Oliver v. McClellan , 21 Ala. 675 ( 1852 )

LIGON, J.

The first question naturally arising on the record, relates to the competency of Hall as a witness for the plaintiff in the court below.

It is contended, that he is interested in procuring a verdict against the plaintiff; because, if the plaintiff recover against Oliver, and that recovery is satisfied, he will exempt himself from a recovery at the suit of the plaintiff for his own conversion of the horse, in trading him to Oliver; for the plaintiff can have but one satisfaction for the property converted. "Were this the whole extent of his liability, the objection would be good. But the witness is not only liable to McClellan in the manner above stated, but if McClellan recover of Oliver, the latter is entitled to his action against the witness for a breach of the implied warranty of the title of the horse, at the time the sale was made to him. Thus, it will be seen, that Hall, the witness, is liable in every event, and that his interest is balanced. A witness so situated, has been constantly held to be competent for either party. 2 Mass. 108; 1 Watts, 135; 1 Bibb, 298 ; Greenleaf’s Ev.

The remaining assignments of error may be well considered together, for the objection to the action of the court below is the same in each, and arises oat of the supposition, that an infant or minor cannot be sued in detinue, notwithstanding the conversion of which he is guilty is tortious in its character.

“ The gist of the action of detinue is the wrongful or tor-tious detention of the property, not the original caption, and it is regarded as wholly unimportant whether the defendant’s possession was acquired by bailment or trespass.” Salter v. Pearce, 4 A. R. 669. The action of detinue, especially when founded on a conversion and detention, such as are exhibited in this case, is in fact an action ex delicto; it seeks redress against the defendant for a tort; and, I think it clear, both on principle and authority, that an infant may be sued for his torts, and this, irrespective of the form of action which the law prescribes for the redress of the wrong done. 1 Chitty’s Plead. 76; 3 Pick. Rep. 492; 6 Cranch, 226; 9 N. H. 441; 3 McCord, 257.

It may not be improper here to remark, that, in coming to this conclusion, I attach no importance to that portion of the direct charge of the court below which seems to imply, that if the defendant “ was in the habit of trading on his own account, and working about in the neighborhood, controlling the proceeds of his own labor,” his liability to be sued would be greater, than if he labored alone for his parents or guardian. I am not prepared to say, that the rights or liabilities of an infant, situated as this part of the charge presupposes the defendant in tbis case to be, would be, in any respect, different from those of other minors, except in this, that he might be considered as the agent of the parent or guardian in making-bargains for his own labor, and his acquittances for his wages would be good against such parent or guardian. But even this would not result, unless he thus acted with the consent, or .by the connivance of the parent or guardian.

The exercise of these privileges, however, does not operate a forfeiture of that protection which the law throws around the minor, when it forbids his being sued except in particular cases.

Let the judgment be affirmed.