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QUEEN'S BENCH. 1851.

[Reported 15 Jur. 1079.]

THIS was an appeal against a decision of the judge of the County noles baut Court of Westminster. The following facts appeared upon the case firefused stated and signed by the judge: In October, 1847, the plaintiff, who steld fee was town traveller to Messrs. Rae & Co., called at Messrs. Byfield & has it as Hawkesworth's on business, as he was in the habit of doing, and as he aquinas difti. was leaving the shop he picked up a small parcel which was lying upon the floor. He immediately showed it to the shopman, and opened it in his presence, when it was found to consist of a quantity of Bank of England notes, to the amount of £65. The defendant, who was a partner in the firm of Byfield & Hawkesworth, was then called, and the plaintiff told him he had found the notes, and asked the defendant to keep them until the owner appeared to claim them. The defendant caused advertisements to be inserted in the Times newspaper, to the effect that bank notes had been found, and the owner might have them on giving a proper description and paying the expenses. No person having appeared to claim them, and three years having elapsed since they were found, the plaintiff applied to the defendant to have the notes returned to him, and offered to pay the expenses of the advertisements, and to give an indemnity. The defendant had refused to deliver them up to the plaintiff, and an action had been brought in the County Court of Westminster in consequence of that refusal. The case also found that the plaintiff, at the time he delivered over the notes to the defendant, did not intend to divest himself of any title that he might have to them. The judge had, upon these facts, decided that the defendant was entitled to the custody of the notes as against the plaintiff, and gave judgment in his favor accordingly. It was to review this decision that the present appeal had been brought.

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Gray (Heath with him) for the appellant. The plaintiff, by finding the notes in question, acquired a title to them against the whole world, except the true owner. Armory v. Delamirie, 1 Str. 504; 1 Smith's L. C. 151 (6th ed.) 315. Having found them, he delivered them to the defendant for a special purpose only, and never intended to part with his property therein. The judge appears to have decided the case upon the ground that they were found in the house of another; but that makes no difference. If they had been found in the highway they would have been the property of the finder, except as against the true owner; and yet the highway is the private property of some one, subject to the right of the public to pass over it. Suppose they had been found in the yard of the defendant, then they could be lawfully retained as against him; he might have had an action of trespass for entering

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BRIDGES v. HAWKESWORTH.

the yard, but not any action founded on the possession of the goods. How did the defendant acquire any property therein? The mere fact of the notes having been dropped on the floor of his shop did not give it to him. [PATTESON, J. If one enters a cab, and takes away a parcel left there by a former passenger, the property might be laid in the cab-owner in an indictment for the felony. WIGHTMAN, J. If the notes Shad been left on a chair, and the customer coming in had merely lifted them off, would they have become his property? They were not lost in the ordinary sense of the term, but were there in conspectu omnium. You say that any one taking possession of them, although they were in one sense in the possession of the shopkeeper, acquires a title to them, except as against the true owner.] Yes. Perhaps an indictment would lie for stealing the goods of a person unknown; but here the owner of the shop, not having taken possession, could not lay the property in himself. [PATTESON, J. Is there any instance of indicting a person for stealing the goods of a person unknown? If the owner be unknown, could felony be committed in respect of the goods? There might probably be an indictment for a robbery of a person unknown.] The man who first picked up the notes would be the finder, even although the owner of the shop should first see them. Puffendorf, lib. 4, c. 6, § 8, shows that the bare seeing, or the knowing where lost goods are, is not sufficient. [WIGHTMAN, J. You must go further, and show that their being in the shop of the defendant makes no difference. Blackstone says, that whatever moveables are found on the face of the earth belong to the first occupier.] That would be so where no owner appears; it would be the same, as between the finder and the rest of the world, as if there were no owner. Blackstone (1 Com. 296), speaking of treasure trove, says, "Such as is casually lost or unclaimed still remains the right of the fortunate finder." That was an express authority for the general rule; and if the other side contended that the notes being found in a man's house made any difference, it lay upon them to establish that proposition. [PATTESON, J. In Puffendorf,

