2

tency, are void:1 but the inquisition is not conclusive evidence of his incapacity to make a will. The courts give effect to the inquisition with a view to accomplish the intent of the statute; so that the rule of evidence annulling such subsequent contracts springs from the spirit of the statute. The presumption of a want of capacity to make a will, arising from the fact that a man is under the guardianship of the court, remains; and it is perhaps overcome where the court modifies the commission for the purpose of enabling him to execute a will.3

In truth, the rule of law does not vary with reference to the subject matter of the transaction. A person of unsound mind can neither bind himself by contract, nor make a will. Our law does not distinguish between different degrees of intelligence or mental capacity. By the statute a man of sound mind and memory may dispose of his property by will; he has a sound mind when he is able to comprehend the situation of his property, his natural relations, and the nature of his act; he has a sound memory when he his able to collect in his mind, without prompting, the elements of the business to be transacted, and form some rational judgment in relation to them."

§ 16. A man who is so intoxicated that he is deprived of the use of his reason and understanding, cannot bind himself by contract; he has no legal capacity. Partial intoxication, where there is no fraud or undue influence practiced, does not render him incompetent; he may make a contract or a will unless he be so far under the influence of intoxicating liquor as to disorder his faculties and pervert his judgment. Where a person takes advantage of an intoxicated man and obtains a contract from him by artful and fraudulent dealing, a court of equity will grant relief; and a defense may be interposed in an action at law, grounded on the fraud. By retaining the benefits arising from the contract, as where

1 L'Amoureux v. Crosby, 2 Paige's Ch. R., 422; Wadsworth v. Sharpsteen, 8 388.

N. Y.,

2 Leonard v. Leonard, 14 Pick., 284; Breed v. Pratt, 18 Pick., 116.

3 In the matter of Burr, 2 Barb. Ch. R., 203; in the matter of Patterson, 4 How. Pr., 34; Lewis v. Jones, 50 Barb., 653.

4 Blanchard v. Nestle, 3 Denio, 37; Stewart's Exr. v. Lispenard, 26 Wend., 255. Delafield v. Parish, 25 N. Y., 9, 66, 97; Van Guysling v. Van Kuren, 35 N. Y., 70; Clapp v. Fullerton, 34 N. Y., 190; Tyler v. Gardner, 35 N. Y., 559. What is derangement? See Haviland v. Hayes, 37 N. Y., 25; and Seaman's Friend Society v. Hopper, 33 N. Y., 619.

Gore v. Gibson, 13 Mees. & Wels., 623; Prentice v. Achone, 2 Paige, 30. 7 Peck v. Cary, 27 N. Y., 9, 20; Burns v. O'Rourke, 5 Robt., 649.

8 Hutchinson v. Brown, Clarke's Ch. R., 408, 420; Dane v. Kirkwell, 8 C. & P., 679. The contract of a drunken man is voidable; it is not void. Mathews

a drunken man purchases goods and keeps them after he becomes sober, he renders himself liable on the contract.

§ 17. When goods come into the possession of one who has no capacity to contract, it has been argued that the law will raise or imply a duty or contract from the circumstances. Without attempting to resolve this point, we may reasonably assume that the law will deal with him as it does in the case of an executed contract; it will not suffer him to interpose his disability as a cloak for misconduct. If he repudiates the implied contract ordinarily raised by law, the owner may at once recover his goods; the right of possession follows the title, and where the custody of the property has been parted with through misapprehension, it may be retaken.

A lunatic, though incapable of committing the moral wrong of trespass, is nevertheless answerable in his estate for the injury he commits. Under the statute which gives damages recoverable in the name of the executor or administrator of the deceased, for the destruction of life through carelessness or by any wrongful act, a lunatic has been held responsible. The decision was made at a General Term of the Supreme Court at Albany, and is supported by many other cases adjudged upon the same principle. The law in such cases demands of the lunatic only the actual damages, to be satisfied out of his estate.3

On the same principle, an insane man is liable for his wrongful and tortious acts of injury to the property of other persons. He is liable

like an infant."

