Bird v. Fort Frances (Ville de), (1949) O.R. 292 [1949] 2 D.L.R. 791 (H.C.J.)

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• Date: 2024

Bird v. The Town of Fort Frances.

In the month of May 1946, the plaintiff, who was at that time about twelve years of age, was playing with a number of other boys in the rear of a pool-room built on private property in the town of Fort Frances. As part of the game he attempted to crawl under the building and while doing so observed a can on a sill forming part of the understructure. On investigation he found this can to contain a large sum of money in bills. He took possession of it and after some incident in a coal bin, which was not clearly developed at the trial and is immaterial to this action& during which some of the money was lost, he took between $1,400 and $1,500 home, the substantial part of which he handed over to his mother, who hid it under the cushion of a chair. Some days later, as a result of the plaintiff’s generous spending, the chief constable questioned him. The plaintiff gave a true account of the facts and disclosed that he had $60 on his person, and where the balance of the money was. The chief constable went to the plaintiff’s home, without a search warrant, and asked Mrs. Bird for the money, which she handed over without objection. The chief constable said in evidence that his purpose in securing the money was to return it to the rightful owner if he should be found. He says that he kept it for some time and, finding no owner, turned it over to the town treasurer. The twon treasurer syas that when he received the package of money from the chief constable the latter told him that it was money found and asked him to keep it in safekeeping. It was eventually deposited, on the 23rd December 1946, in a special savings account to the credit of the Town of Fort Frances marked “funds for Court disposal”. The balance shown in the account on the 27th September 1948 was $1,460.61.

The defendant in its statement of defence alleges that the moneys were found on premises owned by the late John Sandul and were rightfully retained by it as trustee for the true owner.

Para. 2 reads as follows:

“The Defendant submits that it has retained these moneys in good faith as trustee for the true owner and asks the direction of the Court with respect to the disbursement thereof, bearing in mind that the executor of the estate of the late John Sandul has already made a demmand upon the Defendant for the return of the monies to him.”

There was no evidence given at the trial of any demmand made by the executor of the estate of the late John Sandul, and my understanding of what counsel said is that no such claim is made to the money. During the course of the trial counsel said that the executor wished to make a statement to the Court. I intimated that unless the executor was making a claim to the money, and would formally do so at the consequent risk of costs, I would not hear him. With that the matter was dropped.

Whatever the rights of the estate of John Sandul may be, they cannot be considered or disposed of in this action as framed.

The facts are simple, but the law applicable has been a subject of absorbing interest to legal phillosphers, jurists and textbook writers throught the evolution of our jurisprudence, and in some respects the British law cannot yet be said to be settled.

It is convenient first to consider the case in the following aspects: the rights of the plaintiff as the finder of the money; whether the removal of the money from the property of another was a felonious act; if so, how far his right to recover against this defendant is affected thereby; and whether the plaintiff’s possession was subsisting at the time the money was handed over to the chief constable, or had been so interrupted as to deprive him of a right to maintain this action.

The plaintiff’s right of action if any, depends on a finding that he was wrongfully deprived of possession of the money by the chief constable, and that the defedant continues to interfere wrongfully with his possession. I know of no better perface to a consideration of law applicable than the chapter on “Possession” in Holme’s Common Law, 1881, from which I adopt the language of the learned author at p. 239 to express a cardinal principle of great antiquity:

“The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights of a mere possessor are less extensive than those of an owner.” Since Armory v. Delmire (1772), 1 Stra. 505, 93 E.R. 664, by the law of England the finder of a chattel, though he does not acquire absolute property or ownership, yet has such property as will enable him to keep it against all but the rightful owner (or at least one superior in title), and consequently may maintain trover. In that case a chimney-sweep found a jewel and carried it to the defendant’s shop to know what it was.

One of the defendant’s employees, after a pretence of weighing it, refused to return the stone. Judgment was given in favour of the plaintiff.

Where the contest is between the finder and the owner of the premises on which a chattel is found the law still remains in an unsettled state, and I refer to it only as far as it throws some indirect light on the subject I have to consider, and not for the purpose of entering the lists of the legal debate that still continues on this subject.

In Bridges v. Hawkesworth (1851), 21 L.J.Q.B. 75, the plaintiff found a parcel of bank notes which had dropped on the floor in the part of a shop frequented by customers. He handed them to the shopkeeper to hold pending inquiry by the true owner. The true owner was not found and the plaintiff sued the shopkeeper to recover the notes. Judgment was given in his favour.

