possession in the common law - HiddenMysteries Information Central

48
estopped from treating John as a wrongdoer, unless and until John with knowledge and of purpose disregards
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 convert 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] trespass ab initio. It is believed to be more nearly consistent with all the 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. 1 This does not appear to make any difference in John’s position beyond one of
fact, namely, strengthening the presumption of good faith on his part.
III. Mistake as to the person.
1. 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 erroneously supposes John to be entitled to delivery in
his own right:
b. 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 anyone but the person really designated or entitled. But if John is at the
time aware of the mistake, [107] this will prevent any real consent from taking place, and the case is like that
of obtaining property by a trick, that is, John acquires a merely trespassory possession.
b. 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 trespasser 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]
[106] 1 See per Bramwell B., L.R. 2 C.C. at p. 56.