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2. When courts of law and equity have concurrent jurisdiction of a matter of defence, and defendant elects to defend at law and fails,—he will not be permitted afterwards to go into equity, unless such failure has resulted from unavoidable accident. Haughey v. Strang, 2 P. 177.

II. When Action Accrues.

McGrew v. Cato, A. R. 7.

3. Not sustainable for a private injury involved in a felony, until after acquittal of the felony. 4. But if acquittal be procured by collusion with plaintiff, action cannot be sustained. Morgan v. Rhodes, 1 S. 70.

5. Sheriff may maintain an action on the original consideration of a contract, though an order on a third person may have been given in payment, and is in the possession of the person drawn on,-provided plaintiff can show that such possession was improperly obtained.

Gayle v. Randle, 1 S. 529.

6. Action may be maintained against Mayor & Aldermen to recover the amount appropriated to owners of real estate, for widening a street—the consent of the owners vesting a sufficient consideration.

Mayor & Aldermen v. Richardson, et al. 1 S. & P. 12. 7. An action will not lie to recover back money paid in part liquidation of a note of hand, but not credited thereon, when suit has been brought upon the note and judgment recovered. De Sylva v. Henry, 3 P. 221.

8. A recovery in one form of action, will bar a suit in another form brought on the same cause. White v Martin, 1 P. 215.

See Agreements and Contracts. Assumpsit. Attachment. Executors and Administrators. Parties to Actions. Partners and Joint-Owners.

AGREEMENTS AND CONTRACTS.

I. CONSIDERATION, WANT OF, ILLEGALITY, AND ADEQUACY.
II. CONSTRUCTION OF PARTICULAR AGREEMENTS.

III. AS TO PERFORMANCE AND DAMAGES.

IV. PRIVITY AND ENTIRETY OF CONTRACT.

V. RESCINDING AN AGREEMENT.

I. Consideration, Want of, Illegality and Adequacy.

1. A promise to indemnify one who is about to become a surety in a Sheriff's Bond, is valid and binding, if in writing.

Brown v. Adams, 1. S. 51. 2. Agreement by parol extending the day of payment on promissory note, is binding, so that suit cannot be brought until after the expiration of the Fergurson v. Hill, 3 S. 485.

time.

3. By statute 1811, every writing which is the foundation of an action, is evidence of the debt or duty for which it was given, and is prima facie evidence of consideration, which need never be proved unless rendered necessary by the proof or pleading of the opposite party.

Click v. McAfee, 7 P. 62. Young v. Foster, 7 P. 420.
Chamberlain v. Darrington, 4 P. 515.

4. A promise though made under mistake of the law, or misapprehension, is binding. Kenon v. McRae, 7 P. 175. 5. The consent of owners to the widening of streets, is good consideration for the appropriation of money by the Mayor and Aldermen, and will sustain an action.

of

Mayor and Aldermen of Mobile v. Richardson, 1 S. & P. 12. 6. Promise to pay a squatter for improvements not made at the request the promiser, not binding.. Shaw v. Boyd, 1 S. & P. 83. 7. Agreement against public policy is void; so that an association formed to purchase lands of the U. States, and re-sell the same, prevents competition, and contravenes the public policy; and a bond given at such re-sale, is void and cannot be recovered on. Carrington v. Caller, 2 S. 175. 8. What is adequate consideration, may be defined to be where the value is not so disproportionate as to shock the sense of morality and fair dealing. Eaton v. Patterson & Hinchman, 1 S. & P. 9.

II. Construction of particular Agreements.

9. By articles, B. agrees to furnish H. & W. with $1,000 to purchase lands; H. to sell at discretion and to pay B. two-thirds of the profits, returning to B. in every instance, the money advanced; and all the lands remaining unsold to be divided by ballot, two-thirds to B., and one-third to H. & Ŵ.— Held that H. & W. were bound to return the whole amount advanced by B. Bennett v. Hubbard & Wilson, A. R. 270. White v. St. Guirons, A. R. 331. ) 10. Agreement to pay a certain sum of money, which might be discharged in cotton; holder not bound to demand the cotton.

