1Ad Dig. 5,1,1ROHGE, Bd. 10 (1874), S. 328: Voraussetzung der stillschweigenden Prorogation des Gerichtsstandes.Ulpianus, On the Edict, Book II. Where persons voluntarily agree to submit to the jurisdiction of some court, then this case can be heard by any judge who presides over said court, or has jurisdiction therein, so far as the consenting parties are concerned.

2The Same, On the Edict, Book III. Ad Dig. 5,1,2 pr.ROHGE, Bd. 10 (1874), S. 328: Voraussetzung der stillschweigenden Prorogation des Gerichtsstandes.To “agree” is considered to mean that parties who are aware that they are not subject to the jurisdiction of a certain judge, nevertheless consent that he shall preside. If, however, they think that he has jurisdiction, he will not, merely for that reason, have it; for, (as Julianus says in the First Book of the Digest) the mistake of litigants does not constitute an agreement; or, where they think that a person is a Prætor who is not one, this error does not also confer jurisdiction, nor does any jurisdiction exist where one of the litigants refuses to comply with the decision of the Prætor and is forcibly compelled to do so. 1Is it sufficient for private parties to agree with one another, or is the consent of the Prætor also necessary? The Lex Julia on Trials says, “In order to prevent private persons from coming to an agreement”. Hence, if private persons do agree, and the Prætor is not aware that they have done so, and he thinks that he has jurisdiction, should it not be considered whether the requirements of the law have been complied with, or not? And I think it may be held that he has jurisdiction. 2Where anyone is appointed judge for a certain time, and all the litigants agree that the time which he ordered to hear the case may be extended, this may be done; unless an extension of time was especially prohibited by order of the Emperor. 3The right is granted deputies to have a case transferred to the place of their residence, where some contract was entered into by them before they were appointed; and similar privileges are conceded to those who were summoned to give evidence, or have been sent for or appointed to go to some province to preside as judges. Where a party has himself appealed, he is not required to answer in proceedings instituted by others during the time of his appeal at Rome, or elsewhere; for Celsus states that, in this instance, the case may be transferred to the place of his residence, since he came to Rome for some other purpose. This opinion of Celsus is a reasonable one. For the Divine Pius stated in a Rescript to Plotius Celsianus, that a party whom he had summoned to Rome for the purpose of rendering the account of a guardianship could not be compelled to join issue in a case involving another guardianship in which he had not been summoned. He also stated in the Rescript to Claudius Flavianus that a minor under twenty-five years of age who petitioned for complete restitution against one Asinianus who had come to Rome on some other business, had no right to be heard there. 4All these persons can have their cases transferred to the places of their own domicile, if they did not contract where suit was brought against them. If, however, they made the contract there, they have not the right of removal; except envoys who, although they may have contracted at Rome, provided they did so before their mission, are not compelled to defend themselves in that city, so long as they remain there as envoys. This Julianus also held, and the Divine Pius stated in a Rescript. It is evident that if they remained at Rome after their mission was concluded, then, as the Divine Pius stated in a Rescript, suit can be brought against them there. 5Moreover, if they entered into a contract outside of their own province, but not in Italy, the question arises, can they be sued at Rome? Marcellus states that they can only use the privilege of having a case transferred to the place of their residence, when they entered into the contract in their own city, or, at all events, in their own province; which is true. But if they themselves bring an action, they must defend themselves against all others; but not, however, where they bring suit for injury done to them, or for theft, or for damages which they have sustained during their absence from home; otherwise, as Julianus very properly says, they would have to endure insult and loss without being able to obtain redress; or anyone, by attacking them would have the power to subject them to jurisdiction as soon as they claim reparation. 6If, however, any doubt should arise whether anyone in a case of this kind can have it transferred to the place of his residence or not, the Prætor should decide the question after investigation. If he should determine that the party had a right to have the case transferred to the place of his residence, the latter must make arrangements to appear in court for trial, after the Prætor has fixed the day of his appearance. Marcellus doubts whether he should merely execute a mere undertaking to appear, or give security to do so, and it seems to me that his promise alone would be sufficient, and this Mela also stated; otherwise, he would be compelled to join issue instead of finding persons to give security for him. 7In all cases in which time is extended, this should be done without causing any loss to creditors by lapse of time. 8The right of imposing a fine is conferred upon those who hold the position of public judges, and to no others, unless this is specially granted to them.

3The Same, On the Edict, Book IV. A person is not presumed to conceal himself for the purpose of avoiding a suit, if, even while he was present, he could not be compelled to join issue.

