(vindicatio) is, that the right of the original owner continues but is not ground to support an action against the mala fide possessor or his successor. If the thing passes into the possession of a stranger, then the original owner can recover it from him by vindicatio and if it comes by lawful means into the possession of the original owner, the mala fide possessor cannot recover it from him by vindicatio, Cod. 7, 39, 8, 1. In the event of bona fides there could be no question of prescription; because then, as we have seen, the very jus of the original owner would have been extinguished. In real actions, then, prescription has the weaker operation.

The effect of prescription in personal actions is controverted. Savigny holds that the stronger effect is confined to exceptions founded on jus naturale; and that prescription being, as shown by its arbitrary numerical character, an institution of jus civile, can only have the weaker operation, i. e. leaves untouched the obligatio naturalis, § 249. Vangerow, however, seems to show conclusively, § 151, that this doctrine is not tenable. Although the old institution of pendency-limitation or, process-prescription, mentioned by Gaius, 4 § 104, had only the weaker operation (quia naturale debitum manet, Dig. 46, 8, 8, 1), many passages of the Digest show that in temporal actions prescription of right to sue had the stronger operation, excluding fidejussio, Dig. 46, 1, 37, and constitutum, Dig. 13, 5, 18, 1, and admitting condictio indebiti, Dig. 46, 8, 25: and there is no reason why its operation should not be equally strong in perpetual actions. Indeed the very object of prescription, the setting of some limit to the duration of uncertainty, would be defeated if a creditor were allowed to enforce by Compensation a claim that for an indefinite period he had not attempted to enforce by action. Prescription, then, in all personal actions has the stronger operation. (English law seems to differ, at least so far as it recognizes a debt made irrecoverable by the statute of limitations as a sufficient consideration to give legal force to the debtor's promise to pay for, in the absence of all legal obligation, a mere moral obligation would admittedly not suffice to bind the debtor before the tribunals.)

Has prescription the same effect upon the grounds of defence (Exceptions) that it has upon the grounds of attack (Actions): can there be temporis Replicatio as well as temporis Exceptio? This depends upon the nature of the exception. Exceptions are

either unaccompanied by actions or accompanied. An instance of the former class is the exceptio rei judicatae when judgment in a vindicatio is given in favour of the possessor. This merely denies the right of the plaintiff without affirming the right of the defendant, and therefore cannot be used by the defendant as a ground of action: but it may be employed by the defendant as a means of defence against the plaintiff or his successor after any lapse of years.

An instance of exception accompanied by action is exceptio metus, which belongs to a defendant who may, if he chooses, be a plaintiff in an actio metus.

Savigny holds, § 249, that such exceptions are imprescriptible; but the better opinion seems to be that they have the same duration as the right of action (in the words of the French jurists: Tant dure l'action, tant dure l'exception): for the reason alleged for making exceptions imprescriptible: Is cum quo agitur non habet potestatem quando conveniatur, Dig. 44, 4, 5, 6, the inability of the person armed with the exception to fix when the matter shall be litigated, is inapplicable when the same person is also armed with a right of action. Vangerow, § 151.

§ 111. The rule for the duration of actions is as follows: purely restorative or remedial actions (quae rei persecutionem habent) i. e. actions where there is neither gain for the plaintiff nor loss for the defendant, but the patrimony of each is left at its original level, 4 § 7, are perpetual; that is to say are prescribed in thirty years.

Penal actions (poenae persecutoriae), both those where there is no gain to the plaintiff but possibly a loss to the defendant (indemnificatory or unilaterally penal actions), as well as those where if judgment passes for the plaintiff there is enrichment for the plaintiff and impoverishment for the defendant (bilaterally penal actions) are annual.

Thus the actio doli mali, if brought for complete indemnification, was annual: but if the damages were limited to the amount gained by the defendant, in which case the action was rei persecutoria, it was perpetual, Dig. 4, 3, 28.

When a right of action was limited to a year, this was an annus utilis, that is, a year of dies utiles, of days open to jurisdiction, and on which the plaintiff was not hindered by any insurmountable obstacle, such as absence of plaintiff or defendant, illness of plaintiff and inability to appoint a procurator, Dig. 44, 3, 1. An

annus utilis, though nominally a year, might really be a much longer period. Where a right of action lasted beyond a year, every day was counted (tempus continuum), 2 § 173. From the indefinite duration of annus utilis it is clear that Tribonian's suggestion, Inst. 4, 12, pr., of a connection between the annus of prescription and the annus of the praetorship is purely fanciful.

§ 112. The transmission of an action to the successors of the parties is either active transmission, i. e. transmission to the successor of the plaintiff, or passive transmission, i. e. transmission to the successor of the defendant.

The general rule relating to transmission is, that all actions are transmissible, both actively, that is, to the heirs of the plaintiff, and passively, that is, to the heirs of the defendant.

The exceptions are that (1) as to active transmission Vindictive actions (of which the type is actio injuriarum), i. e. actions brought to avenge wrong to the feelings rather than to repair wrong to the property, are not transmitted to the heirs of the plaintiff; and that (2) as to passive transmission, penal actions, whether bilaterally or unilaterally penal (the latter sometimes called rei persecutoriae ex delicto) are only transmitted against the heirs of the defendant so far as the inheritance has been enriched by his wrong.

