De appellationibus et relegationibus
(On appeals and reports.)
1 Ulpianus libro primo de appellationibus. Appellandi usus quam sit frequens quamque necessarius, nemo est qui nesciat, quippe cum iniquitatem iudicantium vel imperitiam recorrigat: licet nonnumquam bene latas sententias in peius reformet, neque enim utique melius pronuntiat qui novissimus sententiam laturus est. 1Quaesitum est, an adversus rescriptum principis provocari possit, forte si praeses provinciae vel quis alius consuluerit et ad consultationem eius fuerit rescriptum: est enim quaesitum, an appellandi ius supersit. quid enim, si in consulendo mentitus est? de qua re extat rescriptum divi Pii πρὸς τὸ κοινὸν τῶν Θρᾳκῶν, quo ostenditur provocari oportere. verba rescripti ita se habent: ‘Ἐὰν ἐπιστείλῃ τις ἡμῖν ἃ διὰ καὶ ἀντιγράφωμεν ἡμεῖς ὁτιοῦν, ὑπάρξει τοῖσ βουλομένοις έπικαλεῖσθαι πρὸς τὴν ἀπόφασιν. εἰ γὰρ διδάξειν ἢ ψευδῶς ἢ οὐχ οὕτως ἔχειν τὰ ἐπεσταλμένα, οὐδὲν ὑφ’ ἡμῶν εἶναι δόξῃ προδιεγνωσμένον, τῶν ὡς ἑτέρως ἔχουσιν τοῖσ γραφεῖσιν ἀντεπεσταλκότων’. 2Huic consequenter videtur rescriptum a consultatione iudicis non esse appellandum, si quis forte interlocutus fuit principem se consultaturum, cum possit post rescriptum provocare. 3Si quis in appellatione erraverit, ut puta cum alium appellare deberet, alium appellaverit, videndum, an error ei nihil offuit. et si quidem, cum maiorem iudicem appellare deberet, ita erravit, ut minorem appellet, error ei nocebit: si vero maiorem iudicem provocavit, error ei nihil oberit. et ita multis constitutionibus continetur. denique cum quidam iudicem ex rescripto principis a consulibus accepisset et praefectum urbi appellasset, errori eius subventum est rescripto divorum fratrum, cuius verba haec sunt: ‘Cum per errorem factum dicas, uti a iudice, quem ex rescripto nostro ab amplissimis consulibus acceperas, ad Iunium Rusticum amicum nostrum praefectum urbi provocares, consules amplissimi perinde cognoscant, atque si ad ipsos facta esset provocatio’. si quis ergo vel parem vel maiorem iudicem appellaverit, alium tamen pro alio, in ea causa est, ut error ei non noceat: sed si minorem, nocebit. 4Libelli qui dantur appellatorii ita sunt concipiendi, ut habeant scriptum et a quo dati sint, hoc est qui appellet, et adversus quem et a qua sententia.
1 Ulpianus, On Appeals, Book I. There is no one who is not aware how frequently appeals are employed, and how necessary they are to correct the injustice or the ignorance of judges; although sometimes sentences which have been properly imposed are changed for the worse, as he who renders the last judgment does not, for this reason, render a better one. 1The question arose whether an appeal could be taken from a Rescript of the Emperor, when the Governor of a province, or anyone else, asked his advice, and the Rescript was issued by way of answer. It was also asked whether the right of appeal remained. What should be done if the Governor, when asking advice, had made a false statement? There is a Rescript of the Divine Pius on this point, addressed to the Community of the Thracians, by which it is shown that the right to appeal continues to exist. The words of the Rescript are as follows: “If anyone should write to us and we should state anything to him in a Rescript by way of reply, he will be permitted to appeal from our decision. For if it should be shown that what had been written to us was either untrue, or was misrepresented, no decision will be considered to have been rendered by us; and any statement made to us will be considered as not having been made before the answer deciding against it was written.” 2In consequence of this, it is held to have been decided that an appeal should not be taken after the consultation of the judge, if he happens to have rendered an interlocutory decree setting forth that he will consult the Emperor, since the party can take an appeal after the Rescript has been issued. 3When anyone makes a mistake in an appeal, for instance, when he should appeal to one judge, and he appeals to another, let us see whether his mistake will prejudice him. And, indeed, if he ought to appeal to a superior judge, and errs by appealing to one of inferior jurisdiction, the mistake will prejudice him. If, however, he appeals to a superior judge, his mistake will not be to his disadvantage, and this rule is contained in several constitutions. Hence when anyone has accepted a judge appointed by the Consuls under a Rescript of the Emperor, and afterwards appeals to the Prefect of the City, relief is given him for his mistake, under a Rescript of the Divine Brothers, the words of which are as follows: “As you say that, through mistake, you have appealed from the judge, whom you accepted under the terms of our Rescript from the eminent Consuls, to our friend, Julius Rusticus, the Prefect of the City, the said eminent Consuls shall take cognizance of the case, just as if the appeal had been made to them.” If, then, anyone should appeal to a judge of equal or superior jurisdiction, or to one instead of another, his mistake will not prejudice him; but if he appeals to a judge of inferior jurisdiction, it will prejudice him. 4The document presented by the appellants ought to be drawn up in such a way as to contain the names of the parties by whom it has been filed; that is to say, the names of those who appeal, and state against whom they appeal, and from what decision.
