The Same, Disputations, Book VIII. In the case of a peremptory citation the following rule must be observed; the party bringing the action may apply for one summons if his adversary is absent, and subsequently for a second:

The Same, Disputations, Book VIII. And then a third; and these having been issued, he can afterwards obtain a peremptory citation. This term is employed because it puts an end to the controversy; that is to say, it does not permit the adversary to longer delay.

The Same, Disputations, Book VIII. This citation is sometimes granted after the three others have preceded it, sometimes after only one, or two, have been issued, and sometimes it is granted at once, and is designated “one for all”. The course to be pursued shall be determined by him who exercises jurisdiction, and he must arrange the order of the citations, or regulate them according to the circumstances of the case, or of the person, or of the time.

The Same, Disputations, Book VIII. Where an heir has been appointed on a condition, for instance if he should manumit Stichus, and he does manumit him, and afterwards the will should be declared inofficious or unjust; it is but right in order that he may obtain relief, that is to say, he should recover the value of the slave from him after his manumission, to avoid his losing him altogether.

Ulpianus, Disputations, Book VIII. Where, in a conditional sale, it was also agreed that the property should remain at the risk of the purchaser, I think that the agreement will be valid.

Ad Dig. 20,6,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 15.Ulpianus, Disputations, Book VIII. Where property has been sold under the condition that, unless a better offer is made for it, the sale shall stand, and the property is delivered, and the purchaser, before the time for the offer of a better price has passed, pledges the said property, Marcellus says in the Fifth Book of the Digest that the right to the pledge is extinguished, if better terms should be offered; although where the property is sold on condition that it will please the purchaser, he does not think that the right to the pledge is extinguished.

Ulpiamis, Disputations, Book VIII. There is no doubt that proceedings for the return of property can also be brought in the case of the sale of a tract of land, as, for example, where land is sold which is injurious to health; for it should be returned. And it is but equitable to hold that the purchaser is not liable for the taxes at any time after the return of the property.

The Same, Disputations, Book VIII. Where anyone appoints an heir as follows: “Let Titius be the heir to that portion of my estate to which I have appointed him by a codicil”; he will still be the heir, as having been appointed without any certain share, even though his share was not mentioned in the codicil.

Ulpianus, Disputations, Book VIII. An appointment like the following: “If I appoint Seius my heir by a codicil, let him be my heir”, is not void, so far as the appointed heir is concerned, except where that heir is a son; for this is a conditional appointment, and the estate is not held to be bequeathed by a codicil, which is forbidden by law, but it is a conditional appointment made by will. Hence, if the testator should say: “Let him be my heir whose name I shall insert in a codicil”, it must be held, for the same reason, that the appointment will be valid, there being no law preventing it. 1If we make an appointment as follows: “Let So-and-So be my heir, if I have appointed him heir by a codicil”, the appointment will be valid, even with reference to a son who is under paternal control, because a condition is not imposed every time that the past or present is referred to; for example: “If the King of the Parthians should be living”; “If a ship should be in port.”

The Same, Disputations, Book VIII. Where a legatee is charged with a trust, he is only bound to carry it out if the property bequeathed comes into his hands.

Ulpianus, Disputations, Book VIII. If anyone to whom an usufruct has been bequeathed is charged with a trust, and the usufruct should not come into the hands of the legatee, the heir in whom the said usufruct remains, must execute the trust. This rule also applies to a military will, if the legatee charged with the trust should reject the legacy, or should die during the lifetime of the testator.

