
    Josiah T. Crawley, Administrator of B. J. Crawley, v. William Littlefield.
    Intestate died in 1824—grant of administiation was made to plaintiffin 1844? and suit commenced the same year. The count in the declaration undertook to allege a trover in the lifetime, and a conversion of certain negroes after the death of the intestate: but after alleging the trover in the lifetime, it proceeds to allege, first, a demand of the intestate and refusal of the defendant to deliver—second, the death grant of administration, a demand by the administrator, and refusal of the defendant—and third, that afterwards “the defendant still continued the said negroes, which he had converted, as aforesaid/’ in his own use, and to his own behoof, to the damage of the administrator. Held, that the declaration was insufficient: that it might have been possible to hold a demand and refusal, as evidence of conversion, but not as a conversion iiself—and that, if the final averment had been of a distinct conversion, to sustain the declaration after verdict; but when the final averment was only that “the defendant continued the negroes which he had converted as aforesaid,” it was impossible to avoid the conclusion, that, either no conversion was positively alleged, or it was alleged to have taken place in the lifetime of the intestate.
    
      Tried before Mr. Justice Wardlaw, at Spartanburg, Fall Term, 1846.
    Trover for two negroes, Phillis and Granville. The first count, alleges a trover and conversion in the lifetime of the intestate: the second, alleges a trover in the lifetime of the intestate, and perhaps a conversion too^—but it seems intended to allege also a conversion after his death.
    The pleas are, the general issue and the Statute of Limitations.
    It appeared that in the fall of 1822, the intestate left Virginia with some negroes, and shortly afterwards was at the house of the defendant, in Spartanburg district, with the woman Phillis and three boys, her sons, of whom Granville is one; that he remained about the defendant’s for eighteen months or two years» except occasional absences in excursions of one or two months to the Indian nation, in the upper part of Georgia: that about March, 1824, the intestate, with his carryall and horse, went to Augusta, in company with the defendant and a neighbor, both of whom had wagons loaded with cotton, and from Augusta the intestate started for the Indian nation. There was no distinct evidence of the intestate’s having been afterwards seen, until the night previous to his final disappearance, when it appeared that he came to the defendant’s, riding on horseback. That night or next morning, (some time about October, 1824,) he disappeared, and has never been heard of since. Contradictory statements made by the defendant, in his endeavors to account for the cause and manner of the intestate’s disappearance, were in testimony on the part of the plaintiff: and testimony was adduced by the defendant, to show that the intestate rode off quietly, which is inconsistent with any of the statements before made. Some other circumstances, intended to increase or to remove the suspicion that the intestate had been foully dealt with by the defendant,—(which was openly charged by the plaintiff) were brought forward on either side.
    From the intestate’s first arrival at the defendant’s, until his final disappearance, and ever afterwards, the negroes in question were in the possession of the defendant. At first, as appeared from declarations of the defendant, shewn by the plaintiff, they were left to work for their board. The defendant adduced testimony of subsequent declarations, made by the intestate, that the negroes had been sold to the defendant—and that various payments had been made for them. In some of these declarations, an absolute sale seems to be contemplated; in others, a sale, with a verbal mortgage for the price, or a contract, under which the defendant, had lor a time the right to buy the negroes, at a stipulated price, if he could raise the money. Alter the disappearance of the intestate, the defendant claimed the negroes as his own; whether he had done so before, and if so, how long before, were left uncertain. The grant of administration to the plaintiff, was made 29th July, 1844, and this suit was commenced 5th August, 1841.
    In the course of their arguments to the jury, the defendant’s counsel relied upon the proof which had been made, as they conceived, of the sale; upon the Statute of Limitations, and upon the insufficiency of the declaration to authorize a recovery for a conversion made since the death of the intestate:—which was, as they contended, the only conversion that could be, for want of an administration, protected against the Statute of Limitations.
    His Honor instructed the jury:—■
    That if there was an absolute sale, then the plaintiff could not recover in this action, whether the purchase money had been paid or not.
    That the Statute of Limitations would bar the recovery, if the limited time after the cause of action arose, had expired, and the cause of action had arisen in the lifetime of the intestate; no subsequent disability would arrest the Statute, as to personalty, if it once began to run: but the lapse of time between the disappearance or death of the intestate, and the grant of administration, would not constitute a statutory bar, if the cause of action did not exist in the lifetime of the intestate.
    That the death of the intestate would be presumed to have taken place at the end of seven years, from the time he was last heard of, if no circumstances fixed another period; but the jury might find that the death occurred at an earlier period, if circumstances led them to that belief.
    
