De probationibus et praesumptionibus
(Concerning proofs and presumptions.)
1 Papinianus libro tertio quaestionum. Quotiens quaereretur, genus vel gentem quis haberet nec ne, eum probare oportet.
1 Papinianus, Questions, Book III. Whenever a question is raised with reference to the family or race of any person, he must prove whether he belongs to it or not.
2 Paulus libro sexagesimo nono ad edictum. Ei incumbit probatio qui dicit, non qui negat.
2 Paulus, On the Edict, Book LXIX. Proof is incumbent upon the party who affirms a fact, not upon him who denies it.
3 Papinianus libro nono responsorum. Cum tacitum fideicommissum ab eo datur, qui tam in primo quam in secundo testamento pro eadem parte vel postea pro maiore heres scribitur, probatio mutatae voluntatis ei debet incumbere qui convenitur, cum secreti suscepti ratio plerumque dominis rerum persuadeat eos ita heredes scribere, quorum fidem elegerunt.
3 Papinianus, Opinions, Book IX. Where an implied trust is charged upon a party who is appointed heir for an equal or a larger share of the estate, by both a first and a second will, the proof of changed intention on the part of the testator devolves upon him against whom suit is brought; for often a motive of secrecy induces owners of property to appoint persons heirs in whose good faith they have confidence.
4 Paulus libro sexto responsorum. Respondit emptorem probare debere, eum servum de quo quaeritur antequam emeret fugisse.
4 Paulus, Opinions, Book VI. The purchaser must prove that the slave in question had taken to flight before he purchased him.
5 Idem libro nono responsorum. Ab ea parte, quae dicit adversarium suum ab aliquo iure prohibitum esse specialiter lege vel constitutione, id probari oportere. 1Idem respondit, si quis negat emancipationem recte factam, probationem ipsum praestare debere.
6 Scaevola libro secundo responsorum. Patronum manifeste docere debere libertum in fraudem suam aliquid dedisse, ut partem eius quod in fraudem datum esset, posset avocare.
6 Scævola, Opinions, Book II. A patron must clearly show that his freedman has given something for the purpose of cheating him, in order to be able to revoke a portion of what has been fraudulently bestowed.
7 Paulus libro secundo sententiarum. Cum probatio prioris fugae deficit, servi quaestioni credendum est: in se enim interrogari, non pro domino aut in dominum videtur.
7 Paulus, Sentences, Book II. Where evidence of former flight is lacking, a slave shall be believed, if put to the torture, for he is held to be interrogated in his own behalf, and not for or against his master.
8 Idem libro octavo decimo ad Plautium. Si filius in potestate patris esse neget, praetor cognoscit, ut prior doceat filius, quia et pro pietate quam patri debet praestare hoc statuendum est et quia se liberum esse quodammodo contendit: ideo enim et qui ad libertatem proclamat, prior docere iubetur.
8 The Same, On Plautius, Book XVIII. If a son under the control of his father denies the fact, the Prætor must direct the son to first prove his allegation, and this rule has been established on account of the affection which he ought to manifest for his father, and because the son practically alleges that he is free. Hence anyone who asserts his right to freedom is in the first place, ordered to prove it.
9 Celsus libro primo digestorum. Si pactum factum sit, in quo heredis mentio non fiat, quaeritur, an id actum sit, ut ipsius dumtaxat persona eo statueretur. sed quamvis verum est, quod qui excipit probare debeat quod excipitur, attamen de ipso dumtaxat ac non de herede eius quoque convenisse petitor, non qui excipit probare debet, quia plerumque tam heredibus nostris quam nobismet ipsis cavemus.
9 Celsus, Digest, Book I. Where an agreement is made in which there is no mention of an heir, the question arises whether this has been done in order that only the person of the party himself may be considered. But although it may be true that he who makes use of an exception must establish good ground for doing so; still, the plaintiff, and not he who pleaded the exception, must prove that the agreement merely had reference to himself, and did not include his heir, because in such cases, we generally provide for our heirs as well as for ourselves.
