211. On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The Place of Trust in Jurisprudence, by W. G. Hart).

212. Vide supra, § 85.

213. On investitive and divestitive facts, see chapter xvi., § 120.

214. On vested and contingent ownership, see Windscheid, I. sects. 86–95; Dernburg, Pandekten, I. 82. 105–112; Austin, Lecture 53.

215. Possession in law is sometimes used in a narrow sense to denote possession which is such in law only and not both in law and in fact—that is to say, to denote constructive possession (possessio fictitia). In the wider sense it denotes all possession which is recognised by the law, whether it does or does not at the same time exist in fact.

216. See, as to the idea of seisin and the consequences attributed to its presence or absence, a series of interesting articles by Maitland in the L. Q. R., I. 324, II. 481. IV. 24, 286. See also Lightwood, Possession of Land, pp. 4–8.

217. Possessio is the de facto relation between the possessor and the thing possessed. Jus possessionis is the right (if any) of which possession is the source or title. Jus possidendi is the right (if any) which a man has to acquire or to retain possession.

218. D. 41. 2. 3. 1.

219. It must be remembered that we are speaking of possession in fact. Whether possession in law and the various advantages conferred by it are to be attributed to all possessors in fact or only to some of them is a different question with which we are not here concerned. Roman Law, save in exceptional cases, allowed possessio corporis only to those who possessed as owners and on their own behalf. In English law, on the other hand, there is no such limitation of legal possession; though even here the possession of a servant sometimes fails to obtain legal recognition.

220. R. v. Mucklow, 1 Moody C. C. 160.

221. Merry v. Green, 7 M. & W. 623.

222. Pollock and Wright, Possession in the Common Law, p. 14.

223. “Absolute security for the future,” says Dernburg, Pandekten, I. sect. 169, “is not requisite. For it is not to be had.... All that is necessary is that according to the ordinary course of affairs one is able to count on the continuing enjoyment of the thing.” See also I. sect. 178. See also Pollock and Wright, Possession, p. 13: “That occupation is effective which is sufficient as a rule and for practical purposes to exclude strangers from interfering with the occupier’s use and enjoyment.”

224. Pollock and Wright, Possession, p. 15: “Physical or de facto possession readily follows the reputation of title.”

225. In the words of Ihering: “The visibility of possession is of decisive importance for its security.” Grund des Besitzesschutzes, p. 190.

226. 21 L. J. Q.B. 75.

227. L. & C. 1.

228. 7 M. & W. 623.

229. 8 Ves. 405. 7 R. R. 99.

230. 1 Moody C. C. 160.

231. 33 Ch. D. 562.

232. (1896) 2 Q. B. 44.

233. 1 Smith L. C, 10th ed. 343; 1 Strange 504.

234. See for a criticism of the ratio decidendi of this case Clerk and Lindsell’s Law of Torts, Appendix.

235. 33 Ch. D. 562 at p. 568.

236. The explicit recognition of mediate possession (mittelbarer Besitz) in its fullest extent is a characteristic feature of the German Civil Code (sects. 868–871): “If any one possesses a thing as usufructuary, pledgee, tenant, borrower, or depositee, or in any similar capacity by virtue of which he is entitled or bound with respect to some other person to keep possession of the thing for a limited time, then that other person has possession of it also (mediate possession).” See Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp. 697–701.

237. In Ancona v. Rogers (1 Ex. D. at p. 292) it is said in the judgment of the Exchequer Chamber: “There is no doubt that a bailor who has delivered goods to a bailee to keep them on account of the bailor, may still treat the goods as being in his own possession, and can maintain trespass against a wrongdoer who interferes with them. It was argued, however, that this was a mere legal or constructive possession of the goods.... We do not agree with this argument. It seems to us that goods which have been delivered to a bailee to keep for the bailor, such as a gentleman’s plate delivered to his banker, or his furniture warehoused at the Pantechnicon, would in a popular sense as well as in a legal sense be said to be still in his possession.”

238. (1893) 2 Q. B. 30, 31.

239. 1 Taunt. 458; 10 R. R. 578.

240. 6 El. & B. 726.

241. At p. 735.

242. D. 41. 2. 3. 5.

243. These terms, however, are not strictly accurate, inasmuch as the so-called constructive delivery is a perfectly real transfer of possession, and involves no element of fiction whatever.

244. For examples of traditio brevi manu, see Winter v. Winter, 4 L. T. (N.S.) 639; Cain v. Moon, (1896) 2 Q. B. 283; Richer v. Voyer, L. R. 5 P. C. 461.

