civil days 1); ad dies numerare, civiliter computare;) that, without reference to the hour or the minute, the day when the event happened was considered the first of the prescribed period, and the last (novissimus, postremus, extremus dies) was reckoned by counting from, and inclusive of the first. To determine whether it was sufficient that the last day should have commenced, or necessary that it should have ended, it is requisite to distinguish the case in which the expiration of the time conferred a right or a capacity, and that in which it caused the loss of a right, by reason of non-usage. In the first case, it sufficed that the day had begun 2) (dies coeptus pro completo habetur); - in the second case it required to be ended. L. 15. pr. D. de div. temp. praescr. (44. 3). "In usucapione ita servatur,

1) L. 134. D. de V. S. "Anniculus non statim ut natus est, sed trecentesimo sexagesimo quinto die dicitur, incipiente plane, non exacto die, quia annum civiliter, non ad momenta temporum, sed ad dies numeramus.' There was exception for the restitutio in integrum of minors; probably in order to ensure to them, as long as possible, the benefit of this special aid. L. 3. § 2. D. de min. (4. 4). “Minorem autem viginti quinque annis natu, videndum, an etiam diem natalis sui adhuc dicimus, ante horam qua natus est, ut si captus sit, restituatur? Et quum nondum eompleverit, ita erit dicendum, ut a momento in momentum tempus spectetur." Sav. Syst. IV. p. 407. Puchta, Pand. § 75, b. Vangerow, I. § 196. Heimb. Weiskes Rechtslex. t. XV. p. 144. We see applications of the principle of the civil calculation (among others) in L. 16. § 8, D. de pign. (20. 1); art. 2147 Code Nap., and art. 1226 Neth. Code. As to Austrian law, see Unger, § 106, note 11; for the Prussian, Sav. 1. c. p. 420.

2) Savigny, § 282, takes for the last day, (whether in reference to its commencement or its end) the corresponding day of the month with the first day. This is, however, rejected, with reason, by almost all writers. In fact, it conflicts with the principle of the civil computation; for if we commence to count from the 1st. of January, (taken as one day), it is evident that the 365th. day will be the 31st. of December following, and not the 1st. of January. His view is, moreover, in contradiction to the L. 5. D. qui test. fac. possunt (28. 1). "Plus arbitor etiam si pridie kalendarum fecerit"; a law which it is impossible to interpret in the sense of adopting the 1st of January, without doing violence to its terms. The other passages invoked by Savigny are all more or less equivocal. Windscheid, § 102, note 12. By the French and Dutch Codes, prescription is not accomplished until the last day of the term is fully completed; nor does it seem that, it had been intended to recognize as an entire day that which was only a part of the first day of the term. See Marcadé, upon the arts. 2260 and 2261 of the Code Nap. Diephuis, t. IX, § 571.

ut etiamsi minimo momento novissimi diei possessa sit res, nihilominus repleatur usucapio, nec totus dies exigitur ad explendum constitutum tempus." L. 6. et L. 7. D. de usurp. (41. 3). “In usucapionibus non a momento ad momentum, sed totum postremum diem computamus. Ideoque qui hora sexta noctis diei Kal. Januariarum possidere coepit, hora sexta noctis pridie Kalendas Januarias implet usucapionem."

§ 80. OF THE COURSE, OR RECKONING OF A "DELAY".
(A PRESCRIBED TIME).

In law, a period of time was usually treated as a continuous series of years, months, or days; so that each day comprised in the period was reckoned, without considering what acts it was possible or impossible to execute, on such or such a given day. (Dies continui, tempus continuum 1). There were exceptions, however, for certain judicial acts, in regard to which the time fixed by law for their accomplishment 2) was composed exclusively of days on which the person interested was in a condition to act. (Available days, tempus utile, annus utilis, mensis sive dies utilis). 3)

It might be impossible for a person to act:

I. Because the magistrate before whom the act should be performed was inaccessible. L. 2. § 1. D. si quis ordo. (38. 15) 4).

