Opinion
(December Term, 1860.)
Where a constable, by levy and actual seizure of a slave, had acquired a right to the property for the satisfaction of executions in his hands, and delivered such slave to the jailer of the county for safe-keeping, a refusal of the jailer to redeliver the said slave, by command of his superior, the sheriff, was Held, in an action of trover by the constable against the sheriff, to be evidence of a conversion.
TROVER, for the conversion of a slave, tried before Bailey, J., at last Fall Term of JONES.
McRae for plaintiff.
Haughton for defendant.
The plaintiff was a constable of Jones County, and by virtue of certain executions in his hands levied one of them on 4 September, 1859, and one other on the 12th of the same month, on a female (98) slave, as the property of one Andrews, and delivered her to the jailer of the county, who put her in the common jail of said county. Afterwards, and before this suit was brought, McDaniel, the plaintiff, called on the jailer for the slave in question, and he refused to deliver her. It appeared in evidence that this refusal was occasioned by the command of the defendant, who was at that time sheriff of Jones County. The defendant, as sheriff, had certain executions in his hands, tested of June Term, 1859, of Jones County court, against one William F. Huggins, which were levied on 12 September, 1859, on the said slave, and he had various court executions against Andrews, tested of the same term, but none of them levied on the slave. The defendant showed in evidence a bill of sale from Andrews to said Huggins and one Smith, dated in 1856, which was absolute on its face, but was intended as an indemnity to Huggins and Smith as surety for said Andrews in certain debts which had been subsequently paid by Andrews, and said bill of sale was not intended to defraud any one. The defendant, under the executions in his hands, sold the slave in question, the plaintiff being present, forbidding the sale. The writ was brought after the demand, but before the sale.
The court charged the jury that the plaintiff, having levied his execution first and having the negro in his possession, was entitled to recover, provided there was a conversion on the part of the defendant, and that there was evidence as to a conversion, which was left to their consideration. He also charged that the sale to Huggins and Smith, by bill of sale absolute on its face, but intended as a mortgage, was null and void as to the plaintiff. Defendant's counsel excepted.
Verdict and judgment for plaintiff for $1,000.
Defendant appealed to this Court.
In the argument here it is conceded, and properly conceded, by the defendant's counsel that the plaintiff had, by his levy and taking possession of the slave, acquired the right to her for the purposes of his execution, as against the defendant. See Jones v. Judkins, 20 N.C. 591. The counsel properly conceded, also, that the bill of sale from Andrews to Huggins and Smith was void as against the plaintiff ( Gregory v. Perkins, 15 N.C. 50), but he contended that the plaintiff's action could not be sustained because there was no evidence of a conversion of the slave by the defendant. In support of this position, the counsel referred to several cases to show that a mere levy upon a personal chattel, without seizure of it, is not a trespass, and therefore is neither a conversion nor any evidence of it. See Bland v. Whitfield, 46 N.C. 122; Ragsdale v. Williams, 30 N.C. 498; Francis v. Welch, 33 N.C. 215; Glover v. Riddick, ibid., 582.
This may all be true, but the defendant in the present case did much more. The jailer of his county, who is his officer, and into whose possession the plaintiff had placed the slave to keep for him, refused upon demand to deliver her to the plaintiff, and did this by the order of the defendant. The refusal was then, in legal effect, the refusal of the defendant himself; and a demand and refusal has always been considered as evidence of a conversion; and if unexplained, a conversion may, and ought to be, inferred by a jury from them. The subsequent sale of the slave by the defendant, as sheriff, having been made after the commencement of the suit, could not be relied on as the ground of the action, but it was proper to be considered as evidence tending to show the purpose for which the refusal was made by the sheriff's officer.
The question of damages was not made (so far as the transcript shows) in the court below; and there is nothing stated from which we can discover that the amount of the executions in the hands of the plaintiff was not the full value of the slave.
PER CURIAM. No error.
(100)