[ULPIANUS libro duodecimo ad edictum. ] §4.6.26.prSed et si per praetorem stetit, restitutio indulgebitur.
[ULPIANUS in the twelfth book on the Edict.] But also if it was due to the praetor, restitution will be granted.
§4.6.26.1Aduersus relegatum restitutionem faciendam ex generali clausula Pomponius ait: sed non et ipsi concedendam, quia potuit procuratorem relinquere: ex causa tamen puto etiam ipsi succurrendum.
Pomponius says that restitution should be made against a relegated person on the basis of the general clause; but that it should not also be granted to him himself, because he could have left a procurator; yet I think that, for cause, relief should be given also to him himself.
§4.6.26.2Ait praetor: 'aut cum eum inuitum in ius uocare non liceret neque defenderetur'. haec clausula ad eos pertinet, quos more maiorum sine fraude in ius uocare non licet, ut consulem praetorem ceterosque, qui imperium potestatemue quam habent.
The praetor says: "or when it was not permitted to summon him to court against his will, and he was not defended." This clause applies to those whom, by ancestral custom, it is not permitted to summon to court without liability, such as a consul, a praetor, and others who hold whatever imperium or potestas they have.
sed nec ad eos pertinet hoc edictum, quos praetor prohibet sine permissu suo uocari, quoniam aditus potuit permittere: patronos puta et parentes.
But this edict does not apply to those whom the praetor forbids to be summoned without his permission, since he could have permitted access; for instance, patrons and parents.
§4.6.26.3Deinde adicit 'neque defenderetur': quod ad omnes supra scriptos pertinet praeterquam ad eum, qui absens quid usucepit: quoniam plene supra de eo cautum est.
Then he adds, "and he was not defended"; which applies to all those written above except him who, being absent, acquired something by usucapion, because full provision was made concerning him above.
§4.6.26.4Ait praetor: 'siue cui per magistratus sine dolo malo ipsius actio exempta esse dicetur'.
The praetor says: "or if anyone shall be said to have been deprived of an action through the magistrates without his own malicious intent." To what end is this?
hoc quo? ut si per dilationes iudicis effectum sit, ut actio eximatur, fiat restitutio.
In order that, if it was brought about through the delays of the judge that the action was taken away, restitution may be made.
sed et si magistratus copia non fuit, Labeo ait restitutionem faciendam.
But even if there was no availability of a magistrate, Labeo says that restitution should be made.
per magistratus autem factum ita accipiendum est, si ius non dixit: alioquin si causa cognita denegauit actionem, restitutio cessat: et ita Seruio uidetur.
But "done through the magistrates" is to be understood in this way: if he did not administer justice. Otherwise, if after investigating the cause he denied the action, restitution does not apply; and so it seems to Servius.
item per magistratus factum uidetur, si per gratiam aut sordes magistratus ius non dixerit: et haec pars locum habebit, nec non et superior 'secumue agendi potestatem non faciat': nam id egit litigator, ne secum agatur, dum iudicem corrumpit.
Likewise, it seems to be "done through the magistrates" if through favor or corruption of the magistrate he did not administer justice; and this part will have application, and also the preceding one: "or does not afford an opportunity of bringing an action against him"; for the litigant brought it about that an action was not brought against him, while he corrupted the judge.
§4.6.26.5Actio exempta sic erit accipienda, si desiit agere posse.
"An action taken away" is to be understood in this way: if one has ceased to be able to bring an action.
§4.6.26.6Et adicitur: 'sine dolo malo ipsius', uidelicet ut, si dolus eius interuenit, ne ei succurratur: ipsis enim delinquentibus praetor non subuenit.
And there is added: "without his own malicious intent," obviously so that, if his malice intervened, relief should not be given to him; for the praetor does not help wrongdoers themselves.
proinde si, dum uult apud sequentem praetorem agere, tempus frustratus est, non ei subuenietur.
Accordingly, if, while he wishes to bring an action before the succeeding praetor, he let the time slip away, relief will not be given to him.
sed et si, dum decreto praetoris non obtemperat, iurisdictionem ei denegauerit, non esse eum restituendum Labeo scribit.
