De re iudicata et de effectu sententiarum et de interlocutionibus
(Concerning res judicata and the effect of decisions, and interlocutory decrees.)
1 Modestinus libro septimo pandectarum. Res iudicata dicitur, quae finem controversiarum pronuntiatione iudicis accipit: quod vel condemnatione vel absolutione contingit.
1 Modestinus, Pandects, Book VII. By res judicata, is meant the termination of a controversy by the judgment of a court. This is accomplished either by an adverse decision, or by discharge from liability.
2 Ulpianus libro sexto ad edictum. Qui pro tribunali cognoscit, non semper tempus iudicati servat, sed nonnumquam artat, nonnumquam prorogat pro causae qualitate et quantitate vel personarum obsequio vel contumacia. sed perraro intra statutum tempus sententiae exsequentur, veluti si alimenta constituantur vel minori viginti quinque annis subvenitur.
2 Ulpianus, On the Edict, Book VI. The magistrate having jurisdiction of a suit does not always observe the time prescribed by law, for sometimes he shortens, and sometimes he extends it, dependent upon the nature of the case, the amount of property in dispute, or the obedience or obstinacy of the parties; but rarely is the judgment executed within the time fixed by law, as, for example, where the question of support is to be determined, or relief is to be granted to a minor of twenty-five years of age.
3 Paulus libro septimo decimo ad edictum. Qui damnare potest, is absolvendi quoque potestatem habet.
3 Paulus, On the Edict, Book XVII. He who has power to condemn has also power to discharge from liability.
4 Ulpianus libro quinquagensimo octavo ad edictum. Si se non optulit procurator, iudicati actio in eum denegabitur et in dominum dabitur: si se optulit, in ipsum dabitur. optulisse autem se liti videtur non is, qui in rem suam procurator datus sit: nam hic alia ratione recusare iudicati actionem non potest, quia hic non in alienam, sed in suam rem procurator factus est. 1Tutor quoque vel curator in ea condicione sunt, ut non debeant videri se liti optulisse, idcircoque debet denegari in eos iudicati actio. 2Actor municipum potest rem iudicatam recusare: in municipes enim iudicati actio dabitur. 3Ait praetor: ‘condemnatus ut pecuniam solvat’. a iudicato ergo hoc exigitur, ut pecuniam solvat. quid ergo, si solvere quidem paratus non sit, satisfacere autem paratus sit, quid dicimus? et ait Labeo debuisse hoc quoque adici ‘neque eo nomine satisfaciat’: fieri enim posse, ut idoneum expromissorem habeat. sed ratio pecuniae exigendae haec fuit, quod noluerit praetor obligationes ex obligationibus fieri: idcirco ait ‘ut pecunia solvatur’. ex magna tamen et idoneo causa accedendum erit ad Labeonis sententiam. 4Si ex conventione litigantium cautum sit post rem iudicatam ei, cui quis condemnatus est, eveniet, ut hic et retendatur, si modo novatio intercessit: ceterum si non novandi causa id factum est, manebit ordo exsecutionis. sed et si pignora accepta sint vel fideiussores in rem iudicatam, consequens erit dicere non cessare exsecutionem, quippe cum accesserit aliquid rei iudicatae, non sit a re iudicata recessum. idem observandum est in eo, cuius procurator condemnatus est. 5Si quis condemnatus sit, ut intra certos dies solvat, unde ei tempus iudicati actionis computamus, utrum ex quo sententia prolata est an vero ex eo, ex quo dies statutus praeteriit? sed si quidem minorem diem statuerit iudex tempore legitimo, repletur ex lege, quod sententiae iudicis deest: sin autem ampliorem numerum dierum sua definitione iudex amplexus est, computabitur reo et legitimum tempus et quod supra id iudex praestitit. 6Condemnatum accipere debemus eum, qui rite condemnatus est, ut sententia valeat: ceterum si aliqua ratione sententia nullius momenti sit, dicendum est condemnationis verbum non tenere. 7Solvisse accipere debemus non tantum eum, qui solvit, verum omnem omnino, qui ea obligatione liberatus est, quae ex causa iudicati descendit. 8Celsus scribit, si noxali condemnatus eum servum, in quo usus fructus alienus est, noxae dedisti, posse tecum adhuc agi iudicati: sed si usus fructus interierit, liberari ait.
4 Ulpianus, On the Edict, Book LVIII. If an agent does not appear, an action to enforce judgment against him will be refused, and will be granted against his principal; but if he does appear, it will be granted against him. In this instance, however, he is not held to have appeared in court who has been appointed agent in a case in which he is interested; for there is another reason why he cannot refuse to plead in an action to enforce judgment, and that is because he has become an agent in his own behalf, and not in that of another. 1A guardian and a curator are in such a position that they are not considered to have appeared in court, and therefore, an action to enforce judgment should not be granted against them. 2The agent of a municipality can avoid execution in a case where judgment has been rendered, for an action to enforce judgment should be granted against the citizens. 3The Prætor says: “I will grant an action to compel the party against whom a decision has been rendered to pay the money.” Hence the party who has lost his case is required to make payment. But what should be done, and what shall we say, if he is not prepared to make payment, but is ready to satisfy the claim in some other way? Labeo says that it should be added, “If the party who had lost his case should not satisfy the claim,” for it may happen that he has a solvent person to offer in his stead. The reason, however, for requiring payment is that the Prætor was unwilling that a new obligation should be created out of the former one; and therefore he provides that the money shall be paid. The opinion of Labeo should be adopted for good and sufficient reasons. 4If, after the decision and by agreement of the litigants, security is furnished by the party who lost his case, the rule will be relaxed with reference to him if a new contract is made; but if this is not done for the purpose of entering into a new contract, the order of execution will stand. If, however, pledges are accepted, or securities are furnished to provide for the execution of the judgment, the result will be that we must hold that the execution will remain just as if something had been added to the decision in the case, and nothing had been withdrawn from it. The same rule should be gbserved in the case of a party whose agent had judgment rendered against him. 5When a decision is rendered against anyone requiring him to make payment within a certain time, from what date must we compute the time for the action to enforce judgment? Shall we do so from the day when the decision was rendered, or from the day when the time prescribed in cases of this kind has elapsed? If the judge fixed a shorter time than that prescribed by law, what is lacking through his decision must be supplied by the law. If, however, the judge, in fixing the period, included a greater number of days than those legally allowed, the unsuccessful party will be granted not only the time prescribed by law, but also that which the judge granted in.addition. 6We must understand a person who has been condemned to be one who has had a judgment legally rendered against him in such a way that it will stand. If, however, for any reason, the judgment should prove to be of no effect, it must be said that the term “condemnation” will not be applicable. 7We should understand a discharge from liability to mean not only that the party pays the claim, but that he is entirely released from the obligation upon which the judgment was founded. 8Celsus says that if you had a decision rendered against you in a noxal action, and by way of reparation you gave up a slave in whom another had the usufruct, you will still be liable to the action to enforce judgment; but if the usufruct should be extinguished, he states that you will be released.
5 Ulpianus libro quinquagensimo nono ad edictum. Ait praetor: ‘cuius de ea re iurisdictio est’. melius scripsisset: ‘cuius de ea re notio est’: etenim notionis nomen etiam ad eos pertineret, qui iurisdictionem non habent, sed habent de quavis alia causa notionem. 1Si iudex aliquem sic condemnet, ut, quod habet ex testamento vel codicillis Maevii, restitueret Titio, sic accipiendum est, quasi quantitatem nominavit, quae testamento vel codicillis relicta est. sed et si fideicommissum sine scriptura pronuntiatum, idem erit probandum.
