77 Ala. 437 | Ala. | 1884
The first assignment of error raises the question of the legality and sufficiency of the proof of the mortgage, under which Hough asserted claim to the money sued for. That instrument purports to be signed with the maker’s mark, and to be witnessed by two witnesses, each of whom signed only with a mark. The plaintiff alone was examined to prove the execution, and he testified that Dave Calhoun, the maker, executed it. On this proof it was allowed to go to the jury, and Jones, the defendant, excepted. Before the testimony in proof of execution was offered, defendant admitted that the subscribing witnesses, who were in court, if placed on the stand, “ would state they were illiterate, and could neither read nor write; that plaintiff could not prove by said witnesses the execution of said mortgage ; that neither of said witnesses could identify said mortgage as the writing each was requested to make [his or] her mark upon as an attesting witness, by said plaintiff; nor could either of said witnesses say that the mark appearing near [his or] her name as written, was [his or] her mark, nor could either identify the mark appearing near the name, Dave Calhoun.” In such case as this, how is the execution of the paper to be proved ?
In Gilliam v. Perkinson, 4 Rand. 325, is this language: “ In the case before us, the witness has made his mark. Now I ask, how could this be proved % ” There is a distinct, individual character in the handwriting of every man who can write ; and with those who have written much, that character is so fixed and striking, that persons acquainted with it will
It would seem that one of the controverted questions of fact in the court below, must have been, whether the agreement for the lease of the “ Long field” was entered into before February 21st, 1881 — the date of Dave Calhoun’s mortgage to Hough ; and that a second mooted question was, whether Dave Calhoun was, in fact, a lessee with Fields. In this controverted state of the proof, we find no error in either of the charges excepted to.
Affirmed.