65 Ala. 505 | Ala. | 1880
— It was proposed to prove by appellant, who was defendant below, that at a given time, Lide, the intestate of plaintiff, Killen, the defendant, and two witnesses who have been examined, were together at ! Perry’s Mill.’ The two witnesses referred to had been examined for Killen, to prove that, at the time and place mentioned, a complete settlement had been made between intestate and Killen. That the four persons designated were together at the time and place named, is; standing by itself, an immaterial fact, tending to no conclusion ; and, being immaterial, the Circuit Court could not err in excluding it. Irrelevant facts, not calculated naturally to elucidate the question in dispute, should always be excluded, by reason of their tendency to divert the minds of the jurors from the true issue. It is contended for appellant, however, that the purpose of this offered testimony was to corroborate the evidence of the two witnesses, who had given testimony tending to prove a settlement at that time and place. It admits of doubt, if there is ai sufficient connection between the settlement sought to be proved, and the fact offered, as corroboration, to authorize proof of the latter to be made.
But we need not decide this. Lide, who is alleged to have made the settlement with Killen, was dead, and this suit was by bis administratrix. The two witnesses referred to had given evidence tending to prove a settlement. Any fact, tending to aid or strengthen their evidence of that disputed
The testimony of the witness Lide, to the efEfcjt that, if intestate had any money, he, witness, would have been apt to know it, and that he did not believe he had any money ; and further, that if deceased had money, he, witness, would have known it, and that deceased bad no money, was all illegal. Having money or not, is not one of the patent facts, which is open to general observation. Money is not usually carried in sight. Tbat witness was about there (intestate’s residence) a great deal, would not tend to show tbat be would know intestate had, or had not money. Want of knowledge of things open to the senses, in a person who had the opportunity of knowing such fact if it existed, is some evidence, though slight, that the thing did not exist. The present case is not brought within the rule. — 1 Brick. Dig. 810, § 94, et seq.
The Circuit Court is not shown to have erred in the charge excepted to. Settlement, or payment, is an affirmative ■defense, which the party relying on must prove. The charge asserts a legal proposition, which is correct in many, if not most categories. In the absence of proof, showing the ■charge was erroneous under the testimony before the jury, we are bound to presume it was justified under the state of the evidence. — 1 Brick. Dig. 336, § 12 ; lb. 781, § 120.
Reversed and remanded.
