8 Ala. 586 | Ala. | 1845
We do not consider it necessary to examine the sufficiency of the second countin the declaration, to which the Court overruled the demurrer of the defendant, as it is perfectly clear, that the plaintiff might at the trial, abandon all right to recover under it. This it appears he explicitly did, and relied alone for a recovery upon the common counts in the declaration.
It appears to us that the reasonable construction of the bill of exception is, a request to the Court to charge, that no recovery could be had in this action, upon the common counts. The prayer of the defendant is, “that on the above evidence, the plaintiff is not entitled to recover on the common countsto which the Court responded,that “ such a recovery might be had on the common counts.” It is the duty of parties who wish to review the decision of ah inferior Court, in this Court, to show affirmatively
It is not now insisted that a recovery could not have been had in this action, upon the common counts; but it is argued that the evidence was insufficient for that purpose; but considered in that aspect, we think the objection alike untenable.
It is objected that it does not appear, that there was proof of the signature of Matt. Gayle, the defendant, to the subscription for the stock; but that from the record it appears, that the book in which the subscription was made, was produced, which, although sufficient for a recovery under the special count, declaring upon it, was not under the common counts, without proof of the signature — and further, that evidence that the “ account” sued for was presented to the defendant, does not show that he had notice of the call of the directory for this instalment.
When evidence is objected to in the mass, as in this case, the objection will not be permitted to be taken in this Court, so as to subject particular portions of it to a severe and searching criticism. If the sufficiency of particular parts of it to maintain the issue is denied, the objection should be specifically made in the Court below, when perhaps the objection, if valid, might be removed, or some explanatory testimony offered, removing the difficulty. The objection, when made in this general form, to all the testimony, is calculated to mislead, and ought as far as possible to be discouraged, unless it be in fact a demurrer to the evidence, by analogy to which alone indeed can this motion be sustained. Considered as a demurrerto the evidence, we think the jury might have inferred, that the defendant signed the subscription, and was notified of the call made by the directors. From this it appears, there is no error in the record, and the judgment must be affirmed.
