
    
      Rhodes v. Lowry.
    
    
      Trover*
    
    1. Agent, declarations of; when admissible against principal.&emdash;Declarations, made at the time of seizing property, by one who claimed to act as agent for another, are competent evidence against such person, when sued for a conversion of the property, if there is evidence tending to establish such agency? and the error in admitting such declarations, before the proper predicate has been laid, is cured by subsequent proof of his agency.
    2. Discretion of court; what within.&emdash;It is within the discretion of the court to permit a witness, after having left the stand, to return and correct her tes-'timony, previously given.
    3. Sidings of primary court; when will not be revised.&emdash;The appellate court will not revise the ruling of the primary court, excluding evidence, when no exception is reserved.
    
      L Charge; when eironeous.&emdash;Although oral evidence of a fact tends very clearly to establish it, yet it still remains for the jury to decide whether the testimony proves the fact; and a charge, which, without referring to the Jury the credibility of the evidence, instructs them that the fact is proved, is an invasion of their province, and necessarily erroneous.
    5. Trover; when maintainable. — If the defendant seizes and removes personalty from the premises of the owner, in defiance of her wishes, and in repudiation of her right to it, the owner may maintain trover for a conversion, without demand before suit brought.
    Appeal from Circuit Court of Crenshaw.
    Tried before Hon. Philemoñ O. Harper.
    This was an action of trover by tbe appellee against G. W. Bbodes, for tbe conversion of about ninety bushels of corn.
    On tbe trial, plaintiff was introduced as a witness, in ber own behalf, and testified that tbe corn alleged to have been converted was bers; that “Moody and Bhodes came to ber bouse and asked ber for tbe corn, and showed ber a paper, which, Moody said, was a mortgage made by ber and others; that she then denied having made any mortgage to Bhodes; that Moody replied that be bad come to take the corn for G. "W. Bbodes, and be intended to do so; that Moody, on being refused tbe key to tbe bouse in which tbe corn was stored, took an axe and mashed down tbe door, and carried off tbe corn, saying that be was doing it for George "W. Bbodes. Witness further stated that defendant was not present when tbe corn was taken, and .defendant then objected to tbe declarations of Moody and B. F. Bbodes, but bis objection was overruled, and be excepted.” Witness having testified as to tbe time of tbe conversion, asked, after she bad left tbe stand, leave to correct ber testimony in that respect, which tbe court granted, against tbe objection of defendant.
    One Brooks, a witness for tbe plaintiff, testified that, being employed by ber as an attorney, be called on George W. Bbodes, and inquired of him bow be justified tbe seizure of tbe corn; to which be replied that be bad a mortgage on it, and at tbe same time notified him of tbe time and place of selling tbe corn to satisfy tbe mortgage.
    Tbe defendant then offered a mortgage, purporting to be signed by tbe plaintiff and others, and as to which tbe court ruled, among other things, that tbe mark of Sylvia Lowry was not a signature, and refused to allow tbe mark to be proved, or tbe mortgage to be introduced. No exception was reserved to this ruling.
    Tbe court, thereupon; charged tbe jury, that if they believed, from tbe evidence, that tbe plaintiff was in possession of the corn at tbe time of tbe seizure, that was a sufficient title for ber to recover upon, in this form of action, against a mere wrong doer; that if tbe defendant, by himself or bis agents, seized the corn, and carried it away, this would be a conversion, and no demand and refusal are necessary ; that the declarations of Moody are- to be disregarded, unless the jury believe that Moody, Kulp and Bhodes were the agents of the defendant, but if they believed that they were his agents, then their declarations were evidence against him; that if the defendant ratified the act of Moody, Kulp and Bhodes, that would make. them his agents; that the evidence showed that they were his agents, and he so charged them. Defendant reserved an exception to each of these charges, and here assigns the same as error, together with .the refusal to admit the mortgage in evidence, and to give charges the substance of which appears in the opinion.
    John Gamble, for appellant,
    John A. Padgett, contra.
    
   MANNING, J.

The declarations of Plarrison Moody and Benjamin Bhodes, tending to show they were acting for, and claimed the corn in controversy as the property of defendant under a mortgage by plaintiff below and others to him, when they forcibly took it from plaintiff, were admissible or not as evidence against defendant, according as Moody and Bhodes were or were not his agents in that transaction. And, as testimony afterwards given tended to show very clearly that they were so, there was no error in the overruling of the objections to that evidence.

It was within the discretion of the court below to permit the plaintiff to return to the stand as a witness, immediately after she had withdrawn from it, to correct some testimony she had previously given.

No exception was taken, according to the bill of exceptions, to the action of the court in excluding the mortgage, or writing purporting to be such, set out in the record, and offered in evidence on the part of defendant. We cannot, therefore, revise this action if it were clear (as it is not) what precisely was the ruling in respect to it, which was made by the court.

The only erroneous charge among those given by the court, and set forth in the bill of exceptions, is the fifth in order, in which the jury were told “that the evidence in this case showed that Moody, Kulp and Bhodes were the agents of defendant, and he so charged them.” Although the evidence tended very clearly to establish the fact affirmed, this instruction, given without any request from either sido, was a manifest invasion of the province of the jury. The evidence in support of it was wholly oral; and its credibility should have been referred to the jury. For the court to assume that this testimony was true, and, thereupon, to instruct the jury that it established a fact which it was for them to ascertain, was error.—Stewart v. Russell, 38 Ala. 619, and cases therein referred to:

There was no evidence in this cause, the mortgage being excluded, to show any right whatever to the corn in defendant; and if there had been — yet, as according to all the proof, the possession of the corn was obtained by him through acts done against the will and remonstrances and in repudiation of the dominion of plaintiff — no demand of the corn was necessary to enable-her to maintain a suit for it. If entitled to recover at all, she was entitled to do so in virtue of the conversion of the corn by the seizure and removal of it from the premises she occupied, in defiance of any right she might have in it. Therefore, there was no error in the refusal of the court to give the charges asked for on behalf of defendant, both of which implied that a demand might have been necessary, and thus would have tended to mislead the jury.

For the error indicated, the judgment must be reversed, and the cause remanded.  