[IULIANUS libro quinto digestorum. ] §42.1.60.prQuaesitum est, cum alter ex litigatoribus febricitans discessisset et iudex absente eo pronuntiasset, an iure uideretur pronuntiasse.
[JULIAN, in the fifth book of the Digest.] The question was asked, when one of the litigants had departed with a fever and the judge had pronounced judgment in his absence, whether he was deemed to have pronounced it lawfully.
respondit: morbus sonticus etiam inuitis litigatoribus ac iudice diem differt.
He replied: a serious illness postpones the appointed day, even against the will of the litigants and the judge.
sonticus autem existimandus est, qui cuiusque rei agendae impedimento est.
Moreover, that illness is to be considered serious which is an impediment to carrying out any matter.
litiganti porro quid magis impedimento est, quam motus corporis contra naturam, quem febrem appellant? igitur si rei iudicandae tempore alter ex litigatoribus febrem habuit, res non uidetur iudicata.
Furthermore, what is more of an impediment to a litigant than an unnatural movement of the body, which they call a fever? Therefore, if at the time the case was to be decided one of the litigants had a fever, the matter is not deemed to have been decided.
potest tamen dici esse aliquam et febrium differentiam: nam si quis sanus alias ac robustus tempore iudicandi leuissima febre correptus fuerit, aut si quis tam ueterem quartanam habeat, ut in ea omnibus negotiis superesse soleat, poterit dici morbum sonticum non habere.
It can, however, be said that there is also some distinction among fevers; for if someone who is otherwise healthy and robust should be seized by a very mild fever at the time of trial, or if someone has such an old quartan fever that during it he is accustomed to attend to all his business, it can be said that he does not have a serious illness.