that was lent, and that the condemnatio should coincide with the intentio; no interest was recoverable even from Litis contestatio. As, however, this peculiarity of Certi condictio only arose from the nature of the formula, it ought not to have been retained by Justinian, in whose era the formulary system had been long discontinued.

The result is this: interest on a debt is to be paid, in all but stricti juris actions, from the day fixed for payment; or, failing such a day, from the day of demand; or, failing both such days, from the commencement of litigation (Litis contestatio): in stricti juris actions it is only paid from the commencement of litigation, and not even then in Condictio certi. In the first cases the Title to interest is Mora; in the last, Litis contestatio.

Mora and Mala fides and Litis contestatio are not only important in respect of the defendant's liability for fructus and usurae, but also in respect of his liability for the intentional (dolus), negligent (culpa), or, accidental (casus) destruction or deterioration of the subject of litigation.

In personal actions, after Litis contestatio, a defendant is liable for any deterioration whether by dolus or culpa: and whereas before Litis contestatio he is only liable for deterioration produced by gross negligence (culpa lata), after Litis contestatio he is liable for any degree of negligence (omnis culpa).

A defendant is liable for accidental destruction or deterioration (periculum) from the date of Mora even before Litis contestatio.

In Real actions the Bona fide possessor must indemnify the plaintiff for any deterioration produced either by dolus or by culpa after Litis contestatio: for after that stage he is under an obligation to use the utmost care in the custody of the matter in dispute.

The Bona fide possessor might become Morosus or guilty of Mora after Litis contestatio, namely by contumacious disobedience to the order (arbitrium, jussus) of the judex directing him to make restitution; and then he became liable for casus. In modern Roman jurisprudence, the actiones arbitrariae being discontinued, this liability of Bona fide possessor for casual deterioration after Mora can never

occur.

The Mala fide possessor is liable for culpa as well as for dolus even before Litis contestatio; but, in the absence of Mora, he is not liable for casus. After Litis contestatio he is liable for casus; and

so he is before Litis contestatio, if taxable with Mora. In this respect, then, Mora is more serious in its consequences than Mala fides for Mora in every case is a title to liability for casus; whereas Mala fides only produces this liability in conjunction with Litis contestatio.

Mora had also an important influence in fixing the date of litis aestimatio, i. e. the date for the valuation of the thing whose value the defendant was condemned to pay. See 3 § 180 com.; Savigny, §§ 264-277.

$283. Money paid by mistake was not recoverable when the payor was liable to be sued for double damages, 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 defendant 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 land or to take land by devise. Land 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 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, 3. Trusts being a matter of the praetor's cognitio extraordinaria cannot, properly speaking, be called a subject of Bonae fidei actio, for actio implies the cognizance of a judex: but the principles of cognitio extraordinaria were doubtless the same as those of bonae fidei actio. With this reservation, then, we may say that legata sinendi modo and per damnationem were before Justinian's time recoverable by stricti juris actio, and after his time by bonae fidei actio.

By English law, a will of lands operates as a mode of conveyance requiring no extrinsic sanction to render it available as a document of title. A will of personalty requires for its authentication to be

proved before a court by the oath of the executor and, unless the attestation clause is in a certain form, by the affidavit of one of the subscribing witnesses; or, if the validity of the will is disputed, by examination of the witnesses on oath in the presence of the parties interested. The will itself is deposited in the registry of the Court of Probate; a copy of it in parchment, under the seal of the Court of Probate, delivered to the executor along with a certificate of proof, is the only proper evidence of his right to intermeddle with the personal estate of the testator.

The following were the corresponding formalities of Roman law:Tabulae testamenti aperiuntur hoc modo, ut testes vel maxima pars eorum adhibeatur qui signaverint testamentum; ita ut, agnitis signis, rupto lino, aperiatur et recitetur, atque ita describendi exempli fiat potestas, ac deinde signo publico obsignatum in archium redigatur, ut si quando exemplum ejus interciderit, sit unde peti possit.

Testamenta in municipiis, coloniis, oppidis, praefectura, vico, castello, conciliabulo facta, in foro vel basilica praesentibus testibus vel honestis viris inter horam secundam et decimam diei recitari debebunt, exemploque sublato ab iisdem rursus magistratibus obsignari quorum praesentià constat aperta.

Testamentum lex statim post mortem testatoris aperiri voluit, et ideo, quamvis sit rescriptis variatum, tamen a praesentibus intra triduum vel quinque dies aperiendae sunt tabulae; ab absentibus quoque intra eos dies cum supervenerint: nec enim oportet tam heredibus aut legatariis aut libertatibus quam necessario vectigali moram fieri, Paulus, Sent. Rec. 4, 6.

'A will is opened in the following manner: the witnesses, or the majority, who affixed their seals, are summoned and acknowledge their seals, the cord is broken, the tablets are opened, the will is read, a copy is taken, a public seal is affixed to the original, and it is deposited in the archives, so that if the copy is ever lost there may be a means of making another.

In municipalities, colonies, towns, prefectures, wicks, castles, staples, a will must be read in the forum or basilica, in the presence of the attesting witnesses or of respectable persons, between eight o'clock in the morning and four o'clock in the afternoon; and, as soon as a copy has been made, must be sealed up again by the magistrate in whose presence it was opened.

'A will is intended by the law to be opened immediately after

the death of the testator; accordingly, though rescripts have varied, it is now the rule that, if all the parties are present, three or five days is the interval within which the tablets must be opened; if they are absent, the same number of days after they are assembled; in order that heirs, legatees, manumitted slaves, and the military treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent. on the value of Roman citizens' testamentary suecessions), may come into their rights without unnecessary delay.'

In cases of urgency, when the will was opened in the absence of the attesting witnesses in the presence of respectable persons, it was afterwards forwarded to the witnesses for the verification of their seals, Dig. 29, 3, 7. Every one who desired it had the power of inspecting a will and taking a copy, Dig. 29, 3, 8.

BOOK III.

DE RERUM UNIVERSITATIBUS ET DE

OBLIGATIONIBUS.

DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR.

§ 1. Intestatorum hereditates lege XII tabularum primum ad suos heredes pertinent.

§ 2. Sui autem heredes existimantur liberi qui in potestate morientis fuerint, veluti filius filiave, nepos neptisve ex filio, pronepos proneptisve ex nepote filio nato prognatus prognatave. nec interest utrum naturales sint liberi, an adoptivi. Ita demum tamen nepos neptisve et pronepos proneptisve suorum heredum numero sunt, si praecedens persona desierit in potestate parentis esse, sive morte id acciderit sive alia ratione, veluti emancipatione: nam si per id tempus quo quis moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus.

§ 3. Uxor quoque quae in manu est sua heres est, quia filiae loco est; item nurus quae in filii manu est, nam et haec neptis loco est. sed ita demum erit sua heres, si filius cuius in manu erit, cum pater moritur, in potestate eius non sit. idemque dicemus et de ea quae in nepotis

§ 1. Intestate successions by the law of the Twelve Tables devolve first to self-successors.

§ 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees.

§ 3. A wife in the hand of the deceased is a self-successor, for she is a quasi daughter; also a son's wife in the hand of the son, for she is a quasi granddaughter; subject, however, to the proviso that she is not self-successor if her husband is in the power of his father at the