Miller v. King , 67 Ala. 575 ( 1880 )

BRICKELL, C. J.

— 1. The statute removing interest as disqualifying a witness, on abolishing incompetency because of the relation of parties to suits, very soon after its enactment, was construed as rendering husband and Avife competent witnesses for or against each other, when they were not required to disclose confidential communications. — Robinson v. Robinson, 44 Ala. 234; Lang v. Walters, 47 Ala. 625; Rowland v. Plummer, 50 Ala. 193; Sumner v. Cooke, 51 Ala. 521; Chapman v. Holding, 60 Ala. 533. Subsequent to the larger number of these decisions, the statutes were revised, and there was no alteration or change made in the statute referred to; and of consequence, it must be taken that it was re-enacted with a knowledge of the repeated construction it had received, from which we cannot now depart.

2. When goods, or choses in action, are by a wrong-doer converted into money, the owner may waive the tort, and recover the money received. — 1 Brick. Dig. 150, §§ 227-29. The rule applies, however, only when subsequent to the tort, which, of itself, gave a cause of action, there has been the reception by the wrong-doer of money, or that which he received as the equivalent of money, for the property of the plaintiff. If the appellee improperly obtained possession of his note from Mrs. Mitchell, trover for its conversion could have been supported against him, if on demand he had refused to deliver it. ' And if he had subsequently used it as money in any transaction, the conversion could have been waived, and assumpsit for the money, the amount for which he had used it, could have been supported. But, not having used it as money — simply having converted it, there is no ground on which the loan can raise a promise to pay money for its conversion.

Affirmed.