10 Marcellus libro tertio digestorum. Census et monumenta publica potiora testibus esse senatus censuit.
10 Marcellus, Digest, Book III. The Senate decreed that the registers of the Censor and the public records are better evidence than that of witnesses.
11 Celsus libro undecimo digestorum. Non est necesse pupillo probare fideiussores pro tutore datos, cum accipiebantur, idoneos non fuisse: nam probatio exigenda est ab his, quorum officii fuit providere, ut pupillo caveretur.
11 Celsus, Digest, Book XI. A ward is not compelled to prove that the sureties furnished by his guardian were not solvent when they were accepted, for proof of this must be required of those whose duty it was to watch over the ward, and provide security for him.
12 Idem libro septimo decimo digestorum. Quingenta testamento tibi legata sunt: idem scriptum est in codicillis postea scriptis: refert, duplicare legatum voluerit an repetere et oblitus se in testamento legasse id fecerit: ab utro ergo probatio eius rei exigenda est? prima fronte aequius videtur, ut petitor probet quod intendit: sed nimirum probationes quaedam a reo exiguntur: nam si creditum petam, ille respondeat solutam esse pecuniam, ipse hoc probare cogendus est. et hic igitur cum petitor duas scripturas ostendit, heres posteriorem inanem esse, ipse heres id adprobare iudici debet.
12 The Same, Digest, Book XVII. Fifty aurei were bequeathed to you by will, and the same legacy was included in codicils which were subsequently executed. It is important to ascertain whether the testator intended to double the legacy, or merely to repeatedly mention it, or did so, having forgotten that he had already made the bequest in his will. From which party then must proof of the intention of the testator be exacted? At first sight, it would appear more just that the plaintiff should prove what he claims, but there is no doubt that proof is sometimes required of the defendant; for if I bring suit for a claim and the defendant answers that the money has been paid, he himself is required to establish this. Therefore, in the present instance, if the plaintiff exhibits two instruments, and the heir alleges that the last one is void, the latter must prove this in court.
13 Idem libro trigesimo digestorum. Cum de aetate hominis quaereretur, Caesar noster in haec verba rescripsit: ‘Et durum et iniquum est, cum de statu aetatis alicuius quaereretur et diversae professiones proferuntur, ea potissimum stare, quae nocet: sed causa cognita veritatem excuti oportet et ex eo potissimum annos computari, ex quo praecipuam fidem in ea re constare credibilius videtur’.
13 The Same, Digest, Book XXX. Where an inquiry was made with reference to the age of a man, our Emperor issued the following Rescript: “It is both hard and unjust, when a question arises with reference to a party’s age, and different statements are made, that one should be accepted which is prejudicial; but in the trial of a case the truth should be considered, and his age should be computed according to the document which seems to be most credible, and to deserve the greatest confidence in the investigation of the matter.”
14 Ulpianus libro secundo de officio consulis. Circa eum, qui se ex libertinitate ingenuum dicat, referendum est, quis actoris partibus fungatur. et si quidem in possessionem libertinitatis fuit, sine dubio ipsum oportebit ingenuitatis causam agere docereque se ingenuum esse: sin vero in possessione ingenuitatis sit et libertinus esse dicatur, scilicet eius qui ei controversiam movet, hoc probare debet qui eum dicit libertum suum: quid enim interest, servum suum quis an libertum contendat? si quis autem fiducia ingenuitatis suae ultro in se suscipiat probationes ad hoc, ut sententiam ferat pro ingenuitate facientem, hoc est, ingenuum se esse ut pronuntietur, an obtemperare ei debeat, tractari potest. et non ab re esse opinor morem ei geri probandi se ingenuum et sententiam secundum se dandam, cum nulla captio intercedat iuris.
