[SCAEUOLA libro uicensimo quinto digestorum. ] §49.1.28.prCreditor cum fideiussoribus egerat: sed post iudicium acceptum ad agendam causam ipse non adfuit et, cum absoluti essent fideiussores, seruus eius appellauit.
[SCAEVOLA, Digest, Book XXV.] A creditor had sued the sureties; but after the joinder of issue, he himself was not present to conduct the case, and when the sureties were acquitted, his slave appealed.
quaesitum est, an appellatio, quam seruus interposuit nomine domini, nullius momenti esset.
It was asked whether the appeal, which the slave interposed in the name of his master, was of no effect.
respondit eiusmodi appellationem non esse obseruandam.
He replied that such an appeal was not to be respected.
§49.1.28.1Iussus a iudice exhibere secundum praeceptum praesidis prouinciae rationes, quas apud se esse cauerat, instrumentorum gratia data dilatione nec postea exhibuit ideoque secundum constitutionem recitatam, quia per contumaciam instrumenta non exhibuerat, cum petitor quanti sua interesset exhiberi iurasset, facta erat condemnatio.
Having been ordered by the judge, in accordance with the mandate of the provincial governor, to produce accounts which he had secured as being in his possession, although a postponement was granted for the sake of the documents, he did not produce them afterwards; and therefore, in accordance with the constitution read aloud, since he had not produced the documents through contumacy, a condemnation was made when the plaintiff had sworn as to the amount of his interest in their production.
quaesitum est, an post iusiurandum appellationem interponere possit.
It was asked whether he could interpose an appeal after the oath.
respondit nihil proponi, cur denegandum esset appellationis auxilium.
He replied that nothing was set forth why the aid of an appeal should be denied.
§49.1.28.2Substituti tutores in locum legitimi tutoris experti cum eo tutelae iudicio, cum arbiter inique condemnauit, quam rei aequitas exigebat, a sententia eius prouocauerunt: pendente causa appellationis iuuenes adoleuerunt.
Substitute tutors appointed in place of a legal tutor, having litigated with him in an action of tutelage, appealed from the sentence of the arbiter when he condemned him unjustly compared to what the equity of the case demanded. While the appeal case was pending, the youths reached majority.
quaesitum est, cum omnis exsecutio huius ad adultos pertineat et causam ad se pertinentem idonee tueri possunt, an postulatio eorum, contra quos appellatum erat, dicentium illos debuisse causas appellationis reddere, qui primi sunt experti, admittenda non sit.
It was asked whether, since the entire prosecution of this matter belongs to the adults and they are capable of properly defending a case concerning themselves, the petition of those against whom the appeal was made, claiming that those who first litigated ought to have rendered the grounds of the appeal, should not be admitted.
respondit eos, quorum tutela gesta esset, si uellent causam exsequi, non prohibendos.
He replied that those whose tutelage had been administered, if they wished to prosecute the case, should not be prohibited.
idem et in curatoribus obseruandum est, si interim adultus ad legitimam aetatem peruenit.
The same is also to be observed in the case of curators, if in the meantime the adult has reached the legal age.