Marlowe v. Rogers

IíARALSON, J. Trover is an action for a tort, and a set-off is not available in its defense. — Russell v. Russell, 62 Ala. 48; Whitworth v. Thomas, 83 Ala. 308; Donohue v. Henry, 4 E. D. Smith (N. Y.) 162; McLean v. Hugarin, 13 John. 184; Keaggy v. Hite, 12 Ill. 99; Fishwick v Sewell, 4 Har. & J. (Md.) 409; Arthur v. Sylvester, 105 Penn. 233; 22 Amer. & Eng. Encyc. of Law, 239-240. The demurrer to special plea No. 1 was, therefore, properly sustained. [515] The other special plea No. 2, has many of the elements of a plea in bar, and concludes as a plea of set-off or recoupment . If treated as one of the latter character, the demurrer to it was properly sustained; but if, as a plea in bar, and there was any error in sustaining the demurrer to it, it was error without injury, since it proposed no defense which was not available under the general issue, already pleaded, and on which the case was tried. A set-off is not available under the plea of the general issue, and the evidence offered by defendant and objected to was properly excluded, since it was not applicable to any issue in the case. — Code, § 2675 ; Odum v. Rutledge & Julian R. R. Co., 94 Ala. 496; Slaughter v. Swift, 67 Ala. 494, 499. The uncontroverted evidence shows, that the defendant, without any legal proceeding, and against the protest and remonstrance of the plaintiff, seized and carried away all the cotton and corn ' which the plaintiff had raised that year. So far as appears, the plaintiff had not asserted his possession of the property, in any manner to deny defendant’s right or claim to it as a co-tenant with plaintiff, or for any lien he claimed on plaintiff’s interest in it for advances. Defendant sold the cotton, and at the trial, proposed to prove he had not sold or used, but had the corn on hand, but denied that plaintiff ivas entitled to have any part of it, or that he had any right or interest in it. Such acts as these, were as conversion, not only of the cotton which defendant had.sold and the proceeds from which he had appropriated, but of the corn also, just as if he had consumed or sold it. He had no more than a parol mortgage, so far as it has been made to appear, on plaintiff’s interest in the crops, for any advances he may have made to him ; and • this was void, bestowing on him no legal or equitable title on plaintiff’s share. — Code, § 1731. He had no right, under any circumstances, against the consent of the plaintiff, to take and carry away all the crops, and for more than his share thus carried away, he is liable to the plaintiff. The court very properly charged the jury, that if they believed the evidence they must find for the plaintiff. The evidence shows very clearly, that plaintiff’s judgment was for not more than his half interest in said corn and cotton. Affirmed.