seisin but upon the condition that full payment should end the estate and the land revert to the mortgagor. Meantime and while the condition of payment was awaiting its fixed date the mortgagee, having possession of the land, could appropriate the annual profits to his own use, and so gain compensation for his money loan. This was an exceedingly convenient way of getting usury. It needed only that the lender should require as his security a sufficiently large estate to furnish a liberal or even an excessive income. We read how a Norman duke gaged his duchy to the English king, and how William Fossard had gaged his land to the Jews for twelve hundred pounds. When the usurers thus got possession of duchy or manor the tenants had to work for a full day, and pay to the last farthing. This was the dead gage, the mort-gage.

But what happened to the seisin? At first it is necessarily in the gagee. He can have no title without it. On payment the gagor may enter and regain his seisin. If he does not pay, the land vests absolutely in the gagee. But until payment the gagee is seised. Pollock and Maitland assure us that his possession is called seisin. And yet they add that if a stranger ejects the gagee it is not he but the gagor who has the assize of novel disseisin: and, what is worse, if the gagor evicts his gagee the latter has no remedy except an unsecured judgment for his debt. These results are inexplicable except upon the suspicion that the seisin of the gagee is becoming shadowy and doubtful, and the judges are giving him merely a seisin as pledgee, ut de vadio, leaving the seisin in fee in the gagor. It is no wonder that there was confusion, and that the strain upon the doctrine of seisin was severe. Later the logic of the situation was improved by a new theory. The lawyers began to say that the gagee was a tenant for years, that is, a termor, and so having only a termor's remedies. Now, the tenant for years was not a freeholder and if ejected could not have the novel disseisin. He was regarded as having merely a possession, while the seisin remained in his lessor, and we begin to open our eyes to a distinction between possession and seisin which some day will ripen into estates in land, each with its own variety of seisin. It is close work, but the gagee reduced to the level of a termor explains why he could not have the novel disseisin and why, if the gagor ejected him, he had no remedy except to sue on his debt.

If, then, we regard the gagee as a tenant for years—a mere termor— we are compelled to inquire what that termor's remedies were. His lessor sometimes made a collusive sale of the land, and the new owner ejected the lessee with the result that the latter had no action except on the covenants in his lease and ending simply in damages. A new writ was framed under which he could recover possession; but against

everybody outside of the lessor the ejected lessee seems to have had no remedy except to repel force by force, or bring an action of trespass quare clausum. It was near the close of the Middle Ages before the writ of ejectione firmae restored the possession. So that the gagee, supplied only with the remedies of a termor, seems to have separated possession from seisin, and to hold a very risky and dangerous security but thereby furnishing ample excuse for very high rates of interest. More than that, the logic of the lawyers was obviously lame, and the argument of Pollock and Maitland that the mortgagee was in reality the holder of a "free tenement," and so entitled to the protection of the novel disseisin, seems unanswerable. But we must not be too critical about it. Everything had to be somehow reconciled with seisin and the lawyers had an ugly job.

But the medieval realism was bound to face other situations, and had its ingenuity so severely taxed that the way out was only found with the aid of a fiction odd even to absurdity.

We have noted how seisin is attributed to incorporeal rights by saying that if not land they at least issue out of land. Some link of connection with a real thing is sought in order to make a real thing of what is in truth a mere abstract right. It must smell of the land. Take the case of a simple annuity, and here again we shall follow Pollock and Maitland quite closely. John gives Charles an annuity for his life and Charles is said to have seisin of the annuity. That at least was the law of the earlier year-books, though Bracton begins to see that the non-payment is hardly disseisin of a tenement. But how make the annuity real? What did it issue out of? Why, we should have been regarded as stupid for not seeing that it issued out of the donor's chamber, and was likened to a rent and was called a chamber rent. Its common form was what was termed a corody. The rolls are full of them. A religious house, a monastery, growing rich upon the gifts of the flock and desiring to retain in its service some canonical lawyer, learned and able but shabbily poor, or to pension some retainer grown old and feeble but with a faithful past behind him, gives its donee a support for the rest of his life,-board and clothes and lodging. Pollock says in many cases "an elaborate document will be executed. The quantity and quality of the meat, drink, clothes, candles, firewood, that the grantee is to receive will be carefully defined: even the mustard and garlic will not be forgotten." But out of what real thing does this corody issue? Easily answered, It issues out of the convent, the monastery, the consecrated building, and so at first the courts Christian had exclusive jurisdiction over it: but in 1285 a statute gave the courts temporal an action for it; and what do you think that action was? It was the assize of novel disseisin just as if

the victuals and drink were land. The man who failed to get his garlic was disseised of his free tenement, and the jurors, bound to view the land, went and looked at the convent. With some reason they might have peered into its kitchen. Can the doctrine of seisin go any further? Even that is possible. Let us see.

It seems to be quite clear that there was a disseisin of chattels, and that the analogies of the land-law ran into and shaped the law of movables. We have seen already how strong was the hold of the possessor and how nearly akin to ownership. In nothing does the law of Glanvil's time so much surprise us as in ascribing a right of property to the trespasser in what he has taken, and to the thief in the chattel which he has stolen. Professor Ames cites for us some remarkable illustrations. In a year-book of the fourth Edward the Chief Justice charged the jury thus: "If one takes my horse vi et armis and gives it to S, or S takes it with force and arms from him who took it from me, in this case S is not a trespasser to me, nor shall I have trespass against him for the horse because the possession was out of me by the first taking," and the reason added by the glossator is "for the first offender has gained the property by the tort." Fitzherbert says "if one takes my goods he is seised now of them as his own goods," and Finch's definition is: "Trespass in goods is the wrongful taking of them with pretence of title, and therefore altereth the propertie of those goods."

