false claim of property in replevin would rather confirm this than otherwise, for such a proceeding is expressly provided for in the writ.27 That theoretical concurrence was not accompanied by concurrence in practice would indicate that the demand for specific relief was not great. But what Professor Ames said as to absolute property in the trespasser was obiter. His main thesis was disseisin.

Lord Esher, in 1891,28 expressed the opinion that the property in chattels is not changed by the running of the Statute of Limitations. If this be so, the law of adverse possession with regard to land is of little help to us in the law of chattels and a rich field of analogy is lost. Lord Esher's opinion, however, was given without the benefit of Professor Ames' work,29 and it does not seem likely that it will be followed; but the evident assumption on which he was proceeding — that disseisin had been peculiar to land - may cause us to question how far those ideas which are peculiarly associated with disseisin, as distinguished from adverse possession, found expression in the law of chattels.

The difference between the old disseisin and the modern adverse possession may be brought out by an analogy from the law of nations. In the old books, a belligerent who had seized the territory of his enemy might call it "his" even during the continuance of military operations. By right of conquest the inhabitants now owed him allegiance and might be compelled to serve in his armies.30 Thus prior to the Napoleonic wars, territory seized by the French armies and the inhabitants thereof became French by the fact of seizure.31 The effects of conquest, however, were profoundly modified by the doctrine of postliminium or postliminy, by which on the retaking of the territory title revested in the old sovereign as from the beginning, the old allegiance was restored and transfers of land made in the meantime invalidated. The doctrine of postliminy did not in general apply to movables. To-day conquest has been relegated to a subordinate place in treatises on international law and military occupation has taken the place of importance once held by it. No longer may the inhabitants of occupied territory

27 REG. BREV. 85.

28 Miller v. Dell, L. R. [1891] 1 Q. B. 468.

29 3 SELECT ESSAYS, 571.

30 See, for instance, Martens, SUMMARY OF THE Law of NatiONS, Bk. VIII, Ch. III, § 8.

31 See POTHIER, TRAITÉ DES PERSONNES, Title II, § 1.

be compelled to take the oath of allegiance to the occupant, nor be compelled to serve in his armies. The occupant's rights are of a temporary, provisional nature and do not extend to the alienation of land.

It is the same distinction, it is believed, that marks the difference between the old disseisin and the modern adverse possession. The old disseisin was a doctrine of change of title which might be revested as from the beginning by the reëntry of the disseisee.32 The modern adverse possession is a doctrine of inchoate title which may ripen into perfect title by the lapse of time. Old notions of conquest were contrary to the morality of the time as preached by Rousseau and others and failed to satisfy juristic conceptions of the distinction between ownership and possession. No such crusade as that of Rousseau was directed against disseisin, but its inadequacy to satisfy present moral and juristic conceptions is evidenced by the desuetude into which it has fallen. Much, however, that was law under the old conquest is still law under military occupation, and also much that was law under disseisin holds good under adverse possession. In many cases the result has been merely a change of emphasis.

There is much probability that livery of seisin was once as essential to the transfer of title to chattels as it was of title to land.33 If this was so, it must have been impossible for one to transfer the property in chattels in the adverse possession of another. But there was less occasion to pass on this question in the case of chattels than there was in the case of land, and how little that occasion was may be gathered from the very scanty evidence either way which Professor Ames was able to find in the Year Books.34 What evidence there is from the 1400's is rather against the non-assignability of such property than for it,35 but already in the 1400's it had become possible to transfer chattels by deed 36 or sale 37 without delivery, and it is possible that the views expressed then marked 32 The analogy between this and postliminy has been noticed by common-law writers. See 3 BL. Coм., Ch. 12, 210; STEARNS, REAL ACTIONS, 410.

33 2 P. & M., 2 ed., 180.

34 See "Disseisin of Chattels," 3 SELECT ESSAYS, 555-560.

35 Danby, C. J., Needham and Vavasor were against it, while Brian, C. J., was for

it. Littleton, as counsel, was for it but was overruled. See infra, pp. 385-6.

36 See the cases cited in Cochrane v. Moore, L. R. 25 Q. B. D. 57 (1890).

37 See BLACKBURN, SALE, 283 et seq. But see also Maitland, "Mystery of Seisin," 3 SELECT ESSAYS, 610 n.

a departure from earlier ideas. In Fitzherbert 38 is cited a case from the time of Edward III which, if correctly reported, would support this view. But the suspension of the disseisee's right of alienation in the case of land would probably not have been thought of as divesting his property or right of property 39 and no such result would necessarily have followed a suspension of the right of alienation in the case of chattels.

Nor would any common lawyer probably have thought of a disseisin as working a change of "property" in land. In striking contrast with the possessory actions such as the assize of novel disseisin was the proprietary writ of right. In so far as property was thought of in connection with land it must have been generally identified with the best right which was the foundation of the writ of right rather than with the seisin of free tenement which was the disseisor's.40 But the doctrine of estates did not apply to chattels, and if disseisin was to be applied to chattels at all, it is hard to see what terms could have been found to express the nature of the rights of the disseisor and disseisee other than those used by Brian, C. J. "property" and "right of property." This ascription of "property" to the disseisor and the denial of it to the disseisee must have seemed the less strained from the fact that property then as now was commonly used to indicate the thing which was the subject of the right as well as the right itself. Brian, however, was not using "property" to indicate the res, and he had to argue that his 'property" and "right of property" were not the same thing, and although he found support for this usage of terms in the cases cited by Professor Ames from the time of Edward III,42 this usage apparently seemed as strange to most of the judges of the 1400's as it does to us.43 "Property" to them meant "right of property," something akin at least to our ownership, and this they were unwilling to ascribe to the trespasser. Disseisin of chattels might have had a better chance had it not been for the unfortunate language in which it was clothed.