lib. 4, c. 6, § 13, it is said, "He who hath hidden treasure in another's ground, without acquainting the lord of the soil, is judged to have slipped his opportunity; . . . but if the ground belongs to another, then the finder seems engaged by his conscience to inquire, at least indirectly, of him concerning the matter, because, without this, it cannot certainly be known but that the money was laid there by the master of the place only for the greater security, or by some person else with his privity and consent." From which it would appear, that if it were laid there without the consent or privity of the owner of the soil, he would not be entitled to it. These notes were certainly not intrusted to the defendant- they were lost.] By the law of nature, a finder acquires property by taking possession of the goods found, and those cases in which the property is given to the State or to particular individuals are exceptions upon the law of nature. In Reg. v. Kerr, 8 Car. & P. 176, it was held," that a servant who had found some bank notes in her

master's house ought to have inquired of him whether they were his or not." Those were her master's notes, which brought the facts within the rule laid down by Puffendorf where the owner of property is known. It therefore does not apply to this case. But if the other side were right, the servant would be equally guilty of felony whether they were her master's notes or not. They must put it upon the ground of a special property in the owner of the house; and if so, the servant would be guilty of felony whether she made inquiry as to the true owner or not; but a finder is not guilty of larceny where he has no reasonable opportunity of knowing the owner, because the articles found belong to him, whatever may be his intention at the time of taking them. [PATTESON, J. If goods were found in an inn, it would be different. There a special property is vested in the innkeeper by reason of his liability. In Merry v. Green, 7 M. & W. 623, it was held, that there might be property in a person of goods, although he did not know of its existence. There a bureau was bought at an auction, and a purse of money was found in a secret drawer therein; and it was held that it belonged to the seller, although he knew nothing of it. That and Cartwright v. Green, 8 Ves. 405, appear to be the nearest to the present case.] In Merry v. Green, the money was not lost - it was entirely inclosed in a chattel belonging to the seller; here the loss and the finding are stated in the case. The defendant, to have any right, must have indicated his intention to take possession before the other did. If the shopkeeper had placed it on one side until he found the owner, it would have been different; but here the plaintiff is the finder. As to the notes being found in the shop, that reduces it merely to a question of degree; a shop is more private than a field, a field more private than a highway; but the fact of the articles found being upon the soil of another does not prevent them from becoming the property of the finder. The defendant had not made himself liable to the true owner. Isaack v. Clark, 2 Bulst. 312, shows "that when a man doth find goods, he is bound to answer him that hath the property." The defendant received the notes only for the purpose of advertising them, and restoring them to the true owner, if he should appear. [He also cited Sutton v. Moody, 1 Ld. Raym. 250].

Heath offered to address the court on the same side, but it was decided that only one counsel could be heard on each side.

Hake, for the respondent. The plaintiff could not acquire property in these notes by merely picking them up; and if he could he had in this case divested himself of that property by handing them over to the defendant, thereby making him the principal in the matter, and investing him with the responsibility of a finder. The notes, if they were in truth the property of a customer, came into the shop by leave of the owner of the shop. Dig. lib. 41, De Acq. Re. Dom., tit. 1. [PATTEson, J. That assumes that they are deposited intentionally; in which case there can be no doubt whatever.] Savigny, in his celebrated Treatise on the Law of Possession (translated by Sir Edward Perry),

