statement was incorporated in the formula sent to the judge, and was called the exceptio; it excepted, or took away from the power of the action. (See Introd. sec. 104.) The judge was bound by the instructions he received in the intentio. He could take notice of no reason urged by the defendant why the action should fail, if the only question submitted to him by the prætor was whether the plaintiff had a good ground of action. It was necessary that the prætor should also expressly instruct him to inquire whether the action, however well grounded, ought not to be defeated.

For instance, supposing an action was brought on a stipulation, the formula would run Si paret Numerium Negidium Aulo Agerio sestertium X millia dare oportere. The only question which the judex could have to decide would be, was the stipulation made or not? If it was, the right of the plaintiff to have a sentence in his favour was indisputable. But supposing the prætor went on to add an exception, which was always negative, and say, Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat, then a further inquiry would have to be made: was there any fraud on the part of the creditor which made it unjust that he should recover in the action?

The defendant, in making an exception, was not supposed to admit the truth of the plaintiff's statement. (D. xliv. 1. 9.) The plaintiff had first to prove his intentio, and unless he did so the action failed. Supposing he proved it to the satisfaction of the judex, it was then for the defendant to prove his exception. He affirmed the facts on which the exception rested, and he must prove them; he was in his turn the attacking party. Reus in exceptione actor est. (D. xliv. 1. 1.)

In actions bona fidei, as we have already said (see Tit. 6. 31), exceptions were never used; for here the judge was bound by the character of the action to examine into all the circumstances, and only to condemn the defendant if justice demanded he should do The action itself was said to imply any exception that could be set up. (D. xxxv. 1. 84. 5.)

So.

In the time of Justinian there were, properly speaking, no such things as exceptions. The word came to mean any defence other than a denial of the subsistence of the right of action, which was urged before the magistrate by the defendant.

1. Verbi gratia si metu coactus aut dolo inductus aut errore lapsus stipulanti Titio promisisti, quod non debueras promittere, palam est, jure civili te obligatum esse, et actio, qua intenditur dare te oportere, efficax est: sed iniquum est, te condemnari, ideoque datur tibi exceptio metus causa aut doli mali aut in factum composita ad impugnandam actionem.

1. For instance, if forced by fear, inveigled by fraud, or fallen into a mistake, you promise Titius in a stipulation that which you did not owe him, it is evident that, according to the civil law, you are bound, and the action, in which it is maintained that you ought to give, is validly brought. Yet it is unjust that you should be condemned; and, therefore, to repel the action, you have given you the exception metus causa, or doli mali, or one made to suit the circumstances.

D. xliv. 4. 4. 16. 33; D. xliv. 7. 36.

Errore lapsus, i.e. not a mistake as to the thing forming the subject of the stipulation, for such a mistake would make the stipulation void; but a mistake in the apprehension of some fact which if the defendant had known rightly, he would not have entered into the stipulation. (See Bk. iii. Tit. 19. 23.)

The exceptio metus causa ran thus: Si in ea re nihil metus causa factum est. The exceptio doli mali thus: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat. (D. xliv. 4. 4. 2 and 4.) We may remark that the former is general (fear inspired by any one whomsoever), the latter personal (the fraud of Aulus Agerius), and that the exceptio doli mali relates not only to the character of the action at the particular time when the obligation was formed, but also to its subsequent character, neque factum sit neque fiat. A claim might be perfectly fair in the first instance, and afterwards become only partially so, or even wholly unfair. For instance, the real owner of an estate might claim it, and then find that the possessor, having improved it during the time he held it, is entitled to compensation. If the owner refuses the compensation, his claim, in itself fair, becomes, in the way he urges it, unfair.

In factum composita, i.e. shaped so as to raise the question whether a statement of a particular fact was or was not true. Some particular fact is submitted by the prætor to the judex, instead of such a general inquiry as whether the plaintiff has been guilty of fraud. For instance, to use the example given in the Digest (xlv. 1. 22), the inquiry directed to be made might be whether the plaintiff has not made the defendant believe that the subject of stipulation, which is made of brass, was made of gold.

