[234]. See for a criticism of the ratio decidendi of this case Clerk and Lindsell’s Law of Torts, Appendix.
[235]. 33 Ch. D. 562 at p. 568.
[236]. The explicit recognition of mediate possession (mittelbarer Besitz) in its fullest extent is a characteristic feature of the German Civil Code (sects. 868–871): “If any one possesses a thing as usufructuary, pledgee, tenant, borrower, or depositee, or in any similar capacity by virtue of which he is entitled or bound with respect to some other person to keep possession of the thing for a limited time, then that other person has possession of it also (mediate possession).” See Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp. 697–701.
[237]. In Ancona v. Rogers (1 Ex. D. at p. 292) it is said in the judgment of the Exchequer Chamber: “There is no doubt that a bailor who has delivered goods to a bailee to keep them on account of the bailor, may still treat the goods as being in his own possession, and can maintain trespass against a wrongdoer who interferes with them. It was argued, however, that this was a mere legal or constructive possession of the goods.... We do not agree with this argument. It seems to us that goods which have been delivered to a bailee to keep for the bailor, such as a gentleman’s plate delivered to his banker, or his furniture warehoused at the Pantechnicon, would in a popular sense as well as in a legal sense be said to be still in his possession.”
[238]. (1893) 2 Q. B. 30, 31.
[239]. 1 Taunt. 458; 10 R. R. 578.
[240]. 6 El. & B. 726.
[241]. At p. 735.
[242]. D. 41. 2. 3. 5.
[243]. These terms, however, are not strictly accurate, inasmuch as the so-called constructive delivery is a perfectly real transfer of possession, and involves no element of fiction whatever.