tration of the iudex, they entered into a new, a quasicontractual relation which absorbed their previous relation, having become subject of dispute. The following results accordingly ensued from the L.C. BOOK I. Chapter II. Actio consumitur': the right of action is once for all extinguished-ipso iure, or by means of the 'exceptio rei in iudicium deductae;'a that is, the After deliplaintiff can henceforth no more prosecute the same claim against the defendant." Gai. iv. §§ 106, sq.: Et si quidem imperio continenti iudicio actum fuerit, sive in rem sive very of the judgment, this was replaced by the exc. rei iu dicatae. Consump tion' of the eadem re ne inten- sit actio. 202. in personam, sive ea formula quae in factum action, ‘bis de In place of the extinguished right of action, there arose for the plaintiff a claim to judgment against the defendant under the special conditions and terms set up in the formula, to which was opposed the claim 'Now if proceedings have been taken by an action covered by the authority of the magistrate, whether they were in rem or in personam, whether the formula was one formed upon the facts or containing a civil law claim, another action may nevertheless ipso iure be subsequently brought about the same matter; and therefore a plea of res iudicata or of a pending action is necessary. But if proceedings in personam have been taken by legitimum iudicium, with a formula having a civil law claim, there cannot ipso iure be a subsequent action about the same matter, and therefore the plea is superfluous. But if the proceedings taken be in rem or based on the facts, a subsequent action can be brought ipso iure, and therefore the plea of res iudicata or of a pending action is necessary. BOOK I. Chapter II. of the defendant to acquittal under reverse conditions. Gai. iii. §§ 180, sq.: Tollitur adhuc obligatio litis contestatione, si modo legitimo iudicio fuerit actum : nam tunc obligatio quidem principalis dissolvitur, incipit autem teneri reus litis contestatione; sed si condemnatus sit, sublata litis contestatione, incipit ex causa iudicati teneri. Et hoc est quod apud veteres scriptum est: ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere. § Unde fit, ut si legitimo iudicio debitum petiero, postea de eo ipso iure agere non possim, quia inutiliter intendo 'dari mihi oportere': quia litis contestatione dari oportere desiit.' By it at the same time is determined the material effect of the L.C., the subject of judgment being the legal relation as existing at the moment of the L.C.; the time of the L.C. is accordingly decisive as regards the conditions of condemnation (existence of the plaina Vat. fgm. 12. tiff's claim)" as well as its subject and scope. §§ 73, 90. C § 188. Gai. iv. 114 Superest ut dispiciamus, si ante rem iudicatam is cum quo agitur, post acceptum iudicium satisfaciat actori, quid officio iudicis conveniat, utrum absolvere, an ideo potius damnare, quia iudicii accipiendi tempore in ea causa fuerit, 1 Moreover, an obligation is dissolved by joinder of issue, provided steps are taken by a statutable action. For then the original obligation is dissolved, and the defendant begins to incur an obligation by issue joined; but if judgment go against him, the issue joined falls through and he begins to be bound by the judgment. And this is the meaning of what is said by ancient writers, that before joinder of issue the defendant ought to pay, after joinder of issue he ought to be condemned, after condemnation he ought to satisfy the judgment.' Hence it follows that if I have sued for a debt by legitimum iudicium, I cannot later on sue in respect of it ipso iure, because I fruitlessly state my claim to be that it ought to be given to me;' for by joinder of issue the duty to give has ceased. ut damnari debeat; nostri praeceptores absolvere Ulp. In hac actione sicut in ceteris bonae Paul. Cum fundus vel homo petitus esset, puto hoc nos iure uti, ut post acceptum iudicium causa omnis restituenda sit, i.e. omne quod habiturus esset actor, si litis contestandae tempore solutus fuisset.