from the time of the last demand of payment before he could sell. The creditor could not buy the thing himself, except by a private arrangement with the debtor, or with the intervention of a magistrate. If a variety of different things had been pledged, the creditor might choose which he would sell, unless some one thing had been specially charged with the debt over and above a general hypothecation of the whole of the debtor's property, in which case that thing must be sold first.

On the sale being effected, the rights of the proprietor, that is the debtor, passed to the purchaser, and the surplus of the price after paying the debt was handed over to the debtor. The fact of the pledge did not prevent the debtor selling the thing himself at any time and paying the debt out of the proceeds of the sale. The creditor also could transfer to another all his rights in the thing pledged, including his rights of action against the debtor arising out of the pledge. Where the thing pledged was in the possession of the creditor, he could only use it in case of a special engagement (pactum antichreseos) being made, the effect of which was to enable the creditor to take the proceeds of the thing pledged by way of interest or to use it in lieu of interest.

(7) Dos.

The rights of the husband and the wife in the property conceded to the husband for the purposes of the marriage -either by the wife's father (dos profectitia) or by some other person (dos adventitia), and whether a special engagement had or had not been made to restore it (dos receptitia or non)—were limited rights of ownership in one and the same thing existing simultaneously and yet without conflict. The rights of the wife were such that, jointly with her husband, she was regarded as a true "possessor" of an estate, her dower,-an advantage which in certain cases of litigation exempted her from the necessity of L. 15, D. (ii. 8). giving security. The wife, again, in recovering by action her dower, at the termination of the marriage, took precedence of all previous creditors under the supposition

of a prior hypothecation. She could also sue for her dower in the event of her husband becoming insolvent, L. 16, D. (xi. and had a right to have her funeral expenses 7). defrayed out of it.

The husband's rights were, during the continuance of the marriage, those of an usufructuary. In Justinian's time the husband could neither sell nor charge the dower, nor remit a charge or servitude from which it benefited. In the case, however, of an estate having its value quantitatively assigned in the terms of the grant, the farm could be sold, inasmuch as it seemed that the value and not the specific estate constituted the dower. But an opinion prevailed that the sale could take place only if an option was left to the husband, and not if it was left to the wife only (ut electio mulieris esset).

According as the things comprised in the dowry were or were not quantitatively ascertained in the grant, the husband or the wife, and those to whom the dower was to be restored, incurred the risk due to losses and to casual diminution of value. Movable things the husband could freely part with, and he could manumit slaves, if included in the dower. Otherwise he was bound to take the same care of the property as an usufructuary, and was liable not only for fraud and positive fault (culpa) but for accidental loss, if caused by a want of the diligent atten- L. 17, D.(xxiii. tion which he bestowed on the care of his own 3).

private property.

On the termination of the marriage, the father of the wife recovered what he had given or contributed. What others had given went to the wife or her heirs, unless it had been agreed that it should be restored to the givers.

This subject will again be recurred to, at length, under the head of the wife's property in connection with family law generally.

(8) PECULIUM.

The concession of property (peculium) by the head of the family to his son or slave for private use or adventure

in trade, though fortified by custom, as a domestic practice, could not vest in the son or slave any legal rights of ownership as against the father or master. Nevertheless, the custom was not without some legal consequences, especially where the claims of third persons were concerned, with whom the son or slave transacted business on his own account. The force of the custom was, indeed, so strong that where a master and his slave had transactions with each other, a surety for the slave would be held legally bound, and he would be equally bound if the creditor were some outside person. So, again, if, after L. 64, D. (xii. manumission, a master paid a debt arising out 6). of transactions which had occurred during slavery, the master could not recover the sum back.

