| Ala. | Jun 15, 1838
— In St. John vs. O'Connel, use, &c. (7 Porter’s R. 466,) it was decided, that the wrongful taking or detention of a personal chattel, or other illegal assumption of ownership, or using or misusing of it, were all acts, amounting to a conversion. So, a temporary conversion will make a defendant liable; as, if a person ride the horse, or control the services of another’s' slave, though he afterwards restore them to the owner, the cause of action, which was once perfect,, still remains; and the restoration will only go in mitigation of damar ges.
Taking these rules for our guide,, we think it clear, that the judge of the Circuit court could not, with propriety, have refused the motion of the. plaintiff’s counsel for instructions to the jury. The first branch of the motion merely assumed it as law, that if the defendant employed the plaintiff’s slave, without the master’s assent, he was guilty of a conversion.
The second branch supposed, that if after the employment of the slave by the defendant, he came, or was. restored to the plaintiff’s possession, he could not recover. In this, the plaintiff’s counsel yielded more to the defendant than he could have claimed, for the return of the slave, after an unauthorised employment, would only
The charge given was not a fair substitute for that Which was asked, and considering the facts disclosed by the bill of exceptions, cannot be maintained. The jury were informed-, that if the slave was lost while in the defendant’s employment, the defendant was liable in damages to the extent of his value, but if he was not thus lost then, the defendant was not liable. The first part of the charge is well enough, but the latter part, referring to the rules we have laid down, is clearly erroneous. Shall the illegal Use of the services of the slave, which was in itself a conversion, be placed out of view, if he happen to be lost after he has completed that service? We have already shown that the reverse is the law.
That the defendant is chargeable, if the slave was lost during the time he was employed by the defendant, Without the plaintiff’s consent, and that even to his full value, is indisputable; but if the employment was at an end when the slave was lost, though the defendant would be liable for the temporary conversion, yet the measure of damages, instead of being the value of the slave, would be the injury resulting to the plaintiff from such employment, Which, Under some circumstances, might possibly be increased.
The slave in controversy appears to have been the ferryman of the plaintiff, and might therefore be considered in his owner’s possession, On either side of the river; unless controlled by some one else. If, in crossing the river, to carry a letter for the defendant, he was lost, the defendant would be compelled to make good his value;