Feagin v. Pearson

42 Ala. 332 | Ala. | 1868

BYRD, J.

The proof of the loss of the mortgage was sufficient to authorize secondary evidence of its contents. Poe v. Dorrah, 20 Ala. 288 ; ib. 485; Johnson v. Powell, 30 Ala. 113.

We can not see why the court “refused to admit the proof of the contents of the mortgage, by the transcript,” when there seems to have been no objection on the part of appellant, and yet, permitted the contents to be proven by parol. But the bill of exceptions shows that the witnesses proved that the contents of the original were the same as the transcript, and that it was agreed by the parties that it should be received as a correct transcript, and therefore, if the court committed an error in its ruling on this question, it was an error without injury.

. 2. It appears from the judgment entry, that the parties went to trial on “ issue joined, on the general issue,” and it does not show what, if any, disposition was made of the other pleas filed. In this state of the record, we must hold that the appellant waived all other pleas, and elected to try the cause on the issue joined.

It is a rule of law, that when a cause is tried on the general issue, the parties are confined tó their rights as they existed at the commencement of the suit. If anything occurs after, which the defendant can avail himself of as a partial defence to the action, he must set it up by way of plea, puis darrein contimiance. Hence, under the issue joined, we can not perceive how the defendant could raise the question of the manumission of the slave sued for, when he was set free subsequent to the commencement of the suit.

It has been held by this court, that .the death of a slave after suit brought, is no defence to the action. — 5 Stew. & Porter, 133 ; Lag’s Exr’s. v. Lawson, Adm’r, 23 Ala. 377; Bell v. Pharr et al., 7 Ala, 812.

Eor these reasons the court did not err in refusing to give the charges aslred ; and the one given, if erroneous, was without injury to appellant; for the reason, that the court did not render any judgment for the value of the slave at the time suit was brought, and only for damages for the detention; and if the charge authorized the jury to give hire for a longer time than under the law could be done, still the excess of time was so small that it is evident to us the value of the slave exceeds the excess of hire allowed under the charge of the court. — Rose v. Pearson, in manuscript, decided at the present term, is decisive of this question.

There being no error of which appellant can justly complain, the judgment of the court below must be affirmed..