Ulpianus, On the Edict, Book LXXIV. We do not require the defendant to appear in court where the matter with reference to which he promised to appear has been settled; but this must take place before the day fixed for him to appear. If, however, the settlement was made afterwards, an exception on the ground of fraud should be interposed; for who would trouble himself concerning the promise of the penalty after the case had been disposed of? For anyone would think that an exception on the ground that the matter had been settled would be valid, because the agreement also included the penalty; unless the contrary had been specially agreed upon by the parties. 1Where anyone, by reason of municipal employment, and without any fault of his own, has been prevented from appearing in court in accordance with his promise, it is perfectly just that an exception should be granted him. 2In like manner, a party who was called as a witness in some other proceeding, and was not able to appear in court, is also entitled to relief. 3Where anyone has promised to appear in court and is unable to do so, having been prevented by illness, a storm, or the power of the current of a river he, not undeservedly, may have the benefit of an exception; for as his presence is required by such a promise, how can he appear who is hindered by illness? Therefore, the Law of the Twelve Tables directs that: “If the judge, or either of the litigants are prevented from being present by a serious illness, the day of the trial shall be postponed”. 4Where a woman does not appear, not because of illness but because she is pregnant, Labeo declares that she is entitled to an exception. If, however, she remains in bed after delivery, proof must be offered that she was prevented by what is equivalent to sickness. 5The same rule applies where anyone is attacked by insanity, for he who is prevented by insanity is prevented by illness. 6When I stated that a party was entitled to relief if he does not appear because he has been prevented by a storm, or the power of the current of a river; by the word “storm” a tempest either on land or sea is to be understood. We should understand the storm to be such a one as hinders travel by land or navigation. 7The power of the current of a river can also be understood to take place without a storm; for we understand it to be of such a character that its extent offers a hindrance, either because a bridge has been destroyed, or no boat is available. 8Where, however, anyone, if he had started on his journey sooner, or had sailed at a more opportune time could have avoided a storm, or the high water of a river thus set bounds to his progress, is he entitled to no benefit for an exception? This, indeed, should be decided after proper investigation, for the rule ought not to be enforced so rigorously that he could be asked: “Why he did not start a long time before the day mentioned in his promise?” Nor, on the other hand, should it be allowed him to allege the storm or the high water of the river as the cause of his non-appearance, when this was his own fault. Suppose, for instance, that a man was at Rome at the time he gave his promise to appear, and that he went to a provincial town, not from urgent necessity but on account of his own pleasure; is he not unworthy of the benefit of this exception? Or, suppose the tempest arose while he was on the sea, but he could have come by land, or have avoided the river by going round it; it may properly be said that he would not always be entitled to the benefit of an exception; unless the ruggedness of the country did not permit him to travel by land, or to go round the river. Where, however, the river had either overflowed its banks so as to cover the entire place where he had to appear, or some accidental misfortune had overwhelmed that place, or had rendered it dangerous for him to come; an exception should be granted him under such circumstances, in accordance with all that is proper and just. 9In like manner, an exception is granted to him who, when he intended to appear in court, was detained by a magistrate without any fault of his own; for if he, himself, tried to have this done, or gave cause for it, he is not entitled to the benefit of the exception, as only his own fraudulent conduct could injure him, and he would not be injured by the act of others who maliciously caused him to be detained. Where, however, a private individual detained him, he is under no circumstances entitled to the benefit of this exception.

Ulpianus, On the Edict, Book LXXIV. Where anyone who has promised to appear cannot do so because he has been convicted of a capital offence, he is very properly excused. We understand condemnation to capital punishment to mean sentence of death or exile. It might, perhaps, be asked of what value is this exception to a person who has been condemned? To this it may be answered that it is necessary for his sureties, and if he is sent into exile without losing his right of citizenship, this exception will profit anyone charged with his defence. 1It should be borne in mind that if he who does not appear because he was accused of a capital crime, was so situated that he could not make use of an exception, as this is only granted to one that is convicted; it is clear that if he did not appear for the reason that he was prevented by being in prison, or in military custody, that he would then be in such a position that he could make use of an exception. 2Moreover, if a person does not appear for the reason that he was prevented by a funeral in his family, an exception should be granted him. 3Again, if anyone is held in captivity by enemies, and for this reason did not appear in court, he is entitled to the benefit of an exception. 4The question has arisen whether an agreement can be made that no exception shall be pleaded, where a party breaks a promise made for the purpose of his appearance in court? Atilicinus is of the opinion that an agreement of this kind is not valid. I think, however, that such an agreement is valid, if the causes of the exception were expressly stated, and the party making the promise voluntarily renounced them. 5In like manner, the question arises whether an exception can be granted to the sureties of a party who gave security to appear in court, when he was not obliged to do so? I am of the opinion that the question is whether security was given through mistake, or by agreement; for, if it was done by mistake, an exception should be granted the sureties; but if it is done by agreement, they are by no means entitled to it. Julianus stated that where anyone bound himself for a larger amount than was fixed, and did this through ignorance, he was entitled to an exception, but where he bound himself for such a sum in pursuance of an agreement, Julianus says that the exception is barred by filing a replicatio, on the ground of the agreement entered into.