      That if there was not an absolute sale, but a sale with a mortgage, then the cause of action arose when the condition of the mortgage was broken; and if that took place in the lifetime of the intestate, the action was barred.
    That if, under any other form of contract, the defendant made a conversion, for which a cause of action arose to the intestate in his lifetime, this action was barred.
    That if the negroes were entrusted to the defendant, as bailee, and were afterwards, without change of the relation between the parties, held by the defendant, with acknowledgement of the intestate’s right, then no cause of action arose to the intestate, and no statutory bar existed, unless the defendant, before the disappearance of the intestate, or afterwards in his lifetime, asserted an adverse title.
    That if the jury found that there was an absolute sale, they need proceed to no further inquiries, but must find a verdict for the defendant: the plaintiff however having shewn property in the intestate, the onus of proving the sale, was on the defendant; and if he had not satisfied the jury of that fact, they must proceed to the next inquiry.
    That if there was a sale with a mortgage, and a breach of the condition before the disappearance of the intestate, they need proceed no further, but must find for the defendant: so they must find for the defendant, if under any other form of contract there was a conversion and cause of action before the disappearance; or even if there was, before the disappearance, under a bailment, an open assertion of adverse title.
    Bat, if there was no absolute sale, and no conversion before the disappearance, the declaration might be regarded by the jury, as sufficient to authorize a recovery for a conversion, after the death of the intestate: and then, in deciding whether the breach of condition, if there was a mortgage,—or the conversion, if some other kind of contract,—ortho assertion of tule, it only a bailment,—occurred in the lifetime of the intestate, it might become material to examine the circumstances, supposed to show when the intestate died—in effect, to inquire whether the intestate died on the day of his disappearance.
    He submitted the various questions of fact, arising under these propositions, and explained the different propositions with great care.
    The jury found for the plaintiff, fifteen hundred dollars. The defendant appealed and moved for a new trial, on several grounds, of which, the two following only were considered in the opinion of the Court, viz:
    Because his Honor charged the jury, that the second count in plaintiff’s declaration, was a good one, charging the conversion to have been after the death of plaintiff’s intestate.
    And because his Honor erred, in charging that if the conversion was after the death of his intestate, the plaintiff could recover on the second count of his declaration.
    Henry, for the motion.
    Bobo, contra.
    
   Wardlaw J.

delivered the opinion of the Court.

This Court is satisfied with the instructions given to the jury, except those concerning the declaration. The great doubts which were expressed on the circuit of the sufficiency of the declaration to authorize a recovery for a conversion after the death of the intestate, have, upon a careful examination here, increased to a full concurrence on my part in the opinion which all my brethren entertain, that the declaration is insufficient.

The first count alleges only a trover and conversion in the lifetime of the intestate, which the Statute of Limitations has long since barred. The second undertakes to allege what ought to have been alleged—a trover in the lifetime and a conversion after the death of the intestate; but after alleging the trover in the lifetime, it proceeds to allege, first, a demand by the intestate and refusal of the defendant to deliver; second, the death grant of administration, and a demand by the administrator, and refusal of the defendant; and third, that aftewrards, “the defendant still continued the said negroes which he had converted as aforesaid, in his own use, and to his own behoof, to the damage of the administrator.”

It might have been possible to hold a demand and refusal as evidence of conversion, and not as a conversion itself—sur-plusage which should not have been introduced: and if the final averment had been of a distinct conversion, to sustain the declaration after verdict. But when the final averment is only that “the defendant continued the negroes, which he had converted as aforesaid,” it is impossible to escape the conclusion that eith:r no conversion is positively alleged, or it is alleged to have taken place in the lifetime of the intestate.

The jury ought not then to have been instructed, that, in reference to the Statute of Limitations, they could take into consideration a conversion after the death of the intestate, The present motion is only for a new trial, and both parties seem to desire that another investigation of this mysterious transaction should be fairly had.

It is therefore ordered that a new trial be granted, and that the plaintiff have leave at Iris own cost to amend his declara-ration, by adding one or more counts on or before the first Monday of March next, and posting the rule to plead as usual.  