1Gaius, On the Provincial Edict, Book V. A very important means for promptly disposing of litigation has come into use, that is to say, the religious character of an oath, by means of which controversies are decided either through the agreement of the parties themselves, or by the authority of the judge.

2Paulus, On the Edict, Book XVIII. The taking of an oath has the appearance of a compromise, and it has greater weight than the judgment of a court.

3Ulpianus, On the Edict, Book XXII. The Prætor says: “Where a party against whom suit is brought, after certain proposals have been offered, makes oath.” We must understand the words “The party against whom suit is brought” to mean the defendant himself. The other words “After certain proposals have been offered,” as not unnecessarily added; for if a defendant should take the oath without its being tendered to him by anyone, the Prætor will not recognize an oath of this description, as the party merely swears to himself; otherwise, it would be extremely easy for anyone who cares little for an oath to take it where no one tendered it to him, and thereby free himself from the burden of a suit. 1Where a party is sued in any kind of an action, if he makes oath it will be a benefit to him, whether the action is one in personam, in rem, or in factum, or where it is a penal action, or any other kind, or where the proceedings relate to an interdict. 2Where the oath is taken with reference to the civil condition of the person, the Prætor will sustain it; as, for instance, where I tendered you an oath and you swore that you were not under my control, the oath must be sustained. 3Wherefore, Marcellus states that an oath can be taken with reference to the question as to whether a certain woman is pregnant or not, and the oath must stand. Finally, he says that where the inquiry relates to possession, the oath must be sustained; for example, where a woman wishes to be placed in possession of property because she is pregnant, and when this is disputed by the other side, then she must either swear that she is pregnant, or the other party must swear that she is not, for if she herself makes oath, she can enter into possession without apprehension; and, on the other hand, if the oath is made against her, she cannot do so, even though she may be actually pregnant; and therefore Marcellus says that a woman who takes the oath will have the benefit of it, and will avoid legal proceedings on the ground of having taken possession in behalf of an unborn child, for the purpose of deception; nor can she be subject to force while she is in possession. But whether an oath will be an advantage so far as to prevent inquiry being made after a child is born as to whether it is the offspring of him who is said to be its father or not, is a question discussed by Marcellus, and he says that the truth ought to be ascertained, because the oath does not benefit or injure another; hence the oath of the mother will not benefit the child, nor will it cause any injury if the mother tenders it, and oath is made that she is not pregnant by a certain man. 4It is necessary for a party to swear in the terms in which the oath is tendered, but if I tender it for you, you may swear by God and you swear by your own head,

4Paulus, On the Edict, Book XVIII. Or the heads of your sons,

5Ulpianus, On the Edict, Book XXII. An oath of this kind will be of no effect. If, however, I required you to swear by your own salvation and you do so, I must abide by it; for every kind of an oath which is at all lawful and by which any one wishes to be sworn in his own behalf is suitable, and if it is taken, the Prætor will sustain it. 1The Divine Pius stated in a Rescript that if an oath was taken in accordance with some peculiar superstition, it must stand. 2When the oath has been taken, nothing else must be asked but whether the party was sworn, and the question as to whether anything is due is not considered, as this is sufficiently established by the oath. 3Where, however, a party tenders an unlawful oath, that is to say, one relative to a religion the profession of which is publicly forbidden; let us see whether it should be considered as if no oath had been taken; and this, I think, is the better opinion. 4Where an oath is taken, and the party is not released from being sworn, it must be held that the matter has never been submitted to determination by oath, and hence if he should afterwards be willing to be sworn, the oath will be of no advantage to him; because it was not taken with reference to the matter for which it was tendered.

6Paulus, On the Edict, Book XIX. A party waives an oath who, when he tenders it, and his adversary evinces a willingness to take it, he excuses him from doing so, being satisfied because the other party consents to be sworn. Where, however, the latter did not take it, but is afterwards ready to do so, and the plaintiff is unwilling to tender it; he is not held to have dispensed with it, for it can only be dispensed with when it is accepted.

