incorporeal, according to the definition given by the

civil law.

It is in a similar manner adopted by the coutume of Paris. (a)

In the Code Civil things are classed under the titles of things immoveable, in respect of the object to which they are applied: "Par l'objet auquel ils s'appliquent ;" and of things moveable by the determination of law: “Par la détermination de la loi.” (b)

The law of England divides property into real and personal. It adopts the term chattels, which is intended to be more comprehensive than the term moveable. (c) It has been observed by the commentator on the laws of England, that although in the grand coustumier of Normandy (d) a chattel is described as a mere moveable, yet at the same time it is set in opposition to a fief or feud, so that not only goods, but whatever was not a feud, were accounted chattels, and that it is in this latter more extended negative sense that the law of England adopts it, the idea of goods or moveables only being not sufficiently comprehensive to take in every thing that the law considers as a chattel interest. For since there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place, whatever wants either of these qualities is not, according to the Normans, an heritage or fief, or according to the law of England, is not real estate; the consequence of which, in both laws is, that it must be personal estate. (e)

It again resembles the Norman law in distributing chattels into two heads, chattels real, and chattels personal.

Chattels real, as leases for years, &c., are so called from their connection with land, and not because they possess any of the qualities incident to freehold estates.

(a) Art. 87, et seq.

(b) Art. 517, 527. Toullier, liv. 2, tit. 1, n. 6. (c) Co. Litt. 19, 20. 2 Black. Com. b. 2, c. 3, p. 20, 21. (e) 2 Black. Com. b. 2, p. 385, 386.

(d) Cap. 87.

Chattels personal are again divided into those, which a man hath not only the right to possess, but of which he hath the actual possession, and those, which he hath only the right to possess, but of which he hath not the actual possession, for he must recover them by action. The latter are called choses in action.

Chattels personal in possession are, strictly and properly speaking, moveables.

Things are, by the law and usage of Scotland, either heritable or moveable. Heritable subjects are those which on the death of the proprietor, descend to the heir, and moveables, those that go to executors, who are on that account, sometimes styled hæredes in mobilibus.

The law of Scotland applies the term heritable to all subjects which were immoveable under the civil law. (a) Property may by the disposition of the law, or of its owner, acquire a quality entirely different from that which belongs to it by nature, or by its original constitution. Thus, moveable property may be converted into immoveable, and immoveable property converted into moveable.

Immoveable things are in several systems of jurisprudence subject to another division, founded on the manner in which they have been acquired. They are distinguished as biens propres, and biens acquéts, or property by descent and purchase.

In the present chapter it is intended to treat of these several divisions: 1st, Of immoveable and moveable corporeal property; 2ndly, Of immoveable and moveable incorporeal property; 3rdly, Of the conversion of property; 4thly, Of biens propres and acquets, or estates by descent and purchase; and lastly, Of the law which should determine the quality which belongs to property.

(a) Erskine, b. 2, tit. 2, § 3, 4.

SECTION I.

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

Immoveable by nature or labour, as lands, houses, &c.-By being part of the soil, by accession or annexation.-Trees.-Fructus.-Distinction as to Nurserymen.-As to Crops produced by labour, &c. annually.Mills. &c.-Animals when immoveable.-Annexation of moveables to lands and buildings, with the intention that they should permanently remain.-Civil law.-Law of Holland, Spain, England, and Scotland.Distinction in favour of tenants.-In what cases they may remove things which they have affixed.-Further distinction in the jurisprudence of England, Scotland, and the United States where the annexation is for the purposes of trade.-The indulgence not extended where the purpose is solely agricultural. The decisions in the United States.-Constructive annexation. Keys, &c.-Instances in which the quality of immoveable is acquired simply by destination.-Slaves.-State of the law in the West India Colonies. In some, there are legislative provisions giving the quality of immoveable to certain articles attached to and necessary for the cultivation of Plantations.-Articles partaking of personal and real quality, as charters, &c.-Seats in churches.

IMMOVEABLE Corporeal things, res immobiles vel res soli, are those which are by their nature really immoveable or incapable of being conveyed from one place to another, as lands, or they become so by the labour of man, as houses and other buildings erected on land.

