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promissioni cum jurejurando, quam until the end of the suit. For this juratoriam cautionem vocant, vel security recourse may be had to the nudam promissionem vel satisdatio- promise on oath of the party, when the nem pro qualitate personæ suæ dare security is called a cautio juratoria, or compellitur.
to his simple promise without oath, or to a satisdatio, according to the quality
of the person.
C. xii. 1. 17. In judicio permaneat. An earlier writer would probably have pointed out that the cautio was given, when the parties were before the prætor, that the defendant would go before the judex. But in Justinian's time the distinction of in jure and in judicio was done away.
We gather from the text, that whereas under the old law the defendant would have had to give security both for the payment of the amount at which the subject-matter of the action was valued, and that he would appear to defend himself (pro re defendenda, or, as here, in judicio permaneat), under Justinian's legislation, he did not engage at all for the former, and for the latter he did not necessarily give the security of a fidejussor, but, if a vir illustris (see Tit. 4. 10), only pledged himself by oath, or even by a simple promise. (C. xli. 1. 17.)
3. Sin autem per procuratorem 3. But, where a suit is commenced lis vel infertur vel suscipitur, in ac- or defended by a procurator, if the toris quidem persona, si non man- procurator of the plaintiff does not datum actis insinuatum est vel either register a mandate of appointpræsens dominus litis in judicio ment, or if the person who really procuratoris sui personam confirma- brings the action does not himself verit, ratam rem dominum habi- appear before the judge to confirm the turum satisdationem procurator appointment of the procurator, then dare compellitur, eodem observando the procurator himself is obliged to et si tutor vel curator vel aliæ tales give security that the person for whom personæ, quæ alienarum rerum gu- he acts will ratify his proceedings. bernationem receperunt, litem qui The same rule applies also if a tutor, busdam per alium inferunt.
curator, or any other person, who has undertaken to manage the affairs of another, brings an action through a
third party. 4. Sin vero aliquis convenitur, si 4. As to the defendant, if he apquidem præsens procuratorem dare pears and wishes to appoint a proparatus est, potest vel ipse in judi- curator, he may either himself come cium venire et sui procuratoris per before the judge, and there contirm sonam per judicatum solvi satisda- the authority of the procurator, by tionis sollemnes stipulationes firmare giving with a solemn stipulation the vel extra judicium satisdationem ex- caution called judicatum solvi, or he ponere, per quam ipse sui procura- may give such a security elsewhere, toris fidejussor existit pro omnibus and become himself the fidejussor of judicatum solvi satisdationis clau- his own procurator, as to each clause sulis. Ubi et de hypotheca suarum of the caution judicatum solvi ; and he rerum convenire compellitur, sive in is compelled to subject all his property judicio promiserit sive extra judi- to a hypotheca, whether he promises cium caverit, ut tam ipse quam before the judge or not, and this obliheredes ejus obligentur: alia insuper gation binds not only himself but his cautela vel satisdatione propter per heirs. He must also give further sesonam ipsius exponenda, quod tem- curity as to his own person, that he pore sententiæ recitandæ in judicio will himself appear at the time when invenietur, vel si non venerit, omnia judgment is given, or that, if he fails dabit fidejussor, quæ condemnatione to do so, his fidejussor will pay all that continentur, nisi fuerit provocatum. is fixed to be paid by the sentence, un
less the decision is appealed against. For the clausulæ of the cautio judicatum solvi, see note on the introductory paragraph of this Title.
Alia insuper cautela. This was to insure that the actio judicati should be given against the real dominus litis.
5. Si vero reus præsto ex qua- 5, But if, from any cause, a defendcumque causa non fuerit et alius ant does not appear, and another pervelit defensionem subire, nulla dif- son is willing to defend the action for ferentia inter actiones in rem vel him, he may do so (nor does it make personales introducenda, potest hoc any difference whether the action is facere, ita tamen ut satisdationem real or personal), but he must give judicatum solvi pro litis præstet security judicatum solvi to the amount æstimatione. Nemo enim secundum of what is at stake ; for, according to veterem regulam, ut jam dictum est, the old rule of law we have just menalienæ rei sine satisdatione defensor tioned, no one is held a competent deidoneus intellegitur.
fendant for another without giving se
curity. 6. Quæ omnia apertius et per- 6. All this will be learned more fectissime e cottidiano judiciorum clearly and fully by observation of the usu in ipsis rerum documentis ap- ordinary judicial proceedings in cases parent.
which may serve as examples. 7. Quam formam non solum in 7. We order that these rules shall hac regia urbe, sed et in omnibus be observed not only in this our royal nostris provinciis, etsi propter im- city, but also in all our provinces, peritiam aliter forte celebrantur, although other usages may be now optinere censemus, cum necesse est adopted there through ignorance; for omnes provincias caput omnium it is necessary that all the provinces nostrarum civitatum, id est hanc should conform to the practice of our regiam urbem, ejusque observantiam royal city, which is supreme above all sequi.
