Jurisprudence

§ 101. Immediate and Mediate Possession.

One person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate.

Of mediate possession there are three kinds.^[236] The first is that which I acquire through an agent or servant; that is to say through some one who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account, and my animus domini is therefore sufficiently realised in the facts.

The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower, hirer, or tenant at will. I do not lose possession of a thing because I have lent it to some one who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.^[237]

There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognised by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned. The animus and the corpus are both present; the animus, for I have not ceased, subject to the temporary right of another person, to claim the exclusive use of the thing for myself; the corpus, inasmuch as through the instrumentality of the bailee or pledgee, who is keeping the thing safe for me, I am effectually excluding all other persons from it, and have thereby attained a sufficient security for its enjoyment. In respect of the effective realisation of the animus domini, there seems to be no essential difference between entrusting a thing to an agent, entrusting it to a bailee at will, and entrusting it to a bailee for a fixed term, or to a creditor by way of pledge. In all these cases I get the benefit of the immediate possession of another person, who, subject to his own claim, if any, holds and guards the thing on my account. If I send a book to be bound, can my continued possession of it depend on whether the binder has or has not a lien over it for the price of the work done by him? If I lend a book to a friend, can my possession of it depend on whether he is to return it on demand or may keep it till to-morrow? Such distinctions are irrelevant, and in any alternative my possession as against third persons is unaffected.

A test of the existence of a true mediate possession in all the foregoing cases is to be found in the operation of the law of prescription. A title by prescription is based on long and continuous possession. But he who desires to acquire ownership in this way need not retain the immediate possession of the thing. He may let his land to a tenant for a term of years, and his possession will remain unaffected, and prescription will continue to run in his favour. If he desires to acquire a right of way by prescription, his tenant’s use of it is equivalent to his own. For all the purposes of the law of prescription mediate possession in all its forms is as good as immediate. In Haig v. West^[238] it is said by Lindley, L. J.: “The vestry by their tenants occupied and enjoyed the lanes as land belonging to the parish.... The parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century.”

In the case of chattels a further test of the legal recognition of mediate possession in all its forms is to be found in the law as to delivery by attornment. In Elmore v. Stone^[239] A. bought a horse from B., a livery stable keeper, and at the same time agreed that it should remain at livery with B. It was held that by this agreement the horse had been effectually delivered by B. to A., though it had remained continuously in the physical custody of B. That is to say, A. had acquired mediate possession, through the direct possession which B. held on his behalf. The case of Marvin v. Wallace^[240] goes still further. A. bought a horse from B., and, without any change in the immediate possession, lent it to the seller to keep and use as a bailee for a month. It was held that the horse had been effectually delivered by B. to A. This was mediate possession of the third kind, being acquired and retained through a bailee for a fixed term. Crompton, J., referring to Elmore v. Stone, says:^[241] “In the one case we have a bailment of a description different from the original possession; here we have a loan; but in each case the possession of the bailee is the possession of the bailor; it would be dangerous to distinguish between such cases.”

In all cases of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. If I deposit goods with an agent, he is in possession of them as well as I. He possesses for me, and I possess through him. A similar duplicate possession exists in the case of master and servant, landlord and tenant, bailor and bailee, pledgor and pledgee. In all such cases, however, there is an important distinction to be noticed. Mediate possession exists as against third persons only, and not as against the immediate possessor. Immediate possession, on the other hand, is valid as against all the world, including the mediate possessor himself. Thus if I deposit goods with a warehouseman, I retain possession as against all other persons; because as against them I have the benefit of the warehouseman’s custody. But as between the warehouseman and myself, he is in possession and not I. For as against him I have in no way realised my animus possidendi nor in any way obtained a security of use and enjoyment. So in the case of a pledge, the debtor continues to possess quoad the world at large; but as between debtor and creditor, possession is in the latter. The debtor’s possession is mediate and relative; the creditor’s is immediate and absolute. So also with landlord and tenant, bailor and bailee, master and servant, principal and agent, and all other cases of mediate possession.

