The Same, On the Office of Consul, Book I. It is stated in the Address of the Divine Marcus that delay for the production of instruments cannot be granted more than once; but, for the benefit of litigants, where proper cause is shown, a delay can be obtained a second time in the same, or in a different province, according to the rules observed in different localities, and especially where anything unexpected arises. It must be ascertained if the deceased had obtained any delay for the production of documents, and whether this should also be granted to his successor; or, indeed, as it has been granted once, whether it cannot be granted a second time? The better opinion is that it ought to be granted where proper cause is shown.

Ulpianus, On the Office of Proconsul, Book I. Where the judge appointed to render a decision within a certain time dies, and another is appointed in his stead, we understand that the same time is fixed with respect to the latter, although the magistrate did not expressly mention this when making the appointment; provided that the term prescribed by law is not exceeded.

The Same, On the Office of Proconsul, Book I. Sometimes the magistrates of the Roman people are accustomed to expressly appoint court attendants arbiters, which should be done very rarely, and only where the case is urgent.

Ulpianus, On the Office of Consul, Book I. Ad Dig. 8,2,11 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Where anyone wishes to cut off his neighbors’ lights, or to do anything else which may interfere with their convenience, he must remember that he is obliged to preserve the original form and position of the building. 1Where no agreement exists between you and your neighbor as to the height of a building which you have undertaken to erect, you can have an arbiter appointed.

Ulpianus, On the Duties of Consul, Book I. Where freedom was bequeathed directly to a slave under condition of his rendering his accounts, the Divine Pius permitted the Consuls to appoint an arbiter to decide the matter in the following words, “The Consuls, having been applied to by you, shall appoint an arbiter to examine the accounts, and to decide not only what balance is due from Epaphroditus, as well as what accounts and what documents he must deliver or show to his masters, and when the judgment of the arbiter has been complied with, the freedom of Epaphroditus will no longer be interfered with.”

Ulpianus, On the Duties of Consul, Book I. If magistrates have placed anyone in possession for the purpose of executing a trust, they can appoint an arbiter for the purpose of selling any property which will become deteriorated by delay; in order that the price obtained for said property may be left in the hands of the beneficiary, by way of deposit, until it is ascertained what is due to him under the terms of the trust.

Ulpianus, On the Duties of Consul, Book I. We understand the word “investigation” to signify the right of judicial inquiry and jurisdiction. 1We should understand the neighboring, contiguous provinces to mean those which are joined to Italy, as for instance, Gaul. We should, however, include the Province of Sicily among them, as it is only separated from Italy by a narrow arm of the sea. 2It would be extremely difficult to define everything included under the term “instrument.” Instruments, properly speaking, are documents for whose production a delay should be granted; 3just as when time is asked for the production of someone who can conduct a case, for instance, a steward, although he may be in slavery, or of someone who has been appointed an agent, I think it may be held that a delay can be requested on account of the papers, in order to enable him to appear for the above-mentioned purpose.

Ulpianus, On the Duties of Consul, Book II. It is the duty of the Consul to appoint a council for those who desire to manumit slaves. 1Consuls can manumit together, or alone, but he who has left names with one Consul cannot manumit before another for then the manumissions are separate; and if, for any reason, either through sickness, or through being prevented by any other just cause, one of them cannot manumit, the Senate has decided that his colleague can proceed with the manumission. 2There is no doubt that Consuls can manumit their own slaves before themselves, but if it should happen that a Consul is under twenty years of age, he has not the power of manumission in his own tribunal, as he himself is the one who, according to a decree of the Senate, must determine the ground for the appointment of a council. He can, however, do this before his colleague where proper cause has been established.

Ulpianus, On the Office of the Consul, Book II. Inquiries should be made with reference to a person who, having passed as a freedman, now alleges that he is freeborn and desires to proceed as plaintiff. If, indeed, he occupies the position of a freedman, there is no doubt that he must bring an action to have himself declared freeborn, and establish that this is the case. But if he enjoys the reputation of having been born free, and he is alleged to be a freedman (of course by him who is responsible for the controversy), he who says that he is his freedman must prove it. For what difference does it make whether anyone asserts that he is his slave or his freedman? Where, however, a party has sufficient confidence in his claim of freedom of birth as voluntarily to undertake to produce proofs of it for the purpose of obtaining a decision declaring him freeborn (that is to say that he was born free as he alleges), it may be asked whether he should be permitted to do so. I am of the opinion that this should be done, and that he should have an opportunity to prove that he is freeborn, and have a decision rendered in his favor, as no one can be taken at a disadvantage by such a judgment.

