1Ulpianus, On the Edict, Book II. As judgments rendered between litigants cannot prejudice others who are not parties to the suit, proceedings can be instituted under a will by which freedom is granted, or a legacy is bequeathed, although the will may have been broken, or may have been declared void, or may have been held not to have been drawn in accordance with the prescribed legal formalities; but, still, if the legatee should lose his case, the testamentary grant of freedom will not be affected.

2The Same, On the Edict, Book XIII. Where an action is brought against the heir of a testator who passed over his son in his will, and the plaintiff is barred by an exception on the ground that the will is in such a condition that possession of the estate can be granted by the Prætor contrary to its provisions, and the emancipated son has neglected to apply for possession of the estate, it is not unjust that he should be enabled again to institute proceedings against the heir. This was stated by Julianus in the Fourth Book of the Digest.

3The Same, On the Edict, Book XV. Julianus, in the Third Book of the Digest, states that an exception on the ground of res judicata can be opposed whenever the same question again arises in court between the same parties. Therefore, if anyone brings an action for the entire estate, after having lost one, brought to recover a portion of the same, or vice versa, he will be barred by an exception.

4The Same, On the Edict, Book LXXII. An exception on the ground of res judicata is tacitly understood to include all those persons who are interested in the case.

5Ad Dig. 44,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 2.The Same, On the Edict, Book LXXIV. Proceedings are considered to be instituted with reference to the same question, not only when a plaintiff does not make use of the same action which he brought in the first place, but when he brings another relating to the same matter. For instance, if anyone having brought an action on mandate should, after his adversary promised to appear in court, bring one on the ground of voluntary agency, or one for the recovery of the property, he institutes proceedings relating to the same matter. Hence, it is very properly said that he only does not institute proceedings with reference to the same matter who does not again attempt to accomplish the same result. For when anyone changes the action, he must also change the nature of his claim; as he is always considered to bring suit with reference to the same matter, even if he has recourse to a different kind of action from the one which he employed in the first place.

6Paulus, On the Edict, Book LXX. It has very reasonably been held that one action is sufficient for the settlement of a single controversy, and one judgment for the termination of a case; otherwise, litigation would be enormously increased, and would be productive of insurmountable difficulties, especially where conflicting decisions have been rendered. It is therefore very common to introduce an exception on the ground of res judicata.

7Ulpianus, On the Edict, Book LXXV. Ad Dig. 44,2,7 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 14.If anyone, after having brought an action for all of certain property and lost it, should then bring suit to recover a portion of the same, he will be barred by an exception on the ground of res judicata; for a part is included in the whole, and is considered the same thing where a portion of something is claimed and all of it had previously been demanded. Nor does it make any difference whether the claim is made for a certain article, or for a sum of money, or for a right. Hence, if anyone sues to recover a tract of land, and afterwards brings an action for a divided or an undivided portion of the same, it must be said that he will be barred by an exception. Or if you suggest, as an example, that I bring an action for a certain part of a tract of land, the whole of which I have previously sued for, I will be barred by an exception. The same rule must be adopted where, in the first place, suit is brought for two different articles, and afterwards one is brought for either of them; as the exception will operate as a bar. Likewise, if anyone brings an action to recover a tract of land and, having lost it, he then brings one for the trees which have been cut on said land, or if he, in the first place, brings suit for a house, and subsequently brings one for the ground on which it stands, or the lumber or stone of which it is built, the same rule will apply. This is also the case if I, in the first place, bring suit for a ship, and then bring one to recover the individual parts of which it is composed. 1If I bring an action to recover a female slave who is pregnant, and who conceived and brought forth a child after issue was joined in the case, and I then bring an action to recover the child, whether I shall be decided to have asserted the same claim or a different one, is an important point. And, indeed, it may be held that an action is brought for the same thing, wherever what was demanded before the first judge is demanded before a second one. Therefore, in almost all these cases, an exception will operate as a bar. 2Ad Dig. 44,2,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 10-12.A difference, however, exists with reference to the stone and timbers of which a house is composed, for where anyone brings a suit for a house, and loses it, and afterwards brings one for the stone or the timbers, or anything else, as his property, he is in such a position that he will be considered to have asserted a different claim, for a house may belong to a person who does not own the stones of which it is constructed. Finally, where materials have been used for the erection of a house belonging to another, the owner can recover them after they have been separated from the building. 3Ad Dig. 44,2,7,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 16; Bd. I, § 144, Note 4.The same question arises with reference to the crops, as where the child of a female slave is involved. For these things are not yet in existence, still they are derived from the property to recover which the action has been brought; and the better opinion is that this exception will not apply to them. It is, however, clear that if either the crops or the offspring of the slave have been included in the restitution of the property, and their value has been appraised, the result will be that an exception can be effectively interposed. 4And, generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover certain articles forming part of the estate; or if, after having brought an action to recover certain articles belonging to it, and failed, he then brings one to recover the entire estate, he will be barred by an exception. 5The same rule should be adopted where anyone, having brought an action to collect a claim from a debtor of an estate and lost it, brings one to recover the entire estate; or, on the other hand, if, in the first place, he brought an action to recover the estate, and afterwards brings one to collect a debt forming a part of the assets of the same, an exception, in this instance, will operate as a bar; for if I bring suit for an estate, all the property and rights of action appertaining to it are considered to be included in the claim.

