
    Levi H. Ashcroft v. Samuel J. Pouns
    Appeal from Shelby County.
    When a new trial has been refused, it will be presumed that the charge of the court was not disregarded by the jury, unless there is evidence to the contrary.
    Pouns sued Ashcroft in a justice’s court to recover an alleged taking and conversion by the latter of five bales of cotton claimed by the former and recovered judgment against him. An appeal was taken to the district court, where the jury rendered a verdict in favor of the appellee for $80, and judgment was entered accordingly. The appellant moved for a new trial, alleging as grounds therefor, 1st. That the verdict of the jury was excessive. 2d. That it was not warranted by the evidence, and 3d. That it was found contrary to law and against the instructions of the court. This motion being overruled an appeal was taken to this court. The facts of the case as certified up by the presiding judge are substantially as follows: “That there were five bales of cotton lying on the Sabine river very much damaged by water; that Pouns exercised acts of ownership over it and employed a wagoner to deliver it at Todd’s gin, in Shelby county; that on his way there the wagoner was compelled by three armed men to desist from carrying the said cotton to Todd’s, and he thereupon threw it out of his wagon by the side of the road. That this cotton had been returned to Pouns by one Myrick, to whom he had sold it, and Pouns was endeavoring to deliver it back to Todd, from whom he contended he had obtained it. That the cotton lay there in that damaged condition for eight or ten days; that Ashcroft went to Pouns and asked him if he (Ashcroft) would incur any responsibility to him (Pouns) if he should take the cotton; that Pouns told him he would not; that the cotton was Todd’s. That he had delivered bach the cotton to Todd as far as he was able, and that he would have nothing to do with it; that he would give to Ashcroft no leave about it, because he did not consider it his cotton; that Ashcroft applied to Todd for his leave to take the cotton about the same time, who told him that he (Todd) would not have anything to do with it; that under these circumstances Ashcroft took the cotton, about ten' days after it had been thrown out by the wagoner, to Todd’s gin and assarted and repacked the same; that it made four bales of about 500 pounds each; that while Ashcroft was repacking said cotton, Pouns sent him word that he had better let it alone.”
    Todd, who was a witness in the cause, disclaimed on the trial any ownership of the property in question.
    Ashcroft, for appellant.
    The appellee had clearly abandoned the cotton, and scattered it by the roadside on the public surface of the earth without any intention of ever reclaiming it. It became, therefore, the property of the first finder. . 1 Bl. Com. marginal page, 295.
    To constitute a tort the goods must come into the hands of the defendant without the consent of the owner. In this case the appellee had given all the consent he could, and had expressly exonerated the appellant from any responsibility so far as he himself was concerned.
    There was no testimony showing the value of the cotton in its dam- ' aged state, and the verdict of the jury is for too much. Nor was any consideration taken of the work and labor of appellant in assorting, drying and repacking the cotton, of the bailing, etc.; but only the price of the hauling deducted.
    If anyone is responsible to the appellee, it is the wagoner who threw it by the roadside. This he was not compelled to do, although forbade from carrying it on to Todd’s by an armed force.
    
      H iclcs, for appellee.
    If the facts are sufficient to enable the appellee to bring an action of any kind, ex delicto, he is entitled to recover, and is not bound to any particular technical action at common law.
    The appellant has given the best proof of ownership of the cotton that the circumstances admit of. He exercised acts of ownership over it, and was in constructive possession of it when the appellant took and used it. If appellee had agreed to give appellant the cotton, it would have been nudum pactum and not binding. We find, however, that appellee forbade him taking the cotton at Todd’s gin while he was officiously intermeddling with it.
    The appellant- must be liable to some, person for the property in question, and the appellee being the ostensible owner, and Todd the only person supposed to be the owner, disclaiming all ownership, it must be the appellee to whom he is bound.
   LipscoMB, J.

This suit was brought by the appellee against the appellant before a justice of the peace to recover one hundred dollars., the value of some cotton. It was taken by an appeal from the judg ment of the justice of the peace to the district court, where an issue was made up and a verdict for the plaintiff for eighty dollars. The defendant made a motion for a new trial on the following grounds: Because the verdict was excessive, and not warranted by the evidence. That the verdict was contrary to the law and the charge of the court. The motion was overruled, and the defendant appealed. We are not informed what the charge of the court was. If it had been disregarded by the jury, we are bound to presume in the absence of the facts, the judge would not have refused a new trial. On the other ground that the verdict was excessive, the evidence sent up in the statement of facts would go to establish the very reverse. It was a matter of calculation of the value of the cotton, and the jury seems to have been furnished with every correct data for their conclusion from the evidence. It is the misfortune of the defendant that he conceived himself aggrieved by the judgment; the consequence is that he has incurred considerable additional cost. The judgment is affirmed.  