Jus Actus

In Roman Law. A rural servitude giving to a person a passage for carriages, or for cattle. a right to property not In possession, as distinguished from jus in re, which implies the absolute dominion. }n English law, this distinction is illustrated by Blackstone, by reference to ecclesiastical promotions, where, although the freehold passes to the person promoted, corporal possession is required to vest the property completely in the new proprietor, who acquires jus ad rem, an inchoate, or imperfect, right of nomination and institution, but not the jus in re, or complete and full right, unless by corporal possession; 2 Bla. Com. 312. The distinction expressed by these terms in the Roman law is analogous to the common-law distinction between the effect of a right of entry and that of actual entry, which in English real property law is expressed in the maxim non jus, sed seisina, facit stipitem; id. Jus ad rem is said to be merely an abridged expression for jus ad rem acquirendam, and it properly denotes the right to the acquisition of a thing. Austin, Jur. Lect. 14. “On this distinction between claims to things advanced against all men, and those advanced primarily against particular men, is based the division of rights into real and personal expressed by writers of the middle ages, on the analogy of terms found in the writings of the Roman jurists, by the phrases jura in re and jura ad rem. A real right, a jus in re, or, to use the equivalent phrase preferred by some later commentators, jus in rem, is a right to have a thing to the exclusion of all other men. A personal right, jus ad rem, or, to use a much more correct expression, jus in personam, is a right in which there is a person who is the subject of right, as well as a thing as its object, a right which gives its po.ssessor a power to oblige another person to give, or procure, or do, or do not do, something.” Sand. Inst Just Introd. xlviii. A right which belongs to a person only mediately and relatively, and has for Its foundation an obligation incurred by a particular person. The jus in re, by the effect of Its very nature. Is independent and absolute, and is exercised per ae ipsum, by applying it to its object; but the jua ad rem is the faculty of demanding and obtaining the performance of some obiigation by which another is bound to me ad aliquid dandtim vel faciendum, vel proestandum. Thus, if I had the ownership of a horse, the usufruct of a flock of sheep, the right of habitation of a house, a right of way over your land, etc., my right in the horse, in the flock of sheep, in the house, or the land, belongs- to me directly, and without any intermediary; it belongs to me absolutely and independently of any particular relation with another person, I am in direct and immediate relation with the thing Itself which forms the object of my right without reference to any other relation. This constitutes a jua in re. If, on the other hand, the horse is lent to me by you, or If I have a claim against you for a thousand dollars, my right to the horse or to the sum of money exists only relatively, anc( can only be exercised through you; my relation to the object and is the result of the Imfut in rt, or real right, may be rindicated by the actio in retn against him irho is in possession oi the thing, or against any one who contests the right. It has been said that the words, jxu in re of the civil law convey the same idea as thing in possession at common law. This is an error, arising from a confusion of ideas as to the distinctive characters of the two classes of rights. Nearly all the common-law writers seem to take it for granted that by the jue in re is understood the title or property in a thing in the possession of the owner; and that by the jus ad rem is meant the title or property in a thing not in the possession of the owner. But it is obvious that possession is not one of the elements constituting the jus in re; although possession is generally, but not always, one of the incidents of this right, yet the loss of possession does not exercise the slightest influence on the character of the right itself, unless it should continue for a sufficient length of time to destroy the right altogether by prescription. In many instances the jus in re is not accompanied by possession at all: the usuary is not entitled to the possession of the thing subject to his use; still, he has a jus in re. Po with regard to the right of way, etc. See Dominium. A mortgage is considered by most writers as a jus in re; but it is clear that it is a jus ad rem: it is granted for the sole purpose of securing the payment^ of a debt or the fulfilment of some other personal obligation. In other words, it is an accessory to a principal obligation and corresponding right: It can have no separate and independent existence. The immovable on which I have a mortgage is not the object of the' right, as in the case of the horse of which I am the owner, or the house of which I have the right of habitation, etc.: the true object of my right is the sum of money due to me, the payment of which I may enforce by obtaining a decree for the sale of the property mortgaged. 8 Marcadd 850. Tbe description of legal duties and rights as being in rem or in personam is usually said to be unauthorized by classical Latin usage; Roman lawyers spoke of “actioned,” not ‘V«ro,” as being in rent or in personam. But it should be remembered that in Roman usage “action” included what we now call “a right of action,” any determinate claim to some form of legal redress. Action was the right of obtaining by process of law what is due, not the process itself. Hence the modem usage is not so wide apart from the Roman as it appears at first sight to be. Pollock, First Book of Jurispr. 92. JUS /ELIANUM. A body of laws upon the same plan as the jus flavianum (q. v.) though more complete. It was published about B. 0. 200 by Sextus i Elius and consisted of three parts: (1) The law of the