5 The Same, On the Edict, Book LIX. The Prætor says, “The decision with reference to the property was rendered by the magistrate having jurisdiction.” It would be better if he had said, “By him who had cognizance of the matter,” for the word “cognizance” also has reference to judges who have no jurisdiction of these questions, but who have the right to examine certain other cases. 1If a judge should decide against anyone as follows, “Let So-and-So deliver to Titius what he has received under the will or codicil of Mævius,” we must understand this to mean the same as if he had expressly mentioned the amount which had been left by the will or the codicil. The same rule will apply if he had decided that a verbal trust should be executed.
6 Idem libro sexagensimo sexto ad edictum. Miles, qui sub armata militia stipendia meruit, condemnatus eatenus, qua facere potest, cogitur solvere. 1Decem aut noxae dedere condemnatus iudicati in decem tenetur: facultatem enim noxae dedendae ex lege accipit. at is, qui stipulatus est decem aut noxae dedere, non potest decem petere, quia in stipulatione singula per se veniunt ea, quae singula separatim stipulari possumus: at iudicium solius noxae deditionis nullum est, sed pecuniariam condemnationem sequitur. et ideo iudicati decem agitur, his enim solis condemnatur: noxae deditio in solutione est, quae e lege tribuitur. 2Qui iudicati bona auctoritate sua distraxit, furti actione et vi bonorum raptorum ei tenetur. 3Iudicati actio perpetua est et rei persecutionem continet: item heredi et in heredem competit.
6 The Same, On the Edict, Book LXVI. Where a decision is rendered against a soldier, who has completed his term of military service, he is only compelled to pay what his resources will permit. 1Where a party to a suit has been condemned to pay ten aurei, or to surrender the cause of the damage by way of reparation, he will be compelled, by the action to enforce judgment, to pay the sum of ten aurei, because he obtains from the law the power of surrendering the animal which caused the damage. He, however, who stipulated for either the payment of ten aurei or the surrender of the animal, or slave, by way of reparation, cannot claim the ten aurei, because each of these things is included in the agreement and we were able to stipulate for them separately. A decision calling for the surrender of the slave or animal by way of reparation will be void, but it follows a judgment requiring the payment of the money, and therefore proceedings to collect the ten aurei should be instituted under the judgment, for it has reference to them alone, and the surrender of the animal or the slave by way of reparation is granted by the law. 2He who, by his own authority, sells the property of anyone whom, he has defeated in a lawsuit, will be liable to an action of theft, as well as one of robbery with violence. 3The action to enforce the execution of a judgment is a perpetual one, includes the pursuit of the property, and lies both for and against an heir.
7 Gaius libro ... ad edictum praetoris urbani titulo de re iudicata. Intra dies constitutos, quamvis iudicati agi non possit, multis tamen modis iudicatum liberari posse hodie non dubitatur, quia constitutorum dierum spatium pro iudicato, non contra iudicatum per legem constitutum est.
7 Gaius, On the Edict of the Urban Prætor, Title: On Res Judicata. There is, at present, no doubt that he against whom judgment has been rendered can be released in many ways within the time prescribed for execution; although, during that time, proceedings in execution can not be instituted against him, because, where a case has been decided, the time fixed by law has been established in favor of the party who lost his case, and not against him.
8 Paulus libro quinto ad Plautium. Si homo ex stipulatu petitus post litem contestatam decesserit, absolutionem non faciendam et fructuum rationem habendam placet.
8 Paulus, On Plautius, Book V. If a slave who is claimed under the terms of a stipulation dies after issue has been joined in a case, the defendant will not be released from liability, and it has been decided that he must render an account of the profits.
9 Pomponius libro quinto ex Plautio. Furioso sententia a iudice vel ab arbitro dici non potest.
9 Pomponius, On Plautius, Book V. Judgment cannot be rendered by a magistrate or an arbiter against a person who is insane.
10 Marcellus libro secundo digestorum. Qui, cum se pro patre familias fingeret, mutuam pecuniam accepit et exheres a patre vel emancipatus sit, quamvis facere non possit, debet condemnari.
10 Marcellus, Digest, Book II. A man who falsely represents himself to be the head of a household, who borrows money, and who has been disinherited by his father, should have judgment rendered against him, even though he cannot make payment.
11 Celsus libro quinto digestorum. Si kalendis fieri aliquid stipulatus sum, nempe quandocumque post kalendas accepto iudicio tanti tamen aestimanda lis est, quanti interfuit mea kalendis id fieri: ex eo enim tempore quidque aestimatur, quod novissime solvi poterit.
11 Celsus, Digest, Book V. If I have stipulated for something to be done on the Kalends of a certain month, and judgment has been rendered some time after the Kalends of that month, the amount of damages must be estimated in proportion to my interest in having the work done on the date above mentioned; for if the estimate is made from that time, I would have no further interest than in what could be paid later.
12 Marcellus libro quarto digestorum. In depositi vel commodati iudicio, quamquam dolo adversarii res absit, condemnato succurri solet, ut ei actionibus suis dominus cedat.
12 Marcellus, Digest, Book IV. In decisions having reference to deposits or loans for use, although the property may have been lost through the fraud of the defendant, it is customary to grant him relief by compelling the owner to transfer to him his rights of action.
13 Celsus libro sexto digestorum. Si quis ab alio decem, ab alio satisdari stipulatus est, aestimandum erit, quantum stipulatoris intersit satisdari, idque aut tantundem erit aut minus aut interdum etiam nihil: neque enim vani timoris ulla aestimatio est. verum sorte soluta nullum iam pretium aestimationis est, aut quantum ex sorte fuerit solutum, tantundem ex aestimatione decedet. 1Si quis promiserit prohibere se, ut aliquid damnum stipulator patiatur, et faciat ne quod ex ea re damnum ita habeatur, facit quod promisit: si minus, quia non facit quod promisit, in pecuniam numeratam condemnatur, sicut evenit in omnibus faciendi obligationibus.
13 Celsus, Digest, Book VI. Where anyone stipulated for ten aurei to be paid by one person and security to be given by another, the amount of damages should be estimated in proportion to the interest of the stipulator in having security furnished him. This interest can amount to as much as what is due, or to less, or sometimes even to nothing; for no estimate can be made of groundless fear. If, however, the debt should be paid, there will be no remaining interest to be estimated, and if a certain amount of it has been paid, the value of the interest will decrease in proportion. 1When anyone promises that he will prevent the stipulator from sustaining any loss, and he does so, and the stipulator does not suffer any damage, he is considered to have done what he agreed to. If he fails to do this, judgment will be rendered against him for a certain sum of money, for the reason that he did not do what he promised, as happens in all kinds of obligations which relate to the performance of certain acts.
14 Idem libro vicensimo quinto digestorum. Quod iussit vetuitve praetor, contrario imperio tollere et remittere licet: de sententiis contra.
14 The Same, Digest, Book XXV. Whatever the Prætor ordered or forbade to be done he can annul by a contrary decision, or renew; but this does not apply to final decrees.