4Gaius, On the Provincial Edict, Book I. We have no legal right to bring an action against a person who is under our control, unless with reference to castrense peculium.

5Ulpianus, On the Edict, Book V. Where a party is summoned before the Prætor from another jurisdiction, he must appear, as is stated by Pomponius and Vindius; as it is the duty of the Prætor to decide whether he has jurisdiction, and those who are summoned should not treat the “authority of the Prætor with contempt; for envoys and other persons who have the right to have their cases transferred to the places where they reside, are in such a position that they must appear, after having been summoned, in order to state their privileges.

6The Same, On the Edict, Book VI. A blind man can perform the duties of a judge.

7The Same, On the Edict, Book VII. Where anyone has become a soldier, or subject to some other jurisdiction after he has been summoned to appear in court, he will not have the right to have his cause transferred, because he has been, as it were, anticipated.

8Ad Dig. 5,1,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 284, Note 8.Gaius, On the Provincial Edict, Book II. Where anyone, during his mission, agrees to make payment of an obligation which he contracted before becoming an envoy, he cannot be compelled to defend himself in the place where he made the promise.

9Ulpianus, On the Edict, Book IX. The islands belonging to Italy are a part of Italy, and the adjacent islands are a part of each province.

10The Same, On the Edict, Book X. A party is understood to “desist”, not when he defers the case, but where he abandons it altogether; for to desist means to relinquish any proceeding which he had begun for the purpose of annoyance. It is evident that if anyone, after he has ascertained the facts in the case, gives it up, being unwilling to persevere in an action which is unjust, and which he did not institute for the purpose of causing annoyance, he is not held to have desisted.

11The Same, On the Edict, Book XII. If anyone is arrogated by me who had previously joined issue in a suit which he had brought against me, or which I had brought against him, Marcellus says in the Third Book of the Digest that the case is terminated, because no suit could have existed between us in the beginning.

12Paulus, On the Edict, Book XVII. Where the Prætor forbids one of several persons to preside as judge, he is held to have allowed the others to do so. 1Those authorities can appoint a judge to whom this right is granted by a law, or by a constitution, or by a decree of the Senate. By a law; for example, this right may be conferred upon a Proconsul. He also can appoint a judge to whom jurisdiction has been delegated, as, for instance, the Deputies of Proconsuls. Moreover, those can do so to whom it has been permitted by custom, on account of the Imperial authority which they enjoy, for instance, the Prefect of the City, and other magistrates at Rome. 2Those who have the right to appoint judges cannot appoint them indiscriminately; for some persons are prevented by law from becoming judges; others are prevented by nature; and others, still, by custom. By nature; as persons who are deaf, dumb, and such as are incurably insane, as well as boys who are minors, because they are deficient in judgment. A party is prevented by law, who has been expelled from the Senate. Women and slaves are prevented by custom, not because they are deficient in judgment, but because it has been established that they cannot perform the duties belonging to civil employments. 3When persons are eligible as judges, it makes no difference whether they are under the control of another, or are their own masters.

13Gaius, On the Provincial Edict, Book VII. In the three following actions, namely: those for partition of an estate, the division of property held in common, and the establishment of boundaries, the question arises who shall be considered as plaintiff, because the condition of all the parties seems to be the same? It is the better opinion that he should be considered the plaintiff who makes application to the court.

14Ulpianus, Disputations, Book II. Where, however, both parties apply to the court, it is customary to determine the question by lot.

15The Same, On the Edict, Book XXI. Where the son of a family is a judge, and makes the case his own, he is liable for a sum equal in value to his peculium when he rendered his decision. 1A judge is understood to make the case his own when he maliciously renders a decision in violation of law. He is held to do this maliciously, where it is clearly proved that either favor, enmity, or even corruption, influenced him; and, under these circumstances, he can be forced to pay the true amount of the matter in controversy.

16The Same, On the Edict, Book V. Julianus thinks that where a judge makes a case his own, an action can be brought against his heir; but this opinion is not correct, and has been rejected by many authorities.

17The Same, On the Edict, Book XXII. Julianus says: That if one of the parties makes a judge his heir to either the whole or a portion of his estate, recourse must be had to another judge; because it is unjust for anyone to be made the judge of his own cause.

