按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
or less number of persons in certain specified ways； while the power of removing or enforcing this limitation which is generally confided to certain other private persons； or； in other words； a right corresponding to the burden； is not a necessary or universal correlative。 Again； a large part of the advantages enjoyed by one who has a right are not created by the law。 The law does not enable me to use or abuse this book which lies before me。 That is a physical power which I have without the aid of the law。 What the law does is simply to prevent other men to a greater or less extent from interfering with my use or abuse。 And this analysis and example apply to the case of possession； as well as to ownership。
Such being the direct working of the law in the case of possession； one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search。 If what the law does is to exclude others from interfering with the object； it would seem that the intent which the law should require is an intent to exclude others。 I believe that such an intent is all that the common law deems needful； and that on principle no more should be required。
It may be asked whether this is not simply the animus domini looked at from the other side。 If it were； it would nevertheless be better to look at the front of the shield than at the reverse。 But it is not the same if we give to the animus domini the meaning which the Germans give it； and which denies possession to bailees in general。 The intent to appropriate or deal with a thing as owner can ＇221＇ hardly exist without an intent to exclude others； and something more； but the latter may very well be where there is no intent to hold as owner。 A tenant for years intends to exclude all persons； including the owner； until the end of his term； yet he has not the animus domini in the sense explained。 Still less has a bailee with a lien； who does not even mean to use； but only to detain the thing for payment。 But； further； the common law protects a bailee against strangers； when it would not protect him against the owner； as in the case of a deposit or other bailment terminable at pleasure； and we may therefore say that the intent even to exclude need not be so extensive as would be implied in the animus domini。 If a bailee intends to exclude strangers to the title； it is enough for possession under our law； although he is perfectly ready to give the thing up to its owner at any moment； while it is of the essence of the German view that the intent must not be relative； but an absolute； self…regarding intent to take the benefit of the thing。 Again； if the motives or wishes； and even the intentions； most present to the mind of a possessor； were all self… regarding； it would not follow that the intent toward others was not the important thing in the analysis of the law。 But； as we have seen； a depositary is a true possessor under the common…law theory； although his intent is not self…regarding； and he holds solely for the benefit of the owner。
There is a class of cases besides those of bailees and tenants； which will probably； although not necessarily； be decided one way or the other； as we adopt the test of an intent to exclude； or of the animus domini。 Bridges v。 Hawkesworth /1/ will serve as a starting…point。 There； ＇222＇ a pocket…book was dropped on the floor of a shop by a customer； and picked up by another customer before the shopkeeper knew of it。 Common…law judges and civilians would agree that the finder got possession first； and so could keep it as against the shopkeeper。 For the shopkeeper； not knowing of the thing； could not have the intent to appropriate it； and； having invited the public to his shop； he could not have the intent to exclude them from it。 But suppose the pocket…book had been dropped in a private room； how should the case be decided？ There can be no animus domini unless the thing is known of； but an intent to exclude others from it may be contained in the larger intent to exclude others from the place where it is； without any knowledge of the object's existence。
In McAvoy v。 Medina； /1/ a pocket…book had been left upon a barber's table； and it was held that the barber had a better right than the finder。 The opinion is rather obscure。 It takes a distinction between things voluntarily placed on a table and things dropped on the floor； and may possibly go on the ground that； when the owner leaves a thing in that way； there is an implied request to the shopkeeper to guard it； which will give him a better right than one who actually finds it before him。 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 ＇223＇ 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。 /2/ 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。 /3/
＇224＇ 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。 /1/
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 ches