VOL. 1. Petitory as well as pos⚫ sessory suits formerly cognizable CHAPTER XI. SUITS TO ENFORCE THE RIGHT OF POSSESSION OR OF PROPERTY FORMERLY, and until no very distant period, the High Court of Admiralty of England exercised an in the Eng- undisputed jurisdiction of controversies respecting lish admi rally. ships, depending as well upon mere questions of disputed title, as upon the right of possession when the title was undisputed, or was otherwise clear. "It is certainly true," said Lord STOWELL, in the case of The Warrior(a), "that this court did formerly entertain questions of title to a much greater extent than it has lately been in the habit of doing. In former times, indeed, it decided without reserve upon all questions of disputed title, which the parties thought proper to bring before it for tion restrict adjudication. After the restoration, however, it was possession, informed by other courts, that such matters were not properly cognizable here; and since that time it has been very abstemious in the interposition of its authority. The jurisdiction over causes of possession was still retained; and although the highest tribunals of the country denied the right of Its jurisdic ed to cause of by prohibitions. (a) 2 Dodson's R., 288. See, also, The Aurora, 3 Robinson's R., 135, to the same effect. this court to interfere in mere questions of disputed CHAP. 11. title, no intimation was ever given by them that the court must abandon its jurisdiction over causes of possession." The efforts which the court, under these circumstances, was constrained to make, on the one hand, so to execute the jurisdiction which remained to it as to render it effective and beneficial, and, on the other, by no means to transcend the limits which the common law courts had thought proper to prescribe, were attended, as, indeed, they could not fail to be, with great embarrassments and unavoidably led to unsatisfactory results. What was anciently understood to constitute the precise boundary line between causes of possession and petitory suits (as those which concerned the question of title were termed), it is probably impossible at this day exactly to ascertain. It is probable, also, that it was at no time very clearly defined. From the nature of the case, it could hardly have been otherwise; and the supposition that it was not, is, moreover, strengthened by the accounts which we have of these two forms of proceeding. "If," says BROWN, "the party in a possessory cause preceived, from the inspection of the proofs therein, that he had no prospect of success in the question of property, he might decline the contest; but his adversary, for the better confirmation of his title, might proceed in the petitory, and obtain final sentence therein. But if he did, he must libel anew, and produce fresh proof, unless the evidence of the witness produced in the possessory had extended to a proof of property. On VOL. 1. the other hand, the party defeated in the possessory cause might proceed possibly with success in the petitory, in which the proceedings were similar to those in other maritime causes; and sureties were to be given by the successful party in the possessory, for restoring the goods, if there should be a decree entered against him in the petitory, at least if the defeated entered a protest that he intended so to proceed." In deciding beforehand between the two forms of action, the suitor probably had to encounter a difficulty no less insuperable than that which, to the cost of so many suitors, and to the opprobrium of the common law, has been experienced in deciding between the action of trespass, and that of trespass on the case. Lord STOWELL, himself, with all his remarkable perspicacity, and after repeated trials, seems scarcely to have succeeded, even to his own satisfaction, in laying down any precise rule by which the particular nature of controversies of the sort under consideration could be certainly determined; and a critical review of the cases decided by him would show, to say the least, a want of entire consistency in the application of the principles by which he professed to be governed. What these principles were, will most satisfactorily be shown by a brief extract from his judgment in one of the last cases of this description which came before him. The ship had been chartered by the owners in London, to the master, to carry a cargo of wine (to be taken in at the island of Madeira) to the West Indies. On her arrival at St. Christopher's, whither she had sailed from Madeira, she encountered a storm, and was stranded on the beach. A correspondence ensued between the master and the owners, relative to the disaster, and to the measures to be taken in respect to the ship; and she was eventually sold by the master to a merchant of St. Christopher's, to whom, "acting as agent for his owners and underwriters," he executed a bill of sale of the ship. After the lapse of two years she returned to Liverpool in the service of the purchaser, with a load of lumber, and was there arrested in a cause of possession at the suit of her former owners, who insisted that the sale by the master at St. Kitt's was unauthorized, fraudulent and void. Lord STOWELL, after stating the facts and circumstances of the case as they appeared before him, said: "The case then is, in reality, an inquiry into the title of the present asserted proprietor to hold the ship; and the first, I had almost said the only question is, how far this court is authorized to make this inquiry, and provided with due powers to make it with effect. The court is, certainly, in the habit of transferring possession from the actual holder, sometimes by his own movement, sometimes at the instance of other courts, which have no direct power for that purpose; but it considers itself, and is bound to consider itself, as moving within very narrow limits, if it proceeds at all originally upon a question of title. It, undoubtedly, would not be inclined, in any case, to transfer a possession without regarding the title of the party who claims the transfer; it must be satisfied that CHAP. 11. VOL. 1. he is potior in jure; and it must be in cases extremely simple that it acts on a merely preferable title, to be reached by his own judgment. Where the possession is gained by force and violence, or by fraud manifest upon the very face of the transaction; or where the party in possession is avowedly entitled only as a minor owner in opposition to the majority of interests, there the court feels no hesitation; but where a course of transactions involving fraud is objected, it declines entering into the question, and leaves it to be determined by the inquiry of courts, which have ampler means of arriving at the real truth, and the real justice of the case; for there may be some incidental matters, such as repairs, and other expenses, requiring the application of equitable principles which this court. may not feel itself competent to administer. I may, therefore, lay it down as a rule for the conduct of this court, that it is only in simple cases, in cases speaking for themselves, that it can act with effect; but in those which, being complex, require a long and minute investigation, it cannot proceed with safety. "To which of these classes does the present case belong? I have no hesitation in saying, to the latter class. Here is a series of transactions, charged on the one side to be fraudulent, and on the other, denied to have the slightest intermixture of fraud in them. Many documents are produced, and some are not forthcoming, which, upon such a question, ought to be produced. It is not, then, for this court, under these circumstances, to proceed the |