Chapter XXXIII: Appendix: V (4)

D. 9. 2. 13. pr.

Footnote 407:

Droit Naturel, II. sect. 55.

Footnote 408:

Principles, p. 231; Works, I. 108. So Puchta, sect. 231: Nur an ...
körperlichen Gegenständen ist Eigenthum möglich.

Footnote 409:

Supra, § 87.

Footnote 410:

The full power of alienation and disposition is an almost invariable
element in the right of ownership, but cannot be regarded as
essential, or included in the definition of it. A married woman
subject to a restraint on anticipation is none the less the owner of
her property, though she cannot alienate or encumber it.

Austin (II. p. 790) defines the right of ownership as a “right
indefinite in point of user, unrestricted in point of disposition, and
unlimited in point of duration, over a determinate thing.”

Footnote 411:

Co. Litt. 4 a.

Footnote 412:

On this question see Pollock’s Torts, p. 347, 8th ed.; Clerk &
Lindsell’s Torts, pp. 337–339, 4th ed.; Salmond’s Torts, § 53 (9);
Hazeltine’s Law of the Air; _Pickering_ v. _Rudd_, 4 Camp. 219; 16 R.
R. 777; _Fay_ v. _Prentice_, 1 C. B. 828; _Wandsworth Board of Works_
v. _United Telegraph Coy._, 13 Q. B. D. 904; _Ellis_ v. _Loftus Iron
Coy._, L. R. 10 C. P. 10.

Footnote 413:

Art. 905.

Footnote 414:

Inst. Just. 2. 1. 29. See also Gaius 2. 73: Superficies solo cedit.

Footnote 415:

_Monti_ v. _Barnes_, (1901) 1 K. B. 205.

Footnote 416:

It is only by slow degrees and with imperfect consistency that our law
has worked out an intelligible principle on this matter. The older law
seems to have recognised mere physical attachment as necessary and
sufficient, subject to exceptions so numerous and important, as to
deprive the principle itself of any rational basis. See, for the
modern law on the point, _Holland_ v. _Hodgson_, L. R. 7 C. P. 328;
_Monti_ v. _Barnes_, (1901) 1 K. B. 205; _In re De Falbe_, (1901) 1
Ch. 523; (1902) A. C. 157; _Elwes_ v. _Brigg Gas Coy._, 33 Ch. D. 502.
Similar law is contained in Article 95 of the German Civil Code:
“Things are not part of the land which are attached to it simply for a
temporary purpose.” The case of _Reynolds_ v. _Ashby & Son_, (1904) A.
C. 466, shows, however, that English law has not yet succeeded in
adopting with consistency any single and intelligible rule.

Footnote 417:

Unlike a chattel, a piece of land has no natural boundaries. Its
separation from the adjoining land is purely arbitrary and artificial,
and it is capable of subdivision and separate ownership to any extent
that may be desired. The lines of subdivision are usually vertical,
but may be horizontal. The surface of land, for example, may belong to
one man and the substrata to another. Each story of a house may have a
different owner. In _The Midland Railway Coy._ v. _Wright_, (1901) 1
Ch. 738, it was held that a right had been acquired by prescription to
the surface of land belonging to a railway company, although a tunnel
beneath the surface remained the property of the company as having
been continuously in its occupation.

Footnote 418:

Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights,
regarded as incorporeal things, are properly speaking neither movables
nor immovables. But by a fiction the law classes them as one or the
other according to the nature of their subject-matter.” See also
Dernburg’s Pandekten, I. sect. 74.

Footnote 419:

For example, the jurisdiction of English courts in the administration
of deceased persons’ estates depends on the deceased having left
property in England. Portions of revenue law and of private
international law are also based on the assumption that all
proprietary rights possess a local situation.

Footnote 420:

_Inland Revenue Commissioners_ v. _Muller & Co.’s Margarine, Limited_,
(1901) A. C. at p. 230.

Footnote 421:

Ibid.

Footnote 422:

Dicey, Conflict of Laws, p. 310, 2nd ed.

