Term. Harvey & al. V. Epes. Andrews v. Shaw, 4 Dev. R. 70; and Lewis v. Mobley, 1855. 4 Dev. & Bat. 323. In the former case the hirer of a January slave for a year sold it; and trover was brought against him by the owner during the year. Ruffin, C. J. said, "Loeschman v. Machin is a nisi prius decision of C. J. Abbot, and is not satisfactorily reported."—" If it is meant in that case to say that a bailee upon hire for a determinate period forfeits his interest by abuse to the article, or by a wrongful sale, so that a purchaser from him gets nothing, I think it is not law. I do not know of any such doctrine of forfeiture as applied to personal chattels." He thought the case came within the principle of Gortlon v. Harper, and judgment was given for the defendant. In the case of Lewis v. Mobley, a tenant for life of a slave sold it absolutely, and after his death the remaindermen brought trover against the purchaser. Gaston, J. in delivering the opinion of the court, said, "To maintain the action it is indispensable that the plaintiff should show a conversion by the 'defendant of property whereunto the plaintiff, at the time of that conversion, had a present right of possession. It is certain that an action could not have been brought for this alleged conversion during the life of William Kemp, (the tenant for life,) because the right of possession had not then accrued to the ultimate proprietors. Gordon v. Harper, 7 T. R. 9; Andrews v. Shaw, 4 Dev. R. 70. And it follows as clearly, we think, it could not lie after the death of William Kemp, when the right of possession accrued, because there was no act of conversion thereafter." In Virginia the doctrine has not directly come in question, so far as it is applicable to the hire of a slave or other property for a year, or other term. In Poindexter v. Davis, 6 Gratt. 481, a tenant for life of a slave had sold it to a person who, believing he had an absolute interest in the slave, removed and sold it out of the state. And the question arose whether the VOL. XII. 22 1855. Term. & al. V. Epes. tenant for life or the purchaser from him was liable to January the forfeiture imposed by the act 1 Rev. Code, ch. 111, § 48, p. 431. The whole court was of opinion that Harvey the absolute sale by the life tenant was not void, but valid to the extent of his interest in the slave. Judge Baldwin said, "It passes to the vendee, as effectually as a rightful alienation, the title of the vendor, and none other; and in no wise divests that of the remainderman or reversioner. It was not the design of the legislature to adopt, in regard to slaves, the common law doctrine of forfeiture by wrongful alienation of tenants for life; which sprang from principles of the feudal law, and was applicable only to conveyances of lands by feoffment, fine or recovery, which had the effect of discontinuing the estate of him in remainder or reversion." Id. 497. Judge Allen said, "The bill of sale, though absolute on its face, was not void, because it purports to convey a greater interest than the grantor owned. It operated to vest the grantee with such title as the grantor could part with, and made him the owner of a life estate." Id. 505. In Philips v. Martiney's ex'or, 10 Gratt. 333, this court decided that where a tenant for life of a slave sold it absolutely, and after the death of cestui que vie, the remainderman brought trover against the representative of the tenant, they could not maintain the action, not having had the right to the possession of the slave at the time of the sale. And the case of Lewis v. Mobley, supra, was cited and relied on by the court. So far, therefore, as our own decisions go, they tend to show that an absolute sale of personal property by a termor during the term does not work a forfeiture of the term, but is valid to the extent of the vendor's interest; and therefore does not amount to a conversion of the property for which trover can be maintained. There would seem to be no difference in this respect between a hiring for a year and for a term of years, or even for 1855. Term. Harvey life. There may be a difference between a limited interest created by contract and one created in any other January way, arising from the privity of contract existing in the former, and not in the latter case. But it is unnecessary to decide the question in this case, (as there was no sale of the slaves in controversy,) and I therefore express no opinion upon it. Thus the law seems to stand in regard to the destruction or sale of property by the hirer thereof, during the term of the hiring. No case in England, so far as I am informed, has gone to the extent of deciding that any misuses of property short of its destruction or sale, or at least an attempt to sell it (as in the case of Loeschman v. Machin) by a bailee upon hire during the term, will amount to a conversion for which trover will lie. And I am not aware of more than one or two cases in the United States