Book 11
1.77
It will also sometimes happen that a judge may have to try the same case on which he has previously given judgment. In such circumstances the method commonly adopted is to say that we should not have ventured to dispute his sentence before any other judge, since he alone would be justified in revising it: but (and in this we must be guided by the circumstances of the case) we may allege that certain facts were not known on the previous occasion or certain witnesses were unavailable, or, though this must be advanced with the utmost caution and only in the last resort, that our clients' advocates were unequal to their task.
1.78
And even if we have to plead a case afresh before different judges, as may occur in a second trial of a claim to freedom or in cases in the centumviral courts, which are divided between two different panels, it will be most seemly, if we have lost our case before the first panel, to say nothing against the judges who tried the case on that occasion. But this is a subject with which I dealt at some length in the passage where I discussed proofs. ii. 1, where, as here, it is indicated that different portions of a case might be tried by two panels of centumviri sitting separately. The centumviral court dealt mainly with cases of inheritance. It may happen that we have to censure actions in others, of which we have been guilty ourselves, as, for example, when Tubero charges Ligarius with having been in Africa.
