
    
      John Ransom Ballard, by next friend, vs. John Ballard.
    
    Trover for negroes: the witness who demanded the negroes of defendant for plaintiff was unable to say what defendant’s reply to the demand was: he had made a memorandum in writing of the reply, which bore date the day of the demand: he believed the memorandum stated the truth: he did not think it was made on the day of the demand, but on the next day, or not long after: Held, that the memorandum was not admissible for the plaintiff as evidence of defendant’s reply to the demand.
    Trover for negroes by an infant son, by his next friend, against his father: the father, on demand, had refused to deliver the negroes to one authorized by the son in writing to demand them: Held, that the father, being the natural guardian of the plaintiff, was not, under all the circumstances, guilty of a conversion.
    
      Before Whitner, J. at Sumter, Fall Term, 1851.
    This was an action of trover for the conversion of a number of negroes. The plaintiff was a minor, about nineteen years of age, and the defendant was his father.
    The defendant, on the 2d January, 1843, executed a deed, whereby, “in consideration of natural love and affection and other good causes and valuable considerations,” he gave, granted and confirmed, unto his two sons, William Oran Ballard and John Ransom Ballard, their heirs and assigns, a tract of land and the negroes in question. The deed contained the following clause, to wit: “ The above mentioned negroes to be delivered to my said sons, William and John, at any time during my life or at my death; and in case either of my said sons, William and John, should die without lawful issue, his portion of said land and negroes above named, with their increase, to belong to the surviving one and his heirs; or in case one of my said sons, William and John, should die before me, his portion to go to the survivor, to have and to hold and enjoy all and singular the above named land and negroes and their increase. And I, the said John Ballard, do fully and voluntarily relinquish all my title and claims to the said above named land and negroes unto my said sons, William O. and John R. Ballard, their heirs and assigns forever.”
    
      The case turned upon the question of conversion. William O. Ballard was dead. The defendant had remained in possession of the negroes from the time the deed was executed until the trial of the case; and until 1850, the plaintiff had constantly-resided with him. In 1850, the plaintiff worked at John N. Carpenter’s, returning to his father’s usually on Saturday, where he had his washing done. While at Carpenter’s, he became engaged to Carpenter’s daughter, 27 or 28 years of age, and after the action was commenced, married her: after his marriage he returned to his father’s, where he was living at the time of the trial. On the 16th September, 1850, the plaintiff executed a paper authorizing Carpenter to demand the negroes of the defendant. On this paper, when produced in Court, there was a memorandum as follows:
    
      “ I handed the above demand to Mr. John Ballard, when he said he could not read it; and Mr. John E. Bronson read the same to him by his request, and he refused to give' them up to me in the presence of Mr. John E. Bronson, after being made sensible of its meaning, telling me to tell his son he never should have one of them. John N. Carpenter.
    September 16, 1850.
    Test: Edwd. Broughton.”
    Carpenter testified, that, in virtue of the authority vested in him by the paper, he demanded the negroes : that defendant refused to deliver them up: he did not remember defendant’s reply to the demand : the memorandum, he believed, stated the truth: he at first thought it was made on the day of the demand, but after he went home, — he afterwards said, he did not think it was made on that day, but that it was made on the next day, or not long after: JohnE. Bronson, he said, was dead: Edward Brough-ton was not present when the demand was made, nor was he at witness’ house that day, — he was a neighbour, to whom witness had applied for aid and advice in the prosecution of the suit. The memorandum was offered in evidence by the plaintiff and excluded by his Honor. Some attempt was made to shew that the defendant had not treated either the negroes or his sons well.
    
