BOOK I. Chapter 11.

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.o 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.

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

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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 right in issue (ius iurandum in iure) there arises the exceptio' and 'actio'-in factum iuris iurandi,' in place of the exc. rei iud.' and the actios 481. iud.'

Gai. Maximum remedium experiendarum litium in usum venit iurisiurandi religio, qua vel ex pactione ipsorum litigatorum vel ex auctoritate iudicis deciduntur controversiae.-1. 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.a

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.

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.

a

Comp. the in Scottish Law;

reference to oath

see Paterson, Compendium,'

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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 . . reus quidem adquirit exceptionem actor vero actionem 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 ; l. 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.

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Chapter II.

annulled by the superinduction of a fact positively extinguishing it according to the law in force (ius civile). It is that means of defence which consists in the appeal to some circumstance-either a right contrary to that of the plaintiff and limiting it, or a facta a E.g., in § 90. -which according to Praetorian or Civil Law, and §§ 120, 129, often from grounds of aequitas,' avails to release the 145 defendant from an adverse judgment, in spite of the 'intentio,' which is ipso iure well founded in law, and consequently, without directly annulling the claim of the plaintiff.-Exceptio' in the material sense designates the right of a person to that appeal, the possibility of meeting the actio' with an 'exceptio.'

Paul. Nihil interest ipso iure quis actionem non habeat, an per exceptionem infirmetur.D. 50, 17, 112.1

Gai. iv. §§ 116, sq.: Comparatae sunt autem exceptiones defendendorum eorum gratia, cum quibus agitur. Saepe enim accidit, ut quis iure civili teneatur, sed iniquum sit eum iudicio condemnari: veluti si stipulatus sim a te pecuniam tamquam credendi causa numeraturus, nec numeraverim; nam eam pecuniam a te peti posse certum est, 'dare' enim te oportet,' cum ex stipulatu teneris sed quia iniquum est te eo nomine condemnari, placet, per exceptionem doli mali te defendi debere. Item si pactus fuero tecum, ne id quod mihi debeas a te petam, nihilo minus [id ipsum] a te petere possum DARE MIHI OPORTERE, quia obligatio pacto convento non tollitur; sed placet, debere me petentem per exceptionem pacti conventi repelli. § In his quoque actionibus, quae non in personam sunt, exceptiones locum habent, veluti si metu me coegeris aut dolo induxeris, ut tibi rem aliquam mancipio dem: nam si eam rem a me petas, datur mihi exceptio,

1 There is no difference whether a man have not an action ipso iure or it be subverted by a plea.

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per quam si metus causa te fecisse aut dolo malo arguero, repelleris.'

Paul. Exceptio est condicio, quae modo eximit reum damnatione, modo minuit damnationem.1. 22 pr., D. h. t. (de except. 44, 1).2

The ground and contents of an 'exceptio' may be very different; of quite general nature is the 'exc. doli (generalis)'-concurrent with the usually special pleas, and subsidiary-which is always well founded, when the plaintiff, from the point of view of equity, suffers already a material wrong by the action being brought.

Paul. Ideo autem hanc exceptionem (doli) praetor proposuit, ne cui dolus suus per occasionem iuris civilis contra naturalem aequitatem prosit.-D. 44, 4, I, 1.3

1 Now exceptiones have been provided with the object of protecting defendants; for it often happens that a person is liable according to the i. c., but it would be unreasonable that judgment should be given against him in the action, as, for instance, if I have stipulated for money from you which I was about to hand over to you by way of loan, and have not handed it over. For it is certain that such money can be sued for by you, because it is your duty to pay, as you are liable on the stipulation. But as it is unfair that you should be condemned on that account, it is held that you should be protected by the plea of fraud. So also if I have agreed with you that I will not demand what you owe me, I can nevertheless claim [that very thing] from you by the formula that you ought to pay me,' because the obligation is not dissolved by the agreement we came to, but it is held that I ought, if I sue, to be defeated by the plea of agreement made. Exceptiones are also admissible in actions that are not in personam, as for instance, if you have coerced me by intimidation or induced me by fraud to grant you something by formal conveyance, because, if you sue me for that thing, a plea is allowed me by which you will be defeated if I show that you acted with intent to intimidate, or fraudulently. 2 A plea is condition which sometimes releases a defendant from condemnation, sometimes reduces the condemnation.

3 The Praetor has accordingly established this plea, that no one's fraud may serve him so as to make the i. c. available against natural equity.