Here also we may find a test in the operation of prescription. As between landlord and tenant, prescription, if it runs at all, will run in favour of the tenant; but at the same time it may run in favour of the landlord as against the true owner of the property. Let us suppose, for example, that possession for twenty years will in all cases give a good title to land, and that A. takes wrongful possession of land from X., holds it for ten years, and then allows B. to have the gratuitous use of it as tenant at will. In ten years more A. will have a good title as against X., for, as against him, A. has been continuously in possession. But in yet another ten years B., the tenant, will have a good title as against his landlord A., for, as between these two, the possession has been for twenty years in B.

To put the matter in a general form, prescription runs in favour of the immediate against the mediate possessor, but in favour of the mediate possessor as against third persons.

§ 102. Concurrent Possession.

It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. Plures eandem rem in solidum possidere non possunt.^[242] As a general proposition this is true; for exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. Claims, however, which are not adverse, and which are not, therefore, mutually destructive, admit of concurrent realisation. Hence there are several possible cases of duplicate possession.

1. Mediate and immediate possession coexist in respect of the same thing as already explained.

2. Two or more persons may possess the same thing in common, just as they may own it in common. This is called compossessio by the civilians.

3. Corporeal and incorporeal possession may coexist in respect of the same material object, just as corporeal and incorporeal ownership may. Thus A. may possess the land, while B. possesses a right of way over it. For it is not necessary, as we have already seen, that A.’s claim of exclusive use should be absolute; it is sufficient that it is general.

§ 103. The Acquisition of Possession.

Possession is acquired whenever the two elements of corpus and animus come into coexistence, and it is lost so soon as either of them disappears. The modes of acquisition are two in number, namely Taking and Delivery. Taking is the acquisition of possession without the consent of the previous possessor. The thing taken may or may not have been already in the possession of some one else, and in either case the taking of it may be either rightful or wrongful. Delivery, on the other hand, is the acquisition of possession with the consent and co-operation of the previous possessor. It is of two kinds, distinguished by English lawyers as actual and constructive.^[243] Actual delivery is the transfer of immediate possession; it is such a physical dealing with the thing as transfers it from the hands of one person to those of another. It is of two kinds, according as the mediate possession is or is not retained by the transferor. The delivery of a chattel by way of sale is an example of delivery without any reservation of mediate possession; the delivery of a chattel by way of loan or deposit is an instance of the reservation of mediate possession on the transfer of immediate.

Constructive delivery, on the other hand, is all which is not actual, and it is of three kinds. The first is that which the Roman lawyers termed traditio brevi manu, but which has no recognised name in the language of English law. It consists in the surrender of the mediate possession of a thing to him who is already in immediate possession of it. If, for example, I lend a book to some one, and afterwards, while he still retains it, I agree with him to sell it to him, or to make him a present of it, I can effectually deliver it to him in fulfilment of this sale or gift, by telling him that he may keep it. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. For he has already the immediate possession of it, and all that is needed for delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me.^[244]

The second form of constructive delivery is that which the commentators on the civil law have termed constitutum possessorium (that is to say, an agreement touching possession). This is the converse of traditio brevi manu. It is the transfer of mediate possession, while the immediate possession remains in the transferor. Any thing may be effectually delivered by means of an agreement that the possessor of it shall for the future hold it no longer on his own account but on account of some one else. No physical dealing with the thing is requisite, because by the mere agreement mediate possession is acquired by the transferee, through the immediate possession retained by the transferor and held on the other’s behalf. Therefore, if I buy goods from a warehouseman, they are delivered to me so soon as he has agreed with me that he will hold them as warehouseman on my account. The position is then exactly the same as if I had first taken actual delivery of them, and then brought them back to the warehouse, and deposited them there for safe custody.^[245]

The third form of constructive delivery is that which is known to English lawyers as attornment.^[246] This is the transfer of mediate possession, while the immediate possession remains outstanding in some third person. The mediate possessor of a thing may deliver it by procuring the immediate possessor to agree with the transferee to hold it for the future on his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A., and sell them to B., I have effectually delivered them to B., so soon as A. has agreed with B. to hold them for him, and no longer for me. Neither in this nor in any other case of constructive delivery is any physical dealing with the thing required, the change in the animus of the persons concerned being adequate in itself.^[247]

§ 104. Possession not essentially the Physical Power of Exclusion.

