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1. Ulpianus, On the Edict, Book IV.

He is held to occupy the position of plaintiff who makes use of an exception, for where a defendant has recourse to an exception he becomes a plaintiff.

2. The Same, On the Edict, Book LXXIV.

An exception is so called for the reason that it operates as an exclusion, and is ordinarily opposed to proceedings to collect a claim, for the purpose of barring the statement of the same as well as judgment in favor of the party who brings the suit.

(1) Replications are nothing more than exceptions pleaded by the party plaintiff, which are necessary in order to bar exceptions; for a replication is always introduced for the purpose of opposing an exception.

(2) It must be remembered that every exception, or replication, is for the purpose of preventing the opposite party from proceeding further. An exception bars the plaintiff, and a replication bars the defendant.

(3) It is customary for a triplication to be granted against the replication, and other pleas to follow in order and, after this, the names are multiplied, whether the defendant or the plaintiff interposes an objection.

(4) We usually say that some exceptions are dilatory, and others peremptory; as, for instance, a dilatory exception is one which postpones the action, thus one denying the authority of an agent is a dilatory exception. For he who alleges that anyone has not the power to act as an attorney does not deny that the action should be brought, but maintains that the person who brings it is not qualified to do so.

3. Gaius, On the Provincial Edict, Book I.

Exceptions are either perpetual and peremptory, or temporary and dilatory. Those are perpetual and peremptory which will always lie, and cannot be avoided; for example, those based on fraud and res judicata, and where anything is alleged to have been done against the laws or decrees of the Senate; also such as are applicable in the case of an informal agreement, that is to say, such as provide that the money due shall, under no circumstances, be collected. Exceptions are temporary and dilatory which cannot be brought at any time, and can be avoided; and of this description is a temporary agreement between the parties under which an action cannot be brought for a specified period, for instance, within five years. Exceptions by which the action of an agent is barred, and which can be avoided, are also dilatory.

4. Paulus, On the Edict, Book XX.

If the question is asked whether a ward can be barred by an exception on the ground of fraud, where money which was due to him has been paid without the authority of his guardian, and he demands payment a second time, it must be ascertained whether, when he makes the demand, he still has the money, or has purchased something with it.

5. The Same, On the Edict, Book XVIII.

A defendant who alleges that he has already sworn in court that he does not owe the money for which he is sued, can avail himself of all other exceptions in addition to that based on taking the oath, or of the rest of them without it; for he is permitted to make use of several defences.

6. The Same, On the Edict, Book LXXI.

If a legatee brings an action to recover the property bequeathed, an exception based on the fraud of the testator can be pleaded against him; for, just as an heir who succeeds to the entire estate can be barred by an exception, so a legatee can also be barred as the successor of an individual part of the same.

7. The Same, On Plautius, Book III.

Exceptions to which certain persons are entitled do not pass to others; as, for instance, where a partner, a father, or a patron, can plead an exception to have judgment rendered against him only for the amount which he is able to pay; this privilege is not granted to a surety. Hence the surety of a husband, who was given after the marriage has been dissolved, will have judgment rendered against him for the entire amount of the dowry.

(1) Exceptions which have reference to property can, however, also be pleaded by sureties; for example those based on res judicata, fraud, and where an oath has been exacted, if this was done under duress. Therefore, if the principal debtor entered into an agreement concerning the property, his surety will, by all means, be entitled to an exception. An exception based upon the appearance of a surety, on the ground that the claim will prejudice the right of freedom, can also be employed by him. The same must be said where anyone has become surety for a son under paternal control in violation of the Decree of the Senate, or for a minor of twenty-five years of age, who has been defrauded. If, however, he has been deceived with reference to the property, he will not be entitled to relief before he obtains restitution, and an exception should not be granted the surety.

8. The Same, On Plautius, Book XIV.

No one is forbidden to avail himself of several exceptions, even though they may be different in their character.

9. Marcellus, Digest, Book III.

An adversary is not considered to admit the claim of the other party, merely because he has recourse to an exception.

10. Modestinus, Opinions, Book XII.

Modestinus gave it as his opinion that a judgment obtained by others does not prejudice those who were not parties to the suit; and even if he, against whom judgment was rendered, should become the heir of the person who gained the case, an exception, based on the fact that, under this judgment, he has failed to effect what he undertook in his own name before he became the heir, cannot be pleaded against him.

11. The Same, Opinions, Book XIII.

A man acknowledged as genuine certain notes which were, in fact, forged, and paid them after judgment was rendered against him. I ask, if the truth should subsequently be ascertained, and the notes found to be forged, and the defendant should desire to prove this in accordance with the order of the court, or an interlocutory decree; and, as he had admitted the genuineness of the said notes, whether he could be opposed by an exception, as it is clearly established by the Imperial Constitutions that although a judgment may be obtained by means of forged documents, and they are afterwards ascertained to be false, the fact that the matter has been decided cannot be pleaded in bar. Modestinus answered that, for the reason that payment was made through mistake, or security was furnished in the case of these notes, which were afterwards alleged to be forged, there would be no ground for an exception.

12. Ulpianus, On the Edict, Book XXXVIII.

Generally speaking, in questions dependent on preliminary decisions, he sustains the part of a plaintiff whose claim is in accordance with what he demands.

13. Julianus, Digest, Book L.

If, after judgment has been pronounced in a case involving an entire estate, suit is brought to recover certain specified articles, it is settled that an exception on the ground that the estate will be prejudged cannot be pleaded in bar, for the reason that exceptions of this kind are introduced because they may affect a future decree, if not the one which has already been rendered.

14. Alfenus Varus, Digest, Book II.

A son under paternal control sold a slave forming part of his peculium, and a stipulation was made for the price. The slave was returned under a conditional clause of the contract and afterwards died, and the father demanded from the purchaser the money which the son had stipulated should be paid to him. It was decided to be just that an exception in factum should be pleaded against him, setting forth that the money had been promised for the slave who had afterwards been returned under a condition of the contract.

15. Julianus, On Urseius Ferox, Book IV.

A replication alleging bad faith should not be pleaded against an exception founded upon an oath taken in court, as the Praetor should see that no question is subsequently raised with reference to such an oath.

16. Africanus, Questions, Book IX.

You are in possession of the Titian Estate, and you and I have a lawsuit with reference to the ownership of the same. I allege that there is due to this estate a right of way through the Sempronian Estate, which belongs to you. If I bring suit to recover the right of way, it is held that you can avail yourself of an exception on the ground that the action pending for the ownership of the property ought not to be prejudged; that is to say, that I cannot show that I am entitled to the right of way before I have proved that the Titian Estate is mine.

17. Paulus, On the Edict, Book LXX.

If, however, I bring an action to recover the right of way, and afterwards one to recover the Titian Estate, as the objects of the litigation are distinct, and the reasons for restitution different, the exception will cause no injury.

18. Africanus, Questions, Book IX.

I bring an action against you for half of a tract of land which you say is yours, and I wish, at the same time, to bring one in partition against you before the same judge. Again, if I allege that a tract of land of which you are in possession is mine, and I wish to recover the crops from you, the question arises whether an exception based on the principle that I ought not to bring a suit, the decision of which will prejudge the case which involves the ownership of all, or a part of the land in question, will operate as a bar, or should be denied. It is held that, in both instances, the Praetor should intervene, and not permit the plaintiff to institute proceedings of this kind, before the question of the ownership of the land has been determined.

19. Marcianus, Institutes, Book XIII.

All exceptions to which the principal debtor is entitled can also be employed by his surety, even against the consent of the former.

20. Paulus, On the Manner of Drawing up Formulas.

Exceptions are pleaded either because the party did what he should have done; or because he did what he ought not to have done; or because he did not do what he should have done. An exception on the ground of property sold and delivered, or on that of res judicata, is granted for the reason that something has been done which ought to have been done. An exception on the ground of fraud is granted, because something has been done which ought not to have been done. An exception on the ground that praetorian possession of property which has been given has not been permitted, is granted because something was not done which should be done.

21. Neratius, Parchments, Book IV.

One action is said to prejudge another, with reference to a larger sum of money, when a question arises in court which is connected either wholly, or in part, with a suit involving a larger amount of property.

22. Paulus, Various Passages.

An exception is a proceeding which sometimes relieves the defendant from the risk of having judgment rendered against him, and sometimes diminishes the amount of the judgment.

(1) A replication opposes an exception, and is, as it were, an exception to an exception.

23. Labeo, Epitomes of Probabilities by Paulus, Book III.

Paulus: If anyone places a statue in a city with the intention that it shall belong to the city, and afterwards desires to claim it in court, he can be barred by an exception in factum.

24. Hermogenianus, Epitomes of Law, Book VII.

A son under paternal control can acquire for his father an exception on the ground of an oath having been taken, if he swears in court that his father does not owe anything.

 

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Tit. 2. Concerning the exception based on res judicata.

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1. Ulpianus, On the Edict, Book II.

As judgments rendered between litigants cannot prejudice others who are not parties to the suit, proceedings can be instituted under a will by which freedom is granted, or a legacy is bequeathed, although the will may have been broken, or may have been declared void, or may have been held not to have been drawn in accordance with the prescribed legal formalities; but, still, if the legatee should lose his case, the testamentary grant of freedom will not be affected.

2. The Same, On the Edict, Book XIII.

Where an action is brought against the heir of a testator who passed over his son in his will, and the plaintiff is barred by an exception on the ground that the will is in such a condition that possession of the estate can be granted by the Praetor contrary to its provisions, and the emancipated son has neglected to apply for possession of the estate, it is not unjust that he should be enabled again to institute proceedings against the heir. This was stated by Julianus in the Fourth Book of the Digest.

3. The Same, On the Edict, Book XV.

Julianus, in the Third Book of the Digest, states that an exception on the ground of res judicata can be opposed whenever the same question again arises in court between the same parties. Therefore, if anyone brings an action for the entire estate, after having lost one, brought to recover a portion of the same, or vice versa, he will be barred by an exception.

4. The Same, On the Edict, Book LXXII.

An exception on the ground of res judicata is tacitly understood to include all those persons who are interested in the case.

5. The Same, On the Edict, Book LXXIV.

Proceedings are considered to be instituted with reference to the same question, not only when a plaintiff does not make use of the same action which he brought in the first place, but when he brings another relating to the same matter. For instance, if anyone having brought an action on mandate should, after his adversary promised to appear in court, bring one on the ground of voluntary agency, or one for the recovery of the property, he institutes proceedings relating to the same matter. Hence, it is very properly said that he only does not institute proceedings with reference to the same matter who does not again attempt to accomplish the same result. For when anyone changes the action, he must also change the nature of his claim; as he is always considered to bring suit with reference to the same matter, even if he has recourse to a different kind of action from the one which he employed in the first place.

6. Paulus, On the Edict, Book LXX.

It has very reasonably been held that one action is sufficient for the settlement of a single controversy, and one judgment for the termination of a case; otherwise, litigation would be enormously increased, and would be productive of insurmountable difficulties, especially where conflicting decisions have been rendered. It is therefore very common to introduce an exception on the ground of res judicata.

7. Ulpianus, On the Edict, Book LXXV.

If anyone, after having brought an action for all of certain property and lost it, should then bring suit to recover a portion of the same, he will be barred by an exception on the ground of res judicata; for a part is included in the whole, and is considered the same thing where a portion of something is claimed and all of it had previously been demanded. Nor does it make any difference whether the claim is made for a certain article, or for a sum of money, or for a right. Hence, if anyone sues to recover a tract of land, and afterwards brings an action for a divided or an undivided portion of the same, it must be said that he will be barred by an exception. Or if you suggest, as an example, that I bring an action for a certain part of a tract of land, the whole of which I have previously sued for, I will be barred by an exception. The same rule must be adopted where, in the first place, suit is brought for two different articles, and afterwards one is brought for either of them; as the exception will operate as a bar. Likewise, if anyone brings an action to recover a tract of land and, having lost it, he then brings one for the trees which have been cut on said land, or if he, in the first place, brings suit for a house, and subsequently brings one for the ground on which it stands, or the lumber or stone of which it is built, the same rule will apply. This is also the case if I, in the first place, bring suit for a ship, and then bring one to recover the individual parts of which it is composed.

(1) If I bring an action to recover a female slave who is pregnant, and who conceived and brought forth a child after issue was joined in the case, and I then bring an action to recover the child, whether I shall be decided to have asserted the same claim or a different one, is an important point. And, indeed, it may be held that an action is brought for the same thing, wherever what was demanded before the first judge is demanded before a second one. Therefore, in almost all these cases, an exception will operate as a bar.

(2) A difference, however, exists with reference to the stone and timbers of which a house is composed, for where anyone brings a suit for a house, and loses it, and afterwards brings one for the stone or the timbers, or anything else, as his property, he is in such a position that he will be considered to have asserted a different claim, for a house may belong to a person who does not own the stones of which it is constructed. Finally, where materials have been used for the erection of a house belonging to another, the owner can recover them after they have been separated from the building.

(3) The same question arises with reference to the crops, as where the child of a female slave is involved. For these things are not yet in existence, still they are derived from the property to recover which the action has been brought; and the better opinion is that this exception will not apply to them. It is, however, clear that if either the crops or the offspring of the slave have been included in the restitution of the property, and their value has been appraised, the result will be that an exception can be effectively interposed.