2 Macer libro primo de appellationibus. Sed si apud acta quis appellaverit, satis erit, si dicat ‘appello’.
2 Macer, On Appeals, Book I. When anyone appeals at the time when the judgment is rendered, it will be sufficient for him to say, “I appeal.”
3 Ulpianus libro primo de appellationibus. Scio quaesitum, si quis non addiderit in libellis, contra quem adversarium appellet, an praescriptioni subiciatur: et puto nihil oportere praescribi. 1Sed illud cecidit in quaestionem, si plures habuerit adversarios et quorundam nomina libellis sint complexa, quorundam non, an aeque praescribi ei possit ab his, quorum nomina comprehensa non sunt, quasi adversus ipsos adquieverit sententiae. et cum una causa sit, arbitror non esse praescribendum. 2Certe si plures hi sunt, adversus quos pronuntiatur, et quorundam nomina in libellis sint comprehensa, quorundam non, hi soli appellasse videbuntur, quorum nomina libellis sunt comprehensa. 3Quid ergo, si causam appellandi certam dixerit, an liceat ei discedere ab hac et aliam causam allegare? an vero quasi forma quadam obstrictus sit? puto tamen, cum semel provocaverit, esse ei facultatem in agendo etiam aliam causam provocationis reddere persequique provocationem suam quibuscumque modis potuerit.
3 Ulpianus, On Appeals, Book I. When anyone does not mention in his petition against what adversary he appealed, I am aware that it has been asked whether he can be barred by an exception. I do not think that he can be barred in this manner. 1Where the appellant had several adversaries, and the names of some of them were included in his appeal, and those of others were not, the question arose whether he could be barred by an exception on the ground that, as their names were not included, he had, as it were, acquiesced in the decision, so far as they were concerned. As the cause of all is the same, I think that he should not be barred by an exception. 2It is clear that if there are several persons who have been convicted, and the names of some of them are included in the appeal, and those of the others are not, they only will be considered to have appealed whose names are mentioned in the petition. 3But what if a certain ground of appeal is mentioned? Can the appellant abandon it, and state another V Or, indeed, will he be bound, as by a certain formula? I think that when a party has once appealed, he should be permitted to give even another cause for doing so, and to prosecute it in every way that he can.
4 Macer libro primo de appellationibus. Ab exsecutore sententiae appellare non licet. 1Sed ab eo, qui sententiam male interpretari dicitur, appellare licet, si tamen is interpretandi potestatem habuit, velut praeses provinciae aut procurator Caesaris: ita tamen, ut in causis appellationis reddendis hoc solum quaeratur, an iure interpretatum sit: idque etiam divus Antoninus rescripsit. 2Alio condemnato is cuius interest appellare potest. qualis est, qui per procuratorem expertus victus est nec procurator suo nomine appellet. 3Item si emptor de proprietate victus est, eo cessante auctor eius appellare poterit: aut si auctor egerit et victus sit, non est deneganda emptori appellandi facultas. quid enim, si venditor, qui appellare noluit, idoneus non est? quin etiam si auctor appellaverit, deinde in causae defensione suspectus visus sit, perinde defensio causae emptori committenda est, atque si ipse appellasset. 4Idque ita constitutum est in persona creditoris, cum debitor victus appellasset nec ex fide causam defenderet. quae constitutio ita accipienda est, si interveniente creditore debitor de pignore victus provocaverit: nam absenti creditori nullum praeiudicium debitor facit, idque statutum est. 5Si procurator, qui iudicio interfuit, victus sit, an ipse quoque per procuratorem appellare possit, videamus, quia constat procuratorem alium procuratorem facere non posse. sed meminisse oportet, quod procurator lite contestata dominus litis efficitur: et ideo et per procuratorem appellare potest.
