Christian Turner Assistant Professor of Law

Bridges v. Hawkesworth, 21 L.J. (Q.B.) 75 (1851)(footnotes omitted and paragraph breaks added)

This was an appeal brought by the plaintiff from the Westminster County Court.

The plaintiff was a traveller for a large firm with which the defendant, who was a shopkeeper, had dealings. On one occasion (October 1847) the plaintiff who had called at the defendant’s on business, on leaving the defendant’s shop noticed and picked up a small parcel which was lying an the shop floor. He immediately shewed it to the shopman, and on opening it found it contained bank notes to the value of 55 pounds. The plaintiff told the defendant who came in that he had found a parcel of notes, and requested the defendant to keep them to deliver to the owner. The defendant advertised the finding of them in the newspapers, stating that they should be restored to the owner on his properly describing them and paying the expenses. Three years having elapsed and no owner appearing to claim them, the plaintiff applied to the defendant for them, offering to pay the expense of the advertisements, and to indemnify the defendant against any claim in respect of them. The defendant refused to deliver them up, and the plaintiff consequently brought a plaint in the County Court of Westminster to recover the notes. The Judge decided that the defendant was entitled to keep them as against the plaintiff, and gave judgment for the defendant. It was found in the case that the plaintiff when he handed the notes over to the defendant to deliver to the true owner, did not intend to give up any title to them that he might possess.

Judgment was now delivered by Patteson, J.

The notes which are the subject of this action were evidently 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 at all put upon that ground. The plaintiff found them on the floor, they being manifestly lost by some one. 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 him 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 handed to the defendant merely for the purpose of delivering them to the owner should he appear. Nothing that was done afterwards has altered this state of things; the advertisements indeed in the newspapers 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 to be found in our law 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 work 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 then found by some one passing by, could it be contended that the defendant was entitled to them, from the mere fact of their having been originally dropped in his shop? If the discovery had not 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 sufficiency of which is not disputed.

We find therefore, no circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all parties except the real owner and we think that rule must prevail, and that the learned Judge was mistaken in holding that the place in which they were found makes any legal difference. Our judgment therefore is, that the plaintiff is entitled to these notes as against the defendant, and that the judgment of the Court below must be reversed, and judgment given for the plaintiff for 50 pounds. The plaintiff to have the costs of the appeal.

Judgment reversed.

McAvoy v. Medina, 11 Allen 548 (1866)

A stranger in a shop who first sees a pocket-book which has been accidentally left by another upon a table there is not authorized to take and hold possession of it, as against the shop-keeper.

TORT to recover a sum of money found by the plaintiff in the shop of the defendant.

At the trial in the superior court, before Morton, J., it appeared that the defendant was a barber, and the plaintiff, being a customer in the defendant’s shop, saw and took up a pocket-book which was lying upon a table there, and said, “See what I have found.” The defendant came to the table and asked where he found it. The plaintiff laid it back in the same place and said, “I found it right there.” The defendant then took it and counted the money, and the plaintiff told him to keep it, and if the owner should come to give it to him; and otherwise to advertise it; which the defendant promised to do. Subsequently the plaintiff made three demands for the money, and the defendant never claimed to hold the same till the last demand. It was agreed that the pocket-book was placed upon the table by a transient customer of the defendant and accidentally left there, and was first seen and taken up by the plaintiff, and that the owner had not been found.

The judge ruled that the plaintiff could not maintain his action, and a verdict was accordingly returned for the defendant; and the plaintiff alleged exceptions.

Dewey, J.

It seems to be the settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule. 2 Parsons on Con. 97. Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424.

But this property is not, under the circumstances, to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the defendant’s shop by a customer of his who accidentally left the same there and has never called for it. The plaintiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of the same until the owner should call for it. In the case of Bridges v. Hawkesworth the property, although found in a shop, was found on the floor of the same, and had not been placed there voluntarily by the owner, and the court held that the finder was entitled to the possession of the same, except as to the owner. But the present case more resembles that of Lawrence v. The State, 1 Humph. (Tenn.) 228, and is indeed very similar in its facts. The court there take a distinction between the case of property thus placed by the owner and neglected to be removed, and property lost. It was there held that “to place a pocket-book upon a table and to forget to take it away is not to lose it, in the sense in which the authorities referred to speak of lost property.”

We accept this as the better rule, and especially as one better adapted to secure the rights of the true owner.