245. For examples of constitutum possessorium, see Elmore v. Stone, 1 Taunt. 458; 10 R. R. 578; Marvin v. Wallace, 6 El. & Bl. 726. See supra § 101.

246. Constitutum possessorium, also, may be termed attornment in a wide sense.

247. Delivery by attornment is provided for by the Sale of Goods Act, 1893, sect. 29 (3): “Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.”

248. The theory here considered is that which has been made familiar by Savigny’s celebrated treatise on Possession (Recht des Besitzes, 1803). The influence of this work was long predominant on the Continent and considerable in England, and it still finds no small amount of acceptance. A forcible statement of the objections to Savigny’s doctrine is contained in Ihering’s Grund des Besitzesschutzes, pp. 160–193.

249. Bruns rejects the definition of possession as consisting in the continuing exercise of a right, and defines it as the continuous possibility of exercising a right at will. “Just as corporeal possession,” he says (Recht des Besitzes, p. 475) “consists not in actual dealing with the thing, but only in the power of dealing with it at will, so incorporeal possession consists not in the actual exercise of a right, but in the power of exercising it at will; and it is only because the existence of this power does not become visible as an objective fact until actual exercise of the right has taken place, that such actual exercise is recognised as an essential condition of the commencement of possession.” This however seems incorrect. Possession consists not in the power of exercising a claim in the future, but in the power of continuing to exercise it from now onwards.

250. Thus in the Civil Code of France it is said (sect. 2228): La possession est la détention ou la jouissance d’une chose ou d’un droit que nous tenons ou que nous exerçons par nous-mêmes ou par un autre qui la tient ou qui l’exerce en notre nom.

The definition of the Italian Civil Code is similar (sect. 685): “Possession is the detention of a thing or the enjoyment of a right by any person either personally or through another who detains the thing or exercises the right in his name.”

A good analysis of the generic conception of possession, and of the relation between its two varieties, is to be found in Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect. 199): “Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing. It makes no difference whether this right is one of ownership or one of some other description, such as ususfructus, usus, habitatio, or servitus. The old distinction between possession and quasi-possession, which was recognised by Roman law and is still to be found in the doctrine of Pothier, has been rejected, and rightly so. It was in our opinion nothing more than a result of that confusion between the right of ownership and the object of that right, which has been at all times prevalent. Possession is merely the exercise of a right; in reality it is not the thing which we possess, but the right which we have or claim to have over the thing. This is as true of the right of ownership as of the right of servitude and usufruct; and consequently the distinction between the possession of a thing and the quasi-possession of a right is destitute of foundation.

See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms of possession consist in the exercise of a right (die Ausübung eines Rechts).” Bruns, also, recognises the figure of speech on which the distinction between corporeal and incorporeal possession is based. Recht des Besitzes, p. 477.

251. Grund des Besitz, p. 179: Der Besitz die Thatsächlichkeit des Eigenthums. See also at p. 192: Der Besitz ist die Thatsächlichkeit des Rechts.

252. In saying that possession is the de facto counterpart of ownership, it is to be remembered that we use both terms in their widest sense, as including both the corporeal and incorporeal forms. If we confine our attention to corporeal ownership and possession, the correspondence between them is incomplete. Many claims constitute corporeal possession if exercised de facto, but incorporeal ownership if recognised de jure. Thus tenants, bailees, and pledgees have corporeal possession but incorporeal ownership. They possess the land or the chattel, but own merely an encumbrance over it. The ownership of a book means the ownership of the general or residuary right to it; but the possession of a book means merely the possession of an exclusive right to it for the time being. That is to say, the figurative usage of speech is not the same in possession as in ownership, therefore much corporeal possession is the counterpart of incorporeal ownership.

253. Windscheid II. sect. 464: “If we ask what other rights, in addition to real rights, admit of possession, the answer is that in principle no right is incapable of possession, which is capable of continuing exercise (dauernde Ausübung).”

So Ihering, Grund des Besitz, p. 158: “The conception of possession is applicable to all rights which admit of realisation (Thatsächlichkeit), that is to say, which admit of a continuing visible exercise.” Ihering defines possession generally (p. 160) as “Thatsächlichkeit der mit dauernder Ausübung verbundenen Rechte.” See also Bruns, Recht des Besitzes, pp. 479, 481.

254. See for example the German Civil Code, sects. 858, 861, 864, and the Italian Civil Code, sects. 694–697.

255. Asher v. Whitlock, L. R. 1 Q. B. 1. Armorie v. Delamirie, 1 Stra. 504. 1 Sm. L. C. 10th ed. 343. Bridges v. Hawkesworth, 21 L. J. Q. B. 75.

