the question naturally suggested itself whether the imperfection in the possession could be cured by bona fides, that is, an honest belief that the causa was justa, that a gift had been made, or that a debt was due. The question had been much debated by the jurists, and Justinian here decides it by declaring that the imperfection could not be so cured, and that if the possessor had been mistaken in this respect, length of possession would not profit him. But this doctrine is not consistent with that of the Digest, which treats a plausible error (an error into which a man might naturally and reasonably have fallen with regard to the causa) as permitting usucapion to take place. We learn, for example, from the Digest, that where it was with respect to an act of some one through whom the possessor believed his title to have been gained, and whom he reasonably believed to have been acting for him as his procurator, that the mistake was made, the possessor could acquire by use, although this person might not have acted as the possessor supposed. (D. xli. 4. 11.)

12. Diutina possessio, quæ prodesse cœperat defuncto, et heredi et bonorum possessori continuatur, licet ipse sciat, prædium alienum : quodsi ille initium justum non habuit, heredi et bonorum possessori, licet ignoranti, possessio non prodest. Quod nostra constitutio similiter et in usucapionibus observari constituit, ut tempora continuentur.

12. Long possession, which has begun to reckon in favour of the deceased, is continued in favour of the heir or bonorum possessor, although he may know that the immoveable belongs to another person; but if the deceased commenced his possession mala fide, the possession does not profit the heir or bonorum possessor, although ignorant of this. And our constitution has enacted the same with respect to usucapions, so that the times of possession by different persons may be reckoned as running through.

D. xli. 4. 2. 19; D. xliv. 5. 11; C. vii. 31.

Persons who possessed pro herede or pro possessore, that is, as bonorum possessores, did not themselves begin a new usucapion, but continued the persona of the deceased, and were placed in the same position with reference to anything which he had possessed, as if he had himself continued to possess it. If, for example, the deceased had possessed the thing pro emptore or pro donato, the heres or bonorum possessor continued to possess it in the same way, and added to the time of his possession the time during which the deceased had possessed it.

Similiter in usucapionibus, i.e. the continuation of possession by the heir or bonorum possessor shall apply to the usucapion of moveables by three years' possession.

13. Inter venditorem quoque et emptorem conjungi tempora, divi Severus et Antoninus rescripserunt.

13. Between the buyer and the seller too, the Emperors Severus and Antoninus have decided by rescript that their several times of possession shall be reckoned together.

D. xli. 4. 2. 20.

L

Persons who were merely successors of others in holding particular things by sale, gift, legacy, &c., did not of course continue the possession, for they did not continue the person, of their predecessor. But if both the possession of their predecessor, and their own, were such as to give rise to usucapion, the times of the two possessions were added together. If there was something to prevent this in the possession of their predecessors, their own possession was the first commencement of the usucapion.

The interruption of usucapion was termed usurpatio. (D. xli. 3. 2.) It might take place in various ways. The thing itself might be taken away from the possessor, or, if it was an immoveable, he might be expelled from it (D. xli. 3. 5); or it might become impossible, from physical causes, such as an inroad of the sea, to occupy it (D. xli. 2. 3. 17); or, again, the possessor might fall into the power of the enemy, and he would not be reinstated in his possession by postliminium, for possession was a fact, and as he had ceased to possess, as a matter of fact, he could only begin a new possession by again possessing the thing (D. xlix. 15. 12. 2); or the interruption might be what was termed civil, that is, be produced by an action to contest the right, and with respect to this Justinian (C. vii. 33. 10) made the time of the first raising of the controversy (mota controversia) the period of interruption, instead of the litis contestatio (see Introd. sec. 105), which had no place in the civil process of his time.

There was also a prescription or possession, termed longissimi temporis. If there was a possession for thirty years, or, in the case of ecclesiastical property, or hypothecated property in possession of the debtor, for forty years, whatever vitium or obstacle there might be to the acquisition by use, for instance, theft, violence, absence of justa causa, or mala fides, the possessor could repel actions brought to claim the thing. (C. vii. 39. 7; Nov. 117.)

