enemies, in time of war, vest primarily in the sovereign; and they belong to the individual captors only to the extent and under such regulations as positive law may prescribe. (2.) Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him; and in both these cases they belong to the fortunate finder. (c) But it is requisite that the former owner should have completely relinquished the chattel, before a perfect title will accrue to the finder; though he has, in the mean time, a special property sufficient to maintain trover against every person but the true owner. (d) 2 He is not even entitled to reward from the owner for finding a lost article, if none had been promised. He has no lien on the article found for his trouble and expense, and he is only entitled to indemnity against his necessary and reasonable expenses incurred on account of the chattel. (e) The Roman law (c) 1 Blacks. Com. 296. 2 Ibid. 402. In Massachusetts, the finder of lost money or goods must give notice as prescribed, and if no owner appears within one year, one half goes to the finder, and the other half to the town. Act, 1788, ch. 55. Revised Statutes, 1836, p. 395. In Illinois, (Revised Laws of Illinois, 1833,) the finder of lost goods, money, or choses in action, takes them if not above fifteen dollars in value, and no claimant within one year after due public notice. If above that value, they are to be sold in six months for public use. See Stat. of Illinois, 1858, p. 753.1 (d) Amory v. Delamirie, Str. 505. 320. Brandon v. Huntsville Bank, 1 Stewart (Ala.) (e) Armory v. Flynn, 10 Johns. 102. Binstead v. Buck, 2 Wm. Blacks. 1117. Nicholson v. Chapman, 2 H. Blacks. 254. Etter v. Edwards, 4 Watts (Penn.) 63. It is considered in the two last cases to be still an unsettled point, whether the finder of lost property can recover a compensation for the labor and expense voluntarily bestowed upon lost property found. In Reeder v. Anderson, 4 Dana (Ken.) 193, it was held that the finder was entitled, under an implied assumpsit, for his indemnity at least, against his expenditure of time and money in the successful recovery of lost property. Mr. Justice Story, (Bailment, p. 391, 2d edit.,) gives a strong opinion in favor of compensation (or what he, in admiralty law language, terms salvage) to the "mere finder of lost property on land," beyond a full indemnity for their reasonable and necessary expenses. I beg leave to say, that it appears to me that such findings have no analogy in principle to the cases of hazardous and meritorious sea or coast salvage under the admi 1 In Wisconsin, there is a provision similar to the law of Massachusetts, relating to property found. R. S. of Wis. 1849, ch. 36. See a learned and interesting discussion of this subject in Briddes v. Hawkesworth, 7 Eng. L. & Eq. 424. The decision was in accordance with the doctrine of the text. The place where the lost article is found does not constitute an exception to the rule that the finder is entitled against all persons except the owner. See Matthews v. Harssell, 1 E. D. Smith, (N. Y.) 393. equally denied to the finder of lost property a reward for finding it; and, according to the stern doctrine of Ulpian, (ƒ) it * 357 was even considered to be theft to convert to one's own use, animo lucrandi, property found, when the finder had no reason to believe it had been abandoned. (a) This right of acquisition by finding is confined to goods found upon the surface of the earth, and it does not now extend to goods found derelict at sea, though abandoned without hope of recovery. (6) Nor does this right of acquisition extend to goods found ralty law, and that the rule of the common law, as illustrated by Chief Justice Eyre, in Nicholson v. Chapman, as to these mere land findings, is the better policy. Ibid. § 121, n. (ƒ) Dig. 47, 2, 44, sec. 4-10. The English law requires that the animus furandi must have existed when the property was first received or taken, to constitute larceny. Rex v. Mucklow, 1 Ry. & Moody C. C. 160. Butler's case, 3 Inst. 107. Lord Coke, Ibid. 2 East P. C. 663. The People v. Anderson, 14 Johns. 294. It is not larceny, if there be no evidence to show that the finder at the time knew who the owner was, though he afterwards concealed the fact of finding the property. The People v. Cogdell, 1 Hill (N. Y.) 94. But, on the other hand, the doctrine of Ulpian is not without approbation in some of the modern decisions; and it has been held, that if the person who finds property lost knows the owner, and, notwithstanding, conceals and converts the property to his own use, it is larceny. The State v. Weston, 9 Conn. 527. Lawrence J., and Gibbs J., cited in 2 Russell on Crimes, 102, (3d Lond. edit 13, 14;) and these cases are directly sanctioned in the case of People v. M'Garren, 17 Wendell, 460. (a) But the finder of a chose in action, as a check or lottery ticket, is not entitled to payment of the money due upon it, if the party paying has notice that the holder came to the possession of it by finding. Payment, under such circumstances, to the holder, would be no bar to an action by the owner. McLaughlin