contact might not be the fact on which they were founded, ['] nor the analogy which they presented, nor the name that they bore, [2] nor yet. the identity of the persons whom they concerned; [3] - but simply the legal claim which they advanced, [4] — the purpose which they sought to attain. As to the effects produced by the concurrence of actions, the following rules were followed.

I. If the object of the right was due but once, [5] and that object had been attained by bringing one of the actions, it was no longer possible to sustain another action for the same end. [6]

[1] Think of the actio furti and the condictio furtiva, originating in the same fact; and, on the other haud, of the condictio furtiva and the Aquilia, originating in different facts. In the first case there was no concurrence; in the second there was so, as to the amount of damages. L. 45-51, D. pro soc. (17. 2). L. 2. § 3, D. de priv. del. (47. 1).

[2] There was concurrence between the reivindicatio and the actio commodati or depositi, for the restitution of the thing to the owner; and, on the contrary, no concurrence between the exercise of the lex commissoria and the demand of the price of a purchase. L. 4. pr. and § 2, D. de leg. commiss. (18. 3).

[3] If the same persons contracted, for example, three different agreements, there were three entirely independent actions, On the contrary, if two persons conjointly deceived a third, and the latter had been indemnified by one of the former, his action would be barred as against the other. Sav. Syst. V. p. 208.

[4] Savigny uses these words: "juristiche Gegenstand oder Zweck"; legal object or purpose. Unger, 1. c., says: "das praktische klag-object," the practical object of the suit. This object must not be confounded with the material object, which might give rise to different claims, without one exercising the least influence upon the others. This shews that it was erroneously that the art. 3205 of the Project of 1820 made the concurrence of actions to consist in their pursuit of one and the same right, as to things or persons. In fact, there is, for example, concurrence between the actio locati and the reivindicatio, because the demand for restitution is the same, although these two actions do not assert the same right. Besides, the author of the project evidently confounded the concurrence with the cumulation of actions.

[5] It was otherwise when diverse causes produced as many claims, even though directed to the same object. Examples in L. 18. D. de O. et A.

[6] If the right and the correspounding obligation were totally destroyed, the exclusion of the second action followed ipso jure. If the right still existed as a matter of strict law, the action was rejected per exceptionem, upon the principle: "Bona fides non patitur ut bis idem exigatur." L. 57. D. de R. J. L. 28. D. Mand. (17. 1). L. 28 D. de act. emt. (19. 1). Sav. 1 cit., p. 260; Unger II, p. 392.

L. 43. § 1. D. de R. J. "Quoties concurrunt plures actiones ejusdem rei nomine, una quis experiri debet." L. 35. § 2. D. loc. (19. 1). "Cum alterutra actione rem servaverim, altera perimatur." L. 14. § 13. D. quod met. causa (4. 2). "consumi alteram actionem per alteram, exceptione in factum opposita." L. 18. D. ad l. Aq. (9. 2). L. 53. pr. D. de O. et A. (44. 7).

II. If the plaintiff had commenced by bringing the action of the least extent, aud that, consequently, his right had not obtained complete satisfaction, he might again bring his action for the surplus. [] L. 34. pr. L. 41. § 1. D. de O. et A. "Si ex eodem facto duae competant actiones, postea judicis potius partes esse, ut quo plus sit in reliqua actione id actor ferat. Si tantundem aut minus id consequatur." [2]

III. But the obtaining of the desired result, the efficient satisfaction of the demand, prevented the bringing of one action after having already had recourse to another; while neither the mere commencement of the latter, [3] nor the litis contestatio [4] produced this effect. Thus, as the Romans have it: "ma

[1] As to this surplus, the claims were not identical, and consequently there was no

concurrence.

