¶1By the court,
¶2The court should unquestionably have-granted a new trial in this case. Smith loaned to McKenzie thirty-bales of cotton, with which to pay a debt. Wait was the agent of the person to whom the debt was owing, and received and weighed the cofo ton for his principal, and shipped it to his address. By some mistake or other, it appears that Smith, upon counting the number of bales on hand, discovered that there were three missing, and White being his overseer, Stnith compelled him to pay for the neglect of his duty» Some time-after this, Wait informed Smith that there were three bales of cotton, which he supposed to be his, in custody of the person to whom the thirty bales were shipped. To recover the price of those three bales, White sued Wait, before a justice of the peace, and Wait obtained judgment, and White appealed to the circuit court, where the cause was tried, and upon the facts stated, recovered the price of the three bales of cotton. There was no proof, showing that Wait ever received these three bales, or that he converted them to his own-use. He acted as-the mere agent of his principal, and the mistake in the number of the bales shipped is as naturally to be attributed to-White as to Wait. There is no evidence conducing, to prove a conversion by the principal. From-all that appears, it is shown that there are three bales of cotton belonging to some one in the hands of the principal, and that Wait thought that he would pay for them if applied to for that purpose, and he supposed that they belonged to Smith.This proof does not sustain the case. The property in the three bales-of cotton by White’s paying their value to Smith, became White’s,, and for aught that appears they have never been converted by any one, but yet remain his property. The new trial should have, therefore, been granted.