§ 18. The Finder. The finder of personal property is not compelled by law to take the same into his custody; but if he voluntarily assume the charge of it, the law imposes upon him the duties of a depositary. The action of trover so long in use, was designed expressly for the recovery of property by the owner from the custody of the person, into whose hands it may have lawfully come, as by finding, the important fact in the case being the act of conversion; that is, the exercise of some act of ownership or control over the property in exclusion of the legal owner. In that form of suit, in general, only the two ques

1 Per Pollock, C. B., 13 Mees. & Wels., 625.

2 Morse v. Crawford, 17 Verm., 499; held liable in trover for strangling an ox bailed to him.

3 Mull v. Kelly, also Krone v. Schoonmaker, 3 Barb., 647. See Session Laws of 1847, ch. 450; also Laws of 1849, ch. 256.

4 Weaver v. Ward, Hob., 134; Cross v. Andrews, Cro. Eliz., 622. See Bush v. Pettibone, 4 N. Y., 300.

• Story on Bailm., § 86, 87; Cory v. Little, 6 N. Hamp., 213.

tions of title and conversion are litigated. A careful examination, however, of the decisions in the action of trover will show that the finder is, and upon principle ought to be, held responsible for the care of the goods so received. The law, in fact, gives him a special property in them, and he may maintain a suit against any one who shall convert them except the rightful owner; having the right and the means of protecting the property, it is but reasonable that he should be required faithfully to exercise and use them. Where a right is conferred, it is a general principle of both law and equity, that the person or party in whom it is vested shall be required to exercise it in good faith, so as to carry out the purpose for which it is given."

The action of trover, which always assumes that the property in question came lawfully into the defendant's possession, was frequently brought and sustained for the injury suffered by the misuse, or dis position of it contrary to orders. Every direct act of authority, amounting to an assertion of title, every breach of the express or implied trust on which it was received, and every abuse of the lawful possession, has been repeatedly held a conversion of the property.3 These familiar principles are applicable both to chattels and to choses in action."

§ 19. The finder is in lawful possession against all the world except the owner; he has what the law treats as a special property in the chattel, a title or interest sufficient to enable him to maintain the action of trover against any stranger or third person who takes or detains it from him. The rule does not apply to the finder of a chose in action; a mere servant of the owner has no such interest or special property in the goods entrusted to him. He is not clothed with the rights of a bailee or

finder of chattels.

§ 20. Not being legally bound to assume the custody of lost goods or chattels, the question often arises whether the finder is entitled to com

1 McLaughlin v. Waite, 9 Cowen, 670.

2 The Mayor, &c., of New York v. Furze, 3 Hill, 612.

Baldwin v. Cole, 6 Mod., 212; M'Combie v. Davies, 6 East, 540.

4 Murray v. Burling, 10 John. R., 172; 2 Eso. N. P., 190; Edwards on Bills and Notes, 2nd ed., 679 a.

Amory v. Delamirie, 1 Strange, 505. The plaintiff, who was a chimney sweeper's boy, found a jewel, and having left it with the defendant, who refused to return it, an action of trover was sustained in favor of the finder; N. Y. and H. R. Co. v. Haws, 56 N. Y., 175.

McLaughlin v. Waite, 9 Cowen, 670.

Tuthill v. Wheeler, 6 Barb., 362, 364. Where a man bargains for property and the title is to vest in him when he pays for it, he cannot bring trover for it against an officer who levies on it as the seller's property until he has paid for it.

pensation for his services and expenses when he does take them into his keeping. The rule as usually stated is, that one who takes up an estray or any other lost chattel cannot levy a tax upon it by way of reward or indemnity. He certainly does not acquire any lien upon it for his services or expenses in taking care of the property. In most cases it must be admitted that he performs a meritorious act; but it is a voluntary act of charity or good will; and it is the policy of the law to leave good offices and meritorious acts of benevolence dependent for reward upor the moral duty of gratitude. Hence the law gives no recovery for vol untary services in preserving a neighbor's property from loss by fire or flood. But suppose a chattel is taken up and preserved by the finder at some expense of both time and money, and that the owner afterwards comes and receives it, thereby accepting the benefit of the expenses thus incurred; does the law hold the owner liable for these reasonable expenses? If he choose to abandon his property, it is clear that he is not liable; because the expense was not incurred at his request. But if he accepts the property, preserved and restored to him by these reasonable expenses, he is bound, we think, to reimburse the finder.3 It is remark able that a question of so much practical importance should have remained so unsettled.1

A reward being offered to the finder of lost goods or chattels, any one may act upon it and may claim the compensation as a matter of con

1 1 Rool. Abr., 879, C.5; Noy's Rep., 144; Salk., 686; Watts v. Ward, 1 Oregon, 86.

