The Institutes of Justinian Part 21

The old system of taking security from litigants differed from that which has more recently come into use.

Formerly the defendant in a real action was obliged to give security, so that if judgement went against him, and he neither gave up the property which was in question, nor paid the damages a.s.sessed, the plaintiff might be able to sue either him or his sureties: and this is called security for satisfaction of judgement, because the plaintiff stipulates for payment to himself of the sum at which the damages are a.s.sessed.

And there was all the more reason for compelling the defendant in a real action to give security if he was merely the representative of another.

From the plaintiff in a real action no security was required if it was on his own account that he sued, but if he was merely an attorney, he was required to give security for the ratification of his proceedings by his princ.i.p.al, owing to the possibility of the latter's subsequently suing in person on the same claim. Guardians and curators were required by the Edict to give the same security as attorneys; but when they appeared as plaintiffs they were sometimes excused.

1 So much for real actions. In personal actions the same rules applied, so far as the plaintiff was concerned, as we have said obtained in real actions. If the defendant was represented by another person, security had always to be given, for no one is allowed to defend another without security; but if the defendant was sued on his own account, he was not compelled to give security for satisfaction of judgement.

2 Nowadays, however, the practice is different; for if the defendant is sued on his own account, he is not compelled to give security for repayment of the damages a.s.sessed, whether the action be real or personal; all that he has to do is to enter into a personal engagement that he will subject himself to the jurisdiction of the court down to final judgement; the mode of making such engagement being either a promise under oath, which is called a sworn recognizance, or a bare promise, or giving of sureties, according to the defendant's rank and station.

3 But the case is different where either plaintiff or defendant appears by an attorney. If the plaintiff does so, and the attorney's appointment is not enrolled in the records, or confirmed by the princ.i.p.al personally in court, the attorney must give security for ratification of his proceedings by his princ.i.p.al; and the rule is the same if a guardian, curator, or other person who has undertaken the management of another's affairs begins an action through an attorney.

4 If a defendant appears, and is ready to appoint an attorney to defend the action for him, he can do this either by coming personally into court, and confirming the appointment by the solemn stipulations employed when security is given for satisfaction of judgement, or by giving security out of court whereby, as surety for his attorney, he guarantees the observance of all the clauses of the socalled security for satisfaction of judgement. In all such cases, he is obliged to give a right of hypothec over all his property, whether the security be given in or out of court, and this right avails against his heirs no less than against himself. Finally, he has to enter into a personal engagement or recognizance to appear in court when judgement is delivered; and in default of such appearance his surety will have to pay all the damages to which he is condemned, unless notice of appeal is given.

5 If, however, the defendant for some reason or other does not appear, and another will defend for him, he may do so, and it is immaterial whether the action be real or personal, provided he will give security for satisfaction of the judgement in full; for we have already mentioned the old rule, that no one is allowed to defend another without security.

6 All this will appear more clearly and fully by reference to the daily practice of the courts, and to actual cases of litigation:

7 and it is our pleasure that these rules shall hold not only in this our royal city, but also in all our provinces, although it may be that through ignorance the practice elsewhere was different: for it is necessary that the provinces generally shall follow the lead of the capital of our empire, that is, of this royal city, and observe its usages.

t.i.tLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT BY AND AGAINST HEIRS

It should be here observed that actions founded on statutes, senatusconsults, and imperial const.i.tutions could be brought at any length of time from the accrual of the cause of action, until certain limits were fixed for actions both real and personal by imperial enactments; while actions which were introduced by the praetor in the exercise of his jurisdiction could, as a rule, be brought only within a year, that being the duration of his authority. Some praetorian actions, however, are perpetual, that is to say, can be brought at any time which does not exceed the limit fixed by the enactments referred to; for instance, those granted to 'possessors of goods' and other persons who are fict.i.tiously represented as heirs. So, too, the action for theft detected in the commission, though praetorian, is perpetual, the praetor having judged it absurd to limit it by a year.

1 Actions which will lie against a man under either the civil or the praetorian law will not always lie against his heir, the rule being absolute that for delict--for instance, theft, robbery, outrage, or unlawful damage--no penal action can be brought against the heir. The heir of the person wronged, however, may bring these actions, except in outrage, and similar cases, if any. Sometimes, even an action on contract cannot be brought against the heir; this being the case where the testator has been guilty of fraud, and his heir has not profited thereby. If, however, a penal action, such as those we have mentioned, has been actually commenced by the original parties, it is transmitted to the heirs of each.

