come at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favored commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterized the infancy of law. Hence arises. a disposition to keep these last on a lower grade in the arrangements of jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and steppingstones to fraud. We are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. Our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. But an ancient conveyance was not written, but acted. Gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated. the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written or acted, are required for the alienation of land alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. But the higher class of property in the ancient world comprised not only land, but several of the commonest and several of the most valuable movables. When once the wheels of society had begun to move quickly, there must have been immense. inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the Old World-the Slave. Such commodities must have been constantly and even ordinarily conveyed with incomplete. forms, and held, therefore, under imperfect titles.

ID., 282-284. As I before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically

but one distinction left standing of all those which had been known to the western world—the distinction between land and goods, immovables and movables. Externally this dis

tinction was the same with that which Roman law had finally accepted, but the law of the middle ages differed from that of Rome in distinctly considering immovable property to be more dignified than movable. Yet this one sample is enough to show the importance of the class of expedients to which it belongs. In all the countries governed by systems based on the French codes, that is, through much the greatest part of the Continent of Europe, the law of movables, which was always Roman law, has superseded and annulled the feudal law of land. England is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be added, is the only considerable European country in which the separation of movables from immovables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. In the main, the English distinction has been between land and goods; but a certain class of goods have gone as heirlooms with the land, and a certain description of interests in land have from historical causes been ranked with personalty. This is not the only instance in which English jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law.

(b) The Common Law Classification.

BRACTON, IOI, 102. It has been said above what is an action and in what ways it arises out of obligations: now we must see in what way it is divided. And it is to be known that of all actions or pleas (to use these terms as equivalent) this is the first division, that some are real and others personal, and some are mixed.

But actions for a thing are those which are allowed against

a possessor of it who possesses it in his own name from whatever cause, and not in the name of another person because he has the thing or possesses it, so that he may restore it or name the person who has control over it, as if any one claims from another a certain thing, some estate or land, and contends that he has the right over it, and therefore is the owner, and he sues for that thing, and not its price, nor its value, nor an equivalent of the same kind, and so it is a corporeal immovable thing, which is claimed for whatever cause from some one, who is not bound by any personal right.

We have discussed above if the thing be immovable which is claimed, now when the thing claimed is movable, as a lion, an ox, or an ass, a robe, or anything else which consists in weight or in measure. It appears on first glance that the action or plea ought to be for the thing, as well as against the person, on the ground that a certain thing is claimed, and that the holder of it is bound to restore the thing claimed, but in truth [the action] will be against the person only, because he from whom the thing is claimed is not bound precisely to restore the thing itself, but disjunctively either the thing itself or its price, and upon paying the price he is released, whether the thing itself appears or not. And therefore if anybody claims a movable, from whatever cause it may have been carried off or lent, he ought in his action to define the price, and so to state his action: I, so and so, sue that so and so restore to me such a thing of such a price; or, I complain that so and so unjustly detains from me or has robbed me of such a thing of such a price, otherwise the claim for a movable will not avail if the price of it be not stated. The same thing will happen if movable things are claimed which consist in weight, or number, or measure, like bullion or money or barley, or things which consist of liquid, as wine or oil, in which case, if things of such sort are claimed, it will be sufficient if the defendant restores so much as is of the same weight or number or kind or measure, and hence, because he is not compelled to restore pre

cisely the thing itself which is claimed, there will be an action against the person, since the defendant may be released by payment of an equivalent.

WILLIAMS, REAL PROP. (17th ed.), 23. The terms real and personal were first applied to actions; and were afterward extended to things and property with the meanings which they had acquired in connection with actions. Actions in English law were classified as being either real, personal, or mixed. The term real action is simply a translation of the expression actio realis used by early writers on English law as equivalent to the term actio in rem, which Bracton borrowed from Roman law. Real actions in English law were those in which a man sought to be restored to the enjoyment of some free tenement of which he had been unjustly deprived. The mark of a real action was that therein the required restitution might be enforced. by the strong hand of the law dealing directly with the very thing claimed; in other words, process of execution might issue against the thing demanded (in rem). The successful litigant in a real action could have the King's writ commanding the sheriff to put him in possession of the identical holding in respect of which the action had been brought. Personal actions were brought to enforce an obligation imposed on a man personally to make satisfaction for a breach of contract or a wrong; in other words, they were brought to obtain pecuniary compensation for a violation of rightwhat the English law calls damages. Mixed actions were those in which a claim for damages was made along with a claim for the specific recovery of some tenement. Now it was established in Bracton's time that specific restitution could only be obtained in actions for the recovery of immovable things, or tenements. In actions for the recovery of movable things, the defendant might always absolve himself by payment of their value in money, if the things themselves were not forthcoming. Actions for the recovery of movable things were accordingly numbered among per

sonal actions; for damages only could be recovered with any certainty therein. Real actions then being for the specific recovery of lands or tenements, and personal actions for the recovery of damages, actions were said to be or to sound in the realty or in the personalty, according as the relief afforded therein were the specific recovery of some thing by process of execution issuing against the very thing demanded, or the recovery of damages against the person of a wrongdoer. The word realty was also used to denote things recoverable in the realty, or specifically; that is, lands and tenements. Such things were also called things real. Things recoverable in the personalty, or by action and process. against the person who wrongfully withheld them, as movable goods, debts, damages, and the like, were termed things personal.