Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/2

observations of Maitland in his Lectures on Equity,^[1] by the very divergent treatment of Austin in his Lectures on Jurisprudence,^[2] by the still bolder thesis of Salmond in his volume on Jurisprudence,^[3] and by the discordant utterances of Mr. Hart and Mr.

their extent, and what is the field which they occupy? * * * They must not violate the law. * * * Legal and equitable rights must, therefore, exist side by side, and the latter cannot interfere with, or in any manner affect, the former."

See also (1887) 1 Harv. L. Rev., 55, 60: "Upon the whole, it may be said that equity could not create rights in rem if it would,, and that it would not if it could." Compare Ibid. 58; and Summary of Eq. Plead. (2nd ed., 1883) secs. 45, 182–184.
1. Lect. on Eq. (1909), 17, 18, 112: "The thesis that I have to maintain is this, that equitable estates and interests are not jura in rem. For reasons that we shall perceive by and by, they have come to look very like jura in rem; but just for this very reason it is the more necessary for us to observe that they are essentially jura in personam, not rights against the world at large, but rights against certain persons."
   See also Maitland, Trust and Corporation (1904), reprinted in 3 Collected Papers, 321, 325.
2. (5th ed.) Vol. I, p. 378: "By the provisions of that part of the English law which is called equity, a contract to sell at once vests jus in rem or ownership in buyer, and the seller has only jus in re aliena. * * * To complete the transaction the legal interest of the seller must be passed to the buyer, in legal form. To this purpose the buyer has only jus in personam: a right to compel the seller to pass his legal interest; but speaking generally, he has dominium or jus in rem, and the instrument is a conveyance."
3. (2nd ed., 1907) p. 230: "If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but