## Facts

- Thomas Clark found ten white pine logs floating in Delaware Bay after a major freshet.
- Clark took up the logs and secured them by mooring them with ropes at the mouth of Mispillion Creek.
- The logs later came into the possession of John Maloney, who refused to return them and claimed he had found them adrift and floating up the creek.
- Clark sued in trover to recover the value of the logs.
- James Dennis was named as a defendant in the writ but was not taken and no declaration was filed against him; Maloney sought to call Dennis as a witness.

## Issues

1. Whether a first finder who took possession of lost chattel and later lost physical control without abandonment retains a superior right to possession over a second finder, sufficient to maintain trover.
2. Whether a person named as a defendant in the writ, but not taken and not declared against, is a competent witness for the remaining defendant.

## Decision

- The court held that a finder acquires a possessory property interest good against all except the true owner.
- The court held that the first finder may maintain trover against a second finder even after losing the chattel again.
- Judgment was for Clark.
- The court admitted Dennis as a witness because he was not a party against whom a verdict could be rendered.

## Legal Principles

- The finder of a chattel has a property interest sufficient to keep it against all but the rightful owner.
- A first finder’s superior possessory title is not extinguished merely by a subsequent loss of possession, absent abandonment; the first finder may sue a later finder in trover.
- A person included in the writ as a defendant is a competent witness if the person is not taken and is not declared against, such that no verdict can be rendered for or against that person.

## Conclusion

The court recognized relative title among finders by holding that the initial finder who reduced lost property to possession and did not abandon it has a superior claim over a later finder and may recover in trover, and it also ruled that a named but undeclared defendant is competent to testify for the remaining defendant.


Clark v. Maloney, 3 Del. 68 (Del. Super. Ct. 1840)