4 Macer, On Appeals, Book I. It is not permitted to appeal from the execution of a judgment. 1It is, however, permitted to appeal from the decision of one who is alleged to have placed a wrong interpretation upon a judgment, if he had the authority to interpret it, as, for instance, the Governor of a province, or the Imperial Procurator; provided that, in discussing the causes for granting the appeal the question alone is raised whether the interpretation was according to law. This was also stated by the Divine Antoninus in a Rescript. 2Where another person has been convicted, he who has an interest in the case can appeal; for instance, one who, having appointed an attorney, has been defeated, and the attorney did not appeal in his name. 3Likewise, if the purchaser is evicted of the property sold, and neglects to appeal, the vendor can appeal. Or, if he brings suit and is defeated, the vendor should not be denied the right to appeal. But what if the vendor who refused to appeal is not solvent? And even if he should appeal, and appears to be liable to suspicion when conducting the case, the defence for this reason can be entrusted to the purchaser, just as if he himself had appealed. 4This has been decided with reference to the creditor, when the debtor is defeated and appeals, for he did not faithfully defend his case. This constitution should be understood to mean that the creditor having intervened, the debtor lost his case involving a pledge and took an appeal. For it has been decided that the debtor, in case of the absence of his creditor, does not prejudice him in any way. 5Where an attorney who is conducting a case loses it, let us see whether he himself can appeal through another attorney, because it is established that one attorney cannot appoint another. It must, however, be remembered that an attorney, by the joinder of issue, becomes the master of the case, and therefore can appeal by the agency of another attorney.
5 Marcianus libro primo de appellationibus. A sententia inter alios dicta appellari non potest nisi ex iusta causa, veluti si quis in coheredum praeiudicium se condemnari patitur vel similem huic causam (quamvis et sine appellatione tutus est coheres): item fideiussores pro eo pro quo intervenerunt. igitur et venditoris fideiussor emptore victo appellabit, licet emptor et venditor adquiescant. 1Si heres institutus victus fuerit ab eo, qui de inofficioso testamento agebat, legatariis et qui libertatem acceperunt permittendum est appellare, si querantur per collusionem pronuntiatum: sicut divus Pius rescripsit. 2Idem rescripsit legatarios causam appellationis agere posse. 3Sed et si in fraudem suam transactionem factam ab eo qui appellasset dicerent, idem dicendum est. sed et sine appellatione si fuerit transactum, similiter rescriptum est. 4Si quis ipso die inter acta voce appellavit, hoc ei sufficit: sin autem hoc non fecerit, ad libellos appellatorios dandos biduum vel triduum computandum est.
5 Marcianus, On Appeals, Book I. An appeal cannot be taken from a decision affecting other parties, unless for some good reason; for instance, where a man has permitted himself to be convicted to the prejudice of his co-heir, or for some similar cause, although the co-heir may be secure even without an appeal. Likewise, where sureties appeal in behalf of him for whom they have become responsible. Therefore the surety of a vendor can appeal if the purchaser is defeated, even though both the purchaser and the vendor may acquiesce in the decision. 1When a testamentary heir is defeated by someone who brings an action on the ground that a will is inofficious, the legatees and those who have received their freedom are permitted to appeal, if they complain that the judgment has been obtained by collusion; as the Divine Pius stated in a Rescript. 2He also stated in a Rescript that legatees could appeal. 3The same must be said if they allege that the appellant has been concerned in a fraudulent transaction, to their prejudice. 4The same rule has been laid down in a Rescript as applicable, where a compromise has been effected without an appeal. When anyone, upon the same day, appeals verbally during the proceedings, this will be sufficient. If, however, he should not do so, two or three days should be computed to enable him to file his appeal.
6 Ulpianus libro secundo de appellationibus. Non tantum ei, qui ad supplicium ducitur, provocare permittitur, verum alii quoque nomine eius, non tantum si ille mandaverit, verum quisquis alius provocare voluerit. neque distinguitur, utrum necessarius eius sit nec ne: credo enim humanitatis ratione omnem provocantem audiri debere. ergo et si ipse adquiescit sententiae: nec quaerimus, cuius intersit. quid ergo, si resistat qui damnatus est adversus provocationem, nec velit admitti eius appellationem perire festinans? adhuc putem differendum supplicium.
6 Ulpianus, On Appeals, Book II. Not only is he who is brought to punishment permitted to appeal, but also others in his name; and not only when he himself directs this to be done, but where anyone else desires to appeal he can do so, nor does it make any difference whether he is nearly related to the defendant or not; for I think that on the ground of humanity every persons who appeals should be heard. Therefore, if the defendant himself acquiesces in the decision, we do not ask whether anyone else has an interest in the matter. But what should be done if the convicted person, hastening to lose his life, opposes the appeal, and does not wish it to be entertained? I still think that his punishment should be postponed.
