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THE TERMS REAL AND PERSONAL IN ENGLISH LAW.

LTHOUGH the real actions of English law were abolished

more than fifty years ago, and had fallen out of use about two centuries before1, yet it may not be uninteresting to inquire into the ancient classification of actions, which appears to have given rise to the present curious distinction between real and personal property. Actions, according to English law, were either real or personal or mixed. This division appears to have been first made by Bracton-Et sciendum, quod omnium actionum, sive placitorum (et inde utatur aequivoce) haec est prima divisio, quod quaedam sunt in rem, quaedam in personam et quaedam mixtae 2. It is followed in Fleta:- Placitorum aliud personale, aliud reale, aliud mixtum 3.' And the same distinction is made in Britton and the Mirror, and is handed down by Littleton, Coke 5 and Blackstone". The following passages from Britton and Littleton are worthy of note:

Britton, lib. ii. cap. ii, fol. 83 b7: 'Passé la fourme et la manere de pleder personels pletz pledables par attachementz de cors ou destresces des biens moebles, ore fet a dire de terre pledable par attachementz de mesmes les choses demandez.' Lib. iii. cap. iii, § 1, fol. 183 b: 'Une manere de accioun i ad pledable en nostre court qe est appelé mixte, pur taunt qe ele touche la persone vers qi la demaunde est fete, et estre ceo touche la chose demaundé; et par taunt est ele pledable par personeles destresces et ausi par reales

Littleton, sect. 492: Item, quant a relesses daccions realx et personelx, il est issint, que ascuns accions sont mixtes en le realte et en le personalte; sicome un accion de waste sue envers le tenaunt a terme de vie, cest accion est en le realte, pur ceo que le lieu waste serra recovere; auxi est en le personalte, pur ceo que les trebles damages serront recoveres pur le tort et wast fait per le tenaunt . . .

The authorities cited enable us to observe how the English words real action and personal action came to be used as equivalent to the Latin terms actio in rem, actio in personam, which Bracton borrowed from Roman law. Bracton, however, in applying these expressions to English law, was unable to use them in exactly the same signi

1 See 3 Black. Comm. 197, 202.

2 Bracton, lib. iii. cap. iii. par. i. fol. 101 b; see also lib. iv. cap. i. § 1, fol. 159 b. Fleta, lib. i. cap. i.

4 Chap. ii, sects. I, 4; see also chap. iv, sects. 5-8.

Co. Litt. 284 b: Of actions concerning common pleas Littleton speaketh in this place. And these are threefold (that is to say), reall, personall and mixt.'

6 3 Black. Comm. 117.

7 See also lib. i. ch. i. § 2, fol. I b.

* The expression actio personalis is used by the Roman jurists as equivalent to actio in personam, but the term actio realis is not found in the books composing the Corpus Juris Civilis; Savigny, System des heutigen Römischen Rechts, v. § 206, n. (g).

fication as they bore in the legal system of their origin. It followed that the English real and personal actions did not correspond with the Roman actiones in rem vel in personam. It is worth while to note the difference.

In Roman law the principal division of actions is said to be into actions in rem and actions in personam1. Of this classification various explanations ('full of most excellent differences') have been given 2. The ingenuity of commentators has been chiefly exercised over the actio in rem; for the actio in personam is not found to be the subject of controversy. An actio in personam was the remedy which gave effect to an obligatio. This action therefore was founded upon a claim to some act or forbearance on the part of the defendant personally; it put in issue the question, whether the defendant was bound in law to the plaintiff by the link of an obligatio, that is to say, whether the defendant was subject to a personal duty arising from contract or quasi ex contractu, or from delict or quasi ex delicto, to make his conduct conform in some particular to the plaintiff's satisfaction 3. In other words, actio in personam was an action against a particular person to enforce the plaintiff's right to an act or forbearance on the part of the defendant. When we attempt to define an actio in rem, the matter is complicated by the fact that the Roman jurists used the expression in rem in two senses; either as meaning 'against a thing' or as meaning 'generally' or 'impersonally. The expression actio in rem may therefore be translated either 'impersonal action' or 'action against a thing 5.' Actio in rem, as meaning an impersonal action, appears to be an action which is not based on a mere claim against the defendant personally; which does not raise the question of the existence of an obligatio between plaintiff and defendant, and therefore of a personal duty of action or forbearance on the defendant's part for the plaintiff's satisfaction. Actio in rem, as meaning an action against a thing, appears to be an action wherein the plaintiff claimed some corporeal thing as his own, or made a direct claim to one of those rights (other than obligatio) which the Roman jurists called res incorporales; such were ususfructus, servitudes, hereditas. If we prefer to place the claim of ownership along with the other claims of right and to use the word things as meaning