According to a widely accepted theory the essence of corporeal possession is to be found in the physical power of exclusion. The corpus possessionis, it is said, is of two kinds, according as it relates to the commencement or to the continuance of possession. The corpus required at the commencement is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it. The corpus required for the retention of a possession once acquired may, on the other hand, consist merely in the ability to reproduce this power at will. Thus I acquire possession of a horse if I take him by the bridle, or ride upon him, or otherwise have him in my immediate personal presence, so that I can prevent all other persons from interfering with him. But no such immediate physical relation is necessary to retain the possession so acquired. I can put the horse in my stable, or let him run in a field. So long as I can go to him when I wish, and reproduce at will the original relation of physical power, my possession has not ceased. To this view of the matter, however, the following objections may be made.^[248]

1. Even at the commencement a possessor need have no physical power of excluding other persons. What physical power of preventing trespass does a man acquire by making an entry upon an estate which may be some square miles in extent? Is it not clear that he may have full possession of land that is absolutely unfenced and unprotected, lying open to every trespasser? There is nothing to prevent even a child from acquiring effective possession as against strong men, nor is possession impossible on the part of him who lies in his bed at the point of death. If I stretch a net in the sea, do I not acquire the possession of the fish caught in it, so soon as they are caught? Yet every other fisherman that passes by has more power of excluding me than I have of excluding him. So if I set traps in the forest, I possess the animals which I catch in them, though there is neither physical presence nor physical power. If in my absence a vendor deposits a load of stone or timber on my land, do I not forthwith acquire possession of it? Yet I have no more physical power over it than any one else has. I may be a hundred miles from my farm, without having left any one in charge of it; but I acquire possession of the increase of my sheep and cattle.

In all such cases the assumption of physical power to exclude alien interference is no better than a fiction. The true test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoyment, and there are other means of attaining this security than personal presence or power. It is true that in time of war the possession of a place must be obtained and defended by cannon and bayonets; but in the peaceful intercourse of fellow-citizens under the rule of law, possession can be acquired and retained on much easier terms and in much simpler fashion. The chances of hostile interference are determined by other considerations than that of the amount of physical force at the disposal of the claimant. We have to take account of the customs and opinions of the community, the spirit of legality and of respect for rightful claims, and the habit of acquiescence in established facts. We have to consider the nature of the uses of which the thing admits, the nature of the precautions which are possibly or usually taken in respect of it, the opinion of the community as to the rightfulness of the claim seeking to realise itself, the extent of lawless violence that is common in the society, the opportunities for interference and the temptations to it, and lastly but not exclusively the physical power of the possessor to defend himself against aggression. If, having regard to these circumstances and to such as these, it appears that the animus possidendi has so prospered as to have acquired a reasonable security for its due fulfilment, there is true possession, and if not, not.

2. In the second place it is by no means clear how it is possible for possession at its commencement and possession in its continuance to be made up of different elements. How can it be that possession at its inception involves actual physical power of exclusion, while in its continuance it involves merely the power of reproducing this primary relationship? Possession is a continuing de facto relation between a person and a thing. Surely, therefore, it must from beginning to end have the same essential nature. What is that nature? Savigny’s theory affords no answer. It tells us, at the most, how possession begins, and how it ceases; but we wish to know what it essentially and continuously is.

3. Thirdly and lastly, the theory which we are considering is inapplicable to the possession of incorporeal things. Even if it successfully explained the possession of land, it would afford no explanation of the possession of a right of way or other servitude. Here there is neither exclusion nor the power of exclusion. It is, on the contrary, the possessor of the servient land who has the physical power of excluding the possessor of the servitude. If I possess an easement of light, what power have I to prevent its infringement by the building operations of my neighbour? It is true that this is not a conclusive objection to Savigny’s analysis; for it remains perfectly open to him to rejoin that possession in its proper sense is limited to the possession of corporeal things, and that its extension to incorporeal things is merely analogical and metaphorical. The fact remains, however, that this extension has taken place; and, other things being equal, a definition of possession which succeeds in including both its forms is preferable to one which is forced to reject one of them as improper.

§ 105. Incorporeal Possession.