This case, together with all other relevant cases on the subject, has been the subject of consideration in two recent judgments in the English courts. In Hannah v. Peel, [1945] K.B. 509, [1945] 2 All E.R. 288, the defendant was the owner of a house which he himself had never occupied. While the house was under requisition for war purposes the plaintiff, a soldier, found in a bedroom used a a sick bay, loose in a crevice on top of a window frame, a brooch, the owner of which was unknown. There was no evidence that the defendant had any knowledge of the existence of the brooch before it was found, but the police, to whom the plaintiff handed it for the purpose of ascertaining its owner, delivered it to the defendant, who claimed it as being found on the premises of which he was the owner. After a full discussion of the somewhat conflicting authorities, including Elwes v. Brigg Gas Company (1886), 33 Ch D. 562, and South Staffordshire Water Company v. Sharman, [1896] 2 Q.B. 44, Birkett J. followed the decision in Bridges v. Hawkesworth and gave judgment for the plaintiff.

In Hilbert v. McKierman, [1948] 2 K.B. 142, [1948] 1 All E.R. 860, Lord Goddard C.J. was required to consider the subject in a different aspect. McKiernan had been charged with the theft of eight golf balls, which had been lost and abondoned by their original owners and picked up and carried away by him while trespassing on the course. Ths justices found that the balls had been abondoned by their original owners and only one was capable of being identified. They were of the opinion that the appellant took the balls for the purpose of selling them and that by taking the balls the appellant meant to steal them and did steal them, but stated a case on the questions of law which they considered arose, in the main whether the appellant, by finding them, acquired title to the balls, which, as they had been abandoned by their original owners, would prevail against the owners of the land on which they were found. After referring to Bridges v. Hawkesworth Elwes v. Brigg Gas Company and South Staffordshire Water Company v. Sharman, the Lord Chief Justice said: “These cases … have long been the delight of professors and text writers, whose task it often is to attempt to reconcile the irreconcilable”. He pointed out that “the Corpus Professor of Jurisprudence at Oxford and the Professor Emeritus of English Law at Cambridge have expressed the opinion that Bridges v. Hawkesworth was wrongly decided”.

He referred to the decision of Birkett J. in Hannah v. Peel as having renvigorated that “much-battered case” and left it to wiser heads than his to end the controversy “which will no doubt continue to form an appropriate subject for moots till the House of Lords lays it to rest for all time”.

This discussion bears only on the case I have to decide in considering whether the plaintiff was a “true finder” as the term is used in the cases, or whether the owner of the land on which the money was found had an interest in it; and if he had whether the plaintiff was a mere wrongful taker or in law guilty of a felonious act. If the taking in this case amounted to a felony then for the first time in British law, as far as I can determine, the question must be expressly decided whether a thief can maintain an action for trover or conversion against one who has wrongfully deprived him of possession of the thing stolen. If the taking was “wrongful taking” with no felonious intent, the course to be followed is much more clearly defined.

I quote again from Holmes, op. cit., at p. 241: “The consequences attached to possession are substantially those attached to ownership, subject to the question of the continuance of possessory rights … Even a wrongful possessor of a chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing.”

The earliest reference to the subject that I have been able to find in the English law is in Brooke’s Abridgment, 1586, s.v. “Tresspass,” pl. 433, where he cites Y.B. 13 Henry VII, 10, for the statement that a wrongful taker has title against all but the true owner. (An examination of the Year Book does not appear to verify the accuracy of this citation.) While it is stated in Armory v. Delmire, supra, that the finder has “such a property as will enable him to keep it against all

but the rightful owner. and consequently may maintain trover”, that case does not discuss the relevancy of the circumstances under which the “lost article” was “found” as was done in Hibbert v. McKiernan, supra,

Goodeve on Personal Property, 8th ed. 1937, at pp. 38 -9, states: “… the possessor need not have the furhter qualification of a title to possess. The facts of exclusive and exclusory control may be as true of a finder, borrower, pawnbroker, an honest non-owner who believes he is the owner, a trespasser, or even a thief, as they are of a true owner.”

(The italics are mine.)

