517 



USXEIX. 



USURPATIO. 



of a corporate charity, a visitorial jurisdiction arises of common right 

 to the founder and his heirs, whether he be the king or a private 

 person, or to those whom the founder has appointed for that purpose ; 

 and the office of visitor is to determine the differences of the members 

 of the society, and to superintend generally the government of the body, 

 in accordance with the statutes originally propounded by the founder. 

 With this visitorial power the Court of Chancery has nothing to do, 

 its right of interference being confined entirely to the administration of 

 the property. When the charity is of royal foundation, the visitorial 

 power of the king is exercised by the lord chancellor as his repre- 

 sentative ; and even where the founder of the charity was a private 

 person, if he has made no appointment of a visitor, and if his heir 

 cannot be discovered, or has become lunatic, the visitorial power, 

 rather than that the charity should not be visited at all, results to the 

 crown, and, as in the case of royal foundations, is exercised by the 

 lord chancellor. The mode of application in these cases is not by way 

 of information, but by petition addressed to the Great Seal. 



Certain restrictions have been put upon the power of making gifts 

 of property to charitable uses by the 9th of Geo. II., c. 36, commonly, 

 though improperly, called the Mortmain Act. By it devises of land 

 and bequests of money to be laid out on land or in any interest in 

 land are declared void. For an explanation of the provisions of this 

 act, see MORTMALX. 



U8NKIN. [LiciiESs, COLOUHIXG MATTERS OF.] 



U.-SXIC ACID. [LICHKSS, COLOURING MATTERS OF.] 



USUCAPIO. Gaius (ii. 40-42* states that if a Res Mancipi was 

 transferred by bare tradition, without the forms of Mancipatio or in 

 Jure Cessio, the original owner retained the Quiritarian ownership, and 

 the person to whom the thing was transferred had only the right to 

 the enjoyment of the thing until by possession he had acquired the 

 ownership (pos&idendo usucapiat). For the effect of such enjoyment 

 was to give him the same rights with respect to the thing as if it had 

 been transferred in due legal form. In the case of nioveables the 

 Twelve Tables fixed one year as the term of Usucapio ; in the case of 

 land and houses, two years. The acquisition of the Quiritarian 

 ownership of a thing by enjoyment of it under the circumstauces above 

 stated for these several periods was called Usucapio. 



Gaius states that there might also be Usucapio in the case both of 

 things Mancipi and things Nee Mancipi which had been transferred by 

 bare tradition from a person who was not the owner, provided the 

 transferee received them in good faith (bona fide), or, ;n other words, 

 believed that he received them from the owner. It teems probable 

 that this rule of law was established by analogy to the rule of the 

 Twelve Tables as to Res Mancipi which had been transferred by 

 defective modes of conveyance. But the Twelve Tables may have fixed 

 only the time of Usucapio : the origin of Usucapio may be anterior to 

 the Twelve Tables. 



When Gaius wrote (in the second century of our sera), Usucapio, as 

 it appears, had become a regular mode of acquiring ownership ; for 

 property of all kinds might be so acquired which had been received by 

 tradition and bona fide from a person who was not the owner. The 

 case of things stolen, or the possession of which had been acquired by 

 violence (vis), was an exception, for even if received bona fide they 

 could never become the property of the receiver by Ueucapio. The 

 Res Mancipi of women alto, who were in the tutela of their agnati, 

 could not be object* of Usucapio unless they bad been received from 

 her by traditio with the proper consent (auctoritasi of her tutor : and 

 the'hereditae of a woman who was in tutela legitima could not be an 

 object of Usucapio. As land (fundus) could not, according to the 

 best opinion, be an object of furtum, a bona fide purchaser of kind 

 from a man who was not the owner, and knew he was not the owner, 

 might acquire the property of it by Usucapio, provided the seller had 

 not acquired the possession by violence, but had either taken possession 

 of land which was vacant through the carelessness of the owner, or 

 from the owner dying without a successor, or having been long absent. 



Besides individual objects of property, Usucapio could exist in the 

 case of Servitutes, and marriage, and in the case of an Hereditas. 

 Originally such Servitutes as followed the rule of law as to Res Maneipi 

 could only be transferred like Res Mancipi ; and therefore Usucapio 

 could only apply to such Servitutes. But by analogy to Rea Mancipi, 

 they could be acquired by bare contract, to which I'sucapio was super- 

 added ; and when Mancipatio at a later period was replaced by bare 

 tradition, they could be acquired by contract simply. In the case of 

 marriage, when there was no co-emptio, the woman might come into 

 the power of her husband by virtue of uninterrupted cohabitation for 

 one year ; and she was then said to become a part of his Familia by 

 Usucapio founded on a year's possession. (Gaius, i. 111.) In the case 

 of the Hereditas, when the testator had not disposed of his property 

 by the necessary forms of the Mancipatio and JSuncupatio, the person 

 who was named here* in the will could only acquire his legal title as 

 such by Usucapio. 



These various instances will show the original notion of Usucapio. 

 It was a legal effect given to bona fide possession and enjoyment for a 

 fixed time, by mean* of which defects in the transfer of a thing were 

 made good : it was not originally a mode of acquisition. It was 

 founded on a title good in substance, but defective in form ; and this 

 defect was supplied by the proper period of enjoyment (usus). When 

 this usus had continued for the legal time, it gave its auctoritaa (at 



the Romans expressed it), its efficiency and completeness to what was 

 in its origin incomplete ; and the phrase Usus Auctoritas was older 

 than the expression Usucapio, which was afterwards the ordinary term. 

