'Actiones vero in rem sunt, quae dantur contra possidentem, qui nomine proprio possideat ex quacunque causa, et non alieno, quia habet rem, vel possidet quod restituere possit, vel dominum nominare: ut si quis petat ab alio rem certam, fundum aliquem, vel terram, et se contendat habere jus et inde esse dominum et persequatur rem illam, et non ejus precium, nec ejus aestimationem, nec tantumdem quod sit ejusdem generis, et sic res corporalis immobilis, quae petitur ex quacunque causa versus aliquem, qui nullo jure personali obligatus est. Et per hoc quod petens rem petitam intendens esse suam, actionem instituerit versus tenentem, et tenens negaverit, in rem erit actio, sive placitum, et hoc sive proprio nomine petat, sive ratione rei, quam ipse possidet, sicut viri religiosi vel rectores nomine ecclesiarum suarum, vel alii nomine alicujus universitatis sicut in rem communem, et hoc etiam sive principaliter petat ipsam rem, sive jus quod rei adhaereat sive tenemento, et quod a tenemento separari non possit, ut si quis petat advocationem alicujus ecclesiae, vel communiam pasturae, vel quod liceat ei ire, vel agere, vel quid tale quod consistit in jure, in rem erit placitum, sive actio; quia hujusmodi jura omnia sunt res incorporales, et quasi possidentur, et insunt corporibus, et acquiri non possunt nec retineri sine corporibus quibus insunt, nec haberi aliquando sine corporibus ad quae pertineant'. Dictum est supra, si res sit immobilis quae petitur, nunc cum sit res mobilis quae petatur, sicut leo, bos, vel asinus, vestimentum, vel aliud quod consistit in pondere vel mensura. Videtur prima facie quod actio sive placitum esse debeat tam in rem, quam in personam, eo quod certa res petitur, et quod possidens tenetur restituere rem petitam, sed revera erit in personam tantum, quia ille a quo res petitur, non tenetur precise ad rem restituendam, sed sub disjunctione, vel ad rem, vel ad precium, et solvendo tantum precium liberatur, sive res appareat, sive non. Et ideo si quis rem mobilem vendicaverit ex quacunque causa ablatam, vel commodatam, debet in actione sua definire precium et sic proponere actionem suam. Ego talis peto, quod talis restituat mihi talem rem talis precii: vel conqueror quod talis mihi injuste detinet vel robbavit talem rem tanti precii, alioquin non valebit rei mobilis vindicatio, precio non apposito. Idem erit si res mobiles petantur, quae consistunt in pondere, numero vel mensura, sicut massa, pecunia vel triticum, vel aliae quae in liquido consistunt, sicut vinum et oleum, quo casu, si hujusmodi res petantur, sufficit si implacitatus tantumdem restituat quod sit ejusdem ponderis, numeri, generis et mensurae, et unde, quia non compellitur praecise ad rem quae petitur, erit actio in ipsam personam, cum implacitatus per solutionem tantumdem possit liberari 2.'

Bracton, lib. iii. cap. xii. § 6, fol. 114 b: 'Item actio civilis cum aliquando triplex sit, et quasi mixta, scilicet personalis, poenalis et rei persecutoria, sicut de restitutione spoliatorum, quod res corporalis et immobilis restituatur spoliato, vel quod res incorporalis, sicut jus

Bracton, lib. iii. cap. iii. par. iii, fol. 102 a.

Lib. iii. cap. iii. par. iv, fol. 102 b.

aliquod, in debitum statum reformetur. Sicut dici poterit de servitutibus, ut de jure eundi, agendi, et de jure pascendi in fundo alieno, et hujusmodi: bene poterunt haec omnia unica actione terminari, sicut per assisam novae disseysinae, secundum diversus species disseysinarum. Personalis enim est quia tantum datur spoliato, et competit contra spoliatorem in eo, quod poenalis est. Est etiam poenalis propter delictum, quia injuste et sine judicio, et quandoque persequitur spoliatorem, si spoliator superstes sit, et in eo quod poenalis est extinguitur per mortem utriusque vel alterius. ipsorum. Est etiam restitutoria tantum aliquando, et non poenalis, quantum ad eos qui immunes sunt a delicto disseysinae, quia poenam sentire non debet, qui immunis est a culpa, secundum quod inferius dicetur de assisa novae disseysinae.'