No translation given.

9Ulpianus, On the Edict, Book LXXV. If I bring suit against you for an estate and I am defeated, because you are not in possession of any of it, and I again bring an action to recover it, after you have obtained a portion of the same, can this exception be properly pleaded against me? I think that the exception will not operate as a bar whether it was decided that the estate was mine, or whether my adversary was discharged from liability because he was not in possession of any part of it. 1If anyone, having defended his title to a tract of land of which he thought he was in possession, and judgment being rendered for the plaintiff, the defendant afterwards purchases the land, can the plaintiff be compelled to restore it to him? Neratius says that if an exception on the ground of res judicata is pleaded against him who brings suit for the land a second time, he can reply that judgment was rendered in his favor. 2Julianus says that an exception on the ground of res judicata passes from the original party in interest to the purchaser, but does not revert from the purchaser to the original party. Therefore, if you sell property belonging to an estate, and I bring an action to recover said property from the purchaser, and gain the case, I cannot plead the exception against you, if you bring suit against me. But if the judgment was not rendered between the person to whom you sold the property and myself.

10Julianus, Digest, Book LI. Or if I have lost my case, you will not be entitled to the exception against me.

11Ulpianus, On the Edict, Book LXXV. If a mother should, under the Decree of the Senate, bring suit to recover the estate of her minor son who is deceased, for the reason that she thought that, the will of his father having been broken, no pupillary substitution could have been made, and she should be defeated, because the will of the father had not been broken, and, after the will had been opened, where the pupillary substitution should appear, none was found to exist, and she again brings an action for the estate, she will be barred by an exception on the ground of res judicata; so Neratius says. I do not doubt that she will be barred by an exception on the ground of res judicata, but relief should be granted her, because she only advanced one point in her favor, namely, that the will of the father had been broken. 1Finally, Celsus says that if I bring an action to recover a slave whom I think is my property, because he was delivered to me by someone else, while, in fact, he is mine, because he belongs to an estate which I have inherited, and I bring a second action, after having lost the first, I can be barred by an exception. 2Ad Dig. 44,2,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 6.If, however, anyone brings suit for land on the ground that Titius had delivered it to him, and, having been defeated, afterwards sues for it on some other ground, he should not be barred by an exception. 3Julianus also says, if you and I are heirs of Titius, and you bring an action against Sempronius for part of a tract of land which you allege belongs to the estate, and you are defeated, and I afterwards purchase the same part of the land from Sempronius, I can interpose an exception against you by way of a bar, if you bring suit in partition against me, because the matter has been judicially decided between you and my vendor. For if, before I bring suit for the said part of the land, I should bring an action in partition, an exception can be interposed on the ground that the matter between you and myself has been disposed of in court. 4Where the origin of two claims is the same, it also makes a second demand the same. But if I bring an action for a tract of land, or a slave, and lose my case, and afterwards I should have a new cause of action from which I derive ownership, I will not be barred by this exception, unless my ownership, having been lost for the time being, is afterwards recovered by a certain species of postliminium. But what if the slave whom I claim should be taken by the enemy, and afterwards returns under the right of postliminium? In this instance I will be barred by the exception, because the matter is understood to be the same; but if I should have obtained the ownership for some other reason, the exception will not operate as a bar. Therefore, if property is bequeathed to me, under a condition, and while it is pending, having acquired the ownership of it, I bring suit, and I am defeated, and then, the condition having been fulfilled, I again sue to recover the legacy, I think that an exception cannot be pleaded, because I formerly had a different title to ownership than I have at present. 