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defence to the action, unless he show that he acted with the owner's authority (b). The requisites of every original taking possession of goods, whether as occupant, finder or trespasser, are the same. In each case, the sole (c) physical control of the thing must be effectively gained, with the intent to exclude the world at large: otherwise possession will not have been acquired (d). And neither an intending occupant, nor a finder or trespasser has any title to sue for the recovery of goods, of which he has not actually taken possession (e). Whether, in any particular case of alleged taking possession of goods, there has been the required physical control coupled with the necessary intent, is a question of fact to be determined with regard to all the circumstances (f). When possession of goods has been once acquired, it is not necessary,
in order to retain it, that the effective control, which must be used to gain possession originally, should continue to be actively exercised. Possession will not be lost so long as the power of resuming effective control remains. Thus, if I leave my house uninhabited, I still remain in possession of it, and of the goods in it; and shall
(6) Neunham v. Sterenson, 10 C. B. 713; Jeffries v. Great Western Ry. Co., 5 E. & B. 802 ; Bourne v. Fosbrooke, 18 C. B. N.S. 515. If, however, a finder or taker of goods be lawfully deprived of the possession of them (as by lawful seizure of the goods as stolen ; see Hale, P. C. 113; stats, 24 & 25 Vict. c. 96, s. 103 ; 34 & 35 Vict. c. 112, s. 16; Arch. bold's Justice of the l'cace, ii. 1812, 7th ed.), he cannot recover them from a stranger to whose hands they may afterwards come ; Buckley v. Gross, 3 B. & S. 566. As to the cases in which jus tertii is available as a defence to an action to recover goods, Leake v. Loverlay, 4 Man. & Gr. 972 ; Pollock and Wright on Pos. session, 91, 92, 147, 148.
(c) See Pollock and Wright on Possession, 21.
(d) 0. W. Holmes, Common Law, 216, et seq.
(e) Thus in Young v. Hichens, 6 Q. B. 606, the plaintiff, while fishing for pilchards, had nearly encompassed the fish with a net; but the defendant, by rowing his boat to the opening, disturbed the fish and prevented their capture. The plaintiff brought trespass for disturbing and taking fish in his possession : but it was held that he could not recover, as he never had possession the fish.
(f) See Bridges v. Hawkesworth, 15 Jur, 1079; 0. W. Holmes, Common Law, 222-224; Pollock & Wright on Possession, 37-42.
continue to be possessed of them, unless some other person break into my house and occupy it, or take my goods away (9).
§ 2. Of Ownership without Possession. 1. Having thus briefly considered the acquisition of Ownership ownership and possession, and touched upon the position possession. of an owner in possession, let us pass on to the cases in which the ownership of goods exists apart from their possession. The first instance of this which we will examine, is, where the owner of goods parts with their possession involuntarily; as where he loses them or they are taken from him. The gradual establishment of the rights and remedies of an owner so deprived of possession has been already described (i). We bave seen that he is held to retain the property in his goods, giving him the right to recover possession of them as against all the world ; a right which he may assert himself by peaceable retaking (k). The reader will also remember that, whilst the owner might maintain trespass or replevin against any one who forcibly took his goods out of his possession, he might bring detinue or trover, not only (if he choose (1)) against an actual disturber of his possession, but also against any person who came into possession of the goods by any means and violated his right to possession of the goods by wrongfully withholding them from him (m). In modern times before the year 1833, trover, though for damages only, was found to be the most convenient remedy for an owner wrongfully deprived of his goods (n); and questions of the right to recover possession of goods were therefore most frequently determined in this
(g) 0. W. Holmes, Common Law, 216, 235 et seq.
Ante, pp. 6—21. (k) Ante, p. 14.
(1) Bishop v. Montague, Cro. Eliz. 824 ; Cro. Jac. 50.
(m) Ante, pp. 15–17. This must of course be taken subject to the limitations mentioned, ante, pp. 23—25.
(n) Ante, p. 17, n. (a).
action : although it was generally considered that detinue would lie equally with trover in such cases (0). Under the present practice it seems clear that any one entitled to recover possession of goods may, at his option, sue either for the return of the goods or their value, or else for damages for their wrongful conversion (p). At the same time it appears that the test of succeeding in such an action will be, whether the plaintiff have such a cause of action as would have enabled him to maintain trover under the old practice. It will therefore be convenient, in considering the remedy for goods wrongfully withheld, still to speak of the right to maintain trover; although, as we have seen, the old strict forms of action are no longer used (q). Now, to maintain trover, the plaintiff must have shown a right in himself to the immediate possession of the goods, and a wrongful conversion (r) of them to the defendant's use. The conversion, it will be remembered, was the gist of the action; and a mere refusal to deliver up the goods on demand was evidence of conversion (s). The owner of goods taken from him or lost has an immediate right to their possession; for the property, wbich remains in him, is said to draw with it the right to possession (t). And an action for the wrongful conversion of goods can only be maintained when the plaintiff has been in possession of the goods (u), or has such a property in them as draws to it the right to their possession (v). If the goods have
(0) 1 Lilly's Practical Register,
() Ante, p. 21, and n. (r).
