1Ulpianus, On the Edict, Book XII. No one will refuse to acknowledge that the basis of this Edict is perfectly just; for where a man’s rights have been impaired during the time when he was in the service of the State, or where he suffered some misfortune, it affords a remedy; and relief is also granted against such persons, so that whatever occurred will neither benefit nor injure them. 1The following are the terms of the Edict: “Where any portion of the property of a party has been injured while he was under duress, or, without the existence of fraud, absent in the service of the State, or in prison, or in slavery, or in the power of the enemy; or has permitted the time to elapse for beginning an action, or where anyone has acquired property by use, or obtained anything and lost it by want of use; or has been released from liability to be sued, because of lapse of time, and he being absent, was not defended; or was in chains; or had made no provision by which he might be sued; or, when it was not lawful for him to be brought into court against his will, no defence was offered for him; or when an appeal was made to a magistrate or to someone acting as magistrate, and his right of action was lost, withany fraud on his part; in all these instances I will grant an action within the year during which the party had the right to apply. Moreover, where any other just cause seems to exist, I will grant complete restitution, when this is authorized by the laws, the plebiscites, the decrees of the Senate, or the edicts and the ordinances of the Emperors.”

2Callistratus, Monitory Edict, Book II. This Edict, so far as it relates to those who are included therein, is not much used at present, as justice is administered in the case of such persons by extraordinary procedure, based upon the decrees of the Senate and the Imperial Constitutions. 1Those persons are chiefly relieved under this head who are absent on account of fear; that is to say, where they were not deterred by alarm that had no foundation.

3Ulpianus, On the Edict, Book XII. Anyone is considered to have been absent on account of fear who remains away through just apprehension of death or corporeal torture, and this must be ascertained from its effect upon him; for it is not sufficient that, influenced by any kind of apprehension, he remained in terror, but the determination of this fact is the duty of the judge.

4Callistratus, Monitory Edict, Book II. Those who are included who, without fraudulent intent, were absent in the service of the State. The expression “fraudulent intent” must be understood to have reference to a case in which a person who can return, does not do so and is not relieved, in case any wrong has been committed against him during his absence; as, for instance, where he remained away for the purpose of obtaining some substantial advantage for himself while he was absent in the service of the State, he would be deprived of this privilege.

5Ulpianus, On the Edict, Book XII. The case would be the same where he contrived to be absent or took care to do so, even if he obtained no benefit by it; or if he departed too soon; or where the cause of his absence originated in a lawsuit. The addition of fraudulent intent refers to parties who are absent in the service of the State, and not to those who are absent on account of fear, since there is no fear where fraud is involved. 1Parties, however, who are employed in public offices at Rome, are not considered to be absent in the service of the State:

6Paulus, On the Edict, Book XII. As, for example, magistrates.

7Ulpianus, On the Edict, Book XII. It is evident that soldiers who are stationed at Rome must be considered as absent in the service of the State.

8Paulus, Abridgments, Book III. Relief is granted to municipal envoys by a Constitution of the Emperors Marcus and Commodus.

9Callistratus, Monitory Edict, Book II. Relief is also granted to anyone who is in prison, which not only refers to those who are in public prisons but also to persons who are kept in confinement by thieves, or robbers, or by the employment of resistless force. The term has a broader signification, for those also are considered to be imprisoned who are confined in stone quarries, because it makes no difference whether they are restrained by walls, or by fetters. Labeo thinks, however, that the term should only be understood to mean legal imprisonment.

10Ulpianus, On the Edict, Book XII. Those persons are also in the same position who are guarded by soldiers, attendants of the Magistrates, or Municipal Authorities, where it is proved that they are unable to manage their own affairs. We also consider those to be under restraint who are bound to such an extent that they cannot appear in public without disgrace.

11Callistratus, Monitory Edict, Book II. Relief is also granted to those who are in slavery, whether, being freemen, they served as slaves in good faith, or whether they were simply detained.

12Ulpianus, On the Edict, Book XII. He also, who is engaged in litigation with reference to his status is not included in this Edict, as soon as the case is brought into court; and therefore he is considered to be in slavery only so long as proceedings of this kind are not instituted.