1 Inst. IV. vi. I; Savigny, System, § 206.

2 See Savigny, System des heutigen Römischen Rechts, v. §§ 206-209; Windscheid, Die Actio des Römischen Civilrechts, 1856; Ortolan, Explication historique des Institutes, §§ 1952 et seq., vol. iii. p. 538, 10th ed., 1876; Vangerow, Lehrbuch der Pandekten, § 113, p. 167, 7th ed., 1876; Windscheid, Lehrbuch des Pandektenrechts, §§ 40, 45, pp. 97, 108, 5th ed., 1882.

3 Savigny, System, v. §§ 206, 207; Windscheid, Die Actio, &c., v. 14, 16.

See Savigny, System, v. § 208, & n. (a); Windscheid, Die Actio, &c., 8, 9, n. (2), 12; Ortolan, Explication, &c., § 1956.

5 See Windscheid, Die Actio, &c., 11-13.

• Ib., 14, 16.

Gai. II. 14; IV. 3; Inst. II. ii; IV. vi. 1, 2; Savigny, System, v. § 209.

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corporeal things regarded as the object of rights, we may perhaps venture to define actio in rem in the latter sense as an action wherein the plaintiff does not allege the existence of an obligatio between himself and the defendant, and the consequent personal liability of the defendant to do or forbear something for his satisfaction, but puts in issue the question whether he himself is invested with a right availing directly against some thing without the intervention of any other person's action, and correlative to a duty of forbearance imposed on all the world. If we adopt the foregoing explanation, we shall find that actiones in rem, meaning impersonal actions, include actiones in rem, meaning actions against a thing. There were however in Roman law certain actions said to be in rem which were not actions against a thing. These were the actiones praejudiciales. In Justinian's time these proceedings appear to have been brought to obtain a judicial declaration of right upon a question of status; in earlier times they might also be brought to have the existence of certain facts judicially established 2. The actiones praejudiciales have been the chief obstacle in the way of those who have attempted to explain the principal Roman classification of actions. Savigny derives the classification of actiones praejudiciales as in rem from the fact that under the earlier Roman law questions of status might be decided by proceedings in the form of a rei vindicatio, which was another term for actio in rem (meaning against a thing)3. Windscheid classes these actions as impersonal, because they are not brought to give effect to a claim against the defendant personally. As regards the importation of the term actio in rem into English law, the actiones praejudiciales may be disregarded; for when Bracton borrowed the term actio in rem from Roman law he took it in the sense of 'action against a thing 5.'

Before proceeding to English law however, we may remark further that, although actiones in rem vel in personam were known to the Roman law in the early times of procedure per legis actiones, the division of actions into two kinds, those in personam and those in rem, appears to have been made by the jurists of the period of procedure per formulas. At that time it corresponded to a difference observed in framing a formula in jus concepta; that is to say, the formula in an action brought under the civil law as opposed to the equity of the prætor. This difference appeared in that part of the formula called the intentio, which stated the right claimed. In

1 Windscheid, Die Actio, &c., 16; Lehrbuch des Pandektenrechts, § 45 (2).

2 See Savigny, System, v. § 207; Windscheid, Die Actio, &c., 16–18.

3 Savigny, System, v. § 207.

Lehrbuch des Pandektenrechts, § 45 (3).

See Bracton, lib. iii. cap. iii. par. 3, fol. 102 a.
See Savigny, System, v. §§ 206 n. (a), 209.

