APRIL TERM, *1773.*

#### John Leach *against*Jonathan Slater.

THIS was an action of trover, for a negro,. The defendant pleaded the act of limitations..

The facts were these: *Thomas Hardesty*gave his daughter the *negro*in question. She married *William Le'achv*who died, leaving by his wife two sons. The mother continued a widow three years, and married *Thomas*Buck-master, who kept possession of the negro, two or three years. The father, Hardesty, took the *negro*from *Buck*master, who afterwards regained the possession. *Hardesty*made a bill of sale of it, to his grandsons. *Buckmaster*continued in possession, and sold it to the defendant. There was a demand and refusal, after three years had expired from the day of the sale. • The question was, whether the plaintiff was barred by the act of limitations.

*I.*Rogers, for the defendant.

The action of *trover*is within the act of assembly, 171 a,, c. 23. In enumerating the actions designed to be limited, *trover*is mentioned in the first part of the section, but in the latter part of the section, fixing the time of the limitation, the action of *trover*is omitted. But actions on the case are limited to three years, and *trover*is an action on the case. The same omission is made in the stafc, 21 *Jac.*c. 16. Yet it has, notwithstanding, been *514determined under that statute, that the action of *trover*is limited to six years. *Cro. Car.*246. 333. 2 *Mod. 71.*

In *trover*the conversion is the gist of the action. *Laxo of Torts.*4. *5 Bac.*258. 2 *Bidst.*312. *Mod.MA. Sty.*313. 1 *Leon.*223. 1 *Burr.*31. 2 *Lev.*13. *Gilb. 267.*As to what act will amount to a conversion. In general where a man comes unlawfully to the possession of goods, that of itself is a conversion, as the taking of my hat from my head. 1 *Sid.*264. 5 *Bac. Abr. 257.*So the taking of my horse, and riding it. 6 Mod. 212. *Gilb. L. E.*263. So every unjustifiable meddling. *Teh.*194. So also where one man assumes a right to dispose of the goods of another. 6 *Mod.*212. *Clayton,*112. *5 Bac. Abr. 255. Raym.125.*1 *yones,*245. *Cro. yac.*148.

Therefore, though a man come lawfully to the possession ©f goods, if he afterwards use them as his own, it is a con-' version. As if one lawfully distrain beasts, and afterwards works them. *Cro. yac.*148. 1 *Brownl. 55. Telv.*10. 5 *Bac.*256, 257, 258. Or if a man find apparel, or apparel be delivered to him to keep, and he wear it. 1 *Leon.*224. *Cro. Eliz.*219. 5 *Bac.*258. If a man comes to the possession of goods lawfully, (as by finding,) and upon demand made, refuseth to deliver them, this is a conversion. 6 *Mod.*212. *Mod.*460. *Cro. Eliz.*495. But if aman who came lawfully to the possession of goods, has intermeddled unlawfully therewith, it is not incumbent on the plaintiff to prove a refusal to deliver them. 5 *Bac.*279, 280. *Gilb. Evid.*260. 265. And where there has been an actual conversion there is no need of a demand. 1 *Sid.*264. 1 *Barr.*31. It will follow from these authorities, that if the plaintiff has any cause of action, it arose long before the demand and refusal, to wit, at the time of the defendant’s purchase from *Buckmaster,*either by the sale of *Buckmaster to*the defendant, which was a conversion by *Buckmaster,*or by the defendant using the *negro*as his own, which was a conversion by himself. But it may be objected that the demand and refusal gave a new cause of action, as in *Cro, Car.*245. 333. *Swayn*v. *Stevens.*But to this it may be *515answered, that judgment was against the opinion of *Croke.*.It was given on the defendant’s demurrer to the plaintiff’s replication, in which he had expressly charged a conversion within time, and therefore they said they would intend that the goods came a second time to the defendant’s hands and that he converted them a second time, but there is no room for such intendment in the case in question. *Vid,,*W■ Jones, 252. S. C. In short, the Court thought it hard the statute should run against the plaintiff, when he could not sue with effect. See, as a full answer to this objection, the case of *Oliviere*v. Vernon, 6 *Mod.*170. 2 *Sid,*69. 115. If a demand and a refusal will at any time give anew cause of action, and take a case out of the statute, which was within it before, there never can be a bar by the statute, because a demand may be made at any time.

The case of *Montague*v. Ld. Sandwich, 7 *Mod.*79. may be objected. To this we answer, that it cannot be said that the use in our case was with the consent of *Leach.*So *Clay. 57,*58. 1 Vin. 243. pi. 8. may be objected. To this it is answered that this is only the opinion of a single Judge at the Assises, and contradicts all the authorities which say there may be a conversion by unlawful user, though the defendant came lawfully by the possession of the goods. Admitting the case to be law, it does not prove that jhe demand and refusal will give a new course of action where he was barred by the statute, and should the case be argued to this purpose, it is expressly contradicted by *Holt,*in the case of *Oliviere*v. Vernon. *Vid.*Gilb. E. 264. This case in *Clayton*is cited, but no notice is there taken of the latter part of it.