5Hence, if ownership is acquired after the first claim has been made, it changes the nature of the case, but the change of the opinion of the plaintiff does not do so; as, for example, if anyone thinks that he has the ownership of property through inheritance, and changes his opinion, and believes that he is entitled to it on account of a donation. This does not give rise to a new claim, for no matter in what way, or where a person may have acquired the ownership of the property, his right to it has finally been disposed of in the first action. 6If anyone brings suit for the right to walk through the land of another, and afterwards brings one to drive through the same land, I think that it can be strongly maintained that one thing was asked for in the first place, and another in the second, and therefore that an exception on the ground of res judicata cannot be interposed. 7It is our practice, where an exception on the ground of res judicata is pleaded, to include all the parties who have a right to bring the matter into court with the plaintiff. Among these are the attorney who was directed to bring the action, a guardian, the curator of an insane person or a minor, and the officer who has charge of the business of a city. On the side of the defendant, whoever undertakes the defence is included because he who institutes proceedings against him brings a suit in court. 8Where anyone brings an action against a son under paternal control for the recovery of a slave, and afterwards brings one against the father for the same slave, there will be ground for this exception. 9If I bring suit against my neighbor to compel him to take care of his. rain-water, and afterwards one of us should sell our land, and the purchaser brings the same action, or it is brought against him, this exception will operate as a bar, but only with reference to such work as has been performed after the decision was rendered. 10Likewise, if Titius should give to Seius, by way of pledge, property which he attempted to recover from you, and Seius afterwards should bring an action on pledge against you, it must be ascertained when Titius pledged the property. If he did so before bringing suit, the exception will not operate as a bar, because he should have presented the claim, and I retain my right of action on pledge unimpaired. If, however, he pledged the property after he brought suit, the better opinion is that an exception on the ground of res judicata will operate as a bar.

12Paulus, On the Edict, Book LXX. When the question is asked whether or not this exception will operate as a bar, it should be ascertained whether the same property is involved;

13Ulpianus, On the Edict, Book LXXV. Either the same amount, or the same right which was the subject of the first action.

14Paulus, On the Edict, Book LXX. It should also be ascertained if the same cause of action exists, or the persons are of the same rank, and if these things do not coincide, the case is different. Where this exception is pleaded, the same property is understood to be that which was the subject of the first action, even though its quality or quantity may not have been absolutely preserved, and no addition to, or deduction from it has been made, as the term should be accepted in its broadest significance, on account of the welfare of the parties interested. 1Where anyone enjoys the usufruct of a portion of the property, and brings suit to recover the entire usufruct, and loses his case, and he then brings an action for the other half of the usufruct, which has subsequently accrued to him, he will not be barred by an exception, for the reason that the usufruct does not accrue to a portion of the estate, but to the person himself. 2Ad Dig. 44,2,14,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Noten 4, 6.In cases of this kind, personal actions differ from real ones, for where the same property is due to me from the same individual, each cause of action is based on a separate obligation; and a judicial proceeding having reference to one of them is not annulled by a similar demand for another. But when I bring a real action without mentioning on what ground I allege the property to be mine, all titles to it are included in the claim for one portion, because, although the property cannot be mine more than once, it may be due to me several times. 3Where anyone institutes proceedings under the interdict to recover possession of property, and afterwards brings a real action, he will not be barred by an exception, because proceedings to obtain possession under an interdict, and a suit to determine the ownership of the property, are different.

