Glover v. Riddick, 33 N.C. 582, 11 Ired. 582 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 582, 11 Ired. 582

WILLLIAM GLOVER vs. ABRAM RIDDICK.

A con version, 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 de.’ . fiance of the plaintiff’s rights, or in withholding the possession from the plaintiff, under a claim of right, inconsistent with his own.

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 County, at the Fail Term 1850, his Honor Judge Caldwell- presiding.

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 Nanse-mond 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 1346 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 Clerk, and one Everitt, for the latter ct 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 ap* pended: thereupon, the defendant gave them a paper writing in the following words, to- wit: “Newtown, November 8th, 1847. The bearer, Jack Douglas, a very f tcut black man, about 35 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 35 years old, is also free, lives in this neighborhood and is also o.f good character ; they are looking for wmrk. (Signed,) 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 1S48, and carried to Norfolk ; that he paid the jail fees, amounting to forty dollars, and two hundred dollars to the jailor for the said Scott; that the said two hundred dollars were paid in pursuance of a reward he had offered by advertisement for their ap. prehension in 1843. The entire transaction, as appear*, 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 barboring, because the mere selling of goods by the defendant, out of 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 two hundred dollars, 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 feward, 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,

A,Moore, for the plaintiff:

1st. Was there a conversón ? -

Any use of or dominion or control exercised over the . property of another, without the authority of the owner, is a conversion. G^eenleqf [on Evidence, 642 section.— It was certainly a high violation of the rights of the plaintiff, to use his slaves, to place in their possession a paper writing, the effect of which might be, to make it more difficult for the owner to recover his property, and probably to enable them to effect their escape to a free State. Such acts of ownership, exercised over these slaves, continued for three years, would have given the defendant a title to the slaves. White v. White, 1 Dev. & Bat. 160.

It is riot necessary that Riddick should have known to whom these slaves belonged, in order to make his conduct wrongful. If he have not the authority of the owner, the act was a wrong to him — a violation of his rights of proper! y. Lee v. McKay, 3 Ire. 29,

If the facts of this case do not amount to a conversion, I fear the security of slave property will be very materially lessened, Excuses would not be wanting, for affording them facilities for continuing out of the employment of their owners, or for effecting their escape out of the State,

2nd. The Judge ought to have left it to the jury to say, what amount of compensation the plaintiff was entitled to, for the wrong which had been done by the defendant. The slaves had been runaway several years, and if the security of his property had been endangered, or the pro • bability of his ultimately losing them had been increased by the act of the defendant, it was a risk, for which he was entitled to compensation. Similar acts in others might have been tbe means by which the slaves were kept out of the employment of their owner, and which justified him in exciting public vigilance by offering a large reward.

It was not contended on the part of the plaintiff, that he was necessarily entitled to recover of the defendant tbe >$200 which he paid; but that or such other sum as the jury might think the plaintiff' was entitled to under all the circumstances.

The Act of Assembly encourages the apprehension of runaway slaves, by subjecting the owner to pay a certain sum, to whoever may apprehend them — to this amount the plaintiff is clearly entitled. The policy of the country is in favor of the claim, which the plaintiff sets up to a reasonable reward. I reí< r to Greenfield Bank v..Lea-vitt, 17 Pickering l, as. deciding it was tbe duty oí the Judge to have left it to the jury to say what was the amount of damages the plaintiff was entitled to — whether the amount paid by him or what lesser sum.

Heath and Ehringhaus, for the defendant.

Two questions only are presented :

1st. Has there been any conversion on the part of the plaintiff?

3nd, If so, what is the rule of damages?

1st. A conversion is defined tobe, a tortious taking of a chattel; a wrongful assumption of property in it; an illegal use of it; or any wrongful act, whereby the defendant deprives the plaintiff of his property for a short time even. Leigh’s Nisi Prius, 1417, 1478,

It is submitted that the defendant has been guilty of none of these acts, ■ He has not taken the property of the plaintiff, tortiously or otherwise ; he has assumed no property. in it ; he has made no use of it, illegal, or otherwise, nor has he done any wrongful act. whereby the plaintiff has been deprived of Ms properly for one moment. 'He ' expresses an opinion that two negroes were free,

who had passed as such, in his neighborhood, for years. There is no evidence tfiat this paper was ever seen, at any time after it was given to the slaves, or that they were kept from their owner, in consequence of possessing the paper, for one moment; and it is submitted, that without such evidence, it is no more a conversion, than it would be, il one were to express the opinion, that a barrel of wine was a barrel of water ; indeed, had they been kept from their master, by the aid of these papers, an action on the-case, and not trover, would have been the proper remedy. - -

2nd. Suppose, however, there was some evidence of a conversion to go to a jury, what is the rule of damages ? Could the reward paid, be added to„the actual damages ?. Leigh, in his Nisi Prius, page .1500, saya the damages aré the value of the' property, at the time of the conversion, or at any subsequent time ; if the plaintiff have regained his property, nominal damages are generally to be assessed ; but such actual damages, as are necessarily consequent on the plaintiff 's act, may also be given ; the paying of this reward, or any reward, was not necessarily consequent on the defendant’s giving this paper, since it was never seen in their possession, the person to whom the reward was paid knew not of its being offered more than three years before, and the slaves were runaway, four years previous to the giving of this paper by the de« fendant: what connexion had the paper, with the payment of the reward 1 The reward was offered more than three years before the paper was given ; the paper, so far 'as is known, was never seen in the slaves’ possession, after it was given, and the reward was a voluntary payment, made to a man who had no knowledge of its being offered, and made near four years after it had been offered.

Nash, J.

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 ap* propriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, cr in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in witholding 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 Vol. of Evi, See 642. Which one of these acts, it maj; be asked, has this defendant been guilty of? The defendant is a merchant; arid' in 1846 and 1847 the negroes in question first, appeared in his neighborhood, claiming and acting as free men. They remained in that neighborhood until the 8th of November 1849, and during that time worked for different persons, openly. They purchased goods out of the defendant's store in 1846 and '47, and settled and paid the account of the first year, and exhibited to various persons free papers, as they are called. On the 8th of 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 plantiff relies to prove a conversion. Admit it was a wrongful act, yet it is not every tortious act, affecting the properly 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 tó a conversion. Jn' 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.

There being 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