[2] Cujas, and in his train Savigny, Syst. V. p. 224, Unger and Arndts, 1. c., propose: "nil consequatur." It seems to me that, without changing the text, the passage should be interpreted thus: The plaintiff obtains that which the second action demands in excess of the first; and even when this surplus reaches a sum equal to that which be has already obtained, this circumstance is of no importance. He always obtains "quo plus sit in reliqua actione, sive id, quod plus sit, tantundem sit aut minus." This correct explication has already been suggested by Merillius, Var. ex Cujac. III, 10; but has met little applause. Applications of the principle may be found in L. 43. et 47. D. pr. D. pro Soc. (17. 2). L. 2. § 3. D. de priv. del. L. 7. § 1. D. commod. (13. 6). L. 34. § 2. D. de O. et A. As to this last, see Sav. 1. c. p. 229. With the Romans, this case presented itself especially in the application of the lex Aquilia, where it was usual to estimate the value of the thing at a time anterior.

[3] In the ancient law it was otherwise, thanks to the influence of the litis contestatio and the litis consumtio. The earlier law was abolished by Justinian, expressly as to the correi and tacitly as to other identical obligations. L. 28. C. de fidei, (8. 41). Sav. 1. c. p. 254. In modern law there is no longer question of this concurrence arising from the proceedings.

[*] Another question is this: Did a judgment of condemnation, obtained in the

gis eos perceptio, quam intentio liberat." L. 32. pr. D. de pec. (15. 1). L. 18. § 3. D. de pec. const. (13. 5). L. 7. § 4. D. quod fals. tut. (27. 6).

IV. These principles were applicable, not only to the case where concurrent actions were directed against one and the same person, but also when they were directed against different persons. Then, also, it was the satisfaction once obtained by the plaintiff, which alone forbade him to pursue, a second time, the same object, by means of another action. L. 28. C. de fidej. (8. 41). "Ex unius rei electione praejudicium creditori adversus alium fieri non concedentes, sed remanere et ipsi creditori actiones integras, donec per omnia ei satisfiat." L. 8. § 1. D. de leg. I. (30). "Ut si cum uno actum sit et solutum (interpolated) alter liberetur." [']

first action, prevent the bringing of a concurrent action against the same debtor? Kierulff, p. 264, Wächter, II. p. 406, and Unger. 1. c. note 25, reply affirmatively, because the plaintiff could not have any imaginable interest in bringing a fresh action, after his claims had been already recognised by the judge, Besides: "Praetoris est litis diminuere." Savigny (§ 235 a) sustains, nevertheless, the negative; but his reasoning is feeble. The insolvency of the unsuccessful defendant could be no reason for inundating him with actions and judgments without end. On the contrary, the effects of a judgment which rejected the action were not governed by the principles of concurrence, but by those which concerned the exceptio rei judicatae. Thus, for example, it might happen, that he who reclaimed, by means of the reivindicatio, something which he had lent, was defeated for lack of having sufficiently proved his ownership; but he could, nevertheless, bring, with success, the actio commodati, without having concurrence made an obstacle, since he had not obtained satisfaction. As to the relations between the concurrence of actions and the exceptio rei judicatae (which many authors have failed to properly distinguish), see Sav. Syst. V. p. 213; Wächter, § 67, notes 2 and 18. [] By the terms of the Austrian Code § 891, (See, as to this singular disposition, Unger 1. c., note 32) the creditor, after having brought his action against one of the joint debtors, retained the power of attacking another only on condition of renouncing the action already brought against the former! The Prussian law falls into the contrary extreme, (P. I. Tit. V. § 433), by allowing the creditor who has begun by demanding from one or from several debtors, his or their individual portion of debt, to recur to another proceeding, and she de novo and for the whole, one or other of them; - inclading, necessarily, him against whom he had before restricted himself to the individual action. The French and Dutch Codes embody a wiser doctrine. See art. 1211. Code Nap. and art. 1326. Dutch Code.

There were, however, some exceptional cases, where the choice made by the plaintiff of one of the actions to which he was entitled, caused him, from the moment of commencing it, to lose the faculty of recurring, afterward, to any of the others. L. 1. § 3. D. furti. adv. naut. (47. 5). L. 9. § 1. D. de trib. act. (14. 4). L. 8. pr. C. de cod. (6. 36). [']

Of Prescription. [2]

§ 99. A.- NATURE AND LIMITS OF PRESCRIPTION.

