CONTRACT AND AGREEMENT-CONTINUED.
ther, it would not prevent C, or one clothed with the title of C, from suing
for the recovery of the property. Hinton v. Nelms,
222
4. A payment of part of the sum due upon a note, is not a sufficient consid-
eration for a promise to remit interest due upon the note, or to delay suit.
Barron, Adm'r, v. Vandvert, Adm'r,
232
5. All previous conversations or verbal agreements are merged in a written
contract subsequently made; and when there was testimony of a written
contract, it was error in the court to instruct the jury that the plaintiff
might prove a fact by the contract in writing, or otherwise. Cole v.
Spann,
6. If it was a term of the contract, that the defendant's cotton was to be
stored in a fire-proof warehouse, and the cotton was lost by the failure to
provide such a house, the plaintiffs must make good the injury. The
fact that the defendant was in the warehouse, after he had begun to de-
liver his cotton, can have no influence upon the contract. Hatchett & Bro.
v. Gibson,
588
7. If, after a contract to store the defendant's cotton in a fire-proof ware-
house, the latter dispensed with the completion of the warehouse, and
consented that it need not be made fire-proof, such consent, if given, can-
not be withdrawn after a loss has actually occurred, though there was no
additional consideration for such consent. lb.
588
8. S being entitled to a reservation by the treaty of Fort Jackson, leased the
land to J, and received from J certain slaves, the labor of which he was to
take as rent for the land during his life. It was further stipulated, that
if the children of S, on coming of age, should convey to J their title to the
lands, they should be entitled to the slaves. Held, that as this contract,
so far as it relates to the heirs of S, was not binding on S, it was not for
that reason binding on J, and that on the death of S, J could bring his ac-
tion to recover the slaves, without yielding up to them the possession of
the land, if he still retained it. James v. Stiggins,
830
1. A conveyance by deed, of "the south part of the east half of the north
east quarter of section 27, township 16, and range 12, containing 40 10-100
acres," is not a conveyance of the south half of the half quarter section,
without reference to quantity, but is a conveyance of the number of acres
mentioned, of the south half of the half quarter section. This construc-
tion cannot be controlled by the patent for the same land, which describes
it as containing 80 20-100 acres, nor is parol evidence admissible to show
that the entire south half of the half quarter was intended to be conveyed,
though chancery, in a proper case might reform the deed. Lamar v.
Minter,
2. In construing a bill of exceptions, a particular expression, “as that there
was no evidence of any indebtedness," if repugnant to other statements in
the bill, will be understood to mean, that there was no positive proof of in-
debtedness. Goodgame v. Clifton,
583
1. A payment of part of the sum due upon a note, is not a sufficient conside-
ration for a promise to remit interest due upon the note, or to delay suit.
Barron, Adm'r, v. Vandvert, Adm'r,
232
2. To make an absolute bill of sale, with a defeasance, operate as a mort-
gage, they must be executed at the same time. If the defeasance be exe-
cuted afterwards, without consideration, it is a nude pact. Freeman, Adm'r,
v. Baldwin,
247
3. B executes his note to O, in satisfaction of a supposed demand due from
the son-in-law of B, to O, when in fact no such demand existed. Held,
that the note was without consideration. Bullock v. Ogburn, &c. 347
1. When one surety sues a co-surety for contribution, for money paid by the
former, for the principal debtor, the latter may show, that the surety suing
for contribution was indebted to the principal debtor, in a larger amount
than he was compelled as surety to pay for the principal, and defeat the
right to contribution. Bezzell, adm'r,v. White,
422
1. The Alabama Life Insurance and Trust Co., has authority under its char-
ter, to purchase a bill of exchange. Gee v. The Ala. L. Ins. and Trust
Co.
1. If the clerk commits an error in the taxation of the costs, it will be cor-
rected on a motion to retax the costs, but furnishes no ground for quash-
ing the execution. Spann v. Cole,
1. The supreme court will render the proper decree, when reversing a de-
cree of the orphans' court, where the record furnishes the means of do-
ing it. Ashurst's Adm'r v. Ashurst's Heirs,
1. A party has a right to insist, that a proper charge shall be given, in the
terms in which it is asked, and the giving a charge subsequently, the same
in substance will not cure the error. Hinton v. Nelms,
2. A charge to the jury, that the plaintiff could maintain his action, "upon
his possession, derived as heir of his deceased brother, and as his bailee,"
COURT, CHARGE OF-CONtinued.
is erroneous, as it is an invasion of the province of the jury, whose right it was to determine the character of the possession. Phillips v. McGrew, 255 3. A judgment will not be reversed because a charge, legal in itself, may not be sufficiently full, or is calculated to mislead the jury; but additional or explanatory charges should be moved for. Casky, et al. v. Haviland, Risley & Co. 314
4. It is not a valid objection to a charge, that it is too general, and the jury might have been misled by it. It is the duty of the party objecting to it, to ask specific instructions. Hodges v. The Br. Bank at Montg’y, 455 5. It is error for the court to refuse to give a proper charge, in the language requested. Cole v. Spann, 537 6. When the facts are clear, and undisputed, the court may charge directly upon them, without hypothesis; and where the question is, whether the fact that there was no change of the possession, after an absolute sale of personal property, has been sufficiently explained, so as to repel the inference of fraud, may instruct the jury, that the facts, if true, do afford such explanation. Henderson v. Mabry,
CRIMINAL CASES, AND PROCEEDINGS IN.
1. One who has received a pistol from the State to keep until demanded, and who has given a bond for its return, has such a special property in it, as will sustain an allegation in an indictment for the larceny of the pistol, that it was his property. It will not vary the case, that the pistol is not in his actual possession; but is in the possession of his overseer. The State,
2. It is not an error of which the prisoner can complain, that the jury omit to find the value of the stolen property. lb.