(4) And, generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover certain articles forming part of the estate; or if, after having brought an action to recover certain articles belonging to it, and failed, he then brings one to recover the entire estate, he will be barred by an exception.

(5) The same rule should be adopted where anyone, having brought an action to collect a claim from a debtor of an estate and lost it, brings one to recover the entire estate; or, on the other hand, if, in the first place, he brought an action to recover the estate, and afterwards brings one to collect a debt forming a part of the assets of the same, an exception, in this instance, will operate as a bar; for if I bring suit for an estate, all the property and rights of action appertaining to it are considered to be included in the claim.

   
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9. Ulpianus, On the Edict, Book LXXV.

If I bring suit against you for an estate and I am defeated, because you are not in possession of any of it, and I again bring an action to recover it, after you have obtained a portion of the same, can this exception be properly pleaded against me? I think that the exception will not operate as a bar whether it was decided that the estate was mine, or whether my adversary was discharged from liability because he was not in possession of any part of it.

(1) If anyone, having defended his title to a tract of land of which he thought he was in possession, and judgment being rendered for the plaintiff, the defendant afterwards purchases the land, can the plaintiff be compelled to restore it to him? Neratius says that if an exception on the ground of res judicata is pleaded against him who brings suit for the land a second time, he can reply that judgment was rendered in his favor.

(2) Julianus says that an exception on the ground of res judicata passes from the original party in interest to the purchaser, but does not revert from the purchaser to the original party. Therefore, if you sell property belonging to an estate, and I bring an action to recover said property from the purchaser, and gain the case, I cannot plead the exception against you, if you bring suit against me. But if the judgment was not rendered between the person to whom you sold the property and myself.

10. Julianus, Digest, Book LI.

Or if I have lost my case, you will not be entitled to the exception against me.

11. Ulpianus, On the Edict, Book LXXV.

If a mother should, under the Decree of the Senate, bring suit to recover the estate of her minor son who is deceased, for the reason that she thought that, the will of his father having been broken, no pupillary substitution could have been made, and she should be defeated, because the will of the father had not been broken, and, after the will had been opened, where the pupillary substitution should appear, none was found to exist, and she again brings an action for the estate, she will be barred by an exception on the ground of res judicata; so Neratius says. I do not doubt that she will be barred by an exception on the ground of res judicata, but relief should be granted her, because she only advanced one point in her favor, namely, that the will of the father had been broken.

(1) Finally, Celsus says that if I bring an action to recover a slave whom I think is my property, because he was delivered to me by someone else, while, in fact, he is mine, because he belongs to an estate which I have inherited, and I bring a second action, after having lost the first, I can be barred by an exception.

(2) If, however, anyone brings suit for land on the ground that Titius had delivered it to him, and, having been defeated, afterwards sues for it on some other ground, he should not be barred by an exception.

(3) Julianus also says, if you and I are heirs of Titius, and you bring an action against Sempronius for part of a tract of land which you allege belongs to the estate, and you are defeated, and I afterwards purchase the same part of the land from Sempronius, I can interpose an exception against you by way of a bar, if you bring suit in partition against me, because the matter has been judicially decided between you and my vendor. For if, before I bring suit for the said part of the land, I should bring an action in partition, an exception can be interposed on the ground that the matter between you and myself has been disposed of in court.

(4) Where the origin of two claims is the same, it also makes a second demand the same. But if I bring an action for a tract of land, or a slave, and lose my case, and afterwards I should have a new cause of action from which I derive ownership, I will not be barred by this exception, unless my ownership, having been lost for the time being, is afterwards recovered by a certain species of postliminium. But what if the slave whom I claim should be taken by the enemy, and afterwards returns under the right of postliminium? In this instance I will be barred by the exception, because the matter is understood to be the same; but if I should have obtained the ownership for some other reason, the exception will not operate as a bar. Therefore, if property is bequeathed to me, under a condition, and while it is pending, having acquired the ownership of it, I bring suit, and I am defeated, and then, the condition having been fulfilled, I again sue to recover the legacy, I think that an exception cannot be pleaded, because I formerly had a different title to ownership than I have at present.

(5) Hence, if ownership is acquired after the first claim has been made, it changes the nature of the case, but the change of the opinion of the plaintiff does not do so; as, for example, if anyone thinks that he has the ownership of property through inheritance, and changes his opinion, and believes that he is entitled to it on account of a donation. This does not give rise to a new claim, for no matter in what way, or where a person may have acquired the ownership of the property, his right to it has finally been disposed of in the first action.

(6) If anyone brings suit for the right to walk through the land of another, and afterwards brings one to drive through the same land, I think that it can be strongly maintained that one thing was asked for in the first place, and another in the second, and therefore that an exception on the ground of res judicata cannot be interposed.

(7) It is our practice, where an exception on the ground of res judicata is pleaded, to include all the parties who have a right to bring the matter into court with the plaintiff. Among these are the attorney who was directed to bring the action, a guardian, the curator of an insane person or a minor, and the officer who has charge of the business of a city. On the side of the defendant, whoever undertakes the defence is included because he who institutes proceedings against him brings a suit in court.

(8) Where anyone brings an action against a son under paternal control for the recovery of a slave, and afterwards brings one against the father for the same slave, there will be ground for this exception.

(9) If I bring suit against my neighbor to compel him to take care of his. rain-water, and afterwards one of us should sell our land, and the purchaser brings the same action, or it is brought against him, this exception will operate as a bar, but only with reference to such work as has been performed after the decision was rendered.

(10) Likewise, if Titius should give to Seius, by way of pledge, property which he attempted to recover from you, and Seius afterwards should bring an action on pledge against you, it must be ascertained when Titius pledged the property. If he did so before bringing suit, the exception will not operate as a bar, because he should have presented the claim, and I retain my right of action on pledge unimpaired. If, however, he pledged the property after he brought suit, the better opinion is that an exception on the ground of res judicata will operate as a bar.

12. Paulus, On the Edict, Book LXX.

When the question is asked whether or not this exception will operate as a bar, it should be ascertained whether the same property is involved;

13. Ulpianus, On the Edict, Book LXXV.

Either the same amount, or the same right which was the subject of the first action.

14. Paulus, On the Edict, Book LXX.

It should also be ascertained if the same cause of action exists, or the persons are of the same rank, and if these things do not coincide, the case is different. Where this exception is pleaded, the same property is understood to be that which was the subject of the first action, even though its quality or quantity may not have been absolutely preserved, and no addition to, or deduction from it has been made, as the term should be accepted in its broadest significance, on account of the welfare of the parties interested.

(1) Where anyone enjoys the usufruct of a portion of the property, and brings suit to recover the entire usufruct, and loses his case, 3nd he then brings an action for the other half of the usufruct, which has subsequently accrued to him, he will not be barred by an exception, for the reason that the usufruct does not accrue to a portion of the estate, but to the person himself.

(2) In cases of this kind, personal actions differ from real ones, for where the same property is due to me from the same individual, each cause of action is based on a separate obligation; and a judicial proceeding having reference to one of them is not annulled by a similar demand for another. But when I bring a real action without mentioning on what ground I allege the property to be mine, all titles to it are included in the claim for one portion, because, although the property cannot be mine more than once, it may be due to me several times.

(3) Where anyone institutes proceedings under the interdict to recover possession of property, and afterwards brings a real action, he will not be barred by an exception, because proceedings to obtain possession under an interdict, and a suit to determine the ownership of the property, are different.

15. Gaius, On the Provincial Edict, Book XXX.

Where a suit involving an estate is pending between you and myself, and you have in your possession some property belonging to said estate, and I also have some, there is nothing to prevent me from bringing an action against you to recover the estate, and, on the other hand, nothing to prevent you from bringing an action against me for the same purpose. If, however, after the case has been disposed of, you bring such an action against me, it will be necessary to ascertain whether the estate was adjudged to be mine or yours. If it was decided to be mine, the exception on the ground of res judicata will operate as a bar against you; because, for the very reason that judgment has been rendered in my favor, and the estate found to belong to me, it has been decided not to be yours. If, however, it has been found not to belong to me, nothing is understood to have been determined with reference to your title to it, because it may be that the estate does not belong to either of us.

16. Julianus, Digest, Book LI.

For it would be extremely unjust that an exception on the ground of res judicata should benefit the party against whom the judgment was rendered.

17. Gaius, On the Provincial Edict, Book XXX.

If I bring suit against you to recover property which belongs to me, and you are discharged from all liability because you proved that you have ceased to hold possession of said property, without any fraud on your part; and then, after you have obtained possession of said property a second time, I again bring an action against you, an exception on the ground of res judicata cannot effectually be interposed against me.

18. Ulpianus, On the Edict, Book LXXX.

Where anyone brings suit for the production of property and his adversary is discharged from liability because he was not in possession, and he having afterwards regained possession, the owner brings suit a second time, an exception on the ground of res judicata can not properly be pleaded, because the condition of the case is different.

19. Marcellus, Digest, Book XIX.

A certain man gave the same property in pledge at two different times, the second creditor brought an action on pledge against the first one, and gained the case, and the first afterwards brought a similar action against the second. The question arose whether an exception on the ground of res judicata would operate as a bar. If the second creditor had pleaded the exception before the property had been pledged to him, and he could advance nothing which was new and valid, the exception would undoubtedly be a bar, for it brings up the same point which had already been decided.

20. Pomponius, On Sabinus, Book XVI.

Where suit was brought under a will against the heir by a person to whom all the family silver had been bequeathed, and who thought that only certain tables had been left him, and brought into court solely the question of appraisement of said tables, and afterwards sued to recover the money which had been left to him, Trebatius says that he will not be barred by an exception, for the reason that he did not bring suit for this in the first place, and did not intend to do so, nor did the judge render any decision with reference to it.

21. The Same, On Sabinus, Book XXXI.

If silver plate has been bequeathed to me by will, and I bring an action against the heir to recover it, and it should afterwards be ascertained that the testator had also bequeathed to me his wardrobe by a codicil, the latter legacy will not be affected by the former decision, because neither the parties to the suit, nor the judge, understood that anything was in dispute except the silver plate.

(1) If I bring suit to recover a flock of sheep, and I am defeated, and the flock either increases or diminishes in number, and I again bring an action to recover the same flock, an exception can effectually be interposed against me. If I bring suit for any one of the animals composing the flock, and it is present as part of the same, I think that the exception will still operate as a bar.

(2) If you bring an action against anyone to recover Stichus and Pamphilus, whom you allege are your slaves, and your adversary is discharged from liability, and you again bring suit against him, claiming Stichus as your slave, it is established that you will be barred by an exception.

(3) If I bring an action for a tract of land which I allege to be mine, and afterwards bring one to recover the usufruct of the same, on the ground that, as the land belongs to me, its usufruct is also mine, I will be barred by an exception, because anyone who owns land cannot bring suit to recover the usufruct of it. If, however, I bring an action to recover the usufruct, as being mine, and afterwards, having obtained the ownership of the land, I again sue for the usufruct, it can be said that the case is different; as, after I obtained the land itself, the usufruct which I formerly enjoyed ceases to be mine as a servitude, and again becomes my property by the right of ownership, and, as it were, by a different title.

(4) If you become surety for my slave, and an action is brought against me on account of his peculium, and I gain the case, and afterwards an action is brought against you for the same cause, an exception on the ground of res judicata can be effectually pleaded.

22. Paulus, On the Edict, Book XXXI.

If an action on deposit is brought against an heir, and lost, the plaintiff can bring one against the other heirs who cannot avail themselves of an exception on the ground of res judicata. For although the same question is involved in different actions, still the change of the parties against whom suit is individually brought gives the case a different aspect. If a suit is brought against the heir on account of fraud committed by the deceased, and afterwards one is brought against him for some fraudulent act of his own, an exception on the ground of res judicata will not operate as a bar, because a different question is involved.

23. Ulpianus, Disputations, Book III.

When an action only for the recovery of interest lost is brought, there need be no apprehension that an exception on the ground of res judicata will operate as a bar in a suit for the principal, for, as it is rib advantage, neither, on the other hand, will it be any impediment. The same rule will apply where, in a bona fide contract, the plaintiff wishes only to collect the interest, for the interest still continues to run, because as long as the contract in good faith stands it will. do so.

24. Julianus, Digest, Book IX.

Where anyone buys property from a person who is not its owner, and is afterwards discharged from liability when the owner himself brings suit to recover it, and the purchaser then loses possession of the property, and institutes proceedings to recover it from the owner who has obtained possession of the same, the latter can have recourse to an exception on the ground that the property belongs to him, and the other can reply that it has not been decided to be his.

25. The Same, Digest, Book LI.

If anyone who is not an heir should bring an action for the estate and, after having become an heir, should again sue for the same estate, he will not be barred by an exception on the ground of res judicata.

(1) It is in the power of a purchaser to bring an action to compel the property to be returned within six months, where the condition was that if a slave was worth less than he was sold for, the excess paid should be refunded; for this latter action also includes the clause for the return of the money, when the slave had such a defect that, on account of it, the purchaser would not have bought him if he had been aware of it. Wherefore, it is very properly said that if the purchaser who has made use of either one of these actions should afterwards employ the other, he can be barred by an exception on the ground of res judicata.