Ulpianus, On the Duties of Consul, Book II. Where anyone asks support of his children, or where children can be supported by their father, a judge should take cognizance of the matter. 1Should a father be compelled to support only such children as are under his control, or should he support those who are already emancipated, or who, for any other reason, have become independent, is a question for consideration. I think the better opinion is that even where the children are not under paternal control, they must be supported by their parents, and that, on the other hand, their parents should also be supported by them. 2Let us see whether we are obliged to support only our fathers, our paternal grandfathers, our paternal great-grandfathers and other relatives of the male sex; or whether we are obliged to support our mothers, and our other ascendants in the maternal line. The better opinion is, that in every instance, the judge should interpose for the purpose of giving relief to the necessities of some and the infirmities of others; and since this obligation is derived from justice, and from the attachment due to blood, the judge should carefully weigh the claims of each of the parties. 3It must be said that the same rule applies to the maintenance of children by their parents. 4Therefore we compel a mother to support her illegitimate children, and them to support her. 5The Divine Pius also intimates that a maternal grandfather is obliged to support his grandchildren. 6He also stated in a Rescript that a father must support his daughter, if it should be proved in court that he had actually begotten her. 7Where a son can support himself, the court should decide not to compel maintenance to be furnished him. Hence the Emperor Pius stated in a Rescript: “The competent judges and before whom you will appear, must order that you shall be supported by your father in proportion to his means; provided that you allege that you are an artisan, and that by reason of ill health, you cannot maintain yourself by your own labor.” 8Where a father denies that a party asking for support is his son, and therefore contends that he should not furnish it; or where a son denies that an applicant for maintenance is his father, the judges must decide the case summarily, and if it is established that the petitioner is a son, or a father, they must then order him to be supported. If, however, this should not be proved, they shall not decide that maintenance shall be furnished. 9But it must be remembered that if the judges hold that support should be furnished, still, this does not prejudice the truth, for they do not decide that the party is a son, but merely that he should be supported. This the Divine Marcus also stated in a Rescript. 10If anyone should refuse to provide support, the judges must determine the amount to be furnished in proportion to his means, and if he still fails to provide it, he can be compelled to comply with the judgment by taking his property in execution and selling the same. 11The judge must also determine whether a relative or a father has any good reason for refusing to support his children. There is a rescript addressed to Trebatius Marinus which states that a father can properly refuse to support his son if the latter has informed against him. 12It is stated in certain rescripts that a father can be compelled by a judge not only to furnish provisions, but also all other necessaries to his children. 13Where a son has been emancipated before arriving at puberty, he can be compelled to support his father, if the latter is in poverty; for anyone would say with reason that it is most unjust for a father to remain in want, while his son was in prosperous circumstances. 14Where a mother who furnished provisions to her child, brings suit against its father, she should be heard under certain conditions; for the Divine Marcus stated in a Rescript addressed to Antonia Montana: “The judges will estimate how much shall be paid to you by the father of your daughter in proportion to the amount of necessary provisions which you have furnished her for her support; but you cannot obtain as much as you would have expended for your daughter through maternal affection, even if she had been driven away by her father.” 15Filial affection requires that parents should be supported by a son who is in the military service, provided he has the means to do so. 16It is stated in a rescript that, although a parent should, according to the dictates of nature, be supported by his son, still the latter ought not to be required to pay his debts. 17Ad Dig. 25,3,5,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 475, Note 13.There is also a rescript which states that the heirs of the son, if unwilling, are not compelled to furnish such assistance to their father that a son while living would provide him with through motives of filial duty, unless the father is in the greatest poverty. 18Judges are also accustomed to decide between patrons and freedmen, where the question of their maintenance arises. Therefore, if the patrons deny that the claimants are their freedmen, the judges must make inquiry, and if it is proved that they are their freedmen, then they must order them to be supported. The decree for support does not, however, prevent the freedman (if he denies that he is such) from contending for his rights against his patron. 19Support must be furnished by freedmen to their patrons who are in poverty in proportion to their means. If, however, the latter are able to support themselves, the authority of the judge need not be interposed. 20The question may be asked whether only patrons are to be supported, or whether their children must also be maintained. I think that, upon proper cause being shown, judges should decree that the children of patrons should also be supported, not indeed as readily as patrons, but sometimes; for freedmen should show reverence not only to their patrons but also to the children of the latter. 21The freedman of a woman is compelled to support her children. 22If anyone should desire to be supported by a freedman of his freedman, or by a slave whom he has manumitted by reason of a trust, or by one whom he has redeemed from slavery with his own money, he should not be heard. For, as Marcellus says, he should be compared with one who, by exacting a reward, loses thereby the rights he has in a freedman. 23If the son of his patron has accused the freedman of his father of a capital crime, he denies that the latter is required to support him. 24A freedwoman is also obliged to support her patron. 25An arbiter is usually appointed to decide with reference to the support of a patron, and he must ascertain the value of the resources of the freedman, in order that the amount of the maintenance may be determined, and this must be provided as long as the freedman is able to do so, and the patron requires it. 26Freedmen are compelled to furnish support for the father and mother of their patron, where the patron and his children are no longer living, if they are in need, and the freedmen have the means to do so.

