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McELROY v. THOMPSON, Adm'r
BYRD, J.
I. An administrator who mixes the trust funds with his own, and uses them in his business, must be held chargeable with the value of such funds at the time of the conversion, or with the profits made by such use, at the election of the parties beneficially interested. — DeJarnette v. DeJarnette, 41 Ala. 708.
The court should have charged the appellee upon the evidence set out in the bill of exceptions, with the value of the balance of the Confederate treasury-notes not disbursed or paid to the distributees, at the date of their conversion. Walls, &c. v. Grigsby, in manuscript, January term, 1868.
■ Eor this error the decree of the court must be reversed ; and as to the other matters excepted to, which have any merit, it is unnecessary to express an opinion, as the evidence on another trial may be materially variant. Eor it is certainly in the power of the appellee to prove, by his own evidence, or that of witnesses, thathe actually received Confederate notes as stated in his account, if it is a fact, and if he does not make such proof to the satisfaction of the court, then the court would be authorized to charge him with the balance of eleven hundred and twenty-two dollars and sixty-five cents, as shown by the record.
[658] We do not intend to intimate that the court should or should not have charged him with it on the evidence. But as he, in his account, charged himself with several sums “ collected iu Confederate money,” and the evidence shows that he mixed it with his own, and used it in his business, the court should, upon the motion made by the appellants, have charged him with the value of it at the date of the intermixture and use.
It will be competent for appellants, on another trial, if the funds were received in Confederate notes, as stated in the account, and were mixed with his own funds and used by him, to introduce evidence to prove their value at the time of such conversion; and in that event, the appellee will be chargeable with interest on such value from that time.
Reversed and remanded.