of them, bound the debtor towards him, in such a manner that he could not liberate himself by paying to another of them. [1] L. 16, D. de duob. reis (4. § 2). L. 57. § 1. D. de sol. (46. 3).

VIII. After the litis contestatio, the thing which was the object of an action concerning the right of ownership, or of an action for partition, could neither be alienated nor pledged. The same with a litigious action. Any alienation, effected in disregard of this prohibition, was null. [2] The defendant had nothing to do with the new purchaser, and the plaintiff could require that the thing alienated should be restored to his original adversary. This rule did not, however, extend to alienations, legally necessary, nor to certain alienations specially excepted. Gaj. IV. 117a. Fragm. de jur. Fisc. § 8. L. 25. § 6. D. fam. erc. (10. 2). L. 1. C. comm. div. (3. 37). L. 3. C. de comm. rer. alien. (4. 52). L. 2, 3, 4. C. de litig. (8. 37). Nov. 112. Cap. 1.

IX. It was, again, the moment of the litis contestatio which formed the basis of certain calculations and valuations. For example, the question to what point a person might be said to have enriched himself, (locupletior factus) by such or such an act. It was so, again, in actions stricti juris, [] for fixing the price

[1] Vangerow, III. § 569; 2. Sav. Obl. I. p. 392. Here, the rule was applicable: Finem dandi alteri fore quoad judicium acciperetur et ideo occupantis fore actionem." L. 9. pr. D. de V. O. (45. 1). The same principle is adopted in the French and Dutch codes. Art. 1198, Code Nap. "The debtor has the choice of paying one or another of the joint creditors so long as he has not been restricted by proceedings on the part of one of them." Art. 1215, Neth. Code. For the case of several joint debtors, See p. 244, note 1.

[2] L. I. § 2. D. quae res pign., (20. 3). I. 27. § 1. D. ad Sctum Vellej. (16. 1). — As to the history of this prohibition, see Zimmermann, Arch. für Civ. Prax. XXXV, p. 431 et seq. Vangerow, I. § 163, no. 5. In Prussian Law, P. I. Tit. II. § 383, the cession of a thing in litigation is formally authorised. The Austrian Code has also suppressed the prohibition. Unger, § 128, note 24. The Code Nap., arts. 1699, 1702, maintains the Lex Anastasiana. In Dutch Law, certain persons connected with or attached to the judicial class are deprived of the faculty of acquiring rights and actions as to which a suit is pending before the tribunal in which they exercise their functions. Art. 1504, Dutch Code. Art. 1597, Code Nap.

[3] See Sav. Syst. VI, 205; who calls attention to the difference between the formula of the Lex Aquilia: "quanti ea res fuit," and that of the actiones bonae fidei:

of a thing in litigation; provided that the time for the fulfilment of the obligation had not been fixed, or that the debtor was not already in arrear before the litis contestatio. L. 34. pr. D. de min. (4. 4). L. 7. pr. et § 3. D. de don. i. v. et ux. (24. 1). L. 47. pr. D. de sol. (46. 3). L. 4. D. de exc. (44. 1). L. 37. pr. D. de neg. gest. (3. 5). L. 22. D. de R. C. (12. 1). L. 4. D. de cond. trit. (13. 3). L. 3. § 2. D. comm. (13. 6). "In hac actione, sicut in ceteris b. f. judiciis, similiter in litem jurabitur: et rei judicandae tempus, quanti res sit observatur, quamvis in stricti, litis contestatae tempus spectatur."

X. Finally, the litis contestatio marked the end of the time, within which, if so desired, it was possible to retract a declaration made before the judge. L. 26. § 5. D. de nox. act. (9. 4). [']

"quanti ea res erit" Gaius, IV. 47–50. L. 2. pr. et L. 27. § 5. D. ad Leg. Aq. (9. 2). As to the L. 3. D. de cond. trit. See Sav. 1. c. p. 216; and Vangerow, § 160, no. 4, obs. 3. In modern law we follow the principle which governed the actions bonae and consequently it is the moment of the judgment which is regarded.

fidei;

[1] Sav. Syst. VII, p. 32.

SECTION VIII.

Of Proof.

§ 104. OF PROOF IN GENERAL. [']

Those means were called proofs, which were employed by parties, in order to fix the convictions of the judge in reference to their rights and proving was the act by which a party rendered evident, conformably to legal rules, the truth [2] of the allegations which he advanced.

:

[] Proof appertains partly to the civil law, and partly to the forms of procedure. It is to procedure that it belongs, to show in what manner, at what moment, and with what formalities, the parties may make use, before the tribunal, of their means of proof. But the civil law regulates and determines who must prove, what is the object of proof, what means of proof are admitted or excluded, and what is the force of each.

[2] By "truth," we must understand, here, that which is accepted as such, according to certain legal rules. It may be termed: legal truth; veritas juridica, forensis; formelle Wahrheit; relative certainty. Truth natural or material, - i. e. that which excludes the possibility of the contrary is not to be attained in the immense majority of cases; and if it were exacted, the judge would too often be compelled to say "non liquet." From the fact that "proof" can procure only legal certainty, it results that proof to the contrary must be regarded as admissible in all cases where it is not expressly interdicted. Puchta, Vorles., § 97; Unger, § 129, note 2. Jordan, Weiskes R. L., II, P. 110. The art. 3313 of the Dutch Project of 1820 is worth citing: none of the means of proof enumerated in art. 3311, has such force that it may not be weakened by proof to the contrary." The same rule obtains under our (Dutch) present Code, although this provision is not reproduced. Opzoomer, (upon art. 1919, no. J, Dutch

A. Facts alone could form the object of proof. The examination and the application of the law, written or unwritten, belonged to the Judge ['] Pr. I. de off. jud. (4. 17). "Inprimis illud observare debet judex, ne aliter judicet, quam legibus aut constitutionibus aut moribus proditum est." L. un. C. ut quae desunt adv. (2. 11). "Non dubitandum est, si quid a litigatoribus vel ab his qui negotiis adsistunt, minus fuerit dictum, id supplere et proferre quod sciat legibus et juri publico convenire." Hence the proverb. curia jus novit.