Ulpianus, On the Duties of Consul, Book II. When bequests for maintenance are made to freedmen judges are accustomed to divide with the latter in proportion to the number of heirs, in order that they may not be compelled to obtain their means of support in small quantities from each of them; and this division should be sustained, just as if the head of the household himself had divided the freedmen. They have adopted the practice of selecting one heir, by whom the means of support shall be provided, either in compliance with the wishes of the deceased, or according to their own judgment, as the following Rescripts show: “I send you a copy of the petition presented to me by the freedmen of Favilla, for the reason that many persons, in their wills, order necessaries to be furnished to their freedmen, which, as they are of small amounts, are reduced to almost nothing where there are several heirs to an estate. Hence, I think that you will act properly, if, after having called together the heirs of Favilla, or their representatives, you decide to which one of them a sum of money shall be given, out of the interest of which the maintenance of the said freedman may be paid for. He who receives this money must furnish security to those who contribute it, that, in case any one of said freedmen should die, or should, in any other way, cease to be a citizen, he will refund as much of the principal as the computation pro rata may amount to.” The Divine Pius stated, as follows in a Rescript addressed to a certain Rubrius Telesphorus: “The Consuls, after having called together all those who have been charged with furnishing you with maintenance under the terms of the trust, shall determine whether all of the legatees shall receive what is due them from one of the heirs, or whether the distribution shall be made pro rata, and who shall be notified, and by whom this shall be done. If anything should be due from the testator to you on this ground, the Treasury also shall pursue the same course; and know now that the shares of those who are insolvent will not cause the burden of the remaining heirs to be increased.”

Ulpianus, On the Duties of Consul, Book II. If a minor of twenty-five years of age is charged by the terms of a trust to manumit a slave, he should be permitted to do so immediately, unless he was charged to manumit his own slave. For, in this instance, the amount of the benefit, which he will obtain from the will of the person who made the request, must be compared with the value of the slave whom he was requested to manumit. 1Where, however, a slave was donated to the minor under the condition that he should be manumitted, he ought to be allowed to manumit him, in order to prevent the Constitution of the Divine Marcus from becoming applicable during the delay granted by the Consul. 2Where anyone wishes to manumit a female slave in order to marry her, and he can, without dishonor to his rank, marry a woman of this kind, he should be permitted to do so. 3Marcellus also says that if a woman desires to emancipate her natural son, or any of the other persons previously mentioned, she should be allowed to do so. 4A Consul can manumit a slave before himself, if he should happen to be a minor of twenty years of age.

