court.
23. Marcianus, Institutes, Book III.
Where a freedman is common, that is to say, has several patrons, he should petition the prætor to permit him to summon anyone of his patrons, or he will be liable under the Prætorian Edict.
1 This is the undoubted origin of the familiar maxim, "A man's house is his castle", generally attributed to Coke. — ED.
24. Ulpianus, On the Edict, Book V.
An action for fifty aurei can be brought against him who violates these provisions, but it cannot be brought for, or against an heir, nor after a year has elapsed.
25. Modestinus, On Punishments, Book I.
Where a freedman has summoned his patron to court without permission being granted under the Edict, on complaint of the patron he will be liable for the above-mentioned penalty, that is to say, for fifty aurei; or he may be chastised by the Prefect of the City, as lacking in respect, if it is ascertained that he has no property.
TITLE V.
WHERE ANYONE WHO IS SUMMONED DOES NOT APPEAR, AND WHERE ANYONE SUMMONED A PERSON WHOM, ACCORDING TO THE EDICT, HE SHOULD NOT HAVE SUMMONED.
1. Ulpianus, On the Edict, Book I.
Where anyone who is summoned, gives as a surety for his appearance in court a person not subject to the jurisdiction of the magistrate before whom he himself is summoned; such a surety is held not to have been given, unless he especially renounces his privilege.
2. Paulus, On the Edict, Book I.
Anyone who is summoned before the prætor or any other judicial officer in any matter whatsoever, should appear, in order that it may be ascertained whether the magistrate has jurisdiction or not.
(1) Where anyone who has been summoned does not appear, he shall be sentenced to pay a fine in proportion to the authority of the magistrate, where proper cause exists; but allowance must be made for men's ignorance. Again, if the plaintiff has no interest in his adversary appearing in court at that particular time, the prætor can remit the penalty; for example, because the day was a holiday.
3. Ulpianus, On Sabinus, Book XLVII.
Where anyone has promised to appear in court but does not mention the penalty to which he will be liable if he should not appear, it is certain that suit can be brought against him for a sum equal to the plaintiff's interest; and this Celsus also stated.
TITLE VI.
PERSONS WHO ARE SUMMONED MUST EITHER APPEAR, OR GIVE BOND OR SECURITY TO Do So.
1. Paulus, On the Edict, Book I.
It is provided by the Edict, "That where a surety is given that a party will appear in court, the property of the former must be ample,
the position of the defendant being taken into consideration, except where the two are closely related, for then it directs that anyone can be accepted"; as, for instance, where a party is offered as surety for his parent or patron.
2. Callistratus, On the Monitory Edict, Book I.
The same rule applies to the patroness, or to the children, the wife, or the daughter-in-law of the patron; for anyone of these persons can give a surety who must be accepted; and where the plaintiff refuses to accept him, being aware that the parties are nearly related, an action for fifty aurei will lie.
3. Paulus, On the Edict, Book IV.
The reason for this is, that where persons are nearly related, any surety is accepted as being sufficiently solvent.
4. Ulpianus, On the Edict, Book LVIII.
Where anyone promises to produce two persons in court, and he produces one and not the other, he is held not to have kept his promise, as one of them has not been produced.
TITLE VII.
No ONE CAN FORCIBLY REMOVE A PERSON WHO HAS BEEN SUMMONED TO COURT.
1. Ulpianus, On the Edict, Book V.
The Prætor published this Edict to restrain by the fear of punishment those who rescue by violence persons who have been summoned
to court.
(1) And then Pomponius has stated that where a slave commits an offence, a noxal action should be granted unless he committed it with the knowledge of his master; for in this instance the master must defend the action without being permitted to surrender the slave.
(2) Ofilius is of the opinion that the provisions of the Edict do not apply where the person summoned to court is exempt; as for example, a father, a patron, and the other persons above enumerated. This opinion seems to me to be correct; for, indeed, if he who summoned him was guilty of an illegal act, he who liberated him was not.
2. Paulus, On the Edict, Book IV.
For although both parties, the freedman who summoned his patron, and he who liberated him by force, violated the Edict, the condition of the freedman is made worse; because, in an action of this kind he takes the part of plaintiff. The same equitable reason applies to a party who is summoned to a place other than the one to which he should have been summoned. It can, however, be stated more positively that he who had the right to refuse to appear is not held to have been liberated by force.
3. Ulpianus, On the Edict, Book V.
When anyone rescues a slave who has been summoned to court, Pedius thinks that the Edict is not applicable; since the slave is not a person who can be summoned. What then shall be done? Proceedings must be instituted to produce him.
(1) Where anyone liberates a party summoned before a judge of inferior jurisdiction the penalty of the Edict shall not be imposed.
(2) Where the prætor states "He released him by force"; does this mean that the act was committed merely with violence, or with malice also? It is sufficient if the act be perpetrated with violence, even though malice does not exist.
4. Paulus, On the Edict, Book IV.
The term "liberate" is one of general application, as Pomponius says for to "carry off" is to remove by seizure with the hands; but to "liberate" can be done in any way whatsoever; as for example, if anyone does not remove a party by force, but causes delay to prevent him appearing in court, so that the day set for bringing the action goes by, or the property in question is lost by lapse of time, he is held to have liberated him; even though he did not do so bodily. But, if he retained him in some place, and did not abduct him, he is liable under the provisions of the Edict.
(1) Again, if anyone liberates a party who has been summoned for the purpose of annoyance, he is considered to be liable under the Edict.
(2) The prætor says: "He must not act maliciously to enable him to be released"; for this can be done without malice when there is good cause for liberation.
5. Ulpianus, On the Edict, Book V.
Where anyone has effected a rescue through the agency of another, he is liable under this clause, whether he was present or absent.
(1) An action is granted against anyone who has liberated a party by force, and the amount of damages is not based upon what was actually lost, but the value of the property in dispute is fixed by the plaintiff; and this provision was added, so that it might be apparent that if he brought action without proper grounds, he could still recover this penalty.
(2) The plaintiff must also show that the rescue which was made prevented the defendant from appearing in court, but if he was nevertheless produced, the penalty cannot be imposed, since the words are only applicable where some act was performed.
(3) The action is in factum, and is of such a character that where several have committed a wrong it can be brought against each one of them; and the party who was liberated will still remain liable.
(4) The right of action is also granted to heirs if they have any interest in making use of it; it is, however, not granted against an heir, or after the expiration of a year.
6. The Same, On the Edict, Book XXXV.
If he who has released a debtor by force makes payment, he does not exempt the latter from liability, because he pays the penalty of his own act.
TITLE VIII.
WHAT PERSONS ARE COMPELLED TO GIVE A SURETY, AND
WHO CAN MAKE A PROMISE UNDER OATH, OR BE BOUND
BY A MERE PROMISE.
1. Gaius, On the Provincial Edict, Book V.
The term "to give a surety" is derived from the same origin as to furnish security, for as "to satisfy" is said of him whose wish we comply with, so "to give security" has reference to our adversary when he provides for what is desired by us, and when under this name we make him secure by giving sureties.
2. Ulpianus, On the Edict, Book V.
The surety offered for the appearance of a party in court is considered to be a man of property, not only on account of his means, but also with reference to the ease with which he may be sued.
(1) When anyone gives a surety for his appearance in court to a person who is not capable of bringing an action, the giving of the surety is of no effect.
(2) The prætor says: "Where anyone summons to court his father, his patron, his patroness, the children or parents of his patron or patroness, or his own children, or anyone whom he may have under his control, or his wife, or his daughter-in-law, any surety whosoever for their appearance in court shall be accepted".
(3) Where the prætor says: "or his own children"; we understand that those are meant who are descended from the female sex; and we extend this privilege also to the father, not only when he is his own master, but also when he is under anyone's control; and this Pomponius also stated. A son can be given as a surety by his father, even though he may be under the control of someone else. By "daughter-in-law" we must also understand granddaughter-in-law, and so on, for succeeding generations.
(4) Where the prætor says: "Any surety whosoever shall be accepted", this merely relates to his financial resources, that is to say, even if he is not wealthy.
(5) When the prætor grants an action against a surety who promised that a party would appear in court, he does so for the amount of the property in question. But whether this has reference to the actual value of the article, or a definite sum, is something which we must examine. It is the better opinion that a surety is liable for the actual value, unless he became bound for a certain sum.
3. Gaius, On the Provincial Edict, Book I.
Whether the action is for double, triple, or fourfold damages, we hold that one and the same surety is liable for the entire amount, for the reason that the property is understood to be worth that much.
4. Paulus, On the Edict, Book IV.
If the party who gave a surety for his appearance in court should die, the prætor ought not order him to be produced. Still, if he should ignorantly order this to be done, or if the party should die after his order, and before the day set for his appearance, no action can be permitted. If he died after the day set for his appearance, or loses his right of citizenship, a suit can legally be brought against him.
