The Institutes of Justinian

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TINES VIT X. 193 It is howeve to he observed that in Edictis the aedile 1 sorbid dom boam, Marsi lion to Maeptiear Where thereis a public rota, an directa that is an injury be caused toa stemma throuo disobedience of this provision ahe o neros the beas stat he condemne to pansuc sum acto the judge halliseem sat an equitable in caseis annother injury the penalty is fixe at doubie damages. Besides his aedilicia action, that o pauperies may also e somelimes brouo against the fame defendant sor Whe two o more actions, speciali penal ones may be brought on ne and the fame mund the ringin os ne oes no debar theplaintimsrom subsequently bringing the ther. ΤΙΤLE X. O PERSONS THROUGH ΗΟΜ WE AN BRIN AN

io uardianship. herae Hostilia subsequently permitted the bringin os an actionis thes οὐ hal os person who

it e made in the presence of the ther party, Who incleed usuali knows nothingis ut it sor in laW any one is ouratiorne Whom o alto 'o bring or defendis actio onyoues hals The modes of appointinx ardians and curator 2 have been explesned in the fidit Book.

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The old system os inhin securit iso litigant dissereristo that whic has more recently Come into M.

Formerly the defendant in a real action was oblige to ove security so that i judgment,ent against him, and hemeither gave u the propert whic Was in question nor at thoedamages assessed the lainti might be able to sue eitherhim o his ureties an inis is calle securit sor satisfactiorio judgment, ec se the laintiss stipulares sor paymen to himsel os the sum at whic the clamages are assessest Aricithere asini the more reason sor compelling the desendant in real action to give securi is he was merely the representativeo another. From in plaintiri a real action no securi Masrequire iscit, in his own account that he sued, but is heWa memina attorney, he was require t give securit sorthe ratificationis his proceeclings by his principes, Win tothe possibilit os the alter' subsequently uin in persono the fame claim. Guardians an curator were require , the dicto give the fame securityrus attorneys; ut heri the appeare a plaintim the were ometimes excuseci 1 So much sor rea actions. In persona actions the fame rules applied, o sar a the lainti Was concerneci, havesaid obtaine in ea actions. Is the defendant,as mP-- sente by another person, securit had alway to e giveri,sor no ne is allowe to desen anothe without securitu; but is the defendant a sue o his own account, he wno compelle to give securit sor satisfactio os udgment 2 owadays howeve the practice is disserent sor is the e-sendant is sue o his own account, he is no compelle togive securit sor payment of the clamages assessed, hether

the action e real or personat; at that he has to do is toenter into a persona engagement that he wil subject himselfio the jurisdictio os the ouri down to final udment the

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ran an station. ut in case is different here 1ther 3plaintimor defendant appearcis an altorney. Is the plaintisscloe so, and the attorney's appotniment is no enrolle in therecores, o confirme by the principat personali in couri, theatrum Mustinive securit sor ratificationis his proce ings, his principes and the rule is the sam is a guardian,

curator, orithe person Who has underiata the managementos another' assair bring an actio through an altorney. Is a defendant appears, an is ready to p in an altornento desen in actio sor him, he an do his itheris coming personali into couri, an confirming the wminiment Dine solemn stipulations employed when securi cis give sorsatisfactio os udment, or by givin securi mutis court

hereby, a furet soriis attorn , he marantees the observ- anceis ali in clauses of the w-called securit so satisfactionos udgment. In ali such cases hecis obligeesto give a rightos hypothec ver ali his proper , hether in securit hegive in or out os couri, and this right malis against his heirsno les than against himself inalty he has to enter into

another ill desen sor him, he mando so, an it is immateriat whether the actioni reali personat, provide he willgive securit sor satisfactionis the judgmen in suli sor ehave atready mentione the old rute, that no ne is allowedio desen anothe without securi . At this ill appea 6 more clearly an suli is reserence to the ait practiceos the Couris, an to actuat cases o litigation an it is our ple ure that these ules hal hol not oni in his urroya citri but also in allisur provinces, although it ma bethat inmugh ignorance the practice elsewhere Was disserent; forcit is necessar that in provinces generali shali solio. the lea os in capitalis allisur empire, that is os this royal

