[MARCELLUS libro tertio digestorum. ] §4.1.7.prDiuus Antoninus Marcio Auito praetori de succurrendo ei, qui absens rem amiserat, in hanc sententiam rescripsit: 'Etsi nihil facile mutandum est ex sollemnibus, tamen ubi aequitas euidens poscit, subueniendum est.
[MARCELLUS, Digests, book 3] The deified Antoninus replied by rescript to the praetor Marcius Avitus on relieving one who had lost his property while absent, to this effect: "Although nothing should easily be changed from solemn rules, nevertheless where manifest equity demands, relief must be given.
itaque si citatus non respondit et ob hoc more pronuntiatum est, confestim autem pro tribunali te sedente adiit: existimari potest non sua culpa sed parum exaudita uoce praeconis defuisse, ideoque restitui potest. ' §4.1.7.1Nec intra has solum species consistet huius generis auxilium: etenim deceptis sine culpa sua, maxime si fraus ab aduersario interuenerit, succurri oportebit, cum etiam de dolo malo actio competere soleat, et boni praetoris est potius restituere litem, ut et ratio et aequitas postulabit, quam actionem famosam constituere, ad quam tunc demum descendendum est, cum remedio locus esse non potest.
Therefore, if a person summoned did not answer and on this account judgment was pronounced according to custom, but he came immediately while you were sitting on the tribunal, he can be deemed to have been absent not by his own fault but because the voice of the herald was not heard well enough, and therefore he can be restored to his former position." Nor will relief of this kind consist only in these instances: for indeed, those who have been deceived without their own fault, especially if fraud has intervened on the part of the adversary, ought to be relieved, since even an action for fraud is usually available; and it is the part of a good praetor to restore the lawsuit, as both reason and equity shall demand, rather than to allow an action involving infamy, to which recourse must be had only then when there can be no place for a remedy.