2 Nicholson v. Chapman, 2 H. Black., 254; Bartholomew v. Jackson, 20 John, R., 28; Watts v. Ward, 1 Oregon, 85; Binstead v. Buck, 2 W. Blackstone, 1117.

3 Reeder v. Anderson, 4 Dana, 193; Etter v. Edwards, 4 Watts, 63; Amory v. Flyn, 10 John. R., 102; Preston v. Neale, 12 Gray, 222, 223; Chase v. Corcoran, 103 Mass., 286.

Sheldon v. Sherman, 42 Barb., 368; S. C. 42 N. Y., 482. This case justifies the inference that where the owner comes and takes his property benefited by the services of the finder the law will imply a promise to pay for such services: N. Y. and Harlem R. Co. v. Haws, 56 N. Y., 175. When is a thing to be considered as lost? Money or chattels, voluntarily laid down and forgotten, are not considered lost in a legal sense and so it is held that the proprietor of the store, or bank, or place where they are left, is the proper custodian, rather than the party who first discovers them. State v. McCann, 19 Mo., 249; Lawrence v. The State, 1 Humph., 228; McAvoy v. Medina, 11 Allen, 549; Kincaid v. Eaton, 93 Mass., 139. The rule does not hold where a conductor finds money in a railroad car, and the owner cannot be found: Tatum v. Sharpless, 6 Phila., 18; or where the bailee of an old safe finds within its lining a roll of bank bills, and the owner cannot be found: Durfee v. Jones, 16 Albany Law Journal, 368; Bridges v. Hawkesworth, 7 Eng. Law & Eq., 424.

tract; and where by its terms or by a fair interpretation of the offer, the reward is to be paid on restoring the property, the finder may detain it until the reward is paid.1

Under a statute of this State a person finding horses, cattle or sheep upon his enclosed lands, may acquire a lien upon them for his reasonable charges for keeping them, in the manner pointed out in the act. But he cannot do so unless he follows the provisions of the statute.2

§ 21. The finder of a lost article, who takes it into his custody in good faith, not knowing who the owner is, is not rendered guilty of larceny by afterwards secreting and appropriating it to his own use. The taking must be felonious in order to make the act a felony; the taking must be a trespass;3 and it must be with an intent to steal, animo furandi. The discrimination between the act of taking up a lost pocketbook containing money with an intent to appropriate it, and the act of taking it up and presently concealing it with the same intent, is clearly made; the distinction is indeed nicely drawn, to a rather thin edge; and yet it must be admitted that the crime of larceny is plainly distinguishable from the fraudulent concealment and conversion of property that comes lawfully into a man's possession. The finder of a pocket-book containing bank bills and having the owner's name legibly written in it is a thief, if he conceals and appropriates the money. It is not necessary that he should have lifted it from the ground with a thievish intent. On the other hand, he is held not guilty of felony, where he takes up the book with the money in it, without finding any mark or name in it

1 Wentworth v. Day, 3 Metc., 352; Neville v. Kelly, 12 C. B. N. S., 740; Baker v. Hoag, 7 Barb., 113; S. C. 7 N. Y., 555.

21 R. S., 831, 5th ed., Of Estrays. The enactment of such a statute assumes that the common law does not furnish a remedy of this kind, and admits the equity and justice of the finder's claim to compensation where he acts in good faith and renders a beneficial service. North v. McDonald, 47 Barb., 528; Cowles v. Balzer, 47 Barb., 562. The statute of 1862 is unconstitutional so far as it authorizes a seizure and sale of animals found trespassing on a private enclosure; Rockwell v. Nearing, 35 N. Y., 302.

3 The People v. Anderson, 14 John., 294. The indictment was for the larceny of a trunk, lost from a stage coach.

The People v. McGarren, 17 Wend., 459; The State v. Weston, 9 Conn. R., 527; Wilson v. The People, 39 N. Y., 459.

The State v. Weston, supra; People v. Swan, 1 Park. Cr., 9.

6 The People v. Call, 1 Denio, 120. In this case the defendant was convicted of the larceny of a promissory note; the note was handed to him to write an indorsement upon it, and he carried it away feloniously. Stealing a receipt is not larceny. The People v. Loomis, 4 Denio, 380 see Florence Sewing Machine Co. v. Warford, 1 Sweeney, 433, 448.