v. Waite, 5 Wendell, 404. Picking up a purse of money in the highway and appropriating it, is not larceny, if it had not any mark by which the owner might be known. Regina v. Mole, 1 Carr. & Kirw. 417. But it seems, from the modern cases, that if a person finds lost property, knows the owner, or there are circumstances to ascertain the owner, a conversion of it animo furandi is larceny. Merry v. Green, 7 Mees. & W. 623. Regina v. Peters, 1 Carr. & Kirw. 245. If a chattel be dropped by a field or highway, or left in a stagecoach, the owner does not lose the property; and if another finds it, he is only justified in appropriating it to his own use where the owner cannot be found, or where it may be fairly said he had abandoned it. (b) The ancient rule, giving to the finder a moiety of the proceeds of goods found derelict at sea, (if any such rule ever existed,) has become obsolete; and derelicts are held to be perquisites or droits of the admiralty, subject to be reclaimed by the owner, but without any other claim on the part of the finder than to his reasonable salvage remuneration. This is now the general rule of civilized countries. The Aquila, 1 Rob. Adm. 37. The King v. Property derelict, 1 Hagg. Adm. 383. Peabody v. Proceeds of twenty-eight Bags of Cotton, American Jurist, No. 3, (vol. ii.) 119, decided in the District Court of Massachusetts, 1829. A vessel at sea is not deemed derelict, unless she was absolutely abandoned as hopeless, and the animus revertendi did not exist. The Emulous, 1 Sumner, 207. Mesner and others v. Suffolk Bank, District Court of U. S. 358 hidden in the earth, and which go under the denomination of treasure-trove. Such goods, in England, belong to the king; and in New York, they formerly belonged to the public treasury; for the statute of 4 Edw. I. was reenacted by the Act concerning coroners, (c) which directed the coroner to inquire, by jury, of treasure said to be found, and who were the finders, and to bind the finders in recognizance to appear in court. I presume that this direction had never been put in practice, and that the finder of property has never been legally questioned as to his right, except on behalf of the real owner; and the whole provision has been omitted in the New York Revised Statutes of 1829. The common law originally, according to * Lord Coke, (a) left treasure-trove to the person who deposited it; or, upon his omission to claim it, to the finder. The idea of deriving any revenue from such a source has become wholly delusive and idle. Such treasures, according to Grotius, (b) naturally belong to the finder; but the laws and jurisprudence of the middle ages ordained otherwise. The Hebrews gave it to the owner of the ground wherein it was found; and it is now the custom in Germany, France, Spain, Denmark, and England, to give lost treasure to the prince or his grantee; and such a rule, says Grotius, may now pass for the law of nations. (c) The rule of the Emperor Hadrian, as adopted by Justinian, (d) was more equitable, for it gave the property of treasure-trove to the finder, if it was found in his own lands; but if it was fortuitously found in the ground of another, the half of the treasure went to the proprietor of the soil, and the other half to the finder; and the French and Louisianian codes have adopted the same rule. (e) Mass. November, 1838. In Wyman v. Hurlburt, 12 Ohio, 81, a vessel was found by special verdict to have been abandoned by the owners, and derelict at the bottom of the lake in Lake Erie, after being for ten months sunk in sixty feet water; and it was held, on those facts, that the original owner was not entitled to his action of trover against the finder who recovered the vessel. The right of property in goods abandoned from necessity at sea as derelict is not lost to the owners, and the finder is bound to consult the interest of the owners as well as his own as a salvor. Case of The Amethyst, District Court of Maine, Daveis, 20. (c) L. N. Y. sess. 24, ch. 43. (a) 3 Inst. 132. (b) De Jure B. & P. b. 2, ch. 8, sec. 7. (c) According to the Grand Coustumier of the Duchy of Normandy, ch. 18, treasuretrove, belonged to the duke. It belonged, says the text, a la Dignité au Duc. (d) Inst. 2, 1, 39. (e) Code Civil, No. 716. Civil Code of Louisiana, art. 3386. But the French code Goods waived, or scattered by a thief in his flight, belong, likewise, at common law, to the king; for there was supposed to be a default in the party robbed, in not making fresh pursuit of the thief, and reclaiming the stolen goods before the public officer seized them. (f) But this prerogative of the crown was placed by the common law under so many checks, (g) and it is so unjust in itself, that it may perhaps be considered as never adopted *359 here as against the *real owner, and never put in practice as against the finder; though, as against him, I apprehend the title of the state would be deemed paramount. We must also exclude from the title by occupancy estrays, being cattle whose owner is unknown; for they are disposed of, in New York, (a) and, I presume, generally in this country, when unreclaimed, by the officers of the town where the estray is taken up, for the use of the poor, or other public purposes. (b) All wrecks are likewise excluded from this right of acquisition by occupancy; for if they be unreclaimed for a year, they are liable The general rule is, that all limits this right of the finder to that particular case. property vacant and without a master belongs to the state. 