36 Ala. 154 | Ala. | 1860
The purpose of this suit is, to charge the separate estate of the feme covert, who is a defendant, with the payment of a promissory note, alleged to have been executed by her during á former marriage, the bonds of which were severed by divorcement. ' The execution of the note by the defendant is denied in a sworn answer, there being no waiver of the oath by the complainant. The chancellor, deeming the testimony insufficient to overcome the denial of the answer, dismissed the complainant’s bill. Avoiding the intimation of an opinion upon any other point in the case, we decide, that ‘the chancellor’s view of the testimony was correct, and, upon that ground, affirm his. decree.
Protracted discussions of evidence, by an appellate court, are generally unnecessary and unprofitable, and should he avoided. They usually occupy space in the books of reports, without announcing any legal principle, or affording precedents for the adjudication of other cases. But, as this case is of considerable importance, and the question, of fact upon which it hinges is one of intrinsic difficulty, and the counsel evidently have a fall conviction .of right upon their respective sides, it seems due to the court that its decision should be vindicated by a brief statement of the reasoning which has led to it.
Several of these five witnesses say, that the name of the defendant’as written bears a striking resemblance to her
There are other facts in proof, which we proceed to notice, tending to support the testimony of the four witnesses, who express the opinion that the name of the defendant is not in her- handwriting. The differences shown to have existed between the signature to the note and the defendant’s accustomed writing, are such as would be likely to occur in an attempt by a man, handling the pen expertly, to imitate the handwriting of a lady who (as we infer was the case with the defendant) did' not write a great deal, and was not expert in writing. One of the witnesses (Warford) testifies, that there is a resemblance in the writing of the defendant’s name to the handwriting of Gone. Lapsley, another witness, shows that Gone desired the note to be taken without, the signature of his wife, and at first delivered it without her signature. From, this testimony it is a legitimate inference, that Gone was reluctant to ask his wife’s signature; either because he felt a delicacy in doing so, or because he apprehended a
To overcome the strong case thus made out for the defendant, the complainant has the testimony of the witnesses Taylor and Sims, as to the defendant’s declarations not yet noticed. To the declarations proved by Taylor we attach but little importance. It is neither unreasonable, nor unusual, that a married woman should speak of her husband’s debt as a burden common to him and herself. The defendant has attempted to assail the character of the witness Sims; but it must be conceded to the complainant, that the attempt was ineffectual,’and that we are not justified by the evidence in refusing to credit his testimony on the score of bad character.' We will not attempt to reconcile the declarations, proved by this witness, with the other testimony, or with the supposition that the defendant did not execute the note. If the declarations were made, without any qualification, precisely as-they are stated by the witness, they would weigh very heavily against the conclusion that the defendant did not execute the note. But, in determining what influence should be conceded to these declarations, it is proper to consider that they are proved after the lapse of several years; that they appear to have been made incidentally, in a conversation having reference to the mistreatment of the defendant by her husband and its canse; that they were not made with any deliberation, or with any view to their effect as evidence against the declarant; that they were not addressed to the witness, and did not concern him in any way; that there seems to have been nothing to impress the precise language used upon the memory of the witness; and that the witness professes most strangely to have forgotten who were present, and to whom the conversation was addressed, and thus indicates, either a frailty of memory, or an intention to so shape
We have noticed ah the evidence in this case, which has an important bearing upon the point of controversy. It is incumbent upon the complainant to sustain tbe allegation denied, by what would be at-least equivalent to the positive proof of one witness, supported by corroborating circumstances. After allowing to the defendant’s testimiony its proper effect, in contradicting and neutralizing ■the complainant’s, we are forced to the conclusion, that 'if the balance .of proof is not on the defendant’s side, the ■complainant is at least left without the measure of proof meeessary to -overcome the denial of the answer.
‘The chancellor’s decree is affirmed.