secundum cuiusque rei de qua actum est naturam aestimare, quemadmodum actori satisfieri oporteat. - 31, I. h. t.ai 'Actiones populares' are such actions as, conceived in the interest of public order, belong to everybody." 1. In the strict sense, honorary penal actions, in which with the public can be associated a private interest of the plaintiff, although not a pecuniary one.c Paul. Eam popularem actionem dicimus, quae [suum] ius populi tenetur.-1. 1, D. h. t. (de pop. act. 47, 23).2 Id. In popularibus actionibus : quis quasi unus ex populo agit.-1. 43, § 2, D. de proc. 3, 3.3 : Id. Si plures simul agant populari actione, praetor eligat idoneiorem.-1. 2, D. h. t.-Ulp. : is cuius interest praefertur.-1. 3, § 1, eod.' Ulp. Omnes populares actiones neque in heredes dantur, neque supra annum extenduntur. -1. 8 eod." : Paul. Item qui habet has actiones, non intelligitur esse locupletior.-1. 7, § 1 eod.-Ulp. : Si ex populari causa (debeatur), ante litis contes 1 Moreover, certain actions are called capricious, i.e., dependent upon the caprice of the iudex, in which the defendant, unless in the opinion of the iudex he offers satisfaction to the plaintiff, e.g., restores or produces or pays for a thing or gives up a slave because of injury done by him, must be condemned. Such actions occur both in rem and in personam. . . . In these actions. . . the iudex is allowed to decide according to right and equity in relation to the nature of the matter subject of the action, in what way satisfaction should be rendered to the plaintiff. By a popular action we mean that which upholds the right of the people. 3 In popular actions . . . anybody acts as one of the people, If several at one time bring a popular action, the praetor shall select the fittest . . . the person interested is preferred. No popular actions are given against the heirs, or are extended beyond a year. tationem recte dicetur creditoris loco non esse, Paul.: Is qui eam (actionem) movet, procura- Id. Qui ita de publico agant, ut et privatum commodum defendant, causa cognita permittuntur procuratorem dare.—1. 45, § 1, D. de proc.3 2. Those legal, criminal suits for public order by which the State, or the Community, empowers every citizen to take up, in a representative character, such public interest as has been violated, and in which the penalty inflicted goes to the State, a part, however, frequently being given to the plaintiff as a reward. Lex Iulia mun. c. 23 (24, 27): QVEI ... ADVERSVS EA FECERIT IS HS 1000 POPVLO DARE BOOK I. Chapter II. § 25. COMMENCEMENT AND TERMINATION OF ACTIONS; AND OF PRESCRIPTION IN PARTICULAR. The right of action, as authority for summary prosecution, arises (actio nascitur) or can be exercised in real rights upon their infringement; in obligations, as soon as the creditor can demand the fulfilment of the obligation, and the debtor neglects it. The action once begun remains on foot so long as the right to be protected by it, or rather its violation, continues. 1 Likewise he does not appear the wealthier who has this action. If (a debt be owing) in consequence of a popular action, it will be rightly said that before the litis contestatio he is not in the position of a creditor, but is afterwards. He who brings that action cannot appoint a representative. They who proceed because of some public matter, that they may also protect their private interest, are allowed upon investigation of the case to appoint a representative. He... that shall have transgressed this, let him be sentenced to give 50,000 sesterces to the People, and let such money be claimed by whomsoever it pleases. K For the Ro Thus in particular does the action regularly not determine by the death of a party, with the exception First, of act. populares,' the so-called 'vindictam spirantes,' and certain actiones rei persequendae gratia' not having the character of pure Property Law (e.g., act. rei uxoriae,a querela inofficiosi) which are extinguished by the death of the party entitled. Ulp. Iniuriarum actio neque heredi neque in heredem datur.-D. 47, 10, 13 pr.' Paul. Magis enim vindictae quam pecuniae habet persecutionem.-D. 37, 6, 2, 4.1 Secondly, of the act. poenales,' which are extinguished by the death of the party entitled. 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 in heredem non competere, veluti furti, vi bonorum raptorum, iniuriarum, damni iniuriae. Sed heredibus huius modi actiones competunt nec denegantur, excepta iniuriarum actione et si qua alia similis inveniatur.