In view of the facts of this case, the plaintiff acquired no original right to the property, and the defendant’s subsequent acts in receiving and holding the property in the manner he did does not create any.

Exceptions overruled.

Hamaker v. Blanchard, 90 Pa. 377 (1879)

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Mifflin county: Of May Term 1879, No. 57.

Assumpsit by James Blanchard and Sophia, his wife, for the use of the wife, against W. W. Hamaker.

This was an appeal from the judgment of a justice of the peace. The material facts were these: Sophia Blanchard was a domestic servant in a hotel in Lewistown, of which the defendant was the proprietor. While thus employed, she found in the public parlor of the hotel, three twenty-dollar bills. On finding the money, she went with it to Mr. Hamaker, and informed him of the fact, and upon his remarking that he thought it belonged to a whip agent, a transient guest of the hotel, she gave it to him, for the purpose of returning it to said agent. It was afterwards ascertained that the money did not belong to the agent, and no claim was made for it by anyone. Sophia afterwards demanded the money of defendant, who refused to deliver it to her. Defendant admitted that he still had the custody of the money.

In the general charge the court (Bucher, P. J.,) inter alia, said:

If you find that this was lost money, Hamaker did not lose it, and that it never belonged to him, but that it belonged to some one else who has not appeared to claim it, then you ought to find for the plaintiff, on the principle that the finder of a lost chattel is entitled to the possession and use of it as against all the world except the true owner. * * * The counsel for the defendant asks us to say that as the defendant was the proprietor of a hotel and the money was found therein, the presumption of law is that it belonged to a guest, who had lost it, and that the defendant has a right to retain it as against this woman, the finder, to await the demand of the true owner. I decline to give you such instructions; but charge you that under the circumstances there is no presumption of law that this money was lost by a guest at the hotel, and that the defendant is entitled to keep it as against this woman for the true owner.

The verdict was for the plaintiffs for $60, with interest, and after judgment thereon, defendant took this writ and assigned for error the foregoing portions of the charge.

H. J. Culbertson, for plaintiff in error. It is only in the absence of all protection or responsibility in reference to a lost chattel, that the place in which a lost article is found does not constitute any exception to the general rule of law, that the finder is entitled to it as against all persons except the true owner: Bridges v. Hawkesworth, 7 Eng. Law and Eq. Rep. 430; McAvoy v. Medina, 11 Allen (Mass.) 549. An innkeeper is liable for the goods of his guest, including money, and if they are brought within the inn a responsibility is created: Houser v. Tully, 12 P. F. Smith 92; Packard v. Northcraft’s Administrators, 2 Metc. (Ky.) 439; Berkshire Woollen Co. v. Proctor, 7 Cush. 417; Edwards on Bailments, 2d ed., sect. 459; Story on Bailments, sect. 471; Jones on Bailments 95; Addison on Torts, Wood’s ed., vol. 1, pp. 755 and 752. He is bound to keep honest servants, and is responsible for the honesty of his servants and his guests: Houser v. Tully, supra; Gile v. Libby & Whitney, 36 Barb. (N. Y.) 70; Story on Bailments, supra. To allow servants to retain money found in an inn would encourage them to be dishonest. The better rule is to require them to deliver property so found to their employer, to be held for the true owner: Mathews v. Harsell, 1 E. D. Smith’s Rep. (N. Y.) 394. An innkeeper is held to a rigid responsibility in the care of his guests’ property, and it is a safe presumption of law that money found in an inn belonged to a guest, and that the innkeeper has a right to the custody of it as against his servant, the finder, to await the true owner, and if the latter does not make claim thereto, then he should have the money who bears the responsibility.

J. A. McKee, for defendants in error. There is no evidence that the money belonged to a guest of the hotel.

An innkeeper is under no obligation to one who casually steps into his house to transact business, using his parlor as a matter of convenience, and the innkeeper under such circumstances would not be liable for the loss of any property or money left there without his knowledge or consent: Story on Bailments, sec. 477; 2 Kent’s Com. 595.

There is no presumption of law that the money was lost by a guest. If this money was found in such a situation as to clearly indicate that it was lost, and not voluntarily placed where it was found, by the owner, by mistake or forgetfulness, then the finder is entitled to it: McAvoy v. Medina, supra.

Mr. Justice Trunkey delivered the opinion of the court, June 9th 1879.

