(flnrnpU ICam ^rl^nnl ICibraty Cornell University Library KD 810.P77 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021864685 POSSESSION POLLOCK AND WRIGHT Sonbon HENRY FROWDE MACMILLAN AND CO. AN ESSAY ON POSSESSION IN THE COMMON LAW PARTS I AND II BY FREDERICK POLLOCK, M.A., Hon. LL.D. Edin. OP Lincoln's inn, baeeister-at-law OOKPCS CHRISTI PEOPESSOR OP JUEISPEUDENCE IN THE UNIVERSITY OP OXFOliU PROEESSOE OP COMMON LAW IN THE INNS OP COURT PART III ROBERT SAMUEL WRIGHT, B.C.L. OP THE INNER TEMPLE, BAEEISIEE-AT-LAW AT THE CLARENDON PRESS 1888 \_An rights reserved'] PREFACE The want of any systematic account of Possession in English law-books has often been remarked upon. A few years ago, in the course of my work on the law of Torts, I had to consider the learning of Trespass, Conversion, and other wrongs to property ; for which purpose it became necessary to face the question whether a doctrine of Posses- sion did not exist in an implicit form in our authorities, and if so, what kind of doctrine it was. I then learnt that, several years earlier, Mr. R. S. Wright had been confronted with a like problem in a survey of our criminal law, and had made a full study of the subject in that connexion. Upon communication with Mr. Wright it appeared that he had collected his materials in a form nearly ready for publica- tion; and, in the result, the present work was undertaken. It is a composite, not a joint work. We should have preferred for many reasons to combine our researches in a single and uniform exposition, but we found that such a plan would require an amount not only of continuous but of simultaneous leisure beyond what we could com- mand. Accordingly we have been content to divide the work as it now stands; and, although we have dis- cussed many parts of the subject together, and seen one another's contributions in every stage, each of us is alone answerable for that which is ascribed to him on the title-page. Whatever defects are the necessary con- sequence of this arrangement may be taken as confessed, with the excuse that the substance, be its value more or less, could not have been produced on any other terms. VI PREFACE. This being so, we have not thought it needful to reduce the mechanical details of citation, abbreviation, and the like, to a complete uniformity throughout the book. Our purpose has been to show that a fairly consistent body of principles is contained in the English authorities, not to exhibit all the applications of those principles, nor to enter on the comparison of the Common Law with any other system. Speaking for myself, I feel that I owe much both to the classical Roman texts on Possession and to the ingenuity of their modern expounders in Germany. But I have also felt that if there is, as I believe there is, a native doctrine of Possession in our law, the only way to make it manifest is to state it on its own independent footing and verify it in its own light. Comparison is profitable after the several things to be compared have been ascertained ; if attempted earlier, it is hazardous at best. Each of us has been compelled to form and express his own opinions on difficult and unsettled points. We cannot expect those opinions to be always accepted by the reader, but in any case they are not unconsidered. F. P. LiNCOLK'a Inn, llichaelmns, iS8S. TABLE OF CONTENTS. PAKT I. INTRODVOTION. SECT. I. First notions . 3. Terminology Bentham's difficulties 3. Elementa of de facto possession Importance of intention and repute 4. Possession in law Separation from de facto possession . 5. Rules FAGE I 4 6 II 13 16 18 20 PAET II. OF POSSESSION GENERALLY. CHAPTER I. The Nature of Possession. De facto and legal possession 26 The right to possess . 27 Kemedies 28 I. Evidence of Possession : Land . 28 How land can be occupied . 29 Acts of partial dominion . 31 Occupation must be exclusive 35 2. Evidence of Possession : Goods 37 Capture 37 Goods on land or in buildings . 38 Finding of goods on or in land . . 40 Wreck 4a VIU CONTENTS. CHAPTER II. The Transfer of Possession. SECT. PAGE 3. Acquisition and loss of possession . 43 Lawful transfer favoured . . .44 Original acquisition . . 45 4. Delivery : as to Land . 47 Seisin ... 47 Separation of seisin from possession ... . . 49 Seisin in law ... . . 50 Livery ... . 51 Tenants for years and attornment . . 52 Livery not symbolic . 53 Incorporeal hereditaments 54 Statute of Uses . . • • 56 Copyholders . 57 5. Delivery: as to Goods ... 57 Bailment and custody . 58 Position of servant . jp 6. Partial delivery and so-called symbolic delivery . . 60 Some authorities examined 62 The question is of real control . . 65 Distinctions in bankruptcy 69 Delivery of part in name of whole . 70 7. Delivery of goods by attornment . . 71 Acceptance and receipt under Statute of Prauds . 7 1 8. Mistaken delivery . . ... , 75 9. Change of possession -without consent 77 May be rightful, justified, or wrongful . 77 10. Entry or taking under title . . . 78 Physical power being equal, title prevails 79 Occupation without title . . .80 Entry by licence . So 11. Entry or taking under authority of law 81 Distress and execution . . 82 12. Taking for true owner's benefit 84 1 3. Wrongful entry or taking . . . .84 14. Ouster from land . . ... 8c Ambiguous acts . ■ . 86 15. Artificial extension of the idea of disseisin 87 Disseisin at election . . . .88 Statute of Limitation . . go CONTENTS. IX CHAPTER III. Possession and Title. SECT. PAGE i6. The rights of possessore .... 91 Distinctions as to jus terlii . 92 17. Title by possession . . . , -93 Importance of the principle . . 93 Medieval doctrine . . '94 Possessory title must be continuous ... 97 Is valid only against wrongdoers 99 1 8. The effect of mistake on delivery of chattels 1 00 Mistalie as to property or interest . loi As to the thing delivered ... . 103 As to the person . . 1 06 Authorities . . 108 Ash well's case . . log Middleton's case . 1 1 1 19. Title to chattels by recapture . . . . 114 Limits of and exceptions to the right . . 115 PART III. POSSESSION AND TEESPASS IN RELATION TO THE LAW or THEFT. BY E. S. WEIGHT. CHAPTER I. Possession and Trespass generally, in relation to the Law of Theft. 1. Preliminary 118 £.. General meaning of Possession . . 118 Different senses . 119 Conversion and trespass . . 121 3- Modes of acquisition or transfer of possession 123 A- Original acquisition : ' Occupation ' . . 124 5- Acquisition of possession by effect of law . 127 Executors, etc . 128 6. Acquisition by consent : ' delivery ' . 129 Alienation .... 130 Bailment ... . 131 CONTENTS. SECT. 7- Acquisition by a taking : Trespass . What is taking ...... Continuing trespass . . . . 8. Right to possession ..... Not generally sufficient to maintain trespass 9. Apparent possession ..... Title of possessor against wrongdoer . 10. Delivery by or taking" from a trespasser Semble, not a trespass against true owner . 11. Summary ..... PAGE 141 144 142 145 145 147 148 15' 152 157 CHAPTER II. Particular Cases. 12. Bailments 160 (i) What is a bailment ? . . 160 Post letters 164 (ii) Eights and duties as between bailor and bailee 165 (iii) Kelation of bailee to strangers . 166 (iv) Kelation of bailor to strangers ... 166 (v) Case where the thing is in transitu between owner and bailee 167 (vi) Second, third, or further remores from the owner through hi bailee .......... 168 13- Loss and finding . . . . 171 (i) Ancient authorities 171 (ii) Modern Law . 180 * Pure finding ' ..... . i8o Finding ' with a clue ' . 184 Merely colourable loss and finding J85 14- Sale or other change of property (i) Alienation by sale . Positions of vendor and vendee Of bailee or servant of vendee 187 187 188 190 Authorities .... . . 191 Law of embezzlement 198 (ii) Gifts and assignments . 198 Gift without delivery 199 15- Taking by authority of law When distrainor is a trespasser 199 iOI 16. Fraud and mistake . (i) Fraud .... (ii) Mistake .... Ashwell's case. 203 203 205 307 17- Co-ownership . 212 18. Lien and stoppage in transitu 213 CONTENTS. XI CHAPTER III. The Act and Intention in Theft. SECT. PAGE 19. The act of taking . . . .215 What is a direct taking from the owner's possession . . .215 Indirect or constructive taking . . . . . . .216 Taldng by consent of a person unable to give consent : servant : wife : adultery . . . . . . . . .217 Consent neutralised by a)«)nM«_/i«raBA' . . . .218 No theft where owner consents to part with property . 219 Theft by a person during a possession acquired by trespass, but not originally felonious ... ...221 Statutory theft by conversion by a bailee . . . . .222 Connivance by the prosecutor . . ... 222 20. Elements oi animiisftirandi . . .... 223 Intention of deprival and appropriation . . . .224 (i) As to the character or quality . .... 224 (ii) As to the intended finality of the deprival and appropriation . 225 Wrongfulness of the intention. 226 (i) As to the knowledge or belief that the proposed disposal of the thing will be against the owner's will . . . .226 (ii) As to the absence of a claim of right . . . . .227 (iii) As to lucri causa .228 Special oases. Theft from bailee. Theft by owner. Theft from stranger ....... . 228 CHAPTER IV. Things not the Subjects of Theft. 21. Of what things trespass or theft cannot be committed . .230 Things part of or affixed to soil 230 Animals jflsrae naturae . . ■ . . ■ .231 Things not subjects of property . . . . 232 Documents of title to realty 233 Things of no value .... .... 233 Things said to be of base nature 235 TABLE OF CASES. Aberdeen Arctic Co. v. Sutter, 1 25. Ainslie, re, 127. Allan V. Liverpool, &c,, t. Anoona «. Rogers, 1,21, 66, 70. Anderson v. Eadcliffe, 1 2g. Anonymoug, 181. Armory v. Delamirie, 149. Asli V. Dawnay, 82, 144. Asher v. Whitlock, 22, 23, 96, 97. Atkyns (Taylor d.) v. Horde, 90. Attack V. Bramwell, 201. Badkin v. Powell, 151. Baker v. Coombes, 90. Balme v. Hutton, 128, 189. Bamett, Ex parte, 1 1 1 . Barnett v. Earl of Guildford, 129. Bertie v. Beaumont, 138. Bevil's Ga., 36. Biddulpli V. Atber, 232. Blades v. Higgs, 81, 115,126, 127,159. Board v. Board, 96. Bolton V. L. & Y. R. Co., 70. Boulton V. Jonea, 108. Bourne v. Fosbrooke, i, 9, 148, 151, 199. Bradley v. Copley, 166. Brew V. Haren, 42. Bridges v. Hawkeaworth, 39, 40, 150, 186, 187. Brierly D. Kendall, 166, 199. Bristow V. Cormican, 24, 36. Bryant v. "VVardell, 132, 166. Buckley v. Gross, 99, 150, 213. Burton v. Hughes, 166. Busker v. Thompson, 57. Bush by v. Dixon, 52. Calmady v. Rowe, 34. Carter (Doe d.) v. Barnard, 97. Cartwright v. Green, 109, 205. Castle V. Sworder, 73- Chanel v. Robotham, 234. Chaplin v. Rogers, 64. Commonwealth o. Hazlewood, 236. Cook V. Rider, 14, 31. Cooper, Ex parte, 74- V. Chitty, 128, 189. '('. Vesey, 76. V. Willomatt, 132. Coverdale v. Charlton, i, 35. Cundy v. Lindsay, 108, III. Cusack V. Robinson, 71. Danby v. Tucker, 199. Darby «. Boaanquet, 99. Davison v. Gent, 97. Dawes v. Peck, 161. Dixon V. Gayfere, 23, 98. Doe d. Carter v. Barnard, 22, 97, 98. Doe d. Hughes v, Dyeball, 96. Pritchard v, Jauncey, 96. Smith V. Webber, 23, 96. V. Reade, 99. Donald «. Suckling, 50, 132, 166, 170. Drake, Ex parte, 115. Dunlop V. Lambert, 161. Dunwich (Bailiffs of) v. Sterry, 147, 232. Dutton V. Solomonson, 161. Eardley v. Granville, 1, 49. Edan v. Dudfield, 74. Edwick V. Hawkea, 81. Ellis ». Hunt, 63. Elmore «. Stone, 64, 72. Elwes V. Brigg Gas Co., 41. Emans v. TurnbuU, 42. Evans v. Elliott, 144. V. Roberts, 73. Farina «. Home, 73. Farrant v. Thompson, 127. Fenn v. Bittleston, 132, 166, 199, 224. Fennings v. Lord Grenville, 38. Ferguson v. Cristall, 166. Fisher v. Young, 127. Fletcher, .Ei; ^arte, 12. TABLE OP CASES. XIU Fortli V. Simpson, 214. FouMes V. Willoughby, 224. Fowler v. Down, 167. Gilea v. Grover, 203. Glosse V. Hayman, 138, 140. Glyn Mills & Co. v. E. & W. India Dock Co., 1 1 3. Godts V. Kose, 73. Gordon v. Harper, 127, 145, 166. Gough V. Everard, 65. Graham «. Peat, 91. Grice v. Richardson, 73. Hadfield'a Ca., 27, 52, 56. Hannam D. Mockett, 235. Hardman v. Booth, iii, 112. Harper v. Charlesworth, 31, 148. Harris, Mc parte, 69. Harrison v. Blackburn, 56. Harvey v. Brydges, 81. Harvey v. Pocock, 202. Hayne's Ca., 124. Healy v. Thome, 34. Heelis v. Blain, 52. Herlakenden's Ca., 127. Heydon v. Smith, 139. Higgons V. Burton, 1 1 1 . Hill V. Wilson, 102. Holford V. Bailey, 35. HoUiday v. Hicka, 161. Hopkinson v. Gibson, 138, 139. Horwood V. Pike, 81. Hudson V. Hudson, 127, 188. Hughes (Doe d.) v. Dyeball, 96. Irons V. Smallpiece, 199. Isaack v. Clark, 84, 169, 177. Jacobs V. Latour, 214. V. Seward, 86, 87. Jay, Ex parte, 70. Jeffries v. G. W. E. Co., 92, 150. Job V. Potton, 87. Johnson ». Barret, I48. V. Upham, 201. Jones V. Chapman, 24. V. Williams, 29, 32, 33. Kemp V. Talk, 70. Keyse v. Powell, 87. Killarney, The, 114. Kincaid v. Eaton, 41. Kingsford v. Merry, ill. Ladd V. Thomas, 143, Laird v. Briggs, 169. Leake v. Loveday, 92, 148. Leigh V. Jack, 86. Littledale v. Scaith, 38, 125. L. & B. R. Co. V. Fairclough, 199. London & County Bank v. London & River Plate Bank, 11;. Lord Advocate v. Blantyre, 33. •<;. Young, 31,34,35. Lowcook !). Broughton, 52. Lunn V. Thornton, 199. Lyell V. Kennedy, i, 90. Manders ®. Williams, 93, l66. Marshall v. Green, 74. Marvin v. Wallace, 72. M'Avoy V. Medina, 41. Mennie v. Blake, 170, 203. Merry D. Green, log, 113, 129, 181, 184, 206, 211. Meyerstein v. Barber, 67. Mikes V. Caly, 139. Moore v. Robinson, 139. V. Wilson, 161. Mulcahy v. Reg., 80, 118. Nagle V. Shea, 97. Neill V. Duke of Devonshire, 36. Newnham v. Stevenson, 148. Nicholson v. Chapman, 187. Page V. Morgan, 71. Pain V. Whitaker, 166. Pannell o. Hodgson, 54. Pilling's tr., 46. Pitts V. Gaince, 139. Pope, re, 83. Pott V. Cleg, 161. Powell V. Hoyland, 204, 220. Pritchard (Doe d.) v. Jaunoey, 96. Rains c. Buxton, 90. Reddel v. Dobree, 69. Reeves v. Capper, 214. Ret', (or Rex) v. Adams, 188. XIV TABLE OF CASES. Reg. i\ Aiokles, i6i, 219. V. Ashley, 138. R. I. Ashwell, I, 41, log, 110, 144, 159, 207, 210, 211. ti. Aslett, 234. T. Atkinson, 138. ■u. Attwell, 152. V. Avery, 217* 218. f. Banks, 133, 161. V. Bannen, 233. V. Barnes, 138, 221, V. Bass, 138. V. Bazely, 192. V. Beaman, 138. V. Beecliam, 235. u. Eelstead, 1 66. V. Berry, 217. ■v. Boulton, 235. V. Braraley, 165, 219, 220, 229. V. Brazier, 133. V. Brooks, 219, 222. V. Brown, 160, 163, 164, 219. V. Brunswick, 166. V. Buokmaster, 220. «. Bull, 192. ■». Bullock, 219. V. Eunkall, 161, 191. ■I/. Cabbage, 224, 228. V. Cain, 212. V. Campbell, 163, 219, 221. V. Cheeseman, 216. V. Chipchase, 192. V. Cbisser, 140. V. Christian, 163. V. Clarke, 233, 234. V. Clinton, 42, 232. .;. Coffin, 186. V. Coleman, 220. ■B. Cooke, 138, 163, 219, 221. u. Cornish, 133. V. Cory, 232. V. Cotton, 202, 203. V. Cristopher, 184. V. CuUum, 191, 196. r. Dannelly, 222. t. Davies, 206. V. Davis, 112. V. Day, 152. r. Deakins, 139. V. Deiimour, 160. V. Dickinson, 225. R. c. Dingley, 191. 0. Dixon, 182. 184. V. Dudley, 227. ■V. Dyer, 152. V. Eastall, 203. V. Edwards, 124. «. Egginton, 222. ■V. Essex, 220. V. Featherstone, 217. V. Fitch, 218. V. Fletcher, 133. V. Flowers, no. V. Forsgate, 199. V. Frampton, 1 60. V. Gardner, 164, 234. V. Garrett, 161. V. Gill, 192, 195. ■V. Glass, 164. V. Glyde, 182, 183. ■u. Goode, 162, 163. V. Goodenough, 195. V. Green, 138. ti. Guernsey, 233. V. Gumble, loi, 106. I/. Hall, 224, 227. V. Hamilton, 227. I/. Handley, 224. V. Hands, 120, 141. V. Harding, 193. V. Harrison, 217. ■V. Hart, 161, 234. V. Harvey, 220. v. Hassall, l6o, 161. V. Hawtin, 192. ■V. Hayne, 124, 199. V. Hay ward, 193. ■u. Headge, 192. V. Heath, 138, 235. V. Heuch, 221. V. Henderson, 222. ti. Hoare, 161, 191. V. Hoatson, 227. 17. HoUoway, 226, 227. ti. Howatt, 164. V. Hughes, 199. V. Hutchinson, 138. V. Jackson, 220, 221. V. Jacobs, no. V. Janson, 219. v. Javrett, 191. r. Jenkins, 133, 161, 163, 164. TABLE or CASES. XV E. V. Jolmsoii, 137, 140. <;. Jones, 133, 161, 163, 164. V. Kay, 164. V. Kelly, 152. V. Kenny, 212, 21S. V. King, 152. V. Knight, 182. V. Lamb, 186. V. Lapier, 215. V. Lawrence, 223. V. Leigh, 143. V. Longstreeth, 114, 220, 221. V. McDonald, 41, 160, 163. V. M'Kale, 219. V. M"Makin, 152. V. Madox, 133. V. Malpaz, 179. V. Manning, 224. ■u. Martin, 125. ». Masters, 192, 193, 194, 197. «. Matthews, 185. V. Meade, 234. V. Medland, 326. V. Meeres, 133, 166. V. Metoalf, 235. 1). Middleton, no, in, 204, 206, 217, 220, 221. «, Milbume, 184. V Mole, 181. V. Moore, 182, 186. V. Morfit, 224. V. Morgan, 220. u. Morris, 233. V. Mucklow, 112, 206, 219. V. Murray, 192, 193. V. Mutters, 217, 218. V. Norval, 193. V. Oliver, 139. V. Parkes, 220. V. Pearce, 164. V. Pears, 140. V. Perry, 233, 234. V. Petch, 126. V. Peters, 186, 224. V. Phetheon, 226. V. Phillips, 225. V. Phipoe, l6i, 235. ■o. Pierce, t86. V. Pope, 186. V. Pool, 224, 216. V. Pooley, 234. E. *■. Poynton, 216. Poyser, 133. Powell, 234. Pratt, 199, Preston, 183, 184. Prince, 204, 205, 220, 221. Privett, 224. Eansora, 234. Eead, 126, igi. Eeed, 192, 194. Eeeves, 163. Eemnant, 190, 197. Eevu Pothadu, 37. Eichards, 224. Eiley, 109, 114, 141, 209, 210, 211, 212, 221, 222. Eobins, 221. Eobinson, 195, 335. Eobson, 160. Eodway, 140, 161. Eoe, 232. Eosenberg, 218. Eudick, T97. Savage, 166. Scully, 181, 183. Searing, 235. Sears, 186. Semple, 219. Sheppard, 221. Shickle, 232. Simpson, 221. Smith (7 C. & P.), 128. Smith (2 Den.), 161. Smith (i C. & K.) 162. Sparrow, 3Ji. Speara, 192. Stear, 132. Stewart, 221. Stock, 219. SuUens, 192. Thomas (9 C. & P.), 219. Thomas (33 L. J. M. C), 232. , Thompson (32 L. J. M. C), 138, 140, 219, 221. Thompson (i Den.), 217, 218. Thristle, 143. . Thurborn, 181, 183, 184. , Tolfree, 217. . ToUett, 217. . Townley, 230, 231. . Trebilcock, 226. XVI TABLE OP OASES. R. V. Tunnard, 133. 1). Vincent, 205. V. Vyse, 234. V. Waite, 192, 212. V. Walker, 234. ■V. Wallis, 216. V. Walsh, 139, 165, 191, 192, 235. V. Watson, 138. V. Watta (2 Den.), 164, 193, 197. u. Watts (i Cox), 225. V. Watts (Dears.), 234. ■v. Webb, 221, 224. V. Webster, 165, 213, 229. ■u. Wells, 226. V. West, 182, 186. V. Westbeer, 233. V. White (9 C. & P.), 224, 228. ■u. White (Dears.), 232. V. Wilkins, 138, 152. V. Wilkinson, 165, 229. V. Williams, 222, 227. V. Willis, 212. V. Wilson, 220. V. Woodrow, 114. V. Wright, 195. V. Wynn, 228. V. Wynne, 185, 186, 224. ■ii. Yates, 234. V. York, 224. Eichards 1). Jenkins, 82. Ridgway, re, 199. Roberts v. Wyatt, 132, 170. Rochester v, Rochester, 36. Rogers v. Spence, 123. Rooth V. Wilson, 58. Rosevear China Clay Co., Sx parte, 74- Ryall V. Rowles, 69. Sanders v. Maclean, 67. Sargent v. Morris, 161. Savage «. Walthew, 138. Searby v. Tottenham Ry. Co., 86. Shower v. Pilck, J99. Singleton v. Williamson, 201. Six Carpenters' Ca., The, 144, 178, 202. Smith U.Lloyd, 87. Smiths. Milles, 127, 128, 189, 232. Smith (Doe d.) v. Webber, 23, 96. Spence v. Union Mar. Ins. Co., 213. Stanley «. White, 32, 34. Stevenson v. Newnham, 202. Swans, Ca. of, 126. Tancred v. Leyland, 202. Tassell v. Cooper, 161. Taylor d., Atkyns v. Horde, 90. Taylor v. Parry, 34. Tharpe v. Stallwood, 127, 128, 147. Trustees' Agency Co. v. Short, 87. Ward, Sx parte, 69. Ward V. Turner, 62. V. Macauley, 166. Waud V. Audland, 199. West V. Skip, 69. ■0. Nibba, 82. Wharton v. Naylor, 203. Wheeler v. Montefiore, 56. White V. Bailey, 56. V. Crisp, 1 24. V. Garden, 204, 220. Wilbraham v. Snow, 1 2 2, 203. Williams v. Millington, 162. Winder, Sx parte, 97. Winter v. Winter, 199. Winterbourne v. Morgan, 143. Woadson v, Nawton, 149. Wrotesley v. Adams, 48. Yorke v. Greenaugh, 151. Young V. Hichens, 37, 125. PART I. INTRODUCTION. § 1. First Notions. Possession is a term of common occurrence and no mean significance in the law. It imports something which at an earlier time constantly made the difference between having the benefit of prompt and effectual remedies, or being left with cumbrous and doubtful ones; which in modern times has constantly determined and often may still determine the existence or non-existence of a right to restrain acts of inter- ference with property/ the relative priority of the claims of competing creditors/ or the incidence of public burdens ; ^ and which for centuries has been, and is still capable of being/ of critical importance in defining the boundary between civil wrongs and crimes. Yet, as the name of Possession is in these and other ways one of the most important in our books, so it is one of the most ambiguous.^ Its legal senses (for they are several) overlap the popular sense, and even the popular sense includes the assumption of matters of fact which are not always easy to verify. In common speech a man is said to possess or to be in possession of anything of which he has the apparent control, or from the use of which he has the apparent power of exeludiag others. We shall ' Coverdale r. Charlton, 187S, 4 Q. B. Div. 104; Eardleyu. Grama] le, 1876, 3 Ch. D. 826. ^ Anoona v. Rogers, 1876, i Ex. Div. 385. ^ Allan v. Liverpool, &o., 1874, L. K. g Q. B. 180, 191. Cp. the Public Health Act, 1875, s. 257. * R. V. Aahwell, 18S5, 16 Q. B. D. 190. "■ Erie C.J. in Bourne v. Fosbrooke (1865), 15 C. B. N. S. 515 ; 34 L. J. C. P. 164, 167; Fry L.J. in Lyell v. Kennedy (1887), 18 Q. B. Div. 796, S13. - B 2 INTRODUCTION. Part I. have to consider hereafter whether the measure of apparent power depends merely on physical facts, or is liable to be affected by the appearance or reputation of right. Tor the present we start with this, that any of the usual outward marks of ownership may suffice, in the absence of manifest power in some one else, to denote as having possession the person to whom they attach. Law takes this popular con- ception as a provisional groundwork, and builds up on it the notion of possession in a technical sense, as a definite legal relation to something capable of having an owner, which relation is distinct and separable both from real and from apparent ownership, though often concurrent with one or both of them. Possession, again, whether in the popular or in the legal sense, does not necessarily concur with title. No plain man would hesitate to say that a squatter or a thief possesses himself of the land occupied or the goods carried away; and the law says so too. But the true owner, "or some one claiming through him, ought to have the physical control of whatever has been wrongfully occu- pied, and will recover it if the law be fulfilled. In other words, the true owner or his delegate is entitled to possession ; he is not possessor, but he ought to be. The temptation is great to speak of him as the rightful possessor, or to slide from the idea of right to possession into that of right of possession ; and even the language of lawyers has not escaped it. Again, a man who has possession with the true owner's consent may be bound to restore it on demand ; here too the right of resuming possession is apt to be confounded with possession itself, or with that right to possession which the possessor at the will of another has until that other^s will is determined. On the other hand, since the person entitled to possess is generally (though not always) the owner, and in any case is he whom wrongful possessors have most to fear, a right to possess, even a limited, conditional, or deferred right, is no less apt to be confounded with that more general right to deal with the possession which coincides § r. FIRST NOTIONS. 3 with ownership. The various and complex combinations of these elements make it exceedingly difhcult to obtain a con- sistent doctrine, and almost impossible to preserve a consistent terminology. And, as if the inherent difficulties were not enough, others have been added in the course of modern legislation by making various effects and incidents of pos- session depend, for particular purposes, on the presence or absence of further particular conditions; and this without declaring (except in some cases by the addition of epithets having no settled meaning in law, and themselves requiring interpretation) in which or in how many of its more or less authenticated senses the word Possession was used. Why the law should ascribe possession to wrongdoers may be difficult to explain completely. It is one thing to recognize the fact that physical control of things of value is often wrongfully acquired, another thing to attach definite legal incidents, nay rights which ultimately may ripen into in- disputable ownership, to such facts when ascertained. In many cases the law does take the latter course, and has done so always and everywhere since law has been a science. The truth is that many reasons of convenience concur to outweigh the apparent anomaly, and of these sometimes one and sometimes another may have in fact been the decisive reason in virtue of historical conditions, or may be regarded as decisive according to the individual genius of this or that philosophic student. The most obvious of them, from the point of view of our own time, is perhaps that in a settled and industrial state some amount of genuine doubt as to ownership and title must unavoidably follow upon the com- plexity of men's affairs ; that protection must in some measure be given to persons dealing in good faith on the strength of apparently lawful title, and to those who may afterwards deal with and claim through such persons ; and that such pro- tection cannot be given effectually to the innocent without also protecting some who are not innocent. Further, it can be and has been maintained that on attentive examination the B 3 4 INTEODUCTION. Pai-t I. seeming anomaly will be found indispensable for the adequate protection of true ownership itself. Another element which no doubt has been important in the earlier historical develop- ment of the law^ and to which some great authorities have attached exclusive or all but exclusive importance in modem timeSj is the interest of public peace and order. Men will defend that which they deem their own even if the law pur- ports to forbid them ; and the wholesale allowance of redress by private force, or exposure of wrongful possessors to dis- possession by newcomers having no better right, would create more and greater evils than any that could be thus remedied or prevented. But in forbidding existing relations of persons to things to be disturbed by private violence, or acts likely to provoke violence, the law must needs, at that stage, protect the unjust with the just. If the ultimate justice of the matter were always manifest at first sight, there would be no call for provisional protection. It is also said that possession is in a normal state of things the outward sign of ownership or title, and therefore the possessor is presumed to be or to represent the true owner; some have gone so far as to say that, apart from this, the mere vsdll of a possessor to hold the object for himself is in the eye of the law relatively meritorious as against any one not showing a better title. However, the comparative worth of the philosophical or semi-philosophical theories of Possession cannot be weighed to much purpose until one has mastered in some detail the actual contents of the law.^ § 2. Terminology . It need not give occasion for surprise that we fail to find in our books any title of Possession eo nomine. First, the historical categories of the Common Law have oftener been ' The speculative literature of the subject, which for modern readers may be paid to date from Savigny, shows no sign of coming to an end. The best way of getting on the track of it, if desired, is to consult the latest current edition of a good German book of ' Pandektemecht,' such as Arndts. And see Holmes, The Common Law, Lect. vi. § 2. TERMINOLOGY. 5 determined by procedure and remedies than by rights. Our old authors looked mainly to the forms of action, and thought less, for example, of the essential differences between breach of contract and defamation than of the formal similarity of the remedy as being for either an action on the case. A doctrine of possession exists, but it was developed by means of various remedies for wrongs to possessory rights, and was long thought of wholly or mainly as determining the conditions of those remedies. Trespass, a wrong to possessors ^ of land or goods; Conversion, a wrong affecting possessory rights in goods only, and best known under the catch-word of Trover, the specialized action on the case which was its appropriate remedy; Theft or Larceny, a particular kind of trespass to goods which by virtue of the trespasser's intent becomes criminally punishable ; these and such as these, not the terms of general analysis, are the clues to English authority. For the special applications of the doctrine to land we may add the titles of Ejectment, Landlord and Tenant, and the Statutes of Limitation; and there is much that cannot be rightly understood without going back to the all but forgotten learning of Disseisin. Secondly, the learning of possession disguised itself by its very importance. The Common Law never had any adequate process in the case of land, or any process at all in the case of goods, for the vindication of ownership pure and simple. So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that Possession largely usurped not only the substance bjit„_the name of Property ; ^ and when distinction became necessary in modern times, the clumsy term 'special property" was employed to denote the rights of a possessor not being owner. Thirdly, there are many things material to be known with reference to what may be called the physical basis of the law of Possession — things of which the law takes notice, 1 See 15 H. Vn. 3 a. ' In Brooke's Abridgment, 'Propertie et proprietate probanda,' the two conceptions are not in any way discriminated. 6 INTltODUCTION. Part I. and whieli to a certain extent are defined by authority — which yet do not come within the legal definitions of par- ticular estates and interests, and are relegated in our rough working classification to the head of Evidence^ that general refuge of things otherwise unclassified ; and they have to be sought out, rather by the practising lawyer-'s instinct than by any certain method, in the various places where they lurk — latitant et discwrrunt — among the miscellaneous information of Nisi Prius and Crown Law treatises. The material being thus scattered, and the subject by no means free from real intrinsic perplexity, it is not surprising that the perplexity should have been regarded as almost hopeless. Sir E. Perry, by way of introduction to his translation of Savigny on Possession, cites the following passage from Bentham as to physical possession : — ' What is it to possess 1 This appears a very simple question : — there is none more difficult of resolution, and it is in vain that its solution is sought for in books of law : the difficulty has not even been perceived. It is not, however, a vain speculation of metaphysics. Every thing which is most precious to a man may depend upon this question : — his property, his liberty, his honour, and even his life. Indeed, in defence of my possession, I may lawfully strike, wound, and even kill if necessary. But was the thing in my possession ? If the law trace no line of demarcation, if it decide not what is possession and what is not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I thought was legitimate defence may, in the opinion of the judge, be robbery and murder. ' This, then, is a matter which ought to be investigated in every code, but it has not been done in any. ' To prevent perpetual equivocation, it is necessary carefully to distinguish leiween physical and legal possession. We here refer to the former : it does not suppose any law, it existed before thei'e were laws; it is the possession of the subject itself, whether a thing or the service of man. Legal possession is altogether the work of the law ; it is the possession of the right over a thing or over the .services of man. To have physical possession of a thing is to have a certain relation with that thing, of which, if it please the legislator, § 2. TEEMINOLOGY. 7 the existence may hold the place of an investitive event, for the purpose of giving commencement to certain rights over that thing. To have legal possession of a thing is already to have certain rights over that thing, whether by reason of physical possession or otherwise. ' I have said, that to have physical possession of a thing, is to have a certain relation with that thing. This was all that I have said, this is all that I could say at first. What is that relation 1 It is here that the difficulty begins. ' To define possession is to recall the image which presents itself to the mind when it is necessary to decide between two parties, which is in possession of a thing and which is not. But if this image be different with different men, if many do not form any such image, or if they form a different one or different occasions, how shall a definition be found to fix an image so uncertain and variable 1 ' The idea of possession will be different according to the nature of the subject, according as it respects things or the services of man, or fictitious entities, as parentage, privilege, exemption from services, &c. ' The idea will be different according as it refers to things moveable or immoveable. How many questions are necessary for determining what constitutes a building, a lodging. Must it be factitious ? but a natural cavern may serve for a dwelling, — must it be immoveable 1 but a coach, in which one dwells in journeying, a ship, are not immoveables? But this land, this building, — what is to be done that it may be possessed 1 Is it actual occupation 1^- is it the habit of possessing iti is it facility of possessing without opposition, and in spite of opposition itself 1 ' Other difficulties : In reference to exclusive possession, or possession in common— in reference to possession by an individual, or by everybody. ' Ulterior difficulties : In reference to possession by one's self, or possession by another. You are in the habit of occupying this manufactory, you alone occupy it at this hour : I say you are only my manager, you pretend to be my lessee : A creditor contends that you are my partner. This being the case, are you, or I, or are both, in possession of the manufactory 1 ' A street porter enters an inn, puts down his bundle upon the table, and goes out. One person puts his hand upon the bundle to examine it; and another puts his to carry it away, saying It is mine. 8 INTROnUCTION. Part I. The innkeeper runs to claim it, in opposition to them both ; the porter returns or does not return. Of these four men, which is in possession of the bundle 1 ' In the house in which I dwell with my family is an escritoire, usually occupied by my clerk, and what belongs to him : in this escritoire there is placed a locked box belonging to my son ; in this box he has deposited a purse entrusted to him by a friend. In whose possession is the bag,' — in mine, in my clerk's, in my son's, or his friend's 1 It is possible to double or triple the number of these degrees ; the question may be complicated at pleasure. ' How shall these problems be resolved 1 ' Consult firstly primitive utility, and if it be found neuter, indifferent, then follow the popular ideas ; collect them when they have decided, fix them when they are wavering, supply them when they are wanting; but by one method or another resolve these subtilties, or, what is better, prevent the necessity of recurring to them. Instead of the thorny question of possession, substitute \that of honest intention, which is more simple.' — (General View of a Complete Code, p. i88 of vol. iii. of the collected works.) On this it is firstly to be observed that although Bentham proposes to ask these questions with reference to physical possession as distinguished from legal possession, the cpestions have no significance and are incapable of being answered for any purpose of law except with reference to possession in the legal sense, and that the rules of law for the purposes of which he seeks an answer do refer to possession in the legal sense. In fact, Bentham lets himself slide from the 'natural' into the 'civil' meaning of possession. Secondly, it may be worth while to suggest the answers which the English common law would give in each of Bentham's instances. The case of the manufactory is one of an immoveable thing, and happens to be a much simpler one than many that might be put. The -occupier, if he is my tenant, has the possession. If he is merely my servant, I have the possession, but he may defend it on my behalf. If he is my partner, we are in joint possession, unless I have given him a separate tenancy. It is a previous question of fact whether he is tenant, servant, or partner. ' Sic in the English edition. The French text, in Trait^s de Legislation, ed. Dumont, iii. 338, has ' Dans ce secriStaire se trouve pour le moment une cassette k seiTure, occup^e habituellement par mon fils ; dans oette cassette, une bague confii^e h: sa garde par un ami. Lequel de nous est en possession de la bague, moi, mon clerc, mon ills, ou son ami?' § 2. TEEMINOLOGY. 