 But Usus by itself never signified Usucapio ; for Usus alone could not 

 give a title to the ownership of a thing. In the case of public land 

 the possessor had the usus, but this was all that he could be entitled to 

 as possessor. Such usus could not from the nature of the case have 

 an auctoritas, for the possessor did not occupy the public land as a 

 bona fide purchaser. A man might also have the usus of private land 

 without having a title to anything further : in which case also the usus 

 could never have an auctoritas. In the Roman law, as known to us in 

 the Pandects, Usucapio appears as a mode of acquisition, which must 

 have been owing to the circumstance of Mancipatio ceasing to be re- 

 garded as important : for bare tradition in all eases, followed by the 

 proper usus, gave complete ownership. Finally, when the difference 

 between Res Mancipi and Nee Mancipi was abolished, Uaucapio in its 

 original sense ceased. But as in the time of Gaius we tind Usucapio 

 applicable to the case of things Nee Mancipi, which a person had 

 possessed bona fide, this rule of law still continued, and various limita- 

 tions were in course of time established as to the mode of acquiring 

 the ownership of a thing by the enjoyment of it. Thus Justiuiau, in 

 his ' Institutes ' (ii., tit. 6), after reciting the old law, refers to one of 

 his Constitutions, by which the ownership of moveables might be 

 acquired by use (usucapiantur), provided there was a bona fide possession 

 (justa causa possessions pnecedente) for three years, and that of im- 

 movable things by the " longi temjioris possessio," which he explains 

 to be ten years " inter prsesentes," and twenty years " inter absentes ; " 

 and the Constitution applied to the whole empire. Usucapio is defined 

 in the 'Digest' (4 1,3,3) to be the "addition of ownership by the 

 uninterrupted possession for a time fixed by law." As it was the addi- 

 tion of ownership, something is -here implied to which this addition 

 was to be made ; and this something was a bona fide possession. 



The subject of Usucapio admits and requires a much more complete 

 exposition. The reader may refer to the following works : Engelbach 

 ' Ueber die Usucapion zur Zeit der zwblf Tafeln," Marburg, 1823; and 

 Muhlenbruch, ' Doctrina Pandectarum.' 



USUFRfCTUS, or USUSFKUCl'US, and USUS, belonged to the 

 class of Servitutes Personanim among the Romans. Ususfructus is 

 defined (' Dig ,' ?, 1, 1) to be ' the right to use and take the fruits 

 (fruendi) of what belongs to another without impairing its substance." 

 Usus is defined ( Dig.,' 7, 8, 1, 2) to be the right " to uae, but not to 

 take the fruits (fruii." 



The objects of ususfructus might be land (fundus), houses (sedes), 

 slaves, beasts of burden, and other things. He who was entitled to a 

 Ususfructus was called Usufructuarius, or Fructuarius. A right to a 

 Ususfructus might be given to a person by testament, or it might be 

 established by contract. 



Generally, it may be stated that all the " fructus," or produce of a 

 thing that accrued during the time of enjoyment, belonged to the 

 Fructuarius ; but his title to fructus was not complete till he had 

 taken them, and it was a general rule that any ' fructus" which had 

 not been got in or taken at the time when the Ususfructus ceased did 

 not belong to him. The law as to things that yield an increase, such 

 as fruit-trees and animals, did not present many difficult questions. As 

 to houses and lands, the questions were sometimes more difficult The 

 Fructuarius was entitled to the rents and profits of houses during his 

 time of enjoyment, and he was bound at least to keep them in suffi- 

 cient repair, but probably not to rebuild them, if they were in a 

 ruimm.1 condition. He was bound to- cultivate laud in a proper 

 husbandlike manner. He could work existing mines and quarries for 

 bis benefit, and he could also open new mines and work them. The 

 FructuariuK could maintain his rights to the ususfructus by actions and 

 interdicts. The period of usustructus might either be for a fixed 

 time or for the life of the Fructuarius. At the termination of the 

 period of enjoyment, the thing was to be given up to the owner, who 

 could generally require security for its being properly used and given 

 up in proper condition. 



The usus of a thing, as already explained, was a right to the enjoy- 

 ment of a thing, but not to the produce or profits of it. Yet in some 

 cases the usus of a thing implied a right to a certain amount of pro- 

 duce. Thus the usus of cattle implied that the usuarius was entitled 

 to a moderate allowance of milk ; and a mail who had the usua of 

 an estate could take wood for his daily use, and could enjoy the 

 orchard and other things in moderation. If a man had the usus 

 of oxen, he could employ them for all purposes for which oxen are 

 properly used. The duties of the usuarius resembled those of the 

 fructuarius. 



The rules of law which related to the ususfructus and usus were 

 numerous. Many of them are collected in the ' Digest,' lib. 7 ; see also 

 ' Fragmenta Vaticana,' ' De Usufructu ; ' and Muhlenbruch, ' Doctrina 

 Pandectarum.' 



USURPATIO is sometimes used by the Roman jurists in the sense 

 of interruption of Usucapio. But the verb " usurpo " and its deriva- 

 tives are commonly used in the sense of ' using," or ' employing," in 

 any way that is suitable to the character of the object used or em- 

 ployed. The [wrticiple " usurpatus " sometimes signifies the acquisi- 

 tion of a right by use : thus " usurpatam mulierern " (according to 

 the ordinary reading in tiellius, iii. 2) means a woman who had come 