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It shouldie here observed that actions Mundeson statutes, senatusconsulis, an imperia constitutions could e brouotat an lenn os time rom in accrualis the cause of action, unti certain limit were fixe sor actions both rea an sonat by imperia enacimenti; hil actions hic were introduce by the praetor in the exercise of hi jurisdictioncould asin rute, Mirought only withi a year, that Ming the durationis his authori . Some praetoria actions ho everare Perpetuat, that is o say, an e brought at an timewhic cloes not excis the limi fixe by the enacimenis serre to sor instance thos grante to possessors of mods' and ther persons ho are fictiliousi represente a heim. Sorio the actio sor thest detecte in the commission thoughPraetorian is perpetuat, the praetor havin Judge it absurdi in limit it by a year Actions hich wil li against a manunde either in civi or the praetorian a Williso es austi against his heir, the rule hein absolute that sor delict-sor

penal actio cante brought against the heir. he heir of the

Person ronge howeve may bring these actions excepi inoutrage, an similar cases, is any Sometimes me an actionon Contraci cannot e mught against the heir; his Mineth case here in testator has been guit is haud an his heir has not profite there . Is howeve a penal action, SUChas hos we have mentioned has been actuali commenCω by the origina parties, it is transmitte to the heir os eaCh. 2 Finalty it must be remarhed that is, besore judgmen is pronounced the defendant satisfies in plainti' in jude oughtto absolve him, even though he was liable to condemnationat the time hen in actio was commencessi; his Ming the meaning of the old dictum, that ali actions involve theso eros absolution.

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is osten in his position that though the laintifr' case is amod ne in the abstrach et M against him, the particular defendant, his contention is inequitabie For instance, is messare induced by duress fraud, o mistakerio promise Titius bystipulation hat o di notiswe him, it is clea that by the

civit law ou are bound and that the actio on Our promise

condemned, and theresore in orde to deseat in action ovare allo e to lea the exception os duress oris haud orone ramexto fuit the circumstances os the case Sodoo, is aca prelimina et an advanceis money one stipulates stomaouser ita repayment, and the neve aclvances it aster ali, it is clea that he an sue o so the money, and yo are bound

ingly the creditor an validi bring against him a personalactio claimin paymen os the dees, though, as it would einequitable that he hould e condemne in the face of the agreement noto sue, he ma desen himsel by leadingsuch agreement in the formis an exception Similarly is at his creditor' challenge a deblor affirm oniat that heris notunder an obligation to convey, he stili remainsiound ut asit Would e uniat to examine hether he has periured himself, he an, o Min sued, et up the elance that he has s orn to the non-existenc os the deb In rea actions too exception are quali necessary thus, is o the laintifrs

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as BOOK IV. challene the defendant swears that the properi is his, thereis nothinito prevent the forme hom persistin in his actiora ;but it,ould herunsai to condemn the defendant, me thoughthe laintifrs contention that in properi is his e GII 54ounded. Again, an obligatio stili subsista even aster judgmen In an Clion, realis personat, in Whichoo have beeri defendant so that in strici lawao may be med again o triefame round os action: but ou an effectuali meet moeycliam by pleading the revious judgmen These exam*will have been sumcient to illustratetur meaning the multitude and variet os the cases in hic eκCeption are ne S-sar may be learn by reserence to the large work of the Digestir Pandecta Some eκceptions derive thei sorce Domstatutes or enaciment equivalent to statutes othera rom the8 jurisdictionis the praetor and wme are sal tot perpetuaIsi perempto , other tot tempora m dilato . Perpetuat Orseremptor exception are obstructions os unlimited duration, hic practicatly destroy the plaintiae ground os action, suc a the exceptions os fraud intimidation, and agreement 10 neve to sue Tempora i dilato exception are meretY tempora obstructions their onineffectaeing to postpone soca while the pliantiae right to sue sor example the Plea ofa agreement notrio Sue sor a certain time, say, five eam ;sor at the en os that time the plaintirca effectualin reuehis remedy. Consequently person who ould likerio sue -- sore in expirationis the time, but are prevente by the plein os an agreemen to the Contra , o something similar, uotio postpone thei action illi the time specified has elapsed anctit is o this account that such exception are calle dilato