14. Edicto divi Marci cavetur, eum, qui a fisco rem alienam emit, si post venditionem quinquennium præterierit, posse dominum rei per exceptionem repellere. Constitutio autem divæ memoriæ Zenonis bene prospexit his, qui a fisco per venditionem vel donationem vel alium titulum aliquid accipiunt, ut ipsi quidem securi statim fiant et victores existant, sive conveniantur sive experiantur: adversus sacratissimum autem ærarium usque ad quadriennium liceat intendere his, qui pro dominio vel hypotheca earum rerum,' quæ alienatæ sunt, putaverint sibi quasdam competere actiones. Nostra autem divina constitutio, quam nuper promulgavimus, etiam de his, qui a nostra vel venerabilis Augustæ

14. It is provided by an edict of the Emperor Marcus, that a person who has purchased from the fiscus a thing belonging to another person, may repel the owner of the thing by an exception, if five years have elapsed since the sale. But a constitution of Zeno of sacred memory has completely protected those who receive anything from the fiscus by sale, gift, or any other title, by providing that they themselves are to be at once secure, and made certain of success, whether they sue or are themselves sued, in an action. While they who think that they have a ground of action as owners or mortgagees of the things alienated, may bring an action against the sacred treasury within four years. An imperial constitution, which we ourselves

domo aliquid acceperint, hæc statuit, quæ in fiscalibus alienationibus præfata Zenoniana constitutione continentur.

have recently published, extends to those who have received as a gift anything from our palace, or that of the empress, the provisions of the constitution of Zeno relative to the alienations of the fiscus.

C. ii. 37. 3; C. vii. 37. 2. 2.

As Theophilus points out, the privilege really conceded by the constitution of Marcus Aurelius was, that no possession, if the thing had been received from the fiscus, should be attacked after five years had elapsed, however otherwise open to attack. If not otherwise open to attack, the time of usucapion, being so much shorter than five years, would, previously to the changes of Justinian, have given the property before the time fixed by the constitution had arrived.

TIT. VII. DE DONATIONIBUS.

Est etiam aliud genus adquisitionis, donatio. Donationum autem duo genera sunt: mortis causa et non mortis causa.

There is, again, another mode of acquiring property, donation, of which there are two kinds, donation mortis causa, and donation not mortis causa. D. 1. 50. 16. 67.

The phrase dono dare was appropriated in Roman law to the mode of transferring property by gift; dare signifying that the whole property in the thing was passed by delivery, and dono expressing the motive from which the delivery was made. (See Vat. Fragm. 275. 281. 283.) Viewed strictly, gift is not a peculiar mode of acquisition, but an acquisition by delivery with a particular motive for the transfer. Possibly it was on account of the solemnities with which, under Justinian, gifts had to be made that the authors of the Institutes treat gift as a separate mode of acquisition.

1. Mortis causa donatio est, quæ propter mortis fit suspicionem, cum quis ita donat, ut, si quid humanitus ei contigisset, haberet is, qui accepit: sin autem supervixisset, qui donavit, reciperet, vel si eum donationis pœnituisset, aut prior decesserit is, cui donatum sit. Hæ mortis causa donationes ad exemplum legatorum redactæ sunt per omnia. Nam cum prudentibus ambiguum fuerat, utrum donationis an legati instar eam obtinere oporteret, et utriusque causæ quædam habebat insignia et alii ad aliud genus eam retrahebant, a nobis constitutum est, ut per omnia fere

1. A donation mortis causa is that which is made to meet the case of death, as when anything is given upon condition that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given. These donations mortis causa are now placed, in all respects, on the footing of legacies. It was much doubted by the jurists whether they ought to be considered as a gift or as a

legatis connumeretur: et sic procedat, quemadmodum eam nostra formavit constitutio. Et in summa mortis causa donatio est, cum magis se quis velit habere, quam eum, cui donatur, magisque eum, cui donat, quam heredem suum. Sic et apud Homerum Telemachus donat Piraeo:

Πείραι (οὐ γάρ τ ̓ ἴδμεν, ὅπως ἔσται τάδε ἔργα)·

Εἴ κεν ἐμὲ μνηστήρες ἀγήνορες ἐν μεγάροισι

Λάθρῃ κτείναντες, πατρώια πάντα δά

σωνται,

Αὐτὸν ἔχοντά σε βούλομ ̓ ἐπαυρέμεν, ἤ τινα τῶνδε

Εἰ δέ κ' ἐγὼ τούτοισι φόνον καὶ κῆρα φυτεύσω,

Δὴ τότε μοι χαίροντι φέρειν πρὸς δώματα χαίρων.

legacy, partaking as they did in some respects of the nature of both; and some were of opinion that they belonged to the one head, and others that they belonged to the other. We have decided by a constitution that they shall be in almost every respect reckoned amongst legacies, and shall be made in accordance with the forms our constitution provides. In short, it is a donation mortis causa, when the donor wishes that the thing given should belong to himself rather than to the person to whom he gives it, and to that person rather than to his own heir. It is thus that, in Homer, Telemachus gives to Piræus :—

'Piræus, for we know not how these things shall be, if the proud suitors shall secretly slay me in the palace, and shall divide the goods of my father, I would that thou thyself shouldst have and enjoy these things rather than that any of those men should; but if I shall plant slaughter and death amongst those men, then indeed bear these things to my home, and joying give them to me in my joy.'