18The Same, On the Edict, Book XXIII. If a long time must elapse until the judge who has been appointed can hear the case, the Prætor orders him to be changed; and this happens, for example, where some business occupies the judge and prevents him from giving his attention to the trial; for instance, where he is attacked by disease, or is compelled to go on a journey, or where his private property is in danger. 1Where the son of a family wishes to institute proceedings for reparation for an injury on account of which his father has a right of action, we only permit him to bring suit where there is no one who can do so in behalf of his father; for it is the opinion of Julianus that if the son of a family is absent on an embassy, or for the purpose of pursuing his studies, and suffers theft, or unlawful damage to his property, he is entitled to bring a prætorian action; since, if he waited for his father to bring suit, the malicious act would go unpunished, because his father might not come, or the party who committed the wrong might absent himself before he arrived. Wherefore, I have always held the opinion that where the cause of action did not arise from a malicious act, but from a contract, the son ought to bring a prætorian action; as, for instance, where he wishes to recover a deposit, or sue on a mandate, or for money which he had loaned; and, in that case, if his father was in the province, and he happened to be at Rome, for the purpose of prosecuting his studies or for some other good reason, and we did not grant him the action, he would, in consequence, be defrauded with impunity, and live at Rome in want, because he did not obtain the property which his father intended for his expenses. And suppose that the son of a family in question is a Senator, and has a father in the province; would not the equity of this be increased by his rank?

19The Same, On the Edict, Book LX. When the heir is absent, he must make his defence in the place where the deceased contracted the debt, and he must be sued there if he can be found; and he cannot allege any peculiar privilege by way of exemption. 1Where anyone has been managing a guardianship or a curatorship, or some business, or banking, or anything else from which obligations arise, in any particular place, he must defend himself there, even if that is not his residence; and if he does not make a defence and has no home there, he must permit possession to be taken of his property. 2In like manner, if he sold merchandise in any particular place, or otherwise disposed of it, or purchased it; it is held that he must defend himself there, unless it had been agreed upon that he should do so elsewhere. Shall we say then that a party who has made purchases from a merchant who is a stranger, or sold goods to someone whom he knew was about to depart immediately, has no right to obtain possession of his property, but must follow the latter to the place where he resides; while if anyone makes a purchase from a person who has rented a shop, or a warehouse, in some particular place, is he in such a position that he can be sued there? This conclusion is the more reasonable one, for when a party comes to a place with the expectation of soon leaving it, you can make a purchase from him just as you could from a traveller, or from one who is making a journey either by land or sea; and it would be a great hardship that no matter where a man travelled either by sea or land he could be sued, and be compelled to defend himself. But if he remains anywhere, I do not mean by way of residence, but because he rented a small shop, or booth, or granary, or warehouse, or office, and sells merchandise there, he will then be compelled to defend himself in that place. 3The question is raised by Labeo, if a man belonging to a province has a slave acting as his agent for the purpose of selling merchandise at Rome, any contract entered into with said slave must be considered as if it was made with his master; and therefore, the party must defend himself at Rome. 4It should be remembered that a person who is bound to make payment in Italy, if his residence is in a province, can be sued in either place; and this opinion is adopted also by Julianus and many others.

20Paulus, On the Edict, Book LVIII. It must be held that every obligation should be considered as based upon a contract, so that, wherever anyone binds himself, he is held to have made a contract, even though the transaction was not one of indebtedness arising out of a loan.

21Ulpianus, On the Edict, Book LXX. Where I wish to institute proceedings against a debtor, the approved course is that, if he admits that he owes the money and states that he is ready to pay it, he must be heard, and time must be granted him for making payment under a sufficient bond; for no great injury can result from delay for a reasonable time. By a “reasonable time” must be understood that which is granted defendants for payment, after judgment has been rendered against them.

22Paulus, On Plautius, Book III. Where a party is not compelled to defend an action in a certain place; if he himself brings suit there, he can be compelled to defend suits also, and to appear before the same judge.

23Ad Dig. 5,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 128, Note 5.The Same, On Plautius, Book VII. Anything which comes up after issue has been joined cannot be considered as before the court; and therefore it will be necessary to make a new application.

24The Same, On Plautius, Book XVII. No action will lie at Rome against persons whom the Emperor has summoned there, except where they make a contract during the time they remain. 1Envoys are compelled to answer in suits at Rome on account of offences committed while there in that capacity, whether they themselves commit them or their slaves. 2Where an action in rem is asked for against an envoy, and the said action is founded on present possession, shall it be granted? Cassius stated that the rule to be observed is that, if the action would cause the envoy to be deprived of all his slaves, it should not be granted; but if it only related to one slave out of several, it ought not to be refused. Julianus says, without making any distinction, that the action should be denied, and this is reasonable, since the action is not granted lest the party be turned aside from the duties of the office which he has undertaken.

