The exceptio by which the condemnatio is qualified may, in its § 53. turn, be qualified by a 'replicatio,' or exception in favour of the plaintiff; and the replicatio again may be qualified by a 'duplicatio,' or exception in favour of the defendant; the duplicatio again may be followed by a 'triplicatio,' and so on. Exceptiones are in their nature either peremptory ('peremtoriae,' 'perpetuae') or dilatory ('dilatoriae'). Peremptory exceptiones— which constitute the majority-are based on facts which absolutely debar the plaintiff from bringing his action. Such exceptiones are exemplified by those mentioned above (pp. 291, 292). Dilatory exceptiones are exceptiones which do not absolutely prevent the plaintiff from suing, but only debar him from suing at this particular time (his claim being premature), or in this particular form (e.g. if he sues through an unqualified representative). In pleading an exceptio peremtoria, the defendant demurs to the action itself, in pleading an exceptio dilatoria he merely demurs to the particular manner in which the action is brought 12. In the classical law, however, the effect of an exceptio is the same in either case. Even where the exceptio is merely dilatory, its effect, if proved, is to discharge the defendant not merely from the action as brought at that particular time or in that particular manner, but to discharge him absolutely. The consumption of the right of action (pp. 267, 268) which resulted from the litis contestatio estopped the plaintiff from ever bringing the same action again. pr. I. de except. (4, 13): Comparatae sunt autem exceptiones . 12 Cp. Schultze, Privatrecht u. Process, p. 320. 53. $ 54. peremunt: qualis est exceptio doli mali, et quod metus causa factum est, et pacti conventi, cum ita convenerit, ne omnino pecunia peteretur. § 10: Temporales atque dilatoriae sunt, quae ad tempus nocent et temporis dilationem tribuunt : qualis est pacti conventi, cum convenerit, ne intra certum tempus ageretur, veluti intra quinquennium; nam finito eo tempore non impeditur actor rem exsequi. . . . . § 11: Praeterea etiam ex persona dilatoriae sunt exceptiones: quales sunt procuratoriae, veluti si per militem aut mulierem agere quis velit. .... pr. I. de replicationibus (4, 14): Interdum evenit, ut exceptio, § 54. Actio Perpetua and Actio Temporalis. There were a number of actiones honorariae which the magistrate only granted within a prescribed period. The praetor would thus more especially decline to grant any penal praetorian action after the lapse of an 'annus utilis,' i. e. any action where the claim to a penalty was based, not on the civil law, but solely on the praetorian edict. Actions which had to be brought within a prescribed period of limitation were known as 'actiones temporales.' Such a limitation of the right of action implied at the same time a limitation of the right itself, because in all actiones honorariae the sole foundation of the plaintiff's right was the 'judicium dabo' of the edict, that is, the praetor's promise to grant an action, or rather (to put it more accurately) the praetor's promise to grant a formula and thereby set the ordinary legal procedure in motion. If the § 54. praetor expressly limited his promise to one year (intra annum judicium dabo), he thereby imposed the same limitation on the plaintiff's right. The expiration of the period extinguished the actio temporalis, and, with it, the right (say, to recover a penalty). On the other hand, limitations of actions were on principle unknown to the civil law. Actiones civiles, as well as those actiones honorariae which the praetor had not limited within any definite period, were called 'actiones perpetuae.' It was only in quite exceptional cases that civil law actions were barred after a certain time'. The Emperors Honorius and Theodosius, however, moved by obvious considerations of convenience, enacted in 424 A. D. that all actions should be barred within a certain period. This period was fixed at thirty years in ordinary, at forty in some exceptional cases. If the plaintiff brings an action after the lapse of this period, he may be met with the plea of limitation (praescriptio temporis). The former rules as to limitation of actions remained in force. Thus actiones perpetuae are henceforth actions which are barred within thirty or forty years; actiones temporales are actions which are barred within shorter periods. A civil law right is founded, not on any promise to grant an action, but simply on the positive law, the granting of the action by the magistrate being merely the consequence of the right conferred by the positive law. Here the legal right begets the legal remedy. Thus though the limitation of civil law actions which Theodosius II introduced operated to bar the action, it did not operate to bar the right itself. It was in this sense that the later Roman law took the limitation of actions, even as applied to actiones temporales, and it was in the same sense that a uniform system of limitations of actions was developed in the law of the Corpus juris which has been received. in Germany-a system in which the periods of limitation vary in length and operate, in all cases, to extinguish, not the right, but only the remedy. 