1Gaius, 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.

2Ulpianus, 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.

3Paulus, 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.

4Ulpianus, 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.

5Paulus, 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.

6Gaius, 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.

7Paulus, 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.

8Gaius, 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.

9Ulpianus, 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.

10Paulus, 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. 1Ad Dig. 2,11,10,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 2.Where 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.

11Ulpianus, 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.

12Paulus, 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.

13Julianus, 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.

14Neratius, 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.

15Papinianus, 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.