Condictio furtiva lies against the heres of the defendant for the whole amount (in solidum): because, although this action is occasioned by delict, it is not deemed to be delictual or penal, but purely restorative (rei persecutoria).

Penal actions, bilateral and unilateral, when once brought, that is, when they have once reached the stage of litis contestatio, become capable of both active and passive transmission: Poenales autem actiones, si ab ipsis principalibus personis fuerint contestatae, et heredibus dantur et contra heredes transeunt, Inst. 4, 12, 1.

Under Justinian, when the Adstipulator, Sponsor, and Fidepromissor had disappeared, all actions founded on contract were passively transmissible in solidum against the heirs of the defendant; and it was apparently a mere inadvertence of Tribonian to repeat, Inst. 4, 12, 1, the words of Gaius, § 113, which contemplate the possibility that an action founded on contract should be incapable of passive transmission.

English law is more favourable than Roman law to the plaintiff in actions ex delicto in respect of the passive transmission of the remedy.

The executors of a testator and administrators of an intestate have the same remedy for injury to the personal property of the deceased as he would have had in his lifetime.

For an injury committed against his real property within six months of his death, they may bring an action within one year after his death. And for an injury to either real or personal property committed within six months before the death of the wrong-doer, an action may be brought against his executors or administrators within six months after they have taken on themselves administration.

SI REUS ANTE REM IUDICATAM SATISFACIAT ACTORI.

§ 114. Superest ut dispiciamus, si ante rem iudicatam is cum quo agitur post acceptum iudicium satisfaciat actori, quid officio iudicis conveniat: utrum absolvere, an ideo potius damnare, quia iudicii accipiendi tempore in ea causa fuit, ut damnari debeat. nostri praeceptores absolvere eum debere existimant: nec interesse cuius generis fuerit iudicium. et hoc est quod volgo dicitur Sabino et Cassio placere omnia iudicia esse absolutoria. De bonae fidei iudiciis autem idem sentiunt diversae scholae auctores, quod in his quidem iudiciis liberum est officium iudicis. tantumdem etiam de in rem actionibus putant [desunt 17 lin.]

§ 114. We next inquire whether, if the defendant before judgment is pronounced, but after the formula is delivered, satisfies the plaintiff, the judex has power to absolve him, or must condemn him, because he was liable to condemnation when the formula was delivered. The authorities of my school hold that he should be absolved in every kind of action; and hence the saying that Sabinus and Cassius consider all actions to involve the power of absolution. The other school agree in respect of bona fide actions, where the judex has more discretion, and of real actions...

§ 114. Respecting the power of absolution, Justinian confirmed the opinion of the Sabinians, Inst. 4, 12, 2.

The principle, Omnia judicia esse absolutoria indicates an exception to the effects of Litis contestatio. The motive of the effects. ascribed to Litis contestatio is in general to avert from the plaintiff the injurious consequences of the protracted duration of a trial. Accordingly if judgment passed in his favour he was put into the position he would have occupied if judgment had immediately followed on litis contestatio. If this rule had been universal no event supervening on litis contestatio could have extinguished the plaintiff's right to have judgment in his favour: but this in some cases

would have been unjust to the defendant, as was admitted by all jurists in the case of personal actions ex fide bona.

In personal actions stricti juris it was at first held that what would have been an adequate ground for the extinction of the plaintiff's claim if it had happened before litis contestatio, e. g. the purely casual destruction of the subject of litigation, was ineffectual to save the defendant from condemnation if it happened after litis contestatio. Finally, however, the doctrine prevailed that, in the absence of Mora, such an event was effectual for the absolution of the defendant, even when it occurred after litis contestatio. See p. 449.

So in real actions, the purely casual destruction of an object in the hands of a bona fide possessor, even when it happened after joinder in issue, produced the absolution of the defendant, on the ground that impossibilium non est obligatio. It is to be observed, however, that the grounds effectual for the absolution of the defendant in a real action are limited to those which destroy the Obligation engendered by litis contestatio. The defendant, that is to say, is subject to condemnation in spite of usucapion of property completed after litis contestatio, in spite of extinction of servitude by non-usus completed after the same date, in spite similarly of casual destruction of the subject in the hands of mala fide possessor or after mora, and in spite of destruction by the culpa of bona fide

possessor.

Subject to this limitation, the rule was universal: omnia judicia esse absolutoria : i. e. all classes of action, real as well as personal, stricti juris as well as bona fide, whatever the original right of the plaintiff, may terminate by a judgment in favour of the defendant in consequence of some event (casual destruction of the subject, voluntary restitution by the defendant, &c.) subsequent to litis contestatio. Vangerow, § 160. Compare what has been stated respecting actiones Arbitrariae, p. 534.

DE EXCEPTIONIBUS.

§ 115. Sequitur ut de exceptionibus dispiciamus.

§ 116. Comparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur: saepe enim accidit, ut quis iure civili teneatur, sed iniquum sit eum iu

§ 115. We have next to examine the nature of Exceptions.

$116. Exceptions are intended for the protection of the defendant who often is under a liability, say, by the civil law when justice forbids his condemnation. If, for instance,