15 Ulpianus libro tertio de officio consulis. A divo Pio rescriptum est magistratibus populi Romani, ut iudicum a se datorum vel arbitrorum sententiam exsequantur hi qui eos dederunt. 1Sententiam Romae dictam etiam in provinciis posse praesides, si hoc iussi fuerint, ad finem persequi imperator noster cum patre rescripsit. 2In venditione itaque pignorum captorum facienda primo quidem res mobiles et animales pignori capi iubent, mox distrahi: quarum pretium si suffecerit, bene est, si non suffecerit, etiam soli pignora capi iubent et distrahi. quod si nulla moventia sint, a pignoribus soli initium faciunt: sic denique interloqui solent, si moventia non sint, ut soli quoque capiantur: nam a pignoribus soli initium faciendum non est. quod si nec quae soli sunt sufficiant vel nulla sint soli pignora, tunc pervenietur etiam ad iura. exsequuntur itaque rem iudicatam praesides isto modo. 3Si pignora, quae capta sunt, emptorem non inveniant, rescriptum est ab imperatore nostro et divo patre eius, ut addicantur ipsi, cui quis condemnatus est, addicantur autem utique ea quantitate quae debetur. nam si creditor maluerit pignora in creditum possidere isque esse contentus, rescriptum est non posse eum quod amplius sibi debetur petere, quia velut pacto transegisse de credito videtur, qui contentus fuit pignora possidere, nec posse eum in quantitatem certam pignora tenere et superfluum petere. 4Si rerum, quae pignoris iure captae sunt, controversia fiat, constitutum est ab imperatore nostro ipsos, qui rem iudicatam exsequuntur, cognoscere debere de proprietate: et si cognoverint eius fuisse qui condemnatus est, rem iudicatam exsequentur. sed sciendum est summatim eos cognoscere debere nec sententiam eorum posse debitori praeiudicare, si forte hi dimittendam eam rem putaverint, quasi eius sit, qui controversiam movit, non eius, cuius nomine capta est: nec eum, cui restituta est, statim habere per sententiam debere, si forte iure ordinario coeperit ab eo res peti. sic evenit, ut omnibus integris tantum capioni res iudicata proficiat. sed illud debet dici, ubi controversia est de pignore, id dimitti debere et capi aliud, si quod est sine controversia. 5Quod si res sit pignerata, quae pignori capta est, videndum est, an sic distrahi possit, ut dimisso creditore superfluum in causam iudicati convertatur. et quamquam non cogatur creditor rem, quam pignori accepit, distrahere: tamen in iudicati exsecutione servatur, ut, si emptorem invenerit res quae capta est, qui dimisso priore creditore superfluum solvere sit paratus, admittenda sit huius quoque rei distractio. nec videtur deterior condicio creditoris fieri suum consecuturi nec prius ius pignoris dimissuri, quam si ei fuerit satisfactum. 6Si post addictum pignus aliqua controversia emptori moveatur, an sit cognitio eiusdem iudicis, qui sententiam exsecutus fuerit, videndum est. et cum semel emptio perfecta sit eiusque qui comparavit periculum vertatur, non puto locum esse cognitioni: certe posteaquam inductus est emptor in possessionem, nonne cessabunt partes eorundem iudicum? idemque et si ipsi, cui quis iudicatus est, res fuerit addicta. 7Sed si emptor, cui pignora sunt addicta exsequente iudice, pretium non solvat, utrum adversus emptorem porrigere manus debeant idem iudices, qui sententiam exsequuntur, videndum est. et non puto eos ultra procedere: ceterum longe res abibit. quid enim dicemus? condemnabunt emptorem et sic exsequentur adversus eum sententiam, an statim pro iudicato habebunt? et quid si neget se emisse aut exsolvisse contendat? melius igitur erit, si non se interponant, maxime cum nec habeat actionem adversus eum is, cui iudicatum fieri desideratur. nec iniuria adficietur: oportet enim res captas pignori et distractas praesenti pecunia distrahi, non sic, ut post tempus pecunia solvatur. certe si se interponant, hactenus debebunt intervenire, ut ipsam rem addictam capiant et distrahant, quasi nondum vinculo pignoris liberatam. 8Sic quoque iudices exsequentur iudicatum, ut nomina iure pignoris capiant, si nihil aliud sit quod capi possit: posse enim nomen iure pignoris capi imperator noster rescripsit. 9Sed utrum confessum nomen tantum capi possit an etiam si neget quis se debere, videamus. et magis est, ut id dumtaxat capiatur, quod confitetur: ceterum si negetur, aequissimum erit discedi a nomine, nisi forte quis exemplum secutus corporalium pignerum ultra processerit dixeritque ipsos debere iudices de nomine cognoscere, ut cognoscunt de proprietate: sed contra rescriptum est. 10Item quid dicemus? utrum ipsi iudices convenient nomen exigentque id quod debetur et in causam iudicati convertent, an vero vendent nomen, ut pignora corporalia solent? et necesse est, ut quod eis facilius videatur ad rem exsequendam, hoc faciant. 11Sed et si pecunia penes argentarios sit, aeque capi solet. hoc amplius et si penes alium quem, destinata tamen ei, qui condemnatus est, solet pignoris iure capi et converti in causam iudicati. 12Praeterea pecuniam quoque depositam nomine condemnati vel in arcam reclusam solent capere, ut iudicato satisfiat. hoc amplius et si pupillaris pecunia in arcam reposita sit ad praediorum comparationem, et citra permissum praetoris ab eo, qui exsequitur iudicatum, solet capi et in causam iudicati converti.
15 Ulpianus, On the Duties of Consul, Book III. It was stated by the Divine Pius in a Rescript addressed to the magistrates of the Roman people, that those who appoint judges or arbitrators must authorize the execution of the judgments rendered by them. 1Our Emperor and his Father stated in a Rescript that even the Governor of a province could execute a judgment pronounced at Rome, if he was directed to do so. 2Hence, in the judicial sale of anything which has been taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus that the Governors of provinces execute judgment. 3If property taken in execution does not find a purchaser, it was stated in a Rescript by our Emperor and his Divine Father that it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered. The property is adjudged to him in proportion to the amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having mad.e an agreement for the satisfaction of his claim; nor can he say that he held the property in pledge for a certain amount and bring an action to recover the balance. 4If a controversy arises concerning property taken in execution, it has been decided by our Emperor that those who are executing the judgment shall make an examination of it, and if they ascertain that it belongs to the party who was defeated, they must execute the judgment. It must, however, be noted that they are obliged to make this examination summarily; nor can their decision prejudice the debtor, if they think that the property should be released as belonging to the party who raised the controversy, and not to him in whose name it was taken in execution; nor should he to whom it is delivered be immediately entitled to it by virtue of the decree, if the property is such that it can be recovered from him in the ordinary course of law. Hence, the result is that the matter will remain in its original condition and the property affected by the judgment can only benefit the aforesaid party by usucaption. It must, however, be said that where a dispute arises with reference to what has been taken in execution it should be relinquished, and other property be taken with respect to which no controversy exists. 5Let us see, if the property taken in execution has been pledged, whether it can be sold, so that the creditor having been satisfied, any remainder can be applied to the judgment. And, although a creditor cannot be compelled to sell property which he received by way of pledge, it can, however, be kept until execution on the judgment is issued, and if the property seized should find a purchaser, who, after the creditor has been satisfied, is ready to pay any balance remaining, the sale of this property also may be allowed. It is not held that the condition of the creditor becomes any worse, as he has obtained that to which he was entitled, nor should his right of pledge be released before his claim has been satisfied. 6If, after the property taken in execution has been adjudged, any controversy arises with reference to the purchaser, let us see whether the magistrate who executed the judgment will have jurisdiction of the matter. I do not think that there is any ground for further inquiry, as, when the purchase has once been perfected, he who bought the property must assume the risk; and certainly, after the purchaser has been given possession, the duty of the judge is at an end. The same rule will apply, if the property is adjudged to him in favor of whom the decision was rendered. 7If the purchaser to whom the property was adjudged by the court does not pay the price, let us see whether the magistrates, whose duty it is to execute the judgment, should call him to account. I do not think that they can go any farther, otherwise the proceedings would become interminable. But what can we say in a case of this kind? Shall they render judgment against the purchaser, and issue execution against him? Or shall they immediately consider the case as decided? And what must be done if the purchaser denies that he bought the property, or alleges that he has paid for it? The better opinion will be for the judge not to interfere, and especially since the party in whose favor the judgment was rendered has no right of action against him who obtains the property, and besides suffers no wrong; as it is necessary for property taken in execution and sold to be paid for in cash, and not that the money shall be paid after a certain time. And, indeed, if the court should interfere, it ought only to do so to the extent of taking and selling the property which had been adjudged, just as if it had not been released from the lien of the judgment. 8Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution. 9But let us see whether only a credit which is acknowledged by the debtor can be levied on, or whether this can be done if he denies his liability. The better opinion is, that only that should be levied on which he admits to be due. If, however, he should deny that he owes the claim, it would be perfectly proper not to include it; unless someone, following the example of the seizure of movable property, should proceed still farther, and say that the judges themselves ought to make an investigation of the claim, as they do in the case of other personal effects, but it is stated differently in a rescript. 10Again, what shall we say where the judges themselves take action with reference to the claim, and require the amount of the debt to be paid on the judgment; or if they should sell the claim, as they are accustomed to do, where other personal property is taken in execution? It is necessary that they should do whatever seems to them best in order to execute the judgment. 11If the party against whom the judgment is rendered has money deposited with bankers, it can also be taken into execution. And further, if there is any money in the hands of anyone else, which should be paid to the party who lost the case, it is customary to levy on it, and apply it to the payment of the judgment. 12Moreover, money which has been deposited with anyone for safe-keeping, or placed in a chest for the same purpose, can be levied on for the purpose of satisfying a judgment. Again, where money belonging to a ward has been placed in a chest for the purchase of land, it can be taken by the judge charged with the execution of the judgment, without the permission of the Prætor, and employed for the payment of the claim.