(2) If you interfere in my business, and bring an action for a tract of land in my name, and I afterwards do not ratify the claim which you have made but direct you to again bring an action to recover the same land, an exception on the ground of res judicata will not act as a bar when conditions have changed since the mandate was given. The same rule will apply where a personal action, and not a real one, is brought.

26. Africanus, Questions, Book IX.

I brought an action against you alleging that I had a right to raise my house ten feet higher, and lost it. I now bring one against you alleging that I Have a right to raise my house twenty feet higher. An exception on the ground of res judicata can undoubtedly be pleaded. If I again bring suit alleging that I have the right to raise my house still ten feet higher, an exception will operate as a bar; for since I could not raise it to a lower height, I certainly would not be entitled to raise it to a still higher one.

(1) Likewise, if having brought an action to recover a tract of land, and lost it, the plaintiff brings suit for an island which was formed in a river opposite said land, he will be barred by an exception.

27. Neratius, Parchments, Book VII.

When, in a second action, the question arises whether the property is the same as that which was the object of the first one, the following things must be considered: first, the parties interested; second, the property for which suit was brought; and third, the immediate cause of action. For now it is of no consequence whether anyone believes that he has a good cause of action, any more than if, after judgment had been rendered against him, he should find new documents to strengthen his case.

28. Papinianus, Questions, Book XXVII.

An exception on the ground of res judicata will bar one who succeeds to the ownership of the party who lost the case.

29. The Same, Opinions, Book I.

An exception on the ground of res judicata will not operate as a bar against a co-heir who was not a party to the suit; and a slave, who has not yet been manumitted under the terms of a trust, cannot be. again claimed as a slave, after judgment has been rendered in favor of his freedom; but it is the duty of the Praetor to see that the judgment is complied with in this case, as he cannot decide in favor of the party who was defeated. For if suit to declare a will inofficious has been brought against one of the co-heirs, or two co-heirs have brought actions separately, and one of them gains his case, it has been established that the grants of freedom must take effect; still, it is the duty of the judge to provide for the indemnity of the party who is successful, and who is to manumit the slave.

(1) If a debtor brings suit to determine the ownership of property, which he pledged without notifying the creditor, and judgment is rendered against him, the creditor will not be considered to occupy the place of the defeated party, as the agreement with reference to the pledge preceded the decision.

30. Paulus, Questions, Book XIV.

A certain man who could succeed to it as heir at law, having been appointed heir to the sixth part of an estate, contested the legality of the will, and having demanded half of the estate from one of the appointed heirs, lost his case. He is held to have included the sixth part of the estate in his claim, and therefore, if he brought suit for the same share under the same will, an exception on the ground of res judicata will operate as a bar against him.

(1) Latinus Largus: A transaction took place with reference to an estate which belonged to Maevius, but whose right to it was disputed by Titius, and a transfer of the property of the estate was made by Titius to Maevius, as the heir, in which transfer a certain tract of land which, several years before, had been hypothecated to the grandfather of Maevius, and afterwards to another person was delivered, in pursuance of the contract. These matters having been settled, the second creditor of Titius brought suit for his claim, and gained it. After this judgment, Maevius found among the papers of his grandfather the note executed by Titius, by which it appeared that the land which was included in the said transaction had also been encumbered by the said Titius to his grandfather. Therefore, as it was evident that the land formerly hypothecated to the grandfather of Maevius, the heir, was the same as that on account of which Maevius had a judgment rendered against him in favor of the second creditor, I ask whether the right of his grandfather, of which he was ignorant at the time that the action was brought to recover the land, could not be barred by pleading an exception. I answered that if the ownership of the land was in question, and a decision was rendered in favor of the said creditor, we should hold that an exception on the ground of res judicata would operate as a bar against the party who lost the former suit bringing another, because as the plaintiff had been successful, the question appears to be the same one previously involved. If, however, the person in possession should be discharged from liability, and, having lost possession, should bring suit to recover it from the same party who was not successful in the first place, he will not be barred by an exception, for in the judgment rendered in his favor, nothing was decided with reference to his title. When, however, the action on pledge was brought against the first creditor, no question might happen to be raised as to the title of the party in possession, because in controversies having reference to ownership, what was decided to be mine is at the same time decided not to belong to another; but, in the case of an obligation, the result will be that, where property is encumbered in favor of one person, it does not follow that it is not encumbered to another, if the latter can prove that this is the fact. It may be said, that it is probable that an exception will not operate as a bar, as there was no doubt as to the right of the possessor, but only as to the encumbrance. In the case stated, however, the point which presents the greatest difficulty to me is whether the right of pledge is extinguished, when the ownership of property is acquired; for the right of pledge cannot continue to exist where the creditor becomes the owner of the property. An action on pledge, however, will lie, because it is true that the property was pledged and the claim was not satisfied. For which reason I do not think that an exception on the ground of res judicata will operate as a bar.

31. The Same, Opinions, Book III.

Paulus held that an exception on the ground of res judicata could not be effectually pleaded against anyone who brought a personal action for the recovery of property, who had previously brought an action for the same property and lost it.

 

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Tit. 3. Concerning different temporary exceptions and the union of several possessions.

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1. Ulpianus, On the Edict, Book LXXIV.

For the reason that a discussion frequently arises with reference to available days, let us see in what the power to maintain one's rights consists. In the first place, it is requisite for the plaintiff to have power to bring an action, for it is not sufficient for the defendant to be able to himself make a defence, or employ someone who can properly do so for him, but the plaintiff also must not be prevented by any lawful reason from instituting proceedings. Hence, if he is in the hands of the enemy, or absent on business for the State, or is in prison, or if he is detained somewhere by a storm so that he cannot bring the suit, or direct this to be done, he is held not to have the power to do so. It is clear that a person who is prevented by illness, but is able to direct suit to be brought, should be considered as having the power to do so. There is no one who is not aware that he who has not the opportunity of appearing before the Praetor has not the power to bring an action. Hence only those days are available on which the Praetor dispenses justice.

2. Marcellus, Digest, Book VI.

The question is asked whether or not the intercalary day should be counted in favor of the party against whom judgment was rendered, in the time prescribed for levying execution on the judgment. Should it also be included in the time fixed by law for the right of action to be extinguished? It should undoubtedly be held that the time is prolonged by the intercalary day; for instance, where a question arises with reference to usucaption which is to be completed within a prescribed period, or to actions which must be brought within a certain time, as is the case with the greater portion of those which have reference to the acts of the Jildiles. If, however, anyone should sell a tract of land under the condition that, unless the price was paid within thirty days, the sale should be void, will the purchaser be entitled to the benefit of the intercalary day? I hold that he will not.

3. Modestinus, Differences, Book VI.

It is clear that prescription based upon long possession applies to land as well as to slaves.

4. Javolenus, Epistles, Book VII.

If a slave belonging to an estate, or to anyone who is in the hands of the enemy, should receive security for the payment of a debt, the time prescribed for said security begins to run immediately; for we must ascertain not whether he who placed a lien on the property can bring an action, but whether the person in whose favor it was encumbered has a right to do so against the former. Otherwise, it would be extremely unjust if, on account of the rank of the plaintiffs, the obligations of the defendants should be prolonged, since nothing can be done by them to prevent suit from being brought against them.

5. Ulpianus, Disputations, Book III.

Let us see whether any defect in the title of the plaintiff, or of the donor, or the testator who bequeathed me property, will prejudice my rights, if he did not have a good title to its possession in the first place. I think that it will neither be of any disadvantage nor of any benefit to me, for I can acquire by usucaption something which the party from whom I obtain the property cannot acquire in that manner.

(1) The following case has been proposed. A certain woman sold an article after having pledged it, and her heir redeemed it. The question arises whether the heir can make use of an exception on the ground of long possession against the creditor attempting to obtain possession of the pledge. I held that this heir who redeemed the pledge from a third party can avail himself of the exception, because he succeeds to the place of the latter, and not to that of him who pledged the property. The case is the same as if he had redeemed the property and subsequently became the heir.

6. Africanus, Questions, Book IX.

If I sell the same property, separately, to two persons, the purchaser to whom it was first delivered will be the only one who will profit by the possession. For if I sell you anything, and afterwards purchase it from you, and then sell it to Titius, he will be entitled to the benefit of both your possession and mine, because you are obliged to give possession to me, and I am obliged to transfer it to him.

(1) I sold you a slave, and it was agreed between us that unless the price was paid by a certain date, the sale should be considered void. As this actually took place, the question arose what opinion should be given with reference to the additional time you held the slave. The answer was, that the same rule should be observed as in the case where the property is returned under a condition; for it is just as if you had sold me the slave a second time, and, when the vendor afterwards obtained possession of him, the time which preceded the sale was added to that during which the slave was held by the party by whom he was returned.

7. Marcianus, Institutes, Book III.

Where anyone has fished for years in a certain place in a public river, he excludes another from enjoying the same right.

8. Ulpianus, Rules, Book I.

In computing the addition of the time of possession, it is true that the master is entitled to the benefit of the time during which the slave was in flight.

9. Marcianus, Rules, Book V.

It is provided by certain Rescripts of the Divine Antoninus that there is ground for prescription, where long-continued possession of movable property has existed.

10. Pomponius, Opinions, Book XIII.

An "informer, having notified the Treasury of certain property which had had no owner within the prescribed four years, desisted, after having given notice. After the four years had elapsed, a second informer having appeared, the first notice will not be available to prevent possession from being barred by lapse of time, unless the collusion of the first informer can be established, and this having been done, the prescription, as well as everything else relating to the affair, will be annulled.

(1) The term of four years which is fixed for notifying the Treasury of the existence of property without ownership is not computed according to mere opinion, but with reference to the character of the unoccupied property. The four years are reckoned from the time when a will is decided to be of no effect; or the possession of an intestate estate has been rejected by all those who had the right to claim it, in the regular order of succession; or where the time prescribed for each of them to do so had expired.

11. The Same, Definitions, Book II.

Where an heir succeeds to all the rights of the deceased, his ignorance does not affect any defective title of the latter; for example, if the deceased knew that the property belonged to another, he held possession of it by a precarious title. For, although such a title does not bind the heir who was not aware of it, and proceedings under the interdict cannot properly be brought against him, still, he cannot acquire the property by usucaption, as the deceased was unable to do so. The same rule of law applies where property is claimed on the ground of long-continued possession, for an action cannot legally be defended where, in the beginning, it was not founded on a bona fide title.

12. Paulus, Opinions, Book XVI.

A creditor, who could have been barred from the possession of his pledge by lapse of time, sold the pledge. I ask whether the possessor could legally avail himself of an exception against the purchaser. Paulus answered that this exception could also be pleaded against the purchaser.

13. Hermogenianus, Epitomes of Law, Book VI.

In all matters in which the Treasury is interested, prescription for twenty years is available, except in cases where a shorter time has been expressly provided by the Imperial Constitutions.

(1) Any accounts which have been duly assigned and cancelled cannot be produced against the person responsible for them, after twenty years, or against his heir after ten years have elapsed.

14. Scaevola, Questions Publicly Discussed, Book II.

We cannot lay down any rules of general or perpetual application with reference to the union of one possession to another, for this depends upon equity alone.

(1) It is clear that such a union is granted to those who succeed to us, even by virtue of a contract, or under a will. The addition of the time when the property was possessed by a testator is granted to the heirs, and to those who occupy the place of his successors.

(2) Therefore, if you sell me a slave, I can add the time during which he was in your possession.

(3) If you have given me an article in pledge, and I myself pledge it to someone else, my creditor will be entitled to the addition of the time during which you had possession of it, not only against a third party, but also against you yourself, so long as you did not pay me; for when anyone has the preference over me, as I have over you, there is much more reason to hold that he should be preferred to you. If, however, you should pay me the money, he cannot, under such circumstances, benefit by the time that the property remained in your hands.

(4) Likewise, if, during your absence, someone who is considered to have charge of your business should sell me a slave, and you ratify his act after your return, I can certainly profit by the time during which he was in your possession. Again, if you give me property in pledge, and it is agreed between us that, if you do not pay the money, I can sell the pledge under the contract, and I do sell it, the purchaser will be entitled to the addition of the time that the property was in your possession, even though the pledge was sold without your permission, for when you made the contract it is held that you consented to the sale, if you should not pay the money.

15. Venuleius, Interdicts, Book V.

In the case of usucaption, the rule is observed that if the property is in possession only for a moment during the last day, the usucaption is, nevertheless, completed; for the entire day is not required for the completion of the prescribed time.

(1) The addition of time of possession not only includes that during which the property remained in the hands of the vendor but also the time that the purchaser held it, where the latter also disposed of it. If, however, one of the vendors was not a bona fide possessor, the possession of those who preceded him will be of no advantage, because the possession is not continuous, just as the possession of a vendor cannot be added to that of someone who is not in possession.

(2) It must also be added that, if you purchased the property yourself, or ordered someone else to do so, and he also directed it to be sold to a third party, continuity of possession is necessary. If, however, he who is directed to sell the property, should direct another to sell it, Labeo says that the addition of possession of him who gave the second mandate should not be allowed, unless the owner consents for this to be done.

(3) But if I purchase property from a son under paternal control, or from a slave, the addition of the time during which it was in possession of the father, or the master, should be granted me, if the property was sold either with the consent of the father or the master, or as part of the peculium of the slave who was entrusted with its administration.

