Ulpianus, On the Edict, Book V. Neither a Consul, a Prefect, a Proconsul, nor any other magistrate who exercises authority, and has the power of restraining others and ordering them to be confined in prison, can be summoned to court; nor can a pontiff be summoned while performing a religious ceremony; nor can those be summoned either, who on account of the sacred character of the place cannot leave it; nor anyone employed in the service of the State who is riding along the public highway upon a horse belonging to the government. Moreover, a man cannot be summoned who is being married, nor can the woman to whom he is being united, nor a judge while in the exercise of his judicial functions, nor any person who is trying his own case before the Prætor, nor anyone while conducting the funeral rites of a member of his household.

Ulpianus, On the Edict, Book V. The same rule applies to those who are obliged to be present in court in some certain place for the purpose of litigation, as well as to insane persons, and infants. 1The Prætor says: “That no one without my permission can summon to court his parents, his patron or patroness, or the children or parents of his patron or patroness”. 2By the word “parent” one must here understand those of both sexes. The question, however, arises whether this term may be indefinitely extended? Some hold that it only applies as far back as the great-great-grandfather, and that other ascendants are called “ancestors”. Pomponius stated that this was the opinion of the ancient authorities; but Gaius Cassius says that the term applies to all ascendants without exception; which makes it more honorable, and this rule has very justly been adopted. 3Labeo held that those also should be considered parents who have become such in slavery, and not, as Severus said, that the term should only apply to instances where children are legitimate; so that where a son has been begotten in promiscuous intercourse, he cannot bring his mother into court.

Ulpianus, On the Edict, Book V. A man cannot summon his adoptive father to court as long as he is under his control, which results rather from the right of paternal authority than from the order of the Prætor; unless the son has castrense peculium, and in this instance he can be permitted to do so where proper cause is shown, but he cannot summon his natural father while he is a member of an adoptive family. 1The Edict mentions the “patron” or the “patroness”. Those are to be considered patrons who have manumitted a slave, or who have detected collusion; as for instance, where someone in a preliminary judicial proceeding had been declared to be a freedman, when in fact he was not; or where I have sworn that the party in question is my freedman; just as, on the other hand, I am not to be considered a patron if judgment is rendered against me; or where, if I tender the oath, the party swears that he is not my freedman. 2If, however, I have compelled my freedman or freedwoman to swear not to marry, I can be brought into court; and Celsus indeed says that no right over such a freedman passes to my son during my lifetime. Julianus, however, holds the contrary, and many adopt his opinion; so that in an instance of this kind it may happen that a patron can be summoned, but his son, being innocent, cannot be.

Ulpianus, On the Edict, Book V. If, under this rule, I purchase a slave upon the condition that I will manumit him, and he obtains his liberty by the Constitution of the Divine Marcus, I cannot be cited, as I am his patron; but if I purchase him with his own money, and have broken faith with him, I shall not be considered his patron. 1Where a female slave is forced to prostitute herself against the condition of her sale, she will have the vendor as her patron if she was sold under the condition that, “She would become free if she were forced to prostitute herself”. But if the vendor, who reserved the right to take possession of her by seizing her, himself prostitutes her, since she still obtains her freedom, she does so through him who sold her, but it is not proper that any honor should be shown him, as Marcellus holds in the Sixth Book of the Digest. 2We also consider a man a patron, even though he may have forfeited his civil rights, or where his freedman has lost his; as for instance where arrogation took place in a clandestine manner, since, as he must have concealed his status from him by whom he was arrogated, his act does not seem to be such as to entitle him to be considered freeborn. 3If, however, he has acquired the right of wearing gold rings, I think he should never fail to manifest respect for his patron, even though he may be qualified to exercise all the functions of a freeborn person. The case is different if he is restored to all the privileges of birth, for the Emperor can make a man free born. 4Anyone who is manumitted by an organized body, a corporation, or a city, can summon any member of the same to court, for he is not the freedman of any of them in particular. He must, however, show respect to all collectively; and if he wishes to bring an action against a municipality or a corporation, he must ask permission to do so under the Edict, although he may intend to summon one who has been appointed the agent of the others. 5By the terms “the children and parents of the patron and patroness”, we must understand persons of both sexes. 6Where a patron has been reduced to the condition of a foreigner through the penalty of deportation, Pomponius is of the opinion that his privilege is forfeited; but if he should be reinstated, he will again enjoy the benefit of the Edict. 7The adoptive parents of a patron are also excepted, but only so long as the adoption lasts. 8If my son has been given in adoption, he cannot be brought into court by my freedman; nor can my grandson, who is born in an adoptive family. But where my emancipated son adopts a son, a grandson of this kind can be summoned, for he is a stranger to me. 9According to Cassius, we. may understand that the term “children”, like that of “parents”, extends beyond the great-great-grandson. 10If a freedwoman has a child by her patron, neither she nor her son can bring the other into court. 11If the children of a patron have brought a capital accusation against a freedman of their father, or have claimed him as a slave, no honor is due to them. 12The Prætor says that, “No one can summon them without my permission”. It is permitted, however, if the action brought against the patron or his parents is not one involving infamy or shame, for in every instance good cause should be established; as sometimes in an action involving infamy, as Pedius holds, a freedman ought to be allowed to summon his patron, if he has done the former a serious injury; for example, scourged him. 13This respect should always be shown to a patron, even if he appears as the guardian, curator, defender, or agent of another; but where the guardian or curator is interested, he can be summoned with impunity, as Pomponius says, and this opinion is the better one.