5. Gaius, On the Provincial Edict, Book I.
Where anyone becomes the surety for a party who has already been condemned, and afterwards died, or has lost his Roman citizenship, an action can, nevertheless, properly be brought against the surety.
(1) When anyone refuses to accept a sufficient surety for the appearance of another in court, who, it is perfectly evident, is solvent; or if there is any doubt on this point and he is proved to be solvent, an action for injury can be brought against him; for, indeed, it is not an ordinary wrong for a man to be brought into court who can furnish a perfectly solvent surety. The surety who was not accepted can also bring suit for the injury done to himself.
6. Paulus, On the Edict, Book XII.
Where a bond or an undertaking is given, which is defective, it is held that it is no bond at all.
7. Ulpianus, On the Edict, Book XIV.
If the solvency of the surety is not denied, it should be said that he has the privilege of objecting to the jurisdiction of the court, and as the plaintiff may fear that he will make use of his right; we must ascertain what the law is. The Divine Pius, (as Pomponius states in his Book of Epistles, Marcellus in the Third Book of the Digest, and Papinianus in the Third Book of the Questions), set forth in a rescript to Cornelius Proculus, that the plaintiff might justly reject such a surety, but that if he was unable to find any other, he could warn him not to use his privilege, if suit was brought.
(1) When security is required, and the defendant cannot readily obtain it where the action is brought, he can be heard, if he is ready to give security in another city of the same province. Where, however, the security is voluntary, he cannot have recourse elsewhere; for he who has imposed upon himself the necessity for security does not deserve such consideration.
(2) Where security has not been given, and the property for which it is required is personal, and the party is liable to suspicion; the article should be deposited in court if the judge approves of this, or security is furnished, or the suit is brought to an end.
8. Paulus, On the Edict, Book XIV.
It is customary for litigants to agree upon the day mentioned in the stipulation, and if this is not done, Pedius thinks that it is in the power of the stipulator to appoint a reasonable time to be determined by the judge.
(1) Where anyone offers a woman as a surety, he is not held to have given a sufficient one; nor can a soldier, or a minor under twenty-five years of age be accepted, unless these persons act as sureties for themselves; as, for instance, where they act as their own agents. Some authorities indeed, think that where dotal land is claimed by a husband, the wife can become a surety on her own account.
(2) Where a person who, before judgment was rendered, offered himself as surety that it would be paid, is ascertained to be a slave; the plaintiff is entitled to relief and a new bond must be executed. The same consideration must be shown to a minor under twenty-five years of age, and probably to a woman, on account of her inexperience.
(3) If the surety for the payment of the judgment becomes the heir of the stipulator, or the stipulator that of the surety, a new bond must be executed.
(4) Guardians and curators who are obliged to give security for the property of their wards, must be sent before the municipal magistrates, because the security is necessary. The same rule applies where property, the usufruct in which has been created, is to be restored to the owner; and also to the case of a legatee, who must give security that, "If he is evicted from the estate, he will restore the legacies and whatever excess he may have received, under the Falcidian Law". The heir also has a right to be heard in a case where he is sent before a municipal magistrate for the purpose of giving security to legatees. It is clear that the heir, if through his own fault a legatee has already been placed in possession and has failed to provide security, petitions for the legatee to surrender possession, stating that he is ready to give security in a municipal town, he shall not be permitted to do so. The case is different, however, if the legatee had already been placed in possession without the negligence or fraud of the heir.
(5) A party is ordered to swear that he is not actuated by feelings of malevolence when he summons his adversary to a municipal town, for fear that perhaps he may have the intention of annoying him when it is possible for him to give security at Rome. Some persons, however, are excused from taking this oath, as for instance, parents and patrons. He, however, who is sent before the municipal magistrates must swear: "that he cannot give security at Rome, and that he can do so in the place where he asks to be sent, and that he does not do this for the purpose of annoying his adversary". He cannot be compelled to swear, "that he is not able to give security elsewhere than in that place", because if he can not obtain security at Rome and can do so in several other places, he will be forced to perjure himself.
(6) This permission then can be obtained when just cause seems to exist, but what course should be pursued if the party previously refused to give security in the municipal town? In this instance he ought
not to obtain permission, since it was his own fault that he did not give security in the place where he now desires to go.
9. Gaius, On the Provincial Edict, Book V.
Where an arbiter is appointed for the examination of sureties and his award appears to be unjust to either party, an appeal can be taken from it, just as it can be done from the decision of a judge.
10. Paulus, On the Edict, Book LXXV.
If the sureties are declared to be sufficient by the arbiter, they must be considered as solvent, because otherwise a complaint could be brought before a competent judge.
(1) Where a party, for any reason, rejects sureties approved by the arbiter, or accepts others who have been rejected, much more should he be content with those whom he accepted of his own will. If, in the meantime, any great calamity should befall the sureties, or they should be reduced to great poverty, where proper cause is shown other security must be given.
11. Ulpianus, On the Edict, Book LXXV.
Julianus says: "If before I direct you to bring a suit for the recovery of land, and being about to do this, you take sufficient security, and afterwards you begin the suit under my direction, the sureties will be liable".
12. The Same, On the Edict, Book LXXVII.
It is agreed by all authorities that where an heir is appointed under a condition, and has possession of the estate during the existence of the condition, he must give security to the substituted heir for the delivery of the estate. If the condition should not be fulfilled, the substituted heir acquiring the estate can claim the same, and if he obtains it, an action can be brought on the bond. The prætor himself, where proper cause is shown, is frequently accustomed to order the stipulation to be made before the condition is fulfilled, and before the day arrives when the petition can be filed.
13. Paulus, On the Edict, Book LXXV.
Where several parties are substituted, a bond must be given for each one of them.
14. The Same, Opinions, Book II.
The son of a family undertakes the defence of his father during his absence; I ask whether he should give security for the payment of the judgment? Paulus replies that anyone who acts in defence of an absent person, even though he be his son or his father, must furnish security to the party asking it under the terms of the Edict.
15. Macer, On Appeals, Book I.
It must be remembered that the possessors of real property are not compelled to give security.
(1) By such a possessor is to be understood one who possesses land either in the country or in the city, either wholly, or in part. He also is understood to be a possessor who holds land subject to the payment of rent to the State, that is, an emphyteutic estate; and he also who has the mere ownership is considered to be a possessor. Ulpianus, however, stated that he who has only the usufruct, is not a possessor.
(2) A creditor who has accepted a pledge is not a possessor, even though he may have possession of the article, or whether it has been delivered to him, or is held by the debtor at the will of the creditor.
(3) Where real property is given by way of dowry, both the wife and the husband are understood to be possessors on account of their possession of said property.
(4) The case is different with a party who has the right of personal action for the recovery of land.
(5) Guardians, whether their wards or they themselves are in possession, are considered possessors; and the same rule applies where only one of several guardians is in possession.
(6) If you bring suit against me for land of which I am in possession; and judgment is rendered in your favor, and I take an appeal; am I still to be considered the possessor of said land? It may be very properly stated that I am the possessor of the same, because I still hold it; nor does it make any difference that I can subsequently be deprived of my possession.
(7) To ascertain whether a party is, or is not a possessor, the time when a bond was required must be considered; for just as the party is none the worse who has sold his possession after giving a bond, so he who takes possession after a bond has been executed obtains no advantage.
16. Paulus, On the Edict, Book VI.
He who has promised under oath to appear in court, is not held to have committed perjury if he fails to do so for some good reason.
TITLE IX. IN WHAT WAY SECURITY MUST BE GIVEN IN A NOXAL ACTION.
1. Ulpianus, On the Edict, Book VII.
Where anyone has promised that a slave on whose account a noxal action is brought, shall be produced in court, the prætor says "that he must produce him in the same condition in which he was at the time when legal proceedings were instituted".
(1) Let us consider what the words "in the same condition" mean. I think, in fact, that he is in the same condition who does not do anything to prejudice the case of the party who brings the suit. Labeo states that if the slave should cease to belong to the party who makes the promise, or the right of action should be lost, he would not be in the same condition; just as where a party was in as good a condition as his adversary, so far as litigation is concerned, is placed; in a word,
one on account of either the place, or the party being changed. Therefore, where a slave is sold to someone who cannot be sued in the same court as the party making the promise, or is delivered to someone who is more powerful, he thinks that he cannot be produced in court in the same condition. Where, however, he is surrendered in satisfaction for damage which he has committed, Ofilius thinks that he cannot be produced in the same condition; as, by his surrender for this purpose, he is of the opinion that all noxal actions instituted by others are barred.
