DLXIV. Here ends the consideration of the effect of Foreign Law upon the Rights and Duties incident to the Relations of Family (c).

Chancellor Hall refused to transfer out of Court proceeds of sale of real estate in England to the curator ad bona, appointed under Chilian law, of Juan D. Grimwood, who had been born and was resident in Chili, and had been there found a lunatic.]

(c) Vide antè, § xxx.

CHAPTER XXVI.

RIGHTS RELATING TO PROPERTY.

DLXV. IT was stated in the early part of this volume (a) that the Third Division of it would be occupied with the Jural Relations arising from Property; and that under this head would be included

1. Rights to specific things:

a. Immoveables.

B. Moveables.

2. Rights to compel certain persons to do certain things, or Obligations, of which Contracts are a branch. 3. Rights relating to Succession, whether Testamento or ab Intestato.

DLXVI. We are now about to consider Rights to Specific Things, both Immoveable and Moveable.

In other words, the jurisprudence of Private International Law relating to the acquisition and alienation of property by foreigners now presents itself for our consideration.

So much, however, of the doctrine of that branch of jurisprudence depends upon or is affected by the distinction between Moveable and Immoveable Property (b), that on that account alone a clear understanding of the meaning of these terms is indispensable to the jurist. But with respect to the English jurist, there is another very important reason-viz. that the terms immobilia and mobilia

(a) Vide suprà, § xxxi.

(b) As to Bankruptcy, vide post, chap. xxxix. § dcclxxv.

cannot be considered by English lawyers as identical with "realty" and "personalty" in the English Law. The terms mobilia and persona are sometimes carelessly applied as identical with personalty and person. But mobilia in Foreign Law is not identical with personalty in English Law, and persona in Foreign Law means a person clothed with certain indelible attributes, and is very different from the naked word "person" in English Law.

DLXVII. According to the English Law, the subjects of property are divided into things real and things personal.

Personal things-with which we are alone now immediately concerned-are chattels. Chattels are subdivided into

1. Chattels Real;

2. Chattels Personal;

But both are personal property, or personal estate.

DLXVIII. Chattels Real are those estates which are less than freehold—that is, less than an estate of inheritance or for life in lands or tenements of free tenure, Chattels real, therefore, comprise (c)-(1) estates for years, that is, for any fixed or determinate time-e.g. for a thousand years (d).

This peculiarity of English Law arose out of two facts —namely,

1st, That, in feudal times, estates for years were very precarious, and subject to be defeated in various ways. 2ndly, That (at first) they were usually for very short periods.

(c) Stephen's Blackstone, vol. i. c. v. Of Estates less than Freehold. Ibid. vol. ii. pt. ii. Of Things Personal.

See Sir Edward Vaughan Williams on Executors and Administrators (vol. i. book iv. chap. ì. § i.), as to what were bona notabilia under the former testamentary law of England.

[(d) A term of not less, as originally created, than 300 years, and having at least 200 years unexpired, may now under certain conditions be enlarged, by means of a deed, into a fee simple. 44 & 45 Vic. c. 41, s. 65.]

Chattels Real included also

(2) Estates at Will.

(3) Estates by Sufferance.

DLXIX. Chattels Personal may be subdivided into, (1) Corporeal; and (2) Incorporeal.

1. Corporeal are all moveable things, e.g. animals, money, goods.

2. Incorporeal are Patent Rights, e.g. exclusive rights. of [making, using, and selling some new contrivance or invention]; Copyright, the exclusive right of [multiplying copies of an original composition, or work, in literature, music, or art]-a chattel which has become of late years a great favourite of International Law. [To these may be added Trade marks (e).]

Among incorporeal chattels are to be reckoned also. chattels which are not in possession, but in action; that is, where a man has not the enjoyment, actual or constructive, of a thing, but a right to recover it by a suit at law, which the English Law calls a chose in action, e.g. debts, money due on a bond, a right to damages for non-performance of an agreement things that are in potentiá, not in esse.

DLXX. The Roman Law more than once refers to and recognizes a distinction between two classes of moveables -namely,

1. Those destined to remain constantly fixed at a certain place; and

2. Those in their nature of unfixed character, and only temporarily or accidentally deposited at a particular place.

In treating "De hæredibus instituendis," Ulpian (ee) remarks, "Rerum autem Italicarum vel Provincialium "significatione quæ res accipiendæ sint, videndum est. "Et facit quidem totum voluntas defuncti : nam quid "senserit spectandum est: veruntamen hoc intelligendum "erit, rerum Italicarum significatione eas contineri, quas

[(e) Vide infrà, § dlxxiv.]

(ee) Dig. lib. xxviii. t. v. 35, §§ 3-5.

"perpetuò quis ibi habuerit, atque ita disposuit ut perpetuò "haberet. Ceteroquin si tempore in quo transtulit in "alium locum, non ut ibi haberet, sed ut denuo ad pristinum "locum revocaret, neque augebit quò transtulit, neque "minuet unde transtulit. Utputa de Italico patrimonio quosdam servos miserat in provinciam, forte Galliam, ad exigendum debitum vel ad merces comparandas, re"cursuros si comparassent: dubium non est, quin debeat "dici ad Italicum patrimonium eos pertinere debere; .. ".. Quæ res in proposito quoque suggerit ut Italicarum rerum esse credantur hæ res, quas in Italiâ esse testator "voluit.

"Proinde et si pecuniam miserit in provinciam ad "merces comparandas, et necdum comparatæ sint; dico, "pecuniam, quæ idcirco missa est, ut per eam merces in "Italiam adveherentur, Italico patrimonio adjungendam: "nam et si dedisset in provinciâ de pecuniis quas in Italiâ "exercebat ituras et redituras, dicendum est, hanc quoque "Italici patrimonii esse rationem. Igitur efficere dici, ut "merces quoque istæ, quæ comparatæ sunt, ut Romam "veherentur, sive provectæ sunt eo vivo, sive nondum, et "sive scit, sive ignoravit, ad eum heredem pertineant, cui "Italicæ res sint adscriptæ."

So, again, in treating "de actionibus empti et venditi," Ulpian says―

"Fundi nihil est, nisi quod terrâ se tenet. Ædium "autem multa esse, quæ ædibus affixa non sunt, ignorari "non oportet, utputa seras, claves, claustra; multa etiam "defossa esse, neque tamen fundi aut villæ haberi, utputa "vasa, vinaria, torcularia; quoniam hæc instrumenti magis "sunt, etiamsi ædificio cohærent. Sed et vinum, et fructus "perceptos villæ non esse constat " (ƒ).

Scævola, in the book "De pignoribus et hypothecis," observes

"Debitor pactus est, ut quæcunque in prædia pignori

(f) Dig. lib. xix. t. i. 17.