#### THOMAS LEE *vs.*JAMES J. McKAY.

In an action of Trover for lumber, *held*that although, the defendant’s slaves took the timber and sawed it without or against his orders, or even by mistake, yet, if the lumber, when sawed, came to the defendant’s use either by being sold or otherwise appropriated to his benefit, however innocently on his part, this was a conversion, and the plaintiff was entitled to recover the value of the timber in this action.

December 1842.

Appeal from the Superior Court of *Law*of New Hanover county, at Fall Term, 1842, his Honor Judge Dicg: presiding.

This was an action of Trover-to recover the value of a lot of timber belonging to the plaintiff, and alleged to have been converted by the defendant. The plaintiff proved that he had a quantity of hewed timber in the mill pond of the defendant, which mill pond was a common thoroughfare for all persons above the mill to raft timber through to Wilmington. The plaintiff further proved, that the timber had a particular mark or brand on it — and that a block of timber, about four feet long, was found near the mill dam of the defendant, with the same mark or brand on it — that some slabs, with the plaintiff’s mark on them, were found on the creek, a short distance below the dam — a slab, with the same brand,was also found in the mill-house. It was proved on the part of the defendant, that he resided about ten miles from the said mill, and was seldom there — that the said mill, at the time of the said conversion and before, was under the management of an agent — that the operation of sawing and all other labor about the mill were performed by slaves. The agent, who had charge of the mill at the time of the alleged conversion, was examined for the defendant, and stated that, if any timber of the plaintiff was sawed up or otherwise used about the mill, it was without his knowledge or con*30sent, and against his express directions ; for he had frequently cautioned the slaves employed about the mill not to use any timber, except such as belonged to the defendant.

The court charged the jury, that if they believed from the evidence, the timber of the plaintiff, or any part of it had been sawed up, or otherwise used by the defendant or his overseer or agent, or by their directions or assent, the defendant would be liable to such damages as they believed the plaintiff had sustained. But, if they believed that the slaves of the defendant had sawed up the timber of the plaintiff, without the knowledge or consent of the defendant or his agent, and contrary to the express directions of the agent, the plaintiff was not entitled to recover. Under this charge, the jury found a verdict for the defendant, and, a motion for a new trial having been made and refused, and judgment rendered pursuant to the verdict, the plaintiff appealed.

No counsel for the plaintiff.

*Strange*for the defendant.

Ruffin, C. J.

This case, we think, was not submitted to the jury on its true point. His Honor left it to them to enquire, whether the defendant’s slaves sawed the timber, under or contrary to the directions of the defendant or his manager ■ and instructed them that if they did it contrary to those directions, the defendant was not liable. But the question is not, whether the- master, under those circumstances, should be responsible for the acts of his slaves, merely as such ; as to which, it is not necessary now to give an opinion ; but as this is an action of trower, the question is, whether there was not evidence, on which* the jury might have found a conversion, and whether it ought not to have been left to them upon that enquiry. In the absence of all evidence, that the slaves, themselves, consumed, sold, or otherwise disposed of the timber they sawed, a presumption arises, that it was mixed with the-other lumber made for the defendant, and that the whole was disposed of together for the defendant, or to his use. That would be an actual conver*31sion, and, of course, would sustain this action. For however innocent the defendant might be of the wrong done by his slaves to the plaintiff, in sawing his timber, yet the subsequent consumption or appropriation of the lumber by the defendant, would render him liable for the value, since he thereby became so much richer out of the plaintiff’s property. Therefore, the instructions should have been, that, although the slaves sawed the timber against the orders of their master, or even by mistake, yet, if the jury believed from the circumstances, that the lumber, when sawed, came to the defendant’s use, the plaintiff was entitled to recover the value of his timber in this action.

Per Curiam. Judgment reversed, and anew trial awarded.