Commenting on the suggestion sometimes made that there is no doctrine of possession in our law, the same author says : "The rea son of this appearance, an appearance cap able of deceiving even learned persons, is that possession has all but swallowed up ownership; and the rights of a possessor, the one entitled to pos4ess, have all but monopolized the very name of property." Id.
"Legal possession does not necessarily coincide either with actual physical con trol . . . or with the right to possess (constantly called property in our books), and it need not have a rightful origin." Id.
318. "The common law, when it must choose between denying legal possession to the per sons apparently in possession and attribut ing it to wrongdoer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar." Id. 319.
Judge Holmes considers possession a con ception only less important than contract, and he contends that the English system is far more civilized than the Roman. He seeks to answer the question which presents so much difficulty to German philosophers: "Why is possession protected by the law when the possessor is not also an owner?" His reply is that "possession is to he pro tected because a man by taking possession of an object has brought it within the sphere of his will; he has extended his personality or over that object." Holmes, Com. Law 207. "Rights of owner ship are substantially the same as those in cident to possession. . . . The owner is allowed to exclude all and is accountable to no one ; the possessor is allowed to exclude all but one and is accountable to no one but him." Id. 246. See Holmes, Common Law, Lect. 6; Pollock, Torts, 5th ed. ch. 9; F. W. Maitland in 1 Law Quart. Rev. 324; 2 id. 481.
A very high degree of legal protection is accorded to one lawfully in possession and, whether its origin is rightful or not, a stranger cannot be heard in opposition to it. The true owner may be heard, but an intruder never. It is said, however, that the bald proposition that possession is a good title against a wrongdoer is inac curate, if stated entirely without a qualifi cation, and that the true limits of the bare possessor's right to recover damages. for in terference with his possession are: 1. If the defendant cannot show who the true owner is, the bare possessor may recover the same measure of damages as if he were the true owner, whether he Is liable over to the own er or not. 2. Where the true owner is shown, the bare possessor cannot recover the value of the goods taken or the diminution in their value, or for injury, unless he is liable over to the owner. 3. Whether the
true owner be shown or not, the possessor may recover damages for the taking or tres pass, nominal or substantial, as the taking is or is not attended with aggravation. 7 Law Quart. Rev. 242.
Possession in the Roman law is the sub ject of an extended discussion by J. M. Light wood in 3 Law Quart. Rev. 32, who takes is sue with Judge Holmes' treatment of that subject, as to which he says, that although the differences between the two systems are very striking, Judge Holmes treats the civil ians with scant respect, although "the knowledge he shows of their rights proves that he has himself by no means neglected them and we shall not be far wrong in fol lowing his practice rather than his precept." Sir F. Pollock (Genius of Corn. Law 120) states a few "comprehensive principles as to possession' in the common law in their sim plest form: 1. Possession in fact is such ac tual exclusive control as the nature of the thing admits. 2. Possession in law, the right which is protected by possessory reme dies, generally follows possession in fact, but does not necessarily cease when possession in fact ceases. The chief exception to this rule is that a servant in charge of his mas ter's goods has not possession in law. 3. Possession in law continues until determined in some way which the law definitely recog nizes, beyond the mere absence or failure of a continuing intent to possess. 4. Posses sion in law is a commencement of title ; in other words the possessor can deal with the thing as an owner against all persons not having a better title and this protection ex tends to persons deriving title from him 'in good faith. 5. When possession in fact is so contested that no' one can be said to have actual effective control, possession in law follows the better title. It is true that ev ery one of these principles, in its application to the complex facts of life, may call for careful and even subtle elaboration. But I am free to maintain that in themselves they are adequate and rational. We take the line of making legal possession coincide with apparent control so far as possible; the Ro man law takes the opposite line of unwil lingness to separate legal possession from ownership or what we call 'general proper ty' ; and I venture to think our way both the simpler and the better." Failure to take possession is sometimes considered a badge of fraud, in the trans fer of personal property. See SALE; MORT GAGE.