15Gaius, On the Provincial Edict, Book XXX. Where a suit involving an estate is pending between you and myself, and you have in your possession some property belonging to said estate, and I also have some, there is nothing to prevent me from bringing an action against you to recover the estate, and, on the other hand, nothing to prevent you from bringing an action against me for the same purpose. If, however, after the case has been disposed of, you bring such an action against me, it will be necessary to ascertain whether the estate was adjudged to be mine or yours. If it was decided to be mine, the exception on the ground of res judicata will operate as a bar against you; because, for the very reason that judgment has been rendered in my favor, and the estate found to belong to me, it has been decided not to be yours. If, however, it has been found not to belong to me, nothing is understood to have been determined with reference to your title to it, because it may be that the estate does not belong to either of us.

16Julianus, Digest, Book LI. For it would be extremely unjust that an exception on the ground of res judicata should benefit the party against whom the judgment was rendered.

17Gaius, On the Provincial Edict, Book XXX. If I bring suit against you to recover property which belongs to me, and you are discharged from all liability because you proved that you have ceased to hold possession of said property, without any fraud on your part; and then, after you have obtained possession of said property a second time, I again bring an action against you, an exception on the ground of res judicata cannot effectually be interposed against me.

18Ulpianus, On the Edict, Book LXXX. Where anyone brings suit for the production of property and his adversary is discharged from liability because he was not in possession, and he having afterwards regained possession, the owner brings suit a second time, an exception on the ground of res judicata can not properly be pleaded, because the condition of the case is different.

19Marcellus, Digest, Book XIX. A certain man gave the same property in pledge at two different times, the second creditor brought an action on pledge against the first one, and gained the case, and the first afterwards brought a similar action against the second. The question arose whether an exception on the ground of res judicata would operate as a bar. If the second creditor had pleaded the exception before the property had been pledged to him, and he could advance nothing which was new and valid, the exception would undoubtedly be a bar, for it brings up the same point which had already been decided.

20Pomponius, On Sabinus, Book XVI. Where suit was brought under a will against the heir by a person to whom all the family silver had been bequeathed, and who thought that only certain tables had been left him, and brought into court solely the question of appraisement of said tables, and afterwards sued to recover the money which had been left to him, Trebatius says that he will not be barred by an exception, for the reason that he did not bring suit for this in the first place, and did not intend to do so, nor did the judge render any decision with reference to it.

21The Same, On Sabinus, Book XXXI. If silver plate has been bequeathed to me by will, and I bring an action against the heir to recover it, and it should afterwards be ascertained that the testator had also bequeathed to me his wardrobe by a codicil, the latter legacy will not be affected by the former decision, because neither the parties to the suit, nor the judge, understood that anything was in dispute except the silver plate. 1Ad Dig. 44,2,21,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 6.If I bring suit to recover a flock of sheep, and I am defeated, and the flock either increases or diminishes in number, and I again bring an action to recover the same flock, an exception can effectually be interposed against me. If I bring suit for any one of the animals composing the flock, and it is present as part of the same, I think that the exception will still operate as a bar. 2Ad Dig. 44,2,21,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 14.If you bring an action against anyone to recover Stichus and Pamphilus, whom you allege are your slaves, and your adversary is discharged from liability, and you again bring suit against him, claiming Stichus as your slave, it is established that you will be barred by an exception. 3If I bring an action for a tract of land which I allege to be mine, and afterwards bring one to recover the usufruct of the same, on the ground that, as the land belongs to me, its usufruct is also mine, I will be barred by an exception, because anyone who owns land cannot bring suit to recover the usufruct of it. If, however, I bring an action to recover the usufruct, as being mine, and afterwards, having obtained the ownership of the land, I again sue for the usufruct, it can be said that the case is different; as, after I obtained the land itself, the usufruct which I formerly enjoyed ceases to be mine as a servitude, and again becomes my property by the right of ownership, and, as it were, by a different title. 4If you become surety for my slave, and an action is brought against me on account of his peculium, and I gain the case, and afterwards an action is brought against you for the same cause, an exception on the ground of res judicata can be effectually pleaded.

