4.1.155 to 4.1.158

(112) All actions which lie against anyone, either by operation of law, or because they are granted by the Prætor, do not also lie against his heir, nor are usually granted by the Prætor; for this rule is so positive that penal actions arising from criminal offences do not lie, and are not usually granted against an heir; as, for instance, the action of theft, of the robbery of property by violence, or of injury, or of unlawful damage. Actions of this kind will, however, lie in favor of heirs, and will not be refused them by the Prætor, with the exception of the action for injury, and any other of the same description if it can be found. (113) Sometimes, however, even an action based upon a contract will not lie for or against an heir; since the heir of a joint stipulator has no right of action, and the heir of a sponsor or guarantor is not liable. (114) It remains for us to consider whether, if the party against whom the action was brought before judgment had been rendered but after issue had been joined, should satisfy the plaintiff, what course the judge should pursue; whether he has authority to discharge him from liability, or whether he should rather decide against him for the reason that at the time of the joinder of issue he was in such a position that he should have been condemned. Our preceptors think that he should be discharged, and that it makes no difference what kind of a judgment is rendered; and this is the reason why it is commonly said that it was the opinion of Sabinus and Cassius that a discharge from liability could be granted in all actions.