continued or uninterrupted possession for a determinate time, L. 9. tit. 29. P. 3. [L. 9. tit. 29. P. 3.]

§ 1. Good faith consists in the possessor's believing that the person from whom he received the thing, had right to aliene or transfer it, L. 9. tit. 29. P. 3. [L. 9. tit. 29. P. 2.] and therefore there will not exist good faith, 1st, If the right owner of the thing sold warns or gives notice to the purchaser that it does not belong to the vendor, L. 10. tit. 29. P. 3. [L. 10. tit. 29. P. 3.] 2d, Nor if one purchase a thing from a minor, a madman, or the attorney of another, fraudulently or collusively inducing him to dispose of it,18 L. 11. tit. 29. P. 3. [L. 11. tit. 29. P. 3.] 3d, But there will exist good faith in one who, when he receives the thing, believes the person from whom he makes the purchase to be the right owner, and he ought to be in possession of it all the time necessary by law to acquire the right of prescription; so that if before the completion of this time bad faith intervenes he cannot prescribe,19 Ll. 12. and 14. tit. 28. P. 3. [Ll. 12 and 14. tit. 29. P. 3.] unless he received the thing by way of gift, or exchange, in which cases good faith at the time of delivery is sufficient,20 L. 12. tit. 29. P. 3. [L. 12. tit. 29. P. 3.] 4th, In the same way if such possessor, knowing that the thing did not belong to the person who transferred it to him, should sell it to another before the expiration of the time necessary to complete his prescriptive right, the latter cannot take it by prescription, because there existed bad faith at the time. of its passing to him," L. 12. tit. 29. P. 3., [L. 12. tit. 29. P. 3.] so that it follows that there must exist good faith at the commencement of the possession of the thing, L. 12. tit. 29. P. 3. [L. 12. tit. 29. P. 3.] 5th, If with respect to slaves or animals this bad faith supervenes before the females conceive or are with young, he shall not acquire

18 For a less price than its real value. See the law quoted in the text.

19 In other words, if he is conscious that he derives his possession from a wrong doer the right of prescription is at an end.

20 The difference pointed out by L. 12. tit. 29. P. 3., between the possession acquired under a transfer by gift or exchange, and under that by sale, is not noticed in the text. It would appear from the law cited, that in the two first-mentioned cases of donation and exchange, bona fides in the person prescribing was sufficient at the time of delivery to him of possession; and that the previous or after belief on his part of wrong, or mala fides in the person from whom he derived possession, would not interrupt or put an end to his prescription; but that, in the case of transfer by sale, bona fides in the possessor was essential, both at the time of his making the bargain, and of his receiving possession. There seems also to exist a variance between the canon and civil laws with respect to the interruption and destruction, or non ditto of the prescriptive right, in the case of a long fide possessor arriving at the subsequent knowledge of the tortious title of the person from or through whom he derived possession; which is adverted to by Wood, C. L., book 2. c. 4. p. 166. 1 Browne's C. L., ch. 8. p. 247.

21 This appears a very extraordinary distinction, for, adverting to what was said in note 20, and referring to L. 12. tit. 29. P. 3., it would seem that a purchaser, in whom there existed bona fides at the time of bargain and delivery, regarding the contract or transfer as that of sale from a wrong doer, might perfect his title by his uninterrupted completion of the prescriptive term, though he should after such delivery to him, come to the knowledge of the tortious conduct of the vendor; but that if with such knowledge he should, before the expiration of the time required to complete his prescriptive possession, sell to a third person, the right of prescription would cease or be destroyed.

22

the young, L. 5. tit. 29. P. 3. [L. 5. tit. 29. P. 3.] 6th, There is not bad faith in one who acquires a thing through the medium of an attorney, if the latter informed his constituent that it was [97] transferred to him by a just title, although it be false; because the error arises in respect of the principal by a lawful reason or way, L. 14. tit. 29. P. 3. [L. 14. tit. 29. P. 3.]

§ 2. Just title consists in the cause or consideration by which possession of the thing is obtained, being one of those by reason of which dominion is acquired, as purchase, gift, inheritance, &c., Ll. 9. 14, and 15. tit. 29. P. 3. [Ll. 9. 14, and 15. tit. 29. P. 3.]

§3. There is a capacity in the thing if it is from its nature capable of prescription, and therefore sacred and religious things can't be acquired by time, nor civil jurisdiction, nor tributes and royal rights, L. 6. tit. 29. P. 3. [L. 6. tit. 29. P. 3.]

