praesens procuratorem dare paratus est, potest vel ipse in iudicium venire et sui procuratoris personam per iudicatum. solvi satisdationis sollemnes stipulationes firmare vel extra iudicium satisdationem exponere, per quam ipse sui procuratoris fideiussor existit pro omnibus iudicatum solvi satisdationis clausulis. ubi et de hypotheca suarum rerum convenire compellitur, sive in iudicio promiserit sive extra iudicium caverit, ut tam ipse quam heredes eius obligentur: alia insuper cautela vel satisdatione propter personam ipsius exponenda, quod tempore sententiae recitandae in iudicio invenietur, vel si non venerit, omnia dabit fideiussor, quae condemnatione 5 continentur, nisi fuerit provocatum. Si vero reus praesto ex quacumque causa non fuerit et alius velit defensionem subire, nulla differentia inter actiones in rem vel personales introducenda potest hoc facere, ita tamen ut satisdationem iudi

position as a defendant's cognitor under the older system, Gaius iv. 101 ; his principal, and not he, had to give security iudicatum solvi; either alone (cautio) or with sureties (satisdatio). This security consisted of three clauses: 'judicatum solvi stipulatio tres clausulas in unum collatas habet de re iudicata, de re defendenda, de dolo malo' Dig. 46. 7. 6. By the first of these the defendant and his sureties engaged, in case the action went against him, to restore the property to which it related, or pay the damages assessed by the judge, Gaius iv. 89; by the second, he promised to defend the action; by the third, to indemnify the plaintiff against malicious deterioration of the disputed property while it was in his hands. It is not easy to see how, when the principal gave the security 'extra iudicium,' he could be said to become fideiussor for his own procurator, who clearly gave no security at all. Perhaps, as the latter was responsible for the conduct of the defence, he was held to be impliedly liable on the clauses de dolo and de re defendenda, and his principal became answerable, as fideiussor, for any prejudice which might befall the plaintiff through his default in either of these respects. So far as satisfaction of the judgment was concerned, he himself was liable alone, and not the agent ; and 'non intellegi posse, ut quis pro se fideiubendo obligetur' Dig. 46. 1. 21. 2. Another difficulty is raised by the passage in the text which accounts for the compulsory hypotheca by the desire to bind the real defendant's heirs, for they were in point of fact already bound by his engagement iudicatum solvi. Perhaps this is to be explained by supposing that formerly the sureties in this security were sponsors or fidepromissors, whose liability did not descend to their successors (Gaius iii. 120), and that these lines have been transcribed from some old jurist into the Institutes by an oversight.

§ 5. A defensor was a person who without commission undertook the

catum solvi pro litis praestet aestimatione. nemo enim secundum veterem regulam, ut iam dictum est, alienae rei sine satisdatione defensor idoneus intellegitur. Quae omnia aper- 6 tius et perfectissime a cottidiano iudiciorum usu in ipsis rerum documentis apparent. Quam formam non solum in hac regia 7 urbe, sed et in omnibus nostris provinciis, etsi propter imperitiam aliter forte celebrabantur, optinere censemus, cum necesse est omnes provincias caput omnium nostrarum civitatum, id est hanc regiam urbem, eiusque observantiam sequi.

XII.

DE PERPETUIS ET TEMPORALIBUS ACTIONIBUS ET QUAE AD HEREDES VEL IN HEREDES TRANSEUNT.

Hoc loco admonendi sumus eas quidem actiones, quae ex lege senatusve consulto sive ex sacris constitutionibus proficiscuntur, perpetuo solere antiquitus competere, donec sacrae constitutiones tam in rem quam personalibus actionibus certos fines dederunt: eas vero, quae ex propria praetoris iurisdictione pendent, plerumque intra annum vivere (nam et ipsius praetoris intra annum erat imperium). aliquando tamen et in perpetuum extenduntur, id est usque ad finem constitutionibus introductum : quales sunt hae, quas bonorum possessori ceterisque qui heredis loco sunt accommodat. furti quoque manifesti actio, quamvis ex ipsius praetoris iurisdictione proficiscatur, tamen perpetuo datur: absurdum enim

defence of another who through absence, insanity, minority, or some other cause neglected, or was unable, to appear for himself. Litis contestatio with the volunteer released the real defendant from all liability: 'solutione vel iudicium pro nobis accipiendo et inviti et ignorantes liberari possumus' Dig. 46. 3. 23; cf. Dig. 15. 3. 10. I.

