20 Ala. 239 | Ala. | 1852
The charge given by the court below was free from error. Both in his writ and declaration, the plain
In another aspect of the case, the charge of the court was proper. The proof shows that the plaintiff was to have one-fifth of the crop grown on the plantation which he managed, and that the crop amounted to twenty-one bales of cotton, weighing four hundred and twenty-five pounds. This cotton never passed from the possession of the plaintiff, until after the death of John S. Rice. It was then taken by the defendant and sold. Here is a conversion by her, not in her representative capacity, but as an individual, and as against her the plaintiff may have his action of trover; or, as the cotton has been, sold, and its value, by this means, ascertained, he may, if he thinks proper, waive the tort and sue in assumpsit for money had and received to his use. Strother, admr. v. Butler, 17 Ala. Rep. 733.
The reasons assigned in support of the charge as given, are conclusive of the correctness of the action of the Circuit
Let the judgment of the Circuit Court be affirmed.