there was a subdivision according to the source of the determining legal principle. When that principle was contained in a lex or senatusconsultum, the formula of the actio directa was in jus concepta; when it was contained in a clause of the Edict, the formula of the actio directa was in factum concepta. Gaius, IV. 45 sub fin.

A lex might have been furnished with an action by the Praetor in addition to the remedy attaching under the jus civile, or the Praetor might by his Edict have supplemented the deficiencies of such a lex, and granted an express action in cases arising on these supplementary provisions: and so we can understand the statement of Gaius (IV. 47) about the double formulae, in factum as well as in jus, given in certain cases.

Thus we conclude that all actions wherein proceedings were taken on the known law were directae: that they would never get beyond the step called in jure, if there were no controverted facts, but only a dispute as to whether the law was or was not applicable to admitted facts: that, on the contrary, a formula would be issued, and proceedings in judicio would follow, if facts were in dispute and evidence had to be taken; and then the formula would be in jus concepta or in factum concepta according as the law which was to settle the dispute was civil or praetorian.

But besides the actiones directae and the actiones praejudiciales there was the third class already mentioned, viz. actions to be tried by certain equitable rules which the Praetor set forth, pro re nata and according to his own opinion of what was proper, in cases which fell under no existing enactment, but yet involved a manifest wrong. These were the actiones non vulgares, more often called actiones in factum, and the formulae issued on their behalf were of necessity in factum conceptae, for their decision was in no way dependent on the Civil Law. So that a formula in factum concepta was attached to all actiones in factum, and to some actiones directae.

Of actiones non vulgares or in factum there were three kinds, their point of union being that in all the Praetor had either to make, or at any rate to modify a formula, and that to none of them did a common formula apply exactly as it stood in the Edict:

These three kinds were

(1) Actiones utiles, or actions resembling some actio directa (their name being derived from uti, the adverb, not from uti the verb). The Praetor in such an action allowed a formula to be, as it were, borrowed, and applied to a case which it was not originally intended to meet, but which closely resembled that for which it had been framed.

Actiones fictitiae were a particular branch of actiones utiles.

(2) Actiones cum praescriptione; granted where the circumstances out of which they sprang constituted a civil or praetorian obligation, but the common formula provided was too large in its scope, so that a plaintiff who made use of it would be liable to be met by the exception called plus petitionis. The common formula, therefore, was cut down to its proper limits by the addition of a praescriptio prefixed with the Praetor's approval. Gaius, IV. 130.

(3) Actiones in factum praescriptis verbis: purely equitable actions for the remedy of some wrong for which the law (civil or praetorian) had altogether failed to make provision, and for which therefore the Praetor drew up a new and special formula, with an account of the circumstances of the case included, and containing in its condemnatio a remedy of the Praetor's own invention, which was to be applied in the event of plaintiff being able to establish his case.

See Heineccius, IV. 6. 26, Mackeldey, § 194, Zimmern's Traité des Actions chez les Romains, § LI.

(T). On the Exceptions Rei Judicatae and In Judicium

Deductae.

In IV. 106-108 Gaius draws the attention of his class to a rule of practice in pleading, by which it was laid down that in certain actions the defences of "judgment recovered" and "matter already in issue" could be set up, as of course, and under the general issue, whilst in certain other actions they could only be made use of when specially pleaded. A few words about these two pleas and the rule of practice relating to them will not perhaps be out of place. The plea, technically called exceptio rei in judicium deductae, meant that the exact question in controversy between the parties had already been argued before the Praetor, and had been settled by him in the shape of a formula. That is to say, the plaintiff on some former occasion had raised the same points, and had called upon the defendant to reply to them in jure, and every step in pleading up to the litis contestatio had been taken. The other plea, rei judicatae, meant that matters had gone even further than the litis contestatio. That is to say,

that the Praetor had drawn the formula, and sent it down to the judex with the precise question of fact for trial, and that the decision of the judex had been given.

Now there were three sets of actions in which the effect of these defences required consideration.

There was, first, a class of actions based on the imperium of the Praetor and unconnected with the strict rules and technicalities of the old civil law, and for which a time of limitation was prescribed coexistent with the duration of each particular Praetor in office.

Next, there was a class of actions arising from obligations and dependent upon the old civil law, both by their very nature and from the fact that the declaration or intentio was of a civil law form, i.e. not standing alone, but preceded by a demonstratio; or without demonstratio, and with only technical legal terms as designatio.

Lastly, there was a class of actions, either real and arising from domi nium, or personal upon the case (in factum) and independent not only of the old strict civil law, but of all standing rules, civil or praetorian, and allowed merely ex aequitate Praetoris.

In the first of these sets the rule was that the defence of "judgment recovered," and "matter still in issue,' had to be specially pleaded. There were two reasons for this: firstly, because being praetorian remedies they were not affected by rules of pleading applicable to the old civil law actions; and therefore, as there was nothing in strict law to prevent a second action being brought, it was necessary to allow a protection to the defendants in the shape of a plea: and secondly, because during any succeeding Praetor's year of office the nature and subject of the actions tried by his predecessor might easily be forgotten, and therefore a reminder in the shape of a special plea like the one before us was absolutely necessary and probably, as the Praetorian Law in early times varied from year to year, records of judgments of this kind would not be kept.

In the second set of actions the rule was that where the same plaintiff brought a second action upon the same facts against the same defendant, the defence of "judgment recovered" or "matter still in issue" was available as part of the defendant's proof under the general issue, and without any special plea. The reason for this was that, inasmuch as these were strictly legal actions with a civil law intentio, the plaintiff was ipso jure, by force of the civil law itself, barred from attempting any further claim: and moreover

the law being stable, records were valuable as precedents, and could probably be quoted in jure.

In the third class there are two sets of actions, one founded on dominium or jus in re, the other to a certain extent founded on obligation, but not of the same kind as in the old civil law personal actions; and the rule applicable to such actions was that in order to avail himself of his special defence, it was necessary for the defendant to raise the point by his pleas.

It is clear that in the actions of the latter kind, i.e. personal actions in factum, both the reasons which have been given above for requiring special pleas in actions based on the imperium apply with extra force. For if proceedings founded on standing rules of a particular Praetor's edict were not ipso jure a bar to further proceedings before a new Praetor, still less could those proceedings be such a bar which had been allowed by the former Praetor merely because of his own personal theories of equity, enunciated at the time application for redress was made to him, and never cast into the form of general rules; and again, the details of such matters were even more liable to be forgotten than were those of the other kind.

Then as to those actions springing out of dominium, i.e. real actions, the reason why a special plea of "judgment recovered" or "matter still in issue" was necessary is obvious. In all these actions the plaintiff is maintaining a right against the whole world, and has no particular aforeknown person by whom this general right can be imperilled. As then he has to meet any and every opponent, so it is clear a victory over this or that person may not entirely and as a matter of course silence even him, for he may renew the attack on new grounds: and still less is a jus in rem successfully maintained against one plaintiff, secure against another plaintiff. In the case of an obligation-claim between A and B, where the judge decides that B has not to perform the particular obligation, the processes are few and simple and the ground of attack is single, but in a claim, founded on a jus in re, there may be a variety of proofs in support of a claim, shaped in more ways than one, and the grounds of attack may be varied in proportion to the intricacy of the right at stake. Here then there is nothing in strict law (ipso jure) to prevent a plaintiff who has failed once from trying to succeed a second time, and therefore, as in the first set of actions, so here, to prevent vexatious litigation, the defendant is allowed to resort to his plea of "judgment recovered" or "matter still in issue;" which, as the text says, is a matter of necessity.