3. Insanity intervening between the time of the alledged offence, and the trial, will not exculpate the prisoner. Ib. 153 4. If, from the appearance and conduct of the prisoner, when called on to plead, there is reason to believe he is insane, the court should institute a preliminary proceeding, to ascertain his sanity. Yet this must be left to the sound discretion of the court, and if the prisoner pleads to the indictment, the omission of the court to institute the preliminary inquiry cannot be assigned as error, though from the facts as set out in the record, there may be strong grounds for the belief, that the prisoner was insane at the time of the trial. Ib. 153 5. The wife of M having gone to live in the family of C, the former remarked to the latter that his wife had ruined him, and would ruin C, to which Creplied, she had to live somewhere, and he would not turn her away. Held, that this admonition had no tendency to establish that there was an illicit connection between C and the wife of M. The State v. Crowly, 172
CRIMINAL CASES, AND PROCEEDINGS IN-CONTINUed.
6. The suspicion, or jealousy of the wife, of one indicted for adultery, can-
not be adduced as evidence against him. lb.
172
7. Acts occurring eighteen months after the finding of an indictment for
adultery, and not connected with other acts, occurring within the time laid
in the indictment, cannot be given in evidence, though tending to prove
an illicit connection. Ib.
172
8. The party with whom the adultery is charged to have been committed, is
a competent witness for the other party. The degree of credit to be giv-
en to the testimony, is a question for the jury. Ib.
172
See Drunkenness, 1.
See Indictment, 1, 2.
1. J addressed a letter to N, a book-keeper in the house of F & B, grocers,
in Mobile, requesting N to send him some groceries to Selma. N turned
over the bill to the proper clerk of the house, who forwarded the goods as
requested. N had previously lived in Selma, was indebted to J, and was
insolvent. It was proved that clerks were in the habit of receiving orders
from their friends, which they filled, and charged to their friends on the
books of the house from which they purchased. Held, that it should be
left to the jury, under the testimony, to determine the nature of the autho-
rity to N, and the liability of J to F & B. Foster & Battelle v. Johnson, 379
DAMAGES.
1. When a cause is submitted for trial on bill and answer, and the defendant
denies the equity of the bill, and avers that the same was filed for delay,
damages of six per centum, upon the judgment at law enjoined by the bill
may be decreed.
Weissinger, et al. v. Johnson, et al.
93
2. When an agent is instructed not to sell a horse for less than $500, and
he notwithstanding sells for a less sum, in an action by the owner against
the agent, the measure of damages is not the difference between the price
placed on the animal by the owner, and the sum for which it was sold, but
the actual injury sustained by the breach of the instructions. Ainsworth
v. Partillo,
3. The damages which a mercantile firm, composed of three individuals, can
recover, in an action for wrongfully and maliciously suing out an attach-
ment, must be for an injury done to their joint business, and must not on-
ly be the natural, proximate, legal result, or consequence of the wrongful
act, but must affect the joint business, or trade of the partnership. Injury
to the private feelings of the individual partners, is not a proper subject of
inquiry. Donnell v. Jones, et al.
491.
4. Proof of special damage, arising from the loss of reputation, credit, or
business, or the withdrawal of particular customers, cannot be made, un-
less such special damage is averred in the declaration. Ib.
5. A loss accruing from a forced sale of goods, under an assignment, is not
a natural, or proximate consequence of the issue and levy of an attachment
by the creditor, previous to the making of the assignment by the debtor.
lb.
491
6. Warehousemen, are bound to take reasonable, and common care, of any
commodity entrusted to their charge; and if a loss occurs under circum-
stances which shows the want of such care, they are bound to make it
good. Hatchett & Bro. v. Gibson,
587
7. If it was a term of the contract, that the defendant's cotton was to be stor-
ed in a fire-proof warehouse, and the cotton was lost by the failure te pro-
vide such a house, the plaintiff must make good the injury. The fact that
the defendant was in the warehouse, after he had begun to deliver his
cotton, can have no influence upon the contract. Ib.
588
8. The damages on a protested bill of exchange, drawn within this State,
and payable in a sister State, is ten per cent. Murphy & Brock v. Andrews
& Bros.
9. Interest cannot be computed on the damages. Ib.
See Recoupment, 1, 2.
DEEDS OF TRUST.
1. A provision in a deed of trust, that the trustee may wait until required by
the cestui que trust to sell, does not have the effect to postpone the law day
of the deed, the trustee being authorized to sell upon default of payment
of the debt secured, nor is it a circumstance from which fraud can be in-
ferred, that the trustee is invested with a discretion, as to the manner of
selling. Brock v. Headen,
370
2. A sale of goods enclosed in boxes, and not exposed to view, is evi-
dence of fraud; yet it cannot have the effect to render the deed of trust
void, if bona fide in its creation. Quere-If the goods were of value suffi-
cient to satisfy the demand of the creditor who caused the sale to be made,
and there was no other demand to be satisfied out of the assigned effects,
whether a court of law could declare the deed inoperative by reason of
such sale? Ib.
1. A conveyance by deed, of "the south part of the east half of the north
east quarter of section 27, township 16, and range 12, containing 40 10-100
acres," is not a conveyance of the south half of the half quarter section,
without reference to quantity, but is a conveyance of the number of acres
mentioned, of the south half of the half quarter section. This construc-
tion cannot be controlled by the patent for the same land, which describes
it as containing 80 20-100 acres, nor is parol evidence admissible to show
that the entire south half of the half quarter was intended to be conveyed,
though chancery, in a proper case, might reform the deed. Lamar v.
Minter,
|