Ulpianus, Disputations, Book VIII. The question arose, where a testator, whose sole estate consisted of a claim of four hundred aurei, bequeathed to his debtor the release of his claim, but left four hundred aurei to Seius, if the debtor should be insolvent, or was not worth the hundred aurei, how much each one would be compelled to contribute under the Falcidian Law. I stated that the Falcidian Law intended that a fourth should be paid to the heir out of what could be obtained from the estate, and that the remaining three-fourths should be distributed among the legatees. Therefore, when a claim which is not perfectly good forms part of an estate, a distribution of what can be collected should be made pro rata, and the remainder should be sold so that the value of what can be sold should only be counted among the assets of the estate. Where, however, a release of the claim is bequeathed to the debtor, he himself is considered to be solvent, and, so far as he himself is concerned he is rich, although, if he had received the amount which he owed mortis causa, he would be considered to have received four hundred aurei, even though he could not pay anything, for he is understood to have been fully released from liability, even though he may have nothing if he is released; and hence, upon the application of the Falcidian Law, the heir should give him a receipt for three hundred aurei, and retain the remainder of the obligation of a hundred, for if the debtor should become solvent, he can only collect a hundred aurei from him. The same rule must be held to apply where, on account of a donation mortis causa, a receipt is given to the debtor for four hundred aurei. Wherefore, it has been very properly held that the effect of the release remains in suspense, for if, at the time of the death, the entire four hundred aurei should be found belonging to the debtor, the release of three hundred will be valid. If, however, any property, in addition, should be found which would be sufficient for the fourth of the heir, the release will be valid for the entire sum of four hundred aurei. But if the debtor can only pay a hundred, for the reason that he is always considered solvent so far as he himself is concerned, he will be required to refund a hundred aurei to the heir. Therefore, as the debtor is considered to be individually solvent, the result will be that if an heir should be appointed, and a release should be bequeathed to the debtor, and four hundred aurei to someone else; if the debtor should be solvent, the heir can retain a hundred and fifty aurei out of the three hundred, and can pay a hundred and fifty to the legatee, and in this way he will have his hundred. But if the debtor can only pay a hundred aurei, a fourth of the same should be reserved by the heir, and consequently the hundred which can be paid will be divided into four parts, three-fourths of which will belong to the legatees, the heir will have twenty-five, the insolvent debtor will credit himself with a hundred and fifty, the balance of the claim which cannot be collected should be sold, and this shall be considered as the only property belonging to the estate. If, however, the debtor is unable to pay anything, he must also be released from liability for the said one hundred and fifty aurei, and Neratius says a sale should be made of the balance of the claim, which opinion we also approve.

The Same, Disputations, Book VIII. Those who have been appointed heirs conditionally can demand prætorian possession in accordance with the terms of the will, even while the condition is pending, and has not yet been fulfilled, provided they have been legally appointed; for where anyone has been illegally appointed, his nomination will be of no advantage to him in obtaining prætorian possession of the estate.

Ulpianus, Disputations, Book VIII. The confiscation of property on the ground of non-payment of taxes also extends to the heir, for what is confiscated immediately ceases to belong to the party who committed the crime, and the ownership of the same is acquired by the Treasury. Therefore, proceedings for confiscation can be instituted against the heir, just as against any possessor whomsoever.

The Same, Disputations, Book VIII. When a slave is granted his freedom absolutely, and is appointed an heir under a condition, it has been decided that even if the condition is not complied with, he will be entitled to his freedom.

Ulpianus, Disputations, Book VIII. When anyone is accused of crime, he must prove that he is not guilty, and he cannot accuse another before he himself has been acquitted; for it is set forth in the Imperial Constitutions that a defendant must be cleared, not by accusing others of crime, but by his own innocence. 1It is uncertain whether anyone can bring an accusation when he has been discharged, or when he has suffered punishment; for it was decided by our Emperor and his Divine Father that he could not begin an accusation after having been condemned. I think, however, that this only refers to those who have either lost their right to citizenship or their freedom. 2It is clear that accusations which have been begun before conviction can be completed afterwards.

The Same, Disputations, Book VIII. Or when an officer does not depart from a province when his successor arrives; or deserts from the army; or flees to the enemy as a private individual; or who, knowing a statement to be false, inserts it in the public records, or reads it after it has been placed there, for this also is included in the First Section of the Law of lese majesty.

