This is an action, ex contractu, brought originally before a justice, to recover on аn account under twenty dollars. — Code, §§ 2765, 2766. There can be no recovery in it,'except upon a contract or promise, exprеss or implied. It cannot be treated as an action to recоver damages for torts or trespasses. The doctrine of waiving a tort and bringing assumpsit, lias no application to the facts of this case ; as that doctrine is confined to cases, where the wrong-doer has disposed of the plaintiff’s property, and has received either money, -or some other thing as money ; and does not extend to cgses of mere conversion, or detention of the plaintiff’s property, without any sale of it. — Crow v. Boyd, 17 Ala. R. 51.
2. The action being brought against a step-father, no recovery can be had for money lent to his step-sоn, in the absence, and without the request or promise of the step-fаther; nor upon proof merely of a contract of the steр-son with the plaintiff, in the making of which th.e step-father did not have “anything to dо,” for the use of a stock-pasture; nor upon proof merely thаt the defendant’s stock went into and used the plaintiff’s stock-pasture, without proof of any express contract or promise on the part of defendant to pay therefor, or of any facts from which thе law would imply a promise on his part to pay therefor.
3. The transfer by Terry of his judgment against the defendant, to the plaintiff, “ upon condition that plaintiff was to pay him for it, if he could make anything out of it,” did not invest the plaintiff with such property in that judgment as entitled him to recover on it in this action. — Adams v. McGrew,
Applying the principles above laid dоwn to the evidence in this case, we must disallow the following items of plаintiff’s account, to-wit: for the cash lent to defendant’s step-son, for thе use of stock-pasture, for the judgment in favor of Terry,
The four other items in plaintiff’s account, amounting in the aggregatе to $1.60, must be allowed to him ; but the judgment for $4.18| rendered by a justice on the 1st Saturdаy in February, 1853, in favor of the defendant against the plaintiff, must be allowed tо the defendant. Upon the whole, computing interest, we find that the plаintiff is indebted to the defendant in the sum of $3.24 ; and for that amount judgment must be here еntered for the defendant against the plaintiff.
4. As the case is one ex contractu, and for less than twenty dollars, and not one in which either party is entitled to a trial by jury in the circuit cоurt; and as all the evidence is set forth in the bill of exceptions, we shаll exercise the authority conferred on us by section 3034 of the Code, and reverse the judgment of the court below, and render the proрer judgment. A judgment must be here entered reversing the judgment below, and in favor of appellant, for $3.24, and the costs of this court and of the court below.