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INTRODUCTICN.

NE of the most eminent jurists of modern times thus refers to the law of prescription :-"Laws thus limiting suits are founded in the noblest policy. They are statutes of repose, to quiet titles, to suppress frauds, and to supply the deficiency of proofs, arising from the ambiguity and obscurity, or the antiquity of transactions. They proceed upon the presnmption, that claims are extinguished, whenever they are not litigated in the proper forum within the prescribed period. They take away all solid grounds of complaint; because they rest upon the negligence or the laches of the party himself. They quickem diligence by making it in some measure equivalent to right. They discourage litigation, by burying in one common receptacle, all the accumulations of past times which are unexplained, and have now, from the lapse of time, become inexplicIt kas been said by John Voet with singular fplicity that controversies are limited to a fixed period of time lest they should be immortal while men are mortal: No autem lites immortales essent, dnm litigantes mortales sunt.”(a)

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PRESCRIPTION IN ROMAN LAW.

The law of prescription had its origin in ancient Rome more than two thousand years ago. The earliest form of prescription known to the Romans was

(a.) Story on the Conflict of Laws p. 766.

called usucapio. The object of this usucapio was to mitigate the rigour of the old Civil Law, by which those who were not Roman citizens laboured under special disabilities, in regard to acquiring or holding property within the original Roman territory. Prcperty, in the earliest days of Rome, was held by a special tenure called jns Quiritium or domiuinm ex jure Quiritium. Only Romans Latins who had the right of commercium and peregrini who had that right granted to them, as a special concession could own property ex jure Quiritium. The old law of Rome recognized no tenure other than dominium ex jure Quiritium. Landed property in Rome had originally a religious and political significance. It was placed under the special protection of the god Terminus, whose cult was introduced as early as the time of King Numa. None but Roman citizens could hold landed property within the ancient limits of Rome called ager Romanus. There were special modes of conveyance called mancipatio or in jure cessio, appropriate to dominium ex jure Quiritinm. The ancient law of Rome was so strict and inflexible, that if Quiritarian property was conveyed by a mode other than that which was prescribed, then no valid title passed. There was a special action called rei vindicatio to recover Quiritarian property.

But as Rome enlarged and became the capital of a powerful state to which most of the neighbouring countries were subject, the rigour of the old law of property, made, a new kind of property called in bonis, come into existence (rem habere in bonis,) under the protection of the prætors. Thus, for instance, suppose a Roman citizen sold a house within Roman territory to a pregrinus or stranger, the purchaser could not acquire a valid title, because the law was against it. But the magistrate who administered the law, called the prætor, protected the purchaser in the enjoyment of his property, and practically conceded to him all the rights of the owner. The purchaser was said to hold the land in bonis, -rem habere in bonis.

By usucapio in its first stage, two objects were attained. 1.- An owner who held his goods in bonis, could convert his ownership into Quiritarian ownership by a certain length of possession. The delay was one year for movables, and two years for immovables. 2. It helped to transform a simple bona fide possessor into full owner (Quiritarian owner) by mere lapse of time.

But this usucapio itself was found unsuitable to the requirements of the times as Rome increased in power and extent. In fact usucapio was defective principally in two respects. First, it was a mode peculiar to the jus Civile, and consequently it was inapplicable to the peregrini who had not acquired the commercium. In the second place, as a mode of transferring ownership peculiar to Italian soil, it did not apply to lands out of Italy. The title was in the original owner while the new purchaser had a sort of equitable ownership. In every instance where a man owned property in bonis, there were two owners, one legal or Quiritarian and another equitable or Bonitarian owner.

Under Justinian, this double ownership was abolished. The old tenure known as dominium ex jure Quiritium disappeared, and property throughout the whole of the Roman Empire came to be held under one tenure only, viz, in bonis. This fusion became easy under Justinian because the distinction between

Roman citizens and peregrini had disappeared since the days of Emperor Caracalla, and Justinian himself had abolished the difference between res mancipi and nec mancipi, the former of which alone needed special modes of conveyance.

owner.

To supply the defects of usucapio the prætors invented another mode of prescription called præscriptio longi temporis. The following were its chief advantages. 1.-Lands beyond the iimits of Italy could be acquired by this mode of prescription as against all but the state. 2. - It was applicable to Roman citizens, Latins and peregrini 3. - Usucapio gave ownership with all the burdens attached to it. Thus, if a land was mortgaged and the possessor acquired ownership by usucapio, the possessor could not take the land free of the mortgage. It was still burdened with the mortgage, and the only person against whom rights of the possessor prevailed, vas the emer But by præscriptio longi temporis, the peseessor's title prevailed both as againsi the owner and the mortgagee, if he had been in possession during the requisite time, which was ten years both for movables and immovables inter praesentes, or those who inhabited the same province, and 20 years inter absentes or those who did did not inhabit the same province. The possessor who availed himself of possessio longi temporis had one disadvantage when compared with the usucaptor. Possessio longi temporis was interrupted by the commencement of a suit (litis contestatio) but usucapio was not interrupted until judgment had been given against the possessor. The possessor might even complete his usucaption during the pendency of the suit.

Under Justinian the difference between res mancipi and res nec mancipi having been abolished, also the

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