chapter xx.
Footnote 197:
See Dicey, Conflict of Laws, p. 458, 2nd ed.
Footnote 198:
See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, § 178; Hunter’s Roman Law, p. 138, 3rd ed.
Footnote 199:
See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.
Footnote 200:
The Romans termed them _servitutes_, but the English term servitude is used to include one class of _jura in re aliena_ only, namely the _servitutes praediorum_ of Roman Law.
Footnote 201:
The owner of an encumbrance may be termed the encumbrancer of the servient right or property over which it exists.
Footnote 202:
In addition to the distinctions between different kinds of rights considered in this chapter, there must be borne in mind the important distinction between Primary and Sanctioning Rights, but this has already been sufficiently dealt with in the chapter on the Administration of Justice.
Footnote 203:
Pollock, Jurisprudence, p. 175: “Ownership may be described as the entirety of the powers of use and disposal allowed by law.... The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere.”
Footnote 204:
The figurative identification of a right with its object is not absolutely limited to the case of material things, though this is by far the most important instance. Similar reasons of convenience of speech and ease of thought lead to a similar metonymy in other cases, when the object of a _jus in re propria_ has a recognised name. We speak, for example, of the ownership of a trade-mark, or of that of the good-will of a business; meaning thereby the ownership of a _jus in re propria_ in respect of these things.
Footnote 205:
A similar explanation of the distinction between corporeal and incorporeal ownership is given by the following writers:—
Windscheid I. sect. 42: “A very common form of speech ... substitutes for the right of ownership (Eigenthumsrecht) the thing in respect of which it exists.”
Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its excuse, if not its justification, in the consideration that the right of ownership, being the most complete right which can exist in respect of a thing, since it is absolute and exclusive, is identified with the thing itself.”
Bruns, Das Recht des Besitzes, p. 477.
Girard, Droit Romain, p. 244.
Footnote 206:
Austin, p. 358. German Civil Code, sect. 90: Sachen im Sinne des Gesetzes sind nur körperliche Gegenstände.
Footnote 207:
Vide supra, § 73.
Footnote 208:
This use of the term thing (_res_) and the distinction between _res corporalis_ and _res incorporalis_ are derived from Roman Law. Just. Inst. II. 2:—Quaedam praeterea res corporales sunt, quaedam incorporales. Corporales eae sunt, quae sui natura tangi possunt: veluti fundus, homo, vestis, aurum, argentum, et denique aliae res innumerables. Incorporales autem sunt, quae tangi non possunt. Qualia sunt ea, quae in jure consistunt: sicut hereditas, usufructus, obligationes quoque modo contractae.
Footnote 209:
The same explanation is applicable to the distinction between corporeal and incorporeal _property_. A person’s property consists sometimes of material objects and sometimes of rights. As to the different uses of the term property, see infra, ch. xx.
Footnote 210:
He who owns property for his own use and benefit, without the intervention of any trustee, may be termed the _direct_ owner of it, as opposed to a mere trustee on the one hand, and to a beneficial owner or beneficiary on the other. Thus if A. owns land, and makes a declaration of trust in favour of B., the direct ownership of A. is thereby changed into trust-ownership, and a correlative beneficial ownership is acquired by B. If A. then conveys the land to B., the ownership of B. ceases to be merely beneficial, and becomes direct.
Footnote 211:
On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The Place of Trust in Jurisprudence, by W. G. Hart).
Footnote 212:
Vide supra, § 85.
Footnote 213:
On investitive and divestitive facts, see chapter xvi., § 120.
Footnote 214:
On vested and contingent ownership, see Windscheid, I. sects. 86–95; Dernburg, Pandekten, I. 82. 105–112; Austin, Lecture 53.
Footnote 215:
Possession in law is sometimes used in a narrow sense to denote possession which is such in law only and not both in law and in fact—that is to say, to denote constructive possession (_possessio fictitia_). In the wider sense it denotes all possession which is recognised by the law, whether it does or does not at the same time exist in fact.
Footnote 216:
See, as to the idea of seisin and the consequences attributed to its presence or absence, a series of interesting articles by Maitland in the L. Q. R., I. 324, II. 481. IV. 24, 286. See also Lightwood, Possession of Land, pp. 4–8.
Footnote 217:
_Possessio_ is the _de facto_ relation between the possessor and the thing possessed. _Jus possessionis_ is the right (if any) of which possession is the source or title. _Jus possidendi_ is the right (if any) which a man has to acquire or to retain possession.
Footnote 218:
D. 41. 2. 3. 1.
Footnote 219:
It must be remembered that we are speaking of possession in fact. Whether possession in law and the various advantages conferred by it are to be attributed to all possessors in fact or only to some of them is a different question with which we are not here concerned. Roman Law, save in exceptional cases, allowed possessio corporis only to those who possessed as owners and on their own behalf. In English law, on the other hand, there is no such limitation of legal possession; though even here the possession of a servant sometimes fails to obtain legal recognition.
Footnote 220:
_R._ v. _Mucklow_, 1 Moody C. C. 160.
Footnote 221:
_Merry_ v. _Green_, 7 M. & W. 623.
Footnote 222:
Pollock and Wright, Possession in the Common Law, p. 14.
Footnote 223:
“Absolute security for the future,” says Dernburg, Pandekten, I. sect. 169, “is not requisite. For it is not to be had.... All that is necessary is that according to the ordinary course of affairs one is able to count on the continuing enjoyment of the thing.” See also I. sect. 178. See also Pollock and Wright, Possession, p. 13: “That occupation is effective which is sufficient as a rule and for practical purposes to exclude strangers from interfering with the occupier’s use and enjoyment.”
