Page:Halsbury Laws of England v1 1907.pdf/753

 —— Part

Gratuitous Bailment.

II.

531

1081. Where chattels, other than treasure-trove {j), waifs (k), and (l), are found on private property, the owner of the property, and not the finder, whether he is the servant of such owner or a stranger, is entitled to them and can maintain an action in detinue estrays

i.

^1^^^^^^ found on private property.

for their possession {m).

Sub-Sect

Sect.

Deposit,

4,

OhJigations of the Bailee^

of dilipjence demanded of a gratuitous Measure of a rule that degree of diligence which men of diligence, common prudence generally exercise about their own affairs {n). In order, therefore, to maintain an action, in the case of a gratuitous deposit, the plaintiff must show that the defendant has been guilty of either a breach of orders, gross negligence, or fraud (o). As a general rule, the fact that he keeps chattels deposited with him in the same manner as he keeps his own is not sufficient to exempt a gratuitous bailee from liability, though this degree of care may be sufficient to repel the presumption of gross negligence {p). If, however, the subject-matter of the bailment is injured or destroyed

1082. The measure

depositary

is

as

" Treasure-trove, is where any gold or silver in coin, plate, or bullion is found ( j) concealed in a house, or in the earth or other private place, the owner thereof being unknown, in which case the treasure belongs to the King or his grantee, having the franchise of treasure-trove. ... If the owner, instead of hiding the treasure, casually lost it, or purposely parted with it in such a manner that it is evident he intended to abandon the property altogether, and did not purpose to resume it on another occasion, or if he threw it on the ground, or other public place, or in the sea, the tirst finder is entitled to the property as against every one but the owner, and the King's prerogative does not in this respect obtain. So that it is the hiding, and not the abandonment of the property that entitles the King to it." Chitty on Prerogatives, p. 152, cited by Farwell, J., in A.-G. v. The right only passes Tntstees of British Museum, [1903] 2 Ch. 598, at p. 608. See also A.-G. v. Moore, [1893] 1 Gh. 676. to a subject by express grant, ibid.

See

Constitutional Law Coroners. That is, goods stolen and thrown away by the thief in his

titles

(k)



flight.

They

belong to the owner, unless he is guilty of default in pursuing the thief, when they belong to the Crown. But if they are not thrown away by the thief in his flight, but are hidden or left anywhere by him, they are not waifs, and belong in any case to the owner, 1 Bl. Com. 297. (l) That is, animals found wandering in any manor or lordship, their owner being unknown. The}^ belong to the Crown, or to the lord by special grant, see title unless claimed by their owner within a year and a day, 1 Bl. Com. 297

Animals. (m) South Staffordshire Water Go. v. Sharman, [1896] 2 Q. B. 44. Where the property on which the chattels are found is in the occupation of a lessee, they belong to the lessor, and not to the lessee, if they were there at the time the lease was granted, unless the terms of the lease are wide enough to cover them [ElwesY. Brigg Gas Go. (1886), 33 Ch. D. 562). But if they were not on the property at the time of the lease, they would seem to belong to the lessee on the principle laid down in South Staffordshire Water Go. v. Sharman, supra. (n) Gihlin v. McMullen (1869), L. R. 2 P. C. 317, per Lord Chelmsford, at Bullen v. Swan Electric Engraving Go. (1907), 23 T. L. R. 258. p. 337

see per Lord Mansfield, at p. 480. v. Mourgue (1776), 2 Cowp. 479 Compare {p) Gihlin v. McMullen, supra, per Lord Chelmsford, at p. 339. Boorman v. Jenkins (1834), 2 A. & E. 256, in which case defendant, a coff'ee-house keeper, accepted from plaintiff the deposit of a sum of £32 105. wherewith to take up a bill which would be presented there for payment, and placed it with money of his own to a much larger amount in a cash-box, which box he kept in the taproom, whence it was stolen on a Sunday, a day on which the room was open to the public while the rest of the house was closed; the jury were told by Lord Denman " that it did not follow from the defendant's having lost his own (o)

Moore



MM

2