The Common Law [94]
petere." /4/ The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form. /5/
The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the [243] chattels, yet he had a property as against strangers, /1/ or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker "has title against all but the true owner." /4/ In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. /5/
I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, /6/ to saying that they had the property as against strangers, or a special property, because they were answerable over, /7/ and that they could sue because they had a special property and were answerable over. /8/ And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.
The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a [244] pledgee, if he had kept the pledge with his own goods, and the two were stolen together. /1/ This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. /2/ The same expression was used in discussing the pledgee's right to assign the pledge, /3/ In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods.
With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land. For although the plaintiff in ejectment must recover on the strength of his own title as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespass.5 And although the early remedy by assize was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory.
Before closing I must say a word concerning ownership and kindred conceptions. Following the order of analysis [245] which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner. But that presupposes ownership already existing, and the problem is to discover what calls it into being.
One fact which has this effect is first possession. The captor of wild animals, or the taker of fish from the ocean, has not merely possession,
The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the [243] chattels, yet he had a property as against strangers, /1/ or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker "has title against all but the true owner." /4/ In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. /5/
I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, /6/ to saying that they had the property as against strangers, or a special property, because they were answerable over, /7/ and that they could sue because they had a special property and were answerable over. /8/ And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.
The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a [244] pledgee, if he had kept the pledge with his own goods, and the two were stolen together. /1/ This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. /2/ The same expression was used in discussing the pledgee's right to assign the pledge, /3/ In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods.
With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land. For although the plaintiff in ejectment must recover on the strength of his own title as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespass.5 And although the early remedy by assize was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory.
Before closing I must say a word concerning ownership and kindred conceptions. Following the order of analysis [245] which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner. But that presupposes ownership already existing, and the problem is to discover what calls it into being.
One fact which has this effect is first possession. The captor of wild animals, or the taker of fish from the ocean, has not merely possession,