Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

if more than one conversion or detention takes place, then time runs from the original conversion or detention, unless possession has been retaken in the meantime. Thus there is a true statute of limitations for personal chattels.

In the later Roman law all actions were limited to thirty years, in general, so that while an adverse possession for the period of acquisition (then longer than in classical law) would, if the other requirements for acquisition existed, of necessity bar the claim, a period of thirty years barred the claim whether the other person had acquired a right or not. The two notions were quite distinct.

Personal actions at civil law were also not normally barred by lapse of time though they might be barred by many other facts, e.g. an action on delict was barred by the death of the wrongdoer. The maxim 'actio personalis moritur cum persona* is not Roman, though there were rules in Roman law which may have suggested it. So far as contract is concerned, and speaking broadly, it may be said1 that the common law and probably the Roman law had a very early phase in which rights of action on contract were determined by the death of either party; but that was primitive. In the developed systems the maxim does not in general apply to actions on contract at all.2 But, in the region of tort or delict the rule seems to have been much more severe in our system than in the Roman. With us, at common law, it seems that any right of action in tort was destroyed by the death of either party—a rule which has been much modified by statute and has been almost abolished by the Act of 1934. It is possible that a similar

1 See Goudy, 'Two Ancient Brocards', Essays in Legal History, ed. Vinogradoff, 1913, pp. 215 sqq.

2 Personal representatives were formerly unable to recover in contract mere damages for personal injuries sustained by their deceased (see now, however, the Law Reform (Miscellaneous Provisions) Act, 1934, and decisions thereon); but damage to the personal estate, such as medical expenses and loss caused by inability to attend to business, was and is recoverable (Bradshaw v. L. and T. Railway Co. (1875), L.R. 10 C.P. 189).

418 PROCEDURE

not. In our law the fact that the action has been begun does not prevent its abatement by death if the cause of action is one which is terminated by death, though it does stop the running of time. Where the action was one which survived to or against the personal representative it was formerly necessary to reconstitute it by a process something like the translatio iudicii of Roman law, but nowadays the action simply proceeds with the addition of any necessary party to it. But whether the action is one which survives the death or not, it is in no way affected by a death occurring after verdict but before judgement.

A question wholly distinct from the foregoing is that of the possibility of basing an action on the death of a human being. Apart from an edict which gave an action for a fixed penalty where a man was killed by something thrown from a house,1 an exception which does not affect the principle, the Roman law allowed no action for the killing of a freeman, and it is a probable conjecture that this is due to the impossibility of valuing a freeman.2 The evidence is essentially negative: it consists in the existence of many texts giving action for wounding while there is none which gives one for killing.3 It seems clear that a man's representatives had no action if he was killed and that a paterfamilias had no action if his son was killed.

The common law rule known as the * Rule in Baker v. Bolton'* was stated by Lord Ellenborough CJ. in that case as follows: 'in a civil court, the death of a human being could not be complained of as an injury.' It operates to prevent a person from recovering damages for the permanent loss of the services of a wife (including the loss of her society) or of a child or of a servant, caused by death. In all these cases it is cheaper for the negligent

1 Inst. 4. 5. 1; 9. 3. i.pr., 5. 5. 2 See D. 9. 3. 1. 5; 9. 3. 7.

3 The most significant is D. 9. 2. 5. 3. For discussion and references

PRESCRIPTION: LIMITATION OF ACTIONS 419

railway company or motorist to kill the victim outright. The rule, which, in origin, is probably due to confused thinking,1 has now been upheld by the House of Lords3 and can be removed only by legislation. This course was recommended by the Law Revision Committee in 1934, but their recommendation was not adopted.3