(4) The time of possession by a ward is also added to that of a person who purchased the property from his guardian. The same rule should be observed in the case of anyone who buys property from the curator of a minor or an insane person. If the sale has been made in behalf of an unborn child, or because possession of the property has been obtained for the purpose of its preservation, or it is diminished on account of a dowry, this addition of the time of possession will also be permitted.

(5) These rules relating to additions of the time of possession are not understood to be as comprehensive as their language indicates; for, even if the property remains in the hands of the vendor after its sale and delivery, the purchaser will only be entitled to the benefit of the time which preceded the sale, even though the vendor did not have the property in his possession when it was sold.

(6) Where an heir sells to anyone property belonging to the estate, the latter will be entitled to the benefit of the time it remained in the hands of the heir, as well as to that during which it was in the possession of the deceased.

16. Paulus, On Sabinus, Book III.

Any period of possession to which our own possession can not be added will be of no benefit whatever to us.

 

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Tit. 4. Concerning the exception founded on fraud and fear.

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1. Paulus, On the Edict, Book VII.

In order that this exception may be more clearly understood, let us first consider the reason why it was introduced, and afterwards ascertain how fraud can be committed. By this means we will learn when this exception operates as a bar, and also against what persons it can be employed. Finally, we shall examine within what time it must be pleaded.

(1) The Praetor introduced this exception in order that no one could, by means of the Civil Law, profit by his own fraud against the rules of natural equity.

(2) In order to ascertain whether a fraudulent act has been committed, the facts of the case must be taken into consideration.

(3) Fraud is committed in contracts, in wills, and in the execution, of the laws.

2. Ulpianus, On the Edict, Book LXXVI.

It is clear that this exception was formulated for the same reason that the action on the ground of bad faith was introduced.

(1) In the next place, let us see in what cases there is ground for this exception, and against whom it may be pleaded. And, indeed, it must be noted, that he whose fraudulent act is complained of must be expressly mentioned, and that the formula in rem, "If any fraudulent act has been committed with reference to the matter," should not be employed, but the following one, namely, "If no fraud has been committed by you as plaintiff." Therefore, the party who pleads the exception must prove that the plaintiff has been guilty of fraud, and it will not be sufficient for him to show that fraud has merely been committed with reference to the case; or, if he alleges it has been committed by certain persons, he must specifically enumerate them; provided they are the parties responsible for the act by which he alleges that he has been injured.

(2) It is evident that the exception is employed in a proceeding in rem if we take into account the person who pleads it, for there is no doubt against whom the fraud was committed, but there is one as to whether or not the plaintiff committed it.

(3) The following matters may be discussed with reference to the First Section, where the causes giving rise to the exception are enumerated. If anyone stipulates with another without any consideration, and then institutes proceedings by virtue of this agreement, an exception on the ground of fraud can properly be pleaded against him; for although, at the time that the stipulation was entered into, he may not have been guilty of any fraudulent act, still it must be said that he committed fraud when he joined issue in the case, and persisted in asserting his claim under the said stipulation. And even if, at the time that the stipulation was made, he had a just cause of action, still it is held that one did not exist at the time of the joinder of issue. Hence, if anyone about to lend money enters into a stipulation, and the money is not lent, although there was a good consideration for the contract, still, as it was not executed, or was terminated, it must be said that the exception can be properly pleaded.

(4) The question is also asked, if anyone should stipulate absolutely for the payment of a certain sum of money, for the reason that this was the intention of the parties; but, after the stipulation was entered into, it was agreed that the money should not be demanded until a certain time, will an exception on the ground of fraud operate as a bar. And, indeed, there is no doubt whatever that an exception can be pleaded on the ground of an informal contract, as anyone who wishes to make use of this exception can do so; for it cannot be denied that he who makes a demand in violation of a contract which he entered into is guilty of fraud.

(5) Generally speaking, it should be noted that, in all cases where exceptions in factum are available, an exception on the ground of fraud can be pleaded in bar, because anyone is guilty of fraud who makes a demand which can be successfully opposed by any exception whatever; for if he did not commit fraud in the beginning, still, by making the claim now he is acting fraudulently, unless he was so ignorant of the facts as not to be guilty of bad faith.

(6) It has not improperly been asked, if a creditor accepts interest in advance on a loan, and persists in demanding payment of the principal before the time has passed for which he has collected the interest, whether he can be barred by an exception on the ground of fraud. It may be said that he is guilty of fraud, for by accepting the interest he is understood to have deferred collection of the debt until the time had elapsed for which interest was paid, and that he tacitly agreed not to demand payment in the meantime.

(7) The question also arises, if anyone should buy a slave who was to be free on condition of paying ten aurei, and the purchaser, being ignorant of this fact, stipulated that, in case of the eviction of the slave, he should be entitled to double his price, and then received the ten aurei from the slave, and as the latter had been evicted, and had obtained his freedom, whether the purchaser could bring an action for double the amount by virtue of the stipulation. He would be barred by an exception, unless he deducted the ten aurei which he received for the purpose of complying with the condition. This was also stated by Julianus. If, however, the slave had paid the money out of the property of the purchaser, or out of his peculium which belonged to the latter, it may be said that an exception could not properly be pleaded, because he was not guilty of fraud.

3. Paulus, On the Edict, Book LXXI.

But if, before the ownership of the slave was transferred to me, he should pay the ten aurei to the vendor, and I should bring an action on purchase in order to recover the ten aurei, I think that I would be entitled to this action, if I was ready to release him from the stipulation to pay double the amount of the price.

4. Ulpianus, On the Edict, Book LXXVI.

The question is asked by Celsus, if the creditors of an estate, with a single exception, should direct Titius to enter upon it, and this one did this for the purpose of deceiving him, but would also have directed him to accept if he had known that Titius would not have consented to do so, and he then brings an action, will he be barred by an exception? Celsus says that he will be barred.

(1) Julianus asks, if a man who is ill promises a hundred aurei to his wife's cousin, with the understanding that the money shall come into the hands of his wife, and he afterwards recovers, whether he can plead an exception on the ground of bad faith when suit is brought against him. Julianus says that it was held by Labeo that he could interpose an exception on the ground of fraud.

(2) If we should consent to a compromise, and appoint an arbiter, " and I do not appear at the appointed time, on account of bad health, and the penalty becomes due, can I avail myself of an exception on the ground of bad faith? Pomponius says that I will be entitled to the benefit of such an exception.

(3) It is also asked, what course must be pursued if you compromise with a debtor who owes you the sum of sixty aurei, and through mistake you stipulate for the penalty of a hundred? Labeo holds that it is the duty of the arbiter to order as much to be paid to you as is actually due, and if this is not done, there is no reason why the excess should not be collected. But he also says, that even if the arbiter failed to state the amount which should be collected, and the penalty should be demanded, an exception on the ground of fraud can be pleaded.

(4) If a debtor pays a ward what he owes him, without the authority of his guardian, and the ward becomes enriched to that extent by this payment, it is very properly held that if he attempts to collect the amount a second time, he will be barred by an exception. For if he was pecuniarily benefited by having loaned money, or by having obtained it by means of some other contract, an exception should be granted. The same rule must be said to apply to all other cases in which payment is illegally made, for if the parties are pecuniarily benefited there will be ground for an exception.

(5) Labeo also says that if anyone should purchase a slave knowing that he had the habit of running away, and stipulated with the vendor that this was not the case, and he afterwards brings an action based on the stipulation, he cannot be barred by an exception, as this was the agreement, although he will not be entitled to an action on purchase. If, however, such an agreement was not made, he will be barred by an exception.

(6) A certain man to whom money was due settled the account with his debtor, and sold his claim to Seius, whom the debtor had directed to purchase it, and the purchaser entered into a stipulation with reference to the transaction, and the creditor then retains the money which he had obtained by a judgment. Can the purchaser bring an action under the stipulation? Ofilius holds that if the vendor of the claim was not ready to pay over the entire amount which he received from the purchaser, an exception on the ground of fraud cannot be properly pleaded against him. I think that the opinion of Ofilius is correct.

(7) Labeo says that where suit has been brought for a slave, and judgment rendered in favor of the plaintiff, and security given by order of court for the slave to be delivered within a certain time, and a penalty has been stipulated for if he should not be delivered, the plaintiff will be barred by an exception if he claims both the slave and the penalty; for to retain possession of the slave and also to exact the penalty would be unjust.

(8) If I give you valuable pearls in pledge, and it is agreed between us that they shall be returned when the debt is paid, and the pearls are lost through your negligence, the question arises whether you can collect the money. An opinion of Nerva and Atilicinus is extant, who hold that I am entitled to an exception, as follows, "If no agreement was made between you and myself that the pearls should be returned to me if the money was paid." The better opinion, however, is that an exception on the ground of fraud can be pleaded in bar.

(9) If a minor should give me a young slave, and afterwards bring an action to recover him, he can be barred by an exception on the ground of fraud, unless he repays the amount furnished for his support, and any other reasonable expenses incurred on account of said slave.

(10) It should, moreover, be noted that if anyone brings suit under a will, against the wishes of the deceased, he can be barred by an exception on the ground of fraud. Hence, an heir can be barred by an exception of this kind, if he acts contrary to the wishes of the deceased.

(11) Where an heir was appointed to the twelfth of an estate, which might be worth two hundred aurei, but preferred to receive a legacy instead, which was only worth a hundred, and did this to avoid being annoyed by the settlement of the estate, and brings an action to recover the legacy, can he be barred by an exception on the ground of fraud? Julianus says that he cannot. But if he received the amount, or what might be considered equivalent to it, from a substituted heir, in order to avoid accepting the estate, and then brings an action to recover the legacy, Julianus says that he is considered to be guilty of fraud, and can be barred by an exception on this ground.

(12) Where I have the usufruct of a tract of land, arid you sell me the land with my consent, the question arises whether I can be opposed by an exception if I bring suit to recover the usufruct? It is our practice that this exception, which is based on bad faith, operates as a bar.

(13) Marcellus says that a replication on the ground of bad faith should not be granted against an exception on the same ground. Labeo concurs in this opinion, for he says that, as both parties are guilty of bad faith, it would be unjust for an advantage to be obtained by the plaintiff and a penalty imposed upon the defendant, for it is far more equitable that the plaintiff should not reap any benefit from a matter in which he has acted deceitfully.

(14) There is no doubt that a replication on the ground of bad faith can be granted against the exception of the Macedonian Decree of the Senate, and it is also provided by the Imperial Constitutions and set forth in the opinions of various authorities that such a replication has the effect of a plea in bar.

(15) Labeo says that, although an action based on a stipulation will lie by virtue of the clause relating to fraud which it contains, still an exception on the ground of fraud may be properly pleaded, if, as he says, anything has been done contrary to the terms of the agreement; for it might be that the plaintiff, before the stipulation was entered into, did not commit any fraudulent act, but did so at the time that he asserted the claim on account of which an exception was necessary.

(16) Neither an exception on the ground of fraud, nor any other which can unfavorably affect the reputation of a patron or a relative in the ascending line, can be pleaded against them. Still an exception in factum can be pleaded, for instance, if it is alleged that the money forming the basis of the claim was not paid, an exception on this ground may be interposed. It, however, makes no difference whether a patron is sued on his own contract, or on one made by another, for respect must always be shown to him living or dead. If, however, a patron brings an action against the heir of his freedman, I think that the latter can interpose an exception based on the bad faith of the patron. The freedman himself, however, can, by no means, plead an exception based on the bad faith of his patron, even if he is sued by the heir of the latter, for it is proper that honor should be shown by a freedman to his patron not only while he is living, but also after his death. It is clear that a clause relating to fraudulent conduct should not be omitted from the stipulation, because an action on fraud arising from such a clause is not brought, but one is brought by virtue of the stipulation.

(17) We can make use of this exception both on account of the fraudulent conduct of a slave, or of any other person subject to our authority, as well as of those by whose fraudulent acts we acquire anything. So far as the fraudulent conduct of slaves and children is concerned, if any action is brought having reference to their peculium, this exception should be pleaded in every instance. If, however, the peculium is not involved, an exception on the ground of bad faith should only be interposed with reference to the matter in question, and not where some fraud was committed afterwards; for it would not be just for the fraudulent acts of the slave to injure his master more than where he made use of his services.

(18) The question arose whether an exception on the ground of bad faith can be pleaded in the case of an agent who has only been appointed to bring the suit. I think that it can be properly maintained that if the said agent was appointed for the purpose of acting in his own behalf (that is to say, if he should commit any fraudulent act before issue was joined), an exception on this ground can be interposed. If, however, he was not acting in his own behalf, an exception can be pleaded only with reference to the fraud committed since proceedings were begun. But when the agent is one to whom the administration of all the business of the principal has been entrusted, Neratius says that an exception can be pleaded on account of any fraudulent act which he may have committed.

(19) I directed Titius to enter into a stipulation for you, Titius afterwards directed Seius to do so, and Seius stipulated for you, and brought suit. Labeo says that you can effectually interpose an exception based on my fraudulent act as well as on that of Seius.

(20) It is also asked, if my debtor should swindle you, and appoint you in his place, and I having made a stipulation with you, bring an action to enforce it, will an exception on the ground of fraud operate as a bar? The better opinion is, that you will not be permitted to plead an exception against me on the ground of the bad faith of my debtor, as I did not swindle you, but you can bring an action on that ground against my debtor.

