The justa causa, then, which must accompany tradition, is the animus or voluntas transferendi dominii, and this, apparently, is given as the whole of the matter in a passage of Gaius quoted in the Digest: Hae quoque res, quae traditione nostrae fiunt, jure gentium nobis acquiruntur; nihil enim tam conveniens est naturali aequitati, quam voluntatem domini volentis rem suam in alium transferre ratam haberi, Dig. 41, 1, 9, 3. Tradition is a natural mode of acquisition, for it is a plain dictate of reason that the will of an owner to transfer his ownership to another should be allowed to take effect.'

Delivery sometimes precedes the intention to transfer, for instance, in a conditional sale: in which case the transfer of property is suspended until the condition is fulfilled.

The transferee may be an incerta persona; for instance, when money is scattered among a mob by a praetor or consul (missilium jactus), Inst. 2, 1, 46.

Herein Dominion (jus in rem) differs from Obligation (jus in personam). When an Obligation is created, the payee or creditor or person on whom a right is conferred, cannot be incerta persona; at least jurisprudence had not recognized an obligation or personal right vested in incerta persona before the invention of papers payable to the holder or bearer: and here the admissibility of incerta persona as creditor is effected by the introduction of jus in rem into jus in personam. The incorporeal obligation (jus in personam), is, as it were, incorporated in a document, a subject of ownership (jus in rem), and ownership of the document is deemed to be investiture with the obligation. The emission of the Obligations (papers) now resembles the jactus missilium; the bank, company, or government, that issues the obligations, treats detention of the document as presumptive evidence of ownership, and discharges its obligation by paying whoever presents the paper for payment. In these contracts the payee, promisee, or creditor, is only defined by the class term 'bearer' or 'holder,' i. e. is an incerta persona, individually unknown to the debtor before the moment of presentation.

One act of assent may suffice as the antecedent to many acts of prehension; for instance, in the severance and consequent acquisition (perceptio) of fruits by a lessee (colonus) or usufructuary. Here the delivery (apprehension) occurs from time to time; the will or intention of the original proprietor was manifested once for all when he created the usufruct or lease.

In one case the operation, even of contract and delivery combined, is limited by the Twelve Tables, namely, in Sale. Here it is provided that tradition shall not operate a transmutation of property without a further condition-payment of the purchase money, unless the sale is intended to be a sale on credit, Inst. 2, 1, 41.

Tradition in Roman law was never fictitious; it was always an actual delivery of a power of physical or corporeal control. In English law, indeed, conveyance by a deed under the Statute of Uses is said to transfer possession; but this is impossible: the physical fact of possession can no more be produced by writing on a parchment, than ignition, or explosion, or chemical decomposition can be produced by writing on a parchment, or by any other than its appropriate antecedent. The possession conveyed by assurance under the Statute of Uses is merely a fictitious possession; and instead of saying that the deed passes possession, it would be nearer the truth to say that, in respect of a conveyance under the Statute of Uses, all those parts of the law are deemed to be expunged which make the rights and duties of the alienee dependent on possession. For a further examination of the nature of Possession, see 4 § 149.

§ 66-69. Occupation gives property in a thing which previously has no proprietor. Quod enim ante nullius est, id naturali ratione occupanti conceditur, Inst. 2, 1, 12. If a thing had already an owner, it is only after dereliction by him that it can be appropriated by occupation. Dereliction, or renunciation of property, requires both the intention to abandon it and an external action. Thus the casting overboard of articles in a tempest to lighten a ship is not dereliction, as there is no intention of abandoning the property in the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of property without a throwing away or removal or some other external act; and herein dereliction of property differs from dereliction of possession, which does not require this second element. Differentia inter dominium et possessionem haec est quod dominium nihilo minus ejus manet qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere, Dig. 41, 2, 17. There is this difference between dominion and possession, that dominion continues after the will to own has ceased, whereas possession ceases with the cessation of the will to possess."