16 Ulpianus libro sexagensimo tertio ad edictum. Sunt qui in id quod facere possunt conveniuntur, id est non deducto aere alieno. et quidem sunt hi fere, qui pro socio conveniuntur (socium autem omnium bonorum accipiendum est): item parens:
16 The Same, On the Edict, Book LXIII. There are persons who can only be sued for amounts which they are able to pay; that is to say, without deducting their debts. Such persons are those against whom suit is brought on account of some partnership, for a partnership is understood to include all property. The same rule applies to ascendants,
17 Idem libro decimo ad edictum. patronus patrona liberique eorum et parentes: item maritus de dote in id quod facere potest convenitur:
17 The Same, On the Edict, Book X. As well as to a patron, a patroness, their children and their ascendants. Likewise a husband, when sued for a dowry, is only liable for what he can pay.
18 Idem libro sexagensimo sexto ad edictum. item miles, qui sub armata militia stipendia meruit, condemnatus eatenus, quatenus facere potest, cogitur solvere.
18 The Same, On the Edict, Book LXVI. A soldier also, who has had judgment rendered against him, is after his discharge only compelled to pay to the extent of his means.
19 Paulus libro sexto ad Plautium. Inter eos, quibus ex eadem causa debetur, occupantis melior condicio est nec deducitur, quod eiusdem condicionis hominibus debetur, sicuti fit in de peculio actione: nam et hic occupantis melior est causa. sed et si cum patre patronove agetur, non est deducendum aes alienum, maxime quod eiusdem condicionis personis debebitur, ut liberis libertis. 1Is quoque, qui ex causa donationis convenitur, in quantum facere potest condemnatur et quidem is solus deducto aere alieno: et inter eos, quibus ex simili causa pecunia debetur, occupantis potior erit causa. immo nec totum quod habet extorquendum ei puto: sed et ipsius ratio habenda est, ne egeat.
19 Paulus, On Plautius, Book VI. Where there are several persons to whom money is due for the same reason, the position of the most diligent is preferable; and no deduction is made of what is due to persons of equal rank, as is the case in an action De peculio; for, in this instance, the position of the one who first proceeds is the most advantageous. The indebtedness should not, however, be deducted where suit is brought against a father or a patron, especially where the debt is due to persons of the same condition, as to other children or other freedmen. 1He, also, against whom an action is brought on account of a donation, can only have judgment rendered against me for the amount which he is able to pay; and he, in fact, is the only one with reference to whom the indebtedness should be deducted. So far as those to whom money is due for the same reason is concerned, the position of the most diligent is preferable. And, indeed, I do not think that everything that he has should be extorted from him, but that care should be taken not to reduce him to poverty.
20 Modestinus libro secundo differentiarum. Non tantum dotis nomine maritus in quantum facere possit condemnatur, sed ex aliis quoque contractibus ab uxore iudicio conventus in quantum facere potest, condemnandus est ex divi Pii constitutione. quod et in persona mulieris aequa lance servari aequitatis suggerit ratio.
20 Modestinus, Differences, Book II. A husband can have judgment rendered against him in the case of a dowry, to the amount that he is able to pay; but, when he is sued by his wife on account of some other contract, by a Constitution of the Divine Pius he can also have judgment rendered against him to the extent of his means. Equity also suggests that this same rule should apply where a wife is sued by her husband.
21 Paulus libro sexto ad Plautium. Sicut autem cum marito agitur, ita et cum socero, ut non ultra facultates damnetur. an si cum socero ex promissione dotis agatur, in id quod facere potest, damnandus sit? quod et id aequum esse videtur: sed alio iure utimur, ut et Neratius scribit.
21 Paulus, On Plautius, Book VI. Moreover, just as in the case of a husband, so also a father-in-law cannot have judgment rendered against him beyond his ability to pay. If, however, an action based on his promise of a dowry is brought against the father-in-law, can judgment be rendered against him to the extent of his means? This seems to be equitable, but it is not our practice, as Neratius states.
22 Pomponius libro vicensimo primo ad Quintum Mucium. Sed hoc ita accipiendum est, si a socero dos ex promissione petatur soluto matrimonio: verum si manente matrimonio dos ab eo petatur, succurrendum utique est, ut ne maioris summae condemnetur, quam quantum facere potest. 1Quod autem de sociis dictum est, ut et hi in quantum facere possint condemnentur, causa cognita se facturum praetor edicit. causae cognitio autem in hoc erit, ut neganti se socium esse aut ex doli clausula obligato non succurratur.
22 Pomponius, On Quintus Mucius, Book XXI. This, however, is understood to mean where an action is brought against a father-in-law, to recover a dowry which has been promised after the marriage has been dissolved. But if suit is brought to recover the dowry, during the continuance of the marriage, relief should be granted him, in order that he may not have judgment rendered against him for more than he is able to pay. 1With reference to what has been stated as to the case of partners, namely, that they can have judgment rendered against them to the extent of their pecuniary resources, the Prætor says in his Edict that he will act if proper cause is shown. This will take place to prevent relief being granted to anyone who denies that he is a partner, or who is liable on account of fraud.
23 Paulus libro sexto ad Plautium. Si cum procuratore mariti de dote actum fuerit, si quidem vivo marito condemnatio fiet, in quantum facere potest fiet damnatio (nam et defensor mariti in id quod ille facere potest damnatur), mortuo vero marito in solidum.
23 Paulus, On Plautius, Book VI. If an action to recover a dowry is brought against an agent of the husband, and judgment is rendered during the lifetime of the latter, it can only be for the amount which he is able to pay, for the defender of the husband can only have judgment rendered against him for that amount; but if the husband should be dead, the judgment will include the entire dowry.
24 Pomponius libro quarto ex Plautio. Et si fideiussor acceptus sit rei vel actionis, non proderit, si persona, pro qua fideiussit, in quantum facere potest, condemnanda est. 1Si maritus solvendo non fuerit, licet ipsi marito prosit, quod facere non possit (id enim personae mariti praestatur), heredi eius hoc non prodest.
24 Pomponius, On Plautius, Book IV. If a surety has been accepted for the payment of the debt or the judgment, it will be no advantage to him if the person for whom he bound himself has judgment rendered against him for the amount which he is able to pay. 1If the husband should not be solvent, he can take advantage of the fact that he is not able to make payment; for this privilege is granted to him personally, and will not profit his heir.
25 Paulus libro sexagensimo ad edictum. Sciendum est heredes earum personarum non in id, quod facere possunt, sed in integrum teneri.
