And vacancy, by Resignation, So much touching ecclesiastical benefices not observable supra, Sect. 22. SECT. XXVI. Of the nature and kinds of PROPERTIES. HITHERTO of the kinds of things; I come now to consider the nature and kinds of those PROPERTIES or INTERESTS that persons have, or may have in them. The rights of things are distributed according to the nature of the things themselves; which are, Personal. Real. The RIGHT of things personal is called PROPRIETY, and under that will come these considerables, viz. The KINDS of those rights; The CAPACITIES wherein they are held; The MANNER of their being acquired or transferred. The kinds of those rights or properties of things are three, viz. A propriety of ACTION, which is relative to all things IN ACTION. A propriety in POSSESSION. A MIXED propriety, partly in action, and partly in posses sion. Touching the property of things in action. This is an INTEREST by SUIT or order of law, TO DEMAND the things themselves, or damages for them. But of this hereafter, when we come to wrongs or injuries. Touching property in possession, it is either, Simple or absolute; Special or particular. Simple or absolute property, is when a man HAS IT, and no other has or can have it from him, or WITH him, but by his own act or default. The special or PARTICULAR property is of two kinds, viz. Such as some OTHER has a CONCURRING interest with him therein. Such wherein, though no other has any concurring interest with him, yet his property is but TEMPORARY, and vanishes by certain accidents or occurrences. The former kind of those special or particular properties are very various, viz. The interest that a man has by BAILMENT. The interest he has in goods PLEDGED: or, The interest he has in goods CONDITIONALLY granted. The second kind of special property, wherein though NO OTHER RATIONE IMPOTENTIÆ; as in YOUNG birds in a nest upon MY tree, RATIONE LOCI; as conies and hares while in MY ground. RATIONE PRIVILEGII; as of birds or beasts of warren while within MY warren, and swans within MY liberty. Touching mixed properties, i. e. partly in action, and partly in possession: They are ANNUITIES; wherein a man may have a personal inheritance. Thus far of property or right in things personal. The second thing propounded is, THE CAPACITY wherein a have them; and that is double ; man may IN JURE PROPRIO. IN JURE ALTERIUS. And this latter is of two kinds; As a body politic. As executor in right of the testator. The third thing propounded is, the MANNER of the acquest, or translation of property. And because both of these will be much of one consideration, I shall join them in the course of my distributions. Personal things, either in action or possession, may be acquired or transferred three ways: By act in law. By act of the party. By a mixed act, consisting of both. SECT. XXVII. Of acquisition of property by act IN LAW. THIS acquisition by act IN LAW may be many ways, viz. By SUCCESSION, whereby properties are transferred to the successors of such a corporation by law or custom, which has a power to receive personal things in a politic capacity; as, A sole corporation by CUSTOM: An aggregate corporation, by cOMMON LAW. By DEVOLUTION, viz. To the executor. To the ordinary. To the administrator. To the husband by the intermarriage, i. e. as to personal things IN POSSESSION, but NOT as to personal things IN ACTION. By PREROGATIVE; whereby they are given to the king, or to such as have the king's title, by grant or prescription; as waif, stray, wreck, treasure trove. By CUSTOM; as in the case of heriot custom, and heriot service, mortuaries, heir looms, foreign attachment, assignment of bills of exchange. By JUDGMENT, and EXECUTION thereupon; which in the case of the king extends as well to things in action that have a certainty in them (as debts) as to things in possession. But in the case of a common person, ONLY as to things in pos session. And this by, FIERI FACIAS: or, Devant 16. ELEGIT. By SALE in market-overt. SECT. XXVIII. Acquisition of property by act of the party, and mixed act. ACQUISITION of property BY ACT OF THE PARTY, may be three ways, viz. By grant. By assignment. And herein is considerable, That in THE KING's case it extends as well to things in action as in possession; for DEBTS may be assigned TO HIM, or BY HIM. In the case of other persons, only things in POSSESSION are assignable. Acquisition thereof by a mixed act, partly by act of law, and partly of the party. And thus things in action, as well as in possession, are transferrable two ways. By act of the party, with CUSTOM CO-OPERATING. By operation of the law, concurring with the act or default of the party; as, FORFEITURES of several kinds, viz. By outlawry in a personal action. By being put in exigend in the case of felony. By attainder of treason or felony. By motion to the death of any person; as deodand. And thus far concerning the rights of things personal. SECT. XXIX. Concerning the rights of things REAL. I NOW come to the rights of things real; and herein I shall hold this method. I shall consider the rights of the things themselves, or the various interests and estates in things real, viz. The different NATURE of estates or interests in things real, in relation to, Their nature and extent; Their limitation or qualification. The different RELATION of those estates, with respect to the POSSESSION. Vide The different QUALITIES thereof in respect of the persons having the same. Sect. 32. As to the difference of estates, with relation to their nature and extent, they will be divided into, Estates by the course of the common law. Estates by custom, or COPYHOLDS. Estates by course of the common law are divided into, Pref. Co. Lit. Estates of inheritance; Estates less than inheritance. Estates of inheritance are, FEE-SIMPLE. FEE-TAIL. |