Morris v. Hall

41 Ala. 510 | Ala. | 1868

BYRD, J.

[1.] The plea of not guilty, to an action of trover, puts in issue every matter which can be pleaded in bar, exeept a release. The bill of exceptions shows, that all the evidence introduced on the trial is set out therein. The court charged the jury, “ that, if they believed all the evidence, they must find for the plaintiff, for the value of the said cotton on the day of the said demand upon and refusal by said Morris, with interest on that value from the day of said demand, up to the day of rendering their verdict.” The appellee contends, that the court did not err in giving the charge, for the following reasons: 1st, that the contract between Hall and the Bank of Louisiana was void, as being in violation of section 939 of the Code of Alabama, and of a law of the United States (vol. 12, p. 257,) and the proclamations of President Lincoln, (ib. 1262-64;) 2d, that it is not shown that the Bank of Louisiana had any authority under its charter to buy eotton, and therefore it acquired no title, nor did Hall part with his, by the sale to the agent of the bank.

The argument of counsel for the appellee is mainly addressed to these points, and to a consideration of those made by appellant’s counsel. The latter contend, that the court erred in the charge given, upon the following grounds: 1st, that the sale was valid, and passed the legal title to the cotton, to the bank; 2d, that the appellee, upon the evidence, is estopped from setting up a title in himself, as against the appellant; 3d, that, conceding the contract of sale to be void, and that the bank could assert no title under it, yet, if there was a delivery of possession of the cotton to the bank, and subsequent actual possession of its agents, or of another who acted as an officer of the law, by the assent of appellee, under whom the appellant claims, the former can not maintain this action against the latter; and, 4th, that this action is not maintainable against appellant, who is a mere bailee of the law, and has done no act in violation of his duty as said bailee; in other words, that the evidence does not show that appellant has converted the property. These points are extracted from the arguments of counsel, which, at the bar, and on their briefs, were elaborated with much earnestness, learning, and profound research. I do not deem it a duty to pass upon all the points argued by counsel, but will proceed to notice such as are decisive of this cause in this court.

It does not appear to me a matter of any consequence to this case, whether the person who endorsed the levy upon the attachment was an officer authorized to do so by law or not, or whether he acted with or without authority of law ; and this will be apparent from the further consideration of the questions involved in the charge given by the court below.

The nicety of this case requires at our hands a review of some of the numerous decisions touching this question, viz., when can a general affirmative charge be given or refused by the court, without subjecting its action to a reversal?

In the case of Pope, adm’r, v. Robinson, (1 Stew. 415,) only one witness was examined by the plaintiff; and “ the court charged the jury, that, if they believed this evidence, in the opinion of the court, it supported the de¡ * ration and this court held the charge a proper one. Tl evidence in that case was clear and explicit, and it was nd lecessary for the jury to infer that another fact existed, j n order to find for the plaintiff.

In the case of Paul v. Meek, (6 Ala. 753,) both parties introduced evidence. The court charged the jury, that, if they believed the testimony of the defendant, they must find a verdict in his favor; and this court held, that the charge was properly given. It will be seen by reference to the case, that the evidence was positive, and involved no inferential facts.

In the case of Costillo et al. v. Thompson, (9 Ala. 937,) the court charged the jury, that, if they believed the evidence, they must find for the plaintiff. It appears from the report of the case, that the defendant only introduced a deed in evidence, and that the plaintiff introduced several deeds, and parol evidence tending to show fraud on the part of the defendant, Costillo. This court held, that “ this intent [to commit a fraud] the court could not, of its own mere motion, determine as matter of law; it was peculiarly a question of fact to be left to the jury.”

In Stewart v. Hood et al., (10 Ala. 600,) it appears that both parties examined witnesses, and the plaintiff asked the court to charge the jury, “ that, from the evidence in this ease, they must find for the plaintiff;” and this court held that the charge was properly refused, for the reason ¿hat the evidence “ was not so certain and definite in its nature, or the conclusions to be drawn from it, as to warrant the court, as a matter of law, in charging the jury that it made out a ease, either for the plaintiff, or for the defendants.”