25 Paulus, On the Edict, Book LX. It must be noted that the heirs of such persons are not liable to the extent of their ability to make payment, but for the entire amount.
26 Ulpianus libro septuagensimo septimo ad edictum. Si convenerit inter litigatores, quid pronuntietur, non ab re erit iudicem huiusmodi sententiam proferre.
26 Ulpianus, On the Edict, Book LXXVII. If litigants should agree as to the amount for which judgment shall be rendered, it will not be improper for the judge to decide accordingly.
27 Modestinus libro primo responsorum. Praeses provinciae usuras usurarum condemnavit contra leges et sacras constitutiones ideoque Lucius Titius contra prolatam sententiam iniustam praesidis appellavit: quaero, cum non secundum legem Titius provocasset, an exigi possit pecunia secundum condemnationem. Modestinus respondit, si sententiae certa quantitas continetur, nihil proponi, cur iudicati agi non possit.
27 Modestinus, Opinions, Book I. The Governor of a province rendered a decision that a party should pay compound interest, contrary to the laws and the Imperial Constitutions, and, on this ground, Lucius Titius took an appeal from the unjust decision of the Governor. As Titius did not take his appeal in accordance with law, I ask whether the money can be collected under the judgment. Modestinus answered that if the judgment was for a specified sum, there was nothing in the case stated why execution could not be issued.
28 Idem libro duodecimo responsorum. Duo iudices dati diversas sententias dederunt. Modestinus respondit utramque sententiam in pendenti esse, donec competens iudex unam earum confirmaverit.
28 The Same, Opinions, Book II. Two judges rendered two different decisions. Modestinus gave it as his opinion that they should remain in suspense until a competent magistrate had confirmed one of them.
29 Idem libro septimo pandectarum. Tempus, quod datur iudicato, etiam heredibus eius ceterisque qui in locum eius succedunt tribuitur (videlicet quod ex tempore deest), quia causae magis quam personae beneficium praestituitur.
29 The Same, Pandects, Book VII. The time granted to a party to satisfy a judgment rendered against him is also granted to his heirs and other successors, at least the time that has not expired, because the privilege is conceded rather to the case than to the person.
30 Pomponius libro septimo variarum lectionum. Cum ex causa donationis promissa pecunia est, si dubium sit, an ea res eo usque donatoris facultates exhaurire possit, ut vix quicquam ei in bonis relictum sit, actio in id quod facere possit danda est, ita ut et ipsi donatori aliquid sufficiens relinquatur. quod maxime inter liberos et parentes observandum est.
30 Pomponius, Various Passages, Book VII. Where a certain sum of money is promised as a donation, and it is probable that the resources of the donor will be exhausted to such an extent that he will have almost nothing left, an action should be granted against him for what he is able to pay, so that enough may remain in his hands to enable him to live. This rule ought, by all means, to be observed between children and parents.
31 Callistratus libro secundo cognitionum. Debitoribus non tantum petentibus dies ad solvendum dandi sunt, sed et prorogandi, si res exigat: si qui tamen per contumaciam magis, quam quia non possint explicare pecuniam, differant solutionem, pignoribus captis compellendi sunt ad satisfaciendum ex forma, quam Cassio proconsuli divus Pius in haec verba rescripsit: ‘His, qui fatebuntur debere aut ex re iudicata necesse habebunt reddere, tempus ad solvendum detur, quod sufficere pro facultate cuiusque videbitur: eorum, qui intra diem vel ab initio datum vel ex ea causa postea prorogatum sibi non reddiderint, pignora capi eaque, si intra duos menses non solverint, vendantur: si quid ex pretiis supersit, reddatur ei, cuius pignora vendita erant’.
31 Callistratus, Judicial Inquiries, Book II. Time for payment should not only be granted to debtors who request it, but it should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim, according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, “Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution.”
32 Idem libro tertio cognitionum. Cum prolatis constitutionibus contra eas pronuntiat iudex, eo quod non existimat causam, de qua iudicat, per eas iuvari, non videtur contra constitutiones sententiam dedisse. ideoque ab eiusmodi sententia appellandum est: alioquin rei iudicatae stabitur.
32 The Same, Judicial Inquiries, Book III. Where a judge rules against constitutions which are cited, for the reason that he does not think them to be applicable to the case in question, he is not considered to have ruled against them improperly, and therefore an appeal can be taken from his decision; otherwise the matter will be held to have been finally determined.
33 Idem libro quinto cognitionum. Divus Hadrianus, aditus per libellum a Iulio Tarentino et indicante eo falsis testimoniis, conspiratione adversariorum testibus pecunia corruptis, religionem iudicis circumventam esse, in integrum causam restituendam in haec verba rescripsit: ‘Exemplum libelli dati mihi a Iulio Tarentino mitti tibi iussi: tu, si tibi probaverit conspiratione adversariorum et testibus pecunia corruptis oppressum se, et rem severe vindica et, si qua a iudice tam malo exemplo circumscripto iudicata sunt, in integrum restitue’.
33 The Same, Judicial Inquiries, Book V. The Divine Hadrian, having been presented with a petition by Julius Tarentinus, in which he alleged that a decision had been rendered against him through the judge having been deceived by forged evidence, and by a conspiracy of his adversaries, who had corrupted witnesses with money, the Emperor stated in a Rescript that he was entitled to complete restitution, as follows: “I have ordered a copy of the petition which was presented to me by Julius Tarentinus to be sent to you. If he proves that he has been oppressed by a conspiracy of his adversaries, and that their witnesses have been corrupted with money, you will inflict severe punishment; and if the decision of the judge was induced by false representations, you will grant complete restitution.”
34 Licinnius Rufinus libro tertio decimo regularum. Si victum vel stratum inferri quis iudicato non patiatur, utilis in eum poenalis actio danda est vel, ut quidam putant, iniuriarum cum eo agi poterit.
34 Licinius Rufinus, Rules, Book XIII. If anyone objects to a party against whom judgment has been rendered retaining any provisions, or his bed, a penal prætorian action should be granted against him; or, as some authorities hold, he can be sued for injury sustained.
35 Papirius Iustus constitutionum libro secundo. Imperatores Antoninus et Verus rescripserunt, quamquam sub obtentu novorum instrumentorum restitui negotia minime oporteat, tamen in negotio publico ex causa permittere se huiusmodi instrumentis uti.
35 Papirius Justus, Constitutions, Book II. The Emperors Antoninus and Verus stated in a Rescript that, although it is not necessary to again begin proceedings on the ground of new documentary evidence having been discovered, they will, nevertheless, in matters relating to public business, permit such evidence to be used, if proper cause is shown.
36 Paulus libro septimo decimo ad edictum. Pomponius libro trigensimo septimo ad edictum scribit, si uni ex pluribus iudicibus de liberali causa cognoscenti de re non liqueat, ceteri autem consentiant, si is iuraverit sibi non liquere, eo quiescente ceteros, qui consentiant, sententiam proferre, quia, etsi dissentiret, plurium sententia optineret.
36 Paulus, On the Edict, Book XVII. Pomponius, in the Thirty-seventh Book on the Edict, says that where there are several judges investigating a matter involving freedom, and one of them is not sufficiently informed to render a decision, and the others agree; if the former swears that he is not sufficiently informed, and does not take further part in the proceedings, the others, who have agreed, can render judgment; because, even though the judge aforesaid may dissent, the decision of the majority will stand.
37 Marcellus libro tertio digestorum. Tunc autem universi iudices intelleguntur iudicare, cum omnes adsunt.
37 Marcellus, Digest, Book V. All the judges are understood to have rendered a decision when they are all present.
38 Paulus libro septimo decimo ad edictum. Inter pares numero iudices si dissonae sententiae proferantur, in liberalibus quidem causis, secundum quod a divo Pio constitutum est, pro libertate statutum optinet, in aliis autem causis pro reo. quod et in iudiciis publicis optinere oportet. 1Si diversis summis condemnent iudices, minimam spectandam esse Iulianus scribit.
