135 Ala. 227 | Ala. | 1902
By the fourth plea it is set up- as a defense to the action, that “the plaintiff got upon the car of defendant and when the defendant’s conductor demanded his fare, he tendered to the conductor in payment of said fare, a coin which was so much worn that the stamping thereon could not be seen with sufficient distinctness to enable the conductor to tell whether it had originally been a coin of the United States government or not; and when the said conductor declined to receive this fare in compensation for its ride, the plaintiff declined to pay his fare with any other money, wherefore he was ejected.” These averments do not put in issue the legality of the coin in question. A coin issued by authority of law to circulate as money is not deprived’ of the quality of legality merely bv being worn in the process of circulation, nor does a silver coin by sncli wear lose its quality as legal tender “so. long as it is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint.”—Morgan v. Jersey City, etc. R. Co., 52 N. J. L. 60, 18 Atl. Rep. 904. But the plea does put in issue the coin’s condition, together with the ability of the conductor to determine its genuineness. Whether it presents a valid defense is not here in question. By the joinder of issue thereon its averments were made material; and an issue joined whether on good pleading or bad cannot properly be disregarded, but when submitted to- the jury must be tried and the verdict should respond thereto.—Steed v. Knowles, 97 Ala. 573; Allison v. Little, 93 Ala. 150; Mudge v. Treat, 57 Ala. 1; Masterson v. Gibson, 56 Ala. 56: Hazard v. Purdom, 3 Port. 43. Here there was evidence tending to support this plea in the conductor’s
On the witness stand the conductor, while denying that the dime exhibited in evidence was the same that was' offered for plaintiff’s fare, testified that the coin so exhibited was a good visibly lettered dime. This evidence being without contradiction, proved not only that firm coin was good, but that the conductor was able to recognize it as being good. The court was, therefore, justified in charging the jury upon the assumption that the dime introduced in evidence was of legal tender quality as was in effect asserted in the written charges given at plaintiff’s request.
Accompanying the transcript there is a coin which, is certified as being the one used in evidence, doubtless for the purpose of having it inspected under rule 27 of Supreme Court- Practice. That rule, however, goes no further than to authorize the transmission here for inspection, of original papers used in evidence in the trial court and copied in the transcript. Neither that nor any other rule authorizes this court to look to the coin, itself to determine its character or for any purpose.
The question addressed to plaintiff by Ms counsel as to where, after being put off the car, he got money to
For the errors mentioned the judgment will be reversed and the canse remanded.