9 In the •case of the inn, the innkeeper has the possession of the hundle in the first instance as the bailee of his guest. The strangers do not, so long as they merely touch it, acquire any possession, but if one of them lifted it with an intention to exclude the owner, or all persons but himself, he would acquire the possession. The innkeeper's running to claim it would make no difference unless he re-took it or the taker relinquished it. The porter's return while the possession is with the innkeeper will, if the innkeeper consents, determine the innkeeper's possession ; but the porter's return when the bundle has been lifted and is retained by the stranger will make no difference unless he retakes or the taker relinquishes the possession of the bundle. In the case of the escritoire more information is required. If it is moveable furniture, in a room let to the clerk, it is in his possession (Meeres' Case, 1669; I Show. 50), and so are all the things in it. If it is in a part of the house which is in my occupation, it is in my possession and he has merely a licence to use it; the things in it are bailed to me and in my possession when the clerk is absent ; but when he is present they are in his possession unless I prevent his access to them. (Cp. however Bourne v. Fosbrooke, 1865, 18 C. B. N. S. 515; 34 L. J. C. P. 164, where 'possession' is used by Erie C.J. in the sense assigned below to ' right to possession,' and the clerk even in his absence is said to have possession). The definition of possession has varied even in this country at different times. At one time the supposed rules of the Roman law as to ' possession ' seem to have been applied, and a depositary, a mandatary, and other kinds of bailees (see in I Hawk. 33. lo) have been treated as having no possession as against the bailor; and on the other hand, in Staundford's time (P. C. c. 15, fo. 25 a, ed. 1567) a servant entrusted by his master with money for delivery was held to have the possession at common law : cp. the statute 21 Hen. VIII. c. 7. It was thought that the master retained possession only so long as the servant was in his house or accompanying him. The contrary rule, though settled in the modem authorities, is certainly somewhat of an anomaly in the Common Law. It is worth notice that Staundford cites the Roman Law as to theft by bailees by way of contrast, with the remark tliat ' in les cases avant dites le ley de cest realme est plus favorable que nest le ley civil.' Among the apocryphal feats of justice ascribed to King Alfred in the ' Mirror of Justices' is that ' he hanged "Wolmer because he judged Graunt to death by colour of 10 INTRODUCTION. Part I. a larcine of a tiling wliicli he liad received by title of baylement ' (p. 242, ed. 1646). It has constantly been asked : Is Possession a matter of fact or of right ? Bentham and others have made the want of a plain answer a reproach to the law. But in truth no simple answer can be given to such a question^ for all its terms are complex and need to be analysed. Every legal relation is or may be an affair both of facts and of right : there are not two separate and incommunicable spheres, the one of fact and the other of right. Facts have no importance for the lawyer unless and until they appear to be, directly or indirectly, the conditions of legal results, of rights which can be claimed and of duties which can be enforced. Rights cannot be established or enforced unless and until the existence of the requisite facts is recognized. Again, the recognition of those facts is not always a direct or simple matter. To some extent their existence must be inferred rather than observed, and this independently of all grounds of dispute in relation to the credibility or accuracy of human testimony. The lines and limits of permissible inference have to be considered, and in time become subjects of authoritative definition. Apply these general notions to the matter in hand, and it will be seen that, even after we have fixed the meaning of the term Possession, we cannot completely separate, though we may and must distinguish, the elements of fact and of law in a given ease. Whether legal possession shall follow physical possession or not is a point of law. Whether there exists, at the date in question, between a given person and a given thing, the ■relation of physical possession or occupation, is wholly or mainly a matter of fact. But this in turn may be disputed, and then it must be settled whether the specific facts admitted or proved will suffice to establish the existence of the de facto relation of control or apparent dominion required as the foundation of the alleged right : and here we get the kind of questions said expressively if not with dialectic exactness to be of mixed law and fact. §3- ELEMENTS OF DE FACTO POSSESSION". 11 § 3. Pl/ysical and mental elements in de i&cto possession. At first sight it may seem that the relation of oectipation or control on which the legal conception of Possession is normally based, and which is the commencement of ownership ill those things which the law regards as ownerless until captured or otherwise physically appropriated, is a merely coi"poreal one, or at all events determined wholly by position in space. I hold my pen in my hand and can deal with it at will : I sit on my chair : I cannot grasp my table, and I do not want to sit on it, but in various ways I manifest active dominion over it. I handle the books on and about the table : there are other books in the room which I am not using, but I I'an lay hands on them whenever I want them. Hei'e the physical element of possession is simple enough. But it becomes less simple when we consider the passage between my chamber and the outer door. In it there may be portable objects of which I am the owner — a hat, a stick, an umbrella — and no one would think of denying that they are in my possession. But they are not within my sight or instant reach, and, so far as my personal ability goes, they might peradventure be carried away without my knowing it. The relation is still less direct between the master of a house containing many rooms and his goods distributed am^ong those rooms, or between the keeper of a magazine or warehouse and the various goods or stores therein deposited. When we come to immoveable property, it is clear that absolute physical control is in most cases impracticable. If the occupier of a set of chambers cannot certainly prevent things in the entrance passage from being meddled with against his will, much less can one man, or ten men, in a field bounded by an ordinary bank or fence guard every point of that boundary so as to prevent intrusion. Yet every one will say that if the owner or tenant of the field is there, and if there is nothing apparently inconsistent with his using any part of the field at will, he is in possession of the whole. 12 INTRODUCTION. Part J. Again, I go to a friend's chamber ; he is not there ; I sit down at his table and write a note to him. Here the physical relations cannot be distinguished from those observable when I am writing in my own chamber. But, although I may be said to be in possession of the pen, if not of the chair and the table, no one will think of saying that I am in possession of the other books and furniture in the room. The master of a house, whenever he enters it, is in possession of at least every- thing belonging to him that is within sight and reach; if a thief makes his way in and carries off what he can lay hands on, no one will say that he is in possession, even for a moment, of anything he has not actually laid hands on. ' If a man walks into my house without any legal right, he does not thereby get possession of any piece of furniture in my house ; and if he walks into my manufactory he does not thereby acquire any right to the goods there ' ^ — nor any apparent right or power to dispose of them. We have no difficulty in saying that the tenant of a farm containing many score acres is in possession of the whole ; but a person who enters on part of an occupied farm and claims title to the whole is not said or thought to be in possession of any of the land making up that farm, save so far as he may succeed in effectually and continuously excluding the former tenant from it. All this time, be it noted, we have said nothing of possession in law. We have sought only to fix attention on the pre- liminary conception of possession or control in fact. It appears, then, that even at the earliest stage we have many things to distinguish. Be facto possession, or Detention as it is currently named in Continental writings, may be para- ( phrased as efCective occupation or control. Now it is evident that exclusive occupation or control, in the sense of a real unqualified power to exclude others, is nowhere to be found. All physical security is finite and qualified. A strong man is worse to meddle with than a weak man or a child, but the strong man also may be overpowered. It is harder to break ' James L.J., Ex parte Fletcher, 1877, 5 Ch. Div. 809, S14. §3. ELEMENTS OP DE FACTO POSSESSION. 13 into a safe than a cupboard, a house than a field, a prison or a fortress than a house ; but locks may be picked, bolts forced, walls broken. External security means only making intrusion so troublesome, and successful intrusion so little to be hoped for, that under ordinary conditions the risk of the attempt will be out of proportion to the contingent gain of success. And the amount of material difficiilty which it is necessary or worth while to set up is found by experience to vary with the circumstances. A dwelling-house is not built or guarded like a prison, and we do not lock up tea and candles in a safe ; we should call a banker imprudent who used only the same cautions as a private householder. We may say then that, in common understanding, that occupation at any rate is effective which is sufficient as a rule and for practical pm-poses to exclude strangers from interfering with the occupier's use and enjoy- ment. Much less than this will often amount to possession in the absence of any more effectual act in an adverse interest. Indeed it seems correct to say that ' any power to use and exclude others^ however small, will suffice, if accompanied by the animus possidendi, provided that no one else has the animus possidendi and an equal or greater power.'' '^ To deter- mine what acts will be sufficient in a particular case we must attend to the circumstances, and especially to the nature of the thing dealt with, and the manner in which things of the same kind are habitually used and enjoyed. We must distinguish between moveable and immoveable property, between portable objects and those which exceed the limits of portable mass ox bulk. Further, we must attend to the apparent intent with which the acts in question are done. An act which is not done or believed to be done in the exercise or assertion of dominion will not cause the person doing it to be regarded as the de facto exerciser of the powers of use and enjoyment. Still further, it will often not suffice to regard the intent of the actor alone. I may intend to assert dominion over a given subject of property, and I may do an '. Terry, Principles of Anglo- American Law, p. 268. H INTEODUCTION. Part I. act, or a series of acts, fitted to manifest that intention. But there may be some other person who appears to be in a position, of right or in fact, to object to my claim ; and whether my action be taken with or without the consent or acquiescence of any such person will make a great difference to the practical result. If I act with the consent of the former holder (as a purchaser does when he receives delivery of goods or is let into possession of land), whoever respected his will to exclude others may be expected in like manner to respect mine : I get, if one may so use the word, the goodwill of his occupation. But if consent be wanting, and I am confronted by resistance, (r even under apprehension of it, other people cannot be expected to assume anything in my favour, and will not give me credit for the powers of an owner until my exclusive power of control is manifest in actual experience. Thus it happens that acts which if opposed would be insignificant are accepted as a sufficient and actual entering on possession when they are fortified by the concurrence of the last possessor, while hostile or ambiguous occupation must make itself good at every step. Delivery is favourably construed, taking is put to strict proof ; and this not by calling in aid any presumption of right, but on the ground that the reality of de facto dominion is measured in inverse ratio to the chances of effective opposition. And, in order to ascertain whether acts of alleged occupation, control, or use and enjoyment, are effective as regards a given thing we may have to consider — (a) of what kinds of physical control and use the thing in question is practically capable : (b) with what intention the acts in question were done : (c) whether the knowledge or intention of any other person was material to their effect, and LE so, what that person did know and intend.'- Hence follows a seeming paradox. Occupation or control is a matter of fact, and cannot of itself be dependent on matter of law. But it may depend on the opinion of certain persons for ' See Cook v. Eider, 1834, 16 Pick. (Mass.) 186. §3- ELEMENTS OF DE FACTO POSSESSION. IS the time beings or the current opmion of a multitude or a neigh- bourhoodj concerning that which is ultimately matter of law. Though law cannot alter f acts^ or directly confer physical power, the reputation of legal right may make a great difference to the extent of a man's power in fact. Ownership does not make one an occupier, nor necessarily confer any right to oeciipy; but occupation is easier and more effective (in a settled country at any rate) when armed with the real or supposed authority of the owner. Physical or de facto possession readily follows the reputation of title ; we shall see that possession in law is ordinarily adjudged to follow the true title, in cases where physical possession is contested or ambiguous ; and in this the law does not cross, but rather develops and confirms, the practical instinct of mankind. At the same time it must be remembered that when physical possession or control is once gained, it may be or become precarious, but it is none the less real while it lasts. As Mr. Justice Holmes says, "^A powerful ruffian may be within equal reach and sight when a child picks up a pocket- book; but if he does nothing, the child has manifested the needful power as well as if it had been backed by a hundred policemen.' In this case the child's dominion is a very real one for the time being. The ruffian may attempt to seize the pocket-book, but before he can execute his intention the child may tear the book, or throw it into a river, or over a cliff, with the result of its ceasing to exist as the same object, or passing out of human control. So, in the case of the banker above mentioned, let us make the extreme supposition that he not only, does not use the regular precaution of a banker, but leaves the bank open and unguarded; still he will have possession of the cash and securities in the bank until some one takes them. It is needless to point out further that physical possession may be lost in various ways without any other person gaining it; but we must carefully guard ourselves against hastily applying the same idea to legal possession. The law does not 16 INTEODUCTIOIsr. Part T. always or necessarily attach the rights of possession to physical control ; and in like manner, when physical and legal pos- session coincide, it does not necessarily follow that the loss of control in fact shall involve the loss of possession in law. The continuance or discontinuance of physical control is a fact, though not always an obvious fact ; the continuity or inter- ruption of legal possession cannot be affirmed without applying to the facts, when ascertained, positive rules of law. Indeed, the rules are quite different in the Roman law and the Common Law, so that the detailed comparison of them is profitable, here as elsewhere, only when we bear in mind that each stands on its own ground. There is nothing irrational in a determination of the law to limit the range of disputes in matter of fact by holding that legal possession, once established, can be changed only in certain defined ways, and shall persist until so changed. § 4. Possession in Law. To have the actual apparent power of preventing inter- ference with a thing is diiierent, and has to be distinguished, from having the power of such prevention attributed to one by law, so that the intermeddler may be rightfully resisted at the time, or may afterwards be compelled by legal process to make reparation in some form. When the fact of control is coupled with a legal claim and right to exercise it in one's own name against the world at large, we have possession in law as well as in fact. We say as against the world at large, not as against all men without exception. For a perfectly exclusive right to the control of anything can belong only to the owner, or to some one in- vested with such right by the will of the owner or some authority ultimately derived therefrom, or, exceptionally, by an act of the law superseding the owner's will and his normal rights. Such a right is matter of title; the person bearing 'it has a definite estate or interest known to the law, an estate §4- POSSESSION IN LAW. 17 of freehold or copyhold or for years if it be in land, a general or special property if it be in goods. If he has not the actual control, the law will help him to it; in other words, he is entitled or has the right to possess the thing in question. When he has obtained control, he will be the actual and rightful possessor. But meanwhile some one else may have possession in fact, and may likewise have actual possession in law, that is, he may be entitled for the time being to repel and to claim redress for all and any acts of interference done otherwise than on behalf of the true owner. Possession in law is most easily understood as associated with possession in fact. This is the normal aspect of the right. It exists, broadly speaking, for the benefit of possessors in fact and in good faith, even if we hold that the ulterior object is the benefit of those who, as being or claiming through true owners, are really entitled to possess. The law would be much simpler than it is if it were held that actual control or custody invariably gives actual legal possession, whether the custodian exercises control on his own account or as the servant or otherwise on behalf of another. But no system of law, so far as we know, has gone that length. A I manifest intent, not merely to exclude the world at large from interfering with the thing in question, but to do so on one's own account and in one's own name, is required in different degrees both by the Roman law and by the Common Law. One who holds a thing with the owner's consent must do so on the terms consented to ; when we have once conceived legal possession as a definite right or interest, there is no difficulty in conceiving it to be one of the terms on which a thing is handed over that legal possession shall remain with the owner, or in presuming it so to be in certain common cases, or even in making a fixed rule of law that possession shall follow the transfer of physical control (which we may call manual delivery in all cases, though the term is more proper to moveables) only when specified kinds of interest in the property itself are concerned. Accordingly we find in the c 18 INTEODUCTION. Part I. Roman law that possession is not easily separated from owner- ship by voluntary manual delivery; whereas the Common Law seems averse to separating possession in law from physical custody, where the thing is in an ascertained custody, and does so only in special cases, as where a servant holds on behalf of his master, and where property taken in distress or execution is said to be ' in the custody of the law/ These cases have been thought anomalous in our modern system, and indeed the authorities are not wholly clear. It may be observed however that a servant^s custody is often so manifestly exercised not on his own account but on his master's that it has no colour of apparent ownership. If we regard acts according to their apparent intent and effect, as measured by the common knowledge of mankind, we can hardly say that a groom exercising his master's horse is even in de facto possession of the horse. He is in appearance as much as in fact, in fact as much as in law, the master's instrument for exercising the master's power. There is no appearance of acting on his own behalf which could mislead a man of ordinary judgment. The same may be said of a gardener at a country house when the house is left empty, of a tradesman's messenger driving a cart with the tradesman's name on it, of a porter in the service of a railway company or other carrier handling goods in transit, and the like. We have already noted that before we can safely describe a given act as an act of dominion, even in the region of pure matter of fact, we must take account of its apparent intent and probable effect. It is however convenient and almost inevitable, when once we are in presence of an apparent cle facto possessor, to ascribe to him possession in law so far and so long as nothing appears to the contrary. Again, there is another and quite different way in which possession in law may be independent of de facto possession. We may find it convenient that a possessor shall not lose his rights merely by losing physical control, and we may so mould the legal incidents of possession once acquired §4- POSSESSION IN LAW. 19 that possession in law shall continue though there be but a shadow of real or apparent physical power, or no such power at all. This the Common Law has boldly and fully done. It is not merely that things continue in a man^s possession though they be out of his immediate control, so long as his active control is, as some say, capable of being reproduced, or, as others say, his relation to them is con- sistent with the usual dealing of an owner of such things : as where implements of husbandry are left lying out in the field where they are used, or a purse or a jewel is mis- laid in the house where it is kept. Legal possession, in our law, may continue even though the object be to common apprehension really lost or abandoned. Again, we must have some positive rxde to meet the case of a thing which is the object of dispute, and so evenly disputed that no claimant can be said to have de facto possession rather than another. It might conceivably be held that legal possession is in suspense as well as the physical possession. But the Common Law does not so hold ; it prefers, in the absence of a decisive state of fact, to make legal possession follow the better right. Further, possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title. Hence it is itself a kind of title, and it is a natural development of the law, whether necessary or not, that a possessor should be able to deal with his apparent interest in the fashion of an owner not only by physical acts but by acts in the law, and that as regards every one not having a better title those acts should be valid. It may now be convenient to state certain rules which are believed to represent, in a general way, the working method of the Common Law with regard to Possession. They do not profess to be exhibited in any order of systematic development, or to be logically independent, or to be strictly co-ordinate in character or importance. The word c 2 20 INTEODXJCTION. Part I. Possession, if not expressly qualifiedj will be used now and afterwards with the meaning of possession in law. It would be convenient, if it were possible, to restore ' seisin ■" to its ancient meaning of possession in law whether of corporeal or incorporeal hereditaments, chattel interests in land, or personal chattels, and appropriate ' possession ' to detention or de facto possession. But the violence to modern usage would be excessive. -"&"- § 5. Rules. I . Possession in fact is prima facie evidence of possession in law. This might be expressed still more shortly, but at the cost of using a terminology not familiar in our authorities, by saying Possession is presumed from Detention. a. Possession in fact, with the manifest intent of sole and exclusive dominion, always imports possession in law. It is not material whether physical control or apparent dominion be acquired with or without a good title, or, if without a good title, whether innocently under colour of a supposed title, or with wrongful knowledge and intent. A possessor may be a mere wrongdoer against the true owner, and a wrongdoer for the very reason that he has got possession; while yet his possession is not only legal but, as against all third persons not claiming under the true owner, fully protected by the law. But we shall see that wrongful possession is by no means an unmixed advantage to the possessor, in the case of goods at any rate. Possession in fact without the manifestation of intent td| act as owner may or may not be accompanied by possession in law according to the manner and character in which it is acquired. 3. Possession is single and exclusive. As the Romans said, ' plures eandem rem in solidum possidere non possunt.-" This follows from the fact of possession being taken as the basis § S. RUIES. 21 of a legal right. Physical possession is exclusive^ or it is nothing. If two men have laid hands on the same horse or the same sheep, each meaning to use it for his own pur- poses and exclude the other, there is not any de facto pos- session until one of them has gotten the mastery. ' Contra naturam quippe est, ut cum ego aliquid teneam, tu quoque idtenere videaris.^^ This is no reason against ascribing legal possession to one person in preference to another when physi- cal possession is in suspense (see rule 7 below), but it is a reason against ascribing it to more than one. The rule is fundamental in English as well as in Roman law.^ Such apparent exceptions as may be found consist in the remedies of a possessor being granted, for certain purposes and in certain cases, to an owner out of possession. The phrase of Roman law in such eases is ' perinde haberi debet ac si possideret.^ ^ It must be admitted that the language of our authorities is anything but clear or unifc rm, and some- times a bailor and bailee are spoken of as both having posses- sion.* In such passages the word is used in a double sense. Joint tenants or tenants in common, when they have not parted with possession, possess in law, and may possess in fact, according to their interest as owners. If a servant holds the property on their behalf, the de facto possession is exer- cised in the name and for the use of all of them. If one of them alone holds or occupies, his physical possession is that of an owner for his own interest and that of an agent as to the others. If there is a personal joint occupation, the physical and legal possession exactly coincide. In every case there is not a plural possession, but a single possession exer- cised by or on behalf of several persons.^ 4. Possession is acquired and lost in certain specific ways. ' Paulus, D. 41. 2. de acq. vel amitt. poss. 3. § 5. ' Co. Litt. 368 a; Vaughan, 189. ' See note 49 by EudorfT to Savigny's Reoht des Beeitzes, 7th ed. (1865) at p. 630. * E. g. Anoona v. Eogers, i Ex. Div. at p. 292. » See Litt. ss. 314, 319, 321, 323. 22 INTRODUCTION. Part I. An existing possession can be determined only in one o£ those ways. This rule is another necessary consequence of recognizing Possession as a definite legal right. When the law defines rights^ it must also define the ways in which they can be acquired and lost. The second part of the rule might be called the law of persistence in relation to this subject : it is in truth a corollary from the first, but it is of such importance that it needs to be distinctly stated. In approaching the subject as a whole, and in working out various particular problems, there is nothing easier or more misleading than to assume that when a thing is not in any one's physical control it is not, or on principle ought not to be, in any one's legal possession. 5. As against a mere wrongdoer possession is conclusive proof of right to possess. Not only is existing possession protected against interfer- ence at the hands of a mere intruder, but in an action for wrong to the possession .the intruder cannot be heard to say .,that any third person to whose title he is himself a stranger has a better title than the actual possessor. An alleged para- mount claim of some third person, however probable or even obvious, is irrelevant unless one can justify under the authority of that person. 1 This protection however does not extend to a right to possess when separated from actual possession. 6. As against strangers, the right founded on possession has the incidents of ownership and is transmissible according to the nature of the subject-matter : we may say compendiously that Possession is a root of title. It might be held that the right to possess as against the world at large is attached only to actual possession, and that where a person is in possession without acknowledgment of ' Nevertheless a plaintiff in an action founded on right to possess, whose case would be good if he relied on his own possession, may spoil it if he shows the badness of his own title by setting out the previous history : Doe v. Barnard, 1849, 13 Q. B. 946 ; 18 L. J. Q. B. 306 ; see per Mellor J. in Asher». Whitlock, L.B. I Q. B. atp. 6. § S. RULES. 23 the true title, and acting as owner, his apparent title cannot be continued by transfer or devolution^ but, unless and until the true owner intervenes, there can be only successive occu- pations under which no one who has not actually obtained possession can acquire any right. But when possession is conceived as a substantive right in the nature of property, valid against all merely extraneous intrusion, there is no reason for not holding it to be capable of the same kinds of transfer and devolution as property itself. And it would be manifestly inconvenient to leave property to be scrambled for in the absence or indifference of the true owner. Accordingly it is held that a possessor acting as owner has not only a personal interest, but a title which is effective against all outsiders, and enures to the benefit of all who may hereafter be able to show a title derived from it by any form of bequest, devolution, or conveyance, appropriate to the nature of the subject-matter.-^ Moreover, as possession originally without right may be converted into fuU ownership by lapse of time, so a continuous title derived from such possession will become absolute when- ever the time has elapsed which is required in the particular case for the final extinguishment of the former owner's claim. In other words, the final operation of statutory or other prescription is not necessarily for the benefit of the actual possessor for the time being. If B., having occupied White- acre without title for ten years, dies intestate leaving N. his heir, and C. then enters and occupies for other ten years, it seems that when the right of A. the true owner is extinguished by force of the Statute of Limitation the person who becomes entitled will be, not C. the actual possessor, but N. For B., though he had no title as against A., had from the commence- ment of his occupation a good title against any one not ' Asher v. Whitlock, 1865, L. E. i Q. B. i ; Doe d. Smith v. Webber, 1834, I A. & E. 119. Note that Dixon ». Gayfere (1853), 17 Beav. 421, is quite consistent with these decisions ; only a dictum at p. 430 is otherwise. The account of it given in argument, L. E. i Q. B. at p. 4, ia inaccurate. Cp. 0. W. Holmes, The Common Law, p. 23S. 24 INTEODTJOTION. Part I. claiming through A. If C. had been turned out by J)., C. would in the same way have a relatively good title as against D. The effects of possession in itself, prior to and apart from the transfer of ownership by prescription, must be carefully distinguished from the conditions and incidents of such trans- fer, though the provisional guarding of possession and the final change of property are instruments of the same policy of the law. 7. Where possession in fact is undetermined^ possession in law follows the right to possess. We may also say more shortly, when the limited scope of the proposition is rightly understood, that Possession follows title. The rule was enunciated forty years ago by Maule J. in the following dictum : — ' It seems to me that, as soon as a person is entitled to possession, and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by the command of that lawful owner so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser .■'^ It had already been said by Littleton that ' where two be in one house or other tenements together to claim the said lands and tenements, and the one claimeth by one title, and the other by another title, the law shall adjudge him in possession that hath right to have the possession of the same tenements .■" ^ This rule does not often occur in a simple application such as that which Maule J. put for illustration's sake ; at least not ' Jones V. Chapman (1847), 1 Ex. at p. S21. And see Lord Blackburn's remarks in Bristow v. Cormican (1878), 3 App. Ca. at p. 661. '' Litt. a. 701, and to the same effect Newton, 19 H. VI. 28 h, and Perkins, § 218. fg. RULES. 25 in modem times ; still it is a material element in the doctrine of possession as a whole. It seems to be applicable not only where one of the contending parties has an absolutely good right to possess, but wherever he has a relatively better right to possess than the other ; ^ in other words, possession would follow at need a title duly derived from a prior though merely possessory right as against any inferior title. Otherwise the last preceding rule could not have its full effect. 8. An owner is prima facie entitled to possession, and possessiofi is prima facie evidence of ownership. De facto possession is the sum of acts of ownership, and when the owner of a thing is ascertained he is entitled to act as owner in every lawful way unless it appears that he has divested himself of some part of his general powers. And, as the first condition of exercising full domiruon, he is entitled to the undisturbed control of the thing. Con- versely, for the very reason that possession in fact is the visible exercise of ownership, the fact of possession, so long as it is not otherwise explained, tends to show that the possessor is owner : though it may appear by further inquiry that he is exercising either a limited right derived from the owner and consistent with his title, or a wrongful power assumed adversely to the true owner, or derived from some one wrongfully assuming to be owner, or possibly, again, an adverse but justified power. We have to add that the right to possess, though distinct from possession, is treated as equivalent to possession itself for certain purposes, more important with regard to procedure than to the substance of the law, and under the modern English practice of only historical importance, but still needful to be understood. It is then called constructive possession. Want of attention to the somewhat minute distinctions arising from this extension of the rights of a possessor to one who is not an actual possessor has led to much confusion. ^ It might formerly, and perhaps still may sometimes, even be applied against a true owner who had lost the immediate right to possess. See the continuation of the passage cited from Perkins. PAET 11. OF POSSESSION GENERALLY. CHAPTEE I. The Nature of Possession. THEOUGHOtFT oiu- inquiry we have to bear in mind that the following' elements are quite distinct in conception, and, though very often found in combination, are also separable and often separated in practice. They are i. Physical control, detention, or de facto -possession. This, as an actual relation between a person and a thing, is matter of fact. Nevertheless questions which the Court must decide as matter of law arise as to the proof of the facts. ii. Legal possession, the state of being a possessor in the eye of the law. This is a definite legal relation of the possessor to the thing possessed. In its most normal and obvious form, it coexists with the fact of physical control, and with other facts making the exercise of that control rightful. But it may exist either with or without detention, and either with or without a right- ful origin. A tailor sends to J. S.^s house a coat which J. S. has ordered. J. S . puts on the coat, and then has both physical control and rightful possession in law. J. S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the servant has physical control (in this connexion generally called ' custody ' by our authorities) and J. S. still has the possession in law. While the servant is going on his errand, Z. assaults him and robs him of the coat. Z. is not only physically master of the coat, but, so soon as he has complete control of it, he has THE NATUEB OJP POSSESSION. 27 possession in law, though a wrongful possession. To see what is left to J. S. we must look to the next head. iii. Right to possess or to have legal possession. This includes the right to physical possession. It can exist apart from both physical and legal possession; it is, for example, that which remains to a rightful possessor immediately after he has been wrongfully dispossessed. It is a normal incident of ownership or property, and the name of ' property ' is often given to it. Unlike Possession itself, it is not necessarily exclusive. A. may have the right to possess a thing as against B. and every one else, while B. has at the same time a right to possess it as against every one except A. So joint tenants have both single possession and a single joint right to possess, but tenants in common have a single possession with several rights to possess.