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 Opinion

Before Pratt, 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)

This case is a staple of modern property textbooks for the proposition that one who finds a chattel is considered its owner against anyone in the world other than its prior and rightful owner.

2. Respondeat Superior

Armory is not considered an important case in the development of the doctrine of Respondeat Superior.

3. Spoliation of Evidence

Armory is considered “one of the first instances of spoliation of evidence. Under this evidentiary rule, courts presume that evidence a party has concealed or destroyed would have been injurious to their case, based on the interpretive canon omnia praesumuntur contra spoliatorem, ('all things' against the spoliator of the evidence). See Ariel Porat, Liability Under Uncertainty: Evidential Deficiency and the Law of Torts 11 (2001); Margaret M. Koesel et al, Spoliation of Evidence ix-x (2006).

Interpellating Armory: Chimney Sweeps and their Apprentices

Legal historian A.W. Brian Simpson has this to say about the problem of tracking down Armory, the chimney sweep's apprentice:

"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."

Short of finding the climbing boy at the center of this case, this section tries to do the next best thing -- to gather as much information as possible that is likely to describe someone in Armory's position.

Relevant Historiography

Kathleen H. Strange, Climbing Boys: A Study of Sweeps' Apprentices, 1773-1875 (1982), Ch. 2

Benita Cullingford, British Chimney Sweeps: Five Centuries of Chimney Sweeping (2001), Ch. 4

Peter Kirby, Child Labour in Britain, 1750-1870 19-20 n.2 (2003)

Peter Kirby offers some empirical revisionism as a corrective to our populist love affair with the picturesque Dickensian and post-Mary-Poppins 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."

Scrotum Cancer

Soot and the chemicals it contained led to a notably high rate of scrotal cancer among chimney sweep's boys.

Brown & Thornton, Percivall Pott & Chimney Sweepers' Cancer of the Scrotum (1957)

Pott's 1775 treatise, Chirurgical observations Relative to the Cataract, the Polypus of the Nose, the Cancer of the Scrotum, . . . [etc.], which includes an account of scrotum cancer among chimney sweepers has been cited as the first description of an occupational cancer:

". . . there is a disease as peculiar to a certain set of people, which has not, at least to my knowledge, been publickly noticed; I mean the chimney-sweepers' cancer . . . it produced a superficial, painful, ragged, ill-looking sore, with hard and rising edges. The trade call it the soot-wart . . . The fate of these people seems singularly hard; in their early infancy, they are most frequently treated with great brutality, and almost starved with cold and hunger; they are thrust up narrow, and sometimes hot chimnies, where they are bruised, burned, and almost suffocated; and when they get to puberty, become peculiarly liable to a most noisome, painful, and fatal disease."

Henry T. Butlin, Three Lectures on Cancer of the Scrotum in Chimney-Sweeps (1892)

Butlin considers possible reasons that chimney sweeps on the continent suffer a much lower rate of scrotum cancer. He hypothesizes that it is owing to protective clothing which varies by local custom that:

". . . in spite of every other condition which may be regarded as favourable to the disease, including the employment of children as 'climbing boys,' it is really almost unknown in those countries."

Walter Jacobson, Diseases of the Male Organs of Generation (1893)

Jacobson argues against Butlin's belief in the protective properties of specialized clothing and also departs from medical consensus holding that improved sweeping technology has reduced the incidence of cancer by allowing one to sweep from below rather than inside the chimney. Instead, Jacobson proposes:

"A more important explanation than the intersection of machinery, is to be found in the fact that chimney-sweeps, being no longer employed in boyhood, the delicate scrotal skin is not exposed so early or so long to the irritation of soot."

Climbing Boys in Literature and Art

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

Here's an image of some climbing boys, still black with soot, tucking into a meal and some ale.

A recent image of a Sweep's Apprentice

Another image

An image of a widow selling her son into an apprenticeship with a chimney sweep.

Paul De Lamerie

Much more is known about the defendant, goldsmith Paul De Lamerie (spelled Delamirie in legal texts). De Lamerie was born in 1688 in the Netherlands to French Huguenot parents. The family soon moved to England. Little is known of De Lamerie's early education, but in 1703 he was apprenticed to Peter Platel, a London goldsmith, for a seven year term. Platel was a well-regarded and elegant silversmith, and de Lamerie was an ambitious apprentice. In 1711, his apprenticeship ended and De Lamerie made arrangements to start his own workshop. By 1713, he had entered his maker's mark at the Assay Office in the Goldsmiths' Hall and gave his address as "in Windmill Street near the Haymarket."

Repeated violations of Goldsmiths' Company regulations are noted throughout De Lamerie's career. In 1714, he was fined for "not having his work hallmarked"; further complaints were filed the following November because the fine remained unpaid. In 1715, he was accused of passing off work made by others as his own. Similar charges were made the next year. By 1717, he was known as the King's Silversmith, but was also named in a complaint for making and selling unmarked wares. In 1722, he was, of course, accused of cheating Armory, the chimneysweep's boy. And in 1726, he was involved in the trial of Robert Dingley, a goldsmith involved in exporting silver to Russia. Dingley was preparing to ship a large number of silver wares when the Goldsmiths' Company tried to intercept his shipment on the suspicion that pieces were not assayed and that the requisite duty was unpaid. Much of the wares, in fact, were unmarked, and around half of the goods were supplied by Paul De Lamerie. Nevertheless, Dingley avoided inspection by distracting Company officials in a tavern while the goods were being loaded and dispatched overseas.

While these violations did not affect De Lamerie's business in any significant way, in his extensive biography of De Lamerie, P.A.S. Phillips refers to Armory v. Delamirie as an "extraordinary incident in his career, which was to bring him into a different sphere of fame, although quite unintentionally and unexpectedly on his part."

[to be continued]

Prior to the lawsuit, De Lamerie's business had been flourishing. In 1717, he was admitted to the livery of the Goldsmiths' Company and would eventually secure the highest post offered by the Company, Prime Wardenship. Evidence introduced in the case revealed that in addition to a workshop, De Lamerie also kept an "open shop for ordinary trading purposes" where he also dealt in jewelry. This is confirmed by a document issued after his death for sale of his stock by auction.

In a recent article, De Lamerie is referred to as a "pioneer of what became the Industrial revolution, operating a workshop or factory with a retail arm; he also began by making all the works that bore his maker's mark himself, then devising a system whereby his designs were manufactured by other craftsmen working under his supervision." De Lamerie designed but probably did not assist in constructing his masterpiece of Rococo style, the Maynard dish.

* Paul_De_Lamerie,_Goldmsith.pdf: "Paul De Lamerie, Goldsmith" from The Burlington Magazine (1920)

* Paul_de_Lamerie.pdf: Review of exhibition, from The Burlington Magazine (1990)

De Lamerie ranks as one of the finest and most prolific silversmiths of his time. Below are links to images of De Lamerie's work:

Shells: 1724-25

Taperstick: 1726-27

Coffeepot: 1728-29

Newdigate: 1743-44

Basket: 1744-45

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.

Here's a 2007 article by a barrister who advocates overturning the Armory rule because negligent lawyers now risk getting caught in a net designed for dishonest goldsmiths.

Occasionally, one can even find an Armory v. Delamirie memorabilia print available for auction on ebay.