#### Edmund and Martha Dunston, v. Benjamin Hardy.

A person, not the guardian of infants, who takes upon himself to hire out their slaves, making the bonds payable to himself, is a wrong-doer, and may be rendered liable for a conversion. And the proper measure of damages, is the amount of the hiring, with interest from the expiration, of the credit.

The doctrine of conversion stated by Rurprir, J,

This was an action of Trover, for the conversion of slaves, tried before his Honor, Judge Mangum, at Bertie on the Spring Circuit of 1830, when the following facts were in proof.

In the year 1818, one Edmund Fleetwood, was the guardian of the plaintiffs and in their right had possession of the slaves in question. He died in December 1818, having duly appointed Benjamin Hardy, his executor. On the first day of January, 1819, the plaintiffs having no guardian, Benjamin Hardy, as the executor of the former guardian, and with the full knowledge that the slaves belonged to the plaintiffs, hired them out for one year, and took the notes for the hires, payable to himself. The obligors in the notes, and their sureties were deemed good at the time of the hiring, but before the expiration of the credit, (twelve months) the obligors and the sureties failed, and Hardy did not collect the hire. The slaves were not demanded of Hardy, during the year 1819, and after the hiring had expired, to wit, the 1st of January, 1820, they came to the possession of the present guardian.

The plaintiffs, by their guardian, brought this suit some time in the year 1824, and alleged the act of hiring for one year to be a conversion, and claimed damages for the value of the hire for one year, and interest to the day of the rendition of the judgment. The jury under the instructions of his Honor, rendered a verdict for the plaintiffs, for the actual amount of the hires, bargained for by Hardy, and interest on that amount, from *573th'e 1st of January, 1820, -the day, on which it fell due, to the time of the trial, A new trial was moved for on'account of misdirection, and refused, and a judgment entered upon the verdict; from which the defendant appealed.

Gaston, for the defendant.'

Hogg, for the plaintiffs. • .

Rueein, Judge.

I think this action is maintainable, and that the Court below did right throughout.— It may bo a hard action; but the question is, can the .plaintiffs bring it? I think, they can ; for here is an actual conversion. The defendant took the plaintiffs’ property, knowing whose it was, and disposed of it for value for one year. It is no answer, that this was intended for the.owner’s benefit. The finder of a chattel, the property of one unknown, may justify taking it, and reasonably using it. -For until the owner appear, it be-, longs to the finder. But if the latter consume it, or-sell it, he must pay the owner; for that is an actual conversion, and the -intent, makes no difference. So when one sees another’s property in jeopardy, he may take it into his care, and preserve it; but he cannot make a disposition of it, but at the.risk of the owner’s action. So, if one design a benefit'to tiie owner, and the property happens, by accident, to be destroyed in the very act of using it to promote that benefit to the owner, the party is excused. The case of the boat, put at the bar, (Drake v. Shorter, 4 Esp. Rep. 166,) is an • instance of this sort, Another might- b'e> where one took the horse of 'another, to ride for a physician for the owner, and he was.injured without negligence. Many others could be put. But they are altogether different from the exercise of that dominion, which implies a right to sell or dispose of the property. Although the taking be not wrongful, the use, in that way is. It is an . actual conversion. No person can assume an agency of that sort for another, and especially for infants.- He, who intermeddles with their property, must make sure *574of bis authority. ■ The utmost dealing with infant’s property that can be countenanced, is, to hold it for preservation until the next court at which a guardian could be appointed- It is said, the defendant did not choose to be guardian; but that he voluntarily did the appropriate acts of one, for the benefit of the infants ; and therefore ought not to be charged. But the intent cannot alter the fact. Here, I repeat, is an actual conversion. All beyond preservation is a tortious charity.' But if it were pxit upon the question of intent, the case is equally conclusive against the defendant; for he took the bonds payable to himself, so as to make himself, and not the hirers, debtor to the infants. There aré however, many instances, in which the law will not tolerate acts of officiousness, flowing from the most benevolent motives. Suppose the infants here, had died, instead of -their guardian. Tlierecan be no doubt, that ORe may safely,- and often ought, to collect the effects of a deceased person, for safe keeping. The law supports such an act. But he must not keep them too long; nor must he, in any event, sell them, however perishable they may be, and though the sale be absolutely necessary to prevent their destruction or waste. If he docs, he becomes a wrongful executor. Why? Because it is too dangerous to let men, upon any pretence, intermeddle with other'people’s property, -in a .way looking like ownership in themselves. And in such case, it is clear, that a subsequent administrator might bring trover, either against the seller or the buyer. Such transaction is indeed capable of confirmation. Bufhere the plaintiffs were infants and could not assent, and .their guardian refused the bonds. They have, elected to consider the defendant, not constructively their agent, but according to his apparent and direct character, a wrongdoer. I see nothing to prevent them. to the damages and interest, they were properly left the jury, with directions to make the value of the property, the measure. ■ Trover is not a vindictive action which the character of the party, or the feelings of jury, constitute the standard of damages. It is to *575cover for an injury to property; and tlie question is not the gain of the defendant, but the loss of the plaintiff. ^

Per Curiam. — Judgment affirmed.*

*

This case was decided several terms ago, but the papers having been misplaced in the confusion occasioned by the fire, which consumed the Capitol in 1831, it could not be reported sooner.