22Paulus, On the Edict, Book XXXI. If an action on deposit is brought against an heir, and lost, the plaintiff can bring one against the other heirs who cannot avail themselves of an exception on the ground of res judicata. For although the same question is involved in different actions, still the change of the parties against whom suit is individually brought gives the case a different aspect. If a suit is brought against the heir on account of fraud committed by the deceased, and afterwards one is brought against him for some fraudulent act of his own, an exception on the ground of res judicata will not operate as a bar, because a different question is involved.

23Ulpianus, Disputations, Book III. When an action only for the recovery of interest lost is brought, there need be no apprehension that an exception on the ground of res judicata will operate as a bar in a suit for the principal, for, as it is rib advantage, neither, on the other hand, will it be any impediment. The same rule will apply where, in a bona fide contract, the plaintiff wishes only to collect the interest, for the interest still continues to run, because as long as the contract in good faith stands it will. do so.

24Julianus, Digest, Book IX. Where anyone buys property from a person who is not its owner, and is afterwards discharged from liability when the owner himself brings suit to recover it, and the purchaser then loses possession of the property, and institutes proceedings to recover it from the owner who has obtained possession of the same, the latter can have recourse to an exception on the ground that the property belongs to him, and the other can reply that it has not been decided to be his.

25The Same, Digest, Book LI. If anyone who is not an heir should bring an action for the estate and, after having become an heir, should again sue for the same estate, he will not be barred by an exception on the ground of res judicata. 1Ad Dig. 44,2,25,1ROHGE, Bd. 10 (1874), S. 349: Actio quanti minoris auf Restitution des ganzen Kaufpreises im Falle der völligen Entwerthung der Waare durch den Fehler.It is in the power of a purchaser to bring an action to compel the property to be returned within six months, where the condition was that if a slave was worth less than he was sold for, the excess paid should be refunded; for this latter action also includes the clause for the return of the money, when the slave had such a defect that, on account of it, the purchaser would not have bought him if he had been aware of it. Wherefore, it is very properly said that if the purchaser who has made use of either one of these actions should afterwards employ the other, he can be barred by an exception on the ground of res judicata. 2If you interfere in my business, and bring an action for a tract of land in my name, and I afterwards do not ratify the claim which you have made but direct you to again bring an action to recover the same land, an exception on the ground of res judicata will not act as a bar when conditions have changed since the mandate was given. The same rule will apply where a personal action, and not a real one, is brought.

26Africanus, Questions, Book IX. I brought an action against you alleging that I had a right to raise my house ten feet higher, and lost it. I now bring one against you alleging that I Have a right to raise my house twenty feet higher. An exception on the ground of res judicata can undoubtedly be pleaded. If I again bring suit alleging that I have the right to raise my house still ten feet higher, an exception will operate as a bar; for since I could not raise it to a lower height, I certainly would not be entitled to raise it to a still higher one. 1Likewise, if having brought an action to recover a tract of land, and lost it, the plaintiff brings suit for an island which was formed in a river opposite said land, he will be barred by an exception.

27Neratius, Parchments, Book VII. When, in a second action, the question arises whether the property is the same as that which was the object of the first one, the following things must be considered: first, the parties interested; second, the property for which suit was brought; and third, the immediate cause of action. For now it is of no consequence whether anyone believes that he has a good cause of action, any more than if, after judgment had been rendered against him, he should find new documents to strengthen his case.

