
    John M. Barber, Ex’r of Daniel Green v. William Anderson.
    Columbia,
    Jan. 1830.
    In trover for goods which had been bailed to the defendant, proof of his refusal to deliver them on demand, after the expiration of the period for which they were bailed is sufficient evidence of a conversion, without shewing that they were in his possession at the time of the demand.
    One who hires goods of the o wnqr, is bound to return them, when the period for which they were hired has elapsed, unless it was otherwise stipulated ; and proof, that they have not been returned, is, it seems, sufficient evidence of a conversion, although there has been no demand. Ob. diet.
    
    The plaintiff in trover does not, by examining a witness to prove a demand and refusal, make the declarations of the defendant, in reply to the demand, evidence, in his own favor, of the facts stated by him, if the plaintiff does not rely upon such declarations to sustain his case, otherwise than to shew, that the goods were not delivered on demand.
    The hirer of goods is bound to, at least, that degree of care, which is exercised by a prudent man in the management of his own affairs: to dismiss a hired slave, with apass, and directions to go home to the master, will not exempt the hirer from responsibility for the loss, if the slave disappears; unless the jury should be of opinion, that the mode of return was, under the circumstances of the case, consistent with the required degree of care and prudence.
    Tried before Mr. Justice O’Neall, at Chester, extra August Term, 1829.
    This was an action of trover for a negro girl, the slave of plaintiff’s testator, which had been hired by him to the defendant. The period of hiring expired on the 14th Dec. 1826, as appeared by a note in writing signed by the defendant. The testator died in September, 1826, and the plaintiff, and another, since deceased, were appointed executors of his will, aud duly qualified soon after his decease. A witness, called by the plaintiff, testified, that early in January 1827, the executors, in his presence, demanded the girl in question of the defendant, who replied, that he had her not in his possession ; but that, at the expiration of her time, he had given her a pass, and sent her home. There was no evidence that the girl had been in possession of the defendant, at any time subsequent to the 14th December, 1826 ; and several witnesses testified, that she had not been in possession of the executors. She was last seen in possession of the defendant, before her time was out, and had since disappeared.
    
      It was further proved, that, about the time when the girl in question disappeared, the defendant had come into possession of another of the same age, which was claimed by the father-in-law of the defendant. The father-in-law was examined by the plaintiff, and testified, that he bought the girl last mentioned, from a pedlar of the name of Hawkins, in the early part of 1827, and that he had hired her to the defendant: he admitted, that he had been compelled to borrow money to pay for his purchase, but denied that he had borrowed any part of it from the defendant.
    The plaintiff having closed, the defendant moved for a non-suit, on the ground that there had been no evidence of a conversion. And the presiding Judge, although extremely unwilling to take the case from the jury, felt constrained to sustain the motion. From the plaintiff’s own shewing, the defendant was rightfully in possession of the girl, until the 14th December, 1826, at which time “ he gave her a pass and sent her home.” This, it is true, was the defendant’s own declaration ; but the plaintiff had made it evidence, and the Court was bound to regard it as true. The evidence of a conversion rested altogether upon proof of a demand and refusal; but such proof could not avail, unless it had been shewn, that the defendant was in possession at the time : which was distinctly negatived by the defendant’s answer to the demand ; and his answer was, in this respect, corroborated by all the evidence in the case. If the plaintiff’s action had been upon the bailment, a totally different question would have been presented. The inquiry would then have been, whether the defendant had taken that care of the property he had hired, which a prudent man would of his own, in sending her home, with merely a pass. In tbat'form of action, too, the plaintiff would have steered clear of the defendant’s statements, and put him to the proof, that he did send her home.
    A nonsuit was, therefore, ordered, which the plaintiff now moved to set aside.
    C. Clark, for the motion.
    Johnston, contra.
    
   Colcock, J.

delivered the opinion of the Court.

In this case we cannot concur with the presiding Judge in the view which he lias taken, either of the law, or the facts. As a general position it is clear that trover will lie in cases of bailment, on a demand and refusal to deliver the goods, after the time expires for which they are bailed. Com. Dig. Actiou upon the Case upon Trover. And in some kinds of bailment trover will lie, even without a demand. Thus, in Durell v. Mosher, 8 Johns. 347, it was decided, that proof of a promise by defendant to return the goods to the plaintiff, and that he had not returned them, is sufficient evidence of a conversion, and a previous demand and refusal, need not be proved. And in the case of Laplace v. Aupoix, 1 Johns. Cas. 406, it was held, that if the defendant in trover admits that he had the goods of the plaintiff, and that they are lost, this is sufficient evidence of a conversion.

Now in every hiring-, the person taking the property, is bound to return it to the owner after the time has elapsed for which it was hired, unless otherwise stipulated. And if this were not the case, yet here there was a demand and refusal. The plaintiff’s witness did testify, that the defendant said, on the demand being made, that he had given the wench a pass and sent her home; and the presiding Judge says he was bound to believe this, by which I understand that he considered it as evidence of a return : but if this were true, it was offered by way of de-fence, and should have gone to the jury. He is mistaken, however in saying, that he was bound to believe it, for the witness was not called to state what the defendant said. He was called to ¡/rove the demand and refusal. The reason why he did not return the negro was matter of defence, as I have before said; and the defendant’s declarations, therefore, were not relied on by plaintiff.

The Judge relies also on the fact that it appeared that the defendant said that he had not the girl in his possession ; and, therefore, that a demand and refusal could not be evidence of a conversion. But I take it that the case of a bail merit differs, in this respect, from the case of an accidental possession by finding or otherwise. There, the demand must be made, whilst the article is in the possession of the person ; but in the case of a bailment, the party is put into possession, and by law, should so remain, until he return the property. If it were not so, where a demand is necessary, the bailee would only have to put the property out of his possession, to avoid an action of trover.

Now as to the, fact. If the evidence had been intentionally brought out by the plaintiff, and were intitled to belief, can the course, which , the defendant alleges that he pursued, be considered as a return of the property 1 This can hardly be admitted, as a general rule : for although the slave may be sent home, ye,i measures may be taken at the same time to prevent his getting there. I do not mean to say, that a case may not occur, in which sucha mode of returning a negro, adopted bona fide, might not excuse a hirer. But it must always be a subject of inquiry for the jury to determine upon. So far as I have any knowledge of the custom on such occasions, the property is always returned by the hirer, or an agent, at the time appointed, and I think this must be the rule in relation to slaves, as it is in relation to other goods. If the power of volition be relied on as a reason why they may be returned in this way, I think it is obviously a two-edged sword, for if they may go home, so they may go elsewhere. When we consider the nature, and value of this species of property, I think that, at least, that care which is exercised by a prudent man in the management of his own affairs ought, in all cases, to be required ; and whether this has been done, must depend on a variety of circumstances. The nonsuit was improperly ordered, and , the motion to set it aside is, therefore, granted.

We do not, of course, mean to determine any thing as to the defence.

Johnson, J. concurred.

Nott, J. absent, from indisposition.

Motion granted.  