13Paulus, On the Edict, Book XII. Labeo very properly says that a party who has been appointed heir, and granted his freedom, is not included in the terms of the Edict before he really becomes the heir; for before that, he cannot hold property, and the Prætor speaks of men who are free. 1I am of the opinion, however, that the son of a family conies within the terms of this Edict where his castrense peculium is involved.

14Callistratus, Monitory Edict, Book II. Relief is also granted to him who is in the power of the enemy, that is to say who has been captured by him, for it must not be thought that any benefit is accorded to deserters, to whom the right to return is denied. Those, however, who are in the power of the enemy may be considered to be included in that part of the Edict, in which persons who have been in slavery are mentioned.

15Ulpianus, On the Edict, Book XII. Relief is granted to persons captured by the enemy, where they return under the right of postliminium, or where they die; since they cannot appoint an agent, while the others above mentioned can be readily aided by means of one; with the exception of those who are held in slavery. I think, however, that aid can be rendered in behalf of a party who is in the power of the enemy, if a curator is appointed for the management of his property, as is generally the case. 1Relief is granted to a child born in the hands of the enemy, if he has the right to return, just as to one who was captured. 2Where a man is placed in possession of the house of a soldier for the purpose of preventing threatened injury; and the Prætor grants possession to anyone while he is present, he will have no right to demand restitution; but, where the custodian was absent, it must be held that he is entitled to relief. 3Where the Prætor says in the Edict: “Or afterwards” without anything further, it must be understood that if a possessor in good faith held the property before the absence of the owner, and the possession terminated on his return, he would have ground to apply for restitution, not at any time, but only where this happened soon after his return; that is to say, during the time required to find a lodging, arrange his baggage, and seek an advocate; for Neratius states that he who defers an application for restitution should not be heard.

16Paulus, On the Edict, Book XII. Relief is not granted to persons who are negligent, but only to those who are hindered by force of circumstances. All this is to be referred to the judgment of the Prætor; that is to say, he must only grant restitution where a person could not join issue by reason of want of time, and not where he was guilty of negligence.

17Ulpianus, On the Edict, Book XII. Ad Dig. 4,6,17 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 3.Julianus stated in the Fourth Book, that relief could not only be granted to a soldier against the party in possession of an estate, but also against those who had purchased from the possessor; so that if the soldier should accept the estate, he can recover the property, but if he does not accept it, prescription would evidently continue to run afterwards. 1Where a legacy has been bequeathed in the following terms: “Or for every year, that he shall remain in Italy”; restitution may be granted so that he may receive the amount as if he had been in Italy, as Labeo states; and Julianus in the Fourth Book, and Pomponius in the Thirtieth Book, approved of this opinion; for the right of action is not extinguished through lapse of time where the aid of the Prætor becomes necessary, but the case is conditional.

18Paulus, On the Edict, Book XII. It must be remembered that we grant the aid of restitution when the parties have attained their majority, only where they attempt to recover their property; and not where they desire relief to be given them, for the purpose of gain, or to inflict a penalty or loss on some other person.

19Papinianus, Questions, Book III. Moreover, if a purchaser, before obtaining a title to property by prescription, is captured by the enemy, it is settled that the possession, which was interrupted, is not restored by the right of postliminium; because prescription is not operative without possession, for possession is generally a question of fact, and this does not come under the rule of postliminium.

20The Same, Questions, Book XIII. A prætorian action cannot be granted to the purchaser, since it would be most unjust to deprive an owner of anything where this was not done by use; nor can that be understood to be lost which was not taken away by another.

