
    
      James Burney vs. William E. Pledger.
    
    In trover the defendant is liable for the value of the property at the time of the conversion; and the death or destruction of the property after the conversion will not affect such liability.
    
      Before Richardson, J. at Marlborough, Bpring Term¡ 1832.
    Trover for the conversion of a slave. The conversion (demand and refusal) occurred on the 17th July, 1828, and the slave died in the possession of the defendant, about the 17th March, 1830. The only question made, was as to the amount of damages. When converted, the slave was worth from $350 to $400, and his hire from $35 to $60 per annum. His Honor instructed the jury that the true measure of damages was not the value of the negro at the time of the conversion, but his value for the term of twenty months, during which time the defendant had the possession of the negro previous to his death. The jury found for the plaintiff $60, and the plaintiff appealed, on ground of error in the charge of the presiding Judge.
   Curia, per

O’Neall, J.

In an action of trover, the conversion is the gist of the action, and for it the plaintiff is entitled to recover, by way of damages, the actual loss which he has thereby sustained. This defendant refused to deliver on demand, the slave of the plaintiff; he kept him and had the benefit of his services for twenty months, at the end of which time he died. The inquiry out of these facts, under the general rule stated, is, what is the actual loss to the plaintiff arising from the conversion of the defendant ? The value of the slave at the time of the conversion, with interest from then until the trial, or hire until his death, is the obvious answer. For if the defendant had not converted the slave to his own use, the plaintiff might have sold him, and thus realized in money his price ; or it may be that if he had been in his possession, he might still be alive. Let these possibilities be, however, as uncertain and conjectural as they may be, still they serve to shew that the defendant ought not to be benefilted by the death of the slave. He is a wrong doer, and for his wrongful act the plaintiff has the right to demand compensation in damages, either for the value of the property at the time of the conversion, with hire to the death of the slave, or with interest to the trial; or for the value of? the property at the time of the trial, with hire from the conversion, as maybe most beneficial to him. This rule.is sustained by the cases of Kid vs. Mitchell, 1 N. & McC. 334, and Hatton vs. Banks, lb. 223, note. The last of these cases is precisely the case now before the court; some of the negroes died after the conversion, but before the trial — the jury found their value, with interest from the conversion to the verdict, and it was held by the Constitutional court to be a correct finding. Judge Nott, who delivered the opinion, in speaking of that part of the case, says, “ The defendant is not to be benefitted by his own wrong; neither can the rights of the plaintiff be affected by the death or destruction of the property after demand and refusal.” The plaintiff in this case is entitled to a verdict for the value of the slave at the time of conversion, with either his hire until his death, or the interest on the value from the conversion until the verdict, as he may elect.

The motion for a new trial is granted.

Johnson and Harper, JJ. concurred.  