#### Governor upon the relation of Aquilla Oxley, et. al. v. Isaac C. Freeman.

Where one residuary legatee, who had hired a slave, part of the residue, from the executor for a year, sold him tortiously, in the presence of a joint legatee, who did not disclose his title, the executor cannot maintain trover against the latter.

This was an action of Debt upon the bond given by the defendant, to secure the discharge of his duty as administrator with the will annexed of William liayner. The breach assigned was, that the defendant had not accounted to the relators, who were some of the residuary legatees of liayner, for a negro slave named General, who was of the assets of his testator, and who had come to his possession.

The defendant pleaded performance, and upon the issue presented by that plea, the cause was tried before Martin Judge, at Bertie, on the last circuit, when the following facts appeared in evidence.

The defendant had hired the slave to .linos Douglitry, one of the residuary legatees of his testator, for a year; that during that year Douglitry had sold the slave to one Reddick, who had removed him out of the State.— That the defendant had immediately commenced actions against Douglitry and Reddick, and had recovered judgments for the full value of the slave, but had not been able to procure satisfaction, because of their insolvency. That when the sale to Reddick was made, John and Daniel Douglitry, brothers of Jlmos, and also residuary legatees oi Rayner were present, and did not object to it.— That William Douglitry, another brother, and also a residuary legatee, having beard of the intended sale the day before it was made, had advised Reddick against it, but after it had taken place bad seen Reddick in the possession of the slave, and was present when the latter had carried him out of the county; and had taken no steps to prevent it, neither did he then object to the sale made by his brother. It was in proof that William and Daniel Douglitry were solvent, and for the re-*473jators it was contended, tliat Joint, Daniel, and William by being present at the sale to Reddick, and not objecting to it, or by permitting the slave to be removed, had ltia(]e themselves equally liable with Amos to the plaintiff for the conversion, and that as he had not brought actions against them,lie was liable to the relators for the value of the slave.

His Honor instructed the jury that when persons liav-ing a title to property were present at the sale thereof, either by a joint owner or by a person who bad no title, it was presumptive evidence of an assent to the sale.— That if a person after objecting to a sale of property to which he had title, was shortly thereafter to see the property in the act of being removed by the purchasers, under circumstances which enabled him to make known his dissent to the sale, and he neglected to do so, that his assent to it might be inferred from these facts, and that if an assent by John, Daniel or Wm. Doughtry to the sale made by Amos was inferred by the jury, then they were liable for the conversion, and the defendant should have taken steps to subject them.

A verdict was returned for the plaintiff, and the defendant appealed.

No Counsel appeared for either party.

Dantes, Judge.

The plaintiff was permitted fo recover in this case on theground that the defendant might, by an action of trover against John, William, and Daniel Doughtry, have recovered the value of the slave General from all or sonic one of them, and that he negligently omitted to bring such action, whereby the price of the said slave has been lost to the relators. The question presented is, could he have recovered if lie bad brought such an action? In trover the conversion of the property is the gist of the action, and in general, evidence of some tortious act is essential to a conversion. What will amount to a conversion when proved, is a question of law. In this case it was in evidence that Amos Doughtry, who had hired the slave of the defendant for the term of one year, sold the said slave out and out to Reddick, and that John and Daniel Doughtry, *474bis brothers, who liad some equitable, interest in the slave, were present at the time and place of sale, but they neither said nor did any thing relative to the transaction. William was not present at the sale, but had knowledge that Reddick was about to carry the slave away, and did not forbid, nor prevent his doing it.— Jhnos having the legal estate in the slave for the year, had of course the whole control and management of him for that space of time, John and Daniel being present at the absolute sale of the slave, and neither saying nor doing any thing, was evidence either of an admission, that they had no title to the slave, or a relinquishment of such title as they might have. An acquiescence and endurance, when acts are done by another, which if wrongfully done are encroachments, and call for resistance and opposition, are evidence as a tacit admission that such acts could not legally bo resisted, (2 Starkie, 37. 38.) A sale of property by one who has no title,in the presence of the owner, without objection on his part has been said to estop the latter from impeaching the transaction on the ground of his better title, (Bird v Benton, ante 2 vol. 179.) Perhaps the more accurate phrase would he, that this conduct is strong evidence of a waiver of such title. But whether it amounts to a technical estoppel, or to a virtual relinquishment, we know' of no rule of law which declares that the bare „ , . • ,, . • presence of a person, neither doing nor saying any thing when another person docs an illegal act, makes of itself, the former a confederate xn the illegal act so. done by the latter. The owner being present, when a sale of his property is made by another, if lie makes no objection, and fails to disclose his title, may rightfully be precluded from setting it up afterwards. But the law does not go farther, and from that circumstance declare that lie makes the sale, particulaxdy if that sale is to he held a tortious and illegal act, as relating to the rights of third and absent persons. Vc think from the case stated, that the defendant could not have recovered the value of the slave from either of the three brothers oiJlmos. Daughtry, and that a new trial must be granted-

íTm'voLp.1.79)

{ ¿ by, while proper-¡y m wlncl1 he has an interest, is waives his htfe m favor of

¿^ehy* become guilty óf a con-

■Per Curiam, — Judgment reversed.