Footnote 224:
Pollock and Wright, Possession, p. 15: “Physical or _de facto_ possession readily follows the reputation of title.”
Footnote 225:
In the words of Ihering: “The visibility of possession is of decisive importance for its security.” Grund des Besitzesschutzes, p. 190.
Footnote 226:
21 L. J. Q.B. 75.
Footnote 227:
L. & C. 1.
Footnote 228:
7 M. & W. 623.
Footnote 229:
8 Ves. 405. 7 R. R. 99.
Footnote 230:
1 Moody C. C. 160.
Footnote 231:
33 Ch. D. 562.
Footnote 232:
(1896) 2 Q. B. 44.
Footnote 233:
1 Smith L. C, 10th ed. 343; 1 Strange 504.
Footnote 234:
See for a criticism of the _ratio decidendi_ of this case Clerk and Lindsell’s Law of Torts, Appendix.
Footnote 235:
33 Ch. D. 562 at p. 568.
Footnote 236:
The explicit recognition of mediate possession (mittelbarer Besitz) in its fullest extent is a characteristic feature of the German Civil Code (sects. 868–871): “If any one possesses a thing as usufructuary, pledgee, tenant, borrower, or depositee, or in any similar capacity by virtue of which he is entitled or bound with respect to some other person to keep possession of the thing for a limited time, then that other person has possession of it also (mediate possession).” See Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp. 697–701.
Footnote 237:
In _Ancona_ v. _Rogers_ (1 Ex. D. at p. 292) it is said in the judgment of the Exchequer Chamber: “There is no doubt that a bailor who has delivered goods to a bailee to keep them on account of the bailor, may still treat the goods as being in his own possession, and can maintain trespass against a wrongdoer who interferes with them. It was argued, however, that this was a mere legal or constructive possession of the goods.... We do not agree with this argument. It seems to us that goods which have been delivered to a bailee to keep for the bailor, such as a gentleman’s plate delivered to his banker, or his furniture warehoused at the Pantechnicon, would in a popular sense as well as in a legal sense be said to be still in his possession.”
Footnote 238:
(1893) 2 Q. B. 30, 31.
Footnote 239:
1 Taunt. 458; 10 R. R. 578.
Footnote 240:
6 El. & B. 726.
Footnote 241:
At p. 735.
Footnote 242:
D. 41. 2. 3. 5.
Footnote 243:
These terms, however, are not strictly accurate, inasmuch as the so-called constructive delivery is a perfectly real transfer of possession, and involves no element of fiction whatever.
Footnote 244:
For examples of _traditio brevi manu_, see _Winter_ v. _Winter_, 4 L. T. (N.S.) 639; _Cain_ v. _Moon_, (1896) 2 Q. B. 283; _Richer_ v. _Voyer_, L. R. 5 P. C. 461.
Footnote 245:
For examples of _constitutum possessorium_, see _Elmore_ v. _Stone_, 1 Taunt. 458; 10 R. R. 578; _Marvin_ v. _Wallace_, 6 El. & Bl. 726. See supra § 101.
Footnote 246:
_Constitutum possessorium_, also, may be termed attornment in a wide sense.
Footnote 247:
Delivery by attornment is provided for by the Sale of Goods Act, 1893, sect. 29 (3): “Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.”
Footnote 248:
The theory here considered is that which has been made familiar by Savigny’s celebrated treatise on Possession (Recht des Besitzes, 1803). The influence of this work was long predominant on the Continent and considerable in England, and it still finds no small amount of acceptance. A forcible statement of the objections to Savigny’s doctrine is contained in Ihering’s Grund des Besitzesschutzes, pp. 160–193.
Footnote 249:
Bruns rejects the definition of possession as consisting in the continuing exercise of a right, and defines it as the continuous possibility of exercising a right at will. “Just as corporeal possession,” he says (Recht des Besitzes, p. 475) “consists not in actual dealing with the thing, but only in the power of dealing with it at will, so incorporeal possession consists not in the actual exercise of a right, but in the power of exercising it at will; and it is only because the existence of this power does not become visible as an objective fact until actual exercise of the right has taken place, that such actual exercise is recognised as an essential condition of the commencement of possession.” This however seems incorrect. Possession consists not in the power of exercising a claim in the future, but in the power of _continuing to exercise it_ from now onwards.
Footnote 250:
Thus in the Civil Code of France it is said (sect. 2228): La possession est la détention ou la jouissance d’une chose ou d’un droit que nous tenons ou que nous exerçons par nous-mêmes ou par un autre qui la tient ou qui l’exerce en notre nom.
The definition of the Italian Civil Code is similar (sect. 685): “Possession is the detention of a thing or the enjoyment of a right by any person either personally or through another who detains the thing or exercises the right in his name.”
A good analysis of the generic conception of possession, and of the relation between its two varieties, is to be found in Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect. 199): “Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing. It makes no difference whether this right is one of ownership or one of some other description, such as _ususfructus_, _usus_, _habitatio_, or _servitus_. The old distinction between possession and quasi-possession, which was recognised by Roman law and is still to be found in the doctrine of Pothier, has been rejected, and rightly so. It was in our opinion nothing more than a result of that confusion between the right of ownership and the object of that right, which has been at all times prevalent. Possession is merely the exercise of a right; in reality it is not the thing which we possess, but the right which we have or claim to have over the thing. This is as true of the right of ownership as of the right of servitude and usufruct; and consequently the distinction between the possession of a thing and the quasi-possession of a right is destitute of foundation.
