[Boulware v. Davis.] making the contract, complied with the requirements of section 1180 of the Revised Code, corresponding with section 1209 of Code of 1887. The statute provides, that no agent of any foreign fire, river, marine, or life insurance company shall, directly or indirectly, take any risk, or transact any business of insurance in this State, without first procuring a certificate of authority from the Auditor, and declares the violation of the provisions of the statute a misdemeanor. The prohibition is directed to, and the penalties of a violation are visited upon the agent. The statute prohibits taking risk, or transacting business of insurance; it does not prohibit the transaction of business generally, not in the line of business of insurance. The bill does not show that the bond and mortgage were made in the course of transacting any. business of insurance in this State; it simply shows a debt owing to the corporation, for which security was given. The observations made in reference to the first cause of demurrer apply also to this. The case does not fall within the principle settled in Farrior v. New England Mortgage Sec. Co., 88 Ala. 275, and the subsequent cases. Counsel for appellee, in his argument, suggests questions involving the construction of the declaration of trust, executed by Nicholas Davis several years before the making of the mortgage, the nature and extent of the right or estate of Mrs. Davis and their children, and the power of herself and husband to make a valid mortgage of the land. These are important and serious questions, which will require careful and full investigation and consideration, when properly raised; but they are not presented by the assignments of error, and could not have been. No assignment was made to complainant as receiver by the corporation. The legal title to the land is in the company. Is not the company an indispensable party, so as to have the legal title before the court? We suggests this for the consideration of counsel. Reversed and remanded. [Bolling v. Kirby & Brother.] Bolling v. Kirby & Brother. Trover for Conversion of Sewing-Machine. 1. Payment of note by acceptance of property in satisfaction, and rescission thereof by agreement.-On the sale of a sewing-machine on credit, the legal title being retained by the vendor, and the note of the purchaser and his wife taken for the agreed price, with a contemporaneous agreement that cattle will be accepted in payment at a specified price; if the vendor sends an agent to receive the cattle and deliver up the note, at the time and place appointed, and this is accordingly done, the note is thereby satisfied, and the title to the machine is vested in the purchaser; but, another creditor of the purchaser being present, or coming up, and claiming a lien on the cattle, it is competent for the purchaser to surrender the cattle to him, and hand the note back to the vendor's agent, whose want of authority to consent to the transaction being cured by the subsequent ratification of his principal, the payment and satisfaction of the note is cancelled, and the title to the machine is again vested in the vendor. 2. What constitutes conversion. To constitute a conversion, there must be a destruction of the plaintiff's property, or some unlawful interference with his use, enjoyment, or dominion over it; or an appropriation of it by the defendant to his own use, or to the use of a third person, in disregard or defiance of the owner's right; or a withholding of possession, under a claim of title inconsistent with the title of the owner; and there must be a positive tortious act as distinguished from mere non-feasance, or neglect of a legal duty, or the failure to perform an act made obligatory by contract, whereby the property is lost to the owner. But any intermeddling with the property of another, or exercise of dominion over it, whether by the defendant alone, or in connection with others, in denial of the owner's rights, or subversive of his dominion, is a conversion, though the defendant had not the complete manucaption of the property. 3. Same; case at bar.-Plaintiff having gone to defendant's house to demand and retake a sewing-machine, which he had sold on credit to defendant's son-in-law, retaining the legal title in himself; if defendant interfered in the interest of his daughter, who was then living on his premises, and prevented plaintiff from taking possession of it, by the unqualified assertion of title in his daughter or himself, he would be guilty of a conversion; but, if there was a bona fide controversy as to the fact of payment, on which he based his refusal to deliver up the property, promising to deliver it the next day if he found payment had not been made, to which plaintiff assented, this would not constitute a conversion; and if he only received the property as belonging to his daughter, when she removed to his premises, and never in any manner interfered with her possession or use of it, nor did anything in connection with it except to make inquiry as to the disputed fact of payment, he would not be guilty of a conversion. 4. Argumentative charge.-An argumentative charge may properly be refused, but giving it is not a reversible error. APPEAL from the Circuit Court of Marshall. [Bolling v. Kirby & Brother.] This action was brought by Kirby & Brother, suing as partners, against William Bolling, to recover damages for the alleged conversion of a sewing machine; and was commenced in a justice's court, on the 30th September, 1887. The only plea was the general issue; and the contested questions of fact were, (1) whether the machine had been paid for, or still belonged to the plaintiffs; (2) whether the defendant had done anything in connection with it which constituted a conversion. The machine had been sold by plaintiffs, as J. F. Kirby testified, on the 7th September, 1885, to Thomas Bishop and his wife, taking their joint note for the agreed price ($30), payable on the 15th November, 1885, and retaining the legal title in themselves until it was paid. Kirby testified, also, that when he delivered the machine to the purchasers, at their residence, "he agreed with said Bishop to take young cattle, at two and a half cents per pound, in payment of said note, and so indorsed on it; that in November, about the time the note fell due, he went to Bishop's house, and, being told by Mrs. Bishop that her husband had the cattle, left word for him to bring them to Guntersville, where he would have a man to receive them and to turn over the note on their delivery; that he then returned to Guntersville, and authorized one A. R. Hooper to receive the cattle for him, leaving the note with him to be surrendered to Bishop; and that he never saw the note again, until at the trial