When a right of action lost its power, [3] because he who was entitled to excercise it had neglected to do so within the time fixed by the law, this extinction was called the prescription of the action. It was founded exclusively upon the inaction, the

[1]Wächter, II. p. 472, note 32. It is said, then, that there is concursus actionum electivus; an expression, which, like that of concursus actionum successivus, is, with good reason, criticised by Savigny. 1. c., p. 213, as useless, and serving only to embroil the question. There is an example in the art. 131 of the Dutch Code of Procedure, and in art. 26 of the French Code of Procedure. right, cannot afterwards be allowed to make a [2] In Dutch law, the word verjaren (to prescribe, to restrict as to time)

-

"The plaintiff who advances a claim of claim for possession."

is used sometimes for the effect, for the situation, which is the result of the inaction of the possessor of the right of action, and sometimes for the cause which creates such a state of things. Art. 1417, 2000, 2015, Dutch Code. See, also Unger, § 119. [3] Care must be taken not to mistake for prescription the cessation (déchéance) of a right, in consequence of the expiration of the time positively fixed by law for its exercise. The difference is this: In the case of cessation or lapse, there exists, first, a prescribed time; when this time has passed, the right ceases, of itself; while in the case of prescription (on the contrary) the right itself is unlimited as to its duration, but continuous inaction on the part of the possessor may cause its extinction. For examples in Romau Law, see Sav. Syst. IV, § 177. Wächter, II. § 117. Unger, II, § 104, and § 122, note 21, and Windscheid, § 115, note 6. For Dutch law, see art. 311, 312, 435, 188, 1162, and 1556, civil Code, As to the important practical effects of the difference between lapse aud prescription, and their distinctive characteristies, see my argument, in the Weekblad van het Recht, no. 1368. Our legislators have not always remarked this difference.

continuously impassive attitude, of the possessor of the right; (juge silentium, diuturnum silentium, jugis taciturnitas); and was justified, ['] partly by the negligence of the latter, partly by the equitable desire to protect the defendant against antiquated claims, which perhaps had no longer a real existence, but, of which, after a long interval of time, it might be impossible to prove the fact and the time of extinction. L. 2. C. de ann. exc. (7. 40); "Sit aliqua inter desides et vigilantes differentia."

The ancient Roman Law did not recognise the prescription of actions. Actions were, literally, perpetual; Gaius, IV, 110. Pr. I. de perpet et temp. act. (4. 12) save, that when the praetors created a new action, they were accustomed to fix a time within which it should be brought. L. 30. § 5. D. de pec., (15. 1). L. 15. § 5. D. quod vi aut clam. (43. 24). L. 38. pr. D. de Aed. Ed. (21. 1). Subsequently, a limit was fixed for the exercise of the right of certain civil actions, and the speciales in rem actiones might, generally, be repelled, by means of the longi temporis praescriptio, on behalf of the bona fide possessor armed with a legal title. Dig. Tit. ne de stat. def. post. quinq. quaer. (40. 15). L. 1. §

[1] Sav. Syst, V. p. 267. Windscheid, 1. c. Arndts, § 106. The legal basis and the legislative motives of prescription have been confounded, no less by writers than by legislators. Marcadé, on the art. 2219 of the Code Nap, no. 2, says: "Two things which are quite distinct have been confounded, when, in reading, in the works preparatory to the code and in our ancient and modern authors, the development of this idea, the wherefore of the institution has been regarded as the institution itself." In consequence of this confusion, the presumption of payment has come to be regarded as the fundamental principle of prescription; and hence it is that the Prussian Law, (ex. gr. P. I, Tit 9, § 568, 569) admits every species of proof to the contrary; and that the French code (art. 2275) and the Dutch (art. 2010), permit proof by means of declaration upon oath against even long prescription. Sav. Syst. V. p. 346, and Unger § 113, note 5. Directly one has set foot upon this slippery ground, all the advantage of prescription is lost. The oath produces the "interrogation sur faits et articles", and eventually we arrive at the admission of every kind of proof.” See Marcadé, as to art. 2278, code Nap. n. 5. As to prescription in general, sight is lost of what Windscheid says, § 105: "Time is a power which no human spirit can resist. That which has long existed, seems to us, by that mere fact, solid and durable; and we are painfully impressed, when we are deceived in this view."