| Ala. | Jun 15, 1847
The case of Thompson v. Spinks, at the present term is a decisive authority, that this action cannot be maintained. In that case the landlord brought trespass against a sheriff, who had levied an execution against the tenant, on cotton produced on rented land, which the tenant had removed off the premises, without paying the rent. It was held he could not maintain trespass, because he had no property, either general or special, in the cotton, but merely a lien upon it, for the payment of the rent, and that not having either the actual possession, or the general property, which would draw to it the right of possession, he could not maintain trespass.
If then, the taking under such circumstances is not a trespass upon the landlord, it is difficult to perceive upon what principle an action of assumpsit, for money had and received would lie. When a trespass is committed upon the personal property of another, he may sue in trespass for the damages, or waiving the tort he may affirm it, and recover as upon a contract. But here there was no tori committed upon the plaintiff, nor was there any contract, either express or implied, on the part of the purchaser from the tenant, to pay the rent, and upon no principle, with which we are acquainted, could assumpsit be maintained to recover the value of the rent.
The statute gives the landlord an effectual means of recovering his rent, by declaring a lien upon the crop, forbidding its removal until the rent is paid, and giving the right
Judgment affirmed.