It is evident that in such cases the imprescriptibility of the exception would be unfavorable to the end desired.

dum." See art. 1490 Dutch Code. The same was true of the Project of 1820, art. 3535. As to French Law, authors do not agree. See Zacharia, 1. c., p. 516, and Marcadé, on the art. 1304 Code Nap. The reasoning of the latter is scarcely plausible, and contains, moreover, false notions respecting Roman-Law. It is scarcely necessary to remark, that in Prussian and Austrian Law, both of which give to prescription the power of destroying the right itself, exceptions must, inevitably, be extinguished at the same moment. See Unger, § 125, note 46.

SECTION VII.

Commencement of judicial discussion (contention).

§ 103. INFLUENCE OF JUDICIAL DISCUSSION (CONTENTION,) UPON THE SUBSTANCE OF RIGHTS, ['] AND UPON THE LEGAL RELATIONS

OF LITIGANT PARTIES.

The commencement of judicial discussion, or contention, creates between the litigant parties a new relation which resembles an agreement, [2] (although an involuntary one), to submit their differences to the consideration of the judge, and to await, tranquilly and passively, his decision. [3] L. 3. § 11. D. de pec. (15. 1). "Nam sicuti stipu

[1] See, on this subject, Buchka, die Lehre vom Einfluss des Processes auf das materielle Rechtsverhaltniss. 2 vol. 1846, 47. Ihering (Geist des Röm. R. III. 19) very justly says: "The preponderance of the suit made itself felt npon the very substance of the right, notably by the effect which it produced upon every portion of that right upon which its light fell, if it is permitted to use such an expression. In our day, this influence is scarcely observed, but it was then very clear. The same light of intelligence which was thrown first upen the suit, lighted and warmed all the elements, all the aspects, of the right, which were exposed to its rays; and these, in the course of this development, gained a marked advance over those other portions of the right, which (to continue the metaphor) remained in the shade."

[2] "Defensor tutoris condemnatus, non auferet privilegium pupilli, neque enim sponte cum eo pupillus contraxit." L. 22. D. de tut. et rat. distr., (27. 3). Windscheid (Actio, p. 62 et seq.,) has vainly endeavoured to weaken this passage. See Dernburg (Krit. Zeitschr. II. p. 341), who remarks, very justly, that the whole Roman suit was a series of compulsory stipulations (covenants.)

[3] See, especially, Ihering, Geist des Röm. Rechts. I. § 12.

latione contrahitur cum filio, ita judicio contrahi, proinde non originem judicii spectandam, sed ipsam judicati velut obligationem." By ancient Roman Law, it was the litis contestatio solemnly perfected [1] (it might be called "the affirmation or declaration of the contest") which had this effect of extinguishing the legal relation previously existing between the parties, [2] and replacing it by another, while preserving intact its substance and its purport. (contents.) This negative and destructive power

[1] By litis contestatio was meant, in general, the act whence it resulted in an unequivocal manner, that the parties had not only the will and the intention to commence the suit, but also to pursue it to the end. The form of the declaration and the precise moment when it could be said that the contest was affirmed or avowed, differed at different epochs of Roman Law. For the period of legis actiones, see Festus, vo contestari: "Contestari est, cum uterque reus dicit testes estote. Contestari litem dicuntur duo aut plures adversarii, quod ordinato judicio utraque pars dicere solet testes estote." Under the rule of the judicia ordinaria the litis contestatio was regarded as established, when the Praetor, after having provisionally examined the case, had given his formula and sent the parties before the Judge. Under the Justinian system, it consisted in the declaration made by both parties, before the judge, of the actual existence and the extent of their disagreement. "Lis tunc contestata videtur, cum judex per narrationem negotii causam audire coeperit." L. un C. de lit. cont. (3. 9). L. 14. § 1. C. de jud. (3. 1). "Cum lis fuerit contestata post narrationem propositam et contradictionem objectam." Keller, Lit. contest. § 1-6. Civ. Proc. s. 59. Kierulff, p. 255. Sav. Syst. VI. § 256 et s. Arndts, § 113.

-

[2] Gaj. III. 180. "Tollitur adhuc obligatio litis contestatione nam tunc obligatio quidem principalis dissolvitur, incipit autem teneri reus litis contestatione.” Fragm. Vat. § 263. "Inchoatis litibus actiones novavit." L. 11. § 1. D. de Nov. (46. 2). "Fit autem delegatio vel per stipulationem vel per litis contestationem." There is still controversy as to whether the litis contestatio constituted a veritable novation. This dispute seems to me tolerably idle, inasmuch as two points are incontestable: I. That the same thing can be considered in justice but once: "bis de eadem re ne sit actio"; Gaius IV. 106. 121. 131. Bekker, Process Consumt. § 24, and seq.; and II. That neither the novation which was called "necessary," (novatio necessaria), nor the consumption of the primitive right, could ever damage the position of the plaintiff; so that the difference between this species of novation and a voluntary novation was well known. L. 29. D. de Nov. (46. 2). L. 86. L. 87. D. de R. J. "Non solet deterior conditio fieri eorum que litem contestati sunt: sed plerumque melior." L. 8. D. de comp. (1g. 2). L. 50. § 2. D. de pec. (15. 1). L. 8. § 3. D. de fidejuss. (46. 1). Keller (Röm. Civ. Proc. p. 245. note 708) justly reproaches the adversaries of the novation with being guilty of a petitio principii, in beginning by attributing to novation in general all the character of voluntary novation, and in afteward starting from that point to combat the necessary novation."

