Si quis cautionibus in iudicio sistendi causa factis non obtemperaverit
(Where a Party Who Has Given a Bond to Appear in Court Does Not Do So.)
1 Gaius libro primo ad edictum provinciale. Vicena milia passum in singulos dies dinumerari praetor iubet praeter eum diem, quo cautum promittitur, et in quem sistere in iudicium oportet. nam sane talis itineris dinumeratio neutri litigatorum onerosa est.
1 Gaius, On the Provincial Edict, Book I. The Prætor orders that a day shall be granted for every twenty thousand paces in addition to that on which the bond is executed, as well as that on which the party is bound to appear in court, for, indeed, this enumeration, as applied to the journey, is burdensome to neither of the litigants.
2 Ulpianus libro septuagensimo quarto ad edictum. Non exigimus reum iudicio sisti, si negotium, propter quod iudicio sisti promisit, fuerit transactum: sed hoc ita, si prius id negotium transactum sit, quam sisti oporteret. ceterum si postea transactum est, exceptio doli opponi debet: quis enim de poena promissa laborat post negotium transactum? cum etiam transacti negotii exceptionem putaverit quis nocere, quasi etiam de poena transactum sit, nisi contrarium specialiter partibus placuerit. 1Si quis municipalis muneris causa sine suo dolo malo impeditus in iudicio secundum suam promissionem non stetit, aequissimum est tribui ei exceptionem. 2Simili modo et si ad testimonium desideratus ad iudicium occurrere non potuit, erit ei subveniendum. 3Si quis iudicio se sisti promiserit et valetudine vel tempestate vel vi fluminis prohibitus se sistere non possit, exceptione adiuvatur, nec immerito. cum enim in tali promissione praesentia opus sit, quemadmodum potuit se sistere qui adversa valetudine impeditus est? et ideo etiam lex duodecim tabularum, si iudex vel alteruter ex litigatoribus morbo sontico impediatur, iubet diem iudicii esse diffisum. 4Si non propter valetudinem mulier non steterit iudicio, sed quod gravida erat, exceptionem ei dandam Labeo ait: si tamen post partum decubuerit, probandum erit quasi valetudine impeditam. 5Idem est et si quis furere coeperit: nam qui furore impeditur, valetudine impeditur. 6Quod diximus succurri etiam ei, qui tempestate aut vi fluminis prohibitus non venit, tempestatem sic intellegere debemus, sive maritima sive terrestris sit. tempestatem intellegere debemus talem, quae impedimento sit itineri vel navigationi. 7Vis fluminis etiam sine tempestate accipienda est: vim fluminis intellegimus, et si magnitudo eius impedimento sit sive pons solutus sit vel navigium non stet. 8Si quis tamen cum posset non incidere in tempestatem vel in fluminis vim, si ante profectus esset vel tempore oportuno navigasset, ipse se artaverit: numquid exceptio ei minime prosit? quod quidem causa cognita erit statuendum. nam neque sic artandus sit, ut possit ei dici, cur non multo ante profectus est quam dies promissionis veniret: neque iterum permittendum ei, si quid sit quod ei imputetur, causari tempestatem vel vim fluminis. quid enim si quis, cum Romae esset ipso tempore promissionis sistendi, nulla necessitate urguente voluptatis causa in municipium profectus sit? nonne indignus est, cui haec exceptio patrocinetur? aut quid si tempestas quidem in mari fuit, terra autem iste potuit venire: vel flumen circumire? aeque dicendum non semper ei exceptionem prodesse: nisi angustiae non patiebantur terra iter metiri vel circumire. cum tamen vel flumen sic abundasset, ut implesset omnem locum, in quo sisti oportuit, vel aliqua fortuita calamitas eundem locum evertit vel praesentiam venienti periculosam fecit, ex bono et aequo et hic exceptio ei accommodanda est. 9Simili modo exceptio datur ei, qui cum ad iudicium venire volebat, a magistratu retentus est, et retentus sine dolo malo ipsius: nam si ipse hoc affectavit vel causam praestitit, non ei proderit exceptio: sed ipsius quidem dolus ei oberit, ceterorum non oberit, qui dolo fecerunt ut retineretur. sed si privatus eum detinuerit, nullo modo ei proderit haec exceptio,
2 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.
3 Paulus libro sexagensimo nono ad edictum. sed actio ei datur adversus eum qui detinuit in id quod eius interest.
3 Paulus, On the Edict, Book LXIX. An action for an amount equal to his interest in the case will lie against the party who detained him.