14 Ulpianus, On the Office of the Consul, Book II. Inquiries should be made with reference to a person who, having passed as a freedman, now alleges that he is freeborn and desires to proceed as plaintiff. If, indeed, he occupies the position of a freedman, there is no doubt that he must bring an action to have himself declared freeborn, and establish that this is the case. But if he enjoys the reputation of having been born free, and he is alleged to be a freedman (of course by him who is responsible for the controversy), he who says that he is his freedman must prove it. For what difference does it make whether anyone asserts that he is his slave or his freedman? Where, however, a party has sufficient confidence in his claim of freedom of birth as voluntarily to undertake to produce proofs of it for the purpose of obtaining a decision declaring him freeborn (that is to say that he was born free as he alleges), it may be asked whether he should be permitted to do so. I am of the opinion that this should be done, and that he should have an opportunity to prove that he is freeborn, and have a decision rendered in his favor, as no one can be taken at a disadvantage by such a judgment.
15 Modestinus libro duodecimo responsorum. Quidam quasi ex Seia susceptus a Gaio Seio, cum Gaius fratres haberet, hereditatem Gaii invasit et fratribus eiusdem quasi ex mandatu defuncti fideicommissa solvit, cautionem accepit: qui postea cognito, quod filius fratris eorum non fuisset, quaerebant, an cum eo de hereditate fratris possint, propter emissam manum ab eis quasi filio, agere. Modestinus respondit cautione exsoluti fideicommissi statum eius, qui probari potest a fratribus defuncti filius mortui non esse, minime confirmatum esse: sed hoc ipsum a fratribus probari debet.
15 Modestinus, Opinions, Book XII. A certain man, asserting that he was the son of Seia and Gaius, seized the estate of Gaius, although the latter had brothers, and discharged certain trusts in favor of these brothers, as if by the direction of the deceased, and took a receipt. They, having afterwards ascertained that the alleged son was not their brother, asked whether they could bring an action against him to recover the estate, on account of the receipt which they had given him as the son of the deceased. Modestinus answered that the position of the party to whom the receipt had been given in discharge of the trust, and who could be proved by the brothers of the deceased not to be his son, was not in the slightest degree established by this fact, but that proof must be submitted by the brothers.
16 Terentius Clemens libro tertio ad legem Iuliam et Papiam. Etiam matris professio filiorum recipitur: sed et avi recipienda est.
16 Terentius Clemens, On the Lex Julia et Papia, Book III. The statement of a mother as to the birth of her children, as well as that of a grandfather, must be accepted.
17 Celsus libro sexto digestorum. Cum de lege Falcidia quaeritur, heredis probatio est locum habere legem Falcidiam: quod dum probare non potest, merito condemnabitur.
17 Celsus, Digest, Book VI. When a question is raised with reference to the Lex Falcidia, the heir must prove that this law is applicable, because if he cannot do so, judgment will properly be rendered against him.
18 Ulpianus libro sexto disputationum. Quotiens operae quasi a liberto petuntur, probationes ab eo qui se patronum dicit exiguntur: et ideo Iulianus scripsit, licet in praeiudicio possessor patronus esse videtur, verum partibus actoris non libertum fungi debere, sed eum qui se patronum esse contendit. 1Qui dolo dicit factum aliquid, licet in exceptione, docere dolum admissum debet. 2Interrogationis factae probationem actori imponi debere, id est ei, qui in iure interrogatum dixit respondisse se solum heredem esse. vel si tacuisse dicatur interrogatus, aeque tantundem erit dicendum impositam inprobationem non ei qui excepit se non respondisse, sed actori.
18 Ulpianus, Disputations, Book VI. Whenever services are demanded of a freedman, proof of his right to do so is required from the party who alleges that he is his patron; therefore Julianus holds that, although in a matter which is in controversy the patron is held to be entitled to possession, he who is said to be the freedman should not take the part of plaintiff, but he who asserts that he is the patron should do so. 1Where anyone alleges that some fraudulent act has been committed, he must prove the fraud, even though he may have made this statement in an exception. 2The plaintiff should be compelled to prove the truth of an interrogatory which is made, that is, where it is alleged that a party who was interrogated in court answered that he was the sole heir; or if, having been interrogated, he is said to have remained silent, the same rule must be held to apply; and the blame must be placed not upon him who stated in his exception that he did not answer, but upon the plaintiff.
