This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In general In every system of law enormous importance is usually attached to legal proceedings, and the more primitive the system of law, the greater the importance which is usually attached to the form.
Wherever any importance is attached to legal proceedings, it is almost universally held that at some stage of the proceedings the rights of the parties which were the basis of the action in question are extinguished; and the parties are remitted to the rights which they have acquired by reason of such legal, proceeding. At Roman law, the stage of the proceedings at which rights were thus extinguished, was the stage which roughly corresponds to our joinder of issue.1 In the English law, the stage of legal proceedings at which the prior right of action is merged in the right which is acquired by such legal proceeding, is the final judgment. The institution of an action or the prosecution of an action to any stage short of final judgment, does not operate as a merger of the preexisting right of action.2
Works v. Oconto Water Supply Co., 183 U. S. 216, 46 L. ed. 157 [affirming, 105 Wis. 48, 81 N. W. 125]; Barnett v. Western Assurance Co., 132 Ark. 434 201 8. W. 282; Aiken v. Robinson, 108 La. 267, 32 So. 415; American Trust Co. v. Crescent Ice Co., 143 La. 568, 78 So. 942: Thompson v. Ellsworth, 39 Mich. 719; Young v. Farwell, 165 N. Y 341, 59 N. £. 143.
5See Sec. 2447 et seq.
6 See Sec. 20 et seq. and Sec. 35.
7 See Sec. 2558 and 2567.
8 See Sec. 2557.
1This was the "litis contestation and at this stage the original right of action was said to be extinguished "actio consumitur." Czyhlarz, Manual of Institutes of Roman Law, Sec. 160 (III); Salkowski, Roman Private Law, Sec. 26.