36 Ala. 712 | Ala. | 1860
That the defendant, Hart-well, received a draft from Bead, the principal of himself and his co-surety; that this draft was collected by the defendant; that he executed a receipt for the draft; that the receipt went into his possession, and that he fails to produce it in answer to the complainant’s eall, upon the plea that it is lost or mislaid, — are uncontroverted and indisputable facts in this case. The complainant exhibits-with his bill wliat is alleged to be a copy of the receipt; and it is contended, that the denial of the answer casts upon the complainant the onus of proving the correctness of his alleged copy by two witnesses, or .by one witness supported by corroborating circumstances. In the answer to the original bill, the defendant simply excuses himself for not admitting the exhibit to be a correct copy of the receipt, on the ground of a want of recollection. A supplemental hill was filed by the complainant, in which it was averred, that the defendant had, afterfilin^his answer to the original bill, come into the possession of the receipt; and the defendant is interrogated as to the correctness of the alleged copy, and called upon to designate the points of variation from the original, if any such exist. The defendant answers, that the alleged copy differs from the original in its date, and in the fact that it contains the name of Whitman ; and that there are other differences, which he cannot remember or state.
The assertion of the answer, that there were other dif
If the complainant were required to prove the correctness of every part by two witnesses, that exaction would necessarily be made as to portions of it not denied; for the denial does not cover every part of it. The burde of showing the correctness of the exhibit by two witnesses, or by one with a corroboration, is not by the answer cast upon the complainant, as to any part of the instrument save the two particulars specified. One of these particulars is the date of the receipt, which is altogether immaterial; for it is apparent that the instrument was executed at such a time as comports with the equity of the bill. So, the fact that the complainant’s name did not occur in the original, as it does in the alleged copy, is utterly immaterial in this controversy. The complainant’s name is only inserted in the description of the judgment, and its insertion or exclusion does not affect the terms of the contract. If the difference exists, as stated in the answer, it produces no repugnancy of description ; and the fact that the judgment is described by a statement of the names of all the defendants in the exhibit, while the defendant says it
The defendant has sustained no injury by ordering his answer to be taken from the files. The answer which he substituted subserved every purpose useful to him and prejudicial to his adversary wffiich the excluded answer would have done.
Our decision is not based upon any illegal testimony ; and*it is, therefore, not important that we should notice the defendant’s exceptions to testimony.
The decree of the chancellor is affirmed.