18 N.H. 119 | Superior Court of New Hampshire | 1846
The statute which is the foundation of this action proceeds upon a principle recognized from ancient times by the common law, that gave “wreck, jetsam, flotsam and ligan, as well as animalia vagantia, treasure-trove, &c., to the king, because, by the rule of the common law, when no man can claim property in any goods, the king shall have them by his prerogative.” It was said that “ the king shall have wreck as he shall have great fish, &e., because they are nullius in bonis, or as he shall have estrays, because none claims the property.” Sir Henry Constable’s Case, 5 Co. 109. Coke also says that wreck passeth “ by franchise granted, by name of a thing found in no man’s goods, as wreck of sea, cattle estraying, conies, hares, partridges, and other savage beasts,” &e.
These expressions indicate that the estray, or other thing found, to be within the purview and policy of the law providing for the disposal of such things, must appear to be without an owner, like the wild animals that range in the forests or fields; and that, where the owner is known, the
It would be wholly frivolous, or worse, perhaps, to require a party into whose possession the well-known horse or watch of his neighbor comes by any accident, to require him to go through the formality of advertising it as lost or strayed, when the more obvious course should be open to him of communicating to the owner himself where his goods might be found. The statute has, therefore, very properly limited the duty of advertising to the cases in which the owner of the goods is unknown to the party who has received them into his possession.
Such was not the case here. There is no evidence whatever of such a finding as the statute provides for, since the parcel was known by the defendants to be the property of the plaintiff, by the very plain and significant token of having his name upon it.
If there were evidence of any improper detention of the goods by the defendants, of which the case furnishes none whatever, there are remedies for such supposed wrong. But it- is quite clear that so long as the defendants knew who the owner was, they could not, with propriety, have proceeded under the statute, to treat, the goods as lost.
This conclusion renders it unnecessary to consider the other questions raised, and there must be
Judgment on the verdict.