2. Paulus, On the Edict, Book VI.
We, however, adopt a different rule; for when a slave is surrendered in satisfaction of damages, the right of action is not extinguished on account of any of the reasons previously stated; for the action always follows the slave, just as if he had put in an appearance in the first place.
(1) Where the slave, on account of whom a noxal action can be instituted by anyone, is absent, and where his master does not deny that he is under his control, Vindius holds that he can be compelled to promise to produce him in court, or to defend him, and if he is unwilling to do this, he must give security to produce him as soon as possible; but if he falsely denies that he is under his control, he will be compelled to defend the suit without the surrender of the slave; and Julianus stated this also, even where the master contrived by fraud that the slave should not be under his control. If the slave is present, and the master is absent, and there is no one to defend the slave, he should be removed by the order of the prætor, but if proper cause be shown, his defense can afterwards be conceded to his master, as Pomponius and Vindius state; nor will the master be prejudiced by his absence. Therefore, the right of action which the plaintiff lost because when the slave was taken away he became his property, can be restored to him.
3. Ulpianus, On the Edict, Book VII.
Where a noxal action is brought against a person who has only the usufruct in a slave, and he refuses to defend him, the right to bring suit for the recovery of the usufruct shall be denied him by the prætor.
4. Gaius, On the Provincial Edict, Book VI.
Where anyone brings a noxal action against one of two owners of a slave, the question arose whether he shall be obliged to give security with respect to the share of his fellow owner? Sabinus says that he is not obliged to do so because he is defending his own slave, just as if he was wholly his own property; since he is obliged to defend the entire interest, and he shall not be heard if he is prepared to defend only his own share.
5. Ulpianus, On Sabinus, Book XLVII.
Where a party has promised to produce a slave in court in the same condition, and he is produced after having been set free; if a capital offence, or one implying the commission of injury is involved, he is not properly produced; because one kind of punishment is inflicted on
slaves by lashes in the case of injury, and another is inflicted upon a freeman, as, for instance, a pecuniary fine. So far, however, as other noxal actions are concerned, he is held to be in a better condition.
6. Paulus, On Sabinus, Book XL
Where, however, it was promised to produce a slave who is about to become free, he is held to be in the same condition, even though he may be free when he appears; because the attainment of his freedom was tacitly understood.
TITLE X.
CONCERNING ONE WHO PREVENTS A PERSON FROM APPEARING IN COURT.
1. Ulpianus, On the Edict, Book VII.
The prætor has considered it most just to punish the malice of one who prevents the appearance of another in court.
(1) He not only is held to be guilty of malice who detains a party either with his own hands, or through the agency of those in his service, but also he who requests others to detain him or abduct him to prevent his appearing in court, whether they knew, or were ignorant of what he intended to do.
(2) Where any person communicates evil tidings to another on his way to court by means of which he prevents him from appearing, we consider it to be malicious, and he is liable under the Edict; although some authorities are of the opinion that the party who was so credulous would only have himself to blame.
(3) Where a defendant is prevented from appearing through the malice of the plaintiff, he will not have a right of action against the latter under this Edict, since he must be contented with an exception in case he should be sued for the penalty of his bond because he did not appear in court, but the case is different if he was prevented by another, for then he could bring an action against him.
(4) Where several persons have acted fraudulently, all are liable; but if one of them pays the penalty, the others are released from liability, as the plaintiff has no further interest in the matter.
(5) All authorities are of the opinion that in an instance of this kind, where a slave is concerned, a noxal action must be brought.
(6) The right of action passes to the heir, but not for a longer time than a year; and I think that an action will lie against the heir only to the extent of preventing him from profiting by the fraud of the deceased.
2. Paulus, On the Edict, Book VI.
Where the slave of the plaintiff, with the knowledge of his master, commits a fraud to hinder me from appearing in court, and his master does not prevent him when he could do so, Ofilius says that an exception should be granted against his master to prevent him from profiting by the fraud of the slave. But if, in fact, the slave committed the
I
act without the consent of his master; Sabinus says that a noxal action will lie, and that the act of the slave ought not to prejudice his master, except to the extent that he shall lose him when he himself has committed no wrong.
3. Julianus, Digest, Book II.
An action will lie under this Edict against a party who, by means of fraud, prevented anyone from appearing in court, for a sum equal to the interest the plaintiff had in his appearance. In a suit of this kind it is ascertained if the plaintiff lost anything on account of this; as, for example, whether the defendant obtained ownership of the property in question by lapse of time, or was freed from liability to be sued.
(1) It is evident that if the party who acted maliciously to prevent the other from appearing in court is not solvent, it will be just to grant a restitutory action against the defendant, lest he may profit and the plaintiff suffer loss on account of the fraud of another.
(2) If the stipulator has been prevented from appearing in court through the fraudulent act of Titius, and the promisor has been prevented by that of Mævius; each of them has a right of action in factum against the party by whose fraudulent act he was prevented.
(3) If both the stipulator and the promisor were each prevented from appearing in court by the fraudulent act of the other, the prætor shall come to the relief of neither of them, for the fraud committed by each is mutually set off.
(4) If I stipulate with a surety for fifty aurei1 in case the defendant should not appear, and I am suing the defendant for a hundred aurei, and, through the wrongful act of Sempronius, the defendant fails to appear in court, I can recover a hundred aurei from Sempronius, for that amount seems to have been my interest in the matter; because if the party had appeared I would have had an action against him for a hundred aurei, or one against his heir for the same amount, although the surety had bound himself to me for a smaller sum.
TITLE XI.
WHERE A PARTY WHO HAS GIVEN A BOND TO APPEAR IN COURT DOES NOT Do So.
1. Gaius, On the Provincial Edict, Book I.
The prætor orders that a day shall be granted for every twenty thousand paces in addition to that on which the bond is executed, as well as that on which the party is bound to appear in court, for, indeed, this enumeration, as applied to the journey, is burdensome to neither of the litigants.
1 The aureus, dating from 207 B. C. and originally known as the solidus, was the standard gold coin of the Roman Empire. It contained twenty-five denarii, or one hundred sestertii; and its value varied at different epochs from $4.00 to $5.00 of our money. In the time of Cicero it was worth about $3.90.
The Roman gold coinage was, to all intents and purposes, pure, as the silver alloy ordinarily did not exceed one-third of one per cent.
The average relative value of gold and silver was from 1 to 9, to 1 to 15. — ED.
2. Ulpianus, On the Edict, Book LXXIV.
We do not require the defendant to appear in court where the matter with reference to which he promised to appear has been settled; but this must take place before the day fixed for him to appear. If, however, the settlement was made afterwards, an exception on the ground of fraud should be interposed; for who would trouble himself concerning the promise of the penalty after the case had been disposed of? For anyone would think that an exception on the ground that the matter had been settled would be valid, because the agreement also included the penalty; unless the contrary had been specially agreed upon by the parties.
(1) Where anyone, by reason of municipal employment, and without any fault of his own, has been prevented from appearing in court in accordance with his promise, it is perfectly just that an exception should be granted him.
(2) In like manner, a party who was called as a witness in some other proceeding, and was not able to appear in court, is also entitled to relief.
(3) Where anyone has promised to appear in court and is unable to do so, having been prevented by illness, a storm, or the power of the current of a river he, not undeservedly, may have the benefit of an exception; for as his presence is required by such a promise, how can he appear who is hindered by illness? Therefore, the Law of the Twelve Tables directs that: "If the judge, or either of the litigants are prevented from being present by a serious illness, the day of the trial shall be postponed".
(4) Where a woman does not appear, not because of illness but because she is pregnant, Labeo declares that she is entitled to an exception. If, however, she remains in bed after delivery, proof must be offered that she was prevented by what is equivalent to sickness.
(5) The same rule applies where anyone is attacked by insanity, for he who is prevented by insanity is prevented by illness.
(6) When I stated that a party was entitled to relief if he does not appear because he has been prevented by a storm, or the power of the current of a river; by the word "storm" a tempest either on land or sea is to be understood. We should understand the storm to be such a one as hinders travel by land or navigation.
(7) The power of the current of a river can also be understood to take place without a storm; for we understand it to be of such a character that its extent offers a hindrance, either because a bridge has been destroyed, or no boat is available.