38 Paulus, On the Edict, Book XVII. When the number of judges is equal, and different opinions are given in a case involving freedom, judgment shall be rendered in favor of freedom (in accordance with the Constitution of the Divine Pius), but, in all other cases, judgment shall be rendered in favor of the defendant. This rule must also be observed in criminal cases. 1If judges render decisions for different amounts, Julianus says that that for the smallest one must be adopted.
39 Celsus libro tertio digestorum. Duo ex tribus iudicibus uno absente iudicare non possunt, quippe omnes iudicare iussi sunt. sed si adsit et contra sentiat, statur duorum sententiae: quid enim minus verum est omnes iudicasse?
39 Celsus, Digest, Book III. Where three judges are appointed to hear a case, two of them cannot decide it, if one is absent, as all three have been ordered to hear it. If, however, the third is present, and does not concur with the others, the judgment of the two shall stand. For it is certainly true that all of them have rendered a decision.
40 Papinianus libro decimo responsorum. Commodis praemiorum, quae propter coronas sacras praestantur, condemnato placuit interdici et eam pecuniam iure pignoris in causam iudicati capi.
40 Papinianus, Opinions, Book X. It has been established that a party against whom a judgment has been rendered shall be deprived of the advantages attaching to the rewards given on account of the sacred crowns won in public contests, and that this money can be taken in execution for the satisfaction of the judgment.
41 Paulus libro quarto decimo quaestionum. Nesennius Apollinaris: si te donaturum mihi delegavero creditori meo, an in solidum conveniendus sis? et si in solidum conveniendus, an diversum putes, si non creditori meo, sed ei, cui donare volebam, te delegavero? et quid de eo, qui pro muliere, cui donare volebat, marito eius dotem promiserit? respondit: nulla creditor exceptione summoveretur, licet is, qui ei delegatus est, poterit uti adversus eum, cuius nomine promisit: cui similis est maritus, maxime si constante matrimonio petat. et sicut heres donatoris in solidum condemnatur et ipse fideiussor, quem in donando adhibuit, ita et ei, cui non donavit, in solidum condemnatur. 1Fundum quis donavit: si non restituat, ut quivis possessor damnandus est: si autem fundum restituit, fructuum nomine, si non eos consumpsit, in solidum condemnandus est: potuit enim non periclitari, si statim restituisset: si dolo desiit possidere, in litem iurabitur et tanti sequetur condemnatio. 2In solidum condemnatus donator actione iudicati, nisi in quantum facere potest, non tenetur beneficio constitutionis.
41 Paulus, Questions, Book XIV. Nesennius Apollinaris: If you are about to make a donation to me, and I delegate you to pay my creditor, can an action be brought against you for the entire amount? And if you are sued for the entire amount, do you think that it will be different, if I should not appoint you to pay my creditor, but someone to whom I desire to give an equal sum? And what must be done in the case of one who, desiring to give a donation to a woman, promises a dowry to her husband? The answer was that the creditor cannot be barred by an exception, although the person who was delegated can avail himself of one against him in whose name he made the promise. The case of the husband is the same; and especially so, if he brings an action during the existence of the marriage. And, as the heir of the donor can have judgment rendered against him in full, so the surety, who rendered himself liable for the donation, can also be sued for the entire amount, as well as anyone else to whom the donation was not given. 1A certain person donated a tract of land. If he did not deliver it, he can have judgment rendered against him just like any other possessor. If, however, he delivered the land, judgment may be rendered against him for the entire crop, if he has not consumed it, and he cannot be released from liability, even if he surrenders it immediately. If he has ceased to hold possession through fraud, the donee shall be sworn in court, and judgment shall be rendered in accordance with the sum to which he makes oath. 2A donor, against whom judgment has been rendered for the full amount of the donation, is not liable to a sum beyond his ability to pay, which is an advantage conferred by the constitutions.
42 Idem libro tertio responsorum. Paulus respondit rescindere quidem sententiam suam praecedentem praetorem non posse, reliqua autem, quae ad consequentiam quidem iam statutorum pertinent, priori tamen sententiae desunt, circa condemnandum reum vel absolvendum debere supplere, scilicet eodem die.
42 The Same, Opinions, Book III. Paulus gave it as his opinion that the Prætor could not set aside a judgment which he had already rendered, but that he could, even on the same day when it was rendered, supply anything which had been omitted in the judgment, either for or against the defendant, and which had reference to matters contained therein.
43 Idem libro sexto decimo responsorum. Paulus respondit eos, qui una sententia in unam quantitatem condemnati sunt, pro portione virili ex causa iudicati conveniri, et si ex sententia adversus tres dicta Titius portionem sibi competentem exsolvit, ex persona ceterorum ex eadem sententia conveniri eum non posse.
43 The Same, Opinions, Book XVI. Paulus also gave it as his opinion that where a number of parties had had judgment rendered against them for a certain sum of money, they could not by the same decision be compelled to pay any more than their respective shares. If judgment was rendered against three parties, and Titius paid his share, an action could Hot be brought against him under the same judgment to compel him to pay the shares of the others.
44 Scaevola libro quinto responsorum. Ex contractu paterno actum est cum pupilla tutore auctore et condemnata est: postea tutores abstinuerunt eam bonis paternis et ita bona defuncti ad substitutum vel ad coheredes pervenerunt: quaeritur, an hi ex causa iudicati teneantur. rescripsit dandam in eos actionem, nisi culpa tutorum pupilla condemnata est.
44 Scævola, Opinions, Book V. Suit was brought against a female ward on a contract agreed to by her father and authorized by her guardian, and she lost her case. Her guardians afterwards caused her to reject her father’s estate, and hence it passed into the hands of the substitute, or her co-heirs. The question arose whether or not they would be liable by virtue of the decision. It was held that an action should be granted against them, unless judgment had been rendered against the ward through the fault of her guardians.
45 Paulus libro primo sententiarum. Acta apud se habita, si partes consentiant et iudex hoc permiserit, potest iubere ea die circumduci, nisi vel negotium vel lis terminata est. 1De amplianda vel minuenda poena damnatorum post sententiam dictam sine principali auctoritate nihil est statuendum. 2Contra indefensos minores tutorem vel curatorem non habentes nulla sententia proferenda est.
45 Paulus, Decisions, Book I. Proceedings which have begun can be dismissed on the day of trial, if the parties consent, and the judge permits this to be done; provided that the matter or the suit has not been judicially terminated. 1Nothing can be done to increase or diminish penal damages after judgment has been rendered, unless this is authorized by the Emperor. 2No judgment can be rendered against minors who are not defended, and have no guardian or curator.
46 Hermogenianus libro secundo iuris epitomarum. Actorum verba emendare tenore sententiae perseverante non est prohibitum.
46 Hermogenianus, Epitomes of Law, Book II. It is not forbidden to amend the pleadings, provided the tenor of the decision remains unchanged.
47 Paulus libro quinto sententiarum. De unoquoque negotio praesentibus omnibus, quos causa contingit, iudicari oportet: aliter enim iudicatum tantum inter praesentes tenet. 1Qui apud fiscum causam defendere saepius conventi neglexerint, rebus iudicatis subiciendi sunt. quod eo apparet, si saepe conventi praesentiam suam facere noluerint.
47 Paulus, Decisions, Book V. In every case judgment must be rendered in the presence of all the parties interested, otherwise it will only take effect with reference to those who are present. 1Where parties who have been repeatedly summoned neglect to defend their cause before the Treasury, they are liable to an action on judgment. This is understood to be the case where, having been notified several times, they refused to appear.
