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COSTS-CONTINUED.

3. When costs are directed to be paid out of the estate, if the litigation is
unnecessarily protracted, for the purpose of vexation, the Court will apply
the proper corrective, by taxing the party so acting, with the costs. Alex-
ander v. Alexander.....

See Garnishment and Garnishec, 5.

See Summary Proceedings, 2.

COURT, CHARGE OF.

.797

1. Whether the admission of facts, in a written proposition to compromise, be
admissible evidence, or not, it is not error to charge the jury, that if the
paper was written with the view to a compromise, and the promises con-
tained in it were made for that purpose, the defendant was not bound by
them. Such a charge does not deny effect to the facts. Courtland v. Tarl-
ton & Bullard.....

.533

2. A promise to pay a sum of money in Alabama bank or branch notes, is a
promise to pay in notes of the Bank of the State of Alabama or its branch-
es, and it is proper for a Court to charge a jury that such is the proper
construction, without evidence of the meaning of the terms used. Wilson
v. Jones.....

.....536
3. Semble: Where an error in a charge to a jnry is such as could not preju-
dice the party excepting, it furnishes no cause for the reversal of the judg-
ment. Randolph v. Carlton......

....607
4. Where the Court having charged the jury, upon the law as applicable to
the evidence adduced, at the request of the defendant's counsel, and upon
an inquiry by the jury, remarked, that the plaintiff would not lose his right
to recover in another action, though their verdict might be for the defend-
ant; the remark of the Court, whether in conformity to law or not, furnish-
es no ground for the reversal of the judgment. It could not have misled
the jury, and they doubtless sought the information merely to reconcile
their consciences to the performance of an imperative legal duty. Arm-
strong v. Tait.......
.....635

5. A charge to the jury must be considered in reference to the facts in the
cause, and if thus applied it is correct, the judgment will not be reversed,
though as a universal proposition it may be erroneous. McBride and Wife,
et al. v. Thompson......
.....650

6. Where, giving full credit to all the plaintiff's proof, it fails to make out
such a case as entitles him to recover, a charge to the jury which is erro-
neous, as the assertion of a legal proposition, furnishes no ground for the
reversal of a judgment against him. Smith v. Houston.
...737
7. When the defendant borrowed bills from an unchartered association,
which he endeavored to show originated in a conspiracy to cheat the pub-

....

COURT, CHARGE OF-CONTINued.

lic by getting its bills in circulation without the means or the intention to
redeem them, his request for the Court to instruct the jury, that if he was a
party to the conspiracy, by engaging to aid in the circulation of the bills,
this would avoid the contract under which the bills were borrowed, will be
considered as merely abstract, and therefore properly refused, when there
is no evidence before the jury to connect him with the conspiracy. Mc-
Gehee v. Powell. ...

..828
8. When the charge of the Court assumes that the transfer of a note is bona
fide for a full consideration, and the evidence is such as to lead to this
conclusion, if believed by the jury, it is no error. Sheffield & Co. v. Par-
malee......

.889

2 Quere? Whether, in a controversy in respect to the location and title to
lands, under the instruction of the Court, the jury by their verdict affirmed
that the premises of which the defendant was in possession, was not em-
braced within the defendant's lines, the judgment should be reversed,
where the Court, upon some other point in respect to the title, may have
charged the jury incorrectly. Doe, ex dem. Pollard's heirs v. Greit....931
COURT, SUPREME.

1. It is improper to send the original papers to this Court, and if sent, will
not be looked to, to settle any disputed question. Hobson v. Kissam &
Co., &c..

.....

...357

2. It is competent for this Court, under the constitutional provision, which
gives it "a general superintendance and control of inferior jurisdictions,"
to award a writ of habeas corpus upon the refusal of a Judge of the Circuit
Court, or Chancellor sitting in vacation, or in term time, and to hear and
decide upon the application for the prisoner's release, or adopt such course
of proceeding as would make its control complete. Chaney, ex parte. 424
3. A cause is not before the Supreme Court, so as to authorize that Court to
make an order in respect to it, until the term when the writ of error is re-
turnable. Renfro, by her next friend, Ex parte........
.....490

4. The Supreme Court cannot set aside a supersedeas which has been issued
upon the suing out a writ of error and executing a bond, on the ground of
defects in the bond; in such case the appropriate remedy should be sought
in the primary Court. Ib.......

