[ULPIANUS libro primo de appellationibus. ] §49.4.1.7Dies autem istos, quibus appellandum est, ad aliquid utiles esse oratio diui Marci uoluit, si forte eius, a quo prouocatur, copia non fuerit, ut ei libelli dentur: ait enim: 'is dies seruabitur, quo primo adeundi facultas erit'. quare si forte post sententiam statim dictam copiam sui non fecerit is qui pronuntiauit (ut fieri adsolet), dicendum est nihil nocere appellatori: nam ubi primum copiam eius habuerit, poterit prouocare.
Moreover, the address of the deified Marcus willed that these days within which an appeal must be made should be useful to some extent, if by chance there should be no opportunity of access to the person from whom the appeal is made, so that the petitions may be given to him; for he says: "that day shall be preserved on which there shall first be an opportunity of approaching him." Therefore, if by chance immediately after the sentence has been pronounced, the one who pronounced it did not make himself available (as is accustomed to happen), it must be said that it does no harm to the appellant; for as soon as he has an opportunity of access to him, he will be able to appeal.
ergo si statim se subduxit, similiter subueniendum est.
Therefore, if he withdrew himself immediately, he must be assisted in like manner.
§49.4.1.8Quid igitur, si condicio horae effecit, ut se reciperet? si forte dicta sit sententia iam suprema hora? utique non uidebitur se subtraxisse.
What then if the condition of the hour caused him to withdraw? If by chance the sentence was pronounced already at the last hour? Assuredly, he will not seem to have withdrawn himself.
§49.4.1.9Adeundi autem facultatem semper accipimus, si in publico sui copiam fecit: ceterum si non fecit, an imputetur alicui, quod ad domum eius non uenerit quodque in hortos non accesserit, et ulterius quod ad uillam suburbanam? magisque est, ut non debeat imputari.
But we always understand the opportunity of approaching to be if he has made himself available in public; but if he did not, should it be imputed to anyone that he did not come to his house, and that he did not go into his gardens, and further to his suburban villa? And it is more correct that it ought not to be imputed.
quare si in publico eius adeundi facultas non fuit, melius dicetur facultatem non fuisse adeundi.
Therefore, if there was no opportunity of approaching him in public, it will be better said that there was no opportunity of approaching.
§49.4.1.10Si quis ipsius quidem, a quo appellabit, adeundi facultatem non habuit, eius autem, quem appellabit, habeat copiam: uidendum est, an ei praescribi possit, quod eum non adierit.
If anyone indeed did not have an opportunity of approaching the person from whom he is appealing, but has an opportunity of access to the person to whom he is appealing, it must be seen whether a prescription can be objected against him because he did not approach him.
et hoc iure utimur, ut, si alterutrius adeundi fuit copia, praescriptio locum habeat.
And we use this rule of law, that if there was an opportunity of approaching either of the two, the prescription has place.
§49.4.1.11In propria causa biduum accipitur.
In one's own case, a period of two days is accepted.
propriam causam ab aliena quemadmodum discernimus? et palam est eam esse propriam causam, cuius emolumentum uel damnum ad aliquem suo nomine pertinet.
How do we distinguish one's own case from that of another? And it is clear that that is one's own case, the benefit or loss of which belongs to someone in his own name.
§49.4.1.12Quare procurator, nisi in suam rem datus est, tertium diem habebit: in suam autem rem datus magis est ut alteram diem obseruet.
Therefore, a procurator, unless he has been appointed for his own benefit, will have three days; but if he has been appointed for his own benefit, it is more correct that he should observe the second day.
at si in partem proprio nomine, in partem pro alieno litigat, ambigi potest, utrum biduum an triduum obseruetur.
But if he is litigating partly in his own name and partly for another, it can be doubted whether two or three days should be observed.
et magis est, ut suo nomine biduum, alieno triduum obseruetur.
And it is more correct that two days should be observed in his own name, and three days for the other.
§49.4.1.13Tutores, item defensores rerum publicarum et curatores adulescentium uel furiosi, tertium diem habere debent, idcirco quia alieno nomine appellant.
Tutors, likewise defenders of municipalities, and curators of minors or of an insane person, ought to have three days, for the reason that they appeal in another's name.
ex hoc apparet tertio die prouocandum defensori, si modo quasi defensor causam egit, non suo nomine, cum optentu alieni nominis suam causam agens tertio die appellare possit.
From this it appears that the appeal must be made on the third day by a defender, provided that he conducted the case as a defender, not in his own name, since one who conducts his own case under the pretext of another's name can appeal on the third day.
§49.4.1.14Si quis suspectum tutorem faciens non optinuerit, appellare eum intra triduum debere Iulianus libro quadragensimo digestorum scripsit, profecto quasi pupilli defensorem.
If anyone seeking to remove a tutor as suspected has not succeeded, Julian wrote in the fortieth book of the Digests that he must appeal within three days, surely as if he were a defender of the pupil.
§49.4.1.15Si aduersus absentem fuerit pronuntiatum, biduum uel triduum ex quo quis scit, computandum est, non ex quo pronuntiatum est.
If a judgment has been pronounced against an absent person, the period of two or three days must be computed from the time he knows, not from the time it was pronounced.
quod autem dicitur absentem posse prouocare ex quo scit, sic accipimus, si non in causa per procuratorem defensus est: nam si ille non prouocauit, difficile est, ut hic audiatur.
But what is said, that an absent person can appeal from the time he knows, we understand in this way, if he was not defended in the case by a procurator; for if the latter did not appeal, it is difficult for this person to be heard.