| N.C. | Dec 5, 1847
The action was trover for two mares, a colt and some corn, and was tried on the general issue. Several points were made for the defendant on the trial, on which the presiding judge gave opinions; but it is only necessary to state one of them, as the counsel here abandoned all the others. As to the point insisted on in this Court, the case is as follows: The plaintiff was a constable in Orange County, and had in his hands several *43 fi. fas. on justices' judgments against John Boling; and on 6 October, 1842, he levied them "on a cream-colored mare and her colt, the defendant's crop of corn, say from 25 to 40 barrels, and crop of fodder." The plaintiff left those things in Boling's possession on his plantation in Orange. He afterwards received other executions against Boling's property, and on 3 November, 1822, he levied them "on a sorrel mare, the defendant's crop of tobacco hanging in the barn, his crop of corn in the field, supposed to be 30 or 40 barrels, and five stacks of fodder"; and these things also the plaintiff did not remove, but left them on the place in the possession of Boling. The plaintiff then gave evidence that the defendant, as a contrivance between him (45) and Boling to defeat the levies of the plaintiff and give the defendant's the benefit of the property, removed the mares and colt and the corn, on 4 and 5 November, 1842, out of Orange to the defendant's residence in Person County, and there had them sold.
On the part of the defendant evidence was given that on 3 November, 1842, he obtained judgments against Boling before a justice of the peace in Person, and sued out fi. fas. and that as he carried this property into that county it was seized under them by a constable of Person, and afterwards duly advertised and sold.
The counsel for the defendant moved the court to instruct the jury that by leaving the property in the debtor's possession the plaintiff abandoned his levies, especially on the cream-colored mare and colt; or was guilty of a fraud by which he lost his property in the articles seized by him. But the court refused to give the instruction, and on the contrary directed the jury that by coming into Orange and taking the property there, without process, and with the view of depriving the plaintiff of it, the defendant was guilty of a conversation, which entitled the plaintiff to recover, although Boling might have assented to it and assisted in its removal out of the county. A verdict was given for the plaintiff, and from the judgment the defendant appealed.
The Court thinks the judgment must be affirmed. The instruction is impeached on the authority (46) of Roberts v. Scales,
There each party was a creditor proceeding on process, so that the one who last levied and took the property into actual possession showed rights which might be affected by the fraud or laches of the other officer. But on whom can this plaintiff be charged with a fraud? Certainly, it was not a fraud on Boling to leave him in possession; and so far as the defendant acted under Boling's directions, or by his consent, he must stand in Boling's shoes. If, however, he could get clear of that connection, he would then be a mere wrongdoer in taking the property in Orange without any legal authority operating in that county; and as he acted with a view of depriving the plaintiff of the property, such taking and the removal of the property was in itself a conversion, which entitled the plaintiff to this action. If the defendant wished to impeach the plaintiff's levy he should have obtained executions in Orange, which would have authorized him to seize the property. Until he did so he had no right or authority to intermeddle, and could not in a legal sense be prejudiced by the act of the plaintiff.
PER CURIAM. Judgment affirmed.
Cited: Bland v. Whitfield,
(47)