19 Idem libro septimo disputationum. In exceptionibus dicendum est reum partibus actoris fungi oportere ipsumque exceptionem velut intentionem implere: ut puta si pacti conventi exceptione utatur, docere debet pactum conventum factum esse. 1Cum quis promisisset iudicio se sisti et rei publicae causa afuisse dicat et ob id non stetisse, vel dolo malo adversarii factum quo minus sisteretur, vel valetudinem sibi impedimento fuisse vel tempestatem, probare eum id oportet. 2Sed et si procuratoria quis exceptione utatur, eo quod non licuisset adversario dare vel fieri procuratorem, probare id oportet obicientem exceptionem. 3Idem erit dicendum et si ea pecunia petatur, quae pensata dicitur. 4Hoc amplius, si iudicatae rei vel iurisiurandi condicio delata dicatur de eo quod nunc petitur, sive in alea gestum esse contendatur, eum implere probationes oportet.
19 The Same, Disputations, Book VII. It must be said, with reference to exceptions, that the defendant is required to perform the part of plaintiff, and he himself prove his exception, just as the plaintiff must prove his claim; for instance, where he pleads an exception on the ground of a contract entered into, he must show that the contract was actually made. 1Where anyone who promised to appear in court alleges as a reason for not doing so that he has been absent on public business, or that some malicious act of his adversary prevented him from appearing, or his health, or a storm hindered him, he must prove it. 2Where a party makes use of an exception on the ground that the appointment of the attorney of his adversary is not valid, because his adversary could not appoint, or be appointed an attorney, he must prove the truth of the exception which he has interposed. 3The same rule will apply where suit is brought for a sum of money which is alleged to have been paid. 4Again, where an exception is pleaded on the ground of a decision rendered; or because an oath is said to have been tendered with reference to the property for which suit now is brought, or because the matter in controversy has reference to a game of chance, the party who filed the exception must prove all these allegations.
20 Iulianus libro quadragesimo tertio digestorum. Si quis liberum hominem vi rapuerit, in vinculis habuerit, is indignissime commodum possessoris consequeretur, quia probari non poterit hominem eo tempore quo primum lis ordinaretur in libertate fuisse.
20 Julianus, Digest, Book XLIII. Where anyone seizes a freeman by force, and keeps him in chains, he is most unworthy of the advantages enjoyed by a possessor, because it cannot be proved that, at the time that proceedings were first instituted, the man was free.
21 Marcianus libro sexto institutionum. Verius esse existimo ipsum qui agit, id est legatarium, probare oportere scisse alienam rem vel obligatam legare defunctum, non heredem probare oportere ignorasse alienam vel obligatam, quia semper necessitas probandi incumbit illi qui agit.
21 Marcianus, Institutes, Book VI. I think that the better opinion is that he who brings the action, that is to say the legatee, must prove that the testator knew that the property bequeathed belonged, or was encumbered to another, and that the heir is not required to prove that it belonged to someone else, or was encumbered, because the necessity of proving his allegations always rests upon the plaintiff.
22 Ulpianus libro primo responsorum. Eum, qui voluntatem mutatam dicit, probare hoc debere.
22 Ulpianus, Opinions, Book I. He who says that he has changed his mind must prove it.
23 Marcianus libro singulari ad formulam hypothecariam. Ante omnia probandum est, quod inter agentem et debitorem convenit, ut pignori hypothecaeve sit: sed et si hoc probet actor, illud quoque implere debet rem pertinere ad debitorem eo tempore quo convenit de pignore, aut cuius voluntate hypotheca data sit.
23 Marcianus, On the Hypothecary Formula. It must be proved, before everything else, that it was agreed between the plaintiff and the debtor, that the property should be pledged or hypothecated. After the plaintiff has proved this, he must also establish the fact that the property belonged to the debtor at the time the pledge was agreed upon, or that the hypothecation was made with his consent.