Ortolan, Explication, &c., § 1955.

the actio in personam the intentio was framed so as to put in issue the question whether the defendant was bound to the plaintiff by an obligatio, that is, whether he was bound to do or forbear something for the plaintiff's satisfaction. In the actio in rem the intentio was framed impersonally; it made no mention of the defendant, and did not suggest any personal duty of action or forbearance on his part, but merely raised the question whether the plaintiff was owner of some corporeal thing or was entitled to one of those rights (other than an obligatio) called incorporeal things. It is also worthy of remark that in that part of a formula called the condemnatio, which indicated the judgment to be pronounced, it was always prescribed that judgment against the defendant should take the form of judgment for the payment of a sum of money1. It is true that in an action in rem this form of judgment appears to have been used as the means of indirectly securing restitution of the thing or specific enforcement of the right claimed 2. Nevertheless the foregoing details with regard to the formulary system of procedure, point to the conclusion that the authors of the principal Roman division of actions did not take the relief afforded by process of execution as the test whereby to recognize the nature of an action juris civilis. They did not distinguish such actions as being in rem or in personam according to the result of the inquiry, whether the relief to be obtained therein were restitution on the one hand, or compensation only on the other3: but they classified them according to the nature of the right therein asserted by the plaintiff and judicially declared to be valid by judgment in his favour. The actions given by the equity of the prætor were also classified as in rem or in personam upon the same ground 5. Here lies the root of the difference between the division of actions made in Roman law and that which obtained in our own system. For, as the Roman jurists distinguished actions according to the nature of the right thereby asserted, apart from the question of the possibility of the specific enforcement thereof, they had no reason, in determining the nature of an action to establish a claim of ownership over some corporeal thing, to have regard to any physical difference in the things, which may be the objects of ownership. Land might be the object of dominium ex jure quiritium as well as a slave, an ox, a horse or an ass. The same right of ownership was asserted, whether a man claimed a piece of land, a

1 Gai. IV. § 48: 'Omnium autem formularum quae condemnationem habent ad pecuniariam aestimationem condemnatio nunc concepta est. Itaque etsi corpus aliquod petamus, velut fundum, hominem, vestem, aurum, argentum, judex non ipsum rem condemnat eum cum quo actum est, sicut olim fieri solebat, sed aestimata re pecuniam eum condemnat.'

2 See Savigny, System, vi. § 287; Ortolan, Explication, &c., § 1937. See Holland, Jurisprudence, p. 243.

5 Ortolan, Explication, &c., § 1959.

See Savigny, System, vi. § 287. Gai. II. §§ 15-25, 40-42; Ulp. Frag. xix.

slave, or a flock of sheep as his own. Accordingly, from the earliest times of Roman law an actio in rem was applicable to the assertion of a claim of ownership over a moveable as well as over an immoveable corporeal thing1. The fact that land is immoveable and indestructible, while slaves and cattle are moveable and destructible, made no difference in the legal nature of the action which protected the owner's right 2.

Let us now turn to English law. Here we find the classification of actions to be founded on the following distinction: In some proceedings the restitution of a thing claimed, the specific enforcement of a right violated, may be directly effected by the strong hand of the law, that is to say, by process of execution dealing directly with the thing, which is the object of the right infringed. In other proceedings all that can be obtained is pecuniary compensation for a violation of right; what the English law calls damages3. It is accordingly laid down by Lord Coke that every action, wherein damages only are recovered by the plaintiff, is in law taken for an action personal. The mark of a real action is that therein process of execution might issue against the thing, which is the object of the right claimed. The thing itself was taken into the strong hand of the law and disposed of according to the judgment pronounced in the action. Thus a real action was a remedy wherein restitution or specific enforcement of right might be directly obtained. Mixed actions partook of the nature both of real and personal actions; that is to say, they were brought to obtain damages from the defendant personally as well as the restitution of some thing or the specific enforcement of some right by process issuing directly against the object of the right.

Now this view of the classification of actions is quite different from the Roman. It does not put forward the nature of the right asserted in an action as the test of the nature of the action; but it distinguishes actions according to the process of execution obtained therein. Let us see how Bracton, in applying the Roman terms actio in rem, actio in personam to English law, distorted their meaning, and used them in such a sense that the terms real and personal, as applied to actions and things in English law, have ever since been current with the notion of compensation attached to the one, and of specific restitution to the other.

Bracton, having classified actions as real, personal, or mixed 5, defines personal actions as those which lie against any one on the ground of contract vel quasi, or wrong vel quasi, when one is bound to give or to do something. He then proceeds:

1 Gai. IV. §§ 3, 16, 17, 48.

3 See 2 Black. Comm. 438.
Lib. iii. c. iii. § 2, fol. 102 8.

4 Co. Litt. 288 a.

2 Cf. Williams on Real Property, 1. Lib. iii. c. iii. § 1, fol. 101 b.