(8) Where, however, anyone, if he had started on his journey sooner, or had sailed at a more opportune time could have avoided a storm, or the high water of a river thus set bounds to his progress, is he entitled to no benefit for an exception? This, indeed, should be decided after proper investigation, for the rule ought not to be enforced so rigorously that he could be asked: "Why he did not start a long time before the day mentioned in his promise?" Nor, on the other hand, should it be allowed him to allege the storm or the high water of the
river as the cause of his non-appearance, when this was his own fault. Suppose, for instance, that a man was at Rome at the time he gave his promise to appear, and that he went to a provincial town, not from urgent necessity but on account of his own pleasure; is he not unworthy of the benefit of this exception? Or, suppose the tempest arose while he was on the sea, but he could have come by land, or have avoided the river by going round it; it may properly be said that he would not always be entitled to the benefit of an exception; unless the ruggedness of the country did not permit him to travel by land, or to go round the river. Where, however, the river had either overflowed its banks so as to cover the entire place where he had to appear, or some accidental misfortune had overwhelmed that place, or had rendered it dangerous for him to come; an exception should be granted him under such circumstances, in accordance with all that is proper and just.
(9) In like manner, an exception is granted to him who, when he intended to appear in court, was detained by a magistrate without any fault of his own; for if he, himself, tried to have this done, or gave cause for it, he is not entitled to the benefit of the exception, as only his own fraudulent conduct could injure him, and he would not be injured by the act of others who maliciously caused him to be detained. Where, however, a private individual detained him, he is under no circumstances entitled to the benefit of this exception.
3. Paulus, On the Edict, Book LXIX.
An action for an amount equal to his interest in the case will lie against the party who detained him.
4. Ulpianus, On the Edict, Book LXXIV.
Where anyone who has promised to appear cannot do so because he has been convicted of a capital offence, he is very properly excused. We understand condemnation to capital punishment to mean sentence of death or exile. It might, perhaps, be asked of what value is this exception to a person who has been condemned? To this it may be answered that it is necessary for his sureties, and if he is sent into exile without losing his right of citizenship, this exception will profit anyone charged with his defence.
(1) It should be borne in mind that if he who does not appear because he was accused of a capital crime, was so situated that he could not make use of an exception, as this is only granted to one that is convicted; it is clear that if he did not appear for the reason that he was prevented by being in prison, or in military custody, that he would then be in such a position that he could make use of an exception.
(2) Moreover, if a person does not appear for the reason that he was prevented by a funeral in his family, an exception should be granted him.
(3) Again, if anyone is held in captivity by enemies, and for this reason did not appear in court, he is entitled to the benefit of an exception.
(4) The question has arisen whether an agreement can be made that no exception shall be pleaded, where a party breaks a promise made for the purpose of his appearance in court? Atilicinus is of the opinion that an agreement of this kind is not valid. I think, however, that such an agreement is valid, if the causes of the exception were expressly stated, and the party making the promise voluntarily renounced them.
(5) In like manner, the question arises whether an exception can be granted to the sureties of a party who gave security to appear in court, when he was not obliged to do so? I am of the opinion that the question is whether security was given through mistake, or by agreement; for, if it was done by mistake, an exception should be granted the sureties; but if it is done by agreement, they are by no means entitled to it. Julianus stated that where anyone bound himself for a larger amount than was fixed, and did this through ignorance, he was entitled to an exception, but where he bound himself for such a sum in pursuance of an agreement, Julianus says that the exception is barred by filing a replicatio, on the ground of the agreement entered into.
5. Paulus, On the Edict, Book LXIX.
Where there are two creditors equally interested, and a debtor promises one of them under a penalty to appear in court, and the other prevents him from so doing, an exception does not lie against the other if they are partners, lest the fraud of one of them may benefit the other on account of the partnership.
(1) In like manner, where there are two debtors jointly liable, and one of them, breaking his promise, does not appear in court, and the plaintiff then demands the property in dispute from one, and the penalty for non-appearance for the other, the suit to recover the penalty will be barred by an exception.
(2) Also, where a promise has been made by a father to appear in court on account of some contract made by his son, and afterwards the plaintiff institutes proceedings against the son; they are barred by the exception if the plaintiff sues his father on account of his promise. On the other hand, the same rule applies if the son promised to appear and the plaintiff brings an action against the father for the peculium.
6. Gaius, On the Law of the Twelve Tables, Book I.
Where he who has given a surety does not appear because he is absent on public business, it is unjust for the surety to be required to appear on behalf of the other, when the latter is not free to do so.
7. Paulus, On the Edict, Book LXIX.
Where anyone promises that a slave, or some other person who is under the control of another shall appear in court, he is entitled to the same exceptions as he would be if he had bound himself for a freeman, or the head of a family; except where the slave is said to be absent on public business, for a slave cannot be absent on public business. Leaving this exception out of consideration, all the others, being generally applicable, can be taken advantage of in the cases of freemen as well as in those of slaves.
8. Gaius, On the Provincial Edict, Book XXIX.
If in four, five, or more days after the party promised to appear in court he gives the plaintiff occasion to proceed against him, and the latter is not prejudiced by the delay, it may be stated that in consequence of this, he can defend himself by means of an exception.
9. Ulpianus, On the Edict, Book LXXVII.
Where a slave promises to appear in court his agreement is of no force, either with respect to himself or his sureties.
(1) If anyone has promised by a single stipulation to appear in court on behalf of several slaves, Labeo says that the entire penalty can be collected although only one slave does not appear; because it is a fact that all of them were not present. However, if a portion of the penalty is tendered for that one, he can make use of an exception on the ground of fraud if suit is brought on the stipulation.
10. Paulus, On Plautius, Book I.
If I promise that a party shall appear in court who already is alleged to have become free by lapse of time, for example, because he was no longer liable to be sued; an action will lie against me either to produce or defend him, that the truth may be ascertained.
(1) Where a promise has been made that a man will appear, and he loses his life through the treachery of the surety before the day fixed for his appearance; we can certainly make use of the rule: "That an action can not be brought for a penalty before the time arrives, for the reason that the entire stipulation is held to refer to a certain day".
(2) A man who was about to bring an action for injury stipulated before issue was joined, that if his adversary should appear in court, and when the time for the fulfillment of the promise had elapsed, he died; it is held that no right of action exists against the heir by reason of the stipulation; for the reason that stipulations of this kind are only entered into on account of the principal action; and although, as a rule, the stipulation entered into to appear in court passes to the heir, still, in this instance, it is not the case; for if the deceased had desired to bring suit on the stipulation after having abandoned that of injury, he would not have been permitted to do so.
The same rule will apply if the party against whom I desire to bring an action for injury had died after the time stated in the stipulation, for I have no right to bring an action on the stipulation against the heir; and this was the opinion of Julianus. Hence, where sureties have been given, no action whatever will lie against them after the principal is dead. Pomponius holds the same opinion where the party did not die a great while afterwards, for the reason that, if he had appeared in court, his adversary would have been able to join issue with him.
11. Ulpianus, On Sabinus, Book XLVIL
Where anyone promises that a party shall appear in court, he ought to see that he does so in the same legal condition. To appear in the
same condition means that he shall do so in such a way that the plaintiff will not be any the worse in the prosecution of the case, even if it may be more difficult for him to obtain satisfaction of his claim; and although this may be the case, it can be said that the party is still in the same legal condition; or even if he may have contracted new obligations, or have lost money, he still is held to be in the same legal condition; therefore, when anyone appears after judgment has been obtained against him, he is still held to appear in the same legal condition.
12. Paulus, On Sabinus, Book XI.
He, however, who has acquired the right to make use of some new privilege is not held to appear in the same legal condition.
(1) It must be held that any estimate of the interest of the plaintiff should be calculated with reference to the time when he ought to have appeared, and not to that when proceedings were instituted; even though he may have ceased to have any interest in the question at issue.
13. Julianus, Digest, Book LV.
When a slave himself promises to appear in court to conduct a case, or this is stipulated by another, the stipulation is of no effect, nor are the sureties liable; because a slave cannot either sue or be sued.
14. Neratius, Parchments, Book II.
If one man, as the agent for another, stipulates that he will merely produce him whom he agreed to produce without mentioning a penalty, and he should not appear, a stipulation of this kind can hardly have any weight; because the agent, so far as it relates to himself, has no interest in his appearance. But since, in making the stipulation, he is transacting the business of another, it may be stated that the benefit which must be considered in the matter does not accrue to the agent, but to the party whose business he was transacting; so that if the party does not appear, there should be due to the agent an amount equal to the interest of the principal in the suit in accordance with the terms of the stipulation. The same rule can be said to apply even more strongly, where the agent had stipulated in the following terms: "Whatever compensation is proper"; as we understand these words to have reference not to the benefit of the agent himself, but to that of the principal in the action.
15. Papinianus, Questions, Book II.
Where a guardian promises to appear in court and comply with his agreement, and in the meantime his ward becomes of age, or dies, or rejects the estate, an action on the stipulation shall be refused; for if an action had been brought to recover the property itself, and judgment had been rendered against the guardian, and any of the above things had taken place; it has been settled that no action on the judgment could be instituted against him.
TITLE XII.
CONCERNING FESTIVALS, DELAYS, AND DIFFERENT SEASONS. 1. Ulpianus, On all Tribunals, Book IV.