(r) As to what acts amount to
see Bac. Abr. Trover (B); Hollins v. Fowler,
L. R. 7 H. L. 757 ; Barker v.
(s) Ante, p. 17; 2 Wms. Saund. 472.
(t) Hudson v. Hudson, Latch. 214 ; 2 Wms. Saund. 47 b.
(u) See Addison v. Round, 4 A. E. 799 ; Brooke v. Mitchell, 6 Bing. N. C. 349.
(v) 2 Wms. Saund. 47 be
been wrongfully converted by the defendant, the plaintiff will succeed in his action, if he should prove either way his own right to the immediate possession of the goods (x); if he should not prove such right, he will fail (y). As the right to recover possession of goods is most usually enjoyed in respect of their ownership, the right to maintain trover is often stated to depend on the plaintiff's property in the goods (3); a right to possession of goods enjoyed in respect of a mere possession (without ownership) of them is also frequently spoken of as being a special kind of property therein(a). But while the use of such expressions serves to remind us how large a part of property is the right to recover possession (6), it must not mislead the student into thinking that an action for the detention or conversion of chattels can be maintained on proof of mere ownership, without regard to the right to possession. Such is not the case. The action tries only the right to the immediate possession of the goods, and cannot be maintained by an owner, who has parted with the exclusive right to their possession (c). And there is no action known to the English law in which the right of property in chattels will be determined, apart from the right to their possession.
It has been laid down that if goods be stolen or Can the owner otherwise feloniously obtained, the owner cannot bring goods sue the any civil action for the goods or their value against the thief before
(2) Wilbraham v. Snow, 2 Saund. 47; Armory v. Delamirie, 1 Str. 505 ; Roberts v. Wyatt, 2 Taunt. 268 ; Legg v. Evans, 6 M. * W. 36 ; Evans v. Nichol, 3 Van. & Gr. 614; Blades v. Higgs, 11 H. L. C. 621.
(y) Gordon v. Harper, 7 T. R. 9; Ferguson v. Cristall, 5 Bing. 405; Leake v. Loveday, 1 Man. i Gr. 972; Bradley v. Copley, 1 C. B. 685 ; Donald v. Suckling,
L. R. 1 Q. B. 585 ; Lord v. Price,
(2) 3 Black. Comm. 152, 153.
(a) See the cases cited ante, p. 44, n. (h); 2 Wms. Saund. 47 a, b, d et seq.; Rogers v. Kennay, 9 Q. B. 592.
(6) Ante, p. 45.
(c) Gordon v. Harper, 7 T. R. 9; Donald v. Suckling, L. R. 1 Q. B. 585 ; Halliday v. Holgate, L. R. 3 Ex. 299.
felon, before he be prosecuted criminally; for so should felonies be healed (d). But if the owner do bring a civil action before prosecution, it does not appear by what means the felon can raise this rule of law as a defence, or how the action can be hindered from proceeding (e). The owner may retake goods feloniously obtained from him ; but it is a misdemeanor for him to receive them again upon agreement not to prosecute or to favour the offender (f).
Right of finder or taker to possession.
It has been already explained that if the finder or taker of chattels lose possession of them, otherwise than by being lawfully deprived of them, he retains the right to their possession as against all except the owner ; he can therefore maintain trover against all who wrongfully withhold the chattels from him (g).
Property, We see then that when goods are lost or unlawfully possession and right to pos
taken away, the property remains in their owner, in session of virtue of which he has the right to their possession as goods lost or taken. against all the world. But until he recovers his goods,
their possession will be first in the finder or taker, and then in any person, to whom the latter may transfer the goods, or who may acquire them upon a second finding or taking. And every person, who may so come into possession of the goods, will have the right to their possession, if he be unlawfully deprived of them, against
(d) Dawkes v. Coreneigh, Style, 346 ; 1 Hale, P. C. 546 ; 4 Black. Comm. 356 ; Crosby v. Leng, 12 East, 409; Stone v. Marsh, 6 B. & C. 551, 564, 565; Marsh v. Keat. ing, 1 Bing. N. C. 198, 217 ; Ex parte Elliot, 3 Mont. & A. 110 ; Wellock v. Constantine, 2 H. & C. 146.
(e) See Wells v. Abraham, L. R. 7 Q. B. 554, where the Court discharged a rule for a new trial of an action of trover for a brooch,
obtained on the ground that the evidence tended to prove a felony ; Ex parte Ball, Re Shepherd, 10 Ch. D. 667; and Roofe v. D'Avigdor, 10 Q. B. D. 412, where the Court overruled a demurrer to a statement of claim alleging that the defendant stole and embezzled the plaintiff's property.
(f) i Hale, P. C. 619; 4 Black. Comm. 133, 356 ; Stephen, Digest of Criminal Law, Art. 158.
(9) Ante, pp. 47, 48.