
    
      James M. Nelson vs. Oliver Whetmore.
    
    Uunder counts, in action on the caso, which alleged that defendant, well knowing F. to be the slave of plaintiff, unlawfully, enticed and procured him to depart — one count said from his masters service, the other from his possession. Held, that proof that F. had run away, and that defendant had procured him to continue absent from the plaintiff, did not sustain the allegations. Held, further, that proof of the scienter was essential to either count.
    What acts will furnish proof of a conversion.
    An interference with a chattel, under circumstances which shew the owner’s right to be undisputed, even with injurious consequences to the owner, does not amount to a conversion.
    Where there is any reasonable evidence of a conversion, it is better to submit the case to the jury, than to order a non-suit.
    The African blood is prima facie evidence of slavery.
    
      Before Wardlaw, J. at Charleston, Spring Term, 1844.
    This was an action upon the case to recover the value of a slave named Frank, the property of the plaintiff — said to have been lost through the wrongful acts of the defendant.
    There were three counts in the declaration. The first count was in trover ‘/{the second and third alleged that the defendant, well knowing Frank to be the slave of the plaintiff, unlawfully enticed and procured him to depart; the second count said from his master’s service — the third from his master’s possession.
    The following is a 'general summary of the testimony, as reported by the presiding Judge to the Court of Appeals.
    “The defendant is a merchant of high character, who has often been heard to denounce abolitionism, and express opinions favorable to Southern institutions. He came from the North to Augusta, Georgia, in 1818 — resided in Augusta till 1828 — then removed to New York, where he has since resided, but every winter usually comes to the South, (his main business connexions being with the South,) and when in Charleston he boarded at the Planters’s Hotel, until the completion of the Charleston Hotel, where he has since boarded. In Nov. 1837,' when the defendant spent two days at the Planters’s Hotel, the Boy Franje, then belonging to Calder, keeper of the Hotel, was a waiter in the Hotel.
    Frank is a bright mulatto; in 1841, 20 to 22 years old, freckled and with hair somewhat reddish. Porter regarded him as white, and said that he had every appearance of a white man, but every other witness who spoke of his color, thought him a mulatto, and those who were questioned on the subject, supposed that he could not pass as white.
    In November, 1838, the plaintiff bought Frank from Calder, at the price of $1200, and kept him at his place near Statesburg, as a house servant, until the night of 22d June, 1841, when, in the absence of the plaintiff on a visit to the North, Frank eloped, taking with him a horse, Saddle and bridle. In the evening of 24th June, Frank, with his horse much tired, arrived at the house of M’Phail, a. farmer, who lived near Randalsville, N. C., on the stage road from Cheraw to Fayetteville. He called himself Johnson, and not speaking of his color, but being taken as a mulatto, said that he had been in the Florida war, as servant to some general officer, and was on his way to see his relations. He stayed all night there — sold his horse, saddle and bridle to M’Phail, for $20, and next morning after breakfast, departed on foot, saying that he intended to take the stage when it passed. On 25th June, the defendant reached Fayetteville in the stage, having come directly from Columbia through Cheraw. Without direct evidence, the probability seemed that Frank reached Fayette-ville in the same stage with defendant; but if so, he did not stop at the stage office, where the defendant stayed. At Fayetteville, the defendant and Frank, each for himself, took a seat for Raleigh; Frank under the name of Jones— his mulatto color being noticed by the clerk, but not called to the attention of the stage agent, until the stage was starting. Together, and the only passengers in the stage, they reached Raleigh next evening. At the Hotel there, the defendant represented Frank to be his servant, and paid for his breakfast, and Frank demeaned himself, and was treated and regarded by Yarborough, the hotel keeper, as a mulatto servant. The defendant and Frank went together to the Rail Road depot, Frank in charge of the baggage, and there the defendant represented Frank to be his colored servant, and paid to Whiting, the R. R. agent, for him as a colored servant“-half price.
    At Weldon, where there is a junction of roads, Mr. Porter, clerk in the Post Office at Columbus, Georgia, fell in with the defendant, whom he had previously known, and they travelled together to Washington City ; — Frank, under some name not recollected, passing as white, and being represented by defendant, and taken by Porter, to be a white man who had been in Florida, and was on his way to see his relations, passing as a servant for cheapness. The defendant went on, leaving Frank in Washington. Soon afterwards, Frank went on to Baltimore with Porter, in the same capacity as he had attended defendant, and has not since been heard of. By comparing dates, it af-terwards seemed that the plaintiff, on his way northward,/ was in Washington the same day Frank reached there. When the plaintiff returned to New York, he had heard, by letters, of Frank’s escape, and travelling with the defendant. In company with James W. Robinson, the plaintiff called upon the defendant. The plaintiff had been much excited, but was then cool, and the conversation was civil, both speaking as of a matter to which attention had before been called. The plaintiff said that the defendant had been the means of the boy’s escaping, and should assist in recovering him. The defendant answered all inquiries freely, and said he would do all in his power. He stated that he had met the boy at Fayetteville — that the boy had represented himself as a free mulatto that had been in Florida, and had asked him to take him on as his servant — that the boy had desired this for cheapness; and that the boy had come with him to Washington, and there he had left the boy — mo reason for leaving him being given.”
    The presiding Judge refused a motion for a non-suit, and submitted the facts to the jury on the first count. The two last he thought wholly inapplicable to the case. Yer-dict for the plaintiff. $1000.
    The defendant appealed, and now moved for a non-suit or a new trial, on the following grounds.
    1. Because there was no evidence of any conversion whatsoever, by the defendant, of the slave of the plaintiff; and, in the absence of such evidence, it is respectfully submitted that his Honor erred in refusing the motion for a non-suit.
    
