LEGAL POSSESSION. In determining to what, persons, and under what circumstances, the legal advantages above indicated shall be accorded, every legal system develops a more or less arti ficial doctrine of possession. Persons having physical possession without the legal advantages of possession are not legal possessors; in civil law terminology they are 'detentors.' On the other hand. persons not having physieal posses sion, but enjoying the legal advantages accorded to possession. are termed 'possessors.' In some cases one person is treated as legal possessor as regards protect ion against disturbance and against dispossession. while another person is regarded as possessor for the purposes of pre scription.
The law of possession is less clearly devel oped in the English law than in the Roman and modern civil law. This is clue partly to the fact that the English law employs the same actions. viz. trespass, ejectment. and trover, for the protection of possession and for the enforce ment of property right. while the Roman law has distinct possessory remedies. In their practical op eration. however. the two systems attain substan tially similar results.
In both systems (as indeed in every legal sys tem) the person who has physical control of a thing and holds it for himself—the person who, as the Roman jurists express it. has both the corpus of possession and the animus possidendi is a legal possessor. Those who hold for others are differently treated in different systems. In no legal system are they possessors as regards prescription; but as regards protection against disturbance and dispossession distinc tions are drawn. Servants and employees acting under the direction of a master or employer are generally regarded as mere detentors. Agents, bailees, and lessees are not possessors at Roman law; but in the modern civil law and in English law they have possessory remedies. at least
against strangers, and they are therefore usually ealled possessors. lf. as is usually the ease in modern law, possessory remedies are also given to those for whom they hold possession, the latter prineipals, bailors, and lessors) are said to have or 'mediate' possession. Pledgees and mortgagees who have physical possession are treated as legal possessors in every system of law.
The denial of possessory remedies to the person who holds for another does not exclude the right of defending physical possession against wrong ful aggression. It signifies simply that if judi cial proceedings are necessary. they must be taken by (or at least in the name of) the person for whom the property is held.
A very important rule of pleading which is contained in the Code Napoleon is that every physical possessor is presumed to possess for himself and with good title until the contrary is proved.
One of the chief differences between Roman and English law is found in the greater protec tion which the Roman law gives to the possessor of a movable against the person who has the right to possess. At Roman law. if the owner takes property forcibly from the possessor, he is obliged to restore it and pay damages: he cannot justify his employment of force by showing his right to possess. (It must be remembered, how ever, that at Roman law bailees and agents are not possessors.) At English law the owner of goods is permitted to use reasonable force for their recapture, even against a third person who has acquired them innocently with color of title. As regards realty the statutes against 'forcible entry' have placed the English law on nearly the same footing as the Roman.