The only authority relied on for this statement, which is broader than I have been able to find in any other text-book, is Buckley v. Gross et al. (1863), 3 B. & S. 566, 122 E.R. 213. I am not at all sure the judgments in that case warrant the unqualified inclusion of the words “even a thief” in the statement, and certainly this aspect of the law was not the crux of the decision. The action was brought for damages for conversion of a quantity of tallow which had been recovered from the River Thames and the sewers of London after a fire among certain warehouses and sold to the plaintiff. The tallow was taken from him by a police officer who found him carrying it through the streets of LNDON at night. He was charged with having it in his possessin knowing it to have been stolen. The charge was dismissed, but an order was made under 2 and 3 Vict. c. 71, s. 29, that the tallow be delivered and sold under direction of the commissioner of police of the metropolis. The defendants purchased it at the sale. Cockburn C.J. stated that it was not necessary “to decide whether a person who has possession of a chattel without title may, if the possession be taken from him by a wrong doer, maintain an action against the wrong doer and persons deriving title from him otherwise than in market overt”. The learned Chief Justice went on to hold that the answer to the plaintiff’s case was that the defendant did not derive a title through a wrongdoer but under the provisions of the statute which authorized the sale. At p. 572 he said: “The plaintiff, who had nothing but bare naked possession (which would have been sufficient against a wrong doer) had it taken out of him by virtue of this enactment.” Crompton J. stated, at p. 573: “It is clearly established that possession alone is sufficient to maintain trover or trespass against a wrong doer who takes property from a person having possession of it. It is not clear, however, that the plaintiff, or the person from whom he purchased this tallow, was a finder of it within the principle of Armory v. Delamire and other cases. I think, on the evidence and the interferences to be fairly drawn from it, that he is more in the position of a person who has unlawfully or feloniously, perhaps the latter, obtained possession of it, whereas I look on the term finder in those cases to mean an innocent finder.”

The learned judge agreed with the learned Chief Justice that where the possession is unlawfully divested out of a man and the property is ultimately converted by a person who does not claim through an original wrongdoer, the person whose possession was so divested had no property at the time of the conversion. At p. 574 he states: “I consider that it was the duty of the constable to take the tallow and the plaintiff into the custody of the law, and that even without reference to stat. 2 & 3 Vict. c. 71. The defendants here do not claim under the constable, and, supposing they did, the constable did nothing wrong.”

No light is thrown in this judgment on what would have been the result if it had not been for the provisions of the statute, and the plaintiff had been in the position of asserting his felonious possession against a wrongdoer.

Blackburn J. at p. 574 states: “I do not wish to question the doctrine laid down in several cases, that possession of personal property is sufficient title against a wrong doer; nor that it is no answer to the plaintiff in such a case to say that there is a third person who could lawfully take the chattel from him; and I do not know that it makes any difference whether the goods had been feloniously taken or not.” The learned justice, on the assumption of that being a correct statement of the law, holds that the plaintiff has not brought himself within it. He holds that the mere fact that the tallow in question was mixed with other tallow and that the respective owners of the mass could not be ascertained did not mean that the property, the ownership of which was known as this was, belonged to the person who picked it up. He goes on to state that where property was being carried through the streets of the metropolis at an early hour of the morning by a person who had no right to receive it at common law, the constable was justified in taking it into possession and bringing it before a justice of the peace and upon the justice drawing the inference that the tallow had come upon from burning warehouses, as a matter of law the police were bound to hold it for the true owner, because they had ascertained that there was a true owner and who he was. Their possession was the possession of the true owner and not that of the wrongdoer, whose possession was terminated by thier taking possession.

In Pollock and Wright on Possession, 1888 , at p. 187, it is stated: “If a finder has reason to believe that the thing is abandoned and whether or not a civil trespass is committed, there can be no theft at the first because there does not exist the belief the appropriation will be invito domino which is essential for animus furandi. And a subsequent appropriation, even after discovery that the owner had no intention of abandonment, would seem to be within the principle of the immunity accorded by the modern decisions to the pure finder.

“A taker upon a loss and finding may, like any other possessor, maintain trespass and theft and trover or detinue against a stranger.”

Scrutton L.J. in Daniel v. Rogers, [1918] 2 K.B. 228 at 234 states: “Since the case of Armory v. Delamire it has been well established that mere possession is enough to entitle a person to sue in trover, and that he need not show the manner in which possession was obtained.”

Reference may also be made to the judgment of Kenyon C.J. in Graham v. Peat (1801), 1 East 244 at 246, 102 E.R. 95, and to Jeffries v. The Great Western Railway Company (1856), 25 L.J.Q.B. 107 referred to in Pollock and Wright, op.cit., at pp. 91 et seq.

In Williams on Personal Property, 18th ed. 1926, pp. 51 -2, the law is stated as follows: “The finder or wrongful taker of another’s goods, has the right to maintain or recover possession of them as against all the world, except the owner. Should he be dispossessed by any stranger, he will be entitled to use any of the owner’s remedies for the recovery of the goods or their value. And the stranger will not be enabled to set up the owner’s right (jus tertii) as a defence to the action, unless he show that he acted with the owner’s authority.”

This statement of the law was re-affirmed in Eastern Construction Company, Limited v. National Trust Company, Limited et al; Eastern Construction Company, Limited v. Schmidt et al., [1914] A.C. 197 at 209-10, 15 D.L.R. 755, 25 O.W.R. 756, and in Glenwood Lumber Company, Limited v. Phillips, [1904] A.C. 405 at 410.

