SECTION VI.

Of the extinction of actions and of exceptions.

§ 96. OF EXTINCTION IN GENERAL.

Independently of the

the basis of an action,

might obtain accidentally,

extinction of the right itself forming

of the satisfaction which the plaintiff and of the modifications occurring

in the state of facts existing as between the parties, [1] the action (alone) was extinguished:

I. By the death of one of the parties.

II. By a concurrence of actions; in which case the claim obtained satisfaction by the bringing of another action tending to the same end.

III. By prescription.

§ 97. DEATH OF ONE OF THE PARTIES.

A right, either from its intrinsic nature, or in virtue of an agreement or a grant, might attach to only one specified person, without preventing the suit founded upon it from being transmissible

[] Sav. Syst. V. § 230.

to heirs, actively and passively. [1] On the other hand, the right on which an action was founded might continue to exist, and yet not be transmissible, by reason of the successor's lacking an attribute or a quality which was indispensable to its effective assertion. [2]

The general rule was, that an action, from the moment that the right to it had accrued on the part of any person, passed to heirs and against them. There were excepted:

I. On the side of the person having the right, those which, although apparently having a pecuniary advantage for their object, could not, nevertheless, be regarded as affecting rights of property [3] which were transmissible to heirs; because their chief

[1] It was thus that the action founded upon a pactum personale passed to heirs, when an act had been executed which was contrary thereto; and the same as to actions founded upon partnership or agency. L. 26. pr. 1). mand. (17. 1). "Mandatoris morte solvi mandatum, sed obligationem aliquando durare.” L. 6. § 6. D. his qui not inf. (3. 2). "Heres neque in tutelam, neque in societatem succedit, sed tantum in aes alienum defuncti." L. 65. § 9. D. pro soc. (17. 2). Kierulff, p. 216, note 2.

[2] Example: The reivindicatio could not be exercised against an heir who was not in possession of the thing, nor any other real action which presumed possession by the defendant, or the power of restitution. L. 42, 52, 55. D. de R. V., (6. 1). Keller, Pand. I. § 82. I cannot, however concur in the opinion of those who think that there can never be any occasion to speak of the extinction of an action by death, but that it must always be regarded as an extinction of the right itself. (Windscheid, Actio, § 5. Wächter, § 68, note 1. Unger. § 118, note 1.) I think rather, that, except in the rare cases where the right is personified in the action, the failure of transmission of the former to the heirs does not prevent the right from continning to exist in abstracto, although deprived of all efficacy. It is as if the law said to the heir; "your predecessor had an established right, which he could have maintained by means of an action; he did not see fit to do so, and now, in this special case, the right of action cannot originate nor be continued in your person. That which proves, above all, against Windscheid, is the querela inofficiosi testamenti, which rested upon the right of demanding the annulment of a testament made to the prejudice of the necessary heir. (In short upon the right of inheritance). Now this right was so slightly identified with the action, that a simple menace of bringing suit effected its transmission to heirs ; while, in addition, it cannot be pretended that the querela concerned a right the exercise of which consisted only in the complaint; since the heir unjustly disinherited, if he found himself accidentally in possession of the estate, could hold it, so long as the instituted heir had not established the superiority of his right. L. 8. § 13, D. de inoff. test. (5. 2).

[3] "Injuriarum actio in bonis nostris non computatur, antequam litem conteste.nur." L. 28. D. de injur. (47. 10). See the Glossa, upon this passage.

object was to obtain reparation for some moral injury, or personal affront; (vindictam spirantes); and that no one, — not even the heir, could be the representative of the feelings of another. [1] L. 2. § 4. D. de coll. bon. (37. 6). "Magis enim vindictae, quam pecuniae habet persecutionem." L. 10. D. de sep. viol. (47. 12). "Neque id capiatur, quod in rei persecutione sed in sola vindicta sit constitutum". It was the same with the actions called "popular," which had not to protect private interests, but the interest of the public, and should not, therefore, be recognised in the heir, as the representative of the deceased, since as a citizen, he could bring them of his own motion. L. 7. pr. et § 1. D. de popul. act. (47. 23). L. 5. § 5. D. de his qui effud. (9. 3).

II. On the side of the obligor, actions resulting from an offence, in so far as their object was merely the penalty payable to the party possessing the right, were not transmissible as against the heirs of the delinquent. The injured person could not exact from them, who were innocent, the advantage, known as a "penalty", which the law had allowed him. Gaius. IV, 112. "Est certissima regula, ex maleficiis poenales actiones in heredem nec competere." L. 1. pr. D. de priv. del. (47. 1). "Civilis constitutio est. poenalibus actionibus heredes non teneri, nec ceteros quidem successores." L. 22. D. de O. N. N. (39, 1). "In poenam heres non succedit". If the action was of a mixed nature, it passed to heirs only with the exclusion of the penal element which it contained. L. 4. § 2. D. de inc. (47. 9). Finally, when the action founded