7 Marcianus libro primo de appellationibus. Cum quidam propter violentiam iudicis non ipsi a quo appellavit dedit libellos, sed publice proposuisset, divus Severus veniam ei dedit et permisit ei causas appellationis agere.
7 Marcianus, On Appeals, Book I. When a certain man, being apprehensive of the violence of the judge, gave notice of appeal, not only to the court from which he appealed, but published it, the Divine Severus excused him, and permitted him to prosecute the appeal.
8 Ulpianus libro quarto de appellationibus. Illud sciendum est eum qui provocavit non debere conviciari ei a quo appellat: ceterum oportebit eum plecti. et ita divi fratres rescripserunt.
8 Ulpianus, On Appeals, Book IV. It must be remembered that the party who appeals should not abuse him from whom he appeals, for if he does, he shall be punished. This was stated by the Divine Brothers in a Rescript.
9 Macer libro secundo de appellationibus. Illud sciendum est neque pupillum neque rem publicam, cum pro libertate iudicatur, in integrum restitui posse, sed appellationem esse necessariam. idque ita rescriptum est.
9 Macer, On Appeals, Book II. It must be remembered that neither a ward, nor the State, can obtain complete restitution in a case where freedom is involved, but an appeal is necessary. This has been stated in various rescripts.
10 Ulpianus libro octavo disputationum. Si qui separatim fuerint condemnati, quamvis ex eadem causa, pluribus eis appellationibus opus est. 1Si quis, cum una actione ageretur, quae plures species in se habeat, pluribus summis sit condemnatus, quarum singulae notionem principis non faciunt, omnes autem coniunctae faciunt: poterit ad principem appellare. 2Sed cum adversus plures probatae essent rationes quae eis nocerent, sufficit eis una appellatio, quia uno titulo comprobatarum rationum omnes conveniebantur. 3Quotiens autem plures in unam summam condemnantur, utrum una sententia est et quasi plures in unam summam rei sint promittendi, ut unusquisque eorum in solidum teneatur, an vero scinditur in personas sententia, quaeritur. et Papinianus respondit scindi sententiam in personas atque ideo eos qui condemnati sunt viriles partes debere. 4Quod est rescriptum in communi causa, quotiens alter appellat, alter non, alterius victoriam ei proficere qui non provocavit, hoc ita demum probandum est, si una eademque causa fuit defensionis: ceterum si diversae, alia causa est. ut in duobus tutoribus procedit, si alter tutelam gesserat, alter non attigerat et is qui non gesserat provocavit: iniquum est enim, qui idcirco adgnoverat sententiam, quoniam gessisse se scit, propter appellationem eius qui non gesserat optinere.
10 Ulpianus, Disputations, Book VIII. When several persons have been convicted separately, although in the same case, they will be required to file several appeals. 1If anyone should bring an action which includes several claims, and the defendant is condemned to pay several sums of money, no one of which is sufficient to be submitted to the decision of the Emperor, but all of them united are sufficient, he can appeal to the Emperor. 2Where evidence was produced against several parties which caused them to be defeated, a single appeal will be sufficient, because all of them were sued together, and defeated by the same testimony. 3Whenever several persons are condemned to pay a single sum of money, is there not a single decision, and are they, as joint defendants, liable for the same amount, so that each one of them is liable in full; or should the judgment be divided into as many parts as there are persons? is a question which has been asked. Papinianus answered that the judgment should be divided among the persons, and therefore that those condemned were liable for equal portions. 4The statement contained in rescripts that, in a common cause, whenever one party appeals and another does not, the success of the first will benefit the second who did not appeal, is a rule which must be adopted, if there was but one ground of defence. Where, however, there were several, it is another thing; as happens in the case of two guardians, where one of them administers a guardianship, and the other has nothing to do with it, and the latter takes an appeal; for it is unjust that he who acquiesces in the judgment, as he knows that he transacted the business, should gain his case by the appeal of him who took no part in the administration of the guardianship.
11 Idem libro tertio de omnibus tribunalibus. Cum ex causa iudicati soluta esset pecunia ex necessitate iudicis ab eo, qui appellatione interposita meruerit meliorem sententiam, recipere eum pecuniam quam solvit oportet.
11 The Same, On All Tribunals, Book III. When money was paid on the execution of a judgment, and on appeal a more favorable decision was rendered, the party can recover the money which he paid.
