transfer of ownership is accomplished. The hirer, by purchasing the § 50, thing he had hired (brevi manu traditio), acquires a different power over the thing from that which he had before. There is no exception to the rule that traditio can never pass ownership, unless there is both a contractual agreement concerning the transfer of ownership, and an execution of this agreement by means of a transfer of the actual possession (viz. the juristic possession, inf. § 54). On the other hand, it is of course also a rule that ownership can never pass by the bare delivery of a thing (e. g. for safe custody, or by way of loan for use), a bare delivery being, legally speaking, no traditio at all. No delivery can be a traditio in the legal sense, unless it is accompanied by an intention to transfer ownership, an intention which is expressed, as a rule, by some juristic act (the so-called 'causa traditionis '), which precedes the traditio; for example, by a contract of sale. L. 20 pr. D. de A. R. D. (41, 1) (ULPIAN.): Traditio nihil L. 20 C. de pact. (2, 3) (DIOCLETIAN.): Traditionibus et usuca- II. Legacy. A legacy is a derivative mode of acquiring ownership in so far as a testator is able, by his last will, directly to convey his property in ownership to another person in the form of a legacy. The legatee need not actually take possession of the thing, for as soon as his right to the legacy becomes enforceable (dies legati venit), he becomes at once, ipso jure, without any act on the part of the heir, owner of the thing which the testator has directly bequeathed to him in ownership, provided only-and this is why it is a derivative acquisition that the testator himself was the owner or, at any rate, had power to dispose of the ownership. Inf. § 102. $ 50. III. Adjudicatio. Adjudicatio is the award of a judge in a partition suit. The common use of common property-as when several children are co-heirs of their father-does not always suit the interests of the co-owners. A partition may be effected amicably, by agreement. Failing this, a suit for partition becomes necessary. The object of partition proceedings is to convert co-ownership into sole ownership for the purpose of separating the co-owners. This may be done either by physically dividing the thing, i. e. by dividing it into several things, and awarding to each of the previous co-owners sole ownership in one of the new things1; or it may be done by awarding to one of the co-owners the whole thing in sole ownership, subject to a duty on his part to pay pecuniary compensation to the other co-owners 2. In both cases the object is to effect a transfer of ownership, a transfer, namely, of the co-ownership to which the other condomini were entitled in the same thing. This transfer, which converts the person in whose favour it is effected into a sole owner, may, as we said, take place without any judicial proceedings, if the co-owners come to an agreement with one another on the matter. In that case traditio is required, i. e. the co-owners must mutually transfer possession to one another. But if an amicable arrangement fails, the transfer can be brought about by legal proceedings, viz. by a partition suit. In that case it is accomplished by the verdict of the judge, the award or 'adjudicatio,' which operates to change ownership without transferring possession, provided only that the other party to the suit was really a co-owner. The judicial adjudicatio transfers the co-ownership of one litigant to the other. My adversary in the suit whose right of ownership the judge awards to me, is my 'auctor.' Thus, like the preceding modes of acquisition, adjudicatio is derivative, because it depends on the auctor's right of ownership. It is hardly necessary to warn against confusing an adjudicatio, a judicial award in a partition suit, with the judgment in an action of ownership. Such a judgment acknowledges the plaintiff to be 1 This can only be done with 'divisible' things, sup. p. 228. 2 This is what happens in the case of 'indivisible' things. owner as against the defendant (the non-owner), who had been with- § 50. holding the property from the plaintiff. The force of a judgment in a rei vindicatio is purely declaratory, declaratory, namely, of a preexisting right, and its only effect is to debar the defendant-by means of the exceptio rei judicatae (sup. p. 210)-from further disputing the plaintiff's right by legal proceedings. But the force of an adjudicatio in a partition suit is to constitute a right. Its effect is to invest me with a right of ownership which I had not before, viz. the co-ownership of my adversary, the condominus; the result being that I, who was only co-owner before, am now converted into a sole owner. Adjudicatio is thus a mode of acquiring ownership, like traditio, &c. ; a judgment in a rei vindicatio, on the other hand, is not a mode of acquiring ownership, but only a mode of protecting a right of ownership which has been acquired from a different source. § 7 I. de off. jud. 4, 17: Quod autem istis judiciis (divisoriis) alicui adjudicatum sit, id statim ejus fit, cui adjudicatum est. § 