(21) If, however, a woman should delegate her debtor to her husband, for her dowry, after she had been guilty of fraud, the same rule should be adopted, and the debtor should not be permitted to plead an exception based on the fraudulent conduct of the woman, for fear that she might remain unendowed.

(22) In a case where the heir of a father-in-law is sued to recover a dowry, and pleads an exception based on the fraud of the husband and wife for whose benefit the money is claimed, the question was asked by Julianus whether the exception will operate as a bar, so far as the woman is personally concerned. Julianus says that if the husband sues the heir of his father-in-law for the dowry, and the latter pleads an exception on the ground of fraud committed by the daughter, by whom the money would be obtained, the exception will be effective as a bar; for he holds that the dowry which the husband demands from the heir of the father-in-law is understood to be acquired by the daughter who, by means of it, will obtain her dowry. He does not state whether the heir can also plead an exception based on the fraudulent conduct of the husband. I think, however, that he was also of the opinion that an exception based on the fraud of the husband would operate as a bar, although in this_ instance, as he says, it could not be held that a dowry was acquired by the daughter.

(23) The question whether an exception based on the fraud of a guardian can be effectually pleaded against a ward who brings an action has been discussed by several authorities. I think that even though the interest of wards is favored by such persons, it should still be held that, where anyone fraudulently purchases the property of a ward from his guardian, or makes a fraudulent contract with him concerning the property of his ward, or where the guardian is guilty of any other fraudulent conduct, and the ward is pecuniarily benefited thereby, the latter should be barred by an exception. Nor is it necessary to make any inquiry as to whether security has been given to the ward or not, or whether his guardian is solvent or insolvent, provided he is administering the affairs of the guardianship; for how can he who enters into a contract with a guardian divine these things? If you suggest that someone has entered into collusion with the guardian it is clear that he will be injured by his own act.

(24) If someone who was not the guardian, but acted as such, is guilty of fraud, let us see whether it will injure the ward. I do not think that it will do so, for when, a person who is transacting the business of a guardian sells any property belonging to the ward, and it is obtained by usucaption, the ward will not be prevented from following his own property by an exception, even if he was furnished security, because the administration of his affairs was not granted to this individual. According to this, I think that an exception based on the fraud of the guardian can be pleaded against the ward.

(25), What we have stated with reference to a guardian can also be said to apply to the curator of an insane person, as well as to the case of a spendthrift, and a minor under the age of twenty-five years.

(26) An exception based on fraud committed by a minor of twenty-five years of age can also be pleaded, for sometimes such an exception can undoubtedly be interposed if the minor is of an age when he can legally be guilty of a fraudulent act. Julianus very frequently stated that minors who are near the age of puberty are capable of committing fraud. But what if the debtor of a ward pays a creditor of the latter, to whom he had been delegated? He says that it must be supposed that the ward has arrived at puberty, to avoid the debtor being liable to pay the money twice, under the pretext that the ward does not know what fraud is. The same rule should be observed in the case of an insane person, if, when he was presumed to be of sound mind, he should order his debtor to pay one of his creditors, or if he should have in his house the money for a debt which he has collected.

(27) An exception based on the fraud of the vendor cannot be pleaded against the purchaser. If, however, the latter should avail himself of the addition of the time that the property was in the possession of the vendor, it seems to be perfectly just that he should be responsible for the fraud of the vendor, as he profits by his possession in this way. And, likewise, it is held that an exception which has reference to the property will bar the purchaser, but one which is based upon an offence committed by the person will not do so.

(28) If the estate of Gaius Seius should come into your hands as the heir at law, and I should be appointed heir, and you fraudulently persuade me not to accept the estate, and I afterwards reject it, and you assign your rights to Sempronius after having been paid by him, and he brings suit against me to recover the estate, an exception on the ground of fraud committed by the person who assigned him his rights cannot be pleaded by me against Sempronius.

(29) If, however, anyone claims an estate by virtue of a legacy, or he to whom property was given by way of donation does so, can an exception on the ground of fraud committed by the party whom he succeeded be pleaded against him? Pomponius thinks that he would be barred by such an exception. I also think that those should be barred who are pecuniarily benefited by obtaining such rights, for it is one thing to purchase them, and another to succeed to them.

(30) Pomponius discusses the same question with reference to anyone who receives property in pledge, where the Servian or Hypothecary Action is brought, for he holds that he should be barred because otherwise the property would revert to the person who was guilty of fraud.

(31) The bad faith of the vendor, however, as we have already stated, cannot be pleaded against the purchaser. We observe this rule only with reference to purchasers, and to those who have exchanged property, or received it in payment, as well as to such as occupy the position of purchasers. If, however, a slave has been surrendered by way of reparation for damage, Pomponius thinks that the person who demands the slave, as well as the one who gave him up can have the exception pleaded against him. Hence, where anyone is pecuniarily benefited by acquiring property in any way whatever, an exception on the ground of fraud committed by the person to whose rights he succeeds can be pleaded against him. For it is sufficient if he who has paid the price, or something instead of it, and is a bona fide purchaser, should not suffer through the bad faith of the vendor, provided he himself is not guilty of fraud. If, however, he himself is not free from fraud, he will be liable to the exception on that ground, and must suffer for his own fraudulent act.

(32) If you purchase a tract of land from Titius, which belongs to Sempronius, and it is delivered to you when you pay the price, and Titius afterwards becomes the heir of Sempronius, and sells and delivers the same land to Maevius, Julianus says that the Praetor must protect you in your rights* because if Titius himself should sue you to recover the land, he will be barred by an exception in factum, on the ground of fraud. If Titius himself should be in possession of the land, and you should sue him by the Publician Action, and he should plead an exception against you on the ground that the property is his, you can avail yourself of a replication, as from this it is evident that he, a second time, sold land which did not belong to him.

(33) Cassius did not introduce an exception on the ground of fear, but was content with that based on fraud, which is one of general application. It, however, seems more proper to establish an exception on the ground of fear as a plea in bar; as this, in some respects, differs from one based on fraud, because the latter includes the person of the party who committed the fraud, for an exception on the ground of fraud is a proceeding in rem; as, for instance, "where no act has been committed through fear," so that we do not examine whether the party who brings the action did anything to cause fear, but whether anything was done in the transaction by any person whomsoever, and not merely by the plaintiff, for the purpose of intimidating the defendant. And, although an exception on the ground of the fraud of the vendor cannot be pleaded against the purchaser, still, it is our practice to hold that an exception can be pleaded in bar, where fear has been caused not only by the vendor, but by anyone whomsoever.

(34) It should be noted that this exception on the ground of fear ought not to be pleaded where a son has been intimidated by his father, while under his control. The father, however, is permitted to diminish the amount of the peculium of the son, but if the latter should reject the paternal estate, relief should be granted him, as is ordinarily done.

5. Paulus, On the Edict, Book XVII.

You owe me ten aurei unconditionally. I bequeath you that sum under a condition. If, in the meantime, my heir should bring an action to collect the amount you owe the estate, he cannot be barred by an exception on the ground of bad faith, as the condition may fail to be fulfilled, therefore he should stipulate for the payment of the legacy. If, however, the heir Joes not give security, he will be barred by an exception on the ground of bad faith; for it is to the interest of the legatee to retain the amount in his hands rather than to be placed in possession of the property of the estate.

(1) If a right of way is bequeathed to anyone, and the Falcidian Law being applicable, he should bring an action to recover the entire right of way, without tendering the appraised value of the fourth part of the same, Marcellus says that he can be barred by an exception on the ground of bad faith, as the heir must provide for his own interest.

(2) Where I gave a tract of land to anyone but did not deliver it, and the person to whom I gave it without delivery of possession should build upon said land with my knowledge, and after he has done so I should obtain possession, and he should bring an action against me for what I have given him; and I should interpose the exception that the donation exceeds the limit prescribed by law, can a replication on the ground of bad faith be pleaded? This can be done, for I acted in bad faith when I permitted him to build, and did not reimburse him for his expenses.

(3) Where a slave has been appointed for the collection of money which is due, any act of bad faith subsequently committed by him will prejudice his master.

(4) If a slave is sold by someone who was permitted by his master to dispose of him, and he is then returned to his master, an exception based on his return can be pleaded against the vendor, if he brings suit to recover the price of the slave, even though he who sold him has paid the purchase money to his master. He also will be barred by an exception based on the non-delivery of merchandise who has already paid the money to the owner of the same, and therefore, he who sold the merchandise can bring an action against the owner. Pedius says that the rule is the same where anyone who transacts our affairs makes a sale.

(5) If I delegate to my creditor someone who intends to donate property to me over and above the amount prescribed by law, he cannot make use of an exception against the creditor, if the latter brings suit, because he only claims what he is entitled to. The same rule applies to a husband, for he should not be barred by an exception who acts in his own name. Therefore, can it not also be said that an exception on the ground of the fraud of a wife cannot be pleaded against her husband, when he sues for her dowry, as he would not have married the woman without a dowry, unless a separation had already taken place? Hence the donor, or a woman who has delegated, or released a debtor, is liable to a personal action brought by the latter, either to obtain his release, or, if he has paid what was due, in order that the money may be refunded to him.

(6) The case is not the same where an exception on the ground of fraud is granted, as it is where a right of action is extinguished within a certain time; for the exception is perpetual, as the plaintiff has the power to avail himself of his privilege whenever he desires to do so, but the defendant can only plead the exception after he has been sued.

6. Gaius, On the Provincial Edict, Book XXX.

If, through the agency of a creditor, his debtor should happen to lose the money which he was about to pay him, the creditor will be barred by an exception on the ground of fraud. The same rule will apply when the creditor does not ratify the payment of money by his debtor to his own creditor.

7. Ulpianus, On the Edict, Book LXXVI.

Julianus says that if I think that I owe you money, and by your order I promise to pay it to someone to whom you wish to donate it, I can protect myself by an exception on the ground of bad faith; and, in addition to this, I will be entitled to an action against the stipulator to compel him to release me.

(1) Julianus also says that, if you think that a certain person is your creditor, and by your direction I promise to pay him a sum of money which I believe that I owe you, and he brings suit to recover it, he should be barred by an exception on the ground of fraud; and further, if I institute proceedings against the stipulator, I can compel him to release me from the agreement. This opinion of Julianus is equitable, so that I can make use of an exception, as well as bring a personal action against the person to whom I obligated myself.

8. Paulus, On Plautius, Book VI.

He is guilty of fraud who demands something which he should return.

(1) If an heir has been charged not to collect anything from a debtor of the estate, the latter can avail himself of an exception on the ground of fraud, and can also bring suit under the terms of the will.

9. The Same, On the Edict, Book XXXII.

If the agent for a defendant suffers judgment to be rendered against him, after the money has been paid, and proceedings to enforce the judgment have been instituted against his principal, the latter can protect himself by pleading an exception on the ground of fraud. Nor can he be compelled to give up what he entrusted to his agent, for it is more just to permit money which has been dishonorably obtained to remain in the hands of the person who was deceived than under the control of him who was responsible for the deceit.

10. Marcianus, Rules, Book III.

When either a husband or a wife builds upon land which one of them has given to the other, it is the opinion of several authorities that they can hold the property by means of an exception on the ground of fraud.

11. Neratius, Parchments, Book IV.

Where an agent brings an action, an exception based on his bad faith should not be interposed against him, because the suit is that of another, and he is a stranger to it, and the bad faith of one person should not injure another. If he commits a fraudulent act after issue has been joined, it may be doubted whether an exception on this ground can be pleaded; because, by the trial of the case, it becomes that of the agent, and he conducts it, to some extent, in his own name. It has been decided that an exception can be pleaded on account of fraud committed by the agent. The same rule will apply to the case of a guardian who brings an action in the name of his ward.

(1) In general, however, the following rule should be observed in matters of this kind, that is to say, that fraud should always be punished, even if it will not injure anyone but the person who committed it.

12. Papinianus, Questions, Book III.

Where the justice of the defence affords means for the dismissal of an action, the defendant can be protected by an exception on the ground of fraud.

13. Paulus, Questions, Book XIV.

When a will is broken, the rights of children who have been disinherited and who have received nothing from their father's will should be preserved, and an exception on the ground of bad faith cannot be pleaded against them. This not only applies to them personally, but also to their heirs and descendants.

14. The Same, Opinions, Book III.

Paulus gave it as his opinion that where a man builds a house upon the land of another, he cannot recover the expenses he incurred unless he was in possession, and the owner brings an action against him to recover the land, in which case, he can oppose him by an exception on the ground of fraud.

15. Scaevola, Opinions, Book V.

A surety having had judgment rendered against him on account of eviction was ready to return the land from which the purchaser was evicted, and everything else which was included in the contract of sale. If the purchaser pleads the exception based on res judicata, I ask whether he can be barred by one on the ground of fraud. The answer was that the exception can be pleaded against him, but that the judge will see that he satisfied the purchaser for all the damage which the latter has sustained.

16. Hermogenianus, Epitomes of Law, Book VI.

If a debtor delegated by an insane person whom he supposed to be of sound mind should pay the creditor of the latter, and for this reason suit should be brought against him, he can protect himself by an exception based on fraud, on the ground that the insane person profited by the transaction.

