Paulus, On the Edict, Book XVII. Where the Prætor forbids one of several persons to preside as judge, he is held to have allowed the others to do so. 1Those authorities can appoint a judge to whom this right is granted by a law, or by a constitution, or by a decree of the Senate. By a law; for example, this right may be conferred upon a Proconsul. He also can appoint a judge to whom jurisdiction has been delegated, as, for instance, the Deputies of Proconsuls. Moreover, those can do so to whom it has been permitted by custom, on account of the Imperial authority which they enjoy, for instance, the Prefect of the City, and other magistrates at Rome. 2Those who have the right to appoint judges cannot appoint them indiscriminately; for some persons are prevented by law from becoming judges; others are prevented by nature; and others, still, by custom. By nature; as persons who are deaf, dumb, and such as are incurably insane, as well as boys who are minors, because they are deficient in judgment. A party is prevented by law, who has been expelled from the Senate. Women and slaves are prevented by custom, not because they are deficient in judgment, but because it has been established that they cannot perform the duties belonging to civil employments. 3When persons are eligible as judges, it makes no difference whether they are under the control of another, or are their own masters.

Paulus, On the Edict, Book XVII. For the reason that proof of entry upon an estate is, for the most part, difficult.

Paulus, On the Edict, Book XVII. Where a son who has rejected his father’s estate, is interrogated in court and answers that he is the heir, he will be liable; for by answering in this manner he is held to have acted as the heir. But if a son who has rejected the estate is interrogated, and remains silent, he is entitled to relief; for the Prætor does not consider anyone who has rejected an estate as an heir. 1Any exception which can be employed in bar of an action brought in court against defendants can also be employed by a party against whom proceedings have been instituted on account of his answer; as, for instance, one based upon informal agreement, or previous decision, etc.

Paulus, On the Edict, Book VII. Where, in the action on deposit, suit is brought against one of several heirs on account of an act of the deceased, I must sue him for his share of the estate; but if, on account of an offence which he has committed, I do not sue him for a share, this is reasonable, because the measure of damages has reference to the act of bad faith which the heir himself committed.

Paulus, On the Edict, Book XVII. He who has power to condemn has also power to discharge from liability.

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.

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.

Paulus, On the Edict, Book XVII. When a decision is rendered under the interdict Unde vi, it should be for the value of the interest the plaintiff had in remaining in possession of the property. Pomponius says that this is our practice, that is to say, that the property is considered to be equal in value to the interest of the plaintiff. This may be either less, or more, for often it is more to the interest of the plaintiff to retain a slave than he is worth; for example, where it is to the interest of the owner to have possession of him, either that he may be put to torture, or prove some fact, or accept an estate.

The Same, On the Edict, Book XVII. He is understood to make restitution who surrenders the property in dispute to the plaintiff which the latter would have obtained if it had been delivered to him at the time judgment was rendered; that is to say, both the right of usucaption, and the profits.