The only question in this case is, whether the facts proved at the trial do in law constitute a conversion, as charged in the writ. The case is trover for the conversion of a gun, which the defendants admit was the property of the plaintiffs. It was proved that one Jerry Leonard, being indebted to the defendants, delivered the gun to them as security for the debt, and that afterwards the plaintiffs demanded the gun of one of the defendants. But the plaintiffs do not rely on this demand as evidence of a conversion ; as the gun, before the demand, had been *8taken away by said Jerry, with the defendants’ consent, and had been sold by him to one Pratt. The only evidence, relied on to prove a conversion by the defendants, is the proof that this sale was made with their consent. It was proved that the bargain for the gun was made between the said Jerry and Pratt, and that Pratt agreed to purchase the gun for the sum of five dollars, to be paid to the defendants, if they would consent to take him as paymaster ; to which the defendants assented. There was no proof that the defendants had any knowledge that the gun was the plaintiffs’ property, or any reason to suppose that it was not the property of Jerry. But it was ruled by the court that this sale, with the permission of the defendants, would be a con version by them, although they supposed that the gun belonged to Jerry at the time. It is now contended by the plaintiffs’ counsel, that the jury had a right to infer from the evidence that the defendants joined in the sale ; but we think no such inference can be made ; and it is not to be supposed that it was made by the jury. For it was ruled by the court, that the assent to the sale by the defendants, and their agreeing to receive the purchase money, would amount to a conversion. The only evidence against the defendants was, that they received the gun as a pledge from Jerry, and afterwards restored it to him and took other security, and that the gun was sold by Jerry.

The receiving of the gun from the person who had the possession, and restoring it to him, under the circumstances proved, cannot be considered as a tortious act, and does not amount to a conversion. We think, therefore, on the evidence reported, this action cannot be maintained.

New trial ordered.