28Papinianus, Questions, Book XXVII. An exception on the ground of res judicata will bar one who succeeds to the ownership of the party who lost the case.

29The Same, Opinions, Book I. Ad Dig. 44,2,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 24.An exception on the ground of res judicata will not operate as a bar against a co-heir who was not a party to the suit; and a slave, who has not yet been manumitted under the terms of a trust, cannot be. again claimed as a slave, after judgment has been rendered in favor of his freedom; but it is the duty of the Prætor to see that the judgment is complied with in this case, as he cannot decide in favor of the party who was defeated. For if suit to declare a will inofficious has been brought against one of the co-heirs, or two co-heirs have brought actions separately, and one of them gains his case, it has been established that the grants of freedom must take effect; still, it is the duty of the judge to provide for the indemnity of the party who is successful, and who is to manumit the slave. 1If a debtor brings suit to determine the ownership of property, which he pledged without notifying the creditor, and judgment is rendered against him, the creditor will not be considered to occupy the place of the defeated party, as the agreement with reference to the pledge preceded the decision.

30Ad Dig. 44,2,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 130, Note 4.Paulus, Questions, Book XIV. A certain man who could succeed to it as heir at law, having been appointed heir to the sixth part of an estate, contested the legality of the will, and having demanded half of the estate from one of the appointed heirs, lost his case. He is held to have included the sixth part of the estate in his claim, and therefore, if he brought suit for the same share under the same will, an exception on the ground of res judicata will operate as a bar against him. 1Ad Dig. 44,2,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 248, Noten 25, 26.Latinus Largus: A transaction took place with reference to an estate which belonged to Mævius, but whose right to it was disputed by Titius, and a transfer of the property of the estate was made by Titius to Mævius, as the heir, in which transfer a certain tract of land which, several years before, had been hypothecated to the grandfather of Mævius, and afterwards to another person was delivered, in pursuance of the contract. These matters having been settled, the second creditor of Titius brought suit for his claim, and gained it. After this judgment, Mævius found among the papers of his grandfather the note executed by Titius, by which it appeared that the land which was included in the said transaction had also been encumbered by the said Titius to his grandfather. Therefore, as it was evident that the land formerly hypothecated to the grandfather of Mævius, the heir, was the same as that on account of which Mævius had a judgment rendered against him in favor of the second creditor, I ask whether the right of his grandfather, of which he was ignorant at the time that the action was brought to recover the land, could not be barred by pleading an exception. I answered that if the ownership of the land was in question, and a decision was rendered in favor of the said creditor, we should hold that an exception on the ground of res judicata would operate as a bar against the party who lost the former suit bringing another, because as the plaintiff had been successful, the question appears to be the same one previously involved. If, however, the person in possession should be discharged from liability, and, having lost possession, should bring suit to recover it from the same party who was not successful in the first place, he will not be barred by an exception, for in the judgment rendered in his favor, nothing was decided with reference to his title. When, however, the action on pledge was brought against the first creditor, no question might happen to be raised as to the title of the party in possession, because in controversies having reference to ownership, what was decided to be mine is at the same time decided not to belong to another; but, in the case of an obligation, the result will be that, where property is encumbered in favor of one person, it does not follow that it is not encumbered to another, if the latter can prove that this is the fact. It may be said, that it is probable that an exception will not operate as a bar, as there was no doubt as to the right of the possessor, but only as to the encumbrance. In the case stated, however, the point which presents the greatest difficulty to me is whether the right of pledge is extinguished, when the ownership of property is acquired; for the right of pledge cannot continue to exist where the creditor becomes the owner of the property. An action on pledge, however, will lie, because it is true that the property was pledged and the claim was not satisfied. For which reason I do not think that an exception on the ground of res judicata will operate as a bar.

31The Same, Opinions, Book III. Paulus held that an exception on the ground of res judicata could not be effectually pleaded against anyone who brought a personal action for the recovery of property, who had previously brought an action for the same property and lost it.