1 Stew. 252 | Ala. | 1827
delivered the opinion of the Court.
The declaration in this case contains only the common money counts. In support of the action, the defendant in error produced the note, which was the only evidence offered. It was objected to by the plaintiff in error, but the Court decided that the note being in possession of the security or his administrator, it was prhna facie evidence it had been paid by him. This decision is now assigned as error in this Court. It is the opinion of the Court, that the defendant should not have been put on his proof till it was shewn that the note had been delh ered to the payees, and was bona fide their property. It is probable that it was offered to obtain a discount in the bank; and if so, the plaintiff in the action was bound to prove it was accepted and discounted, for otherwise it imposed no liability on the makers. There are so'many ways by which the note might have come to the hands of the security, even before it was offered for discount, that it would be dangerous to permit a recovery on this kind of evidence. It may be laid down as a general rule, that whatever is necessary to be alleged in a special count, must be proved to support a common count for the same cause of action. If a declaration had been framed on the special circumstances of this case, the allegations that the note had been accepted by the payees, and paid by the security, would have been indispensable. It is unnecessary to notice the other assignment of error. The cause must be reversed and remanded.
