not previously to be seen, are circumstances so improbable that CHAP. XI. no one would take their probability into consideration 1.' The distinction must obviously be a fine one. On the one hand, it has been held that when fish were nearly surrounded by a seine with an opening of seven fathoms between the two ends, at which point boats were stationed to frighten them from escaping, they were not reduced to possession as against a stranger who rowed in and helped himself. On the other hand, it has been decided that the custom of the American whalemen in the Arctic ocean is a good one, which gives a whale to the vessel whose iron first remains in it, provided claim be made before cutting in 2. If an object be under the control of a servant, exercised on behalf of his master, it is under the control of the master.

2. When the mental element in possession is manifested Animus. in its lowest degree, the holder of the object goes merely to the length of meaning to protect it against violence, without any assertion of a right over it on his own behalf. The intention of a servant who is entrusted with the property of his master is admittedly of this nature, and is fitly described as representative 3.'

A higher degree of intention is exhibited by those persons, other than servants, to whom objects are delivered for various purposes. A borrower, the lessee of land, a usufructuary, a carrier, all intend to dispose of the object over which they are given a control otherwise than as they may be from time to time directed, although none of them deny the title of the person who has delivered the objects to them to be

1 Savigny, § 19.

2 Young v. Hichens, 6 Q. B. 606; Swift v. Gifford, 2 Lowell, 110; cited in a very valuable article upon Possession contributed by Mr. Justice Holmes to the American Law Review, vol. xii. See also his 'Common Law,' p. 206.

So if goods are stolen from a servant, they are alleged in an English indictment to be the property,' i. e. in the possession, of his master. The new offence of embezzlement was created to meet the case of misappropriation by a servant of goods delivered to him for his master, but of which the latter had not yet taken possession. See 39 G. III. c. 35.

M

CHAP. XI. still outstanding. The amount of possession which has passed to each of them-and some amount has certainly passedmay be called 'derivative.'

The highest degree of intention is a denial of the right of any other than the possessor himself; inasmuch as the possessor means to pay no regard to any other right than his own. This is the intention manifested, on the one hand, by a person who thinks himself, rightly or wrongly, to be the owner of the object in question, and on the other hand by a thief who well knows that he has stolen it.

As to possession accompanied by the lowest and highest degrees of intention there is no difference of opinion and little difficulty. It is conceded on all sides that in the first case possession is wholly absent1, while in the last case, whether the holder believes himself to be the rightful owner of the object, or having merely found it means to keep it, subject to the possibility of the owner making his appearance2, or having stolen it means to keep it against all comers3, possession is fully present, and was in Roman law protected by the Interdicts, against any one from whom it had not been Derivative acquired 'vi clam aut precario.' The doubt arises with referpossession. ence to the intermediate case of what is distinguished as 'derivative' possession; when the intent to dispose of the object is limited by a distinct recognition of the outstanding right of another. Assuming that only one person can, in the fullest sense, possess the same object at the same time, 'non magis enim eadem possessio apud duos esse potest, quam ut tu stare videaris in eo loco in quo ego sto, vel in quo

1 R. v. Hey, C. and K. 983; but see also Moore v. Robinson, 2 B. and Ad. 2 Dig. xliii. 17. 2; Armory v. Delamirie, 1 Sm. L. C. 301; Dicey, on Parties, P. 355.

Pro possessore vero possidet praedo, qui interrogatus cur possideat responsurus sit, quia possideo, .. ... nec ullam causam possessionis possit dicere.' Dig. v. 3. 11-13. 'Iusta enim an iniusta adversus ceteros in hoc edicto [sc. uti possidetis] nihil refert, qualiscunque enim possessor, hoc ipso, quod possessor est, plus iuris habet quam ille qui non possidet.' Ib. xliii. 17. 2. Dicey, on Parties, p. 356, quotes Crompton, J., in Buckley v. Gross, 32 L. J. Q. B. 131, as probably supporting this view as to thieves.

theory.

loco ego sedeo tu sedere videaris 1,' it becomes necessary to CHAP. XI. enquire whether the bailor or the bailee, the landlord or the tenant, the proprietor or the fructuary, are to be regarded as possessors. The theory of Roman law was that bailees, Roman tenants, fructuaries, and other persons whose intent was of the same kind, were not possessors, though they might be said in possessione esse,' 'naturaliter possidere,' 'corporaliter tenere,' 'alieno nomine possidere 2. Their position approximated to that of a servant. Lacking the 'animus domini,' which, it is necessary to remember, meant the intention, not of being owner, but of acting as such, they could not claim to have their possession protected by the Interdicts 3.