The exceptio in factum composita was thus, like the actio in factum concepta, opposed to one in jus concepta. For instance, the exceptio doli mali, which was in jus concepta, not only raised a question of fact, but made it requisite that the judex should affix a certain character to the acts of the parties. It may be observed that this general exception doli mali would always answer every purpose which could be gained by using an exception in factum composita; for any particular fact which, if stated as an exception and proved, would furnish a bar to the action, would be taken notice of under the exception doli mali. But the magistrate would not always allow an exception doli mali to be inserted when he would give permission to employ one in factum composita; for infamy was attached to a plaintiff against whom an exception doli mali was proved; and when the plaintiff stood to the defendant in any such near relation as that of patron or ascendant, the magistrate would not allow an exception to be used which would have any further consequence than to protect the defendant. (D. xliv. 4. 4. 16.) The instances of exceptions in the following paragraphs are all instances of exceptions in factum.

2. Idem juris est, si quis quasi 2. It is the same, if any one should credendi causa pecuniam stipulatus stipulate with you for the repayment

fuerit neque numeravit. Nam eam pecuniam a te petere posse eum certum est: dare enim te oportet, cum ex stipulatu tenearis: sed quia iniquum est eo nomine te condemnari, placet, exceptione pecuniæ non numeratæ te defendi debere, cujus tempora nos, secundum quod jam superioribus libris scriptum est, constitutione nostra coartavimus.

of money he is to lend you, and then does not pay to you the sum borrowed; in such a case, he could certainly demand from you the amount you have engaged to repay him, and you are bound to give it, for you are tied by the stipulation. But as it would be unjust that you should be condemned in such an action, it has been thought right you should have the defence of the exception pecuniæ non numeratæ. The time within which this exception can be used, has, as we have said in a former Book, been shortened by our constitution.

GAI. iv. 116; C. iv. 30. 14.

Quasi credendi causa, i.e. had made the defendant promise to pay a sum, as if he, the plaintiff, were going to lend the sum to the defendant.

It will be remembered that, in this exception, the burden of proof was on the plaintiff, instead of, as in other exceptions, on the defendant, and then it must be pleaded within originally one and then five years, a term reduced by Justinian to two years. (See Bk. iii. Tit. 21.)

3. Præterea debitor si pactus fuerit cum creditore, ne a se peteretur, nihilo minus obligatus manet, quia pacto convento obligationes non omnimodo dissolvuntur: qua de causa efficax est adversus eum actio, qua actor intendit 'si paret eum dare oportere.' Sed quia iniquum est, contra pactionem eum damnari, defenditur per exceptionem pacti conventi.

3. Again, the debtor who has agreed with his creditor that payment shall not be demanded from him, still remains bound. For an agreement is not a mode by which obligations are always dissolved. This action, therefore, in which the intentio runs, 'If it appears that he ought to give,' may be validly brought against him; but as it would be unjust that he should be condemned in contravention of the agreement, he may use in his defence the exception pacti conventi. GAI. iv. 116.

Obligations formed re or verbis could not be dissolved by a simple pact. As the contract was a subsisting one, an exception was necessary. The exception pacti conventi ran thus: Si inter Aulum Agerium et Numerium Negidium non convenit, ne ea pecunia peteretur. (GAI. iv. 119.)

4. Eque si debitor deferente creditore juraverit, nihil se dare oportere, adhuc obligatus permanet; sed quia iniquum est, de perjurio quæri, defenditur per exceptionem jurisjurandi. In his quoque actionibus, quibus in rem agitur, æque necessariæ sunt exceptiones: veluti si petitore deferente possessor juraverit, eam rem suam esse, et nihilo

4. So, too, if the debtor, when the creditor challenges him to swear, affirms on oath that he ought not to give anything, he still remains bound. But as it would be unjust to examine whether he has perjured himself, he is allowed to defend himself with the exception jurisjurandi. In actions in rem, these exceptions are equally necessary; for instance, if the possessor, on

minus eandem rem petitor vindicet: licet enim verum sit, quod intendit, id est rem ejus esse, iniquum est tamen, possessorem condemnari.

being challenged by the claimant, swears that the property is his, and yet the plaintiff still persists in his real action. For the claim of the plaintiff might be well founded, and yet it would be unjust to condemn the pos

sessor.

D. xi 2. 9. pr. and 1; D. xii. 2, 3. 1; D. xii. 2. 11. 1.

The exceptio jurisjurandi was only necessary when the question whether the defendant had accepted the oath when offered him was disputed. If it was acknowledged, the prætor would not give an action at all. (D. xii. 2, 3.) The oath terminated the right of the plaintiff to an action, being looked on as a sort of compromise by which the action was settled; jusjurandum speciem transactionis continet, majoremque habet auctoritatem quam res judicata. (D. xii. 2. 2.)