25Julianus, Digest, Book I. Where a man, while on a mission, purchases a slave, or any other property, or, for any other reason comes into possession of the same, he is not unjustly required to join issue in a suit having reference to said property; otherwise, power will be given to envoys under this pretext to carry away to their own homes the property of others.

26Paulus, On Plautius, Book XVII. Cassius states with reference to an envoy who entered upon an estate, that, even where he enters upon it at Rome, an action cannot be brought against him, lest his mission might be interfered with; and this is true. An action is not even granted to legatees against him, but they can be put in possession of property belonging to the estate, unless he gives security, which rule also applies to creditors of the estate.

27Julianus, Digest, Book I. For what will prevent an envoy from performing the duties of his office while there is an agent in possession of the property of the estate for the purpose of taking care of it?

28Paulus, On Plautius, Book XVII. But where an estate is delivered to him under the Trebellian Decree, an action against him will not be granted, whether the heir entered upon the estate voluntarily, or under compulsion; for it is certainly more convenient for the estate to be delivered to him; hence it should be considered as if he himself had entered upon the estate. 1On the other hand, if an envoy, during the time of his mission, enters upon an estate and delivers it, an action will be granted against the beneficiary of the trust; nor will an exception under the Trebellian law be available, on account of the position of the envoy; as this is for the personal benefit of the latter. 2In those instances where an envoy is not forced to join issue in an action, he cannot be compelled to make oath that he is not obliged to pay, for the reason that his oath takes the place of a joinder of issue. 3An envoy must promise reparation for threatened injury, or permit his neighbor to take possession of the building. 4Where the time for bringing an action is about to expire, the Prætor shall permit it to be brought against the envoy, if proper cause is shown, in order that issue may be joined, and the case transferred to the envoy’s place of residence. 5Ad Dig. 5,1,28,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.Where the head of a family dies and leaves a son, and his widow is pregnant, the son cannot legally collect from the debtors half the money loaned to them, although afterwards one son should be born; because several more might have been born, since, in the nature of things, it was certain that one child would be born. Sabinus and Cassius, however, are of the opinion that a fourth part of the debts might be collected, for the reason that it is uncertain whether three would not be born, and that we need not pay any attention to the nature of things where all are certain, as whatever is going to occur does occur; but we should consider our own ignorance.

29The Same, On Plautius, Book VIII. The party who first makes application is the plaintiff.

30Marcellus, Digest, Book I. Wherever issue is joined, the case should also be terminated there.

31Celsus, Digest, Book XXVII. Where a plaintiff dies and leaves several heirs, and one of them institutes proceedings, it is not true that everything involved in the case up to that time is in Court; for no one can conduct a suit in court which has already been begun by another, if his co-heir does not consent.

32Ulpianus, On the Office of Proconsul, Book I. Where the judge appointed to render a decision within a certain time dies, and another is appointed in his stead, we understand that the same time is fixed with respect to the latter, although the magistrate did not expressly mention this when making the appointment; provided that the term prescribed by law is not exceeded.

33Modestinus, Rules, Book III. A party is not held to have accepted a certain judge who asks his adversary to state the nature of his case before that judge.

34Javolenus, On Cassius, Book XV. When a party dies after having joined issue at Rome, his heir, even though he resides beyond sea, must defend the case at Rome, because he succeeds to the place of him by whom he was appointed heir.

35Ad Dig. 5,1,35ROHGE, Bd. 9 (1873), S. 33: Zulässigkeit der Klagen auf Feststellung eines obligatorischen Verhältnisses.The Same, Epistles, Book X. It is not true that, as the obligation of a surety can be left dependent upon circumstances or contracted for at some future time, so also a suit may be contingent, or in such terms that an obligation may be subsequently incurred; for I do not think that anyone would doubt that a surety can be accepted before the obligation of the principal debtor is incurred, but issue cannot be joined before some indebtedness arises.

36Callistratus, Inquiries, Book I. Sometimes hearings are postponed for good reasons and on account of certain parties; as, for instance, where documents relating to a case are said to be in possession of persons who will be absent on public business. Therefore the Divine Brothers stated the following in a Rescript: “Humanity demands that postponement should be granted on account of accidental misfortunes; for example, where a father who was a party to the case has lost his son, or his daughter; or a wife her husband; or a son his parent; and in similar cases the hearing should be postponed for a reasonable time.” 1Where a Senator voluntarily undertakes to attend to the affairs of another in a province, he can not refuse to defend an action on the ground of business transacted; and Julianus says that he must defend the action, since he voluntarily assumed this obligation.

