Marcellus, Digest, Book III. Cassius Longinus is of the opinion that when a man has been expelled from the Senate for infamous behaviour, and has not been reinstated, he should not be permitted to preside in court, or testify as a witness; for the reason that the Lex Julia forbids this to be done in cases of extortion.

Marcellus, Digest, Book III. The Divine Antoninus made the following statement in a Rescript addressed to Marcius Avitus, the Prætor, on the subject of relieving a person who had lost his property while absent: “Although changes should not be readily made in matters which have been solemnly established, still, where equity clearly demands it, relief must be granted; and therefore, where a party who was summoned did not appear, and on this account judgment was formally rendered against him, and he soon afterwards appeared before the court where you were presiding; it may be supposed that his non-appearance was due, not so much to his own fault, as to the imperfectly heard voice of the crier, and therefore he is entitled to restitution.” 1Ad Dig. 4,1,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 118, Note 6.The aid of the Emperor does not seem to be limited to cases of this kind alone, for relief should be granted to persons who have been deceived without their own fault, and especially where fraud was committed by their adversaries, since it is usual for an action based upon fraud to be requested; and it is the duty of a just prætor to grant a new trial, which both reason and justice demand, rather than to allow an action involving turpitude to be brought, which should be resorted to only when no other remedy is available.

Marcellus, Digest, Book III. To say that a will is inofficious means to allege that the party should not have been disinherited or passed over; because it generally happens that where parents are improperly influenced to disinherit or pass over their children, this is due to false representations.

Marcellus, Digest, Book III. Those, also, who are not descended from the testator in the male line, have the right to institute proceedings, as they can do so in case of the testament of a mother; and they very frequently succeed. The force of the term “inofficious” is, (as I have already stated), to show that the party was undeservedly and therefore improperly passed over, or even excluded by disinheritance, and the allegation is made in court that the testator does not appear to have been of sound mind when he executed an unjust will.

Marcellus, Digest, Book III. Where, in the case of an inofficious testament, part of the judges rendered a decision against it, and part in favor of it, which is sometimes done; it will be more humane to adopt the opinion of those who favored the testament, unless where it is clearly apparent that they rendered an unjust decision in favor of the party who was appointed heir. 1It is a well known fact that anyone who accepts a legacy cannot properly allege that the will is inofficious, unless he transferred the entire legacy to another person.

Marcellus, Digest, Book III. The Senate decreed that the registers of the Censor and the public records are better evidence than that of witnesses.

Marcellus, Digest, Book V. All the judges are understood to have rendered a decision when they are all present.

Marcellus, Digest, Book III. An adversary is not considered to admit the claim of the other party, merely because he has recourse to an exception.

Marcellus, Digest, Book III. A man stipulated for wheat to be delivered to him. This is a question of fact, and not of law. Therefore, if he had a certain kind of wheat in his mind, that is to say, wheat of a certain quality, or of a certain quantity, this is considered to have been stated. Otherwise, if he intended to designate the kind of wheat and the amount, and did not do so, he is considered not to have stipulated for anything, and hence the other party is not bound to deliver a single measure of wheat.

Marcellus, Digest, Book XIII. Although the formalities required by law are not easily changed, still relief should be granted where equity clearly demands it.