It is stated in an Address of the Divine Marcus that no one can compel another to go to trial in the seasons of harvest and vintage; because being occupied in agricultural pursuits, he should not be compelled to appear in court.
(1) If, however, the prætor, either through ignorance or neglect, should continue to summon the parties, and they should voluntarily appear, and he should render judgment in the presence of the litigants, who are here of their own accord, the judgment will be valid, even though he who summoned them acted improperly; but if he should render judgment in their absence, and while they continued to remain away, it follows that it must be held that his judgment is of no effect; for the act of the prætor can not abrogate the law. The judgment therefore becomes void without appeal.
(2) There are, however, certain cases which must be excepted, and in which we may be compelled to appear before the prætor during the seasons of harvest and vintage, namely, where the property in question will be lost by lapse of time; that is to say, where delay will deprive the party of his right of action. And, in fact, when the matter is urgent, we can be forced to appear before the prætor, but this only can be done in order that issue may be joined; and it is so stated in the words of the aforesaid Address, for, after issue has been joined, if either of the parties refuses to proceed, the Address grants him delay.1
2. The Same, On the Edict, Book V.
The Divine Marcus in the same Address delivered before the Senate, states that there are other cases in which application may be made to the prætor on holidays, as, for instance, for the appointment of guardians and curators; to admonish persons as to their duties; to hear excuses; to arrange for support; to prove age; to make provision for the possession for unborn children; for the preservation of property for the benefit of either legatees or the beneficiaries of trusts; or where security should be given against unlawful damage; or for the production of wills; or that a curator may be appointed for the property of one who is uncertain whether he will have an heir or not; or for the support of children, parents, or patrons; or for an entry upon
1 In Las Siete Partidas, the church holidays and other occasions on which claims cannot be prosecuted in court, are specified at considerable length. There are numerous exceptions to this rule, however, including almost every instance in which the personal rights of the party would be injuriously affected, or he might suffer pecuniary loss. The provisions of the law in excusing the non-appearance of litigants also apply to every kind of agricultural operations, giving as reasons the public benefit of such labors, and the fact that the weather during those seasons is generally more favorable to the occupations of husbandry. "E esto por dos razones. La primera es, que tal obra torna en pro comunal de todos. La segunda, porque acaece muchas vegadas, que en tales dias face mejor tietnpo, para facer las lavores que son menester a la tierra para dar frutos, que en los otros." (Las Siete Partidas III, II, 23-29.) Similar regulations are established by the Visigothic Code. (Forum Judicum. II, I. 10.) — ED.
an estate which is suspected of being insolvent; or for the examination of an atrocious injury; or for the bestowal of freedom granted under a trust.
3. The Same, On the Edict, Book II.
It is also customary to dispense justice during the season of harvest and vintage in cases where the property is liable to be lost either by time or by death, as for example, in actions for theft, ordinary injury, atrocious injury, and where parties are said to have been guilty of robbery during a fire, the destruction of a house, shipwreck, or the seizure of a boat or a ship and other cases of this kind. The same rule applies where the property may be lost through the lapse of time, or the term within which suit can be brought is about to expire.
(1) Proceedings relating to freedom can be concluded at all times.
(2) Justice can also be dispensed at all times in the case of a person who accepts something contrary to the public welfare under pretence of the right of holding a market.
4. Paulus, On the Edict, Book I.
The governors of provinces ordinarily fix the time of harvest and vintage according to the custom of the neighborhood.
5. Ulpianus, On the Edict, Book LXXII.
Magistrates are not accustomed to administer justice, or to exercise their authority at all on the day before the Kalends of January.
6. The Same, On the Edict, Book LXXVII.
When judgment is rendered on a holiday, it is provided by law that it shall not be valid except by the consent of the parties; and where judgment is rendered otherwise, in opposition to this rule, no one is obliged to comply with it, or make any payment; nor can any official to whom application has been made under such circumstances compel the party to obey his judgment.
7. The Same, On the Office of Consul, Book I.
It is stated in the Address of the Divine Marcus that delay for the production of instruments cannot be granted more than once; but, for the benefit of litigants, where proper cause is shown, a delay can be obtained a second time in the same, or in a different province, according to the rules observed in different localities, and especially where anything unexpected arises. It must be ascertained if the deceased had obtained any delay for the production of documents, and whether this should also be granted to his successor; or, indeed, as it has been granted once, whether it cannot be granted a second time? The better opinion is that it ought to be granted where proper cause is shown.
8. Paulus, On Sabinus, Book XIII.
In accordance with the Roman custom, the day begins at midnight, and ends in the middle of the following night; therefore, whatever is done during these twenty-four hours (that is to say during the two halves of the night and the intervening day) is held to have been done during any hour of daylight. I
9. Ulpianus, On the Office of Proconsul, Book VII.
The Divine Trajan stated in a Rescript to Minicius Natalus that holidays only cause suspension of judicial business, and that those matters which relate to military discipline can also be transacted on holidays. This also includes the examination of persons who are in prison.
10. Paulus, Sentences, Book V.
In pecuniary actions, delay cannot be granted more than once in each case, but in capital cases three continuances may be granted to the defendant, and two to the accuser; but in both instances proper cause must be shown.
TITLE XIII.
CONCERNING THE STATEMENT OF A CASE. 1. Ulpianus, On the Edict, Book IV.
Where anyone wishes to bring an action, he must state the grounds for it; as it is most just that the party sued should know whether he ought to submit, or set up a defence, and if he makes up his mind to the latter course, that he may be sufficiently informed to conduct the proceedings by ascertaining the nature of the suit which is brought against him.
(1) To state the case is also to give the other party an opportunity to take a copy of the same, or of what is included in the complaint, either by presenting it to him, or by dictating it. Labeo says that he also makes a statement of his case who conducts his adversary to the register of the prætor, and shows him what he is about to dictate, or by communicating to him the form which he intends to use.
(2) Notices of this kind should be drawn up without mention of the date, or the consul, lest some fraud may be contrived from the employment of the same, and a prior date be inserted in the instrument. The prætor, however, excludes the date and the consul when the document was written, but not that on which payment was to have been made; for the day of payment is, as it were, the principal part of the stipulation. Accounts, however, must be stated with the date and the consul; as where money is paid and received this cannot otherwise be clear, unless the day and consul are set forth.
(3) All matters must be stated which anyone intends to bring before the court, but a party is not compelled to produce instruments which he does not expect to use.
(4) He is not considered to have given proper notice who does not include the entire stipulation.
(5) Relief shall be granted to those who, on account of their age, ignorance, sex, or for any other good reason, have failed to make proper statements.
2. Paulus, On the Edict, Book III.
Where suit is brought for a legacy the prætor does not order the terms of the will to be set forth, probably because the heir usually has a copy of the will.
3. Mauricianus, On Punishments, Book II.
The Senate decreed that no one against whom a suit is brought by the Treasury, shall be forced to exhibit any other documents to the informer than those that relate to the case in which the latter has declared himself to be informer.
4. Ulpianus, On the Edict, Book IV.
The prætor says: "Those who pursue the business of bankers must exhibit to a depositor the account in which he is interested, in addition to the day and the consul."
(1) The principle of this Edict is perfectly just; for as bankers keep the accounts of individuals, it is but proper that any books or papers relating to business transactions in which I am interested, should be shown to me as being, to a certain extent, my own property.
(2) The son of a family is included in the terms of the Edict, so that he also is compelled to exhibit his accounts; and the question arises is the father likewise compelled to do so? Labeo states that he is not, unless his son conducts the business of a banker with his knowledge; but Sabinus has properly declared that this is not to be admitted, where he reports his profits to his father.
(3) Where a slave carries on a banking business (for he can do so), if, indeed, he acts with the consent of his master, the latter can be compelled to produce his accounts, and an action will lie against him, just as if he, himself, had carried on the business; but, if the slave acts without the knowledge of his master, it will be sufficient if his master swears that he is not in possession of his accounts. Where a slave carries on the business of a banker, with his own private means, the master is liable for the same, or for the amount invested; but where the master has the accounts, and does not produce them, he is liable for the entire amount.
(4) Even a party who has ceased to conduct a banking business can be compelled to produce his books and papers.
(5) A person is compelled to produce his accounts in the place where he has conducted his banking business, and this has been thoroughly established. When he keeps his books in one province, and conducts his business in another, I am of the opinion that he can be compelled to produce them in the place where he carries on his business; for he was to blame in the first place for removing his books elsewhere. If he conducts his business in one place, and he is required to produce his books in another, he is by no means obliged to do so, unless you wish him to furnish you with copies of the same, where legal nroceedings have been instituted, and, of course, at your expense.