7Ulpianus, On the Edict, Book XXII. The Prætor says: “With reference to a matter for which an oath has been tendered, I will not grant an action either against the party himself, or against him to whom the property belonged.” The term “matter” must be understood to be applicable whether the oath is taken with reference to the entire property in question or only a portion of the same; for the Prætor promises that he will not grant an action with reference to what was sworn to, either against the party who took the oath, or against those who succeed to him to whom the oath was tendered,

8Paulus, On the Edict, Book XVIII. Even though they succeed to the property.

9Ulpianus, On the Edict, Book XXI. For, after the oath is taken, the action is refused; and if there should be any controversy, that is to say, if it is disputed whether the oath was taken or not, there is ground for an exception. 1Where the oath has been taken or dispensed with, the defendant will be entitled to an exception both for himself and for others; and the plaintiff will acquire a right of action in which the only matter to be considered is whether he swore that something should be given him, or where he was prepared to swear and the oath was dispensed with. 2If judgment is rendered against a party after the oath has been taken, in a case where infamy is involved; the better opinion is that he becomes infamous. 3Where a party who is liable to me in a temporary action tenders me an oath in such a way that I must swear that he is obliged to pay, and I swear to this; he will not be released by lapse of time, for the reason that his liability is perpetuated after issue has been joined. 4Where anyone under twenty-five years of age tenders an oath, and states that advantage has been taken of him in doing so, he should file a replication in answer to an exception based upon the oath; as Pomponius says. I, however, am of the opinion that this replication should never be granted; but that, in most instances, the Prætor himself should investigate as to whether advantage was taken of the minor, and grant him complete restitution; for the mere fact that he is a minor does not establish the fact that he has been swindled. Moreover, this exception or inquiry ought not to extend beyond the time prescribed by law after the minor has reached his twenty-fifth year. 5Moreover, where a party tenders an oath to a debtor in fraud of his creditors, and a replication on the ground of fraud should be granted the creditors against an exception based upon the oath; and, moreover, if the party guilty of fraud tenders an oath to a creditor in order to have the latter swear that he should pay him ten aurei, and afterwards, when his property has been sold, he wishes to bring an action; either the action must be refused, or it may be opposed by an exception on the ground of defrauding creditors. 6Julianus says that the oath of a party who defends a case voluntarily or is appointed an attorney, if tendered by the adversary, will be a good defence and will provide the principal with an exception. Hence it must be said that the same rule applies where an agent is appointed to bring an action, and the defendant, having tendered an oath, swears that the amount should be paid to me; for this furnishes me with a right of action. This opinion is reasonable. 7Where the plaintiff has sworn, on the oath tendered by the party in possession, that the property is his, he will be entitled to an action; but this only applies to the party who tendered the oath and to these who have succeeded to his place; but if he should wish to make use of the privilege obtained by taking the oath in an action against another, his oath will be of no benefit to him;

10Paulus, On the Edict, Book XVIII. Because a transaction between certain parties should not injure anyone else.

11Ulpianus, On the Edict, Book XXII. Where an oath is tendered to a party in possession, and he swears that the property does not belong to the plaintiff, then, so long as he holds possession, he can make use of an exception based upon the oath against the party who tendered it; but if he should lose possession, he will not be entitled to the action, not even if the party who tendered him the oath is in possession; for he did not swear that the property was his, but merely that it did not belong to the other party. 1Hence, if, while he is in possession, the plaintiff having tendered him the oath he swore that the property was his; we hold, in consequence, that even though he should lose possession, and the party who tendered him the oath should acquire it, an action in factum should be granted him. Again, it has been settled that any crops which may have been gathered from property which I have sworn to be mine must be restored to me, and that the offspring of female slaves and the young of cattle must be surrendered, after the oath is tendered. 2In like manner, if I should swear that the usufruct of any property is either mine or should be surrendered to me, an action will lie in my favor as long as I am entitled to the usufruct in the same; but in those cases in which the usufruct would be lost, I will have no right of action. Where, however, the party swears that he has an usufruct, or that he is entitled to one in property in which no usufruct can be created, because it would be consumed by use; my opinion is that the effect of the oath must be sustained, and, therefore, even though it should be held that he was properly sworn, I think that, on account of the oath, he can claim the usufruct if security is given. 3When a controversy exists between yourself and me with reference to an estate, and I swear that it belongs to me, I have a right to obtain whatever I would have been entitled to if judgment had been rendered in my favor in a suit for the estate; and you are required to deliver not only the property of which you had possession at the time, but also whatever you became possessed of afterwards; and the oath must be considered of as much importance as if my case had been proved, and therefore an equitable action will lie in my favor. If, however, I am in possession on account of a right to the estate, and you undertake to recover it from me, and I make oath against you; I shall be entitled to an exception based on said oath. It is clear that, if some other party institutes proceedings against me to recover the estate, there will be no doubt (as Julianus says), that the oath will be of no advantage to me.