      “ In my charge to the jury,” said his Honor, in his report, “ I said that the gist of this action was the wrongful conversion of the plaintiff's property by the defendant; and whether the acts of the defendant operated as a conversion, I should submit as a question for the jury. That where the right of property is clearly in plaintiff, ordinarily very slight evidence of conversion is sufficient, where defendant holds over after action brought. That demand and refusal was the usual evidence of conversion ; but that demand even was not necessary, where the taking had been tortious; that ordinarily holding property against the will of the owner was evidence of conversion ; and that any evidence showing that defendant detained the property, for any purpose not justifiable in itself, was sufficient to establish a conversion. As to the demand, I instructed the jury that the infant might make it, or a parent, or any one standing loco 'parentis, a relation, or even stranger with whom he resided or who had the care of him. That the paper said to be executed by the minor might not be conclusive of Carpenter’s right to demand and take possession ; but it was one, with other circumstances, entitled to consideration, and taken in connexion with his partial residence at Carpenter’s, with the fact that the defendant did not question his agency, and that act, beneficial to the infant, should be sustained for the purposes of this suit, I thought the demand should be regarded as authorised. But that a demand and refusal was prima facie evidence of conversion, and devolved on the party, refusing to deliver, the onus of explaining; that in this connection the relation of the parties and all attendant circumstances should be regarded; that it was not every possession or actual use of property of another which would sustain an action of trover. The defendant, being the father, with whom the plaintiff had lived, was the legal custodian of his person, and also of his property, in default of a better; that as his natural guardian, the management of an infant child’s property (having no legal guardian) was authorized and proper; that under some circumstances the father might well say to a stranger, to a friend, a relative, I am a better agent for my son than a volunteer, or even one of his own appointing, &c.; that, nevertheless, the father might throw off this character, and lose this shield, by driving his son from his home, by the denial of proper provision and care of the child or the property; by the assertion of title in himself, or denial of the title of the son, or any act in derogation of plaintiff’s rights, or jeoparding his interest, &c. I did not think these had been made to appear, but as matters of fact, they were submitted to the jury, and if found, should influence their verdict.”
    The jury found for the defendant;' and the plaintiff1 appealed, on the grounds:
    1. That the plaintiff established an indisputable title to the slaves, and the facts proved amounted to a conversion. The defendant offered no evidence, and the verdict ought to have been for the plaintiff.
    2. Because the defendant having ill-treated the slaves, and by his conduct made it necessary for the plaintiff to leave his house and seek refuge at Carpenter’s, his right to possession as natural guardian ceased, and the plaintiff had a right to demand possession of his property, as well for its protection as for his own support.
    3. Because his Honor charged the jury that whether the facts proved amounted to a conversion, was a question for the jury.
    4. Because his Honor refused to admit in evidence the memorandum made by Mr. Carpenter at the foot of the written demand at the time thereof, setting forth the exact terms of the defendant’s refusal; Mr. Carpenter having proved the refusal to deliver the property, but being unable to recall the exact expressions of the defendant, which he had however set forth in the memorandum.
    5. Because his Honor charged that the paper signed by the plaintiff, authorizing Mr. Carpenter to make a demand upon defendant tor the delivery of the slaves, conferred no authority upon him for that purpose, and that he was not thereby made agent of the plaintiff to make such demand.
    6. Because his Honor charged that the defendant may have regarded Carpenter as agent of his son, but that he himself was the better agent; that the father might well fold his arms and say to a stranger, I will not give up the property tp you.
    7. Because his Honor charged that the father is the natural guardian of his son, and entitled to the management of his property, and was not bound, under the circumstances, to deliver up the property upon his demand. The defendant set up in his de-fence that, according to the true construction of the deed, he had a right to the property during his life.
    
      DeSaussure., Blanding, lor the motion,
    cited McP. on Inf. 38, 61, 69, 328; Co. Litt. 88 b, 89 a; 3 B. & Ad. 714; Mitf. PI. 25; 1 Tes. Jr. 195 ; 1 P. Wms. 119; McP. on Inf. 202,164; Co. Litt. 78 b ; 1 Yes. Jr. 91; 2 Tes. Jr. 470 ; Co. Litt. 38 b, note 16 ; 1 Stem. 709 ; 2 Ball & B. 454.
    
