prospicitur et heres tenetur ex omnibus causis.- An exception from the rule, according to which the action exists as long as the right which grounds it, is made by the limitation of actions, i.e., the extinction of the right of action by non-exercise during a certain time this obtains for the greater certainty and stability of Law. BOOK I. Chapter II. In the Classical Law, the absence of such restriction as to civil actions (act. perpetuae) was the rule; the actions depending upon prescription (act. temporales) formed the exception. To the latter belonged especially 'actiones honorariae,' 'praetoriae' (especially poenales), the prescription to which was limited generally to an annus utilis' (annales), and aediliciae,' in which the prescription was limited to a still shorter time. There was, besides, for actions in respect of ownership a prescription of from ten to twenty years ('longi temporis praescriptio') under special conditions. cf. § 81. -The prescription was made operative in the form of a plea to the action (exceptio). Gai. iv. 110: Quo loco admonendi sumus, eas quidem actiones quae ex lege senatusve consultis profiscuntur, perpetuo solere praetorem accommodare, eas vero, quae ex propria ipsius, iurisdictione pendent, plerumque intra annum dare.— (= pr. Inst. h. t.)2 Paul. In honorariis actionibus sic esse definiendum Cassius ait, ut quae rei persecutionem habeant, hae etiam post annum darentur, ceterae intra annum.—D. 44, 7, 35 pr.3 1 After litis contestatio regard is had also to the heirs, and he is held accountable in all causes. 2 And we must not forget that the Praetor regularly vouchsafes at any time actions arising from a lex or senatus-consulta, but it is within the year that he generally grants those which rest upon his own jurisdiction. 'In actiones honorariae, Cassius says, it must be laid down Воок І. Chapter II. Gai. iv. III: Furti manifesti actio, quamvis ex ipsius praetoris iurisdictione proficiscatur, perpetuo datur; et merito, cum pro capitali poena pecuniaria constituta sit.' By a constitution of Theodosius II. (A.D. 424), the 'perpetuae actiones' were made subject to a thirty years' prescription; for certain actions later on, the time of prescription was extended to forty years. 'Perpetuae actiones' were by this time the actions falling under prescription in thirty years or more; temporales,' those falling under prescription in a shorter time. The prescription begins with the 'actio nata,' without reference to knowledge of the right of action; it is interrupted by the commencement of a suit, not by private remonstrance. The effect of prescription consists in the indirect extinguishment of the right of action, but not-at a Cf. §§ 81, 114. least in real rights-of the right that underlies it." Bell, Dict. S. vv.; Phillimore, 'Ecclesiastical Law,' vol. ii. p. 1255. c Cf. § 187. a § 194. EFFECT OF ACTS OF PROCEDURE UPON THE § 26. LITIS CONTESTATIO. с 'Litis contestatio' was in the Classical Law the termination of pleadings in iure' by the assignment of a formula; in later Law, a statement by the defendant contradicting the averment of the plaintiff.d By it, the original legal relation between the parties underwent formal transformation. Whereas the parties made their claims depend upon the proceedings that had been initiated ('rem in iudicium deducere,' 'iudicium accipere') and submitted beforehand to the arbi that those which embrace a suit for a specific thing are given even after a year, the rest only within the year. 1 The action for manifest theft, although it springs from the Praetor's own jurisdiction, is given at all times; and justly so, since the pecuniary has been imposed instead of the capital penalty. tration of the iudex, they entered into a new, a quasicontractual relation which absorbed their previous relation, having become subject of dispute. The following results accordingly ensued from the L.C. BOOK I. Chapter 11. 'Actio consumitur': the right of action is once for all extinguished-ipso iure, or by means of the 'exceptio rei in iudicium deductae;'a that is, the a After deliplaintiff can henceforth no more prosecute the same claim against the defendant." very of the judgment, this was replaced by the exc. rei iu b tion' of the Consumpfactum action, 'bis de inten- sit actio.' Cf. eadem re ne 202. Gai. iv. §§ 106, sq.: Et si quidem imperio dicatae. continenti iudicio actum fuerit, sive in rem sive in personam, sive ea formula quae in concepta est, give ea quae in ius habet tionem, postea nihilominus ipso iure de eadem re §§ 188, 199, agi potest; et ideo necessaria est exceptio rei iudicatae vel in iudicium deductae. § At si legitimo iudicio in personam actum sit ea formula quae iuris civilis habet intentionem, postea ipso iure de eadem re agi non potest, et ob id exceptio supervacua est; si vero vel in rem vel in factum actum fuerit, ipso iure nihilominus postea agi potest, et ob id exceptio necessaria