12Julianus, Digest, Book IX. The same rule prevails where I wish to sue anyone who is in possession of property belonging to an estate; because if I should bring an action to recover the estate from you, and prove that it is mine, nevertheless, if I brought suit against another person it would be necessary for me to prove the same thing.

13Ulpianus, On the Edict, Book XXII. Where there are two patrons, and, one of them having tendered an oath, a freedman swears that he is not his freedman, will the other be entitled to possession of the entire property which patrons have a right to, or only to half of the same? It is said, by way of answer, that if the party to whom the oath was sworn was a patron, the other has a right to the possession of his own share of the property, and it will be of no benefit to him that the freedman made oath against the other; but the patron will have a great deal of consideration and authority if he applies to a judge in an attempt to prove that he is the sole patron, because the freedman swore that the other was not his patron. 1Ad Dig. 12,2,13,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 179, Note 7.Julianus says that anyone who swears that a certain tract of land is his should, after sufficient time has elapsed to give him a title by prescription, also have a right to a prætorian action. 2Julianus also says that where a party swears that he did not commit theft, he is held to have made oath with reference to everything relating to the matter; and therefore he will not be liable to an action of theft, or to a personal action for recovery, for the reason that only a thief is liable to the latter action. Therefore, can anyone who swears that he did not commit theft, make use of an exception on this account, if a personal action for recovery is brought against him? Where the party who brings the action alleges that he is the heir of the thief, he cannot be refused a hearing, and he should be granted a special action for recovery against the heir of the thief, and the judge must not permit him to proceed if he attempts to prove that the party is a thief. 3Where anyone swears that I sold him something for a hundred aurei, he can bring an action based on the purchase for the performance of whatever is connected with the contract; that is to say, for the delivery of the property and for security against recovery by a genuine owner. Should it not, however, be considered whether he can be sued on the contract of sale for the recovery of the purchase-money? If, indeed, oath was taken with reference to this, that is to say, that the money was paid, no right of action will exist for the recovery of the latter; but if this was not sworn to, the party will, in consequence, be liable for the purchase-money. 4We say that the same rule applies where anyone swears that he entered into a partnership; for he can still be sued in a partnership action. 5Marcellus says that where anyone swears that he gave his land as security for ten aurei, he cannot bring suit on the pledge without paying ten aurei, but he adds that perhaps he can be sued for ten aurei on account of his oath; and this he entirely approves of. Quintus Saturninus concurs in this opinion, and he makes use of the case where a party swore that his former wife gave him certain property as a dowry; for he says that, in this instance, an equitable action for the dowry should be granted her, and I deny that this opinion exceeds the demands of justice. 6Where, in a pecuniary transaction, a party swears by the Genius of the Emperor that he is not obliged to pay, or that his adversary is entitled to payment, and perjures himself; or where he swears that he will pay within a certain time and does not do so; our Emperor and his father stated in a Rescript that he must be sent away to be whipped with rods, and the following notice attached to him, namely: “Do not swear rashly!”

14Paulus, on the Edict, Book III. Whenever an oath is taken with reference to property, it cannot be dispensed with in favor of a parent or a patron, and an oath is exacted with reference to property; for instance, where money is borrowed and the plaintiff swears that he should be paid, or the defendant swears that he is not obliged to pay. The same rule applies where an oath is required with reference to mere promise to pay at a certain time.

15The Same, On the Edict, Book VI. Someone must be sent to their homes to administer the oath to distinguished persons, and to those who are prevented by illness from appearing in court.