37The Same, Inquiries, Book V. Where inquiry is made concerning violence and the existence of possession, investigation must be made of the violence before the ownership of the property is considered; in accordance with a Rescript of the Divine Hadrian in the Greek language directed to the Commonwealth of Thessaly.

38Licinnius Rufinus, Rules, Book IV. Where property is bequeathed by a legacy, and suit is brought to recover it by an action in personam, it must be delivered where it is, unless it has been maliciously removed by the heir; and then it shall be surrendered where suit is brought for it. Again, a legacy consisting of articles which may be weighed, counted, or measured, must be delivered where suit is brought for it; unless the following words were added, “A hundred measures of corn from such-and-such a granary”, or “so many amphoræ from such-and-such a cask”. Where, however, suit is brought for a legacy by an action in rem, it must also be brought where the property is. If the latter is movable, an action for its production will lie against the heir to compel him to produce it, for then suit can be brought by the legatee for its recovery.

39Papinianus, Questions, Book III. Where an insane person is appointed judge, the trial will not be prevented because he cannot preside at that time; so that, when he renders a decision after having recovered the use of his faculties, it may stand. In the appointment of a judge neither his presence nor his knowledge is necessary. 1Where a party comes to Rome on a mission, he can become a surety in any case; since he cannot make use of his privilege when he enters into a contract in Italy.

40The Same, Questions, Book IV. It is not every act which can be performed by the authority of a judge which is subjected to the restraints of the law. 1If a judge, in the performance of his functions, should maliciously omit something which is contrary to the rules of law, he is guilty of an offence against the law.

41Ad Dig. 5,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 13.The Same, Questions, Book XI. In all bona fide actions, when the day of payment of money has not arrived, and anyone makes application for the execution of a bond, it will be allowed where proper cause is shown.

42The Same, Questions, Book XXIV. Where the wife of an envoy is divorced at Rome, it has been held that her husband must make his defence at Rome, when the recovery of her dowry is involved.

43The Same, Questions, Book XXVII. Where a person stipulates that a house shall be built for him at Capua within a certain time; it is established that when the time has elapsed, he can bring an action for damages for the amount of his interest, anywhere.

44The Same, Opinions, Book II. The functions of a judge are not interfered with by the fact that, after a suit has been begun against all the guardians, some of them have been absent on public business; since the administration of those who are present can be distinguished and investigated separately from that of those who are not defended. 1Where a person in whose behalf an action has been brought by an agent is afterwards ascertained to be a slave, the debtor should be discharged; but the principal will not be barred for this reason, if he should subsequently decide to bring the action himself.

45The Same, Opinions, Book III. A banker must be sued where the contract was made with him, and, in such a case, a postponement will not be granted except for good cause; as, for instance, to permit his books to be brought from a province. The same rule applies to an action on guardianship. 1Where the guardians of a female ward have a decision rendered against them in a province, the curators of the ward may be comoelled to comply with the decree at Rome, where the mother of the ward borrowed the money, and her daughter was her heir.

46Paulus, Questions, Book II. Where a judge has been appointed, he remains in office even though he becomes insane, because he was properly appointed judge in the beginning; but a serious illness excuses him from presiding, and therefore some one should be appointed in his stead.

47Callistratus, Questions, Book I. Care must be exercised that a person be not appointed judge, whom either side expressly petitions for; as the Divine Hadrian stated in a Rescript that this would offer a bad precedent unless it should be especially allowed by the Emperor through respect for him whose appointment was requested.

48Paulus, Opinions, Book II. The following is a portion of a letter of the Divine Hadrian, “Magistrates, during the year of their office, cannot institute any legal proceedings of their own either as plaintiffs or as defendants; nor can they act officially in any matter in which they are interested on the ground of either guardianship or curatorship. But as soon as the term of their magistracy has expired, it will be just and proper for actions to be brought both for and against them”.

49The Same, Opinions, Book III. A vendor who was called upon by a purchaser to defend him in a suit brought by a party who claimed the property as owner, stated that he had the right to have his own judge. The question arose whether he could remove the case from the tribunal of the judge before whom proceedings had been begun between the plaintiff and the purchaser to that of his own judge. Paulus answered that it is customary for the vendor to appear before the judge of the purchaser.

