possession in the common law - HiddenMysteries Information Central

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perfectly real possession (both legal and physical) of things which are in a building that does not belong to
him. If the goods are his and the owner of the building has delivered to him the key with the intention that he
shall take the goods when he likes, then he may have sufficient power over the goods to allow of our saying
that he has possession of them, that they have been delivered to him, and that within the meaning of the
Statute of [65] Frauds he has actually received them. This doctrine is brought out by the case next to be
noticed.
1863. Gough v. Everard, 2 H.&C. 1, 32 L.J. Ex. 210. In this case the question was whether certain chattels
were in the possession or apparent possession of a bankrupt within the meaning of the Bills of Sale Act of
1854 then in force. E. sold to G. certain timber which was lying upon a private wharf belonging to E.; there
was a written agreement concerning the sale which perhaps was a bill of sale within the Act; E. became
bankrupt, and thus the question as to possession arose. After the sale G. had obtained and kept the key of the
wharf on his own behalf, having previously had the custody of it as E.'s agent. In argument it was urged that
the timber had always remained in E.'s possession or apparent possession. ‘The key’ it was said ‘was a mere
symbol of possession which gave to the plaintiff that formal possession to which the Act refers.’ To this it
was answered by Pollock C.B.: ‘The whole of the timber lying at the private wharf was sold to the plaintiff
and the key gave him the actual possession of it.’ The C.B. seems to have thought that even ‘actual
possession’ was too feeble a phrase. ‘As to the timber on the private wharf the plaintiff [G.] had actually sold
part of it; the key of the wharf had been delivered to him and he had ‘manual control over the timber.’ There
runs through the whole of the judgments the leading idea that the buyer had as much possession as he could
have with regard to the nature of the subject-matter, and this was a real de facto possession. The delivery of a
key then may give us not only ‘actual possession’ in law as distinct from that ‘formal possession’ which was
useless against the Bil1s of Sale Acts, 1 it may give us manual control, which is really a matter not of law but
of fact. Of course all depends on the intention of the parties as manifested in other acts; the delivery of a key
may be a wretched bit of pantomime as ineffectual as the delivery of a peppercorn, but it may be a substantial
transaction which gives the [66] deliveree that power over the thing which goes to constitute possession.
1876. Ancona v. Rogers, 1 Ex. Div. 285. The question was whether certain furniture was in the possession
or apparent possession of the grantor of an unregistered bill of sale at the time when she petitioned for
liquidation. Mrs. Hewitt mortgaged the furniture in her house in Sussex to the plaintiff in the cause. Having
given up this house she arranged to live with Horlock in his house in Cornwall called Ogbeare Hall in a
portion of the house to be thereafter determined. She delivered the furniture to one Bishop to take to Horlock's
house. This Bishop did; Horlock was not at home, but his wife allowed the furniture to be placed in four
rooms, and Bishop without any objection on the part of anybody locked the four rooms and took away the
key. The Court of Appeal held that after this the goods were in the possession not of Horlock but of Mrs.
Hewitt. In the judgment of the Court, delivered by Mellish L.J., there is the following most valuable passage:–
‘We will next consider whether the goods came into the possession of Mr. Horlock, and this depends upon
the question, whether what took place at Ogbeare Hall amounted to a delivery of the possession of the goods
by Mrs. Hewitt to Mr. Horlock as bailee to hold for her, or to a delivery of the possession of the rooms by Mr.
Horlock to Mrs. Hewitt. This is a question of considerable nicety, but we are of opinion that what took place
had the effect of a delivery of the possession of the rooms to Mrs. Hewitt for the purpose of keeping her
goods in them. The delivery of a key is an ordinary symbol used to notify a change in the possession of the
premises to which the key gives means of entrance. The possession [i.e. legal possession] of premises cannot
be changed solely by the delivery of a key, but where the delivery of a key is accompanied by an act which
may amount to a change in the possession of the premises, the delivery of the key is strong evidence that it
was the intention of the parties that the possession of the premises to which the key gives the means of
entrance should be changed. It is true that in this case the key was not delivered to Bishop, but taken by him.
But the rooms were appropriated by Mrs. Horlock to the reception [67] and custody of the goods, and no
objection was made, then or afterwards, to the key being taken by Bishop, who was acting in the matter as the
agent of Mrs. Hewitt. On the contrary, Mr. Horlock, on returning home, assented entirely to what had been
done in his absence. Mr. Horlock was under no obligation to give Mrs. Hewitt possession of these rooms, and
[65] 1 This question does not arise under the Bills of Sale Act, 1882, now in force.