Ulpianus, On the Duties of Consul, Book II. The Divine Brothers, in a Rescript addressed to Proculus and Munatius, stated as follows: “As Romulus, whose condition is disputed, is near the age of puberty, and at the request of his mother, Varia Hado, and with the consent of Varius Hermes, his guardian, judgment in the case was postponed until the child should reach the age of puberty, it is left to your discretion to determine what will be advantageous to the minor, the position of the parties interested being taken into account.” 1If the person who raised the question concerning the condition of another fails to appear at the trial, he who demands his freedom is in the same condition as he was before the controversy arose with reference to it. He, however, is benefited to this extent, namely, that he who disputed his status will lose his case. This fact, however, does not render him freeborn who previously was not so, for the failure of an adversary to appear does not confer the right of freedom. I think that judges will act lawfully and regularly if they pursue the regular order; so that where the party claiming the man as his slave fails to appear, his adversaries shall be given the choice either of having the case continued, or of having it heard and determined. If the judges should hear the case, they must decide that the party in question does not appear to be the slave of So-and-So. This decision does not take undue advantage of anyone, as the person whose estate is in controversy is not found to be freeborn, but is merely held not to be a slave. Where, however, one who is in slavery claims his freedom, the better course for the judges to pursue will be to continue the case, in order to avoid deciding that the said person appears to be born free, when no adversary appears, unless there should be good reason to cause them to hold that it is clear that judgment should be rendered in favor of liberty; as is also stated in a Rescript of Hadrian. 2If, however, he who demands his freedom fails to appear, and his opponent is present, it will be better to proceed with the case and have judgment rendered. If the adversary offers sufficient evidence, the judge shall decide against freedom. It may, however, happen that the absent party will be successful, for the decision may be rendered in favor of freedom.

Ulpianus, On the Duties of Consul, Book II. The Emperor Marcus decided that collusion could be detected within five years after a decision declaring a person entitled to the privilege of free birth. 1We understand that the five years must be continuous. 2If it is clear that if the age of him who is accused of collusion renders it necessary that the investigation should be deferred until the age of puberty, or to some other time, it must be held that the term of five years will not run. 3Moreover, I think that the term of five years has been prescribed not to terminate the inquiry, but to begin it. It is, however, different with respect to him who, being a liberated slave, demands that he be given the rights of a person who is freeborn. 4It is provided by a Rescript of the Divine Marcus that even strangers, who have the right to assert claims for others, shall be permitted to expose collusion.

The Same, On the Duties of Proconsul, Book II. Where several persons appear who desire to accuse the same man of a crime, the judge should select one of them to bring the accusation; that is to say, after proper cause has been shown by investigating the character, rank, interest, age, morals, or any other proper attributes of the accusers.

The Same, On the Duties of Consul, Book II. We should understand distinguished persons to mean those of both sexes who are illustrious, as well as those who are entitled to Senatorial honors.

Ulpianus, On the Office of Consul, Book III. The Divine Marcus stated in a Rescript to Eutychianus that, “The judges will determine whether you can obtain what you desire, after those who may object have been produced before them, that is to say, those who might be injured by the confirmation of the adoption”.

The Same, On the Duties of Consul, Book III. The Emperors Severus and Antoninus stated the following in a Rescript: “Since the question arises whether anything is due to you from guardians or curators, your petition is unreasonable, as you desire them to furnish the money to you for the expenses of the suit.”