It is true that Bracton in one or two other passages makes use of the terms in rem, in personam in a sense more in accordance with the meaning attached to them in Roman law1. But we are not concerned with this, for the notions expressed in the passages quoted are those which prevailed; and Bracton's classification of actions according to the nature, not of the right asserted but of the relief afforded therein, remained embedded in our law. The test he put forward, viz. whether the relief afforded in the action were specific restitution or compensation, was that which was adopted; and the Roman view that the nature of actions depends upon the nature of the rights asserted therein, was not applied in English law. Thus we may observe that in the passages which have been already cited from Britton and Littleton the same test of the nature of an action is taken. In Britton the division of actions according to the nature of the process of execution to be obtained therein is strongly emphasised. Littleton marks clearly the distinction taken between restitution and compensation.

The direct process of execution, which might issue against the thing (that is, the corporeal or incorporeal hereditament) claimed in a real or mixed action, appears clearly in Glanvil, although the distinction between actions in rem and in personam is not taken in that treatise. Thus if a tenant made default in appearing to the third summons made in an action commenced by a writ of right in the King's Court, the tenement was to be seised into the King's hand and there to remain for fifteen days. If the tenant did not appear within those fifteen days, seisin was to be adjudged to the demandant, and the tenant would have no remedy except by writ of right with respect to the jus proprietatis 3. So also the tenement was to be seised into the King's hand, if a tenant, who had essoined himself three times, neither came nor sent a sufficient substitute to

1 Bracton, lib. iii. cap. iii. §§ 2, 5, 7, fol. 102 a, b, 103 a. 2 Ante, p. 394.

3 Glanvil, lib. i cap. vii.

answer for him on the fourth day 1; on the non-appearance of the tenant when a day had been given him2; and on the non-appearance to the third summons of a tenant who had found pledges 3. We also find the writs commanding the sheriff to put the demandant in possession of the land claimed on the tenant's making default, after trial by battle 5, after judgment by the grand assise, or after an assise of mort d'ancestor. Again, in actions claiming an advowson, the presentation to the church or the advowson itself was to be seised into the King's hand on the final default of the patron in possession. Similar direct process of execution appears in the case of an assise of novel disseisin ".

The process in personal actions was widely different. With the single exception of proceedings in replevin, mesne process in personal actions was directed entirely against the defendant personally, with the object of compelling him to appear and answer the plaintiff's claim. Thus the defendant might be attached by gage and pledges to appear in a personal action, and then distrained by all his lands and chattels continually until he appeared; he might moreover be arrested in trespass vi et armis at common law; and in actions of account, debt, detinue and on the case by statute. But before the year 1832 10, the plaintiff in a personal action could never obtain final judgment against the defendant in default of appearance. If the defendant absconded, the plaintiff's only remedy was to proceed against him by distress infinite to compel his appearance, or to pursue him to outlawry in actions wherein his person might be arrested 11.

In English law then a real action is essentially an action for restitution-an action, wherein a right might be specifically enforced by process of execution in rem (meaning against a thing'). Incidentally, however, as we have seen from Bracton, a real action becomes an action to recover possession of land, or for the specific enforcement of a right exercisable over or in respect of land. The reason given for this appears to be that, if a man sued for the recovery of land, he might obtain restitution of the very thing he claimed; but if he sued for the recovery of moveable goods, he could not enforce restitution by any process of law, as the defendant might absolve himself by

11 Bracton, fol. 439 b-441 a; Britton, lib. i. ch. xxvii. §§ 1-5, 12, fol. 49 b-51 a, 52b; Finch, L. ch. xxvi; 3 Black. Comm. 280, 281; I Tidd's Practice, 109-112, 128-130, 9th ed.

