#### *James Trowell*v. *R. B. C. J. Youmans.*

The Summary Process jurisdiction of the Judges of the Common Pleas is permissive — not exclusive.

The jurisdiction of the Common Pleas attached to Summary Process causes before the Act of 1768, and the virtual effect of that Act, was only to provide a cheaper and more expeditious mo.de of adjudging that class of eases, without a jury if the parties pleased ; and being permissive only, did not actually oust the prior, ancient jurisdiction of the same tribunal, with a jury annexed, since no words of such import have been used.

A carrier is liable in trover, under a variety of circumstances — and where he ’ denies that he ever received the goods, and the proof is altogether satisfactory that he did, there is enough to go to the jury upon the inquiry whether he has not done some one of the acts which are held to be evidence of conversion, even in a carrier.

*68*before*Withers, J. *at Barnwell, Extra*■Term, *Jany.*1850.

The action was in trover, for a parcel of Shoes, of various kinds, a quantity of Wrapping Paper, and a matted Trunk. The value at prime cost, of the articles, according to the proof, was from thirty to forty dollars.

The plaintiff carried on traffic, as a shopkeeper, within thirty miles of Blackville, on the Rail Road. The business was transacted through an agent. Defendant lived in the vicinity of the shop. The agent had bought some supplies in Charleston for the shop, (and among other things, such articles as were set forth in the declaration) from E. B. Stod-dard & Co. These supplies were brought to Blackville on the Rail Road. Defendant and plaintiff made an agreement, to the effect that the plaintiff’s wagon should carry a load of Cotton for defendant to Blackville, and the defendant should haul thence to plaintiff’s shop a load of goods. The direct evidence from Stoddard & Co’s, clerk of the shipment of the shoes in a matted trunk to Blackville was excluded, by reason of a seeming fatal irregularity in the execution of the commission. The Circuit Judge offered a continuance to plaintiff’on this account, but he chose to proceed, and rely on circumstances to prove the receipt of the goods sued for by the defendant at Blackville, to be transported to plaintiff’s shop — and the verdict of the jury establishes the fact that he did so receive them. His receipt to Baxley, Rail Road agent at Blackville, shewed he received other goods beside the trunk which was alleged to have contained the shoes and wrapping paper — and all were delivered to plaintiff’s agent at the shop, except the “matting trunk” (as it is called.) When defendant delivered the other goods, the plaintiff’s agent said he asked Youmans for the trunk in question, and he said he had not received it. Baxley, however, said he saw defendant carry off the matting trunk. A trunk was mentioned in defendant’s receipt to Baxley, dated 2d February, 1847.

Samuel O’Nea.11 said that he was sent to demand the trunk of shoes of defendant, before this action was instituted, which was about cotton-picking time, and did accordingly demand the same, and defendant said he had never received them.

Upon this case the defendant moved a non-suit, on two grounds.

1. Because the case of plaintiff’s own shewing was confined to the *sum. pro.*jurisdiction.

2. Because there was here merely non-feasance in a carrier, for which case or assumpsit only would lie — not proof of any such tort as was the basis of an action in trover.

*69His Honor overruled the motion, and placed the case in the hands of the jury, to enquire whether the defendant the trunk to carry; if so, whether he lost it, or it had been stolen from him by some one else. In either of these cases, he would not be liable in trover, and the verdict should be for him.

But the jury were instructed that if the evidence satisfied them that the defendant stole the trunk himself, or had, in any other manner, appropriated the goods to his own use, by sale or otherwise, whether he meant to refund or not, the value to the owner, he was liable in this form of action. Some tortious dealing with the goods, inconsistent with the rights of the owner and in spite of them, was necessary to be proved by the plaintiff, but any such dealing would be a conversion.

Some illustrations were submitted to the jury, to wit:— If Youmans had sold the shoes, &c. on the road, to a purchaser, intending to account to the owner for the value, and hoping to save a profit to himself — or if he had given them away to another, whereby they were lost to the owner, or if he had never used them in any way, but doggedly refused to give them up, with no good reason assigned — in either case, there would be such an infringement of the owner’s right of property as would be tortious, and might prove a conversion.

As stated, the jury found a verdict for plaintiff for fifty dollars.

The defendant appealed, and moved for a nonsuit or new trial, on the grounds. For nonsuit.

1. Because the amount of the plaintiff’s claim is only recoverable in the Summary Process jurisdiction of the Court, the said amount being as fixed and as well known to the plaintiff in the inception of the suit as when the evidence closed.

*2.*Because there was not sufficient evidence of the conversion of the articles for which the jury awarded damages to entitle the plaintiff to go to the jury.