See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms of possession consist in the exercise of a right (die Ausübung eines Rechts).” Bruns, also, recognises the figure of speech on which the distinction between corporeal and incorporeal possession is based. Recht des Besitzes, p. 477.
Footnote 251:
Grund des Besitz, p. 179: Der Besitz die Thatsächlichkeit des Eigenthums. See also at p. 192: Der Besitz ist die Thatsächlichkeit des Rechts.
Footnote 252:
In saying that possession is the _de facto_ counterpart of ownership, it is to be remembered that we use both terms in their widest sense, as including both the corporeal and incorporeal forms. If we confine our attention to corporeal ownership and possession, the correspondence between them is incomplete. Many claims constitute corporeal possession if exercised _de facto_, but incorporeal ownership if recognised _de jure_. Thus tenants, bailees, and pledgees have corporeal possession but incorporeal ownership. They possess the land or the chattel, but own merely an encumbrance over it. The ownership of a book means the ownership of the _general or residuary right_ to it; but the possession of a book means merely the possession of an _exclusive right to it for the time being_. That is to say, the figurative usage of speech is not the same in possession as in ownership, therefore much corporeal possession is the counterpart of incorporeal ownership.
Footnote 253:
Windscheid II. sect. 464: “If we ask what other rights, in addition to real rights, admit of possession, the answer is that in principle no right is incapable of possession, which is capable of continuing exercise (dauernde Ausübung).”
So Ihering, Grund des Besitz, p. 158: “The conception of possession is applicable to all rights which admit of realisation (Thatsächlichkeit), that is to say, which admit of a continuing visible exercise.” Ihering defines possession generally (p. 160) as “Thatsächlichkeit der mit dauernder Ausübung verbundenen Rechte.” See also Bruns, Recht des Besitzes, pp. 479, 481.
Footnote 254:
See for example the German Civil Code, sects. 858, 861, 864, and the Italian Civil Code, sects. 694–697.
Footnote 255:
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1. _Armorie_ v. _Delamirie_, 1 Stra. 504. 1 Sm. L. C. 10th ed. 343. _Bridges_ v. _Hawkesworth_, 21 L. J. Q. B. 75.
Footnote 256:
Legal persons are also termed fictitious, juristic, artificial, or moral.
Footnote 257:
Exodus xxi. 28. To the same effect see Plato’s Laws, 873.
Footnote 258:
_Ellis_ v. _Loftus Iron Company_, L. R. 10 C. P. at p. 13: “In the case of animals trespassing on land the mere act of the animal belonging to a man which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass.” _Cf._ Just. Inst. iv. 9.
Footnote 259:
D. 1. 5. 2.
Footnote 260:
_In re Dean_, 41 Ch. D. 552.
Footnote 261:
Ibid. p. 557.
Footnote 262:
Hereditas personae vice fungitur. D. 46. 1. 22. Creditum est hereditatem dominam esse, defuncti locum obtinere. D. 28. 5. 31. 1.
Footnote 263:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 264:
_R._ v. _Raynes_, 2 East P. C. 652.
Footnote 265:
_Foster_ v. _Dodd_, L. R. 3 Q. B. at p. 77: “Whether in ground consecrated or unconsecrated indignities offered to human remains in improperly and indecently disinterring them, are the ground of an indictment.”
Footnote 266:
_R._ v. _Stewart_, 12 Ad. and El. 777. As to the lawfulness of cremation see _Reg._ v. _Price_, 12 Q. B. D. 247.
Footnote 267:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 268:
2 & 3 Wm. IV. c. 75, sect. 7.
Footnote 269:
_In re Vaughan_, 33 Ch. D. 187; _Hoare_ v. _Osborne_, 1 Eq. 587.
Footnote 270:
_In re Dean_, 41 Ch. D. 557.
Footnote 271:
5 Co. Rep 125 a: _R._ v. _Labouchere_, 12 Q. B. D. 320; Stephen’s Digest of Criminal Law, sect. 291. 5th ed.
Footnote 272:
7 Co. Rep. 8 b. Compare D. 1. 5. 26: Qui in utero sunt in toto paene jure civili intelleguntur in rerum natura esse.
Footnote 273:
_The George and Richard_, L. R. 3 Ad. and Ecc. 466.
Footnote 274:
_R._ v. _Senior_, 1 Moody, C. C. 344; _R._ v. _West_, 2 Car. and Kir. 784.
Footnote 275:
_Walker_ v. _Great Northern Ry. Co. of Ireland_, 28 L. R. Ir. 69.
Footnote 276:
The maxim of the law is: Quum duo jura in una persona concurrunt, aequum est ac si essent in duobus. _Calvin’s Case_, 2 State Trials 584. _Coppin_ v. _Coppin_, 2 P. W. 295.
Footnote 277:
D. 8. 2. 26.
Footnote 278:
German writers term it the _substratum_ or _Unterlage_ of the fictitious person. Windscheid, I. sect. 57. Vangerow, I. sect. 53. Puchta, II. 192.
Footnote 279:
Co. Litt. 2. a.
Footnote 280:
8 Ed. VII. c. 48, s. 33.
Footnote 281:
39 & 40 Vict. c. 18, s. 1.
Footnote 282:
18 & 19 Vict. c. 117, s. 2.
