
    Richard W. Hutchinson, Administrator of James S. Moor, v. William J. Bobo
    Columbia,
    May, 1830.
    After pleading to the merits in an action brought by an administrator in hie representative character, the defendant cannot require the production ot the letters of administration: and the rule is the same, whether the action be ex delicto, or ex contractu. — vide Brockington v. Vereen, ante, 447.
    A horse, which had been confided by the owner to an ^ agent, for a particular purpose, was levied ou, and sold, under execution, as the property of the agent; the defendant, having notice of the rights of the owner, became the purchaser, and afterwards sold the horse to another person. Held to be a conversion, and that proof of a demand and refusal were not necessary to charge the defendant in an action of trover.
    Any use, or disposition of a chattel, without the consent of the owner, and inconsistent with his rights, is a conversion.
    Tried before Mr. Justice O’Ngall, at Union, Spring Term, 1830.
    This was an action of trover for a horse; wherein the plaintiff declared for a conversion in the life time of his intestate. The defendant went to trial on the general issue. It appeared in evidence, that the horse, which was a valuable stallion, had been confided by the intestate, James S. Moor, to one Rolla Alexander, to be let to mares in different parts of the country ; and for his services Alexander was to- receive a share of the profits. Whilst in his possession, the horse was levied on, and sold, under execution, as his property, by a constable; and at the sale was purchased by the defendant, who afterwards sold him to anothei person, by whom the horse was removed to Georgia. At the time of the sale, the defendant had full notice :>1 the rights of Moor, and of the terms, and purpose, for which the horse had been put into the possession of Alexander. Moor subs- quently brought an action to recover the value of the horse 'from the defendant; but tile suit abated by Moor’s death, and whs now renewed by the plaintiff, as his administrator.
    The presiding Judge sustained a motion for a nonsuit, on two grounds: 1. That the plaintiff had not produced his letters of administration; and therefore had not shewn a title in hirns. If to maintain this action. 2. That there was no evidence of a eon-version. On the latter ground his Honor ruled, that the defendant purchased all the rights of Alexander, as the horse was sold tinder execution as his property ; and he was therefore intitled to keep the horse, until a demand made by the real owner: and no demand having been proved, there was no evidence of a conversion.
    The plaintiff now moved to set aside the nonsuit, on the grounds: ^
    1. That after pleading to the merits, the defendant was not intitled to call for the lelters of administration.
    2. That the evidence of a conversion was full and complete, and no evidence of a demand was required in law.
    B. M. Pearson, for the motion.
    ° On the first ground, cited Saunders on Pleading and Evidence, 503, 872. Com. Dig. Pleader, 2 D. 10, 14. and Thynne v. Protheroe, 2 Maulé & Selw. 553. On the second, McOombie v. Davies, 6 East. 538. Baldwin v. Cole, 6 Mod. 212. Perkins v. Smith, 1 Wilson, 328. Stephens v. Elwali, 4 Maulé & Selw. 259. Executors of Webb v. Flemming, 1 M‘C. 213. Jones v. Dugan, lb. 428.
    Herndon, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The case of the Executors of Warner v. Condy & Raguet, 4 M‘C. 344, is decisive, that, after a plea to the merits, a plaintiff suing as administrator, is not bound to produce his letters of administration. Such a idea admits the character in which he sues, and consequently all the rights which attach to it. That, it is true, was a case arising ex contractu, but the principle is equally applicable to actions arising ez delicto, as is well illustrated by the case of King v. Ferguson, 2 N. & M. 588. That was an action of trespass to try titles to land, and after plea to the merits, the Court refused to permit the defendant to plead» in abatement, that one of the plaintiffs who sued as a feme sole, was covert.

I am of opinion also, that the conversion of the horse was fully proved. The rule, as I understand it, is, that any use, or disposition, of a chattel, without the consent of the owner, and inconsistent with his rights, is a conversion; and the authorities cited at the bar, I think clearly establish it. Here, the horse was taken out of the possession of the intestate’s agent, without his consent; and the defendant, with a knowledge of the intestate’s rights, purchased, and disposed of the horse to another. This was a disposition and use, without the consent of the owner, and inconsistent with his rights, and therefore a conversion.

It is said, however, that the horse was sold under execution as the property of Alexander, the agent, and that defendant having beconie the purchaser, succeeded to all his rights, and was intitled to keep possession until demand made; and that he had the right to do all other acts which the agent might do. Admit this to he true; yet if the agent had sold him, that, according to the rule, would have been a conversion. But it is not true, that the defendant acquired even the right of possession under his purchase. The owner had confided the horse to Alexander, to be kept for a particular purpose, and it was an authority which he had no right to delegate to another. Taking him out of his possession, with a knowledge of these circumstances, even with his consent, would have been a wrong done to the owner. The plaintiff is therefore intitled to a new trial, on both the grounds.

Motion granted.  