vassal in return for specified services; while the latter, who again granted the land out of his possession for a fixed rent, did not lose his seisin. If a contest arose between the vassal and lord for the possession of property, he only had the seisin who exercised the derived right; but in a contest with a third person, not thus bound, the seisin belonged to the first holder, who had transferred the possession. The seisin, or legal possession, of the German law, can then be defined as the actual exercise of a right of possession,1 whether this existed in the immediate physical detention, or in the right to the revenue.

As has been stated in the procedure of movables, the actions of German law were largely based on contract. In regard to land, the contract for an object settled in specie conveyed a real title, without transfer of possession, as soon as one party had fulfilled his part. From this point of view, Sohm has first given a rational explanation of traditio and investitura. Traditio was a contract, like venditio or donatio, and on the payment of the earnest-money, or arrha, ownership arose; while investitura was but the execution and accomplishment of the acquisition of ownership. Since the beginning of the sixth century, traditio appeared only as a contract (venditio, donatio, concambium); while the church, to whom gifts were almost solely made, looked to it that this acquisition of ownership was made through documents, and should be thereby capable of proof at any future time. Investiture has only been mentioned since the eighth century in Frankish documents; and a document has never since been received as conveying investiture. A writing to be sure was received; but this "notitia" or "breve" was only in the manner of an appendix to the contract document, and without signatures. The documents with which parties came forward in the procedure to establish ownership were always contracts, and the fulfilment of their right (investiture) was adjudged on these. He who had gained a real title by traditio was, by investiture, placed in the enjoyment of seisin. The acquirement of possession (investiture) was sometimes an advantage in regard to the distribution of 1 With this, cf. Sohm, Ehesch. p. 86, and p. 37, note 28.

proof; but it possessed no importance whatever in respect of the right of the parties. Then traditio, but not investiture, was the legal transaction of the German law; and the formalities which developed in the giving of possession in real estate had their origin in the fact that German law united to the formal requisites actual acquirement of possession. The "book" of the Anglo-Saxon sources was the contract or document by which ownership was gained. Symbolical forms of transfer were probably customary in the early Anglo-Saxon period, but there are few traces of them.2 A strikingly clear proof of the effectiveness of the traditio exists in the fact that the whole importance was attached to the drawing up of the documents, and their delivery. Investiture, then, was not a title to the land, but merely a "modus acquirendi" for gaining a more complete ownership.

In the procedure of debt and movables, the claim of the plaintiff was clearly distinguished from the exceptions of the defendant; but in land this was not always possible. There are cases, of course, in which the claimant asked for a change in the existing relations, and sought the co-operation of the court, as when a buyer claimed surrender of purchased real estate. Here the line between claim and objection can be clearly drawn. But there are cases in which a party simply asked the recognition of a right, in whose practice he is, or claims that he is, in order to make defence against another's attack, or insure himself against such claims in the future. Here the judgment was not a condemnation, but the sanctioning of a hitherto doubtful right; and it was decreed that he who was awarded the legal possession should keep the property, and exercise all rights over it. Such an example is found in Charter CLXXXVI. (App. No. 8): Etheric, when about to dispose of his lands by will, was opposed, and, on application to the court, he received an affirmation of his right. The objection might have been raised on the basis of:

ALFR. 41: "The man who has boc-land, and which his kindred left him, then ordain we that he must not give it from his 'maegburg,' if there be writing or witness that it was forbidden by those men who at first acquired it, and by those who gave it to him, that he should do so; and then let that be declared in the presence of the king and of the bishop, before his kinsmen."

Therefore, in such a procedure, which admitted a double claim, - we might say, two plaintiffs, - the consequences of contumacy befell the plaintiff as well as the defendant; for its object was the admission of one claim, and the establishment of peace. In the Roman vindication, the non-possessing owner was the plaintiff, and the possessing non-owner the defendant. But, in the German procedure, one or both the parties claimed the property through seisin; and it was accidental whether the real possessor sued or was sued, although, since the possessor as a rule had no motive in beginning the suit, he was usually the defendant.

The rule for the distribution of proof has been formulated by Homeyer and Planck as follows: He who appealed to seisin had the precedence in the right to prove his assertion; and, "generally from the differences of the assertions concerning the Gewere, one party gained a better right to the proof." 1 And so, when both parties asserted a like seisin, the best title decided. But there are many cases in which the one who did not have the seisin undoubtedly acquired the right of proof, and gained the suit by raising a claim by which the possessor was forced to surrender. This shows that it was insufficient to appeal to the seisin as a decision of the right of proof. In opposition to this theory, which is held by most German writers, Hänel and others assert that the claim of a stronger right gave the right of proving; and that, in a claim of an equally strong right by both parties, the seisin decided. Laband has pointed out that, if "stronger right" means, in the abstract sense, more legal power than any other right, as that ownership is a stronger right than loan or annuity; that loan is a stronger right than inheritance, lease, &c., - then the position hardly needs refutation. For it was one of the undoubted points of German law that, the right of proof was given to the holder of property by loan, and not to the plaintiff who asserted ownership. But if it mean that an examination was made in each case as to which party brought forward the right, stronger "in regard to the actual relations and the legal questions applicable thereto," the rule was partly true. It is true so far as it assigned the proof to that assertion which was relevant for the decision of the contest according to the actual situation of the case; but it is not true that in all cases that party gained the proof, and therefore the decision on which the procedure hung, by raising the assertion of a stronger right. No rule can be laid down by which the weight and importance of an assertion could be abstractly established. Cases are given in which the fact of possession was decisive; and, also, cases in which the seisin of one party yielded before the right of the other. Whether the one or the other went to the proof depended on the kind of claim, and the manner in which it was advanced by the non-possessor. The latter's simple claim to the legal possession acted only as an opposition to the assertion of a right of possession by the actual possessor.1 If one of two parties laid claim to the property as his own, the other must prove his right of possession, no matter what right of possession he advanced. It was not how he came into possession, but by what right he exercised it. If the plaintiff made a positive assertion, which would break the seisin of the possessor, he must prove this; and such an assertion was decisive.

Seisin did not, then, unconditionally give the right of proof; nor if both parties claimed the same title did the seisin give one the precedence. But its important meaning in the procedure lay in the fact that without it the claimant who wished to acquire the right of proof was forced to substantiate his claim by a very different process from that which he would have followed had he enjoyed seisin.1 Seisin was not the central point on which the law of proof hung; but there were suits about seisin which followed the common principles of German law. The Roman system laid the burden of proof on the plaintiff; but the German, on the defendant. If the plaintiff asserted no facts by which the right of the defendant could be attacked, the defendant swore to his right, and the case ended there. Where the simple assertion of one stood opposed to the assertion of the other, the seisin of the defendant gave him an advantage in the proof. Heusler has formulated the rule for the distribution of proof in actions for land as follows: By means of his possession the defendant rebutted the claim by an oath to his right, so long as his right was not, on the part of the plaintiff, assailed by a fact which overcame it. If this occurred, and the plaintiff proved his claim, the defendant was only freed by opposing to the plaintiff's claim a proof of his superior right. Seisin, then, had only a negative value in that it freed one in possession from a proof of his right as long as an effectual right was not advanced by the plaintiff. In German as in Roman law, the position of the possessor was advantageous; and the general principle of both laws, "melior est conditio possidentis," is the same as that in: —

ETHELR. II. 9, § 4: "Propriatio propinquior semper est possidenti quam repetenti."

But it can be seen how little seisin acted as a proof of material right. In movables, as well as immovables, seisin