Ulpianus, On the Edict, Book V. An action for fifty aurei can be brought against him who violates these provisions, but it cannot be brought for, or against an heir, nor after a year has elapsed.

Ulpianus, On the Edict, Book V. The Prætor published this Edict to restrain by the fear of punishment those who rescue by violence persons who have been summoned to court. 1And then Pomponius has stated that where a slave commits an offence, a noxal action should be granted unless he committed it with the knowledge of his master; for in this instance the master must defend the action without being permitted to surrender the slave. 2Ofilius is of the opinion that the provisions of the Edict do not apply where the person summoned to court is exempt; as for example, a father, a patron, and the other persons above enumerated. This opinion seems to me to be correct; for, indeed, if he who summoned him was guilty of an illegal act, he who liberated him was not.

Ulpianus, On the Edict, Book V. When anyone rescues a slave who has been summoned to court, Pedius thinks that the Edict is not applicable; since the slave is not a person who can be summoned. What then shall be done? Proceedings must be instituted to produce him. 1Where anyone liberates a party summoned before a judge of inferior jurisdiction the penalty of the Edict shall not be imposed. 2Where the Prætor states “He released him by force”; does this mean that the act was committed merely with violence, or with malice also? It is sufficient if the act be perpetrated with violence, even though malice does not exist.

Ulpianus, On the Edict, Book V. Where anyone has effected a rescue through the agency of another, he is liable under this clause, whether he was present or absent. 1An action is granted against anyone who has liberated a party by force, and the amount of damages is not based upon what was actually lost, but the value of the property in dispute is fixed by the plaintiff; and this provision was added, so that it might be apparent that if he brought action without proper grounds, he could still recover this penalty. 2The plaintiff must also show that the rescue which was made prevented the defendant from appearing in court, but if he was nevertheless produced, the penalty cannot be imposed, since the words are only applicable where some act was performed. 3The action is in factum, and is of such a character that where several have committed a wrong it can be brought against each one of them; and the party who was liberated will still remain liable. 4The right of action is also granted to heirs if they have any interest in making use of it; it is, however, not granted against an heir, or after the expiration of a year.

Ulpianus, On the Edict, Book V. The surety offered for the appearance of a party in court is considered to be a man of property, not only on account of his means, but also with reference to the ease with which he may be sued. 1When anyone gives a surety for his appearance in court to a person who is not capable of bringing an action, the giving of the surety is of no effect. 2The Prætor says: “Where anyone summons to court his father, his patron, his patroness, the children or parents of his patron or patroness, or his own children, or anyone whom he may have under his control, or his wife, or his daughter-in-law, any surety whosoever for their appearance in court shall be accepted”. 3Where the Prætor says: “or his own children”; we understand that those are meant who are descended from the female sex; and we extend this privilege also to the father, not only when he is his own master, but also when he is under anyone’s control; and this Pomponius also stated. A son can be given as a surety by his father, even though he may be under the control of someone else. By “daughter-in-law” we must also understand granddaughter-in-law, and so on, for succeeding generations. 4Where the Prætor says: “Any surety whosoever shall be accepted”, this merely relates to his financial resources, that is to say, even if he is not wealthy. 5When the Prætor grants an action against a surety who promised that a party would appear in court, he does so for the amount of the property in question. But whether this has reference to the actual value of the article, or a definite sum, is something which we must examine. It is the better opinion that a surety is liable for the actual value, unless he became bound for a certain sum.

The Same, On the Edict, Book V. The Divine Marcus in the same Address delivered before the Senate, states that there are other cases in which application may be made to the Prætor on holidays, as, for instance, for the appointment of guardians and curators; to admonish persons as to their duties; to hear excuses; to arrange for support; to prove age; to make provision for the possession for unborn children; for the preservation of property for the benefit of either legatees or the beneficiaries of trusts; or where security should be given against unlawful damage; or for the production of wills; or that a curator may be appointed for the property of one who is uncertain whether he will have an heir or not; or for the support of children, parents, or patrons; or for an entry upon an estate which is suspected of being insolvent; or for the examination of an atrocious injury; or for the bestowal of freedom granted under a trust.