of the litis contestatio, disappeared in the Justinian legislation, [1] although the compilers of the Corpus Juris have not obliterated all traces of it. But, independently of this negative power, the commencement of the judicial contention produced other effects, of a positive nature, which were in no way modified by the radical change introduced into the procedure. There passes, necessarily, between the commencement and the end of every suit, a longer or shorter period, during which changes and modifications may occur, either in the reciprocal relations of the parties or with reference to the object of litigation; and if no account were made of these changes, it might be, that the plaintiff, even while gaining his cause, had suffered undeniable damage. The necessity of obviating this danger produced, of itself, a recognition of the following principle: In so far as no injustice was done to the defendant who had thought himself bound to oppose the action because he believed the right to be on his side, the plaintiff in whose favour the judge had decided should be replaced in the same position in which be would have found himself, if the defendant had acceded to his demand at the outset of the suit. [2]

[1] Sav. 1. c. p. 25; Windscheid, Actio, p. 66; Unger § 127. The basis of the exceptio litis pendentis was not that one could not prosecute the same right more than once, but that it could not be done twice simultaneously.

[2] L. 40. pr. D. de her. pet. (5. 3). L. 17. § 1. L. 20. D. de R. V. (6. 1). “Nec enim sufficit corpus ipsum restitui, sed opus est, ut et causa rei restituatur: id est, ut omne habeat petitor, quod habiturus foret, si eo tempore quo judicium accipiebatur, restitutus illi homo fuisset." L. 31 pr. D. de R. C. (12. 1). "Cum fundus vel homo per condictionem petitus esset, puto, hoc nos jure uti, ut post acceptum judicum, causa omnis restituenda sit, id est omne quod habiturus esset actor, si litis contestandae tempore solutus fuisset." L. 2. D. de usnr. (22. 1). “Vulgo receptum est, ut quamvis in personam actum sit, post litem tamen contestatam causa praestetur. Cujus opinionis ratio redditur, quoniam quale est, cum petitur, tale dari debet, ac propterea postea captos fructus, partumque editum restitui oportet.” L. 3. § 1. L. 38. § 7. D. eod. L. 91. § 7. D. de leg. I. "Cum homo ex testamento petitus est, causa ejus temporis, quo lis contestatur, repraesentari debet actori; et sicut partus ancillarum, sicut fructus fundorum interim percepti in hoc judicium deducuntur, ita quod servo legatorum, vel hereditatis nomine interim obvenerit, praestandum est petitori." L. 35. D. de V. S. (50. 16). "Restituere is intelligitur, qui simul et causam actori reddit, quam is habiturus esset, si statim judicii accepti tempore, res ei reddita fuisset, id est ut usucapionis causam et fructum.”

The application of this principle produced important legal effects. In fact, to commence, the condemnation itself was so much the more efficient, because it opposed a more energetic resistance to the influence of accidents and events, of which the plaintiff might otherwise have been the victim; and, secondly, the extent of the condemnation was irrevocably fixed and determined. [']

Let us now see, as to the matter of the suit, an enumeration of the principal legal effects of the litis contestatio, whatever might be the formalities which surrounded it.

I. As the commencement of the judicial contention, it fixed the epoch at which it was to be decided whether the action of the plaintiff was susceptible of adjudication. If the right on which he founded his action had not come into existence until after the litis contestatio, [2] then was applied the rule: "Non po

[1] Sav., 1. c., § 256. 260 et s. Unger, § 127. Vangerow, I. § 160.

[2] If the question was not of the right itself, but of some qualification in the person of the defendant, indispensable to his susceptibility of being condemned, it was not the moment of the litis contestatio, but only that of the condemnation, which was taken into consideration. L. 27. § 1. D. de R. V. (6. 1). L. 7. § 4. L. 8. D. ad exhib. (10. 4). L. 18, § 1. D. de her. pet. (5. 3). L. 1. § 21. D. dep. (16. 3). L. 9. § 5. D. de pign. act. (13. 7). L. 7. § 15. D. quib. ex. caus. in poss. (42. 4). Under the rule of the ordo judiciorum privatorum, it might be said that the moment of the litis contestatio served only to determine what constituted the contents of the intentio, and that for all else, it was the date of the judgment that had to be regarded. It is to this that the L. 30. D. de pec. (15. 1). iefers.; a passage well-known, but the key to which was not found until our own times: “Quacsitum est, an teneat actio de peculio, etiam si nihil sit in peculio cum ageretur, si modo sit rei judicatae tempore. Proculus et Pegasus nihilominus teneri aiunt, intenditur enim recte etiam si nihil sit in peculio." Keller, lit. cont., p. 192, 193, 423; Sav. VI. p. 77. Windscheid, § 128, note 5. Unger, § 131, note 1, who believes that, in modern law, one must always be guided by the rei judicandae tempus, instead of the litis contestatio. See, also Wächter, § 71, note 84; and Schmid, Archiv. für Civ. Prax. XXX, p. 200. According to the testimony of the latter, the practice in Germany is that the judgment is rendered in favour of the plaintiff, when the condition on which his right depends is realised only during the progress of the suit. In my opinion, this is a mere question of procedure; - - viz. until what stage of the suit the plaintiff is allowed to introduce new evidence. (means of proof.) For example, art. 5, no. 3, of the Dutch Code of Procedure, requires, indeed, that the citation shall declare the object and the grounds of the demand; but this is not to say that it is forbidden, after the citation, to invoke subsequent facts, to establish the right which is claimed. If, for example, I declare, expressly, in the citation, that a deceased person has made me a con