104 Ala. 222 | Ala. | 1893
The evidence of Mrs. Glover shows she had accepted a transfer of the note from her husband. Her testimony is, that her husband had transferred the note to her, if she would pay over money to him, which was owing to her by her brother, which money had not been paid as yet by her brother; and that she had a few minutes before she was testifying, “formally recanted” the trade with her husband, without the advice of her attorney. It is said the writing by which she recanted was introduced in evidence, but it does not appear in the record. It does not appear that her husband was a party to the “recantation,” or was present, or on what consideration it was done, or anything else, except what has been stated.
Her husband, as was shown, after the institution of
This evidence tends to show that Mrs. Glover was the owner of the note, and that her alleged revocation at the trial of her agreement with her husband was a ruse to qualify her as a witness in this case. It does not look right. The trial court did not err in declining to allow her to testify, that she saw the note signed by the deceased. The evidence authorized the court to hold that the note had been transferred to Mrs. Glover, and that there had been no bona fide re-transfer of the same to her husband,
The other exceptions to the rulings of the court on the introdction of evidence made the basis of exceptions 8, 9 and 10, are without merit.
F. J. Kilpatrick testified, that the words “twelve hundred and,” differed from the remainder of the note, and he considered these three words written with different ink, or else it was just possible that the pen might have been clogged at that certain portion of the writing, which will often make a word appear darker or of a different ink; that the writing appeared to be more distinct in said words than any other.
C. E. Kyle testified, “that the note looked like it had been given originally for fifty dollars, and the words, ‘twelve hundred and,’ had been added, and there seemed to be a difference in handwriting and the ink of said words, from the remainder of the note.”
E. PI. Caldwell stated that the words “twelve hundred and,’ ’ wer§ unnecessarily crowded, and that there were no sixteen letters in the document that occupied so small a space as these words did.
W. F. Coffey, J. D. Snodgrass, W. L. Moody and Thomas 1). Stearnes testified to substantially the same thing as was deposed to by the foregoing witnesses.
The plea in the case was non est factum, simply, and it cast on the plaintiff the burden of proving the execution of said note. When this proof is made, the note becomes evidence and imports the consideration expressed, unless there is a suspicious alteration on its face, when the onus is on the plaintiff to explain it. The rule as gathered from the authorities on the subject is stated to be, that where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent on inspection, or made so by extraneous evidence, the party producing the instrument, and claiming under it, is bound to remove the suspicion by accounting for the alteration. — 1 Greenl. Ev., § 564, n. 1; 3 Randolph Com. Paper, § 1784 ; Barclift v. Treece, 77 Ala. 532; Hill v. Nelms, 86 Ala. 446.
There was no pretext for the plaintiff to ask the gen
For the single error in giving this charge the case must be reversed and remanded.