“However technical rules are to be attended :fco, and in some cases cannot bo dispensed with, yet, in administering justice, wo must not lose sight of common sense; .and the common sense of this case will not be found to militate -against any rule of law.” — Rawson v. Johnson, 1 East’s Rep. 204.
No doubt can be entertained, that under the evidence disclosed in the record, the charge as asked by the appellant should have been given. — Tucker v. Woods, 12 Johns. R. 190; Judson v. Wass, 11 ib. 525; Wadlington v. Hill, 10 Smedes & Marsh. E. 560; Bank of Columbia v. Hagner, 1 *578Peters’ R. 465; Gardner v. King, 2 Iredell’s R. 297; Jones v. Barkley, Doug. R. 659; Waterhouse v. Skinner, 2 Bos. & Pul. 447; 1 Saund. Pl. & Ev. 116; Thorpe v. Thorpe, 1 Salk. R. 171; Calonel v. Briggs, ib. 112; Langfort v. Adm’r of Tiler, ib. 113; Lancashire v. Killingworth, 2 ib. 623; Goodisson v. Nunn, 4 Term R. 761; Morton v. Lamb, 7 ib. 125; Rawson v. Johnson, supra; Powell on Contracts, 417, 418, 419; Marshal v. Craig, 1 Bibb’s R. 379, 390; Carrell v. Collins, 2 ib. 429.
For the error of the court below in refusing- the charge as asked, the judgment is reversed, and the cause remanded.