17. Scaevola, Digest, Book XXVII.

A father promised a dowry for his daughter, and entered into an agreement that he would support her and all her family. This foolish man made a note payable to his son-in-law in lieu of the interest due on the promise to give a dowry. As he had supported his daughter, and her husband had been at no expense on this account, the question arose whether an exception on the ground of bad faith could be pleaded in bar against the son-in-law, if he brought suit under the stipulation for the purpose of collecting the note? The answer was, that if her father had supported her, as was stated, and had made the promise by mistake, then an exception on the ground of bad faith could be interposed.

(1) A grandfather bequeathed a hundred sesterces to each one of his grandchildren by his daughter, and added the following words, "I ask you to pardon me, for I could have left you much more if your father Fronto had not treated me badly, for I lent him fifteen aurei-which I could not collect, and finally, the enemy deprived me of almost all my property." If the heir of the grandfather should bring an action to collect the fifteen aurei from the said grandchildren, who were the heirs of their father, the question arose, would he be considered to have acted against the will of the deceased, and could he be barred by an exception on the ground of fraud? The answer was that the exception would operate as a bar.

(2) An heir who was appointed to the fourth of an estate purchased for a certain sum of money the share of his co-heir who had been appointed heir to three-fourths of it, executed promissory notes for the deferred payments, and bound himself by a stipulation. The vendor of the estate died; Septitius attacked the will as being forged, and having brought suit to recover the estate from the purchaser, obtained an order of court to prevent him from disposing of any part of it. The question arose whether the heirs who brought suit under the stipulation, while a case involving the genuineness of the will was pending, could be barred by an exception on the ground of fraud. The answer was that the heirs of the vendor could be barred by an exception on the ground of fraud if they persisted in demanding payment of the notes before the case relating to the will was decided.

(3) A woman, having appointed her husband and her son heirs to equal portions of her estate, also appointed a daughter whom she had had by a former marriage her heir, as follows: "Let my daughter, Maevia, be the heir to six-twelfths of my estate, if she accounts to her co-heirs for what I shall owe her at the time of my death, growing out of the accounts of her guardianship, which my father, Titius, her grandfather, administered." As this daughter had been appointed under a condition, if she should reject the estate in order to preserve the right of action on guardianship, the question arose whether she could claim the legacy which had been bequeathed to her by her mother. The answer was that, in accordance with the facts stated, she made the claim in question contrary to the wishes of her mother, and therefore she would be barred by an exception on the ground of bad faith.

 

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Tit. 5. Under what circumstances an action shall not be granted.

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1. Ulpianus, On the Edict, Book LXXVI.

An oath taken in court has the same effect as a judgment, and this is not unreasonable, as where a party tenders an oath to his adversary, he appoints him judge in his own case.

(1) If a ward tenders an oath without the authority of his guardian, we hold that this exception will not operate as a bar, unless it was tendered in court by the authority of the guardian.

(2) If a litigant who claims a tract of land tenders the oath to his adversary, and says that if the person from whom he obtained the land is willing to swear that he delivered it to him, he will abandon the case, an exception will be granted to the party in possession of the land.

(3) If a surety should make oath in court only with reference to himself personally, that is to say, that he is not liable, this will be of no advantage to the principal debtor; and if he should take the oath with reference to the property, an exception will be granted to the principal debtor.

(4) If I manumit a slave who, while in servitude, was accustomed to transact my business, and I afterwards stipulate with him for the payment of all that he would have been obliged to pay me, if he had been free at the time when he transacted my business, and I bring suit under the stipulation, I will not be barred by an exception, for a freedman cannot complain that he is oppressed, because he was not allowed to profit pecuniarily through the use of the property of his patron.

(5) If I make a stipulation for the purpose of placing restrictions on freedom, I cannot enforce it against my freedman. Restrictions on freedom have very properly been defined to be such as are imposed in such a way that if a freedman should offend his patron, they can be exacted from him, so that he remains continually under the apprehension that they will be required, and, on account of this apprehension, he will submit to anything that his patron demands.

(6) In a word, if some obligation is imposed upon a freedman, to take effect the moment he obtains his liberty, it must be said that there will be ground for an exception. If, however, this is done after an interval, the question admits of doubt, for no one could force him to make such a promise. Still, in this instance, the same conclusion must be arrived at if, after an investigation has been made, it is apparent that the freedman subjected himself to his patron in such a manner as to be rendered liable to a penalty under the stipulation either through fear alone, or on account of excessive respect for him.

(7) If a freedman should form a partnership with his patron in consideration of obtaining his liberty, and his patron should bring an action on partnership against him, will this exception be necessary? I think that the freedman will be released from the exactions of his patron merely by operation of law.

(8) It must be remembered, that an exception allowed because of oppressive conditions imposed on freedom, just like other exceptions, should not be refused a surety, nor anyone who, at the request of a freedman, has rendered himself liable; nor will it be denied to the freedman himself if he should be appointed the attorney of the principal debtor in order to defend his case, or if he should become his heir. For, as the intention of the Praetor, in obligations of this kind, is to assist the principal debtor, his design would not be effected unless the freedman should defend the surety, or him who had become liable at the request of the freedman against his patron. For it makes little difference whether the freedman is obliged to pay the patron directly, or to do so through the intervention of the surety, or through someone who has become liable on his account.

(9) Whether the promise has been made for the benefit of the patron himself, or for that of another with the consent of the former, it will be considered to have been made with the design of placing restrictions upon freedom, and therefore there will be ground for this exception.

(10) If, however, a patron should delegate his freedman to his creditor, let us see whether the former can avail himself of this exception against the creditor to whom, having been delegated, he made a promise which had the effect of placing restrictions upon his freedom. Cassius says it was the opinion of Urseius that the creditor could, by no means, be barred by the exception, because he only received what he was entitled to; but that the freedman could recover from his patron what he had paid, if he had not done this for the purpose of settling the controversy which had arisen with reference to his manumission.

(11) Again, if a freedman should delegate his own debtor to his patron, the latter cannot be barred by an exception, but the freedman can recover the amount of the debt from his patron by means of a personal action.

(12) This exception should be granted not only to the freedman himself, but also to his successors; and, on the other hand, it should be noted that the heir of the patron can be barred if he attempts to collect the money.

2. Paulus, On the Edict, Book LXXI.

If the oath is tendered to a son under paternal control, and he swears that his father does not owe anything, the exception should be granted to the father.

(1) If, where a game of chance is being conducted, I sell something in order that I may play, and the property having been evicted, suit is brought against me, the purchaser will be barred by an exception.

(2) If a slave promises a sum of money to his master in order that he may be manumitted, and his master would not otherwise have manumitted him, and, having become free, he renews his promise, it is held that his patron will not be barred by an exception if he sues to recover the money, for this sum was not promised for the purpose of placing restrictions upon freedom; otherwise it would be unjust for the master to be deprived of the slave as well as of his price. Therefore, money is promised for the purpose of imposing restrictions upon freedom whenever a master voluntarily manumits his slave, and afterwards wishes him to promise a sum of money, not with the intention of exacting it from him, but in order that his freedmen may fear and obey him.

 

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Tit. 6. Concerning property in litigation.

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1. Ulpianus, On the Edict, Book LXXVI.

When notice is served for the purpose of preventing a sale, this does not render the property in question subject to litigation.

(1) Where the title to property is in controversy between two persons, and I purchase it from a third, whose claim is not liable to dispute, let us see whether there will be ground for an exception. I think that I will be entitled to relief, because he who sold me the property was not engaged in any lawsuit, and it might happen that two others had agreed with one another to dispute the title to the property for the purpose of injuring him, as they could not involve him in litigation. If, however, proceedings have been instituted against the agent, guardian, or curator of anyone, it can be said that they have been instituted against the principal, and therefore that he will be entitled to an exception.

2. The Same, Trusts, Book VI.

If, when a slave purchased property, he knew that it was in litigation, but his master was not aware of this, or vice versa, let us see whose knowledge of the fact should be taken into account. The better opinion is that the knowledge of him who purchased the property, and not that of him by whom it was acquired, should be considered. Hence, the penalty attaching to the purchase of the above-mentioned property, which is in litigation, can be collected, provided the slave did not buy it under the direction of his master, for if he did so, even if he knew that the title was in dispute, and his master was ignorant of the fact, the knowledge of the slave will not prejudice him. This was also stated by Julianus with reference to property in litigation.

3. Gaius, On the Law of the Twelve Tables, Book VI.

We forbid property which is in litigation to be dedicated to sacred purposes, otherwise a double penalty will be incurred, and this is not unreasonable, as in this way the condition of an adversary is prevented from becoming more oppressive. It is, however, not stated whether the double penalty should be paid to the Treasury, or to the adverse party. Perhaps it should be paid to the latter, in order to console him for being delivered over to a more powerful opponent.

 

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Tit. 7. Concerning obligations and actions.

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1. Gaius, Golden Matters, Book II.

Obligations arise whether from contract, from crime, or from various other causes by operation of law.

(1) Obligations arise from contracts either by words or by consent.

(2) In the case of a loan for consumption, the obligation is contracted with reference to the property lent. Such a loan consists of articles which can be weighed, counted, or measured; as, for instance, wine, oil, grain, and money; we also lend things in such a way that their ownership vests in the person who receives them with the expectation that other articles of the same kind and quality will be given us in return.

(3) He to whom we lend anything for use is liable to us on account of the transfer of the property, but he is also obliged to restore the very same thing which he received.

(4) He, however, who has received a loan for consumption, still remains liable if he loses what he receives by any accident whatsoever; but anyone who receives an article for use is released from liability if he loses what he received by an accident which human weakness could not provide against (as, for example, by fire, by the falling of a building, or by shipwreck). He is, nevertheless, held to the strictest diligence in taking care of the article loaned; nor will it be sufficient if he loses what he received by an accident which human weakness to his own property, provided another could have exercised greater vigilance in its preservation. He is also liable for occurrences which could not be prevented when it was his fault that the property was lost; for instance, if anyone, having invited his friends to supper, should borrow silverware for that purpose and then, having gone on a journey and taken the silverware with him, should lose it, either by shipwreck or by an attack of robbers or enemies.

(5) He, also, with whom we deposit property is liable to us for it, and is obliged to return the same article which he himself received. If, however, he should, through negligence, lose what was entrusted to his care, he will be free from liability, as he did not receive it for his own benefit, but for that of the person from whom he obtained it, and he will only be responsible if any of it was lost through fraud. He, however, will not be liable on the ground of negligence, who entrusted his property to a friend of his, who was careless, for he has only himself to blame. Still, it has been decided that gross negligence is included in the offence of fraud.

(6) A creditor who has received property in pledge is also liable on this ground, and is obliged to return the very same article which he received.

(7) An obligation is verbally contracted by question and answer; as when we stipulate that something shall be paid to or done for us.

(8) Anyone can be bound either in his own name or in that of another. Where a person is bound in the name of another, he is called a surety, and we frequently bind a man in his own name, and receive others from him who are bound by the same obligation, in which way we provide for the better discharge of an obligation which is contracted for our benefit.

(9) If we stipulate for something to be given to us, which is of such a nature that this cannot be done, it is evident that such a stipulation is void by natural law; as, for example, if an agreement is entered into for the delivery of a freeman, or for that of a slave who is dead, or for a house which has been burned, and this is done between parties who did not know that the man in question was not free, or that the slave was dead, or that the house had been destroyed by fire. The rule is the same if anyone should stipulate for the transfer of a sacred or religious place to himself.

(10) A stipulation is also void if a person contracts for property which belongs to himself, not knowing that this is the case.

(11) It is also established that a stipulation made under an impossible condition is void.

(12) It is clear, by natural law, that the act of an insane person who makes either a stipulation or a promise is of no effect.

(13) He resembles a child who is of such a tender age that he does not yet comprehend what he is doing. The law, however, is more indulgent to him, for anyone who can speak is believed to be capable of making a valid stipulation or promise.

(14) It is perfectly clear that a mute cannot contract a verbal obligation.

(15) The same rule also applies to a person who is deaf, for, if he can speak or promise, he should hear the words of the stipulator; but if he stipulates, he should hear the words of the promisor. Hence it is apparent that we are not speaking of one who hears with difficulty, but of one who does not hear at all.

2. The Same, Institutes, Book III.

Obligations are contracted by consent in the case of purchases, sales, hirings, leases, partnerships, and mandates.

(1) We say that obligations are contracted by consent in these ways, because formality of words or writing is not essential; but it is sufficient for those who transact the business to consent.

(2) Hence such obligations may be contracted between parties who are absent, as, for instance, by letter or by messenger.

(3) Moreover, in contracts of this description each of the parties is bound to the others for whatever should be done, consistent with justice and good faith.

3. Paulus, Institutes, Book II.

The nature of obligations does not consist in the fact that they render some property or some servitude ours, but that they require us to give something, to do something, or to be responsible for something.

(1) In the case of a loan in order for the obligation to be contracted it is not sufficient for the money merely to be given and received, but it must be given and received with the understanding that this will be the case. Therefore, if anyone gives his money to me as a donation, although it belongs to the donor, and passes into my hands, still I am not liable to him for it, because this was not our intention.

(2) A verbal obligation is also contracted, if this was the intention of the parties; for instance, if I should say to you by way of jest, or for the purpose of explaining what a stipulation is, "Do you promise me So-and-So?" and you answer, "I do promise," an obligation will not arise.