which have gone to that extent; though dicta to that effect are to be found in many cases. There are passages in Story on Bailments which tend to support that view, and were much relied on by the counsel for the defendant in error in the argument of this case. Section 413 contains a passage of this kind. The writer is there treating of the hire of things; and after giving several instances in which a thing hired for one purpose cannot be used for another, he uses this general language: "And it may be generally stated, that if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss afterwards occurs, although by inevitable casualty, he will generally be responsible therefor. In short, such misuses is deemed at the common law a conversion of the property for which the hirer is generally held responsible to the letter to the full extent of his loss." The word "generally," which is twice used in this passage, is indefinite; and it does & al. V. Epes. 1855. Term. Harvey V. Epes. not appear what cases, in the writer's view, would fall January within the general rule, and what within the exceptions. If he merely intended to say that the hirer is & responsible for the loss when it is occasioned by the misuser, though inevitable casualty be the proximate cause of the loss, no fault can be found with the position. Spencer v. Pilcher was a case in which, while misuser was the occasion of the loss, inevitable casualty was the proximate cause of it. If the slave in that case had not been wrongfully carried on a dangerous voyage, he would not have been drowned: though having been so carried, there was thereafter no want of due care on the part of the hirer, and the drowning was purely accidental. That kind of inevitable casualty is no excuse to a wrong doer, who cannot apportion his wrong by saying, that the property might have been lost in some other way if it had not been misused. But if the writer intended to say that every such act of misuser by a hirer, whether it be the cause or occasion of the loss of the property or not, is a conversion thereof, and works a forfeiture of his interest therein, I do not think his position is sustained by authority, or by reason. The cases which he cites in support of the passage do not sustain it in this view. Among them are three Massachusetts decisions, which were much relied on in the argument, especially the first of them, viz: Wheelock v. Wheelwright, 5 Mass. R. 104; Homer v. Thwing, 3 Pick. R. 492; and Rotch v. Hawes, 12 Id. 136. Wheelock v. Wheelwright was a special action on the case for the value of a horse hired to be rode four and a half miles, and to be returned by 7 o'clock P. M.; but which was rode nine miles, and died at 10 o'clock P. M. in the possession of the hirer. The facts were agreed, and among them, that the defendant did not ride the horse immoderately, or neglect to feed, or cover him properly with clothes. The court was of opinion that the case agreed had ne January & al. V. Epes. gatived the gravamen alleged in the declaration, and 1855. that the plaintiff could not recover in that action. But Term. the court proceeded further to say, "the defendant, by riding the horse beyond the place for which he had Harvey liberty, is answerable to the plaintiff in trover," &c. This is not a part of the decision of the court. Though I do not mean to say it would have been an erroneous decision, if the action had been trover. The hirer retained and used the horse after the period for which it was hired, as well as for a longer journey; and so was like any other wrong doer having doer having no interest in the property which is the subject of the wrong. Homer v. Thwing was an action of trover against an infant for the conversion of a horse, and was similar in its facts to Wheelock v. Wheelwright, on the authority of which it was decided. The observations last made in regard to that case apply also to this. Rotch v. Hawes was also an action of trover for the conversion of a horse. The action was not sustained, because the owner received payment of hire for the whole distance traveled, and thereby ratified the act of the hirer in going further than the original contract allowed. Though the court took occasion to say, "there can be no question but that the plaintiffs' action would be maintained if they had relied upon the original contract. They might have elected and insisted that the defendant converted the horse by going beyond the journey agreed upon." The observations above made in regard to Wheelock v. Wheelwright apply also to this case. It is unnecessary to notice any of the other authorities cited by Story in support of the passage above quoted, as none of them seem to go so far as the three cases on which I have just commented. In the last edition of his work on bailments, § 413, is followed by § 413 a, b, c and d, which are not in the first edition, and which show that the general rule as laid down in § 413, is by no means settled, and at |