And the interest of a mere possessor may also be inherited or conveyed. Moreover if the land be taken compulsorily he is entitled to compensation."

In the last cited case, the decision in Doe d. Mary Carter v. Barnard, was disapproved of as being inconsistent with Asher v. Whitlock, already cited, and with the views of Mr. Preston, Mr. Joshua Williams, Professor Maitland and Mr. Justice Holmes. The reporter adds a reference to an article by Professor J. B. Ames in the Harvard Law Review. In the above cited case of Doe v. Barnard the plaintiff in ejectment, though having had thirteen years' possession, failed in her action against a defendant (who had turned her out), on the ground that her own case shewed possession, and therefore a presumed fee simple, in her late husband, and shewed also that her husband left an heir. The plaintiff's possession was not connected with her husband's, and the defendant was allowed to set up the title of the heir in answer to the plaintiff's claim. As above shewn the case has been disapproved of.

If A, having no title, should acquire possession and hold it animo dominendi for say one year and then mortgage the property to B and remain in possession paying the interest, and then C, a stranger, acquired and held possession for less than 20 years, also animo dominendi, it would appear that B, the mortgagee, (although neither he nor the mortgagor had obtained a title under the Statutes of Limitation) could eject C, since B would claim under the earlier possession. A's possession would be prima facie evidence of his seisin in fee; would be capable of conveyance to his mortgagee, and the mortgagor's possession would be attributed to the mortgagee.10 (The mortgagee, in the case above put, would, of course, not be claiming adversely to the mortgagor.) A title would therefore be set up good as against all persons except the true owner proving right to immediate possession. Or if, in the simpler case, without there being any mortgage, A held peaceable possession for one year, and went out of possession, animo revertendi, and C took possession and held it for any period less than required by the Statutes of Limitation A could in like manner eject him in reliance on his (A's) earlier possession and presumed fee simple.

Perry v. Clissold (1907). Law Reports, Appeal Cases 73. 13 Queen's Bench 945 (1849).

Vol. 3, p. 324, n.

10 Cole on Ejectment 462, 479 (1857).

11

The case first put of there being a mortgage is exemplified by "Doe on the several demises of Smith and Payne v. Webber." The plaintiff Payne had been in possession for a number of years, though no statutory title was relied on. Then he mortgaged the property to the plaintiff Smith, but remained in possession, paying the interest on the mortgage. After the date of the mortgage the defendant brought ejectment under some claim of title against the plaintiff Payne (who was still in possession) and the cause was submitted to arbitration, which went in favour of the defendant, who thereupon went into possession under a writ of habere facias possessionem and remained in possession for about six years before the action was brought. The defendant set up the award as against the plaintiff Smith, who was proved to have been present at the arbitration proceedings, but not to have taken any part in them. The evidence was ruled out as being res inter alios acta, and the plaintiff Smith obtained the verdict. All that the case decides is that the evidence was rightly rejected.

It would be interesting to know what direction was given by the trial Judge to the jury, but it is not reported. The verdict seems, however, to have been right. The plaintiff Smith was deemed to be in possession by reason of his mortgagor's continued possession and payment of interest, and the defendant had not acquired a statutory title.

The effect of the case is thus given in Pollock and Wright on Possession: "Ten year's possession has been decisive even against several years' subsequent possession under colour of title."12

As exemplifying at once the risks attending nisi prius practice and the necessity of some system of registration of title or of deeds, it appears that the defendant went to trial in ignorance of Smith's title, and had trained the evidence concerning the award against the plaintiff Payne. Then, discovering the mortgage, the defendant sought to deflect this evidence against the mortgagee, which was not allowed. The two plaintiffs appeared to have been working together in the action, and it was complained by the defendant's counsel that Payne was going behind the award by way of using Smith's name as a second plaintiff.

"1 Adolphus and Ellis, 119 (1834): 3 Law Journal, King's Bench, 148: 3 Nevile and Manning 746.

12 P. 96.

The minor, though none the less important, question of the costs of the evidence concerning the award was later dealt with,1 13 when the defendant was allowed such costs as against Payne, as costs of the issue found in favour of the defendant as against Payne, who, of course, could not succeed in face of the award.