est rei iudicatae vel in iudicium deductae.' In place of the extinguished right of action, there arose for the plaintiff a claim to judgment against the defendant under the special conditions and terms set up in the formula, to which was opposed the claim Now if proceedings have been taken by an action covered by the authority of the magistrate, whether they were in rem or in personam, whether the formula was one formed upon the facts or containing a civil law claim, another action may nevertheless ipso iure be subsequently brought about the same matter; and therefore a plea of res iudicata or of a pending action is necessary. But if proceedings in personam have been taken by legitimum iudicium, with a formula having a civil law claim, there cannot ipso iure be a subsequent action about the same matter, and therefore the plea is superfluous. But if the proceedings taken be in rem or based on the facts, a subsequent action can be brought ipso iure, and therefore the plea of res iudicata or of a pending action is necessary. BOOK I. Chapter II. of the defendant to acquittal under reverse conditions. Gai. iii. §§ 180, sq.: Tollitur adhuc obligatio litis contestatione, si modo legitimo iudicio fuerit actum : nam tunc obligatio quidem principalis dissolvitur, incipit autem teneri reus litis contestatione; sed si condemnatus sit, sublata litis contestatione, incipit ex causa iudicati teneri. Et hoc est quod apud veteres scriptum est: ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere. § Unde fit, ut si legitimo iudicio debitum petiero, postea de eo ipso iure agere non possim, quia inutiliter intendo ‘dari mihi oportere': quia litis contestatione dari oportere desiit.' By it at the same time is determined the material effect of the L.C., the subject of judgment being the legal relation as existing at the moment of the L.C.; the time of the L.C. is accordingly decisive as regards the conditions of condemnation (existence of the plaina Vat. fgm. 12. tiff's claim)" as well as its subject and scope. • §§ 73, 90. C § 188. Gai. iv. 114: Superest ut dispiciamus, si ante rem iudicatam is cum quo agitur, post acceptum iudicium satisfaciat actori, quid officio iudicis conveniat, utrum absolvere, an ideo potius damnare, quia iudicii accipiendi tempore in ea causa fuerit, 1 Moreover, an obligation is dissolved by joinder of issue, provided steps are taken by a statutable action. For then the original obligation is dissolved, and the defendant begins to incur an obligation by issue joined; but if judgment go against him, the issue joined falls through and he begins to be bound by the judgment. And this is the meaning of what is said by ancient writers, that before joinder of issue the defendant ought to pay, after joinder of issue he ought to be condemned, after condemnation he ought to satisfy the judgment.' Hence it follows that if I have sued for a debt by legitimum iudicium, I cannot later on sue in respect of it ipso iure, because I fruitlessly state my claim to be that it ought to be given to me;' for by joinder of issue the duty to give has ceased. ut damnari debeat; nostri praeceptores absolvere Ulp. In hac actione sicut in ceteris bonae fidei iudiciis rei iudicandae tempus quanti res sit observatur, quamvis in stricti iuris litis contestatae tempus spectetur.-D. 13, 6, 3, 2.2 Paul. Cum fundus vel homo petitus esset, puto hoc nos iure uti, ut post acceptum iudicium causa omnis restituenda sit, i.e. omne quod habiturus esset actor, si litis contestandae tempore solutus fuisset.-D. 12, 1, 31 pr.3 § 27. JUDGMENT, AND THAT WHICH REPRESENTS IT. The suit is ended by the 'sententia,' judgment or decision; i.e., the sentence of the judge regularly containing a condemnation or absolution of the defendant.a BOOK I. Chapter II. The signification of the judgment is such that a § 202. it definitely decides the legal relation in issue, and 1 It remains for us to consider what is the duty of the iudex when the defendant, having submitted to arbitration, but before award, makes satisfaction to the plaintiff. Ought he to acquit or rather to condemn, because at the time of submission to arbitration the defendant was in such a position that he ought to be condemned? The leaders of our school hold that he ought to acquit, and that it matters not what kind of action it was. And this is what is meant by the common saying that Sabinus and Cassius judged that all actions allow of acquittal. 2 In this action as in the other actions bonae fidei . . . regard is had to the time when the matter is decided in determining the value, although in [actions] under the strict Law the time of joining issue is looked to. 3 When land or a man had been claimed, I am of opinion ... the law followed by us would be that after submission to arbitration, the whole legal estate should be given up, that is, all that the plaintiff would have had if it had been offered at the time issue was joined. |