23

§ 4. In order that the person may be able to prescribe, it is necessary, 1st, That he be of sane mind; wherefore the madman and idiot (desmemoriado) cannot begin to prescribe; but if previously to becoming mad such a one began to acquire, the capacity of person will continue in and enure to him or his heirs, L. 2. tit. 29. P. 3. [L. 2. tit. 29. P. 3.] It will be sufficient that the capacity exists in the attorney who may prescribe for the principal; in which case the bud faith of the former does not prejudice the latter, as we have already said, Ll. 13, and 14. tit. 29. P. 3. [Ll. 13, and 14. tit. 29. P. 3.] Mortgagee and lessee cannot prescribe, because they are in possession in the name of another, L. 4. tit. 15. lib. 4. Recop. [L. 1. tit. 8. lib. 11. Nov. Rec] 4th, Nor can one joint heir or co-partner prescribe against another, L. 5. tit. 15. lib. 4. Rec. [L. 2. tit. 8. lib. 11. Nov. Rec. 1

§ 5. Continued or uninterrupted possession is necessary to the acquiring the thing. By possession we understand the lawful possession (tenencia derecha) which a man has of things corporeal with the assistance of the body and mind, L. 1. tit. 30. P. 3. [L. 1. tit. 30. P. 3.

There are two sorts of possession; one natural, as when corporal possession is had of the thing, as of a house, an estate, &c., L. 2. tit. 30. P. 3. [L. 2. tit. 30. P. 3.], and the other civil, or by permission or sanction of law, as when a person goes out of or quits his house with an intention of not relinquishing it, then he is in possession by will (de voluntad), and this is as valid as though he were in corporal possession, L. 2. tit. 30. P. 3. [L 2. tit. 30. P. 3.] The possession of things incorporeal, as services (servidumbres), rights (derechos), &c., is proved by use and the sufferance of the owner, L. 1. tit. 30. P. 3. [L. 1. tit. 30. P. 3.]

22 No more, it is presumed, than he would acquire the mothers, in case they should have been obtained originally by theft or unlawful means. See L. 2. tit. 8. lib. 11. Nov.

Rec: and Azevedo, on L. 5. tit. 15. lib. 4. Rec. n. 17, 18.

23 See L 4. tit. 8. lib. 11., Nov. Rec.

Superfluous; does not bear.

§ 6. Every person of sound mind may gain the possession of things by himself or by another, duly authorised or empowered by him. Hence it is, 1st, That children acquire or hold possession for [98] their parents, and the attorney for his principal, Ll. 3. and 11. tit. 30. P. 3. [Ll. 3. 11. tit. 30. P. 3.] 2d, The guardian or curator for the ward or minor, the madman, and the spendthrift (degastador), L. 4. tit. 30. P. 3. [L. 4. tit. 30. P. 3.] The officer of the corporation (oficial del comun) of any city or town for the corporation whose officer he is, L. 4. tit. 30. P. 3. [L. 4. tit. 30. P 3.] 4th, Laborers and ploughmen who are tenants or lessees of any estate for the proprietor of it, Ll. 5. and 9. tit. 30. P. 3. [Ll. 5. and 9. tit. 30. P. 3.] 5th, He who should promise to hold possession of a thing for the person in whose name he promises to possess it, L. 3.25 tit. 30. P. 3. [L. 3. tit. 30. P. 3.] 6th, The friend or inn-keeper (huesped), &c., for him in whose name he has possession, L. 12. tit. 30. P. 3. Possession is is also gained by those modes which transfer dominion; of which various examples may be seen in Ll. 7, 8, 9, 10, 11, and 15. tit. 30. P. 3. [Ll. 7, 8, 9, 10, 11, and 15. tit. 30. P. 3.]