256. Legal persons are also termed fictitious, juristic, artificial, or moral.

257. Exodus xxi. 28. To the same effect see Plato’s Laws, 873.

258. Ellis v. Loftus Iron Company, L. R. 10 C. P. at p. 13: “In the case of animals trespassing on land the mere act of the animal belonging to a man which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass.” Cf. Just. Inst. iv. 9.

259. D. 1. 5. 2.

260. In re Dean, 41 Ch. D. 552.

261. Ibid. p. 557.

262. Hereditas personae vice fungitur. D. 46. 1. 22. Creditum est hereditatem dominam esse, defuncti locum obtinere. D. 28. 5. 31. 1.

263. Williams v. Williams, 20 Ch. D. 659.

264. R. v. Raynes, 2 East P. C. 652.

265. Foster v. Dodd, L. R. 3 Q. B. at p. 77: “Whether in ground consecrated or unconsecrated indignities offered to human remains in improperly and indecently disinterring them, are the ground of an indictment.”

266. R. v. Stewart, 12 Ad. and El. 777. As to the lawfulness of cremation see Reg. v. Price, 12 Q. B. D. 247.

267. Williams v. Williams, 20 Ch. D. 659.

268. 2 & 3 Wm. IV. c. 75, sect. 7.

269. In re Vaughan, 33 Ch. D. 187; Hoare v. Osborne, 1 Eq. 587.

270. In re Dean, 41 Ch. D. 557.

271. 5 Co. Rep 125 a: R. v. Labouchere, 12 Q. B. D. 320; Stephen’s Digest of Criminal Law, sect. 291. 5th ed.

272. 7 Co. Rep. 8 b. Compare D. 1. 5. 26: Qui in utero sunt in toto paene jure civili intelleguntur in rerum natura esse.

273. The George and Richard, L. R. 3 Ad. and Ecc. 466.

274. R. v. Senior, 1 Moody, C. C. 344; R. v. West, 2 Car. and Kir. 784.

275. Walker v. Great Northern Ry. Co. of Ireland, 28 L. R. Ir. 69.

276. The maxim of the law is: Quum duo jura in una persona concurrunt, aequum est ac si essent in duobus. Calvin’s Case, 2 State Trials 584. Coppin v. Coppin, 2 P. W. 295.

277. D. 8. 2. 26.

278. German writers term it the substratum or Unterlage of the fictitious person. Windscheid, I. sect. 57. Vangerow, I. sect. 53. Puchta, II. 192.

279. Co. Litt. 2. a.

280. 8 Ed. VII. c. 48, s. 33.

281. 39 & 40 Vict. c. 18, s. 1.

282. 18 & 19 Vict. c. 117, s. 2.

283. Corporations sole are not a peculiarity of English law. The distinction between the two forms of incorporation is well known to foreign jurists. See Windscheid, I. sect. 57. Vangerow, I. sect. 53. The English law as to corporations sole is extremely imperfect and undeveloped, but the conception itself is perfectly logical, and is capable of serious and profitable uses. Maitland has traced the history of this branch of the law in two articles in the L. Q. R. XVI. p. 335. and XVII. p. 131.

284. Savigny, System, sect. 90: “The aggregate of the members who compose a corporation differs essentially from the corporation itself.” The Great Eastern Ry. Co. v. Turner, L. R. 8 Ch. at p. 152: “The Company is a mere abstraction of law.” Flitcroft’s Case, 21 Ch. D. at p. 536: “The corporation is not a mere aggregate of shareholders.” Salomon v. Salomon & Co. (1897) A. C. at p. 51: “The company is at law a different person altogether from the subscribers to the memorandum.”

285. D. 3. 4. 7. 2. Cum jus omnium in unum reciderit, et stet nomen universitatis. Universitas is the generic title of a corporation in Roman law, a title retained to this day in the case of that particular form of corporation which we know as a university.

286. Blackstone, I. 485.

287. Lindley on Companies, II. p. 822 (6th ed.): “A company which is incorporated by act of parliament can be dissolved only as therein provided, or by another act of parliament.”

288. That a corporation may survive the last of its members is admitted by Savigny (System, sect. 89), and Windscheid (I. sect. 61).

