1. DEFENSES, PRAESCRIPTIONES, AND PREJUDGMENTS
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BOOK FORTY-FOUR DEFENSES, PRAESCRIPTIONES, AND PREJUDGMENTS 1 U L P I A N , Edict, book 4: Also he who pleads a defense is also considered to bring proceedings; for in a defense the defendant is a plaintiff. 2 ULPIAN, Edict, book 74: A defense has been described as some kind of bar which used to be raised against the action of any party in order to shut out whatever has been introduced into the intentio or into the condemnation. 1. Replications are nothing else than defenses which come from the side of the plaintiff; and, indeed, they are required in order to shut out defenses (exceptiones); for a replication is always raised in order to repulse a defense. 2. It ought to be held that every defense or replication is exclusionary; a defense bars the plaintiff, a replication bars the defendant . 3. However, even against a replication, it is usual to allow a triplication, and against a triplication a further [pleading], and thereafter names are multiplied according as either the defendant or the plaintiff raises a defense. 4. Naturally, we are wont to say that certain defenses are dilatory, and others are peremptory; for instance, a defense which suspends the action is dilatory, as, for example, a defense objecting to a procurator is dilatory; for he who alleges that the action may not be brought in the name of the procurator is not totally denying the suit, but is barring the person. 3 GAIUS, Provincial Edict, book 1: Defenses are either perpetual and peremptory, or temporary and dilatory. Those defenses which are available at any time and which cannot be avoided are permanent and peremptory, as, for example, the defense of fraud and the defense of res judicata, and where something is alleged to have been done in breach of a statute or a senatus consulturn, as also the defense of the permanent agreed pact, that is, the defense that money shall not be claimed at all. Temporary and dilatory defenses are those which are not available at any time, but can be avoided, such as the defense of the temporary agreed pact, that is, that no action shall be brought within, say, five years; defenses affecting a procurator are also dilatory, and they can be avoided. 4 PAUL, Edict, book 20: If, in the case of a pupillus, to whom money which is owing to him was paid without authority of his tutor, it is asked whether he ought to be met with a defense of fraud, then the question to be looked into is whether at the time that he makes his claim he still has the money or has anything acquired with it. 5 PAUL, Edict, book 18: A person who will allege that he has taken an oath can avail himself of other defenses together with the defense of oath, or of the other defenses alone; for the use of several defenses is permitted. 6 PAUL, Edict, book 71: If a legatee claims property bequeathed to him, a defense of fraud on the part of the testator is allowed; for just as the heir who succeeds by BOOK FORTY-FOUR 1 DEFENSES, PRAESCRIPTIONES, AND PREJUDGMENTS 1 ULPIAN, Edict, book 4: Also he who pleads a defense is also considered to bring proceedings; for in a defense the defendant is a plaintiff. 2 ULPIAN, Edict, book 74: A defense has been described as some kind of bar which used to be raised against the action of any party in order to shut out whatever has been introduced into the intentio or into the condemnation. 1. Replications are nothing else than defenses which come from the side of the plaintiff; and, indeed, they are required in order to shut out defenses (exceptiones); for a replication is always raised in order to repulse a defense. 2. It ought to be held that every defense or replication is exclusionary; a defense bars the plaintiff, a replication bars the defendant . 3. However, even against a replication, it is usual to allow a triplication, and against a triplication a further [pleading], and thereafter names are multiplied according as either the defendant or the plaintiffraises a defense. 4. Naturally, we are wont to say that certain defenses are dilatory, and others are peremptory; for instance, a defense which suspends the action is dilatory, as, for example, a defense objecting to a procurator is dilatory; for he who alleges that the action may not be brought in the name of the procurator is...