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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 par. cel 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 had 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 & person for stealing the goods of a person unknown? If the owner he 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 wbo 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 bave 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),
$ 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
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 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, I
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 tbe 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 bis 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 bim 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 Svans, 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 fuctus 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.” [Wight
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. Ilarvey, 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.
PATTESON, J., now delivered the following judgment: The notes which are the subject of this action were incidentally dropped, by mere accident, in the shop of the defendant, by the owner of them. The facts do not warrant the supposition that they had been deposited there intentionally, nor has the case been put at all upon that ground. The plaintiff found them on the floor, they being manifestly lost by some
The general right of the finder to any article which has been lost, as against all the world, except the true owner, was established in the case of Armory v. Delamirie, which has never been disputed. This right would clearly have accrued to the plaintiff had the notes been picked up by bim outside the shop of the defendant; and if he once had the right, the case finds that he did not intend, by delivering the notes to the defendant, to waive the title (if any) which he had to them, but they were banded to the defendant merely for the purpose of delivering them to the owner, should he appear. Nothing that was done afterwards has altered the state of things; the advertisements inserted in the newspaper, referring to the defendant, had the same object; the plaintiff has tendered the expense of those advertisements to the defendant, and offered him an indemnity against any claim to be made by the real owner, and has demanded the notes. The case, therefore, resolves itself into the single point on which it appears that the learned judge decided it, namely, whether the circumstance of the notes being found inside the defendant's shop gives him, the defendant, the right to have them as against the plaintiff, who found them. There is no authority in our law to be found directly in point. Perhaps the nearest case is that of Merry v. Green, but it differs in many respects from the present. We were referred, in the course of the argument, to the learned works of Von Savigny, edited by Chief Justice Perry; but even this work, full as it is of subtle distinctions and nice reasonings, does not afford a solution of the present question. It was well asked, on the argument, if the defendant has the right, when did it accrue to him? If at all, it must have been antecedent to the finding by the plaintiff, for that finding could not give the defendant any right. If the notes had been accidentally kicked into the street, and there found by some one passing by, could it be contended that the defendant was entitled to them from the mere fact of their being originally dropped in his shop? If the discovery had never been communicated to the defendant, could the real owner have had any cause of action against him because they were found in his house? Certainly not. The notes never were in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there; and the defendant has come under no responsibility, except from the communication made to him by the plaintiff, the finder, and the steps taken by way of advertisement. These steps were really taken by the defendant as the agent of the plaintiff, and he has been offered an indemnity, the sufficieney of which is not disputed. We find, therefore, no circumstances in this case to