Ulpianus, On the Edict, Book LXXV. Julianus says: “If before I direct you to bring a suit for the recovery of land, and being about to do this, you take sufficient security, and afterwards you begin the suit under my direction, the sureties will be liable”.

The Same, On the Edict, Book LXXV. Where a testament is alleged to be forged, and suit is brought for a legacy under it, it must be paid after a bond has been filed, or an inquiry must be instituted to determine whether it is due. Where the testament is alleged to be forged, no legacy should be paid to the party who attacks it on this ground, if the matter has been brought into court.

The Same, On the Edict, Book LXXV. Everything is included in an action for the partition of common property, unless something has been expressly excepted by common agreement to avoid its being included.

Ulpianus, On the Edict, Book LXXV. Payment of the appraised value of the property in court resembles a purchase.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

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