BOOK IV. Chapter 11. In pursuance of a lex Iulia, the debtor by voluntary surrender of property (cessio bonorum) a escapes the infamy that otherwise befalls him—as well as execution against the person-and acquires the 'beneficium Paterson, competentiae' in respect of after-acquired property. Cf. Blackst. ii. 472-3 (Steph. ii. 147, note); Bell, Dict. s. vv.; s. 1186. b $ 139. Cf. § 192. Imp. Alex.: Debitores qui bonis cesserint, licet ex ea causa bona eorum venierint, infames non fiunt.-C. 2, 11 (12), 11. Id. Qui bonis cesserint, nisi solidum creditor receperit, non sunt liberati: in eo enim tantum hoc beneficium eis prodest, ne iudicati detrahantur in carcerem.-C. 7, 71, : Ulp. Is qui bonis cessit, si quid postea adquisierit, in quantum facere potest convenitur.D. 42, 3, 4 pr.3 Paul. Quem poenitet bonis cessisse, potest defendendo se consequi, ne bona eius veneant.— 1. 5 eod.* Special execution, in opposition to the old Roman spirit, by means of distraint and public sale of single portions of property by subordinates of the magistrate (apparitores), first acquired recognition and development in imperial times, whilst natural execution in actions for restitution, inconsistent with the charac aggregate. Such was the bonorum emptio, which was introduced for selling by a roundabout way the property of debtors; . . . but . . . bon. vend. have disappeared, and creditors are only allowed to take possession of the goods under the authority of a iudex, and dispose of them as seems to them expedient. 1 Debtors who have made a surrender of their property do not fall under infamy, although in consequence thereof a sale have taken place of their property. 2 Persons that have made a surrender of their goods are not released unless the creditor has received full satisfaction; for they enjoy this unique benefit, that insolvents are not to be cast into prison. He that has made a surrender of his goods, if he shall afterwards acquire anything, is sued for as much as he can render. He that regrets having made a surrender of his goods, can by showing cause succeed in stopping a sale thereof. ter of ordinary proceedings, only indeed belongs to BOOK IV. the post-classical period. Chapter 11. Call. D. Pius in haec verba rescripsit: His a 197. Ulp. :-primo quidem res mobiles et animales 1 The late Emp. Pius issued a rescript in the following terms: Those who shall confess their indebtedness, or shall have to make restitution by virtue of a legal judgment, shall be allowed time for payment; . . . let pledges be taken from those who shall not pay within the term, and, in default of payment within two months, let such things be sold; if there be any surplus from the purchase-moneys, let it be delivered up to him whose pledges were sold.' 2 in the first place they order movables and live stock to be taken in pledge, and then sold; and if the proceeds of the sale of such shall not suffice, they order distraint and sale of lands: but if there are no movables, they begin with a pledge of the land; but if those of the immovable estate do not suffice or none exist, then they will resort to rights; and the presidents, therefore, in that manner execute a judgment. § If the pledge; that have been taken do not find a purchaser, by a rescript of our Emp. and his deceased father, the debtors themselves shall be adjudicated to the person in whose favour the condemna BOOR IV. Chapter II. a? Iust. It is question able whether with restric tion to extraordinariae cognitiones. : Ulp. Qui restituere iussus iudici non paret contendens non posse restituere, si quidem habeat rem, manu militari officio iudicis ab eo possessio transfertur.-D. 6, 1, 68.1 § 205. LEGAL REMEDIES. An appeal (appellatio, provocatio), with regulated series of instances and of reformatory character, first obtained in the sphere of the 'ius extraordinarium,' in imperial times. It went-except as to special jurisdictions-from the iudex to the magistrate with jurisdiction, to the judge delegated by the Emperor, and, so far as an appeal lay from such judge (as the praefectus praetorio), to the Emperor himself. Ulp. Appellandi usus quam sit frequens quamque necessarius, nemo est qui nesciat, quippe cum iniquitatem iudicantium vel imperitiam recorrigat: licet, nonnumquam bene latas sententias in peius reformet.