Clark v. Maloney — 3 Del. 68

Majority

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THOMAS CLARK vs. JOHN MALONEY and ROBERT MALONEY.

Headnote

The finder of a chattel has such a property in it as will enable him to keep it against [ all but the rightful owner. ;

If he lose it again he may maintain trover against a second finder.

A person is a competent witness though included in the writ as a defendant, if lie be not taken, nor declared against.

Action of trover to recover the value of ten white pine logs. The logs in question were found by plaintiff floating in the Delaware bay after a great freshet, were taken up and moored with ropes in the mouth of Mispillion creek. They were afterwards in the possession of defendants, who refused to give them up, alledging that they had found them adrift and floating up the creek.

James Dennis was called for defendants and objected to.

Bales. — He was originally a defendant in this action, and it has been proved that he, with Maloney, had these logs up the creek.

Houston. — Dennis, though named a party defendant in the writ, was not taken, and we have not declared' against him. He is no parly here, and may be a witness.

The Court. — If there be no evidence against a party defendant he may be acquitted' by the jury, and admitted as a witness for the co-defendants. But in this case Dennis is not a party; though named in the writ he is not declared against, and the jury could render no verdict for or against him. (2 Stark. Evid. pt. 4, p. 765-7 and note.) If plaintiff proceeds to issue and trial against some of the defendanis in trespass, but does not rule the others to plead, the latter may bo

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witnesses for the former. (6 Binney, 319.) And in trespass against three joint trespassers, if two are taken and the other returned not found, the latter is a competent witness for the other two. (Stock- ham; vs. Jones, 10 Johns. Rep. 21 ; 3 Serg. & Rau le 402; 1 Pick. 118 .)

Witness admitted to be sworn.

In the argument to the jury plaintiff’s counsel contended, that Clark had a sufficient property in these logs to maintain trover as against any one but the original owner; that proof of absolute property was not necessary. Having found the logs afloat in the bay, and brought and moored them to the shore, he has full property as against all but the righful owner, who is unknown in this case. (2 Saund. Plead. & F/oid. 879; 1 Strange 505, Jlrmory vs. Delamirie; 2 Leigh’s JVisi Prius 1474-5-6; 1 Chitty PI. 151.)

The defendant’s counsel, contra, argued that if a person find property which is lost, though he be entitled to it as against all others but the rightful owner, yet, if he lose it again and another find it, the second finder has an equal right of property in the thing lost, and is not responsible to the first finder. (1 Chitty PI. 151.) In case of a special property, it must be accompanied by possession to support trover. (1 Black. Com. 297; Finch 177.) In case of an estray, if/ it be not claimed within a year and day, it belongs to the lord; lout) but if it stray into another manor, after three quarters of a year it belongs to the latter, and the first lord cannot take it again.

charged the jury. — The plaintiff must show first, that the logs were his property; and secondly, that they were converted by the defendants to their own use. In support of his right of property, the plaintiff relies upon the fact of his possession of the logs. They were taken up by him, adrift in the Delaware bay, and secured by a stake at the mouth of Mispillion creek. Possession is certainly prima facie evidence of property. It is called prima facie evidence because it may be rebutted by evidence of better title, but in the absence of better title it is as effective a support of title as the most conclusive evidence could be. It is for this reason, that the finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful oioner. The defence consists, not in showing that the defendants are the rightful owners, or claim under the rightful owner; but that the logs were found by them adrift in Mis-pillion ci'eek, having been loosened from their fastening either by accident or design, and they insist that their title is as good as that

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of the plaintiff. But it is a well settled rule of law that the loss of a chattel does not change the right of property; and for the same reason that the original loss of these logs by the rightful owner, did not change his absolute property in them, but he might have maintained trover against the plaintiff upon refusal to deliver them, so the subsequent loss did not divest the special property of the plaintiff. It follows, therefore, that as the plaintiff has shown a special property in these logs, which he never abandoned, and which enabled him to keep them against all the world but the rightful owner, he is entitled to a verdict.

Ridgely and Bates, for plaintiff.

Houston and Booth, for defendants.

Verdict for the plaintiff.