Fountain's Adm'r v. Ware

56 Ala. 558 | Ala. | 1876

STONE, J.'

We are not able to find any error in the several rulings of the Circuit Court. The rule in regard to bills of particulars is one of practice, the main object of which is to prevent surprise. Liberal rules are applied in their construction ; and when, as in this case, it is manifest that each party knew, not only “something about the matter,” but ■was fully apprised that the five hundred dollars, paid on an order alleged to have been forged, was the foundation of the suit, the court rightly overruled the motion to dismiss plaintiff’s suit on this account. — See Pryor v. Johnson, 32 Ala. 27; Robinson v. Allison, 86 Ala. 525.

When one party to a suit offers testimony taken by the other, he thereby adopts the witness as his own, vouches for his credibility, and must, in all submit, to the same intendments and rules, as if he had first sought to make him a witness. — Jewell v. Center, 25 Ala. 498. The rule, however, does not require that he shall read irrelevant evidence. He could have suppressed that, even in a deposition taken by himself, not being responsive to the interrogatory. He has the same right in reference to testimony taken by his adversary. Each mass of testimony, not read by plaintiff, and to which only a general exception was reserved, contained some irrelevant testimony; and the Circuit Court did not err in this respect.

There was objection and exception to portions of James Ware’s deposition. Most of it was responsive to interrogatories, which had been crossed without objection; and, if there was any part that was not so responsive, it was objected to in a mass with other evidence that was responsive, and the court did not err in overruling the objection. — 1 Brick. Dig. 886, § 1186; Ib. 558, § 122; Wilkinson v. Mosely, 30 Ala. 562; Walker v. Walker, 34 Ala. 469.

We find no evidence in this record, tending to show that Henry Ware authorized B. S. Ware, or any other person, to draw the order on which the five hundred dollars were paid, or that he ratified the act afterwards. The testimony being direct, and without conflict, the Circuit Court did not err in the charge on the effect of the evidence.

The judgment is affirmed.