therefore its place has been taken by the oath
above mentioned, and by the rule that a plaintiff who sues without just
cause must compensate his opponent for all losses incurred, and also pay
the costs of the action.

2 In some actions condemnation carries infamy with it, as in those on
theft, robbery, outrage, fraud, guardianship, agency, and deposit, if
direct, not contrary; also in the action on partnership, which is always
direct, and in which infamy is incurred by any partner who suffers
condemnation. In actions on theft, robbery, outrage, and fraud, it is
not only infamous to be condemned, but also to compound, as indeed is
only just; for obligation based on delict differs widely from obligation
based on contract.

3 In commencing an action, the first step depends upon that part of the
Edict which relates to summons; for before anything else is done, the
adversary must be summoned, that is to say, must be called before
the judge who is to try the action. And herein the praetor takes into
consideration the respect due to parents, patrons, and the children and
parents of patrons, and refuses to allow a parent to be summoned by his
child, or a patron by his freedman, unless permission so to do has been
asked of and obtained from him; and for nonobservance of this rule he
has fixed a penalty of fifty solidi.

TITLE XVII. OF THE DUTIES OF A JUDGE

Finally we have to treat of the duties of a judge; of which the first is
not to judge contrary to statutes, the imperial laws, and custom.

1 Accordingly, if he is trying a noxal action, and thinks that the
master ought to be condemned, he should be careful to word his judgement
thus: 'I condemn Publius Maevius to pay ten aurei to Lucius Titius, or
to surrender to him the slave that did the wrong.'

2 If the action is real, and he finds against the plaintiff, he ought to
absolve the defendant; if against the latter, he ought to order him
to give up the property in question, along with its fruits. If the
defendant pleads that he is unable to make immediate restitution and
applies for execution to be stayed, and such application appears to
be in good faith, it should be granted upon the terms of his finding a
surety to guarantee payment of the damages assessed, if restitution be
not made within the time allowed. If the subject of the action be an
inheritance, the same rule applies as regards fruits as we laid down in
speaking of actions for the recovery of single ob