2 Finally, it must be remarked that if, before judgement is p.r.o.nounced, the defendant satisfies the plaintiff, the judges ought to absolve him, even though he was liable to condemnation at the time when the action was commenced; this being the meaning of the old dictum, that all actions involve the power of absolution.

t.i.tLE XIII. OF EXCEPTIONS

We have next to examine the nature of exceptions. Exceptions are intended for the protection of the defendant, who is often in this position, that though the plaintiff's case is a good one in the abstract, yet as against him, the particular defendant, his contention is inequitable.

1 For instance, if you are induced by duress, fraud, or mistake to promise t.i.tius by stipulation what you did not owe him, it is clear that by the civil law you are bound, and that the action on your promise is well grounded; yet it is inequitable that you should be condemned, and therefore in order to defeat the action you are allowed to plead the exception of duress, or of fraud, or one framed to suit the circ.u.mstances of the cases.

2 So too, if, as a preliminary to an advance of money, one stipulates from you for its repayment, and then never advances it after all, it is clear that he can sue you for the money, and you are bound by your promise to give it; but it would be iniquitous that you should be compelled to fulfil such an engagement, and therefore you are permitted to defend yourself by the exception that the money, in point of fact, was never advanced. The time within which this exception can be pleaded, as we remarked in a former Book, has been shortened by our const.i.tution.

3 Again, if a creditor agrees with his debtor not to sue for a debt, the latter still remains bound, because an obligation cannot be extinguished by a bare agreement; accordingly, the creditor can validly bring against him a personal action claiming payment of the debt, though, as it would be inequitable that he should be condemned in the face of the agreement not to sue, he may defend himself by pleading such agreement in the form of an exception.

4 Similarly, if at his creditor's challenge a debtor affirms on oath that he is not under an obligation to convey, he still remains bound; but as it would be unfair to examine whether he has perjured himself, he can, on being sued, set up the defence that he has sworn to the nonexistence of the debt. In real actions, too, exceptions are equally necessary; thus, if on the plaintiff's challenge the defendant swears that the property is his, there is nothing to prevent the former from persisting in his action; but it would be unfair to condemn the defendant, even though the plaintiff's contention that the property is his be well founded.

5 Again, an obligation still subsists even after judgement in an action, real or personal, in which you have been defendent, so that in strict law you may be sued again on the same ground of action; but you can effectually meet the claim by pleading the previous judgement.

6 These examples will have been sufficient to ill.u.s.trate our meaning; the mult.i.tude and variety of the cases in which exceptions are necessary may be learnt by reference to the larger work of the Digest or Pandects.

7 Some exceptions derive their force from statutes or enactments equivalent to statutes, others from the jurisdiction of the praetor;

8 and some are said to be perpetual or peremptory, others to be temporary or dilatory.

9 Perpetual or peremptory exceptions are obstructions of unlimited duration, which practically destroy the plaintiff's ground of action, such as the exceptions of fraud, intimidation, and agreement never to sue.

10 Temporary or dilatory exceptions are merely temporary obstructions, their only effect being to postpone for a while the plaintiff's right to sue; for example, the plea of an agreement not to sue for a certain time, say, five years; for at the end of that time the plaintiff can effectually pursue his remedy. Consequently persons who would like to sue before the expiration of the time, but are prevented by the plea of an agreement to the contrary, or something similar, ought to postpone their action till the time specified has elapsed; and it is on this account that such exceptions are called dilatory. If a plaintiff brought his action before the time had expired, and was met by the exception, this would debar him from all success in those proceedings, and formerly he was unable to sue again, owing to his having rashly brought the matter into court, whereby he consumed his right of action, and lost all chance of recovering what was his due. Such unbending rules, however, we do not at the present day approve. Plaintiffs who venture to commence an action before the time agreed upon, or before the obligation is yet actionable, we subject to the const.i.tution of Zeno, which that most sacred legislator enacted as to overclaims in respect of time; whereby, if the plaintiff does not observe the stay which he has voluntarily granted, or which is implied in the very nature of the action, the time during which he ought to have postponed his action shall be doubled, and at its termination the defendant shall not be suable until he has been reimbursed for all expenses. .h.i.therto incurred. So heavy a penalty it is hoped will induce plaintiffs in no case to sue until they are ent.i.tled.

