#### PELEG SIMMONS *vs.*JESSE SIKES.

Where property bailed has been lost by the bailee, or stolen from him, or been destroyed by accident or from negligence, trover will not lie, but *case*is the proper remedy.

But where the bailee has been an agent in the destruction of the proper, ty, or in its injurious conversion, trover will lie against him.

This was an appeal from the judgment of the Superior Court of Law of Tyrrell county, at Spring Term, 1841, his Honor Judge Battle presiding.

It was an action of Trover for a canoe, in which it was proved for the plaintiff, that the defendant borrowed the canoe from him, and some time afterwards came to him and apologised for not having' returned it, as he ought to have done, when the plaintiff said it made no difference as he had not needed it. The plaintiff then called a witness, who proved that the defendant brought the canoe to his, the witness’ dock, which was a safe place for it, and left it there; that a short time afterwards, the canoe was missing from the dock, and about two months from the time it was left there by the defendant, the witness saw it some distance off, stranded on *99the beach and broken up. The defendants’ counsel contended, that, as the defendant had taken the canoe under a bailment, and no demand and refusal to deliver it had been proved, he could not be charged with a conversion of it, unless he had actually destroyed it; and moved the court to instruct the jury that there was no evidence of a conversion to be left to them. This instruction the Court refused to give, saying that there was some evidence of a conversion, the weight of which, however, was entirely with the jury, and that if they were satisfied from it that 'the defendant had actually destroyed the canoe, they should find for the plaintiff. The jury found for the plaintiff, and judgment being rendered accordingly, the defendant appealed to the Supreme Court.

No counsel appeared on either side in this Court.

Daniel, J.

This action is Trover. If there be a deprivation of property to the plaintiff, it will constitute a conversion, though there be no acquisition of property to the defendant. *Keyworth*v Hill, 3 B. & A. 687. If the property had been lost by the bailee, or stolen from him, or had been destroyed by accident or from negligence, this action could not have been sustained, but *case*would have been the proper remedy. 2 Saund. Rep. 47. *Packard*v *Getman,*4 Wend. R. 613. *Ross*v. *Johnston, 5*Bur. Rep. 2285. To sustain this action of Trover, the defendant must have been proven to have been an actor and to have made an injurious conversion, or done an actual wrong. Salk. 655. Peake’s Rep. 49. The Judge informed the jury, that, if they were satisfied from the evidence, that the defendant had actually destroyed the canoe, they might find for the plaintiff. The delbndant, however, insisted that there was *no*evidence, that he;was an agent in the destruction of the property, and, without some evidence upon this point, the Judge should Charge the jury to find for the defendant. The Judge said there was some evidence of a conversion, the weight of which was left entirely with the jury. If seems to us that there was some evidence, from which the jury might infer *100that the defendant was an agent in the destruction of the property. The defendant had placed the canoe, in the dock of the witness, which was a place of safety, and a short time afterwards it was missing-, and in two months it was found broken up on the beach. It is not pretended that the canoe was removed from the dock by the winds — no presumption arises that the bailor removed it — the bailee had a right to remove it; and, in the absence of all other proof, the jury might presume that he, who had a right to remove, did remove the canoe, and, the canoe being afterwards lound broken up, the jury might presume, in the absence of other evidence, that it was broken up by the agency of him, who had the control and management of the property. The judgment must be affirmed.

Per Curiam, Judgment affirmed.