Footnote 423:

There are certain cases, however, which have been decided on the
assumption that incorporeal property possesses no local situation at
all. For this reason it was held in _The Smelting Company of
Australia_ v. _Commissioners of Inland Revenue_, (1897) 1 Q. B. 172,
that a share of a New South Wales patent, together with the exclusive
right of using it within a certain district of that colony, was not
property “locally situated out of the United Kingdom” within the
meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not
see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a
licence to use a patent, which is not a visible or tangible thing, can
be said to be locally situate anywhere.” See, however, as to this
case, the observations of Vaughan Williams, L.J., in _Muller & Co.’s
Margarine, Limited_, v. _Inland Revenue Commissioners_, (1900) 1 Q. B.
at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901)
A. C. at p. 237. See further, as to the local situation of incorporeal
property. _Danubian Sugar Factories_ v. _Commissioners of Inland
Revenue_, (1901) 1 K.B. 545; _Commissioner of Stamps_ v. _Hope_,
(1891) A. C. 476; _Att.-Gen._ v. _Dimond_, 1 C. & J. 356; 35 R. R.
732; _In re Clark_, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp.
309–314, 2nd ed.

Footnote 424:

The matter has been well discussed by Mr. T. C. Williams in L. Q. R.
IV. 394.

Footnote 425:

Under the head of material things we must class the _qualities_ of
matter, so far as they are capable in law of being in themselves the
objects of rights. The qualities which thus admit of separate legal
appropriation are two in number, namely force and space. Electricity
is in law a chattel, which can be owned, sold, stolen, and otherwise
rightfully and wrongfully dealt with. 45 & 46 Vict. c. 56, s. 23.
Definite portions of empty space are capable of appropriation and
ownership, no less than the material objects with which other portions
of space are filled. The interior of my house is as much mine as are
the walls and the roof. It is commonly said that the owner of land
owns also the space above the surface _usque ad coelum_. Whether this
is truly so is a doubtful point as the law stands, but there is no
theoretical difficulty in allowing the validity of such a claim to the
ownership of empty space.

Footnote 426:

The distinction formerly noticed by us (§ 88) between _corporeal_ and
_incorporeal_ things must not be confounded with the present
distinction between _material_ and _immaterial_ things. The latter is
a logical distinction, but the former is a mere artifice of speech. An
incorporeal thing is a kind of right, namely any right which is not
identified with some material thing which is its subject-matter. An
immaterial thing is not a right but the subject-matter of one. It is
any subject-matter of a right except a material object.

Footnote 427:

Supra § 83.

Footnote 428:

Supra § 90.

Footnote 429:

Encumbrances are not confined to the law of property, but pertain to
the law of obligations also. Choses in action may be mortgaged,
settled in trust, or otherwise made the subject-matter of _jura in re
aliena_, no less than land and chattels. Much, therefore, of what is
to be said here touching the nature of the different forms of
encumbrance is equally applicable to the law of rights _in personam_.

Footnote 430:

Possession by way of _security_ only, _e.g._, a pledge, is
differentiated by its purpose, however, and falls within the class of
securities, not within that of leases.

Footnote 431:

_Beardman_ v. _Wilson_, L. R. 4 C. P. 57.

Footnote 432:

An example of a lease in perpetuity is the emphyteusis of Roman law.
In consequence of its perpetuity the Roman lawyers were divided in
opinion as to the true position of the tenant or _emphyteuta_, some
regarding him as an owner and others as an encumbrancer. The law was
finally settled in the latter sense. Just. Inst. III. 24. 3.

Footnote 433:

The term servitude (_servitus_) is derived from Roman law, and has
scarcely succeeded in obtaining recognition as a technical term of
English law. It is better, however, than the English _easement_,
inasmuch as easements are in the strict sense only one class of
servitudes as above defined.

Footnote 434:

It is only over land that servitudes can exist. Land is of such a
nature as to admit readily of non-possessory uses, whereas the use of
a chattel usually involves the possession of it for the time being,
however brief that time may be. The non-possessory use of chattels,
even when it exists, is not recognised by the law as an encumbrance of
the ownership, so as to run with it into the hands of assignees.

Footnote 435:

An easement, in the strictest sense, means a particular kind of
servitude, namely a private and appurtenant servitude which is not a
right to take any _profit_ from the servient land. A right of way or
of light or of support is an easement; but a right to pasture cattle
or to dig for minerals is in English law a distinct form of servitude
known as a profit. This distinction is unknown in other systems, and
it has no significance in juridical theory. Its practical importance
lies in the rule that an easement must (it seems) be appurtenant,
while a profit may be either appurtenant or in gross.