More remarkable still is the case of John v. Adam in the time of Edward III which was an action in the detinet for sheep. They had been stolen from the plaintiff by a thief who was driving them through defendant's hundred, but, becoming alarmed and to avoid arrest, the felon fled to the church and abjured the realm, and the defendant became seised of the sheep by virtue of his franchise to have the goods of felons. The Chief Justice defeated the plaintiff, holding that there was no trespass as to him since the property was in the felon. Under the rule which gave all the latter's goods to the crown what he had stolen went as his.

The effect of this seisin of the wrongdoer was even worse than in the case of land. In the latter instance, through the assize of novel disseisin, the owner had his possession restored, but there was hardly any such remedy for the man disseised of a chattel. Through an appeal of larceny there might possibly be a restitution, but that was perilous and might end in the risk of a battle, and so the only available remedy was trespass. But that simply awarded damages and brought no restitution. Even when replevin was invented the wrongdoer had a power to choose between a return of the property and payment of its value. It followed inevitably that the influence of seisin on the law

of movables was to postpone the abstract notion of ownership, and instead to depend upon the dominance of possession.

But observe to what astonishing areas that dominance spread, and what a marvellous strength is developed in possession. For it was able to combat and reverse the original and primitive law. Nothing has become more certain than that the law of movables in the earliest ages recognized something closely akin to the abstract idea of ownership. The owner of cattle could pursue and reclaim them into whatever hands they had passed, and however honestly obtained. There was no defense of a purchase in good faith. That fact would indeed save the possessor of another's property from the fine inflicted on a thief, but he had to surrender the cattle to their owner, and seek his remedy on the warranty of his vendor. The claimant, thus, out of the physical possession, stood and could only stand on the right to possess, and that right is the chief and vital characteristic of ownership. It is true that such abstract idea had not openly manifested itself in the consciousness of the race, but we can see that it lay hid in the concrete facts which surrounded their dealings with cases of theft: and it seems to us very strange that once on the road to a true conception of property in movables they should have drifted backward to a mere dominance of possession. Yet that is what happened, and seisin was the rebel baron dethroning ownership and passing the crown to possession. This, of course, was a backward step, a break in the line of evolution, but such retrogressions are common, and while they hinder never defeat the march of the natural process. The later law drew elements from both of the precedent doctrines. It recognized the dominance of ownership, but subjected it in special cases to the supremacy of possession, when obtained in good faith and for a valuable consideration.

But greater difficulties confronted seisin when it came to deal with the bailment of chattels. Bailment opened the way to contract. We may say now that it constructed the road to the modern conception of ownership. The common law in Bracton's day scarcely drew any distinctions between the different sorts of bailment. He himself sought to acclimate the civil law in that respect to the English soil and air, but failed for the time to accomplish his purpose, beyond planting the germ thought from which the modern doctrine was to grow. What did take root were those features of the ancient law which treated the bailee as owner in any quarrel with trespassers. If a wrongdoer disseises the bailee the remedy is his for it is his seisin that is invaded, and the right of the bailor is wholly against the bailee for a failure to return the property. But it began to be seen that this doctrine would not work in some directions. It served well enough

sum.

where there was a loan for use and the identical thing bailed was not to be returned. Suppose a loan of money. No one ever expected the same coins to be returned, or when cattle served as money always the same identical cattle, and it was not difficult to regard the borrower as owner and the bailor as merely entitled to the return of an equivalent But suppose a loan for hire. Mark wants a horse of John to use at his plough for a month and then to be returned. The bailee, Mark, becomes seised of the animal, but is he therefore owner? And what is John? Everybody knows that the bailee is not owner, that the horse is only in his possession, and while it is natural that the bailee should proceed against the trespasser why deny the bailor's right? It becomes evident that somehow the seisin must be regarded as partible, or predicated of both parties, and by the end of the medieval period the notion of an ownership divorced from possession came to the surface, and it was held that the general property was in the bailor and a special property in the bailee. And that result followed inevitably from the admission of excuses for a non-return. It was possible to deny the bailor's remedy against third persons while his resort to the bailee was absolute and perfect but the moment it ceased to be so by reason of permitted excuses it became intolerable to continue a denial to the bailor of redress against a second or third hand, since that amounted to a denial of all remedy for the loss of the thing bailed. It was Bracton, guided by the Roman law, who opened the door to these excuses, and led the way to remedies of the bailor against trespassers upon the bailee's possession and to that play of astute reasoning which made seisin in effect partible.

But the realism of the early day, born largely of seisin, showed itself very plainly in the form of the action of debt. We naturally expect to find that action an outgrowth and expression of contract, but in that we are disappointed. Contract indeed lurked under it, approached, almost came to the surface, and yet was never distinctively present. Observe the form of the writ and the theory on which it went. It is very like the writ of right which a freeholder uses to recover his land. The debtor is commanded to render up a hundred marks whereof the plaintiff complains that the defendant unjustly deforces him. As a suitor can be disseised of his land so a creditor can be disseised of the money due to him. It is his money,-that is the theory, his money the possession of which the debtor keeps and refuses to deliver up. Plainly, the action does not rest on a promise at all. There is no assertion of any; it is a duty not a promise that underlies, and the realism born of seisin rules the writ. We say the realism, for the only cases in which it was generally used were money lent, price of goods sold, arrears of rent on a lease, and a sealed bond.

-