It is true, the Constitution, in the section mentioned by Mr. Justice Pope, provides that the jurisdiction of magistrates shall not extend to cases in chancery, but this is not a case in chancery. In the case of Nix v. Harley, 3 Rich. Eq., 382, the Court says: "He bought the slave, Jenney, to which the plaintiffs *Page 107 were entitled in remainder after a life estate in their mother — remained in possession of the slave for more than four years — then resold the slave to the person from whom he had purchased — all without notice of any right in the plaintiffs. The bill states the fact that Millhouse had sold the slave, and prays that he may be required to pay to the plaintiffs the price received by him, with interest, and account for the hire before the sale. The claim of the plaintiffs is one strictly legal, which might be enforced by trover or assumpsit in the Court of Law, and no circumstance is stated requiring the peculiar interposition of this Court. It may be admitted to be a principal of equity, as stated by Chancellor Harper in Bryan, v. Robert, 1 Strob. Eq., 343, and Hill v. Hill, 1 Strob. Eq., 23, that if a stranger in possession of my property undertakes to sell it, and delivers it accordingly, it is at my option either to pursue the property in the hands of the holder or to affirm the sale as the act of a voluntary agent, and recover the proceeds in his hands * * *; plaintiffs proceed for the price of a single slave sold and nothing more; and we think that for such a demand, strictly legal in its character, he should pursue his remedy in the Court of Law." As the first exception is dependent upon a reversal of the facts, which cannot be reviewed by this Court, it was properly overruled.
In considering the second exception, it will be well to keep in view the exact question it presents. It raises the single question whether an action for claim and delivery will lie when the chattel has passed from the possession of the defendant before suit brought. The question of demand or notice of the plaintiff's right before possession is delivered to another, is not raised by the exception. This question is conclusively settled by the caseof Dudley v. Green, 46 S.C. 199, in which Mr. Justice Pope uses this language: "Defendant interposed motion for a nonsuit. This motion was granted by the Circuit Judge, as stated in the order, on the ground that plaintiffs have failed to prove possession of the property by the defendant, *Page 108 as alleged in the complaint * * * We are not inclined to adopt any such rule. When a sheriff or any one else takes personal property belonging to another person and upon demand therefor refuses to surrender it, but on the contrary sells such property, the person thus wronged has his right of action against such sheriff for claim and delivery, and in event such delivery cannot be had, then for judgment for its value. It is idle to say the amount of the sale must be sued for." This ruling is fully sustained by the recent case ofSinnott v. Feiock, decided by the Court of Appeals of New York and published in Central Law Journal of 15th March, 1901, p. 210, in which the authorities are exhaustively reviewed, and to which there are copious notes by the CentralLaw Journal. In that case the Court uses this language: "Originally at common law the action of replevin lay to recover the possession of goods illegally distrained by a landlord. The primary object of the action was to recover possession of the specific chattels. The form of the action was so useful, that the action was extended to nearly all cases of unlawful caption or detention of chattels, where it was sought to recover the chattels in specie. In many cases, where the plaintiff was unable to obtain the return of the chattels, he could recover in the action their value. Still the action remained essentially one to recover the possession of chattels, as distinguished from actions of trespass or trover to recover damages for the seizure or for the value of the property * * * The question several times arose under the Code of Procedure, whether replevin could be maintained against a party who was not in possession, either actual or constructive, of the chattels, and was the subject of conflicting decisions in the Supreme Court, and in the Superior Court of New York. It finally came to this Court, inNichols v. Micheals, 23 N.Y., 264. This was also a case of fraudulent purchase of goods, in which the defendant, before the action was brought, had voluntarily transferred the goods to his assignee. It was held that the action could be maintained. This decision was based on the authority of *Page 109 the English cases, Garth v. Howard, 5 Car. P., 346, andJones v. Dowie, 9 Mees. W., 19. In the case in this Court, Judge Selden wrote: `The theory upon which these cases proceed is perfectly sound and applies directly to the present case. It is that where a person is in possession of goods belonging to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention.' It is the consequence of his own wrongful delivery. The action in such cases may properly be brought against both, because the acts of both unite in producing the detention.' This doctrine has been steadily adhered to by this Court. Barrett v. Selling,70 N.Y., 492; Dunham v. Troy Railroad Co.,42 N.Y., 543." Evidence of a demand by the plaintiff and the refusal of the defendant is one of the modes of establishing a tortious act on the part of the defendant, even when he gained