Magee v. Fisher, et al. this objection being personal to him, was cured, when, at a sub- 8 320 143 291 MAGEE v. FISHER, ET AL. 1. The terms" indenture," "covenant," " demise," "and to farm let," though usually found in deeds, are not technical. The use of these terms, therefore, in the declaration, does not necessarily imply that the instrument in which they were alleged to be, was sealed. That is only effected by the use of the terms "deed," or "writing obligatory." 2. A profert in curia, of a parol contract, is surplusage, aud does not vitiate. 3. Where several persons become bound for the payment of rent, in contemplation of law, the lease is to all, where there is nothing in the body of the instrument to negative that conclusion. Error to the County Court of Mobile. DEBT, by the plaintiff in error. The declaration describes "a certain indenture of lease," executed by the plaintiff of one part, and the defendants of the other part, of which profert is made, by which, "the plaintiff did lease and to farm let, to the defendants, a certain messuage, &c., to have and to hold for the term of one year, &c., yielding," &c. "And the said defendant, did then, and there, covenant, promise, and agree, to and with, the plaintiff, to pay him the said sum of $550, at the said several times aforesaid." It then avers an entry upon the land, in virtue of the lease, and assigns as a breach the nonpayment of the stipulated rent. The defendants craved oyer of the instrument sued on, which is set out and demurred to. The instrument as set out on oyer, Magee v. Fisher, et al. is an "indenture," between William Magee of the first part, and Samuel C. Fisher of the second part, for the lease of certain premises for one year, at a stipulated rent, and concludes thus: "In witness whereof, the parties to these presents, have hereunto set their hands, the day and date above written. S. C. FISHER, JOHN HURTEL, The Court sustained the demurrer to the declaration, and rendered judgment for the defendants, which is now assigned as error. J. HALL, for the plaintiff in error, contended, that the instru ment was set out according to its legal effect, and being for a sum certain, debt was the proper action. That if not a "deed," the fact that profert was made, cannot prejudice. He cited 1 Chitty P. 107; 1 Stewart, 479. STEWART, contra. The terms, "indenture, lease, covenant," have legal and technical definitions, and must be understood in their appropriate sense. The pleader cannot declare in such a manner that he can consider the instrument as sealed, or not, as may best suit his purposes. There is also a variance between the instrument, and the declaration. The latter declares the lease was made to all the defendants, whilst the former shows, it was made to but one. ORMOND, J.-The objection in this case, is purely technical; nevertheless if well founded, we have no authority to disregard it. It having been found in practice, frequently difficult to determine, whether an instrument was to be considered as sealed, or not, the Legislature passed the following declaratory act: "All covenants, conveyances, and all contracts, which import on their face to be under seal, shall be taken and held to be sealed instruments, and shall have the same effect as if the seal of the party or parties were affixed thereto, whether there be a scroll to the name of such parties, or not." [Clay's Dig. 158, § 41.] The evident meaning of this is, that where the parties declare their intention that the instrument shall be sealed, it shall so operate, whether it be in fact sealed, or not. Upon an inspection of the Magee v. Fisher et al. instrument in this case, it appears, that although in the body of the paper they have used terms of doubtful import, they have not expressed their intention to make it a sealed instrument, and therefore it cannot operate as such. The terms "indenture" and "covenant," though usually found in deeds, have not a technical meaning. An instrument may be indented, whether under seal or not, and the practice has in fact become obsolete. A covenant is a contract, and is a writing obligatory, or parol promise, according as it is sealed, or not. The same remarks apply to the terms" demise," and "to farm let." They are generally found in leases, but may be expressed by other terms, and are therefore not technical. Nor does it add any thing to the obligation of a contract of lease, that it is under seal. The use of these terms, therefore, in the declaration, does not necessarily imply, that the instrument in which they were alledged to be, was sealed; that is only effected by the use of the terms "deed," or "writing obligatory;" and even when these technical terms are used, it is customary to add, in conformity with the precedents, "sealed with his seal." No such allegation being found in this declaration, the legal effect ascribed to the instrument, by the pleader, is, that it was a parol contract, and such in fact it was. Making profert in curia of the