My opinion .is, that the judgement below must be reversed, and that judgement be here rendered in favor of the plaintiffs for the amount of the bank notes sued for, with interest thereon from the date of the demand, which was the issuance of the writ, and in this a majority concuiu
By JUDGE CRENSHAW.Two positions have been- taken in the argument of the Case,'one of which seems.preliminary-to the main question, and which was, whether the Court could compel a party to join in a demurrer to evidence ? The rule, as I am able to collect from the law, appears to be that the Court may compel a party to join in a demurrer to evidence or to abandon his evidence; and that this is a matter altogether within the discretion of the Court.
The main question now is, whether the evidence authorized the judgement of the Court. The facts arising from the evidence appears to be, that the plaintiffs’ slave found the bank bills in question; that they were taken to the Bank by another person, who received them from the slave and delivered them to the officer of the Bank. As applicable to this case, I hold the law to be, that the finder of a chattel acquires at least a special property in the same, and his right is good against all the world, except the lawful owner; that the possession which he acquires by finding is sufficient to enable him to maintain the action of trover against any person who may convert the property except the true owner, and that possession itself is presumptive evidence of right.
I further maintain that, in this country, a slave is in absolute bondage ; that he has no civil right and can hold no property except at the will and pleasure of his master; that his master is his guardian and protector, and that all Vis rights, acquisitions, and services are in the hands of his master; that a slave is not a beast, but is a rational human being, endowed with volition and understanding like the rest of mankind, and that whatever he lawfully acquires and gains possession of, by finding or otherwise, is the acquirement and possession of the master. Thai the negro gave up voluntarily to Pryor and Brown the bank bills whichhe had found,could notdeprivethe master of his right to them, which had previously vested by the finding of the slave ; nor can the circumstance of Brown and Pryor depositing them in the Bank alter the nature of the case ; because the evidence does not warrant the inference that they were credited with the amount, or that the officer .of the Bank who received them, was ignorant who had found the money. The rule is to infer strongly against the party who demurs, but to infer nothing against his adversary, unless the inference be irresistible ? *344because by his act he has drawn the subject from the, jury, who are the proper triors of facts, and inferred it to ^ Court w.ho is the peculiar organ of the law.
gut jn argUment it was objected that the action waa given to the first finder of a chattel, because he is ultimately liable to the rightful owner for its value, whenever he might appear to claim it; and that if it were taken from the slave before it came to the knowledge or possession of the master, in that event he cannot be liable to the rightful owner; and for this reason, the master shall not have the action to recover the value of the chattel. In answer to this objection, it is contended that the finder’s liability to the rightful owner for the value of the chattel, is one reason why the law gives him the action; but another, and perhaps a better reason is, because the finder, by the mere act of finding and taking possession, acquires a right of property against all the world, except the lawful owner, or one who shews a better right. ¡4 disposing of the case before us, it is not necessary to meet this objection; if the law give the plaintiffs a right to the present action, it cannot be material to inquire after consequences which may possibly arise. W hen the-question of the plaintiffs’ liability to the rightful owner arises, we will endeavor to meet and decide it on principles of law. Argument drawn from villeinage under the feudal system, and slavery in ancient Rome, have been resorted to in order to prove by analogy, that the-possession of a slave who finds a chattel, is not the possession of, and vests no right in the master, unless he seize it while in the possession of the slave. The feudal system was peculiar to itself, but under all its rigor the villein or vassal had some civil rights ; but whether he had civil rights or not, the rules of that system as law, can have no application in relation to the condition of slavery among us, nor can the condition of slavery in ancient Rome, however abject, aid us in illustrating the case before us.
The defendants can be viewed in no other light than tort feasors or trespassers, who have got possession of what is not their own ; for there is not a particle of testimony tending to establish a right of property in the Bank, either' qualified or general.
I am of opinion that the judgement should be reversed, and. the proper judgement rendered by this Court for the ■ *345-nominal amount of the bank notes, by way of damages. I say reversed and rendered, because the bank bills are presumed to be worth their nominal amount, in the ab sence.of testimony to the contrary. Judgement reversed and rendered.
Jwdges Taylor and White, not sitting.