Footnote 283:
Corporations sole are not a peculiarity of English law. The distinction between the two forms of incorporation is well known to foreign jurists. See Windscheid, I. sect. 57. Vangerow, I. sect. 53. The English law as to corporations sole is extremely imperfect and undeveloped, but the conception itself is perfectly logical, and is capable of serious and profitable uses. Maitland has traced the history of this branch of the law in two articles in the L. Q. R. XVI. p. 335. and XVII. p. 131.
Footnote 284:
Savigny, System, sect. 90: “The aggregate of the members who compose a corporation differs essentially from the corporation itself.” _The Great Eastern Ry. Co._ v. _Turner_, L. R. 8 Ch. at p. 152: “The Company is a mere abstraction of law.” _Flitcroft’s Case_, 21 Ch. D. at p. 536: “The corporation is not a mere aggregate of shareholders.” _Salomon_ v. _Salomon & Co._ (1897) A. C. at p. 51: “The company is at law a different person altogether from the subscribers to the memorandum.”
Footnote 285:
D. 3. 4. 7. 2. Cum jus omnium in unum reciderit, et stet nomen universitatis. _Universitas_ is the generic title of a corporation in Roman law, a title retained to this day in the case of that particular form of corporation which we know as a university.
Footnote 286:
Blackstone, I. 485.
Footnote 287:
Lindley on Companies, II. p. 822 (6th ed.): “A company which is incorporated by act of parliament can be dissolved only as therein provided, or by another act of parliament.”
Footnote 288:
That a corporation may survive the last of its members is admitted by Savigny (System, sect. 89), and Windscheid (I. sect. 61).
Footnote 289:
The leading advocate of this realistic theory is Gierke (Die Genossenschaftstheorie, 1887. Deutsches Privatrecht, 1895). See also Dernburg, Pandekten, I. sect. 59, and Mestre, Les Personnes Morales, 1899. In England it has received sympathetic exposition, if not express support, from Maitland in the Introduction to his translation of part of Gierke’s Genossenschaftsrecht (Political Theories of the Middle Ages, 1900). See also, to the same effect, Pollock, Jurisprudence, p. 113, and L. Q. R. vol. 27, p. 219; Brown, Austinian Theory of Law, Excursus A; 22 L. Q. R. 178, The Legal Personality of a Foreign Corporation, by E. H. Young. Savigny and Windscheid are representative adherents of the older doctrine. For further discussions of this question see Harvard Law Review, vol. xxiv. pp. 253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly Review, vol. xxvii. p. 90 (Legal Personality, by Prof. W. M. Geldart); Gray’s Nature and Sources of the Law, ch. 2; Saleilles, De la personnalité juridique.
Footnote 290:
The relation between a corporation and its beneficiaries may or may not amount to a _trust_ in the proper sense of the term. A share in a company is not the beneficial ownership of a certain proportion of the company’s property, but the benefit of a contract made by the shareholder with the company, under which he is entitled to be paid a share of the profits made by the company, and of the surplus assets on its dissolution. A share is a chose in action—an _obligation_ between the company and the shareholder. _Colonial Bank_ v. _Whinney_, 11 A. C. 426.
Footnote 291:
_Cornford_ v. _Carlton Bank_, (1899) 1 Q. B. 392; (1900) 1 Q. B. 22.
Footnote 292:
_Reg._ v. _Birmingham and Gloucester Ry. Coy._, 3 Q. B. 223; _Reg._ v. _Great North of England Ry. Coy._, 9 Q. B. 315.
Footnote 293:
As to the liability of corporations, see Salmond’s Law of Torts, § 18; Pollock’s Law of Torts, p. 60, 8th ed.; _Cornford_ v. _Carlton Bank_, (1899) 1 Q. B. 392; _Citizens’ Life Assurance Co._ v. _Brown_, (1904) A. C. 423; _Green_ v. _London General Omnibus Coy._, 7 C. B. (N. S.) 290; _Abrath_ v. _North Eastern Railway Co._, 11 A. C. 247, per Baron Bramwell; Dernburg, Pandekten, I. sect. 66; Windscheid, I. sect. 59; Savigny, System, sects. 94, 95; D. 4. 3. 15. 1.
Footnote 294:
D. 3. 4. 7. 1.
Footnote 295:
It is a somewhat curious circumstance that the legal persons created by one system of law receive full recognition from other systems. This form of legal fiction has acquired extraterritorial and international validity. A French corporation can sue and be sued in an English court of justice as if it were a real person. _The Dutch West India Co._ v. _Van Moses_, 1 Str. 611; _Newby_ v. _Van Oppen_, L. R. 7 Q. B. 293.
Footnote 296:
_Calvin’s Case_, 2 State Trials, at p. 624: “The King hath two capacities in him: one a natural body, being descended of the blood royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like: the other is a politick body or capacity, so called because it is framed by the policy of man; and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy.” As to the history of this idea see Holdsworth’s History of English Law, III. pp. 357–362.
Footnote 297:
_Sloman_ v. _Government of New Zealand_, 1 C. P. D. 563. This was an action brought in England against the “Governor and Government of the Colony of New Zealand.” It failed because there was no such person or body corporate known to the law.
Footnote 298:
See _Williams_ v. _Howarth_, (1905) A. C. 551.
Footnote 299:
The Commonwealth of Australia, for example, and also the constituent Australian states are now to be deemed for certain purposes bodies politic and corporate. For by virtue of Australian legislation they can now sue and be sued in their own names, and possess other attributes of personality; thus an action will now lie at the suit of the State of Victoria against the State of New South Wales. The corporate character thus bestowed upon these states, however, is concurrent with, and not exclusive of the old common law principle which identifies the state with the King. Public lands in Australia, for example, are still the lands of the Crown, except so far as they may be expressly vested in the corporate state by statute.