717; and Toullier, in the Droit Civil Français, tom. iv. pp. 37-42, complains much of the contradictions, confusion, and uncertainty of the French regulations on this subject of goods without an owner. (f) Foxley's case, 5 Co. 109. Cro. Eliz. 694. (g) Finch's Law, 212. (a) N. Y. Revised Statutes, vol. i. pp. 351, 352. (b) In Indiana, by statute of 1830, the person who finds and takes property adrift, or animals estrayed, is entitled to retain the property, on paying twenty per cent. of the appraised value for the support of seminaries. But he is subject, nevertheless, to have the property, or its value, reclaimed at any time by the owner, on payment of reasonable costs and charges. But, by statute of 1838, estray animals, not exceeding $ 10 in value, after a year's notice and unreclaimed, vest in the taker. The same as to water-craft, after sixty days' notice, and none but freeholders and householders are allowed to take up. Revised Statutes of Indiana, 1838, p. 266. In Ohio, the estray goes to the finder, if no owner appears, and the estray be appraised at five dollars or under; but if it exceeds that sum, the net proceeds go to the treasurer of the town. Statute of Ohio, 1831. The statute applies equally to boats, rafts, water-craft, &c., found adrift. In Michigan, under the Territorial Act of April 16th, 1833, boats found adrift were to be sold, unless claimed within three months; and the claimant, on proving property, is to pay what three disinterested freeholders shall deem reasonable. In Illinois, the boat or vessel goes to the 1 Smith v. Ewers, 21 Ala. 38. Simpson v. Talbot, 25 Ala. 469. State v. Apel, 14 Texas, 428. Hyde v. Pryor, 13 Ill. 64. 2 Under such a statute, the finder has a lien for costs and charges. Ford v. Ford, 8 Wis. to be sold, and the net proceeds, after deductions for salvage, paid into the public treasury. (c) By the colony laws of Massachusetts and Connecticut, wrecks were preserved for the owner; and, if found at sea, they are supposed to belong now to the United States, as succeeding, in this respect, to the prerogative of the English crown. (d) But if discovered on the coast, or in the waters within the jurisdiction of a state, they are, by statutes in the several states, to be kept for the owner, if redeemed within a year; and if not, they are to be sold, and the net proceeds, deducting costs and salvage, appropriated to public uses. (e) The statute law of Massachusetts, since the Revolution, pursued the policy of the colony law, and disposed of estrays, lost money, and goods, if unreclaimed for a year, by giving one half of the proceeds to the finder, and the other half to the poor of the town. (ƒ) Shipwrecked goods, if unreclaimed for a year, are to be sold, and the proceeds paid into the public treasury. (g) The statutes have been extended in practice to all goods and moneys lost, hidden, *360 waived, or designedly abandoned, when no owner appears. (a) This is, upon the whole, as wise and equitable a regulation as any that has ever been made upon the subject at any taker if not claimed in six months, if the value does not exceed $20; and if it does, and the owner does not appear in ninety days after due public notice, the boat is sold at auction, and the net proceeds are appropriated to public use. Revised Laws of Illinois, 1833, and of 1858, p. 753. (c) N. Y. Revised Statutes, vol. i. pp. 690-694. A wreck is understood to be goods cast or left upon land by the sea. Constable's case, 5 Co, 106. In England, wrecks of the sea are generally manorial rights, founded on grant or prescription; while goods found afloat on the high seas belong to the crown, as "droits of admiralty." (d) Dane's Abr. of American Law, ch. 76, art. 7, sec. 12, 21, 23, 38. Connecticut Code of 1702. Colony Laws of Massachusetts, 1641, 1647, published in the Code of 1675. It is the general law of continental Europe, that wrecks belong to the nation, when the owner does not appear. Heinec. Elem. Jur. Ord. Inst. sec. 352, 353. Toullier, Droit Civil Français, tom. iv. Nos. 42-46. In England, by the ancient common law, all property stranded, or of the description of wreck, belonged to the king absolutely, after a year and a day; and during that time it was vested in him for protection, until the owner could be found, and it was placed in the custody of the admiralty. Lord Stowell, Hagg, Adm. 18, 20. (e) N. Y. Revised Statutes, vol. i. p. 690. 482. Massachusetts Statutes, 1814, ch. 170. N. J. Digest, 615. Revised Statutes of Connecticut, 1821, p. (ƒ) Acts of 1788, 1827. Revised Statutes of 1836, part 1, tit. 14, ch. 56. (g) Act of 1714. Revised Statutes of Massachusetts of 1836, Ibid. ch. 57. (a) Dane's Abr. ubi supra, sec. 15, 16. |