^ When a person having right to possess a thing acquires the physical control of it, he necessarily acquires legal possession also. Right to possess, when separajted from possession, is often called ' constructive possession.' The correct use of the term would seem to be coextensive with and limited to those eases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession. But it is also sometimes specially applied to the cases where the legal possession is with one person and the custody with his servant, or some other person for the time being in a like position ; and sometimes it is extended to other eases where legal possession is separated from detention. ' Actual possession ■" as opposed to ' constructive possession ' is in the same way an ambiguous term. It is most com- monly ^ used to signify physical control, with or without possession in law. ' Bare possession ' is sometimes used ' Litt. S8. 311, 314 ; cf. s. 315, where if we interpreted Littleton in Coke's manner we migtit hold the &c, to signify the additional reason that trespass ia a wrong to the Possession itself. ^ But in statutes it has been held to include purely legal possession conferred by a grant operating under the Statute of Uses : Hadfield's ca., 1873, L. E. 8 C. P. 306. 28 OE POSSESSION GBNEEALLT. Part 11. with the same meaning. ' Lawful possession ' means a legal possession which is also rightful or at least excusable; this may be consistent with a superior right to possess in some other person. The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context. In the procedure of the Common Law (which no longer exists in England, but must be understood in order to understand the substance of the law) an action of Trespass is the appropriate remedy for a wrong done to existing legal possession. Wrongs affecting the right to possess are remediable by other forms of action, mainly Ejectment (superseding the assizes and other possessory real actions) as to land, and Trover (largely superseding Detinue) as to personal chattels. All actual legal possessors can maintain Trespass (and control in fact is evidence of possession in law) ; but they may use the other remedies at their option in so far as they can show a right to possess. An owner who has parted with possession but may resume it at will can also maintain Trespass. The right to sue in trespass is therefore not a sufficient test of Possession, though it is a necessary one. We shall now consider by what kinds of evidence the fact of possession is established with regard to different kinds of things capable of ownership, and in what ways possession in law can be acquired and lost ; something must also be said of the relations of Possession to the right to possess, and the ways in which it affects and is affected by Title. § 1. Evidence of Possession: Land. Inasmuch as Possession, a legal state of things importing definite and valuable rights, is established by certain kinds of facts of which the law takes notice, it concerns us to know what those facts are. The rights of a possessor belong to him Chap. I. § I. THE NATUEE OE POSSESSION. 29 who is in possessioiij but one who rehes on de facto possession as investing him with those rights and entithng him to the appropriate remedies has to satisfy the Court that he rather than any other person was, at the time of the wrong he com- plains of, in a certain relation to the thing of which the use or enjoyment is in question. He must prove a state of facts which will be sufficient in law to support his claim. The subject-matter of Possession is either capable or incapable of comprehension, that is, of a complete physical control applied to the thing as a whole. A book may be carried away in the hand, or in the pocket. Chairs and tables may be carried away in a cart or a railway truck. The cart or truck is not so easily moved as a book or a chair, but it is moveable and can be sent about the country at will under the single control of some one who guides it. A sporting gun is moveable and portable ; the great guns of a man-of-war are not portable in the common meaning of the word, but they are still moveable ; they are capable, through appropriate me- chanical means, of single-handed control, and are not capable of a permanently divided control. The ship itself, however large, and though capable as to its parts of separate occupation, is still moveable and under cormnand as a whole. Ten acres of land in a field, on the other hand, or the farm buildings thereon, are not moveable,^ and though the control of either of them existing at a given time may be single, it may at any time be divided or subdivided. Part of the house may be let off for the exclusive occupation of a tenant, or part of the field may be sold, or acquired under compulsory powers by some local authority. Even within the same visible boundary there may be, and under the old common-field tillage there constantly were, diversities of both ownership and possession.^ Or the surface may be in one person's occupation while a mine beneath it is occupied and worked by another. ^ Houses have been moved, for exceptional purposes, by severing tbem as a whole from the soil for a limited time. We are not concerned here with this abnormal state of things. » Of. per Parke B., Jones i;. Williams (1837), 2 M. & W. 326, 331. 30 OF POSSESSION GBNEfiALLY. Part II. Hence it is not possible, as matter of fact, to possess a house, a wood, or a field in the same manner as we possess the money in our pockets, or the owner of a cart and horse possesses them when he is driving the horse in the cart. There can only be a more or less discontinuous series of acts of dominion. What kind of acts, and how many, can be accepted as proof of exclusive use, must depend to a great extent on the manner in which the particular kind of property is commonly used. When the object is as a whole incapable of manual control, and the question is merely who has de facto possession, all that a claimant can do is to show that he or some one through whom he claims has been dealing with that object as an occupying owner might be expected to deal with it, and that no one else has done so. Omnia ut dominum gessisse^ is, for English as well for Roman lawyers, a good working synonym of in possessione esse. Such conduct is evidence of possession, and the possession is evidence of ownership, subject to any other evidence which may explain the matter otherwise. And the importance of this as regards land is greater than it seems at first sight. A fairly good title can be shown to the freehold of most of the land in England ; but if we want to know exactly to what land a given title applies, we have oftener than not to rely on actual usage to determine the boundaries. Pew title-deeds are so precise in their description of the property dealt with as to leave nothing uncertain. Where particular circumstances make the difference of a few feet material, there may be serious dispute about the owner- ship, for example, of a boundary ditch, with maps and documents in excellent order on both sides. It is quite exceptional for documents to throw any light on facts of this kind. They may guide us to a certain bank and double ditch between Blackacre and Whiteacre, but if the owner of Blackacre claims the bank and both ditches, and the owner of Whiteacre claims one ditch and half or the whole of the bank, the documents will probably cease to help us, and ' C. 7. 32, de poss. 2. Chap. I. § I. THE NATURE OF POSSESSION. 31 we must fall back on evidence of acts of ownership and of the local custom as to boundary ditches.^ Again, acts of dominion over land are often isolated in space. A bank or a fence is mended here and there as it needs mending, and the like. And then it has to be considered to what extent in space acts of this kind assume dominion, and against whom. First, as to the quality of acts of dominion, they will be esteemed according to their subject-matter. Conduct which would be almost evidence of abandonment with regard to one kiad of land may with regard to another be as good evidence of use and occupation as can be expected. ' By possession is meant possession of that character of which the thing is capable.^ ^ ' What acts amount to a sufficient occupation must depend upon the nature of the soil and the uses to which it is to be applied.^ ^ Where land is uncultivated and of little immediate use except for sport, shooting over it during some months of the shooting season may be enough to constitute de facto possession.* In British India boundary disputes are exceedingly conunon, and one point to which evidence is commonly directed is who sowed the last crop; but the evidence is often conflicting and untrustworthy, even collusive litigation being got up beforehand in order to make evidence on special points in such suits. ^ The nature of the soil, on the alluvial lands of Bengal at any rate, also makes a conflict of genuine claims quite possible and intelligible. Thus an Anglo-Indian magistrate may give very little weight to testimony which an English jury or judge would act upon in England without hesitation. Acts of dominion over part of the thing in dispute may be evidence of de facto possession of the whole. The principles ' See Y. B. 4 H. VI. 10, pi. 4. '^ Lord FitzGerald in Lord Advocate v. Young, 1887, 13 App. Ca. at p. 556. ' Cook V. Rider, 16 Pick. (Mass.) 186, 187. ' Harper «. Charleswortli, 1825, 4 B. & C. 574, 584. Grass had also been taken under a licence from the plaintiff. » See Mr. H. A. D. Phillips in L. Q. E. iii. 197-aoo. 32 OF POSSESSION GENERALLY. Part II. and conditions on which this depends were thus explained by Parke B. half a century ago : — ' Ownership may be proved by proof of possession, and that can be shown only by acts of enjoyment of the land itself; but it is impossible in the nature of things to confine the evidence to the very precise spot on which the alleged trespass may have been committed : evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same inclosure ; for the ownership of one part causes a reasonable inference that the other belongs to the same person : though it by no means follows as a necessary conse- quence, for different persons may have balks of land in the same inclosure ; but this is a fact to be submitted to the jury. So I apprehend the same rule is applicable to a wood which is not inclosed by any fence. If you prove the cutting of timber in one part, I take that to be evidence to go to a jury to prove a right in the whole wood, although there be no fence, or distinct boundary, surrounding the whole; and the case of Stanley v. White ^ I conceive is to be explained on this principle : there was a continuous belt of trees, and acts of ownership on one part were held to be admissible to prove that the plaintiff was the owner of another part, on which the trespass was committed. So I should apply the same reasoning to a continuous hedge ; though no doubt the defendant might rebut the inference that the whole belonged to the same person by showing acts of ownership on his part along the same fence. It has been said, in the course of the argument, that the defendant had no interest to dispute acts of ownership not opposite his own land ; but the ground on which such acts are admissible is not the acquiescence of any party : they are admissible of themselves, propria vigore, for they tend to prove that he who does them is the owner of the soil ; though if they are done in the absence of all persons interested to dispute them, they are of less weight.' ^ Baron Parkers exposition has since received the highest ' 14 East, 332 ; see below. '' Jones 11. Williams, 1837, 2 M. & W. 326, 331. Chap. 1. § I. THE NATURE OE POSSESSION. 33 judicial confirmation, and may be regarded as classical. In a Scottish case where a claim of title to foreshore was founded on continued acts of possession Lord Blackburn said : * — 'Every act shown to have been done on any part of that tract hy the barons [of Erskine] or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances ; one very important circumslance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possestion as owners of parts of the tract tends to prove ownershiji of the whole tract ; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the vsrhole, the weight depending on the nature of the tract, what kind of pcssession could be had of it, and what the kind of possession proved was. That ia what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v. Williams.^ And as the weight of evidence depends on rules of common sense, I apprehend that tl is is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each sucli piece of evidence taken separately.' In a later Scottish ease of the same character Lord Watson said : — ' It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend upon its own circumstances ... In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore in its natural state can never be in the str'ct sense of the term exclusive. The proprietor cannot exclude the public from it at any time ; and it is practically impossible to prevent occasional enci oachments on ' Lord Advocate v. Lord Blantyre, 4 App. Ca. 773 at p. 791. As to the nature and extent of the acts relied on, see at p. 774. " 2 M. & W. 326 at p. 331. D 34 OP POSSESSION GENERALLY. Part II. his right, because the cost of preventive measures would be alto- gether disproi)ortionate to the value of the subject.' ' It has long been settled by English authorities that acts of dominion such as taking seaweed, sand, and stones on the foreshore, done without interruption by an owner of the adjacent land down to high-water mark who deduces title from the Crown, are sufficient proof of de facto possession to be evidence of legal possession under the same title, and therefore evidence that the foreshore was comprised in the Co. Litt. 322 i. = Litt. ss. 588, 589. Cf, o. 541, and Coke thereon, 306 h. Chap. II. § 15. THE TEANSPEE 01 POSSESSIOIS'. 89 is not the lord's money that the tenant has paid to the wrongful claimant, and his duty to the true lord is unaltered. Butj in order that the person wronged might maintain his title by the convenient remedy of the assize of novel disseisin, he was allowed, if he thought fit, to consider himself disseised ; much as at a later period in the history of the law plaintiffs were allowed to recover damages in the form of an action upon a fictitious promise for many causes of action which were in fact merely wrongful dealings with property. As the right owner may choose to admit himself out of possession by bringing an assize, so by making a grant over, on the other hand, he may make ' a demonstration of his election that he is in possession.' ^ The doctrine of disseisin at election, here concisely stated by Littleton in what appears to be its original form, was iu course of time extended to corporeal hereditaments, and, as so extended, introduced great confusion. Time might run against a true owner out of possession, for the purpose of barring him of his remedy by action, either from an absolute disseisin, or from some act which not only was capable of being made a disseisin, but had in fact been made so by the true owner^s election. As such election, however, generally took the form of an active assertion of title within a short time, the question would hardly arise in this latter case. On the other hand, an act of ' disseisin at election,' if the right owner did not elect to be disseised, was no disseisin at all, and the de facto possession was said to be ' non-adverse.' This distinction was founded on a principle quite intelligible in itself, namely that a person who is lawfully in possession for a limited estate or interest cannot change the character of his own possession to the detriment of the true owner. A tenant for years could not make himself a disseisor for the same reason that a bailee could not make himself a trespasser by asportation in respect of the subject of the bailment. Even a person entitled to be on the land by reason of a right of common, and therefore 1 Co. Litt. 323 6. 90 OV POSSESSION GBNEEALLT. having neither exclusive possession nor right to possess, has been held not to become a disseisor by claiming title to the soil and forbidding the true freeholder to exercise acts of ownership.^ However, the working out of the distinction became, in the hands of lawyers who had forgotten much of the old law and of its reasons, exceedingly perplexed ; and the doctrine of ' non-adverse possession ' was abolished by the modern Statute of Limitation passed in 1833,^ and, with certain modifica- tions as to the length of time needful to bar the right owner's claim, ^ still in force. The result, and doubtless the intended result, is greatly to diminish the importance of the character in which and the intention with which acts of apparent ownership are done.* In like manner it is unimportant, except in the case of concealed fraud, whether the right owner was or was not aware of the act of occupation from which time began to run against him.' There must of course be a positive act of occupation to found an adverse title; mere non-user, even occasional or more or less continuing trespasses, will not do, as we have already seen. It would be outside the purpose of this work to discuss further the several provisions of these Statutes and the manner in which they have been judicially expounded.^ This is a matter of special and minute interpretation, and does not admit of summary treatment. ^26 Ass. pi. 17: apparently the doctrine of disseisin at election was not then recognised. ^ 3 & 4 Wm. 4, u. 27. * 37 & 38 Vict. c. 57. • See Lyell •;;. Kennedy, 1887, 18 Q. B. Div. 796 : and conversely, as to the insufiSciency of merely formal acts ot entry and the like against a continuing adverse possession, Doe d. Baker v. Ooombes, 1850, 9 C. B. 714, 19 L. J. C. P. 306. " Rains v. Buxton, 1880, 14 Ch. D. 537. '^ See for detailed information and authorities the notes to Taylor d. Atkyns v. Horde, 2 Sm. L. 0. gth ed. 729 sqq. CHAPTEE III. Possession and Title. § 16. The Rights of Possessors. Existing possession^ however aequiredj is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiffi's in some third person through or under whom he does not himself claim or justify. ' Any possession is a legal possession ' — i. e. lawful and maintainable — ' against a wrong- doer.^ 1 On the other hand, a plaintiff who seeks redress solely for wrong done to his right to possess is not favoured to the same extent. If his actual possession has not been disturbed by the act complained of, he may be defeated by showing that some one else, who need not be the defendant or any one through whom the defendant claims, had a better right to possess. Under the old procedure an actual possessor who had been dispossessed might sue either in trespass for the wrong to his possession, or in a form of action founded on right to possess (ejectment ^ for land, trover for goods). In the latter alter- native, his right, being derived from his ovm actual possession, was still not allowed to be disputed by a wrongdoer, and he had the same advantages as if he had sued in trespass. In other words, possession is equivalent to title as against a mere wrongdoer, and this is a sub- stantive rule of law not affected by forms of action. For the purpose of considering and applying decisions under the common-law system of pleading, or the modified ^ Lord Kenyon C.J., Graham v. Peat, 1801, i East, 244, 246. ' See p. 85, above. 92 0¥ POSSESSION GENEEALIT. Part II. but still formal system of the Common Law Procedure Act — that is, down to 1875 — we must always examine whether the cause of action did or did not in fact include some act amounting to trespass if not justified. When it does not include any such act, and then only, the plaintiff must succeed on the merits of his right to possession, ' the strength of his own title,'' as the phrase runs in the cases on ejectment; and he will fail if his own case discloses, or the defendant can prove, a better right elsewhere. If this distinction be carefully attended to, it will be found that some apparent conflicts between judgments of equal authority will disappear. Thus at first sight the Court of Common Pleas appears to lay down generally in Leake v. Loveday ^ that the ' jus tertii ' as it is called may be set up by the defendant in an action of trover, and the Court of Queen^s Bench to lay down no less generally in the later case of Jeffries v. G. W. E,. Co.^ that it may no more be set up in trover than in trespass. But in the former case the plaintiff had never had possession of the goods in question; in the latter the defendants took them out of his possession, and the whole Court, as may be seen in their judgments, regarded this as the decisive fact. 'Possession with an assertion of title, or even possession alone, gives the possessor such a property as will enable him to maintain this action [trover] against a wrongdoer.'' ^ We are not concerned here to pursue the well-established doctrine that the plaintiff in trover, as in ejectment, must show an immediate right to possession, and that if he shows a title which is in any way conditional he must allege and prove that the condition has been satisfied.* But it is material to observe that from an early time the action of trespass has been allowed not only to the person ' 1842, 4 M. & Gr. 972, 12 L. J. 0. p. 65. 2 1856, 6 E, & B. 802, 25 L. J. Q. B. 107. ^ 2 Wms. Saund. 96, approved in Jeffries v. G. W. K. Co. ' See authorities collected, 2 Wms. Saund. 93, 94. Chap. III. § 17. POSSESSION AND TITLE. 93 whose actual possession is disturbed, but to the person, if such another person there is, who was entitled to resume possession at will. A lessor at will,^ or a bailor where the bailment is not for a term or coupled with an interest,^ could always maintain trespass against a wrongdoer as well as the lessee or bailee. In the case of goods both bailor and bailee could maintain trover, for the bailee has in virtue of his actual possession a right to possess the goods as against every one but the bailor.^ § 17. Title ly Possession. We have seen that possession confers more than a personal right to be protected against wrongdoers ; it confers a qualified right to possess, a right in the nature of property which is valid against every one who cannot show a prior and better right. Having reached this point, the law cannot stop at protecting and assisting the possessor himself. It must protect those who stand in his place by succession or purchase; the general reasons of policy are at least as strong in their favour as in his, their case at least as meritorious. And the merits of a purchaser for value, who perhaps had no means of knowing the imperfection of his vendor's title, are clearly greater than those of the vendor himself. The qualified right of property which arises from possession must therefore be a transmissible right, and whatever acts and events are capable of operating to confirm the first possessor in his tenure must be capable of the same operation for the~-benefit of those who claim through him by such a course of transfer as would be appropriate and adequate, if true ownership were present in the first instance, to pass the estate or interest which is claimed. Hence the rule that Possession is a root of Title is not only an actual but a necessary part of our .system. It is not enough to say that in the medieval law this priaciple was recognized; it was active and prominent. A 1 19 Hen. VI. 45, pi. 94. ' 48 E. III. 20, pi. 8. ' Per Parke B., Maudera v. Williams, 1849, 4 Ex. 339, 18 L. J. Ex. 437, 439- 94 OP POSSESSION GENEEALLT. Part 11. disseisee who did not promptly assert his right was under ever-increasing difficulties as against the disseisor, and still more as against other persons claiming through him. The wrongful seisin acquired by a disseisor gave him a real though wrongful estate, a 'tortious fee simple' valid against every one but the person truly entitled, and capable of being made rightful and perfect by a release from that person to the person in actual seisin.'- The heir of a disseisor who had maintained himself in seisin during his lifetime had not only seisin but an immediate right to seisin which he could enforce against the disseisee, the true owner himself, if ousted by him ; the question of the true title could be raised only ia other forms and by separate proceedings.^ We must not be too swift to call such a state of things archaic or anomalous. It is expressly recognized in the modern legislation of British India.^ It must also be borne in mind that both the facts and the law of the Middle Ages in England must have made really doubtihil titles far more common than they are now. Defects which otherwise would have led to intolerable complication and interminable family quarrels were mitigated by requiring claimants out of possession to assert their claims vsdthout delay, on pain of finding it more and more burdensome, or, in time, practically impossible, to assert them later. But it is unnecessary to speak of the details of the old law. Readers who wish to know more of it may be referred to Mr. Maitland's exposition.* The standing proof that English law regards, and has always regarded. Possession as a substantive root of title, is the standing usage of English lawyers and landowners. With very few exceptions, there is only one way in which an apparent owner of English land who is minded to deal with it can show his right so to do ; and that way is to show that he and those through whom he 1 Litt. s. 473. 2 Litt. sa. 486-488. " Specific Relief Act, I of 1877, s. 9. * The Beatitude of Seisin, L. Q. E. iv. 24, 286. Chap. III. § 17. POSSESSION AND TITLE. 95 claims have possessed the land for a time sufficient to exclude any reasonable probability of a superior adverse claim. In the modern law the position of a dispossessed owner has been greatly improved. His rights and remedies are un- affected by the number or (unless his interest be a purely equitable one) the nature of the transfers or devolutions of the adverse possessory title. On the other hand^ there comes a time, by force of the Statutes of Limitation, when he is deprived of the remedies and rights which he has omitted to use ; and then he is deprived of them conclusively. The dispossessor or his assigns, if the adverse possession has been continuous, acquire from that time what has been called a parliamentary title. Not that any statute or rule of law has affirmatively made their estate indefeasible, but the negation of the true owner's right and title, which by the express terms of the Act ^ are ' extinguished ' at the determination of the period limited for the exercise of his remedies, has for all practical purposes the same effect. But what if the adverse possession has not been continuous ? There may be disseisin upon disseisin and dispute within dispute. It would be possible at first sight to suppose that, as between a succession of independent occupiers who V7ere all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to be in possession when the time of limitation expires. Reflection, however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. William is the possessor and apparent owner of a house; in that house he dies; we will suppose him to die intestate. John, wrongly supposing himself to be entitled as the heir of William, enters and occupies the house. Peter is really William^s heir, but ignorant of the facts; in course of time, having obtained ^ 3 & 4 Wm. 4, 0. 27, s. 34. 96 OF POSSESSION GENEEALLT. Part II. information and advice, he sues John. It turns out that William had disseised Giles the true owner, by mere en- croachment or in some other way, and would have had no answer to an action brought by Giles or his assigns to recover the land. But since William's death the period of limitation has expired, and the right of Giles is extinguished. Can John use this as a defence against Peter ? No, for the statute has nothing to say, for better or worse, about the person in actual possession, or the relative worth of the qualified rights to possess which may have arisen while time was running against the true owner. It says that Giles, and those who have or would have had his estate, shall not from henceforth sue any one, it does not say that Peter shall not sue John. Whether some one else has a higher title or not, Peter has a better title than John, as he would have had though the true owner's claim were^jiijl enforceable. In the language of the modern authoritieaj^ossession is ffood title ' — nothing less — ' against all but the true owner.' ^ I As to the substance of those authorities, Ix has been repeatedly held in cases of ejectment, an action where the right to possess is clearly and solely in issue, that possession even for a short time is a good title against all subsequent intruders. One year's possession under a lease has been held to be enough, though the lessor's title was not shown. ^ Ten years' possession has been decisive even against several years' subsequent possession under colour of title.* And it has been adjudged, expressly on the analogy of the old law, that when a man occupying without title purports by his will to settle the land so occupied, that settlement is effective as regards all persons not claiming under the true title, and governs the possessory title (which meanwhile may be perfected by lapse ' Asher v. Whitlook, 1865, L. R. i Q. B. i, 6. Cf. Board v. Board, 1873, L. K. 9 Q. B. 48, decided on the ground of estoppel as between persons claim- ing under a common root of title. ' Doe d. Hughes v. Dyeball, 1829, Moo. & M. 346. Cf. Doe d. Pritchard V. Jauncey, 1837, 8 C. & P. 99. ^ Doe d. Smith v. Webber, 1834, i A. & E. 119. Chap. III. § 17. POSSESSION AND TITLE. 97 of time) exactly as it would govern a title good from the first. 1 'A person in peaceable possession of land has, as against every one but the true o-rnier, an interest capable of being inherited, devised, or conveyed.' ^ In accordance vyith these principles, the possession relied on as evidence of title must be continuous in itself ; a claimant cannot tack together successive occupations, however peaceable, which are not connected as of right. And the attempt to do this will even invalidate a claim which might have stood on the relative merits of the existing possession alone. A man occupied land for several years, but less than the period of limitation, and died leaving children, and without having disposed of his possessory interest ; his widow entered and occupied for several years ; she was ousted by a person claiming under a prior title, which however was barred by the statute. Thereupon she brought ejectment, but it was held that, as her title was bad on her own showing, she could not recover, though if she had merely shown her own possession she would have established her case." A possessor without title agreed with a railway company for the sale of land which he had occupied for a time short of the period of limitation. He failed, of course, to show a good title j the money was paid into Court under the Lands Clauses Consolidation Act, and the company executed a deed poll under the same. Act to vest in themselves all the estate and interest of the vendor. After the expiration of the statutory period the representative of the true owner claimed the purchase-money. Hall V.C. held* that the money represented the actual right and interest of the vendor — 'a ' Ashei- V. Whitlook, 1865, L. E. i Q. B. i. ^ Markby, arg. ih. at pp. 2, 3. It seems to me that there is not any real authority for allowing a mere wrongdoer to set up an extraneous title para- mount against a possessory title prior to his own entry. The strongest case against the view here taken is Nagle v. Shea, 1874, Ir. Eep. 8 C. L. 224 ; but the decision was not unanimous, and anyhow it cannot in an English court outweigh Davison v. Gent, 1S57, i H. & N. 744, 26 L. J. Ex. 122. ^ Doe d. Carter v. Barnard, 1849, 13 Q. B. 945, 18 L. J. Q. B. 306 ; see observations of Mellor J. in Asher v. "VVhitlock, L. R. 1 Q. B. at p. 6. * Ex parte Winder, 1877, 6 Ch. D. 696, 703. H 98 OP POSSESSION GENERALLY. Part II. most valuable right and interest which could have been sold in the market, although he had not yet the full statutory title ; ■" and that accordingly he and his assigns were the only persons entitled to it. No question of the title to the land itself was before the Court. It is submitted that the Statute of Limitation operated to make the possessory title absolute in the railway company no less than it would have done in favour of the vendor, had he continued in possession. For it is the very case put by the Court in Doe v. Barnard, where they say : ^ ' Probably that would be so [i. e. the expiration of the statutory period would give a good title to the person in possession] if the same person, or several persons, claiming one from the other by descent, will or conveyance, had been in possession for the twenty years.' Where there is no continuous possession ' either by the same person or several persons claiming one from the other,' ^ the result seems to be that the relative position and priority of inchoate titles acquired by any number of persons within the period of limitation remain unaffected by the extinguishment of the true owner's right, and the person who happens to be in possession derives no advantage from that extinguishment as against any one whose right is not specifically barred. There is a decision of Lord Romilly's,^ dealing with complicated facts, which offers some difficulty. Careful examination will show that it is quite consistent at any rate with Doe V. Barnard,* and proceeds, to a certain extent, on the same lines. That case, it is true, was not cited, and Lord Roipilly seems to have supposed that the common law would be otherwise. But in fact he did exactly what the Court of Queen's Bench had done ; he refused to allow the tacking together of two successive possessions not continuous in right. Then the legal estate was in a trustee who submitted to hold on behalf of the true equitable title, as it should be determined ' i.^ Q. B. at p. 952. " Jl- at p. 953, ^ Dixon V. Gayfere, 1853, 17 Beav. 421 ; see especially at pp. 429, 430. ' Note 3, last page. Chap. in. §17. POSSESSION AND TITLE. 99 by the Court, and the actual possession was in the Court by the hands of its receiver. Accordingly the Court, admitting that ' if the trustee had entered into possession, and had claimed to do so beneficially, it would probably have been very difficult to have dispossessed him,' pronounced in favour of the heir of the equitable owner, notwithstanding that the statutory period had long since run out against him. ' The statute which imposes a bar against the institution of a suit after twenty years to recover possession does not impose any bar upon the Court's declaring who is entitled to an estate which is in the possession of the Court itself.' It seems questionable whether the heirs of the first disseisor did not acquire an equitable right to the possession good against every one but the true owner, and good even as against him on the expiration of the statutory period. If they did, it does not appear how the supervening possession of the Court affected their rights. On this ground the correctness of the decision seems doubtful, and has been doubted.^ Before the modern Statute of Limitation it was correctly held that, where A. had occupied under a wrongful title for more than twenty years, and B. the person rightfully entitled had entered upon A.'s death, C, the remainderman under A.'s title, had not as plaintiff any right to the possession as against B. For B. had actual possession, and his legal right, though he might not have been able to assert it as plaintiff, was not extinguished.^ And such, it would seem, is still the rule as to personal chattels.^ It must be remembered that the title conferred by possession is (apart from the statute) a title only against wrongdoers. A person who is lawfully dispossessed has no subsequent remedy against a third person not claiming through a wrongdoer. In Buckley v. Gross * the plaintiff had made spoil of certain ' Darby & Bosanquet on Stat, of Lira. p. 392 ; Dart, V. & P. 6th ed.i. 465. ' Doe V. Eeade, 1807, 8 East, 353. Observe that here, as in Doe r. Barnard, supra, the plaintiff showed the weakness of his own title. Other de- cisions, at first sight difficult to reconcile with general principles, may, in my opinion, be explained in the same manner. ' § 19, below. * 1863, 3 B. & S. 566, 32 L. J. Q. B. 129. H a 100 OF POSSESSION GENERALLY. Part II. tallow which ran down the sewers in the great fire in Tooley Street. He was charged (in the opinion of the Court, not unreasonably charged) with stealing it; the charge was dismissed, but the police magistrate, under statutory powers, ordered the tallow to be detained ; afterwards, and before the expiration of the time named hy the same statute in that behalf, it was sold by the Receiver of Police to the defendant. It was held that, the detention being lawful, the receiver and the purchaser claiming through him were accountable only to the true owner, if to any one. When the plaintiff was lawfully deprived of possession, his whole possessory right and title, such as it might be, was determined : and it was immaterial for that purpose whether the subsequent sale to the defendant were regular or not. § 18. Tlie Effect of MktaJce on Delivery of Chattels. We may now return to the consideration of some points which were postponed for reasons above mentioned. '^ Delivery of a chattel with consent, that is, a handing over of it by the possessor with intent on his side to give, and on the other side to receive, lawful possession of that chattel cither as incident to an intended transfer of the property, or in some other right, works a lawful transfer of possession. And the character of the possession so transferred is not altered by any subsequent conduct or intention of the transferee.