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Finally, it may be remarked that all actions are absolutoriæ, that is, if, after the proceedings have commenced, the formula has been given, or an equivalent stage reached, the defendant satisfies the plaintiff, the judge must absolve the defendant, and need not go on in any case to give sentence. (2.)
EXCEPTIONS.—If the plaintiff's action is well founded, but there is any reason why it is unjust that it should be effective against the defendant, he can avoid its effect by the introduction of an exception, allowed by some particular law, or by the prætor (Tit. 13. 7), into the formula, while the formulary system lasted. In actions bonæ fidei it was not necessary that the exception should be pleaded, as the judex took cognisance of all matters that would form the groundwork of an exception. In other actions, actiones stricti juris, in factum, arbitrariæ, including actions in rem (Tit. 13. 4), and penal, the exception had to be pleaded, and the defendant had to prove it, just as the plaintiff had to prove his case. Under Justinian an exception meant any defence other than a denial of the subsistence of the alleged right of action. (Tit. 13. pr.)
The following instances of exceptions are given, and are all supposed to be pleaded to an action ex stipulatu. 1. Error. A mistake not as to the subject of the stipulation, but as to some fact which was not known to the defendant, and which, if known, would have prevented his promising; 2, metus causa, a general exception, fear caused by any one; 3, doli mali, the bad faith of the plaintiff himself, either when the obligation was formed or subsequently; 4, in factum (1), that is, the prætor merely stated a circumstance which, if established, was to bar the action of such exceptions. The following examples are given :-(a) Pecuniæ non numeratæ, when a person agreeing to lend money, and stipulating for its repayment, does not really pay it. Here the plaintiff had to prove that he had really paid the money, but the exception could only be pleaded within five years before Justinian, and two years under Justinian (2); (b) pacti conventi, when the plaintiff has agreed not to demand payment, but the contract, as being verbis or re, could still be sued on (3); (c)jurisjurandi, when, the plaintiff having challenged the defendant, and the defendant having denied his liability, the plaintiff went on with the action. (4.) The exceptio doli mali covered all cases of exceptions in factum, and might be pleaded in lieu of them, except that, as its being found true carried infamy with it, the magistrate would not allow it to be employed when the plaintiff was a patron or ascendant (1, note); 5, rei judicate, that judgment had already been given in the matter, it being necessary that there should have been in the former action the same subject matter of litigation, the same quantity, the same right, the same ground of action, the same parties. If the former action was a judicium legitimum in personam, the right of action was extinguished, and no exception was necessary. If it was a judicium legitimum in rem, or in factum, or was a judicium imperio continens, the right of action not being extinguished by novation, the exceptio rei judicatoe was necessary to stop the second action. Under Justinian the exception was in every case necessary.
Gaius also mentions the exceptio rei in judicium deductae, i.e. that the case was already before the tribunal, the time within which sentence was obliged to be given not having elapsed. (5, note.)
Exceptiones perpetuæ, temporariæ, peremptoriæ, dilatoriæ. — Exceptions were either perpetuæ, i.e. could be used by the defendant without restriction of time, or temporales, i.e. were subject to such a restriction; and they were peremptoriæ, i.e. put an end to the litigation, or dilatorice, i.e. only stopped it for a time. (8.) Perpetual exceptions were always peremptory; as instances are given the exceptions doli mali, metus causa, and pacti conventi, if the agreement has been that no demand shall be at any time made. Temporary exceptions were always dilatory. As an instance is given that of pacti conventi, when the agreement has been that no demand shall be made during a given time, e.g. five years. If he sued before the five years had elapsed, the plaintiff might be repelled by an exceptio. Previously, if the plaintiff was thus repelled, he was guilty of plus-petitio in regard of time, and could take no further proceedings. Under a constitution of Zeno, the plaintiff suing prematurely had to wait twice as long as he ought to have waited, and he must reimburse the defendant for all losses sustained through the demand being premature. (10.) As another instance, Gaius gives that of a plaintiff suing under the same prætorship for another part of a thing (10, note), for one part of which he had already sued. Some dilatory exceptions have regard, not to the thing sued for, but to the person, as when objection was taken to a procurator, that he or she was a soldier or a woman, as neither could act as procurator, or that he was an improper person, as having been stamped with infamy; but Justinian did away with exceptions on this last ground. (11.)