24 Modestinus libro quarto regularum. Si chirographum cancellatum fuerit, licet praesumptione debitor liberatus esse videtur, in eam tamen quantitatem, quam manifestis probationibus creditor sibi adhuc deberi ostenderit, recte debitor convenitur.
24 Modestinus, Rules, Book IV. Where a promissory note has been cancelled, although the presumption is that the debtor has been released, still, he can lawfully be sued for the amount which the creditor can show by manifest evidence is still due to him.
25 Paulus libro tertio quaestionum. Cum de indebito quaeritur, quis probare debet non fuisse debitum? res ita temperanda est, ut, si quidem is, qui accepisse dicitur rem vel pecuniam indebitam, hoc negaverit et ipse qui dedit legitimis probationibus solutionem adprobaverit, sine ulla distinctione ipsum, qui negavit sese pecuniam accepisse, si vult audiri, compellendum esse ad probationes praestandas, quod pecuniam debitam accepit: per etenim absurdum est eum, qui ab initio negavit pecuniam suscepisse, postquam fuerit convictus eam accepisse, probationem non debiti ab adversario exigere. sin vero ab initio confiteatur quidem suscepisse pecunias, dicat autem non indebitas ei fuisse solutas, praesumptionem videlicet pro eo esse qui accepit nemo dubitat: qui enim solvit numquam ita resupinus est, ut facile suas pecunias iactet et indebitas effundat, et maxime si ipse qui indebitas dedisse dicit homo diligens est et studiosus pater familias, cuius personam incredibile est in aliquo facile errasse. et ideo eum, qui dicit indebitas solvisse, compelli ad probationes, quod per dolum accipientis vel aliquam iustam ignorantiae causam indebitum ab eo solutum, et nisi hoc ostenderit, nullam eum repetitionem habere. 1Sin autem is qui indebitum queritur vel pupillus vel minor sit vel mulier vel forte vir quidem perfectae aetatis, sed miles vel agri cultor et forensium rerum expers vel alias simplicitate gaudens et desidia deditus: tunc eum qui accepit pecunias ostendere bene eas accepisse et debitas ei fuisse solutas et, si non ostenderit, eas redhibere. 2Sed haec ita, si totam summam indebitam fuisse solutam is qui dedit contendat. sin autem pro parte queritur, quod pars pecuniae solutae debita non est, vel quod ab initio quidem debitum fuit, sed vel dissoluto debito postea ignarus iterum solvit vel exceptione tutus errore eius pecunias dependit: ipsum omnimodo hoc ostendere, quod vel plus debito persolvit vel iam solutam pecuniam per errorem repetita solutione dependit vel tutus exceptione suam nesciens proiecit pecuniam, secundum generalem regulam, quae eos, qui opponendas esse exceptiones adfirmant vel solvisse debita contendunt, haec ostendere exigit. 3In omnibus autem visionibus quas praeposuimus licentia concedenda est ei, cui onus probationis incumbit, adversario suo rei veritate iusiurandum ferre, prius ipso pro calumnia iurante, ut iudex iuramenti fidem secutus ita suam sententiam possit formare, iure referendae religionis ei servando. 4Sed haec, ubi de solutione indebiti quaestio est. sin autem cautio indebite exposita esse dicatur et indiscrete loquitur, tunc eum, in quem cautio exposita est, compelli debitum esse ostendere, quod in cautionem deduxit, nisi ipse specialiter qui cautionem exposuit causas explanavit, pro quibus eandem conscripsit: tunc enim stare eum oportet suae confessioni, nisi evidentissimis probationibus in scriptis habitis ostendere paratus sit sese haec indebite promississe.
