[IDEM libro tertio ad edictum. ] §5.1.2.prConsensisse autem uidentur, qui sciant se non esse subiectos iurisdictioni eius et in eum consentiant.
[THE SAME in the third book on the Edict.] Moreover, those are deemed to have consented who, knowing that they are not subject to his jurisdiction, nevertheless consent to him.
ceterum si putent eius iurisdictionem esse, non erit eius iurisdictio: error enim litigatorum, ut Iulianus quoque libro primo digestorum scribit, non habet consensum.
On the other hand, if they believe that his jurisdiction exists, there will be no jurisdiction for him; for a mistake of the litigants, as Julian also writes in the first book of the Digests, does not involve consent.
aut si putauerunt alium esse praetorem pro alio, aeque error non dedit iurisdictionem.
Or if they thought one praetor was another, likewise the mistake did not give jurisdiction.
aut si, cum restitisset quiuis ex litigatoribus, uiribus praeturae compulsus est, nulla iurisdictio est.
Or if, when any of the litigants had resisted, he was compelled by the power of the praetorship, there is no jurisdiction.
§5.1.2.1Conuenire autem utrum inter priuatos sufficit an uero etiam ipsius praetoris consensus necessarius est? lex Iulia iudiciorum ait 'quo minus inter priuatos conueniat': sufficit ergo priuatorum consensus.
But does it suffice for the agreement to be made between private persons, or is the consent of the praetor himself also necessary? The lex Julia on trials says, 'to prevent agreement between private persons'; therefore, the consent of private persons is sufficient.
proinde si priuati consentiant, praetor autem ignoret consentire et putet suam iurisdictionem, an legi satisfactum sit, uidendum est: et puto posse defendi eius esse iurisdictionem.
Hence, if private persons consent, but the praetor is unaware of their consent and believes he has jurisdiction, it must be considered whether the law has been satisfied; and I think it can be maintained that his jurisdiction exists.
§5.1.2.2Si et iudex ad tempus datus et omnes litigatores consentiant: nisi specialiter principali iussione prorogatio fuerit inhibita, possunt tempora, intra quae iussus est litem dirimere, prorogari.
If both a judge appointed for a limited time and all the litigants consent, unless the extension has been specially prohibited by an imperial order, the times within which he was commanded to decide the suit can be extended.
§5.1.2.3Legatis in eo quod ante legationem contraxerunt, item his qui testimonii causa euocati sunt uel si qui iudicandi causa arcessiti sunt uel in prouinciam destinati, reuocandi domum suam ius datur.
Envoys are granted the right of recalling home in respect of what they contracted before their embassy, as well as those who have been summoned for the purpose of giving testimony, or if any have been summoned for the purpose of judging, or have been destined for a province.
eo quoque qui ipse prouocauit non imponitur necessitas intra tempora prouocationis exercendae Romae uel alio loco ubi prouocatio exercetur aliis pulsantibus respondere: nam Celsus huic etiam domus reuocationem dandam ait, quoniam ob aliam causam uenerit: haec Celsi sententia et rationabilis est.
Also, upon a person who has himself appealed, there is no necessity imposed to answer other plaintiffs during the time when the appeal is to be prosecuted, either at Rome or in another place where the appeal is prosecuted; for Celsus says that the right of recalling home should also be given to him, since he came for another cause: this opinion of Celsus is also reasonable.
nam et diuus Pius Plotio Celsiano rescripsit eum, qui tutelae reddendae causa Romam erat a se euocatus, alterius tutelae causa, cuius causa non erat euocatus, non debere compelli iudicium suscipere.
For the deified Pius also wrote back to Plotius Celsianus that a person who had been summoned to Rome by himself for the purpose of rendering an account of guardianship, ought not to be compelled to undergo trial on account of another guardianship, for which he had not been summoned.
idem Claudio Flauiano rescripsit minorem uiginti quinque annis, qui desiderarat in integrum restitui aduersus Asinianum, qui alterius negotii causa uenerat, non esse Romae audiendum.