4 Ulpianus libro septuagensimo quarto ad edictum. Sed et si quis rei capitalis ante condemnatus iudicio sistere se non potuit, merito huic ignoscitur: rei capitalis condemnatum accipere debemus, qui morte exiliove coercitus est. dixerit aliquis, quo ergo haec exceptio damnato? sed respondebitur fideiussoribus eius esse necessariam: aut si forte in exilium salva civitate abiit, ubi defensori eius exceptio ista proderit. 1Illud sciendum est eum, qui idcirco non stetit, quia capitis reus factus est, in ea causa esse, ut exceptione uti non possit: damnato enim datur. plane si vinculis vel custodia militari impeditus ideo non stetit, in ea erit causa, ut exceptione utatur. 2Praeterea si funere quis domestico impeditus non venit, debet ei exceptio dari. 3Item si quis in servitute hostium fuerit ac per hoc in iudicium non stetit, debet exceptione adiuvari. 4Quaesitum est an possit conveniri, ne ulla exceptio in promissione deserta iudicio sistendi causa facta obiciatur: et ait Atilicinus conventionem istam non valere. sed ego puto conventionem istam ita valere, si specialiter causae exceptionum expressae sint, quibus a promissore sponte renuntiatum est. 5Item quaeritur, si quis, cum iudicio sistendi causa satisdare non deberet, satisdato promiserit, an fideiussoribus eius exceptio detur. puto interesse, utrum per errorem satisdato promissum est an ex conventione: si per errorem, dandam fideiussoribus exceptionem: si ex conventione, minime dandam. nam et Iulianus scribit, si iudicio sistendi causa pluris quam statutum est per ignorantiam promissum fuerit, exceptionem dari debere: si autem ex conventione tantae summae promissio facta sit, exceptionem pacti conventi replicatione infirmandam Iulianus ait.
4 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.
5 Paulus libro sexagensimo nono ad edictum. Si duo rei stipulandi sint et uni debitor iudicio se sisti cum poena promiserit, alter autem impedierit: ita demum exceptio adversus alterum danda est, si socii sint: ne prosit ei dolus propter societatem. 1Item si duo rei promittendi sint et unus ad iudicium non venerit contempta sua promissione iudicio sistendi causa facta, actor autem ab altero rem petat, ab altero poenam desertionis: petendo poenam exceptione summovebitur. 2Aeque si a patre facta fuerit promissio iudicio sistendi gratia ex filii contractu, deinde de re actor egerit cum filio, exceptione summovebitur, si cum patre ex eius promissione agat. et contra idem erit, si filius promiserit et actor egerit cum patre de peculio.
5 Paulus, On the Edict, Book LXIX. Where there are two creditors equally interested, and a debtor promises one of them under a penalty to appear in court, and the other prevents him from so doing, an exception does not lie against the other if they are partners, lest the fraud of one of them may benefit the other on account of the partnership. 1In like manner, where there are two debtors jointly liable, and one of them, breaking his promise, does not appear in court, and the plaintiff then demands the property in dispute from one, and the penalty for non-appearance for the other, the suit to recover the penalty will be barred by an exception. 2Also, where a promise has been made by a father to appear in court on account of some contract made by his son, and afterwards the plaintiff institutes proceedings against the son; they are barred by the exception if the plaintiff sues his father on account of his promise. On the other hand, the same rule applies if the son promised to appear and the plaintiff brings an action against the father for the peculium.
6 Gaius libro primo ad legem duodecim tabularum. Si is qui fideiussorem dedit ideo non steterit, quod rei publicae causa afuit: iniquum est fideiussorem ob alium necessitate sistendi obligatum esse, cum ipsi liberum esset non sistere.
6 Gaius, On the Law of the Twelve Tables, Book I. Where he who has given a surety does not appear because he is absent on public business, it is unjust for the surety to be required to appear on behalf of the other, when the latter is not free to do so.
7 Paulus libro sexagensimo nono ad edictum. Si quis servum in iudicio sisti promiserit vel alium qui in aliena potestate est, isdem exceptionibus utitur, quibus si pro libero vel patre familias fideiussit, praeterquam si rei publicae causa abesse diceretur servus: nam servus rei publicae causa abesse non potest. praeter hanc autem exceptionem ceterae, quia communes sunt, tam in libero homine quam in servo locum habent.
7 Paulus, On the Edict, Book LXIX. Where anyone promises that a slave, or some other person who is under the control of another shall appear in court, he is entitled to the same exceptions as he would be if he had bound himself for a freeman, or the head of a family; except where the slave is said to be absent on public business, for a slave cannot be absent on public business. Leaving this exception out of consideration, all the others, being generally applicable, can be taken advantage of in the cases of freemen as well as in those of slaves.
