29 Ala. 69 | Ala. | 1856
If the testimony sought to be elicited by the several interrogatories to which the demurrer was sustained, is not relevant to some one of the issues, the motion for mandamus must be overruled.
The action, in aid of which the interrogatories were filed, was brought by petitioner, as administrator of Walter Grant-land, against Nicholas Lewis. The complaint contained several counts; for’work and labor done, for negro hire, on an account stated, for money had and received, for money lent, and for money paid. The defendant pleaded non assumpsit, set-off, and the statute of limitations of three and six years.
The interrogatory numbered 120 is the one which discloses the object in propounding the series from 119 to 127, inclusive. Its language is: “In someone or more of said wills,
To test the pertinency of this question, let us suppose it to be answered affirmatively. Would the proof be relevant to any one of the issues ? We think not. It contained neither an admission, nor any circumstance tending to show an admission, of any indebtedness past or present. It furnished no fact from which an indebtedness could have been implied. It was, at most, an offer to purchase the peace, not of himself while living, but of his estate after his death. This was inadmissible against him as evidence. — See Cowen & Hill's Notes to Phil. Ev., part 1, page 218.
We need not, and do not, now decide that mandamus would lie for the object contemplated in this proceeding. We have seen that the circuit court, in sustaining the demurrer to the interrogatories, did not err; and the writ of mandamus is refused, with costs.