11. DELAY IN SECURING JUDGEMENT

Prescription is distinct from another set of rules which do not seem to have any equivalent in our law. Our judges have a power, regulated by the Rules of the Supreme Court, to dismiss a case or strike it out for want of due prosecution; but there does not appear to be, in ordinary cases, any rule requiring that an action once begun shall reach judgement within a certain limited time. In Roman classical law some actions {iudicia legitimd) became extinct by the expiration of eighteen months from litis contestation i.e. from joinder of issue, and others {iudicia imperio continentia) by the expiry of the term of office of the magistrate by whom the formula was approved, i.e. in less than a year. We need not discuss the basis of the distinction between the two groups, which does not correspond with that between civil and praetorian actions. The rule was important, since an action which had once reached the stage of litis contestatio could never be brought again, unless the facts brought the matter within the rather narrow range of cases in which a man could get restitutio in integrum. It is clear that all that is left is a naturalis obligation which is not directly enforceable.* These rules, and the division of the

1 See Holdsworth in 32 L.Q.R. (1916) pp. 431-437; 33 L.Q.R. (1917) pp. 107-109.

2 Admiralty Commissioners v. Owners of SS. Jmerika, [1917] A.C. 38. 3 Interim Report, Cmd. 4540; Law Reform (Miscellaneous Provisions)

Act, 1934. The rule does not apply to actions in contract: Jackson v. Watson and Sons, [1909] 2 K.B. 193. By the Fatal Accidents Act, 1846, a statutory right of action was conferred on dependants of the deceased.

* D. 46. 8. 8. 1.

Restitutory interdicts in certain of their aspects resemble our mandatory injunctions, but, narrow as their field was, it was wider than that of the mandatory injunction, which is used to compel a defendant to remove an obstruction or to restore sofnething to its condition at the time of the plaintiff's complaint. The restitutory interdicts were used mainly for the restitution of property or for the putting right of interferences with public rights or easements and the like. They never prescribe a course of conduct, but only order a specific thing to be done, and the point to which we have already adverted, the exact statement in the order itself of the conditions on which it is to be operative, prevents it from doing injustice. Thus part of the work of these interdicts is done, with us, by means of actions for the recovery of land or chattels.

The interdict is essentially the initiation of a piece of litigation, so clearly so that in later law it was replaced by an action, a change which might well have been made centuries earlier. The injunction, interlocutory injunctions apart, is the last stage in the process: it is the result of a decision. Hence comes a great difference in the effect of the issue of the order. To -disobey the injunction is a contempt of court, likely to lead to sequestration, imprisonment or fine. There was nothing of this under the interdict. Indeed, nothing is more remarkable than the contrast between the strenuous language of the interdict and the comparatively feeble way in which it was enforced. The words of the order are imperative and uncompromising: Vim fieri veto1; 'exhibeas'; 'restituas'. But if it is disregarded the result is only an ordinary litigation, in rather complicated form, in which the question thrashed out was whether the conditions making the order operative actually existed, and which resulted, if this proved to be so, in an ordinary condemnation for money. It is true that in the procedure under the interdict pressure might be put on the defendant to make actual restitution by means

of the arbttrium clause already considered.1 If the defendant, however, was recalcitrant and preferred to pay the high valuation rather than to restore, the plaintiff had to put up with this: there was no question of anything like a mandatory injunction. There is however a text which gives another possibility. Where the wrong continued the index might allow a new interdict so that the defendant might be repeatedly penalised,2 a process somewhat like the repeated fining inflicted by the Court of Chancery in Awbrey v. George$ But this was exceptional: wefindit only in a case of detention of a freeman, where damages obviously did not suffice. It would not avail where as in questions of property or possession payment ofthe damages vested the right in the defendant, so that the wrong was ended, or where the wrong was done once for all, e.g. by building or destroying in defiance of an order. Such an order was discharged on satisfaction and no new order would be of any use, since there would be no new disobedience.

In later law under the new procedure the orders of the Court might be directly enforced by its officers.4 But an order to rebuild or to pull down could not be enforced in this way; the old indirect methods alone were possible in the absence of powers of coercion, such as that of commitment exercised by the Court of Chancery. It was only in connexion with the production or delivery of things in dispute that the Roman methods, even of the later law, could have been very effective.

3 (1600), Monro 757, as cited by Ashburner, Equity, 2nd ed. p. 31. See also Amos and Walton, Introduction to French Law, 2nd ed. pp. 180-18 2, for the practice of enforcing a judgement specifically by astreintes.

4 P. 413, ante.