-D. 12, 1, 31 pr.3 § 27. JUDGMENT, AND THAT WHICH REPRESENTS IT. The suit is ended by the sententia,' judgment or decision; ie., the sentence of the judge regularly containing a condemnation or absolution of the defendant.a BOOK I. Chapter II. The signification of the judgment is such that a § 202. it definitely decides the legal relation in issue, and 1 It remains for us to consider what is the duty of the iudex when the defendant, having submitted to arbitration, but before award, makes satisfaction to the plaintiff. Ought he to acquit or rather to condemn, because at the time of submission to arbitration the defendant was in such a position that he ought to be condemned? The leaders of our school hold that he ought to acquit, and that it matters not what kind of action it was. And this is what is meant by the common saying that Sabinus and Cassius judged that all actions allow of acquittal. In this action as in the other actions bonae fidei ... regard is had to the time when the matter is decided in determining the value, although in [actions] under the strict Law the time of joining issue is looked to. 3 When land or a man had been claimed, I am of opinion ... the law followed by us would be that after submission to arbitration, the whole legal estate should be given up, that is, all that the plaintiff would have had if it had been offered at the time issue was joined. BOOK I. Chapter II. accordingly, even if it be materially wrong, yet possesses formal truth, i.e., passes as right uncondi a Cf. Pollock, tionally and irreversibly it has the force of Law, is 'Essays in Jurisprudence,' pp. 237-260, and Clark, 'Pract. Juris prudence,' pp. The 214, 899. article in Holtzendorff's 'Rechts-Lexicon,' referred to by Prof. Clark (p. 224), is neither exaet nor complete; mation would better infor Mod. Res iudicata dicitur quae finem controversiarum pronuntiatione iudicis accipit, quod vel condemnatione vel absolutione contingit.— 1. I, D. de re iud. 42, 1.1 : Ulp. Res iudicata pro veritate accipitur.— D. 50, 17, 207.20 The negative operation of the 'res iudicata' consists in the consumption of the right of action, the exceptio r. i.' (instead of and besides the exc. r. in iud. deductae), which is here based upon the mere actual Reichsgericht. existence of the judgment. Its positive operation is be found in that on the Cited by Coke on Littleton, 103 a. c § 26. (1) The grounding of a new obligatory relation of the parties in lieu of that created by the L.C., the subject of which is the 'iudicatum facere oportere' -the obligatio, actio iudicati.' с Ulp.:sicut stipulatione contrahitur, ita iudicio contrahi; proinde non originem iudicii spectandam, sed ipsam iudicati velut obligationem.D. 15, 1, 3, 11.3 Id. Iudicati actio perpetua est et rei persecutionem continet; item heredi et in heredem competit. 1. 6, § 3, D. de re iud." (2) The conclusively binding decision which grounds judgment against the defendant, or his absolution, upon the actual right in issue (especially with actiones 1 A res iudicata is so called in which the suit is concluded by the sentence of the iudex. This happens either by a judgment against the defendant or by his absolution. 2 A res iudicata is regarded as founded in truth. 3 That just as a contract is entered into by stipulation, such likewise arises from his being involved in an action; therefore one must not look to the commencement of the suit, but, as it were, to the obligation arising out of the decision. 4 The action arising out of a judgment is continuous, and carries with it the claim of the thing. It is available both by the heir and against him. in rem), which is upheld in its positive or material function" against subsequent infringements also, by means of the exc. (or even repl.) rei iudicatae.' The exc. rei iudicatae' attaches as soon as the same question of law is raised between the same parties as subject of a new action. : с BOOK I. Chapter II. a Based upon the contents of the judg ment. ¿ See § 90. c Res iudicata ius facit inter Macer. Saepe constitutum est, res inter alios partes.' Ulp. Ita definiri potest, totiens eandem rem Paul. Actiones in personam ab actionibus in rem hoc differunt, quod cum eadem res ab eodem mihi debeatur, singulas obligationes singulae causae sequuntur nec ulla earum alterius petitione vitiatur; at cum in rem ago non expressa causa, ex qua rem meam esse dico, omnes causae una petitione adprehenduntur: neque enim amplius quam semel res mea esse potest, saepius autem deberi potest.-1. 14, § 2 eod.3 1 In numerous constitutions it is stated that as between other parties judgments do no detriment to any one. 2 One can here lay down as a rule that the same thing is claimed whenever the same question comes before the later iudex as the earlier one. And in general one may say with Jul. that the plea of a res iudicata avails whenever the same question is dealt with between the same persons although in another set of proceedings. When, moreover, any one changes an action and then goes on suing, provided that it concerns the same object, although in a different sort of action from that which he had begun, he appears to sue for the same object. 3 Actions in personam are distinguished from those in rem |