^ But a delivery which has all the outward marks of consent may fail of this result in divers ways, by reason of abnormal conditions which preclude the existence of true consent. These conditions are summed up under the general name of Mistake; they ma}' or may not be complicated with Fraud. Not every fraud or mistake has such an effect, for a real though voidable consent (and consequently a real transfer of rights of property ' P- 77- " The cases to which the doctrine of trespass ah initio applies are not really exceptions to this rule. Possession talien by authority of law without consent is trespassory at all times, but the trespass ia justified so long and so long only as the authority is not abused. Chap. III. § i8. MISTAKE IN DELIVEBT. 101 or possession or bothj which may become irrevocable as against innocent third parties) may be induced by these causes. I. Mistake as the interest to be transferred. The giver intends to pass possession for a limited purpose^ or property on a specific trust. The receiver intends to receive possession for the purpose of exercising unlimited dominion. Here the question of honest mistake will hardly arise in practice. If the receiver reasonably believes the giver to intend to pass the property, it must be (unless in some very abnormal case) that the giver has entitled him so to believe^, and therefore cannot be heard to say the contrary. If the receiver^ knowing the giver's real intention, intends to obtain the thing in order to convert it to his own use, there is no real consent and no transfer of rightful possession. The intent with which the receiver apprehends the thing is repugnant to that with which the giver puts it in his power ; he therefore takes as a trespasser, and may be a thief. As in every case of taking by trespass (de bonis asportatis) he acquires possession in law, though a wrongful possession, as distinguished from bare physical detention or custody. This is the case of obtaining possession by a trick, as dis- tinguished from obtaining property by false pretences. The rule is well established.^ Where the giver does intend to pass property to the receiver, being induced thereto by some false representation of the receiver not affecting the substance of the transaction itself, there is a real though not finally valid consent; the agreement is voidable on the ground of fraud, but not void, and third parties giving value in good faith may acquire irrevocable rights under it j and the offence committed, if any, is not theft but obtaining by false pretences. This also is well settled. The difliculties in particular cases are really difficulties of fact. Conversely, it is possible that the giver intends to pass a ' E. g. E. V. Gumble, 1872, L. E. 2 C. C. i (obtaining a sovereign under pre- tence of getting change for a debt of sixpence ; clearly larceny of the soTereign, not of 19s. 6d., but error on this point in the indictment is amendable). 102 OF POSSESSION GENERALLY. Part II. greater interest than the receiver intends to acquire ; as if a specific chattel, say a horse or a book, were delivered with the purpose of gift, but accepted on the supposition of a bailment on loan (as might happen from the use of ambiguous words, such as, "^ Keep it as long as you please^). Here it is certain that lawful possession passes, for to that extent there is real consent.^ It seems that property does not pass unless and until the receiver knows and assents to the full intention of the giver. We are not here concerned to inquire what personal obligations between the parties may arise from facts of this kind. II. Mistake as to the identity of the thing delivered. I. Peter and John are collectors of ancient coins. Each has duplicates of a coin of which the other has no specimen. John proposes to Peter an exchange of duplicates, and Peter assents. Peter, intending to hand one of his duplicates to John, by mistake hands to him a coin of similar general appearance, but in fact a different and much more rare and valuable specimen. If John at the moment perceives Peter^'s error, and takes the coin with the intention of appropriating it to his own use, he certainly does not acquire property. Much less, indeed, than a total mistake as to the identity of the object would prevent property from passing. ' Si aes pro auro veneat, non valet.'' ^ It can make no difference whether the intended transaction were sale, barter, or gift. Again, he does not acquire possession by consent, for there is not any intention to give possession otherwise than as incident to property. This is a point easily overlooked, but one cannot see how an ineffectual intention of the owner to pass property should have a different effect which he did not intend. Either he transfers all the interest which he was capable and desirous of transferring, or he does not transfer any lawful interest at all. ' Cp. Hill V. Wilson, 8 Ch. at p. 896. That was the case of a money jiayment, so that property passed also. ' TJlpian, D. 18. 1. de cont. empt. 14. Chap. III. § i8. MISTAKE IN DELIVEEY. 103 Agairij the principle would be the same if the intention were to pass not property but only possession^ as if John had asked for the loan of a coin to compare with one in his own collection. Only the absence of active deception on the receiver''s part distinguishes this from the case of obtaining by a trick. In eveiy form in which these conditions can be varied there is equally no real delivery, for want of a concurrent intention of the giver to hand over and of the receiver to accept the same thing. Tims there is a merely trespassory taking, and a felonious one if the other elements of theft be present. If John is not aware of the mistake, but receives the coin into his power believing with Peter "that it is the coin which Peter intends to give him, the ease is more difficult. a. Some will say that John acquires lawful possession, founding their opinion on the general tendency of the Common Law to favour a physical possessor who is not in bad faith. But this is difficult to maintain, for there is still no intention to give or receive the thing actually given and received. It may be said that Peter means at all events to deliver the specific coin which passes from his hand into John's. But this, it is submitted, is not so ; he means to hand it over, not at all events, but only in so far as he deems it (without doubt or suspicion of error, as we suppose) to be something which it is not. There might be circumstances showing an intention to take the risk of error, and therefore to hand over the thing at all events : as if the coin were in a box, and some one said to Peter, ■■ Are you sure the right coin is in that box ? ' But we conceive that any question so raised would be a question of pure fact. Mistake in any proper sense is excluded where there is a conscious doubt accompanied with an alternative intention or authority which is to be appropriated, so to speak, according to the event. Such is a possible and real ease when a mass of unsorted documents is handed over for examination to a person who will be entitled to keep or use some of them and not others. 104 OF POSSESSION GENERALLY. Part II. h. Others will say that John does not acquire possession at all, but a mere detention like the custody of a servant, or the temporary power of a guest or licensee over the things he is allowed to use. On this view the thing is in a manner lost to Peter, but still is in his legal possession ; and when John discovers the truth, but not before, the possession is changed, John being in the position of the man who finds an object lost but not abandoned by the true owner. The character of the possession acquired by John will depend on the intention with which he keeps the coin. The nature of that intention is a matter of fact ; his subsequent conduct may be evidence of it ; but if it is once established that he took possession with a lawful intention, his possession is not only legal (i. e. true possession, not bare detention) but, for the purpose at least of excluding criminal liability, rightful, and no kind or amount of subsequent wrongful intention or conduct will make the taking trespassory. This is a plausible view, and seems at first sight the only alternative to that first mentioned. But there are considerable difficulties in accepting it, or at any rate its logical con- sequences. If any mere wrongdoer takes the coin (or other thing as the case may be) from John before John has discovered what it really is, then John has not, on this theory, any remedy in his own name, for he has never had legal possession. Again, if John while still in ignorance mislays the thing, it would seem that a finder who supposed the thing to be John's would do no wrong to John by converting it to his own use. One can hardly doubt, notwithstanding, that in practice John would be put, if necessary, on the footing of a lawful possessor as against the supposed mere trespasser, whether by taking or by finding and appropriation. But then we should have to add this to the number of cases where possessory rights and remedies have been anomalously conceded to persons not in possession. And it is not convenient to multiply such anomalies. Again, I buy a hundred eggs for ready money. The seller thinks he delivers to me, and I think I receive. Chap. III. §i8. MISTAKE IN DELIVEEY. 105 a hundred eggs and no more ; the seller has made a mistake in countings which is not perceived by xae, and in fact I get a hundred and one. Can it be said that I have lawful possession of a hundred eggs and a bare custody of one ? And if so, of which one ? And if a stranger without colour of right takes away the whole hundred and one, who is the proper person to sue or prosecute ? Again, a solicitor at Liverpool sends the papers in a cause to counsel in London. A private letter unconnected with the cause is by accident put up with the papers. The counsel will forthwith return it after the least examination that is required to satisfy him that it was not meant for him. But can it be said that he never acquires possession of the letter ? c. There remains a view which is in appearance over-subtle, but which avoids most of the difficulties of the preceding ones. John acquires a possession like that of a person who takes without the consent of the previous possessor under justifica- tion of law. The possession, being without consent, is of a trespassory nature, but is excusable so long as it is exercised in good faith; that is, Peter having himself contributed to the mistake, is estopped from treating John as a wrongdoer, unless and until John with knowledge and of purpose dis- regards Peter's title. As regards third persons, John has all the rights of a possessor. As regards Peter, the ambiguous character of John's possession is defined for better or worse when he discovers the truth. If John elects to hold in Peter's interest (as by taking measures to restore the object to Peter), his possession becomes rightful; in fact he is in the position of an involuntary bailee, with the responsibility of that position, but free from any other. If he elects to con- vert the thing to his own use, he becomes a trespasser without qualification, and (as in the case of a justification by law being abused) his possession is deemed to have been trespassory throughout. The conversion, therefore, may be felonious. It is submitted, on the whole, that this is the true view. It is not more subtle, at worst, than the analogous doctrine of 106 OF POSSESSION GENERALLY. Part 11. trespass ah initio. It is believed to be more nearly consistent with all tbe authorities than either of the other two^ and less productive of inconvenient consequences. The application of it gives full protection to honest mistake^ and does not protect dishonesty. 2. Cases may be put of a one-sided mistake without fraud, as where John expects from Peter delivery of a certain kind of thing, but has no means of verifying the correspondence of the thing actually delivered with Peter^'s intention or authority.^ This does not appear to make any difference in Johns's position beyond one of fact, namely, strengthening the presumption of good faith on his part. III. Mistake as to the person. I . With regard to the person to whom a thing is delivered : Peter may deliver a thing to John by mistake : a. in that he knows he is delivering to John, but erroneovisly supposes John to be entitled to delivery in his own right : h. in that he supposes John to be another person, as William or Andrew (or a person whose name is unknown to Peter, but who is ascertained by some attribute which John has not), and intends to deliver only to that other person : c. in that he knows he is delivering to John, but erroneously supposes John to be entitled to delivery in right of William or Andrew. In all these cases John may receive the thing in good faith or not. In each case we shall first suppose him to receive in good faith, and then consider how the result is affected by bad faith on his part. a. In the first case it seems that there is a real consent, though founded on a mistaken reason, and that lawful possession is transferred; but this is subject to the question whether Peter, if not acting in his own right, has power to transfer possession to any one but the person really designated or entitled. But if John is at the time aware of the mistake, ' See per Bramwell B., L. E. 2 C. C. at p. 56. Chap. III. § i8. MISTAKE IN DELIVEEY. 107 this will prevent any real consent from taking place, and the case is like that of ohtaining property by a trick, that is, John acquires a merely trespassory possession. h. In the second case it seems that there is an outward act without any real consent. With regard to the results, the same views may be held, and the same arguments used, as with regard to the delivery of a wrong thing to the right person under a common mistake : and we submit, for similar reasons, that John acquires a possession which is provisionally excusable, and becomes either rightful or merely trespassory according to the intent with which he acts on discovering the truth. If John receives the thing in bad faith, knowing and taking advantage of Peter^s mistake, he takes as a tres- passer without excuse. c. In the third case it seems at first sight that there is a delivery to the person intended, though under a mistake as to his title, and that accordingly lawful possession is transferred. Something might be said for this ; and it might also be said that an intention to deliver to the man John cannot be satisfactorily distinguished in point of fact from an intention to deliver to the person representing William or Andrew, and namely to John as being (in Peter^'s mistaken belief) that person, such a distinction being too fine for practical justice to take account of. But experience shows the distinction to be practicable for juries as well as judges. Taking it as ascertained that Peter''s mind was to deliver to John as bearing and exercising the rights of William or Andrew, and not otherwise, we see that there is fundamental error as to the legal person though not the natural person of John. We can see this more clearly by supposing (as is not unlikely) that the name and person of John are previously unknown to Peter, and Peter deals with him simply and solely in the name and as having the authority of Andrew or William. It is not the case of an intentional delivery upon a mistaken reason, but is like that in which Peter mistakes John for Andrew or William in person. John therefore acquires- a 108 OF POSSESSION GBNEKALLY. Part II. possession of the same character as in the last case, and, if morally innocent in its inception, modifiable for better or worse in the same manner. 2. With regard to the person by whom a thing is delivered. It is a rare but not impossible ease that Peter delivers a thing to John, who means to accept delivery of such a thing, but only from some certain person who is not Peter. This may have embarrassing results as to the mutual personal rights of the parties, but it seems that the possession, or both possession and property, as the case may be, will not be prevented from passing according to the intention with which delivery was made.^ The only alternative would be to say that the receiver holds the thing as a bailee, but is excusable for acting as owner until he discovers the mistake ; but consent as to the giver^'s person on the part of the receiver has never been held material, and such a view would lead to grave complication where rights of third parties intervened. We have purposely stated the questions and conclusions, thus far, as matters of principle and vsdthout reference to authorities in detail. A. It is needless to recapitulate the familiar authorities as to obtaining possession by a trick on the one hand, and obtaining property by false pretences on the other : though it may be a question whether many cases where the facts amounted to theft have not been dealt with (and rightly, as a matter of practical caution) as cases of obtaining by false pretences. ^ B. The authorities as to mistaken dealing with property ' Boulton V. Jones, 1857, 2 H. cfc N. 564, 37 L. J. Ex. 117 (goods supplied by a successor to the business of the person to whom the order was addressed, without notifying the change). ^ Thus it seems to follow from the decision of the House of Lords in Cundy v. Lindsay, 3 App. Ca. 459, that Blenkarn never had either property or lawful possession in the goods obtained by him, and therefore might have been convicted of stealing them : he was tried and convicted for obtaining by false pretences, see i Q. E. D. 349. Chap. III. § i8. MISTAKE IN DBLIVEBY. 109 have been only gradually developed, and it cannot be said that a final conclusion is reached. It is settled that i£ A. delivers to B. a desk or bureau con- taining valuables the presence of which is not known either to A. or to B., this does not give a rightful possession of the valuables to B., even if the absolute property of the desk or bureau has passed, unless it was in fact the intention at the time of delivery that B. should acquire all the contents known or unknown.^ It is also settled that if a man, without being aware of it at the time, takes another's goods which are mixed by accident with his own, that other not consenting or con- tributing to the mistake, he acquires a possession which is trespassory, and may become felonious by the subsequent addition of animus furandi.^ Of course he is not guilty of theft without that addition, but it seems that, as the taking was by a voluntary though unintentional act, he is civilly a wrongdoer throughout; unless, perhaps, the accident of con- fusion could be shown to be inevitable. As to the application of the prineij)le in criminal law, the older authorities certainly regard an ambiguous or merely excusable possession as equi- valent to rightful possession for the purpose of excluding criminal liability : but the modern cases have no less certainly departed from this view. The case of one object being given and received as and for another by the common mistake of both parties (the giver being the owner of both objects), was fully considered only in 1885, and produced an equal division of opinion among four- teen judges.^ The following views appear in the judgments : a. The receiver gets lawful possession,* and, it seems, property if the intention was to pass the property in the thing intended to be given. ' Cartwright v. Green, 8 Tes. 405 ; Merry v. Green, 7 M. & W. 623, lo L. J. M. 0. 154. ■I Eiley's ca.. Dears. 149, 22 L. J. M. C. 48. ' B. -v. Ashwell, 16 Q. B. D. 190 (sovereign delivered to the prisoner with intention of lending a shilling, received by the prisoner believing it a shilling, and converted by him to his own U33 on discovery of the truth). * Smith, Matheio, Stephen, Day, Wills, Manisti/, and Field JJ. no OP POSSESSION GENERALLY. Part II. h. The receiver does not get possession but only a bare custody.^ c. There is no real delivery, and either the possession is not changed at all or a trespassory possession is acquired : ^ but this opinion is rather suggested than distinctly formulated. The Court being equally divided, the conviction was affirmed. It cannot be said that the discussion is conclusive.'^ One cause of complication is the reluctance felt by many judges to found new applications of the criminal law uj)on what seems highly artificial reasoning. Another and much slighter, but perhaps not an insensible one, arises from the chattels in question having been coin of the realm. We conceive the better opinion to be that the prisoner in the first instance acquired possession as an excusable trespasser. If this be so, and if it is too late (as we think it is) to argue that an ex- cusable trespasser's possession cannot in any ease become felonious, the conviction was right. In a case decided not long afterwards* it appears to have been ruled by the Court below, as a general proposition, that if a man receives property ' innocently ' and afterwards fraud- ulently appropriates it, he commits larceny. Such a ruling is clearly too wide. But it is extremely difficult to discover from the remarks made by the members of the Court which quashed the conviction what they thought the proper ruling would have been. ' Cave (■ a man has not possession of that of the existence of which he ie unaware,' p. 201), Hawlcins, and Denmnn JJ. * Lord Coleridge C.J., Grove, Pollock, and Huddleston JJ. In this and the two foregoing notes the names of the judges who delivered substantive separate judgments are italicized. ' One reported case directly aga'nst the conviction, E. v. .lacobs, 1872, u Cox, 151, appears to have been overlooked : but this was not the decision of a Superior Court. ' R. V. Flowers, 1886, 16 Q. B. D. 643. Tlie facts of the case are, to the present writer, not distinguishable from those of Ashwell's. Indeed they are stronger for a conviction, for the handing over of a wrong sum of money (in a bag marked with the name of the person who ought to have got it) was the act, not of the owner, but of a clerk with presumably limited authority, cp. ,K. u. Middleton, infra. Chap. III. § i8. MISTAKE IN DELIVERY. Ill C. In a weighty though not numerous series of modern decisions^ it is laid down (and this against innocent third parties) that property does not pass where a person fraud- ulently gets delivery of chattels as in right of another person, either by pretending to be that person or by pi-etending to be authorised by him. The result is the same whether the im- postor pretends in his assumed character to make a contract with an owner in possession, or pretends to a person holding the goods at the owner's disposal that he is authorised under a contract with the owner. The case of a mistake of person being taken advantage of by a party who had not contrived or contributed to it occurred in E,. v. Middleton.^ A post-office clerk, on the application of the prisoner, a depositor in the post-office savings bank, to draw out ten shillings, referred by mistake to a letter of advice concerning some other depositor and naming a much larger sum. That sum he counted out and laid down, and the prisoner, with knowledge of the mistake and with intent to steal the money, took it and went away with it. This was decided to be theft by eleven judges against four, and by seven of those eleven on the broad ground that even if the clerk were deemed to be in the position of an owner, property or lawful possession did not pass by the apparent delivery, and the prisoner took as a trespasser.^ Others * upheld the conviction on the ground that the post- office clerk had not authority to pay this money to the prisoner, and that no property could pass by the mistaken exercise of a supposed authority which did not exist ; one * concurred on the ground that there was not a complete 1 Kingsford r. Merry, Ex. Ch. 1S56, i H. & N. 503, 26 L. J. Ex. 83 ; Hardman v. Booth, 1863, i H. & C. 803, 32 L. J. Ex. 105 ; Cundy r. Lindsay, 1878, 3 App. Ca. 459 ; see too Higgons r. Burton, 1857, 26 L. J. Ex. 342, and Ex parte Barnett, 1876, 3 Ch. D. 123. 2 1873, L. E. 2 C. C. 38. ' Ccckburn C.J. and Blackburn, Mellor, Lush, Grove, Denman, and Archibald JJ. « Bovill C.J. and Keating J., Kelly C.B. = Pigott B. 112 OP POSSESSION GENEEALLT. Part II. manual delivery to the prisoner at all^ but only a placing of the money within his reach, i. e. he was like a dishonest finder. The dissenting minority/ for reasons which they expressed at length in separate judgments^ held that there was no trespass, but a receipt by delivery, the act being within the clerk's general authority, and his consent real though erroneous.^ Here the true view seems to be that the clerk intended to part with the larger sum, but only to the person showing title under the warrant for that sum ; he handed the money to the prisoner as being that person and not otherwise, and, as the prisoner was not that person, there was not and could not be any receipt according to his intention. Thus there was no transfer of property or of lawful possession.^ And so far the knowledge or intention of the receiver is immaterial. A^ariations on this case may however occur of such a kind that the receiver accepts in good faith that which was intended for another person ; and then it might have to be considered whether the true owner was not estopped as against the receiver, or, if not as against him, then as against innocent purchasers from him. At worst the receiver's possession would be excusable, as in the ease of mistake in the identity of the thing delivered. There are two reported cases on misdelivery of post letters which have been thought inconsistent with E.. v. Middleton : * the letter was in each case delivered by a servant of the post- office to a person of equivocal or closely similar name to his ' Martin B., Bramwell B., Brett J., Cleaaby E. ^ The point was also taken ^Cleasby B., at p. 72) that the prisoner was entitled to keep ten shillings out of the larger sum, and therefore did not steal any specific money. But it was found as a, fact that he took the whole animo furandi ; what he ought to have done would be, in law, a return of the whole with a re-delivery brevi manu of ten shillings in his proper right. ' Hardman v. Booth (note 1, last page) seems really conclusive. It w.is not cited. * E. V. Muoklow, 1827, : Moo. 160; B. r. Davis, 1856, Dears. 640, 25 L.J. M. C. 91. Chap. III. §i8. MISTAKE IN DELIVEEY. 113 for whom the letter was really intended. It was held that in the absence of proof of felonious intent at the moment of the receipt, the receiver could not be convicted of theft for a subsequent fraudulent appropriation of the contents of the letter. These cases were apparently decided in a somewhat off-hand manner on grounds which since Middleton's case must be considered too vnde. But it is not so clear that the result cannot consistently with that case be upheld. The intention of a letter-carrier and his ofRcial superiors is plainly to deliver, and the intention of the actual receiver is to receive, the letter and its contents, whatever the contents may be, so that the authority of Merry v. Green ^ is not applicable. Then, what is the postmaster's or letter- carrier's authority ? Is it to deliver only to the person for whom the letter is really meant, or to deliver to whoever reasonably appears, vnthout notice of any conflicting claim, to be that person? In the latter view a lawful possession may be held to pass to the wrong person, if the postmaster or carrier knows to whom he is in fact making delivery, and the receiver takes delivery in good faith. And this view seems favoured by the analogy of a shipmaster's position where a bill of lading is made out in parts : he is justified in delivering upon any one of the parts if he has not notice of an adverse title under some other part, i. e. he may act upon an uncontradicted prima facie title.^ As the Post- master-General cannot be sued, direct authority on the point can hardly be expected. But it may be answered that a dehvery to the wrong person, even if justifiable, is not really authorized, and thus the receiver's possession is only excusable. If this be so the cases in question were vsrrongly decided. It is obvious that many of the earlier cases in which con- victions for larceny were sustained on the ground of want of specific intention or authority to pass the property in the 1 7 M. & W. 623, 10 L. J. M. C. 154, supra p. 109. ■' Glyn Mills & Co. v. E. & W. India Dock Co., 1882, 7 App. Ca. 591. I 114 OP POSSESSION GENEEALLY. Part IT. goods ^ might liave been rested on broader grounds if the doc- trines of the leading majority in R. v. Middleton, and those who affirmed the conviction in R. v. Ashwell^ are correct. This relation between earlier and later authorities is too common in our law to be made the foundation of any valid argument against the later generalization. There are various dicta as to the effect of ignorance upon possession; it has been said and argued that a man cannot acquire legal possession without intention or knowledge ; ^ but it is impossible to reconcile these dicta^ as general propositions of law, with the judgment of Parke B. in Riley's case,^ which has now been accepted as authoritative, though not always without reluctance, for more than thirty years. And the doctrine that possession can in no case be acquired without intention, though in many ways a tempting one, leads in some circumstances either to practical incon- venience or to theories of constructive intention not less artificial than the doctrine of continuous trespass or any other doctrine which would be superseded. Neither can the Roman law be called in aid, its theory of derivative possession being wholly different from that of the Common Law. § 19. Title to Chattels ly recajoture. It would seem that a true owner who peaceably retakes his goods, after being out of possession for however long a time, may hold them as in his former right against all the world. The effect of a recapture by force after the expiration of the time limited for bringing an action seems open to doubt. It might be held that possession so taken was so wrongful as not to be capable of coalescing with the true title. On the other hand it might be held that the force was ^ E.g. E. V. Longstreeth, 1826, i Moo. 137. 2 See E. v. Woodrow, 1846, 16 L. J. M. 0. at p. 128; The Killarney, 1861, I Lush. 427> 3° L- J- P. &M. at p. 42 ; cp. per Cave J., 16 Q. B. D. at p. 203. This doctrine has been even extended to the right to possess, Durfee v, Jones, II E. I. 588, ap. Holmes, The Common Law, 225. We agree with Mr. Justice Holmes that the decision is wrong. = 1853, Dears. 149, 22 L. J. M. C. 48, Chap. III. § 19. EECAPTUEE. 1 15 a personal wrong for whicli an action might be brought, but that this made no difference in the character of the possession once acquired, and did not prevent the combination of it with the right to possess — a right not extinguished, though no longer enforceable by action — from constituting a full re- vival of property in the true owner. It could not be held lawfiil, it is conceived, to retake one's goods by force after the right of action had been barred.^ For the use of force could be justified only after demand of the goods and refusal to deliver them ; ^ but where an action would not lie for the recovery of the goods or recompense in damages, the actual possessor would not be bound to redeliver them even on request, in other words there could not be any lawful demand of possession. The right of recapture may be extinguished by a sale of goods in market overt, or, in the case of negotiable in- struments, by transfer to a bona fide holder for value. In these cases the property is conclusively changed. But the original holder of a negotiable instrument may again become a holder for value, and so have a good title even against intermediate purchasers ; and this although he does not know that it has been out of his possession, and it has been re- placed in his possession by the contrivance of the original defrauder in order to prevent him from discovering the fraud. He is presumed to accept the restored documents (though at the time he cannot actually accept for want of knowledge) in or towards satisfaction of the defrauder^s civU liability to him, and this is enough to constitute him a holder for value ^ under a new title. 1 Cf. per JesBel M.K, Ex parte Drake, 1877, 5 Ch. Div. 866, 868. ^ See Blades v. Higgs, 1861, 10 C. B. N. S. 713. ^ London & County Bank v. London & River Plate Bank, C.A., Aug. 9, 18S8. Thia must be carefully distinguished from the simpler cases of retaking and remitter. I a PART III. POSSESSION AND TRESPASS IN RELATION TO THE LAW OF THEET.i By R. S. Weight. Chaptbu I. Possession and Trespass generally, in relation to the law of Theft. 1 . Preliminary. 7. Acquisition by taking — ' trespass.' 2. General meaning of possession. 8. Eight to possession. 3. Modes of acquisition or transfer of 9. Apparent possession. possession. 10. Delivery by or tailing from a 4. Original acquisition — ' occupation.' trespasser. 5. Acquisition by effect of law. 11. Summary. 6. Acquisition by consent — ' delivery.' Chaptek IL Particular cases. 12. Bailment. 16. Fraud and mistake. 1 3. Loss and finding. 1 7. Co-ownership. 14. Sale or other change of property. 18. Lien and stoppage in traadtu. 1 5. Taking by authority of law. Chaptee III. The act and intention in theft. 19. The act of taking. 20. Animus furandi. Chapter IV. Things not the subjects of theft. 21. Of what things trespass or theft cannot be committed. ^ In this Part Crown oases are generally cited by the name of the prisoner or defendant only. 120 POSSESSION AND TRESPASS. Part III. the possession as a sub-bailee of the customer. The servant has the physical possession and nothing else. Or suppose an 'automatic box' belonging to a Company domiciled in London is permitted to be kept by them on the railway platform at Galway Station. Here the box and its contents at Galway are physically in the possession of the Railway Companyj but in law are (unless affixed to the soil) in the possession of the London Company (who have also the property and right to possession), unless the Railway Company have agreed to become bailees of them, in which case they are in their possession. It is immaterial whether the London Company have or have not any agent or servant at Galway. And even if the box is affixed to the soil, the contents are in the possession of the London Company.^ Again, suppose a man with a watch in his pocket. His relations to it may include — (a) the property or right of ownership. He has or may have the right to give away or sell or destroj'' it, to use or dispose of it in any way he thinks fit. (b) the right to possession. This may or may not be part of the right of ownership, though it is in most cases derived from ownership. An owner may be temporarily without the right to possession of a watch which is his, as for instance by his own act if he has hired it out for a month. A person who is not the owner may temporarily have the right to possession (to the exclusion of the right of the real owner) ; as, for instance, the person who has hired the watch for the month. (c) the possession. This may be without either owner- ship or right to possession, as for instance if the man has taken the watch away from the owner's house by mistake or by force or stealth [itif. § 7 and § 16). (f/) the physical possession. This may exist without any of the others, just as all or any of the others may exist without this. For instance, the man may hold the watch ' See 1887, Eeg. u. Hands, 16 Cox, 188. CHAPTEK I. Possession and Trespass generally, in relation to the law of Theft. § 1. Preliminary. The ordinary conception of theft is that it is a violation of a person's ownership of a thing : but the proper conception of it is that it is a violation of a person's possession of the thing accompanied with an intention to misappropriate the thing. The possession which is violated may be that of a person who has no right of ownership and no right to the possession. 1 . There is reason to think that in the case of theft, as in the case of treason and of some if not all other crimes, the criminal intention was in ancient times regarded as the essential element of the crime, and that proof of an act done in execution of the intention was necessary and material only as evidence of the intention. Even at the present day this doctrine survives in a practical form in some cases of treason — Mulcahy v. Eeg., L. E. 3 H. L. 306. 