THE defendent lost a military certificate, which was his property, and procured a duplicate thereof from the auditor for public accounts, inthe manner prescribed by the statute of may-session, 1783, chap. 1. before the date of the duplicate, another man sold the certificate, then in his possession, to the plaintiff,, who paid a valuable consideration for it, at that time not knowing it to have been lost by the defendent. the duplicate was returned.
These facts were stated in a special verdict, found on a new trial of the issue, in an action of trover, brought by the present defendent against the present plaintiff in the district court of Dumfries ; which new trial this court directed by consent, of parties.
Opinion of the court the day of September, 1794..
A military certificate is transferable by simple delivery of it 5 :and therefore the holder of it is presumed to he the owner, and to have derived a right to it immediately from the officer or soldier to whom it was originaly granted.
But against this presumption proof of the contrary may preponderate : and here is sufficient proof of the contrary.
That the man, from whom the plaintiff bought the certificate,, had acquired a right before the loss, may he confidently denied,, because a jury, whose veracity in such a case cannot be controverted, affirm it at that time to have been the property of the defendent.
And that it was assigned by the defendent afterwards,, is so incredible that it may he denied with confidence justified by these considerations : 1, the plaintiff in his hill doth not al-
ledge such ail assignment to have been made, which undoubtedly he would have alleged, requiring a discovery, if he* had even suspected it to be true ; 2, the defendent procured a. duplicate of the lost certificate, which he must have known to-be worthless if the original should be produced : and which was accordingly returned, to be canceled, when the original was discovered to have been found, and clamed by another 5 and 3, no man, as is supposed, would have bought the lost certificate from the defendent, if he had offered it for sale.
Payment of value for the certificate doth not alter the question, which is only, whether one can transfer a right which he; ¡hath not to another?
Nor is this case like the case of lost money found and paid away, where the identity of the money cannot he proyed. cannot be proved, is said, because where the money can he identified, e. g. if the lock of a casket or chest or seal of a hag in which it was deposited appear not to have been broken, it is not distinguished from the case of any other thing found, or taken from the owner by stealth or violence.
Neither is this case like the case of a bill of exchange with a blank indorsement, which the holder may fill up with his own name, or like the case of an order payable to hearer, by the terms of which those who possess the draughts are empowered to receive the money.
DECREE,
That the plaintiff restore the certificate, with all the interest thereon received, to the defendentor pay the value of the principal money and interest to him ; and also in either case pay the costs.
The causes, for which the plaintiff, by his bill, prayed a new trial, with an injunction in the mean time, to be awarded, were, 1, the jury, without hearing the question of right argued by counsil, and although they were instructed by the counsil of both parties, that the question would be discussed before and decided by the court, and that assessment of the damages, subject to the opinion of the court, was the only matter refered to the jury, nevertheless returned a general verdict for the defendent; and having resumed their seats by direction of the court in order to hear the arguments of counsil, one of the jurors, whilst they were attending to those arguments, being seised with a convulsive paroxysm, was necessarily removed, and was not able to reassociate with his fellows before the term for the courts session ended; notwithstanding all which the cuurt, having rejected a motion for the plaintiff to set aside the verdict, and award another? trial, recorded the verdict, and entered a judgement accordingly. 2, one of the-jurors informed the plaintiff, after having heard what had been urged by his counsil, he the juror was not satisfied with his former opinion, and that he believed, upon a second consideration of the matter, a different verdict would have been rendered, and 3, the damages were alleged to be excessive, whether for these causes or any of them a court of equity ought to have directed a new trial? was not determined in this case, the defendent, without answering the bill, having consented that the new trial be directed, see the cases between Hi.omes and Kuhn, Cochran and Street, and Cobbs and Mosby 28 of October, 1791.
[* Which cases are all in this volume. — Ed.~\
This decree, condemning a plaintiff to pay money to a defendent who had not demanded it by a cross bill, is believed to be supportable upon the same grounds as a decree against a plaintiff bringing a bill for an account, besides, if this court could only have dissolved the injunction, the defendent could have recovered no more than the damages assessed by the first verdict; for the district court could not have entered a judgement on the second Verdict, the action not then depending.
In this cáse W. took two appeals; one from the judgment of the District Court; and the other from the decree of the H. C. C. The Court of Appeals, 1 Call, 435-450, reversed the decree of the H. C. C. in discharging, the appellant from the damages recorded against him, on his delivering up the certificate and paying the interest received, since that option gave him an unreasonable advantage; and in the other alternative, the modification of relief Was improper.
The abstract of the case says:
1. If a military certificate be lost, and after sold to a bona fide purchaser, without notice, still the original owner may maintain trover for it, against the innocent vendee.
2. The Court of Chancery may on granting a new trial in the same Court, order the verdict to be certified into the Court of Chancery and proceed to make a final decree in the cause. See Myers et al. v. Friend et al. 1 Ran. 12; Mayo v. Bentley, 4 Call, 556.