disseisin, and A and B the assize of novel disseisin or some derivative action.

The common law carried this rule, that a taker of land, until he gave, retained positive right to deal with it, as against subsequent takers, to logical extremes. Suppose, for instance, that A takes, and that afterwards, and without gift from A, B, C, and D take successively; and that A, after D's taking and after lapse of the time allowed him for informal recapture, retakes. A could have recovered the land by the assize of novel disseisin or some derivative action, but by his taking via facti he wronged B, C, and D, and gave each of them an action against him for recovery of the land. A single taking of land, therefore, might violate an indefinite number of positive rights to deal with the res and make the taker liable to an indefinite number of actions to punish such violation by compelling restitution, but, subject to such liability and to the right of prompt recapture, his taking gave him an unqualified right of possession.

§ 13. Recognition under the common law of ownership in one and right of possession in another through allowance of right to retake via facti.

None of the actions derived from the assize of novel disseisin were given the suitor as owner, as alone free to deal with the res. After expiration of his right to retake via facti he was not owner, for he was not free to deal with the res until made so by judgment, and he did not allege that he was owner. He had his remedy merely because the tenant's taking had violated the positive right to deal with the res which his own taking had given him. And, whatever correspondence there may have been between the right to recover of a demandant under writ of right, and that of a petitor in vindication, the demandant did not have his remedy as owner. Neither did the appellor in the corresponding action for the recovery of a chattel. A suitor, after expiration of his right to retake via facti, whether proceeding under writ of right or bringing the actio furti, was not owner, for he was not free to deal with the res till made so by judgment. And he did not allege that he was owner, but merely that he took first. His action, like all other actions, was classed as an action in personam,-an action to punish breach of positive right,-to punish the person enjoying the right of possession for a wrongful taking.

The idea of ownership in one and right of possession in another did not come into the common law, as it did into Roman law, through adoption of a form of action, but through recognition of exceptions to the right of possession in favour of takers without judgment.

I lend my oxen to my neighbour. He may use them, I tell him, until I ask for them. He stables them, feeds them, ploughs with them, guards them against theft and trespass. Who has the right of possession, he or I? The Roman law took one view of the situation, the common law another. The common law said that in a case of bailment at will the bailor had given (baillé) the res and the bailee had taken it, and that therefore the bailee had the right of possession. The Roman law said that the bailee had not taken the res, for he had not manifested will to be unmolested by the bailor, and that therefore the bailor retained the right of possession. If, in case of a bailment at will, I give the right of possession to the bailor only, as the Roman law did, the distinction between ownership and the right of possession does not come into view, but if, as the old common law did, I give it to the bailee only, the distinction becomes apparent. The bailee has an imperfect right of possession, a positive right to deal with the res as against everybody except the bailor. The bailor, on the other hand, although he has no positive right to deal with the res, except as against the bailee, is owner, for he alone is under no duty not to deal with the res. The bailee is subject to the will of the bailor. Everybody else is subject to the will of the bailee. The bailor alone is free to do as he pleases, and therefore he is owner.

owner.

The old common law gave a bailor, in case of a bailment at will, no remedy except against his bailee, whoever took the res. And since we are disposed to think of an owner as having himself an action against any taker, this might lead us to say that the bailor was not His ownership, however, consisted in the fact that he alone was free to deal with the res, and because of this fact, and notwithstanding all his remedies were against the bailee, he was conceived to be owner. 'Bracton,' Pollock and Maitland say, 'in the very sentence in which he concedes to the bailee the appeal of larceny, denies that he is the owner of the things that have been bailed to him. Such things are in his keeping, but they are the things of another 1.'

The common law recognized another exception to the right of possession in allowing the prompt retaking of land and chattels via facti. B might take when A had the right of possession, and so acquire the right of possession for himself, and yet for a short time his right of possession was subject to an exception in favour of 4. We find A's right to retake land via facti explained by the statement that during the period of its existence he has seisin 'in law' as against B2,-that B, in other words, has not taken in law'

as against 4. We may suppose that in the beginning, if ▲ was allowed freedom to deal with the res, it was because it was found that B had not taken. A feeling in favour of A might lead to a finding, in a controversy between A and B, that B had not taken, when as between B and a third person the decision would have been that he had taken. Afterwards, because of decisions in actions against third persons giving B the right of possession, it became necessary to admit, as to some case in which it had been decided that A was free to deal with the res, that B had taken in fact,' and A's right of recapture was explained by saying that, as against A, B had not taken 'in law' and that, therefore, as against B, A retained his right of possession.

Whoever has the right of possession is owner if we leave out of account exceptions to his right of possession and duties he is under not to deal with the res himself. And this theory of A's right of recapture makes him owner while the right continues, just as he was owner during the continuance of his right of possession. B has not taken as against A, and therefore, as against A, B has not the right of possession. A therefore is under no duty to B not to deal with the res. And, since B has not taken as against A, A retains his right of possession as against B, and B therefore is under duty to not to deal with the res. If therefore we regard A as owner while he has the right of possession, that is to say if we leave out of account exceptions to his right of possession and duties he is under not to deal with the res himself, the result of B's taking is this: Bacquires the right of possession as against everybody except 4. Everybody except A is subject to the will of B. B is subject to the will of A. A alone is free to do as he pleases. Therefore, while the right of recapture via facti continues, A is owner, just as he was owner while he had the right of possession, although the right of possession has passed to B.