2. The ancient form of indictment for theft is — 'that J. S. on &c., one, &c., of the goods and chattels of J. N., feloniously did steal, take and carry away against the peace,' &c. It will be seen hereafter that in this form the words ' the goods and chattels of J. N.' ordinarily mean goods and chattels in the possession of J. N., and that it is ordinarily immaterial whether J. N. was owner of the thing taken or not. § 2. General meaning of Possession. (i) The word ' possession ■" is used in relation to moveable things in three different senses. Firstly, it is used to signify mere physical possession (compare the ' esse in possessione ■" or ' naturalis possessio ' of Roman Law^ the ' detention ■" of Savigny), which is rather a state of facts than a legal notion. The law does not define P0SSESSia]\^a.ND-l'jJi;srAT5B^-GENEEALLY. 1 19 modes or events in which it may commence or cease. It may perhaps be generally described by stating that when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belong- ing to him and under his control, he is in physical possession of the thing. Throughout the following pages possession in this sense is referred to as ' physical possession/ Secondly, it is used to signify possession in a legal sense (compare the ' possessio •" or ' civilis possessio ' of the Roman law), and in this sense it describes a legal relation of a person to a thing with respect to other persons. It may exist with- out physical possession, as for instance when a man is away from home his household effects do not cease to be in his possession. It is defined by modes or events in which it commences or ceases, and by the legal incidents attached to it, the most important of which are those connected with trespass and theft. It is a notion of particular or municipal law, for these modes, events and incidents may vary in different systems of law, and they have even in this country varied at different times. Throughout the following pages '^possession'' is used in this sense unless a different sense is expressly indicated. Thirdly, it is used, especially in the Year-books and ancient writers, to signify right to possession, which may be either of that general kind which is synonymous with ownership, or of a temporary or otherwise special character. (ii) For an example of all these senses — the owner of a horse hires it out for a month to a customer, who lends it to a friend, who sends out his servant to exercise it in his park. Here the owner has the general right to possession, which however is suspended during the month. The customer has the right to possession during the month. The friend has Chap. I. §2. POSSESSION AND TRESPASS GENERALLY. 121 as the owner's servant for the purpose of taking it from one room to another. A violation of the first or second of these relations is usually called a conversion or wrongful detention, and the remedy was an action of trover or detinue, as for instance in a case where the person to whom the watch is hired for the month sells it or fails to return it on demand when the month is expired. A violation of the third of these relations is a particular form of trespass. Some trespasses do not affect the con- tinuance of possession J as, for instance, a stranger may strike the watch with a stick and damage it without taking it away from the possessor. In that case an action of trespass for the injury to the ownership of the thing may be brought by the owner whether he was in possession at the time of the damage or not, and perhaps the temporary possessor cannot sue except for the disturbance of his possession and for such damage as he may have personally sustained. Or, the stranger may take the watch away without leave : and in this latter case the possession is wrongfully changed, and the former possessor, whether he is owner or not, can bring either trover or trespass de bonis asjwrtatis ; and if the trespass was committed animo furandi, the trespasser may be prosecuted for theft from, the possessor. In such a case, where the watch is taken from the possession of a person other than its owner, the owner prima facie ought not to be able to maintain this action in his own name or to prosecute the trespasser as for a theft from him, iaasmuch as it was not his possession which was violated. Whether in any case he can do so, and on what ground, will be separately considered (inf. § 8). A violation of the fourth relation is not of itself a ground of action or prosecution at all, because this is a mere physical fact and not a legal relation. For instance, in the case put, if the watch is taken from the servant, the action ought to be brought by the master, and if the taker is prosecuted 122 POSSESSION AND TEBSPASS. Part III. for theft, the watch ought to be stated to have been taken from the master. But, as will be stated hereafter, it is one of the most important principles of the law of possession that a person who is in de facto or apparent possession of a thing has in general the remedies of a possessor as against strangers or wrongdoers {inf. § 9). (iii) There is nothing in the law of trespass or theft which makes necessary an investigation of the general legal notion of property; but it is necessary to observe that there are numerous cases in the Year-books and old writers in which the word ' property' is used to signify possession, and property is attributed alike to the owner, the bailee, and the trespasser, and the owner is said to lose the property by a dehvery or taking : ^ and that even at this day, when it is said that in an indictment for theft the property may or may not be laid in a particular person, this means no more than that the person had or had not the possession or such a right to it as against the taker as enables him to maintain trespass: and 'property' cannot be laid even in the general owner if at the time he had neither the possession nor a present right to it. I. It lias been said that the definition of possession has varied even in this country at different times. At one time the supposed rules of the Roman Law as to ' possession ' seem to have been applied, and a depositary, a mandatary, and other kinds of bailees (see in i Hawk. 33. 10) have been treated as having no possession as against the bailor (and see per Chancellor Stillington in Year-b. 13 E. IV. f. 9, inf. § 6) ; and on the other hand, in Staundford's time (P. 0. 0. 15, fo. 25 a, ed. 1567) a servant entrusted by his master with money for delivery was held to have the possession at common law: op. the statute 21 Hen. VIII, c. 7. It was thought that the master retained posseEsion only so long as the servant was in his house or accompanying him. It is worth notice that Staundford cites the Eoman Law as to theft by bailees by way of contrast, with the remark that ' in les cases avant dites le ley de cest realme est plus favorable (i. e. to the criminal) que nest le ley civil.' ^ ^ See e.g. in "Wilbraham ij. Snow, 1678, in I Lev. 282. ' The substance of this paragraph, here repeated for conTenience, has been given at p. 9 above. Chap. I. §3. POSSESSION AND TRESPASS GBNEEALLT. 123 2. The right of bailees and other persona not having the general property in a thing to complain of the disturbance of their possession by a stranger was formerly explained on the ground of their liability to account to the owner, which was considered to give them an interest and a special property, at least as against the wrongdoer. In a modern case ' the remedies of trespass quare clausum fregit and de bonis asportatis were regarded as being independent of rights of property and as being ' an extension of that protection which the law throws around the person ' ; and the practical conclusion was deduced that a person's right to recover damages in trespass for a disturbance of his possession laid as a personal wrong did not (under the old law before 1869) upon his becoming bankrupt vest in the assignees of his proprietary lights. § 3. Modes of AcpiisUion or Transfer of Possession. The meaning' of possession, as a legal notion, is to be found by examining the modes or events by which it commences or ceases, and the rights, remedies and incidents belonging to it. The possession of a thing is acquired by a person either (i) originally, by ' occupation," in cases in which there was no previous possessor, or (3) from a previous possessor. It may be acquired or transferred from a previous pos- sessor, either — (i) by effect of law, as upon the previous possessor's death or bankruptcy — § 5. (ii) by consent of the previous possessor either upon a transfer of property or by way of bailment — ('delivery') (iii) by a taking from the previous possessor without or irrespectively of his consent — (trespass) — § 7. It seems that there is hardly any case in which possession once vested can be absolutely extinguished, except by the destruction of the thing either in fact or in law, as in the case ' EogersD.Spence, 1844, 13 M.&W.57I, inC. Sc. perLordDemnan. Savigny 1-6 takes a similar view with reference to Eoman Law. And with this accord the ancient authorities as to trespass to land. Cp. 2 EoUe, 569, 1. 20 and 553) 1- 45 i aiiroj>rium convertit, et disponit), these are the words that make a conversion.' I Eolle, Eep. 130. ' If a man rightfully take goods upon a finding (droitallment trove) he cannot be charged in a trespass, for that he found them when they were in danger of perdition, but when a man takes goods upon a finding before they are in danger of perdition, sc. before they are lost (loste), trespass lies against him. If a man deny goods to the owner which he had found, no trespass vi et armis lies, for no non-feasance shall make a man a trespasser ab initio : — 8 Sep.' (No authority is given for the earlier part of the statement.) ..." Trover in fact ' (as distinguished from trover in law) 'is when a man finds goods being lost (perdes) and in charity saves them (conserve) for the owner.' Comyns, Dig. Tresp. p. 502, says, ' Trespass does not lie against a man for taking goods which he found, unless after the finding he embezzles the goods,' citing E. 2 Eol. 555, 1. 50; E. 2 Eol. 563,1. 45 N 3 180 POSSESSION" AND TRESPASS. Part III. (but the former of these references relates to wreck and the latter to executors, both of which are special law). (ii) Modern Law, The modern law of theft by finders does not altogether coincide with the application of the strict rule of civil trespass, andj on the other hand, it adopts limitations and explanations which are not to be found in Coke or Hale. The cases are not in all respects clear or easy to reconcile, and it is most convenient to consider them, not in the order appropriate in questions of civil trespass, but in an order determined by the elements which are brought into new prominence in recent times. In this view all cases of so-called loss and finding may be divided into — • [a) Cases where the Under has at the first no clue to find the owner, and [b) Cases where the finder has at the first a clue to find the owner. [c) Cases of colorable but not real loss or finding. [a) The first ease may be described in the words of Parke B. as the case of a ' pure finding.'' It is a case of pure finding if at the time when the thing is first found and examined by the finder neither the place nor the circumstances nor the thing itself nor the knowledge of the finder furnish either a reason- able clue to find the owner or a reasonable inference that the owner knows where to find the thing. A pure finder does not commit theft by taking the thing at the first even with an intention of appropriating it. The only limitation of this statement to be found in the cases is a suggestion of Cockburn C.J. that if it were doubtful whether the property would be claimed and the finder nevertheless on the first finding resolved to keep it even though the owner should appear, this might be larceny (Glyde, 1868, in note inf.). Secondly, in a case of pure finding it is now settled that the Chap. II. § 13. PAETICULAE CASES: — LOSS AND FINDING. 181 finder cannot commit theft by any subsequent appropriation of the thing however dishonest even after discovery of the owner. This rule was established by Thurborn^s case, which though occasionally impeached as to some of the reasons and dicta contained in it has been universally followed and for the most part approved. Note i. — The tests to be applied in order to discover whether a case is one of pure finding have been thus variously stated in different cases : — 1804. Anon, in 2 Euss. 169. Did the finder know the ownei', or was there any mark upon the thing by which the owner could be ascertained I 1 84 1. Merry v. Green. Did the finder know who the owner was, or from any mark upon it or from the circumstances under which it was found could the owner be ascertained? {7 M. & W. 623). 1844. Mole. 'This purse is found Iq a place where it might reasonably be presumed that the owner did not know it would be found Was there a mark on the property by which the owner could be known?' (1 C. & K. 417). 1845. Scully. Had the prisoners sufficient means of discovering the owner, or did they wilfully abstain from taking any measures towards such discovery, or did they believe inquiry would be useless, or were no sufficient means of inquiry open to them ? (i Cox, 189). 1849. Thurhorn. Were the things presumably lost, that is, were they taken in such a place and under such circumstances as that the owner would be reasonably presumed by the taker to have aban- doned them or at least not to know where to find them ? Had the taker a right to presume that the owner did not know where to find them ? Did the finder reasonably believe the thing to be lost ? Had he a reason to know to whom it belonged ? Was there any mark presumably known by the finder, by which the owner could be ascertained ? Had he no pretence to consider the thing aban- doned or derelict ? ' The rule of law on this subject seems to be that if a man find goods that have been actually lust or are reasonably supposed by him to have been lost, and appropriates them with intent to take tlie entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny : but if he takes them with the like intent, though lost or reasonably supposed to be lost, but reasonably believing that the 182 POSSESSIOJT AND TRESPASS. Part III. owner can be found, it is larceny. In applying this rule, as indeed in the application of all fixed rules, questions of some nicety may arise, but it will generally be ascertained whether the person accused had reasonable belief that the owner could be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. In some cases it would be apparent, in others appear only after examination. It would probably be presumed that the taker would examine the chattel as an honest man ought to do, at the time of taking it.' "Was the thing really lost, awl was there no mark on it or other circumstance to indicate then who was the owner or that he might be found, "and was there no evidence to rebut the presumption that would arise from the finding of the thing as proved that the finder believed the owner could not be found? (i Den. 387 ; 2 C. & K. 831). 1854. West. Whether the prisoner had reasonable means of finding the owner or reasonably believed that the owner could not be found? (Dears. 402 : 6 Cox, 415). 1855. Dixon, per Parke B. 'If the prisoner had seen them drop from the prosecutor, or if the notes had had the owner's name upon them, or there had been any marks which enabled the prisoner to know at the moment when he found the notes who the owner was or that he could be discovered, it might have been,' &c. Per Jervis C.J. — The jury found that he ' did not know the owner but that it was probable that he could have traced him. He was not bound to do that' (Dears. 580; 7 Cox, 35). 1858. Christojjher, per Hill J. ' To be guilty of felony, the finder of an article must know who the owner is, or have reasonable means at the time of finding it of knowing who he is ' (8 Cox, 91). 1 86 1. Moore, per Cockburn C.J. Was the 'finder warranted in believing that the goods are lost or that the owner could not be found r (L. & C. I ; 8 Cox, 416). 1868. Olyde, per Cockburn C.J. 'Here we have no evidence to show that the prisoner had reason to believe the true owner could be found :' and per Blackburn J. — ' There was no evidence to show that the prisoner believed he could find the true owner when he picked up the sovereign.' And see at large Cockburn C.J.'s direction to the jury in this case (L. E. i C. C. E. 139). 1 87 1. Knight. The proper question is — had the prisoner reason to believe that the true owner could be found (12 Cox, 102). Chap. II. § 13. PAETICULAR CASES : — LOSS AND FINDING. 183 In some of the above cases there are dicta as to the necessity of the owner appearing to have abandoned the thing, which were probably not intended to be of general application. If indeed there is in any case anything to raise a reasonable pre- sumption of an intention to abandon, a taking knowingly, invito domino, would be excluded; and such an intent may fairly be presumed where the thing is of inappreciable or of no value : but questions will rarely arise upon such things ; and in matters of value an intention of abandonment is too improbable to be made the foundation of a test. Again, in some cases expressions are attributed to judges which would make the mere absence at the first of a positive clue for the finder to find the owner or for the owner to find the finder more conclusive of innocence than sometimes it would really prove to be. If the thing is such that great inquiry is certain to be made for it and that the owner could have no difficulty in identifying it by its nature and by the place and time of the loss and finding, as if twenty great diamonds or a bar of gold in a piece of white paper are found even in a public street, there may be no present positive clue in either direction, but the finder would probably not be justified in determining to sell them immediately without some inquiry or at least not without waiting for inquiry by the owner. So, on the other hand, the mere existence of marks which might furnish a clue if they were examined by a person of education may not be necessarily con- clusive that the finder had reason to believe that the owner could be found: thus, in Preston's case (1851, 2 Den. 353) a note was indorsed, but the judge took notice that there was no evidence that the prisoner could read. Again, if in truth there was no clue, it would seem that for criminal purposes the finder ought not to be jjrejudiced by evidence that he falsely imagined there was one ; for the immunity accorded to the pure finder appears to rest upon the ground of reasonable and probable cause of belief: but there is a dictum in Thurborn's case which seems to be to a contrary effect. It has been said to be the duty of the finder before assuming dominion over the thing to examine it in search of marks or clues by which the owner may be known (Scully, 1845 ; Thurborn, 1849 ; sub Jin.), and if such marks or clues appear, to use reasonable means to find the owner; unless the worthlessness of the thing or other circumstances raise a reasonable presumption of abandonment (cp. Glyde, 1868). But if no reasonable clue appears on examination at 184 POSSESSION AND TEESPASS. Part III- the time of the finding, he is not bound to go out of his way to seek for a clue (Dixon, 1855). See further, inf. § 16, as to Mistake. (5) The second case may be described as that of a finding with a clue to the owner. Its definition is to be gathered by negative inference from the definitions of pure finding collected in the first note to the preceding paragraph. The finder with a clue commits theft of the thing if he takes it with an intention from the first of appropriating it ; ^ for dominus apparet, though at the first incertiis. Butj secondly, the finder with a clue may have taken the thing without any intention at first of improperly appro- priating it, but may have afterwards appropriated it, the owner having appeared, or the apparent clue continuing, and the question is whether in such a case he is guilty of theft, or whether he is within the inamunity accorded to the pure finder. On this subject there is a considered judgment of the Court of Exchequer (Lord Abinger, Parke, Alderson, Gurney and Rolfe BB. with the concurrence of Tindal C.J.) in Merry v. Green (7 M. & W. 6%'^). The facts on which the case was hefld to be one of finding are set out below, § 16 (ii). After stating that conclusion the judgment proceeds : — ' The old rule, that " if one lose his goods and another find them, though he convert them animo furandi to his own use, it is no larceny,'' has undergone in more recent times some limitations; one is, that if the finder knows who the owner of the lost chattel is or if, from any mark upon it, or the circumstances under which it is found, the owner could be reasonably ascertained, then the fraudulent conversion, animo furandi, constitutes a larceny. Under this head fall the cases where the finder of a pocket-book with bank notes in it, with a name on them, converts them animo farandi ; or a hackney coachman, who abstracts the contents of a parcel which has been left in his coach by a passenger, whom he could easily ascertain ; or a tailor who finds, and applies to his own use, a pocket-book in a coat sent to him to repair by a ' Milburne, 1829, i Lewin, 351 ; Merry t>. Green, 1841; Thurborn, 1849 J Preston, 1851 ; Christopher, 1858 ; all in the preceding note. Chap. II. § 13. PAETIOTJLAE OASES :— LOSS AND FINDING. 185 customer, whom he must know : all these have been held to be cases of larceny ; and the present is an instance of the same kind, and not distinguishable from them. It is said that the offence cannot be larceny, unless the taking would be a tresjJass, and that IS true ; but if the finder, from the circumstances of the case, must have known who was the owner, and instead of keeping the chattel for him, means from the first to appropriate it to his own use, he does not acquire it by a rightful title, and the true owner might maintain trespass : and it seems also from Wynne's case (Leach, 413), that if, under the like circumstances, be 3C(}iiire possession, and mean to act honestly, but afterwards alter his mind, and open the parcel with intent to embezzle its contents, such unlawful act would render him guilty of larceny.' In this case and in Wynne's case to which it refers the opening of the box or parcel appears to be rehed on simply as an imequivocal act of misappropriation, and it is submitted that (the case not being one of bailment, in which alone the doctrine of breaking bulk seems material) any other nnequi- voeal act of misappropriation, as for instance the spending or changing of money or notes found under like circumstances, would have the same effect. There is indeed a case (1873, Matthews, la Cox, 489), in which a finder with a clue who did not at first intend to steal was held not to have become guilty of larceny upon a subsequent misappropriation, but the case was not argued, and it was treated as governed by Thurborn's ease, i. e. as if it had been a case of pure finding. If the question is still open, it is submitted that there is no suificient ground for extending to a person who had from the first a knowledge that the owner could be found the excep- tional immunity accorded to the pure finder, and still less ground for extending it to a case in which the finder with a clue appropriates after actual knowledge of the owner. (c) A third case is that in which there is a colourable but not a real loss and finding. In such cases it would seem that the taker is, except in one respect, like any other trespasser, excusable in so far as he acts bona fde, but guilty of theft if he either originally takes the thing aidmo fiirandi or subsequently 183 POSSESSION AND TEESPASS. Part HI. ajipropriates it, and that the only question is the one of fact, whether the case falls under this head or under one of the former heads. There seem to be only two possible forms of this case distinguishable from common trespass^ viz. (i) That in which the thing has been left with or delivered to the so-called finder unknowingly but so as that the owner if he becomes aware of his loss is likely to be able to trace it or to remember where he left it, as in the instances of a box left in a cab or a purse left on a stall or in a shop.' Here there may be no bailment (unless in the case of an inn-keeper) for want of the necessary intention on the part of the owner,^ and it would seem that the taker differs from an ordinary trespasser only in this, that by lapse of time, failure of inquiry, or other circumstances showing that the owner is lost, the case becomes assimilated to real loss and the finder may lawfully appropriate the thing. (2) That in which the thing, although mislaid by the owner, remains under the protection of his personal vicinity or of his house or land, or under the protection of some other person with whom or on whose premises he left it unknowingly but under such circumstances that he is likely to remember where he left it. Such are the instances of the hat dropped in the inn, the jewels picked up in the garden, the dressing-case left in the railway carriage, the purse drojDped in the theatre.^ In these instances, if the so-called finder is the occupier or possessor of the inn, carriage, or theatre, the case passes back into the form just mentioned, but otherwise he is a tres- passer, excusable in so far as he acts bona fide, and entitled to the thing if the case subsequently proves to be one of real ' Lamb, 1694, 2 East, P. C. 664 ; Wynne, 1786, i Leach, 413 ; Sears, 1789, ih. 415 n. ; West, 1854, Dears. 402, 6 Cox, 415 ; Moore, 1861, sup. ; Bridges v. Hawkesworth, 1851, 21 L. J. Q. B. 75. 2 But the four earliest of the above cases were treated by the judges much as if they had been cases of bailment. See however per Parke B. in Thm-born, sup. [Cf. the American decisions cited pp. 40, 41 above.] = B. g. Pope, 1834, 6 C. & P. 346 ; Peters, 1843, i C. & K. 245 ; CofBn, 1846, Pierce, 1853, 6 Cox, 117. Chap. II. §14- PARTICULAE CASES : — SALE ETC. 187 loss but otherwise subject like other trespassers de facto to the general law of theft. As between such a person and the occupier of the shop where the thing is picked up (not being an inn — qu. as to a private house), the person entitled to the benefit of the thing upon the case turning out to be one of real loss is the person who discovers the thing and not the occupier (Bridges v. Hawkesworthj ai L. J. Q. B. 75). If a finder has reason to believe that the thing is aban- doned by its owner, then, whether or not it is so abandoned and whether or not a civil trespass is committed, there can be no theft at the first because there does not exist the belief that the appropriation will be invito domino which is essential for animus furandi. And a subsequent appropriation, even after discovery that the owner had no intention of abandonment, would seem to be within the principle of the immunity accorded by the modern decisions to the pure finder. A taker upon a loss and finding may, like any other possessor, maintain trespass and theft and trover or detinue against a stranger. It would seem that the owner could not in any ease be guilty of trespass or theft by taking the thing from the finder, for although in some cases and for some purposes the finder may be assimilated to a bailee, he is not a bailee and he has no right to possession against the owner. He has no lien for the expenses of preserving the thing (Nicholson v. Chapman, 1793, % H. Bl. 254). § 14. Sale or other change of projoerty. (i) Alienation hy sale. (i) A mere executory agreement to sell or otherwise alien has no effect on property, right to possession, or possession. Further, even when the property has passed by the terms of the bargain the right to the possession may still be deferred until some condition has been satisfied, and in such a case the vendee may have a right to obtain at will a right to possession by performing the necessary conditions; the thing may be prima facie at his risk; he may have personal remedies 188 POSSESSION AND TRESPASS. Part III. against the vendor in case of wrongful re-sale or other breach of the contract; and possibly in certain cases he may have rights in respect of the thing itself even after a wrongful re-sale by the vendor; but he has no possessory right. For the purposes of trespass and theft the ease is as if there had been no bargain and sale^ for the vendor retains at least a ' special property ' both as against the vendee and as against strangers.^ But from the moment when the vendee obtains a right to immediate possession of the thing (whether subject or not to the possibility of defeasance in ease of insolvency before delivery) the distribution of rights and duties with respect to it for purposes of trespass and theft begins to be altered in the most important respects. (ii) While the thing remains with the vendor without his having submitted to hold it as the vendee's bailee, it would seem clear that the vendor cannot steal it, for he is lawfully in possession in his own right ; but if he submits to hold the thing as the vendee's bailee, then he may become like any other bailee, and he seems to be within the statute against con- version by bailees. But such a submission is not to be implied from his mere custody after the change of right to possession without some request or promise or uneqiiivocal act or admission on the vendor's part, for the submission varies the rights of the parties.^ A stranger can steal from the vendor in such a case. It seems also that the taking by the stranger might further be complained of by the vendee in respect of his present right to possession, for the vendor may not um-easonably be thought to hold his possession as the agent or representative of the vendee.^ * See as to this case Blackburn on Sale, and ed., 196 &c. and 256 &c. ; Benjamin on Sales, 2nd ed.. Books ii and v ; Kent, Comm., vol. ii. p. 685. '' See Blackburn on Sale, 2nd ed.. Book v. ^ 2 Wms. s. 47a ; Hudson v. Hudson, 1628, Latch, 214; Year-b. 2 Ed. IV. p. 25. pi. 26, cited in Bro. Tresp. 303; Year-b. 14 H. VIII. p. 23. In Adams' case, as stated in 2 Euss. 200 and 294, it seems to have been thought that the property could not be laid in the vendee ; but this statement appears to be derived merely from an erroneous marginal note in R. & E. p. 225. Chap. II. § 14. PxVETICULAE CASES : — SALE ETC. 189 The vendee who has a right to the possession cannot^ according to Bacon (Tresp. p. 57 7), commit trespass by taking from the vendor; but if the vendor has submitted to be a bailee it would seem that the vendee can commit a trespass against him as much as he can against any other bailee. (iii) If the thing is with a person who before the change of right to possession acquired the thing by a trespass from the vendor, that person may, it seems, still be sued or prosecuted by the vendor.^ In most other respects the A^endee seems to succeed to the position of the vendor, and the possession which was trespassory against the vendor seems to become trespassory against the vendee as from the time of the change of right to possession ; but the vendee does not in such a case become entitled to complain of the trespass as from its commencement,^ for the alienation does not at common law transfer a mere right of action. (iv) If a person who before the change of right to possession had acquired the possession of the thing as the vendor^s bailee attorns to the vendee he becomes the vendee''s bailee to all intents. But he will not by the mere fact of the sale become the vendee's bailee, for the sale cannot transfer the privity of contract. What then is his position if he has not attorned ? It is absurd to suppose that his holding becomes a holding in his own right. He must therefore be considered to continue to hold as the vendor's bailee with reference to whatever special property or possibility of reversion the vendor retains ; and he is in the same position towards the vendor as any bailee towards any bailor : but he cannot commit theft against the vendee ; — not by the statute, for he is not his bailee, nor as a stranger, for he is lavrfully in possession by delivery of an owner : ^ and it would seem that the vendee can steal from ' Vin. Tresp. 475. ^ See in Smith (/. Milles, 1786, i T. E. at 480; Balme v. Hutton, 1833, 9 Bing. 471 ; Cooper v. Chitty, 1756, I Burr. 31. ^ Year-b. 2 E. IV. p. 25. pi, 26, seems at first sight to be an authority that civil trespass de Ion. asp. will lie for the vendee against the vendor's bailee ; but the argument turned on colour, and from the last line of the report it 190 POSSESSION AND TRESPASS. Part III. him in respect of his special property. If the vendor submits to be the bailee of the vendee, the previous bailee would seem thenceforth to hold as a sub-bailee of the vendor. (v) After the change of right to possession the vendor may pass the thing to another as his bailee, and in this case, whether the bailment is wrongful as against the vendee or is in execution of an agreement by the vendor to deliver the thing, it would seem that the bailee cannot commit trespass or theft at common law against the vendee (Year-b. 1498, sup. § 6, note), though under the statute he may be convicted of larceny as a bailee. In general, however, this case will pass into the case of a bailee employed by the vendee, since the vendor is in the absence of special circumstances the vendee's agent to employ the carrier. (vi) Intermediate between this and the next case is that condition of things in which a vendor who has parted both with the property and with the right to possession is permitted to exercise the right of stoppage in transitu as against an insolvent vendee. See below, § 18. (vii) Lastly, the thing may be with a person who has it for the vendee under a contract with or employment by him. The cases of a vendor who has submitted to hold as the vendee's bailee, and of a vendor's bailee who has attorned to the vendee, have already been considered, and the only remaining cases are those where the thing is with a carrier or other bailee employed by or for or holding for the vendee and those where it is with the vendee's servant. "Where a person has received and holds a thing as bailee for a vendee who has the present right to the possession, the vendee may in virtue of that right sue or prosecute a stranger who takes from the bailee ; ■' or the bailee may sue or prosecute strangers ; but as between the vendee and his bailee, the bailee has an exclusive possession and he cannot commit theft at seems doubtful what was the ultimate decision and whether the defendant would not have succeeded on not guilty. ' Eemnant, 1807, E. & E. 136 ; cp. i Hale, 668. Chap. n. § 14. PAETICULAB CASES : — SALE ETC. 191 common law/ and the doctrine of breaking bulk seems never to have been applied to such a case. But now the statute against fraudulent bailees applies to the bailee even where the bailor has never had possession.^ The last, and most difhcult and once the most important, case is that where the thing is with the vendee''s servant on its way to the vendee, the vendee never yet having had possession; and here occurs the chief difficulty in criminal law as to the commencement of possession. If the servant obtained the thing nominally for his master, but in fact dishonestly and by his own mere wrong or fraud, his possession may be trespassory, as in Abrahat^s case,^ and he may thereby commit theft like any other stranger. But if he does not receive the thing in the course of his employment at all he is held to commit no crime (Cullum, 1873, la Cos, 469; Read, 1878, 14 Cox, 17); and if he rightfully re- ceives the thing in the course of his employment he is held to acquire the lawful possession (sup. § 6), and therefore to be incapable at common law, by whatever wrong or fraud during that possession, of committing a theft of the thing.* Misappropriations under such circumstances have now long been made theft under the name of embezzlement (a name formerly common to all misappropriations by persons employed as servants but now confined to this ease) ; but it was formerly of the utmost importance to know at what point the servant^s possession ceased and that of the master attached, and the cases then decided are still important as illustrating the meaning and conunencement of possession. The following are the principal authorities : — Note. — 1687, Bingley, in 2 Leach at 841. A shopman or salesman sold goods for his master and received the money but did not place any of it in the till or otherwise under the master's imme- ' Walsh, 1S12, E. & R. 315, 2 Leach, 1054, 4 Taunt. 258. ■' Bunkall, 1864, L. & C. 371 ; 33 L. J. M. C. 75 ; cp.Hoare, 1859, i F. & F. 647; Jarrett, i860, S Cox, 368. ^ 1798, 2 Leach, 824. ' The doctrines of breaking bulk and severance or destruction see.n never to have been applied to this case. 192 POSSESSION AND TEESPASS. Part III. diate control, but put a part of it in his own box in bis bedroom in the master's house, and afterwards having left his service broke into the master's house in the night and carried away the money in the box. This was held to be no burglary, ' for although it was the master's money in right, it was the servant's money in possession, and the first original act no felony.' 