Henry v. Gamble, A. R. 6. Bradford v. Stewart, A. R. 44. Lane v. Kirkman, A. R. 411. S 11. When a note payable in cash notes, is arranged for by the substitution of notes on other persons which are endorsed, the first contract remains uncancelled, unless an express agreement exists to substitute the liabilities of the endorsement. Crocket v. Trotter & McGonegal, 1 S. & P. 446.

12. When there is a subsisting contract in writing, adequate to determine the rights of the parties, under which work has been completed, it will not be permitted to one of the parties to set up a new parol contract without consideration-varying the first and changing its terms and conditions. Randolph v. Perry, 2 P. 376.

13. It is the province of the Court, to expound to the jury all written instruments which may be offered in evidence; and ambiguous words are to be taken in their most natural sense, and such as is most conformable to the other parts of the instrument. Martin v. Chapman, 6 P. 344. 14. The words "crop time," in an agreement between planter and overseer, means that portion of the year which is generally occupied in making and gathering the crop.

Ibid.

15. The rule for the construction of contracts, whether written, verbal, or under seal, is the same. They are all to be construed according to their legal interpretation. Reid v. Edwards, 7 P. 508.

III. As to Performance and Damages.

16. If A. sell his cotton crop to B. to be delivered at the cotton gin of C., the contract is completed when the cotton is delivered; although A. took the receipts in his own name. Trotter, et al. v. McAfee, 1 S. 59.

17. A party will be required to complete his work according to his contract. But when the work fails after its completion, by any means not within the control of the contracting party, this will not bar a recovery of the price contracted for. Hunt & Norris v. Toulmin, 1 S. & P. 178.

18. A contract to deliver a certain quantity of corn, which was to be paid for at a certain price, “unavoidable accidents only excepted"-a failure of the crops of corn of the vendor formed no excuse for the non-delivery. McGehee v. Hill, 4 P. 170.

19. On contract to deliver a certain quantity of corn at a certain time,—a refusal to deliver a part of the quantity, on the ground that the whole cannot be delivered at once, is not justifiable. The parties making the contract, are presumed to contract in reference to the recessity of the case, and the habits and means of transportation common to the country.

Young v. Foster, 7 P. 420. 20. When one undertakes positively for the performance of some act or duty, he cannot excuse himself by showing that he was prevented by the unlawful interference of some third person.

Morrow v. Camfield, 7 P. 42. 21. When one neglects to qualify his contract so as to make such an excuse available, he waives it as a defence against a recovery for damages for nonperformance of it. Ibid.

22. When under a contract about personal property, a party has sustained such damages as would support a cross action, he may, in an action upon his note given in said contract, claim a deduction corresponding to the injury suffered. It seems that the rule of the court is different when real estate is the subject of contract. Peden v. Moore, 1 S. & P. 71.

IV. Privity and Entirety of Contract.

23. A contract made with Trustees to sell town lots, does not vest a right of action in their successors-there being no privity.

he cannot recover.

Bumpass et al. v. Richardson, 1 S. 16. 24. An agreement to serve three months at $10 per month, is an entire contract, and if the party leave the service before the expiration of the time, Wright v. Turner, 1 S. 29. 25. A contract to deliver a certain quantity of corn at a certain price, "unavoidable accidents excepted,"—the failure of the contractor's crop does not excuse his non-performance, and the party is not bound to receive a portion of his corn, as the contract is an entire one.

McGehee v. Hill, 4 P. 170.

V. Rescinding an Agreement.

26. A. contracts to sell to B. & C. cotton, who are to give their note for half the price; but A. will not deliver it until he has obtained C.'s note with security. A has thus put an end to the first contract.

Bumpass v. Harrolson, A. R. 162.

