It was fictitiously assumed that the prescription was already completed, and that, consequently, the possessor who had just lost possession was the original and true owner.

It is to be remarked that the possession necessary to found a prescriptive claim might be that of a third person in the name of his principal. If this agent was a free person (libera persona), the time only began to run from the principal's first knowledge of the fact of possession. If the agent was someone in the principal's power, the time began to run independently of the principal's knowledge (statim vel ignorantes usucapiunt).

(3) TRADITION.

For the purpose of voluntary alienation, the old modes. of conveyance by fictitious sale (with scales and seven witnesses, mancipatio) and confession of judgment (in jure cessio) had partly become obsolete, and had partly been formally abolished in Justinian's time. The only mode of formal alienation of rights of ownership was the actual or presumed passing of the substance of the thing by delivery from hand to hand (traditio). If the thing to be conveyed was already in the possession of the transferee, when the other conditions were fulfilled a mere signification of will sufficed to convert the possession into ownership. This has been called traditio brevi manu, in contrast to traditio longâ manu, which implied actual transfer.

C. 43, § I, D. (xxiii. 3). L. 79, D. (xlvi. 3).

Tradition implied a mental intention in both the giver and receiver and a physical transfer either of the thing or of part of it, or of a material symbol of the thing as representing the whole. Not that generally mere tradition alone, however complete and regular, sufficed to pass rights of ownership. This was exemplified in the case of sale and gifts.

In the case of a sale, the sale as a contract binding on both parties is complete as soon as the price is agreed to L. 17, C. (iv. by both parties, unless it belongs to the class which must be in writing, when the sale is not

21).

But

complete till this condition is fully complied with. the right of ownership in the thing sold is not passed till the price is paid, or security given for the payment of it. Gifts might either be purely voluntary, or be made in contemplation of death, or by reason of a subsisting marriage.

In the case of purely voluntary gifts, if they exceeded five hundred solidi (amended from two hunL. 35, § 5, C. dred solidi under emperors before Justinian), the (viii. 54). tradition was not legally complete and effective till it had been publicly registered (insinuari actis intervenientibus). A check was thus imposed on improvident donations, and in the case of ingratitude the transaction might be annulled.

Gifts in contemplation of the donor's death were null and void if death did not take place as apprehended, or if the receiver died first, or if the giver repented of his generosity. When they took effect they were treated in law in all respects as legacies.

Gifts made by reason of marriage were, in Justinian's time, named propter nuptias, thereby including gifts made by the husband other than dower before the marriage for the purpose of the marriage, and gifts made during the marriage for the purpose of increasing the dower.

(4) OPERATION OF LAW.

In a certain limited class of special cases acquisition took place by mere operation of law, that is, without any concurrent act of either of the parties or of a magistrate.

(a) In case of the adoption of one not already in anybody's power (arrogatio), of the property of the adopted so much only passed to the adopter as would belong to the natural parent if the adopted had been in his power. If the adopted person were under age, security had to be given to a public official that the adopter would restore all the property of the adopted to those who would have succeeded to it, had the adoption not taken place.

3 J. (i. 11).

* A solidus an aureus about £1 Is. See Smith's Antiq.

=

(b) By way of penalty for the defaults or misdoings of an owner. Thus, in case of fraud on the public treasury, the property in the thing fraudulently appropriated or dealt with passed to the treasury. So if a husband, on a second marriage, wrongfully appropriated or alienated property included in the dower given on his first marriage, that property passed to the children of the first marriage.

(c) If a co-proprietor of tenements refused to contribute his share towards the expense of necessary repairs, he forfeited his rights of ownership in favour of the proprietor who effected the repairs. But for the full accomplishment of the transfer, it would seem that a judicial proceeding, as that of a suit for partition (de communi dividendo), was required, and so this mode of acquisition would properly belong to the next head, of Adjudication. So if deserted his land for two years, and another occupied and cultivated it and paid the State dues on it, he became the owner of it.

See Wind

scheid in loc.

an owner

L. 2, C. (xi. 58).

(d) In certain cases by way of security or of substitute for the performance of an obligation. Thus, a woman acquired the ownership of anything included in her dower which was wrongfully alienated by her husband; a pupil, in things purchased by his tutor out of the trust funds; a soldier, in things purchased with his money by some one else.

(5) ADJUDICATION, OR JUDICIAL SENTENCE.

Besides the general cases of transfer by mere decision of disputed claims, rights of ownership passed as a direct and immediate consequence of a judicial sentence in the following special cases :

(a) On an action for partition (de communi dividendo) or for making a family arrangement so as to carry a will into effect (familiæ erciscundæ actio), or for settling boundaries (finium regundorum).

(b) In the case of money borrowed on a pledge and not paid at the time promised, after all the legal periods of delays in favour of the debtor had elapsed, the proper notice given, the sale duly advertized, and-where the

security had not been originally imposed by a court of law -the requisite imperial license obtained, the property in the pledge passed at once to the creditor, subject to his making good to the debtor all losses by the transaction beyond the bare amount of the debt.

C. (viii. 34).

(c) In the case of one owning a tenement in a condition dangerous to a neighbour and refusing to give security that he would make the proper repairs (cautio damni infecti). The prætor in this case conferred a possessory right on the neighbour or other person liable to be injured, and who in vain had sought for security. This right only ripened into ownership if the owner, after due notice and warning, continued to neglect the prætor's order to repair. At the prætor's discretion the possession was converted into full ownership.

§ 4.-Modes of protecting rights of ownership.

The subject of the modes of protecting rights belongs chiefly to the topic of procedure, under which it will be treated. But as the nature of the procedure resorted to often depends on the quality of the right, it is proper in this place to point out the classes of remedies provided for the protection of the main classes of rights of ownership. Arranged in order of efficacy, the remedies in use were :

(1) Interdicts, or rather their later substitutes.

(2) "Real" actions for the recovery of the thing detained or for the actual enforcement of the right violated or menaced.

(3) "Personal" actions for compensation for detention of, or injury to, a thing.

J. (iv. 3).

(4) "Penal" actions for aggravated injuries to things owned by the person bringing the action as under the lex Aquilia, according to which damages to a slave or cattle were estimated at their highest value during the year.

Of these remedies the interdicts were the most effective,

and seemed to have at last absorbed all the others, as will be explained in the chapter on Procedure. The division of actions into real (such as the vindicatio) and personal (such as the condictio), though dwelt upon in Justinian's Institutes as still theoretically applicable to the different cases of recovering a thing lost from the finder, of protecting a right of way against all the world, and of enforcing a contract against a particular person, had no practical consequences. The form of action became identical for all purposes, and the judge awarded the most appropriate remedy in his power.