Wilson's Administrator v. Caldwell 2 Del. Cas. 48, Rodney’s Notes

JAMES WILSON’S ADMINISTRATOR v. THOMAS CALDWELL.

Court of Common Pleas. New Castle.

December, 1795.1

Rodney’s Notes.

Levy for plaintiff.

Brought for half of a shallop called Mulberry by Wilson. The question is to try whether half the shallop belonged to Wilson at the time replevin was brought.

William O’Neil, sworn. The Mulberry was built by Ayres and Trainwell for the river business in partnership, and their accounts were settled by men for building and running her, and Trainwell was found in debt about the Summer, 1787. Bill of sale from Isaac Ayre to James Wilson for half of the Mulberry for £60 and cargo, dated January 16, 1789. Vessel was worth £240; cargo was worth £160, that Wilson was to have discounted with Ayres for all he could get for her more than £60. Vessel was supposed to be in Charleston when the bill of sale was made. Trainer was not present. She is in possession of Mr. Combs and Tilton. Trainer objected to settle with Ayres without being allowed for part of the charter money. Vessel brought in by grant. Trainer came in her to New Castle, informed sheriff that the vessel was Wilson’s. She was taken by Trainer as property of Ayres.

Mr. Bayard for defendant.

Motion for nonsuit. That the action was brought for half of an indivisible chattel which his partner or one tenant in common had possession of. Replevin will not lie by one tenant in common against another.

Levy.

That plaintiff brought his action to recover whole and that they were not tenants in common. Litt.Ten. 323. Add. 200. No proof that one moiety of vessel was not in defendant. Sheriff ordered to deliver one moiety, 3 Bac.Abr. 220. One tenant in common cannot bring trover against his companion, 2 Esp. N.P. 348.

Levy.

No proof that defendant has any property in the vessel, therefore no tenant in common. Replevin to try property.

*49 Bayard.

The action should have been brought in the name of Wilson and Trainer.