possession in the common law - HiddenMysteries Information Central

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otherwise on behalf of another. But no system of law, so far as we know, has gone that length. A 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 [18] Roman law that possession is not easily separated from ownership 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 de 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 [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 I long as his active control is, as some say, capable of being
reproduced, or, as others say, his relation to them is consistent 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 mislaid 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 rule 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 everyone 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 [20] Possession, if not expressly qualified,
will be used now and afterwards with the meaning of possession in law.