Moveables will become immoveables, ratione accessionis, as when they are united or affixed to, or let into the ground, or otherwise annexed or attached to that which is immoveable. "Quæ accessionis intuitu sunt immobilia, ea si separata mobilia forent, juncta immobilibus, iisque affixa, vel infixa, vel aliter iis annexa, pro immobilibus habentur, neque enim remanente eodem nexu de loco in locum dimoventur." (a)

(a) P. Voet, de Reb. Mob. et Immob. c. 3, n. 4, p. 33.

Again they will become immoveable "ratione destinationis, finis, eventus, usus, relationis ad rem immobilem." (a)

Immoveables falling under the two last of the preceding descriptions require observation and illus

tration.

I. Fruits, so long as they are hanging on the trees, the crops until they are gathered, and timber trees, whilst they are standing, are things, which, because they are attached and appendant to the ground, are immoveable. But when the fruits or crops are gathered, or the trees cut down, as they then cease to be attached to the soil, they become moveables.

But although trees and shrubs when they are planted, become part of the soil and immoveable property, yet a distinction is admitted, when they are planted in the course of the trade of the owner or occupier of the land, and for the purpose of sale. In such a case they are considered personal property. (b)

A nursery-man or gardener, at the end of his term, may remove and dispose of the trees, shrubs, &c., which he has planted, for the purpose of sale; (c) but he is not permitted to plough up strawberry beds in full bearing, at the close of his term, without having any reasonable object in view. (d) Neither is a private person at liberty to sell and remove young fruit trees planted by himself. (e)

There are, however, certain vegetable products of the earth, which although they are annexed to, and growing upon the land at the time of the occupier's death, yet as between the personal representative of the person seised of the inheritance, as the heir in some cases, and the personal representative of the tenant for life, and the re

(a) P. Voet, de Reb. Mob. et Immob. c. 5, n. 1, p. 38. (b) Pothier, Tr. de la Comm. part 1, c. 2, §39, et seq. (c) 3 East, 38. 7 Taunt. 191. 4 Ib. 316.

(d) 1 Camp. N. P. C. 227.

(e) 4 Taunt. 316.

mainder man, or reversioner in others, are considered by the law of England as chattels, and will pass as such. These are usually called emblements. They may also be seized and sold 'under a fieri facias, and the sale of them, while growing, is a sale of goods, wares, and merchandize, within the 17th section of the statute of frauds. (a)

The vegetable chattels so named, are the corn and other growth of the earth, which are produced annually, not spontaneously, but by labour and industry, and thence are called fructus industriales. When the occupier of the land, whether he be the owner of the inheritance, or of an estate determining with his own life, has sown or planted the soil with the intention of raising a of such a nature, and dies before harvest time, the law gives to his personal representative the profits of the crop, the emblavence de bled, or emblements, to compensate for the labour and expence of tilling, manuring, and sowing the land. (b)

crop

They consist, not only of corn and grain of all kinds, but of every thing of an artificial and annual profit that is produced by labour and manurance, (c) as hemp, flax, saffron, and the like, (d) melons of all kinds, (e) and hops, although the latter spring from old roots, because they are annually manured and require cultivation, (ƒ) and so of potatoes. (g)

But the rule does not apply to fruit growing on trees, nor to a plantation of trees, for the general

(a) See the judgments of Bayley and Littledale, Justices, in Evans v. Roberts, 5 Barn. and Cress. 829, and of Hullock B., in Scorell v. Boxall, 1 Young and Jerv. 398.

(b) Swinb. part 7, s. 10, pl. 8. Williams's Law of Executors, p. 453. (c) Co. Litt. 55 b.

(d) Ib. Wentw. Off. Ex. 147, 14th ed.

(e) Wentw. Ib. 153.

(f) Co. Litt. 55 b, note 1, from Hal. MSS. Latham v. Attwood, Cro. Car. 515. Wentw. Off. Ex. 147. Gilb. Evid. 216. Anon. Freem. Ch. Cas. 210. Fisher v. Forbes, 9 Vin. Abr. 373, tit. Emblements, pl. 82.

(g) Evans v. Roberts, 5 Bar. and Cress. 832.