§ 7. As possession consists in corporally or mentally possessing (tenencia) the thing, it follows that the possession of personal property (muebles) will be lost, 1st, Always when the thing is reduced to that state in which it cannot be possessed corporally, nor by will (de voluntad), of which examples are given in Ll. 14. and 17. tit. 30. P. 3. [Ll. 14. and 17. tit. 30. P. 3.]; but in those cases the owner, although he loses the possession, does not lose the dominion, and therefore may recover the thing from the possessor, L. 14. tit. 30. P. 3. [L. 14. tit. 30. P. 3.] 2d, The possession of real property (cosas raices) is lost, if the possessor is evicted by force; if when he is not present, another enters on it and prevents his re-entry; and if, seeing that another enters on his property, he submits to it and does not drive out the intruder, L. 17. tit. 30. P. 3. [L. 17. tit. 30. P. 3]; but in neither of these cases does he lose the dominion.26

§ 8. No one ought to be dispossessed without a hearing, L. 2. tit. 15. lib. 4. Rec. [L. 9. tit. 8. lib. 11. Nov. Rec.], nor can the creditor of his own authority enter by force on the property of his debtor, but shall be obliged to pursue his remedy by another mode, as laid down by Ll. 5. and 6. tit. 15. lib. 4. Rec. [Ll. 2. and 5. tit. S. lib. 11. Nov. Rec.]; neither can the property of the deceased be taken possession of without the will of the heirs, nor the inheritance of one who is in the service of the king, L. 3. tit 15. lib. 4. Rec. [L. 3. tit. 8. lib. 11. Nov. Rec.]; but he who possesses the thing a year and a day in the face of the claimant or plaintiff, according to the custom of some cities, ought not to be compelled to answer with respect to the posses

25 Quare L. 5. ibid.

26 And he has his remedy at law, to expel the disturber or disseisor, and recover back possession. See L. 1. tit. 8. lib. 11., Nov. Rec.; and L. 10. tit. 29. P. 3., as to possession obtained by violence or robbery: also L. 3. tit. 8. lib. 11. Nov. Rec.; and L. 1. tit. 34, lib. 11., ibid.

sion, provided he have it27 with title and good faith L. 3. tit. 15. lib. 4. Rec. [L. 3. tit. 8. lib. 11. Nov. Rec.]

§ 9. Continued or uninterrupted possession for the time pointed out by the laws, causes prescription. Hence it follows: 1st, That possession being interrupted or impeded by any reason or cause, also interrupts or impedes prescription; so that in order to prescribe subsequently, the person must begin to possess anew, L. 29. tit. 29. P. 3. [L. 29. tit. 29. P. 3.] 2d, That prescription is interrupted by the interposition of a judicial demand, or even by a simple complaint, (querella,) and by a claim made before the neighbors of the [99] place where the house or property is situate; and if the possessor be a minor before his guardian, L. 29. and 30. tit. 29. P. 3. 3d, That if the debtor wishes to gain by time or prescription what he owes, and renews the obligation, or makes an acknowledgment of the debt, in this case the prescription is interrupted, L. 29. tit. 29. P. 3. [L. 29. tit. 29. P. 4.]

§ 10. The time in which things are prescribed, is comprehended under the two kinds of prescription, immemorial and temporal. The first is proved by witnesses of good fame or character, who depose to having seen the person in possession of the thing or property for forty years, and having heard their ancestors say that they never saw nor heard any thing to the contrary, L. 1. tit. 7. lib. 5. Rec.2 [L. 1. tit. 17. lib. 10. Nov. Rec.] By immemorial possession, the seignory or dominion of cities, towns, and civil and criminal jurisdiction, are acquired; but not that which kings possess by their pre-eminence and prerogative, nor taxes, nor tributes, L. 1. tit. 15. lib. 5. Rec., [L. 4. tit. s. lib. 11. Nov. Rec.,] which ought to be taken as an exception to what we have before said. Neither by it are duties (alcabalas) prescribed, although the doing so may have been tolerated or permitted, L. 2. tit. 15. lib. 4. Rec. [L. 9. tit. 8. lib. 11. Nov. Rec.] Nor is the right to raise or levy taxes or impositions acquired, L. 8. tit. 15. lib. 4. Rec. [L. 7. tit. 8. lib. 11. Nov. Rec.] It may be remarked, that the right of prescription, as to dominion or property, is interrupted by the interruption of possession, L. 7. tit. 15. lib. 4. Rec. [L. 6. tit. 8. lib. 11. Nov. Rec.]