48 Tryphoninus libro secundo disputationum. Decreta a praetoribus Latine interponi debent.
48 Tryphoninus, Disputations, Book II. Decisions must be rendered by the Prætor in Latin.
49 Paulus libro secundo manualium. Et exheredatum vel eum, qui se paterna hereditate abstinuit, nec ex ipsius contractu nisi id quod facere potest condemnandum. quemadmodum autem facere posse credatur, videndum est, utrum deducto omni aere alieno, ut is, qui ex donatione convenitur, an ut maritus et patronus nullo deducto aere alieno. et indubitati iuris est ad similitudinem viri et patroni eum detrahendum: pinguius enim donatori succurrere debemus quam ei, qui verum debitum persolvere compellitur,
49 Paulus, Manuals, Book II. A son who has been disinherited, or who has rejected the estate of his father, cannot have judgment rendered against him, on a contract of his own, for more than he is able to pay. Let us see to what extent he shall be considered solvent, whether this relates to what remains after all his debts have been paid, as in the case of one who is sued on account of a donation, or does it apply to a husband and a patron, whose indebtedness is not deducted? It is unquestionably the law that payment should be made as in the case of a husband or a patron, for we should be more indulgent to a donor than to one who is obliged to discharge an actual debt,
50 Tryphoninus libro duodecimo disputationum. ne liberalitate sua inops fieri periclitetur.
50 Tryphoninus, Disputations, Book XII. In order to prevent a donor from becoming impoverished by his own liberality.
51 Paulus libro secundo manualium. Si quis dolo fecerit, ut bona eius venirent, in solidum tenetur. 1Si quis creditorem missum in possessionem rei servandae causa non admiserit, si venditor praestiterit creditori, quanti eius interfuerit, quaesitum est an debitor liberetur. et puto improbum esse eum, qui velit iterum consequi quod accepit.
51 Paulus, Manuals, Book II. If anyone should cause his property to be fraudulently sold, he will be liable in full. 1Where anyone refuses to admit a creditor to take possession of his property, which has been granted to him for its preservation, and the vendor pays the creditor all that he is entitled to, the question arises whether the debtor will be released. I think that he would act dishonorably who wishes to obtain a second time what he has already received.
52 Tryphoninus libro duodecimo disputationum. Si rerum amotarum cum viro agatur, quamquam videatur ea quoque actio praecedentis societatis vitae causam habuisse, in solidum condemnari debet, quoniam ex male contractu et delicto oritur.
52 Tryphoninus, Disputations, Book XII. If suit is brought against a husband for having appropriated the property of his wife, although this proceeding is said to have its origin in the partnership existing between husband and wife, the husband should have judgment rendered against him for the entire amount, as in this instance, it is based on an illegal act and a crime.
53 Hermogenianus libro primo iuris epitomarum. Contumacia eorum, qui ius dicenti non obtemperant, litis damno coercetur. 1Contumax est, qui tribus edictis propositis vel uno pro tribus, quod vulgo peremptorium appellatur. litteris evocatus praesentiam sui facere contemnet. 2Poenam contumacis non patitur, quem adversa valetudo vel maioris causae occupatio defendit. 3Contumaces non videntur, nisi qui, cum oboedire deberent, non obsequuntur, id est qui ad iurisdictionem eius, cui negant obsequi, pertinent.
53 Hermogenianus, Epitomes of Law, Book I. The contumacy of those who refused to obey the summons of the court is punished by the loss of the case. 1He is considered to be contumacious who, after having been served with notice three times, or with the one which is ordinarily called peremptory instead of three, refuses to appear. 2He is not liable to the penalty for contumacy whom bad health, or business of great importance prevents from appearing. 3Persons are not held to be contumacious, unless being obliged to obey they decline to do so; that is to say, if they refuse to obey those who have jurisdiction over them.
54 Paulus libro primo sententiarum. Contra pupillum indefensum eumque, qui rei publicae causa abest, vel minorem viginti quinque annis propositum peremptorium nihil momenti habet. 1Is, qui ad maius auditorium vocatus est, si litem inchoatam deseruit, contumax non videtur.
54 Paulus, Decisions, Book I. A peremptory summons issued against a warfl who is undefended, a person who is absent on business for the State, or a minor of twenty-five years of age, is of no force or effect. 1He who is summoned before a higher tribunal is not considered contumacious if he leaves the case unfinished in the lower court.
55 Ulpianus libro quinquagensimo primo ad Sabinum. Iudex posteaquam semel sententiam dixit, postea iudex esse desinit: et hoc iure utimur, ut iudex, qui semel vel pluris vel minoris condemnavit, amplius corrigere sententiam suam non possit: semel enim male seu bene officio functus est.
55 Ulpianus, On Sabinus, Book LI. After a judge has once rendered his decision, he ceases to be judge so far as this case is concerned. It is our practice that a magistrate who has once rendered judgment for a larger or a smaller sum than was claimed cannot amend it, because he has performed the duty of his office well or ill, once for all.
56 Idem libro vicensimo septimo ad edictum. Post rem iudicatam vel iureiurando decisam vel confessionem in iure factam nihil quaeritur post orationem divi marci, quia in iure confessi pro iudicatis habentur.
56 The Same, On the Edict, Book XXVII. According to a Rescript of the Divine Marcus, nothing can be demanded after a decision has been rendered, or a case has been decided by oath, or the defendant has confessed judgment in court, for the reason that a confession of judgment made in court is considered the same as a judgment.
57 Idem libro secundo disputationum. Quidam consulebat, an valeret sententia a minore viginti quinque annis iudice data. et aequissimum est tueri sententiam ab eo dictam, nisi minor decem et octo annis sit. certe si magistratum minor gerit, dicendum est iurisdictionem eius non improbari. et si forte ex consensu iudex minor datus sit scientibus his, qui in eum consentiebant, rectissime dicitur valere sententiam. proinde si minor praetor, si consul ius dixerit sententiamve protulerit, valebit: princeps enim, qui ei magistratum dedit, omnia gerere decrevit.
57 The Same, Disputations, Book II. Advice was taken whether a decision rendered by a judge, who is under twenty-five years of age, is valid. It is perfectly correct to hold that such a decision is valid, unless he was less than eighteen years of age. If a minor holds the office of a magistrate, it must certainly be said that his jurisdiction ought not to be questioned. If a judge, who is a minor, should be appointed with the consent of the parties, and they know his age, and agree that he shall preside in the case, it is most properly held that his decision will be valid. Hence, if a Prætor or a Consul, who is a minor, expounds the law and gives an opinion, his act will be valid; for the Emperor who appointed him a magistrate by his decree conferred upon him authority to transact all the business of his office.
58 Idem libro septimo disputationum. Si, cum nulla sententia praecessisset, capta sunt et distracta pignora, possunt revocari.
58 The Same, Disputations, Book VII. Property which has been taken in execution and sold can be recovered, if this was done without a judgment having been previously rendered.
59 Idem libro quarto de omnibus tribunalibus. In summa sufficiet, si expresserit iudex summam in sententia solvique iusserit vel praestari vel quo alio verbo hoc significaverit. 1Amplius est rescriptum, etsi in sententia non sit summa adiecta, si tamen is qui petit summam expresserit et iudex ait: ‘solve, quod petitum est’ vel ‘quantum petitum est’, valere sententiam. 2Qui sortis quidem condemnationem faciunt, de usuris autem ita pronuntiant ‘usurae si quae competunt’ vel ‘quae competunt, ut praestentur’, non recte pronuntiant: debent enim de usuris quoque cognoscere et certam facere condemnationem. 3Si quis ex edicto peremptorio post mortem sit condemnatus, non valet sententia, quia morte rei peremptorium solvitur. ideoque, ut in re integra, de causa notio praestabitur et quod optimum patuerit, statuetur.