5. Paulus, On the Edict, Book HI.
Time must be granted him to bring these accounts.
6. Ulpianus, On the Edict, Book IV.
Where a banker keeps his books at his residence, or in his warehouse, (as many of them do), he must either conduct you to the place where they are, or give you a copy of the accounts.
(1) The successors of a banker are also obliged to produce accounts. Where there are several heirs, and one of them has possession of the accounts, he alone can be compelled to produce them; but where all have possession of them, and one produces them, all can be compelled to do so. What then must be done if the one who produces them is obscure and entitled to but little consideration, so that doubt may justly arise concerning the good faith of their production? Therefore, in order that the accounts may be compared, the others should also produce theirs; or, indeed, sign those produced by one of them. The same rule will apply where there are several bankers who have been requested to produce their accounts; for where there are several guardians who are discharging a trust together, they must all produce their accounts, or sign that produced by one of them.
(2) Moreover, an oath is exacted from the adversary of the banker, "that he does not demand the production of his accounts for the purpose of annoyance"; in order that he may not require the production of accounts which are superfluous, or of which he already has possession, for the sake of annoying the banker.
(3) Labeo says that an account is a statement of all mutual payments, receipts, credits and debts of the parties; and that no account can begin with the mere payment of a debt. And where the party has received a pledge or a deposit, he cannot be required to disclose the fact, as these are beyond the scope of an account; the banker, however, must furnish a statement where a promise to pay has been made, for this belongs to his business as a banker.
(4) An action will lie under this Edict for the amount of the interest of the plaintiff.
(5) From this it is apparent that the Edict only applies to what concerns the party himself; but it is held that the account concerns me if you merely keep it under my direction; but if my agent directs this to be done, while I am absent, must it be produced by me, on the ground that it concerns me? The better opinion is that it must be produced. I have no doubt that my agent must produce the account which he keeps for me as it concerns him, and he must give security that I will ratify it, if no mandate were given him.
(6) Where a date appears at the beginning of a page under which the account of Titius is set down, and afterwards my own appears without date or consul; the same date and consul must be given to me also, as the day and consul entered at the beginning belong to the entire account.
(7) To exhibit an account is either to dictate it or make a statement of it in writing, or to produce an account book.
(8) The prætor says: "I will order accounts to be produced to a banker, or to anyone who demands it a second time, only where proper cause is shown."
(9) He forbids accounts to be produced to a banker for the reason that he himself can obtain information from the books and papers of his business; and it is absurd that he should ask that books be produced for his benefit, in a case where he himself is obliged to produce them.
Whether an account must be produced for the heir of the banker is a matter for consideration, for if the banker's books and papers have come into his possession, they should not be produced for him; but if not, this can be done where proper cause is shown, as, under such circumstances, the accounts must have been produced for the banker himself, where he proves that the accounts have been lost through shipwreck, the destruction of a house, fire, or any other similar accident; or where they are in a place which is at a great distance, as for instance, beyond sea.
(10) The prætor does not require accounts to be produced for a party demanding it a second time, unless for good cause.
7. Paulus, On the Edict, Book HI.
For instance, where he shows that the accounts given in the beginning are in some distant place, or that they are not complete, or that he has lost them through unavoidable accident, and not through negligence, for if he lost them by an accident of this kind for which he should be excused, he shall be ordered to produce them a second time.
(1) This term: "A second time," has two significations, one in which reference is made to the second time which the Greeks call deuteron, and the other which includes also subsequent times, which the Greeks call palin; by which is understood "as often as is necessary"; for it may happen that a party has lost an account which was twice given him, so that the term "a second time" is understood to mean "frequently".
8. Ulpianus, On the Edict, Book IV.
When a banker is required to produce his accounts, and, influenced by malice, he does not do so, he is punished; but he is only liable for negligence when it closely resembles malice. He is guilty of malice in producing his accounts who does so with fraudulent intent, or who produces them incomplete.
(1) He who becomes liable under the terms of this Edict is required to pay, by way of damages, a sum equal to the interest I had in having the accounts produced at the time this was ordered by the prætor, and not the interest which I have at present; and, therefore, even if my interest has entirely ceased to exist, or has become less or greater, my right of action will neither be increased nor diminished.
9. Paulus, On the Edict, Book HI.
There are some persons who are obliged to produce our accounts, although they are not required to do so by the prætor under this
Edict; as, for instance, where an agent transacts our business or keeps our accounts, he is not required to produce his accounts by the prætor, through fear of an action in factum, for the reason that we can obtain this by an action on mandate. Also, where a partner has transacted the business of the partnership fraudulently, the prætor cannot proceed against him under this clause, for there is an action in behalf of his partner; nor can the prætor force a guardian to furnish an account to his ward, for it is customary to compel him to do this by an action of guardianship.
(1) It makes no difference whether the successors, the father, or the master of the banker are in the same business; for since they take his place and succeed him in law, they are bound to discharge his obligations. A party to whom a banker has left his accounts does not appear to be included, (since by these words his legal successor is meant) any more than, if he, while living, had presented him with them. Nor will the heir himself be liable, if he has not had possession of them and has not acted fraudulently. If, however, before he delivers them to the legatee, he should be notified not to do so, he will be liable just as if he acted through malice; and he will also be liable so long as he has not surrendered them. If he does not act maliciously, the legatee will be compelled to produce the accounts, where sufficient cause is shown.
(2) Nor is it unjust that money-brokers, as Pomponius says, should be compelled to produce their accounts, because brokers of this kind, as well as bankers, keep accounts, and receive and pay out money at different times; which is principally proved by their entries and account books, and reliance is very frequently placed upon their good faith.
(3) Moreover, the prætor orders accounts to be produced for those who demand it, and who swear that they are not bringing suit for the purpose of annoyance.
(4) Accounts are considered as concerning us, not only when we ourselves have been parties to a contract, or have succeeded someone who has made a contract, but also where a contract has been made by a person under our control.
10. Gaius, On the Provincial Edict, Book I.
When a banker is ordered to produce his accounts, it makes no difference whether the controversy has arisen with him or with another party.
(1) The reason why the prætor requires only bankers to produce their accounts, and not others who are transacting business of a different description, is, because their functions and occupations are of a public nature, and their chief duty is to carefully keep accounts of their transactions.
(2) An account is considered to be produced when this is done from the very beginning (for an account cannot be understood unless it is thoroughly examined). This, however, does not signify that the entire account-book, or all the parchments of any person, are to be examined or copied; but that only the portion of the account which is
required to give a party the information he desires, is to be examined and copied.
(3) When an action is brought for an amount which is equal to the interest of the plaintiff in having the account produced, it follows that whether he does not obtain what he brought suit for, or whether he is condemned for the reason that he did not have the account with which he could have sustained his case; he can recover by this action whatever he lost in this way. Let us consider whether this is actually true, for if he can prove before the judge who is to decide between him and the banker, that he could have gained his case in the trial in which he was beaten, he must then have been able to prove it; and if he did not do so, or if he did prove it, and the judge did not pay any attention to this fact, he has only the right to complain of himself, or of the judge. This, however, is not the case, for it might happen that he has at present obtained possession of the account from the defendant himself, or in some other way; or be able to prove, by means of other documents, or witnesses, which for some reason or other, he was not able to make use of at the time of the trial, that he could have gained his case. For, under these circumstances, a man has a right of action for theft or for fraudulent alteration of an obligation made for his benefit; as well as an action for unlawful damage, as, although we may not have been able to prove something previously for the reason that an undertaking has been abstracted, and may have lost our case, still, we can prove it now by other documents, or witnesses, which we were unable to make use of in the first place.
11. Modestimis, Rules, Book HI.
It has been established that copies of documents may be produced without the signature of the party who exhibits them.
12. Callistratus, On the Monitory Edict, Book I.
It is held that women are excluded from conducting banking business, as this is an occupation belonging to men.
13. Ulpianus, On the Edict, Book IV.
This action is not permitted after the lapse of a year, nor against an heir, unless through some act of his own; but it is granted to an heir.
TITLE XIV.
CONCERNING AGREEMENTS.
1. Ulpianus, On the Edict, Book IV.
The justice of this Edict is natural, for what is so suitable to the good faith of mankind as to observe those things which parties have agreed upon?
(1) The term pactum is derived from pactio, and the word pax has also the same origin.
(2) An agreement is the consent of two or more persons to the same effect.
(3) The term "conventio" is a general one, and refers to everything to which persons who have transactions with one another give their consent for the purpose of making a contract, or settling a dispute; for as parties are said to come together who assemble from different places in one; so, also, the same word is applicable to those who, from different feelings of the mind, agree upon one thing; that is to say, arrive at one opinion. The term "conventio" is such a general one, as Pedius very properly says, that there is no contract and no obligation which does not include it, whether it is made by the delivery of the property, or verbally; for even a stipulation, which is verbally made, is void, where consent does not exist.