5. Item si judicio tecum actum fuerit sive in rem sive in personam, nihilo minus ob id actio durat et ideo ipso jure postea de eadem re adversus te agi potest: sed debes per exceptionem rei judicatæ adjuvari.

5. Again, if an action real or personal has been brought against you, not the less because it has been so brought does the action endure, and, in strict law, an action might still be brought against you for the same object, but you are to be protected by the exception rei judicatæ.

GAI. iv. 106, 107.

Under the system of the actions of law, if a cause had once been decided, no further action could again be brought on the same grounds (GAI. iv. 108); but this was not the case under the prætorian system. To understand the effect of a previous action having been brought under the prætorian system, we must notice the distinction drawn by Gaius in the part of his Fourth Book which treats of exceptions between judicia legitima and judicia imperio continentia. Judicia legitima, i.e. proceedings founded on the old jus civile, were those in an action given in the city of Rome, or within the first milestone round the city, between Roman citizens, and tried by a single judge. Judicia imperio continentia, i.e. proceedings measured by the authority of the prætor, were those in an action given out of Rome, or tried by recuperatores, or one or both parties to which was a peregrinus, or were peregrini. Judicia imperio continentia were only in full force during the time of office of the magistrate who gave the formula, and therefore the plaintiff who subsequently brought an action for the second time had to be met with an exception. With respect to judicia legitima, a further distinction is to be made. If they were in rem or in factum, the nature of these actions prevented the litis contestatio in their case operating in the way of a novation (see Book iii. Tit. 29. 3, note); and therefore, if a fresh action was brought, the defendant had to repel it by the exception rei judicata. Accordingly we may say, in brief, that under the

prætorian system none but judicia legitima in personam extinguished the right of action, and therefore in all other cases an exception was necessary.

In the time of Justinian these distinctions had disappeared, and therefore he says generally that the res judicata produces an exception. It was to have the same force as it had formerly had in the case of judicia imperio continentia, and not that it had received in judicia legitima. Whether the action was real or personal, as the text informs us, the action still subsisted, and, no novation having taken place, a second action could only be repelled by an exception. But, practically speaking, under the system of judicia extraordinaria, as the judge did not receive instructions from a magistrate, and was not bound within the limits of a formula, the distinction between the res judicata operating as a bar or as an exception was a very immaterial one.

In order that a res judicata should be available either as a bar or an exception, it was necessary that there should have been, in the former action, the same thing as the subject-matter of the litigation, the same quantity, the same right, the same ground of action, the same parties. Cum quæritur hæc exceptio noceat necne, inspiciendum est an idem corpus sit, quantitas eadem, idem jus: an eadem causa petendi, eadem conditio personarum -quæ nisi omnia concurrant, alia res est. (D. xliv. 2. 12. Bk. 14.)

Gaius also mentions the exceptio rei in judicium deductæ, i.e. that the case was already before the tribunal, as where, one of two promissors (duo rei promittendi) having been sued, the other if sued could say that the case was already in the way of adjudication, having reached the stage of the litis contestatio, and might be ended within the appointed time, i.e. within eighteen months if it was a judicium legitimum, or within the duration of the power of the magistrate if it was imperio continens. See introductory note to Tit. 6. (GAI. iv. 106, 107.)

Litis contestatio. It may be convenient here to notice what was meant by the litis contestatio in the time of Justinian. Under the system of extraordinary procedure there was no longer that distinction of the proceedings which had obtained under the formulary system according as they were in jure (before the magistrate) or in judicio (before the judge). The litis contestatio was, in the formulary system, the last step in the proceedings before the magistrate. When he appointed the judge, the rights of the parties were fixed as they were at that epoch. Under the system of extraordinary procedure the same magistrate heard the case throughout. (See Introd. sec. 105. 111.) The epoch, so precise under the formulary system, for fixing the rights had now no place. For many purposes, however, it was necessary that some epoch should be fixed; and the epoch chosen was when the magistrate began to take cognisance of the cause by having the case for the plaintiff stated before him (C. iii. 9. 1); and the expression litis