1Ulpianus, On Sabinus, Book LI. Where property is the subject of legal proceedings and an oath is taken with reference to the claim, we do not consider its value to be greater because the judgment may be for a larger amount on account of the contumacy of the defendant in not surrendering the property, as it does not by this means become more valuable; but its value is increased above what it is worth on account of the contumacy of the defendant:

2Paulus, On Sabinus, Book XIII. Whether we sue for something which is ours or whether proceedings are instituted for production. Sometimes the appraisement is made only with reference to the interest of the plaintiff in the action; for instance, where the negligence of the defendant in not surrendering or producing the property is to be punished; but when the fraud or contumacy of the party who does not surrender the property or produce it is to be punished, the value must be estimated in accordance with the amount which the plaintiff swore to in court with reference to the claim.

3Ulpianus, On the Edict, Book XXX. Where money has been deposited, the judge should not tender the oath in order that the party may swear to the amount of his interest, since the value of the coins is certain; unless he should swear as to what his interest was to have the money returned to him on the appointed day; for what if he had to pay a sum of money under a penalty, or on account of a pledge, and the pledge was sold because the other party had refused to pay the money which had been deposited with him?

4The Same, On the Edict, Book XXXVI. Let us consider who can take this oath where proceedings are instituted against the guardian, and against whom he can do so. The ward himself, indeed, cannot take it if he has not arrived at puberty, for this has very frequently been published in rescripts. The Divine Brothers stated in a Rescript that the guardian himself cannot be compelled to swear, or the mother of the ward be permitted to do so, even though she be ready to make oath; for it was held to be a serious matter for guardians who are ignorant of the facts, to incur the risk of perjury for the benefit of another, against their consent. It was also established by our Divine Emperor and his father that the curators of a ward or a minor could not be compelled to make oath with reference to a claim; but, where guardians or curators wish to manifest so much affection for the wards or minors under their charge, the authority of the law will not prevent trials from being ended in this way where issue has been joined between the parties; since the appraisement established by oath must be made, not with reference to the advantage of the party who is sworn, but to that of his principal in whose behalf an account of guardianship must be rendered. The minor, however, can be sworn if he wishes. 1The judge must tender the oath, but if anyone else should tender it, or if it should be taken without being tendered, it has no sanctity, and, in fact, is no oath at all; and this is stated in the Constitutions of our Emperor and his Divine Father. 2Any sum may be sworn to; but, I ask, can the judge fix a limit to the oath so as to restrict it to a certain amount, in order to prevent the party from taking the opportunity to swear to an immense sum? It is settled that it is in the discretion of the judge to tender the oath or not to do so; and therefore the question arises whether anyone who can refuse to tender the oath cannot also limit the amount to be sworn to; and this also is in the discretion of a judge acting in good faith. 3Moreover, it should be considered whether the judge who has tendered an oath is not entitled to refuse to follow it, and either to dismiss the case entirely, or to render judgment for a smaller amount than has been sworn to; and the better opinion is that where some unusually good cause exists, and new evidence has been discovered he can do so. 4It is well established that where negligence has been committed, the oath should not be tendered, but a valuation should be made by the judge.

5Marcianus, Rules, Book IV. In actions in rem and in those for production, as well as in bona fide proceedings, an oath is taken with reference to the claim. 1The judge, however, can fix a certain amount up to which the party may swear; for he had a right in the first place not to tender him the oath. 2Moreover, where the oath is taken, the judge has a right either to dismiss the case, or to render judgment against the defendant for a smaller amount. 3In all these instances, however, the oath with reference to the claim can be taken only where fraud exists, and not on account of negligence; for the judge makes an estimate of what comes under the latter. 4There is no question that sometimes an oath is taken with reference to the claim in an action of strict law; for example, where a party who promised to deliver Stichus makes default, and Stichus dies; as the judge cannot make an estimate of the value of property which no longer exists, without tendering an oath.

6Paulus, On the Edict, Book XXVI. It is otherwise where proceedings are taken on a stipulation or under a will, for then it is not customary for the claim to be sworn to.

7Ulpianus, On the Edict, Book VIII. It is generally taken for granted that no one but the party who has control of the case can make oath with reference to the claim; for Papinianus says that no one but a party who has joined issue in his own behalf can do so.

8Marcellus, Digest, Book VIII. Where a guardian who is in possession of the property of a person who has attained his majority refuses to surrender it to him; I ask whether judgment should be rendered against him for what the property is worth, or for the amount of the claim sworn to by the plaintiff? I answered that it is not just that the value, (that is what the property is worth), alone should be estimated, but that the contumacy displayed must be punished; and that the value of the property should rather be left to the judgment of the owner of the same by the power of making oath to the claim being granted to the plaintiff.

9Javolenus, On Cassius, Book XV. Where proceedings for theft are instituted, the value of the property at the time when the theft was committed must be sworn to, without adding the words, “Or more,” because where property is worth more, it is, at all events, worth as much.

10Callistratus, Questions, Book I. Where anyone does not produce documents, the plaintiff is permitted to swear to the claim, so that judgment may be rendered against the defendant for an amount of damages equal to the interest the plaintiff has in having the documents produced; and this the Divine Commodus stated in a Rescript.

11Paulus, Opinions, Book III. Inquiry is not readily permitted where a party commits perjury in a case in which he is compelled by law to swear to a claim.