priority of mortgages, upon the ground that the prior bondholders could equitably claim only the value of the railroad and its appurtenances in the condition they were in before the road was reconstructed and completed by capital furnished for that purpose under a subsequent mortgage. It was urged that, if this expenditure had not been made, a court of equity would have authorized a lien upon the property for the purpose of making it available; and, therefore, the court should not hesitate to approve and ratify what had been done voluntarily, and to protect those who had furnished money for the preservation and life of the road. But the court regarded it as well settled, that a prior mortgagee could not be divested of his lien in this way; and that a junior mortgage could not, by force of any lien for repairs, be given precedence of a senior one.

A junior mortgagee has no more right than the mortgagor himself to charge for repairs and improvements made upon the mortgaged property. The mortgagor not having this right, he can confer no such right upon a junior mortgagee as against a prior mortgagee. Expenditures made by a junior mortgagee stand, in this respect, upon the same basis as those made by the mortgagor: they confer no equity whatever as against prior incumbrances.

LEONARD A. JONES.

POSSESSION.

THE only theory of possession with which common lawyers are acquainted is derived from a Roman source. For the Germans have long had it all their own way with the subject, and it has happened that those German philosophers who have written upon law have known no other system than the Roman, while those lawyers who have philosophized have been professors of Roman law. Yet some rules, which we think clear, are against what the German civilians would regard as first principles, and it would therefore seem that a common lawyer should be able to add something to what has been said upon the Continent. This will appear the less impossible when it is shown that the differences between the English and Roman law are not the result of a few modern cases, but are due to the sturdy persistence of the early traditions of our race, and are in substance as old as the first feeble beginnings of our courts of law. The contents of this article will be as follows:

:

I. The origin of the common-law notion of possession by persons not owners, including a parallel between the earliest German folk-laws as interpreted by Heusler and Laband, and the law found in the Year Books and Anglo-Norman text-writers; a comparison of the latter with our law of to-day; and a brief notice of the differences between the English and the Roman law. II. Is possession a fact or a right?

III. The facts necessary to the acquisition of possession. 1. Control of the object.

2. Intent, (a) in the Roman law and German theory, (b) and in our law. (c) Exception as to servants

and agents.

3. Power to exclude.

IV. The continuance of possession.

V. The (so-called) possession of rights.

VI. The grounds for protecting possession.

I. The form of wrongful conversion most familiar to early German law seems to have been cattle stealing. The natural

redress for the wrong was to follow the trail with one's friends, and take back the plunder with the strong arm. The Salic law mirrors nature and prescribes following the trail, and the AngloSaxon laws are very full upon the same matter. After the pursuit, the process began by a seizure, which apprised the other party of the claim. If the cattle were come up with before three days were gone, it seems that the pursuer recovered them in summary fashion, perhaps subject to the duty of making oath to his loss in court. If more than three days went by before the cattle were found, the defendant might swear, if he could, to facts which would disprove the claimant's loss. This, so far as known, was the one means afforded by the primitive law of our race for the recovery of chattels lost against one's will. The procedure was in truth a legal procedure; but it depended for its beginning and for its execution on the party making the claim. From its "executive" nature it could hardly have been started by any other than the person on the spot in whose keeping the cattle were, and the texts, according to the latest German opinion, show that the only point to be sworn to was touching the plaintiff's unwilling loss of possession. Hence it is concluded that possession was the foundation of the action, and that no other than the possessor could avail himself of this only known remedy.1 If the possessor was a bailee, and sold or gave the goods in his charge to a third person, the owner could only look to the bailee, and could not sue the stranger; not from any rule of substantive law in favor of bona fide purchasers, but because there was no form of action known which was open to him. On the other hand, and for the same reasons, the bailee was held to a strict responsibility over. Especially loss by theft

1 Laband, Vermögensrechtlichen Klagen, § 16, p. 108, et seq.; Heusler, Gewere, 487, 492. These authors correct the earlier opinion of Bruns, R. d. Besitzes, § 37, p. 313, et seq., adopted by Sohm in his Proc. d. Lex Salica, § 9. Cf. the discussion of sua in writs of trespass, &c. in the English law, below. Those who wish short accounts in English, may consult North Amer. Rev. CX., 210, and see id. CXVIII., 416; Essays in Anglo-Saxon Law, p. 212, et seq. Our knowledge as to the primitive form is somewhat meagre and dependent on inference. Some of the earliest texts are Ed. Liutpr. 131; Lex Baiw. xv. 4; L. Frision. Add. x.; L. Visig. v. 5, 1; L. Burg. xlix. 1, 2. The edict of Liutprand dealing with housebreaking followed by theft of property left in charge of the householder, lays down that the owner shall look to the bailee alone, and the bailee shall hold the thief both for the housebreaking and for the stolen goods. Because, as it says, we cannot raise two claims out of one causa; somewhat as our law was unable to divide the severing a thing from the realty and the conversion of it, into two different wrongs.

was no defence, because he alone could recover the lost property, and therefore was bound to do so. In the course of time, however, cause and effect were inverted; and we read in Beaumanoir (A.D. 1283) that if a hired thing is stolen, the suit belongs to the hirer because he is answerable to the person from whom he hired. It seems clear, from the very nature of the procedure, that it was open to every bailee, as well to depositaries or borrowers as to any others.

