Book VII. deals with the principles and practice of the law relating to Evidence, the definition of which is considered at p. 851. Book VIII. treats of the Law and Practice of Bankruptcy, special attention being directed to the considerable changes which have been introduced by the Bankruptcy Act, 1890. Books IX., X., and XI. are occupied respectively with the Law as to Probate, Divorce and Admiralty, now somewhat strangely grouped together in one Division of the High Court.

Here, again, a variety of subjects which have been previously considered in other aspects are again brought before the reader.

The law of Wills has been previously considered (p. 157, et seq.) with special reference to the law affecting property. In Book IX. it is regarded in its relation to the business. of the Probate, Divorce and Admiralty Division.

The law as to Husband and Wife has been previously considered in connection with Property (p. 210, et seq.); Contracts (p. 389, et seq.); Torts (p. 442, et seq.); and the Custody of Children (p. 608, et seq.). It is now (p. 1008, et seq.) treated with reference to marriage and the jurisdiction of the Probate, Divorce and Admiralty Division, dealing as it does primarily with the dissolution of marriage and kindred subjects, and only secondarily with property and the custody of children. Ships have been previously considered (p. 248, et seq.) as subjects of Property; in Book XI. they are regarded from the standpoint of the practitioner in the Admiralty Division.

Book XII. deals with Ecclesiastical Law. Here, too, several subjects of Property, such as Advowsons and Tithes, which have been previously but slightly touched on (p. 194), are made the subject of particular consideration (p. 1136, et seq., 1140, et seq.). The jurisdiction and procedure of the Ecclesiastical Courts are considered in Chapter VIII. (p. 1144, et seq.)

Book XIII. is devoted to Criminal Law. The general nature of crimes, the leading principles of the English criminal law, and the question of responsibility or irresponsibility for crime are first considered. The persons capable of crime and the various classes of crime, concluding with offences against property, are the subjects of the following Chapters (III. to VII., inclusive). The final Chapter of the work deals briefly with Criminal Procedure.

COMMENTARIES

ON THE

PRESENT LAWS OF ENGLAND.

BOOK I.

REAL PROPERTY.

CHAPTER I.

DIFFERENT CLASSES OF PROPERTY.

All property in the eye of modern English law is either real Real and or personal property.

Land, said the late Mr. Joshua Williams, which is immovable and indestructible is evidently a different species of property from a cow or a sheep, which may be stolen, killed, and eaten; or from a chair or a table, which may be broken up or burnt. be he ever so feloniously disposed, can run away with an acre of land (1).

No man,

Attention was hence directed to the real remedy resulting in the recovery of the property itself as contrasted with the mere personal remedy, which could only result in damages against him who had wrongfully appropriated personal property, such as goods or money, and though real actions were to a great extent abolished more than fifty years ago (2), the terms “real” and "personal" came into use, and are recognised in many important statutes of modern times (3). Thus the term "Pro

(1) Williams, Real Property, introductory chapter.

(2) 3 & 4 W. 4, c. 27, s. 36. (The various terms which have been from time to time employed to contrast the two great classes of property may be divided into three groups, representing different periods of legal history:-(1) In the early days of England, as of other European countries, property was first regarded as "movable" and "im

VOL. I.

movable;" (2) When feudalism had
become established, landed property
was looked upon as the subject of
tenure and as descending to the heir,
and was accordingly regarded as
"tenements and hereditaments" as
opposed to goods or chattels."
(3) When feudalism had lost its hold,
after 12 Car. 2, cap. 24 (post, p. 12),
the terms real and personal were
thenceforth employed.

66

B

personal property.

Real property. Land.

Tenements.

Hereditaments.

perty" is defined in the Conveyancing Acts with sweeping comprehensiveness to include real and personal property, and any estate or interest in any property, real or personal, and any debt, and anything in action, and "any other right or interest in the nature of property" (1), and in the Wills Act, which assimilates to a large extent the law with regard to real and personal property, the terms are made the subjects of separate definitions (2). The term "Real Property" comprises lands, tenements, and hereditaments.

"Land," in its legal signification, comprehends not only the land itself, but also all that is above the soil-castles, houses, and other buildings, water, forests, and trees; and also all that is below the surface-mines, earth, clay, quarries, and the like. The maxim of the law on this subject is cujus est solum ejus est usque ad cœlum et inferos.

66

Tenements," in a legal sense, means anything, whether tangible or intangible, that, according to the law of feudal tenure, might be "holden." Hence, the term is applicable not only to everything comprised in the term "land," but also to other rights and interests as offices, rents, and rights of common (3). Hereditaments" is a term of still wider import; for it comprises not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, e.g. an advowson or a fishery.

66

The term "hereditaments" accordingly includes, in addition to immovable property generally, certain movable things, of which the following may be mentioned:

(1) Deeds relating to the inheritance," the sinews of the land," as Lord Coke calls them, are regarded as hereditaments, and even the very box or chest which is usually employed for keeping them partakes of their nature, and goes to the heir. The rule, however, does not apply to the title-deeds of terms for years,

(1) 44 & 45 Vict. c. 41; 45 & 46 Vict. c. 39.

(2) 6 & 7 Wm. 4, and 1 Vict. c. 26, 8. 1.

(3) Co. Litt. 4a and 4b; Shepherd's Touchstone, 90. Land is defined in the Conveyancing Act, to include for the purposes of the Act, "unless a contrary intention appears,' land of any tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, also an undivided share in land; and see a similar definition in the

Settled Land Act, 1882 (45 & 46 Vict. c. 38), 8. 2 (10-11), extended to Settled Land Act, 1890 (53 & 54 Vict. c. 69). The Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 3, enacts that in the interpretation of every Act passed after the year 1850, the expression "land" shall include “ suages, tenements, and hereditaments, houses, and buildings of any tenure." "Land" includes an undivided share of land in the Lunacy Act, 1890 (53 & 54 Vict. c. 5), s. 341.

mes