In applying the law I have discussed to the facts of the case before me I am convinced that the plaintiff was not a “true finder” within the meaning of the term as used by jurists and writers. The money was not found in a public highway or public conveyance or in any place to which the public had access by leave or licence, nor was there anything to lead one to believe that it had been lost in the true sense. It had been carefully put in the container for the purpose of hiding it in the place in which it was discovered. It may well be that it was hidden by a thief, or it may be that it was abandoned, but it was not lost in the sense that if a wallet is lost if dropped in the street or that the bank-notes in Bridges v. Hawkesworth, aupra, or the jewel in Armory v. Delamire, supra, or the brooch in Hannah v. Peel, supra, were lost. The person who put the money where it was found put it there deliberately.

The plaintiff had no right to remove it from the property of another, and undoubtedly was a wrongful taker. The more difficult question to decide is whether he had a felonious intent and the taking was felonious; and if so, whether he would have the same rights as a wrongful taker who took under such circumstances that it did not amount to felony. The case is to be distinguished from Bridges v. Hawkesworth and Hannah v. Peel on the ground that in both those cases the plaintiff made immediate disclosure, on the one hand to the shopkeeper and on the o her hand to the police, which disproved any animus furandi, while in the present case every effort was made to conceal the fact that the plaintiff had taken possession of the money and removed it from the place where it was found. A very comprehenseive discussion of the law both ancient and modern on this aspect of the case is to be found in Pollock and Wright, op. cit., pp. 171-187. The conclusion I have come to is that it is not necessary for me to decide whether the taking was with felonious intent or not, as I think in this case the same result flows. In my view the authorities with which I have dealt justify the conclusion that where A enters upon the land of B and takes possession of and removes the chattels to which B asserts no legal rights, and A is wrongfully dispossed of those chattels, he may bring an action to recover the same.

The next question to consider is whether the plaintiff had parted with possession of the money to his mother under such circumstances as deprive him of the right of action. The mree fact that the plaintiff’s possession may have been interrupted does not necessarily deprive him of the right to maintain an action against someone who wrongfully dispossessess his successor in possession. While it is not an authorative statement of the law, I adopt the reasoning of Holmes, op, cit., at pp. 236-7:

“But it no more follows, from the single circumstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance. When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at and end except the manifestation of some fact inconsistent with its continuance, although the reasons for conferring the particular right may have great weight in determining what facts shall be deemed to be so. Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present.

… Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up.” In order to sue for recovery of goods, the finder or wrongful taker must actually have taken possession, but when possession is once acquired it is not necessary, in order to retain it, that the effective control which must be used to gain possession originally should continue to be actively exercised.

Possession will not be lost so long as the power of resuming effective control remains: Williams, op. cit., p. 53. Any difficulty that might arise out of the contention that the plaintiff had voluntarily parted with possession of the money to his mother could be overcome by adding Mrs. Bird as a party in her personal capacity. This contention was not set up in the pleadings and I think it may be dismissed from further consideration.

There remains the question whether the police took possession of the money by due process of law and it is now held in trust for the owner, making applicable the common law as laid down in Buckley v. Gross et al., supra. In that case the police officer arrested the accused in the street at night and took the tallow from him. Lawrence v. Hedger (1810), 3 Taunt. 14, 128 E.R. 6, referred to in the judgment of Blackburn J., only extends to the power of a police officer to arrest a person found in the streets at night whom there is reasonable ground to suspect of a felony.

At common law where a search warrant for the recovery of goods has been issued the goods, being found, ought not to be delivered to the party complaining, but should “remain in the constable’s hand till either by a writ of restitution upon the conviction of the felony, or by due order of the court they be delivered”: 2 Hale’s Pleas of the Crown, p. 114. I can find no authority for the police officer taking possession of the money as he did in this case as of right. That being so, the proper construction to be put on the transaction between him and the plaintiff’s mother is that the police officer, believing that the true owner could be found, requested tha the money be handed over to him to be held by him as the bailee of the plaintiff pending the search for the true owner. When he was unable to ascertain who the true owner was, in the absence of any other claim, he ought to have returned the money to the custody from which it came. The defendant can have no higher right than the police officer would have had, had he not handed the money over to the defendant and it is therefore liable for the amount of the money at the suit of the plaintiff. Even, in the circumstances, if the money had been seized under a search warrant the constable would have been obliged to return it to the custody from which it was taken upon there being no conviction and no true owner found. There will be judgment for the plaintiff for $1,430, together with the interest accrued in the bank account. The money will be paid into court to the credit of the infant and paid out when he reaches the age of 21 years. Costs will follow the event.

Judgment accordingly.

Solicitor for the plaintiff: G. Moffat, Fort Frances.

Solicitor for the defendant: T.H. Callahan, Fort Frances.