37 Ala. 342 | Ala. | 1861
1. The Code provides, that “charges moved for by either party, must be in writing; and must be given or refused in the 'terms in which they are written ; and it is the duty of the judge to write ‘given’ 'or ‘refused,’ as the case may be, on the document,, and sign his name thereto ; which thereby becomes a'parfr of the record, and may be taken by the jury with them on their retirement.” — Code, § 2355. Under this law, when a party asks a proper charge, he has the right to have it given in the terms in which it is asked ; and; in order that he may have the full benefit of it before the jury, he may demand that it shall be taken with them, so as to be subject to their examination, on their retirement: One of the purposes of the law is, that' there shall be no misunderstanding, on the part of the jury, as to the written charges given or refused by the court; and this end is much more surely attained by having the charges before the jurydur-iñg their deliberations, than when they are simply read t© them by the court, and then withheld from their- inspect tion. When written charges are asked, and either given or refused, the law makes them a part of the record — as much so as the depositions, or other documentary evidence read on the trial; and both alike should be subject to the inspection of the jury during their retirement. Where numerous charges in writing are asked by counsel, some of which are given, and some refused, it might often happen, if the charges were withheld from the jury, that they would fail to recollect the substance of the charges given, or even confound those which had been given with those which •were refused ; and in this way serious injury might result to one of the parties. In cases such as those we have supposed, it would be as reasonable to compel the jury to depend upon their memory as to the contents of the documentary evidence introduced on the trial, as to deny them the possession of the written charges upon the law of the case given by the court. It follows, that the court en-ed, in refusing to permit the jury to take with them, on their retirement, the written charges which had been given at
2. The only other question, which we deem it necessary, to notice, is that which is presented by the several charges of the court, to the effect that the delivery bond estopped both the defendants from denying that they had possession of the slaves at the time of the service of the writ.
“The law of estoppel is not so unjust and absurd, as it has been too much the custom to represent. The principle is, that where a man has entered into a solemn engage-mfent, by and under his hand and seal, as to certain facts, he shall not be permitted to deny any matter which lie has so asserted.” — Per Taunton, J., in Bowman v. Taylor, 2 Ad. & Ell. 278. The doctrine of estoppel has, however, been guarded with great strictness; n'ot because the party enforcing it necessarily wishes to exclude the truth, for it is rather to be supposed that that is true which the opposite party has already solemnly recited ; but because the estop-pel may exclude the truth. Hence, estoppels must be ‘“certain to every intent, and are-not to be taken by argument or deference;” for no one shall be denied setting up the truth, unless it is in plain contradiction to his former allegations and acts. — Co. Lit. 352 (b); 1 Greenl. Ev. § 22 ; Bowman v. Taylor, 2 Ad. & Ell. 278-9.
The delivery bond, executed by the defendants, is set out in the record. The condition, after reciting the issuance of the 'summons against the defendants, and'that the sheriff was commanded thereby to seize and take -in possession certain slaves, states that, by virtue of said summons, the sheriff “ did take ./-possession of said slaves.” It then proceeds — “now, if-the above-bound L. C. and M. It. Miller shall well and truly-deliver the above-mentioned slaves to the said J. W. Hampton, administrator as aforesaid, within thirty days after judgment, in case the said Millers fail in the suit, and pay all damages of said property and costs, then the foregoing obligation to be void; otherwise, to remain in full force and effect.” There is no express acknowledgment in the bond that the defendants, or either of
Nor can the act of the defendants in executing the bond constitute an estoppel en pais. In order to raise an act or
We do not say that the execution of the bond does not tend to show possession -by the defendants, but simply that it does not conclude them, and preclude all proof to the contrary.
In Wallis v. Long, (16 Ala. 788,) it was said, that the delivery bond executed by the defendant in that case, which was an action of detinue, “ was an admission that he was in possession at the ¡time the writ was executed, and estopped him from denying .that fact,; but that, as no admission or recital was contained in it, showing possession anterior to that time, it did not preclude the- defendant from .showing, that at the date of .the writ he .had not the possession.” If the bond in this case did not differ in its terms froxn'the one referred to in the case just cited, that decision would be in conflict with the ¿views we have expressed. The bond is not .set- out in the. report of -that case; but we ' have examined the original record, and find -that it contains what must be regarded as a distinct admission that the defendant was in possession when the writ was executed. After reciting the issuance of the writ in detinue in favor of ..the plaintiff against the defendant, and that by virtue of it the-sheriff had taken possession of the slave sued for, the bond proceeds thus : “ And whereas the said Jeremiah Long is desirous of retaining the possession of said slave, under the hiring which he made of Ym. Easley, administrator of John' Lemmons, deceased,” &c. The difference between the bond which was .given in that case, and the one now before us, is too apparent to require remark; and the opinion of the court, giving to that bond the effect of an estoppel upon the question of possession, is in entire harmony with our present decision.
Judgment reversed, and cause remanded.