[ULPIANUS libro septuagensimo septimo ad edictum. ] §46.7.5.prIam tamen fideiussore, qui iudicium acceperat, damnato frustra defensionem reus suscipit: ceterum et si solutum fuerit, posteaquam iudicatum est, repetitionem constituerimus eius quod solutum est.
But now, once the surety who had accepted the trial is condemned, the principal debtor undertakes the defense in vain; moreover, even if payment has been made after judgment has been given, we shall establish the recovery of what was paid.
§46.7.5.1Unus ex fideiussoribus uel heredibus pluribus alio cessante suscipere defensionem potest.
One of several sureties or heirs, while another is inactive, can undertake the defense.
§46.7.5.2In hac stipulatione quia plures causae sunt una quantitate conclusae, si committeretur statim stipulatio ex uno casu, amplius ex alio committi non potest.
In this stipulation, because several causes are concluded in one sum, if the stipulation were to be committed immediately from one case, it cannot be further committed from another.
§46.7.5.3Nunc uideamus, qualis defensio exigatur, ne committatur stipulatio, et quarum personarum.
Now let us see what kind of defense is required so that the stipulation is not committed, and of what persons.
et si quidem ex personis enumeratis in defensionem quis succedat, palam est recte rem defendi nec committi stipulationem.
And indeed, if anyone from the enumerated persons succeeds to the defense, it is clear that the matter is rightly defended and the stipulation is not committed.
si uero exstrinsecus persona defensoris interueniat, aeque stipulatio non committetur, si modo ille paratus sit rem boni uiri arbitratu defendere, hoc est satisdare: sic enim uidetur defendere, si satisdet: ceterum si simpliciter paratus sit interuenire nec admittatur, committetur ista stipulatio ob rem non defensam.
But if an outside person intervenes as defender, the stipulation will likewise not be committed, provided that he is prepared to defend the matter according to the judgment of an honest man, that is, to give security; for he is deemed to defend in this way, if he gives security. On the other hand, if he is simply prepared to intervene and is not admitted, this stipulation will be committed on account of the matter not being defended.
quod si quis eum uel cum satisdatione uel sine satisdatione admiserit, consequens erit dicere, stipulationis istius nullam partem committi, quia sibi imputare debet, qui talem defensorem admisit.
But if anyone admits him either with or without security, it will follow to say that no part of this stipulation is committed, because he who admitted such a defender must impute it to himself.
§46.7.5.4Si ex fideiussoribus, qui iudicatum solui cauerant, existat defensor, placuit ob rem iudicatam stipulationem non committi ceteraque eadem esse, atque si extraneus defensor existat.
If a defender arises from the sureties who had given security for the payment of the judgment, it was agreed that the stipulation is not committed on account of the adjudged matter, and that all other things are the same as if an outside defender arises.
§46.7.5.5In hac stipulatione hoc tractatur, an hi qui fideiusserint, si defensionem omiserint, mandati iudicio teneantur.
In this stipulation it is discussed whether those who have acted as sureties, if they omit the defense, are held by the action of mandate.
et est uerius non teneri: hi enim in quantitatem interuenerunt et hoc illis fuit mandatum, non in defensione.
And it is more true that they are not held; for they intervened for the sum, and this was mandated to them, not the defense.
§46.7.5.6Quid tamen, si et hoc sibi adsumpserint, ut defendant, an mandati possint agere? et si quidem uicti sunt, utique quod ob rem iudicatam praestiterunt consequentur: sumptus tamen litis minime petent.
What, however, if they also took this upon themselves, to defend—can they bring the action of mandate? And indeed, if they are defeated, they will certainly recover what they paid on account of the adjudged matter; however, they will by no means seek the expenses of the lawsuit.
si autem optinuerunt, poterunt sumptus litis consequi, quasi iuxta mandatum, etsi non mandatum fecerint.
But if they prevailed, they will be able to recover the expenses of the lawsuit, as if according to the mandate, even though they did not act upon a mandate.
§46.7.5.7Si tamen plures fideiussores defendere fuerint parati, uideamus, utrum unum defensorem debent dare, an uero sufficiat, ut unusquisque eorum pro parte sua defendat uel defensorem substituat.
If, however, several sureties are prepared to defend, let us see whether they ought to give one defender, or indeed whether it is sufficient that each of them defends for his own share or substitutes a defender.
et magis est, ut, nisi unum dent procuratorem, desiderante scilicet hoc actore, committatur stipulatio ob rem non defensam: nam et plures heredes rei necesse habebunt unum dare procuratorem, ne defensio per plures scissa incommodo aliquo adficiat actorem.
And it is more correct that, unless they give one procurator—provided, of course, the plaintiff desires this—the stipulation is committed on account of the matter not being defended; for also several heirs of the defendant will have a necessity to give one procurator, lest the defense split among several affect the plaintiff with some disadvantage.
aliud est in heredibus actoris, quibus necessitas non imponitur, ut per unum litigent.
It is otherwise in the case of the heirs of the plaintiff, upon whom no necessity is imposed to litigate through one.
§46.7.5.8illud sciendum est ibi rem esse defendendam, ut recte defendatur, ubi debet agi.
It must be known that the matter is to be defended, so that it may be rightly defended, where the action ought to be brought.