ject, the title to treasure-trove belongs to the In the absence of legislation upon the subfinder as against all the world except the true owner, and ordinarily the place where it is found is immaterial.

[Ed. Note. For other cases, see Finding Lost Goods, Dec. Dig. § 6.*]

as the defendant was concerned, as no evi-, 5. FINDING LOST GOODS (§ 6*)-TREASUREdence of their value could have been offered TROVE-TITLE OF FINDER. which would have been fairer to him. There was nothing to show that any unusual prices were received, and surely a sale under distress proceedings will not be presumed to be for more than the goods are really worth. What we have said above applies to the defendant's special exception to that prayer. The court's instruction gave the defendant the benefit of all he was entitled to. The objection urged that there was no legally sufficient evidence of some of the questions submitted in it is not only answered by what we have said above, but there was no special ex-7. ception to the instruction on that ground.

It follows from what we have said that the judgment must be affirmed.

6.

FINDING LOST GOODS (§ 6*) — TREASURE

TROVE TITLE OF OWNER OF SOIL.

The owner of the soil in which treasuretrove is found acquires no title thereto by virtue of his ownership of the land.

[Ed. Note. For other cases, see Finding Lost Goods, Dec. Dig. § 6.*]

FINDING Lost Goods (§ 11*) — TREASURETROVE-TITLE AND RIGHTS OF JOINT FIND

ERS.

When several persons are joint finders of treasure-trove consisting of coin, each such findJudgment affirmed, the appellant to pay the er is entitled to the possession of an equal share costs above and below.

(104 Me. 264)

WEEKS v. HACKETT.

MORTON v. SAME.

of such coin and is charged with the duty of holding it for the true owner, if he can be ascertained, and is under obligation to exercise reasonable care to safely keep his share of it and be prepared to restore it to the true owner whenever he may appear, and is therefore authorized to maintain such action as may be necessary to retain or recover possession of such share, and, if one such joint finder having pos

(Supreme Judicial Court of Maine. June 11, session of all the coin refuses to surrender to the

1908.)

1. TROVER AND CONVERSION (§ 16*)-TITLE TO SUPPORT ACTION.

The absolute and unqualified ownership of a chattel is not essential to enable one to main; tain trover for its conversion. Either a general or special property in a plaintiff at the time of

the conversion is sufficient.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 119-122; Dec. Dig. § 16.*]

2. TENANCY IN COMMON (§ 27*)-CONVERSION

OF PERSONAL PROPERTY.

other joint finders their respective shares there-
in common, and each such other joint finder may
of, it is a conversion of their shares as tenants
against the co-tenant who having possession of
maintain an action of trover, for his share,
al the coin refuses to surrender such share.
Goods, Cent. Dig. § 10; Dec. Dig. § 11.*]
[Ed. Note.-For other cases, see Finding Lost

8. FINDING LOST GOODS (§ 11*)-ACTIONS—
EVIDENCE-SUFFICIENCY.

In the case at bar, the plaintiffs each brought an action of trover against the defendant for the alleged conversion of their respective With respect to things so far indivisible in shares of certain silver coins contained in three their nature that the share of one cannot be dis-metallic cans found buried in the ground. The tinguished from that of the other, it is a well-defendant contended, among other things, that established rule that one tenant in common can- he found the coins under circumstances which not maintain trover against his co-tenant for made him the sole owner of them as against the reason that the two are equally entitled to the plaintiffs. Held, that the evidence warrantpossession; but this rule does not apply to such ed the jury in finding that the discovery of the commodities as are readily divisible by count or three cans should be deemed one transaction, measure into portions absolutely alike in qual- and that the participation of the plaintiffs in ity, such as grain or money. the discovery of the coins was sufficient to constitute them joint finders with the defendant.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 70-75; Dec. Dig. § 27.*] 3. FINDING LOST GOODS (§ 5*) – STATUTORY

PROVISIONS-APPLICABILITY.

The rule of the common law respecting the rights and duties of the finder of lost money or goods has been variously modified by the terms and provisions of local statutes of many states, but the provisions of Rev. St. 1903. c. 100, § 10, and those following, have no reference to the law of treasure-trove.

[Ed. Note.-For other cases, see Finding Lost Goods, Dec. Dig. § 5.*]

4. FINDING LOST GOODS (§ 2*)-"TREASURETROVE" DEFINED.

"Treasure-trove" is a name given by the early common law to any gold or silver in coin, plate, or bullion found concealed in the earth, or in a house or other private place, but not lying on the ground; the owner of the discovered treasure being unknown.

[Ed. Note. For other cases, see Finding Lost Goods, Dec. Dig. § 2.*

For other definitions, see Words and Phrases, vol. 7, pp. 7084, 7820.]

