Armorie v. Delamirie (1722) K.B., 1 Strange 505, 93 ER 664

We are at work on this, plz direct comments or help to Carol DeMartino? and Alex Feerst.

The Text

BeforePratt, C.J. at nisi prius.

The plaintiff, being a chimney sweeper's boy, found a jewel, and carried it to the defendant's shop, (who was a goldsmith,) to know what it was, and delivered it into the hands of an apprentice, who, under pretense of weighing it, took out the stones; and, calling to the master to let him know if it came to three half-pence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled:

1. That the finder of a jewel, though he does not by such finding acquire an absolute property right of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

2. That the action may well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect.

3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the docket would be worth; and the chief justice directed the jury that, unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did.

Key Legal Propositions

1. Finders Keepers (except against the prior owner)

2. Respondeat Superior

3. Spoliation of Evidence

Armory is considered “one of the first recorded instances of spoliation of evidence.” Margaret M. Koesel et al, Spoliation of Evidence ix-x (2006).

“The ancient predecessor of the spoliation doctrine . . . is embedded in the legal instruction that urges judges to presume 'all things' against the spoliator of the evidence: omnia praesumuntur contra spoliatorem.” Ariel Porat, Liability Under Uncertainty: Evidential Deficiency and the Law of Torts 11 (2001)

Legal historian A.W. Brian Simpson has this to say about the problem:

"I’ve tried to find out more information about [Armory v. Delamirie], but so far I’ve got nowhere. I’m still trying. But the trouble is that if the people in the case are poor, they tend to leave no trace in historical records. So if you do a case involving fairly wealthy people, you often find information. It’s easier to find information in the nineteenth century, because there are extensive newspaper reports. They often give very detailed accounts of litigation, so you get a lot of information from them, but the further back you go, the more difficult it gets. . . It’s such a strange case. I mean, here’s this chimney sweep boy, they were the lowest of the low, somehow suing – who paid for his lawyer? He’s suing the most distinguished silversmith of the early eighteenth century. The defendant’s work now sells for a million dollars an item. And yet we don’t know anything about how the case happened . . .I’ve [tried to get information on the case] intermittently for years, but I haven’t gotten anywhere. History is sometimes just hopeless. Sometimes you just have to give up."

We plan to do the next best thing and get all available relevant information about this case, with the probable exception of anything specific about the climbing boy at the center of it.

Chimney Sweeps and their Apprentices ("Climbing Boys")

Some empirical revisionism from Peter Kirby on our populist love affair with the Dickensian image of Chimney Sweeps' apprentices:

"Chimney-sweepers' apprentices, for example, loom large in the popular historical imagination but were very small in number. Much of their high visibility resulted from the campaigning of Jonas Hanway in the eighteenth century and Lord Shaftesbury and Charles Kingsley in the nineteenth [in the 1863 novel The Water Babies]. In 1841, the number of sweeps' apprentices aged below 10 in London was estimated by Mayhew to be 370 (at a time when London's population numbered 2.2 million). Hanway estimated that in 1785 there were 400 to 550 climbing boys in London, and an estimate from seven years later supposed their number to be 500. . . According to the census of 1851, there were 1107 British chimney-sweeps aged below 15 in Britain." Peter Kirby, Child Labour in Britain, 1750-1870 19-20 n.2 (2003)

William Blake published two version of his poem "The Chimney Sweep," once in Songs of Innocence (1789) and then in Songs of Experience (1794).

Soot and chemicals it contained led to higher rate of scrotal cancer for chimney sweep's boys; also, alcoholism. Attached are some documents on scrotum cancer in climbing boys.

Sources:

Benita Cullingford, British Chimney Sweeps: Five Centuries of Chimney Sweeping (2001). Kathleen H. Strange, Climbing Boys: A Study of Sweeps' Apprentices, 1773-1875 (1982).

Paul De Lamerie

Armory in Motion

Since it came down, the case has appeared in legal treatises on property, evidence, and tort law, judicial opinions, and case books on property law.