#### FARNIFOLD L. McDANIEL v. JOHN H. NETHERCUT.

Where a constable, by levy.-and actual seizure of a slave, had acquired a right to the property for the satisfaction of- executions in his hands, and delivered such slave to the jailor o£ she county-for safe-keeping, a refusal.ofi the jailor to re-deliver the said slave,.by command 'of his superior, the sheriff, was Held, in an action,of trover by the constable, against the sheriff, to be evidence of a conversion.

Action of trover, for the conversion of a slave, tried before Bailey, J., at the last Rail Term of Jones Superior-Court.

The plaintiff was a constable of Jones county, and by vir*98tue of certain executions in his- hands, levied one of them, on the 4th of September, 1859, and oné other on the 12th of the same month, on a female slave, as the property of one Andrews, and delivered her to the jailor of the county, who put her in the common jail of the said county. Afterwards, and before this suit was brought, McDaniel, the plaintiff, called on the jailor for the slave in question, and he refused to deliver her. It appeared in evidence, that this refusal was occasioned'by the command of the defendant, who was, at that time, sheriff of Jones county. The defendant, as sheriff, had certain executions in his hands, tested of June Term, 1859, of Jones county court, against one ¥m. E. Huggins, which were levied on 12th of September, 1859, on the said slave, and he had various court executions, against Andrews, tested' of the same term, but none of them levied on the slave. The defendant showed, in evidence, a bill of sale from Andrews to said Huggins and one Smith, dated in 1856, which was absolute on its face, but was intended as an indemnity to Huggins and Smith, as surety for said Andrews in certain debts which had been subsequently paid by Andrews, and said bill of sale was not intended to defraud any one. The defendant, under the executions in his hands, sold the slave in question, the plaintiff being present, forbidding the sale. The writ was brought after the demand, but before the sale. ,

The Court charged the jury, that the plaintiff having levied his execution first, and having the negro in his possession, was entitled to recover, provided there was a conversion on the part of the defendant, and that there was evidence as to a conversion, which was left to their consideration. He also charged, that the. sale to Huggins and Smith, by bill of sales absolute on its face, but intended as a mortgage, was null and void as to the plaintiff. Defendant’s counsel excepted.

Yerdict and judgment for plaintiff, for $1000.

Defendant appealed to this Court.

McRae, for the plaintiff.

Haughton, for the defendant.

*99Battle, J.

In the argument here it is conceded, and properly conceded, by the defendant’s counsel, that the plaintiff had, by his levy and taking possession of the slave, acquired the right to her, for the purposes of his execution, as against the defendant; see Jones v. Judkins, 4 Dev. and Bat. Rep., 454. The counsel properly conceded also, that the bill of sale from Andrews to Huggins and Smith, was void, as against the plaintiff, (Gregory v. Perkins, 4 Dev. Rep., 50,) but he contended that the plaintiff’s action could not be sustained, because there was no evidence of a conversion of the slave by the defendant. In support of this position, the counsel referred to several cases, to show that a mere levy upon a personal chattel, without a seizure of it, is not a trespass, and, therefore, is neither a conversion nor any evidence of it; soo Bland v. Whitfield, 1 Jones, 122; Ragsdale v. Williams, 8 Ired., 498; Francis v. Welch, 11 Ired., 215; Glover v. Riddick, Ibid, 582.

This may all be true, but the defendant, in the present case, did-much more. The jailor of his county, who is his officer, and into whose possession the plaintiff had- placed the slave to keep for him, refused, upon, demand, to deliver her to the plaintiff, and did this by the order of thé defendant. The refusal was, then, -in legal effect, the .refusal of the defendant himself; and a demand and refusal has always been consider1 ed as evidence of a conversion ;• and if unexplained, a. con1 version may, and ought to bé inferred by a jury, from them. The subsequent sale of .the slave, by,the defendant, as sheriff, having been made after the commencement of the suit, could not be relied on as the ground of the action, but it was proper to be considered as evidence, tending to show the purpose for which the refusal was made by the sheriff’s officer.

The question of damages was not made, (so far as the transcript shows,) in the Court below; and; there is nothing stated from wdiich we can discover, that the amount of the execu1 tions, in the hands of the plaintiff, was not the full value oí the slave.

Per Curiam,

Judgment affirmed.