D. xxxix. 6. 35. 4. 37. 1. 1; C. viii. 57. 4.

There are two essential conditions of a donatio mortis causa; it must be made with the view of meeting the case of death; and it must be made to take effect only if death occurs, and so as to be revocable at any time previous, and to fail if the recipient died before the giver. The donor might, however, at his pleasure, alter the character of the gift, making it irrevocable, but it was always dependent on the recipient outliving the donor. (D. xxxix. 6. 27.)

It might be made conditional upon death in two ways. The donor might say, 'I hand you over my horse, but the gift is only to be complete if I die in this enterprise;' or he might say, 'I give you my horse, if I survive this enterprise you are to give it me back.' In the latter method, the delivery of the thing is made at once, subject to a conditional redelivery in the former the delivery is made conditional. (D. xxxix. 6. 2 et seq.) The donation might also be sometimes made conditional upon the death of a third person, as if a father promised to give to his daughter-in-law in case of the death of his son. (D. xxxix. 6. 1.) All who could make a testament could make a valid donatio mortis causa; and all who could receive under a testament could accept one. (D. xxxix. 6. 9 and 15.) Every kind of thing could be given in this way. (D. xxxix. 6. 18. 2.) Justinian, in the constitution referred to in the text, required that a donatio mortis causa should be made in the presence of five witnesses. (C. viii. 57. 4.)

If the gift was made in the first of the two ways above mentioned, although there was delivery, yet the thing was only acquired on the death of the donor, and the donor not having ceased to be dominus could therefore, if he revoked the gift, bring a real action to reclaim the thing handed over. If the gift was made in the second way, the whole property passed at once by the tradition to the recipient; and as, in the older and stricter law, the dominium passed absolutely when it passed at all, the property in the thing could not revert to the donor merely by the condition having been accomplished. He would only have a personal action against the recipient to compel him to give the value of the thing if he did not choose to give back the thing itself. The later jurists seem, however, to consider that the dominium reverted ipso jure, and that the donor could bring a real action for the thing itself. (D. vi. 1. 41; D. xxxix. 6. 29.)

If the donor was insolvent at the time of his death, this was considered as an implied revocation of the gift. (D. xxxix. 6. 17.)

Ad exemplum legatorum redacta sunt per omnia per | omnia fere legatis connumeretur-the latter is the more correct expression; gifts mortis causa were not exactly on the footing of legacies, especially because (1) they had complete effect immediately on the death of the donor, whereas legacies, to take effect, required that the heir should first enter on the inheritance (D. xxxix. 6. 29.) (2) The rules as to capacity of taking were the same in both cases, but regard was had to the capacity to receive of the person to whom the gift was made, only at the time of the death, and not, as in the case of legacies, also at the time of the disposition. (D. xxxiv. 9. 5. 17.) (3) A filiusfamilias, who could not before Justinian give anything but his peculium castrense by testament, could, with his father's permission, make a donatio mortis causa of other things. (D. xxxix. 6. 25. 1.) (4) A peregrinus could make a mortis causa donatio, though he could not give a legacy. (D. xxxix. 6. 25.) There was one remarkable mode in which they ( were placed on the footing of legacies. By a constitution of Severus the heir was permitted to retain as large a portion (onefourth) of the gift as he could of a legacy by the lex Falcidia. (See C. viii. 57. 2.)

The lines quoted in the text are from Odyssey xvii. 78.

2. Aliæ autem donationes sunt, quæ sine ulla mortis cogitatione fiunt, quas inter vivos appellamus. Quæ omnino non comparantur legatis: quæ si fuerint perfectæ, temere revocari non possunt. Perficiuntur autem, cum donator suam voluntatem scriptis aut sine scriptis manifestaverit et ad exemplum venditionis nostra constitutio eas etiam in se habere necessitatem traditionis voluit, ut, et si non tradantur, habeant plenissimum et perfectum

2. The other kind of donations are those which are made without any consideration of death, and are called donations inter vivos. They cannot, in any respect, be compared to legacies, and if completed cannot be revoked at pleasure. They are completed when the donor has manifested his intention, whether by writing or not. Our constitution has declared that, after the example of sales, they shall involve the necessity of tradition; so that even if they are not handed over before tradi