Ulpianus, On the Edict, Book V. Where a party is summoned before the Prætor from another jurisdiction, he must appear, as is stated by Pomponius and Vindius; as it is the duty of the Prætor to decide whether he has jurisdiction, and those who are summoned should not treat the “authority of the Prætor with contempt; for envoys and other persons who have the right to have their cases transferred to the places where they reside, are in such a position that they must appear, after having been summoned, in order to state their privileges.

The Same, On the Edict, Book V. Julianus thinks that where a judge makes a case his own, an action can be brought against his heir; but this opinion is not correct, and has been rejected by many authorities.

Ulpianus, On the Edict, Book V. After the action which the Prætor promises to grant to a party who alleges that the entire estate belongs to him, it follows that he should grant an action to him who demands a share of the estate. 1Where anyone brings suit for an estate, or for a portion of the same, he does not base his claim upon the amount which the possessor holds, but upon his own right; and therefore, if he is the sole heir, he will claim the entire estate, although the other party may be in possession of only one thing; and if he is an heir to one share of it he will demand a share, even though the other party may be in possession of the entire estate. 2Nay, more, where two parties are in possession of an estate, and two others allege that certain shares belong to them, the latter are not required to be content with making their claims against the two in possession; as, for instance, the first claimant against the first possessor, or the second against the second possessor, but both should bring suit against the first, and both against the second; for one has not the possession of the share claimed by the first, and the other possession of that claimed by the second, but both are in possession of the shares of each of the others, in the character of heirs. Where the possessor and plaintiff both have possession of the estate, each of them alleging that he is entitled to half of it, they must bring suit against one another, in order to obtain their shares of the property; or, if they do not raise any controversy on the ground of inheritance, they must bring suit for partition of the estate. 3Where I claim to be the heir to a share of an estate, and my co-heir, together with a stranger, is in possession, since my co-heir has no more than his share, the question arises, whether I must bring suit for the recovery of the estate against the stranger alone or against my co-heir also? Pegasus is said to have held the opinion that I should bring suit against the stranger alone, and that he must surrender whatever he has in his possession; and perhaps this should be ordered by the court upon application. Reason, however, suggests that I ought to bring suit for recovery of the estate against both of them; that is to say, against my co-heir also, and the latter ought to bring suit against the possessor who is a stranger. The opinion of Pegasus is, however, the more equitable one. 4Moreover, if I claim to be heir to half of the estate, and I am in possession of a third of the same, and I desire to obtain the remaining sixth let us consider what plan I should adopt. Labeo states that I should bring suit against each one for half, so that the result will be that I should obtain a sixth part from each of them, and shall then have two thirds. This I think to be correct, but I myself will be required to surrender one sixth of the third which I formerly possessed; and therefore the judge in the discharge of his duty must direct me to set off what I possess, if my co-heirs are the parties from whom I am claiming the estate. 5The Prætor sometimes grants permission to bring suit for a portion of an estate which is not certainly ascertained, where proper cause exists; for instance, where there is a son of a deceased brother, and the surviving wives of other deceased brothers are pregnant. In this case it is uncertain what portion of the estate the son of the deceased brother can claim, because it is not known how many children of the other deceased brothers will be born. Therefore, it is perfectly just that the claim of a share which is not known should be granted to the son; so that it may not be too much to say that where anyone is reasonably doubtful as to what share he should bring suit to recover, he ought to be permitted to claim a share which is as yet uncertain.

Ad Dig. 19,2,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 5.Ulpianus, On the Edict, Book V. Julianus, however, says that an action cannot be brought against one person for an injury committed by another; for by what degree of care can he prevent unlawful damage from being caused by someone else? Marcellus, however, says that this can sometimes be done where the party could have taken such care of the property that it could not have been injured, or where he himself, having charge of it, committed the damage. This opinion of Marcellus should be approved.

Ulpianus, On the Edict, Book V. When I was in the country with a Prætor, I permitted a slave to be manumitted before him, although no lictor was present.

The Same, On the Edict, Book V. The Prætor says: “I will order possession to be taken of the property of him who gave a surety for his appearance in court, if he does not permit access to himself, and is not defended.” 1He does not give access to himself who acts in such a way as to prevent his adversary from approaching him. Hence, if the Prætor orders possession to be taken of the property of a person who conceals himself. 2But what if he does not conceal himself, but, being absent, is not defended? Can it be held that he does not permit access to himself? 3He is considered to be in a position to defend himself who does not render the condition of his adversary any worse by his absence. 4The words, “If he is not defended,” are capable of a broader and more extensive interpretation, so that it is not sufficient if the party has begun to defend himself, and his defence does not continue; and it is no disadvantage to him if, at present, he offers to defend himself for the first time.

Ulpianus, On the Edict, Book V. Marcellus, in a note on Julianus, says that anything which has been torn, broken, or taken by force is included in the term “destroyed.”