POSSESSION. 



POSSIBLE AND IMPOSSIBLE. 



frfrwl of possession of land which a man lias who has merely received 



: .-. ' .. . M 



rnsstmifin. when coupled with the word estate, means a present 

 right to possess. " An estate in possession gives a present right of 

 present enjoyment; " an estate in reversion gives a present right of 

 future enjoyment" (Preston, ' Estates,' i. 89.) In this sense of pos- 

 session, an estate in possession is opposed to an estate in remainder or 

 reversion ; but it does not imply actual possession. In the third 

 section of the Act for the Limitations of Actions and Suits (8 & 4 

 Wm. IV., c. 27), an " estate or interest in possession " is opposed to an 

 ' estate or interest hi reversion or remainder," and the actual posses- 

 i land is referred to in the same section by the terms " possession 

 or receipt of the profits of the land." [STATUTE or LIMITATIONS.] 



A man is said to be teued of a freehold estate ; but he is said to be 

 jumimrf of a chattel real. Tho Statute of Uses does not apply to 

 chaUekreal 



It remains to speak of a distinction in the word possession as 

 to a real estate and a chattel personal. Both may be possessed, but 

 the legal conclusion from the bare fact of possession is different hi the 

 case of a real estate and of a personal chattel. " There is a marked 

 difference between a real estate and a personal chattel : the latter 

 is held by possession ; a real estate, by title. Possession of an estate 

 is not even urimd facie title. It may be by lease only or from year to 

 year." (Lord Eldon, Hiem r. Mill, 13 Ve., 114.) This seems to mean 

 that, in the case of a chattel, possession is a presumption of ownership ; 

 but that possession of land is not ; at least not a presumption of a 

 freehold interest Still it is so far a presumption of some interest, 

 that if a man buys an estate from the owner, knowing that another 

 man is in possession of it, ho has notice of whatever interest the 

 person in possession may have in the land ; and therefore if the person 

 in possession has a prior contract with the owner for purchasing the 

 land, the second purchaser buys subject to the interest of the person 

 in possession. (Daniels r. Davison, 16 Ve., 249 ; 17 Ve., 433.) 



It has been already stated that actual possession of land, or what is 

 legally considered actual possession, is necessary in order to give the 

 owner all the advantages of ownership. In the case of chattels 

 personal, ownership is frequently acquired without or rather before 

 actual possession, and it may always bo BO acquired by contract when 

 the thing agreed to be bought and sold is clearly determined. Some- 

 times the ownership can only be acquired together with the possession, 

 because the thing only becomes determined by the act of delivery or 

 taking possession. In all cases, however, when personal chattels are 

 bought and sold, it is often a matter of great nicety to determine 

 whether there has been possession by the purchaser, cither as the con- 

 dition 6r means of establishing his ownership, or for the purpose of 

 ascertaining from what time a thing has ceased to be in one person's 

 possession and come into the possession of another. 



Questions as to this matter often arise in cases of loss, of insolvency 

 of a vendee, Ac., when the chattel is transferred from the vendor to 

 the vendee by being tent, in which case it is of necessity during a 

 certain time on its journey, or as our law expresses it, in tranaitn. 

 The solution of questions of this kind, which often occur in a com- 

 mercial country, is sometimes difficult, though many general principles 

 ore deducible from judicial decisions. The right of the vendor to stop 

 the thing after it has commenced its journey, continues till the time 

 at which the vendee is legally considered to have acquired possession. 

 [STOPPAGE is TKANSITD.] 



It is remarked by Savigny (' Das Recht deg Besitzes,' p. 185), " that 

 in the whole theory of possession nothing seems easier to determine 

 than the character of corporeal apprehension which is necessary to the 

 acquisition of possession. By this fact all writers have understood an 

 immediate touching of the corporeal thing, and have accordingly 

 assumed that there ore only two modes of apprehension : laying hold 

 of a moveable thing with the hand ; and entering with the foot on a 

 piece of land. But as many cases occur in the Roman law in which 

 possession is acquired by a corporeal act, without such immediate 

 contact, these essei have been viewed as symbolical acts, which, through 

 the medium of a juristical fiction, become the substitute for real 

 apprehension.'' After showing that this is not the way in which the 

 acquisition of possession is understood in the Roman law, and that 

 there is no symbolical apprehension, but that the acquisition of posses- 

 sion may in all coses be referred to the same corporeal act, he deter- 

 mines what it is, in the following manner: 



" A man who holds a piece of gold in his hand is doubtless the 

 possessor of it ; and from this and other similar cases has been 

 abstracted the notion of a corporeal contact generally as the essential 

 thing in all acquisition of possession. But in the case put, there is 

 something else which is only accidentally united with this corporeal 

 contact, namely, the physical possibility to operate immediately on the 

 thing, and to exclude all other* from doing n>. That both those 

 things concur in the case put, cannot be denied : that they are only 

 accidentally connected with corporeal contact, follows from this, that 

 the possibility can be imagined without the contact, and tho contact 

 without the possibility. As to tho former case, ho who can at any 

 moment lay hold of a thing which lies before him, is doubtless as 

 much uncontrolled master of it as if he actually had laid hold of it 

 As to tho latter, he who is bound with cords has immediate contact 

 with them, and yet one might rather affirm that he in |toiiscs*od by 



than that he possesses them. This physical possibility then is that 

 which aa a fact must be contained in all acquisition of possession : 

 corporeal contact is not contained in tliat notion, and there is no case 

 in which a fictitious apprehension need be assumed." 