As the petitor in vindication was conceived to be owner without right of possession because of the supposition that the possessor had not taken as against the petitor, so, under the common law, if B took land when A had the right of possession, 4 was thereafter conceived to be owner without the right of possession because of the supposition that B had not taken as against A. The common law entertained the supposition that a taker had not taken, in the first place for the purpose of allowing an action for the recovery of land against a subsequent taker as if the plaintiff's right of possession had continued, and in the second place for the purpose of allowing freedom to deal with land after loss of the right of possession as if the right of possession had continued.

A suitor became entitled under the common law to recover the

res (when it was land) from persons taking after loss of his right of possession as if his right of possession had continued up to the taking complained of, and this naturally led to an extension of his freedom to deal with land, after loss of his right of possession, as if his right of possession continued. A has a right to recover the res from D because his right of possession is deemed to have continued till D took. His right of possession is deemed to continue after loss thereof, and therefore he has the same freedom to deal with the res after the loss of the right of possession that he would have had if his right of possession had actually continued. And under the influence of this idea a gradual extension of the right to retake land via facti took place, extending over a period of several hundred years, till finally whoever had the right to retake via legis had also the right to retake via facti1. At first, if B takes when A has the right of possession, A is free to retake, but for a short time only. Then the time allowed is extended. For a while A's right of recapture ceases with the taking of an heir or alienee of a subsequent taker. Afterwards it continues notwithstanding such a taking. The law identifies a man and his heirs for many purposes, and it comes to be the law that the right of recapture shall pass from A to his heirs. And finally, speaking generally, it becomes the law that, unless has given, or his heirs have given, A and his heirs shall be free to retake, whatever time may have elapsed, and whatever may have happened since the original taking of B.

§14. The common law doctrine of relative ownership of land.

As a result of adoption of the assize of novel disseisin and the actions derived from it, and of extension of the right to retake land without judgment, he who lost the right of possession as to land retained, until he gave, right to restitution by any taker as if his right of possession had continued, and he continued, until he gave, free to deal with the res as if his right of possession had continued. That is to say, he who lost his right of possession without gift retained the ownership which his right of possession gave him. Let us suppose, for instance, that A has the right of possession as to a piece of land and is also absolute owner, that there are no exceptions to his right of possession, and that he is under no duty not to deal with the res himself; and let us also suppose that afterwards B, C, and D take successively and without gift, so that D finally acquires the right of possession.

Under the common law as developed by adoption of the writs of entry and extensions of the right of recapture via facti, A is owner

Maitland's Beatitude of Sessin, iv L. Q. R. 24, 286.

after B's taking as he was before it. He is still the only person free to deal with the res. He is under no duty to B not to deal with it. B is under duty to him not to deal with it. Everybody else is under duty to B not to deal with it. After C takes, A is still owner as he was in the beginning. He is still free to deal with the res. B is under duty to A not to take it. C'is under duty to A and B not to deal with it. Everybody else is under duty to C not to deal with it.

And B is owner after C's taking, as he was while he had the right of possession. While B had the right of possession he was the only person free to deal with the res, leaving A out of account. And after C has taken he is still the only person free to deal with the res, leaving A out of account. After C has taken, B is free to deal with the res subject to his duty to A not to take it. C is under duty to A and B not to deal with the res. Everybody else is under duty to C not to deal with the res. Therefore, if we strike out A, B is free to deal with the res, and the only person free to deal with it.

And C is owner after he loses his right of possession as he was before D took. While he had the right of possession he was the only person free to deal with the res, leaving A and B out of account. And after D has taken he is still the only person free to deal with the res, leaving A and B'out of account. After D has taken, C is free to deal with the res subject to his duty to A and B not to take it. D is under duty to A, B, and C not to deal with it. Everybody else is under duty to D not to deal with it. Therefore, if we strike out A and B, C is free to deal with the res, and the only person free to deal with it.

The common law, therefore, through attribution of ownership, without right of possession, to whoever had lost the right of possession without gift, came to have a peculiar doctrine of relative ownership of land.

§ 15. Ownership, under the common law, of chattels by one

who has not the right of possession.

To return to the law of chattels. For a time, it would seem, our law, except in a case of bailment, did not attribute to any one the ownership of a chattel unless he had the right of possession, or the right of recapture via facti, and, except in a case of bailment, whoever had the right of possession was conceived to be owner after termination of the right of prior takers to retake without judgment. Pollock and Maitland refer to a practice in our law of ascribing the ownership of chattels to thieves, and attribute it to the fact that for a while one had no action after loss of his