Gillespie v. Hester

49 So. 580 | Ala. | 1909

DOWDELL, C. J.

On the facts stated there is no difference m principle between plea 1 in the case at bar and plea 1 in the case of Parker v. Bond, 121 Ala. 529, 25 South. 898. On the authority of that case, no error was committed in overruling the demurrer to plea 1 in the present case upon the stated grounds of demurrer here insisted upon.

It is insisted in argument by counsel for appellant that the demurrer to plea No. 6 should have been sustained upon the ground thereof that the plea failed to aver that the defendant could neither read nor write, etc. The plea avers that the defendant was induced to execute the note by the false representations, as stated in the plea, made to him at the time by the plaintiff. If this was true, and he signed the note relying upon the truth of such representations, then it would be immaterial whether the defendant could'read and write or not.— Bank v. Webb, 108 Ala. 137, 19 South. 14. The plea may be faulty, but not upon the ground urged in argument.

Under the plea of non est factum the burden of proof is by the statute put upon the plaintiff as to the execution of the note sued on. — Code 1907, § 3967. Written charges requested by the plaintiff that placed the burden of proof under this plea on the defendant were properly refused. ■

Charge 9, requested by the plaintiff, was properly refused. It is not predicated upon willful false swearing by the witness, and hence is unlike the charge pronounced good in McClellan v. State, 117 Ala. 144, 23 South. 653, in this respect.

Charge No. 11 was an invasion of the province of the jury, and was for this reason, if for no other, properly refused.

Charge-17, given at the instance of the defendant, in that it required the plaintiff to satisfy the jury by his evidence, instead of to reasonably satisfy them, exacted too high a degree of proof, and was therefore error.— L. & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 South. 760.

Charges 15 and 16, given at the request of the defendant, are complained of as being misleading. The giving by the court of a charge that is merely misleading or abstract does not constitute reversible error.

We have not considered the ruling on the demurrer to plea 4, for the reason that plea 4, as it appears in the transcript, is unintelligible.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Anderson, McClellan, and Sayre, JJ., concur.