16Ulpianus, On the Edict, Book X. When a patron marries his freedwoman, he cannot be compelled to swear in an action for the removal of property; but if he himself tenders the oath to his freedwoman, he will not be compelled to swear that he did so for the purpose of annoyance.

17Paulus, On the Edict, Book XVIII. Where an oath is tendered extrajudicially in accordance with an agreement, it cannot be tendered back again. 1A ward shall tender an oath with his guardian’s consent, because, if he tenders it without it, an exception can be placed against him; but he is entitled to a replication, because he has no legal right to attend to his own affairs. 2Where a guardian who is administering a guardianship, or the curator of an insane person or a spendthrift, tenders an oath, it should be considered as ratified; as they dispose of property, and give receipts where money is paid, and can also bring a matter into court by means of a legal action. 3Moreover, where an agent tenders an oath, it must be sustained where he has control of all the property of his principal, or was especially directed to do this, or is an agent acting in his own behalf.

18Ulpianus, On the Edict, Book XXVI. But, otherwise, an agent who attempts to tender an oath should not be heard, as Julianus states in the Tenth Book of the Digest, nor can a defendant who has taken the oath subsequently be sued by the principal; and it is of not much benefit to him if security was furnished that the principal would ratify the act; for if the latter should sue him, the defendant will be compelled to show that he made oath in all sincerity, provided an exception is filed; but if he should bring suit based on the stipulation that the act would be ratified, he will be required to prove that perjury was committed by himself.

19The Same, On the Edict, Book XXVI. Therefore, if an agent was directed to bring suit, and he tendered an oath, he did something which he was not directed to do.

20Paulus, On the Edict, Book XVIII. Where a slave tenders an oath or takes one, it will be sustained if he has the administration of his peculium:

21Gaius, On the Provincial Edict, Book V. For he can lawfully receipt for money paid, and has the right to renew an obligation.

22Paulus, On the Edict, Book XVIII. Some authorities hold that an action De peculio should be granted against the owner where a slave tenders an oath to the plaintiff. The same rules apply to a son under paternal control.

23Ulpianus, On the Edict, Book XXVI. Where a slave swears that his owner is not obliged to pay, the latter is entitled to an exception, and his adversary, who tendered the oath to the slave, has no one but himself to blame.

24Paulus, On the Edict, Book XXVIII. It is much more true that the religious feeling of a son is advantageous to his father, where suit can be brought against the latter. But where parties of this kind tender the oath back, they do not render the legal position of those to whose authority they are subject any worse.

25Ulpianus, On the Edict, Book XXVI. If my slave, where an oath has been tendered in the first place or tendered back to him, swears that certain property belongs to his master, or should be delivered to him; I think that I am entitled to an action or an exception based on contract, on account of the sacred character of the oath and the terms of the agreement.

26Paulus, On the Edict, Book XVIII. Where any one is said to have sworn, it makes no difference what his or her sex, or age may be, for the oath should, by all means, be sustained against the party who was content with it when he tendered it; although a ward is never considered to have perjured himself, because it is not held that he can knowingly be guilty of deception. 1If a father swears that his son is not obliged to pay; Cassius stated as his opinion that an exception based on the oath should be granted to both father and son. Where a father swears that there is nothing in the peculium, an action can be brought against the son; and it can also be brought against the father in order to obtain an accounting for any peculium which may have been subsequently acquired. 2The taking of an oath may be considered as belonging to the same class as the renewal or assignment of an obligation, as it grows out of an agreement; although it also bears some resemblance to a judgment.

27Gaius, On the Provincial Edict, Book V. An oath also takes the place of payment.