The same emperor wrote back to Claudius Flavianus that a person under twenty-five years of age, who had desired to be restored to his original condition against Asinianus, who had come for the sake of another business, was not to be heard at Rome.
§5.1.2.4Omnes autem isti domum reuocant, si non ibi contraxerunt, ubi conueniuntur.
But all these persons recall home if they did not contract in the place where they are sued.
ceterum si contraxerunt ibi, reuocandi ius non habent: exceptis legatis, qui licet ibi contraxerunt, dummodo ante legationem contraxerunt, non compelluntur se Romae defendere, quamdiu legationis causa hic demorantur.
On the other hand, if they contracted there, they do not have the right of recalling; except for envoys, who, although they contracted there, provided they contracted before their embassy, are not compelled to defend themselves at Rome as long as they remain here for the purpose of their embassy.
quod et Iulianus scribit et diuus Pius rescripsit.
This Julian also writes and the deified Pius wrote back.
plane si perfecta legatione subsistant, conueniendos eos diuus Pius rescripsit.
Clearly, if they remain after their embassy is completed, the deified Pius wrote back that they are to be sued.
§5.1.2.5Item si extra prouinciam suam contraxerunt, licet non in Italia, quaestionis est, an Romae conueniri possint.
Likewise, if they contracted outside their province, although not in Italy, it is a question whether they can be sued at Rome.
et Marcellus in eo solo priuilegio eos uti domum reuocandi, quod in ciuitate sua uel certe intra prouinciam contraxerunt: quod est uerum.
And Marcellus thinks that they enjoy the privilege of recalling home only in the case that they contracted in their own city or at least within their province, which is true.
sed et si agant, compelluntur se aduersus omnes defendere: non tamen si iniuriam suam persequantur uel furtum uel damnum quod nunc passi sunt: alioquin, ut et Iulianus eleganter ait, aut impune contumeliis et damnis adficientur aut erit in potestate cuiusque pulsando eos subicere ipsos iurisdictioni, dum se uindicant.
But if they themselves bring an action, they are compelled to defend themselves against all persons; not, however, if they prosecute for an injury done to them, or a theft, or a damage which they have just suffered; otherwise, as Julian also elegantly says, either they will be subjected to insults and damages with impunity, or it will be in the power of anyone, by suing them, to subject them to jurisdiction while they are seeking redress for themselves.
§5.1.2.6Sed si dubitetur, utrum in ea quis causa sit, ut domum reuocare possit, nec ne, ipse praetor debet causa cognita statuere.
But if it is doubted whether anyone is in such a position that he can recall home or not, the praetor himself must decide after an investigation of the cause.
quod si constiterit in ea eum esse causa, ut domum reuocet, debebit cauere in iudicio sisti, statuente praetore in quem diem promittat.
But if it is established that he is in a position to recall home, he must give security to appear in court, with the praetor determining for which day he should promise.
sed utrum nuda cautione an satisdato, Marcellus dubitat: mihi uidetur sola promissione, quod et Mela scribit: alioquin compelletur iudicium accipere quam inuenire eos qui satis pro eo dent.
But Marcellus doubts whether by a simple promise or by providing security; it seems to me that it should be by a promise alone, which Mela also writes; otherwise, he will be compelled to accept trial rather than to find those who will give security for him.
§5.1.2.7In omnibus autem, in quibus protelatur admonitio, hoc procedere sine temporali damno creditorum oportet.
But in all cases in which the summons is delayed, it is necessary that this should proceed without temporary loss to the creditors.
§5.1.2.8His datur multae dicendae ius, quibus publice iudicium est, et non aliis: nisi hoc specialiter eis permissum est.
The right of imposing a fine is given to those who have jurisdiction publicly, and to no others, unless this has been specially permitted to them.