Hitherto we have limited our attention to the case of corporeal possession. We have now to consider incorporeal, and to seek the generic conception which includes both these forms. For I may possess not the land itself, but a way over it, or the access of light from it, or the support afforded by it to my land which adjoins it. So also I may possess powers, privileges, immunities, liberties, offices, dignities, services, monopolies. All these things may be possessed as well as owned. They may be possessed by one man, and owned by another. They may be owned and not possessed, or possessed and not owned.

Corporeal possession is, as we have seen, the continuing exercise of a claim to the exclusive use of a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the non-exclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example a trade-mark, a patent, or an office of profit).

In each kind of possession there are the same two elements required, namely the animus and the corpus. The animus is the claim—the self-assertive will of the possessor. The corpus is the environment of fact in which this claim has realised, embodied, and fulfilled itself. Possession, whether corporeal or incorporeal, exists only when the animus possidendi has succeeded in establishing a continuing practice in conformity to itself. Nor can any practice be said to be continuing, unless some measure of future existence is guaranteed to it by the facts of the case. The possession of a thing is the de facto condition of its continuous and secure enjoyment.

In the case of corporeal possession the corpus possessionis consists, as we have seen, in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential. I may lock my watch in a safe, instead of keeping it in my pocket; and though I do not look at it for twenty years, I remain in possession of it none the less. For I have continuously exercised my claim to it, by continuously excluding other persons from interference with it. In the case of incorporeal possession, on the contrary, since there is no such claim of exclusion, actual continuous use and enjoyment is essential, as being the only possible mode of exercise. I can acquire and retain possession of a right of way only through actual and repeated use of it. In the case of incorporeal things continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The Roman lawyers distinguish between possessio juris and possessio corporis, and the Germans between Rechtsbesitz and Sachenbesitz. Adopting this nomenclature, we may define incorporeal possession as the continuing exercise of a right, rather than as the continuing exercise of a claim. The usage is one of great convenience, but it must not be misunderstood. To exercise a right means to exercise a claim as if it were a right. There may be no right in reality; and where there is a right, it may be vested in some other person, and not in the possessor. If I possess a way over another’s land, it may or may not be a right of way; and even if it is a right of way, it may be owned by some one else, though possessed by me. Similarly a trade-mark or a patent which is possessed and exercised by me may or may not be legally valid; it may exist de facto and not also de jure; and even if legally valid, it may be legally vested not in me, but in another.^[249]

The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership. Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. Now in the case of ownership we have already seen that this distinction between things and rights is merely the outcome of a figure of speech, by which a certain kind of right is identified with the material thing which is its object. A similar explanation is applicable in the case of possession. The possession of a piece of land means in truth the possession of the exclusive use of it, just as the possession of a right of way over land means the possession of a certain non-exclusive use of it. By metonymy the exclusive use of the thing is identified with the thing itself, though the non-exclusive use of it is not. Thus we obtain a distinction between the possession of things and the possession of rights, similar to that between the ownership of things and the ownership of rights.^[250]

In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are. Possession in its full compass and generic application means the continuing exercise of any claim or right.

§ 106. Relation between Possession and Ownership.

“Possession,” says Ihering,^[251] “is the objective realisation of ownership.” It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible; and indeed they normally coexist. But where there is no law, or where the law is against a man, he must content himself with the precarious security of the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also. Beati possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong, or the special nature of the claims in question. Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itself as ownership. The law of prescription determines the process by which, through the influence of time, possession without title ripens into ownership, and ownership without possession withers away and dies.^[252]

Speaking generally, ownership and possession have the same subject-matter. Whatever may be owned may be possessed, and whatever may be possessed may be owned. This statement, however, is subject to important qualifications. There are claims which may be realised and exercised in fact without receiving any recognition or protection from the law, there being no right vested either in the claimant or in any one else. In such cases there is possession without ownership. For example, men might possess copyrights, trade-marks, and other forms of monopoly, even though the law refused to defend those interests as legal rights. Claims to them might be realised de facto, and attain some measure of security and value from the facts, without any possibility of support from the law.

