#### THOMAS CRAIG *vs.*THOMAS D. MILLER.

A, owning a slave, died intestate, and no administration was ever granted o'ii his estate. The next of kin took possession of the slave, and kept him for seven years. They then sold him to B, who kept him for ten years, and ho’ was then sold by B’s executors to C. After remaining in C’s possession, four years, he ran away, was caught and confined in jail; from which he was' taken by D, who,- upon demand,- refused to deliver him to C- *Held, th&t C’s*possession entitled him to ah action of Trover against D, who was a! mere wrongdoer, setting up do title in himself.

The oaSes of *White*v *Ray,*4 Ire. 14, and *Powell*v *Powellj*11 Ire. 80, Oito'd; commented on, and approved; .

Appeal from the Superior Court of Law of Henderson County, Spring Term 1851, his Honor Judge Settle pref siding.

This is trover for a slave, and was decided on the following case agreed, Thomas Rhodes, of Buncombe County,owned the slave and died intestate in the year 1827, leaving a widow and an only child then-married to John Miller No administration was taken on the estate,- but Mrs.. Rhodes and John Miller paid all the debts and took the property of every kind into their possession, claiming and using it as their own; and in 1834 they sold the negro to John Craig, who lived in South Carolina,- ánd kept the slave in his possession there for ten years, and then died,- and his executors sold him to the plaintiff, who' had possession of him for four years. The slave' then runaway, and came back to the residence of Mrs. Rhodes,-with whom the' defendant íived; and the slave was committed to jail as a. iunaway,- but was afterwards taken out of jail by the defendant, who is a son of John Miller, and upon demand of the plaintiff refused to deliver him; and then this action.1 ivas brought. Judgment was rendered thereon for the' *376plaintiff for the value of the slave, as stated in the case agreed, and the defendant appealed.

*N. W. Woodfin,*for the plaintiff.

*J. Baxter,*for the defendant.

Ruffin, C. J.

Without having recourse to the presumption of a good title from a sale by the next of kin and upwards of twenty years’ possession by the plaintiff and those under whom he claims, since the death of the original owner, Rhodes, the Court is of opinion, that under the circumstances the plaintiff’s possession entitled him to hold the slave as against the defendant, who is a mere wrong-doer; and, therefore, that he may maintain this action of trover. It is distinguishable from the cases of *White*v. *Ray,*4 Ire. 14, and *Powell*v. *Powell,*11 Ire. 80; in the former of which the action was brought *by*the administrator, and in the latter, the true owner was in existence, and known. But this is more like the case of the lost jewel, for which the finder was allowed to maintain trover against the goldsmith, to whom it had been submitted for his opinion, and who refused to deliver it back. *Armory*v. *Delamirie, 1*Str. 505. For, although the rightful owner was not known then, it was known, that there must be some owner; and, therefore, if the mere possibility of an owner’s appearing or coming into existence would defeat the action, the plaintiff could not have had judgment. It would seem, therefore, •that, if the defendant had received the slave from the plaintiff and refused to re-deliver him, or had taken him from the plaintiff’s actual possession, he would he liable in trover. This is much the same; for, the plaintiff did not lose his possession by the slave’s running away, but he was still the •subject of larceny, as his and in his possession. Indeed he •was taken by the defendant and committed as a runaway. From whom ? Plainly, from the person, in whose possession he was at the time of absconding; and as such he was *377rightly detained as a runaway. The defendant, therefore, cannot bar the plaintiff by settingup his subsequent wrongful act of taking the slave out of prison and holding him against the plaintiff. The defendant wrongfully interfered with the plaintiff’s possession, which gave him such a right of property, as entitled him to hold against every person, except an administrator of Rhodes, if one should ever exist; and, there being none, he may have trover against a mere, wrong-doer.

Pint Curiam. Judgment affirmed.