289. The leading advocate of this realistic theory is Gierke (Die Genossenschaftstheorie, 1887. Deutsches Privatrecht, 1895). See also Dernburg, Pandekten, I. sect. 59, and Mestre, Les Personnes Morales, 1899. In England it has received sympathetic exposition, if not express support, from Maitland in the Introduction to his translation of part of Gierke’s Genossenschaftsrecht (Political Theories of the Middle Ages, 1900). See also, to the same effect, Pollock, Jurisprudence, p. 113, and L. Q. R. vol. 27, p. 219; Brown, Austinian Theory of Law, Excursus A; 22 L. Q. R. 178, The Legal Personality of a Foreign Corporation, by E. H. Young. Savigny and Windscheid are representative adherents of the older doctrine. For further discussions of this question see Harvard Law Review, vol. xxiv. pp. 253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly Review, vol. xxvii. p. 90 (Legal Personality, by Prof. W. M. Geldart); Gray’s Nature and Sources of the Law, ch. 2; Saleilles, De la personnalité juridique.

290. The relation between a corporation and its beneficiaries may or may not amount to a trust in the proper sense of the term. A share in a company is not the beneficial ownership of a certain proportion of the company’s property, but the benefit of a contract made by the shareholder with the company, under which he is entitled to be paid a share of the profits made by the company, and of the surplus assets on its dissolution. A share is a chose in action—an obligation between the company and the shareholder. Colonial Bank v. Whinney, 11 A. C. 426.

291. Cornford v. Carlton Bank, (1899) 1 Q. B. 392; (1900) 1 Q. B. 22.

292. Reg. v. Birmingham and Gloucester Ry. Coy., 3 Q. B. 223; Reg. v. Great North of England Ry. Coy., 9 Q. B. 315.

293. As to the liability of corporations, see Salmond’s Law of Torts, § 18; Pollock’s Law of Torts, p. 60, 8th ed.; Cornford v. Carlton Bank, (1899) 1 Q. B. 392; Citizens’ Life Assurance Co. v. Brown, (1904) A. C. 423; Green v. London General Omnibus Coy., 7 C. B. (N. S.) 290; Abrath v. North Eastern Railway Co., 11 A. C. 247, per Baron Bramwell; Dernburg, Pandekten, I. sect. 66; Windscheid, I. sect. 59; Savigny, System, sects. 94, 95; D. 4. 3. 15. 1.

294. D. 3. 4. 7. 1.

295. It is a somewhat curious circumstance that the legal persons created by one system of law receive full recognition from other systems. This form of legal fiction has acquired extraterritorial and international validity. A French corporation can sue and be sued in an English court of justice as if it were a real person. The Dutch West India Co. v. Van Moses, 1 Str. 611; Newby v. Van Oppen, L. R. 7 Q. B. 293.

296. Calvin’s Case, 2 State Trials, at p. 624: “The King hath two capacities in him: one a natural body, being descended of the blood royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like: the other is a politick body or capacity, so called because it is framed by the policy of man; and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy.” As to the history of this idea see Holdsworth’s History of English Law, III. pp. 357–362.

297. Sloman v. Government of New Zealand, 1 C. P. D. 563. This was an action brought in England against the “Governor and Government of the Colony of New Zealand.” It failed because there was no such person or body corporate known to the law.

298. See Williams v. Howarth, (1905) A. C. 551.

299. The Commonwealth of Australia, for example, and also the constituent Australian states are now to be deemed for certain purposes bodies politic and corporate. For by virtue of Australian legislation they can now sue and be sued in their own names, and possess other attributes of personality; thus an action will now lie at the suit of the State of Victoria against the State of New South Wales. The corporate character thus bestowed upon these states, however, is concurrent with, and not exclusive of the old common law principle which identifies the state with the King. Public lands in Australia, for example, are still the lands of the Crown, except so far as they may be expressly vested in the corporate state by statute.

300. Supra, § 112.

301. It has been expressly recognised by the High Court of Australia, so far as regards the Commonwealth of Australia and the constituent states: Municipal Council of Sydney v. The Commonwealth, 1 Commonwealth L. R. at p. 231, per Griffith, C. J.: “It is manifest from the whole scope of the Constitution that just as the Commonwealth and State are regarded as distinct and separate sovereign bodies,...so the Crown as representing those several bodies is to be regarded not as one, but as several juristic persons.”

302. Title meant originally a mark, sign, or inscription; e.g., the title of a book; titulus sepulchri, an epitaph. “Pilate wrote a title and put it on the cross.” John xix. 19. Thence more specifically it came to mean signs or evidence of right or ownership; e.g., titulus, a boundary-stone; titulus, a title-deed (Ducange). Thence the ground of right or ownership, viz., an investitive fact.

