/3/ Whether the
German interpretation of the sources goes too far or not, it must
be taken account of in the examination of German theories.
[210] Philosophy by denying possession to bailees in general
cunningly adjusted itself to the Roman law, and thus put itself
in a position to claim the authority of that law for the theory
of which the mode of dealing with bailees was merely a corollary.
Hence I say that it is important to show that a far more
developed, more rational, and mightier body of law than the
Roman, gives no sanction to either premise or conclusion as held
by Kant and his successors.
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.
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