paying the value of the goods in money'. It may be interesting to inquire how far this reason holds good. Let us examine the actions classed as personal. We find first that all actions founded on a trespass in the wide sense of a violation of right, whether by breach of contract or independently of contract, are said to sound only in damages or result in pecuniary compensation to the injured party 2. Such actions are properly described as personal, according to the Roman as well as the English notion of a personal action. For they are founded on a personal duty of the defendant arising from contract or tort to make some satisfaction to the plaintiff, and are brought to obtain compensation only. There were however three actions given by the common law which appear to be brought to obtain restitution rather than compensation and are yet called personal. These are debt to recover a specific sum of money due, detinue to recover a chattel unlawfully detained, and replevin, whereby chattels unlawfully taken might be recovered. As to debt, the original writ given in Glanvil is in exactly the same form as the writ of right in the King's Court: Rex vicecomiti salutem: Praecipe N. quod juste et sine dilatione reddat R. centum marcas, quas ei debet, ut dicit, et unde queritur quod ipse ei injuste deforciat. Et nisi fecerit, summone eum,' &c.3 And it appears

that in Glanvil's time a writ for unlawfully detaining a chattel lent for use would have been in the same form. The origin of the later law however appears in Glanvil; for it is laid down that when a chattel has been lent for use, and the loan has come to an end, the borrower is bound to restore the chattel, if it be in existence, in as good a condition as he received it; and if the chattel has perished or been lost while in the borrower's custody, at all events he will be bound to pay the reasonable value thereof. Thus the physical difference between immoveable and indestructible land and perishable goods appears to have prompted the rule laid down in Bracton's time, that in actions for the recovery of moveable chattels, the plaintiff was bound to name the value of the goods sued for, on payment of which the defendant would be absolved". Bracton, accordingly, distinguishing compensation from restitution, classes actions for the recovery of goods as personal. As we have seen, he classes as personal upon the same ground actions for the recovery of chattels, wherein the defendant might be absolved by rendering the quantity demanded of articles of the same kind as those sued for; as in the case of an action for a certain sum of money 7. The established

1 See ante, p. 399.

3 Glanvil, lib. x. cap. 2.

6 See ante, p. 399.

2 Bac. Abr. tit. Damages, Trespass. Ib., cap. 13. 3 Ib.

See ante, p. 399.

form of the writ of debt, which we find in Latin in the Register 1, and in English in Blackstone2, differs slightly from that given in Glanvil. Instead of centum marcas, quas ei debet, ut dicit, et unde queritur quod ipse ei deforciat,' we have 'centum solidos, quos ei debet et injuste detinet.' In the Register debt and detinue appear as different forms of the same action, and it is laid down that in a writ for chattels it is never said 'quae ei debet' but only 'quae ei injuste detinet': whilst in a writ in the King's Court for a debt it is said 'quos vel quas ei debet et injuste detinet.' If debt were brought by or against a person not a party to the contract, as an executor or administrator, the writ ran 'quos vel quas ei injuste detinet' without the 'debet.' We also observe that in all the writs for chattels given in the Register a pecuniary value is set upon the articles sued for3. It was moreover established that in actions for the recovery of chattels, whether in debt or detinue, judgment should be conditional, viz. that the plaintiff should recover the chattels sued for, or their value, if they could not be had. In debt, to recover a sum of money the established form of judgment was that the plaintiff should recover his debt together with his damages and costs. As the essence of the recovery of a debt is in the recovery of the amount due, and not in the specific restitution of certain coins, the action of debt, according to the test applied in English law, appears rightly placed in the class of personal actions. Tried by the same test, detinue is also properly described as a personal action; for damages only could be recovered with certainty therein. We may here take the law from Blackstone :

'In detinue after judgment, the plaintiff shall have a distringas to compel the defendant to deliver the goods, by repeated distresses of his chattels; or else a scire facias against any third person in whose hands they may happen to be, to show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages, which (being either so assessed, or by the verdict in case of an issue) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels) if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election, to deliver the goods, or their value: an imperfection in the law, that results from the nature of personal property, which is

1 Reg. 139 b.

3 Reg. 139; see Tidd's Practical Forms, 20.

2

3 Black. Comm. Appendix, No. III.

See Com. Dig. tit. Pleader, 2 W. 52, 2 X. 12; Tidd's Practical Forms, 340. 5 Tidd's Practice, 931, 9th ed.; Tidd's Practical Forms, 338.