21Ulpianus, On the Edict, Book XII. The Prætor also says: “Where anyone acquires property by use, or loses it by non-user, or is released from liability because his right of action is barred by lapse of time when the party was absent and no defence was made for him.” The Prætor inserted this clause so that, just as he comes to the relief of the above mentioned persons, to prevent them from being taken advantage of; so also, he may intervene to prevent them from taking advantage of others. 1It should be noted that the Prætor expresses himself more fully, where he grants restitution against those who are absent, than where he grants it to them; for, in this instance, he does not enumerate the persons against whom he gives relief, as above, but he adds a clause which includes all who are absent and are not defended. 2This restitution is also granted whether those who are absent and are not defended have obtained a title to the property by prescription, either by themselves or through persons under their control, but only where none of them appeared as a defender; for if there was an agent, as you have someone to bring suit the other party should not be disturbed. Moreover, if no defender appeared, it is perfectly just that relief should be granted; and there is the more reason for this, if any of those who were not defended remain concealed; as the Prætor promises in the Edict to grant possession of the property and, if the case requires it, it may be sold; but where the parties do not remain concealed, although no one appears to defend them, he promises merely to give possession of the property. 3A party is not considered to be defended where someone voluntarily appears as his representative, but where he is requested by the plaintiff and does not fail to conduct the defence; and a complete defence must be understood to be one where the party does not avoid the trial, and gives security to comply with the judgment.

22Paulus, On the Edict, Book XII. It must, therefore, be remembered that this Edict is only operative where when the friends of the party were asked whether they would defend him, or where there was no one who could be asked to do so; for an absent person is not considered to be defended if the plaintiff of his own accord calls upon him, and no one offers himself to conduct the defence, and thus must be established by evidence. 1Therefore, as the Prætor is not willing that the parties should suffer loss; so, on the other hand he does not permit them to obtain any advantage. 2Labeo states that this Edict also has reference to insane persons, infants, and municipalities.

23Ulpianus, On the Edict, Book XI. The Prætor says: “Or was in prison, and had made no provision by which he could be sued.” Persons of this kind are added with good reason, for it could happen that a party might be imprisoned, and still be present, whether he was placed under restraint, by the authorities, or by private individuals; for it is well settled that a person who is imprisoned can acquire property by use so long as he is not in slavery. Restitution will not apply where the party who is in prison has someone to conduct his defence. 1A person who is in the power of the enemy cannot acquire property for himself by use, nor can he, as long as he is in captivity, complete possession which had begun to run; nor, if he returns under the right of postliminium, can he recover the acquisition of ownership by use. 2Moreover, Papinianus states that a person should be granted relief who, during captivity, has lost the possession of land or the quasi possession of the usufruct of the same; and he thinks that it is just that the profits received from the usufruct by another, in the meantime, should be restored to the captive on his return. 3It is evident that those who are under the control of the captive can acquire property by use, through their peculium; and it will be just that under this clause relief should be granted to those who are present; that is to say, to such as are not in captivity, where anything was acquired by another by usucaption when they were not defended. But where the time for bringing an action against the captive has elapsed, relief will be granted against the party who brings it. 4The Prætor next adds: “Or makes no provision by which he could be sued”; and if, while he was doing so, the acquisition by use should be completed, or something else above mentioned should happen, restitution should be granted. There is reason in this, for an order of court to place the party in possession of the property is not always sufficient, because sometimes conditions are such that possession of the property of a person who is concealing himself cannot be given; as, for example, where the action is barred by lapse of time, while the party is seeking an advocate, or something else occurs to delay the trial.

24Paulus, On the Edict, Book XII. The Edict also has reference to those who, when sued, attempt to embarrass the plaintiff, and endeavor by delay and artifice to prevent the trial of the case.

25Gaius, On the Provincial Edict, Book IV. In like manner, we say that it has reference to a person who conceals himself, not for the purpose of avoiding a suit, but because he is impeded by a press of business.