Ulpianus, Disputations, Book VIII. He who dies while an accusation against him is pending retains his civil status unimpaired, for the crime is extinguished by death, unless he was accused of lese majesty; for if he is not cleared of this offence by his successors, his estate will be forfeited to the Treasury. It is evident that not everyone accused of lese majesty under the Julian Law is in this position, but only he who is guilty of high treason, and is animated by hostile intent against the State or the Emperor. For if anyone is accused under any other section of the Julian Law on lese majesty, he will be released from the charge by death.

The Same, Disputations, Book VIII. It is provided by the Julian Law that anyone who is required to formulate an accusation of adultery, because the woman married before she was notified that she would be accused, cannot bring the charge against her until he has disposed of the case of the defendant and his case is not considered to have been disposed of, unless he has been convicted. 1The following exception can be pleaded against a husband who brings an accusation in that capacity, namely: “If he is said to have betrayed the law, in that, after having begun a prosecution for adultery, he has abandoned it.” 2The crime of pandering is included in the Julian Law on Adultery, as a penalty has been prescribed against a husband who profits pecuniarily by the adultery of his wife; as well as against one who retains his wife after she has been taken in adultery. 3Moreover, he who permits his wife to commit this offence, holds his marriage in contempt; and where anyone who does not become indignant on account of such pollution, the penalty for adultery is not inflicted. 4Anyone who alleges that he has committed adultery with the assistance of the husband, desires, indeed, to lessen his crime, but an excuse of this kind is not admitted. Therefore, if the defendant should wish to denounce the husband for having acted as a pander, he shall not be heard, if he has once been accused. 5If a husband should attempt to prosecute his wife in a criminal case, will the allegation of having acted as her pander bar him from bringing the accusation? I think that it will not. Therefore the act of the husband in a case of this kind renders him liable, but does not excuse his wife. 6Hence it may be asked whether he who has cognizance of the prosecution for adultery can decide against the husband because of his having acted as a pander? I think that he can do so. For Claudius Gorgus, a most illustrious man, having accused his wife, and it having been ascertained that although he had caught her in adultery he still kept her, was condemned by the Divine Severus for being guilty of pandering, without any accuser having appeared against him. 7But if a stranger, after having been accused, alleges that the husband was guilty of pandering, he does not diminish his own crime, nor does he subject the husband to a penalty. 8If the husband and the father of the woman appear at the same time for the purpose of accusing her, the question arises, which of them should be given the preference by the Prætor? The better opinion is, that the husband should be entitled to the preference, for it may well be believed that he will prosecute the accusation with greater anger and vexation. This is so far true, that even where the father has already appeared, and filed the papers containing the accusation, if the husband has not been negligent or guilty of delay, but is himself prepared to bring the accusation, and introduce evidence, and fortify it, in order that the case may be the more easily proved before the judges, the same thing must be said. 9But whenever others who have the right to bring the charge after the husband and the father hasten to do so; it is stated by the law that he who has jurisdiction of the case must determine who shall be the accuser.

The Same, Disputations, Book VIII. If the husband has appeared and brought the accusation, the time does not run against the father to prevent him from prosecuting it; still, until one of them institutes proceedings, the time, will run against both; but, indeed, when the husband begins to prosecute, the remaining time does not run against the person who cannot do so. This may be said with reference to anyone who begins proceedings against the adulterer or the adulteress, for the time ceases to run against the person who is not made the object of the accusation. This applies to husbands and fathers. 1The power of bringing the accusation after the husband and the father is granted to strangers who have a right to do so; for, after sixty days have elapsed, four months, and even available ones, are granted to strangers. 2If a stranger was the first one to bring the accusation, the question arises whether, if the husband appears, he can be permitted to accuse the woman. I think that the better opinion is that, in this instance, the husband should be heard if he has not been guilty of negligence. Therefore, even if the accusation has been begun by a stranger, and the woman should be acquitted, the husband ought, nevertheless, to be permitted to renew the accusation; provided he can allege good reasons by which he was prevented from bringing it previously.