Footnote 436:

The term security is also used in a wider sense to include not only
securities over property, but also the contract of suretyship or
guarantee—a mode of ensuring the payment of a debt by the addition of
a second and accessory debtor, from whom payment may be obtained on
default of the principal debtor. With this form of security we are not
here concerned, since it pertains not to the law of property, but to
that of obligations.

Footnote 437:

The word lien has not succeeded in attaining any fixed application as
a technical term of English law. Its use is capricious and uncertain,
and we are at liberty, therefore, to appropriate it for the purpose
mentioned in the text, _i.e._, to include all forms of security except
mortgages.

Footnote 438:

As we shall see, a mortgage by way of transfer is none the less an
encumbrance also—an encumbrance, that is to say, of the beneficial
ownership which remains vested in the mortgagor.

Footnote 439:

It is not essential to a mortgage that the right vested in the
mortgagee should in actual fact survive the right secured by it, so as
to remain outstanding and redeemable. It is sufficient that in its
nature it should be capable of doing so, and therefore requires to be
artificially restricted by an obligation or condition of re-assignment
or surrender. This re-assignment or surrender may be effected by act
of the law, no less than by the act of the mortgagee. The conveyance
of the fee simple of land by way of security is necessarily a mortgage
and not a lien, whether it revests in the mortgagor _ipso jure_ on the
payment of the debt, or does not revest until the mortgagee has
executed a deed of reconveyance.

Footnote 440:

This is one of the reforms effected by the Torrens system of real
property law in force in the Australasian colonies. The so-called
mortgages of land under that system are in reality merely liens.

Footnote 441:

Applications of the rule of possessory ownership may be seen in the
cases of _Armory_ v. _Delamirie_, 1 Str. 504; 1 Smith, L. C. 343;
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1; and _Perry_ v. _Clissold_,
(1907) A. C. 73.

Footnote 442:

The term prescription (_praescriptio_) has its origin in Roman law. It
meant originally a particular part of the _formula_ or written
pleadings in a law suit—that portion, namely, which was written first
(_praescriptum_) by way of a preliminary objection on the part of the
defendant. _Praescriptio fori_, for example, meant a preliminary plea
to the jurisdiction of the court. So _praescriptio longi temporis_ was
a plea that the claim of the plaintiff was barred by lapse of time.
Hence, by way of abbreviation and metonymy (other forms of
prescription being forgotten) prescription in the modern sense.

Footnote 443:

It is clear, however, that until a debt or other obligation is
actually due and enforceable, no presumption against its validity can
arise through the lapse of time. Therefore prescription runs, not from
the day on which the obligation first arises, but from that on which
it first becomes enforceable. _Agere non valenti non currit
praescriptio._

Footnote 444:

C. 2. 3. 20.

Footnote 445:

Stat. 8 & 9 Vict. c. 106, s. 2.

Footnote 446:

_Cochrane_ v. _Moore_, 25 Q. B. D. 57.

Footnote 447:

D. 50. 17. 54.

Footnote 448:

The Factors Act, 1889.

Footnote 449:

Continental systems carry much further than our own the doctrine that
the possessor of a chattel may confer a good title to it. Article 2279
of the French Civil Code lays down the general principle that _En fait
de meubles la possession vaut titre_. In other words the ownership of
a chattel involves no _droit de suite_ or _jus sequelae_, no right of
following the thing into the hands of third persons who have obtained
it in good faith. The rule, however, is subject to important
exceptions, for it does not apply either to chattels stolen or to
chattels lost. Speaking generally, therefore, it is applicable only
where an owner has voluntarily entrusted the possession of the thing
to some one else, as a pledgee, borrower, depositee, or agent, who has
wrongfully disposed of it to some third person. Baudry-Lacantinerie,
De la Prescription, ch. 20. See also, for very similar law, the German
Civil Code, sects. 932–935, and the Italian Civil Code, sects.
707–708.

Footnote 450:

Hereditas ... personam ... defuncti sustinet. D. 41. 1. 34. See
Holmes, Common Law, pp. 341–353. Maine, Ancient Law, pp. 181–182.

Footnote 451:

_Brown_ v. _Burdett_, 21 Ch. D. 667.

Footnote 452:

Obligatio est juris vinculum, quo necessitate adstringimur alicuius
solvendae rei, secundum nostrae civitatis jura. Inst. 3. 13. pr.