In Boyd et al. v. McIvor, (11 Ala. 822,) it will be seen by reference to the report of the case, that the plaintiff alone introduced testimony, and the court charged the jury, “that, if they believe all the evidence, they must find for the plaintiff ;” and this court said, “ We do not consider it necessary to determine whether such a case as this is one in which the court would compel the defendant to join in a demurrer to evidence, because, conceding it to be such, the court erred in its judgment.” This case is in conformity with the rule, that the court can not properly, in every case, compel a plaintiff to join in a demurrer, tendered by the defendant, to the evidence of plaintiff; but, in some cases, it is the duty of the court to submit the case to the jury.

In Bradford v. Marbury, (12 Ala. 529,) the court, in speaking of a charge which passed on the fact of an assent by the plaintiff to a certain transaction, said: “ Though we are not prepared to say this must be considered as an assent, it is possible the jury might so consider it;” and, “ The objection to the request is, that the evidence bearing on this point is too indefinite and inconclusive to warrant the court in saying that one thing or another was proved by it.”

In McCall v. Doe, ex dem. Pryor, (17 Ala. 533,) this court held, that when, on the trial of an ejectment, it is shown that one, upon whose mere presumptive title the plaintiff relies, left the possession of the land, the question whether or not he left it animo revertmdi is for the consideration of the jury, but the court may decide, whether or not, from the facts of the case, such a question arises.

In the case of Thomas v. Degraffenreid, (17 Ala. 602,) this court held, that the court, before which a cause is on trial before a jury, can not pass upon the effect of testimony, when the question to be determined is, whether or not an act was done with a fraudulent intent; and that whether there has been a delivery of a chattel, is not a conclusion of law, but a question of fact to be determined by the jury. See, also, Lanier v. Br. Bank, 18 Ala. 625.

In McClung’s Ex’rs v. Spotswood, (19 Ala. 165,) the court, speaking of the sufficiency of evidence tending to prove an agency, said: “It was for the jury, and not for the court, to determine on the sufficiency of this evidenceand further, that, “ in most cases, where the authority is given by parol, the question whether the agent has exceeded his authority, is a question of fact to be decided by the jury, under the instructions of the court.”

In McKenzie v. Stevens, (19 Ala. 692,) the court, in speaking of the proof of authority from a father to a son to buy goods, said: “ The facts were proven to the jury, from which, according to the authorities above cited, the law presumed an authority from the father to the son to buy the goods, and there was no proof to rebut the presumption. This, we think, authorized the court to charge the jury, that, if they believed the facts, they were bound to infer the authority ; in other words, they were bound to find for the plaintiff.” The distinction established by this and other cases cited seems to be this : where facts are proved, from which the law presumes a certain other fact which is in issue, the court may charge the jury, that they are bound to infer the existence of the fact in issue; and, if that fact is decisive of the cause on trial, in favor of either party, the court may charge the jury, that they are bound to find a verdict in favor of such party, if they believe the evidence from which that fact is inferrible; but, if from evidence the jury may or may not infer the existence of another fact, which is material to the finding of a verdict in favor of one or the .other party, and they are not bound to make an inference one way or the other, then it is error for the oourt to instruct them that it is their duty to infer the existence of such fact, or to charge them they must find a verdict in favor of either party.

In McDonnell v. Br. Bank, (20 Ala. 316,) it appears that the court below charged the jury, “ that, if they believed the proof, the agency was established.” This court said in that case: “ However strongly the proof may have tended to establish such inference, still, it is an inference of fact from the other proof, which the jury might very properly draw, but which the court, as matter of law, could not assume.”

It is said in several cases, that where there is no conflict in the testimony, the court may, on the request of either party, charge the jury, that, if they believe the evidence, they must find for that party.—Bryan v. Ware, 20 Ala. 687; Stokes v. Jones, 21 Ala. 731. But, this doctrine must be received, subject to qualifications established in other adjudications. In another case it is said, that if the evidence is clear, and without conflict, and it is only necessary to draw a legal conclusion from it, it is not error to charge the jury, that, if they believe the evidence, they must find for the party whose case is made out.—Abney v. Pickett, 21 Ala. 739. If there is a conflict in the evidence, such a charge would be erroneous.—Knight v. Bell, 22 Ala. 198; Woolfork’s Adm’r v. Sullivan, 23 Ala. 548; Allman v. Gann, 29 Ala. 240.

