those mentioned in the will who have children, and failing these to the people (aerarium), as happens to legacies or inheritances which on the same or similar grounds become 'caduca.'

§ 287. So too, at one time, an uncertain person or an afterborn stranger could take the benefit of a trust, though he could neither take as heir nor as legatee, but a decree of the senate, passed on the proposition of the emperor Hadrian, made the law in this respect relating to legacies and inheritances applicable also to trusts.

§ 288. It is now clear that trusts cannot be left with the object of inflicting a penalty.

§ 289. Although in many branches of law trusts have an ampler scope than direct dispositions, while in others they are on a par, yet a testamentary guardian can only be appointed by direct nomination, as thus: 'Be Titius guardian to my children;' or thus: 'I nominate Titius guardian to my children;' he cannot be appointed by way of trust.

$265. Justinian declares that the heir is not forthwith released from his obligation by the owner's refusal to sell, but will be bound to seize any opportunity that may subsequently offer of purchasing and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2.

$270 a. Codicils, as well as fideicommissa, according to Justinian, first acquired legal validity in the time of Augustus, who, being trustee under a codicil, set the example of performing the trust. The jurist Trebatius being consulted by Augustus, whether it was possible to give legal force to codicils without defeating the policy of testamentary law, gave a decided opinion in the affirmative; and all scruples respecting the validity of codicils vanished when it became known that codicils had been left by the eminent jurist Labeo, Inst. 2, 25, pr.

Codicillus is the diminutive of codex, and denotes the less important and solemn documents or instruments of a man of business, a pocket-book, an agenda, a codicil; as codex denotes the more important and formal documents, a journal, a ledger, a will. A codicil enabled a testator who had solemnly executed a will to add to or modify its dispositions without the necessity of re-execution. It was usual in a will to ratify any prior or subsequent codicils; a codicil, however, might exist without any will. An informal will could only take effect as a codicil if such was the expressed intention of the testator. A codicil could not contain an institution or disinheritance or substitution; but it might contain a trust for the transfer of the whole of an inheritance: and though a codicil could not contain a disinheritance, yet we have seen (§§ 147-151, comm.) that a codicillary declaration that the heir was unworthy produced confiscation or ereption of the inheritance for indignitas. A testator could only leave a single will, for a later will revoked a former; but he might leave many codicils. A codicil needed no formalities, though Justinian required the attestation of five witnesses, not, however, as an essential solemnity, but as a means of proof: for, in the absence of five witnesses, the heir might be required to deny the existence of a trust upon his oath, Inst. 2, 23, 12. The admission of codicils was a departure from the rule requiring a unity in the act of testation. The concentration of his last will in a single act disposing simultaneously of all his property was no longer required of the testator. He now might distribute his fortune by way of legacy in a series of fragmentary or piecemeal and unrelated dispositions. § 278. Fideicommissa were enforced by persecutio, or the praetor's extraordinaria cognitio, 4 § 184, comm.

§ 279. The law terms at Rome during the greater part of the formulary period, were of two different kinds: (1) the juridical term or term for jurisdictio, and (2) the judicial term or term for trials.

(1) The term for jurisdiction, that is, for the solemn acts of the praetor sitting on the tribunal in his court in the comitium, was that originally prescribed for the ancient legis actiones. The year was divided into forty dies fasti, unconditionally allotted to juridical proceedings, one hundred and ninety dies comitiales, available for juridical purposes unless required for the legislative assemblies, dies intercisi, of which certain hours were available for jurisdiction, and sixty dies nefasti, which were absolutely unavailable for juridical. proceedings.

(2) Judicia, or trials before a judex in the forum, were unaffected by dies fasti and nefasti, but dependent on another division, dies festi and profesti: dies festi (days devoted to feriae, ludi, epulae,

sacrificia) being exempted from litigation. Besides these occasional interruptions of litigation, there were longer set vacations, which we find rearranged on several occasions. Thus at one time we find two judicial terms (rerum actus, cum res aguntur) in the year, a winter and a summer term, and two vacations, one in spring and another in autumn. Claudius substituted a single vacation at the close of the year, and made the law term continuous. Rerum actum, divisum antea in hibernos aestivosque menses, conjunxit, Suetonius, Claudius, 23. Galba abolished this vacation, and confined the intervals of litigation to dies feriati. Marcus Aurelius, in the time of Gaius, abolished the distinction between the jurisdiction term (dies fasti) and the trial term (rerum actus). He devoted two hundred and thirty days (adding the number of dies fasti to the number of dies comitiales) to forensic proceedings, under the name of dies juridici or dies judiciarii, and allowed even the rest of the year, dies feriati, to be used for litigation with the consent of the parties. Judiciariae rei singularem diligentiam adhibuit: fastis dies judiciarios addidit, ita ut ducentos triginta dies annuos rebus agendis litibusque disceptandis constitueret, Capitolinus, Marcus, 10. 'He also very carefully regulated the administration of justice, adding forensic days to the calendar, and allotting two hundred and thirty to litigation and civil suits.'

