#### CALED SETZAR AND WIFE vs. LUCIUS Q. C. BUTLER.

If a bailee misuses the thing bailed, an action on the case lies — if he refuses-deliver the property bailed, when properly demanded by the bailor, an action of trover is the remedy. But trespass m armis de bonis asportalis, will not lie, unless the property has been destroyed by the bailee.

Appeal from, the Superior Court of Law of Davie County, at the Fall Term, 1844, his Honor Judge Manly presiding.

This was an action of trespass vi & armis, to recover damages for taking a bed and bed clothing.

The proof was, that the female plaintiff was the daughter of the defendant’s testatrix, Rachel Boswell, and had, for several years prior to her mother’s deftth, lived separately from her — that a short time before her decease, the mother expressed dissatisfaction with the provision she had made in her will for her said daughter to. two or three witness,es, and in her conversations with them, explaining how she was not quite as destitute as might be supposed, said “ that her daughter was the owner of a good bed and furniture, that it was at Samuel Patterson’s and would be left there for her, and no body could take it away.” The testatrix lived at Samuel Patterson’s, called that her home, and kept possession of the bed to the time of her death. The defendant, as her executor, then took possession of it and sold it, the sale being forbid.

The plaintiffs having closed their testimony, the court intimated an opinion that trover, and not trespass, was the proper remedy, and that the latter could not be maintained upon the proofs in this cause. In submission to this opinion, the plaintiffs suffered a judgment of nonsuit to be entered, and appealed to the Supreme Court.

No counsel appeared in this court for the plaintiffs.

Boyden for the defendant.

*213Daniel, J.

This is an action of trespass vi et armis da bonis asportaiis, in taking and carrying away a bed and its furniture, the property of the plaintiffs. Plea — not guilty. The judge in his charge to the jury assumes, that trover would lie for the plaintiffs, and therefore that the plaintiffs must have had not only the title to the bed, but also the right to the immediate and exclusive use and possession of it. It seems that the mother of Mrs. Setzar was the bailee of the bed, and the defendant, when he took possession pf it as her executor, stood in the same relation. The bailor demanded of him the bed, and he refused to give it up. This refusal turned him into a wrong-doer, and was in itself evidence of a conversion. The defendant however went on, and sold the bed to some third person. Cap an option of trespass be sustained by the bailor for these acts done by the bailee 1 If a bailee misuses the thing bailed, an action on the case lies. And if the bailee, on demand, refuses to deliver up the thing bailed, or sells it. but does not destroy it, then trover may be brought. But if the bailee destroys the thing bailed, as if sheep or cattle be bailed, and the bailee kills them, then trover or trespass may be maintained by the bailor against the bailee, as the bailment is determined by the act; Co. Lit. 57, (a) 58, 200, (a.) 3 Stephens N. P. 2637. It does not appear from the case, that the bed is destroyed, or out of the reach of the plaintiffs, and trover may often be brought when trespass cannot, (2 Saund. R. 47, (p.) as if goods are lent or delivered to another to keep, and he refuses to return them on demand, trespass does not lie, but the proper remedy is trover. The judgment must be affirmed.

Per Curiam, Judgment affirmed.