      2. Because the acts imputed to the defendant are charged with having been knoioingly done; and the proof of such allegation of knowledge, is essential to the plaintiff’s case: whereas, there was no evidence whatsoever that the defendant had any knowledge that the mulatto was the slave of the plaintiff, or of any other person whomsoever.
    3. Because there was no evidence, whatsoever, to sustain the second and third counts of the declaration, charging the defendant with enticing away the slave from the service of the plaintiff.
    
      F. D. Richardson, for the motion,
    contended that the question of conversion is one of law, for the court to decide, and that th.'re was no sufficient proof of a conversion. He cited i Bail. 510 ; 1 Ch. PI. 140; 2 Saund. R. 47, k. e. 1 Bur. 10 ; 1 McC. 429 ; 6 East, 538; 1 Bail. 546 ; 1 N. and McC. 601; 2 Bail. 549; 2 N. and McC. 84; 2 Mill, 72, 78; 8 Porter, 191.
    
      Dukes and Thomson, contra,
    contended 1st. that the plaintiff was entitled to retain his verdict under the counts in case. 2d. That the proof of a conversion was sufficient. They cited Yelv. 194 ; 6 Mod. 212 ; 4 T. R. 26 ; 5 Cowen, 323; 1 N. and McC. 598 ; 8 Car. and P. 568 ; 3 Camp. 396; 1 Johns. Cases, -406; 5 Mass. Rep. 104; 3 B. and Aid. 685; 2 Str. 813; 4 M. and S. 260; 1 Wils. 328; 1 Iredell, 242 ; Willes, 577 ; 2 Mill, 415 ; 6 Wend. 603 ; 6 Bac. Abr. Trover, B. 1 Ch. PI. 153.^
   Curia, per

Wardlaw, J.

Procuring a slave already absent to continue absent from his owner’s service, is a tortious act, no less than procuring one to depart from service — but there is such a difference between the acts, that proof of one does not sustain the allegation of the other. If under the proposition that a slave runaway is still constructively in the possession of his owner, it be maintained that a continuance of his absence is a new commencement of it, it might well be replied that in this view the constructive possession would remain after the continued absence, so that a continuance of the absence could not be said to be a departure from the possession. But without this refinement, it is clear here, as it was below, that the scienter is essential to either of these counts, and that of it there was no proof.

An act merely tortious or unlawful may constitute a legal injury, without being wilful or malicious, (Willes, 577,) and without knowing Frank to be a slave, the defendant may have acted towards him so negligently or so unlawfully as to have done an injury for which an action lies; but the case must be decided as it is presented, and the proof and the allegations must concur to sustain it.j

The serious question is whether there was a conversion.

