possession in the common law - HiddenMysteries Information Central

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[91]CHAPTER III.
Possession and Title.
§ 16. The Rights of Possessors.
EXISTING possession, however acquired, is protected against any interference by a mere wrongdoer; and
the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person
through or under whom he does not himself claim of justify. ‘Any possession is a legal possession’ – i.e.
lawful and maintainable – ‘against a wrongdoer.’ 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 anyone 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 2 for land, trover for
goods). In the latter alternative, his right, being derived from his own 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 substantive 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 [92] 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 1 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.R. Co. 2 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 wrong-doer.’ 3
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. 4
But it is material to observe that from an early time the action of trespass has been allowed not only to the
person [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, 1 or a bailor where the bailment is not for a term or
coupled with an interest, 2 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 factual
possession a right to possess the goods as against every one but the bailor. 3
[91] 1 Lord Kenyon C.J., Graham v. Peat, 1801, 1 East, 244, 246.
2 See p.85, above.
[92] 1 1842, 4 M.&Gr. 972, 12 L.J.C.P. 65.
2 1856, 5 E.&B. 802, 25 L.J.Q.B. 107.
3 2 Wms. Saund. 96, approved in Jeffries v. G. W. R. Co.
4 See authorities collected, 2 Wms. Saund. 93, 94.
[93] 1 19 Hen. VI. 45. pl. 94.
2 48 E. III. 20, pl. 8
3 Per Parke B., Manders v. Williams, 1849, 4 Ex. 339, 18 L.J. Ex. 437, 439
§ 17. Title by Possession.