promissioni cum jurejurando, quam juratoriam cautionem vocant, vel nudam promissionem vel satisdationem pro qualitate personæ suæ dare compellitur. until the end of the suit. For this security recourse may be had to the promise on oath of the party, when the security is called a cautio juratoria, or 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 lis vel infertur vel suscipitur, in actoris quidem persona, si non mandatum actis insinuatum est vel præsens dominus litis in judicio procuratoris sui personam confirmaverit, ratam rem dominum habiturum satisdationem procurator dare compellitur, eodem observando et si tutor vel curator vel aliæ tales personæ, quæ alienarum rerum gubernationem receperunt, litem quibusdam per alium inferunt. 4. Sin vero aliquis convenitur, si quidem præsens procuratorem dare paratus est, potest vel ipse in judicium venire et sui procuratoris personam per judicatum solvi satisdationis sollemnes stipulationes firmare vel extra judicium satisdationem exponere, per quam ipse sui procuratoris fidejussor existit pro omnibus judicatum solvi satisdationis clausulis. Ubi et de hypotheca suarum rerum convenire compellitur, sive in judicio promiserit sive extra judicium caverit, ut tam ipse quam heredes ejus obligentur: alia insuper cautela vel satisdatione propter per 3. But, where a suit is commenced or defended by a procurator, if the procurator of the plaintiff does not either register a mandate of appointment, or if the person who really brings the action does not himself appear before the judge to confirm the appointment of the procurator, then the procurator himself is obliged to give security that the person for whom he acts will ratify his proceedings. The same rule applies also if a tutor, curator, or any other person, who has undertaken to manage the affairs of another, brings an action through a third party. 4. As to the defendant, if he appears and wishes to appoint a procurator, he may either himself come before the judge, and there confirm the authority of the procurator, by giving with a solemn stipulation the caution called judicatum solvi, or he may give such a security elsewhere, and become himself the fidejussor of his own procurator, as to each clause of the caution judicatum solvi; and he is compelled to subject all his property to a hypotheca, whether he promises before the judge or not, and this obligation binds not only himself but his heirs. He must also give further se sonam ipsius exponenda, quod tempore sententiæ recitandæ in judicio invenietur, vel si non venerit, omnia dabit fidejussor, quæ condemnatione continentur, nisi fuerit provocatum. curity as to his own person, that he will himself appear at the time when judgment is given, or that, if he fails to do so, his fidejussor will pay all that is fixed to be paid by the sentence, unless the decision is appealed against. For the clausula 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 quacumque causa non fuerit et alius velit defensionem subire, nulla differentia inter actiones in rem vel personales introducenda, potest hoc facere, ita tamen ut satisdationem judicatum solvi pro litis præstet æstimatione. Nemo enim secundum veterem regulam, ut jam dictum est, alienæ rei sine satisdatione defensor idoneus intellegitur. 6. Quæ omnia apertius et perfectissime e cottidiano judiciorum usu in ipsis rerum documentis apparent. 7. Quam formam non solum in hac regia urbe, sed et in omnibus nostris provinciis, etsi propter imperitiam aliter forte celebrantur, optinere censemus, cum necesse est omnes provincias caput omnium nostrarum civitatum, id est hanc regiam urbem, ejusque observantiam sequi. 5. But if, from any cause, a defendant does not appear, and another person is willing to defend the action for him, he may do so (nor does it make any difference whether the action is real or personal), but he must give security judicatum solvi to the amount of what is at stake; for, according to the old rule of law we have just mentioned, no one is held a competent defendant for another without giving security. 6. All this will be learned more clearly and fully by observation of the ordinary judicial proceedings in cases which may serve as examples. 7. We order that these rules shall be observed not only in this our royal city, but also in all our provinces, although other usages may be now adopted there through ignorance; for it is necessary that all the provinces should conform to the practice of our royal city, which is supreme above all others. TIT. XII. DE PERPETUIS ET TEMPORALIBUS ACTIONIBUS, ET QUÆ AD HEREDES VEL IN HEREDES TRANSEUNT. Hoc loco admonendi sumus, eas quidem actiones, quæ ex lege senatusve consulto sive ex sacris constitutionibus proficiscuntur, perpetuo solere antiquitus competere, donec sacræ constitutiones tam in rem quam personalibus actionibus certos fines dederunt: eas vero, quæ ex propria prætoris jurisdictione pendent, plerumque intra annum vivere (nam et ipsius prætoris intra annum erat imperium). Aliquando We ought here to observe that the actions derived from a law, from a senatusconsultum, or from imperial constitutions, could formerly be exercised at any length of time, however great; until imperial constitutions assigned fixed limits both to real and to personal actions. Of the actions derived from the jurisdiction of the prætor, the greater part last only during one year, for this was the limit of the prætor's authority. Sometimes, however, these tamen et in perpetuum extenduntur, actions are perpetual, that is, last until the time introduced by the constitutions; such are those given to the bonorum possessor and to others standing in the place of the heir. The action furti manifesti, also, though proceeding from the jurisdiction of the prætor, is yet perpetual, for it seemed absurd to limit its duration to a year. GAI. 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. (GAI. iv. 111.) Further, all prætorian actions rei persecutoria, 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 persecutoria, 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. 1. Non omnes autem actiones, quæ in aliquem aut ipso jure competunt aut a prætore dantur, et in heredem æque competunt aut dari solent. Est enim certissima juris regula, ex maleficiis pœnales actiones in heredem non competere, veluti furti, vi bonorum raptorum, injuriarum, damni injuriæ. Sed heredibus hujusmodi actiones competunt nec denegantur, excepta injuriarum actione et si qua alia similis inveniatur. Aliquando tamen etiam ex contractu actio contra heredem non competit, cum testator dolose versatus sit et ad heredem ejus nihil ex eo dolo pervenerit. Poenales autem actiones, quas supra diximus, si ab ipsis principalibus personis fuerint contestatæ, et heredibus dantur et contra heredes transeunt. 1. It is not all the actions allowed against any one by the law, or given by the prætor, that will equally be allowed or given against his heir. For it is a fixed rule of law, that penal actions arising from delicts are not allowed against the heir of the delinquent, as, for instance, the actions furti, vi bonorum raptorum, injuriarum, damni injuria. These actions are, however, given to heirs, and are not denied to them, with the exception of the action injuriarum, and others that may resemble it. Sometimes, however, even an action, arising from a contract, is not allowed against an heir; as when a testator has acted fraudulently and his heir has derived no advantage from the fraud. But penal actions, of which we have spoken above, if carried on by the principals 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, quod si ante rem judicatam is, cum quo actum est, satisfaciat actori, officio judicis convenit eum absolvere, licet judicii accipiendi tempore in ea causa fuisset, ut damnari debeat et hoc est, quod ante vulgo dicebatur, omnia judicia absolutoria esse. 2. It remains that we should remark, that if, before the sentence, the defendant satisfies the plaintiff, the judge ought to absolve the defendant, although, from the time of the action being commenced before the magistrate, it was evident the defendant would be condemned. It is in this sense that in former times it was commonly said that in all actions the defendant 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 dispiciamus. Comparatæ sunt autem exceptiones defendendorum eorum gratia, cum quibus agitur: sæpe enim accidit, ut, licet ipsa actio, qua actor experitur, justa sit, tamen iniqua sit adversus eum, cum quo agitur. It now follows that we should speak of exceptions. They have been introduced as a means of defence for those against whom an action is brought. For it often happens that the action of the plaintiff, although in itself well founded, is yet unjust as regards the 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 bona 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 |