I a plaintissimvehi his actio besore the time had expired, and was me by the exception this ould debar him Domini

succes in hos pro eclings, an formeri he was unatae tosue again, o indito his havinguashly brouo the matter into Court, here in Consume his right os action, an lost alichanc os re vering What was his clue Such unbendin rules howeveris do notis the present cla approve. laintim h venture to commence an actio besore in time agreeclupon o besore the obligation is et actionable we subjectrio the constitution os Zeno, hic that mos sacre legislator

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TITTES V XIV. 99 Enacte acto over-claim in respectis timen hereis, is ineptiantis cloes no observe the stan hic he has voluntarilygranted or hic is implied in the very natur os the action,ine time during hic he ought is have postpone his action est he doubled, and atriis termination the defendant shali nothe in te uniit he has Menaeimbursessor ali eκpenses hitherio incurred. o Maura penalty it ii ped wil induce plaintiffsinio caserio fueranti inenare entilled. or ver some per lisona incapacities produce dilato exceptions such acinose relatininto agency, supposing that a par lines tot represente in an actio is a soldie or a Woman sor soldier maynot ac as attornen in litigatio evenies hal of such near relatives as a sather, mother, o Wise, nor me in virtve os animperia rescript though they may atten to theiriwn affaim Without committinga breachis discipline. We have sanctionedine abolitionis thos exceptions is hic the appotnimentos an altorney was sormerly oppos in account of the infamyof esther attorne or principat, cause, Mund that in molonger Were met with in actuat practice, and to prevent the trialos in reat issue Minidei ed by disputes a to thei admissibili inno operation.

O REPLICATIONS.

Sometimes an exception which prima facie eem ius tome defendant, is urius to the laintiis, in hic case thelarier must proieci himself by another allegation calle a replication causerit parries an counieracis theriore os theeXCePlion. For example, a creditor may have agree with his deblor notrio sue him sor mon due, and then have subsequently agreed with him that he hallae a liberinio do so; here is the credito sues, and the debior pietas that he ought notrio he condemne on proos hein ove of the agreement nota sue, he bara the creditor' claim, so the ple is true, and remain s in spite os the subsequent agreement; ut ascit. Id berarius that the creditor Ahould be prevente stom re- covering, he willi allowe to pleas replication, basedisponthat agreement. Sometimes again a replication, fBouo prima Is is ust, is urius to the defendant in hic caseine must

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α- BOOx IV. 2 protectinimsel by another allegatio calle a retoinder ariclis this again though on theriace oscit just, is sor some remoriunjus to the laintiri a stili surther allegation is necessam 3 sor his protection, hic is calle a surrejoinder An some- times even surther addition are required by the multiplici o circumstances under hic dispositions are made, o is hic the are subsequently assected acto, hic sulter informatio ma easti gathere Domine large wor of the Digest. Exceptions hic are ope to a defendant areusualin ope to his uretyrus well, as incleed is ni fair sor hen a furet is sue the principat debior may be regaminas the ea defendant hecause e canis compelle by the action o agencyrio repanthe sumty Whataomer he has dis-burse on his account. Accordingly, is the creditor grem it his deblor notrio sue the lalter' fureties may plea this agreement, is sue themselves exacti ascis in agreementha been made it them instea os it in principaldehtor There are however ome exceptions hich, thoughple able by a principat ebtor, are notule able , hissurety sor instance, is a man surrendere his properint his creditor as an insolvent, an one os inem sues hi sor his

surrendera ut this cannot be donei his sure , Minus the creditor' main object in acceptingis uret sor his deblor isto M able o have recourse to the fure 4or the satisfaction

we have ex to reat os interclicis oris the actions , whic the have been supersedeo. Interdicis ere sormulaeis hic the praetor either ordere o sorba some thin tobe one, an occurre mos frequently in caseis litigation

