22 Ala. 457 | Ala. | 1853
The record before us presents no question
The defendants below offered, for the purpose of rebutting the plaintiffs’ proof tending to show an indebtedness to Mrs. Cordle, one of the plaintiffs, a memorandum book in the hand-write of the said Benjamin Harrison, deceased, made a short time before his death. This piece of evidence, on motion of the plaintiffs, was excluded by the court. In this there was no error. To have admitted it, would have been to violate a familiar principle of evidence, that a party cannot manufacture evidence for himself. This memorandum, made by-the deceased, in his life time, in the absence of the plaintiffs, and without their knowledge, was no more evidence in the hands of the executors on the issues before the jury, than it would have been in the hands of the testator, if he was the actual defendant in the cause.
Not so, however, as respects the other proof offered by the defendants and rejected by the court. The proof of the plaintiffs, as set out in the bill of exceptions, tended to show an indebtedness on the part of the testator in his life time to Mrs. Cordle, one of the plaintiffs, on account of money or property which he had given her or promised to give her, by way of advancement, or for natural love and affection. As to the competency of this proof to establish an indebtedness against the estate, for which assumpsit would lie, as above remarked, we express no opinion, because no question is presented for our decision upon that subj ect. But conceding, for the present, that all the plaintiffs’ evidence was competent under the issues joined, it was defective in not fixing any amount by which the jury could be guided in assessing the damages. It was, we presume, for the purpose of supplying this defect that the testimony of Bradley was introduced bjr the plaintiffs. Other witnesses on the trial had testified, that the testator had declared that Mrs. Cordle, one of the plaintiffs, should have as much as Mrs. Anderson, another daughter of the testator;
For this error, let the judgment of the court below be reversed, and the cause remanded.