Posesion

1

AN ESSAY
ON

POSSESSION
IN THE COMMON LAW1
PARTS I AND II
BY

FREDERICK POLLOCK, M.A., HON. LL.D. EDIN.
OF LINCOLN’S INN, BARISER-AT-LAW
CORPUS CRISTI PROFESSOR OF JURISPRIDENCE IN THE UNIVERSITY OF OXFORD
PROFESSOR OF COMMON LAW IN THE INNS OF COURT

PART III
BY

ROBERT SAMUEL WRIGHT, B.C.L.
OF THE INNER TEMPLE, BARRISTER-AT-LAW

OXFORD
AT THE CLARENDON PRESS
1888

1This copy scanned in Sydney in 2003 by Troy Rollo, who disclaims all copyright that may exist in relation thereto. As the copyright on this essay has otherwise expired, it
may be copied without restriction. Errors in the original document have generally been left in place, with the only intentional changes in this document being to
typographical conventions relating to abbreviations. Forcorrections, see http://free-law-books.troy.rollo.name/ - this copy last corrected 2003-02-08.

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PREFACE.

THE want of any systematic account of Possession in English law-books has often been remarked upon. A few years
ago, in the course of my work on the law of Torts, I had to consider the learning of Trespass, Conversion, and other
wrongs to property; for which purpose it became necessaryto face the question whether a doctrine of Possession did not
exist in an implicit form in our authorities, and if so, what kind of doctrine it was. I then learnt that, several years earlier,
Mr. R. S. Wright had been confronted with a like problem in a survey of our criminal law, and had made a full study of
the subject in that connexion. Upon communication with Mr. Wright it appeared that hehad collected his materials in a
form nearly ready for publication; and, in the result, the present work was undertaken.
It is a composite, not a joint work. We should have preferred for many reasons to combine our researches in a single
and uniform exposition, but we found that such a plan would require an amount not only of continuous but of
simultaneous leisure beyond what we couldcommand. Accordingly we have been content to divide the work as it now
stands; and, although we have discussed many parts of the subject together, and seen one another’s contributions in every
stage, each of us is alone answerable for that which is ascribed to him on the title-page. Whatever defects are the
necessary consequence of this arrangement may be taken as confessed, with the excuse that thesubstance, be its value
more or less, could not have been produced on any other terms. This being so, we have not thought it needful to reduce
the mechanical details of citation, abbreviation, and the like, to a complete uniformity throughout the book.
Our purpose has been to show that a fairly consistent body of principles is contained in the English authorities, not to
exhibit all theapplications of those principles, nor to enter on the comparison of the Common Law with any other
system. Speaking for myself, I feel that I owe much both to the classical Roman texts on Possession and to the ingenuity
of their modern expounders in Germany. But I have also felt that if there is, as I believe there is, a native doctrine of
Possession in our law, the only way to make it manifest is tostate it on its own independent footing and verify it in its
own light. Comparison is profitable after the several things to be compared have been ascertained; if attempted earlier, it
is hazardous at best.
Each of us has been compelled to form and express his own opinions on difficult and unsettled points. We cannot
expect those opinions to be always accepted by the reader, but in any casethey are not unconsidered.
F. P.
LINCOLN’S INN, Michaelmas, 1888.

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[1]PART

I

INTRODUCTION.
§ 1. First Notions.

POSSESSION is a term of common occurrence and no mean significance in the law. It imports something
which at an earlier time constantly made the difference between having the benefit of prompt and effectual
remedies, or being left with cumbrous and doubtful ones; which...