Tapscott v. Gibson

129 Ala. 503 | Ala. | 1900

SHAIÍ PE, J.

Actions may be brought on lost bonds or notes such as are described' in this complaint without the affidavit of loss or destruction prescribed by section 31 of the Code. A plaintiff- may avail himself Of the affidavit as evidence in case it accompanies the complaint and is not denied by a verified plea, but being evidential merely no reference need be made to it in the pleading, -and defects in the affidavit are not ground of objection to the complaint.—Glassell v. Mason, 32 Ala. 719; Bell v. Moore, 9 Ala. 824.

The 2d and 3d -counts were properly allowed to be added as amendments to the -complaint. There was nothing to show that the plaintiff held or claimed to hold more than one node or bond -against defendant, and that, 'the evidence tended to show, had been stolen from him in Texas. As to the contents of that instrument the witnesses did not f-ully agree and the. added counts each purported to describe a writing corresponding to some phase of the testimony. Under such 'Conditions it was right to assume the amendments related to the same cause of action declared on in the first count. Plaintiff had the legal right to amend his complaint during the progress of the trial so as to prevent a variance between the complaint and any part of 'the evidence in matters merely descriptive of the original cause of action.—Code, $ 3331; , 54 Ala. 122; Dowling o. Blackman, TO Ala. 303; Long v. Patterson, 51 Ala. 414.

Exceptions reserved to the admission of testimony on the ground that it had relation to writings not shown to have been executed were not well taken. A witness testified that he attested the execution of a writing and his description of that writing corresponded in part though not entirely with that given by other witnesses of the instrument referred to in the challenged testimony. This partial correspondence together with the evidence of the consideration and other circumstances attending the whole transaction was sufficient to authorize the court and jury to infer the identity of the instrument proved by the subscribing witness with that spoken of by each witness.

A witness in testifying to the passing of money and a horse from the first transferee to the payee of the note or bond said “he supposed it was for said note or bond.” This was not evidence but its admission was rendered harmless to the defendant by a charge given at his instance -instructing the jury that, it was not evidence of the fact to which it was directed, which -charge Avas equivalent to excluding the incompetent testimony. Foxworth v. Brown, 120 Ala. 59.

The charges given at plaintiff’s request properly applied to the evidence a familiar principle in the IÚav of estoppel. If charges 3 and 4 Avere faulty in omitting to hypothesize the jury’s belief upon the'evidence, the fault was only in a tendency to mislead which the defendant might have liad corrected by an explanatory charge

The charge refused to defendant was not warranted by the evidence.

There was no error in refusing the motion for a new trial.

Judgment affirmed.