BOOK I. Chapter II. accordingly, even if it be materially wrong, yet possesses formal truth, i.e., passes as right unconditionally and irreversibly it has the force of Law, is Jurisprudence,' 'res iudicata.' a a Cf. Pollock, 'Essays in pp. 237-260, and Clark, 'Pract. Jurisprudence,' pp. 214, 899. article in The Holtzendorff's · Rechts-Lexi con,' referred to by Prof. Clark (p. 224), is neither exaet better infor mation would Mod. Res iudicata dicitur quae finem controversiarum pronuntiatione iudicis accipit, quod vel condemnatione vel absolutione contingit.— 1. 1, D. de re iud. 42, 1.' Ulp. Res iudicata pro veritate accipitur.— D. 50, 17, 207.20 The negative operation of the 'res iudicata' consists nor complete; in the consumption of the right of action, the exceptio r. i.' (instead of and besides the exc. r. in iud. deductae), which is here based upon the mere actual existence of the judgment. Its positive operation is be found in that on the Reichsgericht. Cited by Coke on Littleton, 103 a. (1) The grounding of a new obligatory relation of the parties in lieu of that created by the L.C., the subject of which is the 'iudicatum facere oportere 'c -the obligatio, actio iudicati.' с Ulp.:sicut stipulatione contrahitur, ita iudicio contrahi; proinde non originem iudicii spectandam, sed ipsam iudicati velut obligationem.— D. 15, 1, 3, 11.3 Id. Iudicati actio perpetua est et rei persecutionem continet; item heredi et in heredem. competit.-1. 6, § 3, D. de re iud.' (2) The conclusively binding decision which grounds judgment against the defendant, or his absolution, upon the actual right in issue (especially with actiones 1 A res iudicata is so called in which the suit is concluded by the sentence of the iudex. This happens either by a judgment against the defendant or by his absolution. 2 A res iudicata is regarded as founded in truth. 3 That just as a contract is entered into by stipulation, such likewise arises from his being involved in an action; therefore one must not look to the commencement of the suit, but, as it were, to the obligation arising out of the decision. * The action arising out of a judgment is continuous, and carries with it the claim of the thing. It is available both by the heir and against him. BOOK I. Chapter II. a Based upon in rem), which is upheld in its positive or material function against subsequent infringements also, by means of the 'exc. (or even repl.) rei iudicatae.' The exc. rei iudicatae' attaches as soon as the same question of law is raised between the same parties See § 90. as subject of a new action. the contents of the judgment. Res iudicata ius facit inter Macer. Saepe constitutum est, res inter alios partes." Ulp. Ita definiri potest, totiens eandem rem Paul. Actiones in personam ab actionibus in rem hoc differunt, quod cum eadem res ab eodem. mihi debeatur, singulas obligationes singulae causae sequuntur nec ulla earum alterius petitione vitiatur; at cum in rem ago non expressa causa, ex qua rem meam esse dico, omnes causae una petitione adprehenduntur: neque enim amplius quam semel res mea esse potest, saepius autem deberi potest.-1. 14, § 2 eod.3 1 In numerous constitutions it is stated that as between other parties judgments do no detriment to any one. 2 One can here lay down as a rule that the same thing is claimed whenever the same question comes before the later iudex as the earlier one.-And in general one may say with Jul. that the plea of a res iudicata avails whenever the same question is dealt with between the same persons although in another set of proceedings. When, moreover, any one changes an action and then goes on suing, provided that it concerns the same object, although in a different sort of action from that which he had begun, he appears to sue for the same object. 3 Actions in personam are distinguished from those in rem BOOK I. Chapter II. a Sc. possessoris. ¿§ 194. Cf. § 24. Gai. iv. 55 Item palam est, si quis aliud pro alio intenderit, nihil eum periclitari eumque ex integro agere posse, quia nihil ante videtur egisse veluti si is qui hominem Stichum petere deberet, Erotem petierit, aut si quis ex testamento dari sibi oportere intenderit, cui ex stipulatu debebatur.' Ulp. Cum iudicatur rem meam esse, simul iudicatur illius" non esse.-D. 3, 3, 40, 2.a A suit can also be definitely concluded, as by a legally binding judgment, without a iudicium' or delivery of a 'sententia.' 1. When the defendant confesses the plaintiff's claim before the magistrate having jurisdiction (confessio in iure). If the claim and the confessio do not go to a definite sum of money (certa pecunia) there is need further of a judicial arbitrium,' to take a valuation of the matter of complaint that has been confessed. Confessus pro iudicato est, qui quodammodo sua sententia damnatur.-Certum confessus pro iudicato erit, incertum non erit.