
    Joseph Ratcliff against William Vance.
    WherQ piloper_ pledge, the POasession of the “fe SoitTiídpií son, and the bailee The proplrty to log Tendered" a. tb^’píeSüe'6^ mfcunt, so that no v™™* can be made, it is Xfof. coi' version to sustain vendee'
    This was an action of trover to recover for ine conversion ol seven negroes. I he negroes ° were the property of William Byrd, and were placed in the hands of the defendant, to remain until a final settlement should take place between him and Byrd, it being admitted that Byrd was indebted to the defendant. The plaintiff, on the ,.¶ -i! /* - i . trial, proved these tacts,' and gave m evidence r 7 o a hill of sale from Byrd to him, dated 10th March, . 1810. It was also in evidence, that they put into the hands of the defendant in 1808; that a suit previous to the present had been brought by the plaintiff against the defendant, for the recovery of the negroes; that ón the trial the plaintiff’s bill of sale was given in evidence, and the defendant thereby apprised of the plaintiff’s title; that a nonsuit was suffered in that action; that afterwards, and before the commencement of the present suit, the plaintiff demanded of him the negroes; that he refused to deliver them up, alleging, that he had a lien on them for the demand he had against Byrd, which he stated generally was between 200 and 300 dollars, but the precise amount of which he did not state ; that the plaintiff offered to pay him the amount he claimed, if he would deliver up the negroes; but that he declared he would not do so if the sum were paid him, and refused under any circumstances to deliver the negroes to the plaintiff The witness to the bill of sale did not see any money paid by the plaintiff to Byrd, nor any bond or note given by the plaintiff to him as the consideration thereof; but the bill of sale recited a valuable consideration.
    On the trial the defendant’s attorney moved for a nonsuit:
    First, Because the defendant had a lien on the negroes for the amount due him by Byrd, and was, therefore, justified in retaining them.
    Second, Because Byrd, being out of possession at the time of the transfer to the plaintiff had only a right of action in himself, and could not, by the rules of Common Law, transfer or assign such right.
    Third, That the plaintiff was bound, when he demanded the negroes, to have shown his authority or title.
    Fourth, That the plaintiff ofifered no evidence to show that the defendant was apprised of the transfer to the plaintiff, at the time of the demand and refusal.
    The presiding Judge refused the motion for a nonsuit, and the Jury found a verdict for the plaintiff.
    The defendant now moves for a nonsuit, on the same grounds as for a new trial; on the ground that the transfer to the plaintiff by Byrd, was fraudulent, as against creditors, Byrd being, at the time, indebted to the defendant.
    
      to trover, any £?mdthf?rSpe£ wSTconvex
    The cause was tried before Mr. Justice Bay, &t Qrangeburgh, in April Terra, 1816.
   The opinion of the Court was delivered by---

Mr. Justice Cheves.

The motion for a nonsuit in this case, I think, Ought not to be granted. The first ground is, that the defendant had a lien on the negroes, and was, therefore, justified in retaining them, until his demand was satisfied. The right to retain, as ageneral rule, in such a case, is very clear; but, if his full demand be tendered to the holder, and he refuse it, he has no ionger a right to retain; and the refusal to deliver, on the tender of payment, is evidence of a conversion. The object of a tender is to establish a conversion. Any act of the deCendant, therefore, which shows that he detains the property for any purpose not justifiable in itself, is evidence of the conversion; and, in this case, the evidence abundantly proves the intention of the defendant to withhold the property from the plaintiff! Though his demand had been paid, he not only would not deliver the negroes on payment of the utmost amount he demanded, but he appears studiously to have avoided giving precision.to his demand, in order that it might not be specifically tendered. I should myself hold, that a refusal, after due notice, to give precision to a like demand, would, of itself, render ,a specific tender unnecessary. And if it could be distinctly seen that nothing was due, a tender was unnecessary of any pretended demand. Now in this case it seems obvious, that nothing was due to the defendant. He did not pretend his demand had ever been more than between 200 and 300 dollars, and he had enjoyed the services of a valuable family of negroes for upwards of six years, at the time the demand was made, which were, at least, equivalent for the utmost amount he claimed.

1st evidence of a demand, in an action of trover, it is not requisite to prove that plaintiff, at the time, exhibited his title to the property, if the defendant were apprised of the title otherwise.

Second, The next ground is, that Byrd, being out of possession, had only a right of action, and, by the rules of the Common Law, could not assign his interest’ in these negroes. In point of fact this ground is without foundation ; the possession of the defendant was the possession of Byrd; his possession was not adverse. But the rule of the Common Law alluded to, has been long since exploded with us. The transactions of every day, in the business of life, at the bar, and in the business of the community, generally, show that it has no longer any authority; it has been wisely exploded.

Third and fourth — The two last grounds are, in substance, the same. They are, that a refusal to deliver is not a proof of conversion, unless the person making the demand, show his authority^ or title, and that the plaintiff did not do so at the time of the demand and refusal, which were given in evidence. It was not necessary that the plaintiff should have exhibited his title, or authority, at the time of the demand made. The defendant had been apprised of it by the previous suit, and by the exhibition of his bill of r J , . sale in that suit, as evidence. Nor was it necessary to have proved any notice to the defendant of the plaintiff’s title, unless the defendant had refused to deliver the property, on the ground of ignorance of the plaintiff’s right. (2 Esp. N. P. 203, Gould's Edit.)

The ground of the motion for a new trial is without even the semblance of plausibility. The sale to the plaintiff was necessarily subject to the claim of the defendant, whatever it might be, who held the property as a pledge for it. The sale could have no tendency to defeat it. The motions for a nonsuit and a new trial must, therefore, both be refused.

Colcock, JYolt, Johnson, and Gantt, J. concurred.  