
    Davis & Fant, Executors of Webb, vs. Flemming Duncan.
    It is not necessary in order to maintain an action of trover, that a demand and refusal should be proved where the taking' has been tor-tious.
    Lending a negro to a son-in-law, and permitting it to go home with a daughter when she goes to house-keeping, will not be construed into a gift when it has not been accepted and kept by him.
    HP ’ JL HIS was an action of Trover for a negro woman, tried 3,t Winnsborough, Spring Term, 1821.
    It appeared in evidence th’trt the defendant’s wife way the daughter of the plaintiff’s testator. She had been mar» ried to a former husband, and when she first went to keeping house, her father lent her this negro girl; but the hus= band sent her back, and refused' to accept of her upon such terms. He sent her a second time, and the husband returned her again. The father then kept her until his daughter had a child. He then sent her to attend upon her during her confinement. Her husband died shortly after, when she returned to her father’s house, and continued to live with him as one of his family, until her marriage with the defendant. He still continued to live with his father-in-law three or four months before he went to house keeping. He left the house of his father-in-law when he was from home, and took this negro woman with him. The overseer, uilder whose charge she was, forbid him to take her. He, nevertheless, tied her, and took her away. The father-in-law died within a few weeks af-terwards, leaving the plaintiffs his executors. They made a demand of the negro, and the defendant refusing; to deliver her up, this action was commenced. The witness who proved the demand was unable to ascertain the day, so that it was left doubtful whether it was before or after the commencement of the action.
    The counsel for defendant moved for a non-suit, on the ground that the plaintiffs had hot proved any demand before they commenced their action. The motion ,was overruled, and the jury found a verdict for the plaintiffs.
    ■ A motion Was now made for a non-suit, on the grouncj above stated, and also for a new trial, on the ground that the verdict was contrary to evidence,
   Mr. Justice Nott

delivered the opinion of the court.

If the only evidence of conversion in this case had been the refusal to deliver up the property when demanded, the motion for a non-suit would have been entitled to some consideration. But a demand is not necessary when the taking is tortious and unlawful. The manner of taking the property in this case, famished sufficient evidence of a conversion to authorize the plaintiffs to maintain an action.

Bausket, for the motion.

O'Neal, contra.

, The motion for a non-suit therefore, cannot prevail.

The decisions which have so long prevailed in this state, that permitting property to go into the possession of a son or daughter, upon their marriage, and continuing with them, should be construed into a gift, is not to be controverted. And even when it is originally expressed to be a loan, it may, by lapse of time, be considered as having ripened into an absolute gift. But then there must be a continued possession, accompanied with continued acts, of ownership. If the first husband had accepted of the property, and kept it during his life, it might perhaps have admitted of that construction. But he refused to accept it, and never had the possession, except on one occasion, and that for a temporary purpose. The present defendant never pretended to any right in himself.

The motion for a new trial, must therefore be refused.

Justices Colcock, Johnson, Richardson, Huger and Gantt, concurred.  