50Ulpianus, Trusts, Book VI. Where an action for the execution of a trust is brought by anyone, and the defendant alleges that the greater portion of the estate is situated elsewhere, he cannot be forced to execute the trust; and it is provided by many constitutions that where an action is brought to enforce compliance with a trust, this must be done where the greater portion of the estate is situated; unless it is proved that the testator wished the trust to be executed where suit was brought. 1The question has been raised with respect to borrowed money; whether when the greater part of the indebtedness was in the province where suit is brought to enforce a trust, could the action be transferred to some other place, because the bulk of the estate was elsewhere? It was, however, established in this instance that the fact of the indebtedness is of no importance, as it is not dependent on the place, but on the entire assets of the estate; for a debt is a diminution of the entire estate, and not of the assets in any particular locality. But what if this part of the estate were charged with some burden, as, for instance, to furnish support which the testator ordered to be done at Rome, or with taxes; or with any other unavoidable burdens; in these instances would the party be entitled to have the case transferred? I think that it may be said with great justice that he would. 2It has, however, been stated in a rescript that suit should be brought to enforce a trust in the place where the heir resides. 3But whenever anyone begins to make payment in compliance with the terms of the trust, he cannot subsequently avail himself of this resource:

51Marcianus, Institutes, Book VIII. Even though the estate should have descended to a man who has his domicile in a province. The Divine Severus and Antoninus, however, stated in a Rescript that if the party should consent to discharge the trust elsewhere, he is bound to do so in the place agreed upon.

52Ulpianus, Trusts, Book VI. But if the heir appears in an action on the trust and makes use of other defences, but neglects this one, he cannot afterwards have recourse to it, even before a decision is rendered. 1Where a testator directs in his will that tickets for grain should be purchased for his freedmen; then, although the greater portion of the estate is in a province, still, the trust must be carried out at Rome; which is the proper opinion, since it is evident that it was the intention of the testator that this should be done, on account of the nature of the purchase. 2Moreover, if you should suggest the following case, namely: that a certain amount of silver or gold was bequeathed to such-and-such illustrious persons, and there is enough of the estate at Rome to execute the trust, even though the greater portion of the estate is situated in a province; it should be held that the trust must be discharged at Rome; for it is not very probable that a testator who intended to show honor to those to whom he bequeathed such moderate legacies under the trust, should have desired them to be paid in the province. 3Ad Dig. 5,1,52,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 282, Note 7.Where the property left under a trust is at hand, it must be held that anyone who brings suit for it cannot be barred by an exception on the ground that the greater portion of the estate is elsewhere. 4Where, however, the property which is the subject of the trust is not to be sued for where it is situated, but security for the execution of the trust is to be given; it must be considered whether an exception can be pleaded (and I do not think that it can) and, indeed, even if there is no property there, still the party must be required to furnish security. For what is there to fear, since, if he does not give security, his adversary will be placed in possession in order to protect the trust?

53Hermogenianus, Epitomes of Law, Book I. There are only a few cases in which slaves are permitted to appear against their masters; and one of them is where they state that a certain will, by which they allege they were bequeathed their freedom, has been suppressed. Slaves are also permitted to give information against their masters where the latter have withheld deliveries of grain belonging to the Roman people, as well as returns of property for taxation, and also for counterfeiting. Moreover, they can institute proceedings to obtain their freedom left to them by a trust, and also where they allege that they have been purchased with their own money, and not manumitted, in violation of the good faith of the agreement. Also, where a slave has been declared to be free by will when he renders his accounts, he can legally demand an arbiter as against his master, for the purpose of examining his accounts. Where anyone has relied upon the good faith of another, with the understanding that he should be purchased with the money of the former, and be manumitted when he had repaid it, and the party says that he is unwilling to receive the money when it is tendered, power is granted to the slave to disclose the terms of the agreement.

54Paulus, Opinions, Book I. A matter of greater importance should not be prejudiced by one of inferior moment; for the more important question attracts that which is of lesser weight.

55The Same, On the Office of Assessors. A summons issued by a former judge should be regarded as one of the three prescribed. It is evident even if the entire number has been completed by the said judge, that custom requires his successor to issue another.

56Ulpianus, On Sabinus, Book XXX. Although it is true that a genuine agent can bring anything before a court, still, where a party who is not an agent joins issue, and his principal afterwards confirms what he has done; it is held that by retroactive effect, the matter has been properly presented to the court.

