§ 4.-ii. When a debtor, on oath tendered to him by the creditor, swore that he owed nothing, he continued bound; for an oath was not one of the causes whereby an obligation could be extinguished by the civil law. But the defendant was entitled to the exceptio jurisjurandi to get rid of the condemnatio (1).

§ 5. As to the exceptio rei judicata, under the system of the legis actiones no second action could be brought for the same cause. But under the formula-system it was different, for, according to Gaius (B. 4, § 103, et seq.), all judicia were LEGITIMA or IMPERIO CONTINENTIA. When the action was at Rome, or within the first milestone, between Roman citizens and before a single judex, also a Roman citizen, the action or judicium was legitimum; but when the action was in the provinces, or between suitors, one of whom was not a Roman citizen, or before a juder, not a Roman citizen, the judicium was imperio continens. Now, the judicium legitimum, like the old legis actio, being once begun, and the juder once appointed, went on till judgment; but the judicium imperio continens, which derived its whole effect from the magistrate who granted it, expired with his term of power: imperio continetur. Thus it was, that in the provinces all suits ceased with the change of governor. Further, as to their effects: the judicium imperio continens never extinguished the original right of action, so that if a second action was brought for the same cause, it had to be repelled by the exceptio rei judicatæ. As to the judicium legitimum, there was a distinction if it was in rem or in factum, the right of action was not extinguished, for, as these were not brought to enforce an obligatio, there was none upon which the obligatio raised by the litis contestatio could operate so as to extinguish the cause of action by novatio, and hence the necessity for an exceptio if a second action were brought for the same cause; but if the judicium legitimum was in jus, the right of action was extinguished, for the obligatio raised by the litis contestatio operated by novatio to extinguish the original obligatio, so that no exceptio rei judicate was necessary if a second action were brought for the same cause. But these distinctions ceased when Rome became one with the provinces, and when all freemen of the empire became Roman citizens all judicia were assimilated to these imperio continentia, and hence Justinian's general proposition, that res judicata gives rise to an exceptio (2).

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§ 8. Some exceptions are perpetual and peremptory, others are temporary and dilatory.

(1) Exceptions were granted, not merely in personal, but also in real actions. When, therefore, on oath tendered by the demandant, the possessor swore that the thing belonged to him, he was entitled to the exceptio jurisjurandi (§ 4), in case the

demandant brought vindicatio.

(2) The exceptio rei judicatæ had to be pleaded in actions bona fidei, being allowed more on grounds of public policy, ut sit finis litium, than upon those of equity.

§§ 8, 9. Perpetual and peremptory exceptions were those always allowed to the defendant whenever the demandant sued (i.e., demanded his action from the magistrate); e.g., the exception of fraud (doli), or pacti conventi, where it had been agreed that the creditor should never make his demand (omnino).

§ 10. Temporary exceptions were those allowed only during a fixed time, after the lapse of which they could not be introduced into the formula. For instance, if the creditor, instead of agreeing that he should make no demand at all, promised to make no demand for five years (1), the exception pacti conventi would be temporary; for, after that limited period, the exception would no longer be available. Temporary exceptions were also called dilatory, because they did not absolutely put an end (perimunt) to the rights of the demandant, like perpetual exceptions, but merely compelled him, if he wished to avoid. the penalties of plus-petitio, to postpone the exercise of his rights (quæ ad tempus nocent).

Finally, according to the old law, the temporary exception was during the period of suspension quite as efficient-quite as peremptory as the perpetual exceptio. For if the demandant brought an action before the judex at any time prior to the expiration of the proper period, the defendant was acquitted, and the sententia (judgment), which was always final, gave rise to a perpetual exceptio barring any future action : so that the demandant lost his right (rem amittebant, § 10). But after the time of Zeno (t. 6, § 33), the plus-petitio no longer involved a loss of rights; but the period during which the right of enforcing the contract was suspended (inducia) was doubled in favour of the defendant, and the creditor was not allowed to bring a new action until he had paid the expenses of the first.