26Ulpianus, On the Edict, Book XII. But where the Prætor is to blame, restitution will be granted. 1Pomponius says that restitution against a man who has been relegated will be granted under the general terms of the Edict; but it will not be granted to him, because he could have appointed an agent. I think, nevertheless, that, where proper cause is shown, he himself would be entitled to relief. 2The Prætor further says: “Or where it was not lawful for him to be summoned against his will, and no one defended him.” This clause has reference to those who, according to the custom of our ancestors, could not with propriety be cited into court; for instance the consul, the Prætor, and others who exercise power or authority; this Edict, however, does not apply to those whom the Prætor forbids to be summoned without his permission (since application to him might have obtained permission), for example, patrons and parents. 3He next adds: “And no one defended him”; which has reference to all the parties above-mentioned, except to one who, while absent, obtained something by usucaption, because this case has already been fully provided for above. 4The Prætor also says: “Or where his right of action was held to be lost, through the act of the magistrate, without any fraud on his part.” What is the object of this? It is that restitution may be granted if a right of action is taken away on account of delays caused by the judge. Again, if there is no magistrate at hand, Labeo says that restitution should be granted. Where the right of action was “lost through the action of the magistrate”, we must understand that this was done where he refused to permit the case to be filed; but otherwise, where investigation was made, and he declined to permit the action to be brought, restitution does not apply; and this opinion is held by Servius. Moreover, the magistrate appears to be to blame if he denied the application through favor to the other party, or through corruption; in which instance this section as well as the former one will be operative, namely: “Or made no provision by which he could be sued”; for the litigant did this when he corrupted the judge to avoid being sued. 5By the “loss of right of action”, it must be understood that the party was no longer able to bring suit. 6He also adds, “Without any fraud on his part”, for the reason that if he was guilty of fraud, he should not obtain any relief; as the Prætor does not aid persons who themselves commit offences. Consequently, if the party wishes to bring suit before the next Prætor, and the time for doing so before the present one has elapsed, he will not be entitled to relief. Also, if he did not obey the order of the Prætor, he will refuse to hear his case; and Labeo says that restitution should not be granted. The same rule applies where the case was not heard by him for any other good reason. 7If any unusual holiday should be appointed, for instance, because of some fortunate event, or in honor of the Emperor, and for this reason the Prætor refused to hear the case, Gaius Cassius expressly stated in an Edict that he would grant restitution, because it was held this must have been done by the Prætor, for the ordinary holidays ought not to be taken into account, as the plaintiff could and should foresee them, so as not to interfere with them; which is the better opinion, and this Celsus also adopts in the Second Book of the Digest. But when holidays are responsible for lapse of time, restitution ought only to be granted with reference to the said days, and not on account of the entire time; and this Julianus stated in the Fourth Book of the Digest, for he says that where rescission of usucaption takes place, those days must be restored during which the plaintiff was willing to act, but was prevented by the occurrence of the holidays. 8Whenever a person by his absence, does not exclude anyone from acting for the entire time; as, for instance, if I had been in possession of your property for less than one day of the term prescribed for acquisition by usucaption, and then I began to be absent in the public service, restitution should be granted against me for only one day. 9The Prætor also says: “Where any other just cause seems to exist, I will grant complete restitution.” This clause is necessarily inserted in the Edict, for many instances may occur which would establish ground for restitution, but which cannot be separately enumerated; so that, as often as justice calls for restitution, resort can be had to this clause. For example, if a party is acting as the envoy of a city, it is only just that he should obtain restitution, though he is not absent in the service of the State; and it has been repeatedly established that he is entitled to relief, whether he had an agent, or not. I think that the same rule applies where he has been summoned from one province or other to give testimony either in the city, or before the Emperor; for it has very often been stated in rescripts that he should be relieved. Moreover, relief should be granted to those who have been in foreign countries on account of some judicial investigation or appeal. And, generally speaking, as often as a party is absent from necessity, and not voluntarily, it must be said that he is entitled to relief.

27Paulus, On the Edict, Book XII. And where a person loses something, or fails to obtain a profit, restitution should be granted, even though none of his property was lost.