28Paulus, On the Edict, Book XVIII. Where two creditors jointly interested enter into a stipulation, and the oath is tendered by one of them, it will also prejudice the other. 1Where the principal debtor takes an oath, it also benefits a surety; and where an oath is required of a surety it likewise benefits the principal debtor, as Cassius and Julianus say; for, because it takes the place of payment it must, in this instance also, be considered as doing so; provided that the oath was introduced with reference to the contract itself and the property in question, and not with respect to the person who was sworn. 2Ad Dig. 12,2,28,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 6.Where anyone promises to produce my debtor in court, and I tender him the oath, and he swears that he never promised to produce him, this should be of no advantage to my debtor; but if he swears that he himself is not at all indebted to me, a distinction ought to be made, and the proceedings amended by means of a replication; whether he made oath to the effect that after his promise he had produced the party, or, in fact, had paid what was due. A distinction of the same kind can also be made in the case of a surety for a debt. 3Where one of two joint-debtors of a certain sum of money took the oath; this should also benefit the other. 4An exception based upon an oath can be used not only where a party brings an action on account of the matter for which he executed the oath, but also with reference to another case, provided the same question is concerned in the latter proceeding; for example, where an oath is required in an action on mandate, or in one based on business transacted, partnership, and others of the same kind; and then a specific action for recovery based on the same matters can be brought, for the reason that one action is annulled by the other. 5Where anyone swears that he did not commit robbery, he should not be permitted to derive any advantage from his oath in an action for theft, or in one for the recovery of stolen property; because theft is a different crime, being one that can be perpetrated secretly. 6Where suit is brought against a tenant on his lease, for instance, because trees have been cut down, and he swears that he did not cut them, and he is afterwards sued under the Law of the Twelve Tables for having cut trees, or under the Lex Aquilia for wrongful damage, or an interdict Quod vi aut clam is applied for against him; he can make a defence by means of an exception based upon his oath. 7Where a woman swears that she did not remove property belonging to her husband on account of a divorce, she cannot make a defence by means of an exception, if suit is brought against her for the recovery of the property, and if she contends that it is hers, another oath will be required; on the other hand, if she swore that the property was hers, this oath can be set up as a defence in an action for the removal of property which has been removed. And, indeed, it should be generally observed that where the same question comes up in a different action, an exception based upon the oath will be available. 8Therefore, where a party swears that judgment was not rendered against him, even though he is sued on a judgment based on a stipulation that the decision of the court will be obeyed; he can defend himself by means of an exception. Where, however, on the other hand, he is sued on the stipulation that the decision of the court will be complied with, and he then swears that he is not obliged to pay, an exception cannot be properly pleaded against the party bringing suit on the judgment; for it may happen that the stipulation did not become operative, even though judgment was rendered against him, unless he should swear that this was not the case. 9Moreover, Pomponius says that where a man swears that some of his property was stolen, he does not immediately acquire a good cause of action for the recovery of the property. 10Again, since under this Section the oath affords ground for both an action and an exception, if the defendant takes an oath out of court, which is tendered by the plaintiff, and swears that he is not obliged to pay; and then the plaintiff, on the tender of the oath by the defendant, swears that he has a right to exact payment, or vice-versa; the last claim supported by oath will have more force, but this will not prejudice the point as to whether the other party has committed perjury; for the question is not whether the defendant was obliged to pay, but whether the plaintiff made oath that he was.

29Tryphoninus, Disputations, Book VI. Moreover, if you tender an oath, and I swear that you did not swear that I was obliged to pay you; then, in opposition to an equitable action by which it is intended to ascertain whether you made oath that you had a right to require payment, I can plead an exception based upon my oath for the purpose of disposing of the question included in the action.

30Paulus, On the Edict, Book XVIII. Pedius says that where a man, in an action in which the amount is increased by the denial of the defendant, swears that something is owing to him, he acquires a right to bring suit for simple and not for double damages; for it is abundantly sufficient that the plaintiff should be freed from the necessity of proving his case, since, leaving out this part of the Edict, his right of action for double damages remains unimpaired; and it may be said that in a case of this kind the principal cause of action is not the object of the proceeding, but that the oath of the plaintiff should take effect. 1If I swear that you are obliged to deliver Stichus to me, and such a slave is not in existence, you, as defendant, are not required to pay me his value, except in case of theft or because of your default; for in either of these instances the value of the slave must be stated, even after his death. 2Where a woman swears that ten aurei are due to her on account of dowry, that entire amount must be paid; but if she swears that she paid ten aurei by way of dowry, inquiry will not be made as to the mere fact whether the amount was paid, but it will be considered as paid, and whatever portion should be returned must be given to her. 3In a popular action, an oath which has been exacted can be used against others only if it was demanded in good faith; for, where anyone institutes proceedings, this does not prevent a public action, unless the proceedings were instituted through collusion. 4Where a freedman, after his patron has tendered him the oath, swears that he is not his freedman, the oath must be sustained; so that no claim for services, nor one for the possession of the property of an estate contrary to the provisions of the will, can be considered. 5If I swear that I have a right to have a usufruct transferred to me, this should be done only where I give security that I will make use of it in the way that a good citizen would do, and that, when the usufruct terminates, I will restore it.

