There is a class of cases besides those of bailees and tenants, which will probably, although not necessarily, be decided one way or the other, as we adopt the test of an intent to exclude, or of the animus domini.  Bridges v.  Hawkesworth 1 will serve as a starting-point.  There, [222] a pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it.  Common-law judges and civilians would agree that the finder got possession first, and so could keep it as against the shopkeeper.  For the shopkeeper, not knowing of the thing, could not have the intent to appropriate it, and, having invited the public to his shop, he could not have the intent to exclude them from it.  But suppose the pocket-book had been dropped in a private room, how should the case be decided?  There can be no animus domini unless the thing is known of; but an intent to exclude others from it may be contained in the larger intent to exclude others from the place where it is, without any knowledge of the object’s existence.

In McAvoy v.  Medina, 1 a pocket-book had been left upon a barber’s table, and it was held that the barber had a better right than the finder.  The opinion is rather obscure.  It takes a distinction between things voluntarily placed on a table and things dropped on the floor, and may possibly go on the ground that, when the owner leaves a thing in that way, there is an implied request to the shopkeeper to guard it, which will give him a better right than one who actually finds it before him.  This is rather strained, however, and the court perhaps thought that the barber had possession as soon as the customer left the shop.  A little later, in a suit for a reward offered to the finder of a pocket-book, brought by one who discovered it where the owner had left it, on a desk for the use of customers in a bank outside the teller’s counter, the same court said that this was not the finding of a lost article, and that “the occupants of the banking house, and not [223] the plaintiff, were the proper depositaries of an article so left.” 1 This language might seem to imply that the plaintiff was not the person who got possession first after the defendant, and that, although the floor of a shop may be likened to a street, the public are to be deemed excluded from the shop’s desks, counters, and tables except for the specific use permitted.  Perhaps, however, the case only decides that the pocket-book was not lost within the condition of the offer.

I should not have thought it safe to draw any conclusion from wreck cases in England, which are mixed up with questions of prescription and other rights.  But the precise point seems to have been adjudicated here.  For it has been held that, if a stick of timber comes ashore on a man’s land, he thereby acquires a “right of possession” as against an actual finder who enters for the purpose of removing it. 2 A right of possession is said to be enough for trespass; but the court seems to have meant possession by the phrase, inasmuch as Chief Justice Shaw states the question to be which of the parties had “the preferable claim, by mere naked possession, without other title,” and as there does not seem to have been any right of possession in the case unless there was actual possession.