51. The Acquisition of Ownership. B. ORIGINAL ACQUISITION. Modes of acquiring ownership are called 'original,' when they § 51. result in the independent creation of a new right of ownership, when their effect, therefore, is independent of the ownership of a definite third person. A person who acquires by an original mode, has no auctor. I. Occupatio. Occupatio is the most primitive of all modes of acquisition. It consists in taking possession of a thing which belongs to nobody, with the intention of becoming owner of it. Res nullius occupanti cedit. The following may be objects of occupatio: wild animals, shells or stones on the sea-shore, derelicts, and so forth. Derelictio is the opposite of occupatio. It takes place when a person abandons the possession of a thing with the intention of § 51. abandoning the ownership of it, e. g. when I throw away the peel of an orange after eating the orange. The effect is to make the thing a res nullius the moment the abandonment of possession is physically complete. Anyone may therefore 'occupy,' and acquire ownership in, res derelictae. There is of course a difference between derelict property and lost property. When we lose property, we part with it involuntarily. It is only the actual control of the thing that we lose, not the ownership of it. The thing is not a res nullius, but a res alicujus, and does not therefore admit of occupatio. The finder, so far from becoming owner of the thing, is bound, not only to keep and preserve it, but also to do what in him lies (e.g. by reporting his find to the police) to have the thing restored to its owner. On the other hand, however, treasure trove ('thesaurus') is treated as a res nullius. Thesaurus, in the legal sense, is an object of value, which has been hidden for a very long time, so that the owner is at present unknown. Half the treasure goes to the finder (the 'occupans '), the other half to the owner of the land in which it was found. As to hostile property, the rule in Roman law was that it admitted of occupatio, as soon as it came within Roman territory, but that, when it returned to the enemy's country, it reverted at once by the jus postliminii to its former owner. And, conversely, Roman property which returned from the hands of the enemy to Roman territory reverted at once to its Roman owner. § 12 I. de rer. div. (2, 1); Ferae igitur bestiae et volucres et pisces, id est omnia animalia, quae in terra, mari, caelo nascuntur, simulatque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim ante nullius est, id naturali ratione occupanti conceditur. Nec interest, feras bestias et volucres utrum in suo fundo quisque capiat, an in alieno. Plane, qui in alienum fundum ingreditur venandi aut aucupandi gratia, potest a domino, si is providerit, prohiberi, ne ingrediatur. § 18 eod. Item lapilli, gemmae et cetera, quae in litore inveniuntur, jure naturali statim inventoris fiunt. II. Usucapio. § 51. By usucapio, or prescription, we mean the acquisition of ownership by continuous possession. Usucapio is one of those limitations which ownership is compelled to impose on itself in the interests of its own safety. All security would cease, if a right of ownership could be asserted, without any limitations, for all time to come. There must be some moment at which the previous owner ceases to be owner, as against the present bona fide holder, and at which the bona fide holder becomes legally as well as practically the owner. The law of usucapio determines this moment. There is yet another element. If an owner is forced to assert his title as against a third party, by means of an action at law, he will be obliged to prove his title. He himself may have acquired his property by traditio from the person previously in possession. That, however, is not sufficient to prove that he is owner. For traditio is a derivative mode of acquisition, and his predecessor (who is here his auctor) could only make him owner, if he (the auctor) was owner himself. A further necessity would therefore arise of proving the title of his predecessor. But the title of the latter may also be merely derivative; he may also have acquired his property (say, a house) by sale and traditio. This would carry us back to the predecessor's predecessor, and so forth-a process which might be continued ad infinitum. It is therefore simply impossible to prove a right of ownership on the strength of a derivative title alone, Hence the necessity of supplementing the derivative title by an original one. This original title is usucapio. There is no need for me to trace back the titles of all my predecessors. It is enough if I can prove that I acquired the thing bona fide, that I possessed it for a certain period, and that consequently I should, in any case, have acquired it by usucapio, even supposing the traditio itself had not been sufficient to make me owner. The purpose of the rules concerning usucapio is to make derivative titles, such as traditio, indefeasible after a certain time, and to render them independent of all previous titles. Thus the necessity for a title by prescription, the necessity, in |