1743. Waite, I Leach, 28 ; 2 East, P. C. 570. A bank clerk re- ceived bonds from a customer and without placing them in the usual receptacle in the cellar appropriated them, Held, not a taking from the master's possession at common law. 1 795. Chipcliase, 2 Leach, 699. One clerk deposited a bill received from a customer on the master's desk and another clerk took it. Euled, a taking from the master's possession by the second clerk. See Murray and Masters, inf. 1 797. Bull, cited in 2 Leach at 841 . A shopman appropriates cash received over the counter without having placed it in the till. Held, no taking from the master's possession, though the master had furnished and marked the coins and procured them to be paid to the servant for the purpose of detecting him {Qumre, how it would have been here if the thing instead of being coin had been some- thing tlie property in which does not pass by mere delivery ] And cp. Headge, inf., and Gill, inf). 1798. Spears, 2 Leach, 825 (but more authoritatively in Eeed's case; Deai-s. atp. 263. See also in Walsh, 4 Taunt. 276). A servant sent with the master's barge for oats takes some after they were placed in the barge. Held, a taking from the master's possession just as much as if they had been in the master's granary. 1799. Bazelij, 2 Leach, 835; 2 East, P. C. 571. A bank clerk receiving notes from a customer and appropriating them without having placed them in the till. Held, not to take them from the master's possession. This case led to the passing of the 39 G. III. c. 85. 1807. Headge, E. & E. 160. Bull's case was followed, and an objection expressly over-ruled that the marked coin was previously in the master's possession and that his possession should be held to continue constructively as against the servant. 1826. Sullens, I Moo. 129. A servant sent with a note for change receives and appropriates the change. Held, not a taking from the master's possession. (Cp. Hawtin, 1836, 7 C. & P. 281.) 1830. Murray, i Moo. 276. One clerk hands another clerk 'the master's money ' to pay a bill. An appropriation by the second Chap. II. § 14. PAETIOULAE CASES : — SALE ETC. 193 clerk. Held, a taking from the master's possession. See Masters, inf. 1844. Norval, i Cox, 95. A servant sent with his master's cart for goods receives the goods for his master into his master's cart and again takes them from there. Ruled, a taking from the master's possession. So in Harding, 1807, R. & R. 125. 1844. Hayward, i C. & K. 518. A deposit of hay by the servant in the master's stable yard ruled a reduction into the master's possession as against the servant. (But note that there were further circumstances beyond the mere deposit to show that the delivery to the master was complete, for the servant obtained the key of the loft and placed a part of the hay in the loft.) 1848. Masters, i Den. 332 (s. c. 2 C. & K. 930, somewhat differently stated). One clerk received moneys and handed them to another and he again to a third or check-clerk whose business it was to pass them on to the cashier and who was the prisoner. Held, to be a different case from Murray, siy;., and not to be a taking from the master's possession, for that in Murray's case ' the master had had possession of the money by the hands of another servant ; and when it was given to the prisoner by that servant to be paid away on account of the master, it must be deemed in law to have been so given to the prisoner by his master : the fraudulent appropriation of it being thus a tortious taking in the first instance was not embezzlement but larceny. But here the money never reached the master at all : it was stopped by the prisoner on its way to him. The original taking was lawful, and therefore the fraudulent appropriation was embezzlement.' This decision was recognised by the judges in Watts' case, inf. See below as to the general result of the authorities of this class. 1850. Watts, 2 Den. 14. A company paid a customer by their own cheque on their bank and afterwards their messenger received the cheque, after it had been paid and cancelled, from the bank for the company, and delivered it to one of the company's clerks for the company, and the clerk fraudulently destroyed it. But it seems that the company's ownership of the paper of the cheque before issue and in the hands of the bankers was not sufficiently proved or found and that the case was decided as if the company were strangers to the cheque until its return. (See esp. per Cresswell J. at p. 2 7.) Held, that the taking by the clerk was a taking from the company's possession. 'By the course of business ' (said Wilde C.J. in delivering the o 194 POSSESSION AND TRESPASS. Part III. opinion of the judges) ' between the company and its bankers, the paid cheques were returned to the directors, were part of the company's documents and became the vouchers of the directors, and their property as such directors. The paper in question was one of these. One of the prisoner's appointed duties was to receive and keep for his employers such returned cheques ; any such paper, therefore, in his custody would be in the possession of his employers. The paper in question, therefore, as soon as it had passed from the hands of the messenger, and arrived at its ultimate destination, the custody of the prisoner for the directors, was really in their possession, and when he afterwards abstracted it for a fraudulent purpose, he was guilty of stealing it from them ; as a butler who has the keeping of his master's plate would be guilty of larceny, if he should receive plate from the silversmith for his master, at his master's house, and afterwards fraudulently convert it to his own use, before it had in any other way than by his act of receiving come to the actual possession of the master. ' This case is distinguishable from those in which the goods have only been in the course of passing towards the master, as in R. v. Masters, i Den. C. C. 332, where the prisoner's duty was only to receive the money from one fellow-servant and pass it on to another, who was the ultimate accountant to the master. Here, the paper found had reached its ultimate destination when it came to the prisoner's keeping, and that keeping being for his masters, made his possession theirs.' 1853. Reed, Dears. 257 (see also 168). A servant sent with his master's cart for coals and appropriating them after they were received into the cart by him for his master held to have taken them from the master's possession. There could be no doubt, said Lord Campbell C.J., that for larceny ' the goods must have been in the actual or constructive possession of the master, and that if the master had not otherwise the possession of them than by the bare receipt of his servants, upon the delivery of another for the master's use, although as against third persons this is in law a receipt of the goods by the master, yet, in respect of the servant himself this will not support a charge of larceny, because as to him, there was no tortious taking in the first instance, and consequently no trespass. Therefore if there had been here a quantity of coals delivered to the prisoner for the prosecutor, and the prisoner having remained in the personal possession of them, as by carrying them on his back in a bag, without anything having Chap. II. § 14. PAETICULAE CASES : — SALE ETC. 195 been done to determine his original exclusive possession, had converted them animo furandi, he would have been guilty of embezzlement and not of larceny. But if the servant has done anything which determines his original exclusive possession of the goods, so that the master thereby comes constructively into possession, and the servant afterwards convert them animo furandi, he is guilty of larceny, and not merely of a breach of trust at common law, or of embezzlement under the statute. On this supposition he subsequently takes the goods tortiously in converting them, and commits a trespass. "We have, therefore, to consider whether the exclusive possession of the coals continued witli the prisoner down to the time of conversion. I am of opinion that this exclusive possession was determined when the coals were deposited in the prosecutor's cart, in the same manner as if they had been deposited in the prosecutor's cellar of which the prisoner had the charge. The prosecutor was undoubtedly in possession of the cart at the time when the coals were deposited in it, and if the prisoner had carried off the cart animo furandi, he would have been guilty of larceny ; Robinson's case, 2 East, P. C. 563. There seems considerable diflBculty in contending that if the master was in possession of the cart, he was not in possession of the coals which it contained, the coals being his property, and deposited there by his orders for his use.' 1853. Goodenough, Dears. 210. A servant was entrusted with cheques to buy skins. He bought the skins on credit, cashed the cheques and appropriated part of the money. Held, that he did not take the money from the possession of the master. There was no argument and reasons were not given. 1854. Gill, Dears. 289. S. P. as in Headge, supra. 1858. "Wright, 27 L. J. M. C. 65. The accused was managing clerk of a branch bank, and it was his duty to receive moneys and place them in a safe belonging to his employers, of which both he and his employers had keys, and to account weekly. The jury found that he had appropriated moneys which had been placed in the safe and which had been included in a weekly account, and the court of C. C. R., thinking there was evidence to support the find- ing, sustained a conviction for larceny. (Note. No stress seems to have been laid upon the accounting.) The effect of these authorities appears to be as follows : — I . The servant^s possession will terminate and that of the oa 196 POSSESSION AND TRESPASS. Part III. master will commence at the first moment when either the thing is delivered to the master, or when, although the thing continues ia the apparent possession of a servant, the servant agrees with the master to hold it finally for the master in. the master's right. a. So long as the thing is with the servant merely in transitu towards the master the master has not yet the possession as against the servant, but the servant has the possession as against the master. 3. When the thing ceases to be in transitu and is held for the master, the master's possession commences even as against the servant. The master's rights fully attach at the first moment when the mere motion of progress towards the master is changed into a holding subject to his orders or into a new direction by his orders, express or implied. It is conceived that a mere acknowledgment by the servant that he held for the master would be sufiicient (compare the cases of attornment to a vendee by a vendor's bailee). A mere actual receipt for the master on the master's premises may or may not be sufiicient, according to whether or not the servant's custody is the final destination of the thing. A deposit in the master's premises or cart, barge, or other receptacle, seems not of itself necessarily conclusive (see Cullum, 1873, la Cox, 469), but to be subject to the distinction that if on the one hand (as in ahnost all the reported cases of this kind) the servant was sent with the cart or barge to receive the thing, and did receive it into the cart or barge in pursuance of his employment, or if he was employed to receive and deposit the thing in his master's premises and did so deposit it in pursuance of his employ- ment, the possession thereupon shifts to the master; but that if, on the other hand, the deposit in the master's receptacle or premises was casual and not made in the course of the employment nor for the master, the transitus has not necessarily ended and therefore the possession has not Chap. IT. § 14. PARTICULAE oases: — SALE ETC. 197 necessarily passed. So again as to receipt by one servant from another servant, it may be that the transitus continues ^ in the hands of several successive servants, who are all for this pui-pose merely as if they were one servant, being (so to speak) merely successive vehicles or merely a multiplication of links ia a chain which is not yet attached to the master, or it may happen ^ that the first or any other servant^s receipt is a receipt to hold for the master and vests the master's possession. In every case the question is, what was the evidenced intention of the parties as to the character or capacity in which the servant held ? But if the master's possession had once attached, though only in the hands of a servant, it thenceforward avails against that servant and also against any other servant to whom that servant may dehver the thing. Next as between the master or servant in such cases and strangers during the transitus, it was thought in one case ^ that where a servant received a thing for his master and was robbed of it by a stranger before it had come to the master otherwise than by the servant's receipt, the servant could prosecute and the master could not. This doctrine was based on the rule stated in the preceding paragraph; but in so far as it excludes the master it seems inconsistent with the general principles of the law of theft, and is not in accordance with the terms of the ruling in the previous case of Remnant * or with the undoubted law in a case where such a view would have been much more plausible, namely that of a bailee on a revocable bailment whose bailor never had actual possession but yet was held entitled to maintain theft against a stranger who took from the bailee.^ Note. — In the case of Hopkinson v. Gibson, 1805, 2 Smith, 202, it was held that a colonel who had bought horses for the army could not bring trover for them, on the ground that he was not a bailee ' As in Master's case, sap. ^ Compare esp. Watts' case, sup. s Eudick, 1838, 8 C. & P. 237, Alderson B. * 1807, E. & E. 136, Graham B. ; and cp. i Hale, P. C. 668. ■■^ Eemnant, uH sup. 198 POSSESSION AND TEBSPASS. Part III. but only an agent or servant. But Lawrence J. doubted whether the colonel might not have brought trespass against a stranger. Grounds of the law as to embezzlement. The tme ground of the law as to embezzlement seems to be that which has been stated above as to the case of a third person who receives or takes a thing from a tres- passer; viz. that a mere wrong to a right to possession is not sufScient for trespass or theft^ and that a person who has merely a right to possession can complain of a taking as a trespass or theft only when there was a forcible or im- mediate taking from the actual possession of some person who holds as his delegate^ representative^ or agent. ' A vendee with right to possession can sue or prosecute a person who takes from the possession of the vendor before delivery because the vendor holds for him. Again, in the case of a servant who receives a thing for his master and has not yet surrendered the possession to his master, the master can sue or prosecute a stranger who takes from the possession of the servant be- cause the servant holds in his right. But the master cannot sue or prosecute the servant himself because there is no for- cible or immediate wrong to possession, for the servant alone has the possession and he cannot do forcible wrong to his ovra possession. (ii) Gifts and assignments. Of the class of cases in which the general property in a thing has passed by voluntary alienation from one owner to another, but the new owner has not yet had actual possession, there remain two modes to be considered, namely gifts, and assignments (by way of mortgage or otherwise). And firstly, as to gifts, it seems clear that even if a parol gift without consideration and without delivery passes no rights in the thing but is merely nudvm pactum,'^ still the donee has against strangers all the same rights as if the property passed ' In Roman law nudum pactum for want of delivery, in English for want of consideration. Chap. II. § 15. PAETICULAE CASES: — AUTHORITY OF LAW. 199 by the gift. And whenever a gift without delivery may be supported either by reason that there is a sufficient considera- tion or by reason of estoppel to deny consideration as in the case of a gift by deed, the distribution of rights and duties becomes the same as upon a bargain and sale. Note. — See Blackburn on Sale, 2nd ed., p. 259; Bourne v. Fosbrooke, sup. § 9 ; Irons v. Smallpiece, 1819, 2 B. & A. 551 ; Parke B. in "Waud v. Audland, 16 M. & W. at p. 870; Winter v. Winter, 9 W. K. 747; Danby v. Tucker, 31 W. E. 578. In many old cases ' gift ' or ' done ' is used to signify a grant or bargain and sale. See as to an agreement that the donee who was previously in possession shall hold in his own right ; Shower v. Pilok, 1849, 4 Ex. 478 ; Lunn v. Thornton, 1845, i C. B. 381 ; L. & B. E. Co. v, Fairclough, 1841, 2 M. & G. 691; cp. Bac. Abr. Tresp. 577 ; Trov. 683-4, 693. See as to a gift by a father to a child, Forsgate, 1787, I Leach, 463, and an anonymous case there cited; Hughes, 1842, C. & M. 593; Hayne's case, 12 Rep. 113; Ee Eidgway, 1885, 15 Q. B. D. at p. 449. Lastly, as to mortgages and other assignments^ the only point which seems to require notice is that the assignor of goods who is permitted by the assignee to remain in possession seems in general to be considered as in the position of a bailee of the assignee/ if he has submitted to hold for the assignee, but otherwise is in lawful possession in his own right and cannot steal even under the statute.^ § 15. Talcing ly authority of law. The principal eases of a taking by authority of law are distress and execution. See generally as to the different kinds of distress, and as to replevin, Gilbert (L.C.B.) on Distress, Impey^s ed. 1833, and compare Sir H. S. Maine's Early History of Institutions, p. %6'},. The more important kinds of distress were distress by a lord for rent or other services and distress by an occupier of 1 Fenn v. Bittleston, 1851, 7 Exoh. 152 ; Brierlyi). Kendall, 1852, 17 Q. B. 937- '' Pratt, 1854, Dears. 360. 200 POSSESSION AND TRESPASS. Part III. land on cattle found damage feasant. In the case of rent the ancient procedure was in its simplest form in substance as follows. The lord's bailiff entered on the tenant's land and seized as many cattle as he pleased (without reference^ until the Statute of Marlebridge^ to the amount of his claim) as a pledge^ and drove them to a pound and left them there in charge of the pound-keeper. It was the business of the tenant to feed them, and for that purpose the pound was required to be so constructed and situate that the tenant could get to the cattle to feed them (as it lay upon him to do, until 5 & 6 W. IV. c. 59) without trespass. Once in the pound the cattle could not by any means be got out except by replevia. The tenant wishing to replevy did so by writ or plaint, in which the complaint was stated to be of an unjust talcing and detaining of the cattle, and the sheriff was required to restore the cattle to the tenant on the tenant giving counter-pledge by sureties to prosecute (' de stando juri et sistendo se foro '^, and also (after 13 E. I.) for the value of the cattle. On this being done the lord was commanded and if necessary com- pelled by reprisals (withernam) to show the cattle to the sheriff, who restored them to the tenant, and the tenant was bound to proceed with the replevin. In his writ or plaint he had claimed the entire value of the cattle as damages for the alleged unlawful taking, because it was not yet certain whether he could get re-delivery, and if he should not get it he would be entitled (as in actions of trespass) to the value of the cattle as damages. J3ut in his declaration after re-delivery he claimed only damages for the detention because by the re-dehvery he already had his cattle back. The lord then pleaded. He might plead amongst other pleas that the cattle were his own ' property,' or that they were the ' property ' of a third person, meaning by property in these cases the right to the possession (see Gilbert, p. 136) — or that he the lord did not take the goods, or he might avow good cause for the taking and detention, counterclaiming the cattle and damages. On the determination of the proceedings if the avowry was Chap. II. § 15. PAETIOULAE OASES : — AUTHORITY OP LAW. 201 sustainedj i.e. if the distress was held goodj the lord had judgment under which the cattle were (in ancient times) restored to the pound and remained there at the tenant's cost and risk unless he made satisfaction for the rent and for the damages and costs in the action. Substantially similar proceedings took place in cases of distress of animals or things damage feasant. The tenant might tender the rent at any time before the impounding. If a sufficient tender was made before the cattle were driven off the tenant's land, the lord who nevertheless drove them away was guilty of trespass and liable for the whole value of the cattle. If the tender was made after distress but before impounding^ the lord did not, as it seems^ become a trespasser ab initio by impounding^ but he was liable either to replevin, or in an action for damages, or in detinue. After the impounding the lord could not deliver, inasmuch as the things were in the exclusive custody of the law, and a tender of rent and expenses was of no avail, and the only remedy for either party was replevin. Nor was this rule even partially altered in practice until 1859, when it was for the first time decided (1859, Johnson v. Upham, a E. & E. 250) that the effect of the statute 3 W. & M. st. i. c. 5. s. 12 was that a tender after impoundiag and before sale and within five days is good and entitles the tenant to have his cattle back, whether the impounding was in a pound or on the tenant's premises. And by the C. L. P. Act, i860, s. 23, the tenant was for the first time enabled to pay money into Court in replevin. But it seems that detinue could not be brought on a tender made after impounding (1862, Singleton V. Williamson, 7 H. & N. 747). A lord who distrains when nothing is due or who distrains things of such a kind that they are not distrainable, or who un- lawfully breaks into a house to distrain, takes as a mere tres- passer from the first, and is accordingly liable in trespass for the full value of the things (1863, Attack v. Bramwell, 3 B. & S. 520 ; 32 L. J. Q. B. 146), notwithstanding the protection given 202 POSSESSION AND TRESPASS, Part III. by 1 1 G. II. c. 19. So if at any time before or during the im- pounding lie does any positive act of misfeasance, bis authority and protection are at common law taken away ah initio, as for instance if be work or kill the distrained cattle.^ But he is not a trespasser at the first by distraining for an excessive claim, even though it be alleged to have been done mahciously (1853, Stevenson v. Newnbam, 13 C. B. 285), for the tenant is supposed to know how much he owes and can tender the proper amount ;— nor by distraining on an unfounded claim such as heriot service, if in fact he has a good one as for rent in arrear (1851, Tancred v. Leyland, 16 Q. B. 669). Nor if he distrains things which are not liable to distress is he thereby made a trespasser as to other things which are liable (1843, Harvey v. Pocock, 11 M. & W. 740). Nor does the mere refusal of a proper tender or any other mere non-feasance make him a trespasser even as to matters subsequent, but only subjects him to an action of detinue or for the actual damage (Six Carpenters' case, 8 Rep. 146 a ; i Sm. L. C. 144). And by various statutes, such as 11 G-. II. c. 19. § 19 as to distress for rent, 17 G. II. c. 38. § 8 as to distress for poor- rates, and 5 & 6 W. IV. c. 50. § 104 as to highways, protection is given in cases of irregularity and misfeasance except as regards damages actually sustained. It seems to be generally assumed, but apparently nowhere decided, that the mere completion of the distraint after tender, as by continuing to drive cattle to the pound and impounding them is a non- feasance and not a misfeasance within the meaning of the ancient rule. Upon a lawful distraint the distrainor is held not to acquire possession at all. He cannot maintain trespass or trover even against strangers, but only an action for rescue or de parco fracto (R. v. Cotton, 1751, Parker's Rep. 121). The things seized are held to be in the custody of the law before as well as after impounding, but the possession remains in the owner of the things, who is merely restrained as to the * Six Carpenters' case, 8 Kep. 146 a, i Sm. L. C. 144. Chap.II.§i6. PAETIOULAR CASES: — EEAUD AND MISTAKE. 203 use of ttem and may maintain trespass or trover against a stranger who takes them out of the pound (R. v. Cotton^ sup.; cp. 1833, Giles V. Grover, 9 Bing. ia8). In (1856) Mennie v. Blake, 6 E. & B. 843^ it was doubted whether replevin lay in any case but that of distress (see however C. L. P. Act, i860, s. 32). In the same case it was decided that at any rate replevin does not lie ia any case either of distress or of other taking in which the defendant did not take the goods immediately from the plaintiff's possession, — in other words, that it is a remedy for the protection of possession, and not, as trover is, a remedy for the protection of right to possession. Goods seized in execution are m ciistodia legis and cannot be distrained (1848, Wharton v. Naylor, 13 Q. B. 673), even though the sheriff has sold them ; just as ex converso goods under distress cannot be taken in execution at the suit of a subject. The sheriff upon levying execution is (perhaps) entitled to maintain trespass and trover against a person who wrongfully takes or keeps them. Whether in law the sheriff has the possession of goods which he has taken in execution, or whether until sale and delivery the possession remains in the debtor, seems not to have been settled. It has been held that the sheriff can main- tain trespass or trover (Wilbraham v. Snow, 1681, i Wms. s. 47 a) : but it has also been held that the possession may in an indictment be laid in the debtor (R. v. Eastall, 3 Buss. C. & M. p. 350, from MS. of Bayley J.). See generally as to the effect of an execution (1833), Giles v. Grover, 9 Bing. 128, 365-380, where Lord Tenterden C.J. says that the sheriff has the possession. § 16. Fraud and Mistake. (i) Fraud. If a person is induced by deceit to consent to part absolutely with his property in a thing to another upon a contract with him, the property passes, subject to certain common law rights 204 POSSESSION AND TRESPASS. Part III. in the alienor to rescind or disaffirm, and subject to the statutory provision for restitution (2,4 & 35 Vict. c. 96. s. loo), for there was a concurrence of intentions on both sides that the property should pass, and accordingly the alienee cannot commit trespass or theft either by the obtaining the thing by such deceit or by a subsequent disposal of it.^ It would seem that in such a case no disaffirmance by the alienor could so affect the fraudulent alienee's position as to make him punishable as a thief for any subsequent disposal of the thing.'' This doctrine is the occasion of the statutory offence of obtaining by false pretences. But if the one party means only to give a bailment of the thing and the other accepts the thiag meaning not to hold it as upon a bailment but to appropriate it contrary to the known intention of the bailor, this may be of itself a theft and no further complication arises, for there is no concurrence of intention or contract ad idem. It is not that the contract is avoided by the fraud, but that there is no contract, and here the possession does not pass by contract but by vrrong and is trespassory. There may be a transfer intended by both parties as a bailment, but obtained by the transferee by a deceit. Here the question is, whether or not the bailment is void so as to neutrahse the nominal consent and make the acquisition trespassory, and on this point there seem to be no authorities. Since the statute against fraudulent bailees the question is not material, except as it may affect the amount of the penalty, for if the bailment stands the statute will apply, and if it is void the common law will apply. Should it become necessary to determine the point on an indictment containing only a special count for larceny as a bailee, it would probably be held that as a transfer of a general property is not absolutely avoided by deceit, so neither is a transfer of a special property or possession. ' White V. Garden, 1851, 10 C.B. 927 ; Powell v. Hoyland, 1851, 6 Ex. 72 ; Clough V. London & N. W. E. Co., 1871, L. R 7 Ex. 26. " See more fully, ik/". § 19, Middleton's case, 1873, L. E. 2 C. C. 38, and 1868, Prince, L. E. i C. C. 150. Chap.II. §i6. PARTIOULAB cases: — FEAUD AND MISTAKE. 205 Indeed if this were not so there would have been no occasion for the numerous ancient decisions that where a bailment has been obtained by deceit the jury may infer an original animus furandi from subsequent conduct; for if the bailments had in those cases been void, the possession of the accused would have been trespassory throughout and any conversion animo furandi would have been theft (as much as in the case of a servant) even though there was originally no animus furandi. (ii) Mistake. ' Mistake ' may affect a transfer or taking of a thing in divers ways. One or both of the parties may be unaware of the fact of the transfer or taking, or may have mistaken the character of the thing, or one may have mistaken the person or right of the other. Generally speaking, if a person in and by reason of a mistake of an essential fact gives consent to a change of property or of right to possession, which consent he would not have given but for the mistake, the consent goes for nothing, and the property and right to possession are un- changed (1853, Vincent, a Den. 464, inf.; Middleton, 1873). There seems to be no reason why the same result should not follow with respect to change of possession [' delivery '), but it will be seen that there has been a division of opinion on this point. In Cartwright v. Green (1803, 8 Ves. 405, 3 Leach, 953) a bureau was bailed to a carpenter to repair. The bailor did not know that the bureau contained money in a secret drawer. The carpenter unnecessarily and improperly broke open the drawer and appropriated the money. Lord Eldon, after consulting the judges, held that if the carpenter broke the drawer not for the purpose for which the bureau was bailed to him but with an intention to appropriate what he should find, the taking was felonious. ' If a pocket-book containing bank-notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the 206 POSSESSION AND TEESPASS. Part III. notes out of the pocket-book^ there is not the least doubt that it is felony/ In Mucklow's case (1827, i Moo. 160) a post-letter con- taining a cheque was misdelivered to a person who opened it and fraudulently misappropriated the cheque. The judges held a conviction wrong ' on the ground that it did not appear that the prisoner had any animus fur andi when he first received the letter.'' In Merry v. Green (1841, 7 M. & W. 6%"^) the plaintiff had bought at a sale a secretary or bureau with an unknown secret drawer containing money in a purse. There was conflicting evidence as to whether the auctioneer had ex- pressly sold the bureau ' with its contents ' or had expressly sold it ' but not its contents.'' This had not been left to the jury, and a new trial (in an action for assault in arresting the plaintiff on a charge of theft) was ordered. Baron Parke in delivering the judgment of the Court said that assuming the plaintiff had notice that he was not to have the contents of the bureau, there was evidence to make out a case of larceny. 'It seems to us that though there was a delivery of the secretary and a lawful property in it thereby vested in the plaintiff, there was no delivery so as to give a la'wful possession of the purse and money. The vendor had no intention to deliver it, nor the vendee to receive it ; both were ignorant of its existence ; and when the plaintiff discovered that there was a secret dra'wer containing the purse and money it was a simple case of finding, and the law applicable to all cases of finding applies to this. See the remainder of the judgment, smj9. §13 (ii) (6).' In Davies-* case (1856, Dears. 640, 25 L. J. M. C. 91) Muck- low's case was followed. In Middleton's case (i 873, L. R. a C. C. 38) the prisoner, a depositor in a post ofiice savings bank, gave notice to with- draw T.OS. and received a warrant for that sum and went to receive it. A clerk by mistake gave him £'i 16s. jod. which was waiting for another depositor. The prisoner knew of the Chap.ir.§i6. PAETICULAE CASES: — PRAUD AND MISTAKE. 207 mistake and received the money (as the jury found) with animus furandi at the time of taking it off the counter. The case was twice argued. Seven judges held it a case of theft on the ground that, there being no contract to transfer the property, there was by reason of the mistake as to the person no operative intention to transfer the ;^8 i6s. lod. to the prisoner. Three judges concurred on the ground that the clerk had no authority to part with the property in the money. One concurred on the ground that possession was taken with an animus furandi conceived before the possession was acquired. Four held that there was no theft. The majority do not seem to have doubted that there was a suffi- cient taking or trespass. In the judgment of the seven judges the following passage ' We admit that the case is undistinguishable from the one supposed in the argument, of a person handing to a cabman a sovereign by mistake for a shilling ; but after carefully weighing the opinions to the contrary, we are decidedly of opinion that the property in the sovereign would not vest in the cabman, and that the question whether the cabman was guilty of larceny or not, would depend upon this, whether he, at the time he took the sovereign, was aware of the mistake, and had then the guilty intent, the animus furandi.' (This passage seems to be treated in some of the judgments in AshwelFs case, inf., as laying down that there cannot be larceny upon a receipt by mistake unless there was animus furandi at the time of the receipt, but it is submitted that the passage is not intended to lay down that limitation absolutely, and that the opinion may refer only to the case of the cabman having no clue to the person from whom he got the coin.) In Ashweirs case, 1885 (16 Q. B. D. 190; 16 Cox, 1) the prosecutor intending to lend the prisoner a shilling, gave him a sovereign. The prisoner at the time supposed it to be a shilling, but some time afterwards he found out that it was 208 POSSESSION AND TRESPASS. Part III. a sovereign, and lie then immediately formed the intention of appropriating it and did appropriate it, although he knew that it had been given him by mistake and could easily have restored it. He afterwards denied the receipt of it. After two arguments, fourteen judges were equally divided on the question whether theft had been committed. Smith J. and Mathew J. held it not theft because in their view the prisoner acquired the possession by an in- tentional delivery and intentional receipt of a coin, although there was a mistake as to what it was, and the possession and property were obtained without trespass, and also without animus furandi. Stephen J., in a judgment in which Day J., Wills J., Manisty J., and Field J. concurred, said that the cases on finding 'proceed upon the principle that in all larceny the actual physical taking must be felonious : ' ^ — and he assimi- lated the case to one of iinding, with a distinction of fact in the prisoner's favour. Cave J., Hawkins J., Denman J., Lord Coleridge C.J., and Grove J., Pollock B., and Huddleston B. held it theft, on the ground, w^hich (if it may be taken to be established) is of much importance for the theory of possession, trespass and theft, that intention is a necessary element in the acquisition of possession by taking ; that for this reason he did not acquire possession of the sovereign until he held it wdth knowledge that it was a sovereign ; that he then had an animus furandi ; and therefore his possession was a trespass and felonious in its inception (and therefore either at that instant, or at some subsequent point of appropriation — the judgments do not say ' This must be understood as being subject to unexpressed qualifications, e. g. if understood as a general proposition it is directly opposed to Eiley'a case and many other cases and is inapplicable in the case of a servant or licensee or of a person who takes by authority of law. As to some remarks at pp. 207-8 of 16 Q. B. D. on the Year-book of 13 E. IV, the date should appai'ently be I473. The chancellor seems to have been not Booth but Bishop Stillingtou. His view that conversion by a bailee was theft seems to have been correct according to the civil law, which he proposed to apply to a foreign merchant (see ««p. § 2. note i). Chap. 11. § i6. PARTICULAR CASES : — PRATJD AND MISTAKE. 