8 Gaius libro vicensimo nono ad edictum provinciale. Et si post tres aut quinque pluresve dies, quam iudicio sisti se reus promisit, secum agendi potestatem fecerit nec actoris ius ex mora deterius factum sit, consequens est dici defendi eum debere per exceptionem.
8 Gaius, On the Provincial Edict, Book XXIX. If in four, five, or more days after the party promised to appear in court he gives the plaintiff occasion to proceed against him, and the latter is not prejudiced by the delay, it may be stated that in consequence of this, he can defend himself by means of an exception.
9 Ulpianus libro septuagensimo septimo ad edictum. Si servus iudicio se sisti promittat, non committitur stipulatio neque in eum neque in fideiussores eius. 1Si plurium servorum nomine iudicio sistendi causa una stipulatione promittatur, poenam quidem integram committi, licet unus status non sit, Labeo ait, quia verum sit omnes statos non esse: verum si pro rata unius offeratur poena, exceptione doli usurum eum, qui ex hac stipulatione convenitur.
9 Ulpianus, On the Edict, Book LXXVII. Where a slave promises to appear in court his agreement is of no force, either with respect to himself or his sureties. 1If anyone has promised by a single stipulation to appear in court on behalf of several slaves, Labeo says that the entire penalty can be collected although only one slave does not appear; because it is a fact that all of them were not present. However, if a portion of the penalty is tendered for that one, he can make use of an exception on the ground of fraud if suit is brought on the stipulation.
10 Paulus libro primo ad Plautium. Si eum iudicio sisti promisero, qui iam tempore liberatus esse dicebatur, quia iam actione forte non tenebatur: actio in me danda est, ut vel exhibeam eum vel defendam, ut veritas inquiratur. 1Homo sisti promissus ante diem dolo promissoris periit: certo iure utimur non ante poenam peti posse, quam dies venerit: tota enim stipulatio in diem collata videtur. 2Qui iniuriarum acturus est, stipulatus erat ante litem contestatam ut adversarius suus iudicio sistat: commissa stipulatione mortuus est. non competere heredi eius ex stipulatu actionem placuit, quia tales stipulationes propter rem ipsam darentur, iniuriarum autem actio heredi non competit. quamvis enim haec stipulatio iudicio sistendi causa facta ad heredem transeat, tamen in hac causa danda non est: nam et defunctus si vellet omissa iniuriarum actione ex stipulatu agere, non permitteretur ei. idem dicendum esse et si is, cum quo iniuriarum agere volebam, stipulatione tali commissa decesserit: nam non competit mihi adversus heredem eius ex stipulatu actio, et hoc Iulianus scribit. secundum quod et si fideiussores dati erant, minime dabitur in eos actio mortuo reo. idem Pomponius, si non post longum tempus decesserit: quia si ad iudicium venisset, litem cum eo contestari actor potuisset.
10 Paulus, On Plautius, Book I. If I promise that a party shall appear in court who already is alleged to have become free by lapse of time, for example, because he was no longer liable to be sued; an action will lie against me either to produce or defend him, that the truth may be ascertained. 1Where a promise has been made that a man will appear, and he loses his life through the treachery of the surety before the day fixed for his appearance; we can certainly make use of the rule: “That an action can not be brought for a penalty before the time arrives, for the reason that the entire stipulation is held to refer to a certain day”. 2A man who was about to bring an action for injury stipulated before issue was joined, that if his adversary should appear in court, and when the time for the fulfillment of the promise had elapsed, he died; it is held that no right of action exists against the heir by reason of the stipulation; for the reason that stipulations of this kind are only entered into on account of the principal action; and although, as a rule, the stipulation entered into to appear in court passes to the heir, still, in this instance, it is not the case; for if the deceased had desired to bring suit on the stipulation after having abandoned that of injury, he would not have been permitted to do so. The same rule will apply if the party against whom I desire to bring an action for injury had died after the time stated in the stipulation, for I have no right to bring an action on the stipulation against the heir; and this was the opinion of Julianus. Hence, where sureties have been given, no action whatever will lie against them after the principal is dead. Pomponius holds the same opinion where the party did not die a great while afterwards, for the reason that, if he had appeared in court, his adversary would have been able to join issue with him.