      Spain, Moses, contra,
    cited, 1 Bl. Com. 453 ; 2 Kent, 193,205; Harp. 306 ; 1 Bail. 203 ; 1 Chit. PI. 198; McP. on Inf. 458, 63.
   The opinion of the Court was delivered by

Whitner, J.

I think it manifest that the decision of this case, on Circuit, turned on the question of conversion. The grounds of appeal bearing on this inquiry will be, therefore, first considered, without reference to the order in which they stand. The complaint contained in the fourth ground is, that competent testimony was excluded.' The witness, Carpenter, called to prove the demand and refusal, had made a memorandum in writing, as is alleged, of the reply made by defendant, when he refused to deliver the property. His memory was refreshed once and again by an inspection of the paper. The conversation was a brief one, yet he could not, or would not, undertake to state, in form or in substance, one word in reference to the particular fact desired. When asked, he said he believed the memorandum stated the truth; and at first thought he had committed it to writing the same day, though after the examination of another witness, and who, it appeared, had also with the witness, Carpenter, subscribed this memorandum, he admitted that the same could not have been prepared earlier than the next day.

In the case of the State vs. Rawls, (2 N. & McC. 331,) a memorandum in writing was admitted, which had been made by the witness at the time, of certain facts, for the purpose of perpetuating them in his memory, the existence of which he knew from the memorandum, not otherwise retaining a distinct recollection of them. This is authority, and the argument and illustrations of the learned Judge Nott, will induce most minds to acquiesce in the rule as one of indispensable necessity. Book entries, registries of births, deaths and marriages, dates of transactions, &c., so common, universal and unquestionable, fall within this rule.

But as a counterpart, and most aptly, follows the case of O’Neale vs. Walton, (1 Rich. 234,) in which Judge Butler seeks to restrain the extension of the above principle, lest it might work mischief. I will not borrow illustrations from that case, but content myself with a reference to the sensible and conclusive views there set forth, as containing a far better vindication of the judgment of the Court than any I could be expected to offer, in adding another check to a further extension. This witness, it will be seen, had previously interested himself in getting up this law suit; had appealed to his neighbor for aid in its conduct, which neighbor at least had a large experience, if not some skill in that way. The memorandum was not prepared at least until the next day, if then, after a conference, and each present when it was actually committed to writing.

The Court is of opinion this testimony was properly refused.

The third ground of appeal complains that the question of conversion was submitted to the jury. The form of this objection does not warrant the conclusion, that the party was dissatisfied with any legal proposition ruled by way of instruction ; but rather that, on this point, the Court did not assume the fact and decide the case. The legal effect of a fact stated, or the law arising out of the facts ascertained, may be pronounced upon. If it is meant, that the facts of this case were so clear that they amounted to a conclusion of law, the objection is then conceived, but its applicability to the case in hand is denied. Without attempting any refined distinction, where so much might depend upon the intention with which an aet was done, and especially in such a case as this, the province of the jury would have been invaded, and the charge rendered far more obnoxious, as well from usage as legal authority, if a different principle had been asserted or course adopted. Upon a review of the facts, however, it is proper to add, as a response to another ground, that the verdict rendered, in the opinion of the whole Court, was well warranted and just.

On all other points arising in the case, and to which reference is made in other grounds, every benefit was extended to plaintiff that the law involved would warrant. In fact, the error, in the judgment at least of some of my brethren, consisted rather in placing the plaintiff on higher ground than he was entitled to stand. So far as ruled against the plaintiff, the authorities of McP. on Inf. 62, 63; Reeves’ Dom. Rel. 209, 290, 301, and 2 Kent Com. 194, will be found ample.

There being nothing then to withdraw, from the ruling of the Court, as prejudicial to the plaintiff, the foregoing intimation will save the legal propositions, laid down on Circuit, from in any wise misleading the unwary or committing the Court to the same extent. When the case arises, the converse of these propositions can be more appositely examined.

There is no ground, therefore, on which to disturb the verdict, and the motion for new trial is refused.

O’Neall, Evans, Waedlaw, Feost and Withees, JJ. concurred.

Motion refused.  