XV. Seats in a church, are treated by foreign jurists as immoveable. (a)

Under the coutume of Paris they possessed this quality. (b)

In England, they become by annexation parcel of the freehold of the incumbent, although the use of them is in those who have the use of the church, (c) and therefore, if seats have been placed in the church without legal authority, it is said, that the property of the materials, when pulled down, is in the parson. But as to seats put up by the parishioners by good authority, it seems, according to the ecclesiastical writers, that the property of the materials, upon removal, will be in the parishioners, and that the churchwardens, and not the parson, may maintain an action for taking them away. (d) With respect, however, to moveable seats standing in a church, it has been said, that the party who set them up may remove them at his pleasure. (e)

If a man hang up bells in the steeple, they become church goods, although they may not be expressly given to the church; he cannot, therefore, afterwards remove them, and if he does, he may be sued by the churchwardens, to whom the custody and possession of the goods of the church belong, though the property of them is in the parishioners. (f)

So if a man take the organ out of a church, the churchwardens may have an action of trespass against him, because the organ belonged to the parishioners,

(1) Voet, De Mob, et Immob. c. 5, n. 8. Mæv. ad Jus Lub. b. 1, tit. 10, art. 6, n. 75.

(b) Pothier, Tr. de la Com. n. 61.

(c) 8 Hen. 7, 12. Br. Abr. Chattels, pl. 11.

(d) Degge, p. 213, (7th edit.) Burn's Eccl. Law, vol. 1, tit. Church. Noy, 108. Amos and Ferr. Tr. on Fixt. 172.

(e) Degge, 211. Amos and Ferr. Tr. on Fixt. 172.

(ƒ) 11 H. 4, 12. Dig. Eglise, F. 3. 136, S. C.

Degge, 217. Burn's Eccl. Law,
Cro. Eliz. 145. 11 Hen. 4, 12.

ub. sup. Com. Sid. 206.

Lev.

and not to the parson, and the parson cannot sue the taker in the ecclesiastical court. (a)

In Scotland, the right in the area of the parish church, though it cannot properly be called part of the lands contained in the charter, is yet so closely connected with them, that it is carried to the purchaser as pertinent, in virtue of the natural right that every landholder has in such a portion of it as corresponds to the valuation of his lands in the parish, and consequently the owner of a right to a seat in his parish church, cannot dispose of it as his absolute property, though he may of the materials of which the seat is composed. (b)

In churches, where part of the area is taken up by the inhabitants of a borough or village, an inhabitant, who had bought a seat for the use of his family, may be permitted, if he intends to change his residence to another parish, to sell it to any other residenter, at the sight of the kirk sessions, or the magistrates of the borough. (c)

Seats in a burghal church, having been disponed by the magistrates to the grantee, his heirs and other nearest representatives whatever, residing within the town or parish, they were found not to descend exclusively to the heir at law, but (when sufficient to accommodate the whole) to divide between the heir and the other members of the deceased's family. But in respect of that part of the area which was appropriated to the several landholders, according to their valuations, the right of the seller's share thereof ought, it seems, to be carried by his disposition to the purchaser, as a right essentially connected with the lands disponed. (c)

Upon the same ground the right of a burial-place would be carried by a grant of the lands in virtue of the clause cum pertinentüs. (d)

(a) 1 Roll. Abr. 393, tit. Churchwardens.

(b) Fac. Coll. July 29, 1769, Duff, Dict. p. 9644.

(c) Watson, 9th July, 1760, Fac. Coll. Dict. p. 5431. 1 Ersk. b. 2, tit. 6,

§ 11.

(d) 1 Ersk. ib.

SECTION II.

OF IMMOVEABLE AND MOVEABLE, OR REAL AND
PERSONAL INCORPOREAL PROPERTY.

Incorporeal property.-Immoveable and moveable.-Examples of.-Codes differ in respect of the nature and degree of the connection of the right with real property, which renders the right itself real.-Distinction between the law of England, Spain, Holland, and France, and that of Scotland. The subjects respecting which this diversity exists.-Actions, in what cases real.-Debts, &c.-Mortgages.-The law of Scotland.— Bonds, moveable and heritable.-Bonds, reserving interest, containing a clause of infeftment, excluding executors.-Rights of reversion.-Wadsets. Infeftments in security.-In relief.-Annuities.-Rents.-Stock in the public funds.—Arrears of fent.-Offices.