Prescriptions.—Gaius notices prescriptions after noticing exceptions, i.e. limitations of the action entered on behalf of the plaintiff, as, for example, to confine the action to so much of the plaintiff's right as had produced an existing liability, or for the defendant, as the prescriptio longi temporis ; but prescriptions for the defendant had already, in the time of Gaius, been classed among exceptions. (11, note.)
REPLICATIONS.— There might be an exception to an exception, i.e. there might be grounds on which the exception, although founded on fact, could not be allowed to operate, as if an agreement had been made not to sue, and then this agreement had been rescinded. In this case a replication that the agreement had been rescinded would be inserted, to do away with the effect of the exceptio pacti conventi (Tit. 14. pr.), and so there might be a duplicatio (1) to a replicatio, and there might be even, if necessary, a triplicatio. (2.)
Exceptions may be divided into rei cohærentes, affecting the rights to claim, and personæ cohærentes, protecting the debtor personally, as the exceptio pacti conventi. As a general rule, the fidejussores of the defendant could use all the exceptions the defendant could use ; but this was not universally true of exceptiones cohærentes persona. For a debtor who had made a cessio bonorum was protected from the actions of his creditors by the exception nisi cesserit bonis ; but his fidejussores could not use this exception, as the very object of their suretyship was to guard against the debtor not being able to pay. (4.)
INTERDICTS.—We now come to what became a preliminary step under the prætorian system to the commencement of one kind of actions, those that regarded possession and quasi-possession, i.e. the possession of servitudes. The prætor issued an interdict or decree regulating possession, and then, if the facts on which the applicant relied were contested by the other party, the prætor threw the decree into the shape of an action to be decided according to the real facts. Probably the prætor interfered by interdict to protect and determine possession before he gave actions to try the right to possession, and not improbably the interests arising out of the possession of the ager publicus may have first suggested the prætorian intervention by interdicts. Gradually the action was regarded as the point of real importance, although, as the granting of the action depended on the rules as to interdicts, the study of these rules preserved its importance. By the time of Justinian interdicts had become wholly obsolete, and all questions as to possession were determined by actions without recourse being had to the preliminary step of interdicts.
The interdict was issued by the magisterial authority of the prætor, and interdicts always bore traces of their origin in two ways. 1. First issued as special edicts to meet special cases, they were afterwards issued under standing regulations incorporated in the prætorian edict, but they were always, perhaps, theoretically grounded on infractions of public order, and the time in which some possessory interdicts had to be applied for (one year) connects them with the law of delicts. 2. They were all, directly or indirectly, connected with possession, with keeping things as they ought to be.
They were of three main kinds :-(a) Prohibitory, (b) Restitutory, and (c) Exhibitory. By the first the prætor ordered something not to be done which infringed the use of something public, as a road, or of something which, for the sake of public order, he protected, as the right of possession of individuals. By the second the prætor ordered things to be put into the state they were in before something wrong had been done, as, e.g., buildings to be demolished, which impeded the use of a public river or its banks; or possession to be given or restored to the right person. By the third the prætor ordered the thing or person, if it was a person that formed the subject of contest, to be produced by the person who had got hold of it, so that the claimant might not be prejudiced by the thing being concealed.
Gaius understood interdicere as' to prohibit,' and says that prohibitory interdicts alone ought strictly to be called interdicts, and interdicts of the other kinds ought to be called decreta. Justinian says, all may be called interdicts, as he considers interdicere to mean to pronounce between two parties. (Tit. 15. pr. note.)
If the interdict was prohibitory, the parties in the time of Gaius bound themselves by a wager, in a sum to be paid by the losing party in the action. If the interdict was restitutory or exhibitory, the action was arbitraria, and the judex issued his preliminary order against the party concerned, and, in the event of its not being obeyed, gave a condemnatio quanti ea res erat. (8, note.)
Those interdicts, which distinctly referred to the possessory rights of private persons, were given to acquire, to retain, or to recover possession, those to retain possession being prohibitory, and those to acquire or to restore being restitutory. (2.)
