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.
In the next place, and this was the importance of the last
Lecture to this subject, the common law has always given the
possessory remedies to all bailees without exception. The right
to these remedies extends not only to pledgees, lessees, and
those having a lien, who exclude their bailor, but to simple
bailees, as they have been called, who have no interest in the
chattels, no right of detention as against the owner, and neither
give nor receive a reward. /1/
Modern German statutes have followed in the same path so far as
to give the possessory remedies to tenants and some others. Bruns
says, as the spirit of the Kantian theory required him to say,
that this is a sacrifice of principle to convenience.
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