This is rather strained, however, and the court perhaps thought that the barber had possession as soon as the customer left the shop.A little later, in a suit for a reward offered to the finder of a pocket-book, brought by one who discovered it where the owner had left it, on a desk for the use of customers in a bank outside the teller's counter, the same court said that this was not the finding of a lost article, and that "the occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left." /l / This language might seem to imply that the plaintiff was not the person who got possession first after the defendant, and that, although the floor of a shop may be likened to a street, the public are to be deemed excluded from the shop's desks, counters, and tables except for the specific use permitted.Perhaps, however, the case only decides that the pocket-book was not lost within the condition of the offer.
I should not have thought it safe to draw any conclusion from wreck cases in England, which are mixed up with questions of prescription and other rights.But the precise point seems to have been adjudicated here.For it has been held that, if a stick of timber comes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it. A right of possession is said to be enough for trespass; but the court seems to have meant possession by the phrase, inasmuch as Chief Justice Shaw states the question to be which of the parties had "the preferable claim, by mere naked possession, without other title," and as there does not seem to have been any right of possession in the case unless there was actual possession.
In a criminal case, the property in iron taken from the bottom of a canal by a stranger was held well laid in the canal company, although it does not appear that the company knew of it, or had any lien upon it. The only intent concerning the thing discoverable in such instances is the general intent which the occupant of land has to exclude the public from the land, and thus, as a consequence, to exclude them from what is upon it.
The Roman lawyers would probably have decided all these cases differently, although they cannot be supposed to have worked out the refined theories which have been built upon their remains.
I may here return to the case of goods in a chest delivered under lock and key, or in a bale, and the like.It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass.
The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor.This is, perhaps, an unnecessary, as well as inadequate fiction. The rule comes from the Year Books, and the theory of the Year Books was, that, although the chest was delivered to the bailee, the goods inside of it were not, and this theory was applied to civil as well as criminal cases.The bailor has the power and intent to exclude the bailee from the goods, and therefore may be said to be in possession of them as against the bailee. On the other hand, a case in Rhode Island is against the view here taken.A man bought a safe, and then, wishing to sell it again, sent it to the defendant, and gave him leave to keep his books in it until sold.The defendant found some bank-notes stuck in a crevice of the safe, which coming to the plaintiff's ears he demanded the safe and the money.The defendant sent back the safe, but refused to give up the money, and the court sustained him in his refusal.I venture to think this decision wrong.Nor would my opinion be changed by assuming, what the report does not make perfectly clear, that the defendant received the safe as bailee, and not as servant or agent, and that his permission to use the safe was general.The argument of the court goes on the plaintiff's not being a finder.The question is whether he need be.It is hard to believe that, if the defendant had stolen the bills from the safe while it was in the owner's hands, the property could not have been laid in the safe- owner, or that the latter could not have maintained trover for them if converted under those circumstances.Sir James Stephen seems to have drawn a similar conclusion from Cartwright v.Green and Merry v.Green; but I believe that no warrant for it can be found in the cases, and still less for the reason suggested.
It will be understood, however, that Durfee v.Jones is perfectly consistent with the view here maintained of the general nature of the necessary intent, and that it only touches the subordinate question, whether the intent to exclude must be directed to the specific thing, or may be even unconsciously included in a larger intent, as I am inclined to believe.