Footnote 300:
_Supra_, § 112.
Footnote 301:
It has been expressly recognised by the High Court of Australia, so far as regards the Commonwealth of Australia and the constituent states: _Municipal Council of Sydney_ v. _The Commonwealth_, 1 Commonwealth L. R. at p. 231, per Griffith, C. J.: “It is manifest from the whole scope of the Constitution that just as the Commonwealth and State are regarded as distinct and separate sovereign bodies,...so the Crown as representing those several bodies is to be regarded not as one, but as several juristic persons.”
Footnote 302:
Title meant originally a mark, sign, or inscription; _e.g._, the title of a book; _titulus sepulchri_, an epitaph. “Pilate wrote a title and put it on the cross.” John xix. 19. Thence more specifically it came to mean signs or evidence of right or ownership; _e.g._, _titulus_, a boundary-stone; _titulus_, a title-deed (Ducange). Thence the _ground_ of right or ownership, viz., an investitive fact.
Footnote 303:
Bentham calls such facts _dispositive_.
Footnote 304:
We may term them, with Bentham, _translative_ facts.
Footnote 305:
We here use the term transfer in its generic sense, as including both voluntary and involuntary changes of ownership. It has also a specific sense in which it includes only the former. Succession _ab intestato_, for example, is a transfer of rights in the wide sense, but not in the narrow.
Footnote 306:
This nomenclature has been suggested and adopted by Sir Frederick Pollock (Jurisprudence, p. 142). Other writers prefer to indicate acts in the law by the term juristic acts. The Germans call them Rechtsgeschäfte.
Footnote 307:
The use of the terms agreement and contract is curiously unsettled.
_a._ Agreement and contract are often used as synonyms, to mean a bilateral act in the law directed to the creation of an obligation, that is to say a right _in personam_. The objection to this usage is that we cannot afford so to waste one of these terms.
_b._ Contract is sometimes used to mean an agreement (in the preceding sense) enforceable by law. Pollock, Principles of Contract, p. 8. Indian Contract Act, sect. 2 (h). This, also, seems the sacrifice of a useful term to an inadequate purpose. Moreover the distinction does not conform to established usage. We habitually and conveniently speak of void, invalid, or illegal _contracts_.
_c._ Contract is sometimes used in the wide sense of any bilateral act in the law. Holland, pp. 225, 226. This, however, is very unusual, and it is certainly better to use agreement in this sense. Contract, being derived from _contrahere_, involves the idea of binding two persons together by the _vinculum juris_ of an obligation. An assignment is not a contract, and a release is the very reverse of a contract.
_d._ There remains the usage suggested and adopted in the text. An agreement is a bilateral act in the law. Est pactio duorum pluriumve in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the other hand, is that particular kind of agreement which is intended to create a right _in personam_ between the parties. This is the distinction adopted by Sir W. Anson in his work on Contracts, p. 2: “Contract is that form of agreement which directly contemplates and creates an obligation.” So Pothier, Traité des Obligations, sect. 3; L’espèce de convention qui a pour objet de former quelque engagement est celle qu’on appelle contrat. _Cf._ French Civil Code, Art. 1101. The Germans use _Vertrag_ as equivalent to agreement in this sense; while a contract is _obligatorischer Vertrag_, or _Vertrag_ in a narrower sense. Savigny, System, sect. 141. Puchta, sect. 271. Dernburg, Pandekten, I. sect. 92.
Footnote 308:
_Middleton_ v. _Pollock_, 2 Ch. D. 104; _Sharp_ v. _Jackson_, (1899) A. C. 419.
Footnote 309:
The terms unilateral and bilateral possess another signification distinct from that which is attributed to them in the text. In the sense there adopted all agreements are bilateral, but there is another sense in which some of them are bilateral and others unilateral. An agreement is bilateral, in this latter signification, if there is something _to be done_ by each party to it, while it is unilateral if one party is purely passive and free from legal obligation, all the activity and obligation being on the other side. An agreement to lend money is bilateral, while an agreement to give money is unilateral.
Footnote 310:
D. 50, 17. 69.
Footnote 311:
Summa, 2. 2. q. 57. art. 2.
Footnote 312:
In respect of the efficacy of contracts, there is a special case which requires a word of notice. A contract may be neither void nor voidable, but yet _unenforceable_. That is to say, no action will lie for the enforcement of it. The obligation created by it is imperfect. See _ante_, § 78. An example is a verbal contract which ought to be in writing under the Statute of Frauds.
Footnote 313:
D. 50. 17. 45. 1.
Footnote 314:
_Cundy_ v. _Lindsay_, 3 A.C. 459; _Raffles_ v. _Wichelhaus_, 2 H. & C. 906.
Footnote 315:
_King_ v. _Smith_, (1900) 2 Ch. 425.
Footnote 316:
_Smith v. Hughes_, L. R. 6 Q. B. 597.
Footnote 317:
In addition to the ease of misrepresentation, unessential error affects any agreement which has been expressly or impliedly made conditional on the existence of the fact erroneously supposed to exist. A contract of sale, for example, is conditional on the present existence of the thing sold; if it is already destroyed, the contract for the purchase of it is void.
Footnote 318:
With the exception of contracts under seal and contracts of record, to which the doctrine of consideration is inapplicable.
Footnote 319:
_Cf._ D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit. See also D. 12. 7. 1. pr.
Footnote 320:
Salmond, Essays in Jurisprudence and Legal History, p. 219.