instrument, was merely surplusage, which does not vitiate. The legal effect of the instrument is not changed by the fact, that it commences in the singular number, and is signed by other parties, whose names are not found in the body of the instrument. In contemplation of law, the lease is to all, who by their contract have become bound for the payment of the rent, there being nothing in the body of the instrument to negative that conclusion. Let the judgment be reversed and the cause remanded. Hayden v. Boyd. HAYDEN v. BOYD. 1. The act of 1839, which provides that in suits upon accounts, for a sum not exceeding one hundred dollars, the oath of the plaintiff shall be received as evidence of the demand, unless the same be controverted by the oath of the defendant, does not make the defendant a competent witness to be sworn generally and give evidence to the jury. 2. The plaintiff repaired the defendant's gin, under an agreement that he should have all that he could obtain for it above fifty dollars, to compensate him for repairs; he kept it in his possession several years, endeavored to sell it, but was unable to find a purchaser; the defendant addressed a note to the plaintiff, demanding the gin or fifty dollars, which concluded thus: "if yon do not give one or the other, we will have to settle the matter some other way." The plaintiff, upon the receipt of this note, permitted the defendant to take the gin into his possession. Held, that the inference from the evidence was, that the plaintiff voluntarily assented to the defendant's demand, and could not recover for the repairs; unless, perhaps, it could be shown that the defendant had sold the gin for more than fifty dollars, or that the repairs made it worth more than that sum, and instead of selling he had used it. Writ of Error to the County Court of Benton. THIS was a suit instituted before a justice of the peace, to recover thirty dollars, for work and labor performed by the plaintiff in error, for the defendant. A judgment being obtained for that sum, the defendant appealed to the County Court, where a judg ment was rendered, upon a verdict in his favor. On the trial, a bill of exceptions was sealed, at the instance of the plaintiff, from which it appears, that the plaintiff was introduced as a witness to prove his account of thirty dollars. After the plaintiff had given his evidence, the defendant was offered by his counsel as a witness, and declared on oath, that the testimony he would give the Court and jury, should be the truth, the whole truth, and nothing but the truth. To the introduction of the defendant as a witness, in the manner proposed, the plaintiff object ed, but not to the form of the oath, and his objection was overruled. Hayden v. Boyd. It was shown, that the defendant's gin, about four years previous to the trial, was placed by him in the plaintiff's possession, to be repaired by the latter, and sold, upon the agreement that he should have all he could obtain for it above fifty dollars, to compensate him for the repairs. Plaintiff repaired the gin, tried to sell it, but had been unable to find a purchaser. Some four or five months previous to the trial in the County Court, the defendant addressed the plaintiff a note, substantially as follows: "I want you to send fifty dollars by the bearer, or my gin, as it has been on hand long enough to have something done with it. If you send me fifty dollars, the gin is yours, if you fail to do so, the gin is mine, and if you do not give one or the other, we will have to settle the matter some other way." Immediately after the receipt of this note, and in a day or two after its date, the plaintiff informed the defendant that he could take his gin whenever he called for it, that he (plaintiff) would not pay him the fifty dollars demanded. From that time the plaintiff held the gin subject to the defendant's order, and ready to be delivered, and some three or four weeks thereafter permitted defendant to take possession of it, and he now has it. The testimony given by the defendant is also set out, but the view taken of the case, makes it unnecessary to notice it. The plaintiff's counsel, recapitulating the facts above recited, prayed the Court to instruct the jury, that if they believed them to be true, they should return a verdict for the plaintiff; this charge was refused. S. F. RICE, for the plaintiff in error, insisted that the act of 1839, did not permit the plaintiff to be examined as a witness; it only allowed him, by a denial of what the plaintiff testified, to cause the rejection of his testimony. [Clay's Dig. 342, § 161; 3 Ala. Rep. 507; 5 Id. 196, 374; 6 Ala. Rep. 783.] The plaintiff was entitled to recover for the repairs upon the gin. [4 Stewart & P. Rep. 262; 4 Porter's Rep. 435; 6 Id. 344; 1 Stew. & P. Rep. 178.] T. A. WALKER, for the defendant, insisted that the defendant's examination was in conformity to the statute, and authorized by it. That the return of the gin, instead of the fifty dollars demand |