tinues to subsist, despite the change or the loss of the objects of which it was, originally, composed. (Universitas facti sive hominis). § 18, I. de leg. (2. 20). L. 22 D. de leg. I. 1). L. 34 pr. D. de pign. (20. 1). L. 30. § 2 D. de usurp. et usuc. (41. 3) 2). L. 76 D. de jud. (5. 1). In contradistinction to these Universitates facti, the name of Universitas juris was given to an assemblage of things corporeal and incorporeal, the property of, or belonging to, a single person, in order to shew that it was in virtue of an objective right that such an assemblage was regarded as a unit 3); and a double consequence was involved in this distinction: I. That the Universitas juris gave room for an action in rem universalis; and II. That it was subject to the application of the rule "res succedit in locum pretii" 4), or (the same idea, in other words): "surrogatum sapit naturam ejus in cujus locum surrogatur." But more recent labours have brought to light the groundlessness, no less than the sterility of this theory, which may now be regarded as abandoned 5).

But when, after the pronuntiatio, it became a question of actual restitution (restitutio), the defendant was required to deliver only those animals of which the plaintiff proved himself the owner. (See Keller, § 45, note 2. and Brinz, § 50.) Finally, that which argues still further against the doctrine of Windscheid, is, that if the Roman Law had regarded the flock itself as the object of ownership, it is impossible to conceive why, in the L. 2, (cited), the defendant was required to deliver to the plaintiff, who had demanded, precisely, the restitution of the flock, only the strange sheep, and not, also, his (the defendant's) own. It would have been logical, in fact, to apply to this case, exactly as to that where the singula capita belonged to a third party, the rule: "Sufficit gregem ipsum nostrum esse, licet singula capita nostra non sint.”

1) "Si grege legato, aliqua pecora vivo testatore mortua essent, in eorumque locum aliqua essent substituta: eundem gregem videri, et si diminutum ex eo grege pecus esset, et vel unus bos superesset, eum vindicari posse, quamvis grex desiisset esse."

2) "Etsi ea natura ejus est, ut adjectionibus corporum maneat, non item tamen universi gregis ulla est usucapio, sed singulorum animalium sicuti possessio, ita et usucapio.”

3) L. 20. § 10. D. de her. pet. (5. 3). In hereditate et in peculio castrensi vel alia universitate. L. 1. § 4. D. de dot. praeleg. (33. 4). The expression Universitas facti et juris may be found in the Glossary of the L. 1. § 3. D. de R. V. ad v. sed posse gregem vindicari "quia universitas est facti non juris in his: nam in universitate juris aliud est."

4) This was deduced from L. 22. D. de her. pet. (5. 3).

5) Mühlenbruch, was the first to refute this theory, in a conclusive manner, in his

แ

Programma observatt. jur. Rom. Spec." I. (1818). He was followed by Hasse, "Archiv. für Civ. Prax." V, pp. 1–68. Mühlenbruch reverts subsequently to the same subject in the Arch. fär Civ. Prax. XVII, p. 321 et sup. See also, Vangerow, I, § 71, i. f. and Unger, I. § 57. Art. 903 of the Project of 1820 was still under the influence of this erroneous theory.

Observation. Most of the legislative attempts to give a definition of the word "Things" have been attended with very imperfect success. Thus, for example, the Austrian Code, § 285, says: “All which is distinct from the person, and which serves for the use of man, is called, in legal acceptation, a thing." The idea of a "thing", defined in a manner so general, certainly includes the whole; and as it is upon this definition that are founded (in § 309) the notions both of possession and of ownership, we attain to this absurdity; that the scholar (ex. gr.) has legal possession of the learning which he has acquired! See Sav. Vom Beruf, p. 99. Unger, I, 354. The Prussian law (Part. I, Tit. II. § 1—3), gives two different definitions of the word Thing, the one broad, the other restricted; so that, at every step, the reader is forced to ask himself in which sense the word is employed. The French Code has wisely abstained from giving any definition, and some other more recent Codes (completed or projected) have followed this prudent example. In the Neth. Code, the provision of art. 555, which calls things "the property and the rights which can form the object of ownership," is no less inexact than the fore going; for, either the word "ownership" must be taken, here, in an acceptation much more extended than its natural and proper signification, or the article is in contradiction with other provisions of the Code: as, for example, art. 564, no. 8, and 567, n°. 3. "Possession" also creates difficulties; ex. gr.: 66 obligations form an object of possession? If yes, can they all do so? It is evident that this is the occasion, or never, to say: "Omnis definitio periculosa!"

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SECTION II.

Of the different kinds of things, from a legal point of view. § 40. THINGS REAL AND PERSONAL (RES IMMOBILES, MOBILES).

That was called real (or immovable) property, which could not be displaced or removed without deterioration. Thus landed property (fundus 1), praedium, solum, res soli, res solo cohaerens) was real, and every thing which was attached or which adhered thereto, whether naturally or artificially, in a way to make one with it; as, for example, trees, plants, fruits 2), standing corn, and minerals; as also buildings attached 3) to the soil by their foundations 4). Those things were, on the contrary, personal,

1) L. 211. D. de V. S. (50. 16). "Fundi appellatione omne aedificium et omnis ager continetur. Sed in usu urbana aedificia, aedes, rustica villae dicuntur."

2) L. 40. D. de act. emti. (19. 1). "Arborum quae in fundo continentur, non est separatum corpus a fundo." L. 44. D. de R. V. (6. 1). "Fructus pendentes pars fundi videntur."

