A Selection of Legal Maxims, Classified And Illustrated
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PotMer, ad D. 42, 1, pr. ^ d. 50, 17, 207.
« D. 44, 2, 3. Pothier, ad D. 44, 1 ; 1, pr. ' D. 44, 2, 24.
224 BROOM'S LEGAL MAXIMS.
is therefore a wide distinction between the meaning of the word '■^ exceptio," as used in the prsetorian and in the civil law; and by modern writers an " exception" is often employed as synonymous with "defence," and is made to include any matter which can be set up by the defendant in opposition to the plaintiff's claim.^ r*9J.Qn ^^"^ ^"^"^ ^^"^ ^&vj, the plea of ju...dgment recovered at once suggests itself as analogous to the " exeeptio rei judicatce'' above mentioned, and we shall now briefly consider under what cir- cumstances, and to what extent, the general rule applies, that "a man shall not be twice vexed for the same cause ;" and first, we may remark, in the words of Lord Kenyon, that " if an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment." In such a case, the matter in dispute having passed in rem judicatam, the former decision is conclusive between the parties, if either attempts, by commencing another action, to reopen the question.^ " After a recovery by process of law," says the same learned judge, " there must be an end of litigation ; if it were otherwise there would be no security for any person,"^ and great oppression might be done under color and pretence of law.'' To unravel the grounds and motives which may have led to the determination of a question once settled by the jurisdiction to which the law has re- ferred it, would be extremely dangerous ; it is better for the general administration of justice that an inconvenience should sometimes fall upon an individual, than that the whole system of law should be overturned and endless uncertainty be introduced.' r*9d.d.i *^^^ general rule, then, both at law and equity, is to -^ refuse a second trial where the propriety of the verdict in the former is not impeached as against law or evidence, though there be material evidence for the party against whom the verdict has passed which was not adduced, unless it be shown to have been discovered after the trial, or unless the verdict has been obtained by fraud or ' Maokeld., Civ.
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You can find similar books in the "Read Also" column, or choose other free books by Herbert Broom to read onlineMoreLess
To quickly assess the difficulty of the text, read a short excerpt:
PotMer, ad D. 42, 1, pr. ^ d. 50, 17, 207.
« D. 44, 2, 3. Pothier, ad D. 44, 1 ; 1, pr. ' D. 44, 2, 24.
224 BROOM'S LEGAL MAXIMS.
is therefore a wide distinction between the meaning of the word '■^ exceptio," as used in the prsetorian and in the civil law; and by modern writers an " exception" is often employed as synonymous with "defence," and is made to include any matter which can be set up by the defendant in opposition to the plaintiff's claim.^ r*9J.Qn ^^"^ ^"^"^ ^^"^ ^&vj, the plea of ju...dgment recovered at once suggests itself as analogous to the " exeeptio rei judicatce'' above mentioned, and we shall now briefly consider under what cir- cumstances, and to what extent, the general rule applies, that "a man shall not be twice vexed for the same cause ;" and first, we may remark, in the words of Lord Kenyon, that " if an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment." In such a case, the matter in dispute having passed in rem judicatam, the former decision is conclusive between the parties, if either attempts, by commencing another action, to reopen the question.^ " After a recovery by process of law," says the same learned judge, " there must be an end of litigation ; if it were otherwise there would be no security for any person,"^ and great oppression might be done under color and pretence of law.'' To unravel the grounds and motives which may have led to the determination of a question once settled by the jurisdiction to which the law has re- ferred it, would be extremely dangerous ; it is better for the general administration of justice that an inconvenience should sometimes fall upon an individual, than that the whole system of law should be overturned and endless uncertainty be introduced.' r*9d.d.i *^^^ general rule, then, both at law and equity, is to -^ refuse a second trial where the propriety of the verdict in the former is not impeached as against law or evidence, though there be material evidence for the party against whom the verdict has passed which was not adduced, unless it be shown to have been discovered after the trial, or unless the verdict has been obtained by fraud or ' Maokeld., Civ.
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You can find similar books in the "Read Also" column, or choose other free books by Herbert Broom to read onlineMoreLess
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