§ 11. Besides dilatory exceptions by reason of time, there were also dilatory exceptions by reason of the person: e.g., exceptiones procuratoriæ, because, for instance, an action had been brought by a military man, or a woman as procurator; for military men could not sue as procurators even for their fathers, mothers, or wives, nor even by virtue of a rescript of the Emperor. But military discipline did not prevent them from managing their own affairs (2).

T. 14, § 4. Again, exceptions are conceptæ in rem, and concepta in

(1) Observe that this refers to a period allowed by a pactum subsequent to the obligation, and not to one allowed by the obligation raised by the original contract and embodied in it; for, in this last case, if a person sued before the time, his claim was repelled ipso jure, according to the principles of plus-petitio.

(2) The infamia incurred by the person appointing a procurator, or by the procurator himself, formerly gave rise to exceptions, which were afterwards disused, and which Justinian expressly abolished, lest the matters connected with them might delay the discussion of substantial questions.

personam (1): the former are available for every person sued by reason of the same thing, the latter are available only for one individual. Thus exceptions granted to debtors are generally available for the fidejussores; and properly so, for to make a demand on a surety is in some sort to make a demand on the debtor himself, for he will be compelled by actio mandati to restore whatever the surety has paid for him. Hence, where it has been agreed with a debtor not to demand a debt from him, the exception raised by such pactum is available for those who have bound themselves on his behalf, just as if the agreement not to sue had been made with them. But there are certain exceptions which are not available for the sureties; e.g., if a debtor has made an assignment of all his goods (cessio bonorum), and the creditor sues him, the debtor may defend himself by the exception si bonis cesserit (unless he has made an assignment of his goods); but the fideijussores may not, because the benefit from the cessio bonorum is personal to the assignor, and because, moreover, if it were available for the surety, the object of the creditor in requiring the addition of a fidejussor, viz., the obtaining payment from the fidejussor, should the debtor prove insolvent, would be defeated.

The exception should be demanded before the formula is deliveredbefore the suit is constituted (litis contestatio); for, the question before the juder being ascertained, the judex can take no congnizance of any ground of defence not stated in the formula.

Again, there might be several exceptions to repel the same cause of action (D. 44, t. 1, 5). In the latest period of the law the term exceptio had lost its original meaning. The system of exceptions depended on that of the formula: after these were abolished, the exception, which then became synonymous with defence, seems to include all the means of repelling a claim (2).

TITLE XIV.-OF REPLICATIONS.

Pr. A replicatio is an allegation introduced by way of addition into the formula for the purpose of repelling and destroying the effect of an exceptio. The replication is to the exceptio what the exceptio is to the action.

Pr. It may happen that the exceptio, though apparently just, is really unjust as regards the demandant; e.g., suppose a creditor has agreed

(1) Rei cohærentes, incident to the thing; persona to the person.

(2) Or, at least, all those by which a claim is repelled, not by denying the facts

on which it is based, but by alleging circumstances to qualify the demandant's right.

with his debtor that he shall not demand his debt, and it is afterwards agreed that the creditor shall demand it now if the magistrate allow the debtor merely an exceptio pacti conventi, the debtor must be acquitted, since the judge cannot pronounce condemnatio against him, except so far as there has been no agreement of release from the debt, and since the mere existence of a subsequent agreement contradicting that of release does not annihilate the fact of such a release (verum manet). Hence the demandant is allowed a replicatio ex pacto posteriore, framed in these terms: "If afterwards there has been no convention, whereby I may claim my debt" (Gaius, 4, § 126); and this replicatio destroys the effect of the exceptio.

§§ 1, 2. If subsequently to the second pactum (embodied in the replicatio) there was a fresh agreement negativing the second pactum, the defendant would have a duplicatio to repel the replicatio. In like manner the demandant would have a triplicatio to repel the duplicatio, the defendant a quadruplicatio to repel the triplicatio, and so on, according to the requirements of the suit.

