CONTRACTS AND AGREEMENTS-CONTINUED.
dants thereof, the corn is then at the risk of the defendants, and being injured
by the rise of the water, the loss is theirs. Burr et al. vs. Williams. 244.
9. Where a contract is made for the sale and delivery of corn, to be put in sacks,
and the sacks are obtained by the vendor of the vendee, without any proof
that the sacks were to be furnished by the vendee, the legal presumption is that
the vendor was to find the sacks, and the verdict of the jury for the amount
due upon the corn, without allowing the vendee for the price of the sacks will
be set aside. Ib.
10. Upon an agreement to sell and deliver corn, and no price agreed upon, the
law fixes the price at the market value of the corn at the time of its de-
livery; and if, in such case, there is an understanding that the vendor shall
measure the corn, or if the vendee receive and exercise acts of ownership
over it, there is no need of measuring it to constitute a delivery. Ib.
11. Where a plaintiff sets out and relies upon a special contract, he is bound to
prove it in order to enable him to recover upon such contract. Ib.
12. Where the proof, as to quantity, is that the plaintiff delivered from 1,000 to
1,500 bushels, the jury are at liberty to fix the quantity any where between the
two sums stated. Ib.
13. If the principal in a bond given for an illegal consideration, deliver the money
due upon it to his surety to be paid to the payee, and he agrees so to pay it
over, this is a new contract and undertaking on his part, and though a party to
the original contract, he is as much bound to pay the money as a stranger to
the illegal contract would have been. Barker vs. Parker, 390.
14. In an action on a bond to deliver a negro or pay the value, on a specified con-
tingency, a plea that, before the happening of the contingency, the negro died,
is a good answer to the declaration. Haralson vs. Walker, 415.
15. Where a contract of sale of property is made by a person who lacks the
capacity to make a valid contract, it is not necessary, to avoid the sale, that it
be rescinded by the payment or tender of payment of the consideration paid by
the purchaser. Henry vs. Fine, 417.
All the contracts of a lunatic are not held to be void, or even voidable-con-
tracts for necessaries, etc., having been held to be binding. Ib.
16. The complainants and defendants, in a suit for title to town lots, which had
been decided in favor of the complainants, entered into a compromise agreement
that the complainants were to accept the purchase money and interest for all
lots sold by the defendants and not purchased back; and that where the defen-
dants were in a condition to surrender up the lots, the complainants were to
receive the lots and improvements in lieu of rents, etc.: Held, in a suit by the
complainants against a party who had been in possession of lots, under a ven-
dee of the defendants, which had been purchased back by them and surrendered
to the complainants, that by the compromise agreement the complainants had
abandoned all claim, if any they had, to rents accrued and for waste committed
before the date of the agreement. Cunningham vs. Trapnall, 557.
CONTRACTS AND AGREEMENTS-CONTINUED.
17. A party seeking to enforce a specific performance of a contract, must allege and
prove a readiness to perform his part of the agreement. Jordan vs. Deaton, 704.
18. A contract in reference to the sale of lands, to be specifically performed, must be
certain in its terms and mutual-an obligation on the part of one to sell and on
the other to purchase. Ib.
29. It is well established that proprietors of adjacent properties may, by parol agree-
ment, establish an arbitrary dividing line between them, and acquiescence in such
agreement will make it good; or an agreement may be inferred from acquies-
cence, and occupation according to the line; and this, though one of the parties
be only a settler upon public land of which he afterwards becomes the proprie-
tor. Ib.
20. Where one proprietor of adjoining lands points out to the other a particular
line as the boundary between the two tracts-assures him that it is the true
line-encourages him to make a permanent settlement on the land by acquie-
scence and assistance in the improvements, it would be inequitable to permit
him to assert a claim to the land covered by the improvements, though it should
prove by a subsequent survey to be his own land. Ib.
See, also, Evidence 3; Vendor & Vendee 4; Pleas & Pleading 8; Recoupment 1.
See Wills and Testaments, 13.
1. A deed of assignment, purporting to convey to the assignee all the lands and tene-
ments, goods, wares, etc., etc., of the debtor, "and which are more particularly
and fully enumerated and described in the schedule hereto annexed, and marked
Schedule A," is inoperative, unless such schedule be attached to the deed; and
parol evidence is inadmissible to prove what goods, etc., were intended to pass by
the assignment. Barkman et al. vs. Simmons 1.
2. A deed, purporting on its face to be a conveyance of property, could not be
made a mortgage in this case, because the evidence did not establish such a con-
clusion. Jones vs. Jones 212.
3. Whether an instrument of writing is a deed, or a bond for title, must be deter-
mined by the intentions of the parties derived from the whole instrument-one
containing words of grant with a proviso for payment of the remainder of the
purchase money, and a covenant to convey, on such payment, by deed, with
general warranty, declared a bond for title, or agreement to convey. Kelly vs.
Dooling 582,
4. The covenant of seizin in a deed of conveyance is broken as soon as made,
where the grantor, at the time of the conveyance, has no title, and the grantee
may purchase in the outstanding title without waiting until disturbed in his
possession; and in such case may recover of the grantor the reasonable price
which he has fairly and necessarily paid for it; but in the absence of proof of
the value of the title, he can only recover nominal damages, not the amount
which he may have paid for it. Pate vs. Mitchell 590.