In Saltmarsh v. Bower & Co., (22 Ala. 221,) it was held, that whether certain facts amounted to notice to a party, of a transfer of an account, “ was a fact to be tried by the jury, and it was for them, and not for the court, to determine whether the evidence established such fact. The charge asked would have been an invasion of the province of the jury.” To the same effect is the case of Pritchett v. Munroe, 22 Ala. 501. In the latter case, it was held, that a charge is erroneous, which takes away from the jury, and refers to the court, the determination of the question, whether the facts of the case were such as to put the purchaser on his guard, and require him to resort to the ordinary and accessible means of information.

In Hollingsworth v. Martin, (23 Ala. 591,) and in some of the cases already cited, it is held, that when the plaintiff alone offers testimony, a charge that, if the jury believed the evidence, the plaintiff could not recover, is equivalent to a demurrer, and raises the same question. But suppose that both parties introduce evidence, which, though not conflicting, tends to support the claim of the one and the defense of the other, and that the plaintiff or defendant should ask a general affirmative charge; how could the rules applicable to a demurrer to evidence, which is only allowable by one party to the sufficiency of the evidence of the other to support the claim, or to make out the defense, be legally enforced ? It must be by making every intendment or inference from the evidence of the party asking such a charge, against him, that could be drawn from all the evidence, or by requiring him to admit every fact that the evidence tends to prove in favor of the adverse party, and against himself; or, at least, every fact which the evidence of the adverse party tends to prove in'favor of the latter, and every fact which the evidence of the party asking the charge tends to prove against himself. I admit that I have found it difficult to apply the rules which pertain to a demurrer to evidence, to the case supposed; and I think it would have been better to have only allowed a general affirmative charge, in a case where a demurrer to evidence would have been allowed at common law. But this practice was established by the foregoing decisions, prior to the adoption of the Code of 1853, to the extent as shown in the foregoing adjudications of this court.

The Code, by section 2274, declares, that the court “shall not charge upon the effect of testimony, unless required to do so by one of the parties.” This did not enlarge the powers of the court in this respect, but, as we understand, limited or restricted the right of the court to giving such charge when required by one of the parties. Before the Code, the court could give such a charge in certain specified cases, as settled by the decisions of this court, with or without request from either of the parties; and this provision of the Code did not authorize the court to give such a charge, when required by either party, in cases where this court had decided it would be error to give it; but limited the court to giving such as could be properly given, when required to do so by one of the parties. It hath this extent — no more.

We will proceed with the review of the decisions made since the adoption of the Code.

In Ewing v. Peck, (26 Ala. 410,) this court, in speaking of a voluntary payment, which was a fact materially affecting the merits of the cause, said: “ Now, we will not say that the payment, under these circumstances, may not have been voluntarily made; but, whether it was or not, was a question for the jury, and one which the court could not properly determine, — a question of intent, as being the free act of the party, or as being superinduced by the process or levy.”

In the case of Freeman v. Scurlock, (27 Ala. 407,) it appears that the court below charged the jury, “ that the evidence was not sufficient to make out a conversion of the slaves, against either of the defendants;” and this court said: “ This charge can only be supported, in cases where, had the party in whose favor it was given demurred to the evidence, the judge might properly have sustained the demurrer. In such case, as the party demurring is required to admit, as a fact, what the evidence tends reasonably to establish, so that the duty of trying the facts shall not be devolved upon the court, but merely the duty of declaring the law arising upon them, it follows, that if there be any evidence which reasonably tends to show a conversion of the slaves by either of the defendants in the case before us, the charge can not be supported.”—Bryan v. The State, 26 Ala. 65.

In Stanley v. Nelson, (28 Ala. 514,) this court held, that “it is an invasion of the province of the jury, for the court to instruct them, to the prejudice of a party, as to the effect of evidence susceptible of a construction different from that placed upon it by the court.”—Dill v. The State, 25 Ala. 15.