(4) The greater number of conventions have names that are peculiar to them, as, for instance, sale, hire, pledge, and stipulation.
2. Paulus, On the Edict, Book HI.
Labeo says that an agreement can be entered into by delivery of property, by a letter, or by a messenger. It can also be made between absent parties, and it is understood that an agreement can be entered into by tacit consent.
(1) Hence, if I restore his obligation to my debtor, it is held to have been agreed upon between us that I will not make any claim against him; and it is established that, if I do, he can plead in bar an exception based on the agreement.
3. Modestinus, Rules, Book HI.
But after a pledge has been restored to a debtor, there is no question that the debt can be collected, if the money had not been paid; unless it is expressly proved that the contrary was intended.
4. Paulus, On the Edict, Book III.
Again, for the reason that tacit agreements are valid, it is settled that personal effects brought into dwelling-houses, which have been rented, are to be regarded as pledged to the lessor; even though nothing was specially stated to that effect.
(1) In accordance with this principle, a person who is dumb can enter into a contract.
(2) A stipulation made on account of a dowry is another proof of this, for no one has a right, before marriage, to bring suit for the dowry, any more than if this had been expressly stated; and if the marriage does not take place, the stipulation has no effect, which is also the opinion of Julianus.
(3) Having been consulted in a case where it was agreed that the principal could not be demanded so long as the interest was paid, and the stipulation was unconditionally drawn up, it was the opinion of Julianus that the condition was implied by the stipulation, just as if it had been expressed therein.
5. Ulpianus, On the Edict, Book IV.
There are three kinds of conventions, some of which relate to public matters, and some to private affairs. Those which are private are either based upon legislative enactments or upon the Law of Nations.
(1) A public convention is one by which peace is made when two military leaders agree upon certain things to that end.
6. Paulus, On the Edict, Book HI.
A convention based upon legislative enactment is one which is confirmed by some law; and therefore sometimes an action arises from an agreement, or is abrogated by it; which takes place as often as it is supported by an enactment, or by a Decree of the Senate.
7. Ulpianus, On the Edict, Book IV.
Some conventions based on the Law of Nations give rise to actions, and others give rise to exceptions.
(1) Those which give rise to actions are not known by their own names, but pass under the special designation of contracts; as purchase, sale, hire, partnership, loan, deposit, and other similar terms.
(2) Where the matter has not been placed under the head of some special contract, then, as Aristo very properly stated to Celsus, an obligation exists; as, for instance, I gave you something with the understanding that you would give me something else; or I gave you something with the understanding that you would perform some act, and this is sunallagma, that is to say, a mutual agreement, and a civil obligation will arise therefrom. Therefore I am of the opinion that Julianus was very justly criticized by Mauricianus for his decision in the following case: "I gave you Stichus with the understanding that you should manumit Pamphilus; you manumitted him, but Stichus was evicted by another party." Julianus holds that an action in factum should be granted by the prætor; but the former says that there is a civil action for an object which is uncertain, that is to say, one in prescribed terms, for there is a contract which Aristo calls sunallagma, and from this the action is derived.
(3) Where something is promised to prevent the commission of a crime, no obligation arises from such an agreement.
(4) But, where there is no ground for an agreement, it has been established that no obligation can be created; therefore, a mere agreement does not create an obligation, but it does create an exception.
(5) Sometimes, however, it does give rise to a suit, as in bona-fide actions; for we are accustomed to say that agreements which are entered into are included in bona-fide actions; but this must only be understood in the sense that where agreements follow as parts of a contract, they are included so as to give the right of action to the plaintiff; but if they are added afterwards, they are not considered to belong to the contract, nor do they confer a right of action; otherwise, an action would arise from the agreement. For instance, if after a divorce, it is agreed that the dowry shall not be surrendered at the end of the time prescribed by law, but immediately; this will not be valid; otherwise there would be an action founded on an agreement. Marcellus states the same thing, and if during an action of guardianship, it is agreed that a higher rate of interest than that established by law shall be paid, this is of no effect, or there would be an action founded upon an agreement; as the agreements contained in the contract con-
stitute its very essence; that is, they were made when the contract was entered into. I am aware that Papinianus said that if, after a sale, any agreement was entered into which was not a part of the contract, an action growing out of the sale could not be brought, on account of this same rule, namely: "No action can arise on a simple contract," which may also be stated concerning all bona-fide actions. The agreement, however, will have effect on the side of the defendant, for the reason that agreements which are afterwards interposed usually give rise to exceptions.
(6) To such an extent are subsequent agreements included in the same contract, that it is established that in purchases and other bonafide cases where the exception has not been followed up, the party can withdraw from the purchase. If this can be done as a whole, why cannot a part of it be changed by an agreement? This Pomponius stated in his Sixth Book on the Edict. Since this is the fact, an agreement will still have effect on the part of the plaintiff, so as to give him a right of action, where no further proceedings have been taken; and, on the same principle, if the whole contract can be set aside, why can it not be amended and appear, as it were, in a new form? This can be said to have been properly stated, and therefore I do not disapprove of what Pomponius says in his book of "Readings", namely: that one can by an agreement partially abandon a purchase, so that a purchase of the part may be made a second time.1
Where, however, two heirs are left by the purchaser, and the vendor agreed with one of them to abandon the sale; Julianus says that the agreement is valid, and that the sale is in part annulled, since the other heir by entering into another contract would have been able to obtain an exception as against his co-heirs. Hence the opinion of Julianus and Pomponius are very properly established.
(7) The prætor says: "I will require the observance of agreements which have not been entered into maliciously or contrary to the laws, plebiscites, Decrees of the Senate, or Edicts of the Emperors, where no fraud appears in any of them."
(8) There are certain agreements which relate to real property, and others which relate to personal property. Those that relate to real property are those by which I agree, in general terms, not to bring suit; those which relate to personal property are those in which I agree not to sue a certain individual, for instance: "I will not sue Lucius Titiiis." Whether an agreement is made with reference to property or to a person is to be ascertained not only from the language, but also from the intention of the contracting parties; since generally, (as Pedius says) the name of the person is inserted in the contract, not for the purpose of rendering it personal, but that it may be shown with whom the contract was made.
(9) The prætor says that an agreement fraudulently executed shall not be observed. Fraud is perpetrated by means of craft and artifice;
1 That is, he may rescind the entire transaction, and subsequently purchase a portion of the property sold, which would practically amount to an entirely dif-
and, as Pedius says, a contract is fraudulently executed whenever something is done, under the pretence that something else is intended, for the purpose of cheating another.
(10) The prætor adds nothing with reference to contracts entered into in order to defraud; but Labeo very properly says that if he did, it would be either unjust or superfluous; unjust if, for instance, the creditor having once given his debtor a bona fide release, should afterwards attempt to annul it; superfluous, if he was deceived when he granted the release, for fraud is included in deceit.
(11) Where a contract is fraudulently made in the beginning, or some fraudulent act is committed afterwards, there is ground for an exception, according to the words of the Edict: "And no fraud is committed".
(12) With reference to what is usually inserted at the end of an agreement, namely: "Titius asked, Mævius promised"; these words are not only understood as forming part of the contract, but also as being part of the stipulation; and therefore an action on a stipulation arises from them, unless the contrary is expressly proved; for the reason that this was done, not with the intention of making a stipulation, but only of entering into an agreement.
(13) If I agree that an action shall not be brought on a judgment, or for burning a house, an agreement of this kind is valid.
(14) If I agree not to institute proceedings upon the "notice of a new structure", some authorities are of the opinion that the agreement is not valid, because it, as it were, attacks the authority of the prætor; but Labeo makes a distinction here, as, for instance, where the new structure may be injurious to private property the agreement can be entered into; but where it affects public property this cannot be done, which is a very proper distinction. Thus it is lawful to enter into an agreement with respect to all other matters to which the Edict of the prætor relates, and which affect private property, but not to those where the injury of public property is concerned; for the law even permits a compromise to be made with reference to a theft.
(15) Where anyone agrees not to institute proceedings on account of a deposit, the contract is valid, according to Pomponius. Also where anyone agrees: "To assume all risk attending a deposit"; Pomponius states that the agreement is valid, and it cannot be set aside as contrary to law.
(16) Generally speaking, whenever an agreement is contrary to the Common Law, one is not obliged to observe it, nor can a legacy be made to depend upon this; nor where an oath has been made that the party will not sue, the agreement should not be observed, Marcellus states the same in the Second Book of the Digest; and where a stipulation has been entered into with reference to matters which it is not lawful to make the subject of a contract it is not to be observed, but entirely rescinded.
