[IDEM libro uicensimo tertio ad edictum. ] §5.1.18.prSi longius spatium intercessurum erit, quo minus iudex datus operam possit dare, mutari eum iubet praetor: hoc est si forte occupatio aliqua iudicem non patiatur operam iudicio dare, incidente infirmitate uel necessaria profectione uel rei suae familiaris periculo.
[THE SAME, in the twenty-third book on the Edict.] If a longer period of time is to intervene, such as to prevent the appointed judge from being able to attend to his duty, the praetor orders him to be changed; that is to say, if by chance some occupation does not allow the judge to attend to the trial, owing to the occurrence of illness, or a necessary journey, or danger to his private property.
§5.1.18.1Si filius familias ex aliqua noxa, ex qua patri actio competit, uelit experiri, ita demum permittimus ei agere, si non sit qui patris nomine agat.
If a son in power wishes to bring an action on account of some injury from which an action accrues to his father, we permit him to sue only if there is no one to sue in the father's name.
nam et Iuliano placet, si filius familias legationis uel studiorum gratia aberit et uel furtum uel damnum iniuria passus sit: posse eum utili iudicio agere, ne dum pater exspectatur impunita sint maleficia, quia pater uenturus non est uel dum uenit, se subtrahit is qui noxam commisit.
For it is also approved by Julian that if a son in power is absent for the sake of an embassy or studies, and has suffered either theft or damage wrongfully caused, he can sue by a beneficial action, lest while the father is awaited, the wrongdoings should go unpunished, because the father is not going to come, or while he is coming, the person who committed the wrong withdraws himself.
unde ego semper probaui, ut, si res non ex maleficio ueniat, sed ex contractu, debeat filius agere utili iudicio, forte depositum repetens uel mandati agens uel pecuniam quam credidit petens, si forte pater in prouincia sit, ipse autem forte Romae uel studiorum causa uel alia iusta ex causa agat: ne, si ei non dederimus actionem, futurum sit, ut impune fraudem patiatur et egestate Romae laboret uiaticulo suo non recepto, quod ad sumptum pater ei destinauerat.
Therefore, I have always approved that, if the matter arises not from a wrongdoing but from a contract—for instance, reclaiming a deposit, or suing on mandate, or demanding money which he lent—the son ought to sue by a beneficial action, if by chance the father is in a province, while he himself is living in Rome either for the sake of studies or for some other just cause; lest, if we do not grant him an action, it should happen that he suffers fraud with impunity and suffers from want in Rome, not having received his travel allowance which his father had destined for his maintenance.
et finge senatorem esse filium familias qui patrem habet in prouincia, nonne augetur utilitas per dignitatem?
And imagine that the son in power, who has a father in a province, is a senator; is not the utility increased by his dignity?