fructuum, which confers property in the fruits on the owner of the principal thing, or on the bona fide of it, or on the emphyteuta. possessor Conjunction is either the conjunction of equal with equal The conjunction of equal with equal is seen in Confusio, or of movable with movable, instanced in Scriptura, Original acquisition dependent on Possession is either further dependent on Time or is not dependent on Time. Original acquisition dependent on Possession and further dependent on Time is seen in Usucapio and Praescriptio longi temporis, when this latter became an acquisitive and not simply an extinctive title. Original acquisition dependent on Possession but independent of Time is seen in Occupatio, or taking possession of a res nullius, including Captio ferarum, Captio hostilis, Inventio derelicti, Inventio thesauri. §§ 62-64. It is conjectured that by some accidental displacement these three paragraphs have been transposed, and that in their proper order they should follow § 61. There seems no good reason why they should be interposed between the titles of civil law and the titles of natural law. The lex Julia, relating only to Italian soil, permitted the husband to aliene the dotal land, with the consent of the wife, but prohibited its hypothecation, even with her consent. Justinian extended the prohibition to provincial soil, and to alienation with the wife's consent, Inst. 2, 8, pr. In the time of the jurist Javolenus, who flourished under Trajan and Hadrian, and still probably in that of Gaius, the power of sale of a pledge, § 64, was what is known in later jurisprudence as accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where by an omission of the compilers the law is not brought up to date. But in later law, as early at least as the time of Ulpian it had become a necessary consequence of the transaction-essentiale negotii-so that a contrary agreement is inoperative, except that it imposes a necessity of three denunciations or demands of payment, Dig. 13, 7, 4. WHETHER WARDS CAN ALIENE. § 80. We must next observe, that neither a woman nor a ward (pupillus) can aliene a mancipable thing without their guardian's sanction: nor can a ward even aliene a non-mancipable thing without such sanction, though a woman can. § 81. Thus a woman lending money without the guardian's sanction passes the property therein to the borrower, money being a non-mancipable thing, and obligation on the borrower. so imposes a contractual $82. But a ward lending money without his guardian's sanction does not pass the property, and so obligation on the borrower, he can does not impose a contractual if it exists, by vindication, that is, by claiming it as quiritary owner; whereas a woman can only bring a personal action of debt. Whether a ward can maintain an action therefore recover back the money, against the borrower in case the money has been spent by him, is a subject of controversy, for a ward can acquire a right of action against a person without the sanction of his guardian. $83. On the contrary, both mancipable and non-mancipable things can be conveyed to women and to wards without their guardian's sanction, because they do not require his sanction to better their position. who pays money to a ward passes § 84. Accordingly, a debtor the property therein to the ward, but is not discharged of his obligation, because a ward cannot release a debtor from any liability without his guardian's sanction, as tutoris auctoritate concessa est; § 85. Mulieri uero etiam sine tutoris auctoritate recte solui potest; nam qui soluit, liberatur obligatione, quia res nec mancipi, ut proxime diximus, a se dimittere mulieres etiam sine tutoris auctoritate possunt. quamquam hoc ita est, si accipiat pecuniam; at si non accipiat, sed habere se dicat et per acceptilationem uelit debitorem sine tutoris auctoritate liberare, non potest. Inst. 1. c. without such sanction he cannot part with any right: if, however, he is profiting by the money, and yet demands further payment, he may be barred by the plea of fraud. § 85. A woman may be lawfully paid without her guardian's sanction, and the payer is discharged of liability, because, as we have just mentioned, a woman does not need her guardian's sanction for the alienation of a non-mancipable thing, provided always that she receives actual payment: for if she is not actually paid, she cannot formally release her debtor by acceptilation (3 § 169) unless with her guardian's sanction. § 80, cf. 1, §§ 142-154, comm., 189-193. §§ 81, 82. For mutuum, see 3 § 90. If the money delivered by a ward could be traced it was recoverable from any one by real action (vindicatio): if it had been consumed in bona fides a personal action, condictio certi, would probably lie against the borrower to recover an equivalent sum: if it had been consumed in mala fides a personal action, ad exhibendum, would lie to recover an equivalent sum and damages, Inst. 2, 8, 2. § 85. The pupilage of