(17) When anyone before entering upon an estate makes an agreement with the creditors to pay them less than is due, then the contract will be valid.
(18) Where a slave makes an agreement before he obtains his freedom and inheritance, Vindius says that the contract is of no force, because he was appointed an heir under a condition. Marcellus, however, in the Eighth Book of the Digest, is of the opinion that if a direct heir, and a slave who is a necessary heir, both of whom have been absolutely appointed, make an agreement before meddling with the estate, they do so properly, which indeed is correct. He also thinks that a foreign heir, where he enters upon the estate under the direction of creditors, does so lawfully, and that he also has a right of action. But where anyone (as we have previously stated) enters into an agreement while in slavery, Marcellus denies that his contract is valid, since whatever act a person performs while in slavery does not usually profit him after he has obtained his freedom; which must be admitted with respect to an exception based upon a contract. But the question arises does an exception which is based upon fraud benefit him? Marcellus, although he was previously in doubt whether this was the case, in similar instances, however, admits it; as, for instance, where the son of a family, having been appointed heir, makes an agreement with creditors, but after he has been emancipated, enters upon the estate; he holds that he can make use of an exception on the ground of fraud. He is of the same opinion where a son, during the lifetime of his father, makes an agreement with the creditors of the latter; for in this instance an exception on the ground of fraud will be admitted. Finally, an exception on the ground of fraud must not be rejected even in the case of slaves.
(19) At present, however, an agreement of this kind can only be a disadvantage to creditors where they assemble, and by common consent state with what portion of their debts they will be satisfied. But, if they do not agree, the intervention of the prætor will be necessary, who in his decision must follow the will of the majority.
8. Papinianus, Opinions, Book X.
It has been decided that, in the case of creditors, a majority has reference to the amount of the indebtedness, and not to the number of individuals. If the number of the creditors is the same as the number of the debts, then the majority of the creditors must be given the preference; when the number of the creditors is equal, the prætor must follow the will of him who is highest in rank among them; but where everything is equal on both sides, the most humane opinion must be chosen by the prætor, for this can be gathered from the Rescript of the Divine Marcus.
9. Paulus, On the Edict, Book LXII.
Where there are several creditors who have a single right of action, they are held to occupy the position of only one person; as, for example, where there are several creditors by stipulation, or several bankers whose obligations were entered into at the same time, they shall be considered as one, because there is only one debt. Where several guardians of one ward, who is a creditor, enter into an agreement, they are regarded as one, for the reason that they did so in behalf of
a single ward. Again, where a single guardian enters into an agreement in behalf of several wards who are claimants of one debt, it is established that they are to be considered as one person, since it is a difficult matter for one man to represent two persons; for, indeed, lie who has several causes of action against a party who has only one, is not permitted to represent several persons.
(1) We estimate the total amount of indebtedness when several sums are due; as, for example, where several sums, which together amount to a hundred aurei, are owing to one man; and a sum of fifty aurei is owing to another; for, in this instance, we must consider the amount which is made up of several sums, because when they are added together they are greater than the single one.
(2) We must also add to the principal the interest which is due.
10. Ulpianus, On the Edict, Book IV.
The Rescript of the Divine Marcus provides that all the creditors shall assemble. But what if some of them are absent? Must those who are absent follow the example of those who are present? But if the agreement is valid as against those who are absent, an important question arises, namely, whether this agreement will bar absent privileged creditors? I repeat that, before the rule established by the Divine Marcus, the Divine Pius stated in a Rescript: "That the Treasury also, in those cases where hypothecation does not exist, as well as other privileged creditors, shall follow the example of the others."
All these rules must be observed with reference to those creditors who are without security.
(1) Where the stipulation of a penalty has been added to the contract, the question arises whether an exception on the ground of contract applies, or whether a suit should be brought on the stipulation? The opinion of Sabinus, which is the better one, is that he who made the stipulation can take either course, as he may choose; if, however, he makes use of the exception founded on the contract, it will be just to release the stipulation.
(2) We are for the most part accustomed to state: "that an exception founded upon fraud is an aid to an exception founded upon contract"; and then there are persons who cannot make use of an exception founded upon contract, but can use one founded upon fraud; which was the opinion of Julianus, and was endorsed by many others; for example, if my agent should make an agreement, I could have the benefit of an exception on the ground of fraud, which opinion is held by Trebatius, who thinks that as an agreement of my agent may injure me, it may also be to my advantage.
11. Paulus, On the Edict, Book III. For the reason that he can be paid.
12. Ulpianus, On the Edict, Book IV.
For it is established that it will be a source of injury to me, whether I ordered him to make a contract, or whether he was my general agent; as Puteolanus states in the First Book on Assessors, since it has been decided that he also can institute judicial proceedings.
13. Paulus, On the Edict, Book HI.
But if the agent was only appointed for the purpose of bringing an action, an agreement made by him does not prejudice his principal, for the reason that he cannot receive payment.
(1) Where, however, the agent was appointed for the transaction of affairs in which he himself is interested, he is considered to occupy the place of a principal, and thus any agreement entered into with him must be observed.
14. Ulpianus, On the Edict, Book IV.
Moreover, an agreement made by the head of a company is valid both for and against it.
15. Paulus, On the Edict, Book HI.
An agreement made by a guardian on behalf of his ward is valid, as is stated by Julianus.
16. Ulpianus, On the Edict, Book IV.
Where an agreement has been made with the purchaser of an estate, and the vendor of the same brings an action, an exception on the ground of fraud is a bar to his proceeding; for, according to a Rescript of the Divine Pius, equitable actions must be granted to the purchaser of an estate, and it is but just that a debtor of the estate should be able to make use of an exception on the ground of fraud, as against the vendor.
(1) Where an agreement has been made between the owner of the property sold and the purchaser of the same, for instance, that a slave who had been purchased should be restored to the person who sold him as owner; if he brings suit for the price he will be barred by an exception on the ground of fraud.
17. Paulus, On the Edict, Book HI.
If I give you ten aurei and agree with you that you shall owe me twenty, no obligation arises for more than ten, for none can be contracted for a greater amount than has been given.
(1) There are certain rights of action which are annulled under a contract by operation of law, as, for instance, one for injuries, or one for theft.
(2) A right of action based upon an agreement arises in the case of a pledge, under prætorian law; it is, however, annulled by an exception whenever I agree not to sue.
(3) When anyone makes an agreement that no suit shall be brought against himself, but shall be brought against his heir; an exception filed by the heir will be of no benefit to him.
(4) If I should agree that no suit shall be brought against me, or against Titius, this will be of no advantage to Titius, even if he should become the heir, because this cannot be confirmed subsequently. Julianus established this rule in the case of a father who made an agreement that suit should not be brought against him, or his daughter, when the daughter afterwards became the heir of her father.
(5) Where an agreement has been entered into with the vendor with reference to the property, it can be pleaded by the purchaser, according to the opinion of several authorities, and Pomponius states that we make use of this rule; but, according to Sabinus, when the agreement is personal, it can also be pleaded against the purchaser. He thinks that this is also the law where a succession arises through donation.
(6) When the unlawful possession of the estate of another enters into an agreement, many are of the opinion that the agreement will neither benefit nor prejudice the heir, if he should recover the estate.
(7) If a son or a slave enters into an agreement that no action shall be brought against the father or the master.
18. Gaius, On the Provincial Edict, Book I.
(Whether the agreement is made with reference to a former contract with the parties themselves, or with the father or master).
19. Paulus, On the Edict, Book III.
They are entitled to an exception. The same rule applies to those who are held in slavery in good faith.
(1) Again, if the son of a family makes an agreement that suit shall not be brought against him, it will be to his advantage and to that of his father also, if the latter is sued for the peculium of the son.
20. Gaius, On the Provincial Edict, Book I.
Or for any profit obtained by an obligation contracted by his son, or where he is sued as a defender of his son, if he should prefer this.
21. Paulus, On the Edict, Book III.
It can also be pleaded by the heir of the father during the lifetime of his son, but after the death of the son this cannot be done by the father or his heir, because the agreement is a personal one.
(1) Where a servant enters into an agreement that he shall not be sued, the agreement is worthless. Let us see whether an exception on the ground of fraud can be pleaded. When the agreement has reference to property, an exception based upon the agreement itself can be pleaded by the master and his heir, but where the agreement is personal, then the exception on the ground of fraud is only available.
(2) By making an agreement we cannot benefit those who are under our control; but it will be an advantage to us if we make an agreement in their behalf, as Proculus states. And this doctrine is correct if this was the understanding that the time that the contract was entered into; but if I agree that you shall not bring suit against Titius, and you begin an action against me in his name, an exception on the ground of contract is not allowed; for what is no benefit to Titius himself will be of none to his defender.