10 Ga. 186 | Ga. | 1851
By the Court.
delivering the opinion.
The first request of the counsel for plaintiff in error to charge, was correctly declined by the Court. He was desired to say to the Jury, that if there was more than one Elizabeth Williams in existence, it was incumbent on the plaintiff alleging the same, to prove it. This action was brought upon the demise of Elizabeth Williams. The defendant proved that she had intermarried before the suit was brought, with one Ingram. His idea is, that if plaintiff can recover after this proof, upon the demise oí Elizabeth Williams, he must show that there was some other Elizabeth Williams, besides the one that married Ingram. What good would it do the plaintift to show that in the wide world, there was another Elizabeth Williams, and stop at that? Or what-legal obligation was there upon him to prove it ? If he (the
The great point in this case, is made in the second request. But the Court certifies that it has no recollection of being requested to charge as therein specified. We cannot, therefore, determine it. I will say, however, that upon a demise from Elizabeth Williams, after proof that she had intermarried before the suit was brought, although her husband died before the grant issued, there can be no rightful recovery. The demise should be in the name of Ingram, averring that the grantee, Elizabeth Williams, had intermarried with a man of that name.
The exception to the first instruction in fact given, is not sustainable.
pi.] The Court charged, as we have herein held, in my remarks in reply to the 2d request of the plaintiff in error, to which I refer.
The evidence referred to, is this: “ witness had heard Mrs. Williams say, that she had made a deed of gift of this lot of land to my (witness’) children, and have seen and read the deed of gift often.” This was illegal evidence. The sayings of the grant- or are not evidence to prove the deed and its contents — it ought to have been produced, or its loss or destruction proven. Being illegal, it was competent to instruct the Jury to disregard it.
Let the judgment be affirmed.