#### WILLIAM CARTER *vs.*EDWARD A. STREATOR AND WILLIAM W. SANDERS.

One’s agreement to work with his own slave for another by the day, gives the employer no interest in the slave to entitle him to bring an action, or to deprive the owner of a right of action, for taking away the slave while so employed.

In trespass or trover the defendant cannot, for the purpose of diminishing the damages, avail himself of anything which lessens the value of the property while in his wrongful possession.

AotioN oe Trespass, tried before Caldwell, J., at the Spring Term, 1856, of Anson Superior Court.

The action was brought for seizing and selling a negro slave named John. The plaintiff, Carter, and one Kirk had jointly hired the slave for the year 1855. In May, of that year, their joint ownership was terminated by a contract between them, and John became the sole property of the plaintiff for the remainder of that year, and thenceforward was in his sole possession. After this separation the plaintiff hired himself and the said John to one Ragan, to work by the day; and while they were so working, the defendant Sanders sued out an execution against Kirk, which was put in the hands of the defendant Streator, and went together with him, and seized and carried away the said slave, and sold him for the remainder ■ of the year. The sale took place on the 22nd of June, when the plaintiff was present and forbade the same.

The defendantproved that, after the sale, during two months, John was sick and unable to work, and insisted that it should go in mitigation of damages. lié also insisted that the action should have been *“*case,” and not “ trespass.”

*63His Honor ruled both these points against tbe defendants, and, under a charge according to this opinion, the jury found for the plaintiff.

Defendants excepted. Judgment and appeal.

Da/rgcm, for plaintiff.

No counsel appeared for defendants in this Court.

Battle, J.

There is nothing in the bill of exceptions which can justify us in reversing the judgment which the plaintiff obtained in the Superior Court. At the time when the slave in question was levied upon and sold under the execution in favor of one of the defendants against Kirk, the latter had no interest in him. This seems to have been conceded by the defendants; for their Only objection to the plaintiff’s right to recover is, that his form of action was misconceived. They say that, by his contract with Ragan, the possession of the slave became vested in Ragan during the time for which the plaintiff and his slave were to work for him, that consequently the plaintiff’s interest was only reversionary, for an injury to which, “case,” and not “trespass,” was the proper remedy. This objection is founded upon an entire mistake as to the effect of the contract with Ragan. The plaintiff did not thereby part with the possession of his slave ; on the contrary, he was necessarily to continue it in order to be able to fulfil his contract for working himself and his slave by the day. If the possession had been Ragan’s he might have maintained trespass or trover for the same, which cannot be seriously contended for.

The instruction as to damages was undoubtedly correct. In trespass or trover the defendant cannot, for the purpose of diminishing the damages, avail himself of any thing which lessens the value of the property while he is in the wrongful possession of it.. Had the slave died the day after he was taken by the defendants, they would have been liable to the plaintiff for the full value of his interest in him.

Per Curiam:. Judgment affirmed.