§ 7. Cf. Justinian's comment on Zeno's constitution de aedificiis privatis in Cod. 8. 10. 13 'indignum esse nostro tempore putantes aliud ius in hac regia civitate de huiusmodi observari, aliud apud nostros esse provinciales, sancimus eandem constitutionem in omnibus urbibus Romani imperii obtinere.'

Tit. XII. Originally all actions were perpetuae. Substantive 'sanctioned' rights might be destroyed by lapse of time, e. g. that of the dominus by usucapio, and that of a creditor against a sponsor or fidepromissor under the two-year limitation of the lex Furia, p. 411 supr.: but

1 esse existimavit anno eam terminari. Non omnes autem actiones, quae in aliquem aut ipso iure competunt aut a praetore dantur, et in heredem aeque competunt aut dari solent. est enim certissima iuris regula ex maleficiis poenales actiones

there was no rule of law providing that rights of action should be barred unless issue were joined within a definite period from their accrual.

The praetor, however, provided that many of the new actions which he introduced through the edict should lie only within an annus utilis from the moment at which they first accrued, though between this period and his own limited tenure of office there does not seem to have been the connection suggested by Justinian in the text. By far the most important class of these annales actiones are the praetorian penal actions, with the exception of that on furtum manifestum, which remained perpetua because it was in commutation of a capital penalty, Gaius iv. 111; iii. 189, but even these were perpetuae so far as they were brought only to deprive the delinquent of any benefiť he had derived from his wrong : ' in honorariis actionibus sic esse definiendum Cassius ait, ut quae rei persecutionem habeant, hae etiam post annum darentur, ceterae intra annum' Dig. 44. 7. 35. pr. Praetorian actions which were merely unilaterally penal (e. g. actio doli) were prescribed in a year if contra ius civile, Dig. ib. Interdicts, so far as they were penal, were similarly limited the actiones populares were all annales, Dig. 47. 23.8 and the prescription of the aedilician actions on sale has been already noticed, p. 423 supr., as also has the longi temporis praescriptio relating to actions for the recovery of property which had been for a defined time in the hands of a bona fide possessor with iustus titulus, p, 217 supr. In course of time too a prescription was fixed by disconnected legislation for other actions, in particular one of five years for the querella inofficiosi testamenti, Cod. 3. 28. 36. 2. Actions which fell under the old rule were called perpetuae, those which were limited by any of these periods temporales.

More systematic legislation upon this matter commenced with Constantine, who enacted that all real actions which were not already limited might be repelled by an exceptio unless brought within forty years, Cod. 7. 39. 2, which subsequently seems to have been reduced to thirty, the time here being not utile but continuum. In A.D. 424 Theodosius subjected to this same thirty years' limit all actions whatsoever, with a few exceptions, which had hitherto been perpetuae, Cod. ib. 3. This rule is in force under Justinian, the only actions of importance which are not governed by it being vindicatio in libertatem, Cod. 7. 22. 3, and fiscal claims for unpaid taxes, Cod. 7. 39. 6, which continued perpetual in the old sense; so that in his compilations actio perpetua means an action which is prescribed in not less than thirty years.

For the remedies of the bonorum possessor and other praetorian successors who feigned themselves heirs see Gaius iv. 34, 35.

§ 1. A right of action which, though not exercised by the person to

in heredem non competere, veluti furti, vi bonorum raptorum, iniuriarum, damni iniuriae. sed heredibus huiusmodi actiones competunt nec denegantur, excepta iniuriarum actione et si qua alia similis inveniatur. aliquando tamen etiam ex contractu actio contra heredem non competit, cum testator dolose versatus sit et ad heredem eius nihil ex eo dolo pervenerit. poenales autem actiones, quas supra diximus, si ab ipsis principalibus personis fuerint contestatae, et heredibus dantur

whom it originally accrued, may still be exercised by his heir, is said to be actively transmissible; one which, though not exercised against the person originally liable, may still be exercised against his heir, is said to be passively transmissible.

Active transmission, as Justinian remarks, is the rule. Those rights of action only are excepted (of which the actio iniuriarum is here taken as a type) which are grounded not on a damnum or injury to property, but on a grievance or insult to the person; e. g. among others, the querella inofficiosi testamenti, Dig. 5. 2. 6. 2, and the remedy of a patron or pater against a freedman or child who commenced legal proceedings against him without the praetor's permission, Tit. 16. 3 inf. The point of the distinction is well put by Theophilus, ἔνθα γὰρ τὸ γενόμενον ἁμάρτημα ἐλαττοῖ τὴν τοῦ μέλλοντος τελευτᾷν περιουσίαν, τότε καὶ ὁ κληρονόμος, ὡς συναδικούμενος, τὴν ἀπὸ τοῦ ἁμαρτήματος ἀγωγὴν κινήσει . . . Ἐπειδὴ . . . οὐ μειοῖ τὴν ὑπόστασιν, εἰκότως καὶ ὁ κληρονόμος ὁ ἐμός, ὡς μὴ συναδικηθείς, ταύτην οὐχ ἕξει.

