possession in the common law - HiddenMysteries Information Central

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use. As regards land the rule (as we have seen) has always been the same, and this may have had some
influence in fixing it as to custody of goods. We are not aware or anything analogous to the exception.
We do not know of any case in which a delivery by the master to the servant with intent to deliver
possession besides custody has been proved as matter of fact. The holder of goods may make his servant a
bailee if he think fit, and the holder of land may make his bailiff a tenant at will; but the law does not regard
this as a normal state of things, and probably rather strict proof would be required. There is no reason
however to doubt that such an intent, if sufficiently proved in a particular case, would be effectual in law.
It has been mentioned that delivery to a servant on his master's behalf does not immediately confer possession
on the master. This peculiar rule belongs, for practical purposes, exclusively to the criminal law, and will be
dealt with hereafter.
§ 6. Of partial delivery and so-called symbolic delivery.
In the case of bulky goods or collections of goods transfer of possession cannot be made obvious to the
senses with the same readiness as in the case of a single object which can be passed from hand to hand. But it
may be effected without physical translation of the whole of the goods, or without any physical translation at
all. There may be an indirect dealing with the custody of the goods through some instrument of [61] access to
them; or a part may be delivered on account and in the name of the whole; or there may, without any change
of custody, be a holding on behalf of a new possessor.
We wi1l speak first of symbolical delivery, as it is sometimes, but in our opinion not exactly, called. There
is some show of authority for saying that goods under lock and key, for example, may be delivered by
delivering the key as a symbol of possession. We hold, notwithstanding the occasional use of such language,
that the transaction, like livery of seisin with regard to land, is not symbolical, but consists in such a transfer
of control in fact as the nature of the case admits, and as will practically suffice for causing the new possessor
to be recognized as such. It may be asked whether, on this view, a stranger who picks up the lost key of a safe
or of a warehouse acquires possession of the goods to which the key gives access. Assuming, to simplify the
question, that the finder is acquainted with the particular safe or warehouse, and intends to make a dishonest
use of the key, the answer is that the facts are essentia1ly different from those of a delivery. Where the key of
a receptacle or place of custody is acquired with the consent of the owner and in the name of his intent to give
possession of the contents of that place or, receptacle, there is every reason to think that the acquirer can and
will in fact have those contents at his disposal. If the action or assent of any other person be needful for his
access to the lock in the first instance, there is no reason why it should be refused or withheld. But even so,
the Roman lawyers seem to have thought that, in a direct transaction between the vendor and the vendee of
goods in a warehouse, delivery by the key must be ‘within the view.’ 1 Nor has anything in our books really
gone farther, if so far. In the case of a wrongful acquirer the bent of expectation is the other way. The loser of
the key may have already missed it; if he has missed it, he will have taken his precautions. Instead of
undisturbed [62] access, and perhaps an obsequious assistant, there will, as likely as not, be a new lock and a
police officer. De facto as well as de jure, there is much to be presumed in favour of him who comes by title,
nothing for him who comes by wrong.
This key may indeed be ca1led symbolic in another sense, for it is not understood that Englishmen of
business commonly deliver a key in the name of goods contained in the warehouse which it opens. Dealings
with bills of lading and other documents of title are much more common, and these cases differ from that of
the key in the material fact that the custody of the goods is with a skipper, wharfinger, or other third person. It
is a question, in the first instance, of transferring right to possess. There have been a few actually decided
cases, as we shall see, on the delivery of keys. But the true explanation was long ago given by Lord
Hardwicke. We shall now notice the principal cases and dicta in order.
1751. Ward v. Turner (2 Ves. sen r . 431; 1 Dick. 170). This is the case which settled that a delivery is
necessary to a donatio mortis causa, and one question was whether South Sea annuities could be delivered by
delivery of certain receipts. 1 Lord Hardwicke, being pressed with the theory that there may be a ‘symbolic’
[61] 1 ‘Si claves apud horrea traditae sint;’ Papinian, D. 18. 1. de cont. empt. 74.
[62] 1 We are not concerned here with the peculiar applications of the notion of delivery to cases of gifts mortis causa, nor with the question how far Lord Hardwicke's
reasoning, in any of those applications, has been superseded by the later authorities on that subject.