Three Cases on Possession

A. L. Goodhart

doi:10.1017/S0008197300110566

Three Cases on Possession

Published online by Cambridge University Press: 16 January 2009

A. L. Goodhart

Article contents

Extract
References

Get access

Extract

In the recent case, Great Western Ry. Co. v. Owners of S.S. Mostyn, Viscount Dunedin said: ‘Now, when any tribunal is bound by the judgment of another Court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear—as is the case in most instances—what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But if it is not clear, then I do not think it is part of the tribunal's duty to spell out with great difficulty a ratio decidendi in order to be bound by it.’ In other words, not only the judgment itself, but also the grounds on which the judgment was reached, are binding. This proposition must, of course, be understood to include the further rule that only those reasons are binding which were material to the decision of the point at issue. If they were material they constitute a precedent; if they were not material they are merely obiter dicta.

Type: Research Article
Information: The Cambridge Law Journal , Volume 3 , Issue 2 , July 1928 , pp. 195 - 208

DOI: https://doi.org/10.1017/S0008197300110566 [Opens in a new window]
Copyright: Copyright © Cambridge Law Journal and Contributors 1928

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

^{page 195 note 1} [1928] A. C. 57, at p. 73.

^{page 195 note 2} Page 24.

^{page 196 note 3} (1851), 15 Jur. 1079; 21 L. J. Q. B. 75.

^{page 196 note 4} (1886), 33 Ch. D. 562.

^{page 196 note 5} [1896] 2 Q. B. 44.

^{page 196 note 6} Supra.

^{page 196 note 7} 15 Jur. at p. 1082.

^{page 197 note 8} This citation is given only in the ‘Jurist’ report, at p. 1082. Its importance is obvious. We have used the ‘Jurist’ throughout this article, as the report is more complete than in the Law Journal Reports.

^{page 197 note 9} The headnote to the report in the ‘Jurist’ reads: ‘The Place in which a lost Article is found does not constitute any Exception to the general Rule of Law, that the Finder is entitled to it as against all Persons except the Owner.’

^{page 197 note 1} Page 1082.

^{page 197 note 2} Italics ours.

^{page 197 note 3} Supra, at p. 47.

^{page 198 note 4} Supra.

^{page 198 note 5} Supra.

^{page 198 note 6} Pages 221 et seq.

^{page 198 note 7} Supra.

^{page 200 note 8} Harms (Incorporated) v. Martans Club, [1927] 1 Ch. 526, 530. Lord Hanworth M.R. said: ‘It is quite obvious that the use of the words “in public” gives rise to a number of difficulties. They are not easy words to define.’

^{page 200 note 9} Supra.

^{page 200 note 1} Pages 37 et seq.

^{page 200 note 2} Supra.

^{page 201 note 3} Supra.

^{page 201 note 4} With all respect to Sir Frederick Pollock, Patteson J.'s reference to the innkeeper can hardly be construed to refer to the question of de facto possession. It was made to show that the shopkeeper did not have ‘custody’—whatever that word may mean—because he was not liable to the true owner as he would have been if he had been an innkeeper. Thus Patteson J. Bays, at p. 1080, in the course of the argument: ‘If goods were found in an inn, it would be different. There a special property is vested in the innkeeper by reason of his liability.’ The words ‘by reason of his liability’ are omitted in the Law Journal Report.

^{page 201 note 5} (7th ed.), p. 305.

^{page 201 note 6} On p. 304 Sir John Salmond says: ‘Notwithstanding some judicial dicla the contrary it does not seem to be true, either in law or in fact, that the session of land necessarily confers possession of all chattels that are on or under it; or that the possession of a receptacle such as a box, bag, or cabinet, necessarily confers possession of its contents. Whether the possession of one thing will bring with it the possession of another that is thus connected with it depends upon the circumstances of the particular case. A chattel may be upon my land, and yet I shall have no possession of it unless the animus and corpus possessionis both exist. I may have no animus; as when my neighbour's sheep, with or without my knowledge, stray into my field. There may be no corpus; as when I lose a jewel in my garden, and cannot find it again. There may be neither corpus nor animus; as when, unknown to me, there is a jar of coins buried somewhere upon my estate.’

^{page 202 note 7} Supra.

^{page 202 note 8} Supra.

^{page 203 note 9} Supra.

^{page 203 note 1} Supra.

^{Page 203 note 2} Supra.

^{page 203 note 3} Supra.

^{page 203 note 4} Jurisprudence (7th ed.), p. 307.

^{page 203 note 5} Supra.

^{page 204 note 6} At p. 568.

^{page 205 note 7} ‘Possession in the Common Law,’ p. 41. The rest of the passage reads: ‘In the case of the prehistoric boat the freeholder, being in possession, made a lease for ninety-nine years to a gas company, reserving mines, minerals, and watercourses. The company's servants, in excavating for foundations, discovered this boat or rather “dug-out” canoe, which had been under the earth for many centuries. Actual possession, it would seem, had passed to the company by the lease, and at all events it was acquired when their servants removed the canoe from the soil. But the company had no right, it was held, to retain the canoe against the freeholder; for he had the prior right to possession and had not divested himself of it by granting the possession and use of the soil for a special purpose. The Roman lawyers, who required a “possidendi affectus” directed to the specific thing, would have dealt with this case differently. The Common Law pays more regard to the fact that an occupier's general power to exclude strangers from any part of that which he occupies is independent of his knowledge or ignorance as to the specific contents of that part. Possibly the traditional dignity of the freehold may have something to do with this view, but it would seem that a lessee for years would have had the same right as against a sub-lessee.’

^{page 205 note 8} Supra.

^{page 205 note 9} [1896] 2 Q. B. 44.

^{page 205 note 1} 1 Str. 504.

^{page 205 note 2} 21 L. J. Q. B. 75.

^{page 205 note 3} Jurisprudence (7th ed.), p. 307.

^{page 205 note 4} Supra.

^{page 206 note 5} [1896] 2 Q. B. at p. 46.

^{page 206 note 6} Italics ours.

^{page 206 note 7} Supra.

^{page 206 note 8} [1896] 2 Q. B. at p. 46.

^{page 206 note 9} Italics ours.

Article contents

Three Cases on Possession

Extract

Access options

References

Save article to Kindle

Save article to Dropbox

Save article to Google Drive

Reply to: Submit a response

Your details

You have entered the maximum number of contributors

Conflicting interests