This clear exposition of a principle of Roman law ia'applicable to 

 all systems of juriitprudence which hare received any careful elabora- 

 r tin- principle is in its nature general It may be that the 

 expounders of our law have not always clearly seen this principle, even 

 when they have recognised it; and it may be that they have not 

 always acted upon it Still it appears from various esses that tho 

 physical possibility of operating on a thing is the nsnential character of 

 the acquUition of possession in English law. 



POSSIBLE aiul IMI'< issll;LE. The first of these words is of little 

 interest, except as the contradictory of the second. The word I'M- 

 fouille is used in common life to signify highly improbable, or utterly 

 incredible. In this sense the impossible of yesterday is the posmU" of 

 to-day. It is also used to signify that which would contradict tho 

 latri of nature, by which we always mean our view, knowledge, or 

 experience of the laws of nature. In this sense also the impossible of 

 yesterday is the possible of to-day. It was itnpottiblc that a missile 

 should be thrown by the hand, and after traversing the air return t<> 

 the hand again, until the boomerang of the savage found iU way to 

 the knowledge of the physical philosopher. 



The true use of the word impouiUe is that which its etymology 

 demands, that which cannot be. And how con we acquire tho idea of 

 that which cannot be, in the universe of an omnipotent Creator, (in 

 examination of the question, we arrive at no result but this, that all 

 we can grasp of impoitibility is inconceivability, and that every thing is 

 conceivable which does not contradict iltelf, let it contradict what clso 

 it may. And thus (MATHEMATICS, col. 430) we arrive at the com i 

 that nothing is impossible except that which cu;itradicts the laws <if 

 thought, or the laws of the necessary matter of thought Impossibility, 

 then, is a word of logic and mathematics, and nothing else. It is 

 impossible that "every X is Y " and "some xs are notvs," should Ix.th 

 be true : it is impossible that two sides of a triangle should be less 

 than the third. 



But are we not, under this restriction, converting the impoaiblc into 

 the possibly potable ! May there not be notions which though self-con- 

 tradictory to our minds, ore not so to minds of another stamp, or of a 

 higher stamp. This question has been discussed before now : it lias 

 been asked whether God could make two and tico to be ./ire. In < 

 make this question intelligible, that is, to show that it is beyond 

 intelligible answer, we must assert, without being able to go into full 

 deduction, that over}' one of our impossibilities is resoluble into tho 

 idea of something which at once exists awl does not exist. In tin- 

 two and two which make five, there is an extra unit which is there and 

 is nut. When Kudid shows an impossibility he does it by show in . 

 that tho notion requires a whole which is no greater than its part : no 

 that the additional part which makes up the whole exists wit limit 

 existence. That is to say, in compassing an impossibility wo start 

 from this enunciation 



To be and not to be that is the question. 



Now when we are seriously asked Is it in the power of the Creator 

 to make the same thing to exist and not to exist at the same mmn.ni 

 we answer that our minds are so constructed that it look.-- very 

 much as if we were intended to believe that it is not. And their we 

 leave it: we would rather employ ourselves on the old question of 

 the schoolmen, which God loves best, a possible angel, or an cj-ixtiiiy 

 fly. 



But there is another point of view, from which the question might 

 have been asked, and which perhaps lurked in the minds of those \vliu 

 first asked it. Can the Creator make two and two to be five 1 



The simplest mode of relation, that which we signify by and, gives 

 four. But it is not beyond conccivability that a mind might be so 

 constructed that its simplest operation should be different from ours. 

 It would not cost Mr. Babbage an hour's thought to alter the funda- 

 mental structure of his difference-engine in such a manner that, i: 

 of adding the two numbers presented, the machine should, of net 

 throw in an extra unit. That which man can execute, he can conceive 

 the Creator performing on a larger scale : accordingly, it is within 

 possibility that a mind should exist in which the simplest junction, 

 to that mind, of two and t two gives five, but tho mode of junction 

 would not be what we call addili'oi. 



The main purpose of such an article as the present is to bring for- 

 ward the true meaning, in our law's of thought, of the word impoaiblc ; 

 and to help the reader, should he need such help, to avoid importing 

 the true meaning of the word into the gitirases, " morally impossible," 

 and " physically impossible." The word here used should be incrcdildc. 

 A confusion of this sort very frequently exists. Tho mind allows 

 experience to fashion a laic of nature, and postulates that the future 

 Khali agree with the past, and obey that law. This postulate mu v 

 assumed, disobedience is an impossibility, alto aimuned : for .-imn! 

 taneous obedience and disobedience would be simultaneous existence 

 and non-existence. But tho question whether the law of nature, or 

 what is assumed to be the law of nature, shall continue without 

 ti< >n fi >r over, cannot be argued upon the assumption that the sett 1 < 

 lie of onu preconcerted kind. 



