Elliott v. Dyche, 80 Ala. 376

Elliott v. Dyche

80 Ala. 376 | Ala. | 1885

CLOPTON, J.

The questions raised by many of the numerous assignments of error were ruled on, when the case was before us on a former appeal (78 Ala. 150), which we do not deem it necessary to reconsider. It was clearly competent for the witness, Cadow, to testify that his firm, Cadow, McKenzie & Co., had sent by mail the original deed, alleged to have been made by the plaintiff to him, to their attorneys at Asimile. The affection of his sight, which disabled him to read the papers, goes to the sufficiency of his evidence, and not to its competency. The letter of July 9, 1862, from the firm to the attorney, which was read in evidence without objection, tended to establish the transmission of the deed, and to corroborate the evidence of Cadow. This evidence, in connection with the testimony of Rope, the survivor of the firm of attorneys, constitutes sufficient proof of the existence and destruction of the original deed to let in secondary evidence of its execution and contents.

We previously held, that the deed having been executed in Georgia, the presumption is, the subscribing witnesses resided in that State; and in the absence of counter testimony, the defendants were excused from calling them, or accounting for their absence; and as the deed was destroyed, they could resort *378to other proof of its execution. This fact the witness Oardow was competent to prove. Objection, however, is taken to his answer — “the pauper writing now produced, and shown to me, marked, A. is, 1 verily believe, a true copy of the deed delivered to me by Cothran & Elliott”■ — as legal evidence of the contents of the deed. “Exhibit A” is a copy of a deed purporting to have been made by Oothran & Elliott to the witness, the firm name having been signed by the plaintiff, who was a member of the partnership. We suppose the objection is founded on the wmrds of the witness — I verily believe. These words, in the connection in which they are used, are not the expression of an opinion in the proper sense. It was so ruled in Read v. Shaver, 9 Ala. 789, where the witness testified, that he had seen the note in the hands of the nominal plaintiff, more than eighteen months before, and believed it to be the same note, but could not say positively. It is said : “It is the assertion of the existence of a fact, qualified by the admission that the recollection of the witness is not so clear and distinct, but that he may be mistaken.” The qualification is, in such case, for the consideration of the jury, in determining to what weight the evidence is entitled. In the answer of Cadow, there is no qualification. It is not the expression of a belief, such as amounts merely to an opinion, or judgment. In the answer to the next succeeding interrogatory, the witness states that “Exhibit A” is a copy of the deed, without modifying it with any expression of belief. The expression, “I verily believe,” as employed in the answer, is equivalent to the expression of the best recollection of the witness.

On the former appeal, it was held, that the entries made by McKenzie, who is deceased, are admissible evidence on any issue involving the transaction to which they relate. One of the issues was, whether plaintiff had made a deed or bond for title, and whether the lands had been paid for. To this issue the entries we're relevant; aiid the books in which the original entries were made, being beyond the jurisdiction of the court, copies shown to be correct are admissible. — Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232.

Parol evidence is admissible to prove the fact, that a transfer of the judgments and claims against Garrett was made by the plaintiff, and delivered to the witness at or about a particular time. When it appears that the transfer is in writing, secondary evidence of the contents can not be given, unless the absence of the original is accounted for. But it does not seem there was any attempt to prove the contents of the transfer. Besides; the plaintiff, in his own testimony, admits a transfer was made. The admission of the fact dispensed with the ne*379eessity of producing the writing. — McGeehee v. Hill, 1 Ala. 140; Paysant v. Ware, 1 Ala. 160.

We discover no error in the rulings of the court.

Affirmed.