Subsequently to the time of Gaius, a law of Valentinian, Theodosius, and Arcadius, A. D. 389, while it declared the principle that all days are dies juridici, excepted, besides Sundays and certain other holidays, two months for harvest and vintage, and two weeks at Easter. Justinian further appointed, by way of interpolation in this law, certain vacations at Christmas, Epiphany, and Pentecost, Cod. 3, 12, 6, thus furnishing the model on which the four English law terms were regulated by Edward the Confessor. Subsequently the Statute of Westminster, 13 Edward I, permitted assizes to be held in the vacations, and thus a distinction grew up in England somewhat resembling that of the jurisdictional (dies fasti) and judicial terms (rerum actus); with this difference, however, that the same judges presided both in their own court held at Westminster, and on assize, where they acted under commissions to try cases in the county in which the cause of action arose. Thus in England a judge, after sitting at Westminster during term, was able to go on circuit during part of the vacation; but at Rome the distinction rested on the difference between proceedings in jure and in judicio. See Puchta, Institutionen, § 158.

§ 280. After the time of Gaius the liability of a defendant to interest and profits (fructus) from the date on which he was guilty of MORA appears to have been extended to all legacies without ex

ception. Ex mora praestandorum fideicommissorum vel legatorum fructus et usurae peti possunt: mora autem fieri videtur cum postulanti non datur, Paulus 3, 8, 4. 'Delay of the heir to satisfy trusts and legacies entitles the cestui que trust and legatee to fruits and interest. Delay dates from the ineffectual demand of the creditor.'

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A demand, however, is not requisite when a term for payment was fixed in the disposition which gave rise to the debt (dies adjecta) in other words, no interpellation is necessary in an obligation ex die, i. e. an obligatio with a dies adjecta; for then Mora begins at the expiration of the term. This is expressed by modern jurists in the maxim, dies interpellat pro homine, 'the day demands instead of the creditor.'

A further condition of Mora is the absence of all doubt and dispute, at least of all dispute that is not frivolous and vexatious, as to the existence and amount of the debt. Qui sine dolo malo ad judicem provocat non videtur moram facere, Dig. 50, 17, 63. 'An honest appeal to a judge is not deemed a mode of Delay.'

The date of Mora must not be identified with that of the Nativity of an action (actio nata), an important date, as we shall see, in the doctrine of Limitation or Prescription of which it is the startingpoint, a starting-point that may be antecedent to Mora. Mora generally cannot precede an interpellation or demand of payment: but the omission of a demand is precisely a part of that course of remissness and negligence whereby, under the rules of Prescription, a creditor ultimately forfeits his right to sue. Savigny, § 239.

Mora on the part of a person under an obligation to another obliges him to put the latter in as good a position as he would have been in if there had been no Mora. Hence the effect of Mora debitoris may be to make the debitor liable for fructus or interest. So again, if after Mora some accidental circumstance makes delivery of a thing impossible, the party bound to deliver it is not discharged from his liability, since if it had not been for Mora on his part, the plaintiff might have escaped loss by previous alienation of the thing, or in some other way. On the same principle, if a thing which a person is bound to deliver to another falls in value after Mora, he must pay the latter the highest value which could have been obtained for the thing at any time, since his default was established. Windscheid, 1 § 280.

Litis contestatio, joinder of issue between the parties to an action, another landmark of great importance in Roman jurisprudence in ascertaining and measuring the sanctioning rights and obligations of suitors, 3 § 180, comm., may be regarded as a kind of bilateral Disposition to be classed among Quasi-contracts. The consequences,

however, of litis contestatio, in spite of difference of character, are to some extent similar to those of Mora. For in the event of condemning the defendant the judex has to regard the relations of the parties, as if restitution had been made at the time of litis contestatio. Hence a bona fide possessor is liable from this date for all fructus, although he was not previously liable for such as he had consumed. 4 § 114, comm.

$283. Money paid by mistake was not recoverable when the payer was liable to be sued for double damages, as in the actio legati per damnationem, Inst. 3, 27, 7, because then the payment is not deemed to be a mistake, but a compromise, in order to avoid the chance of condemnation in double damages. The laws protecting certain rights by duplication of damages, 4 § 171, would have been evaded if a debtor was allowed to pay the simple damages and then attempt to recover them back by condictio indebiti soluti.

§ 285. So by English law aliens were not, till recently, allowed to purchase real property or to take it by devise. Such property, purchased by an alien or devised to an alien, was forfeited to the crown. An alien, however, could hold personal property and take bequests of personal property. In France, formerly, an alien was not allowed to make a will, but all his property at his death escheated to the crown by the droit d'aubaîne. [Aubain is from alibanus. Alibi in barbarous Latin produced alibanus, just as longiter produced lontanus and ante antianus. Diez.]

§ 289. Justinian, following the tendency of previous legislation, abolished the distinction between legacies and trusts, enacting that legacies should no longer be governed by the rigours of the civil law, but subject to the same rules and construed with the same liberality as trusts, Inst. 2, 20, 2 and 3 Nostra autem constitutio (Cod. 6, 43, 1), quam cum magna fecimus lucubratione, defunctorum voluntates validiores esse cupientes et non verbis, sed voluntatibus eorum faventes, disposuit, ut omnibus legatis una sit natura et, quibuscunque verbis aliquid derelictum sit, liceat legatariis id persequi non solum per actiones personales, sed etiam per in rem et per hypothecariam . . . Sed non usque ad eam constitutionem standum esse existimavimus, cum enim antiquitatem invenimus legata quidem stricte concludentem, fideicommissis autem, quae ex voluntate magis descendebant defunctorum, pinguiorem naturam indulgentem: necessarium esse duximus omnia legata fideicommissis exaequare, ut nulla sit inter ea differentia.

By English law, a will of realty operates as a mode of conveyance and document of title without probate, but since the Land Transfer Act, 1897, it is usually proved. A will of personalty requires for its authentication to be proved before a court by the oath of the