28Ulpianus, On the Edict, Book XII. Also, where a person is absent for some reasonable cause, the Prætor should consider whether he is entitled to relief; as, for example, where his absence was due to his studies, or because his agent was dead; the intention being that he should not be wronged when his absence was due to some good cause. 1Moreover, where a person is not in custody, or in chains, but has furnished security with sureties, and then, on account of this, is unable to go away, and is taken at a disadvantage, he is entitled to restitution; and restitution will also be granted against him. 2The Prætor also says: “When this is authorized by the laws, the plebiscites, the decrees of the Senate, the Edicts, and the Ordinances of the Emperors.” This clause does not promise that restitution will be granted if the laws permit it, but if the laws do not prohibit it. 3Where a person has been absent very frequently in the service of the State, Labeo thinks that the time he should be permitted to apply for restitution should be reckoned from his last return. But if all his absences together amount to a year, and each one separately to less than a year, whether we shall grant him an entire year for restitution, or only so much time as his last absence endured, is a matter to be considered, and I am of the opinion that an entire year should be granted. 4If, while you have a residence in the province, you also pass some time in the city, does the year run against me because I have the power of bringing suit against you? Labeo says that it does not. I, however, am of the opinion that this is only true where an adversary has the right of demanding that you be sent into your province; otherwise, it should be held that I have the power to bring suit because issue can also be joined at Rome. 5An exception is also available for a person who has been absent in the service of the State, just as he is granted a right of action to rescind; for instance, if, having obtained the property, an action should be brought against him for its recovery. 6In a rescissory action, which can be brought against a soldier, Pomponius states that it is entirely just, but that the defendant should surrender the profits which he obtained during the time that he was absent and made no defence; and, therefore, on the other hand, the profits should also be surrendered to the soldier, as there is a right of action on both sides.

29Africanus, Questions, Book VII. The reason for this is that a public duty should not be a source of loss or profit to anyone.

30Paulus, On the Edict, Book XII. Where a soldier who has acquired a right to property by usucaption dies, and his heir completes the time required for it, it is just that what has been acquired subsequently to his death should be rescinded; and the same rule should be observed in the case of heirs who succeed to the right of usucaption, as the possession of the deceased being, as it were, joined to the estate, should descend to the heir, and very frequently the right becomes complete before the estate has been entered upon. 1Ad Dig. 4,6,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 3.Where a person who has been absent in the service of the State has obtained property by usucaption, and afterwards alienates it, restitution should be granted; and even though there was no fraud connected with his absence and his acquisition of ownership, he should be prevented from profiting by them. Also, in all other cases, restitution should be granted just as if judgment had been rendered against him.

31The Same, On the Edict, Book LIII. Where he, whose property was acquired by someone through usucaption while he was absent in the service of the State, obtains possession of the property acquired by him in that way, and he afterwards loses the same; he will be entitled to a perpetual right of action and not to one that is limited by time.

32Modestinus, Rules, Book IX. A person is considered to be absent in the service of the State as soon as he has left the City, although he may not have yet reached the province; and when he has gone, he is held to be absent until he returns to the city. This is applicable to Proconsuls and their Deputies, as well as those who preside over provinces, to the Imperial Procurators who occupy positions in the provinces, to military tribunes, prefects, and the attendants of envoys, whose names are inscribed in the books of the Treasury, or in the Imperial registers.

33The Same, On Cases Explained. Among those who are entitled to relief under the general clause of the Edict is included the Advocate of the Treasury. 1Those who record the decisions of the magistrates are certainly not absent in the public service. 2Physicians of the soldiers have a right to petition for relief by restitution, as the functions they perform are for the public benefit, and ought not to be a source of injury to them.

34Javolenus, On Cassius, Book XV. A soldier who is at home on a furlough is not held to be absent in the service of the State. 1A person who gives his services for the collection of public taxes which have been farmed out, is not absent in the service of the State.

35Paulus, On the Lex Julia et Papia. Parties who are sent to conduct soldiers, or bring them back, or have charge of recruiting, are absent in the public service. 1This is the case also, where persons are sent for the purpose of congratulating the Emperor. 2Likewise, the Imperial Procurator, and not only he to whom is entrusted the affairs of a province, but also one who is charged with the transaction of certain business pertaining thereto, but not of all of it. Therefore, where there are several Imperial Procurators charged with different matters, they are all considered to be absent in the service of the State. 3The Prefect of Egypt is also absent in the service of the State; and also whoever, for any other reason, departs from the City on a public errand. 4The Divine Pius established the same rule with reference to the garrison of a city. 5It has been asked whether a party who is dispatched for the suppression of evil-doers, is absent in the public service, and it has been determined that he is. 6The same rule applies where a civilian joined an expedition by the command of an officer of consular rank, and was killed in battle, for relief should be granted his heir. 7A person who has repaired to Rome on business for the State, is considered to be absent in the public service. Moreover, if he should leave his own country on business for the Government, even if he has a right to pass through the city, he is absent in the service of the State. 8In like manner, where a man who is in a certain province, when he has left his home, or remains in his own province for the purpose of transacting public business, as soon as he begins to discharge his duties he is treated as a party who is absent. 9A man going to camp, as well as on his return, is absent in the service of the State; as anyone who is about to serve as a soldier must go to camp and return from it. Vivianus says that it was held by Proculus, that a soldier who is on a furlough is absent in the service of the State, while he is coming home and returning to the army, but when he is at home he is not absent.