In the case of Lawler v. Norris, (28 Ala. 675,) it was held, that, in order to support a general affirmative charge, in favor of the defendant, “ the evidence must be clear, without conflict, and leave nothing to be done except to draw a legal conclusion from the facts.” The same rule is applicable to such a charge given in favor of the plaintiff. But such conflict should be as to some material question in issue.—Upson v. Raiford, 29 Ala. 188; Drake v. Flewellen, 32 Ala. 106; Peebles v. Tomlinson, 33 Ala. 336.

In Crum v. Williams, (29 Ala. 446,) the second head-note expresses the opinion of the court as follows: “ The court may properly refuse to charge the jury, at the request of either party, that, if they believe the evidence, they must And for him, unless the facts proved, of themselves, independent of any inference which the jury might have drawn from them, entitled him to a verdict.” It must be observed, in connection with this case, that this court has held, that when a general affirmative charge is properly asked, it is error for the court to refuse to give it.—Rhodes v. Otis, 33 Ala. 578.

In Gunter v. Lecky, (30 Ala. 591,) the court below charged the jury, “ that, if they believed the aforesaid state of facts to be true, they must find a verdict for the defendant.” The question, whether the plaintiff had or did not have a license from the probate judge, was material to the determination of the cause, and there was no direct or positive proof one way or the other; and this court said: “ Now, although the jury might have been authorized) from the admission made, and from the failure of the plaintiff to produce any license, to infer and find that he had no license; yet it was not a conclusion of law, from the facts stated, that he had no license. The court erred, therefore, in not leaving to the jury the question of the existence or non-existence of the license. * * It will not do for the court to overlook the distinction between facts admitted, and the inferences which the jury only are authorized to draw therefrom.”—See, also, Rhodes v. Otis, 33 Ala. 578.

In Traun v. Keiffer and Wife, (31 Ala. 136,) the question of a delivery was involved, and the proof was circumstantial ; and the court said : “ However weak the proof may have been, the court properly refused to charge the jury, that it was insufficient to establish a delivery. If there was any proof, it was the province of the jury to determine its sufficiency.” The charge passed on was one which involved the effect of the testimony.

In White v. Hass, (32 Ala. 430,) the court below charged the jury, “ that, if they believed the evidence, they must find for the plaintiff, for the amount of said note with interest.” No evidence was introduced by the defendant. A question arose, whether an alteration of the note was brought to the knowledge of the defendant. This court said: “ We will not say, that the facts proved by the evidence in the present case were not sufficient to justify the inference by the jury, that the alteration was brought to the knowledge of the defendant; and that when brought to his knowledge, he assented to it. But the court is not authorized, in such a case, to draw an inference of fact; and without such inference, the facts proved did not warrant the court to declare, as a conclusion of law, that the defendant had assented to the alteration. As this assent is not stated by any witness, nor admitted, the court should have left it to the jury to determine, whether or not he had assented to the alteration; and should have charged them that, if they believed it, they should find for the plaintiff, the amount of the note and interest.”

In Buffington v. Cook, (35 Ala. 312,) it appears that both parties introduced evidence; the plaintiff documentary evidence, and oral testimony, and the defendant oral testimony only. The testimony of defendant tended to prove the defense set up. The court charged the jury, “ that, if they believed the evidence, they must find for the plaintiff;” and this court held, that “the oral testimony did not authorize the charge which the court gave on the effect of the evidence. It certainly can not be affirmed that it establishes, without conflict, the right of the plaintiff to recover.”

In Ward v. The State, (37 Ala. 158,) the court below charged the jury, that, if they believed the evidence, they must find the defendant guilty. There was only one witness examined on the trial, who made out a strong case against the defendant; and this court said: “We concede, that these circumstances may have been strong, and from them the jury may have inferred that the parties had seated themselves to play at cards, and had so far entered upon the game as to deal out hands, and turn up a trump; yet, in order to establish the defendant’s guilt, it was necessary that the jury should infer a further fact or facts than were positively sworn to by the witness. Such further fact, or facts, the law, unassisted by a jury, could not infer.” And it was held that the charge invaded the province of the jury. 28 Ala. 700; 33 Ala. 413. There seems to have been no distinction taken or established between a criminal prosecution and civil action, in this respect.

