
    
      Martha Morris vs. A. W. Thomson.
    
    Demand and refusal are not evidence of the conversion of slaves where defendant has no interest in or control over them, and puts his refusal on the ground that he is not in possession.
    If the jury, in an action of trover, find the full value of slaves, when the plaintiff is entitled only to a life estate, a new trial will be ordered.
    
    
      Before BtjtleR., J. at Union, /Spring Term, 1844.
    This was an action of trover for three slaves. The plaintiff claimed under a gift from her father, James Thomas, who was entitled only to a life 'estate in the slaves. The slaves had been sold under execution against James Thomas, and under some arrangement with the plaintiff in the execution, purchased by W. M. Thomson, a brother of defendant. W. M. Thomson was examined as a witness, and said he paid no money, but that after the sheriff’s sale, he regarded himself as the owner' of the negroes and liable when called on for their price. He sent the negroes to the plantation of his late father, and they have been there ever since, under the immediate control and direction of James Thomson, his brother, who has charge of his father’s undivided estate. Likewise said that his brother, the defendant, had no control over, or interest in, the negroes, that he knew of.
    William Woods said he was the agent of plaintiff, in 'carrying on this suit, and was present when a demand was made of the defendant to give up the negroes. Deteudant replied that he did not have the negroes in possession. That his brother had them. After that, the witness heard the defendant say “if they recover the negroes, it will not hurt me; that Wm. Farr’s estate would have to be answerable.”
    On behalf oí defendant, it was proved by his overseer, that the negroes had never been in his possession ; and that since the sheriff’s sale James Thomson had had the control and possession of them.
    When the plaintiff had closed her evidence, the defendant’s counsel made a motion for a nonsuit, which the presiding judge refused, with a strong intimation of his opinion, that under the evidence, the plaintiff could not sustain her action againt the present defendant. He said to the plaintiff’s counsel, that although he could not grant the motion for a non-suit, that he should instruct the jury that they ought not to find a verdict for the plaintiff. Notwithstanding this intimation, the plaintiff’s counsel insisted on going on with the case.
    In his charge, he said he could see no sufficient evidence of conversion; and that the jury ought not to substitute the conjectures of counsel for evidence on that point. He closed his charge with the remark that in no point of view could the jury find for more than the value of James Thomas’s life estate in the negroes. The jury, however, found a verdict for the plaintiff, for the full value of the negroes, with hire.
    The defendant appealed, and now renewed his motion for a non-suit, on the ground that there was no evidence of conversion by the defendant. And failing in that motion, then for a new trial, on the same ground, and because the damages were excessive, as the plaintiff could not recover more than the value of her life estate in the negroes.
    
      Dawkins, for the motion, contended that the presiding judge ought to have granted the motion for a non-suit, and cited on this point, 2 Bay, 441; 2 Bail. 88; 2 McC. 26; 3 McC. 131; 2 Rice dig. 130 §20; 1 Sp. 49 ; Chev. 1. On the second ground, for a new trial, he cited 4 McC. 156.
    
      Herndon, contra.
   Curia, per

O’Neaul, J.

In this case, we think the Judge might very well have granted the motion for a non-suit.. For there certainly was no sufficient evidence of conversion. There is no proof that the defendant ever was in possession of the slaves; it is clear that they were bought by another, and are now in the possession of a third person. How, under these circumstances, a conversion can be inferred from a mere demand, it is difficult to conceive. A recovery in trover proceeds upon the notion that the defendant has used the plaintiff’s goods, and therefore must pay the value and hire.. Hence the title of the plaintiff is vested in him. But .here the slaves are in the possession of a third person ; against him this recovery can have no effect, and the defendant will, before he can recover from him, be put to prove a paramount title. Such a consequence shews that there can be no legal conversion under the proof. The defendant’s answer, that he could not lose, because Farr’s estate must respond to him, is no evidence of conversion ; it is only, one of the many reasons presenting themselves to the defendant’s mind, why he thought he could not sustain eventual loss. It may be, that the defendant has some claim of property to the chattel, but it will not do to rest on conjecture; it ought to be proved.- Every citizen has the right to say, I demand the proof of an adverse title, and of my use of the thing. In the absence of proof he is to be regarded as above condemnation. That the defendant repeatedly continued this case, and asked a friend to collect testimony for him to meet the case on the merits, are no evidence of a conversion.

The first is too much the habit of litigation to afford any evidence on which a jury ought to build a verdict; the other is the effort of a defendarit to protect himself in any way which he can. The defendant might have been willing then to fight the battle for his brother, supposing him to be safe' on the merits; but afterwards finding he could not thus succeed, he might legally say, I abandon that position, and will throw off the responsibility from myself, inasmuch as I never converted the chattel. These views lead directly to a non-suit; but .inasmuch as the judge below refused the motion, and the jury found enough, as they supposed, to justify them in finding for the plaintiff, this court will not order a non-suitr For the plaintiff may possibly bring the conversion home to the defendant; and when we know that the plaintiff will be bound by the statute'of limitations, it makes us much more reluctant to non-suit the party than we otherwise would be.

. On another ground it is plain that the defendant ought to have a new trial. The plaintiff can only recover the value of James Thomas’s life estate, and hire from the conversion. The judge reports that the jury found a ver-diet for the full value of the negroes and hire. This is a plain error in law, and for it the case must go back.

The argument of the plaintiff ,s counsell that the jury-found $800, a sum less than the value of the negroes, ■will not help him; neither will his supposition that this sum was given for the hire of the negroes from the sale in ’27, (16 years.) For as to the first, who can tell better than the presiding judge what standard of value the jury adopted ? As to the second argument, the defendant was only liable for hire from his supposed conversion.

The motion for a new trial is granted.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  