See, also, Husband and Wife.
1. The subscription of a municipal corporation to the capital stock of a railroad
company, unless authorized by legislative authority, is not valid and binding on
the corporation. M. O. & R. R. R. R. Co. Mayor, etc., 300.
1. Where the bond of the sheriff and collector is in a sum less than double the
amount of the state and county taxes, the county court has the legal power to
require him to give a new bond: and if he fail to do so, he cannot compel the
clerk, by mandamus, to deliver to him the tax book. Alexander vs. Sanders
630.
2. A court of chancery has no power over the judgments of the County Court except
for fraud: where errors have been committed, the remedy is by appeal to the
Circuit Court. Christian Ex parte 641.
3. Where the County Court, instead of requiring a collector to make settlement in
March, as the law directs, when he was solvent, delayed it until October, when
he was insolvent, the sureties are not thereby discharged. Ib.
See, also, Criminal Law, 7.
1. Upon presentation of the levee scrip of Chicot county, on a call of the county court
under the act of 6th January, 1857, (Gould's Dig. 925,) for redemption, classi-
fication and re-issue, the holder of the scrip is entitled to payment of both prin-
cipal and interest, and the County Court had no right to cancel the scrip with-
out provision for payment of the interest as well as the principal. Chicot Co.
vs. Campbell, 699.
1. There being no precise form of words necessary to constitute a covenant, it
must depend upon the intention of the parties, and to ascertain that intention
the court may look, not only to the instrument, but to the circumstances attend-
ing its execution. Vaughan et al. vs. Matlock, 9.
A lease of a lot of ground, described by metes and bounds, "together with the fire
proof brick cotton ware-house built thereon, and all and singular the other ap-
purtenances thereunto belonging," construed to be a covenant that the ware-
house was fire proof, it appearing that the lessees leased the premises for the
purpose of procuring a fire-proof ware-house in which to store cotton, etc. Ib.
2. H. & W. were mercantile partners. H. sold his interest in the firm effects to
T., and W. & T., who became partners in a new firm, executed a covenant to
H. to pay the debts of the old firm of H. & W., and save him harmless on ac-
count thereof. If they failed to do so, H. had a remedy against them on the
covenant of indemnity; but creditors of the firm of H. & W. had no right of ae-
tion against the new firm of W. & T., in consequence of their covenant to H.,
for want of privity of contract. Hicks vs. Wyatt, 55.
1. No person should be tried upon a charge of felony, when he has not reason enough
whether in consequence of intoxication, or other cause, to appreciate his peril,
or to act advisedly with his counsel in suggesting to them such facts as would
break the force of the prosecuting evidence, and in adducing such exculpatory
proof as his case would warrant. Taffe vs. State, 34.
2. Where the record does not contain any indictment upon which the defendant
was convicted, nor show that an indictment was returned into court, this court
will reverse the judgment, and remand the cause for further proceedings. Ross
vs. State, 198.
3. Where a license to retail spirituous liquors has been granted by the county
court on the applicant paying the price for such license, and he has paid it to
the county treasurer, and applied to the clerk for the license, although it was not
proper for him to commence retailing until his license was issued by the clerk
the jury were warranted in finding that he was guilty of no criminal violation
of the statute in retailing before the issuance of the license; and of course, the
person acting as his clerk was guilty of none. State vs. White, 275.
4. Where a party arrested for a criminal offence, has been committed to jail in
default of bail by the magistrate, and the amount of bail required endorsed upon
the order of commitment, the sheriff has no power under the statute, to take the
recognizance of bail. Cooper vs. State, 278.
5. In an indictment for selling ardent spirits to a slave, without permission, it is
necessary to state the name of the master, and allege the sale to have been with-
out the permission of the mistress, overseer or person having charge of him, as
well as of the master. Omey vs. State, 281.
6. The prosecutor is not liable for costs, under the statute, where, instead of a
trial, a nolle prosequi is entered. State vs. Branum, 540.
7. Where the jury is kept together, from day to day, on the trial of a criminal
prosecution, the expenses of boarding and lodging them must be treated as a
part of the expenses of the court, incidental to the administration of justice, and
chargeable to the county; and it is the duty of the circuit judge to audit and
settle the account therefor, and certify it to the county court for payment. Bates
vs. Independence Co., 722.
See, also, Venue, 1, 2; Roads, 4, 6.
1. In an action of deceit for falsely representing the qualities of a negro, who proved
to be an incorrigible runaway, the measure of the plaintiff's damages is the dif-
ference between his value as he was, addicted to running away, and as he would
have been, free from that vice, at the time when, and place where he was pur
chased. Morton vs. Scull, 289.
2. The value of the slave at the place where he is purchased-not his value else-
where may be enquired into, in ascertaining the damage of the purchaser on
account of the unsoundness of the slave. (McDaniel vs. Crabtree, 21 Ark.; Mor-
ton vs. Scull, ante.) Thompson vs. Bertrand, 7, 31.
See Vendor and Vendee, 1, 2.
1. The discontinuance of the suit as to one of the defendants in a proceeding by
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