Tharp v. Anderson

By the Court. Eyon, J., delivering the opinion. The action of trover in this case was well brought. The defendant had wrongfully taken the negro, the property of plaintiff, and converted him to his use. ‘ For this trover lies. The redelivery of the negro to the plaintiff does not bar the action, but only goes in mitigation of damages. Butler, N. C., 44. So every unlawful taking, having the effect of altering the nature of the property, is a conversion. 2 Geo. and cam cited. Any use or disposition of a chattel, without the consent of the owner, and inconsistent with his right, is a conversion. 1 Bailey, 346. The same principle is recognized in Liptrot vs. Holmes, 1 Kelly, 391. Any number of authorities might be collected directly on the point, as we think the adjudication of the Court on the point must control the case. In Collins vs. Lyons, 18 Geo. 648, the plaintiff sent his negro to mill, and, while there, the water-wheel got out of order. The negro, in assisting to raise the wheel, received a blow, by the lever falling, which caused his death. The defendant being present, it was held' that he was liable in an action of trover. The defendant in this cause, against the consent of the owner, put the negro to his own use, and while so employed received an injury which caused his death. Wé hold that he is liable to the plaintiff thus occasioned in an action of trover. The nonsuit granted must be set aside. JUDGMENT. Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in granting a nonsuit and dismissing plaintiff's action.