...

The chief exceptions to passive transmission are the actiones populares, Dig. 47. 23. 7. 8, and (as is observed in the text) penal actions arising ex delicto. Actions which are purely poenae persecutoriae are passively transmissible only when they are absolutely the only remedy on the wrong (e. g. the actio on calumnia, Dig. 3. 6. 5. pr.), and then only so far as the inheritance has been enriched thereby; and this same principle of the liability of the heir to the extent to which the inheritance has been benefited applies also to actions (1) which, though grounded on delict, are purely rei persecutoriae (e. g. actio doli, Dig. 4. 3. 17. I, quod metus causa, Dig. 4. 2. 16. 2); (2) which are mixtae, except where an action which is purely rei persecutoria lies on the same delict (e. g. the condictio furtiva on rapina, Dig. 47. 8. 2. 27). Condictio furtiva, not being based on delict, lies against the thief's heir in solidum, Tit. 1. 19 supr., Dig. 13. 1. 7. 2; ib. 9.

The examples given by Gaius (iv. 113) of actions which, though arising ex contractu, are either actively or passively untransmissible, create no difficulty: 'adstipulatoris heres non habet actionem, et sponsoris et fidepromissoris non tenetur.' But Justinian's statement in the text that where a party to a contract has been guilty of dolus his heir is not suable, if he has personally derived no advantage from the fraud, is contradicted by a large number of passages in the Corpus iuris; e.g. Dig. 50. 17.157.2: 'in

2 et contra heredes transeunt. Superest ut admoneamus, quod si ante rem iudicatam is cum quo actum est satisfaciat actori, officio iudicis convenit eum absolvere, licet iudicii accipiendi tempore in ea causa fuisset, ut damnari debeat: et hoc est, quod ante vulgo dicebatur omnia iudicia absolutoria esse.

contractibus successores ex dolo eorum, quibus successerunt, non tantum in id quod pervenit, verum etiam in solidum tenentur' Dig. 44. 7. 12 (which disproves Theophilus' explanation of this passage by the actio depositi) 'et depositi et commodati et mandati et tutelae et negotiorum gestorum ob dolum malum defuncti heres in solidum tenetur,' ib. 49 'ex contractibus venientes actiones in heredes dantur, licet delictum quoque versetur.' It may be that the passage was taken into the text of the Institutes from Gaius without the obsolete example which alone could give it a semblance of truth; but it is better to understand it of cases in which fraud was not remediable by the ordinary action on the contract (i.e. stricti iuris contracts) but only by the actio doli; this being supported by Dig. 4. 3. 17. 1 'haec actio (doli) in heredem datur... de eo quod ad eos pervenit.' Upon this interpretation the expression 'ex contractu actio' of course is loose; all it means is that a delictual action arising from fraud in contractual relations lies in heredem only so far as the inheritance has been enriched by the fraud itself—a principle which has been already stated.

There is no question of transmission when the action has once reached the stage of litis contestatio; from that moment, whatever its character, it bound and entitled the heirs of the defendant and plaintiff respectively in every case.

§ 2. The truth of the dictum 'omnia iudicia esse absolutoria,' which means that even where the defendant is proved to have been in the wrong the trial must end in absolution 'si ante rem iudicatam satisfaciat actori' (Gaius iv. 114), had been disputed by the jurists. The Sabinians had affirmed it in its entirety; the other school admitted it in real and bonae fidei actions, Gaius loc. cit., but from all others they had excluded it as inconsistent with the duty of the iudex as laid down in the formula. In this he was instructed to condemn the defendant if he found that, at the date of litis contestatio, he was bound by the obligatio alleged by the plaintiff si paret . . . condemna. His duty therefore was plain: no occurrence subsequent to litis contestatio could justify him in absolving the defendant if the plaintiff made out his case, not even full satisfaction of the latter's claim before the termination of the action. The only liability of the defendant which could be cancelled by such satisfaction was his liability as it existed before litis contestatio, and that had been already destroyed by the novative operation of litis contestatio itself. Thus the difficulty which the Proculians felt in admitting the maxim in its generality arose entirely from the formula, and consequently with the disappearance of the formula the difficulty disappeared also, and the rule became universal.