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V.

Of Actions.

An Action was the right to take proceedings at law for whatever might be due to a person.

Actions in regard to the origin were either civil or honorary, according as they had been introduced by the civil law, or the edicts of praetors. Praetorian was accordingly a term by which honorary actions were frequently designated. In regard to their subject, actions were either real, personal, or mixed. Real actions also called vindicationes were those by which property or a right to a thing was claimed.

Mixed actions were those which partook of the nature both of personal and real actions.

The object of actions was to recover a thing, a penalty, or both. Actions which had to be decided according to strict law, were called actiones stricti juris, while those in which the judge might determine according to equity and good faith, were termed actiones bonae fidei. Actions which did not expire by length of time were in the older Roman law, called perpetual, while those which expired unless brought within a certain time, were called temporary. In the more modern Roman law, actions which were previously perpetual, in general expired, unless brought within 30 years.

This rule was however subject to several exceptions. Actions descend in general not only actively to heirs, but also passively against heirs. Penal actions, with the exception of "injuries" descend to, but not against heirs, unless they had been benefited by the delict of their ancestor. Actions partaking of the nature of punishment do not descend to heirs, but only against him. In the latter case, the cause of action could not be a delict. A penal action, as well as an action partaking of the value of punishment (vindicta) if commenced by the ancestor, descended to and against heirs.

The person against whom the action was brought

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(reus) could defend himself by an exception, (exceptio) consisting of a denial of the facts; the allegation of new facts, showing that the cause of action no longer existed; and the allegation of the existence at the date of the cause of action of circumstances, rendering the action of the defendant unjust, as fraud, violence. Strictly speaking, exceptions belonged to the formula system of Roman law, and during that period an action might be brought a second time for the same cause of action. The person against whom the action was brought, however, might defend himself, by an exception of rei judicatae, or the previous adjudication of the cause.

Exceptions were also perpetual and peremptory, or temporary and dilatory. The former were those which for ever formed an obstacle to the success of the demandant in an action, as the exceptions of fraud, violence, or a compact not to sue.

Temporary and dilatory exceptions were those which merely delayed for a time an action. Thus, if the defendant in an action had made a compact not to take proceedings for five years, the person sued might defend himself by an exception to that effect.

Actions brought on behalf of others, by persons not entitled to act as praetors, as women or soldiers, might also be defended by dilatory exceptions. Infamy was another instance of a dilatory exception, but was abolished by Justinian.

A replication was an additional allegation of the demandant answering the exception of the defendant. Thus, if a creditor agreed not to sue, and afterwards an agreement was made to sue, the replication would state the latter agreement, and so destroy the effect of the exception. The replication might be avoided by a duplication of the defendant. The duplication of the defendant might be repelled by the triplication of the demandant; and thus these mutual allegations of demandant and defendant might continue according to the requirements of the suit. Interdicts were formulae

by which the praetor ordered or forbade anything to be done.

The principal division of interdicts was into prohibitory, restitutory, and exhibitory.

Prohibitory inderdicts, forbade something to be done. Restitutory interdicts, ordered something to be restored.

Exhibitory interdicts, ordered the production (exhibitio) of a thing or a person.

A second division of interdicts, was into simple or compound. Simple interdicts, were those in which one person was demandant, and another defendant. Double interdicts, were those in which each party was equally demandant and defendant, as in the interdicts uti possidetis and utrubi.

Groundless litigation was prevented by the infliction of a pecuniary penalty, in some cases by the imposition of an oath, and in others, by degradation to infamy.

In bringing any action, the first step to be taken was the vocatio in jus or the personal citation of the defendant before the magistrate, who had the jurisdiction. Permission from the praetor to summon ascendants, or patrons, or the ascendants, or children by patrons. was required by children, and freedmen under a penalty.

A judge was required to decide according to the laws, the constitutions and custom.

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Bowyer's Civil Law.

CIVIL LAW.

Colquhoun's Roman Civil Law.
Code Civil.

Cumin's Manual of Roman Law.

Digest. The last two titles, De Verborum Significatione

and De Regulis Juris.

Gaius. Books 1 and 4.

Institutes of Justinian by Heineccius.

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Ortolan's, or Sandar's Edition.

Mackeldii Systema Juris Romani Hodie Usitati.
Ortolan's Generalisation du Droit Romain.

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Phillimore's Principles and Maxims of Jurisprudence.
Introduction to the Study of Roman Law.
Warnkönig's Institutiones Juris Romani Privati.

QUESTIONS ON ROMAN AND CIVIL LAW.

History of Civil and Roman Law.

Q.-State the order of time in which the different portions of the Corpus Juris were compiled. What branches of the older Roman Law enter into each of them? By whom, and to what extent had the experiment of Justinian been anticipated?

Q.-Give a brief sketch of the attempt made in the 12th century to introduce Roman law into England. By what channels has Roman law made its way indirectly into our system?

Q.-Who were the Roman Jurisconsults, and what was the nature of their influence on Roman law?

Q. What portion of Roman jurisprudence is contained in the pandects? What do you conceive to be the principle which guided the compiler of the pandects in the arrangement of subjects?

Q.-What were the policy and principal provisions of the Lex Falcidia, of the Senatus Consultum Pegasianum, and of the Senatus Consultum Trebellianum? What changes did Justinian introduce into the law regulated by these statutes?

Q.-What were the various modes by which legislation was effected by the law of Rome? What was the force of a Plebiscitum, and of a Senatus Consultum at different periods of Roman history?

Q. What were the sources of Roman law posterior to the time of Justinian?

Q. What works of consolidation and codification of the Roman law were in existence at the time when Justinian came to the throne?

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