[Ed. Note.-For other cases, see Finding Lost Goods, Cent. Dig. § 10; Dec. Dig. § 11. 1 (Official.)

Franklin County.
Exceptions from Supreme Judicial Court,

Separate actions of trover by Orlando Weeks and by Edwin E. Morton against Fessenden E. Hackett. Verdict for each plaintiff, and defendant excepts and moves to set aside the verdicts. Exceptions and motions overruled.

Actions of trover, one by each plaintiff brought to recover one-third in value of a certain quantity of coins of the United States and of certain foreign coins, alleged to have other plaintiff and with the defendant in been found by each plaintiff jointly with the three metallic cans buried and concealed in the soil and underneath the surface of land

Frank W. Butler, for plaintiffs. Joseph C. fendant for the conversion of such number Holman, for defendant.

to retain it against all persons except the true owner has been recognized. In that case a chimney sweeper's boy found a jewel and carried it to a goldsmith to ascertain what it was. The goldsmith refused to return it, and it was held that the boy might maintain trover on the ground that by the finding he had acquired such a property in the jewel as would entitle him to keep it against all persons but the rightful owner. This case has been uniformly followed in England and America, and the law upon this point is well settled. Sovern v. Yoran, 16 Or 269, 20 Pac. 100, 8 Am. St. Rep. 293; 19 Am. & Eng. Ency. Law (2d Ed.) 579. But it is argued that property is lost, in the legal sense of that word, only when the possession has been casually and involuntarily parted with, and not when the owner purposely and voluntarily places or deposits it in a certain place for safe-keeping, although he may thereafter forget it, and leave it where deposited, or may die without disclosing to any one the place of deposit.

within the common-law definition of "treas | doer, the right of the finder of lost property ure-trove," the general rule is established by a substantially uniform line of decisions in the American states, with respect to both lost goods, properly so termed, and treasuretrove, that, in the absence of legislation upon the subject, the title to such property belongs to the finder as against all the world except the true owner and that ordinarily the place where it is found is immaterial. Lawrence v. Buck, 62 Me. 275; Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528; Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172: Danielson v. Roberts, 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526, 102 Am. St. Rep. 627; Armory v. Delamarie, 1 Strange, 504, 1 Smith's Lead. Cases, 631; Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424, 21 L. J. Q. B. 75. The owner of the soil in which treasure-trove is found acquires no title thereto by virtue of his ownership of the land. Reg. v. Thomas. Leigh & Cave Eng. Cr. Cases; 28 A. & E. Enc. of Law (2d Ed.) 473. According to Bracton lib. 3, c. 3, as quoted in Viner's Abridgment: "He to whom the property is shall have treasure-trove, and if he die before it be found, his executors shall have it, for nothing accrues to the King unless when no one knows who hid that treasure." And according to Lord Coke (3 Inst. 132), the common law originally left treasure-trove to the person who deposited it, or, upon his omission to claim it, to the finder. 2 Kent's Com. 458. The rule of the common law respecting the rights and duties of the finder of lost money or goods has been variously modified by the terms and provisions of local statutes of many states, but the provisions of the Maine statutes (Rev. St. c. 100, § 10 et seq.) have no reference to the law of treasure-trove.

In Danielson et al. v. Roberts et al., 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526, 102 Am. St. Rep. 627, in which the facts were strikingly analogous to those at bar, two boys unearthed on the defendant's premises an old tin can containing gold coin of the value of $7,000.

The circumstances under which the money was discovered, the rust-eaten condition of the can in which it was contained, and the place of deposit, tended strongly to show that it had been buried for a long time, and that the owner was probably dead or unknown. It was held that the fact the money was found on the premises of the defendants in no way affected the plaintiffs' right to possession or their duty in relation to the treasure, and that they could maintain trover therefor against the defendants to whom they had been induced to deliver the money. In a well-reasoned opinion, the court say:

"Ever since the early case of Armory v. Delamarie, 1 Strange, 504, where it was held that the finder of a jewel might maintain

"But at the present stage of the controversy it is immaterial whether the money discovered by plaintiffs was technically lost property or treasure-trove, or, if treasuretrove, whether it belongs to the state or the finder, or should be disposed of as lost property if no owner is discovered. In either event the plaintiffs are entitled to the possession of the money as against the defendants, unless the latter can show a better title. The reason of the rule giving the finder of lost property the right to retain it against all persons except the true owner applies with equal force and reason to money found hidden or secreted in the earth as to property found on the surface.”

In Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528, the plaintiff bought an old safe and soon afterwards, through his agent, left it for sale, with the defendant, who was a blacksmith. Upon examination of it soon after it was left with him the defendant found secreted between the exterior and the lining a roll of bank bills amounting to $165. Neither the plaintiff nor the defendant knew the money was there before it was found, and the owner was unknown. The plaintiff brought suit against the defendant to recover the money, claiming that as owner of the safe he was entitled to the money by right of prior possession; but the court held that the plaintiff "never had any possession of the money except unwittingly, by having possession of the safe which contained it; that although it was originally deposited in the safe by design, it was not so deposited after the safe became the property of the plaintiff, so as to be in the protection of the safe as his safe, or so as to affect him with any responsibility for it," and it was accordingly held that the plaintiff, as finder

against the defendant, the owner of the safe, and as against all the world except the real

owner.

sion. The law is not so unreasonable as to compel a resort to the courts in order to obtain a partition which either may make without expense and without danger of injustice to his co-tenant." See, also, Fiquet v. Allison, 12 Mich. 328, 86 Am. Dec. 54; Ripley v. Davis, 15 Mich. 75, 90 Am. Dec. 262; Gates v. Bowers, 169 N. Y. 14, 61 N. E. 993, 88 Am. St. Rep. 530; German Nat. Bank v. Meadowcroft, 95 Ill. 124, 35 Am. Rep. 137.

In Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172, the plaintiff, while engaged as an employé in the defendant's paper mill, found two $50 bank bills, in a clean unmarked envelope, in a bale of old paper which the defendant had bought for manufacture, and delivered the bills to the defendant for the purpose of ascertaining if they were good It is also familiar law that absolute and and upon his promise to return them. The unqualified ownership of a chattel is not esdefendant refusing to return them, the plain-sential to enable one to maintain trover for tiff brought suit to recover their value, and its conversion. Either a general or special the court held that she was entitled to re- property in the plaintiff with the right of cover, citing among other cases, Lawrence v. possession at the time of the conversion will Buck, 62 Me. 275, Durfee v. Jones, 11 R. I. be sufficient. It has been seen that, in all 588, 23 Am. Rep. 528, and Armory v. Dela- the cases above cited in which it has been marie, 1 Strange, 505, supra, and stating that held that the finder of lost property is entithe place of the finding was ordinarily im-tled to retain possession of it as against all the material.

The result therefore seems unquestionable that, in the case at bar, the coins sued for belonged to the finder or finders as against all the world except the true owner, or his legal representatives, when discovered. Indeed the defendant's counsel does not serious

world until the rightful owner appears, it was also held that the finder had a special or qualified property in the thing found sufficient to enable him to maintain trover for its conversion against any one except the true owner.

Upon the assumption then that the plainly contend to the contrary, but, as already | tiffs and the defendant were joint finders, and noted, he claims under the motion that the defendant was in fact the sole finder of the coins, and further insists under the exceptions that, in any event, these actions are not maintainable for the reason that an action of trover will not lie in favor of one tenant in common against his original cotenant.

therefore tenants in common, of the coin contained in the cans found in the case at bar, each was entitled to possession of one-third of it and charged with the duty of holding it for the true owner if he could be ascertained. He was under obligations to exercise reasonable care to safely keep his share of it and be prepared to restore it to the true ownWith respect to things so far indivisible in er whenever he might appear, and was theretheir nature that the share of one cannot be fore authorized to maintain such action as distinguished from that of the other, it is might be necessary to entitle him to retain undoubtedly a well-established rule that one or recover possession of it. The coins were tenant in common cannot maintain trover readily divisible into three parts by counting against his co-tenant for the reason that the and weighing, but the defendant denied the two are equally entitled to possession, and the plaintiffs' rights and refuses to surrender any one who has it cannot be guilty of conversion part of the coin. This was effectually a conby retaining it; but this rule "can have no version of their respective shares as tenants reasonable application to such commodities in common, and an action of trover was the as are readily divisible by tale or measure in-appropriate remedy for each plaintiff. to portions absolutely alike in quality, such 2. Under the motion the defendant insists as grain or money." Cooley on Torts (2d Ed.) p. 533. Cessante ratione legis, cessat ipsa lex. If A. and B. are tenants in common of a car load of corn, and B., denying A.'s right to any part of it, refuses to surrender his half on demand, this is deemed in law a conversion, because the commodity would be capable of exact division by weight or measure, and by refusing to surrender A.'s half B. exercised a dominion over it inconsistent with A.'s rights. As observed by the court in Pickering v. Moore, 67 N. H. 536, 32 Atl. 830, 31 L. R. A. 698, 68 Am. St. Rep. 695: "One is entitled to the possession of the whole in those cases only where it is necessary to his enjoyment of his moiety. Here it is not necessary. There is no more difficulty in separating one portion from another than there is in selecting A.'s marked sheep

that he discovered the cans under circumstances that constitute him the sole finder of the coins; but, under instructions upon this point to which no exceptions were taken, the jury evidently reached the conclusion that the plaintiffs participated in the discovery so as to become joint finders with the defendant with equal rights in the property found. They awarded to each plaintiff $291.20, and this appears to have been precisely one-third of the aggregate market value of all the coin. As it satisfactorily appears that the quantity of coin in any one can was not of the same value as that in any other, the jury must have decided that there was a joint finding by all and not a separate finding of a single can by each, and the question now is whether this conclusion of the jury was warranted by the evidence.

