for it was a general rule that nemo defensor in aliena re sine satisdatione idoneus esse creditur. So strict, indeed, was this rule, that it applied, even when the representative of the defendant was a cognitor; in that case, however, the cautio was furnished not by the cognitor, but by the person whom he represented (Gaius, 4, 101) (1).

Pr. It was the same with tutors and curators as with procurators. They were bound to give the same securities; though in some cases they were relieved from giving cautio when they were demandants (his agentibus). But when they were defendants, they were of course subject to the rule nemo defensor, &c.

§ 3. Under the new law, whatever the nature of the action, the demandant was never required to give cautio when he sued in his own name; but when he sued as procurator, he had to give the cautio de rato, unless appointed in presence of the judge, or by a public act (mandatum actis insinuatum) (§ 3).

§ 2. The defendant who appeared in his own name was not bound, even in a real action, to give the full security implied in the cautio judicatum solvi: he was not bound to give cautio for the value of the thing in dispute (pro litis æstimatione, § 2); but he was bound in every case to give cautio to appear in person, and to contiuue in court till the end of the suit (pro sua persona, quod in judicio permaneat usque ad terminum litis, § 2) (2). This guarantee, moreover, was not always in the form of a cautio (proper), i.e., by fidejussor: for sometimes, having regard to the rank and fortune of the person, it was thought enough to have either a cautio juratoria (B. 1, t. 24), that is, an oath, or a mere promise.

$4. When the defendant was represented by a procurator, or by a mere defensor, it was always necessary that the cautio judicatum solvi should be given to the demandant; for the old rule, nemo alienæ rei sine satisdatione defensor idoneus intelligitur (§ 5), continued in force. But if the defendant (aliquis convenitur) was present, and desired to appoint a procurator, he might himself, either before the judge (in judicio) or elsewhere (extra judicium), constitute himself fidejussor of his attorney (mandatarius ad litem), undertaking all the liabilities included in the stipulatio judicatum solvi (pro omnibus satisdationis clausulis): in which case, moreover, he subjected all his goods to a hypotheca. Lastly, such defendant gave cautio that he would appear in person when judgment (sententia) was pronounced (quod tempore sententiæ recitandæ, in judicio invenietur). A judgment delivered against a mandatarius thus guaranteed

(1) At least generally (Gaius, 4, 102). (2) This guarantee was called cautio in udicio sisti: its object being to indemnify the demandant for any loss he might incur

by being compelled to have recourse, in case of the defendant's non-appearance, to the forms of procedure for contumacy.

(procurator præsentis) had the same effect as if delivered against the mandator himself.-If the person sued was absent it was the duty of the person acting as his defensor to furnish the cautio judicatum solvi. The judgment had then no direct effect, except against the official representative, saving always the right of such representative against the person represented, either by means of an actio mandati or by the actio negotiorum gestorum.

TITLE XII.-OF ACTIONS PERPETUAL OR TEMPORARY, AND OF THOSE WHICH MAY BE BROUGHT BY HÆREDES, AND WHICH MAY BE ENFORCED AGAINST HÆREDES.

EIGHTH DIVISION.-Pr. Actions as to their duration are divided into perpetual and temporary. Civil actions, i.e., created by a Law, a Senatus Consultum, or Constitution, might be brought at any time (1), until certain imperial Constitutions laid down a fixed period within which actions, whether real or personal, must be brought (2); but actions derived from the Prætorian law did not continue beyond one year, for that was the limit of the Prætor's authority (imperium). Sometimes, however, Prætorian actions were assimilated, as to the period during which they might be brought, to actions legitima, as was the case with actions granted to the possessores bonorum, and to other parties occupying the place of the hæres (loco hæredis); and with the actio furti manifesti (3). § 1. It must not be supposed that all the actions which were capable of being brought by or against a person, according either to the Civil or the Prætorian law, were also capable of being brought by or against the hæres of such person.

Actions arising out of contracts were granted to the hæredes of the

(1) Observe, however, as to vindicatio which claimed the property, that this right of action was extinguished when the property was extinguished by usucapio.

