Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book IV. Where anyone wishes to bring an action, he must state the grounds for it; as it is most just that the party sued should know whether he ought to submit, or set up a defence, and if he makes up his mind to the latter course, that he may be sufficiently informed to conduct the proceedings by ascertaining the nature of the suit which is brought against him. 1To state the case is also to give the other party an opportunity to take a copy of the same, or of what is included in the complaint, either by presenting it to him, or by dictating it. Labeo says that he also makes a statement of his case who conducts his adversary to the register of the Prætor, and shows him what he is about to dictate, or by communicating to him the form which he intends to use. 2Notices of this kind should be drawn up without mention of the date, or the consul, lest some fraud may be contrived from the employment of the same, and a prior date be inserted in the instrument. The Prætor, however, excludes the date and the consul when the document was written, but not that on which payment was to have been made; for the day of payment is, as it were, the principal part of the stipulation. Accounts, however, must be stated with the date and the consul; as where money is paid and received this cannot otherwise be clear, unless the day and consul are set forth. 3All matters must be stated which anyone intends to bring before the court, but a party is not compelled to produce instruments which he does not expect to use. 4He is not considered to have given proper notice who does not include the entire stipulation. 5Relief shall be granted to those who, on account of their age, ignorance, sex, or for any other good reason, have failed to make proper statements.

2 Paulus, On the Edict, Book III. Where suit is brought for a legacy the Prætor does not order the terms of the will to be set forth, probably because the heir usually has a copy of the will.

3 Mauricianus, On Punishments, Book II. The Senate decreed that no one against whom a suit is brought by the Treasury, shall be forced to exhibit any other documents to the informer than those that relate to the case in which the latter has declared himself to be informer.

4 Ulpianus, On the Edict, Book IV. The Prætor says: “Those who pursue the business of bankers must exhibit to a depositor the account in which he is interested, in addition to the day and the consul.” 1The principle of this Edict is perfectly just; for as bankers keep the accounts of individuals, it is but proper that any books or papers relating to business transactions in which I am interested, should be shown to me as being, to a certain extent, my own property. 2The son of a family is included in the terms of the Edict, so that he also is compelled to exhibit his accounts; and the question arises is the father likewise compelled to do so? Labeo states that he is not, unless his son conducts the business of a banker with his knowledge; but Sabinus has properly declared that this is not to be admitted, where he reports his profits to his father. 3Where a slave carries on a banking business (for he can do so), if, indeed, he acts with the consent of his master, the latter can be compelled to produce his accounts, and an action will lie against him, just as if he, himself, had carried on the business; but, if the slave acts without the knowledge of his master, it will be sufficient if his master swears that he is not in possession of his accounts. Where a slave carries on the business of a banker, with his own private means, the master is liable for the same, or for the amount invested; but where the master has the accounts, and does not produce them, he is liable for the entire amount. 4Even a party who has ceased to conduct a banking business can be compelled to produce his books and papers. 5A person is compelled to produce his accounts in the place where he has conducted his banking business, and this has been thoroughly established. When he keeps his books in one province, and conducts his business in another, I am of the opinion that he can be compelled to produce them in the place where he carries on his business; for he was to blame in the first place for removing his books elsewhere. If he conducts his business in one place, and he is required to produce his books in another, he is by no means obliged to do so, unless you wish him to furnish you with copies of the same, where legal nroceedings have been instituted, and, of course, at your expense.

5 Paulus, On the Edict, Book III. Time must be granted him to bring these accounts.

6 Ulpianus, On the Edict, Book IV. Where a banker keeps his books at his residence, or in his warehouse, (as many of them do), he must either conduct you to the place where they are, or give you a copy of the accounts. 1The successors of a banker are also obliged to produce accounts. Where there are several heirs, and one of them has possession of the accounts, he alone can be compelled to produce them; but where all have possession of them, and one produces them, all can be compelled to do so. What then must be done if the one who produces them is obscure and entitled to but little consideration, so that doubt may justly arise concerning the good faith of their production? Therefore, in order that the accounts may be compared, the others should also produce theirs; or, indeed, sign those produced by one of them. The same rule will apply where there are several bankers who have been requested to produce their accounts; for where there are several guardians who are discharging a trust together, they must all produce their accounts, or sign that produced by one of them. 2Moreover, an oath is exacted from the adversary of the banker, “that he does not demand the production of his accounts for the purpose of annoyance”; in order that he may not require the production of accounts which are superfluous, or of which he already has possession, for the sake of annoying the banker. 3Labeo says that an account is a statement of all mutual payments, receipts, credits and debts of the parties; and that no account can begin with the mere payment of a debt. And where the party has received a pledge or a deposit, he cannot be required to disclose the fact, as these are beyond the scope of an account; the banker, however, must furnish a statement where a promise to pay has been made, for this belongs to his business as a banker. 4An action will lie under this Edict for the amount of the interest of the plaintiff. 5From this it is apparent that the Edict only applies to what concerns the party himself; but it is held that the account concerns me if you merely keep it under my direction; but if my agent directs this to be done, while I am absent, must it be produced by me, on the ground that it concerns me? The better opinion is that it must be produced. I have no doubt that my agent must produce the account which he keeps for me as it concerns him, and he must give security that I will ratify it, if no mandate were given him. 6Where a date appears at the beginning of a page under which the account of Titius is set down, and afterwards my own appears without date or consul; the same date and consul must be given to me also, as the day and consul entered at the beginning belong to the entire account. 7To exhibit an account is either to dictate it or make a statement of it in writing, or to produce an account book. 8The Prætor says: “I will order accounts to be produced to a banker, or to anyone who demands it a second time, only where proper cause is shown.” 9He forbids accounts to be produced to a banker for the reason that he himself can obtain information from the books and papers of his business; and it is absurd that he should ask that books be produced for his benefit, in a case where he himself is obliged to produce them. Whether an account must be produced for the heir of the banker is a matter for consideration, for if the banker’s books and papers have come into his possession, they should not be produced for him; but if not, this can be done where proper cause is shown, as, under such circumstances, the accounts must have been produced for the banker himself, where he proves that the accounts have been lost through shipwreck, the destruction of a house, fire, or any other similar accident; or where they are in a place which is at a great distance, as for instance, beyond sea. 10The Prætor does not require accounts to be produced for a party demanding it a second time, unless for good cause.

