citation is very difficult to a person not very familiar with the Justinian Digests, as the only clew he gives to his cited law is the first words of the title, law, and paragraph, without any numbers. From actions in general he passes to criminal actions and offences in particular, under the title De Corona, or Crown Law. In his fourth book he passes to particular civil actions, which he gives under their Norman French names of Assize of novel disseisin, or novae disseysina?; Assisa ultima; presentationis; Assisa mortis antecessoris; Assisa utrum, etc.; and Essoins, Defaults, and Warranty, when he treats of defences to actions in general. Leaving for the present the questions of special actions for future consideration, let us consider the law of defences to actions, as expounded by him, and compare it with the Roman civil law. While the Roman lawyers made a distinc tion between actions and defences allowed by legislative enactment, which they called the civil law, and those allowed by the praetor, by his interdict and authority, I make no such distinction, as they were prac tically equally effective, and constituted the Roman law and practice; hence the whole is termed the civil law herein. A brief outline of the Roman mode of defence to an action will enable us to com pare what Bracton says on the same subject more easily. An action may be defended by denying the material facts upon which the action is founded (traverse denial), or by alleging other facts to show that the plain tiff either originally had no right of action or that his right subsequently ceased; or he may allege a right by virtue of which he can demand that the plaintiff be nonsuited, even if his action was founded on a subsisting right. These last two modes are termed confes sion and avoidance in the common law of the present time, but in the Roman law they were termed exceptions. The division of exceptions into civil and pretorian, or honorary, need not be here considered, as it
applies more to their origin than effect. In regard to their effect, they were divided into peremptory and dilatory. The peremptory or perpetual exception was one which (wholly or partially) perpetually destroyed the action. The dilatory or temporary exception only delayed the action, and was a temporary defence. Where an agreement is made not to sue within a certain time on a contract, and the plaintiff sued before the expiration of that time, the defendant could plead the exception pacti conventi, — that is, that plaintiff had agreed not to sue until the expiration of the given time; this is a dila tory exception. So objections to the juris diction of the court or the competency of the judge are pleaded by way of dilatory exception. Where a person is compelled through fear to make an improvident contract, he may when sued on the contract plead the peremptory exception quod melns causa, — that he was compelled through fear to make the contract. In like manner fraud may be pleaded to a contract by the exception dolt mali; and that a former suit on the same cause of action had been determined, by the excep tion rei judîcalœ; and there were many other exceptions in the Roman practice. Sometimes an exception prima facie may seem good, which in fact is destroyed by some other cause not apparent, in the same manner as an action prima facie good is destroyed by an exception; and then the plaintiff must be allowed to set up such ob jection, which is called a replication; and if the defendant has any answer to make to this replication, it is called a duplication, and the reply to that is called triplication, and then comes the quadriplication, and so on, until the pleadings were made up before the praetor, and the issue sent before a judge appointed by the praetor to be tried. Such was the Roman practice; and the making up of the issue (litis contestatio) before the praetor, and the formula drawn up by him, directing the judex what to try,
