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COUNTY SCRIP-CONTINUED.

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.

COVENANT.

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 waro-house built thereon, and all and singular tho 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. 16.
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 ac-
tion against the new firm of W. & T., in consequence of their covenant to H.,
for want of privity of contract. Hicks vs. Wyatt, 65.

COVENANT OF SEIZIN,

See Conveyance, 4.

CRIMINAL LAW.

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, 276.

CRIMINAL LAW-CONTINUED.

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 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.

DAMAGES.

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.

DEEDS.

See Conveyance.

DEFECTS OF TITLE.

See Vendor and Vendee, 1, 2.

DELIVERY

See Contracts, 8, 10.

DISCONTINUANCE.

1. The discontinuance of the suit as to one of the defendants in a proceeding by

DISCONTINUANCE-CONTINUED.

scire facias on a recognizance of bail, is not a discontinuance of the suit as to the
other defendants. Cooper vs. State, 278.

DIVORCES.

1. Where the evidence, in a bill for divorce by the husband, fully establishes the
fact of adultery on the part of the wife, and that, afterwards, and with a full
knowledge of her guilt, he received and hept her as his wife, the law will imply
that he remitted her fault and forgave her the violation of her marriage vow-
the doctrine of condonation as acted upon in all English and American courts,
where divorces are granted, not being destroyed by the statute upon divorces.
Turnbull vs. Turnbull, 615.

DOWER.

Seo Ferries, 2.

ESTOPPEL.

See Practice in Supreme Court, 13; Recognizance, 1; Contracts, 20.

EVIDENCE.

1. Where a demand and refusal to deliver the property in dispute are pre-requi.
sites to the commencement of a suit, and the defendants admit upon the record a
demand, the return of the sheriff upon the writ that the property was found in
the possession of the defendant, is sufficient evidence of a refusal to deliver pos-
session. Henry vs. Harbison, 26.
2. When the execution of a bill of sale has been proved by the subscribing wit-
ness, and the witness interrogated as to the fairness of the sale, the opposite
party may interrogate him as to such facts as tend to show fraud; both, because
fraud may be enquired into, and because the vendee bad opened the door to such
enquiry by proof of the fairness of the sale. George, Ex. vs. Norris, 121.
3. But evidence cannot be introduced to show that the transaction witnessed by
the bill of sale was other than it recited : whether intended to be an absolute
or conditional sale, a mortgage or a pledge, must be determined by the written
contract. 16.
4. Where the question and answer, in the examination of a witness, are entire,
including some matter that might be legal and some that was illegal, the entire
answer should be excluded. 16.
5. The Probate Court being a court of constitutional jurisdiction, and having au-
thority to order the sale of slaves belonging to the estate of a deceased person,
the Circuit Court cannot judge of the propriety or legality of such an order,
upon its introduction as evidence in a collateral proceeding. 16.
6. Judgment and execution against an administrator-delivery bond given and

EVIDENCE-CONTINUED.

forfeited-execution on the delivery bond judgment: Held, that the return of
the sheriff on the latter execution, showing a seizure and sale of the property
of the intestate, was not competent evidence for him—the acts being without
legal authority. 16.
7. Where evidence has been erroneously admitted, and excepted to, the court may
well refuse to give an instruction that such evidence was not legal, and could
not be considered by the jury-the party must rest upon his exception to the
admission of the evidence. 16.
8. The death of a witness at the time of the trial, does not make his writing any

more evidence than his unsworn declarations would be. Crump vs. Starke, 131.
9. In a suit by the owners of a boat, the certificate of enrollment in the name of
the plaintiffs, and the statement of the clerk that he always considered the plain.
tiffs to be the owners, is sufficient evidence, in the absence of any opposing

proof, of ownership. M'Clintock vs. Lary, 215.
10. The testimony of a witness, that upon an injury to a boat, whereby she was

compelled to throw overboard a part of her cargo, her open policy of insurance
became void, without proof of any peculiar knowledge on his part, or that such
was the established commercial custom, or that he was competent to prove such
custom if established, held to be properly excluded in an action by the boat to