Footnote 321:
The French law as to the cause or consideration of a contract will be found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie, Obligations, sects. 295–327. Whether the English doctrine of consideration is historically connected with the _causa_ of the civil law in a matter of dispute, and there is much to be said on both sides.
Footnote 322:
We have already seen that the term liability has also a wider sense, in which it is the correlative of _any_ legal power or liberty, and not merely of the right of action or prosecution vested in a person wronged. Supra, § 77.
Footnote 323:
Supra, § 27.
Footnote 324:
Supra, § 34.
Footnote 325:
Supra, § 78.
Footnote 326:
Gaius, III. 211.
Footnote 327:
The distinction between material and formal wrongdoing has long been familiar in moral philosophy. The material badness of an act depends on the actual nature, circumstances, and consequences of it. Its formal badness depends on the state of mind or will of the actor. The madman who kills his keeper offends materially but not formally; so also with him who in invincible ignorance breaks the rule of right. Material without formal wrongdoing is no ground of culpability.
Footnote 328:
Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements which immediately follow our desires of them are the only human acts, strictly and properly so called.”
Footnote 329:
It is unfortunate that there is no recognised name for the origin or initial stage of the act, as contrasted with the totality of it. Bentham calls the former the _act_ and the latter the _action_. Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these two terms are synonymous, and to use them in this special sense would only lead to confusion.
Footnote 330:
See Salmond on Torts, p. 165, 3rd ed.
Footnote 331:
_Reg._ v. _Coombes_, 1 Lea. Cr. C. 388.
Footnote 332:
_United States_ v. _Davis_, 2 Sumner, 482.
Footnote 333:
_Reg._ v. _Armstrong_, 13 Cox, C. C. 184; _Reg._ v. _Keyn_, 2 Ex. D. 63.
Footnote 334:
_Cowan_ v. _O’Connor_, 20 Q. B. D. 640.
Footnote 335:
_Muller & Co’s Margarine, Limited_ v. _Inland Revenue Commissioners_, (1900) 1 Q. B. 310; (1901) A. C. 217.
Footnote 336:
_Reg._ v. _Ellis_, (1899) 1 Q. B. 230.
Footnote 337:
The question is fully discussed in the case of _Reg._ v. _Keyn_, 2 Ex. D. 63, in which the captain of a German steamer was tried in England for manslaughter by negligently sinking an English ship in the Channel and drowning one of the passengers. One of the minor questions in the case was that of the place in which the offence was committed. Was it on board the English ship, or on board the German steamer, or on board neither of them? Four of the judges of the Court for Crown Cases Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and Cockburn, C.J., agreed that if the offence had been wilful homicide it would have been committed on the English ship. Denman, J., and Coleridge, C.J., applied the same rule to negligent homicide. Cockburn, C.J., doubted as to negligent homicide. Bramwell, B., said (p. 150): “If the act was wilful, it is done where the will intends it should take effect; aliter when it is negligent.” For a further discussion of the matter, see Stephen’s History of Criminal Law, II. pp. 9–12, and Oppenhoff’s annotated edition of the German Criminal Code (13th ed. 1896), p. 28. The German doctrine is that an act is committed in the place where it is begun. See also Terry, Principles of Anglo-American Law, pp. 598–606, and _Edmundson_ v. _Render_, (1905) 2 Ch. 320.
Footnote 338:
_Northey Stone Co._ v. _Gidney_, (1894) 1 Q. B. 99.
Footnote 339:
If the law dates the commission of a wrong from the completion of it, it follows that there are cases in which a man may commit a wrong after his death. If A. excavates his own land so as to cause, after an interval, the subsidence of the adjoining land of B., there is no wrong done until the subsidence happens; _Backhouse_ v. _Bonomi_, 9 H. L. C. 503; _Darley Main Colliery Co._ v. _Mitchell_, 11 A. C. 127. What shall be said, then, if A. is dead in the meantime? The wrong, it seems, is not done by his successors in title: _Hall_ v. _Duke of Norfolk_, (1900) 2 Ch. 493; _Greenwell_ v. _Low Beechburn Colliery_, (1897) 2 Q. B. 165. The law, therefore, must hold either that there is no wrong at all, or that it is committed by a man who is dead at the date of its commission.
Footnote 340:
Holmes, Common Law, p. 53: “Intent will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act.”
Footnote 341:
It is to be noticed, however, that the part which _was_ intended may constitute in itself an independent intentional wrong included in the larger and unintentional wrong of which it forms a part. Intentionally to discharge firearms in a public street is a wilful wrong, if such an act is prohibited by law. But accidentally to kill a person by the intentional discharge of firearms in a public street is a wrong of negligence.
Footnote 342:
See however § 143, infra, as to constructive intent. Wrongful intent is sometimes imputed in law when there is none in fact.
Footnote 343:
For a discussion of this matter, see _Ex parte Hill_, 23 Ch. D. 695, per Bowen, L. J., at p. 704; also _Ex parte Taylor_, 18 Q. B. D. 295.
Footnote 344:
See for example D. 4. 3. 1. pr.
Footnote 345:
It is to malice in one only of these two uses that the well-known definition given in _Bromage_ v. _Prosser_ (4 Barn & C. 247; 28 R. R. 241) is applicable: “Malice in common acceptation means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.” See, to the same effect, _Mogul Steamship Co._ v. _McGregor Gow & Co._, 23 Q. B. D. at p. 612, per Bowen, L. J.; and _Allen_ v. _Flood_, (1898) A. C. at p. 94, per Lord Watson.