It seems to be settled law that the finder of lost property has a valid claim to the same against all the world, except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article was deposited in its place, the finder has no right of possession against the owner of the building: McAvoy v. Medina, 11 Allen (Mass.) 548. An article casually dropped is within the rule. Where one went into a shop, and as he was leaving picked up a parcel of bank notes, which was lying on the floor, and immediately showed them to the shopman, it was held that the facts did not warrant the supposition that the notes had been deposited there intentionally, they being manifestly lost by some one, and there was no circumstance in the case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner: Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424.

The decision in Mathews v. Harsell, 1 E. D. Smith (N. Y.) 393, is not in conflict with the principle, nor is it an exception. Mrs. Mathews, a domestic in the house of Mrs. Barmore, found some Texas notes, which she handed to her mistress, to keep for her. Mrs. Barmore afterwards intrusted the notes to Harsell, for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them, and appropriated the proceeds; whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says:

I am by no means prepared to hold that a house-servant who finds lost jewels, money or chattels, in the house of his or her employer, acquires any title even to retain possession against the will of the employer. It will tend much more to promote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the benefit of the true owner.

To that remark, foreign to the case as understood by himself, he added the antidote:

And yet the Court of Queen’s Bench in England have recently decided that the place in which a lost article is found, does not form the ground of any exception to the general rule of law, that the finder is entitled to it against all persons, except the owner.

His views of what will promote honesty and justice are entitled to respect, yet many may think Mrs. Barmore’s method of treating servants far superior.

The assignments of error are to so much of the charge as instructed the jury that, if they found the money in question was lost, the defendant had no right to retain it because found in his hotel, the circumstances raising no presumption that it was lost by a guest, and their verdict ought to be for the plaintiff. That the money was not voluntarily placed where it was found, but accidentally lost, is settled by the verdict. It is admitted that it was found in the parlor, a public place open to all. There is nothing to indicate whether it was lost by a guest, or a boarder, or one who had called with or without business. The pretence that it was the property of a guest, to whom the defendant would be liable, is not founded on an act or circumstance in evidence.

Many authorities were cited, in argument, touching the rights, duties and responsibilities of an innkeeper in relation to his guests; these are so well settled as to be uncontroverted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the floor of a room common to all classes of persons, no presumption of ownership arises; the case is like the finding upon the floor of a shop. The research of counsel failed to discover authority that an innkeeper shall have an article which another finds in a public room of his house, where there is no circumstance pointing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman, who immediately informs her employer, and gives him the article on his false pretence that he knows the owner and will restore it, she is entitled to have it back and hold it till the owner comes. A rule of law ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in equality of rights with others. The learned judge was right in his instructions to the jury.

Judgment affirmed.

Mercur, J., dissents.

Lawrence Solum, Legal Theory Lexicon: Fit and Justification

Introduction

In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot’s of Dworkin’s ideas are very controversial, but one of his claims has become part of the way that most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin’s distinction between “fit” and justification” and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape–the constitution, statutes, regulations, and common law.

As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.

The Basic Idea

Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin’s basic idea is that the process of deciding a hard case has two dimensions–fit and justification. First, the judge might ask herself, “Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent.” When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, “Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole.

Fit

What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.

Justification

What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of justification? Let’s continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let’s suppose our judge decides that the tort of negligence is best understood as a system of compensation and “risk spreading.” She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I’m sure all of you can do better.]

In other words, the judge asks the question, “What normative theory best justifies the existing law and negligence?” And then proceeds to the question, “Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?”

Two Kinds of Justification: Principle and Policy

In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of “principle” and “policy.” As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.

Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin’s sense.

If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.

Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial–as you could guess if, like most law students, you’ve heard endless discussion of policy in the classroom. But Dworkin could be right about “fit and justification,” even if he is wrong that the dimension of justification is limited to principle and excludes policy.

Conclusion

It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a “hard case,” an aspect of the fact pattern that is intended to trigger your discussion of the question, “What should the rule be?,” with respect to some controversial legal issue. If you try to answer the question, “What should the rule be?,” by telling your instructor, “Here is the majority rule,” or “Here are two alternative rules; I don’t know which one is the law, you will have missed the point of the question!

And that’s where Dworkin comes in. You can use “fit and justification” as the basis for organizing your answer to a “What should the law be?” question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, “Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts.”

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