12 Idem libro secundo opinionum. Si constet nullo actu ex lege habito duumvirum creatum, sed tantum vocibus popularium postulatum eisque tunc proconsulem, quod facere non debuit, consensisse: appellatio in re aperta supervacua fuit.
12 The Same, Opinions, Book II. If it is established that a duumvir has been created without observing the formalities prescribed by law, but only because he was demanded by the voice of the people, to which the Proconsul consented without having any right to do so, an appeal in so plain a case is superfluous.
13 Idem libro secundo responsorum. Appellanti nihil obesse, quod in libellis a qua parte sententiae appellaret non significavit. 1Non solere improbari appellationem eorum, qui vel unam causam appellandi probabilem habuerunt.
14 Idem libro quarto decimo ad edictum. Si perlusorio iudicio actum sit adversus testamentum, an ius faciat iudex, videndum. et divus Pius, cum inter coniunctas personas diceretur per collusionem in necem legatariorum et libertatium actum, appellare eis permisit. et hodie hoc iure utimur, ut possint appellare: sed et agere causam apud ipsum iudicem, qui de testamento cognoscit, si suspicantur non ex fide heredem causam agere. 1Quotiens herede non respondente secundum adversarium sententia datur, rescriptum est nihil nocere neque legatis neque libertatibus. et hoc divorum fratrum epistula continetur ad Domitium in haec verba: ‘Quod absente possessore nec quoquam nomine eius respondente pronuntiatum est, non habet rei iudicatae auctoritatem nisi adversus eum solum qui adesse neglexerit. quare his, qui testamento libertates vel legata vel fideicommissa acceperunt, salvae sunt actiones, si quas habuerunt, perinde ac si nihil esset iudicatum: et ideo adversus eum qui vicit permittimus eis agere’.
14 The Same, On the Edict, Book XIV. When a judgment is rendered against a will, by collusion, let us see whether the decision of the court will stand. The Divine Pius permitted the parties to appeal when it was alleged that certain persons had joined together, through collusion, to annul the rights of legatees, and slaves who had obtained their freedom; and, at present, this is the law, that is to say, they can appeal, and even appear in court before the same judge who tried the case relating to the will, if they have reason to suspect that the heir will not faithfully conduct the defence. 1Whenever the heir does not answer, a decision is rendered in favor of his adversary, and it has been stated in a Rescript that this does not prejudice either legacies or grants of freedom. This Rescript of the Divine Brothers, addressed to Domitius, is as follows: “Whenever the possessor is absent, and no one answers in his name, it has been decided that the judgment will not have the authority of res judicata, unless it is rendered only against him alone who failed to appear. Therefore rights of action are preserved for those who have received freedom, legacies, or trusts by the will, if they are entitled to any, just as if no judgment had been rendered; and therefore we permit them to proceed against the party who gained the case.”
15 Marcellus libro primo digestorum. Servi appellare non possunt: sed domini eorum ad opem servo ferendam possunt uti auxilio appellationis, et alius domini nomine id facere potest. sin vero neque dominus neque alius pro domino appellaverit, [ed. maior ipsi] <ed. minor ipso> servo, qui sententiam tristem passus est, auxilium sibi implorare non denegamus.
15 Marcellus, Digest, Book I. Slaves cannot appeal, but their masters, in order to assist them, can resort to an appeal, and anyone else can do this in the name of the master. When, however, neither the master appeals, nor anyone else does so for him, we do not refuse the slave the privilege of imploring relief for himself, after having received so severe a sentence.
16 Modestinus libro sexto differentiarum. Constitutiones, quae de recipiendis nec non appellationibus loquuntur, ut nihil novi fiat, locum non habent in eorum persona, quos damnatos statim puniri publice interest: ut sunt insignes latrones vel seditionum concitatores vel duces factionum.
16 Modestinus, Differences, Book VI. The constitutions which discuss the question whether appeals should be received or not, so that nothing new may be introduced against them, do not apply to those whom it is for the interest of the public to be punished without delay; as, for instance, notorious robbers, or persons who instigate sedition, or the leaders of factions.
17 Idem libro octavo regularum. Cum in una causa separatim duplex sententia divisa datur, veluti una sortis, alia usurarum, duplex appellatio necessaria est, ne alteram adgnovisse, de altera provocasse intellegatur. 1Tutor pupillo datus si provocet, interim pupillo curator dabitur. sed si tutoris auctoritas fuerit necessaria, veluti ad adeundam hereditatem, tutor ei necessario dabitur, quoniam curatoris auctoritas ad hoc inutilis est.
