It may be asked whether this is not simply the animus domini
looked at from the other side. If it were, it would nevertheless
be better to look at the front of the shield than at the reverse.
But it is not the same if we give to the animus domini the
meaning which the Germans give it, and which denies possession to
bailees in general. The intent to appropriate or deal with a
thing as owner can [221] hardly exist without an intent to
exclude others, and something more; but the latter may very well
be where there is no intent to hold as owner. A tenant for years
intends to exclude all persons, including the owner, until the
end of his term; yet he has not the animus domini in the sense
explained. Still less has a bailee with a lien, who does not even
mean to use, but only to detain the thing for payment. But,
further, the common law protects a bailee against strangers, when
it would not protect him against the owner, as in the case of a
deposit or other bailment terminable at pleasure; and we may
therefore say that the intent even to exclude need not be so
extensive as would be implied in the animus domini. If a bailee
intends to exclude strangers to the title, it is enough for
possession under our law, although he is perfectly ready to give
the thing up to its owner at any moment; while it is of the
essence of the German view that the intent must not be relative,
but an absolute, self-regarding intent to take the benefit of the
thing. Again, if the motives or wishes, and even the intentions,
most present to the mind of a possessor, were all self-regarding,
it would not follow that the intent toward others was not
the important thing in the analysis of the law. But, as we
have seen, a depositary is a true possessor under the common-law
theory, although his intent is not self-regarding, and he holds
solely for the benefit of the owner.
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.
Public-domain text, read in full here on John Shaqi.
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