The Same, Disputations, Book VIII. Where anyone accused of parricide dies before being convicted, even if he kills himself, he should have the Treasury as his successor, or if not, anyone whom he appointed by his will. If he should die intestate, he will have as heirs those who are designated by law.

The Same, Disputations, Book VIII. Where anyone who caused a legacy to be fraudulently inserted into a will for his own benefit dies, his heir can be deprived of it. Hence where a certain person, who had been appointed heir by his father, had torn up a codicil, and then died, the Divine Marcus held that the Treasury could claim the estate, to the amount to which the heir would have been deprived by the codicil; that is to say three-fourths of the estate.

Ulpianus, Disputations, Book VIII. If anyone should wish to revive a criminal accusation after it has been publicly dismissed, he can do so with the same right which he had when he first brought it; for prescriptions cannot legally be pleaded against him which were not pleaded before the discharge of the defendants. This the Divine Hadrian stated in a Rescript. 1Where anyone brings an accusation for stellionatus, or for the crime of plundering an estate, and then desists, he will not be subjected to the penalty of the Turpillian Decree of the Senate, even if theft or injury is involved, but his fault will be punished by the judge.

Ulpianus, Disputations, Book VIII. In every case of crime, it has been decided that the person convicted shall not suffer the penalty which his condition admitted at the time when judgment was rendered against him, but that which he would have undergone if he had been sentenced when he committed the offence. 1Hence, when a slave commits a crime, and it is alleged that he afterwards obtained his freedom, he must suffer the penalty which he would have suffered if he had been sentenced at the time when he perpetrated the offence. 2On the other hand, if his condition would be rendered worse, he must undergo the penalty which he would have undergone if he had remained in his former condition. 3Generally speaking, it has been decided that, with reference to the laws relating to public prosecutions or private offences of which Prefects or Governors have extraordinary jurisdiction, poor persons, who escape pecuniary penalties, are liable to arbitrary punishment.

Ulpianus, Disputations, Book VIII. It was decreed by the Emperors that where capital crimes were involved, he who corrupts his adversary is not liable to punishment, except in such cases as incur the penalty of death; for it was their opinion that they who desire to save the life of a blood relative by any means whatever should be excused.

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. 4Ad Dig. 49,1,10,4BOHGE, Bd. 1 (1871), S. 62: Appellation gegen einen Litisconsorten auch als Appellation gegen die andern.The 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.

The Same, Disputations, Book VIII. The condition of anyone who corrupts his informer is that he is considered as having been defeated, for this rule has been established in fiscal cases. The better opinion is that this penalty renders the person who corrupts his informer individually liable, but it is not transmitted against his heir. For the case in which the money was paid is not at an end; nor is the right of action extinguished, nor is conviction held to have taken place; but it is necessary for evidence to first be offered, and judgment be rendered with reference to the crime; as it is clear that the case which was once decided by means of the corruption of the informer must be reviewed. If the corrupter should be dead, this does not prevent it from being heard again, for, in this instance, not the restitution of the penalty but that of the case itself is involved. 1It is established that he who has asserted that a will is forged can enter upon the estate; but if actions are refused him, there will be ground for the Treasury to interfere; and the obligations which were merged by the acceptance of the estate are not restored. 2For, where a man did not avenge the death of the deceased, after having entered upon his estate, Our Emperor, together with his Father, stated in a Rescript that obligations which had been merged should not be re-established.

Ulpianus, Disputations, Book VIII. Those whose condition is in dispute, although, in fact, they may be free, should not enlist during the time that their status is undetermined, and especially during the trial of the case; whether an attempt is being made to reduce them to slavery from freedom, or vice versa. Nor can those who are freeborn and who are serving in good faith as slaves, nor persons who have been ransomed from the enemy, before they have paid the amount of their ransom, enlist in the army.