sufficient evidence to warrant the jury in accepting the plaintiffs' version of the finding, and in drawing the inference that neither the plaintiffs nor the defendant had any knowledge or belief that silver coins had been discovered until they were seen to fall through the bottom of the first can after it was taken out by the plaintiff Morton. It may also be fairly inferred from the conduct of the parties that at the time of the discovery of the coins neither the plaintiffs nor the defendant understood that the finder of money under such circumstances acquired any legal claim to it as against the owner of the soil where it was found.

The solution of the question thus raised, respecting the rights of the several parties who participated in the discovery and remov. al of the cans containing the coin in dispute, is necessarily attended with some practical difficulties. Other courts have encountered similar difficulties under analogous circumstances.

been destroyed by fire, including a small building 14 feet distant from it and a covered passageway connecting it with the mill. The plaintiffs and defendant were employed by the owner of the premises, among other things, to make an excavation about 8 feet wide for a shaftway preparatory to the erection of a new mill on the same site. At the time of the discovery of the coin, they were all engaged in digging out the gravel and small stones in the passageway connecting the old mill with the small building. It appeared in evidence that there had been some "joking" between these workmen and Mr. Sweet, a neighbor who happened to be present, with reference to a tradition that one Porter, a former owner, had buried some money on the premises; but, according to the testimony in behalf of the plaintiffs, the coin was discovered under the following circumstances: The plaintiffs and defendant were working in the trench about four or five feet from each other, when the defendant discovered the top of an old can, and asked In Keron v. Cashman et al. (N. J. Eq. Sweet, who was walking away, to come back, 1896), 33 Atl. 1055, one of several boys playsaying, "I have found it." Thereupon the ing along a railroad track picked up an old plaintiff Morton commenced to dig out the stocking in which something was tied, and, stones and gravel around the can, when the after he had swung it about in play for a defendant tried to pull it out with his hands, time, a second one of the boys snatched it, and said: "I can't lift it. I guess it is filled or, it having been thrown by the finder, the with sand." After further digging the plain- second boy picked it up and began striking tiff Morton took up the can, when the bottom the other boys with it. In this way it passdropped out, and the silver coins were seened from one to another, and, finally, while falling from the can among the stones. The the second boy was swinging it, it broke defendant exclaimed: "It is money. I wish I hadn't said anything, for there will be a row over it." While digging out more stones for the purpose of picking up the coins that fell among the stones, the plaintiff Morton discovered the second can, which was taken out by the defendant and Mr. Sweet. Morton continued to dig out the stones and gravel and soon uncovered the third can, the top of which, however, appears to have been first seen by the plaintiff Weeks. This can was removed by the defendant and the plaintiff Morton. The three cans were set in a triangular position about a foot equidistant from each other; the spaces between them being filled with stones and gravel.

The money was turned into a pail and pan and carried to the house of Leonard J. Hackett by the defendant and Mr. Sweet, where it remained from Saturday afternoon until the following Monday, when, by arrangement between the defendant and the owner of the land, the money was deposited in a national bank.

open, and paper money to the amount of $775 was found therein; all then examining it together. It was held that the money be longed to all the boys in common. In the opinion the court say:

"This money within the stocking was therefore the lost property, and as to this money the first intention, idea, or 'state of mind,' as it is called in some of the authorities, arose on this discovery. As a plaything, the stocking with its contents was in the common possession of all the boys; and inasmuch as the discovery of the money resulted from the use of the stocking as a plaything, and in the course of the play, the money must be considered as being found by all of them in common.

"All of the cases agree that some intention or state of mind with reference to the lost property is an essential element to constitute a legal finder' of such property, and the peculiarity of the present case is that the intention or state of mind necessary to constitute the finder must relate to the lost money inclosed within a lost stock. ing, and not to the lost stocking itself, in

The defendant's account of the finding is materially different. He testifies that the cans were standing in a row close to each the condition when first found; and, under other, and that when he unearthed the first one, and before it was taken out, he discovered the other two through the openings in the stones and plainly saw the bright coins in the cans. He expressly admits, however, that "we all had hold of those cans," and it

the circumstances established by the evidence in this case, the finder of the lost stocking was not, by reason of such finding, the legal finder of the lost money within the stocking. A decree will therefore be advised dividing the money equally between