sury; for the statute of 4. Edw. I. was re-enacted by the act concerning coroners, 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, b left treasure-trove to the person who *358 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,c 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. The rule of the Emperor Hadrian, as adopted by Justinian,e 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.f

L. N. Y. sess. 24. ch. 43.
b 3 Inst. 132.
De Jure B. & P.b. 2. ch. 8. sec. 7.

& According to the Grand Coustumier of the duchy of Normandy, ch. 18, treasure-trove belonged to the duke. It belonged says the text, a la Dignite au Duc.

Inst. 2. 1. 39.

1 Code Civil, No. 716. Civil Code of Louisiana, art. 3386. But the Fronch code limits this right of the finder to that particular case. The

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.a But this prerogative of the crown was placed at the common law under so many checks,b 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, 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.d All

general rule is, that all property vacant and without a master, belongs to the state. Code, No. 539. 713, 714. 717; and Toullier, in the Droit Civil Francais, tom. iv. 37–42, complains much of the contradiction, confusion and uncertainty of the French regulations, on this subject of goods without

an owner.

[ocr errors]

Foxley's case, 5 Co. 109. Cro. Eliz. 694. b Finch's Law, 212. e N. Y. Revised Statutes, vol. i. p. 351, 352.

• In Indiana, by statute of 1830, the person who finds and takes property adrist, 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 watercraft after 60 day’s 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 bo sold unless claimed within three months, and the claimant, on proving

wrecks are likewise excluded from this right of acquisition by occupancy; for if they be unreclaimed for a year, they are liable to be sold, and the net proceeds after de. ductions for salvage, paid into the public treasury.a

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.b But if discovered on the coasts, 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. 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

property, is to pay what three disinterested freeholds shall deem reasonable. In Illinois the boat or vessel goes to the 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 90 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.

* N. Y. Revised Statutes, vol. i. p. 690-694. A wreck is understood to be goods cast or left upon land by the sea. Constable's case, 3 Co. 105. In England wrecks of the sea are general manorial rights founded on grant or prescription, while goods found afloat on the high seas belong to the crown as “ droits of admiralty.” No Dane's Abr. of American Law, ch. 76. art. 7. sec. 12. 21. 23.38. Connec. ticut 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 Francais, tom. iv. No. 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 pro. tection, until the owner could be found and it was placed in the custody of the admiralty. Lord Stowell, 1 Hagg. Adm. Rep. 18. 20.

N. Y. Revised Statutes, vol. i. p. 690. Revised Statutes of Connecticut, 1821, p. 482. Massachusetts Statutes, 1814, ch. 170. Revised Statutes of Mass. 1835. Elmer's N. J. Digest, 615.

proceeds to the finder, and the other half to the poor

of the town. Shipwrecked goods, if unreclaimed for a year, are to be sold, and the proceeds paid into the public

treasury. The statutes have been extended in *360 practice to *all goods and moneys lost, hidden,

waived, or designedly abandoned, when no owner appears. This is, upon the whole, as wise and equitable a regulation as any that has ever been made upon the subject at any period of time. By an act in NewHampshire, in 1791, chattels found, waifs, treasure-trove, and estrays, are given wholly to the town, after deducting the expenses of the finder ;d and the learned and laborious author of the General Abridgment of the American Law, not unreasonably concludes,e that in those states where there are no statute regulations on the subject, estrays, treasure-trove and waifs belong to the finder, in the absence of the owner.f

II. Of original acquisition by accession.

Property in goods and chattels may be acquired by accession; and under that head is also included the acquisition of property proceeding from the admixture or confusion of goods.

The right of accession is defined in the French and Louisianian codes to be the right to all which one's own property produces, whether that property be moveable or immoveable, and the right to that which is united to it by accession, either naturally or artificially. The fruits of the earth, produced naturally, or by human industry,

• Acts of 1788, 1827. Revised Statutes of 1835, part 1, tit. 14. ch. 56. 6 Act of 1714. Revised Statutes of Massachusetts of 1835. · Dane's Abr. ubi supra, sec. 15, 16. d Ibid. sec. 22. e Ibid. sec. 21.

i In East New Jersey, in the infancy of the colony, waifs, estrays, treasure-trove, and wrecks, were forfeited to the lords proprietors of the proviuce. Leaming f. Spicer's Collections, 590.

6 Code Civil, No. 546,547. Civil Code of Louisiana, art. 490, 491.

the increase of animals, and the new species of articles made by one person out of the materials of another, are all embraced by this definition. I purpose only to allude to those general rules which were formed, digested and refined, by the sagacity and discussions of the Ro. man lawyers, and transferred from the civil law into the municipal institutions of the principal *na- *361 tions of Europe. By means of Bractonb they were introduced in to the common law of England, and, doubt- . less, they now equally pervade the jurisprudence of these United States. The subject has received the most ample consideration of the French civilians; and all the distinctions of which it was susceptible are easily perceived, and clearly understood, by means of the pertinency and fulness of their illustrations.c

If a person hires, for a limited period, a flock of sheep, or cattle, of the owner, the increase of the flock, during the term, belongs to the usufructuary, who is regarded as the temporary proprietor. This general principle of law was admitted in Wood v. Ash,d and recognized in Putnam v. Wyley. The Roman law made a distinction in respect of the offspring of slaves,f and so does the civil code of Louisiana. Though the children were born during the temporary use or hiring of the female slave, they belonged not to the hirer, but to the permanent owner of the slave. Another rule is, that if the materials of one person are united to the materials belonging to another, by the labour of the latter, who furnishes the principal materials, the property in the joint product is in the latter by right of accession. This rule

Codes, ibid.

De acqui, rerum Dom. b. 2. ch. 2. 3. Pothier, Traité du Droit au Propriété, No. 150 193. Toullier, Droit Civil Francais, tom. iii. No. 106—150.

d Owen's Rep. 139.
• 8 Johns. Rep. 432.

Inst.2. 1. 37. & Art. 539.

« ForrigeFortsett »