The doctrine that possession is a root of title exists independently of the Statutes of Limitation. It is true that the Judges, when speaking of a title by possession short of a statutory title, generally go on to say that the title is one that may ripen into an absolute title, but it seems clear that a possessory title would be recognized by the Courts if there were no Statutes of Limitation. It would follow, therefore, in a case where no Statute of Limitation operated, that so long as a mere possessor was left in undisturbed' possession by the true owner and those rightfully claiming under him, he, the possessor, would have a title recognized by the Courts, and one that would descend to his heirs or could become the subject of conveyance or devise, and would be good as against all the world except the true owner for the time being.

In conclusion it may be pointed out that where there have been several successive possessions by strangers to the title, the last possessor can take advantage of the prior possessions only if all the possessions have been continuous, and are connected as of right.

T. F. MARTIN.

In University of Pennsylvania Law Review.

Wellington, New Zealand.

132 Adolphus and Ellis 448.

VOL. XXXIII. C.L.T.- 69

NOTES ON THE HISTORY OF COMMERCE AND COMMERCIAL LAW. 2. THE MIDDLE AGES.

Three prime requisites of commerce are: (1) means of transport; (2) freedom of labor and exchange; (3) security. In antiquity to obtain these conditions the struggle was a hopeless one, though there were periods when they were more or less assured. Commercial colonies were founded in Spain by the Phoenicians in the beginnings of history;1 the Rhodian fleet was a merchant marine; Athens acquired her great naval strength by a conscious political policy; military Rome played the equivocal role of destroyer,2 pacifier and law-giver.

Commerce is a complementary expression of the other material activities of society. The commerce of antiquity, relatively speaking, flourished at periods not because of the state of society and government, but in spite of certain of their dominant characters.

Means of transport were rudimentary. By land it was more perilous and burdensome than by sea. The transport of any considerable volume over long distances was impossible. Trans-shipment was always frequent. By water, the routes followed rivers and coasts. Without the compass the mariner did not dare to venture far beyond the sight of land, and rarely left the enclosed seas.

Freedom of labour and exchange existed only to a very limited degree. According to the theory of the ancient state the governed owed their rights to the state; the state did not owe its powers to the willingness of the governed. The liberty, industry and property of the individual were at the disposal of the state.

Security was conspicuously lacking. The ancient state regarded the foreigner as an enemy. Besides the material difficulties of transportation there were the added perils of highwaymen and pirates. Commercial supremacy was believed to depend upon monopoly won by the destruction of all rivals. Little sanctity was accorded the right of property. Commerce had to arm itself and so dissipate its forces in antagonistic fields. Insurance was unknown. The Roman

1 Cadiz, Malaga, Sevilla, Cordoba. The Carthaginians, following the Phoenicians, founded Barcelona and Cartagena and occupied Cadiz. 2 For example the destruction of Carthage, Corinth and Palmyra.

jurisconsult gave but relatively scant attention to the field now known as commercial law. Under such conditions mu

tual confidence and credit could scarcely exist.3

The fall of the Western Empire (476 A. D.), may be taken as a convenient date to terminate the history of antiquity. The ancient civilization continued in the Greek Empire though the importance of this was for the time obscured by the transforming events that were succeeding one another in the rest of Europe and isolating the two parts of the continent.

The thirteen hundred years that transpired between the fall of Rome and the French Revolution may be divided into two periods: the first extended to the 16th century, the period of the world discoveries, and constitutes the Middle Ages; the second extended from the 16th century to the French Revolution, and is the period of the birth of modern national commerce and national commercial law. The three elements: means of transport, freedom of labour and exchange, and security, became so far a realized fact in the first half of the 19th century, that the unparalleled commercial development of the second half was a natural consequence.

The period of the Middle Ages divides itself into two epochs: first, that of almost complete prostration of commerce; the second, that of the revival, ushered in in the 11th century by the Crusades.

Bridging over these years of transformation in the west the Greek Empire successfully fought off the Barbarians from the north, to fall in the year 1453 before the Mahometans from the south. But the paralysis of commerce over the rest of Europe could not but be felt in Constantinople. Besides, like Rome, Constantinople was principally a centre of consumption and distribution. Trade still continued between Constantinople and Asia Minor and Egypt, and the importance of the capital as a distributing centre for eastern goods increased after the re-establishment of relations between the orient and western Europe that followed the Crusades. The advance of the Mahometans gave the commercial predominance to Venice and finally became one of the causes of the latter's decline.1

Two great collections of laws, that of the Emperors Justinian and Basil, appeared in Constantinople after the fall of

3

Encyc. Brit. Vol. 6, "Commerce."

Manzano, Curso de Derecho Mercantil, Vol. I, p. 190.