§ 264. 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. Codicils, 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 codieils 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.

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 that a codicillary declaration that the successor 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 declaration of 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 the universal succession was no longer required of the testator. He now might distribute his fortune in a series of fragmentary or piecemeal and unrelated dispositions.

§ 278. Fideicommissa were enforced by persecutio, or the praetor's extraordinaria cognitio.

§ 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 regulated the administration of justice, noting forensic days in 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, 7, thus furnishing the model on which the four English law terms were regulated by Edward the Confessor. Subsequently, the Statute of Westminster, 3, Edward I, permitted assizes, i.e. trials by jury of issues of fact, to be held in the vacations, re-establishing a distinction corresponding to that of jurisdictional (dies fasti) and judicial terms (rerum actus): with this difference, however, that as the same judicial authorities preside over proceedings in banco, or issues of law, and proceedings at nisi prius, or issues of fact, the seasons set apart for the latter, that is, the trial terms, are merely the vacations of the former, that is, of the sittings in banco. 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 exception. 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.'

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 obligatio 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.'

6

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 starting point, 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 in the sphere of Obligation and Personal actions exactly corresponds to Mala fides or Mala fide possessio in the sphere of Dominion and Real actions. Both imply a consciousness of wrong, that is to say, Culpa in the larger sense in which it comprehends. Dolus with this reservation, that Mora is an omission or negative act, which sometimes arises, not from want of will, but from want of means or ability to pay; whereas Mala fide possessio is a positive act that is always wilful and dolose. Both Mora, then, and Mala fide possessio have a delictual character.

Litis Contestatio, the first stage in an action, another landmark of great importance in Roman jurisprudence in ascertaining and measuring the sanctioning rights and obligations of suitors, is a kind of bilateral Disposition which may be classed among Quasicontracts and, except when merely frivolous and vexatious, is entirely devoid of delictual character. The consequences, however, of Litis contestatio, in spite of this difference of character, are similar to those of Mora and Mala fide possessio. For, in order to save a plaintiff from being ruined by the duration of a trial, Litis contestatio is supposed to be followed immediately by judgment; or, in other words, Litis contestatio entitles him, in respect of fructus and usurae, to all the rights to which he is entitled by lata sententia.

The rules for the restitution by a defendant of all the accessions (omnis causa), that is of fruits and interest, in addition to the principal subject of litigation, are the following:

(A) In real actions a Bona fide possessor, in respect of the period before Litis contestatio, is only liable for fructus extantes: that is, he is bound to restore such fruits of a fruit-producing movable or immovable as still remain in his possession: but he is not liable to make compensation for fructus consumptos, such fruits as he has consumed before Litis contestatio: nor is he liable for what are sometimes called fructus percipiendi, but which perhaps are better called fructus neglecti, fruits which he has neglected or carelessly allowed to perish, before that period.

After Litis contestatio a Bona fide possessor is liable both for the fruits that he consumes and for those that he allows to perish.

In the time before the ordinance of Hadrian called Sc. Juven

tianum the Mala fide possessor was liable for collected fruits (fructus perceptos), whether extant or consumed, from the inception of his possession, but was not liable for those he neglected up to Litis contestatio. After the Sc. Juventianum the Mala fide possessor was liable for the fruits he neglected, as well as for those he collected, from the inception of his possession. After Litis contestatio he is further liable for fruits which he cannot collect but which the plaintiff might have secured had be been in possession.

Thus after Litis contestatio the liabilities of the Mala fide possessor are aggravated; and the Bona fide possessor has the same liabilities after Litis contestatio as the Mala fide possessor had before Litis contestatio; being liable for fructus consumpti and fructus neglecti as well as for fructus extantes.

The Bona fide possessor is not liable for fructus consumptos, because Separatio, as we have seen p. 203, makes fructus the property of Bona fide possessor. He is liable, however, for fructus extantes, because although he became proprietor of them by Separatio, yet he is under an Obligation to convey them to the plaintiff who proved himself to be the true proprietor of the principal or fruit-producing object; and it is a part of the officium judicis or official duty of the judge to compel the defendant to perform this obligation, Inst. 4, 17, 2. The principal object itself requires no conveyance, being already the property of the plaintiff.

(B) In personal actions belonging to the class called bonae fidei, fruits must be restored from the date of Mora, or in the absence of Mora, from the date of Litis contestatio.

In personal actions belonging to the class of condictions or stricti juris actions originally no fruits were recoverable: at a later period fruits were recoverable after Litis contestatio.

In personal actions, whether bonae fidei or stricti juris, brought not for the original acquisition of property (consecutio) but for the recovery of what has already been the plaintiff's property (repetitio), all fruits are recoverable that are produced since the inception of the obligation.

In personal actions bonae fidei, interest (usurae) is payable from the date of Mora, or, in the absence of Mora, from Litis contestatio.

In condictions (stricti juris actiones), interest is not payable from Mora but only from Litis contestatio: except that in condictio certi, an action brought to recover a loan of money (mutuum), it being necessary that the intentio should express the precise sum