But also if, while he does not comply with the decree of the praetor, the praetor has denied him jurisdiction, Labeo writes that he should not be restored.
idemque si ex alia iusta causa non fuerit ab eo auditus.
And the same if for some other just cause he was not heard by him.
§4.6.26.7Si feriae extra ordinem sint indictae, ob res puta prospere gestas uel in honorem principis, et propterea magistratus ius non dixerit, Gaius Cassius nominatim edicebat restituturum se, quia per praetorem uidebatur factum: sollemnium enim feriarum rationem haberi non debere, quia prospicere eas potuerit et debuerit actor, ne in eas incidat.
If extraordinary holidays have been proclaimed, for instance, on account of successful achievements or in honor of the princeps, and for that reason the magistrate did not administer justice, Gaius Cassius used to declare expressly in his edict that he would grant restoration, because it seemed to be done through the praetor; for account ought not to be taken of solemn holidays, because the plaintiff could and should have foreseen them, so as not to fall into them.
quod uerius est, et ita Celsus libro secundo digestorum scribit.
Which is more correct, and so Celsus writes in the second book of his Digests.
sed cum feriae tempus eximunt, restitutio dumtaxat ipsorum dierum facienda est, non totius temporis.
But when holidays take away time, restoration should be made only for those very days, not for the whole period.
et ita Iulianus libro quarto digestorum scribit: ait enim rescissionem usucapionis ita faciendam, ut hi dies restituantur, quibus actor agere uoluit et interuentu feriarum impeditus est.
And so Julian writes in the fourth book of his Digests; for he says that the rescission of usucapion should be made in such a way that those days are restored in which the plaintiff wished to bring an action and was prevented by the intervention of holidays.
§4.6.26.8Quotiens per absentiam quis non toto tempore aliquem exclusit, ut puta rem tuam possedi uno minus die statuto in usucapionibus tempore, deinde rei publicae causa abesse coepi, restitutio aduersus me unius diei facienda est.
Whenever someone has not excluded another for the whole period through his absence, as, for instance, if I possessed your property for one day less than the time established in usucapions, and then began to be absent on public business, restitution of one day should be made against me.
§4.6.26.9'Item', inquit praetor, 'si qua alia mihi iusta causa uidebitur, in integrum restituam. ' haec clausula edicto inserta est necessario: multi enim casus euenire potuerunt, qui deferrent restitutionis auxilium, nec singillatim enumerari potuerunt, ut quotiens aequitas restitutionem suggerit, ad hanc clausulam erit descendendum.
"Likewise," says the praetor, "if any other cause shall seem just to me, I will restore to the original condition." This clause was inserted in the edict of necessity; for many cases could happen which would bring the help of restoration, and they could not be enumerated individually, so that whenever equity suggests restoration, recourse must be had to this clause.
ut puta legatione quis pro ciuitate functus est: aequissimum est eum restitui, licet rei publicae causa non absit: et saepissime constitutum est adiuuari eum debere, siue habuit procuratorem siue non.
As, for instance, if someone has performed an embassy on behalf of a city; it is most equitable that he be restored, although he is not absent on public business. And it has been very often decided that he ought to be helped, whether he had a procurator or not.
idem puto, et si testimonii causa sit euocatus ex qualibet prouincia uel in urbem uel ad principem: nam et huic saepissime est rescriptum subueniri.
I think the same even if someone has been summoned from any province for the purpose of giving testimony, either to the city or to the princeps; for to him also it has been very often replied by rescript that relief is to be given.
sed et his, qui cognitionis gratia uel appellationis peregrinati sunt, similiter subuentum.
But also to those who have traveled abroad for the purpose of a trial or an appeal, relief has been similarly given.
et generaliter quotienscumque quis ex necessitate, non ex uoluntate afuit, dici oportet ei subueniendum.
And generally, whenever anyone was absent of necessity and not of his own free will, it ought to be said that relief should be given to him.