Footnote 453:

Jacob’s Law Dictionary, cited by Mr. Sweet in L.Q.R. X. at p. 308 n.

Footnote 454:

As to the nature of choses in action, see Blackstone, II. 396;
_Colonial Bank_ v. _Whinney_, 30 Ch. D. 261 and 11 A. C. 426; and a
series of articles by different writers in the L.Q.R.: IX. 311, by Sir
Howard Elphinstone; X. 143. by T. C. Williams; X. 303. by C. Sweet;
XI. 64. by S. Brodhurst; XI. 223, by T. C. Williams; XI. 238. by C.
Sweet.

Footnote 455:

As we shall see, the creditor is not always entitled to _sue_ one
alone of the debtors; but when he has obtained judgment against all,
he can always, by way of execution, obtain payment of the whole from
any one.

Footnote 456:

_Ward_ v. _The National Bank_, 8 A. C. 755.

Footnote 457:

(1899) 1 Q. B. 840.

Footnote 458:

At p. 845.

Footnote 459:

For another illustration, see _Sadler_ v. _Great Western Ry. Coy._,
(1896) A. C. 450.

Footnote 460:

_Morris_ v. _Robinson_, 3 B. & C. 196; 27 R. R. 322.

Footnote 461:

Supra, § 123.

Footnote 462:

It is advisable to point out that the obligation to pay damages for a
breach of contract is itself to be classed as contractual, no less
than the original obligation to perform the contract.

Footnote 463:

A similar relation exists between breaches of contract and crimes.
Breach of contract is not in itself a crime, any more than it is in
itself a tort; yet by undertaking a contractual duty, a man may often
put himself in such a position, that he cannot break the duty without
causing such damage to third persons, as will create criminal
liability. For example, a signalman’s breach of his contractual duty
to attend to the signals may amount to the crime of manslaughter if a
fatal accident results from it.

Footnote 464:

Salmond’s _Law of Torts_, p. 5.

Footnote 465:

_Grant_ v. _Easton_, 13 Q. B. D. 302.

Footnote 466:

Commentaries II. 443.

Footnote 467:

Ibid. III. 159.

Footnote 468:

Ibid. III. 162.

Footnote 469:

Commentaries III. 160. “A cause of action of contract arises not
merely where one party has broken a legally binding agreement with the
other, but where two parties stand in such a mutual relation that a
sum of money is legally due from the one to the other, in which case
the law is said to imply a contract to pay the money.” Clerk and
Lindsell, Law of Torts, p. 1.

Footnote 470:

_Grant_ v. _Easton_, 13 Q.B.D. at p. 303.

Footnote 471:

_Moses_ v. _Macferlan_, 2 Burr. 1005 at p. 1009.

Footnote 472:

_Exall_ v. _Partridge_, 8 T. R. 308; 4 R. R. 656.

Footnote 473:

_Smith_ v. _Baker_, L.R. 8 C. P. 350. See further as to the waiver of
torts, _Lightly_ v. _Clouston_, 9 R.R. 713; 1 Taunt. 112; _Phillips_
v. _Homfray_, 24 Ch. D. at p. 461; Salmond, Law of Torts, § 44.

Footnote 474:

County Courts Act, 1888, s. 116. This classification of actions is
discussed by Maitland in an appendix to Sir F. Pollock’s Law of Torts.

Footnote 475:

Contracts which have no specific name are called by the civilians
_contractus innomnati_.

Footnote 476:

A conclusive presumption is sometimes called a _presumptio juris et de
jure_, while a rebuttable presumption is distinguished as a
_presumptio juris_. I am not aware of the origin or ground of this
nomenclature. The so-called _presumptio facti_ is not a legal
presumption at all, but a mere provisional inference drawn by the
court in the exercise of its unfettered judgment from the evidence
before it.

Footnote 477:

See Bentham, Works, VII. pp. 445–463, and Dumont, Treatise on Judicial
Evidence, Book VII. ch. 11: “If all the criminals of every class had
assembled, and framed a system after their own wishes, is not this
rule the very first which they would have established for their
security?... One could be tempted to believe that those notions had
been taken from the laws of honour which regulate private combats.”

Footnote 478:

Leviathan, ch. 14. Eng. Works III. p. 129.