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§ 18, states that the principle of the rule is easily to be discovered. The maxim is, “ Vacua est quam nemo detinet." Here the jus detentionis was in the defendant, and there was no vacancy of possession. If the goods had been of larger bulk, the owner of the house might have distrained them damage feasant, and no one could have taken them from his custody. If a scintilla of dominion might be exercised by the shopkeeper, they could not vest in the finder. [PATTESON, J. Savigny speaks of money buried in the land; but how is it if it be in my house? The expression "If I know where it is, I possess it, without the act of taking it from its place of concealment"" (p. 163, note e), seems to make the question of property turn upon a mere chance.] That doubt is answered by the case of Merry v. Green. In many instances property is held to belong to the owner of the soil, though he does not know of it, as in the case in Lord Raymond. In Toplady v. Stalye, Sty. 165, Rolle, C. J., says, "If cattle be stolen, and put into my ground, may take them damage feasant." If the owner could not take them away, how could a stranger do so? Anon., 1 Bulst. 96. In the Year Book, 12 Hen. 8, 9, it is said, "that the owner of a forest is the owner of the wild creatures therein ratione loci." In Reg. v. Kerr, Parke, B., asks, "What if I drop a ring, is my servant to take it away?" Suppose my guest loses his ring, is the servant finding it at liberty to keep it? Has not the owner of the house a right to take it from him? [WIGHTMAN, J. In that case there would be no question about the property.] If, in Armory v. Delamirie, the sweep had been employed to sweep a chimney, and, having entered a house for that purpose, had picked up a jewel therein, he could not have claimed it. In the case of a wreck, the lord, before seizure, has a constructive possession. In Smith v. Milles, 1 T. R. 480, Ashurst, J., says, "The right is in the lord, and a constructive possession, in respect of the thing being within the manor of which he is lord." [PATTESON, J. That is a manorial right, and does not apply to any other person. WIGHTMAN, J. In the preface to Savigny a difficulty is suggested in the passage quoted from Mr. Bentham: "A street porter enters an inn, puts down his bundle upon the table, and goes out; one person puts his hand upon the bundle to examine it, another puts his to carry it away, saying, 'It is mine.' The innkeeper runs to claim it, in opposition to them both. The porter returns, or does not return. Of these four men, who is in possession of the bundle?"] In that case the innkeeper has the property ratione loci et impotentiæ. The parcel cannot fly away. In Isaack v. Clark, Lord Coke says the finder has it in his election to take the goods or not into his custody. Did the plaintiff take to himself the charge of these notes, or make himself liable for the advertisements? [WIGHTMAN, J. If the plaintiff had merely showed them to the defendant, and said he would keep them, could the defendant have sued him for them?] ! Yes; by reason of their being found in the house he had a constructive possession, and also something less than a possession,- a jus detentionis. Burn v. Morris, 4 Tyr. 485, shows that the defendant was

responsible to the true owner. In the Case of Swans, 7 Rep. 17 b., Lord Coke says that a possessory right is obtained in wild animals ratione loci et impotentiæ· that is, so long as they do not or cannot fly away. The reason of these decisions is given by Savigny (p. 163), "A movable becomes connected with an immovable without, nevertheless, being incorporated with it." Semayne's Case, 5 Rep. 93, shows that a house protects all goods lawfully there; and it is to be inferred that it displaces all right in a finder. The maxim of the civil law is, Si in meam potestatem pervenit, meus factus sit. Savigny (p. 169) comments upon it" Possession of a thing may be acquired simply by the fact of its having been delivered at one's own residence, even though we are absent from the house at the time." [WIGHTMAN, J. There they were directed to the house: here, if the finder had put the notes into his own pocket, the owner of the shop would not have known of them. If you can put any case where the goods came into the house without the knowledge of the owner of the house, it would be in point. PATTESON, J. If property is intentionally in my house, it is certainly in my possession.] There is a distinction between property obvious on the surface of the soil and what is buried. In the former case it is supposed that it will be seen by the owner or his servants; but if it is buried, the next owner is as likely to find it as the former one (Savigny, 169). The passages in Blackstone cited on the other side put the question upon the intention of the true owner to come back and claim the goods. By our old law goods found were to be delivered to justices; and in Deut. c. 22, we read, “Goods found should be kept near where they are lost." In Reg. v. Thurborn, 2 Car. & K. 831, it was held, that to prevent the taking of goods from being larceny, it is essential that they should be taken in such a place and under such circumstances as that the owner would be reasonably presumed to have abandoned them. In 5 Rep. 109 a., it is said, "If one steal my goods and throw them into the house of another, they are not waifs." So in Com. Dig., " Waif." This case is undistinguishable from one where goods are left at an inn, and the relation of landlord and guest has ceased; if the goods are then stolen, the innkeeper is not liable. The act of taking possession of the notes by the plaintiff did not render him chargeable to the true owner, nor confer a property upon him. Dig., lib. 41, tit. 1, De Acq. Re. Dom.; May v. Harvey, 13 East, 197. If no engagement be exacted to redeliver, the party delivering cannot sue while the trust remains open. The defendant may set up a jus tertii; he is liable to the true owner, and ought not to be liable to two in respect of one interest. He advertised that the notes could be had at his shop, and incurred liability for the advertisements. [He also cited Ogle v. Atkinson, 5 Taunt. 759, and Templeman v. Case, 10 Mod. 24.]

Gray, in reply, cited Savigny, 170"Every case of possession is founded on the state of consciousness of unlimited physical power."

Cur. adv. vult.