59 The Same, On All Tribunals, Book IV. In rendering judgment, it is sufficient if the judge mentions the amount, and orders it to be paid or furnished, or makes use of any other term which has this signification. 1It is, moreover, set forth in a rescript, that even if the amount is not stated in the decision, but the party who brought suit mentioned it, and the judge says, “Pay what is claimed,” or “As much as is claimed,” the decision will be yalid. 2When magistrates render a judgment for the principal, and with reference to the interest add, “If any interest is due, let it be paid,” “Or let what interest is due be paid,” their judgment is not valid; for they ought to ascertain the amount of interest and establish it by their decision. 3If anyone, having received a peremptory summons, has judgment rendered against him after his death, it will not be valid, because a peremptory summons is of no effect after the death of the defendant; and hence the judge must take cognizance of the case, just as if matters remained unchanged, and decide as seems to him best.
60 Iulianus libro quinto digestorum. Quaesitum est, cum alter ex litigatoribus febricitans discessisset et iudex absente eo pronuntiasset, an iure videretur pronuntiasse. respondit: morbus sonticus etiam invitis litigatoribus ac iudice diem differt. sonticus autem existimandus est, qui cuiusque rei agendae impedimento est. litiganti porro quid magis impedimento est, quam motus corporis contra naturam, quem febrem appellant? igitur si rei iudicandae tempore alter ex litigatoribus febrem habuit, res non videtur iudicata. potest tamen dici esse aliquam et febrium differentiam: nam si quis sanus alias ac robustus tempore iudicandi levissima febre correptus fuerit, aut si quis tam veterem quartanam habeat, ut in ea omnibus negotiis superesse soleat, poterit dici morbum sonticum non habere.
60 Julianus, Digest, Book V. The following question has been raised. One of several litigants who was attacked by fever withdrew from the case; if the judge renders a decision in his absence, will he be considered to have acted according to law? The answer was, that dangerous illness demands delay, even if the parties and the judge are unwilling to grant it. Moreover, an illness is considered to be dangerous which offers an impediment to the transaction of business by anyone. What, however, can be a greater impediment to a lawsuit than that revolt of the body against nature which is designated fever? Hence, if one of the parties has a fever at the time when the decision is rendered, it is considered as not rendered at all. Still, it can be said that there is a considerable difference in fevers, for if a person is otherwise healthy and robust, and at the time when the decision was rendered has a slight attack of fever, or if he has a chronic or a quartan fever, and, nevertheless, is able to attend to his affairs, it may be said that his illness is not serious.
61 Idem libro quadragensimo quinto digestorum. In iudicati actione non prius ratio haberi debet eius, cui prior reus condemnatus fuerit.
61 The Same, Digest, Book XLV. In the action to enforce judgment, the plaintiff in favor of whom a decision was first rendered against the defendant is not entitled to preference.
62 Alfenus Varus libro sexto digestorum a Paulo epitomatorum. Cum quaerebatur, iudex, si perperam iudicasset, an posset eodem die iterum iudicare, respondit non posse.
62 Alfenus Varus, Epitomes of the Digest of Paulus, Book VI. The question was raised whether a judge who had rendered an improper decision could render another on the same day. The answer was that he could not do so.
63 Macer libro secundo de appellationibus. Saepe constitutum est res inter alios iudicatas aliis non praeiudicare. quod tamen quandam distinctionem habet: nam sententia inter alios dicta aliis quibusdam etiam scientibus obest, quibusdam vero, etiamsi contra ipsos iudicatum sit, nihil nocet. nam scientibus nihil praeiudicat, veluti si ex duobus heredibus debitoris alter condemnatur: nam alteri integra defensio est, etiamsi cum coherede suo agi scierit. item si ex duobus petitoribus alter victus adquieverit, alterius petitioni non praeiudicatur: idque ita rescriptum est. scientibus sententia, quae inter alios data est, obest, cum quis de ea re, cuius actio vel defensio primum sibi competit, sequentem agere patiatur, veluti si creditor experiri passus sit debitorem de proprietate pignoris, aut maritus socerum vel uxorem de proprietate rei in dote acceptae, aut possessor venditorem de proprietate rei emptae: et haec ita ex multis constitutionibus intellegenda sunt. cur autem his quidem scientia nocet, superioribus vero non nocet, illa ratio est, quod qui scit coheredem suum agere, prohibere eum, quo minus uti velit propria actione vel defensione utatur, non potest: is vero, qui priorem dominum defendere causam patitur, ideo propter scientiam praescriptione rei quamvis inter alios iudicatae summovetur, quia ex voluntate eius de iure, quod ex persona agentis habuit, iudicatum est. nam et si libertus meus me interveniente servus vel libertus alterius iudicetur, mihi praeiudicatur. diversa causa est, si fundum a te Titius petierit, quem ego quoque, sed non ex persona Titii ad me pertinere dico: nam quamvis contra Titium me sciente iudicatum sit, nullum tamen praeiudicium patior, quia neque ex eo iure, quo Titius victus est, vindico, neque potui Titio intercedere, quo minus iure suo utatur, sicuti et de coherede supra diximus.
63 Macer, On Appeals, Book II. It has often been stated in the Imperial Constitutions that judgments obtained by certain persons do not prejudice the rights of others. This, however, admits of a certain distinction, for in some instances a judgment rendered against certain persons does prejudice others who have knowledge of it, but, in other cases, does not injure even those against whom it was rendered. A judgment is of no disadvantage to those who have knowledge of it, as where one of two heirs of a debtor has judgment rendered against him; for the right of the other to defend himself remains unimpaired, even if he knew that he was sued with his co-heir. Moreover, where one of two plaintiffs, having lost his case, acquiesces in the decision, the claim of the other is not prejudiced. This has been stated in a rescript. A decision rendered against certain parties injures others who are aware of it, when anyone who has a right to bring or defend an action before another suffers someone else to do so; as, for instance, where a creditor permits his debtor to bring suit involving the right to a pledge; or a husband allows his father-in-law, or his wife to institute proceedings to determine the ownership of property received by way of dowry; or a possessor permits the vendor to bring an action to establish the title to property which he has purchased. These points are understood to have been settled by many constitutions. For why should knowledge injure these parties, when it does not injure those previously mentioned? The reason for this is, that when anyone knows that his co-heir brings suit, he cannot prevent him from using any means which he may be able to employ in bringing or defending an action in which he is interested. He, however, who suffers a former owner of the property in dispute to defend an action is, on account of his knowledge, barred by an exception, even though the suit was decided with reference to others; because the decision was rendered with his consent, so far as any right derived from the party appearing in the case was concerned. For if, through my intervention, my freedman is decided to be the slave or the freedman of another, my rights will be prejudiced. A distinction, however, arises where Titius brings suit against you to recover a tract of land, which I allege belongs to me directly, and not through Titius; for even though judgment has been rendered against Titius with my knowledge, I still do not suffer any prejudice to my rights, as I do not claim the land by the same title under which Titius was defeated; and I cannot interfere to prevent him from availing himself of his alleged right, just as was the case with the co-heir above mentioned.
64 Scaevola libro vicensimo quinto digestorum. Negotiorum gestorum condemnatus appellavit et diu negotium tractum est: quaesitum est appellatione eius iniusta pronuntiata, an, quo tardius iudicatum sit, usurae pecuniae in condemnatum deductae medii temporis debeantur. respondit secundum ea quae proponentur dandam utilem actionem.
64 Scævola, Digest, Book XXV. A certain man employed in transacting the business of others having had judgment rendered against him, appealed, and the case was not disposed of for a long time. The appeal, having been held to have been taken on insufficient grounds, and the execution of the judgment prolonged, the question arose whether interest should be calculated for the time of the original judgment until the appeal was decided. The answer was that, according to the facts stated, a prætorian action should be granted.