1) L. 31. § 1, D. de usurp. (41. 3). "In usucapionibus mobilium, tempus continuum spectatur". L. 8, C. de dol. (2. 21). L. 7. C. de temp. i. i., rest. (2. 53).

2) Of one year, at most. Sav. Syst. IV, p. 426. Puchta, Vorles. I, p. 174. Windscheid, 104, note 2.

3) L. 2. pr. D. quis ordo (38. 15). L. 1, D. de div. temp. praescr. (44. 3).

4) "Sessiones erunt, computandae quibus sedet is, quibusque per ipsum Praetorem factum non est, quominus daret bonorem possesionem". (The days styled by the Romans dies nefasti and comitiales (which were very numerous) were, in this sense, unavailable). In modern law this obstacle does not exist. Sav. Syst. IV, p. 432. *)

*) [In English practice a Sunday, or holiday (jour férié, dies non) does not count, when it is the last day of the prescribed time. Translator.]

L. 1. D. i. f. de div. temp. praescr. (44. 3). L. 1. § 9. D. quando appell. sit. (49. 4).

II. By reason of the absence. whether intentional or accidental, of the adverse party. L. 1. § 1. D. ex quib. caus. maj. (4. 6).

III. In consequence of a temporary cause 1), personal to him who should have acted; - as for example, illness, absence 2), or an excusable ignorance of the facts which rendered his right operative 3).

This reckoning of available days must not be confounded with the case where the starting point of a period, afterwards continuous, was in suspense until the moment when the party interested had knowledge of the circumstance which would lead him to act. Tempus utile ratione initii, continuum ratione cursus 4). § 16. I. de excus. tut. (1. 25). L. 1. § 15. D. quando app. sit. (49. 4). L. 19. L. 22. C. de jur delib. (6. 30).

1) If the obstacle was the result of a persistent cause, the law dealt with it in another way. L. 7, § 2, D. de bon. poss. (37. 1). "Dies quibus tutor aut pater scit, cedere placet." Sav., Syst. IV, p. 432.

2) L. I. D. de div. temp. praescr. (44. 3). “Sive apud hostes sit, sive rei publicae causa absit, sive in vinculis sit, aut si tempestate in loco aliquo vel in regione detineatur experiundi potestatem non habet."

3) Savigny is wrong (Syst. IV, p. 433), when he denies this. In the L. 2, pr. D. quis ordo, the reason for requiring a knowledge of the facts is that in the bonorum possessio the time is reckoned availably. See also, L. 6. D. de calumn. (3. 6). “Qui nescit, is videtur experiundi potestatem non habere." L. 55. D. de Aed. Ed. (21. 1). "Non videbitur experiundi potestatem habuisse qui vitium fugitivi latens ignoravit." L. 8. C. de dol. (2. 21). See contre Savigny, Wächter, II. § 121. note 14. Windscheid, § 104, note 7. Moreover, the time during which the person has been in ignorance is even, sometimes, deducted, when the time is continuous. § 16, I. de Excus. (1. 25). By Prussian and Austrian law the time is always regarded as continuous. See Unger, § 106. In like manner, by the Dutch and French Codes, Sundays and holidays are, generally, without effect upon the reckoning of prescribed time. Zach. I, p. 144. See however, arts. 162, Code de Com., 179 Dutch Com. Code, and 14 Dutch Code of procedure.

4) As to these expressions, see Sav., 1. c., p. 446; Puchta, Vorles., p. 174; Unger, § 106, i. f.

§ 81. OF TIME IMMEMORIAL.

VETUSTAS, PRESCRIPTIO IMME

MORIALIS, INDEFINITA, IMMEMORIALE TEMPUS 1).

When any state of things had endured so long a time, that its origin dated back to a period to which the memory of man did not extend, there was a legal presumption that such origin had been legitimate, and the parties were dispensed from furnishing proof that it was so.