(2) In A.D. 424, Theodosius II. decreed that no action, whether real or personal, should be brought after thirty years (C. vii. 39, 3). His successors, particularly Anastasius and Justin, confirmed this rule, extending, however, the period of time, in some cases, to forty years. So that in the new law, actions are called perpetual which may be brought for thirty or forty years, and temporary which must be brought sooner. Observe that this limitation of thirty or forty years in case of real actions, though it limited the time during which the proprietor might claim back the property, did not usually transfer the property, for it was not a mode of acquisition like usucapio, or the prescriptio of ten and

twenty years created by Justinian. Hence the proprietor, though he could not sue a person who had been in possession for thirty or forty years, and who had not acquired title by usucapio, might still claim back the property from a third party who had obtained possession, and who could not avail himself of a possessio longissimi temporis.

(3) Most of the prætorian penal actions might be brought for one year only (the period of the Prætorship); the action furti manifesti was perpetual, because derived from the Twelve Tables, the Prætor having merely substituted a pecuniary for a capital penalty (Gaius, 4, § 111). Most of the prætorian actions rei persecutoriæ, especially those which aimed at carrying out the principles of the Civil Law, were perpetual.

parties, as well as against them (1). As to penal actions arising out of a delictum, or quasi-delictum, it is an universal rule in law that they do not lie against the hæres of the person committing the delictum, but that they may be brought by the hæres of the party interested; indeed the only actions which do not descend to him are actions for injuria and such like; for death extinguishes all rancour. Nevertheless, penal actions descend to the hæres, who may be either plaintiff or defendant, provided only the suit has been already begun, and the question already settled by the Prætor for the juder between the original parties; because in truth the litis contestatio works a novatio (2), and because the defendant is thereafter no longer to be bound by virtue of the delictum, but by the obligation raised by litis contestatio: nevertheless, the hæres of the party committing the wrong would be bound by the penal action, if he had derived any benefit from the delictum of the deceased, and that to an extent equal to the benefit derived (D. 4, 3, § 26).

§ 2. If the defendant, before judgment, satisfied the demandant, it was the duty of the judex to acquit. Formerly so held the Sabinians, who said that all actions were absolutory (Gaius, 4, § 114): and their opinion was sanctioned by Justinian (omnia judicia absolutoria); but the Proculeians argued that the question on which the condemnatio depended was, whether a particular obligatio or factum existed at the time when the action was granted, and maintained that the judex could not avoid pronouncing the condemnatio, if the defendant at that time was liable to be condemned.

TITLE XIII.-OF EXCEPTIONS.

Pr. An exception is an equitable restriction introduced by the Prætor, upon the general order to condemn given to the juder by the action. It was called exceptio, because it excepted or took away from the effect of the action.

(1) Sometimes, however, says Justinian, (§ 1), an action, though arising out of a contract, does not lie against the hæres, e.g., when the deceased has committed a fraud, but no advantage has thereby accrued to his hæres. But this is too general: for there was in fact only one case in which the fraud of one of the contracting parties did not make his haredes liable to the same action for which he himself was liable viz., where there was an action in duplum for a deposit made from necessity (t. 6, ante). For it is clear law that, in contracts, an action founded upon the fraud of one of the parties, also lies

against his hæredes. Justinian took his proposition from Gaius (4, § 111): but in the time of Gaius there were several actions; e. g., those against sponsores and fidepromissores, which, though arising from contracts, were not allowed against the hæredes; but in Justinian's time they were obsolete.

(2) The Romans marked the successive modifications of the defendant's obligation thus before action he was said to be bound, dare; after the litis contestatio, condemnari; after condemnatio pronounced, judicatum facere (oportere).

§ 1. The origin and use of exceptions may be thus explained. It often happened that the demand of the plaintiff, though just in strict civil law (justa), was unjust in equity (iniqua). For instance, by the Civil Law, no question was made as to how a stipulatio arose its existence was enough to create an obligation on the part of the respondent, even though his promise had been extorted by violence (metus causa) or by fraud (1). But, to decree execution of such promise would have been to violate equity; and therefore, to prevent this, the Prætors adopted the plan of giving the judex, not a general order, directing him to decree according to the principles of strict law, whereby the defendant would have suffered an unjust (iniqua) condemnatio, but a conditional order, in these terms: You shall pronounce condemnatio, unless there has been fraud or violence, or, You shall pronounce condemnatio, if there is no fraud, &c. (si in ea re nihil dolo malo factum sit neque fiat, Gaius, 4, § 119). This restrictive order to condemn, this equitable condition subjoined to an action founded on principles of the strict law, was called an exceptio (2).

