
    
      J. M. E. Sharp vs. J. F. Nesmith.
    Plaintiff, intending to cany off tbe negroes and defeat tbe interest of those in remainder, purchased them, colorably; from tbe life tenant: defendant for tbe purpose of defeating that intention and protecting the interest of those in remaindor, seized tbe negroes:— Held, that such seizure was no conversion.
    
      Before Frost, J., at Kingstreé, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “This was an action of trover for one young woman and her child, and two other young women, and a girl.
    
      “ Thomas R. Greer, (the son of Elizabeth Gibson,) testified— That the negroes in dispute were in the possession of his mother, Elizabeth Gibson, and had been bequeathed to her for life by her deceased husband, George Gibson. The plaintiff purchased the negroes'from the witness. Elizabeth (¡xibson told the witness to do as he'pleased with the, negroes. The plaintiff took possession. The witness did not know if his mother knew of it.
    “ X. His mother did not know he had sold the negroes. He never spoke to her about the sale. He supposed he had liberty to sell them. He had no instructions from his mother to do so. He supposed he had an interest. The negroes were delivered to the plaintiff’s agent, in daylight, at Elizabeth Gibson’s. The plaintiff afterwards took possession of them. The witness lived near Lynch’s Creek ferry. The negroes were carried over the creek by the witness and plaintiff, the night of the day they were sold. The plaintiff paid before he got over the ferry. One of the negroes got away. The plaintiff paid only for those that crossed the creek. He agreed to pay for the one escaped, but had not done so. The plaintiff is a negro trader, who lived in Columbia. The plaintiff knew the witness sold only a claim, and was to run all risks. These were the negroes put in jail by the defendant. The sale was made in August, 1850. Negroes all ran away from plaintiff immediately after the sale.
    “ Footman, proved that the defendant put the negroes in jail, for safe keeping, about the 20th August. Elizabeth Gibson married one Dukes, in June, 1851.
    
      “ For the defence, the original will of George Gibson was produced in evidence. On the will the Ordinary had endorsed the probate of it before him, by one of the attesting witnesses. The will was recorded, in the will book. At the time of the trial, the Ordinary’s office was vacant by the death of the incumbent. Mr. Scott the Clerk of the Court, who had charge of the Ordinary’s office, testified that he had made search, but could not find any book of probates. The endorsement of the probate was dated 6th April, 1847. Against the objection of the plaintiff’s attorney, the probate of the will was received in evidence, and the will was read. By it, George Gibson bequeathed the negroes in dispute, and two more, to his widow, Elizabeth Gibson, for life, or widowhood; and, after her death or marriage, to the testator’s daughter, Mary Jane Graham, for life, and after her death to her surviving children. On the 6th August, 1850-, Mary Jane Graham and her two infant children filed a bill in the Court of Equity against Elizabeth Gibson and the plaintiff, setting out the will of George Gibson, and charging the sale to have been made by Elizabeth Gibson to the plaintiff, to enable him to run the negroes out of the State, and thereby defeat their interest, in remainder, in the slaves • and praying an injunction to restrain Sharp from carrying the slaves out of the jurisdiction. The injunction was granted by the Commissioner the day the bill was filed. The bill was taken pro con/esso against the plaintiff. Elizabeth Gibson answered and admitted the sale of her interest in the slaves to the plaintiff, but denied any fraudulent intention. In March, 1851, a decree was filed, continuing the injunction, and ordering that the defendants should give security for the forthcoming of the negroes. Another Nesmith had been appointed executor of the will of George Gibson, but had renounced. Administration, with the will annexed, was granted to the defendant, in February, 1848. The writ of injunction had been served on the plaintiff by the sheriff. While the negroes were in jail, Armstrong, as agent of the plaintiff, demanded the negroes of the sheriff. When the defendant was informed of the demand, he instructed the sheriff to deliver the negroes to the plaintiff, when the plaintiff had given security for the forthcoming of them. The sheriff informed Armstrong of the defendant’s directions ; and he declined to give the required bond. The required security was never given. It did not appear when the negroes got out of jail. The litigation was ended by some arrangement between Mrs. Gibson and Mrs. Graham, whereby Mrs. Gibson retained one or two of the negroes, and Mrs. Graham took the rest. The plaintiff never took possession.
    “The jury were instructed that, by the marriage of Elizabeth Gibson with Dukes, her interest in the negroes was determined, and the plaintiff’s cause of action reduced to a claim for damages for the temporary conversion of the negroes by the defendant, from the 20th August, the date of his lodgment of the negroes in jail, to June, 1851, the time of Elizabeth Gibson’s marriage with Dukes ; and that the right of the plaintiff to recovery depended on .proof of his purchase from Elizabeth Gibson of her interest in the slaves, and of the defendant’s conversion. The question of the purchase was submitted to them on the evidence. On the subject of conversion, the jury were instructed that it might be committed by any unwarrantable interference with the property of another, in derogation or defiance of his right of property ; but that such interference must be in derogation of the right of property. For if a bailee, for a special purpose, should carry off the subject of the bailment, with intent to commit a larceny, any person might seize the property in behalf of the owner, for the purpose of restoring it to him, and such interference would not be a conversion. It was submitted to the jury, on the evidence, whether the purchase by the plaintiff, from Elizabeth Gibson, of her interest in the slaves, was bona fide. If it were so, the defendant’s interference was a conversion, and the verdict should be for the plaintiff. But if the plaintiff’s purchase of her interest was not honest, but colorable only, and designed to enable the plaintiff to carry off the slaves, and defeat the interest of those in remainder, that the seizure of the slaves by the defendant, for the purpose of defeating that design, and rescuing the slaves for the use of those in remainder, did not amount to a conversion. The circumstances that would give character to the plaintiff's purchase were submitted to the jury. They found for the defendant.”
    The plaintiff appealed, and moved for a new trial, on the following grounds:
    1. Because his Honor erred in instructing the jury, that unless the sale by Elizabeth Gibson to plaintiff of her interest in the slaves was bona fide, and that it was with a view to remove the slaves from the State, that it was no conversion for the defendant to take the slaves and detain them.
    2. Because the defendant was a party by making affidavit.to the bill filed against plaintiff and Mrs. Gibson, and had notice of the order of injunction, and was not authorized to deliver the slaves while process was pending, to compel plaintiff to give security; and his act in detaining the slaves was a conversion.
    3. Because the plaintiff established not only a sale, hut a conversion, on the part of the defendant; and the verdict was contrary to law and evidence.
    
      Harllee, McKnight, for the motion,
    cited, Com. Dig. Action on Case, Trover-Conversion, E.; 1 N. & McC. 592; 7 Johns. R. 302; 8 Johns. R. 445; 1 McC. 428; 1 Bail. 193, 546 ; 1 Rich. 318.
    
      Rich, contra,
    cited, 4 Esp. R. .165; 2 Stark, on Ev. 847 ; 2 Mill, 78 ; Harp. 279.
   Per Curiam.

This Court concurs with the presiding Judge in his instructions to the Jury. Their verdict is entirely satisfactory. The motion is dismissed.

O’Neall, WaRdlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  