Callistratus, On the Monitory Edict, Book I. The same rule applies to the patroness, or to the children, the wife, or the daughter-in-law of the patron; for anyone of these persons can give a surety who must be accepted; and where the plaintiff refuses to accept him, being aware that the parties are nearly related, an action for fifty aurei will lie.

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

Callistratus, Monitory Edict, Book I. I know that it has been held by some authorities that a party who applies for complete restitution shall not be heard where some very insignificant affair or sum is involved, if this would prejudice the hearing of some more important matter, or the collection of a larger sum.

Callistratus, Monitory Edict, Book I. Labeo states than an unborn child is entitled to an action for restitution, where he has lost something by usucaption. 1The Emperor Titus Antoninus stated in a Rescript that where a minor alleged that his adversary had been discharged through the fraud of his guardian, and wished to begin a new action against him, he could first bring suit against his guardian.

Callistratus, Monitory Edict, Book I. As it is provided by the Lex Julia that a minor under twenty years of age cannot be compelled to act as judge; likewise, no one is permitted to select a minor under twenty years of age to serve as judge in an arbitration; and therefore a penalty is not incurred under any circumstances through an award made by him. Many authorities have stated that, where a party is over twenty years of age, and under twenty-five, and he rashly undertakes to hear a case of arbitration, in an instance of this kind relief should be granted.

Licinius Rufinus, Rules, Book VIII. A ward, through borrowing money, does not render himself liable by natural law.

Callistratus, The Monitory Edict, Book I. Less than the entire amount is paid either by quantity or by time.

Callistratus, On the Monitory Edict, Book I. A ship is in distress when it is plundered, or submerged, or broken open, or has a hole made in it, or its cables are cut, or its sails torn, or its anchors are carried away by the sea.

Callistratus, Monitory Edict, Book II. This Edict, so far as it relates to those who are included therein, is not much used at present, as justice is administered in the case of such persons by extraordinary procedure, based upon the decrees of the Senate and the Imperial Constitutions. 1Those persons are chiefly relieved under this head who are absent on account of fear; that is to say, where they were not deterred by alarm that had no foundation.

Callistratus, Monitory Edict, Book II. Those who are included who, without fraudulent intent, were absent in the service of the State. The expression “fraudulent intent” must be understood to have reference to a case in which a person who can return, does not do so and is not relieved, in case any wrong has been committed against him during his absence; as, for instance, where he remained away for the purpose of obtaining some substantial advantage for himself while he was absent in the service of the State, he would be deprived of this privilege.

Callistratus, Monitory Edict, Book II. Relief is also granted to anyone who is in prison, which not only refers to those who are in public prisons but also to persons who are kept in confinement by thieves, or robbers, or by the employment of resistless force. The term has a broader signification, for those also are considered to be imprisoned who are confined in stone quarries, because it makes no difference whether they are restrained by walls, or by fetters. Labeo thinks, however, that the term should only be understood to mean legal imprisonment.

Callistratus, Monitory Edict, Book II. Relief is also granted to those who are in slavery, whether, being freemen, they served as slaves in good faith, or whether they were simply detained.

Callistratus, Monitory Edict, Book II. Relief is also granted to him who is in the power of the enemy, that is to say who has been captured by him, for it must not be thought that any benefit is accorded to deserters, to whom the right to return is denied. Those, however, who are in the power of the enemy may be considered to be included in that part of the Edict, in which persons who have been in slavery are mentioned.

Callistratus, Monitory Edict, Book II. Where a field belongs to anyone by the right of purchase, proceedings cannot properly be instituted by an action of this kind before the field has been delivered, and possession of the same lost. 1An heir may properly bring suit for what is due to the estate, even though he may not yet have obtained possession of it.

Callistratus, Monitory Edict, Book II. Where the slave is in the power of one who is not his owner, and is said to have committed an offence, if he is not defended he will be taken away; and if his owner is present, he should deliver him up and give security against malicious fraud.

Callistratus, Monitory Edict, Book II. The heir should be interrogated in court with reference to what part of the estate he is the heir, whenever an action is brought against him, and the plaintiff is in doubt as to what share the person whom he intends to sue is heir. An interrogatory is necessary whenever the action is in personam, where suit is brought for a certain amount, as otherwise the plaintiff would be ignorant as to what portion of the estate of the deceased his adversary was entitled as heir, and sometimes he might claim too much and sustain some loss. 1We do not, however, make use of interrogatory actions at present, because no one can be compelled to answer anything with reference to his rights before the case is tried; and therefore these actions are less used and have fallen into desuetude. Only matters stated by the adverse party in court can be employed as proof by litigants, whether such matters relate to estates or to other things involved in judicial proceedings.

Ad Dig. 3,5,28ROHGE, Bd. 15 (1875), Nr. 19, S. 48: Interesse, der Betrag, den der Beschädigte einem Dritten hat bezahlen müssen.Callistratus, Monitory Edict, Book III. Where a father by his will, appointed a guardian for his posthumous son, and the guardian, in the meantime, administered the guardianship, and the child was not born; an action will lie against him, not on the ground of guardianship, but on that of business transacted; but if a posthumous child should be born, there will be an action on guardianship, and this would include both terms of administration, the one before the child was born, and the one afterwards.

Callistratus, On the Monitory Edict, Book III. Where several guardians are prepared to furnish security, the most solvent of them should be given the preference; so that comparison may be made between the guardians and their sureties.

Callistratus, On the Monitory Edict, Book III. Even though the property which has been bequeathed or left in trust may be only of trifling value, still, if it is not delivered by the heir, or security furnished by him to do so, when it is necessary to give security, the Prætor will place the legatee or the beneficiary of the trust in possession of the entire estate, for the purpose of securing the payment of the legacy.

Callistratus, On the Monitory Edict, Book III. Services are only understood to be properly imposed where they can be performed without disgrace, and without danger to life. For if a slave, who is a prostitute, should be manumitted, she ought not to render the same services to her patron, although she may still profit by the sale of her body; and if a gladiator should be manumitted, he does not owe his patron the same services, because these cannot be performed without danger to life. 1Where, however, a freedman is employed in some trade, he should give his services relating thereto, even if he has learned the trade after his manumission. If he ceases to exercise that trade, he should contribute such services as are not inconsistent with his rank; as, for example, he can live with his patron, travel with him, or transact his business.

Ad Dig. 31,63Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.Callistratus, On the Monitory Edict, Book IV. Where an heir who is not aware that certain property has been bequeathed uses it to pay the funeral expenses, he will not be liable to an action for the production of said property, because he is not in possession of it, and did not act fraudulently to avoid having possession. The legatee, however, will be granted an action in factum, in order that he may be indemnified by the heir.