4.1.164 to 4.1.170

(117) Again, exceptions can be pleaded in actions which are not personal; for example, if you compel me through fear, or induce me through fraud, to sell any property to you, and then you sue me for the said property, an exception will be granted me by which you will be barred, if I can prove that you have been guilty of intimidation or fraud. Likewise, if knowing that a case involving the title to a tract of land was pending in court, and you buy the land from a party who is not in possession, and claim it from one who is in possession, an exception can be pleaded against you by which you will be absolutely barred. [1] Original copy illegible. [2] The exceptio ,or exception, was the answer of the defendant, and while by means of it he could traverse the plaintiff's allegations, this was not usually done; but the practice was to set forth circumstances, which, if they did not directly contravene the statements of the plaintiff —and they even sometimes admitted them —rendered these of no effect, by alleging bad faith, fraud, or flagrant injustice. Hence the exceptio almost exactly coincided with the English plea of confession and avoidance. —ed. (118) The Prætor mentions other exceptions in his Edict, and he grants still others after having taken cognizance of the case. All of them are either based upon law or what is equivalent to it, or they are derived from the jurisdiction of the Prætor. (119) Moreover, all exceptions are drawn up in language which is the opposite of what the party against whom the action is brought alleges. For if the defendant states that the plaintiff is guilty of fraud, for the reason that he brings suit for money which he never advanced, the exception is stated in the following words: "If in this matter no fraud was, or is committed by Aulus Agerius." Likewise, if he states that the action was brought in opposition to an agreement not to demand the money, it is set forth as follows: "If it was not agreed between Aulus Agerius and Numerius Negidius that the said money should not be demanded"; and similar terms are ordinarily employed in other cases. Hence, because every exception is an objection made by the defendant but is inserted in the formula in such a way as to render the condemnation conditional, that is, the judge must not condemn the defendant unless no fraud was committed by the plaintiff with reference to the matter in question, the judge shall not render a decree against him if no informal agreement [1] was entered into not to bring suit to recover the money.