
    Weems vs. Stallings.
    ^ w ® |; t J j In an action of trover, brought by an employer against his overseer, to recover the va ue of a hhd. of tobacco made on the planjaticn of the plaintiff, and inspected in ihe name ot the employ er, and the note oeliveied to the oveisetr, to bft by him delivered to Ins employ er* but which \vas iutamed and sold by the pverseer as lutf share of the crop of afyc hhds. under an agreement entered imp betw een the parties, stipulating that tbo overseer should have one-sixth part of all tobácea made — Held* ‘that the plaintiff waj entitled tore^ovef
    Appeal from Calvert County Court, This was an action of trover, brought by the appellant against the appellee, for one hogshead of crop tobacco, weighing 9881bs. &c. to which the general issue was pleaded* At the trial, the plaintiff offered in evidence, that in the year 18j)2, thede-J; fendant carried to the inspection house ai Lower Marlborough six hogsheads of tobacco, which grew on the farm of the plaintiff during the year 3802, while the defendant” acted as the overseer of the plaintiff; three of which hogs-1 heads were crop tobacco, one weighing, &c. three second, one weighing, &c. That the tobacco was inspected in thet name of the plaintiff, and the notes delivered to the de?* fendant, to be delivered by him to the plaintiff, but that th*5 defendant delivered only five, and retained the one pf the} crop hogsheads weighing 988, and which he afterwards} sold. The defendant then produced and read in evidence, an agreement in writing entered into between him and the! plaintiff, the execution of which was admitted, dated the 9th of September 3801, in which, among other things, if was agreed (bat the defendant was to serve the plaintiff as an overseer for the ensuing year, 1802, and, to receive therefor the sixth part of all tobacco, &c. made by him on. the plaintiff’s plantation, with the hands, &c. stated to be-found and furnished by the plaintiff. The defendant proved that the six hogsheads of tobacco, above mentioned, were made on the plantation of the plaintiff, while the defen; dant acted as overseer under the above articles of agree» snent. He then prayed the opinion of the court, and their direction to the jury, fhat if they should be ot opinion, that the hogshead of tobacco sold by the defendant was part of the crop made on the plantation of the plaintiff” during the year that the defendant acted as overseer under the above agreement, that the plaintiff is not entitled to recover in the present form of fiction. ' And the comí, (Gantt, Ch. J.) upon this prayer, instructed the jury, that if they should believe, from the evidence, that thp tobacco was made upon the plantation of the plaintiff’, during the year mentioned in the agreement, when the defendant was overseer, and that there had been no division of the tobacco go made, that thp defendant had an undivided property in |he tobacco so inspected by of tjie agreement, and that the plaintiff could not recover in this action. The plaintiff excepted; and the verdict and judgment being against him, he brought this appeal.
    The cause .vas argued before Chase; Ch. J. Buchanan, and Nicholson, J. by
    
      Johnson, (Attorney-General,) and Magryder, for the -Appellant;
    and by
    
      G. A. Clage.lt, for the Appellee.
   The Court

was of opinion that the defendant below was only a hired person; that that character was not changed by his compensation being uncertain and depending on the amount of the profits; that he had no such interest in tlie crop as would justify him in disposing of it, and that having sold the tobacco in question, he was liable to th<5 plaintiff' below in this form of action.

judgment reversed, and procedendo awarded.  