27. A party cannot claim a rescission of a contract for fraud, after entering into new stipulations concerning it with a full knowledge of the fraudulent circumstances. And a long acquiescence in a transaction, will create a presumption of a waiver of fraud, or want of authority.

Sadler et al. v. Robinson's heirs, 2 S. 520. 28. An incomplete contract which one of the parties has the right of completing at a particular day, raises a mutual right of rescission in the other party at any time before the ratification by the first.

Eskridge v. Glover, 5 S. & P. 264. 29. Declaration of an agent who is dead, cannot be given in evidence on a suit on contract to prove its rescission, which must be proved aliunde. Dickinson v. Hodges, 1 P. 99.

30. A violation of a contract by one of the parties to a written agreement, is sufficient to authorise the other party to abandon it, and sue for the injury sustained. Martin v. Chapman, 6 P. 344.

31. When one has received in payment of a debt, certain notes not endorsed: if it turns out that some of the names thereon are forgeries, in order to rescind the contract, they must be immediately tendered back on the discovery, or all the liabilities exhausted thereon by the exercise of due diligence. Pope & Hickman v. Nance, A. R. 299. 1S. 220. 354

See Covenant. Evidence. Frauds. Partners and Joint-owners. Penalty. Vender and Vendee. Foreign Laws, &c.

ALIENS.

An Alien may purchase and hold lands before office found, and may maintain

an action to recover possession.

Jenkins v. Noel, 3 S. 60.

See Jury and Jurors.

AMENDMENTS, ERRORS, AND JEOFAILS.

I. AMENDING PROCESS, DECLARATION, AND PLEADINGS.
II. AMENDING VERDICT, JUDGMent, and record.

I. Amending Process, Declaration and Pleadings.

1. Endorsee v. Maker, declaration sets out the assignment to have been made before the date of the note; it may be amended by the endorsement of the writ. Davis v. Chester, A. R. 385.

2. Appeal from justice-misjoinder of parties cannot be amended. Smith & Hill v. Cobb, 1 S. 62. 3. The statute allowing amendments before Justices, does not authorise a change in the names of the parties.

Frierson & Shortridge v. Blakesley, 3 S. 267. 4. When a summons is issued by Justice, describing the cause of action as a promissory note, and on appeal it proves to be a writing under seal or bond, such variance is cured by statute 1817. Bradford v. Hilliard, 1 P. 13. 5. The statute Jeofails does not cure error of an improvident discontinuance; especially if the issue below was not on the merits.

Tindall v. Collins, Surv'r. 2 P.17. 6. Declaration in Trespass, vi et armis-the omission of the time of the trespass was held to be cured by statue of Jeofails.

an issue is submitted to the jury.

Estill v. Shelley, 2 P. 185.

7. Amendment of a declaration in a material point is not allowable after Watkins v. Canterbery, 4 P. 415. 8. When permission is given to amend declaration, the plaintiff has his election either to file a new one, or to amend the old.

Kennedy v. Dear, 4 P. 423. 9. Plea puis darrein continuance, may be amended and entitled as of the

term when the original plea was filed.

Webster & Smith v. Wyser, et al. 1 S. 184.

10. By pleading to an amended declaration, defendant waives the right to review the decision made on the original declaration.

Caldwell & Bennett v. May, 1 S. 425.

11. Defendant may plead de novo to an amended declaration, or rely upon

a demurrer or plea to that originally filed.

Kennedy v. Dear, 4 P. 423.

II. Amending Verdict, Judgment and Record.

12. Since the statute 1824. If there are good and bad counts in a declaration and a general verdict, judgment will be rendered.

court.

Therman v. Mathews, 1 S. 384.

13. After verdict and new trial, a plea may be amended by the leave of the Webster & Smith v. Wyser, 1 S. 184. 14. A judgment cannot be amended nunc pro tunc by resorting to the record of a distinct suit, though referred to by the clerk in his entry.

Draughan et al. v. Tombecbee Bk. 1 S. 66.

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