10. IF A TUTOR OR A CURATOR OR AN ELECTED MAGISTRATE APPEALS
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BOOK FORTY-NINEIDEFENSE O F AN APPELLANT WHETHER GROUNDS OF APPEALS CAN BE GIVEN BY A THIRD PARTY 1 ULPIAN,Appeals, book 4: The question is regularly asked whether grounds of appeal can be given by a third party, a thing which is frequently at issue in financial and in criminal cases. There are rescripts to the effect that this can be done in financial cases. The words of [one] rescript are as follows:"The deified brothers to Longinus. If the person who has appealed entrusted you with the defense of the appeal which Pollia brought against him, and the matter is financial, there is nothing to prevent your replying in his name. If, however, it is not a financial action but a capital case, it may not be conducted through a procurator. But if the case is such that a penalty [ranging] up to relegation customarily follows, you must know that such cases also ought not to be conducted by a third party, but [the principal] ought to be present at the hearing." Clearly, if it is a financial action, whose consequence is ignominy, the matter can be conducted by a procurator. And this must be confirmed in the case of the accuser too, whether he appeals or whether an appeal is made against him. In general, where an action cannot be raised by a third party, an appeal on it cannot be conducted by a third party either. 2 MACER, Appeals, book 2: If an absent person's procurator appeals and then renders his accounts, he himself should nonetheless appear. But let us see whether, on the procurator's desisting, the principal in the case can appear, as when a minor is concerned ; however, it is recognized as better practice that he whose procurator has appealed in his absence ought to be heard in giving his grounds of appeal. 10 I F A TUTOR OR A CURATOR OR AN ELECTED MAGISTRATE APPEALS 1 ULPIAN,Duties of Consul, book 3: Any persons, nominated to public duties, who appeal and do not prove their case, are to know that it is on their own heads if the res publica has suffered any loss through the delay caused by their appeal. But if it appears that it was unavoidable for them to have appealed, the governor or the emperor will assess to whom this loss is to be ascribed. 2 HERMOGENIAN, Epitome o f Law,book 5: If a tutor or curator retained [in office] appeals and dies before the case is heard, his heirs must necessarily give the grounds of his appeal because the risk is theirs for the meantime. 11 THE APPELLANT TO DEFEND HIMSELF IN [HIS OWN] PROVINCE 1 ULPIAN,Appeals, book 4: The deified brothers wrote in a rescript to Decimius Philo that a person who has appealed should make his defense to any other actions that he has in [his own] province, even if he goes outside it for the purposes of his appeal. 2 MARCIAN, Appeals, book 2: For this holds good for those persons who are absent for reasons of state so that they are not under the necessity of defending themselves. 388 BOOK FORTY-NINE/DEFENSE OF AN APPELLANT 9 WHETHER GROUNDS OF APPEALS CAN BE GIVEN BY A THIRD PARTY 1 ULPIAN, Appeals, book 4: The question is regularly asked whether grounds of appeal can be given by a third party, a thing which is frequently at issue in financial and in criminal cases. There are rescripts to the effect that this can be done in financial cases. The words of [one] rescript are as follows: "The deified brothers to Longinus. If the person who has appealed entrusted you with the defense of the appeal which Pollia brought against him, and the matter is financial, there is nothing to prevent your replying in his name. If, however, it is not a financial action but a capital case, it may not be conducted through a procurator. But if the case is such that a penalty [ranging] up to relegation customarily follows, you must know that such cases also ought not to be conducted by a third party, but [the principal] ought to be present at the hearing." Clearly, if it is a financial action, whose consequence is ignominy, the matter can be conducted by a procurator. And this must be confirmed in the case of the accuser too, whether he appeals or whether an appeal is made against him. In general, where an...