
    
      B. W. Dealy, administrator, vs. M. H. Lance.
    
    1. Bequest of a slave to plaintiff’s intestate, assented to by the executor, but never in his actual possession.' After the death of the legatee, a minor, the slave went into the possession of the guardian of plaintiff and his sisters, the distributees of the deceased minor. The guardian sold to defendant, in whose possession the property remained several years. Upon the grant of administration to plaintiff, there was a demand and refusal of the slave, upon which he commenced an action of trover. Upon the grant of administration to plaintiff, the right of the intestate vested in him, and his administration by relation carried that right back to the intestate’s death. Vide 2 Brev. Rep. 307.
    2. The demand and refusal of itself was evidence of a conversion from the time the defendant acquired possession.
    3. Plaintiff held entitled to recover the value of the property at any time from that at which it went into defendant’s possession to the trial of the case; also that the jury might give the highest value proved. Plaintiff also entitled to hire from the same time.
    
      Before Richardson, J. Georgetown, 1843.
    This was an action of trover brought to recover the value of a slave, Tenah, which had been been bequeathed to the plaintiff’s intestate (bis brother) by their father. The legacy had been assented to by the executor, and after the death of the legatee, Samuel Dealy, (a minor,) had gone into the possession of one Walker, the guardian of the plaintiff and his sisters, the distributees of the minor. The guardian sold the property to the defendant, and it was admitted that the sale had been without fraud and for a fair consideration. After the sale, the property remained in the possession of the defendant for several years, until administration had been taken out by the plaintiff, shortly before the commencement of the action, when there was a demand and refusal. It was contended, on the part of the plaintiff, that he was entitled to damages for hire from the time the property went into the possession of the defendant, and that the jury might estimate the value of the slave according to her worth at anytime after she went into his possession. The presiding Judge charged the jury that there was no right or title in any one to demand the slave until the grant of the administration, when the demand and refusal took place — that as there was then,, for the first time, a right adverse to that of the defendant, who held under a sale from the guardian of the distributees, (who would have been entitled to the custody of the property until administration,) the conversion must be dated from that time, and the jury must estimate the damages according to the value of the slave at such time, and of her services since then. The slave was proved to have been worth very little — a mere tax at the time of the demand, as well as her services afterwards, and the jury found for the plaintiff a verdict of twenty-five dollars.
    The plaintiff appealed, on the annexed grounds :
    1. Because his Honor erred in charging the jury that the conversion was to be dated at the time of demand and refusal, and not from the time the property went into the possession of the defendant under a bill of sale.
    2. Because his Honor erred in charging the jury that the damages were to be estimated according to the value of the property at the time of demand and refusal, and the value of the hire since that time.
    3. Because his Honor erred in charging the jury that the administrator could not recover for the value of the services of the slave before administration was taken out.
    
      Mitchell, for the motion. Memminger Wilkinson, contra.
   Curia, per

O’Neall, J.

The legal right to the property in dispute is, beyond all doubt, in the plaintiff. His intestate was entitled to, but never had actual possession. After his death, Walker, the guardian of the plaintiff and his sisters, who were the distributees of the intestate, had the possession, and sold the slave; but this very clearly conferred no title to the property or possession ; for his wards, much less he, had no legal right to either. Upon the grant of administration to the plaintiff, the right of the intestate vested in him ; and his administration by relation carried that right back to the intestate’s death. So that the plaintiff, the administrator, is to be regarded as entitled from the death of the intestate to the possession of the property.

The case of Vaughten vs. Elder, 2 Brev. 307, illustrates and establishes the principles which I have stated. In that case the property of the intestate, slaves and a mare, went, at his death, into the possession of the distributee, without administration. She sold the same to the defendant. After her death the plaintiff administered on the estate of the owner, demanded .the property, and brought trover for the recovery of the slaves and their increase, and the foals of the mare, (she being dead.) It was held that the administrator was entitled to recover the full value of the property, including the issue of the female slaves and the colts of the mare, born and foaled after the intestate’s death. In that case it is explicitly declared and decided, that the distributee had no interest beyond the mere equity to have the residue, after the payment of the debts, and that the legal estate was in the administrator, and overruled her sale. Speaking of the effect of administration, the court says : “At this day, the administrator represents the person of the intestate, in relation to his personal estate, which vests in him immediately on the grant of letters of administration, and such grant has relation to the time of intestate’s death.” In the case before us, the plaintiff’s right to possession being thus established at and from the death of the intestate, the only question which'remains is, when is the defendant to be regarded as converting the property % The rule very clearly is, that whenever one man uses another man’s property as his own, he has converted it to his own use. Whenever, therefore, the defendant used the slave as his own, he became answerable for the value of the property, and the hire. The demand and refusal, of itself, was evidence of a conversion from the time the defendant acquired possession. Generally, too, hire is the consequence of the use of that which belongs to another, if it be a thing, such as a slave or a horse, usually productive of hire; and if it be not, then interest is substituted on the value instead of hire. When one has a slave in possession, the legal presumption is, that the services of the slave benefit him to the value of hire; and hence it is allowed both as a compensation to the owner, and as a benefit derived from another’s property by the defendant. Talbird vs. Baynard, 2 Hill, 597, is a case exactly in point. There, the defendant was the purchaser from the tenant for life, whose estate was, at the purchase, thought to be an absolute one. It was, however, held, that he was liable for hire from the death of the tenant for life, and that a demand and refusal was evidence of conversion at and from that time.

According to the views which I have stated, the plaintiff is entitled to recover the value of the property at any time from that at which it went into defendant’s possession, to the trial of the case, and the jury may give the highest value which may be proved. So, too, he is entitled to hire from the same time.

The charge of the Judge below having restricted the plaintiff’s rights in these respects, to and after the date of the grant of administration, was wrong, and led to the small verdict which was rendered.

The motion for a new trial is granted.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  