Ulpianus, On the Edict, Book XII. This Edict has reference to such changes of condition as happen without affecting the rights of citizenship. But where a change of condition takes place either through loss of citizenship or of freedom, the Edict will not apply, and such persons cannot, under any circumstances, be sued, but it is clear that an action will be granted against those into whose hands their property has passed. 1The Prætor says: “If any man or woman is said to have suffered the loss of civil rights after having performed some act, or made some contract, I will permit an action to be brought against him or her, just as if such change of condition had not occurred.” 2Those whose condition has been changed remain naturally bound, for the reason which existed before said change took place; but if they arose afterwards, anyone who agrees to pay the said parties money, or enters into a contract with them, will have only himself to blame, so far as relates to the terms of this Edict. Sometimes, however, an action should be granted where a contract is made with them after their change of condition; and, indeed, where the party is arrogated, there is no difficulty, for then he will be liable just like the son of a family. 3No one is exempt from the penalty for crime, even though his civil condition be changed. 4Where a party has arrogated his debtor, his right of action against him will not be restored after he becomes his own master. 5This right of action is perpetual, and is granted both to and against heirs.

Ulpianus, 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.”

Ulpianus, 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.

Ulpianus, 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:

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, On the Edict, Book XII. For if, being in debt, I deliver the property for which you wished to sue me, this Edict will not apply. 1Where the guardian of a ward, or the curator of an insane person alienates property, a prætorian action will lie, because one cannot presume that either the ward or the insane person can have the intention of committing fraud.

The 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.

The Same, On the Edict, Book XII. Some authorities very properly hold that an action on the peculium should be granted against an arrogator; although Sabinus and Cassius think that an action on the peculium should not be granted on account of business previously transacted.

Ulpianus, On the Edict, Book XII. The justice of this Edict is in no respect ambiguous, for it was framed to prevent the contracting parties from being deceived through the intervention of a false guardian. 1The following are the terms of the edict: “What is done by the authority (the Prætor says) of one who was not a guardian”. 2Many things are lacking in the terms of the Edict. For what if the party who was guardian should have no right to exert his authority, for example, if he should be insane, or was appointed for some other province. 3However, Pomponius states in the Thirtieth Book that sometimes, although the business has been transacted under the authority of someone who was not a guardian, this part of the Edict will not be applicable. For what if there are two guardians, one of whom is false, and the other genuine, and they should authorize an act, would the transaction be valid? 4Pomponius says in the Thirtieth Book that, even though this Edict does not specifically mention more than one false guardian, it, nevertheless, applies to the acts of several. 5Pomponius also says that, even though a ward transacts business under the authority of a person acting as guardian, this Edict will still apply, unless the Prætor shall have decreed that he will ratify what has been done under such authority, for then the act will be valid, on account of the support of the Prætor, and not by operation of law. 6The Prætor says: “If a ward should be ignorant that his guardian is not genuine, I will grant him complete restitution”. He does not grant relief to a ward who was aware of the fact, which is reasonable, because he voluntarily deceives himself.

Ulpianus, On the Edict, Book XII. It is evident that such knowledge does not prejudice a party who is not in need of assistance; as, for example, where one ward transacts business with another, for as the act is void, his knowledge does not prejudice him.

Ulpianus, On the Edict, Book XII. Sometimes, however, although knowledge may cause prejudice, restitution should be granted where a party was compelled to join issue by order of the Prætor.

Ulpianus, On the Edict, Book XII. Finally, the Prætor says: “I will grant an action against a party who, not being a guardian, is said to have fraudulently authorized the act of a ward; and judgment shall be rendered against him for the value of the property in question”. 1A guardian cannot always be sued, nor is it sufficient for him to have knowingly authorized a transaction, but he also must have acted in bad faith. What would be the result if he were forced to grant his authority, or was induced to do so through fear: ought he not to be excused under such circumstances? 2Where the Prætor says: “The value of the property in question”. I do not think that the penalty, but merely the true amount lost is referred to. 3Pomponius very properly states in the Thirtieth Book that the account of the expenses which the plaintiff has been forced to incur by bringing this action should also be included in the judgment. 4Where there are several false guardians, and restitution is made by one of them, the others will be released, but this is not accomplished by the mere selection of one by the plaintiff.

Ulpianus, On the Edict, Book XII. With reference to this action, Pomponius states in the Thirty-first Book that it can be granted against anyone who acts in bad faith, in order to induce another, who is ignorant of the fact, to authorize a transaction by his ward. 1Labeo says that actions of this kind in factum can be brought by heirs and their successors, but that they will not lie against them, nor can they be brought after the expiration of a year, since they punish an act, and are based upon fraud; and that they become noxal actions when instituted against parties who are subjected to the authority of others.

Ulpianus, On the Edict, Book XII. Those who entertain any doubt with reference to their condition or are mistaken concerning it cannot execute a will; as the Divine Pius stated in a Rescript.

Ulpianus, On the Edict, Book XII. Where property is considered to be abandoned, it immediately ceases to be ours, and belongs to the first occupant, because it ceases to belong to us under the same circumstances that it is acquired by others.

Ulpianus, On the Edict, Book XII. There are about three causes for which it is customary to place a creditor in possession of the property of his debtor: first, in order to protect it; second, to preserve a legacy; and third, in behalf of an unborn child. When possession is granted for the prevention of threatened injury, if security is not furnished, alj the property is not included, but only that from whose fall damage is expected to result.

Ad Dig. 50,16,20Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 2.The Same, On the Edict, Book XII. The expressions, “they contracted,” and “they transacted,” do not refer to the right of making a will.

Ulpianus, On the Edict, Book XII. Anyone who is in servitude cannot acquire property by usucaption; for even when he has possession, he is not considered to hold it legally.