36Ulpianus, On the Lex Julia et Papia, Book VI. We only understand those to be absent on public business who are absent not for their own convenience, but from necessity.

37Paulus, On the Lex Julia et Papia, Book III. Those who serve as assessors in their own province beyond the time prescribed by the Imperial Constitutions, are not understood to be absent on public business.

38Ulpianus, On the Lex Julia et Papia, Book VI. I am of the opinion that he is absent in the service of the State whom the Emperor, as a special favor, has permitted to act as assessor in his own province; but if he does not so act by his permission, we must hold that, by doing so, he is guilty of an offence, and is not entitled to the privileges of those who are absent in the service of the State. 1A party is considered to be absent in the service of the State, as long as he fills some office, but as soon as his term of office is ended, he ceases to be absent on public business. We, however, calculate the time allowed him for his return from the date when he ceased to be absent in the public service, that is to say, as much as he requires to return to the City, and it will be reasonable to grant him the time which the law allows to other returning officials. Wherefore, if he turns aside on account of some affair of his own; there is no doubt that the time so consumed will not be granted him, but will be calculated with reference to the period within which he could have returned; and when this has elapsed we must say that he has ceased to be absent in the service of the State. It is evident that if he is prevented from continuing his journey by illness, humane considerations must prevail; just as is customary in case of bad weather, difficulties of navigation, and other things which accidentally happen.

39Ad Dig. 4,6,39Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 119, Note 8.Paulus, Sentences, Book I. He who is about to be absent on public business, and has left an agent by whom he can be defended, and applies for complete restitution, shall not be heard.

40Ulpianus, Opinions, Book V. Where it is in the power of a soldier to institute criminal proceedings during the time that he is devoting his services to the State, he is not deprived of his right to do so. 1Where a person is detained on an island in accordance with the penalty imposed upon him on account of which he obtained restitution, and it is proved that a portion of the property of which he had not been deprived has been appropriated by some one else, it must be restored to him.

41Julianus, Digest, Book XXXV. Where a person bequeathed a legacy to Titius, provided that, at the time of the testator’s death, the former should be in Italy, or he leaves it payable each year, as long as he remains in Italy; and the legatee obtains relief on the ground that he was excluded from the legacy because he was absent on public business, he is compelled to carry out any trust with which he was charged. Marcellus asks in a note, where an estate is restored to a soldier which he had lost because he was absent in the service of the State, whether any one can doubt that the right to legacies and trusts will not be impaired?

42Alfenus, Digest, Book V. He cannot be said correctly to be absent in the service of the State, who has joined an embassy on account of his own private affairs.

43Africanus, Questions, Book VII. Where anyone stipulates for a certain sum every year, as long as he, or the party who makes the promise, shall remain in Italy, and one or the other happens to be absent in the service of the State; it is the duty of the Prætor to grant an equitable action. We hold that the same rule applies where the stipulation is in the following words: “If a certain man should be at Rome for the next five years”; or “If he should not be at Rome, do you agree to pay a hundred aurei?”

44Paulus, On Sabinus, Book II. He who is absent in the service of the State and is injured in any way will not be granted restitution if he suffered the injury under circumstances where he would have sustained loss, even if he had not been absent on public business.

45Scævola, Rules, Book I. All soldiers who cannot leave their standards without risk to themselves, are considered to be absent in the service of the State.

46Marcianus, Rules, Book II. A person who is absent in the service of the State is entitled to restitution against one who is also absent on public business, if he has just cause for complaint on account of having sustained some loss.