7 Paulus, On the Edict, Book III. For instance, where he shows that the accounts given in the beginning are in some distant place, or that they are not complete, or that he has lost them through unavoidable accident, and not through negligence, for if he lost them by an accident of this kind for which he should be excused, he shall be ordered to produce them a second time. 1This term: “A second time,” has two significations, one in which reference is made to the second time which the Greeks call deuteron, and the other which includes also subsequent times, which the Greeks call palin; by which is understood “as often as is necessary”; for it may happen that a party has lost an account which was twice given him, so that the term “a second time” is understood to mean “frequently”.

8 Ulpianus, On the Edict, Book IV. When a banker is required to produce his accounts, and, influenced by malice, he does not do so, he is punished; but he is only liable for negligence when it closely resembles malice. He is guilty of malice in producing his accounts who does so with fraudulent intent, or who produces them incomplete. 1He who becomes liable under the terms of this Edict is required to pay, by way of damages, a sum equal to the interest I had in having the accounts produced at the time this was ordered by the Prætor, and not the interest which I have at present; and, therefore, even if my interest has entirely ceased to exist, or has become less or greater, my right of action will neither be increased nor diminished.

9 Paulus, On the Edict, Book III. There are some persons who are obliged to produce our accounts, although they are not required to do so by the Prætor under this Edict; as, for instance, where an agent transacts our business or keeps our accounts, he is not required to produce his accounts by the Prætor, through fear of an action in factum, for the reason that we can obtain this by an action on mandate. Also, where a partner has transacted the business of the partnership fraudulently, the Prætor cannot proceed against him under this clause, for there is an action in behalf of his partner; nor can the Prætor force a guardian to furnish an account to his ward, for it is customary to compel him to do this by an action of guardianship. 1It makes no difference whether the successors, the father, or the master of the banker are in the same business; for since they take his place and succeed him in law, they are bound to discharge his obligations. A party to whom a banker has left his accounts does not appear to be included, (since by these words his legal successor is meant) any more than, if he, while living, had presented him with them. Nor will the heir himself be liable, if he has not had possession of them and has not acted fraudulently. If, however, before he delivers them to the legatee, he should be notified not to do so, he will be liable just as if he acted through malice; and he will also be liable so long as he has not surrendered them. If he does not act maliciously, the legatee will be compelled to produce the accounts, where sufficient cause is shown. 2Nor is it unjust that money-brokers, as Pomponius says, should be compelled to produce their accounts, because brokers of this kind, as well as bankers, keep accounts, and receive and pay out money at different times; which is principally proved by their entries and account books, and reliance is very frequently placed upon their good faith. 3Moreover, the Prætor orders accounts to be produced for those who demand it, and who swear that they are not bringing suit for the purpose of annoyance. 4Accounts are considered as concerning us, not only when we ourselves have been parties to a contract, or have succeeded someone who has made a contract, but also where a contract has been made by a person under our control.

10 Gaius, On the Provincial Edict, Book I. When a banker is ordered to produce his accounts, it makes no difference whether the controversy has arisen with him or with another party. 1The reason why the Prætor requires only bankers to produce their accounts, and not others who are transacting business of a different description, is, because their functions and occupations are of a public nature, and their chief duty is to carefully keep accounts of their transactions. 2An account is considered to be produced when this is done from the very beginning (for an account cannot be understood unless it is thoroughly examined). This, however, does not signify that the entire account-book, or all the parchments of any person, are to be examined or copied; but that only the portion of the account which is required to give a party the information he desires, is to be examined and copied. 3When an action is brought for an amount which is equal to the interest of the plaintiff in having the account produced, it follows that whether he does not obtain what he brought suit for, or whether he is condemned for the reason that he did not have the account with which he could have sustained his case; he can recover by this action whatever he lost in this way. Let us consider whether this is actually true, for if he can prove before the judge who is to decide between him and the banker, that he could have gained his case in the trial in which he was beaten, he must then have been able to prove it; and if he did not do so, or if he did prove it, and the judge did not pay any attention to this fact, he has only the right to complain of himself, or of the judge. This, however, is not the case, for it might happen that he has at present obtained possession of the account from the defendant himself, or in some other way; or be able to prove, by means of other documents, or witnesses, which for some reason or other, he was not able to make use of at the time of the trial, that he could have gained his case. For, under these circumstances, a man has a right of action for theft or for fraudulent alteration of an obligation made for his benefit; as well as an action for unlawful damage, as, although we may not have been able to prove something previously for the reason that an undertaking has been abstracted, and may have lost our case, still, we can prove it now by other documents, or witnesses, which we were unable to make use of in the first place.

11 Modestimis, Rules, Book III. It has been established that copies of documents may be produced without the signature of the party who exhibits them.

12 Callistratus, On the Monitory Edict, Book I. It is held that women are excluded from conducting banking business, as this is an occupation belonging to men.

13 Ulpianus, On the Edict, Book IV. This action is not permitted after the lapse of a year, nor against an heir, unless through some act of his own; but it is granted to an heir.