-D. 42, 2, I (Paul.) and 6 pr. (Ulp.).3 herein, that if any one is indebted to me in respect of the same thing, the several grounds of action remain connected respectively with the several obligations, and none of such is prejudiced by the claim set up by the other; but if I bring a real action without expressly mentioning the ground upon which I maintain it to be mine, all grounds of action are included in the claim, for a thing cannot be mine oftener than once, but may be owing to me repeatedly. 1 Again, it is clear that if a person claim one thing instead of another, it is not at his peril, and he can bring a fresh action because he seems to have taken no steps previously; for example, when a man who ought to sue for the slave Stichus sues for Eros, or when a man to whom a debt was incurred upon a stipulation alleges in his claim that it is due to him under a will. 2 When it is decided that the thing is mine, it is at the same time decided that it belongs not to so and so. 3 One who makes confession is on a par with him that is Paul. Si is cum quo lege Aquilia agitur, confessus est servum occidisse, licet non occiderit, si tamen occisus sit homo, ex confesso tenetur.— 1. 4 eod.1 BOOK I. Chapter II. Ulp. Notandum, quod in hac actione, quae adversus confitentem datur, iudex non rei iudicandae sed aestimandae datur, nam nullae partes. sunt iudicandi in confitentes.-D. 9, 2, 25, 2.2 2. When the defendant or plaintiff makes oath before the magistrate-tendered by or upon reference" of the opponent-as to the existence of the Comp. the right in issue (ius iurandum in iure) there arises in Scottish Law; the exceptio' and 'actio'-in factum iuris iu- ' Compendium,' randi,' in place of the exc. rei iud.' and the actio s. 481. iud.' Gai. Maximum remedium experiendarum litium in usum venit iurisiurandi religio, qua vel ex pactione ipsorum litigatorum vel ex auctoritate iudicis deciduntur controversiae.-l. 1, D. de iurej. 12, 2.3 Ulp. Iusiurandum vicem rei iudicatae obtinet non immerito, cum ipse quis iudicem adversarium suum de causa sua fecerit, deferendo ei iusiurandum.-D. 44, 5, 1. condemned, since in a measure he is condemned by his own sentence. He who makes an unmistakable confession will pass as condemned, but not he that makes an uncertain one. 1 If any person defendant under the lex Aquilia confesses that he has slain the slave, he is bound by his confession though he may not have slain him. 2 We must observe that in this action which is granted against a person making confession, the iudex is not appointed to decide upon the matter but to appraise it, for against a confessor the iudex has nothing further to decide. 3 As the most effectual means of arranging actions, the sacredness of an oath has come into use, by which disputes are decided, either in consequence of the agreement of the litigants themselves, or by direction of the iudex. The oath takes the place of the res iudicata, and rightly, because a man makes the opponent judge in his own matter by tendering the oath. reference to oath see Paterson, BOOK I. Chapter II. a Cf. § 198. Paul. Manifestae turpitudinis et confessionis est, nolle nec iurare nec iusiurandum referre.1. 38, D. de iurej.' Ulp. Iureiurando dato quirit exceptionem adquirit, in qua hoc solum quaeritur, an iuraverit dari sibi oportere.-§ Si petitor iuravit, possessore deferente, rem suam esse, actori, dabitur actio; sed si possessori fuerit iusiurandum delatum iuraveritque rem petitoris non esse, quamdiu quidem possidet, adversus eum qui detulit iusiurandum, si petat, exceptione iusiurandi utetur;-si cum possideret, deferente petitore rem suam iuravit, consequenter dicemus, amissa quoque possessione si is qui detulit iusiurandum, nactus sit possessionem, actionem in factum ei dandam.—1. 9, § 1, 7; 1. 11 pr., § I eod.2 § 28. EXCEPTIONES AND REPLICATIONES." Exceptio' (plea) is to be distinguished from simple denial of the ground of action, or negation of the plaintiff's 'intentio ;' in other words, from the contention that the right set up by the plaintiff has never existed at all or is already extinct, i.e., has been 1 It is a mark of plain dishonour and of confession neither to make oath nor to be willing to answer the oath. 2 After the oath is taken the defendant certainly acquires a plea, but the plaintiff gets an action, in which the only inquiry is if he has sworn that the thing must be given to him.-If the plaintiff, when the defendant tenders the oath, has sworn that the thing is his, then an action will be granted to the plaintiff.— But if the oath should be tendered to the person in possession and he have sworn that the thing does not belong to the plaintiff, he will use the plea of the oath against him who tendered it, if he should claim [the thing], so long, indeed, as he possesses it. If when he possessed he swore, upon tender by the plaintiff, that the thing is his, we shall then say that an action must be granted him for what has happened even after the possession is lost, if he who tendered the oath shall have acquired possession. |