1. Adipiscende possessionis causa.—The chief interdict under this head was that known as quorum bonorum, given to secure the possession to those whom the prætor, contrary to the rules of civil law, treated as having a right to an inheritance. It was given against two classes of persons: (a) persons possessing pro herede, i.e. thinking themselves to be the real heirs ; (b) persons possessing pro possessore (prædones), i.e.
persons merely possessing without any claim of title. It was given · against both classes, even if the term of usucapion had run in their favour, and also against them if they bad through their own dolus malus ceased to possess. (3.)
This interdict was never given except to a person getting possession for the first time, so that restituas, the word in the formula, must be used (as well as the term restitutory applied to interdicts) in a very wide sense. (3.)
Under this head was also given the interdictum Salvianum, by which an owner of a rural estate got possession of the goods of the occupier (and probably even if they had passed into third hands) in case of non-payment of rent. This interdict was a step historically to the actio Serviana. (3.)
2. Retinenule possessionis causa. The two main interdicts under this head were those uti possieletis and utrubi possidetis, the former applying to immoveables and the latter to moveables. The object of these interdicts was to determine which of two disputants as to ownership was entitled to the possession, and to have this point determined in his favour was of great advantage to a disputant, as he remained in possession if his adversary failed to show he was the real owner. The interdict uti possidetis had to be applied for within a year after the possession had been in any way threatened. Previously to Justinian the interdict utrubi possidetis was given to that disputant who himself, or by any one through whom he claimed, had been in possession during the greater part of the preceding year. Under Justinian possession was confirmed to the person in possession at the time of the litis contestatio, provided (which had always been a condition as to both interdicts) that he had not obtained his possession as against his adversary clam, vi, or precario, the last term meaning by permission of the adversary. (4.)
Only persons having civilis possessio or naturalis possessio, with the animus of ownership, could obtain these interdicts. Persons simply in possessione, detaining the thing without the animus possidendi, could not obtain them, but the person on behalf of whom such persons were in possessione, possessed through them : thus the owner possessed through
the tenant, or the depositor through the depositary, or the lender through the borrower. Without the animus there can be no interdictory possession, but if a person has the animus he need not always have the corporeal detention, as, for example, if a man uses in the season an Alpine pasture and leaves it when the season is over with the intention of returning to it, he still possesses it. (5.)
3. Reciperan'le possessionis causa.—The main interdict under this head was that unde vi. Here, there having been an illegal use of violence, the wrongdoer had to restore possession, although the person to whom he restored it had himself got it from him clam, vi, or precario. In the days of the Republic there had been a distinction according to the kind of violence used. If the violence had been ordinary (quotidiana), the possession would only be restored if it had not been obtained by the applicant clam, vi, or precario, and the application must be made within a year. If the violence had been armata, the possession was restored, although obtained vi, clam, or precario, and there was no limit as to the time for asking for the interdict. This distinction, however, had become obsolete before the time when the formula of the interdict was shaped as it is found in the Digest.
The interdict unde vi only applied to immoveables. But by a constitution of A.D. 389 it was provided that any one who seized on anything with violence should lose the ownership if it was his, or give it up, and also pay its value, if it was not. This constitution applied to moveables as well as immoveables. (6.)
Previously to this constitution, possession of moveables had been recovered by the interdict utrubi, and both this and the interdict uti may be looked on as means of recovering as well as of retaining possession. But the employment of the interdict unde vi had, as compared with that uti possidetis, the following advantages : (a) it could be used when a third person was in possession; (6) it gave the fructus from the time of ejectment, not that of the commencement of proceedings; (c) it was given although the possession had been obtained as against the adversary vi, clam, or precario; (d) it included moveables on the estate. (6, note.)
Simple, double Interdicts. The interdicts uti possidetis and utrubi may be said to be double, i.e. each party is at once plaintiff and defendant, as opposed to other interdicts, where one party claims and the other defends. (7.)
Two points with regard to the proceedings in actions remain to be noticed : 1, the checks on reckless litigation ; 2, the duty of the judge.
1. CHECKS ON RECKLESS LITIGATION.—A summary is given at page 495 of the checks on reckless bringing or defending actions in the time of Gaius. Under Justinian, both parties were obliged to swear, the plaintiff de calumnia, that he was not bringing an action vexatiously or without cause, the defendant that it was from a belief in the justness of his cause that he resisted the demand of the plaintiff; and the advocates of both parties had also to take an oath. The plaintiff was liable to pay damages and costs. (Tit. 16. 1.)