....490
5. After a judgment upon irregular proceedings is reversed, the whole re-
cord may be corrected by the judgment of the appellate Court. Sankey's
Ex'rs v. Sankey's Distributees....

COURT, CIRCUIT.

..602

1. The Circuit Court has no original jurisdiction of a summary proceeding,
by motion, against a constable for failing to return an execution. The

COURT, CIRCUIT-CONTINUed.

statute only authorizes the motion to be made before the justice of the
peace issuing the execution. Evans, use, &c. v. Stevens, et al........517-
COURT, COUNTY, COMMISSIONERS OF, &c.

1. The Judge of the County Court has no power to adjudicate upon the tax
list, and ascertain the amount of insolvencies for which the tax collector
is entitled to a credit, except at the time provided by law, viz: the second
Monday in September of the current year, or at the succeeding County
Court, if the special Court is not held. Treasurer of Mobile v. Huggins. 440
2. Upon the failure of the County Judge to act, the power conferred upon
the Comptroller to make the allowance, may be exercised by the Commis-
sioners' Court, upon the county tax collected during the period, when
State taxation was abolished. Ib........

..440
3. The County Court has no jurisdiction of an action of trespass quare clau-
sum fregit. Elliott v. Hall..........

CRIMINAL CASES AND PROCEEDINGS IN.

...508

1. Wherever a person charged with a criminal offence, is put upon his trial,
he is, by operation of law committed to the custody of the sheriff, without
either a general or special order for that purpose. Hodges v. The State 55
2. The act of 1812 merely furnishes a remedy, by which a fine assessed
against a party committed to custody, may be recovered of the sheriff, &c.
or their sureties in case of escape; but in addition to this proceeding, the
party guilty of a breach of officiel duty, might be indicted, if the facts of
the case were such as constituted an offence at common law: consequent-
ly, the provisions of the Penal Code, which provide for the punishment of
escapes, are merely substitutes for the cominon law, and do not abrogate
the act of 1812. Ib.......

..55
3. Notwithstancing the enumerated causes of challenge in the Penal Cude,
the Court may, in its discretion reject such as are unfit or improper per-
sons, to sit upon the jury, and may excuse those from serving who, for
reasons personal to themselves, ought to be exempt from serving on the
jury. So, also, the Court may reject any juror who admits himself open
to any of the enumerated challenges for cause, without putting him upon
the prisoner. The State v. Marshall, a slave.....
.....302
4. The owner of a slave is a competent witness for the State, upon a trial of
the slave for a capital offence. Ib........
...302
5. It is competent to prove, on the trial of a colored person for a capital of-
fence, charged in the indictment as a slave, that he admitted himself to be
a slave. But where the proof was, that the prisoner had brought to the
witness a bill of sale of himself to one E, transferred to the witness by E,
which was objected to because the bill of sale was not produced-Held,

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CRIMINAL CASES, AND PROCEEDINGS IN-CONTINUED.

that although this might be considered as an admission by the prisoner, of
his status, and that it was not therefore necessary to produce the instrument
by which it was evidenced, yet, as the jury may have been misled, and pro-
bably acted on the belief that the bill of sale was proof, that the prisoner
was, or had been the slave of E, in favorem vitæ, it was proper there should
be a new trial. Ib.......