*Johnson,*for plaintiff.

Property and conversion must be proved. The point in question is, whether the cause of action arose three years before the suit was brought. In the present case it is admitted that a demand and refusal makes a conversion, but there was no conversion before that time. Where a man *516is in possession of a thing under the law, he is to use the thing as the law directs, or admits, otherwise he will be a trespasser. 8 *Co.*146. 5 *Bac.*280. 260. It is the malfeasance which makes the conversion, and *Slater*made no unlawful use of the *negro.*

Suppose athing to be restored upon request, 1 *Vez.*278. or suppose goods pawned, one is not obliged to make the demand but when one pleases. *Vin. Abr. Limitation,*116. The statute attaches from the time of the request. The case in *Clayton*is good authority. The same case is in 1 *Vin.*243. pi. 8. *Law of Trover,*6. *Old Law of Evid.*177, 178.

Where a man comes legally by the possession, a demand is necessary, otherwise a man might be punished without having done an injury. Where one comes into real property under title, trespass will not lie. *Bac. Abr. Trespass,*182, 183. *Cro. Eliz.*540. 2 *Roll. Abr.*554. 11 *Rep.*51. *Hetley,*66. There is no instance of an action brought against a man who comes in by title, and in a conscientious manner.

Suppose the *negro*was dead. As to the case in 6 *Mod.*170. reported in Holt, 332. the statute of limitations, was hot the point in question. If it had been, *Holt*would have taken notice of the contrary authority in *Clayton.*The matter was carried further than necessary. *Gilb. Evid.*260. is not very applicable to this case. The case in 7 *Mod.*99. is in point for the plaintiff. Every thing should be inferred to support the action, and a consent will be presumed, to avoid the statute. Where the possession is law-, ful, the plaintiff must shew a demand and refusal before there can be a conversion. 3 *Salk.*-365. pi. 8. How is a purchaser to demean himself? must he be subject to be sued at all events ? This point .'.as determined in *April*term, 1765, in an action brought by *Joshua Griffith*v. *Jacob Green,*

*517«S'. Chase, for defendant.

There has been a demand and refusal, within three years, therefore the act does not attach. *Trover*is an action founded on a *tort.*The defendant must have been guilty of some illegal act, to charge him with a conversion. The whole *tort*consists in the wrongful conversion. 1 *Burr.*31. The right to purchase is lawful, consequently the user under that purchase is lawful. Suppose one steals my horse and sells it, the purchaser is not guilty of a wrong, nor subject to an action, before a demand and refusal *;*if it were otherwise, a man might be made answerable for a *tort*against his own intent. Suppose a delivery of goods, the person to whom they were delivered is not bound to make a re-delivery of them till a demand is made. The conversion of them may be secret, and the plaintiff may have no knowledge of it. Suppose goods be lost, the plaintiff may not hear of them for twenty years, yet during that time they may have been transferred by sale, but there may be no conversion. A conversion must be by a user in opposition to the will of the owner. The case of the carpenter’s tools, Holt, *707.*is so, because there is a disavowal of the plaintiff’s right. Holt, 296. It is contended, that where a man comes unlawfully by a thing, and is guilty of a tortious act, it is of itself a conversion; but a man cannot benefit himself by his own wrongful act. *Slater*did not know that the *negro*was the property of the plaintiff. It was therefore lawful for him to purchase, and lawful for him to use the *negro*afterwards. A man has no right to wear apparel found, which is the reason why it is a conversion if he does so; but in the present case the defendant had a right to use the *negro.*The grinding of oats by a miller, after he was forbid and warned by the owner not to grind them, was held to be a conversion. 1 *Vin. Abr.*243. *Vid. Cro. Jac.*147. which supports the rule in the case of the six carpenters, in 8 *Co.*146. Where one comes to the possession of goods by *518finding or delivery, 'there must be a demand to make a conversion. *Law of*Trover, 6. *O. L. E.*177, 178. Clay. 57. There is no distinction between finding and purchase. The user by the defendant in this case, was because he knew not that he had no right, or that the property was in the plaintiff. To say then that the user was not lawful, and therefore a demand and refusal needless, to constitute a conversion is begging the question.

Note. The late *Thomas*Jenvngs, Esquire, in his note book, from which the report of this case is principally taken, has the following note, viz. “ This matter was set- “ tied at the bar by the parties, but I was informed the 5‘ Court were of opinion, that the plaintiff was barred by *u*the act of limitations.”