25 Paulus, Questions, Book III. Where a question arises with reference to money which is not due, who must prove this? The matter should be adjusted so that if he who is said to have received the property denies that the money is not owing, and he who paid it proves its payment by competent evidence, then he who denies absolutely that he received the money, if he wishes to be heard, must be compelled to furnish proof that the money was lawfully due to him; for it would be absurd if he who, in the beginning, denied that he had received the money, and afterwards was shown to have received it, should require proof from his adversary that it was not owing to him. If, however, in the first place, the plaintiff should acknowledge that he had received the money, but should assert that it was due to him, the presumption undoubtedly will lie in favor of the party who received it, for he who pays is never so negligent as to throw away his money without hesitation, and pay it when it is not due; and especially is this the case where the party who alleges that he paid what was not due is the diligent and careful head of a household, for it is incredible that a person of this kind should be so easily deceived. Therefore he who alleges that he has paid money which was not due will be required to produce evidence that the said money was paid through the fraud of the party who received it, or on account of some just cause of ignorance, and unless he shows this he will have no right to recover it. 1Where, however, he who complains of the payment of money which was not due is a ward, a minor, or a woman, or, indeed, a man of full age but a soldier, or a cultivator of the soil and inexperienced in public business, or fond of a simple life and given to idleness; then he who receives the money must show that he actually did so, and that it was due and payable to him, and if he fails to do this he must refund it. 2This only applies where the party who paid the money contends that the entire sum was not due. Where, however, he complains of the payment of only a portion, on the ground that only a part of the money paid was not due; or that it was due in the beginning, but the debt was afterwards discharged, and he ignorantly paid it a second time; or that, being protected by an exception, he paid the money through mistake; he, himself, must, by all means, establish that he either paid more than was due, or that he paid money a second time through mistake, or that, being protected by an exception, he ignorantly paid the money; in accordance with the general rule which requires those to furnish proof who state that they have exceptions to offer, or who allege that they have paid the debt. 3In all the instances which we have suggested, permission should be granted to him upon whom rests the burden of proof to tender the oath to his adversary, with reference to the truth of the matter, before tendering him the oath pro calumnia; so that the judge may regulate his decision according to the confidence which he has in the oath of the plaintiff, the right to the defendant to tender the oath back to his adversary being reserved. 4This point relates to the payment of money which is not due. Where, however, a written promise to pay is said to have been made for money which is not due, and the terms of the instrument are indefinite, then the party in whose favor the note was executed will be compelled to prove that the sum mentioned in it is due to him, unless he who made the note has explicitly stated his reasons for doing so; for then he must abide by his admission, unless he is ready to show by conclusive documentary evidence that he made the promise to pay money which he did not owe.
26 Papinianus libro vicesimo quaestionum. Procula magnae quantitatis fideicommissum a fratre sibi debitum post mortem eius in ratione cum heredibus compensare vellet, ex diverso autem allegaretur numquam id a fratre quamdiu vixit desideratum, cum variis ex causis saepe rationi fratris pecunias ratio Proculae solvisset: divus Commodus cum super eo negotio cognosceret, non admisit compensationem, quasi tacite fratri fideicommissum fuisset remissum.
26 Papinianus, Questions, Book XX. Procula, to whom a large sum of money was due from her brother under the terms of a trust, wished to set off this sum proportionately against his heirs after his death; and in opposition to this it was alleged that she had never demanded the money of her brother during his lifetime, but that she herself had paid him certain sums of money for various reasons growing out of accounts which they had with one another. The Divine Commodus, in deciding the case, did not admit the set-off, but held that she had tacitly released her brother from the execution of the trust.
27 Scaevola libro trigesimo tertio digestorum. Qui testamentum faciebat ei qui usque ad certum modum capere potuerat legavit licitam quantitatem, deinde ita locutus est: ‘Titio centum do lego, quae mihi pertulit: quae ideo ei non cavi, quod omnem fortunam et substantiam, si quam a matre susceperat in sinu meo habui sine ulla cautione. item eidem Titio reddi et solvi volo de substantia mea centum quinquaginta, quae ego ex reditibus praediorum eius (quorum ipse fructum percepi et distraxi), item de calendario (si qua a matre receperat Titius) in rem meam converti’. quaero, an Titius ea exigere potest. respondit, si Titius supra scripta ex ratione sua ad testatorem pervenisse probare potuerit, exigi: videtur enim eo, quod ille plus capere non poterat, in fraudem legis haec in testamento adiecisse.