11 Ulpianus libro quadragensimo septimo ad Sabinum. Si quis quendam in iudicio sisti [ed. maior promiserit] <ed. minor promisit>, in eadem causa eum debet sistere. in eadem autem causa sistere hoc est ita sistere, ut actori persecutio loco deteriori non sit, quamvis exactio rei possit esse difficilior. licet enim difficilior exactio sit, tamen dicendum est videri in eadem causa eum stetisse: nam et si novum aes alienum contraxisset vel pecuniam perdidisset, videtur tamen in eadem causa stetisse: ergo et qui alii iudicatus sistitur, in eadem causa stare videtur.
11 Ulpianus, On Sabinus, Book XLVII. Where anyone promises that a party shall appear in court, he ought to see that he does so in the same legal condition. To appear in the same condition means that he shall do so in such a way that the plaintiff will not be any the worse in the prosecution of the case, even if it may be more difficult for him to obtain satisfaction of his claim; and although this may be the case, it can be said that the party is still in the same legal condition; or even if he may have contracted new obligations, or have lost money, he still is held to be in the same legal condition; therefore, when anyone appears after judgment has been obtained against him, he is still held to appear in the same legal condition.
12 Paulus libro undecimo ad Sabinum. Qui autem novo privilegio utitur, non videtur in eadem causa sisti. 1Illud tenendum est, quod aestimationem eius quod intersit agentis ad illud tempus referendum est, quo sisti debuit, non ad id, quo agitur, quamvis desierit eius interesse.
12 Paulus, On Sabinus, Book XI. He, however, who has acquired the right to make use of some new privilege is not held to appear in the same legal condition. 1It must be held that any estimate of the interest of the plaintiff should be calculated with reference to the time when he ought to have appeared, and not to that when proceedings were instituted; even though he may have ceased to have any interest in the question at issue.
13 Iulianus libro quinquagensimo quinto digestorum. Quotiens servus iudicio sistendi causa ut ipse litigaturus vel ab alio stipulatur vel ipse promittit: nec commititur stipulatio nec fideiussores tenentur, quia servus conveniri vel convenire non potest.
13 Julianus, Digest, Book LV. When a slave himself promises to appear in court to conduct a case, or this is stipulated by another, the stipulation is of no effect, nor are the sureties liable; because a slave cannot either sue or be sued.
14 Neratius libro secundo membranarum. Si procurator ita stipulatus est, ut sistat dumtaxat eum quem stipularetur, non etiam poenam si status non esset stipularetur: propemodum nullius momenti est ea stipulatio, quia procuratoris, quod ad ipsius utilitatem pertinet, nihil interest sisti. sed cum alienum negotium in stipulando egerit, potest defendi non procuratoris, sed eius cuius negotium gesserit utilitatem in ea re spectandam esse: ut quantum domini litis interfuit sisti, tantum ex ea stipulatione non stato reo procuratori debeatur. eadem et fortius adhuc dici possunt, si procurator ita stipulatus esset ‘quanti ea res erit’: ut hanc conceptionem verborum non ad ipsius, sed ad domini utilitatem relatam interpretemur.
14 Neratius, Parchments, Book II. If one man, as the agent for another, stipulates that he will merely produce him whom he agreed to produce without mentioning a penalty, and he should not appear, a stipulation of this kind can hardly have any weight; because the agent, so far as it relates to himself, has no interest in his appearance. But since, in making the stipulation, he is transacting the business of another, it may be stated that the benefit which must be considered in the matter does not accrue to the agent, but to the party whose business he was transacting; so that if the party does not appear, there should be due to the agent an amount equal to the interest of the principal in the suit in accordance with the terms of the stipulation. The same rule can be said to apply even more strongly, where the agent had stipulated in the following terms: “Whatever compensation is proper”; as we understand these words to have reference not to the benefit of the agent himself, but to that of the principal in the action.
15 Papinianus libro secundo quaestionum. Si tutor iudicio sisti promiserit et stipulationi non obtemperaverit, et interea pupillus adoleverit aut mortem obierit aut etiam abstentus sit hereditate: denegabitur ex stipulatu actio. nam et ipsius rei, quae petebatur, si tutor iudicatus fuerit et eorum quid acciderit, non esse dandam in eum actionem iudicati probatum est.
15 Papinianus, Questions, Book II. Where a guardian promises to appear in court and comply with his agreement, and in the meantime his ward becomes of age, or dies, or rejects the estate, an action on the stipulation shall be refused; for if an action had been brought to recover the property itself, and judgment had been rendered against the guardian, and any of the above things had taken place; it has been settled that no action on the judgment could be instituted against him.