ginal proprietor had sold one half, pro indiviso, the action was to enforce the alternative. It was insisted as a defence to the action, that no man can be compelled to part with his property, except for the public benefit, but the defence was repelled.

The creditors of a joint proprietor, after using the proper diligence for acquiring to themselves the rights of their debtor, may take proceedings as he himself might have done, for having the property divided or sold.

In the several British colonies of the West Indies and North America, which are governed by the acts of their legislatures, and in the United States, there is little variation from the law of England, in the manner of effecting partition at law and in equity.

In Jamaica, by the colonial act of the 8th Geo. I., c. 5, the proceedings at law are rendered less dilatory. In the United States, partition is effected by proceedings either at law or in equity.

CHAPTER VI.

DONATIONS.

Some of the rules by which donations are governed stated in the sections on fidei-commissa and substitutions.-Those equally applicable to sales have been considered in the preceding chapter.-Those restricting the amount of the property which may be the subject of donations, and the persons by and to whom made, and death-bed dispositions, will be considered in treating of testamentary dispositions.-The delivery, and the solemnities and instruments required in donations are embraced in the next chapter.

DONATION is another mode by which property is transferred and acquired.

It is regarded as a contract, because it depends on, and is perfected only by the consent of the parties to it, that is, of him who gives, and of him who accepts the subject of the donation.

In treating of fidei-commissa and substitutions, which are so frequently created by donation, it was necessary to state some of those principles which were peculiar to this mode of acquiring property.

A donation, with respect to the property which may be comprised in it, and the persons by and to whom it may be made, is subject not only to those rules by which the contract of sale and purchase is governed, but to other rules which, although not applicable to the latter contract, are common to gratuitous dispositions by testament or mortis causâ, as well as to those inter vivos.

Thus, not only must the property be in commercio, but

it must be of such a limited amount and value as will not deprive children of that portion in their parent's succession which is given to them by law.

Again, there are various persons who might take under a contract of sale and purchase, who are incapacitated from taking by gratuitous disposition on account of their relation to, and supposed influence on the disponer, as guardians, curators, confessors, and others holding similar situations, and possessing similar means of exercising an influence on him.

The donation may be subject to reduction in consequence of its having been made at a period when it is considered a fraud on the succession, as when it is a disposition made on death-bed.

It is proposed to reserve the consideration of the various provisions which may be referred to these heads until we treat of testamentary dispositions, to which they are equally applicable.

In order to transfer the dominium in the subject of the donation, it is essential that there should be the delivery of it by the donor, and the acceptance of it by the donee. In this respect the Code Civil does not differ from other systems of jurisprudence. The maxim which universally prevails, is on ne peut donner et retenir. (a)

The subsequent chapter, which treats of the solemnities and instruments by which sales and other contracts are made and perfected, embraces those which are required in donations.

(a) Cout. Paris, art. 273. Cout. Normandy, art. 444.

CHAPTER VII.

SECTION I.

DELIVERY, AND THE INSTRUMENT OR TITLE OF TRANSFER. -UNDER THE CIVIL LAW, IN CANADA, ST. LUCIA, MAURITIUS, COUTUME OF NORMANDY, TRINIDAD, BRITISH GUIANA, CAPE OF GOOD HOPE, AND CEYLON.

I. In the civil law delivery essential in transferring the dominium.— Writing not essential. Its doctrine respecting written and parol evidence. The different species of written evidence, and the respective degrees of credit assigned to each.

II. The law of France.-The Ordinance de Moulins.-Ordinance of 1667. Code Civil.-Exclusion of parol evidence to prove contracts where the subject exceeded a certain amount.-Authentic instruments.What instruments so considered.—Effect of.—Law of Lower Canada. -St. Lucia.-Mauritius.

III. Coutume of Normandy.

IV. Trinidad.

V. British Guiana.-Effestucatio.-Transport.-Cape of Good Hope. -Ceylon.

of

It has been stated that the dominium, or property the vendor in the subject sold, did not, under the civil law and the systems of jurisprudence founded on it, pass to the vendee by the contract of sale.

In the Roman law, it was transferred either by mancipatio or traditio. By the former, as its appellation implies, the subject sold, or that which represented it, was delivered by the vendor to, and received by the vendee. It was an act which took place in the presence

of five witnesses, and was accompanied by certain solemnities. It was admitted only in respect of certain subjects.

Mancipatio was the appropriate mode of alienating farms situated in solo Italico, or in those provinces to which the jus Italicum was granted, The clod of earth taken from the farm was delivered by the vendor to, and received by, the purchaser, in the presence of the witnesses, and accompanied by the solemnities which were prescribed.

The subjects which admitted of this mode of alienation were called res mancipi, manucapta. The mancipatio transferred the civile et perpetuum dominium rerum corporalium. It was not admitted in the alienation of farms situated in those provinces which did not enjoy the privilege of the jus Italicum. Their owners were not considered to have the dominium directum, but merely the dominium utile. Their lands were described as res nec mancipi, and the dominium in them was transferred by delivery. Traditio, or delivery, therefore, was ex jure civili the appropriate alienation earum rerum quæ nec mancipi, and it was also ex jure gentium the appropriate alienation earum rerum quæ mancipi.

It is not necessary to dwell on the distinction between these two modes of alienation, but it will be sufficient to refer to that which took place by delivery, and which became the ordinary mode of transferring the dominium in immoveable as well as moveable property.

The delivery is either actually made, as by the transfer of the possession de manu in manum, if the subject be moveable, and by the induction into possession, if it be immoveable property, (a) or it is constructive, when some symbol or representative of the thing sold is given, as the key of the house, &c. the clod of earth, or when

(a) Matth. Paræm. Belg. paræm. 5, p. 158. Perez. Cod. lib. 3, tit. 32, n. 4, 7, et seq. Sande, de Effest. Summ. and c. 1. Cod. lib. 7, tit 32, 1. 2, and tit. 49, 1. 8. Dig. lib. 39, tit. 6, de Donation. Matth. de Auct. lib. 1, c. 18.