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The alterations which have been thus made from Character of time to time in the laws of which a condensed view in these laws.

the alterations has been here noticed cannot fail to strike the attentive and thoughtful reader as exhibiting the marked, although slow, progress of wise and liberal principles in legislation directed to securing the peaceable enjoyment of property and thereby the happiness of society generally, and that, in various ways, the consolidation of these laws would be attended with great and permanent advantage.

BOOK II.

POSSESSION.

basis of pre

Possession the In classifying the entire system of civil rights the law scription,

of property might be divided into (a) the law of obligations and (b) the law of things, and under the former class would be included possession(a), possessio, pedis positio, or quasi pedis positio(6), which is the basis of the laws of prescription, and, by the law, as an argument of right, is ever favoured (c). And in considering those laws an examination of the nature and meaning of possession is an essential and necessary preliminary to the consideration, and for a clear and accurate comprehension and appreciation of those laws.

CHAPTER I.

THE MEANING OF THE TERM POSSESSION AS APPLIED

TO THINGS CORPOREAL AND TO THINGS INCORPO

REAL.

Possession as As regards things corporeal, or quæ tangi potest et to things cor- videri(d), by the possession of a thing we always conporeal.

ceive the condition in which, not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded. This condition, simply and in itself, is called

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detention, by means of which the exercise of property takes place, and is thus the condition of fact, corresponding to property as the condition of law(e). The most comprehensive description that can be given of the material notion of possession is detention. joined with the animus possidendi, which latter expression must be explained differently, according to whether original or derivative possession is in question; in the former it denotes the animus domini, in the latter the intention to enjoy that jus possessionis which formerly belonged to another(f). And when the possessor has also the dominium, or property, it is so blended with the possession as, during the continuance of the latter, to be absorbed or suspended in it. Thus, if one have right or title to land, and afterwards come to the possession of the same land, his right or title is extinct or suspended in the land, for during the time that he has the possession of the land the right or title is not in esse(g). Or in other words, by the union in the same person of the dominium with the possession, the condition of fact is the primary object regarded, and the condition of law secondary only. In considering possession, however, not merely as the Distinction

between jus consequence of a right, but as the foundation of rights,

possessionis an important distinction in the use of the term is to be and jus possi

dendi. noticed and kept in view. Viewed as the foundation of rights, jus possessionis, or rights of possession, that is, rights springing from or pertaining to possession, differs from jus possidendi, or the right to possess, which is part of the theory of property (h). The former is often confounded with and used instead of the latter(ë); and, as has been frequently observed, is a common and fruitful source of confused ideas on this subject.

(e) Taylor's Elements of Civil (i) See 2 Com. 195 et seq.; 3 Law, 476; Sav. Poss. B. i.

Ib. 177, 178, 179, 190, 191; 14 (f) Sav. on Poss. B. i. s. 9. Q. B. 72, 73; Austin's Outline, (9) Plowd. 88.

Xxxv. et seq. (h) Sav. on Poss. B. i. s. 1.

Applicable to Possession, properly so called, or true possession, conthings corpo- sists in the exercise of property (i), and in the common real only.

law of England is called seisin (j), and extends to only those things of which a man by his entry or other act may get the actual possession (k), and, properly, is applied to goods and chattels, and when applied to freeholds is termed seisin ; although sometimes one term and sometimes the other is then used (1). The word, however, is always to be understood secundùm subjectam materiam (m). In the 32 Hen. 8, c. 2, the word seisin is used indefinitely; and, therefore, if the statute had not gone further, the word seisin should have been construed secundùm subjectam materiamsometimes for actual seisin and sometimes for seisin in law(n). In this statute (o), the words are “actual possession or seisin," and they were held to embrace both actual seisin or seisin in fact, and also seisin in law. In the Irish Nullum Tempus Act(p) are used the terms “actual seisin,” which in the case of Tuthill v. Rogers(9), Blackburne, M. R., thought meant actual possession; but Sir E. Sugden, L. C., having regard to those terms as applied to the property of the Crown, and the facts and nature of the case before the court, hesitated to adopt that interpretation, observing that they are omitted in the English Nullum Tempus

Acts(r), and are first introduced into the Irish Act. Not strictly As regards things incorporeal, that is, quæ in jure applicable to

consistunt, or mere rights, not being susceptible of things incorporeal. manual possession, or possession truly and properly so

called, but only quasi possession, the term possession is not strictly applicable to them. With respect to all these rights generally, which, as several elements of property are opposed, under the names of jura or jura in re, to dominium, as the totality of all real rights generally, no animus domini, and consequently no true possession, can be ascribed to him who enjoys them. But as the enjoyment of them may be interfered with in exactly the same way as the enjoyment of property itself, it follows that possession may have reference to other rights besides property (8). As, however, true possession consists in the exercise of property, so this quasi possession consists in the exercise of a jus in re; and as in true possession we possess the subject itself, possessio corporis, but not the property, we ought not properly to use the term possession of a servitude, possessio juris. But as we have no other word to which we can couple the possession in this case, nothing remains but to use the above improper expression, and that nothing else is meant by it than the exercise of a jus in re, which stands in the same relation to the actual jus in re as true possession does to property (s).

(i) Bract. lib. 2, c. 17, s. 2; Savigny, B. i. s. 12, p. 131; B. ii. s. 25, p. 213, by Perry.

(3) Co. Litt. 153 a.
(R) Co. Litt. 15b; 3 Rep. 42.

(1) Co. Litt. 17 a; Bac. Uses, 42.

(m) Per Buller, J., 1 T. R.

430.

(n) Bevil's case, 4 Co. 8, 10.

(0) See also 33 Hen. 8, c. 20, S. 2.

(P) 48 Geo. 3, c. 47.
(9) 2 Jo. & La T. 36.

(r) 21 James 1, cc. 2, 14; 9 Geo. 3, c. 16.

(8) Sav. Poss. B. i. s. 12.

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