27 Scævola, Digest, Book XXXIII. A man made a will, and bequeathed a lawful share of his estate to one who was only entitled to receive a certain amount, and he then provided as follows: “I give and bequeath one hundred aurei to Titius, which he has placed in my hands, but of which I have not given him any written evidence, because I have held all the fortune and property which he received from his mother in my possession without any note. Moreover, I desire that there should be delivered and paid to Titius a hundred and fifty aurei out of my estate, which I have received as the rent of land, being the proceeds of crops harvested and sold, as well as any sums shown on my books to have been received by Titius from his mother, and which I have appropriated to my own use.” I ask whether Titius can collect this money. The answer was that if Titius can prove that the property had come into the hands of the testator in accordance with the above-mentioned statement, he can do so; for it is held that in a case where a party is not entitled to receive more than a certain amount by a legacy, such provisions are added to a will in violation of law.
28 Labeo libro septimo pithanon a Paulo epitomatorum. Si arbiter animadvertere debeat, an operis facti memoria exstet, hoc ei quaerendum est, an aliquis meminerit id opus factum esse. Paulus: immo cum in arbitrio quaeritur, memoria facti operis exstet nec ne, non hoc quaeritur, num aliquis meminerit, quo die aut quo consule factum sit, sed num hoc aliquo modo probari possit, quando id opus factum sit: et hoc ita, quod Graece dici solet ἐν πλάτει. enim potest hoc memoria non teneri: intra annum puta factum, cum interim nemo sit eorum, qui meminerit, quibus consulibus id viderit, sed cum omnium haec est opinio nec audisse nec vidisse, cum id opus fieret, neque ex eis audisse, qui vidissent aut audissent: et hoc infinite similiter susum versum accidet, cum memoria operis facti non exstaret.
28 Labeo, Epitomes of Probabilities, by Paulus, Book VII. Where it is the duty of an arbiter to decide a case, should he inquire whether a memorandum of the labor performed exists, or whether anyone remembers that the labor has been performed? Paulus says that when inquiry is made in a case of arbitration, as to whether a memorandum of the labor performed is in existence or not, it ought not to be asked whether anyone remembers the time, or under what consul the work was done, but whether it can be proved in any way whatsoever when it was done. And this should be accomplished, as the Greeks are accustomed to state, in a general way, for it cannot be retained in the memory that the work has been done; for example, within a certain year, since, in the meantime, no one will probably remember under what consuls it was performed. But where the opinion of all persons is that they did not hear of the work being done, or see it, or learn of it from any who might have seen it, or heard of it, and, no matter how far back one may go, no memorandum of the work performed can be found; this will be sufficient.
29 Scaevola libro nono digestorum. Imperatores Antoninus et Verus Augusti Claudio [ed. maior Apolinari] <ed. minor Apollinari> rescripserunt in haec verba: ‘Probationes quae de filiis dantur, non in sola adfirmatione testium consistunt, sed et epistulas, quae uxoribus missae allegarentur, si de fide earum constet, nonnullam vicem instrumentorum optinere decretum est’. 1Mulier gravida repudiata, filium enixa, absente marito ut spurium in actis professa est. quaesitum est an is in potestate patris sit et matre intestata mortua iussu eius hereditatem matris adire possit nec obsit professio a matre irata facta. respondit veritati locum superfore.
29 Scævola, Digest, Book IX. The Emperors Antoninus and Verus stated in a Rescript to Claudius Apollinaris the following, namely: “It is decreed that proofs given with reference to children shall not consist of the mere statements of witnesses, but also of letters which are alleged to have been sent to wives, if their authenticity is established, and they can be introduced as documentary evidence.” 1A wife, who had been repudiated while pregnant, brought forth a son during the absence of her husband; and, in the course of the proceedings instituted in consequence, confessed that the child was illegitimate. The inquiry arose whether the son was under the control of his father, and if when his mother died intestate, he could enter upon her estate by order of his father, or whether the confession made by his angry mother would prejudice his rights. The answer was that, in cases of this kind an opportunity always existed for ascertaining the truth.