before the justice." Hooper testified, on the part of the plaintiff, that Bishop came to his store in Guntersville, a few days after the note had been left with him by Kirby, and said that he had brought the cattle to pay it; that they went together to the place where the cattle were standing in the street, and Bishop handed him a paper with the weights marked on it; that S. M. Bains and J. Y. Spooner stepped up to them just at that time; that he remarked the cattle weighed very heavy, but he would take them, and handed Bishop his note; that Spooner and Bains, one or both, immediately claimed the cattle, saying they had a mortgage or lien on them, and handed him a paper showing their claim; that Bishop "then traded with them, sold them the cattle, and handed his said note back to witness; that witness had not taken charge of the cattle, nor tried to drive them away, nor taken any control over them; and that Bishop, on handing him the note, said he had more cattle, and would bring them and pay off the note." The question whether the note was paid or not, as involved in the charges given and refused, was based on this evidence. Kirby testified, also, that some time during the Fall of 1886, [Bolling v. Kirby & Brother.] he went to the residence of Bishop and wife to get the machine again, as the note had not been paid, but found that they had removed, and that Mrs. Bishop had gone to the house of the defendant, who is her father; "that he went to the defendant's house, and demanded the machine; that Mrs. Bishop came to the door of her house, in the defendant's yard, and claimed that it had been paid for; that the defendant then told him he could not take the machine away, as his daughter had paid for it, and it was hers; that he then tried to sell the machine to the defendant," who said that he already had one, "that his daughter was living with him, and that she claimed the note had been paid in cattle;" that the defendant, after some further conversation between them, "agreed to come to town, and see whether witness could take the machine, and said, if so, that he would not have anything further to do with it;" that he and the defendant met in Guntersville the next day, and defendant said he was ready to deliver the machine; that he then told defendant to deliver it at the office of Jno. G. Winston, and that he had never received it. Winston testified, on the part of the plaintiffs, that he agreed to receive the machine at the request of the parties; that defendant said, at the time, "that he was hauling cotton, and would send down the machine;" that he came to the office a few days afterwards, “and said that he had started with it tied on a cotton wagon, but it looked like it would break down, and he sent it back, but would send it down yet ;" and that defendant afterwards told him "that Bishop had moved his family away, and had taken the machine." The defendant, testifying as a witness for himself, stated that in the Fall of 1886, Bishop having gone to Arkansas, he moved Mrs. Bishop and her children into a house on his own premises, "two or three hundred yards from his residence;" that she then had a sewing machine, which he brought with her other furniture, and placed in the house occupied by her, and had never seen it since except in her house; that his interview with Kirby, when the latter came to demand the machine, occurred in the yard between the two houses; and he stated the substance of the interview, and the subsequent interviews in Guntersville, without material variance, as the other witnesses had. On this evidence the court gave the following charges to the jury at the instance of the plaintiffs, the defendant duly excepting to each of them: (1.) "If the jury believe the evidence, the note read in evidence vests the legal title to the machine in plaintiffs." (2.) "If the jury believe the evidence, the note has not been paid, and is sufficient to vest title to the property in plaintiffs." (3.) "If the defendant had the [Bolling v. Kirby & Brother.] machine in his possession, or under his control, and promised plaintiffs to deliver it at Winston's office, and afterwards permitted some one else to take it out of his possession, or from under his control, whereby the machine was lost to plaintiffs, he is liable to them for its value." (4.) "If the defendant had the property in his possession, or under his control, and agreed to deliver it to plaintiffs; then he became plaintiffs' bailee, and it was his duty to keep the machine and deliver it to them." (5.) "If the defendant, by himself, or by some one in his employment and under his directions, got the machine, placed it on his wagon, and started to town with it; then the machine was under his control, and if he afterwards permitted some one else to take it out of his control, whereby it was lost to plaintiffs, this was a conversion, and he would be liable to plaintiffs for the value of the property." (6). "If the defendant told Kirby that he could not take the property from Mrs. Bishop, this is a circumstance to which the jury may look, to see whether defendant had control of the machine or not; and if he did have control of it, and refused to let Kirby have it, this would be a conversion." (7.) "If the jury believe from the evidence that the defendant had possession of the machine, or [it was] under his control, and he promised Kirby to deliver it to plaintiffs, at Winston's office in Guntersville, it was his legal duty to do so; and if, in disregard of his duty, he permitted some one else to take it away out of his control, whereby it was lost to plaintiffs, he is liable for its value." The defendant requested eleven charges in writing, and duly excepted to their refusal. The first was the general charge on the evidence, the second is set out in the opinion of the court, and the others were in these words: 3. "If the jury should find from the evidence that Kirby went to defendant's house, and demanded the machine, and that the machine was there, this would not, of itself, constitute a conversion; and if this be all the defendant did in the way of converting the machine to his own use, their verdict should be for the defendant." 4. "If the jury find from the evidence that Bishop and wife bought a sewing-machine from plaintiffs, and made the note in evidence; and that Bishop went off, or left the country; and that the defendant moved Mrs. Bishop, his daughter, to a house on his plantation; and that Kirby went to her house, and demanded the machine; and that she claimed the note had been paid, and that Kirby was not entitled to the machine; and that defendant, who was there, then told Kirby that he could not take it away, or that he would not allow him to take it away; and that the defendant went to town the next day, |