¶1The case seems to have been treated in the court below, (and it has been so argued! here,) as if the contract was in fact rescinded by Band’s offer to return, and Oxford’s refusal to receive the slave. Without inquiring or deciding whether such a result is effected, when the tender which is rejected by the seller is based upon a mere breach of warranty, unmixed with fraud, we will consider the case in the aspect in which it has been presented to us.
¶2When the purchaser of a chattel, for a sufficient reason, makes a tender of the property to the seller, with a view to rescission, and the seller refuses to receive it, the purchaser may abandon the property, but he is not bound to do so. He may, if he choose, retain the possession; and in that event, he is considered merely the bailee of the seller, and that relation becomes at once the rule and measure of his rights and responsibilities. — Dill v. Camp, 22 Ala. 249 ; Des Arts v. Leggett, 2, Smith’s (N. Y.) R. 582; Bennett v. Fail, 26 Ala. 610.
¶3' It would be the establishment of a hard rule, to hold that, in order to enable the purchaser to insist that the contract and his liability on it are at an end, he must, in case the vendor refuses to accept the property when tendered, actually abandon the possession. That, in many cases, would expose the property to waste and destruction ; and if the purchaser should happen to make an insufficient tender, qr if he should be unable to prove the facts which justified the rescission, he would still remain liable on the contract, while the property might be lost or destroyed. But a purchaser, who, after the vendor’s refusal to accept the property, elects to retain the possession, must not use or employ the property in any manner inconsistent with the vendor’s rights, or with the nature of the bailment which in such cases arises by implication of law. — Authorities supra. The bailment thus created would seem to belong to the class denominated in the books depositum. — See Farrow v. Bragg, 30 Ala. 268. In reference to depositaries, it is said — and this is obviously true — that the extent to which they are authorized to use the property depends materially on its nature. If the *477.-subject-matter of the bailment be a living animal, such as a hound or a horse, which requires air and exercise, the bailee has an implied authority from/ the owner to use it to a reasonable extent, and is under an implied engagement to give it proper air and exercise. In like manner, the bailee may milk a cow left in his possession, or use the books of a friend deposited in his library. — Addison on Contr. 527 ; Edwards on Bailments, 89; Story on Bailments, §§ 89-90.
¶4Now we must be presumed to know that moderate labor is not only promotive of the health of a slave, but essential to the preservation of that wholesome discipline, on which his value so materially depends. It is impossible to conceive' that, in a case like the one we are considering, the bailee exceeds his authority, if he barely permits the slave to work when he chooses, and accepts the benefit of his occasional and unforced.labor. The ruling of the court below involves the proposition, that the bailee is guilty of a conversion unless he compels the slave to be idle. What is a conversion ? This coult has answered this question, by deciding that, to constitute it, “there must be a destruction of the plaintiff’s property, or some unlawful interference with his use, enjoyment, or dominion over it, or an appropriation of it by the defendant to his own use, in disregard or defiance of the owner’s rights.” Conner & Johnson v. Allen, at the last term. In another case, it was defined as “any intermeddling with, or dominion over the property, subversive of the dominion -of the true owner, or of the nature of the bailment, if it be bailed.” — Freeman v. Scurlock, 27 Ala. 413.
¶5When, on Oxford’s refusal to receive the slave, Rand carried her back to his plantation, and allowed her to work at her pleasure with his other hands, this was not an unlawful interference with, the dominion of the owner, nor inconsistent with the -nature of the bailment; and it cannot, therefore, be deemed a conversion. — Kennett v. Robinson, 2 J. J. Marsh. 84 ; Conner & Johnson v. Allen, at last term ; Fouldes v. Willoughby, 8 M. & W. 549; Hoover v. Alexander, 1 Bailey, 510.
¶6It will be observed, that we have confined our inquiries *478to the question, whether the facts supposed would establish a conversion, and a' consequent- liability in trover. It may often happen, that the value of the use which such a bailee would be authorized.to make of the property, without being guilty of a conversion, would exceed the expenses incident to the custody of the property. "Whether in such a case the bailee would be liable in any form of action to the owner for this excess, is a question which we have not decided, and on which we intimate no opinion. See Edwards on Bailments, 89-90 ; Addison on Contr. 530.
¶7The rulings of the court below were in conflict with the views we have expressed.
¶8The judgment is reversed, and the cause remanded.