acting for our own interest (a), or even an honest intention to act for the benefit of the true owner (b), will avail us nothing if we transgress.

Title, justification, excuse. A man may be entitled in divers ways to deal with property moveable or immoveable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may be created, transferred, or destroyed. Again, a man may have the right of using property to a limited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under exceptional conditions for the true owner's benefit, to interfere with property to which he has no title and does not make any claim. We have seen some

(a) Hollins v. Fowler (1875), L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

(b) In trespass, Kirk v. Gregory (1876),

1 Ex. D. 55, 45 L. J. Ex. 186: in trover, Hiort v. Bott (1874), L. R. 9 Ex. 86, 43 L. J. Ex. 81.

the act, but, also the act itself was not intended. Thus, a person driving cattle along the highway is not liable for the conversion of cattle joining his drove without his notice. Young v. Vaughan, 1 Houst. 331; Brooks v. Olmstead, 17 Pa. St. 24. Nor is such person liable where cattle escape from the drove into plaintiff's property. Rightmire v. Shephard, 59 Hun, 620. But see Guille v. Swan, 19 Johns. 381, supra, 39.

what of this in the chapter of "General Exceptions." Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known

as a licence.

Title dependent on contract. Title to property, and authority to deal with property in specified ways, are commonly conferred by contract or in pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him,

Title dependent on contract. Goods feloniously obtained may be recovered from a bona fide purchaser. Robinson v. Dauchy, 3 Barb. 20; Robinson v. Skipworth, 23 Ind. 311; Basset v. Green, 2 Duv. 560; Browning v. Magill, 2 Har. & J. 308. But this rule does not apply where the goods are obtained by a felony of statutory creation as distinguished from common law felonies. Benedict v. Williams, 48 Hun, 123.

Where A. hires a horse by giving a worthless check and then sells him to B., B. cannot retain the horse. Dodd v. Arnold, 28 Tex. 97.

The doctrine of market overt as known in England is not recognized in this country. Hardy v. Metzgar, 2 Yeates, 347; Leckey v. McDermott, 8 Serg. & R. 580; Hosack v. Weaver, 1 Yeates, 478; Rowland v. Gundy, 1 Ohio, 263; Wheelwright v. DePeyster, 1 Johns. 471; Dame v. Baldwin, 8 Mass. 518; Griffith v. Fowler, 18 Vt. 390.

One acquiring property through fraud derives no title as against the injured party. Wheaton v. Baker, 14 Barb. 594; Mowey v. Walsh, 8 Cow. 238. But mere fraud in a sale gives no right to prevent an innocent vendee from taking away the property after delivery. McCarty v. Vickery, 12 Johns. 348. However, where there is an entire absence of title in the seller, good faith will not protect the purchaser. Church v. Mellville, 17 Oreg. 413; 21 Pac. Rep. 387. See ante, p. 376.

Taking possession of goods under a contract which the taker of the goods never intended to carry out is as much a trespass as a forcible seizure. Butler v. Collins, 12 Cal. 457.

on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circumstances of the fraud may have been such that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably; and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer (c). Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land (d).

Exceptional protection of certain dealings in good faith. Acts of persons dealing in good faith with an apparent owner may be, and have been, protected in various ways and to a varying extent by different systems of law. The purchaser from an apparent owner may acquire, as under the common-law rule of sales in market overt, a better title than his vendor had; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Act (e); or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale or a warranty for the person dispossessed by the true owner. Excuse of this kind is

(c) Hollins v. Fowler (1875), L. R. 7 H. L. 757, 44 L. J. Q. B. 169; Candy v. Lindsay (1878), 3 App. Ca. 459, 47 L. J. Q. B. 481.

(d) See Pilcher v. Rawlins (1871), L. R. 7 Ch. 259, 41 L. J. Ch. 485.

(e) Consolidated by the Factors Act, 1889, 52 & 53 Vict. c. 45.

however rarely admitted, though much the same result may sometimes be arrived at on special technical grounds.

The rights and remedies known to the common law are possessory. It would seem that, apart from doubtful questions of title (which no system of law can wholly avoid), there ought not to be great difficulty in determining what amounts to a wrong to property, and who is the person wronged. But in fact the common law does present great difficulties; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole (ƒ). An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the true owner" of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Regularly the common law protects ownership only through possessory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of possession is indeed well known to our authorities, and by conveyancers it is regarded as a present estate or interest. But when it has to be defended in a court of com

(f) See Mr. F. W. Maitland's articles on "The Seisin of Chattels" and "The Mystery of Seisin," L. Q. R. i. 324,

11. 481, where divers profitable comparisons of the rules concerning real and personal property will be found.

mon law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appearance capable of deceiving even learned persons, is that possession has all but swallowed up ownership; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical

name.

Possession and detention. Notwithstanding first appearances, then, the common law has a theory of possession, and a highly elaborated one. To discuss it fully would not be apppropriate here (g); but we have to bear in mind that it must be known who is in legal possession of any given

(g) See "An Essay on Possession in R. S. Wright and the present writer the Common Law" by Mr. (now Justice) (Oxford: Clarendon Press, 1888).