women after attaining the age of twelve, i. e. the age of puberty, had become obsolete before the time of Justinian, and with it their incapacities of alienation. ditione nanciscuntur, siue quid stipulentur, uel ex aliqualibet causa adquirunt, id nobis adquiritur; ipse enim qui in potestate nostra est nihil suum habere potest. et ideo si heres institutus sit, nisi nostro iussu hereditatem adire non potest; et si iubentibus nobis adierit, hereditas nobis adquiritur proinde atque si nos ipsi heredes instituti essemus; et conuenienter scilicet legatum per eos nobis adquiritur. Inst. 2, 9, 3. § 88. Dum tamen sciamus, si alterius in bonis sit seruus, alterius ex iure Quiritium, ex omnibus causis ei soli per eum adquiri cuius in bonis est. § 89. Non solum autem proprietas per eos quos in potestate habemus adquiritur nobis, sed etiam possessio; cuius enim rei possessionem adepti fuerint, id nos possidere uidemur; unde etiam per eos usucapio procedit. Inst. 1. c. § 90. Per eas uero personas quas in manu mancipioue habemus proprietas quidem adquiritur nobis ex omnibus causis, sicut per eos qui in potestate nostra sunt; an autem possessio adquiratur, quaeri solet, quia ipsas non possidemus. $91. De his autem seruis in quibus tantum usumfructum habemus ita placuit, ut quidquid ex re nostra uel ex operis suis adquirant, id nobis adquiratur; quod uero extra eas causas, id ad dominum proprietatis pertineat. itaque si iste seruus heres institutus sit legatumue quod ei datum fue by stipulation, or by any other title, are acquired for their superior; for a person subject to power is incapable of holding property, accordingly if instituted heir he must have the command of his superior to be capable of accepting the inheritance, and if he has the command of the superior and accepts the inheritance, it is acquired for the superior just as if the latter had himself been instituted heir: and the rule that it is the superior who acquires applies equally in the case of a legacy. § 88. But it is to be noticed that when one man is bonitary owner of a slave and another quiritary owner, whatever the mode of acquisition, it enures exclusively to the bonitary owner. § 89. Not only ownership is acquired for the superior but also possession, for the possession of the inferior is deemed to be the possession of the superior, and thus the former is to the latter an instrument of acquiring by usucapion. § 90. Persons in the hand or mancipation of a superior acquire ownership for him by all modes of acquisition just as children or slaves in his power; whether they acquire possession for him is a controversy, as they are not themselves in his possession. $91. Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary or by their own labour is acquired for the usu fructuary; but what they acquire by any other means belongs to their proprietor. Accordingly, if such a slave is instituted heir or made legatee, the inheritance or rit, non mihi sed domino proprietatis adquiritur. Inst. 2, 9, 4. § 92. Idem placet de eo qui a nobis bona fide possidetur, siue liber sit siue alienus seruus. quod enim placuit de usufructuario, idem probatur etiam de bonae fidei possessore. itaque quod extra duas istas causas adquiritur, id uel ad ip: sum pertinet, si liber est, uel ad dominum, si seruus est. Inst. 1. c. § 93. Sed bonae fidei possessor cum usuceperit seruum, quia eo modo dominus fit, ex omni causa per eum sibi adquirere potest. usufructuarius uero usucapere non potest: primum quia non possidet, sed habet ius utendi [et] fruendi; deinde quia scit alienum seruum esse. Inst. 1. c. legacy is acquired, not for the usufructuary, but for the owner. § 92. The possessor in good faith of a freeman or a slave belonging to another is held to have the same rights as a usufructuary; what they acquire on any other account than the two we mentioned, belonging in the one case to the freeman himself in the other to the rightful owner. § 93. But after a possessor in good faith has acquired the ownership of a slave by usucapion, since he has thus become owner of him, all acquisitions by the slave enure to his benefit. A usufructuary cannot acquire a slave by usucapion, for, in the first place, he has not possession, but only a right of usufruct; and in the second place, he knows that the slave belongs to some one else. § 94. It is a question whether a slave can be an instrument of possession and usucapion for a usufructuary, the slave not being himself in his possession. A slave, undoubtedly, can be the instrument of possession and usucapion for a bona fide possessor. Both made above as to things acquired cases are subject to the limitation usufructuary's property or by his by the slave by means of the own labour. § 95. It appears that freemen not subject to my power nor in my bona fide possession, and slaves of other people of whom I am neither usufructuary nor lawful possessor, cannot under any circumstances be instruments of acquiring for me, and this is |