A different view seems to have guided the jurists of the Teutonic theory. Teutonic races. The intention of the derivative possessor to exclude every one other than the owner from the control of the object, though falling short of the animus domini,' was thought sufficient to entitle him, and him alone, to real remedies analogous to the Interdicts. Under the Salic Law the person from whose custody cattle were stolen, irrespectively of his having any further interest in them, seems to have been the only person entitled to have them restored to him; and Bracton says that, in suing for stolen goods, it makes no difference whether the goods belonged to the plaintiff or not, provided only they had been in his custody 4.

Whether or no the 'derivative' possessor is to be regarded as 'possessor' in the fullest sense, there is no doubt that he has at any rate, in most cases, a possessory interest which the law will recognise, and for any interference with which he is entitled to redress by way of damages. The test of his

1 Dig. xli. 2. 3. 5. Cf. Reynolds v. Clarke, 2 Ld. Raymond, 1399.

2 'Nec idem est possidere et alieno nomine possidere.' Dig. xli. 2. 18. Except in the case of the emphyteuta,' the holder of a pledge, the 'precario tenens,' and the 'sequester.' Savigny, § 9.

Dum tamen de custodia sua.' Bract. fol. 151. Cited by Mr. Justice Holmes, in the American Law Review, u. s.

CHAP. XI. having such an interest was said by the Roman lawyers

English law.

to be whether or no the
was of importance to him.
either because the object is
pledge to a creditor1, or a slave to a person who has a
usufruct in him2; or because the loss of it renders him
liable to an action for not having kept it safely, as would be
the case with a hirer, a borrower, or a tradesman who has
goods given him to repair. A depositary, since he does not.
guarantee safe-keeping, 'custodiam non praestat,' has no right
of action against any one who steals the deposit 3.

safety of the object possessed
This may occur in two ways;
directly useful to him, as is a

The view taken by English law of the rights of 'derivative' possessors is not dissimilar. In all these instances,' says Blackstone, 'there is a special qualified property transferred from the bailor to the bailee, together with the possession. And on account of this qualified property of the bailee, he may, as well as the bailor, maintain an action against such as injure or take away these chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the pawnbroker, the distreinor, and the general bailee, may all of them vindicate in their own right this their possessory interest. For being responsible to the bailor, or if the goods are lost or damaged by his wilful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right of action against all other persons who may have purloined or injured them; that he may always be ready to answer the call of the bailor 4. In what are called 'simple bailments,' i.e. those in which the bailor is at liberty to resume possession at any moment, either the

1 'Quia expedit ei pignori potius incumbere quam in personam agere.' Inst. iv. I. 14.

2 Fructuarius aget de fructibus, vel quanti interfuit eius furtum non esse, proprietarius vero aget quod interfuit eius proprietatem non esse subtractam,' Dig. xlvii. 2. 46.

3 Inst. iv. 1. 17. But he may sometimes recover damages for 'vi bona rapta.' Dig. xlvii. 8. 24.

4

2 Comm. 453.

bailor or the bailee may sue for any interference with the object CHAP. XI. bailed, but when during the bailment the right of the bailee is good even against the bailor, the former can alone sue for interference with his possession.

any

The motives which have induced the law to give protec- Reasons

tion to the fact of possession, whether of the fullest or of the derivative' kind, are not far to seek.

Some writers

have however thought it necessary to discover a somewhat mysterious explanation of what might otherwise have appeared simple enough. "The ground of this protection,' says Savigny, and of this condition similar to a right, has to be ascertained. Now this ground lies in the connection between the above condition of fact and the party possessing, the inviolability of whose person extends to those sorts of disturbance by which the person might at the same time be interfered with. . . The case occurs where the violence offered to the person disturbs or puts an end to possession. An independent right is not, in this case, violated, but some change is effected in the condition of the person to his prejudice; and if the injury, which consists in the violence against the person, is to be wholly effaced in all its consequences, this can only be effected by the restoration or protection of the status quo, to which the violence extended itself. The same view is also to be found, where anything so abstract would scarcely be expected, in a volume of Meeson and Welsby's Reports. These rights of action,' said the Court of Exchequer, 'are given in respect of the immediate and present violation of possession, independently of rights of property. They are an extension of that protection which the law throws around the person 2.

for protecting posses.

sion.

Possession

As to the place which the doctrine of possession should Place of occupy in a body of law, Savigny is of opinion that since in the corit only comes in question as a condition to the granting of pus iuris. Interdicts, it belongs to the department of 'obligationes ex

1 Savigny, § 6.

2

Rogers v. Spence, 3 M. and W. 581.