57The Same, On Sabinus, Book XLI. An action can be brought against the son of a family with reference to both contracts and offences, but where a son dies after joinder of issue, the right of action will be transferred to his father; only, however, with reference to his peculium or any advantage which he may have obtained. It is evident that if the son of a family undertakes a defence as the agent of another, then, if he dies, the right of action will be transferred to the party whom he defended.

58Paulus, On Sabinus, Book XIII. A suit is terminated where the party who applied for it to be heard forbids it to proceed; or, indeed, anyone does so who has superior authority in the same jurisdiction; or even where the judge himself is vested with authority equal to that of him who appointed him.

59Ulpianus, On Sabinus, Book LI. If, in the appointment of a judge, the place in which he is to discharge his duties is not mentioned, he is held to be appointed to act in that place where he can do so without inconvenience to the litigants.

60Paulus, On Sabinus, Book XIV. When a judge dies, he who succeeds him must follow the same course which was laid down for his predecessor.

61Ulpianus, On the Edict, Book XXVI. We are usually accustomed to say that the matter before the court is that which was agreed upon by the litigants; but Celsus states that it is dangerous to apply to the defendant for information on this point, because he will always say that no agreement was made, in order to avoid losing his case. What then shall be done? It is better to hold that the subject of the trial is not what the parties agreed upon; but that is not the subject of the trial which it was expressly agreed that it should not be. 1A judge who has jurisdiction in cases of robbery cannot hear and decide actions in which money is involved.

62The Same, On the Edict, Book LIX. An action cannot proceed between two litigants unless where one of them is the claimant and the other the possessor of the property; for there must be someone to bear the burden of the plaintiff, and another who enjoys the advantage of possession.

63The Same, On the Edict, Book XLIX. A legitimate defence is one where the party joins issue, either himself or by another, but always furnishing security; and no one is considered to make a legal defence who does not pay what he is ordered by the court.

64The Same, Disputations, Book I. An estimate of damages for fraud is not made by the judge with reference to the interest of the party who brings the suit, but is based upon what he swears to in court; and there is no doubt that even a thief has a right of action on the ground of deposit or loan for use. 1Where anyone is about to bring a suit of one kind and accepts security that the judgment will be complied with, and then brings another kind of a suit; an action cannot be brought on the stipulation, because it seems to have been made with reference to something else.

65The Same, On the Edict, Book XXXIV. A woman must bring an action for her dowry where her husband has his residence, and not where the dotal contract was entered into; for this is not such a contract that it is necessary to take into consideration the locality where the said instrument was executed, so much as the place to which the woman herself, in accordance with the condition of marriage, would always have returned as to her home.

66The Same, Disputations, Book II. Where anyone makes use of ambiguous language, or his intention is doubtful, he must be understood in the sense which is most favorable to himself.

67The Same, Disputations, Book VI. Where a slave states that he has been purchased with his own money, and proves it, he will be free from the time when he was purchased; because the Imperial Constitution does not direct that he shall be declared free, but orders that his freedom shall be restored to him, hence his master can be required to manumit a slave who purchases himself with his own money; but if the master conceals himself, the precedents derived from decrees of the Senate relative to grants of freedom under a trust must be followed.

68The Same, Disputations, Book VIII. In the case of a peremptory citation the following rule must be observed; the party bringing the action may apply for one summons if his adversary is absent, and subsequently for a second:

69The Same, On All Tribunals, Book IV. After an interval of not less than ten days;

70The Same, Disputations, Book VIII. And then a third; and these having been issued, he can afterwards obtain a peremptory citation. This term is employed because it puts an end to the controversy; that is to say, it does not permit the adversary to longer delay.

71The Same, On All Tribunals, Book IV. In the peremptory citation the magistrate who issues it gives notice that he will hear and decide the case even should the other party be absent.

72The Same, Disputations, Book VIII. This citation is sometimes granted after the three others have preceded it, sometimes after only one, or two, have been issued, and sometimes it is granted at once, and is designated “one for all”. The course to be pursued shall be determined by him who exercises jurisdiction, and he must arrange the order of the citations, or regulate them according to the circumstances of the case, or of the person, or of the time.