17 The Same, Rules, Book VIII. Where two separate decisions have been rendered in a single case, for example, one with reference to the principal and the other with reference to the interest, two appeals will be necessary, lest it may be understood that the party accepted one, and appealed from the other. 1When a guardian, appointed for a ward, appeals, a curator will be appointed for the ward in the meantime. If, however, the authority of the guardian should be necessary, as, for instance, for the acceptance of an estate, a guardian will necessarily be appointed, as the authority of a curator is not sufficient for this purpose.
18 Idem libro septimo decimo responsorum. Lucius Titius pro servo suo, qui ad bestias datus est, provocationem interposuit: quaero, an huiusmodi appellationis causas per procuratorem reddere possit. Modestinus respondit posse.
18 The Same, Opinions, Book XVII. Lucius Titius filed an appeal for his slave, who had been condemned to be thrown to wild beasts. I ask whether he can state the grounds for an appeal of this kind by an attorney. Modestinus answered that he could do so.
19 Idem libro singulari de enucleatis casibus. Si expressim sententia contra iuris rigorem data fuerit, valere non debet: et ideo et sine appellatione causa denuo induci potest. non iure profertur sententia, si specialiter contra leges vel senatus consultum vel constitutionem fuerit prolata. unde si quis ex hac sententia appellaverit et praescriptione summotus sit, minime confirmatur ex hac praescriptione sententia. unde potest causa ab initio agitari.
19 The Same, Cases Explained. If a decision has been rendered directly against the strict interpretation of the law, it should not be valid, and therefore the case can be heard again without an appeal. A decision is not legally pronounced, if it is rendered specially against the laws, a Decree of the Senate, or an Imperial Constitution. Therefore, when anyone appeals from such a decision, and is barred by an exception, the decision is by no means confirmed by this procedure, hence the action can be brought again.
20 Idem libro singulari de praescriptionibus. Qui suspectum tutorem facit et qui de non recipienda tutela excusationem agitat, alieno nomine agere intellegendus est. 1Is vero qui in rem suam procurator datus est, intra biduum appellare debet, quia suam causam agit. 2Militibus appellandi tempora non remittuntur, et victi si non provocaverint et sollemnia fecerint, postea non audiuntur.
20 The Same, On Prescriptions. Anyone who accuses a guardian of being liable to suspicion, and calls in question his excuse for not accepting the guardianship, is understood to act in the name of another. 1He who is appointed an attorney in his own behalf should appeal within two days, because he is conducting his own case. 2No further time for appeal is granted to soldiers, and if, after having been defeated, they do not appeal and comply with the usual formalities, they shall not afterwards be heard.
21 Papirius Iustus libro primo de constitutionibus. Imperatores Antoninus et Verus rescripserunt appellationes, quae recto ad principem factae sunt omissis his, ad quos debuerunt fieri ex imo ordine, ad praesides remitti. 1Idem rescripserunt ab iudice, quem a praeside provinciae quis acceperat, non recte imperatorem appellatum esse ideoque reverti eum ad praesidem debere. 2Si magistratus creatus appellaverit, collegam eius interim utriusque officium sustinere debere: si uterque appellaverit, alium interim in locum eorum creandum: et eum, qui non iuste appellaverit, damnum adgniturum, si quod res publica passa sit: si vero iusta sit appellatio et hoc pronuntietur, eos aestimaturos, cui hoc adscribendum sit. in locum autem curatoris, qui annonam administraturus est, alium interim adsumendum, quoad usque appellatio pendeat. 3Idem rescripserunt, quamvis usitatum non sit post appellationem fructus agri, de quo disceptatio sit, deponi, tamen, cum populi traherentur ab adversario, aequum sibi videri fructus apud sequestres deponi.
21 Papirius Justus, On the Constitutions, Book I. The Emperors Antoninus and Verus stated in a Rescript that appeals which have been made directly to the Emperor, without having been first presented to those magistrates of inferior rank, before whom this ought to be done, are returned to the Governors. 1They also stated in a Rescript that an appeal is not properly taken to the Emperor from a judge appointed by the Governor of the province, and therefore that it should be sent back to the latter. 2When anyone who has been appointed a magistrate appeals, his colleague, in the meantime, shall discharge the duties of both. If both should appeal, another magistrate shall temporarily be appointed in their stead, and he who did not appeal justly must pay the damage sustained by the government. Where, however, the appeal was well founded, and it was so decided, it shall be determined who shall pay the damages sustained. Another should, in the meantime, be appointed a curator, to take charge of the distribution of provisions while the appeal is pending. 3They also stated in a Rescript that although it is not customary, after an appeal has been taken, for the crops of land in litigation to be deposited, still, as they might be destroyed by the adverse party, it seemed to them to be just that they should be placed in the hands of a sequestrator.