All this is echoed in the Anglo-Norman law, and accordingly we need not go further back, since our only object is to discover whether there is a German element to be taken account of in our common-law theory of possession.

...

3

In the first place, we find an action to recover stolen property which like the Salic procedure was based on possession not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's provided it was in his custody. "Poterit enim rem suam petere [civiliter] ut adiratam per testimonium proborum hominum, et sic consequi rem suam quamvis furatam . . . Et non refert utrum res quae ita subtracta fuit extiterit illius appellantis propria vel alterius, dum tamen de custodia sua."2 It is most interesting to observe the parallelism between the process described by Bracton and Britton, and that of the early German law; but it must be passed over here. The oath of the probi homines would seem from the letter of Bracton to have been that the thing was lost (adirata), and this we are expressly told was the fact in a report of the year 1294. "Note that where a man's chattel is lost (ou la chosse de un home est endire), he may count that he [the finder] tortiously detains it, &c., and tortiously for this that whereas he lost the said thing on such a day, &c., he [the loser] came on such a day, &c. (la vynt yl e en jour), and found it in the house of such an one and told him, &c., and prayed him to restore the thing, but that he would not restore it, &c., to his damage, &c.; and if he, &c. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing."4 Britton, writing

1 XXXI. 16.

2 Bract. fol. 150 b, 151; Fleta, fol. 54, L. 1, c. 38, § 1.

8 Cf., e.g., Laband, § 17, with the chapters cited.

4 Y. B. 21 & 22 Ed. I. 466-468, North Amer. Rev. CXVIII. 421, note. This is not trover. The declaration per inventionem was called "un new-found Haliday" in Y. B. 33 H. VI. 26, 27.

within a year or two of the same time, says, "If [the defendant]. is acquitted of the felony, but he who has brought suit has shown that the thing challenged was his, and that it was stolen from him or out of his custody, then he must be answerable, and make satisfaction to the owner of the thing, so be the judgment that the demandant recover his demand," &c. It confirms the arguments of the German writers quoted, as to like words in the folk-laws and custumals, that it appears on the face of the above authorities that rem suam, &c., do not import ownership, but simply possession of the thing in question. So in later days the Chancery issued no special writ for bona in custodia sua existentia,2 but the plaintiff declared on a taking of bona et catalla sua, although a mere bailee, or it would seem even one who had acquired possession by his own unlawful act, as in our modern law.

Next as to wrongful transfer by the bailee. We find it laid down in the Year Books that if I deliver goods to a bailee to keep for me, and he sells or gives them to a stranger, the property is vested in the stranger by the gift, and I cannot maintain trespass against him; but that I have a good remedy against the bailee by writ of detinue. These cases have been understood, and it would seem on the whole rightly, to deny any action to the bailor, and not merely trespass. The modern writers have added, however, the characteristically modern qualification that the purchase must be bona fide, and without notice. There is no such condition in the old books, and it is contrary to the spirit of the strict doctrines of the common law to read it in. No lawyer needs to be told that, even so modified, this is no longer the law. The doctrine of the Year Books must be regarded as a survival from the primitive times when we have seen the same rule in force, unless the reader is prepared to believe that in the fifteenth century they had a nicer feeling for the rights of bona fide purchasers than at present.

1 Britt. (Nich. ed.) i. 59, 60, De Larcyns.

2 Y. B. 48 Ed. III. 20, pl. 8; Bro. Trespass, 67, 92; Replevin, 20.

8 Y. B. 10 Ed. IV. 1, B., per Catesby, where the meaning of sua is discussed. Cf. Laband, Vermögensrechtlichen Klagen, 111; Heusler, Gewere, 492 et seq., correcting Bruns, R. d. Besitzes, 300 et seq.; Sohm, Proc. d. L. Sal. § 9.

Y. B. 13 Henry VII. 10, pl. 11; Bro. Trespass, 433.

5 Y. B. 2 Ed. IV. 4, 5, pl. 9; 21 Henry VII 39, pl. 49; Bro. Trespass, 216, 295. 62 Wms. Saund. 47, n. 1. See above, p. 689.

7 Notes to Saunders, Wilbraham v. Snow, note (h).