-D. 49, I, I pr. The putting in of an appeal (1) must take place at once verbally, or within a short interval (dies fatales) in a written form (libelli appellatorii); it has a suspensive effect as regards the judgment pronounced, and is attended by a penalty for vexatious litigation. Ulp. Biduum vel triduum appellationis ex die sententiae latae computandum erit.-In propria causa biduum accipitur.—Quare procura tion was, 1 1 When a person does not comply with the order of the iudex to make restitution, and maintains that he cannot make restitution, if he in fact have the thing, the possession is by armed force transferred from him by the authority of the iudex. 9 Every one is aware how common and how needful is the custom of appeal, from the fact that it repairs the unfairness or unskilfulness of judges, although sometimes it alters for the worse judgments well pronounced. tor, nisi in suam rem datus est, tertium diem Id. Appellatione interposita, sive ea recepta Paul. v. 33, § 1: Ne liberum quis . haberet arbitrium retractandae et revocandae sententiae, poenae appellatoribus praestitutae sunt.— § 8 In omnibus pecuniariis causis magis est, ut in tertiam partem eius pecuniae caveatur.3 Ibid. 37 Omnimodo ponendum est, ut quotiens iniusta appellatio pronuntiatur, sumptus, quos dum sequeretur adversarius impendit, reddere cogatur, non simplos sed quadruplos.' (2) If the appeal be allowed by the first judge, he assigns the matter to the higher judge by 'litterae dimissoriae' handed to the appellant, who has to deliver them to him within a certain interval. Ibid. 34 Ab eo, a quo appellatum est, ad eum qui de appellatione cogniturus est, litterae dimissoriae diriguntur quae vulgo apostoli appellantur: quorum postulatio et acceptio intra quintum diem ex officio facienda est. Qui intra tempora praestituta dimissorias non postulaverit. 1 The interval of two or of three days for an appeal shall be reckoned from the day when judgment was delivered.—In one's own matter an interval of two days is allowed.-Wherefore a procurator, unless he has been appointed for his own advantage, will have a third day. "After the putting in of an appeal, whether notice of it has been received or not, no change ought to be made in the meantime. That no one might have unlimited discretion of withdrawal and of appeal from the judgment, penalties have been prescribed for appellants. In all cases affecting money it is more reasonable that security be taken for a third part of such money. In every case it must be laid down that, as often as an illegal appeal is put forth, the appellant shall be obliged to pay the costs that the opponent lays out while pursuing the action, not the actual but the fourfold amount. BOOK IV. Chapter 11. BOOK IV. Chapter II. vel acceperit vel reddiderit, praescriptione ab agendo summovetur et poenam appellationis inferre cogitur.' Proceedings upon appeal before the higher judge in which, since it is a question of settling the material question of Law, new facts, proofs and objections also without limitation can be adduced, close with a judgment affirming or amending the earlier decision. There is no need of appeal against a void, as being a merely nominal judgment (sententia nulla, nullius momenti). The judgment is void (1) by reason of incapacity or incompetence of the judge. Ulp. si inter eos quis dixerit ius, inter quos iurisdictionem non habuit, pro nulla hoc habetur nec est ulla sententia.-D. 2, 2, 1, 2.3 (2) By reason of defective capacity for proceedings of a party. Imp. Gord. Servus in iudicio interesse non potest nec, si condemnatio aliqua in personam eius facta sit, quod statutum est subsistit.-C. 3, 1, 6.3 Paul. Contra indefensos minores tutorem vel curatorem non habentes nulla sententia proferenda est.-D. 42, 1, 45, 2.* 1 Letters dimissory, commonly called 'apostoli,' are directed by the appellant to him who must take cognizance of the appeal, the claim and acceptance of which must be formally made within five days. He that has not applied for, or received, or returned such letters dimissory within the time limited is barred from action by the limitation, and is obliged to pay the penalty for the appeal. 2 If a man have given judgment between parties between whom he had no authority to decide, . . . this is regarded as void and is not an actual sentence. ... 3 A slave cannot take part in an action, and if any judgment shall have been pronounced against him, such decision does not hold. 4 No judgment can be pronounced against undefended minors who have no tutor or curator. |