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Law Notes Property, Equity and Trusts 1 Notes

Goods And Actions In Possession Notes

Updated Goods And Actions In Possession Notes

Property, Equity and Trusts 1 Notes

Property, Equity and Trusts 1

Approximately 320 pages

The old Property, Equity & Trusts subject at UNSW. Dealt primarily with old system. Contents include detailed case notes (and super summaries ideal for use in an open book exam) and article summaries on the following classes:
Class 1&2 – The Concept of Property
Class 3&4 - Goods
Class 5&6 - Possession of Land
Class 7 - Limitation of Actions
Class 8 - The Doctrine of Tenure and Estates; Determinable and Conditional and Future Interests, The Doctrine of Waste, Fragmentation of legal/beneficial...

The following is a more accessible plain text extract of the PDF sample above, taken from our Property, Equity and Trusts 1 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Class 3 & 4 – Goods

Some introductory remarks are made about how possession is central to the idea of property and how even though the backbone of the law has been unchanged it has been incrementally developed by common law and in the UK been subject to sweeping legislative changes.

Holmes, in The Common Law (1881) speaks of the concept of possession using two examples:

  • A bankrupt person does not lose possession of goods coming to him – this would be an invitation to all the world to scramble for possession of them (Webb v Fox); a rule which was justified on policy and convenience

  • The idea of someone hooking a fish or a whale which has developed through custom rather than any cogent and linear concept of property law

    • He concludes saying that the law is a practical thing that should give effect to the primal instinct of one who attempts to take back what was dispossessed from him

Goods

There exists a distinction between real property and personal property

  • Leases are considered as real property

  • Personal Property that are either

    1. Choses in Possession (capable of being held in physical possession – jewellery etc.)

    2. Choses in Action (intangible property like debt, shares etc.)

  • Three actions lie against one for wrongful interference with possession:

    1. Trespass – interference with actual possession

    2. Conversion – A suit lies where a positive wrongful act of dealing with goods in a manner inconsistent with the rights of the owner, who has rightful possession and not necessarily absolute ownership, is made

    3. Detinue – A suit lies where a plaintiff in actual possession or an immediate right to it where a defendant wrongly retains the goods following a lawful demand for them

      • Compensation for both can be return of the goods or the market value of the goods. Return may be ordered if the goods have some special value to the plaintiff; this can be adjusted for improvements (McKeown v Cavalier Yachts (1988))

  • The requirements of detinue and conversion are:

    1. Actual or immediate right to posession at the date of interference/demand

      • A future right is insufficient – if ownership is transferred the agreement decides this

      • In the case of bailed goods the bailor may recall the goods at any time; meaning if a third party interferes both bailor and bailee has action against them

Jeffries v The Great Western Railway Co (1856) 119 ER 680

Facts: P (GWRC) brings an action of trover (conversion) against D (J). P proves the defendant seized trucks from their possession; claiming they were assigned to P by O. D claims that O has been declared a bankrupt and thus ownership was not to P but to those given title to the goods by the Court of Bankruptcy.

Ratio (Lord Campbell CJ):

  • A person possessed of goods as his property has good title against every stranger; one who takes them having no title is a wrongdoer and cannot defending himself by saying that a third person has title

  • The presumption that a person in possession has property may not be rebutted by evidence of property in a third person

Wightman J delivers to much the same respect

This case is also authority for the proposition that despite the chance of steps taken by the rightful owner; the wrongdoer must pay the full market value of the chattel taken and is still vulnerable to action from the rightful owner.

  • A contractual right to possession without actual possession isn’t sufficient for detinue (Jarvis v Williams) – interesting example of one who buys goods from one not the owner but does not enter possession; his claim may be defeated by the wrongdoer asserting ownership of B. Jus tertii is used to deny the cause of action

  • In Costello v Chief Constable of Derbyshire Constabulary, Lightman J ruled that possession, even if by theft (in which case the title is frail), vests possessory title which is good against all but one who can claim better title.

    • Battersby (Acquiring Title by Theft) comments on the idea of relative title – however acquired title prevails against all who subsequently possess without better title.

    • The same point is made in R v McKiernan [2003] in a case regarding a church bell

The Winkfield (1902) All ER Rep 346

Facts: The case concerns a claim of the Postmaster-General in the case of The Winkfield. Having crashed with the Mexican the owners of the Winkfield paid the amount they were liable for to the court. The PMG claimed to recover from the sum given the value of letters, parcels etc. In his custody as a bailee and lost on board the mexican

Ratio (Collins MR):

  • Cited the principles from Jeffries v Great Western Railway Co to make a logical extension from the principle that a possessor may recover from a wrongdoer the whole value of goods in an action in trespass:

  • It is not open to the defendant, being a wrongdoer, to inquire into the nature of the limitation of the possessor’s right unless it is competent for him to do so. The question of the possessor’s liability does not come into the discussion at all.

His honour then reviewed the...

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