209 which — amounted to stealing-). Denman J. assimilated the case to that of a ' finder with a clue ' who takes with animus furandi {sup. § 13). Cave J. said :— ' The acceptance by the receiver of a pure benefit unmixed with responsibility may fairly be, and is in fact presumed in law until the contrary is shown ; but the acceptance of something which is of doubtful benefit should not be and is not presumed. Possession unaccompanied by ownership is of doubtful benefit ; for although certain rights are attached to the possession of a chattel, they are accompanied also by liabilities towards the absolute owner which may make the possession more of a burden than a benefit. In my judgment a man cannot be presumed to assent to the possession of a chattel ; actual consent must be shown. Now a man does not consent to that of which he is wholly ignorant ; and I think, there- fore, it was rightly decided that the defendant in Merry v. Green was not in possession of the purse and money until he knew of their existence. Moreover, in order that there may be a consent, a man must be under no mistake as to that to which he consents.' Lord Coleridge C.J. said : — ■ 'I assume it to be now established law that where there has been no trespass, there can at common law be no larceny. I assume it also to be settled law that where there has been a delivery — in the sense in which I will explain in a moment — of a chattel from one person to another, subsequent misappropriation of that chattel by the person to whom it has been delivered will not make him guilty of larceny, except by statute, with which I am not now concerned. But then it seems to me very plain that delivery and receipt are acts into which mental intention enters, and that there is not in law any more than in sense a delivery and receipt, unlets the giver and receiver intend to give and to receive respectively what is respectively given and received. It is intelligent delivery, as I think, which the law speaks of, not a mere physical act from which intelligence and even consciousness are absent. I hope it is not laying down anything too broad or loose, if I say that all acts, to carry legal consequences, must be acts of the mind.' Lord Coleridge C.J. alone refers to Riley's case [sup. § 7). All the judges hold that there was no bailment of the sovereign^ as indeed there hardly could be of a coin which was ]? 210 POSSESSION AND TEESPASS. Part III. not intended to be returned to or kept or applied for the prosecutor. It is certain that the decision in Riley's case did not proceed upon the ground that there was no tatiag of possession until the prisoner knew what it was that he was takiagj but proceeded on the grounds that there was a taking and a complete change of possession and a complete trespass from the beginning by reason that the prisoner's act was voluntary and that he knew he was driving the lambs, although he did not know that he was driving one which was not his own ; that the possession so acquired was on general principles of law (not on special grounds limited to a case of mistake) a continuing trespass afterwards ; and that an animus furandi supervening at any later time (and not necessarily at the moment of discovering the mistake) completed the elements of theft, at any rate as from the time when some act of misappropriation occm-red^ notwithstanding that the ' actual physical taking ' was not felonious, but was entirely innocent. It is submitted that the view of AshwelFs case most consonant with the former authorities is that there was on the voluntary receipt of the coin by the prisoner a change of the possession of it ; that this change of possession was not a change of possession by 'delivery' because there was no sufficient knowledge to constitute consent to a change of possession (as there certainly was not sufficient knowledge to constitute consent to change of property or of right to possession) ; that it was therefore a change of possession by a taking at the firsts but innocent^ as in. Riley's casej that the possession thus acquired was trespassory, though innocent ; and that when the animus furandi supervened upon the trespassory possession^ or at any rate when an act towards misappropriation was done^ theft was committed. And even if the case is assimilated to that of a taking upon a finding with a clue to the owner and a misappropriation afterwards, it was theft according to the considered judgment of the Chap. II. § i6. PAETIOULAE CASES : — FEAUD AND MISTAKE. 211 Court of Exchequer with the assent of Tindal C.J. in Merry v. Green, because the prisoner formed the intention of misappropriation immediately upon the discovery of the mistake. If that intention had not supervened until a later time, the same question appears to arise (on the assumption that the prisoner in Ashwell's case was to be treated as a finder) as that which arises in the case of other finders with a clue who take innocently at first and afterwards misappro- priate — sup. § 13 (ii) {V) — and which has been regarded as still open. The chief doubt as regards Ashwell's case seems to be whether the doctrine established in Riley's case applies where there is in fact and physically a delivery. It is submitted that it does apply to all cases in which the essential element of delivery, namely consent to a change of possession, is absent, and that where that consent is absent the only question is whether there has been in law any change of possession at all, or at what moment of time it has taken place. It may be asked, suppose a man coming home at night finds a sovereign too much amongst his money — is his possession of it trespassory in any sense ? The answer is, that it is impossible to say without further information. If some one put it into his pocket without his knowledge, whether purposely or wholly unintentionally or by mistake for something else, there will have been no element of a taking at all, before the discovery of the coin. Probably in point of law the possession of the former possessor has up to that time continued {sup. § 3) and continues (just as it does in the case of a thing lost in the street) until the finder knowing of the thing assumes the possession, whether with or without knowledge or belief that it is or is not his own. If on the other hand the finder took it (in the popular sense of taking) however innocently, a distinction may arise. Suppose he took it entirely involuntarily, as by sweeping it off a counter unknowingly with his sleeve, it is conceived that the P3 212 POSSESSION AND TRESPASS. Part HI. case is tlie same as that last put, and that the possession is not in law changed at all until he knows of the coin and assumes possession. If he took it voluntarily, supposing it to be one of his own sovereigns, or mistaking it for a shilling, Riley's case applies, and the taking was a trespass though innocent at first. If it was handed to him by some one else who gave him six sovereigns by mistake for five, or the sovereign by mistake for a shilling, or who gave him the sovereign mistaking him for another person, then inasmuch as an essential element of change of possession by ' delivery '^ — namely consent to the change of possession — is wanting by reason of the mistake, the reception of the possession by a voluntary act is in law a taking and is trespassory, though innocent at first. § 17. Co-ownersMp. In general at common law one of several co-owners or co- bailees of a thing cannot commit trespass or theft in respect of it against the others,' for all have possession and right to possession in common ; and so a wife cannot at common law steal her husband's goods, nor goods of which he is a co^ owner with others.^ But to the general rule there are some limitations and exceptions at common law and others by statute. Common law limitations are that, as it seems, a corporator can steal the effects of the corporation ; ^ and that where the legal property in partnership effects is vested in trustees or a treasurer, a partner can steal from the trustees or treasurer ; * ' I Hale, 513 ; Waite, 1847, 2 Cox, 245. ^ Hawk. I. 32, 33 ; Willis, 1833 ; I Moo. 375. At one time it was thought that adultery so far destroyed the status of a wife that although she could not herself be convicted of stealing her husband's goods, yet if she delivered them to her adulterer, he could be convicted of receiving. But this view has been overruled ; Eeg. v. Kenny, 1877, 13 Cox, 397. As to the liability of the adulterer, see inf. § 19. ^ Eoscoe's Criminal Ev., tit. Larceny. No share or participation either in property or in possession attaches to any corporator or even to all the existing individual corporators. ' Cain, 1841, 2 Moo. 204. Chap. II. §i8. PARTICULAE cases: — LIEN ETC. 213 and that if co-owners bail a thing to one of themselves it can be stolen from the bailee by the others or any of them/ for they have parted with all their possession. Statutory exceptions have been made against partners in certain banks, and by the ' Recorder's Act ' ^ against members of co-partnerships and joint or common beneficial owners generally. Note. — i. Tlie Recorder's Act, 31 & 32 Vict. c. 116, seems not to extend to joint trustees nor to the case of one co-bailee stealing from another, nor to the case of a wife stealing from her husband. But since one co-owner of goods can now under that act steal from another, it may possibly be held that his wife joining with him in the taldng in such a manner that coercion is negatived is guilty of theft. 2. If co-owners bail to one of themselves, quaere whether the co-owning bailee can steal either under the Recorder's Act or under the statute against fraudulent bailees. 3. See as to co-ownership by ' confusio,' Spence v. Union Mar. Ins. Co., 1868, L. R. 3 C. P. 427, and Buckley v. Gross, 1863, 32 L. J. Q. B. 129; 3 B. & S. 566. 4. As to husband and wife, see now the Married Women's Property Act, 1882, ss. 12 & 16, which to some, but it is very difficult to say to what extent, render husband and wife capable of stealing from each other. It has been held that this statute does not make the husband a competent witness against the wife on a charge of stealing from him ; Reg. v. Brittleton, 1884, 12 Q. B. D. 266. § 18. Lien and Stoppage in transitu. The rules of law on these subjects cannot here be considered in detail, and it is only possible to point out their place in a systematic statement of the law of possession. (i) Iiien. Lien is in English law a prolongation of possession and right to possession. A person who has parted either with possession or with right to possession cannot have a lien, ' Webster, 1861, 31 L. J. M. C. 17. I'hey have parted with their possession to him. ^ 31 & 32 Vict. c. 116. 214 POSSESSION AND TRESPASS. and a person wbo has a lien loses it entirely if either the possession or the right to possession is interrupted.^ (ii) Stoppage in transitu. When a vendor of goods has parted with the property and the right to possession and the possession^ all his rights in respect of the thing are gone, suhject to one exception, namely that in case of insolvency of the vendee, an unpaid vendor, although he has sold upon credit, at any time before the goods have reached the possession of the vendee, or of the vendee^s servant, and whilst they are still in the possession of a carrier or other person as an intermediary, who has not yet by attornment, usage or otherwise agreed to hold exclusively for the vendee, is permitted to re-assert his right to possession and to put himself in the same position as if that right had never been parted with. (See Blackburn on Sale, and ed. Part iii j Benjamin on Sales, and ed. Bk. v. Part i. ch. 5.) No exceptions to the general rules as to the rights and remedies dependent on possession or right to possession seem to have been established with respect either to lien or to stoppage in transitu. ' See Eeeves v. Capper, 1838, 5 Bing. N. C. 136 ; Forth v. Simpson, 1849, 13 Q. B. 680; Jacobs v. Latour, 1828, 5 Bing. 130. CHAPTER III. The Act and Intention in Theft. An act of theft consists in the coincidence at the same moment of — ■ (i) A wrongful taking — cepit et asportavit invito domino : and (ii) An intention of wrongful appropriation — animus fiirandi . § 19. The Aet of Taking. Theft of a thing is ordinarily committed at common law either by the act of taking it animo furatidi from a person^'s possession^ or by appropriation of it animo fiirandi by one who was previously in a trespassory though unf elonious possession ; and under the statute by conversion animo fura7idi by a person lawfully in possession as a bailee. What is a direct taking from the owrnr^s possession. A taking from a person''s possession has already been generally described. It consists in acquisition of possession without the consent of the previous possessor to part with the possession. It may be either direct or indirect. The point at which the possession is so acquired by a direct taking in the popular sense is exactly defined as being such a removal of the thing that no part of it occupies the same particular portion of space as before^ and that any tie or fastening by which the thing is held or secured is severed.^ It is not necessary that the thing should have been wholly removed from the premises or presence of the owner or out of the receptacle in which it was placed. Any severed portion of ^ See the authorities collected in Russell on Crimes; and Lapier, 1784, 2 East, P. 0. £57. 216 POSSESSION AND TEESPASS. Part III. a thing is for the purposes of this rule regarded as a separate thing ; for instance^ the drawing a pint of beer from a cask is a removal of that pint.^ Note. — i. ' One cuts my girdle privily on which my purse hangs, ■whereby the girdle and the purse fall to the ground, but took it not from the ground by reason of a cry raised : this is not felony because of his not having possession of it in fact after it was severed from my body. But if he had taken the purse in his hand and then cut the girdle and then let it fall to the ground that is felony if there is over 1 2d. in it: for it was in his possession at one time severed from the other's person : but it is not robbery, for he neither assaulted nor put him in fear, and so it was ruled in B. R. circa 26 Eliz.' (Crom-pton, p. 35.) 2. In the case of a servant who has received the custody of the thing from his master there may be a difference according as it is the servant's business to move the thing or not. If not, then as the servant's possession is the master's, it would seem that an ordinary taking and asportation is requisite and sufficient, as in the case of a mere stranger. But if the servant is charged with the duty of moving or carrying the thing, an actual and unequivocal diversion of the thing from its proper destination seems to be requisite and sufficient, as where a postman pockets a letter. (Poynton, 1862, 32 L. J. M. C. 29, L. & C. 247; cp. Clieeseman, 1862, 31 L. J. M. 0. 89, L. & 0. 140.) Quaere, in such a case Avhether it would be sufficient if the postman moved his hand with the letter towards his pocket? It may be noticed that when the servant's custody has been determined, his assuming to sell the thing — i.e. unless he moves or delivers it — is no more a theft than if he had always been a stranger to it (Jones, 1842, C. & M. 613). It might be an obtaining of tlie price by false pretences from the vendee. Indirect or constructive taking. Indirect or constructive taking may be either (a) by com- pelling another person to deliver or quit a thing, or (4) by receiving a thing from a person vs^ho did not know that he was delivering it {sup. § 16), or (c) by receipt or removal upon delivery or consent of a person, servant^ or similar person who ' Wallia, 1848, 3 Cox, 67. Chap. III. § 19. THE ACT AKD INTENTION IN THEFT. 217 had not power to consent to a change of possession, or (^d) by- receipt or removal animo furandi though upon delivery or consent of a person who had power to consent and did consent to a change of possession, but who did not consent or had not power to consent to a change of property. The two latter of these forms of indirect or constructive taking require particular consideration. Taking by consent of a person unable to give consent. Servant. Wife. Adultery. There seems to be no doubt in principle that a possession acquired by delivery or consent of a servant or other similar person not himself having ^ nor authorised to give the master's or owner's consent to a transfer of the possession is trespassory, for the possession of the master continues and he has not con- sented to its being transferred — see 1873, Middleton, L. R. 3 C. C. R. 38, and cases there cited. Peculiar considerations how- ever occur where the accused person received or took the prose- cutor's goods by delivery or consent of the prosecutor's wife. The general doctrine is that a person cannot be guilty of theft by taking goods by the delivery or privity of the prosecutor's wife; — either on the ground of her apparent authority, or on the ground that she has in some sense an ownership.^ But the exemption does not in general apply if at the time the accused and the wife were in a condition or immediate contemplation of adultery ; ^ — either because the adultery avoids the authority, or because it is notice to the accused that the authority cannot be properly executed. Nevertheless even where there is adultery the exemption seems to apply ^ If however the servant's delivery Is so wrongful as to amount to a trespass by him he may have acquired possession as a trespasser, and then different considerations arise {sup. § 10). ^ Harrison, 1756, i Leach, 47 ;. ToUett, 1841, C. & M. 112 ; Featherstone, 1S54, Dears. 369 ; Avery, 1859, 28 L. J. M. C. 185. " Tolfree, 1829, i Moo. 243 ; ToUett, uiisup. ; Thompson, 1850, i Den. 549 ; Featherstone, uUmp.; Berry, 1859, 28 L. J. M. C. 70.; Mutters, 1865, 34 L. J. M. C. 54. 218 POSSESSION AND TEBSPASS. Part III. if the only goods taken are the wife's wearing apparel, or if the accused never took any separate possession of the goods, but only (e. g.) carried them for the wife, for in such cases the accused does not really take anything, but only aids the wife; and as she cannot be a principal thief, he cannot be her accessory^ (and see sujo. § 17, n.) It has further in one case been suggested that the ex- emption does not apply (even in the absence of actual or intended adultery) if though the prisoner took the goods with the assent of the wife, that assent in truth was, and was known to the accused to be, an unauthorised connivance at theft.2 Where there is a contemplation of adultery it does not excuse the prisoner that he was servant of the prosecutor and so under control of the wife.^ Consent neutralised hj animus fur andi. If a person obtains possession of a thing imder colour of a treaty for the transfer of possession but really meaning to assume the property in (i. e. to steal) the thing, the nominal consent goes for nothing and the acquisition of the possession is a taking and [animus furandi being present) a theft, for there is no agreement ad idem and the accused takes ' of his own head ' * and not under the bailment. Note i. — There are expressions in some cases which seem to imply that there must he some particular or specific trick, deception, or misrepresentation, but it eeems clear that it is sufficient if the accused meant to assume an entire and uaconditional dominion over the thing, and the owner did not in fact intend to concede to him an entire and unconditional dominion over it. The animus furandi will supply the rest; as it is said in Sharpless (1772, I Leach, 92), a 'pretence to purchase, with intent to steal,' may suffice; see 1887, Buckmaster, 20 Q. B. D. 182. 1 Fitch, 1857, 26 L. J. M. C. 169; Eosenberg, 1843, i C. & K. 233; Kenny, 1877, 13 Cox, 397. '' Avery, nbi sup. ; cp. Thompson, 1850, : Den. 549. = Mutters, 1865, 34 L. J. M. C. 54. * Per Brian C.J. in Year-b. 13 E. IV. p. 9, pi. 6 ; mip. § 6. Chap. III. § ig. THE ACT AND INTENTION IN THEFT. 219 Nor is it even necessary that the accused should have made any- positive representation. It is enough if he receives the thing from the owner at his request, intending to appropriate it and knowing that the owner does not intend him to appropriate it (Stock, 1825, I Moo. 87; Campbell, 1792, 2 Leach, 564; cp. Mucklow, 1827, 1 Moo. 160; and cp. Thompson, 1862, 32 L. J. M. C. 53, and Thomas, 1841, 9 C. & P. 741; Sample, 1786, i Leach, 420; Aickles, i Leach, 294). The marginal note to Walsh's case, 1B12, in E. & E. 215, to the eifect that some specific trick or contrivance is necessary is not sup- ported by the body of the case, which seems only to mean that such a trick would have raised an irresistible presumption of an animus furandi. 2. The principle of the rule was once thought to be that the fraud prevented any devesting of the owner's possession (Sample, 1786, I Leach. 420; andcp. Brown, 1856, Dears. 616) : but theniore simple explanation is that given in the text, viz. that the owner's possession is devested and the accused does acquire the possession not by consent but by trespass ; and so it has been decided (Janson, 1849, 4 Cox, 82, overruling Brooks, 1838, 8 C. & P. 295) that a subsequent conversion is unnecessary. 3. See generally as to this case — Bullock, 1856, Dears. 653 (attempt); Bramley, 1861, L. &C. 21; Thompson, 1862, 32 L. J. M. C. 57 ; McKale, 1868, L. E. i C. C. 125 ; Cooke, 1871, L. R. I C. C. 295. The great number of early cases resulted from the absence until recent times of any means of punishing a conversion by a bailee. It was of the greatest importance to show that an accused person took originally as a trespasser. But since the statutes against frauds by bailees the doctrine is of less im- portance. No theft wJiere owner consents to part with property. An important distinction — one which is the occasion of the law of false pretences — must here be observed. When the owner of the thing by himself or by some person having general or specific authority to act for him on that behalf contracts to part immediately and unconditionally with his rights of property in the thing, he thereby loses all title to complain of the mere taking or obtaining of the thing, 220 POSSESSION AND TRESPASS. Part III. no matter by what fraud the consent was obtained, at least until the contract has been rescinded. The ground o£ this distinction appears to be that even sup- posing that in these cases there is a constructive taking, yet the owner, having consented to surrender his proprietary rights, including the right to possession, retains no title to complain of the taking as a violation of his right of property. There was an agreement ad idem, and therefore the property passed subject only to the vendor's rights of disaffirmance or restitution. Note. — It is not clear however that the distinction does not rather depend on a difficulty as to animus furandi, viz. the ditficulty of holding that the accused knew that the appropriation would be invito domino. The distinction arises if credit is given even for a moment. It does not apply in favour of a person to whom as a bailee of the owner the thing is delivered to be handed over to a third person, even though the owner intends to part with the property in the thing to the third person, for during the transitus he intends the thing to be held under himself (cp. Brown, 1856, Dears. 616). But it would possibly be otherwise if merely as agent for the new owner he employed the accused as a common carrier. It seems doubtful how far the distinction applies where the whole transaction is a mere concoction of premeditated fraud. See for authorities that it does still apply — Parkes, 1794, 2 Leach, 614; Coleman, 1785, 2 East, P. C. 672; Harvey, 1787, i Leach, 467 ; Prince, 1868, L. R. i C. C. 150; Essex, 1857, 27 L. J. M. C. 20; Wilson, 1837, 8 C. & P. III. See on the other hand — 'Reg. v. Middleton, 1873, L. E. 2 C. C. 38, 12 Cox, 417; Reg. v. Buckmaster, 1887, 20 Q. B. D. 182 ; Morgan, 1854, Dears. 395 ; Bramley, 1861, L. & C. 21 ; cp. White v. Garden, 1851, 10 C. B. 927 ; Powell V. Hoyland, 1851, 6 Ex. at p. 72. The distinction seems to apply not only where the defrauded person is general owner of the thing but also where he is a bailee, though it may be doubtful whether it applies to the case of a bailee who has no 'special property.' (Cp. Jackson, 1826, i Moo. 11 ; Longstreeth, 1826, i Moo. 137.) In such cases the general owner might still prosecute for the theft unless he has given the bailee a general power of disposition or the bailment is such as to exclude for the time the owner's rights. Ghap. III. § 19. THE ACT AND INTENTION IN THEPT. 221 The distinction is subject to tlie important limitation tliat if the contract to part with the property is made for the owner by a person who had not authority to give such consent, it will not avail the deceiver. And for the purposes of this limitation a person has not authority to make such contract unless he has a general authority to act for the owner or a specific authority for the particular object. For instance, the authority of a carrier's servant to part with goods was held not to extend to parting with them to the wrong person, and the authority of a shopman to sell goods was held not to extend to parting with them for bad half-crowns ; but the authority of a bank cashier was held to extend to parting with money for a forged order. See Middleton's case, sup. In general it appears that the contract by a servant or agent must, in order to be within the distinction, be such as to pass the property for civil purposes. (See Prince, 1868, L. E,. i C. C. 150 ; Longstreeth, 1826, i Moo. 137; "Webb, 1850, 5 Cox, 154; Jackson, 1826, i Moo. 119; Sheppard, 1839, 9 C. & P. 121; Stewart, 1845, i Gosc, 174; Sparrow, 1847, ^ Cox, 287; Simpson, 2 Cox, 235; Kobins, 1854, Dears. 418; Campbell, 1792, 2 Leach, 564; Hench, 1810, E. & E. 163; Barnes, 1850, 2 Den. 59; Middleton, sup.) The owner may be induced by deceit to consent to give a bare physical possession to another as his servant or licensee in liis presence or on his premises. In such a case the deceit is unimportant for the purposes of the law of theft, since the owner's possession continues equally whether there is deceit or not, and a taking and carrying away is an act of theft, independently of the deceit. There is in effect a double theft (for prosecutions of servants for theft in this form see Barnes, 1850, 2 Den. 59; Thompson, 1862, 32 L. J. M. C. 57; Cooke, 1871, L. E. i C. C. 295)- T/iefi hy a penon during a possession acquired ly trespass, but not originally felonious. It is doubtful whether or not a person who is in a trespassory (though at first unfelonious) possession of a thing commits theft of it by the mere mental occurrence of animus furandi during that possession without some act of appro- priation (see sup. § 7, on Riley's case). But the question is seldom material^ for at all events some new act is in general 222 POSSESSION AND TRESPASS. Part III. necessary to evidence the occurrence of the animus furandi, and any act which does this appears to be sufficient, as the marking or secreting or selling of a sheep accidentally driven away.^ Statutory theft hy conversion by a hailee. There remains the statutory theft by a bailee. The words of the present statute ^ are ' fraudulently take or convert to his own use or to the use of any person other than the owner.' It does not appear that there have been any express decisions on the meaning of these words, and it is an important and difficult question whether an actual conversion must be proved, or whether it is sufficient to show such conduct as for civil purposes is evidence of a conversion, such as an absolute refusal to deliver.^ It seems that the intention of the act was to place the bailee who misappropriates in the same position as the bailee who has broken bulk ; but nothing is gained by this explanation, for in the case of breaking bulk there is an unequivocal act, viz. the removal of the part from its place in the bulk. Connivance liy the prosecutor. With regard to connivance, two distinctions are made in the cases. The first is, that if the owner procure or induce the accused to do the act, then although the owner does so for the purpose of detecting and punishing the accused, and although the accused does the act animo furandi and believing it to be invito domino, there is no theft ; but that a mere knowledge assent or facilitation by the owner, if his intention is to detect and convict, will not avail the accused (Egginton, 1801, a Leach, 913; Dannelly, 1816, R. & R. 310; Williams, 1843, i C. & K. 195). The second distinction is analogous to or perhaps identical with that made between a ' Eiley, 1853, Dears. 149, sup. § 7 ; Hale, 507. In one case (overruled on another point), Brooks, 1838, 8 C. & P. 295, an offer of a thing for sale was thought not to be evidence of a conversion at common law. ^ Larceny Act, 1861, s. 3. ' In Henderson's case, 1871, 23 L. T. N. S. 628, jewels to be returned if not sold in ten days were fraudulently sold after the ten days, and the C. C. C. R. sustained a conviction. Here there was plainly an actual conversion. Chap. III. § 20. THE ACT AND INTENTION IN THEET. 223 deliveiy by a bailee or servant to a third person and a taking by the third person by license o£ the bailee or servant, and is that if the owner or a person authorised by him actually dehvers the thing to the accused, though merely with intent to detect and convict him, there is no taking and therefore no theft (Bannen, 1844, i C. & K. 295; Lawrence, 1850, 4 Cox, 438). § 20. Elements of animus furafuU. The animusfurandi, or felonious or fraudulent intent, may be analysed as follows : — Firstly, there must be an intention as to the disposal of the thing taken, which may be called the intention of deprival and appropriation, and which seems to be identical in character (though it may differ as to finality) with the actual or implied intention which enters into a civil conversion. Secondly, this intention must be wrongful in the sense that there must be a knowledge that the deprival and appropriation will be a deprival of the owner against his will, and in the sense that there must not be a real claim of right. It has sometimes been thought that there must further be a motive or at least an intention of gain or advantage to the accused (lucri causa), but this appears now to be unnecessary except in so far as it may be involved in the other ingredients of the animus furandi. The following paragraphs examine these elements in further detail, firstly as to ordinary cases of theft by a stranger from a general owner, and next as to the more special cases of theft from bailees and others. It may he noted that the words ' fraud ' and ' fraudulent,' as they are commonly applied to theft and the cognate oflfences, include a portion of each of the above elements ; for neither on the one hand is a deprival and appropriation thought fraudulent unless it is made with a knowledge that it is invito domino and without claim of right, nor on the other hand is a taking, without claim of right and known to be invito domino, thought fraudulent unless there is an intention of appropriation or of something akin to appropriation. 224 POSSESSION AND TEESPASS. Part III. Intention of deprival and appropriation. The intent of deprival and appropriation requires to be explained in two respectSj firstly as to the character or quality of the intended deprival and appropriation, and secondly as to its intended finality; but in many cases these are hardly to be distinguished. I. As to the character or quality. There need not be any intention physically to deprive the owner of the thing, or even to take it for so much as a moment out of his presence or premises. Thus it suffices if a servant remove his master's goods merely from one part of his shop to another, intending to offer them to him for sale, ^ or wrongfully put the master's axle into the master's own furnace in order to melt it ; ^ for it is as effective a deprivation of him to make him pay the value of his own goods or to destroy the character of his axle as to run away with them.^ So on the other hand there need not be any intention to keep or use the thing even for a moment for the accused's own use, unless in the most technical sense of use. Thus it may suffice if his intention is merely to give the thing away * or instantly to destroy it,^ or even to apply it wrongfully to the master's own use,* as in the case of a groom giving too much corn to his master's horses before the Statute 26 & 37 Vict. c. 103. It seems somewhat doubtful whether an intention to exact a reward from an owner as the condition of restoring to him a thing which he has lost is sufficient.^ It woxdd seem that an ' Hall, 1848, : Den. 381 ; Manning, 1852, Dears. 21. '' Eicharde, 1844, i C. & K. 532 ; cp. Wetb, 1835, i Moo. 431 ; Pool, 1857, Dears. 345. ^ Cp. as to a civil conversion, Fouldes v. "Willoughby, 184T, 8 M. & W. 640; Fenn v. Bittleston, 1851, 7 Exch. 152. 4 White, 1840, 9C. &P. 344. = Cabbage, 1815, E. & E. 292. " Mdrfit, 1816, E. & E. 307 ; Privett, 1846, I Den. 193; Handley, 1842, C. &M. 547. ' Wynne, 1786, : Leach, 413 ; Peters, 1843, i C. & K. 245 ; York, 1848, I Den. 335 ; Gardner, 1862, 9 Cox, 2-3. Chap. III. § 20. THE ACT AJSfD INTENTION IN THEET. 225 original intention to keep the thing in all events unless a re- ward shall be given would comprise every technical requirement for this part of an animus fur andi, but that a mere intention to detain it for a greater or less time in the hope of a reward being offered would not be sufficient, especially if there were no proof of an intention to require an exorbitant reward.^ %. As to the intended finality of the deprival and appro- priation. The English law does not follow the rule found in Gains and the Institutes and adopted in some modern systems of law, that an intention of mere misuse or of temporary deprival is sufficient for theft ; but it requires an intent of final deprival and appropriation. Thus, if the jury believe that the accused took a horse with the iatention of using it for a time and then returning it, they cannot in general find him guilty of theft by that takiag ; and there seems to be no limit ia English law to the length or extent of use or misuse which a man may mean and carry out in such a case without being guilty of theft, so long as he intended to return the thing, except the difficulty of convincing the jury of that intention.^ There are, however, some dicta ^ on which an argument might be founded to the effect that if the accused took the horse for such use or even used it in such a manner as would probably result in its destruction or loss to the owner, an intention to cause such destruction or loss might be inferred. And where the purpose to which the thing is intended to be applied is of itself an exercise of complete ownership and wHl, when effected, put it out of the power of the accused to return the thing except upon the happening of some contingency, as where a person improperly takes plate and pawns it, intending at some future time to redeem and restore it, the conclusion of an intent of final deprival and appropriation can hardly be negatived except by proof of ability, or at least of reasonable ^ Cp. Watts, 1844, I Cox, 349, where the question was suggested but not decided whether it would be sufficient to obliterate marks on wreck with intent to obtain salvage under the old law. 2 1801, Philippe, 2 East, P. 0. 662 ; Dickinson, 1820, R. & E. 420. ' 1801, Philipps, &wp. 226 POSSESSION AND TRESPASS. Part III. belief of ability as well as intent, to redeem and restore.^ And wbere a person took a railway ticket, he was convicted of theft, notwithstanding its return to the company at the end of the journey, for its value was then exhausted.^ The general conclusion as to this part of the subject seems to be that the required intention of deprival and appropriation is an intention to assume the exercise of dominion or general property over the thing, as distinguished from an intention to assume the exercise of such rights as might be exercised by a bailee or servant, or as might be given by the owner to another person without extinguishing his own general property.^ Nor does there seem to be any considerable danger in adopting such a rule, for if the accused assumed an apparent dominion over the thing, it will be for him to establish an original limitation of the intended dominion against the strong pre- sumption arising from apparent assumption of general dominion. Note. — A question may arise where money has been taken, and there is clear pi-oof of an intention to restore it in a short time. If a shilling is taken and the intention was to restore a different shilling in five minutes, it would seem that the theft is technically complete (cp. "Wells, 1858, i F. & F. 109) ; and that if it were otherwise, no consistent definition of theft would be possible unless by treating such cases as exceptional. Wrongfulness of the intention. Next as to the second element, or wrongfuLness of inten- tion. (i) As to the knowledge or belief that the proposed disposal of the thing will be against the owner's will. This part of the animus fur andi seems not to require further explanation, beyond the mere distinction of it from the fact of the owner not con- senting. If the owner did not in fact consent, there is yet ' Phetheon, 1840, 9 C. & P. 552 ; Medland, 1854, 5 Cox, 292 ; Trebiloock, 1858, 7 Cox, 408. ^ Beeoham, 1851, 6 Cox, 181. ' E. g. a right of partial destruction or abusus. See mp. ; Trebiloock, 1858 ; Pool, 1857 ; Hall, 1848; Holloway, 1848. Chap. III. § 20. THE ACT AND INTENTION IN THEFT, 227 no theft if the accused honafide believed on reasonable grounds that he did consent ; and on the other hand, if the owner did consent to the change of property, there is no theft though the accused believed that he did not consent. (2) As to the absence of a claim of right. It is not easy to determine what claim of right will exclude theft. It seems that a conviction for theft was in one case ^ obtained against gleaners; but there may have been circumstances of ag- gravation which are not stated. On the other hand, in the case of a poacher taking back wires and a pheasant which had been seized by a keeper^ an acquittal was directed ; ^ and in Holloway^s case^ a poacher was allowed to be acquitted on a charge of stealing a keeper^'s gun in a scuffle^ on the ground that he might have taken it merely in the appre- hension of personal danger. East * says, ' if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the court will direct an acquittal ; for it is not fit that such disputes should be settled in a manner to bring menu's hves into jeopardy.