Blacks Law Dict. 1st ed

450

EXCEPTIO DOLI MALI

EXCEPTION

exceptio metus, etc. Inst. 4,13,9. See Dig. 44, 1, 3. In common law. A peremptory plea; a plea in bar. Bract, fols. 240, 3996. Exceptio probat regulam. The excep tion proves the rule. 11 Coke, 41; 3 Term, 722. Sometimes quoted with the addition "de rebus non exceptis f " ("so far as con cerns the matters not excepted.") Exceptio qure firm at legem, exponit legem. An exception which confirms the law explains the law. 2 Bulst. 189. EXCEPTIO REI JUDICAT^I. In the civil law. An exception or plea of matter adjudged; a plea that the subject-matter of the action had been determined in a previous action. Inst. 4, 13, 5. This term is adopted by Bracton, and is constantly used in modern law to denote a defense founded upon a previous adjudica tion of the same matter. Bract, fols. 1006, 177; 2 Kent, Comm. 120. A plea of a for mer recovery or judgment. EXCEPTIO REI VENDITJE ET TRADITiE. In the civil law. An excep tion or plea of the sale and delivery of the thing. This exception presumes that there was a valid sale and a proper tradition; but though, in consequence of the rule that no one can transfer to another a greater right than he himself has, no property was trans ferred, yet because of some particular circum stance the real owner is estopped from con testing it. Mackeld. Bom. Law, § 299. Exceptio semper ultimo ponenda est. An exception should always be put last. 9 Coke, 53. EXCEPTIO TEMPORIS. In the civil law. An exception or plea analogous to that of the statute of limitations in our law; viz., that the time prescribed by law for bringing such actions has expired. Mackeld. Bom. Law, § 213. EXCEPTION. In practice. A formal objection to the action of the court, during the trial of a cause, in refusing a request or overruling an objection; implying that the party excepting does not acquiesce in the de cision of the court, but will seek to procure its reversal, and that he means to save the benefit of his request or objection in some future proceeding. It is also somewhat used to signify other objections in the course of a suit; for ex ample, exception to bail is a formal objection

poralis," (temporary;) one which defeated the action for a time, (quce ad tempus nooet,) and created delay, (et temporis dilationem tribuit;) such as an agreement not to sue within a certain time, as five years. Inst. 4, 13, 10. See Dig. 44, 1, 3. EXCEPTIO DOLI MALI. In the civil law. An exception or plea of fraud. Inst. 4, 13, 1, 9; Bract, fol. 1006. Exceptio ejus rei cujus petitur disso lutio nulla est. A plea of that matter the dissolution of which is sought [by the ac tion] is null, [or of no effect.] Jenk. Cent. 37, case 71. Exceptio falsi omnium ultima. A plea denying a fact is the last of all. EXCEPTIO IN FACTUM. In the civil law. An exception on the fact. An excep tion or plea founded on the peculiar circum stances of the case. Inst. 4, 13, 1. EXCEPTIO JURISJUBANDI. In the civil law. An exception of oath; an excep tion or plea that the matter had been sworn to. Inst. 4, 13, 4. This kind of excep tion was allowed where a debtor, at the in stance of his creditor, (creditore deferente,) had sworn that nothing was due the latter, and had notwithstanding been sued by him. Id. EXCEPTIO METUS. In the civil law. An exception or plea of fear or compulsion. Inst. 4, 13, 1, 9; Bract, fol. 1006. Answer ing to the modern plea of duress. Exceptio nulla est versus actionem qusB exceptionem perimit. There is [can be] no plea against an action which destroys [the matter of] the plea. Jenk. Cent. 106, case 2. EXCEPTIO PACTI CONVENTI. In the civil law. An exception of compact; an exception or plea that the plaintiff had agreed not to sue. Inst. 4, 13, 3. EXCEPTIO PECUNLS3 NON NU MERATiE. An exception or plea of money not paid; a defense which might be set up by a party who was sued on a promise to re pay money which he had never received. Inst. 4, 13, 2. EXCEPTIO PEREMPTORIA. In the civil law. A peremptory exception; called also "perpetua," (perpetual;) one which for ever destroyed the subject-matter or ground of the action, (qua semper rein dequaagitur perimit;) such as the exceptio doli mali, the

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