Conversion is an appropriation of another’s property ,• change of ownership is implied by it. The change may be temporary or perpetual, but so strongly has our court insisted on this change as resulting from conversion, that when a verdict in trover is rendered whilst the chattel remains out-of the possession of the plaintiff, the judgment for the plaintiff is itself without satisfaction, (which satisfaction is insisted upon elsewhere, 8 Cowen, 43,) considered here to be an acknowledgment by the plaintiff that the title has by conversion been transferred from him, (Rogers and Thompson vs. Moore, Rice, 60; Welburn ads. Bogan, 1 Speers, 182.) Of the conversion, evidence may arise from a tortious taking, from a refusal to deliver upon demand, or from use negativing the plaintiff’s right. Any act in exclusion or defiance of the plaintiff’s right, any assumption of property and of the right of disposition, any intermeddling indicating a claim of ownership, any assertion of the control which belongs to the owner, whether for the benefit of the defendant or of a third person, may furnish proof of the conversion. But the idea of property is of the essence of a conversion. Even where; the chattel from its nature is necessarily known to be property, an interference with it, under circumstances which shew the owner’s fight to be undisputed, even with injurious consequences to the owner, does not amount to a conversion ; as where goods are thrown overboard to save a ship, (2 Bulst. 280,) or where a work of charity or kindness to the owner is intended, (4 Esp. 165.) No intention of gain to the wrongdoer, or to any one else, is essential, if an injury be done to the owner by an act negativing his right of property. But when the chattel is not known to be property, there can be no interference with the ownership, and no conversion without an appropriation. In such* a case, a defendant might in some other form of action be made to answer for any benefit acquired by himself or for any injury done to the plaintiff by a wrongful act, but if he did not use the chattel as property, he could not in trover be held to have converted it.

It is, then, in the casé before us, essential to inquire whether the defendant knew Frank to be a slave. If he did, his acts of interference may amount to an assertion of his right as owner, and the consequence of these acts may be damages which have resulted from his conversion. But if he did not, the treatment of Frank as a servant, and consequent facilities of escape afforded to him, may have been acts in themselves lawful — certainly did not indicate an assertion of property.

This court is satisfied with the course taken by the circuit Judge, in refusing the motion for a non-suit, and leaving the circumstances, with proper instructions, to the jury. It is true that in the case of Hoover vs. Alexander, 1 Bail. 510, a non-suit was ordered and sustained, where a slave had been seen at work in the defendant’s field, but there was no proof that it was with the defendant’s knowledge, although possibly the jury might in the circumstances have found evidence of knowledge sufficient to have established the conversion. But in the main it is better, when there is any reasonable evidence of the fact to be established, to submit the question to the jury, than to order a non-suit for want of evidence. A verdict finding the fact contradicts the assumption that the evidence is insufficient; and a verdict negativing it, concludes the case, as a non-suit does not. Where, however, a case involves, as this does, the character of a party proved to be respectable, and depends upon nice legal distinctions, this court, if not itself satisfied with the proof, prefers to let another jury pass upon the matter, after an authoritative exposition of the law involved. If the acts of interference done by the defendant had occurred in a State where slavery does not exist, the case of Quay vs. McNinch, 2 Mill’s Law Rep. 78, would be a direct authority to show that they do not amount to a conversion. They occurred, however, in North Carolina, and there, as here, the African blood is prima facie evidence of slavery. But the presumption arising from blood, like other presumptions, may be rebutted. In the case of Bell vs. Lakin, 1 McMul. 364, in this State a slave found in the actual enjoyment of freedom, and thence reputed to be free, was treated as free by the defendant, to’the injury of the owner, yet with impunity. Here one of doubtful color, passing as free in a public conveyance, was taken as his servant by the defendant. Upon the count in trover, it must be left to the jury to decide whether the defendant regarded him as free, or as a slave.

A new trial is therefore ordered.

RxchabdsoN, O’Neall, Butler and Frost, JJ. concurred.  