In the case of The Memphis & Charleston Railroad Co. v. Bibb, (37 Ala. 699,) it appears that a question of negligence was involved, and the court said : “ The testimony in this case tends to show, that the engineer failed to comply with the provisions of the first section of the act of 1858; and to this extent, there does not seem to have been any conflict in the testimony. But there was no witness who testified, or probably could testify, that the accident complained of was occasioned by the engineer’s omission of duty. Before it could be affirmed that Mr. Bibb had lost his horses on account of the engineer’s failure to comply with the duties enjoined on him by the statute, it was necessary that some other fact should be inferred from those of which proof was made. It is the province of the jury to draw inferences of fact; but the court can draw no such conclusions, except the case be within the operation of some legal presumption. The charge given on the effect of the evidence, if believed, invaded the province of the jury.”

I think these, and other decisions of this court, may be considered as establishing the following propositions:

1. That a general charge on the effect of evidence can not be given, where there is any conflict in the evidence, as to any material point involved in the determination of the cause.

2. That such a charge is erroneous, where any fact, necessary to the decision of the cause, has to be inferred from the evidence, and which is not a legal presumption from it.

3. That when the plaintiff alone introduces testimony, such a charge in favor of the defendant is equivalent to a demurrer to the evidence; or such a charge in favor of the plaintiff, on the evidence of the defendant, has the same effect as a demurrer thereto would have.

4. That where both parties introduce evidence, such a charge may be given, if there is no conflict in the evidence on any material point, and there is no fact to be inferred by the jury from the evidence, material to the decision of the cause one way or the other.

5. That where both parties introduce evidence, and there is no conflict therein as to a material point, and the facts to be inferred are legal presumptions, the court may give a general affirmative charge; but, in all cases, it must be predicated upon a belief of the evidence by the jury.

6. That where both parties introduce testimony, and it only tends to prove the claim of the plaintiff, or the defense of the defendant, it is erroneous to give a general affirmative charge on the effect of the evidence.

7. That the courts should be careful not to invade the province of the jury.

The application of these rules, occasionally, becomes in practice a matter requiring nice discrimination; and in cases of difficulty and doubt, the proper course would be to leave it to the jury to decide, under appropriate instructions from the court, so as to secure to the parties the right of trial by jury; and should the jury make any clear mistake in their verdict, it could be set aside, upon an application for a new trial.

We proceed to the disposition of the questions made in the argument of counsel, keeping in view the principles established in the decisions above cited, so far as applicable.

[2.] We do not think that the contract of sale and purchase, made by appellee and the Bank of Louisiana, is within the prohibition of section 989 of the Code. The purchase of cotton by the bank, with Confederate treasury-notes, is not the exercise of, the privilege of banking in this State, within the meaning of that section; and the case of Wray v. Tuskegee Insurance Company, (34 Ala. 58,) and the reasoning employed therein, is, in our opinion, decisive of that point. But, in our opinion, such contract was in violation of the laws of the United States, and the proclamations issued by the president in conformity thereto. — See the authorities cited on the brief of counsel for appellee.

[3.] In the case of The Bank of Augusta v. Bade, (13 Peters, 587,) Taney, C. J., in delivering the opinion of the court, said: “ It may be safely assumed, that a corporation' can make no contracts, and do no acts, either within or without the State which creates it, except such as are authorized by its charter; and those acts must also be done by such officers or agents, and in such manner, as the charter authorizes. And if the law creating the corporation does not, by the true construction of the words used in the charter, give it the right to exercise its powers beyond the limits of the State, all contracts made by it in other States would be void.” To the same effect see City Council of Montgomery v. M. & W. P. R. R. Co., 31 Ala. 76; and Grand Lodge of Alabama v. Waddell, 36 Ala. 313. It does not appear from the record that the charter of the bank, if there is one, was introduced in evidence, or its contents proved. It would seem to follow, therefore, that the appellant failed to show that the Bank of Louisiana, if it is a corporation, acquired any title to the cotton by virtue of the contract, even if it were otherwise valid.