4. Gaius, Diurnal or Golden Matters, Book III.

Obligations also arise from criminal acts, for example, from theft, damage, robbery, injuries, all of which offences are of the same kind, for they are all derived from the matter itself, that is to say from the offence; while, on the other hand, obligations arising from contract are not only derived from the transfer of the property, but also from the words and the consent of the parties.

5. The Same, Golden Matters, Book III.

Where anyone who transacts the business of an absent person performs some act by virtue of a mandate, it is evident that, from the contract which is made, actions on mandate will lie between the parties, in which each of them can prove how one should act toward the other in compliance with the rules of good faith. If, however, the agent acts without a mandate, it has been decided that the parties will be mutually liable; and, on this account, proceedings have been introduced which we designate actions based on voluntary agency, by means of which we can compel one another to do whatever justice and good faith demand. Actions of this kind, however, do not arise either from contracts or from crimes, for he who transacts the business of another during his absence is believed to have made an agreement with him previously ; and it is no breach of the law to undertake to transact the business of another without a mandate. Thus, it can still be said that he whose business has been transacted without his knowledge has either made a contract or committed a criminal offence; but through motives of convenience it has been established that the parties are liable to one another. This rule has been adopted for the reason that men frequently depart for foreign countries with the intention of speedily returning, and, on this account, do not commit the care of their business to anyone; and afterwards, through the occurrence of unforeseen events, they are necessarily absent for a longer time than they expected to be, and it is unjust that their business should suffer which would, indeed, happen if the person who offered to attend to their affairs should not be entitled to an action to recover any expense which he had properly paid out of his own purse; or if he whose affairs had been transacted should have no right of action against him who took charge of his business without authority.

(1) Those who are liable to an action on guardianship are not, properly speaking, considered to be bound on account of contracts, as no agreement is entered into between guardian and ward. But, for the reason that they cannot be held responsible on account of a criminal offence, they are considered to be liable under a quasi contract. In this case, also, the actions are reciprocal. For not only can the ward bring suit against his guardian, but, on the other hand, the guardian is entitled to an action against his ward, if he has expended anything upon the property of the latter, or becomes responsible for him, or encumbered his own property to one of his creditors.

(2) An heir who owes a legacy is not understood to be liable either on account of a contract or a crime, for a legatee is not understood to have made any contract with the deceased, or with his heir, and it is perfectly clear that no criminal offence has been committed in a case of this kind.

(3) He, also, who, through the mistake of the person who made the payment, received something to which he was not entitled, is bound as in the case of a loan, and is liable to the same action as that to which a debtor is liable to his creditor. It should not, however, be understood that he who is responsible in a case of this kind is bound by a contract; for anyone who pays money by a mistake does so rather with the intention of discharging an obligation than of contracting one.

(4) If a judge should render an improper decision, he is not, strictly speaking, considered to be liable on account of a crime, nor is he bound by virtue of a contract; still, as he has committed a fault, even if this was done through ignorance, he is considered to be liable on account of a quasi offence.

(5) He, also, is considered to be liable on account of a quasi offence, if, from an apartment which belongs to him, or which he has leased, or occupies gratuitously, he throws down, or pours out anything so that it injures a passer-by. Hence, he cannot properly be understood to be liable on account of having committed an offence, because very frequently he is responsible for the carelessness of another, for instance, for that of a slave, or a child. He resembles one who places or hangs something in a part of the house under which people are accustomed to pass, and which may injure someone, if it should fall. Therefore, if a son under paternal control, who lives separately from his father, should throw down or pour out anything from his apartment, or should place or hang anything above the street which threatens injury to the passers-by, it is the opinion of Julianus that an action should be granted against the son himself, and that neither an action De peculia nor a noxal action should be granted against the father.

(6) Likewise, the master of a ship, or the proprietor of a tavern or an inn, is held to be responsible for a quasi criminal offence for any damage or theft which may be committed on board the ship, or in the tavern or inn, provided he does not himself commit the offence, but someone does whom he employs on the ship, or in the tavern or inn; for as this action cannot be brought against him on account of a contract, and as he is, to a certain extent, guilty of neglfgence for making use of the services of bad men, he is considered to be liable on account of the quasi criminal offence.

6. Paulus, On Sabinus, Book IV.

In all temporary actions, my liability is not ended until the last day has entirely expired.

7. Pomponius, On Sabinus, Book XV.

Actions cannot be granted to a son against his father as long as he remains under his control.

8. The Same, On Sabinus, Book XVI.

An obligation contracted under the following condition, "If I wish," is void; for when you cannot be compelled to give anything unless you desire to do so, it is just as if nothing had been said. The heir of anyone who makes a promise, and who never expects to perform it, is not liable, because this condition has never been complied with, so far as the promisor himself is concerned.

9. Paulus, On Sabinus, Book IX.

A son under paternal control is not entitled to an action in his own name, except for the reparation of injury sustained, and where he has been deprived of property by violence or clandestinely, or to recover property which he has deposited or lent; which is the opinion of Julianus.

10. The Same, On Sabinus, Book XLVII.

Natural obligations should not be considered merely because no action can be brought on account of them, but also for the reason that where money has been paid which was not due it cannot be recovered.

11. The Same, On Sabinus, Book XII.

Whatever acts we perform which derive their origin from our contracts are void, unless the beginning of the obligation is ours personally ; and hence we can neither stipulate, purchase, sell, or contract in such a way that another can properly bring an action on this ground in his own name.

12. Pomponius, On Sabinus, Book XXIX.

An heir is liable in full where fraud has been committed by the deceased in contracts of deposit, loan for use, mandate, guardianship, and voluntary agency.

13. Ulpianus, Disputations, Book I.

Actions in factum can even be brought by a son who is under paternal control.

14. The Same, Disputations, Book VII.

Slaves are responsible for their crimes, and remain so even after their manumission; they are not, however, civilly liable for their contracts, still, they are bound, and they bind others in accordance with natural law. Finally, I shall be released from liability if, after a slave has been manumitted, I pay him a sum of money which he has lent me.

15. Julianus, Digest, Book IV.

A certain man who brought an action against an heir was barred by an exception on the ground that the will was about to be set aside for the reason that possession of the estate could be granted to an emancipated son. The said emancipated son having failed to demand possession of the estate, the creditor could very properly ask that his right of action against the appointed heir should be restored to him, for as long as the possession of the estate could be granted to the son contrary to the provisions of the will, the heir, to a certain extent, was not a debtor.

16. The Same, Digest, Book XIII.

A man borrowed a sum of money from a slave forming part of an estate, and gave him by way of pledge a tract of land or a slave, and having requested that the land or the slave be retained by him under a precarious title, he kept possession of it under such a title. He did this because a slave belonging to an estate acquired property for it by accepting delivery of the same; and by granting property under a precarious title, the result is that it cannot be acquired by usucaption. For if he had lent the property for use, or deposited it, and it had formed part of his peculium, he would have the right to bring an action on loan or deposit for the benefit of the estate. This occurs where the contract was made with reference to his peculium, for it should be understood that possession of property is acquired under such circumstances.

17. The Same, Digest, Book XLVII.

All debtors who owe property for a valid consideration are released where the property comes into the hands of creditors in some other way from which they obtain pecuniary benefit.

18. The Same, Digest, Book LIV.

If anyone, who has stipulated to give Stichus, becomes the heir of a person who is entitled to the said Stichus under the terms of a will, and he brings suit under the will to recover Stichus, he does not annul the stipulation. On the other Rand, if he brings an action to recover Stichus under the stipulation, he will still be entitled to one under the will; because in the beginning, these two obligations were contracted in such a way that if one of them was brought into court, the other would, nevertheless, remain unimpaired.

19. The Same, Digest, Book LXXIII.

A lucrative title is not considered to arise from the promise of a dowry, for the reason that he who claims the dowry is understood to be, to a certain extent, a creditor or a purchaser. However, when a creditor or a purchaser obtains property by some lucrative title, he still retains the right to the action to recover it; just as, on the other hand, a person who does not obtain the property by a lucrative title is not prevented from bringing an action to recover it on this account.

20. Alfenus, Digest, Book II.

A slave should not, under all circumstances, go unpunished, where he has listened to the commands of his master; for instance, when the latter has ordered him to kill someone, or to commit a theft. Wherefore, although a slave may commit piracy by order of his master, he should be prosecuted for doing so after he has obtained his freedom; and any act of violence which he may have committed, which is criminal, will render him liable to punishment. If, however, a quarrel arose on account of a controversy or a dispute, or force was employed for the purpose of maintaining a right to which his master was entitled, and no crime was perpetrated, then the Praetor should not grant an action on this ground against a freedman, who, when a slave, had obeyed the commands of his master.

21. Julianus, On Minicius, Book V.

Everyone is considered to have made a contract in the place where he bound himself to pay.

22. Africanus, Questions, Book III.

When anyone stipulates for merchandise, and accepts a surety to be furnished on a certain day, the time must be computed from the day when he received the security.

23. The Same, Questions, Book VII.

A stipulation was entered into with reference to money to be employed in commerce, and as is customary, a penalty was inserted therein for the purpose of indemnifying the person who furnished the money, if it should not be paid by the specified time. The latter demanded the money, and a part of it having been paid, he neglected to demand the remainder then, but, after the lapse of some time, he did demand it. A jurist, having been consulted, gave it as his opinion that the penalty could be collected for the time during which the debtor had not been notified to pay, and that this could even be done if he had not been notified at all; and that the stipulation would become inoperative only where the debtor was responsible for payment not having been made. Otherwise, it must be said that, if he who had begun to push the claim should cease to do so because he was prevented by illness, the penalty would not attach. Hence, a doubt may arise, if the debtor, having been notified to pay, should himself be in default, whether the penalty would not attach, even though he afterwards tendered the money. This may be said to be more equitable, for if an arbiter appointed to arrange a settlement should order the money to be paid by a certain time, and he whom he ordered to pay it is not in default, it is held that the penalty will not attach; and therefore, Servius very properly held, if the day when the money was to be paid was not included in the decision of the arbiter, a reasonable time should be held to have been granted. The same rule will apply where anything has been sold under the condition that, unless the price is paid by a certain time, the transaction will be void.

24. Pomponius, Rules.

If I borrow a sum of money from an insane person, believing that he is of sound mind, and I employ that money for my own benefit, the insane person will be entitled to an action to recover it. For, as rights of action are acquired by us under certain circumstances, when we are not aware of the fact, so, under similar circumstances, actions can be brought in the name of insane persons; for example, if the slave of such a person enters into a stipulation, or property is stolen from him, or he is injured in such a way that suit can be brought under the Aquilian Law; or if he is a creditor, and his debtor should convey property to someone with the intention of defrauding him. The same rule is applicable where a legacy is bequeathed to an insane person, or property is left to him under the terms of a trust.

(1) Likewise, if anyone who has lent money to the slave of another afterwards becomes insane, and the slave employs the borrowed money for his master's benefit, the insane person will be entitled to an action to recover it.

(2) Again, if anyone who has lent money belonging to another should afterwards become insane, and the money be expended, an action to recover it will be acquired by the insane person.

(3) Anyone who transacts the business of an insane person is liable to him in an action on the ground of voluntary agency.

25. Ulpianus, Rules, Book V.

There are two kinds of actions, one a real one, which is styled vindictio, and the other a personal one, which is called condictio. The real action is that by which we sue for property belonging to us which is in the possession of another, and it is always brought against the party in possession. The personal action is one which we bring against a person who is bound to do something for, or give something to us, and it is always against him that it is brought.

(1) Some actions are based on contract, others on an act, and others still are in factum. An action is founded upon a contract whenever one person has entered into an agreement with another for his own advantage; as, for instance, by a purchase, a sale, a hiring, a lease, and other transactions of this kind. An action based on an act is where anyone is liable for some offence which he himself has committed; for instance, a theft or an injury, or for some damage which he has caused. An action in factum is, for example, one which is granted to a patron against his freedman, by whom he has been brought into court in violation of the Praetorian Edict.

(2) All actions are said to be either civil or praetorian.

26. The Same, On Taxes, Book V.

All penal actions pass to heirs, after judicial proceedings have been instituted.

27. Papinianus, Questions, Book XXVII.

Obligations which are not valid themselves cannot be rendered so either by the decision of the judge, the order of the Praetor, or the power of the law.

28. The Same, Definitions, Book I.

The claim made against a person is designated an "action;" one made against a thing is called a "petition," the term "pursuit," instituted for the purpose of recovering the property, is employed both against things and persons.

29. Paulus, Opinions, Book IV.

A certain sum of money was due to Lucius Titius under a judgment. He lent the same debtor another sum of money, and in taking security for its payment, he did not mention that the amount due under the judgment should also be given to him. I ask whether Lucius Titius is entitled to both actions. Paulus answered that there is nothing in the case stated why both rights of action should not remain unimpaired.

30. Scaevola, Opinions, Book I.

Where a man has been reduced to slavery, and afterwards obtains his freedom through the indulgence of the Emperor, he cannot, for this reason, be said to assume his obligations to his creditors.

31. Marcianus, Trusts, Book II.

Not only stipulations, but also any other contracts which have been made under impossible conditions are considered to be of no force or effect; as, for instance, sales or leases, where they are dependent upon impossible events, are also void; because when an agreement is made between two or more persons the intention of all of them is taken in account, and there is no doubt that they think a contract of this kind cannot be executed, if a condition is imposed which they know to be impossible.

