(3) On loan (mutuum, for the same thing has not to be restored). III. 90. II. Civil Modes of acquisition. (A) Universal. (a) Succession on death. (1) By testament (hereditas). II. 98. (2) By law (hereditas). II. 98. (3) By the edict (bonorum possessio). II. 98. (6) Arrogation. II. 98, III. 83. (c) Conventio in manum. II. 98, III. 83. (d) Bankruptcy. II. 98, III. 77. (1) Voluntary (cessio bonorum). III. 78. (2) Involuntary (sectio bonorum). (e) Addictio bonorum libertatum servandarum causa. Just. Inst. III. II. pr. (f) Cessio in jure hereditatis. (B) Singular. (a) Mancipatio. II. 22. (b) Cessio in jure. II. 22. (c) Usucapio. II. 41. III. 85. (d) Donatio propria. Just. Inst. II. 7. 2. (1) Propter nuptias. Just. Inst. II. 7. 3. (f) Succession on death. (1) Legacy. II. 97, 191. (2) Fideicommissum singulare. II. 260. (E). On the causes rendering a Testament invalid. When a testament would not stand, it might be either, Non jure factum, owing to some original defect: Nullius momenti, if a child be omitted or disinherited without cause: if the testator have not testamenti factio: or if the heir have it not: Ruptum: by an agnation or quasi-agnation; by a subsequent testament: by revocation or destruction: Inritum or irritum: through a capitis diminutio of the testator, or through no heir appearing under it: Destitutum: also when no heir appears under it: Rescissum: when a querela inofficiosi is sustained. See Just. Inst. II, 18. 352 Appendix. (F). On the Decurionatus. The decuriones were the members of the senate of a municipium, i. e. of a town which was allowed to manage its own internal affairs. Originally the municipes or burgesses, convened in their general assembly, seem to have held the sovereign power: they elected the magistrates (see Cic. pro Cluentio, 8) and they enacted the laws (Cic. de Leg. III. 16): but the power of the assembly gradually declined, and the senate usurped its functions, directly administering all business, instead of adopting and passing the matters sent up to it by the municipes. The senate and its members are denoted by different names at different periods of Roman history, originally ordo decurionum (for instance, in Macrobius, Sat. II. 3. II, where there is an anecdote that Caesar found it more difficult to get a decurionatus at Pompeii than at Rome), then ordo simply, finally curia, and the members curiales or decuriones. During this last period the magistrates of a municipium were nominated by the decuriones, and the functions of government apportioned between the two. The first infringement on the rights of the municipes as a body may be referred to the time of Augustus, who ordered that the right of suffrage at elections should be confined to the decuriones: and from that time the name of municipes, originally applied to all the inhabitants, is confined by writers on the subject to the members of the senate or curia. As the decuriones were thus invested with so large an amount of power and influence, it may be asked why in later times it was difficult to find men willing to become members of the corporation, and why had devices to be invented to keep up the numbers of the curia; for instance that of allowing legitimation to be effected by enrolment of an illegitimate son as a member of the curia (per oblationem curiae). The answer is that the absorption of all power by the emperors in later times rendered the office one of intolerable responsibility, and further that heavy fees attended the enrolment of a new member. (G). On Caduca and the Lex Papia Poppaea. The Lex Papia Poppaea introduced important alterations into the law of accruals and lapses. Let us first consider the old law on the subject. Previous to the Lex, legacies which utterly failed from the death or incapacity of the legatee, or from any original invalidity of the bequest lapsed to the inheritance, and so benefited the heir. But this rule did not immediately apply to co-legacies: these only lapsed if both or all the co-legatees were unable to take. Hence if some of the co-legatees were able to take, there might be accrual instead of lapse. Thus (1) If the joint-legacy had been given disjunctim (in which case the co-legatees were styled re conjuncti), there was no accrual, for each legatee had from the beginning a title to the whole thing: (2) If it had been given conjunctim, (in which case the co-legatees were termed re et verbis conjuncti), accrual was generally allowed, i. e. the surviving legatee or legatees took the share of their deceased associate, the only exception being in a legacy by damnation, where there was a lapse (II. 205): (3) If the joint legacy had been given with a specification of the shares to be enjoyed by each legatee, (in which case the co-legatees were said to be On the Classification of Legacies. 353 verbis conjuncti,) there was no accrual, but a lapse, on account of the separation of the interests ab initio. The Lex Papia Poppaea swept away all these regulations and left the law thus all inheritances and legacies to unmarried and childless persons were void and were termed caduca, (but caelibes by marrying within one hundred days could avoid the forfeiture; and in the case of orbi only one half the bequest was caducum, Ulp. XVII. 1, Gaius II. 286): Legacies which would have lapsed or accrued by the civil law were put under the same rules and said to be in causâ caduci. These rules were that caduca should go; (1) to co-legatees joined re et verbis or verbis and having children. (As we said above those joined re would of course get the full legacy from the universality of their original title and therefore wanted no help from the law): failing these, they went (2) to the heirs who had children: failing these again (3) to legatees generally (not conjuncti) who had children. All these rules were again abolished by Justinian, (see Code vi. 51. 