The demandant did not need a replicatio to repel the exceptio doli mali, for the very nature of that exceptio authorises the judex to consider all the facts, both of early and recent date, from which the fraud or good faith of the parties may be gathered. If, therefore, in the example above, instead of the exceptio pacti conventi, which is an exceptio in factum, and which therefore leaves nothing but one material fact to be proved, the magistrate had allowed the exceptio doli mali, then, since the mere existence of an agreement of release cannot negative the possibility of a demandant having to complain of fraud, inasmuch as the effect of such release must be morally nullified by the existence of a contradictory agreement, it follows that the defendant will be condemned under a mere exceptio doli, without the plaintiff being compelled to put in a replicatio.

TITLE XV.-OF INTERDICTS.

Pr. Under certain circumstances, when it was required to prevent conflicts, and to repress acts of violence, and especially in disputes as to the possession of things corporeal, or the quasi-possessio of things incorporeal, the Prætor, instead of granting an action, i.e., instead of referring the matter to a judex to be examined and adjudicated upon, made an order of command or prohibition, which the parties were required to obey. This order, framed like the formula in actions (formæ atque conceptiones verborum), was called an Interdict (Interdictum).

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Pr. If one of the parties did not obey the interdict, the opposite party got an action authorising the judex to investigate whether or not there had been disobedience of the Interdict; and, in case it was proved that there had, to condemn the disobedient party (Gaius, §§ 4, 141, 166).

It seems, therefore, that interdicts were simply a means of obtaining condemnatio against those who violated a rule which had been laid down by the Prætor, apparently because such rule was not within the scope of the common or civil law. Such appears to have been substantially the use and origin of interdicts (1). Interdicts differed from edicts in this, that the latter were general, whereas the former applied only to a particular dispute, and to the parties thereto. Interdicts were special and personal edicts, renewed each time a similar matter presented itself. Indeed, the Institutes derive the term from this very circumstance: quia inter duos dicuntur: so that Interdictum signifies dictum inter duos, in opposition to edictum, by which the Prætor lays down general rules binding on all (2).

§ 1. Interdicts are prohibitoria, restitutoria, and exhibitoria (3). Prohibitory are those by which the Prætor forbids a man to do something : such as the interdict forbidding violence to be done against one who has rightful possession (non viciosa), or against one who is carrying a dead body to a place where he is entitled to bury it: such also is the inter

(1) It seems that an interdict was seldom granted except in cases where the public interest was concerned as, where danger was apprehended to public roads or waters, or in private cases, where there might be a violation of the public peace. According to Niebuhr (II. 149), and Savigny (Poss., B. 4, 44), the private Occupancy of the ager publicus by the Patricians was probably one of the earliest interests which claimed the protection of the interdict. As the Patricians had not the Quiritarian ownership of such land, they were not entitled to the actions connected with such ownership, and they therefore had recourse to the Prætor.

(2) Such, at least, was the common opinion as to the etymology (§ 1). Some, however, derived the term from interdicere, "to forbid," "prohibit ;" insisting that interdicta applied only to prohibitory orders whilst decreta applied to positive orders. But this view has not been adopted.-Probably interdicts paved the way for edicts. For the Prætors, we may suppose, began by laying down rules inter duos, in private disputes; the same rule would naturally be adopted under similar circumstances, and this soon led to the creation of the general rules of the edict.

When edicts were in use, the Prætors used them for the purpose of settling possession and other matters, by laying down certain rules, and promising an action in factum against those who violated them (D. 43, t. 4, § 1). Nevertheless, interdicts continued to be granted in all cases in which it had been usual to grant them; but the Prætor, in order to render his rule of action as consistent in its character as possible, promised by the edict to pronounce a particular interdict, whenever particular circumstances occurred. In the end, however, it became unnecessary actually to obtain an interdict, the custom being to sue just as if such interdict had been in fact obtained. Hence, under the Lower Empire we hear very little of interdicts.

(3) This division was important in regard to the procedure to be adopted in case the interdict was unexecuted (Gaius, 4, § 141, et seq.). When the interdict alleged to be violated was restitutory, or exhibitory, the demandant had an arbitrary action, i. e., one authorising the judex to decree that the thing should be given up or produced. If the defendant obeyed this order he was acquitted: if he did not, he might be compelled to obey it by public force.