Footnote 346:
D. 4. 3. 1. 2.
Footnote 347:
_Allen_ v. _Flood_, (1898) A. C. at p. 123.
Footnote 348:
_Corporation of Bradford_ v. _Pickles_, (1895) A. C. 587 at p. 598.
Footnote 349:
_Allen_ v. _Flood_, (1898) A. C. 92 at p. 152.
Footnote 350:
The Roman law as to the rights of adjoining proprietors was different. Harm done _animo nocendi_, that is to say, with a malicious motive, was actionable. D. 39. 3. 1. 12. The German Civil Code, sect. 226, provides quite generally that the exercise of a right is unlawful when its only motive is to harm another person.
Footnote 351:
Art. 50, 5th ed.
Footnote 352:
Strafgesetzbuch, sect. 43. _Cf._ the French Code Pénal, Art. 2.
Footnote 353:
_Roberts’ Case_, Dearsly C. C. 539. Per Parke, B., at p. 551: “An attempt at committing a misdemeanour is not an indictable attempt unless it is an act directly approximating to the commission of an offence, and I think this act is a sufficient approximation. I do not see for what lawful purpose the dies of a foreign coin can be used in England, or for what purpose they could have been procured except to use them for coining.” Per Wightman, J., at p. 551: “It is an act immediately connected with the commission of the offence, and in truth the prisoner could have no other object than to commit the offence.” Per Jervis, C. J., at p. 550: “The prisoner was in possession of machinery necessarily connected with the offence, for the express purpose of committing it, and which was obtained and could be used for no other purpose.”
Footnote 354:
_Reg._ v. _Collins_, L. & C. 471.
Footnote 355:
_Reg._ v. _Ring_, 61 L. J. M. C. 116; _Reg._ v. _Brown_, 24 Q. B. D. 357.
Footnote 356:
Leviathan, ch. 27. Eng. Works III. 288.
Footnote 357:
_Reg._ v. _Dudley_ 14 Q. B. D. 273. The law as to compulsion and necessity is discussed in Stephen’s History of the Criminal Law, vol. ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I. 51. See also the German Criminal Code, sect. 54, in which the _jus necessitatis_ receives express recognition.
Footnote 358:
In Roman law negligence is signified by the terms _culpa_ and _negligentia_, as contrasted with _dolus_ or wrongful intention. Care, or the absence of _negligentia_, is _diligentia_. The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction. In ordinary usage, diligence is opposed to idleness, not to carelessness.
Footnote 359:
_Grill_ v. _General Iron Screw Colliery Co._, L. R. 1 C. P. at p. 612.
Footnote 360:
_Kettlewell_ v. _Watson_, 21 Ch. D. at p. 706: “Fraud imports design and purpose; negligence imports that you are acting carelessly and without that design.”
Footnote 361:
An excellent analysis of the conception of negligence is to be found in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See especially sect. 32 (1): “negligent wrongdoing is that which is not intentional, but results from culpable inadvertence (Unaufmerksamkeit) or indifference (Gleichgultigkeit). The mental attitude of the wrongdoer consists not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The law is not satisfied with the mere absence of any intention to inflict injury, but demands a positive direction of the will towards the avoidance of it.”
Footnote 362:
The distinction between these two forms of negligence is well explained by Merkel, Strafrecht, sect. 33 (3).
Footnote 363:
Inst. Just. 4. 3. 7.
Footnote 364:
_Derry_ v. _Peek_, 14 A. C. 337; _Le Lievre_ v. _Gould_, (1893) 1 Q. B. 491.
Footnote 365:
_Macarthy_ v. _Young_, 6 H. & N. 329; _Coughlin_ v. _Gillison_, (1899) 1 Q. B. 145. For the same reason the occupier of dangerous premises owes a duty of care to him who comes there on business, but none towards a bare licensee. _Gautret_ v. _Egerton_, L. R. 2 C. P. 371. Similarly an arbitrator is liable for fraud, but not for negligence or want of skill. _Tharsis Sulphur and Copper Co._ v. _Loftus_, L. R. 8 C. P. 1.
Footnote 366:
_Tillett_ v. _Ward_, 10 Q. B. D. 17.
Footnote 367:
_Hammack_ v. _White_, 11 C. B. N. S. 588.
Footnote 368:
_Metropolitan R. Co._ v. _Jackson_, 3 A. C. 193.
Footnote 369:
These negative rules as to negligence commonly assume the form of rules of evidence to the effect that there is no evidence of negligence to go to the jury. But to withdraw a case from the jury on this ground is clearly equivalent to the establishment of a rule of substantive law that the facts proved do not amount to negligence.
Footnote 370:
_Pluckwell_ v. _Wilson_, 5 C. & P. 375.
Footnote 371:
As to negligence in law, see Holmes, Common Law, p. 111 _sqq._
Footnote 372:
See. for example, Smith’s Leading Cases I. 228, 10th ed. (Notes to _Coggs_ v. _Bernard_.)