recover damages for breaking a contract of affreightment16.
11. The plaintiff in replevin proved that he once owned the property in dispute-

the defendant proved an acknowledgment by the plaintiff that he had sold the
property to a third person—the plaintiff then offered to prove by way of rebut-
ting testimony, his own declarations and directions given to the witness, not in
the presence of the purchaser, nor explanatory of, nor in any way connected
with his acknowledgment of the sale, nor at the same time: Held, that the de-
clarations so made were inadmissible; but that the plaintiff might have proved
any qualification of his acknowledgment of the sale, or how it was made, or
what was the dealing between him and the purchaser; but that could not be
proved by what he had said to the witness, unless it was at, and a part of the
sale or dealing, and in the presence of the purchaser. Johnson vs. Brock, 282.
12. Where neither the certificate, the caption nor the body of the transcript of a

decree shows what court rendered the decree, it is no evidence. Mahan vs. Owen,

347.
13. In an action by the administrator of an insane person, to recover property

sold by him, the vendee having introduced testimony as to the consideration paid,
it was competent for the plaintiff, in connection with proof of the vendor's inca-
pacity, and the defendant's knowledge of it, to prove that the value of the prop.
erty was greater than the price given, and that the full consideration had not

been paid. Henry vs. Fine, 417.
14. An attorney giving a memorandum to his client of a judgment obtained for

him, stating that it had been settled by drafts in his hands, to be accounted for
on settlement, will be presumed to have collected the money before suit brought,
and will be liable to an action for money had and received. Burke vs. Stillwell,

EVIDENCE-CONTINUED.

15. In an action against an attorney, by his client, for money collected by him, the

collection of which was evidenced by a memorandum in writing given by the
attorney, acknowledging the collection and promising to account, he produced
an instrument of writing, executed, by the client, several years before such
memorandum was given, authorizing S. to collect the debt and pay him one-half
of the proceeds: it did not appear that S. accepted the instrument, or that he or
the client acted under it; or that the attorney recognized the claim of S: Hdd,
that it was not sufficient to overcome or resist the evidence of the plaintiff ari-

sing from the memorandum. Ib.
16. It is true that the verbal declarations of a party are not the most reliable evi.

dence, and should be received with caution; but in this case the verbal declara-
tions were accompanied by written admissions and other circumstances coodu.

cing to prove the purchase as alleged in the answer. S!one vs. Stillwell, 444.
17. If a party file a petition for discovery, and read a part of the answer in evi.

dence, the whole answer must be considered as evidence in the case, as well
that which is not, as that which is, responsive to the interrogatories. Strawn

vs. Norris, 542.
18. The agent, who pays the taxes upon land for the owner, is a competent witness

to prove the payment, on a petition for confirmation by a purchaser of the land

at tax sale. Townsend vs. Wells, 581.
19. Where a party files a petition for discovery, and uses the answer as evidence, all

in it relating to the matter of the suit is to be considered. Maxwell vs. Guthrie,

702.
20. In a suit by the widow of the payee, upon notes given to the husband, or

bearer, to a petition for discovery, as to the single fact of the transfer of the notes
by the payee, the plaintiff answered that she held them, as his widow, under a
statute of Louisiana, that gave her the right to, and possession of, the notes :
Held, that she might well state her claim to the notes; and that the answer need
not be regarded as an attempt to prove a statute of Louisiana by her own state-

ment. 16.
21. A person who is not shown to be skilled in the science and practice of medicine

is not a competent witness to express an opinion upon the soundness or unsound.
ness of a slave; but he may state facts in reference to the appearance and con-

dition of the slave. Thompson vs. Bertrand, 731.
22. No testimony but what is strictly competent should be allowed to become an

element to ascertain the unliquidated damages of the plaintiff. Ib.

See, also, Conveyance, 1; Practice in Sup. Cl., 13; Erecutions, 11 ; Roads, 2, 4,
5, 6; Parlnership, 9.

EXECUTIONS.

1. The offering of the debtor's land in small quantities at an execution sale, where

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