right entirely new, he was considered as merely completing, or modifying, the ancient civil law, in conformity with its spirit. ['] Thus the modern manner of regarding rights does not really differ from that of the Romans; although it must be admitted that the latter, guided by the practical spirit which distinguished them, paid more attention to the immediate help required in case of damage than to the abstract right following its tranquil march; and that the action as if the action and not the right had the priority figures in the foregound of their terminology; and that they use the word actions, [2] where we moderns say rights or claims. ['] L. 7, § 1, D. de Just. et Jur. (1. 1). "Jus praetorium est quod Praetores introduxerunt adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem publicam nam et ipsum jus honorarium viva vox est juris civilis." Kuntze, 1. c.: "It is very true that it is by means of the action, (by adding other actions to the legis actiones) that the organs of honorary law have developed an ulterior Law; and in this manner they have, so to speak, not created, but perfected, the form rather than the substance. But that which constitutes one of the chief works of the Romans, is, precisely, the having substantialised the system of actions formed by honorary law, and having blended it with the general system of laws. It is in this that consists the truly essential portion of the task accomplished by the Jurisprudence of the Veteres; which in analysing the honorary law, brought to light its substance, incorporated it with the Civil Law, and recognized in the action the obligation which had before been latent there." Windscheid has vainly endeavoured, in his Lehrb. der Pand., § 44, note 5, to refute the objections a 'vanced, in various quarters and from different points of view against his system. See also Siebenhaar Correal-Oblig (Leipzig. 1867) pag. 64. [2] It is thus that they spoke of actions "quae heredibus et in heredes competunt,” when there was question of a transmission of rights; and thus again, more than one division of actions is, strictly speaking, a division of rights. Wachter, p. 412, note 2; Zimmerman, 1. c., p. 477; Kuntze, Heidelb. Krit. Zeitschr., V, p. 376; Unger, § 113, note 19; Kierulff, p. 156, note: "That which we call right, was presented, in prefe rence, by the Romans, under the aspect of a possibility of bringing an action." The Roman Law had, in fact, no term to express what, in our day, is very generally called "a real right". § 88. A. SECTION IV. Division of actions. DIVISION OF ACTIONS WITH RESPECT TO THE RIGHTS ON WHICH THEY WERE FOUNDED. With reference to the rights on which they were founded, all actions were divided into personal and impersonal. (In per sonam, personales, in rem actiones). The personal action was that which arose from a right in virtue of which a certain person was bound towards another certain person, to do or not to do some specified thing, in such manner that he against whom the action would be brought, in case of non-fulfilment of the obligation, was known and determined, from the moment of the creation of the obligation. ['] The impersonal action (in rem [2]) was founded upon a right endowed, in itself and by [1] Under the rule of the judicia ordinaria, the personal element manifested itself in that part of the formula in which the ground of the action was set forth. (Intentio). In the actiones in jus conceptae, this part of the formula was framed thus: "Si paret Nm. Nm. Ao. Ao. dare, or dare facere oportere." In actions in factum: "Si paret Am. Am. apud Nm. Nm. mensam deposuisse." On the contrary, in actions in rem the "intentio" was not directed against a specified person, but to the right itself. "Si paret fundum esse Ai. Ai.," "si paret jus esse Ao. Ao. eundi, utendi," cet. Gaj. IV. 87: “Sed cum in rem agitur nihil in intentione facit ejus persona, cum qua agitur tantum enim intenditur rem actoris esse.' [2] The expression in rem did not, therefore, indicate the object of the demand, but simply its impersonal, absolute, and objective character; "cum eo agit qui nullo itself, with an independent existence, without reference to any particular person and which every one is under the negative obligation to respect, in the person of him who possesses it; and to abstain from violating or disturbing it. In this case, he against whom the action would be eventually directed, was not indicated at the outset, as in a personal action; it was only after the attack made upon our absolute right, and in consequence of that attack, that the adversary appeared, from whom we had to demand the recognition of the right which he had contested or violated, and the reparation of the wrong of which he had been guilty. "Omnium actionum quibus inter aliquos apud judices arbitrosve de quacumque re quaeritur, summa divisio in duo genera deducitur, aut enim in rem sunt, aut in personam. Namque agit unusquisque aut cum eo, qui ei obligatus est, vel ex contractu, vel ex maleficio; quo casu proditae sunt actiones in personam, per quas intendit adversarium ei dare aut facere oportere, et aliis quibusdam modis aut cum eo agit, qui nullo jure ei obligatus est, movet tamen alicui de aliqua re controversiam; quo casu proditae actiones in rem sunt, veluti si rem corporalem possideat quis, quam Titius suam esse affirmet; possessor autem dominum eius se esse dicat, nam si Titus suam esse intendit, in rem actio est. esse fundo forte vel aedibus utendi, fruendi, vel per fundum vicini eundi, agendi, vel ex fundo vicini aquam ducendi, in rem . Aeque si agat quis, jus sibi jure ei obligatus est, movet tamen de aliqua re controversiam". In this sense there could be a pactum in rem, as distinguished from pacta in personam; "quoties generaliter paciscor ne petam". L. 7. § 8, D. de pact. (2. 