It would seem, then, that an exception is unnecessary when the grounds of defence are admissible by the strict Civil Law, and therefore such as the juder is bound to recognise (3), and that this is so may be proved by many texts (D. 2, t. 14, 7, § 4 ; and 17, § 1, Gaius, 4, § 106-7). From which, also, we conclude, that the exceptions, or, at least the exceptio doli, is unnecessary in actions of bona fides; because the very nature of such actions permits the judex to look to the various circumstances showing fraud, which however, in actions stricti juris, he could only regard by virtue of an exceptio (4).

§ 7. Exceptions are of Prætorian origin: but yet Justinian tells us (87) that there are certain exceptions founded on the law. This is because the Prætorian Law was often adopted as part of the Civil Law, which gradually became, in fact, one with it, in unam consonantiam. Thus laws or other legislative acts (legibus vel iis quæ legis vicem obtinent) confirmed the exceptions introduced by the Prætors, or created new ones similar to them, but always for the purpose of mitigating the

(1) For fear, or mistake on the part of the promissor, is not amongst the causes nullifying stipulationes: it is otherwise in case of a promise made by a person imbecile or a pupillus.

(2) Observe, the defendant by his exceptio did not admit the truth of the ntentio: it had to be proved.

(3) The exceptio was only required when the defendant could not avail himself of his defence ipso jure (that is, by the Civil Law, and not, as it is sometimes translated, as of right). Thus, the exceptio pacti conventi, raised by a pact of release, was

useless in case of a consensual obligation, because mere consent dissolved such obligations ipso jure. Hence § 3, which mentions the exceptio pacti conventi, inust be understood to refer to a stipulatio; which is not extinguished ipso jure by mutual consent.

(4) Therefore Ulpian says, that in actions bona fidei, the exceptions are implied (exceptiones insunt) (D. 2, t. 14, 7, § 5). And Cujas (3 Obs. 17) maintains that if an exceptio doli was added to an action stricti uris, it was changed into an actio bonc fidei.

rigour of the original law, the law of the Twelve Tables (1). Thus a rescript of Marcus Aurelius allowed an exceptio doli in an action stricti juris to any person who desired to avail himself of a set-off (compensatio). Thus also, after the hæreditas fideicommissaria was transferred (restituta), the hæres, if sued by the creditors of the hæreditas, had the exception restitutæ hæreditatis, by virtue of the Sc. Trebellianum: because, according to strict law (ipsum jus), condemnatio must have been pronounced against him.

§ 1. Again, exceptions, like actions, were framed (concept) in jus and in factum. An exception was in jus when it raised a question of law; in factum when it raised a question of fact. The exception doli mali, or quod metus causa, was framed in jus, because it required the judex not merely to examine the facts, but also to come to a conclusion upon them; for it is not any set of facts which constitutes fraud or violence. Nevertheless the Prætor, instead of decreeing that the juder should condemn, unless there was fraud or fear, might instruct him to condemn, unless a particular fact had taken place; e.g., unless the demandant had threatened the defendant with a dagger, in which case the exception was in factum concepta (§ 1, in fine) (2).

§ 6. The circumstances under which a man could claim an exceptio are too many for enumeration. Having already mentioned the exceptions doli mali, quod metus causa, and pacti conventi, we shall follow the Institutes, by confining ourselves to the exceptions: 1, non numeratæ pecunia (consideration unpaid); 2, jurisjurandi (oath tendered); 3, rei judicata (thing adjudged).

§ 2.-i. When a person, before lending a sum of money or other res fungibilis, bound the borrower by stipulatio that he would repay the sum of money or res (3), and then refused to make the loan, the borrower was bound by the stipulatio, even though no loan had in fact been made by the stipulator (4); but, as it would have been unfair (iniqua) that the disappointed borrower should be condemned in such a case, the Prætor allowed him the exception in question. The time during which this exceptio might be pleaded was reduced by Justinian to two years (B. 3, t. 21).

(1). The law of the Twelve Tables, notwithstanding the many modifications successively introduced into it, notwithstanding the fictions with which it was encumbered by the Prætors and jurists, continued to be the basis of Roman Law.

(2) The exceptio doli made the person against whom it was proved infamous. Hence it was more common to grant an exceptio in factum against the patron than one doli mali: for it was a freedman's duty to have a care for the reputation of

his patron.

(3) Quasi credendi causa, i.c., made the defendant promise, as if he, the plaintiff, were going to lend the sum of money. It was not uncommon, in order to give a legal validity to a promise which would otherwise have been invalid, to put it in the form of a stipulatio.

(4) It would be the same if there had been an obligation literis constituted by the chirographum, and subscribed before the money was paid.