3. Because the action should have been case and not trover.

For new trial,

1. Because there was no sufficient evidence of a conversion.

*2.*Because the verdict was contrary to law and evidence.

*Bellinger Sp*Hutson, for the motion.

Owens, contra.

*Curia, per*Withers, J.

The action was in trover; and the value of the goods charged to have been converted, was a sum within the Summary Process jurisdiction of the Judges *70of the Common Pleas. A nonsuit is moved, on the ground,

1st. That the action was not cognizable in the General 'Jurisdiction.

2d. That, in any event, it should have been case.

3d. That no sufficient evidence of conversion was adduced ; — and on the last ground an alternative motion for a new trial is urged.

Attention to the language of our statute law will shew a clear distinction between the case of a Magistrate’s junsdiotion, and that exercised by the superior law court, by way of summary process.

By A. A. 1824, the Magistrate’s jurisdiction, “ in matters of contract, to the amount of twenty dollars, shall be exclusive, with the same right of appeal,” &c. It cannot, therefore, be concurrent, (as it was before,) which is the same thing as to say, that no other court shall take jurisdiction of that class of cases.

The summary jurisdiction of the Judges of the Common Pleas rests upon different language and reasons. Up to 1768, all civil actions for sums above twenty pounds currency had to be prosecuted in Charleston, (as appears by the preamble of the Act of that year to establish courts, &c.) 4s there recited also, that state of things repressed the settlement of the Province, accumulated the fees and business of the Provost Marshall inordinately, even to an extent “ often more than half the amount of the debts sued for, and the expense of recovering small debts, frequently far beyond the amount of such debts, to the great discouragement of plaintiffs and prosecutors and the grievance of defendants.”— Wherefore, courts in the country were established, their jurisdiction declared, gaols built, Sheriff's appointed, fees specified ; and it was further enacted, “ that it *shall and may be lawful*for the said Judges to exercise the summary jurisdiction, in the manner in which it is now administered.” It is manifest that this jurisdiction is permissive — not exclusive, and was for the benefit as well of a plaintiff as a defendant. Experience shows that it is freely used, as the advantages of expedition and economy, on all hands, might lead us to expect. Certainly the jurisdiction of the Common Pleas attached to Summary Process causes before the Act of 1768, and the virtual effect of that Act-, was only to provide a cheaper and more expeditious mode of adjudging that class of cases, without a jury, if the parties pleased — and being permissive only, did not actually oust the prior, ancient jurisdiction of the same tribunal, with a jury annexed, since no words of such import have been used.

Against the wanton abuse of the higher jurisdiction, and oppression of defendants, the practice of awarding only *71*sum. fro.*costs when the developement shows the proper occasion for it, will be a sufficient check upon bad faith. (

Whether the action of trover can be sustained, depends upon the inquiry, whether there was a conversion. That the defendant below received the goods sued for, the jury have affirmed; and though a link was wanting for a complete chain of evidence to connect the shoes to a particular trunk which he did receive, yet when it appeared that all the goods which the plaintiff’s agent bought were directed to the Rail Road agent, at Blackville, that all were received from him through the defendant,' except the shoes; that a trunk was at the same time delivered to him at Blackville, which was never produced, it is no strained inference that You-mans received the goods sued for in that trunk, to transport from Blackville, for a compensation before received.

The goods, therefore, are traced to him. He alleges, then, that he was a carrier — is liable only for breach of contract— and not in an action in form *ex delicto.*A carrier is certainly liable in trover, i. e., he'is guilty of a conversion, under a variety of circumstances ; for example, if he puts them into the hands of á third person without orders, even (it is said) if done by mistake or upon a forged order. Trover lies against a person who illegally makes use of a thing found or delivered to him; or against a bailee employed merely to keep or carry the goods, and having no beneficial interest, who misuses a chattel entrusted to him; who draws out a part of the contents of a vessel and replaces it with water; or who improperly breaks open a box of goods or sells them. See these propositions and the authorities cited, 1 Chit PI. 155. Now, when defendant denied he ever received the trunk, and the proof was altogether satisfactory that he did, surely there was enough to go to the Jury upon the inquiry whether he had not done some one of the acts, as above stated, which is held to be evidence of conversion, even in a carrier. He had the benefit of the instruction, that if he lost the goods by accident, or by the theft of another, he was not liable in trover. He has not suffered in the law propounded to the Jury, and their verdict against him has enough in the evidence to support it.

Evans, Wardlaw and Frost, JJ. concurred.

*Motion refused.*