11 Moreover, some personal incapacities produce dilatory exceptions, such as those relating to agency, supposing that a party wishes to be represented in an action by a soldier or a woman; for soldiers may not act as attorneys in litigation even on behalf of such near relatives as a father, mother, or wife, not even in virtue of an imperial rescript, though they may attend to their own affairs without committing a breach of discipline. We have sanctioned the abolition of those exceptions, by which the appointment of an attorney was formerly opposed on account of the infamy of either attorney or princ.i.p.al, because we found that they no longer were met with in actual practice, and to prevent the trial of the real issue being delayed by disputes as to their admissibility and operation.

t.i.tLE XIV. OF REPLICATIONS

Sometimes an exception, which prima facie seems just to the defendant, is unjust to the plaintiff, in which case the latter must protect himself by another allegation called a replication, because it parries and counteracts the force of the exception. For example, a creditor may have agreed with his debtor not to sue him for money due, and then have subsequently agreed with him that he shall be at liberty to do so; here if the creditor sues, and the debtor pleads that he ought not to be condemned on proof being given of the agreement not to sue, he bars the creditor's claim, for the plea is true, and remains so in spite of the subsequent agreement; but as it would be unjust that the creditor should be prevented from recovering, he will be allowed to plead a replication, based upon that agreement.

1 Sometimes again a replication, though prima facie just, is unjust to the defendant; in which case he must protect himself by another allegation called a rejoinder:

2 and if this again, though on the face of it just, is for some reason unjust to the plaintiff, a still further allegation is necessary for his protection, which is called a surrejoinder.

3 And sometimes even further additions are required by the multiplicity of circ.u.mstances under which dispositions are made, or by which they are subsequently affected; as to which fuller information may easily be gathered from the larger work of the Digest.

4 Exceptions which are open to a defendant are usually open to his surety as well, as indeed is only fair: for when a surety is sued the princ.i.p.al debtor may be regarded as the real defendant, because he can be compelled by the action on agency to repay the surety whatsoever he has disbursed on his account. Accordingly, if the creditor agrees with his debtor not to sue, the latter's sureties may plead this agreement, if sued themselves, exactly as if the agreement had been made with them instead of with the princ.i.p.al debtor. There are, however, some exceptions which, though pleadable by a princ.i.p.al debtor, are not pleadable by his surety; for instance, if a man surrenders his property to his creditors as an insolvent, and one of them sues him for his debt in full, he can effectually protect himself by pleading the surrender; but this cannot be done by his surety, because the creditor's main object, in accepting a surety for his debtor, is to be able to have recourse to the surety for the satisfaction of his claim if the debtor himself becomes insolvent.

t.i.tLE XV. OF INTERDICTS

We have next to treat of interdicts or of the actions by which they have been superseded. Interdicts were formulae by which the praetor either ordered or forbad some thing to be done, and occurred most frequently in case of litigation about possession or quasi-possession.

1 The first division of interdicts is into orders of abstention, of rest.i.tution, and of production. The first are those by which the praetor forbids the doing of some act--for instance, the violent ejection of a bona fide possessor, forcible interference with the internment of a corpse in a place where that may lawfully be done, building upon sacred ground, or the doing of anything in a public river or on its banks which may impede its navigation. The second are those by which he orders rest.i.tution of property, as where he directs possession to be restored to a 'possessor of goods' of things belonging to an inheritance, and which have hitherto been in the possession of others under the t.i.tle of heir, or without any t.i.tle at all; or where he orders a person to be reinstated in possession of land from which he has been forcibly ousted.

The third are those by which he orders the production of persons or property; for instance, the production of a person whose freedom is in question, of a freedman whose patron wishes to demand from him certain services, or of children on the application of the parent in whose power they are. Some think that the term interdict is properly applied only to orders of abstention, because it is derived from the verb 'interdicere,'

meaning to denounce or forbid, and that orders of rest.i.tution or production are properly termed decrees; but in practice they are all called interdicts, because they are given 'inter duos,' between two parties.

2 The next division is into interdicts for obtaining possession, for retaining possession, and for recovering possession.