303. Bentham calls such facts dispositive.

304. We may term them, with Bentham, translative facts.

305. We here use the term transfer in its generic sense, as including both voluntary and involuntary changes of ownership. It has also a specific sense in which it includes only the former. Succession ab intestato, for example, is a transfer of rights in the wide sense, but not in the narrow.

306. This nomenclature has been suggested and adopted by Sir Frederick Pollock (Jurisprudence, p. 142). Other writers prefer to indicate acts in the law by the term juristic acts. The Germans call them Rechtsgeschäfte.

307. The use of the terms agreement and contract is curiously unsettled.

a. Agreement and contract are often used as synonyms, to mean a bilateral act in the law directed to the creation of an obligation, that is to say a right in personam. The objection to this usage is that we cannot afford so to waste one of these terms.

b. Contract is sometimes used to mean an agreement (in the preceding sense) enforceable by law. Pollock, Principles of Contract, p. 8. Indian Contract Act, sect. 2 (h). This, also, seems the sacrifice of a useful term to an inadequate purpose. Moreover the distinction does not conform to established usage. We habitually and conveniently speak of void, invalid, or illegal contracts.

c. Contract is sometimes used in the wide sense of any bilateral act in the law. Holland, pp. 225, 226. This, however, is very unusual, and it is certainly better to use agreement in this sense. Contract, being derived from contrahere, involves the idea of binding two persons together by the vinculum juris of an obligation. An assignment is not a contract, and a release is the very reverse of a contract.

d. There remains the usage suggested and adopted in the text. An agreement is a bilateral act in the law. Est pactio duorum pluriumve in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the other hand, is that particular kind of agreement which is intended to create a right in personam between the parties. This is the distinction adopted by Sir W. Anson in his work on Contracts, p. 2: “Contract is that form of agreement which directly contemplates and creates an obligation.” So Pothier, Traité des Obligations, sect. 3; L’espèce de convention qui a pour objet de former quelque engagement est celle qu’on appelle contrat. Cf. French Civil Code, Art. 1101. The Germans use Vertrag as equivalent to agreement in this sense; while a contract is obligatorischer Vertrag, or Vertrag in a narrower sense. Savigny, System, sect. 141. Puchta, sect. 271. Dernburg, Pandekten, I. sect. 92.

308. Middleton v. Pollock, 2 Ch. D. 104; Sharp v. Jackson, (1899) A. C. 419.

309. The terms unilateral and bilateral possess another signification distinct from that which is attributed to them in the text. In the sense there adopted all agreements are bilateral, but there is another sense in which some of them are bilateral and others unilateral. An agreement is bilateral, in this latter signification, if there is something to be done by each party to it, while it is unilateral if one party is purely passive and free from legal obligation, all the activity and obligation being on the other side. An agreement to lend money is bilateral, while an agreement to give money is unilateral.

310. D. 50, 17. 69.

311. Summa, 2. 2. q. 57. art. 2.

312. In respect of the efficacy of contracts, there is a special case which requires a word of notice. A contract may be neither void nor voidable, but yet unenforceable. That is to say, no action will lie for the enforcement of it. The obligation created by it is imperfect. See ante, § 78. An example is a verbal contract which ought to be in writing under the Statute of Frauds.

313. D. 50. 17. 45. 1.

314. Cundy v. Lindsay, 3 A.C. 459; Raffles v. Wichelhaus, 2 H. & C. 906.

315. King v. Smith, (1900) 2 Ch. 425.

316. Smith v. Hughes, L. R. 6 Q. B. 597.

317. In addition to the ease of misrepresentation, unessential error affects any agreement which has been expressly or impliedly made conditional on the existence of the fact erroneously supposed to exist. A contract of sale, for example, is conditional on the present existence of the thing sold; if it is already destroyed, the contract for the purchase of it is void.

318. With the exception of contracts under seal and contracts of record, to which the doctrine of consideration is inapplicable.

319. Cf. D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit. See also D. 12. 7. 1. pr.

320. Salmond, Essays in Jurisprudence and Legal History, p. 219.

321. The French law as to the cause or consideration of a contract will be found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie, Obligations, sects. 295–327. Whether the English doctrine of consideration is historically connected with the causa of the civil law in a matter of dispute, and there is much to be said on both sides.

322. We have already seen that the term liability has also a wider sense, in which it is the correlative of any legal power or liberty, and not merely of the right of action or prosecution vested in a person wronged. Supra, § 77.

323. Supra, § 27.

324. Supra, § 34.