11,) and the old regulations were restored almost exactly, but the exceptional law as to legacies by damnation was not re-enacted. Caracalla had previously abrogated the Lex Papia Poppcea and made caduca go to the fiscus. (H). On the Classification of Legacies. The following able exhibits the resemblances and differences of the various forms of legacy : jure Quiritium whatever, whe- the testator or the testator. ther belonging the heir. of the testator. to the testator, the heir, or a stranger; in existence or 354 Conjoint tionem. Sinendi modo. Per Praeceptionem. Per Vindica- Per Damna- lowed. allowed, but lowed. lowed. (I). On the Classification of Obligations. Obligations according to the Roman law are divided into (A) Natural and (B) Civil. A. Natural obligations again are divided into (a) those which the civil law absolutely reprobates (see Warnkoenig's Commentaries, Vol. 11. p. 158), and (b) those on which an action cannot be grounded but which can be used as an exception or ground of defence: nuda pacta. B. Civil obligations are also subdivided into (a) civil obligations in the strictest sense, i. e. obligations furnished with an action by the civil law, (B) praetorian obligations, which are enforced by an action granted by the later legislation of the Praetor's edict. (a). Of these civil obligations in the strictest sense there are two subdivisions, viz. (I) those which were altogether unconnected with the jus gentium and based on the civil law only, legibus constitutae: (II) those recognized by the jus gentium, and received into and furnished with an action by the civil law, jure civili comprobatae. Under (I) we may classify (1) obligations springing from contracts stricti juris, which were actionable because entered into with special forms which the civil law prescribed: (2) obligations by delict: (3) what were called obligationes ex variis causarum figuris, arising chiefly from quasi-contracts or quasi-delicts, but not entirely confined to these. And to these at a later period were added (4) two descriptions of pact (see A. b. above), viz. Pacta adjecta and Pacta legitima, an explanation of which will be found below. Under (II) we may range contracts of the kinds styled real and consensual. (B). The Praetorian obligations were chiefly those called constitutum pecuniae, i. e. a promise to pay a debt already existing according to natural law, but not enforceable by action; for the exaction of which, after the promise had passed, the Praetor in his edict furnished an action: and praecarium, a grant of the use of a thing during the pleasure of the grantor, who again could only recover possession by means of a remedy (the interdictum de precario) provided by the edict. The rules as to this kind of legacy re given according to Gaius and the Sabiians: the Proculians (see Ulpian, xxiv. II) considered a legacy by praeception identical with one by vindication. On the Classification of Obligations. 355 Dismissing these Praetorian obligations, we will briefly indicate the species included under the genera numbered I. and II. above :— Contracts stricti juris (I. 1, above) were either verbal or literal. The verbal being the stipulations so fully described by Gaius (III. 92—127); the literal obligations being the nomina, chirographae and syngraphae, as to which he also says enough (III. 128-134) to render further particulars unnecessary in this place. The obligations from delict (1. 2, above) are fourfold, as Gaius tells us (III. 182-225), arising either from furtum, rapina, damnum injuriâ datum, or injuria. As to the variae causarum figurae (I. 3, above), Gaius says but little, and that little indirectly and inferentially (e. g. in III. 91). We stated above that these figurae included two important branches, quasi-contracts and quasi-delicts of the former subdivision we may bring forward especially the instances of Negotiorum gestio, business transacted for a man without his knowledge or consent, whereby a jural relation arises, which is described in detail by Mackeldey in his Systema Juris Romani, §§ 460—462 ; and solutio indebiti, touched upon by Gaius slightly, but as to which Mackeldey also gives full information in §§ 468–470; and lastly, communio incidens, a community of interest cast upon two or more persons without agreement of their own, for which we shall again refer the reader to Mackeldey, §§ 464—467. The quasi delicts are chiefly injurious acts of slaves or descendants for which the master or ascendant is bound to make reparation, some of which are named by Justinian in Inst. IV. 5, I and 2; and the act of a judex qui litem suam facit (Gai. IV. 52) is another instance. Another example is that of a man who has left an obstacle on a high way, or kept some thing suspended over one, which by proving a nuisance or by falling on a passer-by or his property works him damage. The other figurae are obligations arising from the contracts of our sons, slaves, and agents, remedied by the actions id quod jussu (IV. 70), exercitoria and institoria (IV. 71), tributoria (IV. 72), de peculio et de in rem verso (IV. 73), or from the delicts of our sons and slaves or mischief committed by our cattle, remedied by the actions noxalis and de pauperie (IV. 75-80 and Just. Inst. IV. 8 and 9). We now need only specify the chief contracts falling under Class II. above, and the pacts giving rise to an action, and our enumeration of obligations is completed. Real contracts, then, are mutuum, a loan where the borrower has not to return the identical thing lent, but an equivalent: commodatum, a loan where the borrower has to return the identical thing he has received: depositum, a loan for the benefit of the lender, or in other words a deposit of a thing for the sake of custody; with which is classed sequestratio, the placing of a thing in the hands of some person till its ownership is decided by a suit: pignus, a deposit as a pledge. Besides these there are certain contracts, which for want of a more specific name are styled innominati, and by the Roman lawyers are ranked in four subdivisions, viz., Do ut des, Do ut facias, Facio ut des, Facio ut facias; and the first of which, though called innominate, has a name, permutatio. Consensual contracts are Emptio Venditio, Locatio Conductio, Societas and Mandatum, treated of by Gaius (III. 135—162), Emphyteusis, or a lease perpetual on condition of the regular payment of a rent, and Superficies, a lease of a similar character, but referring only to the building on a particular plot of land, but not affecting the land, and therefore terminated by the destruction of the building. The contracts described as real or consensual are bonae fidei, that is to say, the judex who has to decide cases arising out of them may entertain |