Conversely there are many rights which can be owned, but which are not capable of being possessed. They are those which may be termed transitory. Rights which do not admit of continuing exercise do not admit of possession either. They cannot be exercised without being thereby wholly fulfilled and destroyed; therefore they cannot be possessed. A creditor, for example, does not possess the debt that is due to him; for this is a transitory right which in its very nature cannot survive its exercise. But a man may possess an easement over land, because its exercise and its continued existence are consistent with each other. It is for this reason that obligations generally (that is to say, rights in personam as opposed to rights in rem) do not admit of possession. It is to be remembered, however, that repeated exercise is equivalent in this respect to continuing exercise. I may possess a right of way through repeated acts of use, just as I may possess a right of light or support through continuous enjoyment. Therefore even obligations admit of possession, provided that they are of such a nature as to involve a series of repeated acts of performance. We may say that a landlord is in possession of his rents, an annuitant of his annuity, a bondholder of his interest, or a master of the services of his servant.^[253]

We may note finally that, although incorporeal possession is possible in fact of all continuing rights, it by no means follows that the recognition of such possession, or the attribution of legal consequences to it, is necessary or profitable in law. To what extent incorporeal possession exists in law, and what consequences flow from it, are questions which are not here relevant, but touch merely the details of the legal system.

§ 107. Possessory Remedies.

In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems,^[254] however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who retakes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.

Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).

This duplication of remedies, with the resulting provisional protection of possession, has its beginnings in Roman law. It was taken up into the canon law, where it received considerable extensions, and through the canon law it became a prominent feature of medieval jurisprudence. It is still received in modern Continental systems; but although well known to the earlier law of England, it has been long since rejected by us as cumbrous and unnecessary.

There has been much discussion as to the reasons on which this provisional protection of possession is based. It would seem probable that the considerations of greatest weight are the three following.

1. The evils of violent self-help are deemed so serious that it must be discouraged by taking away all advantages which any one derives from it. He who helps himself by force even to that which is his own must restore it even to a thief. The law gives him a remedy, and with it he must be content. This reason, however, can be allowed as valid only in a condition of society in which the evils and dangers of forcible self-redress are much more formidable than they are at the present day. It has been found abundantly sufficient to punish violence in the ordinary way as a criminal offence, without compelling a rightful owner to deliver up to a trespasser property to which he has no manner of right, and which can be forthwith recovered from him by due course of law. In the case of chattels, indeed, our law has not found it needful to protect possession even to this extent. It seems that an owner who retakes a chattel by force acts within his legal rights. Forcible entry upon land, however, is a criminal offence.

2. A second reason for the institution of possessory remedies is to be found in the serious imperfections of the early proprietary remedies. The procedure by which an owner recovered his property was cumbrous, dilatory, and inefficient. The path of the claimant was strewn with pitfalls, and he was lucky if he reached his destination without disaster. The part of plaintiff in such an action was one of grave disadvantage, and possession was nine points of the law. No man, therefore, could be suffered to procure for himself by violence the advantageous position of defendant, and to force his adversary by such means to assume the dangerous and difficult post of plaintiff. The original position of affairs must first be restored; possession must first be given to him who had it first; then, and not till then, would the law consent to discuss the titles of the disputants to the property in question. Yet however cogent such considerations may have been in earlier law, they are now of little weight. With a rational system of procedure the task of the plaintiff is as easy as that of the defendant. The law shows no favour to one rather than to the other.

3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership. It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to those of his opponent. Every man should bear his own burden. He who takes a thing by force must restore it to him from whom he has taken it; let him then prove, if he can, that he is the owner of it; and the law will then give to him what it will not suffer him to take for himself. But English law has long since discovered that it is possible to attain this end in a much more satisfactory and reasonable way. It adjusts the burden of proof of ownership with perfect equity, without recourse to any such anomaly as the protection of the possessor against the owner. This it does by the operation of the three following rules:

1. Prior possession is prima facie proof of title. Even in the ordinary proprietary action a claimant need do nothing more than prove that he had an older possession than that of the defendant; for the law will presume from this prior possession a better title. Qui prior est tempore potior est jure.

2. A defendant is always at liberty to rebut this presumption by proving that the better title is in himself.

3. A defendant is not allowed to set up the defence of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiff’s claim, that neither the plaintiff nor he himself, but some third person, is the true owner. Let every man come and defend his own title. As between A. and B. the right of C. is irrelevant.

By the joint operation of these three rules the same purpose is effected as was sought in more cumbrous fashion by the early duplication of proprietary and possessory remedies.^[255]

SUMMARY OF CHAPTERS XIII. AND XIV.