In the first place, the English law has always had the good sense /1/ to allow title to be set up in defence to a possessory action
In the first place, the English law has always had the good sense
/1/ to allow title to be set up in defence to a possessory
action
In the first place, the English law has always had the good sense
/1/ to allow title to be set up in defence to a possessory
action. In the assize of novel disseisin, which which was a true
possessory action, the defendant could always rely on his title.
/2/ Even when possession is taken or kept in a way which is
punished by the criminal law, as in case of forcible entry and
detainer, proof of title allows the defendant to retain it, and
in many cases has been held an answer to an action of trespass.
So in trespass for taking goods the defendant may set up title in
himself. There might seem to be a trace of the distinction in the
general rule, that the title cannot be tried in trespass quare
clausum. But this is an exception commonly put on the ground that
the judgment cannot change the property, as trespass for chattels
or trover can. /3/ The rule that you cannot go into title in a
possessory action presupposes great difficulty in the proof, the
probatio diabolica of the Canon law, delays in the process, and
importance of possession [211] ad interim,–all of which mark a
stage of society which has long been passed. In ninety-nine cases
out of a hundred, it is about as easy and cheap to prove at least
a prima facie title as it is to prove possession.
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