#### BENJAMIN H. CHARLES, Adm’r. of THOMAS MORRIS vs. AARON ELLIOTT.

The gist of the action of detinue is the 'wrongful detainer at the date of the writ, and not the original taking of the chattel. It is generally, therefore, incumbent on the plaintiff in this action, to shew an actual possession or a general controlling power over the chattel by the defendant, at the date of the writ. And if the defendant had not the actual possession at the time when the writ was sued out, it cannot be said that the defendant is in law liable to the action, but only that he is liable if, upon the evidence, the jury should infer that he had agen-eral controlling power over the possession at that time.

This was an action of Detinue, brought to recover a slave, by the name of Rippon, and tried at Pasquotank, on the last circuit, before his Honor Judge Nash, upon the pleas of non detinet and the Statute of limitations.

*469Dec. 1839

The plaintiff shewed, that in January, 1839, he demanded the slave of the defendant, who refused to deliver him; that in March following, the plaintiff administered on the estate of Thomas Morris, (who had been dead for some years,) and immediately thereafter, as Morris’s administrator, sued out this writ. It appeared that the slave in question was the property of his intestate, Thomas Morris: that the defendant and one David White were trustees of a Quaker society; and that the slave had been claimed by the defendant as the property of the society, under a deed given by Thomas Morris, which deed was void in law. The defend-dant had the possession up to February, 1839, when he sent the slave to White, to protect him from the attempts of the plaintiff to take forcible possession. White sent the slave out of the State without the knowledge or consent of the defendant; but afterwards informed the defendant of it, who made no objection to the sending away of the slave. The plaintiff contended that the possession of White, and also of the person into whose possession White put the slave, was, in laxo, the possession of the defendant.

His Honor instructed the jury, that if the slave was sent to White to prevent the plaintiff from taking forcible possession of him, and White sent him out of the State without the previous knowledge and consent of the defendant, then the plaintiff could not maintain this action. The jury, by their verdict, found that the defendant did not detain the slave, and of course did not respond to the other issue. The defendant had a judgment upon the verdict, and the plaintiff appealed.

No Counsel appeared for the plaintiff in this court.

J H. Bryan for the defendant.

Daniel, Judge,

after stating the case as above, proceeded as follows: The gist of the action of detinue is the wrongful detainer at the date of the writ, and not the original taking of the chattel. 3 Bla. Com. 152, Co. Lit. 286, b. It is generally, therefore, incumbent on a plaintiff in this action, after shewing that he has an absolute orspecial property, and also a right to the immediate possession, also to shew an ac*470tual possession or a general controlling power over the chat-by the defendant, at the date of the writ. Anderson v. Passman, 7 Car. & Pay. 193, Leigh’s N. P. 782. If, however, one having a right to the possession of property make a demand therefor, which is refused, and thereupon and be-the writ is sued out, the defendant part with the possession, then this action may be maintained; for the transfer of after demand, is treated as an act done in elusion °f the plaintiff’s action. In this case, it is not pretended that w^etl-tlie demand was made, the plaintiff had any right to the slave. The action, therefore, must be regarded as one brought without a demand, and of course subject to the ope-of the general rule. According to the case, the defendant did not have the actual possession when the writ, was sue<l out, and therefore the plaintiff could not rightfully re-9uh'e of the Judge to charge that the defendant was in law liable to his action. If he had asked of the Court to instruct the jury that the defendant was liable, if upon the evidence they inferred that he had a general controlling power .over the possession', it can scarcely be questioned but that this re-would have been complied with; for the instruction ac-tuahy given seems tantamount to it. He cannot be received to complain that the instruction was not more specific, when he did not ask that it should be. We do not see any error in the charge of the Judge, and the judgment must be affirmed.

it one hav-chai'tds of make a íbr^viIíXe" aniTthere’ upon and wriT^sued out, the •with the thTacdo"’ ”iLd be'”6 maintained; transfer of afierre" mand, is of the plain tiff’s ae-tI0“'

Per Curiam. Judgment affirmed.