3 Interdicts for obtaining possession are exemplified by the one given to a 'possessor of goods,' which is called 'Quorum bonorum,' and which enjoins that whatever portion of the goods, whereof possession has been granted to the claimant, is in the hands of one who holds by the t.i.tle of heir or as mere possessor only, shall be delivered up to the grantee of possession. A person is deemed to hold by the t.i.tle of heir who thinks he is an heir; he is deemed to hold as mere possessor who relies on no t.i.tle at all, but holds a portion of the whole of the inheritance, knowing that he is not ent.i.tled. It is called an interdict for obtaining possession, because it is available only for initiating possession; accordingly, it is not granted to a person who has already had and lost possession. Another interdict for obtaining possession is that named after Salvius, by which the landlord gets possession of the tenant's property which has been hypothecated as a security for rent.

4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for retaining possession, and are employed when two parties claim owners.h.i.+p in anything, in order to determine which shall be defendant and which plaintiff; for no real action can be commenced until it is ascertained which of the parties is in possession, because law and reason both require that one of them shall be in possession and shall be sued by the other. As the role of defendant in a real action is far more advantageous than that of plaintiff, there is almost invariably a keen dispute as to which party is to have possession pending litigation: the advantage consisting in this, that, even if the person in possession has no t.i.tle as owner, the possession remains to him unless and until the plaintiff can prove his own owners.h.i.+p: so that where the rights of the parties are not clear, judgement usually goes against the plaintiff.

Where the dispute relates to the possession of land or buildings, the interdict called 'Uti possidetis' is employed; where to movable property, that called 'Utrubi.' Under the older law their effects were very different. In 'Uti possidetis' the party in possession at the issue of the interdict was the winner, provided he had not obtained that possession from his adversary by force, or clandestinely, or by permission; whether he had obtained it from some one else in any of these modes was immaterial. In 'Utrubi' the winner was the party who had been in possession the greater portion of the year next immediately preceding, provided that possession had not been obtained by force, or clandestinely, or by permission, from his adversary. At the present day, however, the practice is different, for as regards the right to immediate possession the two interdicts are now on the same footing; the rule being, that whether the property in question be movable or immovable, the possession is adjudged to the party who has it at the commencement of the action, provided he had not obtained it by force, or clandestinely, or by permission, from his adversary.

5 A man's possession includes, besides his own personal possession, the possession of any one who holds in his name, though not subject to his power; for instance, his tenant. So also a depositary or borrower for use may possess for him, as is expressed by the saying that we retain possession by any one who holds in our name. Moreover, mere intention suffices for the retention of possession; so that although a man is not in actual possession either himself or through another, yet if it was not with the intention of abandoning the thing that he left it, but with that of subsequently returning to it, he is deemed not to have parted with the possession. Through what persons we can obtain possession has been explained in the second Book; and it is agreed on all hands that for obtaining possession intention alone does not suffice.

6 An interdict for recovering possession is granted to persons who have been forcibly ejected from land or buildings; their proper remedy being the interdict 'Unde vi,' by which the ejector is compelled to restore possession, even though it had been originally obtained from him by the grantee of the interdict by force, clandestinely, or by permission.

But by imperial const.i.tutions, as we have already observed, if a man violently seizes on property to which he has a t.i.tle, he forfeits his right of owners.h.i.+p; if on property which belongs to some one else, he has not only to restore it, but also to pay the person whom he has violently dispossessed a sum of money equivalent to its value. In cases of violent dispossession the wrongdoer is liable under the lex Iulia relating to private or public violence, by the former being meant unarmed force, by the latter dispossession effected with arms; and the term 'arms' must be taken to include not only s.h.i.+elds, swords, and helmets, but also sticks and stones.

7 Thirdly, interdicts are divided into simple and double. Simple interdicts are those wherein one party is plaintiff and the other defendant, as is always the case in orders of rest.i.tution or production; for he who demands rest.i.tution or production is plaintiff, and he from whom it is demanded is defendant. Of interdicts which order abstention some are simple, others double. The simple are exemplified by those wherein the praetor commands the defendant to abstain from desecrating consecrated ground, or from obstructing a public river or its banks; for he who demands such order is the plaintiff, and he who is attempting to do the act in question is defendant. Of double interdicts we have examples in Uti possidetis and Utrubi; they are called double because the footing of both parties is equal, neither being exclusively plaintiff or defendant, but each sustaining the double role.