'Property" seems to have been ascribed to a thief even earlier

38 ABR. REP. 43, trans. by Prof. Ames, 3 SELECT Essays, 559. Query as to whether the last sentence in Prof. Ames' translation was in the original report or was an addition of Fitzherbert. For a similar case, see infra, p. 393-4.

39 See following paragraph.

40 See 2 P. & M., 2 ed., 78, 153 n.

42

SELECT ESSAYS, 544.

41 Y. B. 6 HEN. VII, 9−4.

43 Infra, pp. 385-6.

than to a trespasser.44 Professor Ames' statement of the case is as follows:

"John v. Adam was a case of replevin in the detinet for sheep. Avowry that the sheep were stolen from the plaintiff by M., who was driving them through the defendant's hundred; that M., to avoid arrest, fled to the church and abjured the realm, and so the defendant was seised by virtue of his franchise to have the goods of felons. Certain formal objections were taken to the avowry, to which Herle, C. J., answered: 'Whatever his avowry be, you shall take nothing; for he has acknowledged that the property was once in you, and afterward in him who stole them; and now he affirms the property in himself, and therefore, although he cannot maintain the property in himself for the reason alleged, still you shall not have the sheep again, for he gives a mesne; namely, the felon in whom the property was.'" 45

The case is not, however, an authority for the statement that "the goods, having become by the theft the property of the felon, were forfeited as a matter of course with the rest of his chattels." 46 Herle, C. J., said that it would be "hard law" if it were so; to which it was replied that "it is coroner's law that he, whose goods were taken, shall not have them back unless the felon be attainted at his suit." 47

The case is interesting as an attempt to use replevin in a case of theft and that as against one holding subsequently to the thief. But it is unfortunate that felony was involved. Otherwise despite its procedural handicap, replevin might have developed into an effective remedy against the third hand. Its recuperatory character gave it an advantage in this respect over trespass. As it was, however, the fact that the action was brought against one subsequent to the wrongdoer was fatal. Disseisin offered a ready explanation for denying the plaintiff recovery. The beasts were not "his" at the time of the taking by the defendant.

In the following century the same point was made against allowing an appeal of felony against a second thief.48 The argument evidently was that after the first theft the appellor could no

4 Y. B. 8 EDW. III, 10-30.

45

SELECT ESSAYS, 542.

46 Ibid., 543.

47 Trans. Ames, "History of Trover," 3 SELECT ESSAYS, 421. See 2 P. & M., 2 ed., 165.

longer call the stolen goods "his," but the appeal had been of old a remedy against even the twentieth hand 49 and it was held that by the first taking the property was not out of the appellor and that the appeal lay. For purposes of replevin one from whom goods had been stolen could no longer call the goods "his"; for purposes of appeal he could. But the rule as to the appeal was taken more broadly. It was the accepted law of the Year Books that a theft did not change the "property" in the stolen goods.50

A case in trespass in the year following the replevin case is enlightening on trespass as a disseisin.51 During the course of the argument, Shardelowe, J., said:

"The timber of the house pulled down during the estate of the disseisor is never said to be the chattel of the disseisee, for if you pull down my house and carry off the timber and I bring my writ of trespass, the writ will say Quare prostravit domum suam, meremium inde asportavit, and not meremium suum.”

To which counsel replied: "Sir, it is true and the cause is this, that the house was yours and the timber from it will be considered yours." This case finds a close parallel 52 a few years later in Professor Ames' other case,53 where on a bill of trespass brought by the plaintiff for carrying off his horse and killing it,

"the defendant prayed judgment of the bill, since you have confessed the property to be in us at the time of the killing, and so your bill is repugnant; for by the tortious taking, the property was devested out of you and vested in us, and therefore we could not kill our own horse contra pacem.'

49

" 54

2 P. & M., 2 ed., 164.

50 STAUNF. PL. COR. 61 a, 188 a; FITZ. ABR. Cor. 39; Bro. ABR. COR. 171; FINCH, LAW, 210; VINER, ABR. PROPERTY (E 4); COM. DIG. BIENS (E). Pollock and Maitland attempt to explain away the ascription of "property" to the thief. 2 P. & M., 2 ed., 165. The truth of the matter would appear to be that "property" was not ascribed to the thief in the Year Books except in the replevin case quoted above from Professor Ames and possibly in some other rare instance.

51 Y. B. Edw. III, 2-4. On the point being raised shortly afterwards as to whether trespass for an ouster lay where the plaintiff would have been entitled to an assize, it was after some deliberation allowed. Y. B. (R. S.) 11 & 12 EDW. III, 503-505, 517519; Y. B 14 EDW. III, 231, cited by Prof. AMES, 3 SELECT ESSAYS, 553 n. 2.

52 Brian, C. J., argues from a case like the above to cases of trespass where land is not involved. Y. B. 6 HEN. VII, 9-4.

53 Y. B. 27 Ass., pl. 64.

54 Trans. AMES, 3 SELECT Essays, 542.