INCORPOREAL things or property, are those " quæ sub sensum externum non cadunt, sed intellectu tantum percipiuntur." (a) They embrace jura in re and jura ad rem. "Incorporales sunt res quæ tangi non possunt, qualia sunt ea, quæ in jure consistunt, sicut hæreditas, usufructus, usus et obligationes quoquomodo contractæ. Nec ad rem pertinet, quod in hæreditate res corporales continentur, nam et fructus, qui ex fundo percipiuntur corporales sunt; et id, quòd ex aliquâ obligatione nobis debetur, plerumquè corporale est, veluti fundus, homo, pecunia, nam ipsum jus hæreditatis, et ipsum jus utendi, fruendi, et ipsum jus obligationis incorporale est. Eodem numero sunt jura prædiorum urbanorum et rusticorum, quæ etiam servitutes vocantur." (b)

The law of Spain classes the subjects of which, accord

(a) Zasius, lib. 1, tit. 8, n. 12.

(b) Inst. lib. 2, tit. 2. Dig. lib. 1, tit. 8. Argent. lib. 1, tit. 8.

ing to the preceding definition, incorporeal property consists, under the appropriate title of derechos and acciones, rights and actions. (a)

The jurists of Scotland treat them under the description of heritable and moveable rights.

These rights subsist in respect of, or against either the person alone, or in respect of, or against property, as well as the person, or against property alone. Of this kind, and included in the general description of res incorporales, are actions, debts, contracts, obligations, annuities, rents, offices, dignities, jura feudalia, seignorial rights, tithes, franchises, servitudes, easements, jus hæreditatis, the jus retractus, retrait lignager, and generally all those rights which are annexed to and claimable in respect of, or which are enjoyed in, upon, or over lands, houses, or other corporeal property. (b)

The systems of jurisprudence which are considered in this work, do not agree as to the nature and degree of the connection, which the right should have with immoveable property to render the right itself immoveable. Thus, the law of Scotland considers as heritable all real rights to the ground, whether rights of property, or rights in security, whether in fee or in liferent, commonty, servitude, reversion, leases, rights of annualrent, wadsets, heritable lands, and dispositions, reserved burdens and faculties to burden. (c)

According to the civil law, and the codes of Holland, Spain, France, and England, rights which affect the person only, which are demandable personally, which can be discharged by the payment of money, and which do not affect lands, or which although they affect lands, yet primarily and principally affect the person, and the

(a) Febrero, tit. 3, c. 3, § 34. (b) Dig. lib. 50, tit. 16, 1. 86. Pothier, Introd. Gen. aux Cout. tom. 10, c. 3, n. 49. Pothier, Tr. des Choses, tom. 8, p. 4, § 2. (c) Bell's Com. b. 5, c. 1, § 2. Erk. Inst. b. 2, tit. 2. tit 1. Ib. b. 3, tit 5.

Stair's Inst. b. 2,

lands only as an accessory, are moveable or personal rights. (a)

The law of Scotland does not admit rights to be moveable, unless they affect the person only, and are demandable as such. (b)

The principal kinds of incorporeal property, respecting which this diversity exists, are actions, debts, annuities, rents, and offices. They become, therefore, necessary subjects for consideration.

I. Actions have been classed by jurists as real and personal. According to some, the quality of the property which it is the object of the action to recover, determines whether it be moveable or immoveable, "actio ad mobile est mobilis, actio ad immobile est immobilis." (b)

But it has been considered more correct to distinguish those which are in personam, from those which are in rem, and to treat the former as moveable, sive ad rem mobilem sive ad immobilem tendunt, and those only as real, which are in rem immobilem. (c)

This description of real and personal actions corresponds with that given by the jurists of Scotland. They define a real action, actio in rem, to be that which arises from a right in the thing itself, or a jus in re, which is founded either on the right of property, which is the highest right which can be had in a subject, or on a right of servitude, hypothec, pledge, &c., which are inferior real rights.

A personal action is that which is founded merely in

(a) Voet, lib. 1, tit. 8, de Divis. Rerum, n. 21. M. Merlin, tit. Hypoth. lib. 1, tit. 1, Q. 5. Pothier, Tr. des Choses, tom. 8, p. 2, § 2. Muller's Prompt. tit. Res Incorporales. Feltman, de Rebus Corporalibus, &c., tit. 2. I Powell on Mortgages, p. 144, and vol. 2, p. 662. Duffield v. Elwes, 1 Bligh's App. Cas. 497. 2 Bell's Com. b. 5, c. 1, § 2.

(b) J. Voet, de Divis. Rerum, lib. 1, tit. 8, § 21. (c) Voet, de Divis. Rerum, lib. 1, tit. 8, n. 21. P. Voet, de Mob. et Immob. c. 8, § 8.

n. 10.

A. Gail. lib. 2, obs. 11, P. Voet, de Stat. sect. 9,