The Same, On the Edict, Book LXXIV. Anyone can accept a compromise, not only where the Aquilian stipulation is inserted, but also where an agreement is entered into.

The Same, On the Edict, Book LXXIV. He who appoints an agent for the purpose of instituting proceedings immediately should be understood to permit the agent to conduct the case to a conclusion afterwards. 1Where a party neglects to offer an exception to an agent, he cannot introduce it subsequently, if he changes his mind.

Ulpianus, On the Edict, Book LXXIV. Where a slave is sold in such a condition that he should be returned, it is unjust that the vendor should receive his price. 1Where anyone purchases two slaves for one price, and one of them is in such a condition that he ought to be returned, and the vendor then brings an action for the entire amount, an exception should be filed by way of defence. Where, however, suit is brought for a portion of the price, the better opinion is that an exception will not be a bar, unless the facts are such that both slaves should be returned on account of the unsoundness of one of them.

The Same, On the Edict, Book LXXIV. If the action on stipulation is brought against a guardian while he is still administering the trust, or against those who represent him, a doubt will arise as to whether an action on guardianship cannot be brought, and whether one on stipulation will not lie. Many authorities think that this action should also be deferred, for reasons of convenience. 1The action can also be brought against the curator of a ward or a minor, even while the curatorship is still in existence.

The Same, On the Edict, Book LXXIV. An exception is so called for the reason that it operates as an exclusion, and is ordinarily opposed to proceedings to collect a claim, for the purpose of barring the statement of the same as well as judgment in favor of the party who brings the suit. 1Replications are nothing more than exceptions pleaded by the party plaintiff, which are necessary in order to bar exceptions; for a replication is always introduced for the purpose of opposing an exception. 2It must be remembered that every exception, or replication, is for the purpose of preventing the opposite party from proceeding further. An exception bars the plaintiff, and a replication bars the defendant. 3It is customary for a triplication to be granted against the replication, and other pleas to follow in order and, after this, the names are multiplied, whether the defendant or the plaintiff interposes an objection. 4We usually say that some exceptions are dilatory, and others peremptory; as, for instance, a dilatory exception is one which postpones the action, thus one denying the authority of an agent is a dilatory exception. For he who alleges that anyone has not the power to act as an attorney does not deny that the action should be brought, but maintains that the person who brings it is not qualified to do so.

Ad Dig. 44,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 2.The Same, On the Edict, Book LXXIV. Proceedings are considered to be instituted with reference to the same question, not only when a plaintiff does not make use of the same action which he brought in the first place, but when he brings another relating to the same matter. For instance, if anyone having brought an action on mandate should, after his adversary promised to appear in court, bring one on the ground of voluntary agency, or one for the recovery of the property, he institutes proceedings relating to the same matter. Hence, it is very properly said that he only does not institute proceedings with reference to the same matter who does not again attempt to accomplish the same result. For when anyone changes the action, he must also change the nature of his claim; as he is always considered to bring suit with reference to the same matter, even if he has recourse to a different kind of action from the one which he employed in the first place.

Ulpianus, On the Edict, Book LXXIV. For the reason that a discussion frequently arises with reference to available days, let us see in what the power to maintain one’s rights consists. In the first place, it is requisite for the plaintiff to have power to bring an action, for it is not sufficient for the defendant to be able to himself make a defence, or employ someone who can properly do so for him, but the plaintiff also must not be prevented by any lawful reason from instituting proceedings. Hence, if he is in the hands of the enemy, or absent on business for the State, or is in prison, or if he is detained somewhere by a storm so that he cannot bring the suit, or direct this to be done, he is held not to have the power to do so. It is clear that a person who is prevented by illness, but is able to direct suit to be brought, should be considered as having the power to do so. There is no one who is not aware that he who has not the opportunity of appearing before the Prætor has not the power to bring an action. Hence only those days are available on which the Prætor dispenses justice.

The Same, On the Edict, Book LXXIV. Whenever the language of a stipulation is ambiguous, it is most convenient to adopt the meaning which is favorable to the preservation of the property in question.

Ulpianus, On the Edict of the Prætor, Book LXXIV. Anyone who is still absent, after having exercised the functions of an envoy, and been discharged, is not considered to be away on business for the State, for he is not absent for the public benefit, but for his own.

The Same, On the Edict, Book LXXIV. The word “merchandise” only applies to movable property.