14). Thus the exceptio doli was styled in rem, because it did no more than raise the question an in ea re dolo malo factum sit, non adversus quem commissus sit dolus. L. 2. § 2, D. de doli m. exc. (44. 4). Thus again it was said of the denunication of a new work: "operis novi nuntiatio in rem fit, non in personam.” L. 10. D. de O. N. N. (39. 1). Thus, finally, the Edict which does not distinguish whether one defends oneself or is defended by another, is styled "in rem scriptum". L. 5. § 3. D. quib. ex. caus. in poss. (42. 4). Sav. Syst. V, p. 14; Keller, § 79; Windscheid § 43, note 4. In the remotest times, the designation of actio in rem was applied par excellence to the "rei vindicatio", which was then the only real action. Gains IV, 16, 17, 86, 87; L. 23. D. de R. V. (6. 1); Sav. 1. c., p. 30; Unger, § 114, note 9. actio est." § 1. I. de act. (4. 6). L. 25. pr. D. de O. et A. (44. 7.). “In rem actio est, per quam rem nostram quae ab alio possidetur, petimus; et semper adversus eum est, qui rem possidet. In personam actio est, qua cum eo agimus, qui obligatus est nobis, ad faciendum aliquid vel dandum: et semper adversus eundem locum habet." Gaj. IV. 1—3, 100, 106. The class of impersonal actions included also those which did not seek to obtain directly a condemnation against a specified adversary, [] but the purpose of which was rather to obtain from the judge a declaration of the existence of an absolute right, of a condition of things, [2] or a legal relation; in order to be able, afterwards, to make use of this judicial declaration, to sustain claims founded upon the right thus recognized. These actions were known under the name of "actiones praejudiciales." They differed from other actions in rem, in not tending directly to a condemnation. They were, in some sort, only the prelude of another proceeding, upon which they would have a decisive influence. But they had this in common with other impersonal actions, that the adyersary whom they repulsed was indeterminate and uncertain, until some one came to disturb or contest the existing position. § 13, I, de Act. "Praejudiciales actiones in rem esse videntur, quales sunt per quas quaeritur an aliquis liber vel libertus sit, vel de partu agnoscendo [3]. [1] Gaius, IV, 13. "Intentio aliquando sola invenitur sicut in praejudicialibus formulis." Theoph. ad § 13. I. “Praejudicialis est formula ex sola constans intentione, neque enim condemnationem in se habet." [2] Vict. Art. Rhet., cited by Schrader, ad § I. 1: "Simplex petitio, cum quaeritur in quo jure sit res aut persona". The praejudicia served to fix legal relations of various kinds, and among others rights of obligation. See Gaius, III, 123; IV, 44; L. 30. D. de reb. auct. jud. possid. (43. 5). "Eos qui bona sua negant jure venisse, praejudicio experiri debere." Justinian, § 23, I. 1, mentions only those which are founded upon the jura status et familiae. In the Dutch law, the dispositions (inexact in every particular) of art. 129 of the Code of Procedure exclude from the category of real actions those which are founded upon family rights. The phrase actio in rem has partly eontributed to this blunder. In order to avoid all misunderstanding, the word impersonal is preferable to real. The Dutch Project of 1820 gave a place to these actions, and defined them as "tending to establish rights affecting the civil status, the relations with a specified family, or the free exercise of rights which the law allows to persons." [3] Rudorff, annot. on Puchta, Vorles, § 84, note 1. Some other actions resembled impersonal actions, [] inasmuch as not only might they be employed against those who had voluntarily incurred obligations, (whether by agreement or by misconduct), but that any one who was unjustly prejudiced might avail himself of them, against whomsoever might, accidentally, be in a position to afford reparation. By the mere fact of being in such a position (for example, by reason of being in possession of something, or because of the profit that had been derived from it), one was bound, according to this hypothesis, to repair the injury inflicted. The texts give to one of the actions of this kind the designation of in rem scripta, (L. 9, § 8, D. quod, met. caus. (4. 2)), because any person is amenable to it, from the moment that he came within the requisite conditions of fact. However, such actions were not emanations of an absolute and permanent right, but of a right which expired directly it had obtained satisfaction; and consequently they were personal. [2] On the other hand, the Paulian ac tion was distinguished by a particular character:- it became real by means of the restitutio in integrum, but had not quite the absolute nature of other actions in rem; for third parties were not amenable to it unless they had rendered them. selves accomplices of the fraud committed by the debtor, or had acquired the thing ex causa lucrativa. L. 38, pr. et § 4, D. de [1] Examples: L. 9, § 8. D. quod met. causa (4. 2), compared with the L. 4. § 33. D. de dol. m. exc. (44. 4). L. 3. § 15. D. ad. exhib. (10. 4). L. 12. D. de aq. pluv. arc. (39. 3). L. 5. § 13. L. 7 pr. and § 1. D. quod vi aut clam (43. 24). L. 1. § 13. D. quod leg. (43. 3), compared with the L. 1. § 3. D. de interd. (43. 1). § 5. I. de nox. act. (4. 9). L. 1. § 12. D. Si quadrup. (9. 1). metus causa factum est." [2] L. 3. § 3. D. ad exhib. "Est autem personalis haec actio." L. 6. § 5. D. de aq. et aq. pluv. arcenda. "Aq. pluv. arceudae actionem, sciendum, non in rem, sed personalem esse.' § 31. I. de act. "In personam veluti quibus de eo agitur quod See besides Sav. 1. c., p. 25; Kierulff, 1. c., p. 165; SinWindscheid, § 45, note 6; Arndts, § 97, note 6; Unger, I, cease to be a personal action; it only acquires the power inasmuch as it can be employed against any possessor tenis, I, § 29, note 11; |