Page:The New International Encyclopædia 1st ed. v. 16.djvu/353

* POSSESSION. 299 POSSEVINO. bailees, and lessees are not possessors at Roman law; but in the modern civil law and in English law they have possessory remedies, at least against strangers, and they are therefore usually called possessors. If, as is usually the case in modern law, possessory remedies are also given to those for whom they hold possession, the latter (principals, bailors, and lessors) are said to have 'constructive' or 'mediate' possession. Pledgees and mortgagees who have physical possession are treated as legal possessors in every .system of law. The denial of possessory remedies to the person who holds for another does not exclude the right of defending physical possession against wrong- ful aggression. It signifies simply that if judi- cial proceedings are necessary, they must be taken by (or at least in the name of) the person for whom the property is held. A very important rule of pleading which is contained in the Code Xapoleon is that every physical possessor is presumed to pos.sess for him.self and with good title until the contrary is proved. One of the chief differences between Roman and English law is found in the greater protec- tion which the Roman law gives to the possessor of a movable against the person who has the right to possess. At Roman law, if the owner takes property forcibly from the possessor, he is obliged to restore it and pay damages : he cannot justify his employment of force by showing his right to possess. ( It must be remembered, how- ever, that at Roman law bailees and agents are not possessors.) At English law the owner of goods is permitted to use rea.sonable force for their recapture, even against a third person who has acquired them innocently with color of title. As regards realty the statutes against 'forcible entry' have placed the English law on nearly the same footing as the Roman. Defective Possession. He who has acquired possession from another person by force or by stealth or by license is said, in tlie Roman and modern civil law, to have a possession which is 'vicious' (i.e. defective). As regards that person he is protected against forcible dispossession, but not against disturbance (trespass). As against all other persons, however, vicious possession en- joys (as at English law) the same protection as any other kind of possession. HoxE.ST PossEssiox. To the bonce fidei pos- sessor, i.e. to the person who not only possesses, but believes that he has a right to possess (a belief which regularly implies color of title), Roman and modern civil law give greater ad- vantages than to the malte fidei possessor. The honest possessor, when evicted by the owner, is not accountable for fructus or mesne profits no longer in his possession: or. as the civilians ex- press it, he has the right of consumption and even the right of waste. Again, the honest pos- sessor alone may acquire title by prescription. Finally, the honest possessor has an action for recovery of possession which runs against all the world, by which he prevails over every possessor who has not at least as much color of' title as he has, and which, unlike the ordinary possessory remedies, is not limited to a brief term. These distinctions are generallv drawn in modern civil law, but not in English law. In English law the honest possessor is accountable for mesne profits: he has no advantage as regards the perfecting of his title by lapse of time; and the actions of Vol. XVI— 20. ejectment and trover may be employed by the dishonest possessor as well as by the honest pos- sessor. In these English actions, however, the relatively better title prevails, so that substan- tially the same result is reached as in the Roman law. ACQUISITIOX AXD LOSS OF POSSESSION. In order to acquire legal possession a much more complete control must be established when the thing seized was not previously in any one's pos- session (as in the capture of wild animals, birds, and fishes), or when the thing is taken without the consent of the prior possessor (disseisin), than is necessary in cases where possession is voluntarily transferred by a prior possessor. In case of delivery of possession it is only necessary that the new possessor gain the degree of control ordinarily held by an owner. Thus, while the theft of a key would not give the thief possession of anything but the key. the delivery of a key may suffice to transfer pos.session of a box or a room or a house. Such cases are sometimes de- scribed as 'symbolic' deliveries, but this term is inaccurate, since control actually passes. At English law a further distinction (foreign to the Roman law) is drawn between the person who has a right to possess and the person who has no such right. He who has a right to pos- sess becomes legal possessor, even without the consent of the prior possessor, as soon as a par- tial control is established. This is one of the meanings attached to the English maxim that 'possession follows title.' Another meaning is that, when it is uncertain who has the physical control, legal possession is with the person who has the better right to possess. Legal possession is lost, at all legal systems, when physical control is lost. Control, however, as previously stated, does not mean complete con- trol; and possession once established usuallv con- tinues until the possibility of control is" lost. Apart from the case of animals ferw naturw, this usually occurs only when an adverse possession is established. Bibliography. Savignv. Das Eecht des Be- sitzes (7th ed., Vienna," 1865) ; Bruns, Das Hccht des Besitzes (Tiibingen, 1S48), and Besitz- klagen (Weimar, 1874) ; Jhering. Gruitd des Be- sitzschutzf's (.Jena, 1809), and Besitzicille (ib., 1889) ; Pininski, Sachbesifzenrerb (Leipzig, 1888) ; Pollock and VS'right. Possession in the Common Law (London, 1889). POSSET (probably from Ir. pusoid. posset, Welsh posel, curdled milk, from posiair, to gather). A dietetic preparation, made by curd- ling hot milk with wine, ale, vinegar, or other acidulous liquor. White wine or sheriy is gen- erally preferred, or old ale may be used. The posset is made by adding to boiling milk the liquor chosen : One and one-half wineglassfuls of sherry, or twice this quantity of ale to one pint of fresh milk, are the proper proportions. A tea- spoonful of vinegar or of lemon juice may be used instead, and the mixture sweetened. POSSEVINO. pos'sa-ve'n*. Antonio (c.1.534- 1611). An Italian .Jesuit and Papal diplo- mat, born at llantua. He studied at Rome, was appointed secretary to Ercole Gonzaga, in 15.j9 entered the .Jesuit Order, and was later rector of the -Jesuit College at Avignon. In 1.577 he was despatched to Sweden for the purpose of effecting the return of that country to the Roman