^ ^ Mere necessity is not a sufficient claim of right.^ It would seem that a mere bona fide claim of right to the thing itself might not be held to exclude theft if there is no such claim of right to do the act by which it is obtained. Note. — Cp. as to forgery, Hoatson, 1847, 2 C. & K. 777 : 'The prisoner's was a wrongful act whereby others might be damnified. In one respect the case may be said to be one of misfortune, inasmuch as perhaps the prisoner considered himself entitled to the transfer; he had most likely contemplated helping himself by wrong to what he thought his right. I can, however, perceive no reason for doubting that the act involved a fraud ' : — per Rolfe, B. ; cp. also Hamilton, 1845, i Cox, 244, commenting on Williams, 1836, 7 C. & P. 354, where a servant's acquittal was directed who by false pretences had obtained goods from his master's debtor in order to reimburse the master. ' 2 Euss. 165. " Hall, 1828, 3 C. cfe P. 409. = 1833, 5C. &P. 524. ' 2P. C. 659. » Cp. : Hale, 50S. " Hawkins, i, 33, 33. See Reg. r. Dudley, 18S4, 14 Q. B. D. 273. 228 POSSESSION AND TRESPASS. Part III. (3) As to lucri causa. There remains the question whether the animus furandi is not incomplete unless gaia or advan- tage was an object of the accused. It is conceived that, at least in. the case of theft against a general owner, the modern cases ^ have settled that hicri causa is immaterial and that motive does not form any ingredient of the defi- nition of theft. Special cases. Theft from bailee. Theft by owner. Theft from stranger. There remain the less common cases, — (i) Where a thing is alleged to have been stolen by a stranger from a bailee or other person having a limited interest, (a) Where a thing is alleged to have been stolen from a bailee by the general owner (or bailor). (3) Where a thing is alleged to have been stolen from a person who had no proprietary right but only the title of actual possession as against wrong-doers. (i) In a theft by a stranger from a bailee or other person having a limited interest, the required animus furandi appears to have reference to the right of property of the general owner, and not to the limited right of the bailee* If the bailee has the thing to use for a month for his own benefit, and a stranger takes it from him intending to withhold it for the rest of that month, and then to restore it, it would seem that this temporary appropriation is not constituted a theft even against the bailee by the fact that it is a final deprival and appropriation as against him ; for it is not meant to be final or complete as regards the taker, or as against the general owner. There is also some difficulty as to the ingredient of knowledge that the appropriation will be invito domino. Apparently it must here be construed to mean a knowledge ' Suf. ; Cabbage, 1815, E. & E. 292 ; Morfit, 1816, E. & E. 307 ; White, 1840, 9 C. & P. 344; Wynn, 1848, i Den. 365. Chap. III. § 20. THE ACT AND INTENTION IN THEFT, 229 notj as in ordinary cases, that the person against whom the theft is alleged to have been committed and in whom therefore the possession is laid, dissents, but merely a know- ledge that some dominus, either general or limited, dissents; for if it were essential that the bailee should dissent, then a stranger might in collusion with the bailee steal the thing without being liable to the general owner. (a) The case of a theft by a general owner from a person who is his bailee or who otherwise has a possession coupled with an interest, or from his servant, is still more obscure. The possibility of such a theft seems not free from doubt. In the case of a master charged with stealing his own goods from his servant, there seems to be no room for an animus furandi at all similar to that which is required in ordinary cases, and East^ endeavours to supply its place partly by a fiction of special property (apparently by way of estoppel) and partly by an intent to charge the hundred. So where the owner is charged with stealing from his bailee ^ or from the sheriff, some of the old authorities supply the animMS furandi by finding an intent to charge the bailee in detinue^ or to render him liable at the suit of the crown,* or by other special intents of damage to the bailee or gain to the accused.^ The bailee or sheriff has a limited property, and the general owner assumes to exercise an absolute dominion which he is not at the time entitled to exercise, knowingly against the will of the temporary dominus and without claim of right ; but whether this is suffiicent, qucsre. (3) In theft by a wrong-doer against a person who has merely the possession, animus furandi seems to be the same as in ordinary thefts, for as against the wrong-doer the pos- session of the prosecutor is equivalent to a general property. » 2 P. C. 654. ^ Webster, 1861, 31 L. J. M. C. 17. ' I Hale, 513, not supported by any of the references. * Cp. Wilkinson, 1821, E. & B. 470. » See Bramley, 1822, E. & E. 478. CHAPTEE IV. Things not the subjects of Theft. ^ 21. Of what things trespass or theft cannot be committed. Incapacity of a thing for being a subject of theft results not in general fi-om any special or arbitrary rule of law, but from the exclusion (by the nature or situation of the thing) of some one or more of the general and necessary ingredients or conditions of trespass or felonious intention. Accordingly the jDrincipal instances of such incapacity are not exceptions from the general principles, but rather negative illustrations of them. But as in some cases doubt exists as to the true ground of incapacity, and in other cases there are several grounds for the incapacity, and in one case at least the incapacity rests on a special or arbitrary rule, it is necessary to indicate the cases in which one or other of the essential ingredients or conditions of trespass is wanting, and those in which theft is excluded by a special rule. . I. Inasmuch as trespass to goods involves a taking from another^s possession, it cannot be committed by severing and carrying away part of the soil or a fixture or growinop cropj^ for such things are not moveable or in possession till they are severed, and the taking cannot be a wrong to possession which did not exist. Nor is it a wrong to a right to pos- session, for such a right cannot exist until the thing is in a state in which possession may be exercised over it, and in this case no such state precedes the taking.^ Accordingly the ^ The remedy was by special writ qu. cl. fr. and alleging the particular wi'ong and now is by action of trespass to land. Crops may be personal goods and iihattels in the sense that they pass to the executor. Qu. as to taking a tree in a pot or the fruit growing on it. " See Townley, 1870, L. R. i C. C. 315, where the rule was applied in the case of rabbits. Chap. IV. § 21. THINGS NOT THE SUBJECTS OE THEFT. 231 possession of the taker is not trespassory, and he cannot commit trespass or theft either by the first taking or by a subsequent conversion or misappropriation. If however he abandons or is deprived of his possession^ he becomes hke any other stranger^ and a resumption of it may be a trespass. And now by various statutes the rule has been abrogated or modified in nearly all important cases of the kinds above mentioned. It was formerly supposed that the mere leaving of the thing by the taker on the owner's premises for a time^ of itself vested a possession in the owner so as to make a re-occupation by the taker a trespass and {animus fwrandi being present) a theft. But it seems clear that such a relinquishment is merely evidence of an abandonment general or to the owner, more or less conclusive according to the circumstances.^ On the same ground trespass or theft cannot at common law be committed of living animals ferae naturae unless they are tame or confined. They may be in the park or pond of a person who has the exclusive right to take them, but they are not in his possession unless they are either so confined or so powerless by reason of immatiirity that they can be taken at pleasure with certainty. An animal once tamed or reclaimed may continue in a man's possession although it fly or run abroad at its will, if it is in the habit of returning regidarly to a place where it is under his complete control. Such habit is commonly called animus revertendi. It is to be noted that the taking of an animal ferae naturae found at large, though in fact having an animus revertendi, will not be theft if the taker had not the means of knowing that it was reclaimed, not because there is no trespass, but because an essential ingredient of animus furandi is excluded by his ignorance that there was an owner. In some cases ' Hale, p. 510, instances ' an hour's time or so.' " See Townley's case, uU sup. ; esp. per Blackburn J. 232 POSSESSION AND TRESPASS. Part. III. also theft is excluded by reason that the taking is constituted a lesser offence by statute.^ The exclusion of wreck^ treasure- trove and waif ^ may be ascribed either to this rule or to the wantj through the non-appearance of any owner^ of that knowledge that the appropriation will be invito domino, which is essential for animus ftirandi. %. Again, theft involves an intention of wrong to some person^s right of property, and therefore it cannot be com- mitted of things which are incapable in law of being subjects of property; viz. the human body, alive or deadj^ nor of such animals as are not only feme naturae but also unfit for the food of man and incapable of domestic or other practical service;* nor of things which are capable of being subjects of property but are not actually reduced into property.^ In a country where most things capable of being subjects of property are appropriated, probably the only examples of this class are animalia vagantia, fishes and wild birds, and beasts of such kinds as may become subjects of property. On the same ground, thirdly, are excluded things which have once been reduced into property but the property in which has been lost. Probably the only examples of this class are wild animals which have been reclaimed, or confined but have again become wild, and gases or other similar matters which have escaped. ^ ' See generally Staundf. t i6 ; 3 lust. 108-9 ! ^ East, P. C. 607 ; 2 Euss. 278-82 ; E. v. Shiokle, 1868, L. E. i C. C. 158; E.u. Eoe, 1870, 22 L.T.N.S. 414; E.V.Cory, 1864, 10 Cox, 23. ^ Year-b. 1348, 22 Ap. p. 107. pi. 99. See generally as to these cases, I Hawk. 33, 38; 2 East, P. C. 606, 650; 3 Inst. 108 ; 5 Eep. 107-8 ; 7Eep. 15-6; Tin. Ti'esp. p. 475 ; Wreck, p. 539-42 ; Waife, p. 409 ; Prerog. p. 576-7 ; Bac. Tresp. p. 564-577 ; Trover, 683, 695, 706 ; Biddulph v. Ather, 1755, 2 Wils. 33 ; Dunwioh (Bailiffs) v. Sterry, 1831, i B. & Ad. 831; Smith v. Millea, 1786, I T. E. at 480. And as to sea-weed, E. v. Clinton, i86g, 4 Ir. L.E., C. L. 6; and as to treasure-trove, E. v. Thomas, 1863, 33 L. J. M. C. 22, L. & C. 313. ^ See however 3 Inst. 108, where Lord Coke makes the incapacity of a ward or villein for being stolen depend on their being ' in the realty.' Quaere as to surgical or other preparations, and as to mummies or bones imported from abroad. * Singing-birds may be subjects of property on the ground of their use for pleasure. Year-b. 12 Hen. VIII. p. 3. ^ Nul poit dire 'feras suas.' 12 Hen. VIII. p. 3. ° See as to theft of manufactured gas. White, 1853, Dears. 203. Chap, IV. §21. THINGS NOT THE SUBJECTS OP THEFT. 233 Lastly^ either by this rule^ or by an extension of the rule as to landj charters and other docTiments of title to realty are excluded at common law, together with the boxes containing them.i A piece of land is the property not of any indi- vidual but of a man and his heirs or otherwise according to the particular limitation, and even so what is owned is not so much the land itself as an estate in it ; and the charters of title follow the estate and are not the property of any person apart from the estate. On a forfeiture of goods by any person the charters of title of his land are not forfeited, for otherwise the estate would be forfeited with them. Accordingly they are not i?t bonis of any person, and though special trespass lay for taking them as charters ia possession, general trespass did not lie (nor therefore does theft at common law) for taking them as goods or property. And the rule has in modern times been extended to records concerning the land, though not of title.^ 3. Again, theft cannot be committed of things of no value. A thing may be of no value in fact or of no value in law. Things of no value in fact are such as are of no value to sell or exchange, and are of no value to the owner by reason that they can be replaced without expense or trouble.^ If they are of some value to the owner it seems not to be necessary that they should have originally cost anything, but cost may be evidence of value.* The value need not amount to a farthing.^ A piece of paper is sufficient, though spoiled or defaced by manuscript, print, or designs.* Things of no value at common law are documents which are merely evidences of rights, agreements, or other choses in action. Their value in fact as paper or stamps was held to be merged in their ' 10 Edw. IV. p. 3, Inst. p. 108. Another reason given in the Year-book is that they cannot be valued. See inf. 3. ' Westbeer, 1740, i Leach, 12. Quaere whether the rule extends to heir- looms, or to copies or counterparts. In Powell's case, 1852, 2 Den. 403, the question was raised but not decided whether the rule extends to mortgage deeds. 2 Clarke, 1810, 2 Leach, 1036. ' Morris, 1840, 9 C. & P. 349. ° Perry, 1845, i Den. 69. ' Guernsey, 1858, i F. & F. 394. 234 POSSESSION AND TRESPASS. Part III. evidentiary character.^ But this rule is subject even at common law to the limitation that if the document is so iatrinsically imperfect as to be inoperative, it is not a chose in action but is remitted to its material character as a mere paper parchment or stamp as the ease may be and therefore may be a subject of theft. Such is the half of a bank note, or an entire promissory note which has been satisfied and which, though re-issuable, has not been re-issued. ^ But the mere want in an agreement of the requisite stamp has been held by the judges^ not to constitute such an imperfection, when the stamp might be afSxed at any time and the agree- ment was not absolutely void for want of it. Again, bills, notes, orders, and many other valuable securities or instru- ments which are within the rule at common law, have been taken out of it and made subjects of theft by statute : but in order that the statutes may apply, the instrument must be so far complete and operative as to satisfy the statutory denomination which is alleged in the indictment,* and failing this it is remitted to its character at common law either as a chose in action or as a piece of paper as the case may be. It has been held that a satisfied but uncancelled note (though apparently not a chose in action but mere paper at common law) is still a note within the statute 7 Geo. 3. c. 50, so that in this case an indictment woidd seem to be good either on the statute or at common law.^ It seems once to have been held that the statutes did not extend to protect notes &c. whilst they remained in the hands of the maker, on the ground that until issued they are not available to give any ' 8 Eep. 33, but cp. 1 2 Eep. 2; Chanel v. Eobotham, 1606, Yelv. 68 (bonds) ; I Hawk. 33, 35 ; 2 East, P. C. 597 ; Watts, 1854, Dears. 326 ; Walker, 1827, i Moo. 155 (records of a court, not concerning land); Powell, 1852, 2 Den. 403 (Mortgage deeds). ^ Mead, 1831, 4 C. & P. 535 ; Clarke, 1810, E. & E. 181, 2 Leach, 1036; Vyse, 1829, I Moo. 218. ^ Watts, ubi sup, Parke B. dissent. ' Pooley, 1800, E. & E. 12; Aslett, 1804, E. & E. 67, 2 Leach, 958; Yates, 1827, I Moo. 170 ; Perry, 1845, i Den. 69 ; cp. Hart. 1833, 6 C. & P. 106. N.B. in some of these cases there was no count at comijion law. ' Eansom, 181 2, E. & E. 232. Chap. IV. §21. THINGS NOT THE SUBJECTS OF THEFT. 235 person a right which he would not otherwise possess, but it is now settled that the statutes apply in such a case.^ The rule itself has been held not to apply to documents which are evidence not of mere rights of action but of title to specific goods of which the holder of the document has a legal right to possession as against the thief, as in the case of a pawn-ticket.^ A railway ticket in the hands of the company's servant hefore isme has been held a subject of theft. ^ The reason of the rules as to value is obscure. They may not improbably be traced to the ancient doctrine that a motive of gain {lucri causa) was necessary for theft. Or they may be an indirect result of the old distinction between grand larceny/ of things over the value of twelve pence, and petty larceny. Especially in the case of documents the latter explanation seems probable, for the value of the parchment or paper would seldom have amounted to twelve pence in the times when the rule arose. 4. There remains the special rule which excludes some things on the ground of their vileness in the view of the law. Dogs,^ cats,® ferrets,' and some other animals ^ are by common law incapable 'in respect of the baseness of their nature'^ of being subjects of theft, although they may in some cases be subjects of property and possession and of value and capable of being subjects of civil trespass.^" The definition of this class is very uncertain. The most probable view appears to be that it includes as a rule all animals which are both ferae naturae and unfit for food, even though they are useful for domestic or other purposes. But bees and ' Walsh, 1813, E. & E. 215, 2 Leach, 1061; Metoalf, 1835, i Moo. 433 ; Heath, 1838, z Moo. 33. Cp. Phipoe, 1795, 2 Leach, 673. 2 Morrison, 1859, Bell, 158 ; 28 L. J. M. C. 210, ' Beecham, 1851, 5 Cox, 181. Cp. Boulton, 1849, i Den. 508, as to false pretences. ' Stat. Westm. I. c. 15. = See Eobinson, 1859, Bell, 34. I! 3 Inst. 109. ' Searing, 1818, E. & E. 350. ' See 3 lust. 109 ; i Hale, 513 ; Hannam v. Mockett, 1824, 2 B. & C. 934. ^ 3 Inst. 109. '" Year-b. 12 Hen. VIII. p. 3. 236 POSSESSION AND TEBSPASS. also hawks and falcons of kinds useful for sport are excepted from the rule at common law. And now by statute^ the rule is abolished as to any ' bird^ beast or other animal ordin- arily kept in a state of confinement or for any domestic purpose/ ' Larceny Act, 1861, bs. 18-22. In the United States the imposition of a dog-tax has in some jurisdictions been held to amount to a statutory declaration that dogs are valuable property, and thus to abrogate the common- law rule. See Commonwealth v. Hazlewood (Kentucky, 1887), 23 Reporter INDEX. By F. Pollock and Fbancis E. J. Smith B.A. (New College, Oxford.) [P. = Possession.] Abandonment, what is, 44, 183. — can P. be divested by wilful acts of, 124, 145, 231. Accession, P. by, 125. Accident, P. acquired by, 109. Administrator, property of in intes- tate's goods, 128, 146. Advowson, P. of, 54. Agency, fraudulent simulation of, 107, III. Alfred, king, fable of his banging judges, 9. Animals, P. of, bow and when com- menced, 37, 124, 125, 126. — wild, cannot be stolen at common law, 231, 232. — of base nature, 235. Animus furandi, effect of, 142, 144, i57j i^S, 18?. 205. 207. — may prevent real delivery, 218. — its elements, 223. • — what intent required for, 224. — wrongfulness of intent considered, 226. — advantage need not be shown, 228. — must refer to the general property in the goods, Semite, 228. — in relation to reclaimed animals, 231- Animus possideudi, 13. Animus revertendi, evidence of, con- tinues the P. of tame animal.', 231. Asportation, what amounts to, 215. Attornment, 52, 55. — transfer of P. in goods by agree- ment of, 73. — necessary to complete seisin of dis- seisor of land not in demesne, 88. — bailment by, 134, 161. — of vendor's bailee to vendee, 189. B. Bailee, ground of right of, to complain of interference with his P., 123. — P. of, 9. — P. of distinguished from custody of servant, 59. — theft by, 158, 189, 204, 222. from, 166, 228. ^- rights and liabilities of, 165. — when entitled to sue in trespass concurrently with bailor or ex- clusively, 166. — may have power of sale, 162. — position of persons receiving from, 169-70. — of vendee, vendor in P. may be, 188. — of vendor, P. of, 190. — of co-owners, himself a co-owner, P. of, 212-3. Bailment, obtained by fraud, 204. — delivery on, 58, 131. — when determined by wrongful act 132. 23S INDEX. Bailment, definition of, i6o, 163. — obtaining goods by trick under pretence of, 204, 220. — of tbing to be used in deliverer's presence, 160. Bank notes, tbe subject of theft by statute, 234. Bankrupt, goods in P. of, without owner's consent not assets in bankruptcy, 69. Baniruptoy Act, order and disposition clauses of, 69, Beutham, Jeremy, his questions on P., 6. Bill of Exchange, statutory, of theft, 3 34- Bill of sale, questions as to P. under, 65, 69, 70, 79. Bills of lading, transfer of P. by transfer of, 63. — one part of, -prima Jacie evidence of title, 113. Body, human, incapable in law of being subject of property, 232. Boundaries, evidence as to, often to be found in acts of ownership or local custom, 30. — questions as to in India, 3 1 . Bracton on seisin of freeholder and termor, 48, 52. Breaking bulk, doctrine of, 133, 165, 185, 223. Broker, P. of, 162. C. Capture, of wild animals, 125. Carrier, delivery to, 59, 71, 74, 130, 220. Chattels, mistake in delivery of, 100 sqq. — recapture of, 114. Common, tenants or owners in, trespass between, 87, 212. — nature of their P., 21, 27. Connivance of owner in theft dis- tinguished from mere knowledge, 222, Consent of owner precludes theft, 219. Consent, of unauthorised agent, 217^ 221. — effect of, 226-7. 'Constructive delivery,' 72. Constructive P. (see Possession). Control, where sufficient to entitle to P., 37 sqq. Conversion, what is, 5, 121. — by bailees, now criminal, 133, 146, 222. — definition and essentials of, 177, 179. Co-owners, how far trespass and theft possible between, 212. Copyholder, P. of, 49, 56, 57. Custody, what, 26. — bare, distinguished from authority or interest, 154. ' Custody of the law,' 83, 144, 201, 203. — of servant, 138. Custom, to convey without livery, 57. Customary, rights, P. of, 36. D. Delivery, what is, 43, 46, 57, 129. — favoured in law, 44. — ' symbolic,' 53, 54, 61, 65, 67. — on sale of goods, 63. — of key of trunk, etc., 62. — of part of goods, effect of, 70. — constructive, 73 sqq. by seller holding on account of buyer, 72. by attornment of agent, 73. by bailee or servant holding as purchaser, 74. — of chattels, classified, 129. — by way of bailment, 131 sqq. — by owner to servant, 138 sqq. — when it constitutes bailment, 161. — effect of gift without, 198. — obtained by fraud, 204, 218, 220. Detention, P. presumed from, 30. — or de facto P. is effective control, 1 2 Disseisee, his rights, of entry and action, 50. Disseisin, 84. — assize of novel, 36, 48, 49, 56, 83. — at election, 88 sqq. INDEX. 239 Disseisor, seisin of, 50. — estate of, 94. Distrainor, does not possess, 82, 202. Distress, P. of owner in case of, 82. — history of, igg. — trespass by irregular, 201. Documents of title cannot be stolen at common law, 233, 234. — secus as to documents of title to speoifio goods, 235. Dogs, cannot be stolen at common law, 235. Dominion, value of acts of, 31. Donatio mortis causa, 62, 63. E. Ejectment, action of, 85. — remedy for wrongs aifecting right to possess land, 28, — founded on right to possess, 91. Elegit, writ of, its operation, 83. Embezzlement, 130, 148, 158, 167, 191, 198. Entry, what amounts to, 79j 90. — with or without claim of title, or by licence, 50, 80. — forcible, oflfence of. Si. Execution, taking of goods or land in, 82, 83. — property taken in, held to be in custody of the law, 18, 203. Executor, P. of, 127. P. Factor, delivery to for sale, constitutes a bailment, 161. False pretences, obtaining by, 101, 131, 158, 204, 219. — statutory misdemeanor, 158. Finder of lost or apparently lost goods, position of, 40, 149, 150, 172, 177, 180 sgg'., 211. Finding, right to P. by, 39, 40, 84, 124. — of thing absolutely abandoned per- haps original acquisition, 124. Fish, capture of, when complete, 37, 126. Fixtures, severance from soU and tak- ing away does not constitute theft, 231. Force, when justified in retaking one's goods, 115, 159. Foreshore, P. of, 33, 34. — unauthorised occupation of new, a trespass against the Crown, 46, 149. Fraud, effect of, on delivery, 76. — delivery obtained by, loi, 203, 218, 220. Frauds, Statute of, s. 17, acceptance and receipt under, 64, 71, 73. Fraudulent intent, meaning of^ a, applied to theft, 223. Freehold, abeyance of, 46. — seisin of, compatible with P. of termor, 48. Freeholder, rights of a disseised, 50. Furniture in a room held to pass by delivery or restitution of key, 66. G. Gas, escaped, incapable in law of being subject of property, 232. Gift, of chattels, without delivery, 58. ■ — effect of on right to possess, 198. Goods, in building or on land, P. of, 38 sqq. — delivery of, 57 sqq^., 62, 64. — delivery of part of, 70. — acceptance and receipt of, on sale, n- — recapture of, 81, 114. Guest, has not P., 58, 140. H. House, P. of goods in, 38, 40. I. Incorporeal hereditaments, seisin of, 35- 54- Innkeeper, special property in, 186. Intention, of appropriation necessary to constitute animus ftirandi, 109, 223. 240 INDEX. IntentioB, how far a neceasary element in acquisition of P. by taking, 208. — wliat is, 234. [See Animus fwandi.^ ' Jus tertii,' when available as defence, 92, 148. Justification of trespass, 78. Key, effect of delivering, 61, 63, 64. — delivery by, 65, 66, 68. King, his P. of the crown, 36. — grant to, or by, how effected, 6 1 ». L. Land, goods on or in P. of, 40 sqq. — occupation of or entry upon, 45. — seisin and P. of, 48, 50, 52. Larceny, by fraudulently taking ad- vantage of mistake, 109, 112. — by infant as bailee, 160. — when taking apparently lost goods can be, 181, 185. — grand and petty, 235. — what things not subject of, 230 sqq. Law, ' seisin in law,' 50. — seisin by act of, 127. Lessee, for years, P. of, 48, 49-53. Licence, entry by, does not change P., 80. Licensee, custody of, 58, 140. Lien, only coexists with P. or right to P., 213. Limitation, Statute of, 90. ■- its operation on possessory titles, 87, 95 sqq. — doubt in some cases in whose favour it operates, 99. Livery, of seisin, 50, 51. — in law and in deed, 50, 51. — advowson and rent once thought to lie in, 54. Loss of goods, its effect on P., 124, 170, 177, 180. Loss, apparent, distinguished from real, 180, 186. M. Master, servant has generally only custody of his goods, 59. — acquisition of P. by, through servant, 60, 191. — when servant is bailee for, 60, 167, 191. 195. — theft from, by servant, 191. Minerals, property and P. of, 49. — separate P. of, 86, 87. Mines, P. of, 34, 86, 87. Mistake in delivery of chattels, effect of, 75, 100 sqq., 205. — as to interest to be transferred, lOI. — as to identity of thing, 102. — as to persons, 106. Mortgagee, taking of P. by, 79. — attempt by, to take P. before default, 80. Mortgagor, of goods, P. of, 199. Notes, promissory, etc., theft of, 234. O. Occupation, absolutely exclusive, no- where possible, 12. — what acts amount to, 31. — considerations in deciding effective- ness of, 13, 14. — if not apparently exclusive, no evi- dence oi de facto possession, 35. — possession by, 124. OwnersMp, generally includes right to deal with P., 2, 25. — acta of, their effect as evidence, 32, 33- Partners, at Common Law no theft or trespass between, 212. — statutory exceptions, 213. INDEX. 241 Plaat, severance of, from soil, 124, 125. Possession, an ambiguous term, i. — right to, confused with right of, 2. — legal protection of, 3. — why no express head of in our books, 4. — discussion of by Bentham, 6. — matter of fact or of right, 10. — a question of mixed law and fact, 10. — de facto, not merely corporeal, 11. must be effective, 12. may depend on consent or reputa- tion, 14. — distinction of legal from physical, 6, 16, 26, 119. — in law may be retained without de facto P., 17, 19. with intent of exclusive dominion imports P. in law, 20. — presumed from or implied in de- tention, 20. — singleness of, 20. — transfer of, 21, 43, 123. — evidence of right to P., 22. — is a root of title, 22. — follows title when detention disputed, 24, 79- — evidence of ownership, 25, 32. — right to, 27, 145. — ' actual,' or ' bare,' 27. — 'constructive,' 25, 27, 145. — 'lawful,' 28. — legal, may exist with or without detention and with or without rightful origin, 26. — of movables and immovables, 29. — of surface and minerals separable, 29. — occupation and use as evidence of, 30. — partial use, when evidence of, as to whole 31, 32. — non-exclusive use will not prove, 35. — of incorporeal hereditaments, 35. — what things capable of, 36. — enjoyment of customaryrightscalled, 36. — of goods, 37. — by occupation, 46. Possession, seisin formerly synony- mous with, 47. — of freeholder, 48, 49. — of tenant for years, 48, 52. — of cojjyholder, 49, 57. — of disseisor, 50. — under Statute of Uses, 55. — of goods, how transferred, 57. — of servant as bailee, 60. — by means of documents of title or keys, 62. — as distinct from property, is subject of ' acceptance and receipt,' 71. — change of, by 'constructive de- livery,' 72. — change of, without consent, 77 sqq. — of mortgagee, 7g. — of trespasser, 80. — of sheriff talking in execution, 83, 200 sqq., 229. — tends to be supplanted by title in modern law, 83. — existing, not affected by non-adverse or ambiguous acts, 86. — old doctrine of ' non-adverse,' 89. — as root of title, 91 sqq. — right to, if shown to belong to third person, available as a defence to action for redress if actual P. not disturbed, 91. — discontinuous, not available as title, 97- — witliout title, confers no right after it has been lawfully determined, 99, 148. — of chattels, intention to pass by de- livery, loi. — effect of mistake in transfer of, loi sqq. — of unknown valuables contained in things delivered, 109, 206, — of goods, general rules as to, 157. — meaning of, 118. — acquisition and transfer of, 123, 126, 127. — the kinds of delivery of, 129. — of servant receiving for or from master, 130, 138. —of bailee, 131, 133. 242 INDEX. Possession, right to ia not exclusive, 146. — rights conferred by, apparent, 147, 158. — of finder, 171, 177. — of master, when thing received by servant, 191, 195. — right to, if shown to belong to third party through whom defendant does not claim, not available as defence for wrong to P. itself, 91, 148. — acquired through unauthorised agent, when trespassory, 217. Post-office, mistakes of servants of, their effect as to property passing, III, 113, .206. — official not so much a bailee as cus- todian for sender, 164. what constitutes theft by, 216. Pound, an indifferent place as between owner and distrainor, 82, 200. Prescription, operation of with regard to P., 23. Property, used as synonym of P. or right to P., 5, 27, 122. Purchase-money, of land sold with only possessory title, right to, 97. Purchaser, innocent, may be defeated by execution creditor, 83. E. Railway ticket, before issue the subject of theft, 235. — notwithatandirg re-delivery after journey, 226. Kecapture, title to chattels by, IT4. Receiver, P. of, in case of land, 83. ReceiTing, statutory crime of, 146, 152, 158. Registration of title, effect of, on doctrine of P., 83. Remainderman, P. of, 50, 54. Rent, seisin of, 52. — the subject of P., 36. — how one may be disseised of, 88. Right, claim of, how far a ground of defence, 227. Sale, change of P. upon, 187 sqq. — does not transfer priority of contract, 189. Sea, things cast up by, 42. Seaweed, collection of from the shore, original acquisition, 124. Seisin, originally coextensive with P., 20, 47. — now only used of P. of a freehold interest, 47. — of Crown, offices, etc., 36. — 'in law,' and ' in deed,' 50, 52. — livery of, 50, 51. — how affected by Statute of Uses, 55 «?2- — acquired from disseisor, 75. — of person entering through window, 79- — not acquired by entry without claim, 80. Servant, theft from, 122. — does not possess, 56, 58, 59, 60. — delivery to and custody of, 18, 138, 162, 167. — theft by, from master, 191, 195, 216. — embezzlement by, 130, 158. Sheriff, P. of, its character, 82, 144, 203. — theft from by owner query possible, 229. Ship, P. of, 29. Slave, relation of master and, whether ground of distinction of servant and bailee, considered, 58. Special Property, mei'ning of 5. Stoppage in transitu^ 62, 72, 74j I9°> 214. T. Taking, acquisition by, under title, 78, — under authority of law, Si, 126, 199. — for true owner's benefit, 84. — wrongful, 84, 152. (See Trespass). — without intention, 210. (See Zoss, Findir.) INDEX. 243 Taking, what is, in criminal law, 215. — direct or indirect, 216. — by unauthorized consent, 217, 221. Tenants in common, no trespass be- tween, 87. Tenants, joint, have only a single P. and single right to P., 21, 27. — tenants in common, P. of, 21, 27. — trespass between, 87, 202. Term of years, P. of tenant for, 48. Theft, relation of P. and trespass to, 5, 117 sqq. (And see Larceny?) — what theft is generally, 118. — under pretence of bailment, 132. — of master's goods from servant, 139. — from master, by servant, 191. — statutory, by bailee, 158. — suggested simplification of law of, 159- • — bailees now liahle to penalties of, 165. — by dishonest finder, 172, 181. — from vendor remaining in P., 188, 189. — from servant during transitus, 197. — by fraudulent alienee, 204. — the act and intention which con- stitute, 215 sqq. — excluded hy owner's consent, 219. — how far excluded by claim of right, 227. — from bailees, etc., 222, 228. — of what things not possible, 230 sqq. — of goods of intestate before letters of administration, 128. Timber, on sale of standing, what is actual receipt, 73- Time from what date or event it runs against true owner, 89. Title, how far synonymous with P., 2. entry without, limited effect of, 12. — when P. follows, 2, 24. — entry or taking under, 78. increased importance of in modern law, 83. — founded on P., 91, 93> 96- — possessory, devolution of, 96. Title, parliamentary, what is, 95. — documents of, cannot be stolen at common law, 233. — of things of no value, impossible at common law, 233 sqq. Trespass, action of, who can maintain, 52S. — for what disturbances it lies, 35, 37 ij. — action of, not maintainable on sta- tutory possession, 56. — where freehold in abeyance no action of, 46. — justification or excuse of, 78. — ah initio, 78, 131, 144, 201. — whether forcible entry of true owner is, 81. — who can sue in, 82, 93, 121, 145, 147, 166, 175, 190, 201. — must amount to ouster as between tenants in common, 87. — varieties of, 121. — to testator's goods before probate, executor may sue for, 127. — by relation, 129. — by bailee, when possible, 131, 135, 137. — de bonis asportatis, elements of, 141. — continuing, 142, 143. — by finder, 172. — by lord in levying distress, 201. — innocent, 210, 212. — severing part of soil, etc., is not trespass to goods, 230. Trespasser, delivery by or taking from, 151- Trover, action of, founded on im- mediate right to possess, 5, 28, 92, 121,150, 151. — both bailor and bailee can maintain, 93. 145- Value, at common law subjects of thefts must be of some, 233. — suggested reason therefor, 235. Vendee, in executory contracts has no possessory right, 187. 244 INDEX. Vendee, bailee of, poaition of, i88. rights of, 190. — has right of action against trespasses to vendor as from change of right to P., 189. Vendor of goods, rights of unpaid, 7 1 . — poaition of, on submission to hold as vendee's bailee, 188. Villein, seisin of, 36. "W. "Warehouse, when P. of goods in may pass by delivery of key, 61, 63. by transfer of delivery warrants, 73- — effect of payment of rent of, by pur- chaser to unpaid vendor, 73. ■Waste land, trespass on, when not en- closed, 56. AVhales, customs as to capture of, 38, 125. "Wharf, de facto P. of timber lying at a, passed by delivery of key of, 65. "Wharfinger, transfer of goods in P. of, by delivery of bills of lading, really a transfer of right to possess, 62, 64. — may by attornment eifect a receipt within the meaning of the Statute of Frauds, 74. "Wife, how far she can steal husband's goods, 212-13. — how far P. transferable by, without husband's consent, 217. — effect of adultery on agency of, 217. "Wood, P. of a, 34. "Wreck, trespass for taking, 147. under Stat. Westm., I. u. 4, ex- cludes felony, 173. suggested reason for this, 232. "Wrongdoer, why P. of may ripen into ownership, 3. — as against, P. is conclusive evidence of right to P., 22, 59, 91, 150. KFS. ■ J'.'/^Hfi'v ~