was subsequently given by Sir John Leach, the late Master of the Rolls, in the case of Buccleuch v. Hoare. In the latter the heritable bond was not the only security given, but there had been other securities for the same debt. Upon this distinction the decision proceeded, and it was held that an assignment or gift by the creditor of one security was an assignment or gift of the debt, and neither the creditor nor his representatives would be permitted to set up the other securities for the purpose of defeating that assignment or gift. It followed, therefore, that as to the securities not given by the will, the heir of the testator was a trustee for the legatee. (a)

The decisions in the two cases of Balfour v. Scott, and Drummond v. Drummond, afford an illustration of the strictness with which moveable property is exclusively subject to the law of the domicile, and immoveable property to that of its situs. In the first of these cases, the intestate being domiciled in England, was possessed of a large personal estate, and of heritable property in Scotland. The heir to the heritable estate was, as one of the next of kin, entitled, by the law of England, to a share of the personal estate. It was insisted, that by taking the heritable estate in Scotland, she was bound to collate that estate, in order to entitle her to share in the personalty, such being the law of Scotland. But it was decided, that as she took the personalty by the law of England, she was not bound to collate the heritable estate. The law of the domicile could extend no further than to the moveables, and could not decide with regard to any burthens to which the heritable succession was subject by the law of a foreign country, and the lex loci rei site, which was the law of Scotland, could not compel the heir to collate the heritage, when there were no personal funds subject

(a) Buccleuch v. Hoare, 4 Madd. Rep. 467.

to its jurisdiction, which, in fact, would have been to interfere with the law of the domicile, and make the lex loci rei site the rule for the whole succession. (a)

In the other case, the intestate was also domiciled in England, and the heir to the heritable estate in Scotland was, as one of the next of kin, entitled to a share of the personal estate. The intestate having granted an heritable bond, the heir insisted, that as the personal estate was distributable according to the law of England, and was by that law the primary fund for the payment of the bond, he was entitled to relief from that estate, in consequence of his having paid the bond by the proceeds of the sale of the heritable estate. It was decided, that he had taken the heritable estate, which was primarily liable for this debt, and he had no right to relief from the personal estate. It was forcibly urged in the argument, that when the law of England throws the payment of a mortgage debt upon the personalty, it determines, not upon the lex domicili, but upon the lex loci rei sitæ; and for the very same reason, the law of Scotland subjects the heir to the payment of such debts, because the land is held to be the principal debtor, and cannot be transferred by succession, or in any other way, without being liable to the real right created by the infeftment in favour of the creditor. (b)

The lex loci rei sita in this, as well as in the preceding case, alone determined the obligations to which the real estate was subject; or, in other words, the extent of the interest which the heir took in the real estate, and consequently the quality of the debt.

The result of these authorities is, that the law of the country, where the immoveable property is situated, determines whether the incorporeal right in that property, be it a charge, or lease, or any other

(a) 6 Bro. P. C. 624.

(b) Ib. 622.

interest in immoveable property, be moveable or immoveable.

Upon the same principle, the moveable or immoveable quality of offices must also be determined by the law of the country in which they are created and exercised. (a)

An incorporeal right, although it may have no connection with immoveable property, may receive the quality of immoveable under some systems of jurisprudence, whilst under others it may retain the quality of moveable. It has been considered that it belongs to the law of the creditor's domicile to determine whether its quality be moveable or immoveable. (b)

"Dans la diversité de coutumes sur la nature des rentes, c'est celle du lieu du domicile du créancier de la rente, qui doit décider si elle doit être réputée meuble, ou immeuble; car une rente constituée étant un droit personnel, et qui n'a aucune situation, elle ne peut être régie que par la loi qui régit la personne à qui elle appartient." (c)

It follows from these principles, that the conversion of moveable estate into that which is immoveable is governed by the law of the domicile of its owner, and the conversion of immoveable property into that which is moveable, is governed by the lex loci rei sitæ.

It belongs also to the law of the situs of immoveable property to determine whether it be propre or acquét. (d)

(a) Pothier, Tr. des Choses, part 2, § 3.

(b) Ib. § 2.

(c) Pothier, Tr. de la Com. tom. 6, part 1, c. 2, § 85. Pothier, Tr. des Choses, part 3, p. 104. Merlin, tit. Rente Constituée, § 6. P. Voet, de Mob. et Immob. c. 23, et de Statutis, § 9, c. 1.

(d) Hertius, de Coll. Leg. tom. 1, § 6.

CHAPTER II.

THE MODIFICATIONS, OR THE QUANTITY, QUALITY, AND DURATION OF ESTATES, AND INTERESTS IN REAL PROPERTY.

THE rights in immoveable property, jura in re, which belong to this division, are the jus dominii, the jus possessionis, the jus pignoris, and the jus servitutis.

The dominium, or jus, quo res nostra est, the ownership of, or the estate in real property, its quantity, quality, and duration, or the various modifications of interests in it, form the subject of the present chapter.

Land may be holden either in perpetuity, which, in the language of the law of England, is technically called "a fee simple," or for a limited period, as during the continuance of a line of issue, or for life, or years.

It

may be granted either in possession or upon a future event, as after the death of the first taker, and that either certain or contingent. The absolute interest, and consequently the power of alienation, may of alienation, may be postponed for limited periods, during which time it remains in settlement, as it is termed. It may be charged or pledged for the payment of a sum of money, either annual or capital, or for performance of any specific act.

The beneficial enjoyment of the property may be separated from the mere ownership or dominium. The usufruct may be granted to one, whilst the owner him

self retains or grants to another the nuda proprietas, or the donee or devisee may be charged with a fideicommissum to deliver the property to another, according to those systems of jurisprudence which follow the civil law, or the ownership may be divided into the legal estate, and the equitable and beneficial interest, according to the law of England.

These various modifications of the interests in immoveable property exist under the different systems of jurisprudence which are here considered. Although they have not acquired the technical appellations, yet they scarcely differ in substance and effect from those adopted by the law of England.

The jurisprudence of England may be said to differ from that of other countries, not so much in the modifications and limitations under which interests in real property are transmitted, acquired, and enjoyed, as in the means or machinery by which those interests are created, transferred, and secured.

In ascertaining the nature of these modifications and limitations, and the manner in which they are effected under the systems of jurisprudence which are here considered, it is proposed to treat of them as they existed under the civil law and the law of Holland. It will be found that they were created by substitutions direct and fidei-commissary, and by means of the conditions permitted to be annexed to estates. These will form the subject of the following section.