[4.] But, though a purchaser obtains possession of property under a contract which in law he is incapable of entering into, or of taking a title to property under it; yet the seller may place himself in such a condition, that he can not sue for and recover the property. If the title passes under a contract, the purchaser is under no necessity to resort to the doctrine of estoppel for his protection, nor is any one claiming under him. The appellant contends, that, although the contract of sale was void, yet, having been fully executed, and the possession of the property having passed to the bank or its agents, and the appellee having received the purchase-money, he can not, in a suit to recover the value of the property, set up the invalidity of the contract of sale, to show that his title to the cotton has never been divested; and further, that the appellee is es-topped from asserting any title to the cotton, as against the appellant, under the evidence set out in the record.

And first, as to the question of delivery: Can a party, who has sold to another personal property, and delivered the possession, under a contract in violation of law, or where the purchaser was incapable of making such a contract so as to bind either party, sue for and recover its value in an action of trover. I am clear that, if such contract of sale is illegal, and in violation of law, and both parties stand in pari delicto, the seller who has delivered possession under such a contract, and received the purchase-money, can not maintain such an action. Neither can either party, in such a case, maintain an action on the contract. Black v. Oliver, 1 Ala. 449 ; Rochelle v. Harrison, 8 Porter, 351; Windham, use, &c., v. Childress et al., 7 Ala. 357; Boyd v. Barclay, 1 Ala. 34; Smith v. Johnson, 37 Ala. 636 ; Givens v. Rogers, 11 Ala. 543. In the case of Dodson v. Harris, (10 Ala. 566,) the purchase-money was not paid.—Walker v. Gregory, 36 Ala. 180; Webb v. Kelly, 37 Ala. 333. The maxim, "Cum par delictum est duorum, semper oneratur petitor, et melior habetur possesservs causa,” has a field for operation in such cases as this. Potior est conditio possidentis.

And also it seems to me, that such an action can not be maintained against a person, natural or artificial, who has no authority to make, or was incapable of making, such a contract. After a party has received the value of chattels sold and delivered to such a purchaser, he can not be heard in a court of justice to assert the incapacity of the purchaser to make the purchase, as a ground of recovery, and thereby obtain a double satisfaction. Nor can he be allowed to do so against one who holds under such a purchaser. The money so received must be considered as closing his mouth against making such an assertion, — he being competent to contract, and there being no fraud or imposition on the part of the purchaser. A delivery, and the payment of the purchase-money, pass the title.—Jemison v. Woodruff, 34 Ala. 143. And this, whether the contract of sale was void or voidable. Such, at least, is the result, as to the parties to the contract, in eourts of common law.

The effect of the charge, in the case in hand, was to take from the jury the question, whether there was or was not a delivery of the cotton to the Bank of Louisiana, or its agents. If there was a delivery of the cotton, so as to pass the possession under the contract to the bank, then it would be error to charge them to find for the plaintiff, under the evidence set out.—Thomas v. Degraffenreid, 17 Ala. 602; Nelson v. Iverson, 19 Ala. 95. And so, too, as to the question of estoppel by matter era pais. Whether there was such an estoppel, is a question for the jury to decide from the evidence in this cause, under instructions as to the law upon that subject by the court.—1 Greenl. Ev. § 209.

We intend to be understood as intimating no opinion upon the sufficiency of the evidence to prove a delivery, or an estoppel by matter era pais. It is enough to say that there is evidence proving, or tending to prove some, if not all, of the constituents of such-a delivery and estoppel.—1 Greenl. Ev. §§ 207-209; Long on Sales, 259-275 (148 to 159); Magee v. Billingsley, 3 Ala. 679, and cases therein cited.

[5.] In the case of Kirk v. Morris, decided at the June term, 1866, we held, that a stranger, who replevied property attached, must be held to have done so for the defendant in the suit; and it would seem to follow that, when sued in trover for a conversion of the property, he can make all defenses which the defendant could have made, if he had been sued. Such person holds under the defendant to the suit. Any act which would operate as an estoppel against the appellee, in favor of the bank, would therefore seem to be available as a defense for the appellant. Whether any right or lien which the creditor in attachment might set up against the title of a claimant, who had a title superior to the defendant in attachment, but one which is subordinate to the right or lien of such creditor, could be available as a defense to the person replevying, when sued by such claimant, we will not now decide.

