Opinion
December Term, 1850.
1. A conversion, to subject a defendant in an action of trover, consists either in an appropriation of the thing to the party's own use and beneficial employment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the sheriff's rights, or in withholding the possession from the plaintiff under a claim of right inconsistent with his own.
2. Giving to a negro a certificate that he is free does not amount to a conversion in the person giving the certificate, if the negro should turn out to be a slave.
APPEAL from the Superior Court of Law of PERQUIMANS, at Fall Term, 1850, Caldwell, J., presiding.
A. Moore for plaintiff.
(586) Heath and Ehringhaus for defendant.
This is an action on the case, and the declaration contains three counts: one in trover for the conversion of two slaves from November, 1847, to August, 1848; one for harboring the said slaves; and one for trading with them.
The facts of the case, as they appeared on the trial, are as follows: In 1843 the plaintiff purchased from one Mitchell two slaves, named Tony and Armistead, then runaway; they were first seen in 1846 or 1847, in Nansemond County, Virginia, passing as free persons of color, under the names of Jack Douglas and Charles White; they worked for several persons as free persons, and exhibited certain papers called free papers, to several persons; they purchased goods out of the defendant's store in 1846 and 1847, and settled the account of 1846; they called on the defendant at his store in the said county, and asked him for a certificate of freedom, alleging that they had left their free papers at some point distant from the said store; the defendant called on two of the bystanders, to wit, his (583) clerk, and one Everitt, for the latter of whom they had worked, to state what they knew about their freedom, and they stated that they had passed as free persons since they came into the neighborhood, and that they had seen their papers with the county seal appended; thereupon the defendant gave them a paper-writing in the following words, to wit: "Newton, 8 November, 1846. The bearer, Jack Douglas, a very stout black man, about thirty-five years old, lives in the neighborhood of my cotton factory, is free and of good character; his partner, Charles White, also a stout black man (not quite so tall as Jack), about thirty-five years old, is also free, lives in this neighborhood and is also of good character; they are looking for work. Abram Riddick." It also appeared that they remained in the neighborhood until the spring of 1848, when they left, and were apprehended at Weldon by one Scott, in the act of taking the cars; that he committed them to Halifax jail, where they remained six weeks or two months, and from which they were taken by the plaintiff in August, 1848, and carried to Norfolk; that he paid the jail fees amounting to $40, and $200 to the jailer for the said Scott; that the said $200 were paid in pursuance of a reward he had offered by advertisement for their apprehension in 1843. The entire transaction, as appears, took place in the State of Virginia. The alleged free papers were identified on the trial, and turned out to be forgeries. The said Scott did not know of the reward offered at the time he apprehended the said slaves. They stated to the defendant, when they applied for the certificate, that they wanted to go elsewhere to get work.
The court charged that the plaintiff could not recover on the count for trading with the said slaves, because it did not appear that any law existed in Virginia prohibiting such traffic; that he could not recover on the count for harboring, because the mere selling of goods by the defendant, out of (584) his store, would not amount to harboring. On the first count the court charged that any wrongful dominion exercised by one man over the property of another amounted to a conversion, and the giving of the paper-writing in question was the exercise of such dominion. To this part of the charge the defendant excepted. On the subject of damages the court charged that the plaintiff was not entitled to recover the reward of $200, nor any other sum by way of reward, as insisted on by his counsel; that he was entitled to recover the value of the hire of the said slaves from November, 1847, to August, 1848, the jail fees by him paid, and his reasonable expenses in going from Pasquotank to Halifax and returning. To the part of the charge, denying the plaintiff the right to recover the reward as a part of the damages, the plaintiff excepts.
There was a verdict for the plaintiff according to the charge of the court, and from the judgment thereon both parties appealed.
None of the acts of the defendant which are stated in the case, taken separately or together, amount in law to a conversion. A conversion, to subject a defendant in an action of trover, consists either in an appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from the defendant under a claim of title inconsistent with his own. Such is Mr. Greenleaf's summary of the acts of a defendant to constitute a conversion in the sense of the law of trover. 2 Gr. Ev., sec. 642. Which one of these acts, it may be asked, has this defendant been guilty of? The defendant is a merchant; and in 1846 and 1847 the negroes in question first appeared in his neighborhood, claiming and acting as freemen. They remained in that neighborhood (588) until 8 November, 1849, and during that time worked for different persons, openly. They purchased goods out of the defendant's store in 1846 and 1847, and settled and paid the account of the first year, and exhibited to various persons free papers, as they are called. On 8 November, 1847, they requested the defendant to give them a certificate that they were free, alleging that they had left their free papers at a house some distance off. The defendant called on his clerk and a Mr. Everitt, who was in the store, and for whom they had worked, to state what they knew of their being free. They both stated that the negroes had passed as free ever since they had been in the neighborhood, and that they had seen their free papers with the county seal appended. The defendant then gave them the certificate set forth in the case, in which he certifies they are free. This is the only act upon which the plaintiff relies to prove a conversion. Admit it was a wrongful act, yet it is not every tortious act, affecting the property of another, that amounts to a conversion; thus, cutting down his trees, without taking them away, is no conversion. Myers v. Solebay, 2 Mod., 245. The giving of the certificate was certainly a very indiscreet act, to say the least of it, but is no evidence of an act of ownership on the part of the defendant — it expressly disclaims it. His Honor, however, ruled that the giving the paper-writing by the defendant was the exercise of such dominion over the slaves as amounted to a conversion. In this opinion we think there is error. We agree with his Honor, and for the reasons expressed by him, that the plaintiff cannot recover upon the counts for harboring or trading with the slaves. As, in the opinion of the Court, the plaintiff cannot recover in this action upon any of the counts in his declaration, no opinion is expressed as to the question of damages. (589)
There being no error in the charge, upon the count in trover upon which the verdict was given, the judgment is reversed and a venire de novo awarded.
PER CURIAM. Judgment reversed, and a venire de novo.
Cited: McDaniel v. Nethercut, 53 N.C. 99; Rhea v. Deaver, 85 N.C. 340; University v. Bank, 96 N.C. 285; Smith v. Durham, 127 N.C. 419.