31Gaius, On the Provincial Edict, Book XXX. We must remember that sometimes, even after the oath has been exacted, it is permitted by the Imperial Constitutions to have recourse to ordinary proceedings, where the party interested alleges that new documents have been found which he now only desires to use. These Constitutions are held to be available solely where a party has been discharged by the court; for judges, after requiring an oath, are frequently accustomed to render a decision in favor of the party who was sworn; but where the matter has been settled between the parties by means of an oath, it is not permitted for the same case to be reheard.

32Modestinus, Differences, Book III. A ward cannot dispense with the oath.

33Ulpianus, On Sabinus, Book XXVIII. When a party swears by his own salvation, although he is held to swear by God (for when he swears in this way he has reference to the Divinity), still, if the oath had not been tendered him in this particular manner, he is held not to have sworn; and therefore he will be compelled to make oath again in the proper form.

34The Same, On the Edict, Book XXVI. An oath may be employed both with reference to money and to all other matters, for an oath may even be tendered in an action for services, and the adversary cannot complain of any injury done him, since he can tender the oath back. What then should be done if the defendant alleges that he is released because he thinks that Stichus, the slave whom he promised, is dead? In this case he cannot be protected by tendering the oath back; and therefore, for this reason, Marcellus thinks, and very properly, that he should either be excused from taking the oath, or that certain time should be granted him that he may ascertain the facts and then be sworn. 1A party who appears in defence of a municipality or of any corporate body can tender the oath, if he has an order to do so. 2An oath cannot be tendered to a ward. 3Neither an agent nor a defender can be compelled to swear; for it is stated by Julianus in the Ninth Book of the Digest that a defender cannot be compelled to swear and that it will be sufficient for a complete defence if he is prepared to join issue in the case. 4Ad Dig. 12,2,34,4ROHGE, Bd. 3 (1872), S. 323: Voraussetzung des wegen der Eideszuschiebung zu verlangenden Calumnieneides.Where a party tenders an oath, he must himself first swear that he does not do so with a desire to cause annoyance, if this is required; and then the oath for him will be taken. This oath with reference to annoyance is dispensed with in the case of a patron or parents. 5If there is any doubt among the parties as to the nature of the oath to be taken, its terms are to be decided by the arbiter who hears the case. 6The Prætor says, “He who is asked to swear I will compel either to pay or to take the oath,” and therefore the defendant must choose whether he will pay or swear, and if he does not swear, he will be compelled by the Prætor to pay. 7Another resource is, however, granted to the defendant, namely, that of tendering back the oath if he prefers to do so, and if he who brings the action refuses to accept the conditions under which he must be sworn, the Prætor will not permit the case to go on, and in doing so he acts most justly; since the conditions under which the oath must be taken should not be displeasing to the party who himself tendered one. The plaintiff, however, cannot tender the oath relating to annoyance to the defendant who tenders back the oath, for, that the plaintiff should expect that an oath de calumnia will be taken with reference to terms which he himself imposed, is something that ought not to be tolerated. 8It is not always proper for an oath to be again tendered in the same terms as at first; for, perhaps, on account of the diversity of things or persons, matters may arise which cause a difference to exist between them, and therefore if anything of this kind should occur, the terms of the oath should be decided by the judge. 9When the matter in dispute is referred to an oath, the judge discharges the party who swears and will hear the one who desires to tender the oath back, and if the plaintiff should swear, he must render a judgment against the defendant; and if the latter refuses to swear, but pays, he must discharge him, and if he does not pay, he must render judgment against him; and where the plaintiff, after the oath is tendered back, refuses to take it, he must discharge the defendant.