§ 11. Temporal prescription is confined or limited to a certain number of years. To this sort belong, 1st, The limitation of a year, in which the claim to the penalty incurred by judicial bail for not producing the person bailed, is prescribed, L. 10. tit. 16. lib. 5. Rec. [L. 1. tit. 11. lib. 10. Nov. Rec.] 2d, The prescription of three years, in which personal property is acquired,29 Ll. 15. and 17. tit. 29. P. 3., [Ll. 15. and 17. tit. 29. P. 3.,] and the salaries or wages of apothe

27 See L. 3. tit. 8. lib. 11. Nov. Rec. ad fin.

29 See also L. 5. tit. 8. lib. 11. Nov. Rec.

29 See the exception in the case where such property is mortgaged or pledged, in L. 17. tit. 29. P. 3.: and see also the cases in L. 1. tit. 8. lib. 11. Nov. Rec., in which plea of prescription cannot be set up.

caries, spice venders, and other tradesmen, or mechanics,30 in respect of their wares and work, L. 9. tit. 15. lib. 4. Rec.; [L. 10. tit. 11. lib. 10. Nov. Rec.;] and the fees (salarios) of advocates and solicitors are prescribed, L. 32. tit. 16. lib. 2. Rec. [L. 9. tit. 11. lib. 10. Nov. Rec.] 3d, The prescription of ten years, in which real property (las raices) is acquired among persons present, L. 18. tit. 29. P. 3.; [L. 18. tit. 29. P. 3.;] and in which the executive action is barred, L. 6. tit. 15. lib. 4. Rec. [L. 5. tit. S. lib. 11. Nov. Rec.] 4th, That of twenty years, which prescribes the right of absent persons to real property, L. 18. tit. 29. P. 3., [L. 18. tit. 29. P. 3.,] and the personal [100] action and execution (executoria) granted thereon, L. 6. tit. 15. lib. 4. Rec.31 [L. 5. tit. 8. lib. 11. Nov. Rec.] 5th, That of thirty years, in which property generally is acquired, ven without good faith; with the difference, that in case of there being good faith, if

30 Of any servants, adds Palacios, if they have not demanded from their employers their wages within three years after they quitted their service.

31 Great doubt, and some obscurity, have been thrown upon the effect of this law, as it regards the prescription of personal actions, and the execution (executoria) granted thereon, in consequence of the conflicting specalations and opposite conclusions of the learned commentators. The first part of the law prescribes the right of execution, on a simple obligation, in ten years, and then proceeds to say, "y la accion personal y la executoria dada sobre ella se prescriba por viente años, y no menos," but extends the period of prescription to thirty years in the case of a mortgage or hypothecary security, or in that where the obligation is mixed, being personal and real. The doubt started is, whether the right of execution granted on a sentence, declared a case adjudged "eosa juzgada," arising out of a personal action, is prescribed by ten years' silence, or whether it is entitied to the full extension of the twenty years allowed for the prescription of the original action itself, without reference to the time that may have elapsed between the date of the cause of action, and the obtaining the sentence; supposing, of course, it did not exceed the entire limited duration of the prescription. Supporters of both opinions are found amongst the most learned annotators on the laws of Spain, and it may perhaps be considered presumptuous in the translator of this work to pretend to solve the doubt raised on the occasion; but he hopes he may be permitted to offer some observations on the point, without subjecting himself to such a charge. The noble and learned author of the Practical Institutes on Civil Actions, el Conde de la Cañada, P. 2. ch. 13. p. 464. N. 34., in referring to this dispute of commentators, has pronounced in favor of those who have advanced the second doctrine. With due submission, however, to so justly respected an authority, the opinion the noble writer has espoused, does not appear correct: but it would seem, the law meant the prescription of a personal action to begin to count from the time the cause of action itself arose, and to bar or limit the party's claim, including his right to proceed executively thereon, after the conclusion or adjudication of sentence in the ordinary process, in the prescribed term of twenty years. The law evidently intended to place a mortgage, or hypothecary convention or obligation, upon a higher footing than a mere personal action, unsupported by such a highly considered security; which, from its public nature, in the mode of registry required by the Spanish law for its validity, warned the public of the debt due by the debtor, and of the security possessed by the creditor. Now, if this were not the case, and it had been intended by the law under consideration to give this much favored security no advantage over a mere personal action, as to its prescription, any provision or notice with regard to the time for prescribing a mortgage was superfluous. But if the opinion of the writers, to which the noble and learned author adverted to has given his sanction, were to be adopted, a naked, silent, personal action would be on an equal footing with a public registered mortgage; for a party suing out an execution on a judgment confessed or awarded in a personal cause adjudicated, by the expiration of ten years, might claim the benefit of twenty more years of silence or inactivity, without the plea of prescription being available against him, and thereby secure to himself altogether as long a sanction for forbearance or negligence, as if his demand had been originally founded on mortgage. It is, however,