22 Papinianus libro secundo responsorum. Ad principem remissa cognitio ab eo circumduci potest, qui remisit.
22 Papinianus, Opinions, Book II. When a case is submitted to the Emperor for examination, it can be recalled by the person who sent it.
23 Idem libro nono decimo responsorum. Ex consensu litigantium citra compromissum a praeside provinciae iudice dato victus potest provocare. 1Cum procurator Caesaris, qui partibus praesidis non fungebatur, in lite privatorum ius dandi iudicis non habuisset, frustra provocatum ab ea sententia constitit, quae non tenebat. 2Filium familias, cum adversus patrem eius de bonis, quae per ipsum poterant adquiri, pronuntiatum esset, respondi non nisi patris nomine potuisse provocare. 3Eum, qui cognovit edictum peremptorium, secundum ordinis causam dati placuit non recte provocasse, cum in eius potestate fuerit ante diem praestitutum pro tribunali respondentem aut defensum edicti denuntiationem rumpere.
23 The Same, Opinions, Book XIX. When a judge has been appointed by the Governor of a province for the purpose of compromising a case with the consent of the litigants, the defeated party can appeal. 1When a representative of the Emperor who did not discharge the duties of Governor, or have the right to appoint a judge in private causes, gave a decision, it was held that it was useless to appeal from a judgment which did not render anyone liable. 2When a decision was rendered against the father of a son under paternal control, involving property which he could acquire through his son, I gave it as my opinion that the son could not appeal except in the name of his father. 3It was decided that he who knew that a peremptory Edict was granted him on account of his rank had no right to appeal, since it was in his power to answer in court before the day appointed, and thereby protect himself by avoiding the denunciation of the Edict.
24 Scaevola libro quinto responsorum. Negotiorum gestor vel tutor vel curator bona fide condemnati appellaverunt et diu negotium tractum est: quaesitum est appellatione eorum iniusta pronuntiata an, quia tardius iudicatum sit, usurae principalis pecuniae medii temporis debeantur. respondit secundum ea quae proponerentur dandam utilem actionem. 1Curator iuvenis adversus tutoris heredes iudicio expertus appellationem interposuit: cum implesset autem vicensimum quintum annum aetatis iuvenis et in militia ageret, exequi appellationem desiit. quaero, regressus a militia utrum ipse appellationem explicare deberet an vero curatorem in eam rem conveniri oporteret. respondit ipsum militem litem ad se pertinentem exsequi debere secundum ea quae proponerentur.
24 Scævola, Opinions, Book V. Where anyone who transacts the business of another in good faith or as a guardian, or a curator, has been condemned, and has appealed; and, after the case had been protracted for a long time, the appeal finally was decided not to have been made on good grounds; the question arose whether, because judgment was rendered subsequently, the interest on the principal for the intermediate time is due. The answer is that, according to the facts stated, a prætorian action should be granted. 1The curator of a minor in a suit brought against the heirs of his guardian filed an appeal. As the young man had then passed the age of twenty-five years, and was in the army, he neglected to prosecute his appeal. Having returned from the army, I ask whether he himself should prosecute his appeal, or should apply to his curator to do so. The answer was that, in accordance with the facts stated, the soldier himself should proceed with the case in which he was interested.
25 Paulus libro vicensimo responsorum. Ἀυτοκράτωρ Ἀλέξανδρος τῷ κοινῷ τῶν ἐν Βιθυνίᾳ Ἑλλήνων. Ἐκκαλεῖσθαι μὲν πῶς ἄν τις κωλύοιτο ὑπὸ τῶν δικαζόντων, οὐχ ὁρῶ, ὁπότε ἔξεστιν τὴν ἑτέραν ὁδὸν τρεπόμενον ταὐτὸ ποιεῖν καὶ θᾶττον πρός με ἀφικνεῖσθαι. ὕβρει δὲ καὶ βίᾳ χρῆσθαι πρὸς τοὺς ἐκκαλουμένους καὶ φρουρὰν στρατιωτικὴν περιιστᾶν καὶ ἁπλῶς εἰπεῖν ἀποφράττειν αὐτοῖς τὴν δεῦρο ἄνοδον ἀπαγορεύομεν τοῖς ἐπιτρόποις καὶ τοῖς ἡγουμένοις τῶν ἐθνῶν. καὶ πεισθήσονται ταύτῃ μου τῇ προρρήσει, εἰδότες ὅτι τοσοῦτόν μοι μέλει τῆς τῶν ἀρχομένων ἐλευθερίας, ὅσον καὶ τῆς εὐνοίας αὐτῶν καὶ πειθοῦς.
