
    Thomas B. Hoover v. Stephen H. J. Alexander.
    Columbia,
    May 1830.
    Proof that the plaintiff's runaway slave was seen at work in the defendant’s field, the defendant not being present, and that he was also seen in the company of defendant, when not at work, is not sufficient evidence of a conversion to go to a jury. Nor is a demand and refusal after the slave had gone out of the defendant’s possession any evidence of a conversion.
    Tried before Mr. Justice O’Neall, at York, Spring Term, 1830.
    Trover for a slave.
    The slave had been the property of defendant’s father in his life time, but after his death was sold by the sheriff, and subsequently purchased by the plaintiff. After remaining in plaintiff’s possession a few days, the slave ran away, and was seen for some time lurking about a place rented by the defendant, and where he and his mother resided. He was seen a few times, and for a few hours, at work in the defendant’s cotton-patch, but the defendant was not present on either of these occasions. He was also seen once or twice in company with defendant, but was not then at work. After a short time, Alfred Alexander, an elder brother of the defendant, who Jived in Georgia, and to whom their father had bequeathed this slave, by his will, seized him and took him out of the Stale. The plaintiff subsequently demanded the slave of defendant, who replied by asking what the plaintiff'had to do with the slave, and how lie came to own him.
    The presiding Judge ordered , a nonsuit. A conversion may be proved in three ways: 1st, By a tortious taking. 2d, By any use, or appropriation to the use of the person in possessi- >n, indicating a claim of right in opposition to the rights of the owner. 3d, By a refusal to give up possession to the owner on demand. Now there was no pretence of a tortious taking in this case; and there was as little proof of any appropriation to defendant’s use. The slave was seen at work in defendant’s field, but there was no evidence, that this was with the knowledge or consent of the defendant. It was fair to infer, that it was a free-will service, rendered by the slave to the widow, and child, of his deceased master. His being seen in company with the defendant, when not at work, was certainly no evidence of an appropriation of his services to the defendant’s use. The demand made after the slave (was out of the possession of the defendant, and when therefore the defendant could not give him up, would not render his refusal a conversion, or evidence of a conversion. Upon the whole, the evidence might perhaps enable the plaintiff to maintain an action for harboring, hut it was not sufficient to sustain the action of trover.
    The plaintiff now moved to set aside the nonsuit; on the ground, that there was sufficient evidence of a conversion to have gone to the jury.
    Williams, for the motion.
    Hill, contra.
    
   Colcock, J.

delivered the opinion of the Court.

We concur with the presiding Judge in his view of this ease. There was no evidence of a conversion ; and had the jury been permitted to decide on the question, aud they had found a verdict for the plaintiff, it must 'have been set aside as being without evidence.

Johnson, J. and Evans, J. concurred.

Motion refused.  