Tit. XII. DE PERPETUIS ET TEMPORALIBUS ACTIO
NIBUS, ET QUÆ AD HEREDES VEL IN HEREDES TRANSEUNT.
Hoc loco admonendi sumus, eas We ought here to observe that the quidem actiones, quæ ex lege sena- actions derived from a law, from a tusve consulto sive ex sacris con- senatusconsultum, or from imperial constitutionibus proficiscuntur, perpe- stitutions, could formerly be exercised tuo solere antiquitus competere, at any length of time, however great ; donec sacræ constitutiones tam in until imperial constitutions assigned rem quam personalibus actionibus fixed limits both to real and to personal certos fines dederunt : eas vero, quæ actions. Of the actions derived froin ex propria prætoris jurisdictione the jurisdiction of the prætor, the pendent, plerumque intra annum greater part last only during one year, vivere (nam et ipsius prætoris intra for this was the limit of the prætor's annum erat imperium). Aliquando authority. Sometimes, however, these
tamen et in perpetuum extenduntur, actions are perpetual, that is, last until id est usquead finem constitutionibus the time introduced by the constitaintroductum, quales sunt hæ, quas tions ; such are those given to the bonorum possessori ceterisque, qui bonorum possessor and to others standheredis loco sunt, accommodat. ing in the place of the heir. The acFurti quoque manifesti actio, quam- tion furti manifesti, also, though provis ex ipsius prætoris jurisdictione ceeding from the jurisdiction of the proficiscatur, tamen perpetuo datur: prætor, is yet perpetual, for it seemed absurdum enim esse existimavit, absurd to limit its duration to a year. anno eam terminari.
Gal. iv. 110, 111.
In the introductory note to Title 6, it has been said that we may ask as to actions, within what time they may be brought, within what delay the proceedings must be finished, and what is the effect of a judgment in case of fresh proceedings being instituted. The second of these points is not noticed in the Institutes, the rules as to the period of finishing the suit having become obsolete. The third is treated of in the next Title. We have now to consider the first, namely, how long the right of action lasted from its inception, i.e. from the time when the plaintiff could have brought an action.
Under the formulary system, the general rule was that actions arising from the law, a senatusconsultum, or constitutions, including an action arising out of the old civil law, were perpetual ; that is, there was no limit to the time in which they could be brought. On the other hand, prætorian actions were annual, i.e. must be brought within an annus utilis, or year made up of days in which there was no obstacle to the plaintiff appearing in court, so that more than twelve months might be included. This time of a year was probably suggested by the duration of the prætor's office, but it had nothing to do with any one prætor being in office. It was merely a limited time during which the prætor, in creating an action, fixed that it must be brought.
To the rule that prætorian actions were annual, there were, however, exceptions of a very wide kind. The text mentions the actions given to a bonorum possessor, and to every one placed in loco heredis, and also the prætorian action for furtum manifestum, which was perpetual because it was a commutation of capital punishment. (Gal. iv. 111.) Further, all prætorian actions rei persecutorice, for the sake of the thing, including all actions on contracts for the simple value, were perpetual, unless the action was one not extending, but directly contradicting, the civil law, when it was annual. An example will show what was meant by this distinction. The actio Publiciana (Tit. 6. 4), given to extend the operation of usucapion, was perpetual, but the actio quasi-Publiciana, given to rescind usucapion (Tit. 6. 5), was annual. (D. xliv. 7. 35. pr.) We may, therefore, almost reverse the description of prætorian actions, and say that they were perpetual except when they were (1) penal (the actio furti manifesti being, however, perpetual), or (2) rei persecutoriæ, but in direct opposition to the civil law.
In A.D. 424, Theodosius II. enacted that, as a general rule, actions, real or personal, should not be brought after a lapse of thirty years. (C. vii. 39. 3.) Subsequently the time was, in the case of some actions, as in that of an actio hypothecaria, when the thing hypothecated remained in the hands of the debtor, extended to forty years. (C. vii. 39. 71.) The term perpetua, however, still continued to be applied to these actions, though, properly speaking, in the time of Justinian it meant nothing more than an action which could be brought within thirty or forty years, as opposed to those which could only be brought within a shorter period.