But facts were not all, indistinctly, susceptible of proof. They were required to be contestable, contested, and relevant. "Frustra probantur, quae probata non relevant." L. 30. D. de prob. (22. 3). L. 6. 10, 17, 22. C. eod. (4. 19).

Those facts were termed incontestable which were universally known and recognized; so that he who contradicted them, was considered as actuated by mere chicanery. L. 3. § 22. D. de test. (22. 5). "Alias numerus testium, alias dignitas et auctoritas, alias veluti consentiens fama, confirmat rei de qua quaeritur fidem." [2]

Those facts were considered unconstested which had been admitted in judicature, [3] by the parties, or by one of them; and

Code), neglecting the distinction between legal truth and material truth, must necessarily arrive at different conclusions.

[1] This does not interfere with the utility of indicating or showing to the judge, laws affecting the matter; especially if there be question of sources with which be cannot reasonably be expected to be familiar; as for instance, foreign laws or customs. But this exposition of a law, or of a custom, differed completely from the proof of facts, which was subject to the rules of procedure and to prescribed formalities. Sav. Syst. I, p. 187. Windscheid, § 133, note 2. Opzoomer, annotation upon art. 3 of the Dutch Code. See ante p. 36.

[2] See Gensler, Arch. für Civ. Prax. I, p. 269, who interprets this passage erroneously, as if general notoriety "alone could become the basis, in fact, of a syllogism in support of proof." Moreover, there has been a dispute, since the time of the Glossarists, as to the word "confirmare" "Non quod per se fama non sufficiat, sed respectu assertionis partis, quam assertionem fama confirmat; ergo per se. Alii dicunt: quando consonat naturae ut B. mortuum sed regulariter non sufflcit famam probare.”

[3] According to the ordo jud. priv., a confession in jure was equivalent to a judgment, when it related to a specified sum of money. Execution coull, therefore, issue immediately. "Confessus pro judicato est, qui quodammodo sua sententia damnatur.” (L. 1.

which were, for that reason, exempt from being proved. ['] B. Upon whom did the onus of proof devolve? [2] In general,

D. de conf. (42. 2). L. 31. 56. D. de R. J. (42. 1). L. 9. C. de exc. rei jud. (7. 53). L. Un. C. de conf. (7. 53). It was otherwise when the confession was made only in judicio; in which case there remained, always, a point to be decided upon by the judge, who was, nevertheless, bound by the purport of the confession. After the suppression of the ordo judiciorum, this second rule became general.

[1] Puchta, Pand. § 96. "Thus the judicial confession of a fact places it above the sphere of proofs. In order to render it again susceptible of proof, the confession must have been first combated and annulled." By Prussian Law, a confession is not followed by a judgment, properly so called, but by a declaration of the confession, called “Agnitions-Resolut," and susceptible of execution. By Austrian Law, the judge pronounces a judgment, which, nevertheless, is not regarded as the decision of a litigation which no longer exists, but as a decree preparatory to execution. Sav. Syst. VII, p. 46; Unger, § 27, note 8. Savigny, 1. c. p. 41, also regards a confession, not as a motive which determines the judge to pronounce one way or the other, but rather as a fixing of the limits of the suit, or as an indication of the facts as to which there is no more dispute, and which, therefore, no longer require the decision of the judge. See Unger, § 127. Windscheid, § 133, note 3, and Arndts. § 114.

The French Code (art. 1856) and the Dutch (art. 1962) consider confession as an ordinary proof. Zachariae, IV, § 749, note 7, criticizes this as contrary to the rules of logic. Marcadé, in his turn, (on the art. 1354, no. I), seeks to justify it by the following argument: "When I have produced witnesses whose testimony clearly establishes my allegation, am I not thenceforward dispensed from proving it otherwise? When I produce a document combining all the requisite conditions, and which plainly proves the justice of my claims, can the judge ask me for farther proof? Can it be said, as to this, that testimony is not proof and that documents are not proof?" But the answer is easy. In the true sense of the word, there can be no litigation, except when the parties advance contradictory allegations. From the moment that one of the parties admits a point in question, all dispute is impossible, or rather it ceases on the instant, and there can no longer be any question of a decision upon a matter in contest, unless that designation is given to the judgment which simply states the confession and renders it executory. I have recourse to witnesses and to documents, when my right is contested and I am forced to prove my pretensions; but after confession there remains nothing to be proved; my adversary having, so to speak, pronounced judgment against himself: "sua sententia damnatur." These observations apply also to Opzoomer's remarks upon the art. 1960, Dutch Civ. Code.

[2] The result of a suit often depends upon the decision of this question. "Non jus deficit, sed probatio." L. 33. D. de test. tut. (26. 2). Hence the expression "onus petitoris" and "commodum possessoris", § 4. I. de interd. (5. 15). L. 20. D. de prob. (20. 3); and "possessorem facere" the last to signify that a party is dispensed from furnishing proof. L. 1. § 6. L. 5. § 10. D. de O. N. N. (39. 1).