OF PROPERTY IN GENERAL.

111

country having different ceremonies and requisites to make a will completely valid; neither does anything vary more than the right of inheritance under different national establishments. In England particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be that has not its foundation in the positive rules of the State. In general only the eldest son, but in some places only the youngest; in others all the sons together, have a right to succeed to the inheritance. Males are preferred to females, and the eldest male will usually exclude the rest.* In the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.†

There are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such, among others, are the elements of light, air, and water, which a man may enjoy by means of his windows, his gardens, his mills, and other conveniences; such also are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition, which any man may seize upon and keep for his own use or pleasure. All these, so long as they remain in possession, every man has a right to keep without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has, under divers regulations and restrictions, an equal right to seize and keep them afterwards.

Again, there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance, which would be frequently found without an owner, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and waste

* See Tenure in burgage, &c., page 123.

† Attention has been directed to this variable law of succession, and it is expected that some legislative enactment will be passed to abolish primogeniture, and assimilate the inheritance of land to the succession to goods and chattels.

grounds which were omitted to be appropriated in the general distribution of lands. With regard to these and some others, as disturbances and quarrels would frequently arise among indivi-· duals contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension by vesting the things themselves in the sovereign of the state; or else in his representatives, appointed and authorized by him, being usually the lords of the manors. Thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate

owner.

CHAPTER II.

OF REAL PROPERTY.

Having considered the Rights of Persons and the Rights· of Property in general, we shall now direct our attention to the subjects of "dominion or property," which, in the law of England, are Things as contradistinguished from Persons. Things are distributed into two kinds, Things Real, and Things Personal. Things Real (legally called "realty") are such as are permanent, fixed, and immovable, and the rights and profits annexed to or issuing out of them. Things Personal ("personalty ") consist of goods, money, and all other moveables which may attend the owner's person, and such rights and profits as relate to moveables.

Treating then of Things Real, let us first consider their several sorts or kinds; secondly, the Tenures by which they may be holden; thirdly, the Estates which may be had in them; and lastly, the Title to them, and the manner of acquiring and losing the Title.

Explain "Things Real," and enumerate their several kinds.

THINGS REAL consist of Lands, Tenements, or Hereditaments. Land comprehends all things of a permanent, substantial nature. In its legal signification it comprehends any ground, soil, or earth whatsoever; as arable land, meadows, pastures, woods, moors, land covered with water, marshes, furzes, and heath. It legally includes also all castles, houses, and other buildings; for if the land or ground be conveyed, the structures or buildings

thereupon pass therewith. Land has also in its legal signification indefinite extent upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum; therefore no man may erect any building to overhang another's land: for the word land includes, not only the face of the earth, but everything under it or over it, and therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his lands covered with water, and his houses, as well as his fields and meadows. Mines, lying under a piece of land, may be excepted out of a conveyance of such land, and they will then remain the corporeal property of the grantor.

Tenement is a word often used in ordinary language to signify houses and other buildings, yet in its original, proper, and legal sense, it signifies everything that may be holden, provided it be of a permanent nature.

Hereditament includes every kind of property that can be inherited, be it corporeal or incorporeal, real, personal, or mixed. Hereditaments are of two kinds, corporeal and incorporeal. Corporeal hereditaments consist of such as may be seen or handled-of substantial and permanent objects, which may be also comprehended under the general denomination of land. Incorporeal hereditaments are rights annexed to, or issuing out of, land. It is not the thing corporate itself, but something collateral thereto, as a rent issuing out of lands or houses. An annuity, for instance, is an incorporeal hereditament; for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand.

INCORPOREAL HEREDITAMENTS are principally of ten sorts:— 1. ADVOWSON, a right of presentation to an ecclesiastical benefice, and is in the nature of a temporal property as well as a spiritual trust.*

Advowsons are either advowsons appendant or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or presentation, so long as it continues annexed to the posses

* Consult "Mirehouse on Advowsons."

sion of the manor, is called an advowson appendant, and it will pass or be conveyed together with the manor as incident and appendant thereto, by a grant of the manor only, without adding any other words; but where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appended any more; but is for the future annexed to the person of its owner, and not to the manor or lands.

Advowsons are of three kinds-presentative, collative, or donative. An advowson presentative is where the patron has a right to present a clerk canonically qualified to the bishop, and to require that he be instituted and inducted into the church.

-An advowson collative is where the bishop and patron are one and the same person, in which case the bishop cannot present to himself; but presentation and institution are in such a case replaced by the one act of collation.- -An advowson donative is when the Sovereign or any subject by his licence doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron, subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction.*

2. TITHES were the tenth part of the increase yearly arising and renewing from the profits of land, the stock upon lands, and the personal industry of the inhabitants. These are now, since

August, 1836, commuted into a rent-charge, the amount of which is annually adjusted by a Board of Commissioners, as now constituted by the Tithe Commutation Acts,† according to the average price of corn.

3. RIGHT OF COMMON is a profit which a man has in the land of another person. Common of pasture is the right of feeding one's beasts on another's lands; common of piscary, a liberty of fishing in another's waters; common of turbary, a liberty to dig turf on the ground of another. There is also a common of

* As to the sale of advowsons, see 23 & 24 Vict., c. 145.

† See 6 & 7 Wm. IV., c. 71, s. 90; 1 Vict., c. 69; 2 & 3 Vict., c. 62; 3 & 4 Vict., c. 15; 5 & 6 Vict., c. 54; 9 & 10 Vict., c. 73; 10 & 11 Vict., c. 104; 23 & 24 Vict., c. 93; and 31 & 32 Vict., c. 89.