Drummond v. Hopper

4 Del. 327

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

Booth, Chief Justice,

charged the jury.—The action of replevin lies in cases only where the property has been taken tortiously or unlawfully from the possession of the plaintiff. The declaration charges an unlawful taking.

The defendant pleads, 1. That he did not take the property in manner and form as the plaintiff alledges; 2. That the property was in himself; 3. That it was in some third person.

If the defendant has maintained any one of these defences he is entitled to the verdict of the jury.

The question is, to whom did the horse belong ? If it belonged to Wesley Drummond, the plaintiff cannot recover.

The first evidence of personal property is possession. If this young man was in the possession of the horse; holding himself out to others as the owner; and acting as the owner; the presumption of law is, that he was the owner. If he traded away this horse with the defendant in exchange for another, and delivered it to the defendant, (although he got the worst of the bargain) there being no fraud practiced by the defendant, the taking was not tortious, and in such case this action will not lie, but the plaintiff’s remedy would be in another form of action. If, however, the plaintiff was the actual owner of the horse, and her son unlawfully took the horse from her possession, the unlawful taking continues in every place where the property is detained.

If Wesley Drummond was the bailee of his mother, that is, if the horse was lent to him, or delivered to him for any special purpose, and he delivered the horse to the defendant under contract, the defendant’s taking is not unlawful and this action will not lie. If it appears to the jury that this young man was made drunk by the defendant, or if he was in a state of intoxication, whether by the means or procurement of the defendant or not, and thus rendered incapable of the exercise of reason, and while in such condition the alledged contract was obtained by the defendant, the contract was fraudulent and void, and would give no right of possession of the horse.

A possession thus acquired under such pretended contract, which in itself, would be illegal and void, could in no manner protect the defendant in this action, if it appears that Mary Drummond was the unequivocal owner of the horse. We are inclined to the opinion that a possession thus acquired would be an unlawful taking, and would entitle the plaintiff to recover in this form of action. And we believe this to be an extension of the common law doctrine, for it is a settled principle in the English courts, that to sustain the action of replevin the plaintiff must make out a case of unequivocal possession in himself and of a taking by the defendant.

Wales and Wolfe, for plaintiff. Rogers, for defendant.

The plaintiff had a verdict.