The consequences attached to possession are substantially those attached to ownership, subject to the question the continuance of possessory rights which I have touched upon above.Even a wrongful possessor of a chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing. It has been supposed, to be sure, that a "special property" was necessary in order to maintain replevin or trover. But modern cases establish that possession is sufficient, and an examination of the sources of our law proves that special property did not mean anything more.It has been shown that the procedure for the recovery of chattels lost against one's will, described by Bracton, like its predecessor on the Continent, was based upon possession.Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership,--"Poterit rem suam petere." The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form.
The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ.But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the chattels, yet he had a property as against strangers, or a special property.This took place, and, curiously enough, two of the earliest instances in which Ihave found the latter phrase used are cases of a depositary, and a borrower. Brooke says that a wrongful taker "has title against all but the true owner." In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession.The step was short, from saying that bailees could sue because they were answerable over, to saying that they had the property as against strangers, or a special property, because they were answerable over, and that they could sue because they had a special property and were answerable over. And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.