possession of the chattel in the first instance without an act of wrong; but it is not the only manner in which it may be shown that the defendant committed an act of wrong after coming into possession of a chattel without violation of law. In the case of Ladson v. Mostowitz, 45 S.C. 388, the Court quotes with approval a part of the following language from Harris v. Saunders, reported as a note in 2 Strob. Eq., 370: "A conversion may arise either by a wrongful taking of the chattel, or by some other illegal assumption of ownership, by illegally using or misusing it, or by a wrongful detention; perhaps more accurately defined by another writer thus: `a conversion seems to consists of any tortious act by which the defendant deprives the plaintiff of his goods either wholly or but for a time. Any act of the defendant inconsistent with the plaintiff's right of possession, or subversive of his right of property, is a conversion.' Here the defendant, after the accrual of the plaintiff's title and right of possession, having the slave in his own hands, by the purchase from one who had no title, sold him to another, *Page 110 who carried him beyond the plaintiff's reach, and put the price in his pocket. If this be not a conversion, and a very effectual one, too, it is difficult to imagine what would constitute a conversion. The argument is that inasmuch as the defendant was not aware of the plaintiff's title, he is not liable after the sale. It is not denied that he would be liable if he had retained the property and refused to give it up. Can the sale make any difference, when he thereby made property of him, and has the proceeds in his pocket? The sale was an act by which the plaintiff was wholly deprived of his property, and it was not the less his property because the defendant was not aware of his title, and purchased from another. If the defendant is not liable, the plaintiff is without redress, as the former holders stand on the same footing. But there is no weight in the objection. If authority were needed to support the position, it may be found in Cooper v.Chitty, 1 Burr, 20, where the sheriff levied upon the goods of a bankrupt after an act of bankruptcy committed of which he was ignorant; in an action by the assignee he was held guilty of a conversion. And in Broxham v. Hubbard, 5 Ea. Rep., 407, it was held that a sale of ship which was afterwards lost at sea, by the defendant, who claimed under a defective conveyance from a trader before his bankruptcy, was a sufficient conversion to enable the assignees of the bankrupt to maintain trover without demand and refusal." If a defendant is in possession of a chattel, he cannot be made liable in an action of claim and delivery until demand and refusal, so long as he simply retains the possession thereof. But when he sells the chattel, this is a conversion — an act of wrong — and renders him liable without a demand, although he may not have known that the plaintiff was owner of the chattel.
There is, however, another reason why the judgment of the Circuit Court should be affirmed. His Honor, the Circuit Judge, says: "The defendants converted the title when they sold her wrongfully, and action lies against them for the mare or her value." No doubt the Circuit Judge rendered *Page 111 judgment for the mare or her value, so as to give the defendants the opportunity of returning the property inspecie; but this did not render null and void that part of the judgment allowing the plaintiff $50, the value of the mare, as he had the right to bring an action to recover possession of the chattel or damages for the conversion thereof. In the case of Williams v. Irby, 16 S.C. 374, the Court quotes with approval the following language from Joplin v. Carrier,11 S.C. 327, to wit: "The plaintiff had a right to demand either damages for the taking and detention in trover for conversion or the return of the property, with damage. The Code has not changed the rights of parties in this respect * * * It is for the plaintiff to elect which form of remedy he will pursue. It cannot be objected that the plaintiff's demand in the trial justice court being for the recovery of a wagon and harness and damages for the detention thereof, it, therefore, bound him as an election as to the form of judgment. Whether a complaint in a Court of record would have that effect need not be considered, but no such effect can be claimed for informal pleadings in a trial justice court. The case then should proceed to judgment according to the rights of the parties." The judgment in the case before the Court was "according to the rights of the parties." We do not think the case of Paysinger v. Shumpard, 1 Bail., 237, cited by Mr. Chief Justice McIver, militates against the views herein expressed. That case did not decide that the plaintiff was not entitled to damages, but that he could not recover the proceeds of sale. This distinction is observed in the case of Graham v. Seignious, 53 S.C. 137, in which the Court says: "If the defendant received and disposed of the cotton mentioned in the complaint, having actual notice of the plaintiff's prior lien for rent, then he became liable, not for the value of the cotton or its proceeds, but for the damages which the plaintiff sustained by reason of the impairment of the security which the plaintiff had for enforcing payment of his lien for rent. Heath v. Haile, 45 S.C. 642. " *Page 112
For these reasons, we concur in affirming the judgment of the Circuit Court.