timbe applied 1.) Thes of the
1. Non omnes autem actiones, 1. It is not all the actions allowed quæ in aliquem aut ipso jure com- against any one by the law, or given petunt aut a prætore dantur, et in by the prætor, that will equally be heredem æque competunt aut dari allowed or given against his heir. For solent. Est enim certissima juris it is a fixed rule of law, that penal regula, ex maleficiis poenales ac- actions arising from delicts are not tiones in heredem non competere, allowed against the heir of the develuti furti, vi bonorum raptorum, linquent, as, for instance, the actions injuriarum, damni injuriæ. Sed furti, vi bonorum raptorum, injuriaheredibus hujusmodi actiones com- rum, damni injuria. These actions petunt nec denegantur, excepta are, however, given to heirs, and are injuriarum actione et si qua alia not denied to them, with the excepsimilis inveniatur. Aliquando ta- tion of the action injuriarum, and men etiam ex contractu actio contra others that may resemble it. Someheredem non competit, cum testator times, however, even an action, arising dolose versatus sit et ad heredem from a contract, is not allowed against ejus nihil ex eo dolo pervenerit. an heir; as when a testator has acted Penales autem actiones, quas supra fraudulently and his heir has derived diximus, si ab ipsis principalibus no advantage from the fraud. But personis fuerint contestatæ, et here- penal actions, of which we have spoken dibus dantur et contra heredes above, if carried on by the principals transeunt.
themselves to the point of the litis contestatio, pass both to and against heirs.
Gai. iv. 112, 113; D. iv. 3. 17. 1; D. xliv. 7. 26. 58.
Although penal actions could not be brought against the heir of the wrongdoer in order to enforce the liability to a penalty, as the liability was personal to the wrongdoer, yet they could be brought against the heirs for the purpose of getting back from them anything by which they had received an advantage from the delict. (D. xliv. 7. 35. pr.)
Aliquando ex contractu actio contra heredem non competit. This is taken from Gaius, who means it to apply to the heirs of adstipulatores, sponsores, and fidepromissores, for their heirs were not bound; but it is difficult to say to what it could apply in the time of Justinian. It would also be supposed, from the text, that an action making a testator responsible for dolus malus did not ordinarily pass against his heirs, if his heirs were not benefited by the wrong he had committed ; but there was only one case in which the action did not pass against his heirs, whether they had
benefited by the dolus malus or not, namely, the action in duplum against a person who had been guilty of dolus malus with regard to a deposit placed in his custody under the pressure of an accidental misfortune (see Tit. 6. 23); and even in this case an actio in simplum passed against the heirs. (D. xvi. 3. 18.)
2. Superest, ut admoneamus, 2. It remains that we should requod si ante rem judicatam is, cum mark, that if, before the sentence, the quo actum est, satisfaciat actori, defendant satisfies the plaintiff, the officio judicis convenit eum ab- judge ought to absolve the defendant, solvere, licet judicii accipiendi tem- although, from the time of the action pore in ea causa fuisset, ut damnari being commenced before the magisdebeat : et hoc est, quod ante vulgo trate, it was evident the defendant dicebatur, omnia judicia absolutoria would be condemned. It is in this
sense that in former times it was commonly said that in all actions the de
fendant might be absolved.
Gai. iv. 114. If, after the formula was delivered, but before judgment was given, the defendant satisfied the plaintiff, a question had arisen, as we learn from Gaius (iv. 114), whether in all cases the judge was to absolve the defendant, or whether in actions stricti juris the judge was technically bound to go on and pronounce judgment. The Proculians thought that the condemnation was still to be made in actions stricti juris, though not in bona fidei actions or actions in rem. The Sabinians held that the defendant should be absolved in all actions, and it is the opinion of the Sabinians that Justinian confirms.
Tit. XIII. DE EXCEPTIONIBUS.
Sequitur, ut de exceptionibus di- It now follows that we should speak spiciamus. Comparatæ sunt autem of exceptions. They have been introexceptiones defendendorum eorum duced as a means of defence for those gratia, cum quibus agitur : sxepe against whom an action is brought. enim accidit, ut, licet ipsa actio, For it often happens that the action of qua actor experitur, justa sit, the plaintiff, although in itself well tamen iniqua sit adversus eum, founded, is yet unjust as regards the cum quo agitur.
person against whom it is brought.
Gai. iv. 115, 116. Exceptions belonged properly to the system of formulæ only. Under that system the prætor or other magistrate who pronounced on the right, qui jus dicebat, decided whether, on the statement of facts, the plaintiff had a right to an action. If he had, the parties were sent to the judge. But though the plaintiff might have a right to an action, the defendant might have some ground to urge why, in the particular instance, the action should be defeated; and if the action in factum was not bonæ fidei, i.e. if it was stricti juris, arbitraria, or penal, it was necessary that this ground should be distinctly stated by the defendant to the prætor. Thus the