The Digest of Justinian

[THE SAME in the third book on the Edict.]

​Moreover, those are deemed to have consented who, knowing that they are not subject to his jurisdiction, nevertheless consent to him. On the other hand, if they believe that his jurisdiction exists, there will be no jurisdiction for him; for a mistake of the litigants, as Julian also writes in the first book of the Digests, does not involve consent. Or if they thought one praetor was another, likewise the mistake did not give jurisdiction. Or if, when any of the litigants had resisted, he was compelled by the power of the praetorship, there is no jurisdiction.

​But does it suffice for the agreement to be made between private persons, or is the consent of the praetor himself also necessary? The lex Julia on trials says, ‘to prevent agreement between private persons’; therefore, the consent of private persons is sufficient. Hence, if private persons consent, but the praetor is unaware of their consent and believes he has jurisdiction, it must be considered whether the law has been satisfied; and I think it can be maintained that his jurisdiction exists.

​If both a judge appointed for a limited time and all the litigants consent, unless the extension has been specially prohibited by an imperial order, the times within which he was commanded to decide the suit can be extended.

​Envoys are granted the right of recalling home in respect of what they contracted before their embassy, as well as those who have been summoned for the purpose of giving testimony, or if any have been summoned for the purpose of judging, or have been destined for a province. Also, upon a person who has himself appealed, there is no necessity imposed to answer other plaintiffs during the time when the appeal is to be prosecuted, either at Rome or in another place where the appeal is prosecuted; for Celsus says that the right of recalling home should also be given to him, since he came for another cause: this opinion of Celsus is also reasonable. For the deified Pius also wrote back to Plotius Celsianus that a person who had been summoned to Rome by himself for the purpose of rendering an account of guardianship, ought not to be compelled to undergo trial on account of another guardianship, for which he had not been summoned. The same emperor wrote back to Claudius Flavianus that a person under twenty-five years of age, who had desired to be restored to his original condition against Asinianus, who had come for the sake of another business, was not to be heard at Rome.

​But all these persons recall home if they did not contract in the place where they are sued. On the other hand, if they contracted there, they do not have the right of recalling; except for envoys, who, although they contracted there, provided they contracted before their embassy, are not compelled to defend themselves at Rome as long as they remain here for the purpose of their embassy. This Julian also writes and the deified Pius wrote back. Clearly, if they remain after their embassy is completed, the deified Pius wrote back that they are to be sued.

​Likewise, if they contracted outside their province, although not in Italy, it is a question whether they can be sued at Rome. And Marcellus thinks that they enjoy the privilege of recalling home only in the case that they contracted in their own city or at least within their province, which is true. But if they themselves bring an action, they are compelled to defend themselves against all persons; not, however, if they prosecute for an injury done to them, or a theft, or a damage which they have just suffered; otherwise, as Julian also elegantly says, either they will be subjected to insults and damages with impunity, or it will be in the power of anyone, by suing them, to subject them to jurisdiction while they are seeking redress for themselves.

​But if it is doubted whether anyone is in such a position that he can recall home or not, the praetor himself must decide after an investigation of the cause. But if it is established that he is in a position to recall home, he must give security to appear in court, with the praetor determining for which day he should promise. But Marcellus doubts whether by a simple promise or by providing security; it seems to me that it should be by a promise alone, which Mela also writes; otherwise, he will be compelled to accept trial rather than to find those who will give security for him.

​But in all cases in which the summons is delayed, it is necessary that this should proceed without temporary loss to the creditors.

​The right of imposing a fine is given to those who have jurisdiction publicly, and to no others, unless this has been specially permitted to them.