73The Same, On All Tribunals, Book IV. After a peremptory citation has been obtained, and as soon as the day mentioned therein arrives, the absent party must be called; and whether he answers, or not, the case must proceed and decision be rendered, but not always in favor of the party who is present; for sometimes the absent party may prevail if he has a good case. 1But if the party who obtained the peremptory citation is absent on the day appointed for the hearing, and he against whom it was obtained is present, the peremptory citation must be annulled, and the cause shall not be heard, nor shall a decision be rendered in favor of the party who is present. 2If the citation is annulled, let us consider whether the defendant can be sued again, and whether the right of action still remains, or whether merely the proceeding relating to this citation is annulled? The better opinion is, that it only is annulled, and that the parties can litigate again. 3It should be borne in mind that where an absent party has a judgment rendered against him on account of a peremptory citation, and appeals, he shall not be heard; that is, if he was absent through contumacy; but if he was not, he should be heard.

74Julianus, Digest, Book V. A judge can be compelled to render a decision with reference to any matter of which he has taken cognizance. 1A judge appointed to render a decision for some particular amount can also decide with reference to a greater one, as this is agreed upon by the litigants. 2Where I once consented to defend an absent party, and joined issue when the defendant was already dead, and I was defeated, and paid the damages; the question arose whether the heir was released, and also what kind of an action I was entitled to against him? I answered that the decision was not valid, as the debtor was already dead when issue was joined, and therefore the heir was not released; but if the party conducting the defence had made payment in accordance with the judgment, while he could not recover the money, still, an action would lie in his favor against the heir on the ground of business transacted; and certainly the heir could protect himself by an exception based on bad faith, if suit was brought against him by the plaintiff.

75The Same, Digest, Book XXXVI. Where the Prætor has ordered a party against whom an action is brought for a debt, to appear; and the number of citations is exhausted; and he decides that the absent party owes the debt, and suit is brought to enforce the judgment; the judge who hears the case cannot examine the decree of the Prætor, otherwise citations of this kind and the decrees of the Prætors would be illusory. Marcellus says in a note: “Where the plaintiff knowingly and falsely states anything with malicious intent, and it is clearly established that in this way he obtained a judgment in his favor from the Prætor; I think that the judge should admit the complaint of the defendant.” Paulus says in a note, that if the defendant was unable to be present because he was prevented by illness, or was employed in some business for the State, it is his opinion that in this case an action to enforce the judgment against him should be refused, or the Prætor ought not to permit execution to be issued.

76Alfenus, Digest, Book VI. The following case was suggested. Certain judges were appointed to hear the same action, some of them having been excused after it was tried, others were appointed in their stead; and the question arose whether the change of some individual judges left the case in the same condition, or placed it in a different one? I answered that not only one or two might be changed, but all of them as well, and that the action would continue to be the same that it was previously, and in fact this was not the only case in which it happened that though the parts were changed, still the thing itself was considered to be the same, but this occurred in many other instances. For a legion is considered to be the same, even though many of those belonging to it may have been killed, and others put in their places; and the people are deemed to be the same now as they were a hundred years ago, although not one of them may at present be living; and also, where a ship has been so frequently repaired that not even a single plank remains which is not new, she is still considered to be the same ship. And if anyone should think that if its parts are changed, an article would become a different thing, the result would be that, according to this rule, we ourselves would not be the same persons that we were a year ago, because, as the philosophers inform us, the very smallest particles of which we consist are daily detached from our bodies, and others from outside are being substituted for them. Therefore, where the outward appearance of anything remains unaltered, the thing itself is considered to be the same.

77Africanus, Questions, Book III. In private business, a father may act as judge where his son is interested, and vice versa:

78Paulus, On Plautius, Book XVI. Since judging is a public employment.

79Ulpianus, On the Office of Proconsul, Book V. Where a party is proved to have summoned his adversary to court without a good cause, he will be obliged to refund him his traveling expenses, as well as the costs of the suit. 1Where judges are perplexed with reference to the law, it is customary for the Governors to state their opinions, but where the latter are consulted on a question of fact, they are not compelled to do so, and they must order the judges to render a decision, as their consciences may dictate; as, where opinions are given under such circumstances, it sometimes causes scandal, and furnishes an opportunity for partiality or corrupt solicitation.

80Pomponius, On Sabinus, Book II. Where a mistake is made in the name or surname of a judge, it was the opinion of Servius that if the judge was appointed by an agreement of the litigants, he must act as judge whom both litigants had in view.

81Ulpianus, Opinions, Book V. Anyone who is not invested with jurisdiction, or is not granted authority by the Emperor, nor appointed by an official who has the right to appoint judges, or not selected by agreement for arbitration, or not confirmed by some law, cannot act as judge.

82The Same, On the Office of Proconsul, Book I. Sometimes the magistrates of the Roman people are accustomed to expressly appoint court attendants arbiters, which should be done very rarely, and only where the case is urgent.