— § 1, I. h. t. (de perp. et temp. act. 4, 12) Gai. iv. 112.3 = 'Litis contestatio,' however, makes all actions transmissible as well actively as passively. Paul. Post litem contestatam heredi quoque 1 The action for injuries is neither given to the heir nor against him. 2 He has more the pursuit of revenge than of money. 3 But not all actions that either attach against any one ipso iure, or are granted by the Praetor, equally attach against the heir or are wont to be granted. For there is a clearly established rule of law, that venal actions arising out of torts do man conception not lie against the heir; e.g., those of theft, of violent robbery, of injuries, of wrongful damage. But actions of this kind are available for heirs and are not denied them, except the action of injury and other like actions, if such are to be found. of Tort, see Maine, Anct. Law,' chap. x. prospicitur et heres tenetur ex omnibus causis.— An exception from the rule, according to which the action exists as long as the right which grounds it, is made by the limitation of actions, i.e., the extinction of the right of action by non-exercise during a certain time this obtains for the greater certainty and stability of Law. BOOK I. Chapter II. In the Classical Law, the absence of such restriction as to civil actions (act. perpetuae) was the rule; the actions depending upon prescription (act. temporales) formed the exception. To the latter belonged especially 'actiones honorariae,' 'praetoriae' (especially poenales), the prescription to which was limited generally to an 'annus utilis' (annales), and aediliciae,' in which the prescription was limited to a still shorter time. There was, besides, for actions in respect of ownership a prescription of from ten to twenty years ('longi temporis praescriptio') under special conditions.a a cf. § 81. -The prescription was made operative in the form of a plea to the action (exceptio). Gai. iv. 110: Quo loco admonendi sumus, eas quidem actiones quae ex lege senatusve consultis profiscuntur, perpetuo solere praetorem accommodare, eas vero, quae ex propria ipsius, iurisdictione pendent, plerumque intra annum dare.(=pr. Inst. h. t.)2 : Paul. In honorariis actionibus sic esse definiendum Cassius ait, ut quae rei persecutionem habeant, hae etiam post annum darentur, ceterae intra annum.-D. 44, 7, 35 pr.3 1 After litis contestatio regard is had also to the heirs, and he is held accountable in all causes. 2 And we must not forget that the Praetor regularly vouchsafes at any time actions arising from a lex or senatus-consulta, but it is within the year that he generally grants those which rest upon his own jurisdiction. 3 In actiones honorariae, Cassius says, it must be laid down BOOK I. Chapter II. Gai. iv. III: Furti manifesti actio, quamvis ex ipsius praetoris iurisdictione proficiscatur, perpetuo datur; et merito, cum pro capitali poena pecuniaria constituta sit.' By a constitution of Theodosius II. (A.D. 424), the 'perpetuae actiones' were made subject to a thirty years' prescription; for certain actions later on, the time. of prescription was extended to forty years. 'Perpetuae actiones' were by this time the actions falling under prescription in thirty years or more; temporales,' those falling under prescription in a shorter time. The prescription begins with the 'actio nata,' without reference to knowledge of the right of action; it is interrupted by the commencement of a suit, not by private remonstrance. The effect of prescription consists in the indirect extinguishment of the right of action, but not-at Cf. §§ 81, 114. least in real rights-of the right that underlies it." Bell, Dict. 8. vv.; Philli more, 'Ecclesi astical Law,' e Cf. § 187. d §194. EFFECT OF ACTS OF PROCEDURE UPON THE § 26. LITIS CONTESTATIO. 'Litis contestatio' was in the Classical Law the tervol. ii. p. 1255. mination of pleadings in iure' by the assignment of a formula; in later Law, a statement by the defendant contradicting the averment of the plaintiff.d By it, the original legal relation between the parties underwent formal transformation. Whereas the parties made their claims depend upon the proceedings that had been initiated (rem in iudicium deducere,' ' iudicium accipere') and submitted beforehand to the arbi that those which embrace a suit for a specific thing are given even after a year, the rest only within the year. 1 The action for manifest theft, although it springs from the Praetor's own jurisdiction, is given at all times; and justly so, since the pecuniary has been imposed instead of the capital penalty. |