
    R. A. and J. D. Pettigru v. Moses Sanders and George M’Coll.
    If a party permit his own witness to testify to the existence and contents of a ' * * document, which ought to be produced, and neither object at the time, nor call for the production of the document, he cannot afterwards object, that parol evidence of the existence of the document was inadmissible.
    Trover will not lie for goods taken out of the possession of the plaintiff under a search-warrant, without proof of a demand and refusal, or other evidence of a conversion subsequent to the taking. The taking itself is not tortious, and trespass would not lie either against the officer executing the warrant, or his assistants. If the party who obtained the warrant acted maliciously, and without probable cause, the plaintiff’s remedy is by special action on the case.
    Tried before Mr. Justice Evans, at Darlington, Fall Term, 1831.
    This was an action of trover for cotton, in which the plaintiffs were nonsuited. The merits of the case will be fully understood from the following report of the. presiding Judge:
    “Wester Whiddon, the only witness examined, testified, that the defendant, Sanders, having had some cotton stolen from him, as he alleged, took out a search warrant, which was delivered to witness, who was a constable, to be executed. The cotton was described to him as having been first packed in round bales, and afterwards re-packed in square bales. He found in the possession of the plaintiff, J. D. Pettigru, about 350lbs. of ginned cotton, which corresponded with the description given by Sanders. It was then loose, the bagging and rope having been removed. M’Coll accompanied witness, and claimed the cotton as Sanders’; and Sanders, who was sent for, also claimed the cotton as his. The witness took possession of the cotton, and removed it; and having no place where he could safely keep it, he deposited it, with Sanders’ permission, in the gin-house, or store, of the latter, where it still remained. Witness regarded the cotton as still in his custody, and under his control. I nonsuited Jhe plaintiffs ; and subsequently received notice of appeal, on the grounds annexed to this report.
    
      “ On the first ground I have only to remark, that I certainly would not have suffered parol evidence, of the existence and contents of a search-warrant, to be introduced, if it had been objected to. But all the evidence on the subject, came from . , , , the plaintiffs own witness ; and was brought .out on the examination in chief, not on the cross-examination : and I never heard of the objection, until I saw the notice of appeal, several days after the trial.
    “I ordered the nonsuit, because the plaintiffs had produced no evidence of a conversion. A conversion is usually proved in one of three ways : 1st. By proof of a refusal to deliver on demand. 2nd. An actual appropriation to the defendant’s use. 3rd. An originally tortious taking. There was in this case no pretence of a demand and refusal, or of an actual appropriation of the cotton to the use of the defendants; and they were not liable, therefore, unless the original taking were tortious. But the taking and carrying away was by the constable. The defendants were present, as it was very proper they should be, to identify the cotton. If they can be made liable, they can only be so as assistants of the constable. But the constable is protected by his. warrant. After demand of the keys, a constable, in executing a search-warrant, may break the locks of doors and boxes, and is not liable, even if the goods are not found. 1 Chitty’s Crim.Law,66. If the constable is justifiable, I presume his assistants are. If the party taking out the warrant acted maliciously, and without probable cause, he would be liable in a special action on the case, but not in trespass. 1 Ch. Cr. •L. 66. If not liable in trespass, he is not liable in trover, for the taking. Either action will lie for a tortious taking, and a recovery in one would bar the other. Johnson ads. Packer, 1 N. & M. 1. When goods, alleged to have been stolen, are taken possession of under a search-warrant, the officer is to keep possession until restitution ordered. -1 Ch. Cr. L. 67. And this is the first attempt, that I have known, to recover the goods by a civil action, whilst a criminal proceeding was pending for the larceny.”
    The plaintiffs now moved to set aside the nonsuit, on the following grounds.
    1st. That his Honor erred in receiving the statement of a witness as evidence of the existence of a legal warrant, under which the witness acted in taking the plaintiffs’ cotton out of their possession. The warrant itself, it is submitted, should have been produced.
    2nd. That his Honor erred in deciding, that there was no conversion by the defendants, as it was in evidence, that the defendant Sanders, claimed the cotton as his own, and that it was locked up in his gin-house, by his direction.
    3rd. That the original taking being tortious, evidence of a demand and refusal was not necessary to support the action.
    Dargan, for the motion.
   Q’Neall, J.

This Court concurs in opinion with the presiding Judge, and for the very satisfactory reasons which he has assigned for his judgment. The motion is, therefore, refused.

J ohnson, J. and Harper, J. concurred.

Motion refused.  