......302

6. When a white person is indicted for an assault, with intent to kill and mur-
der, and the jury by their verdict, find him guilty of an “assault with intent
to kill," the legal effect of the verdict is, that the party is guilty of an as-
sault, or assault and battery, as the case may be. The State v. Burns, 313
7. The words inveigle, entice, steal and carry away, in the Penal Code, (Clay's
Dig. 419, § 18,) denote offences of precisely the same grade, and may be
included in the same count of the indictment; and upon proving either, the
State is entitled to a conviction. Mooney v. The State............. .....328
8. The offence of inveigling, or enticing away a slave, is consummated-when
the slave, by promises or persuasion, is induced to quit his master's service,
with the intent to escape from bondage as a slave, whether the person so
operating on the mind and will of the slave, is, or is not present when the
determination to escape is manifested, by the act of leaving the master's
service, or whether he is, or is not sufficiently near to aid in the escape, if
necessary. Ib. .............

..328

9. The 40th section of the 8th chapter of the Penal Code, which declares,
that no person charged with an offence capitally punished, shall, as a mat-
ter of right, be admitted to bail when he is not tried at the term of the
Court at which he was first triable, if the failure to try proceeded from the
non-attendance of the State's witnesses," where an affidavit is made, satis-
factorily accounting for their absence," does not make it imperative upon
this, or any other Court, to admit the accused to bail, because such an af-
fidavit was not made and acted on by the Court in which the indictment is
pending: but it is competent for the Judge or Court which directs the pri
soner to be brought up on habeas corpus, to allow the affidavit to be made.
Chaney, Ex parte...

.....424
10. It is allowable for a Judge of the Circuit Court or Chancellor, in vacation
to award a writ of habeas corpus, in a capital case, though the accused was
by order made in term time, committed to jail. Ib..
...425
11. The corporate authorities of Mobile are invested with power to enact an
ordinance to require the keepers of coffee-houses, taverns, &c. within the
city, where wine, &c., are sold by the retail, to obtain a license from the
mayor for that purpose; and to impose a fine of fifty dollars for retailing,
without first obtaining such license. It is no defence to a proceeding in-
stituted for the recovery of the fine imposed by the ordinance, that the of

CRIMINAL CASES, AND PROCEEDINGS IN-CONTINued.

fender is liable to an indictment at the instance of the State. The Mayor
&c. of Mobile v. Rouse,......

........515
12. The statutes of this State authorizing Courts to tax prosecutors with costs
whenever the prosecution is frivolous or malicious, entends only to misde-
"meanors, and does not warrant such a taxation in a prosecution for grand
larceny. Tuck v. The State.
.....664

13. Where an indictment charges a larceny of a bank note and other articles,
and there is a variance between the indictment and the proof in respect to
the bank note only; the Court cannot, under the 11th section of the 8th
chapter of the Penal Code, permit a nolle prosequi to be entered, that an-
other indictment may be preferred, because the accused will not consent
to an amendment of the indictment so as correctly to describe the bank
note. The State v. Kreps......

Constitutional Law, 2.

See Court Supreme, 2.

DAMAGES.

..951

1. A purchaser at sheriff's sale, who refuses to comply with the conrract of
purchase, is liable to an action by the sheriff, and the right to recover the
full price cannot be controverted, if the sheriff, at the time of the trial, has
the ability to deliver the thing purchased, or if that has been placed at the
disposal of the purchaser by a tender. The loss actually sustained by the
seller, is, in general, the true measure of damages when the purchaser re-
fuses to go on with the sale. Lamkin v. Crawford.
.....153
2. When one contracts to perform work for another, at a stipulated price, and
is prevented by him from entering upon the performance, the measure of
damages is the difference between the cost of performing the work by the
party agreeing to do it, and the price agreed to be paid for it; in other words,
the profits the party would have made. George v. Cahawba and Marion
Rail Road Co......
.234

....

3. In an action against a sheriff for failing to levy an attachment upon a suf-
ficiency of property to satisfy the judgment rendered thereon, the measure
of damages is the injury sustained by the sheriff's failure to make the pro-
per levy. The value of the property levied on in such case, should be
equal to the amount of the debt sought to be recovered, making a proper
allowance for depreciation in price, the effect of a forced sale, as also costs
and other incidental charges: and evidence of the sum at which the pro-
perty was sold under the execution, should perhaps be consideued more
satisfactory as to its value than the opinions of witnesses. Griffin v. Gan-
away..

Sce Sales, 2, 3.

.625

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