This rule,- designated praescriptio immemorialis 2),

applied by Roman law to local roads (viae vicinales),

was

to bar

riers erected to prevent the escape of rain-water, and to aqueducts. L. 3. pr. D. de loc. et itin. publ. (43. 7). "Viae vicinales, quae ex agris privatorum collatis factae sunt, quarum memoria non extat, publicarum viarum numero sunt." L. 2. § 8. D. de aq. et aq. pluv. (39. 3). "Cum quaeritur, an memoria exstet facto opere; non diem et consulem ad liquidum exquirendam, sed sufficere, si qui sciat factum, hoc est si factum esse non ambigatur: nec utique necesse esse, superesse qui meminerint, verum etiam si qui audierint eos, qui memoria tenuerint." L. 1. § 23. L. 2. D. pr. eod. "Vetustas quae semper pro lege habetur, minuendarum scilicet litium causa." L. 26. D. eod. "Scaevola respondit: solere eos, qui juri dicundo praesunt, tueri ductus aquae, quibus auctoritatem vetustas daret tametsi jus non probaretur." L. 3. § 4.

1) As to this various nomenclature, see Sav. Syst. IV, p. 481.

2) Savigny (IV, § 195), and Puchta (Vorles. § 77), limit the influence of time immemorial to rights which have some character of public right. On the contrary, See Windscheid, § 113, note 5. The opinion of Savigny would be well founded, only if the "ductus aquae" in L. 3, § 4, D. de aq. quot., and in L. 26, D. de aq. pluv., could be understood as referring merely to public aqueducts; an interpretation at least problematical. Whatever may be the case with Roman law, the Canon law extended immemorial prescription to all cases in which the conditions required for ordinary prescription were wanting. In Germany it was formely also recognised as to exemption from taxes. It is now replaced in Prussian law by a long prescription; and is completely abrogated by the Austrian, French and Dutch Codes. See Pr. L. R. P. 1, tit. IX, §§ 654-659; Unger, § 104; Code Nap., art. 691; and Code Neth. art. 746.

D. de aq. quot. (43. 20). "Ductus aquae, cujus origo memoriam excessit, juris constituti loco habetur."

What was called "immemorial prescription," tended to maintain and confirm a state of things already existing. It was sufficient, if shown that the same state of things had always existed, during the time covered by the memory of the contemporary generation. In such case there was the presumption) that the state of things had been lawfully created originally. "The memory

positive on

of man," however, in this matter, was not restricted to that which persons themselves remembered, but extended to things stated to the existing generation by that which had preceded it. The proof to be adduced had, therefore, a double direction; the one hand, negative on the other. In the positive sense, it had to be established that the generation still living knew that what was thus existing had existed, in the same state, for so long as their memory extended; and in the negative sense, that they had not learned from their immediate predecessors that the latter had ever seen a different state of things from that actually existing. L. 2. § 8. D. de aq. (39. 3). L. 28. D. de prob. (22. 3) 1).

1) "Prescription by time immemorial" did not (like true prescription) create a legal situation, but simply dispensed with proof of its origin. This is demonstrated by Arndts, (Beitrage, I, p. 139, et seq.), who thus characterizes the difference between the two. "When possession has continued, without interruption, during a certain time, a right is acquired by the effect itself of the possession so continued, and the acquisition of a title is considered as perfected, at the precise moment when the time prescribed has elapsed; while the nature of the prescription immemorial is simply to cause the right to be regarded as having been previously acquired, at some time which is no longer remembered, but not as an effect of the lapse of this same indefinite and unremembered time. Sav., (1. c. p. 528,) and Schirmer, (Annotations upon Unterholzner Verjähr. T. I, p. 522,) are in accord with Arndts. But the strongest argument against the doctrine which gives to the time immemorial the character of actual prescription, lies in the fact that disproof is possible, while it is not admitted in the case of actual prescription. And when Puchta says: "Auch als Ersitzung ist die unvordenkliche Zeit eine solche, die das Erforderniss der Nichtermittelbarkeit des Anfangs hat," - I answer: He who invokes immemorial prescription has to prove only the existence immemorial of the state of things which he desires to maintain, while the proof of the unlawful origin of this condition lies upon the adverse party. On the contrary, he who founds his right upon the prescription acquired by a specific lapse of time, has simply to prove his undisturbed