[1] Puchta, Vorles. § 88. As to what those actions were, see Vangerow, § 145; Kierulff, p. 227. Arndts, § 104, obs. There is divergence as to the action in factum by reason of an obstacte interposed to the interment of a dead person. L. 9. D. de relig. (11. 7. Sav. Syst. V. p. 200, and Puchta, Pand. § 88, combat, with reason, Mühlenbruch, who interprets the words "miror quare constare videatur," as if really this opinion had not been followed in practice. However, the interpretation of Mühlenbruch accords with the Glossa, which renders the words "quare constare videatur" by "imperitis". The Dutch Code (art. 1729) in imitation of the Code Nap. (art. 957) permits the heir to demand revocation of a donation, by reason of ingratitude, when the donor has died during the year of the offence.

upon an offence tended solely to the obtaining of damages, (a penal action termed unilateral), it could be maintained against heirs, only to the amonnt of the profit, even though but temporary, [1] which they had gained by the offence. [2] This last rule, - evidently contrary to equity, [3] — originated, no doubt, in the confusion of two very different things, penalty and in

demnity. It is therefore justly that it has been criticised, and that modern legislation has rejected it, in accordance with the example of the canon-law. [4]

Fraud committed in connection with a legal act, laid an obligation upon the heirs of him who committed it. This principle is incontestable. In fact, the damage to be repaired attached itself inseparably to the legal act itself, the consequences of which should be borne by the heirs indiscriminately, although they, personally,

['] L. 127. 1). de R. J. "Cum Praetor in heredem dat actionem, quatenus ad eum pervenit, sufficit si vel momento ad eum pervenit ex dolo defuncti." L. 17 et 18 D. quod. met. causa (4. 2).

[2] L. 38. 44. D. de R. J. and other fragments, cited by Sav. Syst. V, § 211, d. [3] "Suppose", says Savigny, 1. c., p. 50, “a rich man, who, in a spirit of revenge, burns the house of another, and who dies before an action can be commenced against him. The heir, not finding himself enriched by this crime, is protected from all responsibility, and the person wronged is deprived of all recourse for damages." Kierulff, p. 224, justifies this principle, by saying that the heir is innocent of the deed, and that the fiction of "representation" does not extend to offences.

But here is the injustice: that from the moment of committing the crime, the defunct had impoverished himself to the extent of the indemnity which he would have had to pay; but, in spite of that, the estate is transmitted to his heirs, without deduction of this sum to the great prejudice of him to whom the crime had given an irrevocable right. Ihering, (Geist des R. R. I., p. 139) explains the rule, but does not justify it. See note 49.

--

[4] Sav. p. 51. Vangerow, § 145, note 5; Arndts, § 104, obs. 2. The ancient Dutch Law departed_ also from the Roman. See Voet, ad Tit. Dig. de fidei tut. § 6. Groenewegen, de leg. abr. ad Tit. C. si ex del. def. For the modern law, See art. 2, French Code Crim. instr., and art. 1415, Dutch Civil Code. But if the Roman Law had fallen into error, in confounding a penalty with the reparation due for damage, the Dutch legislator has done the like, in a contrary sense, by making heirs responsible for penalties in the matter of taxes; (art. 447 Dutch Code of Crim. Instr.); being deceived by reasons which are neither logical nor legal. Voorduin, Strafv. II, p. 695; and De Bosch Kemper, upon the article mentioned.

were free from reproach. L. 12. L. 49. D. de O. et A. (44. 7). L. 121. § 3. D. de V. O. (45. 1). L. 152. § 3. L. 157. § 2. D. de R. J. L. 7. § 1. D. dep. (16. 3). "Quamquam alias ex dolo defuncti non solemus teneri, nisi pro ea parte, quae ad nos pervenit, tamen hic dolus ex contractu reique persecutione descendit, ideoque in solidum heres tenetur". [']

The exceptions to the rule of the transmission of actions to heirs, were applicable only in case of death before the litis contestatio. Litigation once begun, all actions acquired a character having somewhat of the nature of a contract; and the rule then was: "omnes actiones quae morte pereunt, semel inclusae judicio salvae permanent." L. 139. D. de R. J. L. 164. eod. L. 26. L. 58. D. de O. et A. (44. 7). L. 28. D. de inj. (47. 10).

As for actions, so for exceptions: transmissibility was the rule. There were only a few, which, by reason of their personal nature, (personae cohaerentes), [2] did not pass to heirs.

§ 98. OF THE CONCURRENCE OF ACTIONS. (CONCURSUS ACTIONUM, KLAGEN-CONCURRENZ) [3].

To constitute a concurrence of actions, it did not suffice that a person possessed several, of which he could make use as of so many means. It was requisite, in addition, that the different actions which he could simultaneonsly command, should have, among themselves, a point of contact, by reason of which they were, to a certain extent, so blended as to form but one. This point of

[1] As to the difficult, and apparently contradictory passage of the Institutes, § 1. I. de perpet. et temp. art. (4. 12), See Kierulff, p. 219; Sav. Syst. V. p. 55, et s., and Vangerow, 115, note 4.

[2] See, above, § 95, Sav. 1. c., p. 204. Arndts, § 104.

[3] As to the works in which this subject is treated, see Unger, § 117, note 1. Arndts, § 105.