Ulpianus, On the Duties of Consul, Book III. It was stated by the Divine Pius in a Rescript addressed to the magistrates of the Roman people, that those who appoint judges or arbitrators must authorize the execution of the judgments rendered by them. 1Our Emperor and his Father stated in a Rescript that even the Governor of a province could execute a judgment pronounced at Rome, if he was directed to do so. 2Hence, in the judicial sale of anything which has been taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus that the Governors of provinces execute judgment. 3If property taken in execution does not find a purchaser, it was stated in a Rescript by our Emperor and his Divine Father that it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered. The property is adjudged to him in proportion to the amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having made an agreement for the satisfaction of his claim; nor can he say that he held the property in pledge for a certain amount and bring an action to recover the balance. 4If a controversy arises concerning property taken in execution, it has been decided by our Emperor that those who are executing the judgment shall make an examination of it, and if they ascertain that it belongs to the party who was defeated, they must execute the judgment. It must, however, be noted that they are obliged to make this examination summarily; nor can their decision prejudice the debtor, if they think that the property should be released as belonging to the party who raised the controversy, and not to him in whose name it was taken in execution; nor should he to whom it is delivered be immediately entitled to it by virtue of the decree, if the property is such that it can be recovered from him in the ordinary course of law. Hence, the result is that the matter will remain in its original condition and the property affected by the judgment can only benefit the aforesaid party by usucaption. It must, however, be said that where a dispute arises with reference to what has been taken in execution it should be relinquished, and other property be taken with respect to which no controversy exists. 5Ad Dig. 42,1,15,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 241, Note 5.Let us see, if the property taken in execution has been pledged, whether it can be sold, so that the creditor having been satisfied, any remainder can be applied to the judgment. And, although a creditor cannot be compelled to sell property which he received by way of pledge, it can, however, be kept until execution on the judgment is issued, and if the property seized should find a purchaser, who, after the creditor has been satisfied, is ready to pay any balance remaining, the sale of this property also may be allowed. It is not held that the condition of the creditor becomes any worse, as he has obtained that to which he was entitled, nor should his right of pledge be released before his claim has been satisfied. 6If, after the property taken in execution has been adjudged, any controversy arises with reference to the purchaser, let us see whether the magistrate who executed the judgment will have jurisdiction of the matter. I do not think that there is any ground for further inquiry, as, when the purchase has once been perfected, he who bought the property must assume the risk; and certainly, after the purchaser has been given possession, the duty of the judge is at an end. The same rule will apply, if the property is adjudged to him in favor of whom the decision was rendered. 7If the purchaser to whom the property was adjudged by the court does not pay the price, let us see whether the magistrates, whose duty it is to execute the judgment, should call him to account. I do not think that they can go any farther, otherwise the proceedings would become interminable. But what can we say in a case of this kind? Shall they render judgment against the purchaser, and issue execution against him? Or shall they immediately consider the case as decided? And what must be done if the purchaser denies that he bought the property, or alleges that he has paid for it? The better opinion will be for the judge not to interfere, and especially since the party in whose favor the judgment was rendered has no right of action against him who obtains the property, and besides suffers no wrong; as it is necessary for property taken in execution and sold to be paid for in cash, and not that the money shall be paid after a certain time. And, indeed, if the court should interfere, it ought only to do so to the extent of taking and selling the property which had been adjudged, just as if it had not been released from the lien of the judgment. 8Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution. 9But let us see whether only a credit which is acknowledged by the debtor can be levied on, or whether this can be done if he denies his liability. The better opinion is, that only that should be levied on which he admits to be due. If, however, he should deny that he owes the claim, it would be perfectly proper not to include it; unless someone, following the example of the seizure of movable property, should proceed still farther, and say that the judges themselves ought to make an investigation of the claim, as they do in the case of other personal effects, but it is stated differently in a rescript. 10Ad Dig. 42,1,15,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 239, Note 9.Again, what shall we say where the judges themselves take action with reference to the claim, and require the amount of the debt to be paid on the judgment; or if they should sell the claim, as they are accustomed to do, where other personal property is taken in execution? It is necessary that they should do whatever seems to them best in order to execute the judgment. 11If the party against whom the judgment is rendered has money deposited with bankers, it can also be taken into execution. And further, if there is any money in the hands of anyone else, which should be paid to the party who lost the case, it is customary to levy on it, and apply it to the payment of the judgment. 12Moreover, money which has been deposited with anyone for safe-keeping, or placed in a chest for the same purpose, can be levied on for the purpose of satisfying a judgment. Again, where money belonging to a ward has been placed in a chest for the purchase of land, it can be taken by the judge charged with the execution of the judgment, without the permission of the Prætor, and employed for the payment of the claim.

Ulpianus, On the Duties of Proconsul, Book III. When persons who have been appointed to public offices appeal, and do not establish a justification for doing so, they are hereby notified that it is at their risk if the State should suffer any loss by reason of the appeal being delayed. When it is apparent that the appeal was necessary, the Governor of the province, or the Emperor, shall decide who was responsible for the damage sustained.

The Same, On the Duties of Consul, Book III. When anyone who has been created a municipal magistrate refuses to perform the duties of his office, he can be compelled to do so by the Governor in the same manner as guardians can be forced to discharge the duties of the trust imposed upon them.

The Same, On the Duties of Proconsul, Book III. The Divine Brothers made the following statement in a Rescript with reference to promises made to cities of which judges should take cognizance: “Statius Rufinus promised that he would finish a theatre in the City of Gabinia, which he already had begun. For although he had suffered misfortune, and had been relegated by the Urban Prefect for the term of three years; still he should not diminish the favor of the gift which he had voluntarily offered, as, even though he was absent, the work could be completed by a friend. If, however, he should fail to do so, the regular authorities who had the legal right to act in behalf of the city could bring suit against him in its name. The judges must examine the case as soon as possible, before Statius Rufinus went into exile, and if they should determine that the work ought to be completed by him, they shall order him to fulfil the promise made to the city, or forbid the land which he has in the territory of the City of Gabinia to be sold.”