[6.] The question whether there was a conversion by appellant of the cotton, under all the evidence in this case, which would authorize a verdict against the appellant, was one also for the determination of the jury, under instructions from the court as to the law applicable to the subject.—Knight’s Adm’r v. Vardeman, 25 Ala. 262.

We do not think that a person who is authorized under the statute to replevy property levied on, and who does so in good faith, under an order of the court having jnrisdiction of the subject-matter, without any notice of the claim of the real owner, and who makes no use or disposition of tbe property inconsistent with, his duty as a bailee thereof under such order, and who holds in subordination thereto, and not otherwise, is, in legal presumption, liable in on action of trover to the real owner. It appears that Morris shipped the cotton from the place where it was when he replevied it. But it does not appear whether he did so to convert it to his own use, or for safe-keeping and to secure it for the defendant in attachment, or to have it in condition to be surrendered to the sheriff in ease a judgment was rendered for the plaintiff in the attachment suit If the defendant in the attaehment had replevied the property, and had done any act before such replevy which amounted to a conversion of the property, it is unnecessary to decide whether he would or would not be liable in an action of trover to the owner, although at the time it was brought he held the property under a replevy bond made in conformity to law. But, if a person, after obtaining possession of property under the law, without any notiee or knowledge of the claim or title of the owner, does any act which amounts to a conversion of it, we do not see why, upon principle, the owner could not maintain trover against him. It was for the jury to say, upon all the evidence, whether Morris was guilty of a conversion; and in this respect the court likewise invaded the province of the jury in the charge given. The conversion, which is the gist of the action, must be prior to the commencement of the suit.—Storm v. Livingston, 6 John. 44.

In support of the views herein expressed upon the point as to what is a conversion, and the proof necessary to establish it, we refer to the case of Dent et al. v. Chiles’ Adm’r, 5 Stew. & Por. 383, and the authorities therein cited; and we fully recognize the correctness of the principles therein laid down.—See, also, Murray v. Burling, 10 John. 172; Lockwood v. Bull, 1 Cow. 322; Robinson v. Burleigh, 5 N. H. 225; Houseman v. Stewart, 23 Ala. 685; Hartshorn v. Williams, 31 Ala. 152; Story on Bail. §§ 110, 113, 132; Weinburg v. Conover, 4 Wis. 803 ; Rogers v. Hine, 2 Cal. 571; Munger v. Hess, 28 Barb. 75; Davidson v. Donudi, 2 Smith, (N. Y.) 121. When there is evidence tending to show a reasonable excuse for the refusal of the defendant to deliver the property, and which is relied on as constituting a conversion, the sufficiency of the excuse is a question for the jury, under proper instructions by the court.—Connor v. Allen, 33 Ala. 515 ; Watt v. Potter, 2 Mason’s Rep. 77.

In this case, the jury were authorized to look to all the facts in evidence, to determine whether appellant had a reasonable excuse for refusing to deliver when the demand was made. If, under the evidence and the instructions of the court, they should find that there was a delivery of the cotton to the Bank of Louisiana, and that appellee was es-topped from claiming the cotton, then there could be no conversion which would give him a right of action. If, on the other hand, the jury should determine that there was no such delivery or estoppel as would affect the rights of appellee, still, it would be their duty to consider all the- evidence, and determine whether there had been a conversion of the property by appellant; and whether the appellee had not by his own acts placed the appellant in a condition in which a demand of, and refusal to deliver the cotton, would, of themselves, in connection with all the evidence, amount to a conversion, taking into consideration the reason assigned by appellant for declining to deliver the cotton. The charge given, in effect, took these questions from the jury.

There may be other objections io the charge given by the court, than those herein above noticed, but none others have been insisted on in argument; and, as what we have said may be sufficient for the direction of the court below on another trial, we will not say anything more on the correctness of the charge given to the jury, further than, on the questions of delivery, estoppel and conversion, this opinion must be understood as only deciding that the charge was incorrect in assuming the evidence failed to establish the first two and proved the last.

As to the other questions argued by counsel, it is also unnecessary to say anything, as they may not arise on another trial in the same form as presented on this record.

For tbe error pointed out, tbe judgment of tbe city Court against appellant must be reversed, and tbe cause remanded.