restricted access 2. THE DEFENSE OF RES JUDICATA
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136 BOOK FORTY-FOUR/DEFENSE O F RES JUDICATA against a defense of oath, seeing that the praetor ought to see to it that the oath of a person be not questioned. 16 AFRICANUS, Questions, book 9: You are in possession of the Titian land, as to the ownership of which there is litigation between me and you, and, in addition, I state that there is due to the said land a right of way through the Sempronian land which is acknowledged to be yours. If I claim the right of way, he considered that a defense "that no prejudgment be made as to the land" would be of benefit to you, that is to say, that I shall in no way proceed to prove that the right of way is due to me before I shall fist have proved that the Titian land is mine. 17 PAUL,Edict, book 70: But if he first claims the right of way and thereafter the Titian land, a defense will not be effective, because they are different matters as well as different grounds of relief. 18 AFRICANUS, Questions, book 9: I claim a part of land from you which you state to be entirely yours, and at the same time I also wish to bring before the samejudge an action for dividing common property; moreover, if I should wish to recover from you the fruits of land of which you are in possession and which I allege to be my property; the question was raised whether a defense "that a prejudgment be not made as to the land or to a part of it" will avail or whether it ought to be disallowed. And in both cases, he considers that the praetor ought to intervene and ought not to permit the claimant to institute actions of this kind before the ownership is determined. 19 MARCIAN, Institutes, book 13: All defenses which are competent to a debtor are also competent to his surety, even against the wishes of the debtor. 20 PAUL,Drafting Formulae, sole book: Defenses are pleaded either because what should bedonehasbeendoneorbecausewhatshouldnothavebeendonehasbeendoneorbecause what should have been done has not been done; the defense of property sold and delivered and the defense of res iudicata are manted because what should have been done has been done ; the defense of fraud is given because what should not have been done has been done; a defense such as that bonomm possessio has not been granted is given because what should have been done has not been done. 21 NERATIUS, Parchments, book 4: Prejudice to a matter of greater monetary value is held to occur, when an issue, which is connected either wholly or in some part with the issue of greater value, is brought to trial. 22 PAUL,Readings, sole book: A defense is a proceeding which at times relieves a person from condemnation, and at times reduces the condemnation. 1. A replication is a counterdefense , a defense to a defense, as it were. 23 LABEO, Plausible Views, Epitomized by Paul, book 6: Paul states: If a person has placed a statue in a town with the intent that it should become the property of the town and he then wishes to reclaim it, he ought to be barred by granting a defense infactum. 24 HERMOGENIAN, Epitome o f Law, book 6: A son-in-power acquires an exception of oath for his father, if he should swear that his father is not obliged to give anything. THE DEFENSE OF RES JUDICATA 1 ULPIAN, Edict, book 2: Since cases decided between some persons cause no prejudice to third parties, an action based on a will, in which freedom or a legacy was given, can be brought, even if the will is held to be rescinded or to be invalidated or to be not lawful; and even if the said legatee were defeated, prejudice is not caused to the gift of freedom. 2 ULPIAN, Edict, book 13: A person who brought an action against the heir of one who has passed him, an [emancipated] son, over in his will, was barred by a defense "and if the testamentary instrument was not of a condition that bonomwt possessio could be granted against it.": When an emancipated son neglected to claim bonomm possessio, it is not unjust that it be restored to him so that he may bring an action against the heir; and so Julian has written in the fourth book of his Digest. 136 BOOK...