Footnote 373:
See _Hinton_ v. _Dibbin_, 2 Q. B. at p. 661, per Denman, C. J.: “It may well be doubted whether between gross negligence and negligence merely any intelligible distinction exists.” _Wilson_ v. _Brett_, 11 M. & W. at p. 113, per Rolfe, B.: “I said I could see no difference between negligence and gross negligence, that it was the same thing with the addition of a vituperative epithet.” _Grill_ v. _General Iron Screw Colliery Co._, L. R. 1 C. P. at p. 612, per Willes, J.: “No information has been given us as to the meaning to be attached to gross negligence in this case, and I quite agree with the dictum of Lord Cranworth in _Wilson_ v. _Brett_ that gross negligence is ordinary negligence with a vituperative epithet, a view held by the Exchequer Chamber in _Beal_ v. _South Devon Ry. Co._” _Doorman_ v. _Jenkins_, 2 Ad. and El. at p. 265, per Denman, C. J.: “I thought and I still think it impossible for a judge to take upon himself to say whether negligence is gross or not.” Pollock’s Torts, p. 441, 8th ed. Street’s Foundation of Legal Liability, I. p. 28. See, however, for a full discussion of the matter, and an expression of the contrary opinion, Beven on Negligence, Book I. ch. II.
Footnote 374:
D. 50. 16. 226. See also D. 17. 1. 29. pr. D. 47. 4. 1. 2. D. 11. 6. 1. 1.; Lata culpa plane dolo comparabitur.
Footnote 375:
_R._ v. _Harvey_, 2 B. & C. at p. 264, 26 R. R. at p. 343: “A party must be considered in point of law to intend that which is the necessary or natural consequence of that which he does.” _Cf._ _Freeman_ v. _Pope_, 5 Ch. Ap. at p. 540; _Ex parte Mercer_, 17 Q. B. D. at p. 298.
Footnote 376:
In _Le Lievre_ v. _Gould_, (1893) 1 Q. B. at p. 500, it is said by Lord Justice Bowen: “If the case had been tried with a jury, the judge would have pointed out to them that gross negligence might amount to evidence of fraud, if it were so gross as to be incompatible with the idea of honesty, but that even gross negligence, in the absence of dishonesty, did not of itself amount to fraud.” Literally read, this implies that, though gross negligence cannot _be_ fraud, it may be _evidence_ of it, but this of course is impossible. If two things are inconsistent with each other, one of them cannot be evidence of the other. The true meaning is that alleged or admitted negligence may be so gross as to be a ground for the inference that it is in reality fraud and not negligence at all; see also _Kettlewell_ v. _Watson_, 21 Ch. D. at p. 706 per Fry, J.
Footnote 377:
Stephen, Digest of the Criminal Law, Art. 244, 5th ed.
Footnote 378:
Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis of Criminal Liability, ch. 9.
Footnote 379:
Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea, and has nothing to do with a state of mind.” _Cf._ Pollock, Torts, pp. 437–439, 8th ed.
Footnote 380:
The question is discussed in Holmes’s Common Law, pp. 81–96 and in Pollock’s Law of Torts, pp. 136–148, 8th ed.
Footnote 381:
As to _mens rea_ in criminal responsibility see _Reg._ v. _Tolson_, 23 Q. B. D. 168; _Reg._ v. _Prince_, L. R. 2 C. C. 154; _Chisholm_ v. _Doulton_, 22 Q. B. D. 736.
Footnote 382:
The rule is not limited to civil and criminal liability, but extends to all other departments of the law. It prevents, for example, the recovery of money paid under a mistake of law, though that which is paid under a mistake of fact may be reclaimed.
Footnote 383:
Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. D. 22. 6. 9. pr.
Footnote 384:
_Hollins_ v. _Fowler_, L. R. 7 H. L. 757; _Consolidated Coy._ v. _Curtis_, (1892) 1 Q. B. 495.
Footnote 385:
_Reg._ v. _Prince_, L. R. 2 C. C. 154.
Footnote 386:
Y. B. 17 Edw. IV. 2.
Footnote 387:
_Filburn_ v. _Aquarium Co._, 25 Q. B. D. 258.
Footnote 388:
_Black_ v. _Christchurch Finance Co._, (1894) A. C. 48.
Footnote 389:
_Rylands_ v. _Fletcher_, L. R. 3 H. L. 330.
Footnote 390:
_Pickard_ v. _Smith_, 10 C. B. N. S. 470.
Footnote 391:
_Ellis_ v. _Loftus Iron Co._, L. R. 10 C. P. 10.
Footnote 392:
Exodus xxi. 28.
Footnote 393:
Laws, 873.
Footnote 394:
Thorpe, Ancient Laws and Institutes of England, I. p. 71, sect. 13.
Footnote 395:
9 & 10 Vict. c. 62; Blackstone, I. 300.
Footnote 396:
Inst. Just. 4. 8. and 4. 9.
Footnote 397:
_Chisholm_ v. _Doulton_, 22 Q. B. D. 736. _Parker_ v. _Alder_, (1899) 1 Q. B. 20.
Footnote 398:
Deut. xxiv. 16.
Footnote 399:
Laws, 856. On the vicarious responsibility of the kindred in early law, see Lea, Superstition and Force, pp. 13–20, 4th ed., and Tarde, La Philosophie Pénale, pp. 136–140.
Footnote 400:
Salmond, Essays in Jurisprudence and Legal History, pp. 161–163; Wigmore, Responsibility for Tortious Acts, Select Essays in Anglo-American Legal History, III. pp. 520–537; Street, Foundations of Legal Liability, II. ch. 41–43.
Footnote 401:
Substantive law, as opposed to the law of procedure; civil law, as opposed to criminal.
Footnote 402:
Blackstone III. 143. “The child hath no property in his father or guardian as they have in him.” Ibid.
Footnote 403:
Leviathan, ch. xxx.; Eng. Wks. III. 329.
Footnote 404:
Treatise on Civil Government, II. ch. v. sect. 27.
Footnote 405:
Ibid. ch. vii. sect. 87.
Footnote 406:
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,