35Paulus, On the Edict, Book XXVIII. When the guardian of a ward tenders an oath where all other evidence is lacking, he must be heard, for circumstances may exist under which an action will be refused the ward. 1Where a spendthrift tenders an oath, he shall not be heard, and the same rule applies in other similar cases; for, whether the oath takes the place of an agreement, or of a debt, the payment of the execution of a judgment, it should not be allowed, except when tendered by those who are properly qualified for such things. 2Parties who cannot be compelled to join issue at Rome, cannot be compelled to make oath there; as, for example, provincial envoys.

36Ulpianus, On the Edict, Book XXVII. Where the plaintiff tenders an oath with reference to money which had been merely promised, and the defendant swears, he can avail himself of an exception if an action is brought against him on the promise; but if he is sued for the principal—that is on account of the prior obligation—an exception cannot be pleaded, unless he swore with respect to this also, after the plaintiff had tendered him the oath.

37Ad Dig. 12,2,37ROHGE, Bd. 3 (1872), S. 323: Voraussetzung des wegen der Eideszuschiebung zu verlangenden Calumnieneides.Ulpianus, On the Edict, Book XXXIII. If the oath has not been waived by the party who tendered it, and no oath has been taken denying that proceedings have been instituted for purposes of annoyance, the action will not be granted in consequence; for he has only himself to blame who proceeded to tender the oath before the denial that annoyance was intended was sworn to, so that he is in the same position as if he had dispersed with the oath.

38Paulus, On the Edict, Book XXXIII. Where a party is unwilling either to swear or to tender back the oath, it is an evidence of manifest depravity, and equivalent to a confession.

39Julianus, Digest, Book XXX. Where anyone agrees with his debtor that suit shall not be brought for the money if he swears that he did not “ascend the Capitol,” or that he had done or had not done anything else whatsoever; and the latter makes oath accordingly, an exception on the ground of the oath should be granted him, and if he has paid he can recover the money; for an agreement is lawful where, in any case whatsoever, it is made dependent upon the condition of an oath.

40The Same, Digest, Book XIII. Where an oath is required from a debtor it effects a release of a pledge; for this resembles the discharge from liability for a debt, and certainly gives rise to a perpetual exception. Therefore, a creditor who brings suit for a penalty will be barred by an exception, and if the money has been paid it can be recovered; just as where an oath is interposed all controversy is at an end.

41Pomponius, Rules. Labeo stated that the oath may be dispensed with in favor of a party who is absent, or ignorant of the facts; and it can even be waived by letter.

42The Same, Epistles, Book XVIII. Where an oath was tendered by a creditor who had instituted proceedings against a ward for money which had been loaned, the latter swore that he was not obliged to pay, and then the creditor brought suit against his surety for the money; should he be barred by an exception based on the oath? Write to me what your opinion is. Julianus discusses the point more fully; for he says if the controversy that arose between the creditor and the ward was whether the ward had ever received the money, and it was agreed that the whole question should be settled if the ward would take an oath, and he swore that he was not obliged to pay; the natural obligation is disposed of by this agreement, and if any money has been paid it can be recovered. If, however, the creditor maintained that he had made the loan, and the ward only defended himself upon the ground that his guardian had not intervened, and an oath of this kind is taken; the Prætor, in this instance, will not afford the surety any relief. But where it cannot be clearly proved what the agreement was, and it is doubtful (as very frequently happens) whether the controversy between the creditor and the ward was a question of fact or one of law; and the creditor, having tendered the oath, the ward took it; we must hold that the understanding between them was that if the ward should swear that he was not obliged to pay, the controversy should be considered at an end, and the money paid can be recovered; and we think that an exception should be granted the sureties. 1Where a surety swears that he is not obliged to pay, the defendant is protected by an exception founded on the oath; but if a surety should swear that he had never been surety at all for the sum demanded, this oath ought not to benefit the person who promised. 2Ad Dig. 12,2,42,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 8.Moreover, where the plaintiff tenders the oath, and a party who appears for either the absent or present defendant swears that the latter is not obliged to pay; an exception based upon the oath shall be granted to him in whose behalf the oath was taken. The same rule is applicable where some one who appears in defence of a surety makes oath for an exception to be granted the principal. 3In like manner if the principal makes oath, his surety will be protected; because a decision in favor of either of them will benefit the other.