25 Paulus, Opinions, Book XX. “The Emperor Alexander to the Community of the Greeks, who are in Bithynia. I do not see how anyone can be prevented from appealing from a judgment, when there is another way open to do the same thing, and to reach me more promptly. We forbid curators and the heads of nations to make use of abuse and violence against parties who appeal, and (to speak more plainly) to prevent them from having access to us; and they must obey this my decision, being well aware that the liberty of those who govern is as much the object of my solicitude as their good will and obedience.”
26 Hermogenianus libro secundo iuris epitomarum. Ad imperatorem causam remissam partibus consentientibus praeses, si ad eius notionem pertinet, audire potest.
26 Hermogenianus, Epitomes of Law, Book II. When a case is sent to the Emperor, the Governor can hear it with the consent of the parties, if it is in his jurisdiction.
27 Idem libro quinto iuris epitomarum. Tutor si in negotio pupilli provocaverit vel curator in adulti, heres eius, antequam reddat rationes, appellationis causam persequi debet: nam post redditas rationes nec ipse tutor nec curator appellationis merita probare cogitur.
27 The Same, Epitomes of Laiv, Book V. Where a guardian takes an appeal in a matter concerning his ward, or a curator does so in the case of an adult, he can prosecute the appeal before the heir of either renders his accounts; for after the accounts have been rendered, neither the guardian nor the curator will be compelled to sustain the merits of the appeal.
28 Scaevola libro vicensimo quinto digestorum. Creditor cum fideiussoribus egerat: sed post iudicium acceptum ad agendam causam ipse non adfuit et, cum absoluti essent fideiussores, servus eius appellavit. quaesitum est, an appellatio, quam servus interposuit nomine domini, nullius momenti esset. respondit eiusmodi appellationem non esse observandam. 1Iussus a iudice exhibere secundum praeceptum praesidis provinciae rationes, quas apud se esse caverat, instrumentorum gratia data dilatione nec postea exhibuit ideoque secundum constitutionem recitatam, quia per contumaciam instrumenta non exhibuerat, cum petitor quanti sua interesset exhiberi iurasset, facta erat condemnatio. quaesitum est, an post iusiurandum appellationem interponere possit. respondit nihil proponi, cur denegandum esset appellationis auxilium. 2Substituti tutores in locum legitimi tutoris experti cum eo tutelae iudicio, cum arbiter inique condemnavit, quam rei aequitas exigebat, a sententia eius provocaverunt: pendente causa appellationis iuvenes adoleverunt. quaesitum est, cum omnis exsecutio huius ad adultos pertineat et causam ad se pertinentem idonee tueri possunt, an postulatio eorum, contra quos appellatum erat, dicentium illos debuisse causas appellationis reddere, qui primi sunt experti, admittenda non sit. respondit eos, quorum tutela gesta esset, si vellent causam exsequi, non prohibendos. idem et in curatoribus observandum est, si interim adultus ad legitimam aetatem pervenit.
28 Scævola, Digest, Book XXV. A creditor who had brought suit against the sureties was not present at the trial of the case, after issue had been joined, and when the sureties were discharged his slave appealed. The question was asked whether the appeal which the slave interposed in behalf of his master was of any force or effect. The answer was that such an appeal should not receive any attention. 1A man having been ordered by a judge to appear in court, in accordance with the command of the Governor of the province, and produce certain accounts which he alleged were in his possession, did not do so, even after delay had been granted him for this purpose; and therefore, after the constitution had been read to him, for the reason that through obstinacy he had failed to produce the documents demanded, and the plaintiff proved the amount of his interest in having them produced, by taking an oath, the defendant was convicted. The question arose whether he could file an appeal after the oath had been taken. The answer was that nothing had been stated to show why the benefit of an appeal should be denied him. 2Guardians who had been substituted in the place of a legal guardian, having brought an action on guardianship against him, the arbitrator appointed condemned him unjustly, and because the equity of the case required it, they appealed from his decision. While the appeal was pending, the young men grew up. As the entire procedure had reference to persons who were grown, and they were in a condition to protect their own interests, the question arose whether the demand of those against whom the appeal had been taken, who alleged that the ground of the appeal must be stated by those who first brought the suit, should be admitted. The answer was, that if those whose guardianship had been administered desired to proceed with the case, they ought to be prevented from doing so. The same rule should be observed with reference to curators, if, in the meantime, the youth should arrive at lawful age.