32. Hermogenianus, Epitomes of Law, Book II.

When several actions arise from one single crime, as happens when trees are said to be cut down by stealth, it was established, after many differences of opinion, that proceedings could be instituted against all the parties.

33. Paulus, Decrees, Book III.

While it has been set forth in certain Imperial Constitutions that heirs, generally speaking, are not liable to a penalty, it has, nevertheless, been decided that if the deceased had been sued during his lifetime, his heirs will be subject to the penalty, on the principle that issue had been joined with the deceased.

34. The Same, On Concurrent Actions.

Anyone who strikes the slave of another in such a way as to injure him becomes liable by his act to a suit under the Aquilian Law, as well as to one for the reparation of damage, for injury is intentionally-committed, and damage is caused by negligence; therefore both actions will lie. There are, however, certain authorities who hold that when one of these actions is chosen, the other is lost; and others are of the opinion that if the action under the Aquilian Law is selected, the one for the reparation of damage will be lost; since it ceases to be proper and equitable for judgment to be rendered against him who has paid the amount of damages appraised. If, however, the action for reparation of damage has already been brought, the party will still be liable under the Aquilian Law. This opinion should be restricted by the Praetor, unless suit is brought for the excess that can be obtained under the Aquilian Law. Hence it is more reasonable to admit that the plaintiff can make his choice of the actions, and afterwards employ the other to collect anything more than he can obtain by the first one.

(1) If anyone steals an article which I have lent to him for his own use, he will be liable both to an action on loan, and to a personal action to recover the property, but either one of these proceedings annuls the other, either by operation of law, or by the pleading of an exception; which is the better opinion.

(2) Hence it was held with reference to the tenant who had stolen something belonging to the land, that he was liable both to an action for the recovery of the property, to one for theft, and to one on the lease. The penalty of theft is not merged, but the other two actions are. This is applicable to the proceeding under the Aquilian Law; for if I lend you clothing, and you tear it, both actions will lie to recover the property. After suit under the Aquilian Law has been brought, the right to sue on the loan is extinguished; and after the action on the loan is instituted, there is some doubt as to whether the one under the Aquilian Law cannot be brought within thirty days, for the reason that it is more advantageous. The better opinion is, that the right to bring it is retained, because it adds to the simple value of the property, and if the simple value has been paid, there will be no ground for bringing it.

35. The Same, On the Principal Edict, Book I.

With reference to praetorian actions, Cassius says that it must be held that such as permit the pursuit of the property may be granted after a year has expired, and the others within the year. Praetorian actions, however, which are not granted after the year has elapsed, are not available against an heir; still, any profit which he has acquired may be exacted from him, just as happens in an action on the ground of fraud, in the interdict Unde vi, and in other proceedings of this description. These include the pursuit of the property, by which we endeavor to recover anything which has been taken from our patrimony, and when we proceed against the possessor of the estate of our debtor. The Publician Action, which is granted for the purpose of recovering property, is also the same kind. Where, however, this action is granted on the ground that usucaption has been interrupted, the right is extinguished within a year, because it is granted contrary to the principles of the Civil Law.

(1) An action on a contract made by municipal magistrates is granted against the duumvirs and the municipality after a year has elapsed.

36. Ulpianus, On the Edict, Book II.

In personal suits for the recovery of property, a judgment does not always imply disgrace, even though it may be rendered in cases involving infamy.

37. The Same, On the Edict of the Praetor, Book IV.

In the term "action" are included real, personal, direct, equitable, and prejudicial actions, as Pomponius says, and also praetorian stipulations, because they take the place of actions, as well as proceedings to provide against threatened injury, to insure the payment of legacies, and others of this kind. Interdicts are also embraced in the term "action."

(1) Mixed actions are those in which both parties are plaintiffs; as, for example, such as are instituted for the settlement of boundaries, suits in partition, and for the division of property owned in common, and the interdicts Uti possidetis and Utrubi.

38. Paulus, On the Edict, Book III.

We are not bound by the form of the letters, but by the meaning which they express, as it has been decided that writing shall not have less validity than what is meant by words uttered by the tongue.

39. Gaius, On the Edict, Book III.

A son under paternal control, like the head of a household, is bound by all kinds of titles, and suit can be brought against him on this ground, just as can be done against a person who is independent.

40. Paulus, On the Edict, Book XI.

Legacies are considered as claims against an estate, although they begin to be payable by the heir.

41. The Same, On the Edict, Book XXII.

Whenever the law introduces an obligation, unless it is especially provided that we shall only make use of one action, even ancient actions will lie for this purpose.

(1) If two actions for the same cause can be brought, and the plaintiff could have recovered a larger sum by making use of the other, which he did not bring, it will be the duty of the court to render a decision in his favor for that amount; but if he could only have recovered the same sum, or less, the second action will be of no advantage to him.

42. Ulpianus, On the Edict, Book XXI.

A person, to whom a legacy was bequeathed under a condition is not a creditor of the estate while the condition is pending, but only after it has been fulfilled; although it is established that anyone who stipulated under a condition remains a creditor while that condition is in abeyance.

(1) We should understand creditors to be those who are entitled to a civil action (provided they cannot be barred by an exception), or a praetorian action, or an action in factum.

43. Paulus, On the Edict, Book LXXII.

The head of a household that has arrived at the age of puberty, who is his own master, and of sound mind, can obligate himself. A ward cannot become liable under the Civil Law without the authority of his guardian. A slave cannot be bound by a contract.

44. The Same, On the Edict of the Praetor, Book LXXIV.

There are four different kinds of obligations, for they are contracted with reference to a certain time, or under a certain condition, or with reference to a certain measure, or dependent upon certain results.

(1) There are two things to be taken into consideration with reference to time, for the obligation either begins or terminates at a certain date. It begins at a certain date, for instance, as follows, "Do you promise to pay me such-and-such a sum on the Kalends of March?" The nature of this obligation is that the amount cannot be collected before the specified time. When it is made within a certain time, for example, as follows, "Do you promise to pay me between now and the Kalends of March?" it is established that neither an obligation nor a legacy can be contracted for a time, since when anything begins to be due to another, it ceases to be due under certain circumstances. It is clear that a stipulator can be barred by an exception on the ground of his agreement, or on account of fraud, after the time has expired. Likewise, if anyone, while delivering a tract of land, should say that he conveys the soil without the building upon it, this will not prevent the building, which by nature is attached to the soil, from passing with it.

(2) A condition is effectual which was inserted in the obligation at the time when it was contracted, and not after it had been perfected; as, for instance, "Do you promise to pay me a hundred aurei if a ship does not arrive from Asia?" In this case, however, if the condition should be fulfilled, there would be ground for an exception based on an informal agreement, or on fraud.

(3) The measure of an obligation becomes apparent when we stipulate for ten aurei or a slave, as the delivery of either one of these disposes of the entire contract, and one of them cannot be demanded as long as both are in existence.

(4) The result of an obligation has reference to either a person or a thing; to a person where I stipulate that payment shall be made either to me or to Titius; to a thing where I stipulate than ten aurei shall be paid to me, or a slave shall be delivered to Titius; and, in this instance, the question arises whether, when the slave is delivered to Titius, he becomes free by operation of law.

(5) When I stipulate as follows, "If you do not give me such-and-such a tract of land, do you promise to pay me a hundred aurei?" only the sum of a hundred aurei is the object of the stipulation, but the transfer of the land is one way of discharging the obligation.

(6) If I stipulate for the building of a ship, and if you do not build it that you should pay me a hundred aurei, let us see whether or not there are two stipulations, one absolute, and the other conditional; and if the condition of the second one is fulfilled, whether it will not annul the first; or whether it will not incorporate it into itself, and become, as it were, a renewal of the first. The last is the better opinion.

45. The Same, On Plautius, Book III.

When a man, who owes Stichus under a stipulation, manumits him before being in default, and the slave dies before the promisor is sued for not delivering him, the latter will not be liable. For he is not considered to be to blame because he did not deliver the slave.

46. The Same, On Plautius, Book VII.

An insane person and a ward are liable without the authority of their curator or guardian, where the obligation arises from the property itself; as, for instance, if I hold a tract of land in common with one of them, and have incurred some expense with reference to it, or the ward has damaged it in some way, he will be liable to an action in partition.

47. The Same, On Plautius, Book XIV.

Arianus says that there is a great deal of difference between the question whether anyone is liable or has been released. When inquiry is made with reference to the existence of liability, we should be more inclined to deny that this is the case, if we have any occasion to do so. When, on the other hand, the question is with reference to being released, the tendency should be in favor of it.

48. The Same, On Plautius, Book XVI.

In any transactions in which speech is not necessary, consent will be sufficient; and in matters of this kind a deaf person can take part, for the reason that he can understand and give his consent, as in hiring, leases, purchases, and other similar contracts.

49. The Same, On Plautius, Book XVIII.

Actions arising from contracts are granted against heirs, even where some crime is involved; as, for example, where a guardian has been guilty of bad faith in administering his trust, or where someone with whom property was deposited has committed fraud. In this, instance, even if a son under paternal control or a slave has committed a fraudulent act of this kind, an action De peculio, and not a noxal action, will be granted.

50. Pomponius, On Plautius, Book VII.

When anyone promises to pay a sum of money within a year, or has judgment rendered against him requiring him to do so, he can pay it on any day during the year.

51. Celsus, Digest, Book III.

An action is nothing else but the right to recover what we are entitled to by means of a judicial proceeding.

52. Modestinus, Rules, Book II.

We contract an obligation either with reference to the property itself, or by words, or by both of these at the same time, or by consent, or by the Common Law, or by Praetorian Law, or by necessity, or by a criminal offence.

(1) We contract an obligation on account of the property, when it is delivered to us.

(2) We contract one by words, where a question is asked, and a proper answer is given.

(3) We contract an obligation on account of the property and by words, where the property is delivered, and answers to questions are given at the same time.

(4) When we consent to anything, we are necessarily liable on account of our voluntary acquiescence.

(5) We contract an obligation by the Common Law, when we obey the laws in accordance with what they prescribe, or we violate them.

(6) We contract an obligation by Praetorian Law when something is ordered to be done or prohibited by the Perpetual Edict, or by the magistrate.

(7) Those contract an obligation by necessity who cannot do anything else than what they are directed to do. This happens in the case of a necessary heir,

(8) We contract an obligation on account of a criminal offence, where the principal part of the inquiry has reference to the illegal act committed.

(9) Even simple consent will be sufficient to establish an obligation, although it may be expressed by words.

(10) Many obligations are contracted merely by signs of assent.

53. The Same, Rules, Book III.

Several offences committed with reference to one and the same thing give rise to different actions; but it is established that all of them cannot be employed, and if several causes of action arise from one obligation, one alone, and not all, should be made use of.

(1) When we make the general statement in an obligation, "Or for the benefit of him to whom the property shall belong," we include not only persons who have been arrogated, but also others who may succeed to us by any other right.

54. The Same, Rules, Book V.

Fictitious contracts are not legally binding, even in the case of sales, for the reason that they are only simulated, and are not based on truth.

55. Javolenus, Epistles, Book XII.

In all matters having reference to the transfer of ownership, the concurrence and the intention of both contracting parties must exist; for in sales, donations, leases, or any other kind of contracts, unless both parties agree, anything which has been begun will have no effect.

56. Pomponius, On Quintus Mucius, Book XX.

Any actions to which I may be entitled through the agency of my slave, whether they are derived from the Law of the Twelve Tables, or from the Aquilian Law, or can be brought on account of injury or theft committed, will continue to exist, even if the slave should afterwards be either manumitted or alienated, or should die. A personal action for the recovery of property which has been stolen by the said slave will also lie, unless I, having obtained possession of him, should either alienate or manumit him.

57. The Same, On Quintus Mucius, Book XXXVI.

In all agreements which have been made, whether they were entered into in good faith or not, if any mistake has arisen through a misunderstanding of the parties, that is, if he who purchased or leased the property differed in opinion from him with whom he made the contract, the transaction will be void. The same rule should be adopted in the formation of a partnership, so that if the partners think differently, one holding one opinion and the other another, the partnership will not be valid, as it depends upon the consent of the parties.

58. Callistratus, The Minority Edict, Book I.

It must be remembered that where issue has been joined in a case, it passes against the heir and other persons of this kind.

59. Licinius Rufinus, Rules, Book VIII.

A ward, through borrowing money, does not render himself liable by natural law.

60. Ulpianus, On the Edict, Book XVII.

Where penal actions relating to the same sum of money are concurrent, one of them never annuls the other.

61. Scaevola, Digest, Book XXVIII.

The agent of Seius sent a note to a goldsmith, at the bottom of which were the following words: "I, Lucius Kalendius, have approved what was written above, and a balance of so much is due from us to So-and-So." I ask whether this would bind Gaius Seius? The answer was that if Seius was not otherwise bound, he would not be liable for what was stated in this document.

(1) Seia, desiring to pay a salary to Lucius Titius, sent him the following letter: "To Lucius Titius, Greeting. If you are of the same mind, and entertain the affection for me which you have always done, sell your property and come to me as soon as you receive this letter. I will pay you ten aurei every year, as long as I live, for I know how much you love me." If Lucius Titius should sell his property and go to her, I ask whether the annual salary mentioned in the letter could be collected by him. The answer was, that an investigation must be made with reference to the rank of the persons, and their motives, in order to determine whether an action should be granted..