The irs division os interdicis is into mersis abstention, os restitution, an os production. The re are thos bywhic in praetor sorbid the cloingis some act-sor instanCe, the violent Hectio os a bona fide possessor, orcthle inte

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ordem restitution os proper , as here he direct possessionto he restore to a possessor os mods of things helongingio an inheritance, and whic havemitherio been in the posses- siqn os other unde the ille os heir, o without an titie atali or here heimem a person to b reinstate in possessionis land rom hic he has Men orcibinousted Thethim are those is hic heimer the productio os personsor pro ny sor instance, in productio os a person whosesreedom is in question, os a reeclman hos patron ishesto cleman seo him certain services, oris children o the applicatio of the parent in hos power the are. Somethin that the term interdici is properly applied onint ordersos abstention causerit is derive seom the ver inserdicere, meaning to denounce o sorbid, and that order os restitutionor productio are properi terme decrees; ut in practice the are ali calle interdicis, ecause the are ive inter duos, bet M two parties. The ex division is into inter et dictiso obtaining possession, sor retaining possession, and sorreCovering possession Interdicis sor obtaining possession are 3 exemplified by the one ove to possessoris mods, whichis calle Ouomum bonorum, and which Moin that Whateverportionis the goods, whereos possession has been grante tothe laimant, is in the hand of one who hold by the titte os heiris a mere possessor only, hallis deliveredis to thegrante os possession A person is deeme to hol by the

portionis the whole os the inheritance, knowing that heris notentillecl. It is calle an interdici sor obtaining possession, causerit is avest te ni sor initiatin possession accord- ingly, it is no grante to a person in has atready had ancllos possession Another interdici sor obtaining possessionis that name aster Salvius by whic the landior gela possessionis the tenant' proper 'hic hac en hypothecaledas a securit sor rent. The interdicis Ut possidetis and 4

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aoa BOOx V. Umissi are interdicis sor retaining possession, an are emplood he two parties laim merahi in mything, in Orde to determine hic shallie defendant and whichilaintis sor no rea actio canis commence unti it is asce inined whic os the parties is in possession cause law andreason both require that one os inem hallis in possessionand shal be sue by the ther A the oleis defendant in rea actio is sar more Quantumus tha that os plaintis there is almos invariablna kem dispute acto hichiari isto have possession pendinclitigation the cluantam consis in in his that, even is the person in possession has no ille M Wner, the possession remain to tam unies an untii theplainti can prove his o n wnership so that Where therictis os the parties are o clear, judment usualty go against the laintissi here the dispute relates to the o sessionis land ortulldings, the interdici calle Uti possita risis employed here is moveable properiri that calle inrubi Unde the olde la 'hei effect were very disserenti niti possidetis the pari in possessio at thecissu os the interdictwas the winner, provide he hadiso obtaine that possessionstom his adversar is orce, o clandestinely, o by να- missiona hether he had obtaine it rom ome one eis in an os these modes as immateriai. In inrubi the witinerwas the par who ha been in possession the greater portionos the ear ex immediatet precedi , provide that possession a no Men obtaine byriorce, o clandestinely, oris permission Dominis adversa . A the present cla howeve the practice is different, sor a regard the right to immediate possession the two interdicis are no-on the Samelaoting the ruleaeing that whether in properisti questionbe moveable or immove te, the possession is adjudge tothe part who has it at the commenoemen os the action, provide he had not obtaine it by sorce, o clandestinely, or by permission, seo his adversa . A man' possession includes, besides his own persona possession the possessionis any one ho hold in his name, though no subject to his wer sor instance, his innant. So also a depositam orborro e so us may posses sor him ascis expressed by the SVing that, retain possession is annone ino holds iniur