1 Thus the action de statu defuncti and the querela inofficiosi testamenti (§ 113 iii) had to be brought within five years. $54. The year fixed by the praetor for cases falling under his rules of limitation was the so-called 'annus utilis,' i. e. a year in which only those days were counted on which legal proceedings could actually be commenced, in other words, those days on which the courts sat, and on which the intended defendant was known and could be actually sued, &c. The term 'tempus utile' is thus explained. Tempus utile means time in the judicial sense, in the sense namely in which only those days are counted which are open to judicial acts, i. e. in the classical period, to acts performed in the presence of the praetor2. The opposite of tempus utile is 'tempus continuum,' i. e. time in which, on principle, every day is counted. the above-mentioned limitations of actions to thirty (or forty) years, time is counted as 'continuum,' in the sense we have just defined. L. 35 pr. D. de O. et A. (44, 7) (PAULUS): In honorariis actionibus sic esse definiendum Cassius ait: ut, quae rei persecutionem habeant, hae etiam post annum darentur; ceterae intra annum. L. 1 D. de div. temp. praescr. (44, 3) (ULPIAN.): Quia tractatus de utilibus diebus frequens est, videamus quid sit experiundi potestatem habere. Et quidem inprimis exigendum est, ut sit facultas agendi: neque sufficit reo experiundi secum facere potestatem, vel habere eum qui se idonee defendat, nisi actor quoque nulla idonea causa impediatur experiri. Proinde sive apud hostes sit, sive reipublicae causa absit, sive in vinculis sit, aut si tempestate in loco aliquo vel in regione detineatur, ut neque experiri neque mandare possit, experiundi potestatem non habet. Plane is qui valetudine impeditur, ut mandare possit, in ea causa est, ut experiundi habeat potestatem. Illud utique neminem fugit, experiundi 2 Tempus utile occurs, in virtue of a rule of law, only where judicial acts (the commencement of an action, an application for bonorum possessio, § 110) come into question. In applying for bonorum possessio the petitioner invokes the aid of the praetor in his judicial capacity, though it was the invariable rule, as early as the classical period, that such an application could be addressed to the praetor anywhere (de plano) without any formal sitting of the court. In calculating the period in which application for bonorum possessio had to be made, it was consequently the rule (in the absence of other obstacles of a special kind) to count not only court days but all days, commencing with the day on which the fact of the inheritance having fallen in became known to the applicant. potestatem non habere eum qui praetoris copiam non habuit; § 54. proinde hi dies cedunt quibus jus praetor reddit. 855. The Effect of an Action at Law. In every lawsuit there are two principal acts: first, the 'litis § 55. contestatio,' the formulating of the legal issue (pp. 238, 267); secondly, the 'judgment,' the decision of the legal issue. I. Litis Contestatio. The effect peculiar to the litis contestatio is that it results in the deductio rei in judicium, i.e. in the pendency of the matter in dispute. That is to say, once the issue has been formulated, the matter in dispute cannot be brought to trial a second time, but must be carried to a final decision on the basis of the issue as formulated in this particular suit. The litis contestatio marks the decisive exercise by the plaintiff of his right of action. Hence it follows, first, that the period of limitation of the right of action is not interrupted till the litis contestatio has taken place; secondly, that the litis contestatio consumes the right of action. The action cannot be brought over again: bis de eadem re ne sit actio. Any attempt to obtain a judicial re-hearing of the same question (eadem quaestio) would be met by the exceptio rei judicatae vel in judicium deductae1. Thirdly, it follows that the litis contestatio forms the basis of the judgment. The judgment refers back to the date of the litis contestatio. The plaintiff must have possessed the right he claims at the moment of the litis contestatio. On the other hand, if the plaintiff is successful, the judgment is to place him retrospectively in the same position as though it had been given in his favour at once at the time of the litis contestatio. This is why the judgment directs the restitution of mesne profits, the payment of damages, and so forth. It was this peculiar effect of litis contestatio that suggested to the Romans a comparison between it and the so-called 'novatio' or 1 Cp. p. 268, note 2. The so-called negative function of the exceptio rei judicatae-its function, namely, to give effect to the consuming power of an action at law-is its principal function. But, as is observed in the text under II, the same exceptio may also be used- |