Footnote 479:

On the history of oaths, see Lea, Superstition and Force, Part I. ch.
2–8; Encyclopædia Britannica, _sub voc._ Oath; Hirzel, Der Eid (1902).
As to their utility, see Bentham’s Works, VI. 308–325.

Footnote 480:

Vide supra, § 10.

Footnote 481:

Supra, § 5.

Footnote 482:

Thorpe, Ancient Laws and Institutes of England, i. 159; Laws of King
Edward, pr.

Footnote 483:

Ibid. i. 171; Laws of Edward and Guthrum, 6.

Footnote 484:

Ibid. i. 181; Oaths, 3.

Footnote 485:

See _e.g._ Mirror of Justices (Selden Society’s Publications, vol.
vii.), _passim_.

Footnote 486:

D. 1. 1. 11.

Footnote 487:

_Jus_ is also used in various other derivative senses of less
importance: _e.g._, a law court (_in jus vocare_), legal or rightful
power or authority (_sui juris esse_: _jus et imperium_), legal
decision, judgment (_jura dicere_). See Nettleship, Contributions to
Latin Lexicography, _sub voc. Jus_.

Footnote 488:

See Clark, Practical Jurisprudence, p. 18. We owe to Professor Clark a
very careful and scholarly investigation of the whole subject-matter
of this inquiry. See also Skeat’s Etymological English Dictionary, sub
voc. _just_; Manuel des Antiquités Romaines, vol. 6, part i. p. 352,
note 4: Miller’s Data of Jurisprudence, p. 33.

Footnote 489:

Nettleship, Contributions to Latin Lexicography, sub voc. _Mos._

Footnote 490:

Practical Jurisprudence, p. 51.

Footnote 491:

_Dike_ is said to be derived from DIK, to show, point out, make known,
this being itself a form of DA, to know; hence, practical knowledge,
skill, the _way a thing is done, custom_. This suggestion might be
considered ingenious, rather than convincing, were it not for the
singular fact that the Teutonic languages exhibit a precisely similar
process of thought. The English substantive _wise_ means way or
manner, and is yet the same word as _wise_, the adjective, and is
derived from the root WID, to know. See also with the German _Weise_
(way), _weisen_(to point out, direct), _weise_ (wise). See Curtius,
Grundzüge der Griechischen Etymologie, sub voc. _dike_. Skeat, sub
voc. Wise, and list of Aryan Roots, 145 and 372.

Footnote 492:

Skeat, Aryan Roots, 162.

Footnote 493:

On the whole matter see Maine, Ancient Law, ch. 1; Clark, Practical
Jurisprudence, p. 42; Liddell and Scott, sub voc. _themis_; Hirzel,
Themis Dike und Verwandtes (1907).

Footnote 494:

Manuel des Antiquités Romaines, vol. 6, part i. p. 351; Nettleship,
sub voc. _Lex._

Footnote 495:

Cited by Nettleship, sub voc. _Lex._

Footnote 496:

Just. Inst. i. 2. 4.

Footnote 497:

See Ducange, sub voc. _Lex._

Footnote 498:

See Ducange, sub voc. _Lex._

Footnote 499:

Ibid.

Footnote 500:

Ibid.

Footnote 501:

See Murray’s New English Dictionary, sub voc. _Doom_.

Footnote 502:

Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of
King Alfred, sect. 49.

Footnote 503:

Ibid. sect. 43.

Footnote 504:

Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In
Scottish legal procedure the word doom is still used in the sense of
judgment; the death sentence is “pronounced for doom”: Miller’s Data
of Jurisprudence, p. 292.

Footnote 505:

Manuel des Antiquités Romaines, vol. 6, pt. i., p. 351, n.

Footnote 506:

See Smith’s Latin Dictionary, sub voc. _lego_.

Footnote 507:

Nettleship, sub voc. _Lex._

Footnote 508:

Clark, p. 31.

Footnote 509:

Muirhead, Historical Introduction to the Private Law of Rome, p. 19.

Footnote 510:

Skeat, sub voc. Law; Clark, p. 68.

Footnote 511:

Much information as to the etymology and early meanings of legal terms
is to be found in Miller’s Data of Jurisprudence, _passim_. See also
Walker’s Science of International Law, pp. 21–25.

Footnote 512:

Supra, § 41.

Footnote 513:

As to the severance of legislative and executive sovereignty in the
British constitution, see Anson, Law and Custom of the Constitution,