D. (xiv. 4).

In the case of creditors having a claim against a slave's or son's peculium, the slave's or son's debt to his master or father had first to be taken into account, and, if the slave had traded without his master's knowledge, or a son without his father's, it had to be paid in full. If the father or master had notice of the slave's or son's transactions, he could be made to share in the loss proportionately with the other creditors (tributoria actio). Where the dealings with the peculium brought advantage to the father or master-as in paying his creditors, or repairing his buildings-he was liable to satisfy debts arising out of the transactions to the amount of the advantage obtained (actio de in rem verso), even though they had been engaged in without his cognizance. If the transactions brought no advantage to the father or master, he was liable to make good any loss at least up to the amount of the peculium (actio de peculio); a debt due to himself in respect of the peculium being first, as above mentioned, paid in full. The position of the son in the power of a father or ancestor was greatly improved in respect of his L. 6, C.(vi. 6o). capacity of ownership in consequence of a series of imperial constitutions reaching from the time of Augustus to that of Justinian. This improvement was wrought by means of a sort of fictitious extension of the older peculium. The result was that, in Justinian's time, a son in the power

of a father or ancestor had the dominium of all property which came from his mother or from any other relative than the one in whose power he was, and of all property which he acquired by his own independent efforts, while the father or other ancestor had an usufructuary right in it for his life. In the case, however, of property being given by a father to his son on going to serve in the army, or of the son acquiring property while on military service, or while filling certain civil offices (castrense or quasi-castrense peculium), the son was legally regarded, for all purposes of using and dealing or parting with the property, as altogether independent of a father's or ancestor's control. The names profectitium and adventitium, borrowed from the analogous case of dower, have been given to the ordinary peculium (also called paganum, in opposition to castrense), according as it came from the head of the family or some other relative. This subject will be discussed again, in greater detail, in connection with the general topic of the family.

(9) POSSESSION.

Possession, as meaning detention, which is legally recognized and protected, and not the mere fact of such detention, is a right of ownership, though very limited. By the operation of prescription, that is, the passing of a fixed interval of time together with the satisfaction of certain other conditions relating to the mode in which the possession began, possession might ripen into a right of ownership of the fullest sort.

A person was said to be in legal possession of a thing when he was, at the moment, conducting himself as if he had a full right of ownership in it. He must be physically detaining the thing, and he must furthermore, be mentally resolved, if only for the moment, so to detain it for his own purposes (animo et corpore possidere). Physical detention need not imply actual or incessant contact. It was sufficient if it was symbolical, as by having the key of a cellar or stable, or could be reproduced at any

moment, or was effected by an agent. By a change in the mental resolution, a change in the personality of the possessor could be brought about without the thing changing hands.

There seem to have been three distinct origins for the protection which was accorded in Roman law to the person who was in possession. One origin for this protection was the fact that, up to the time of Justinian, when L. 1, C. (vii. 25). all distinctions between the plenary "“Quiritarian "ownership and the mere possessory right of holding land in bonis were abolished, such mere possessory right, dependent on a paramount right of the State, was the only ownership in lands outside Italy possible to private persons. A second origin of the protection of possessory rights is to be found in the general policy of recognizing rights while being actually exercised, so as to prevent violence and extra-judicial conflicts during the interval while the judgment of a court of law is being waited for. Yet a third origin is to be found in the policy of satisfying natural expectations, of not disturbing long-established facts, and, through prescription, of providing that goods and land should not be long without an owner.

Possession might be either such as would be sufficient to become, by prescription, when the proper time had elapsed, the fullest right of ownership (possessio ad usucapionem); or it might be only of the imperfect sort which was just sufficient to claim the interference of the prætor for its immediate protection (possessio ad interdicta). The former sort of possession required that it should have begun by some legally recognized mode (justus titulus), as, for instance, by gift, sale, or inheritance, which would have been legally sufficient to pass the rights purported to be conveyed but for some hidden flaw in the owner's title, but for some latent incapacity for transfer in the thing conveyed, or but for some defective execution of the transfer; and the possessor must furthermore have been at the time honestly unaware of the infirmity of his title (bona fides). An error in this last respect, however, due to gross negligence or ignorance of law, was not excused,