Of course the judgment from which the appeal is taken in this case must be, and is, hereby, reversed, and the cause remanded to the circuit court, under the authority, and as a consequence, of the opinion and decision of the Supreme Court on certiorari. Code 1923, § 7318; Const. 1901, § 140.
We are not able to apprehend just what it was we said "as applied to the count in case" to which the Supreme Court withholds its approval. There was testimony on the trial that at least the "cotton seed" involved in the suit had been "commingled by appellant so as to destroy identity," etc., and we had this in mind when we used the "etc." immediately after the expression "appropriated to his own use" where the same occurs in our opinion. This may be what the said high court had reluctance to approve.
At any rate, our ideas as to the technical rules that should have been followed in the litigation were gained from the opinion by the Supreme Court in the case of Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907, together with other (rather numerous) opinions of the Supreme Court along kindred lines, several of which were cited in appellant's brief. And to these the parties are referred for their continued litigation.
Reversed and remanded.