§ 68. Among wild animals (ferae naturae) a distinction is to be drawn. In those of them that are half tamed (mansuefactae), among which are mentioned deer, peacocks, pigeons, bees, property is not limited by detention, as in other wild animals, but by animus revertendi. A migrating swarm (examen) of bees, accordingly, would only continue to belong to the owner of the hive as long as it continues in his sight and is easy to recapture, as it has no intention of returning. In tame animals, e. g. dogs or geese, the rights of the owner are not extinguished by their straying without an intention to return.

$70-78. The intimate conjunction of two things, so that they are no longer separable and restorable to their former condition, produces a transmutation of property. A separable junction (commixtio), as when two flocks of sheep are intermingled, or when a stone is set in a ring, or when two metals are soldered together (plumbatura) or are fused but may be chemically separated, produces no change of property. In one case, however, namely, when material has been used in building a house or cultivating a vineyard, although the property of the owner continues, the Twelve Tables deprive him of the right to demand its separation by real action (vindicatio), and only allow him to bring the action de tigno juncto aedibus vel vineae and recover double the value.

An inseparable union sometimes produces co-ownership in the whole (condominium or communio), sometimes the exclusive ownership of one of the parties (accessio).

When two things belonging to different owners are mixed without producing a new species (confusio), nor the relation of principal and accessory, e. g. when two similar wines or metals are mixed, or when a new species is produced with the consent of both owners, as when mead is produced by mixing honey and wine, electrum by mixing gold and silver, then each owner loses his separate ownership of a part, and becomes joint owner of the whole.

When a new species is produced by one owner without the consent of the other, then the exclusive ownership is vested in the producer, and the other can only obtain redress for loss of his ownership.

Further, when the mixture establishes the relation of principal and accessory, that is, when one thing loses its independent existence and becomes a part of the other (accessio), then the property in the whole is vested in the proprietor of the dominant part;

e. g. the property in the ship follows the property in the keel, proprietas totius navis carinae causam sequitur, Dig. 6, 1, 61. It will sometimes be a question which part is to be regarded as principal and which as accessory, and the solution does not always depend on their comparative value. Sometimes the relation of sulstance and accident prevails, for instance, in a tapestry the property in the embroidery follows the property in the wool. Sometimes the comparative value decides; for instance, the property in the canvas follows the property in the painting: and this seems more rational, though Gaius appears to think that a picture ought to be governed by the analogy of a manuscript, where the property in the writing follows the property in the paper.

§ 78. The remedy of the ex-proprietor of the accessory is an in factum actio (4 § 46), Dig. 6, 1, 33, 5. Ulpian, Dig. 6, 1, 5, 3, speaks of a real action (utilis in rem actio), which, as a real action implies that the plaintiff is proprietor, seems to mean a Fictitious action, 4 § 34, i. e. one whose formula feigns that the property was never devested by Accession. This may be what Gaius means by utilis actio.

§ 79. Specification or labour is a title distinct from Accession, though similar. Here one person contributes only his labour, whereby he transforms the material or materials belonging to another into a new product (nova species). The Sabinians held that the product belonged to the owner of the matter, the Proculeians to the producer of the form. Justinian adopts an intermediate opinion, which Gaius mentions, Dig. 41, 1, 7, 7, that the product belongs to the producer, provided that it cannot be reduced to the original substance, in which case it belongs to the owner of that substance; e. g. a vessel belongs to the owner of the gold or silver out of which it was made: and provided further that the change is a genuine fabrication or manufacture; for instance, the mere thrashing out of corn is not sufficient to change the ownership, and therefore the corn belongs to the owner of the sheaves.

DE PUPILLIS AN ALIQUID A SE

ALIENARE POSSUNT.

§ 80. Nunc admonendi sumus neque feminam neque pupillum sine tutoris auctoritate rem mancipi alienare posse; nec mancipi

WHETHER WARDS CAN

ALIENE.

§ 80. We must next observe, that neither a woman nor a ward can aliene a mancipable thing without their guardian's authority a

vero feminam quidem posse, pupil- ward cannot aliene a non-manciplum non posse. able thing without the guardian's authority, a woman can.