3) Things which were elevated above the soil, while adhering to it either organically or by mechanical means, were called superficies. L. 13. D. de S. P. R. (8. 3). L. 50. D. ad L. Aq. (9. 2). L. 44. § 1. D. de O. et A. (44. 7). Brisson. de V. S. i. v. It may be observed that trees, plants, fruits etc., when regarded with reference to their future destination, after they shall have been detached from the soil, should be considered as personalty. Thus, for example, a sale of trees, or of standing corn, is regarded as a sale of personal property. See Wächter. II, 221. Uuger, I, 383. It was so held by the High Court of the Netherlands, 14th April 1851. (Weekblad van het Recht, no. 1320), and decided in the same scnse by the Government, for the application of art. 194 of the communal law. See Mr. van Emden, Recht-spraak, I, 306.

4) Barns, sheds and huts, which could be taken down and removed were personalty.

(movable)'), which could be removed, or displaced, without affecting their substance, whether the displacement might be effected by their own proper force (res sese moventes) or by the effect of a force external to them.

Lands were divided into praedia rustica and urbana 2). By praedium rusticum was meant all land devoted to culture, whatever its situation; by praedium urbanum all buildings with the soil to which they were attached, and all land not cultivated. L. 198 D. de V. S. "Urbana praedia, omnia aedificia accipimus, non solum ea quae sunt in oppidis, sed et si forte stabula sunt, vel alia meritoria in villis et in vicis; vel si praetoria voluptati tantum deservientia; quia urbanum praedium non locus facit, sed materia. Proinde hortos quoque, si qui sunt in aedificiis constituti, dicendum sit urbanorum appellatione contineri." § 1. I. de serv. (2. 3). L. 1. D. Comm. praed. (8. 4). L. 4. § 1 D. in quibus caus. pign. vel hypot. (20. 2). Where it was a question of lands both built upon and not built upon, the character which was dominant determined their legal quality. "Plane," thus continues the L. 198, already cited, "si plurimum forte in reditu sunt, vinearii forte vel etiam olitorii, magis haec non sunt urbana." L. 91. § 5 D. de leg. III. (32).

The possibility of removal is a quality that belongs only to things which occupy a certain portion of space; whence it follows that the division of property into real and personal, (immovable

L. 60. D. de A. R. D. (41. 1). L. 18. pr. D. de A. E. et V. (19. 1). “Granaria quae ex tabulis fieri solent, ita aedium sunt, si stipites eorum in terra defossi sunt, quodsi supra terram sunt, rutis et caesis cedunt."

1) The expression res moventes or moventia is found as the synonyme of res mobiles or mobilia, in L. 93. D. de V. S. "Moventium item mobilium appellatione idem significamus, nisi tamen apparet (this should be read thus, according to the Basilicae si μn) defunctum animalia duntaxat, quia se ipsa moverent, moventia vocasse. In other passages moventia and res mobiles are opposed to each other. Schilling, Instit. II, § 59. Apart from slaves, the designation of moventia was applied only to animals, which are divided into fera, mansueta, and mansuefacta. § 12, I. de rer. div. (2. 1). Gaius, II, § 15.

2) This division is still important in our law, in reference to leases. Compare Sections III and IV of Title 7, Book III, Netherlands Civil Code.

and movable), concerns only things corporeal. Thus the Romans 1) distinguished things real and personal from jura and actiones; things incorporeal 2).

§ 41. OF THINGS FOR WHICH OTHERS OF A LIKE NATURE MAY BE SUBSTITUTED, AND THE CONTRARY 3). (RES FUNGIBILES ET NON FUNGIBILES).

In their legal relations, things present themselves sometimes as individually determinate; that is, as distinguished from all other things of the same nature by certain characteristic properties (species, certum corpus); sometimes they are determined only by their kind (genus, incertum corpus). L. 54 pr. D. de V. 0. (45. 1). "Cum species stipulamur, necesse est inter dominos, et inter heredes ita dividi stipulationem, ut partes corporum cuique debebuntur. Quoties autem genera stipulamur, numero fit inter eos divisio" 4). But, there are also things, respecting which commercial

1) L. 7. § 4. D. de pec. (15. 1). "In peculio res esse possunt omnes, et mobiles et soli hoc amplius et nomina debitorum.” L. 15. § 2. D. de R. J. (42. 1). “Quod si nec, quae soli sunt, sufficiant, vel nulla sint soli pignora, tunc etiam pervenietur ad jura." L. 2. C. de quadr. praescr. (7. 37). L. 1. § 7. D. ad leg. Falc. (35. 2). For certain legal purposes, things incorporeal were assimilated to things real or personal. Thus, in L. un. C. de usuc. transf. (7. 31): "Res quae immobiles sunt, vel esseintelliguntur; which the Glossary comments: "Ut mancipia rustica et servitntes rerum vel personarum."

2) By German law, all property was very early divided into real and personal, and the modern legislation of many countries classes things incorporeal in one or the other of these categories. Compare, for example, the Austrian Code, § 298, and the Prussian Law, Part. I. Tit. 2. § 7-10, with arts. 526, 529 Cod. Nap., and arts. 564 and 567 Netherl. Code; and compare, also, these articles themselves with arts. 924, 925, of the Project of 1820. See also, Unger, I, 394; Keller § 43, note 2; and Windscheid, 139, note 5.

3) Note by the Translator. We have, in English, no one word capable of rendering the meaning of this phrase, as is done by the Latin fungibilis and non fungibilis. For brevity, I use the word "interchangeable," although it scarcely expresses the entire idea.

4) L. 5. pr. D. de R. V. (6. 1); L. 30. pr. L. 34, § 3, 4; L. 51. D. de leg. I.