79 Ala. 510 | Ala. | 1885
As we understand the testimony of the witness Hawkins, he, as the agent of Fulton, plaintiff below, had in his possession four copies of a notice, issued in Fulton’s name, three of which he served on the several defendants, and retained the fourth. The retained copy the witness produced on the trial. It bore date February 2d, 1885, and gave notice to each of the defendants that Fulton, their landlord, claimed a forfeiture of the leasehold interest, by reason that the defendants, his tenants, had failed to pay the rental and royalty therefor, according to the terms of the letting. This paper, and the testimony of the witness Hawkins, were offered, to prove that Fulton had elected to declare the lease forfeited, and had, in this way, given the defendants notice of such election. There was objection'to the introduction of this paper in evidence, to prove that Fulton elected to treat the lease as forfeited. The court allowed the paper to go in evidence to the jury, and this is the subject of the first exception. The point of the objection was, and is, that the paper offered was but a copy, and no notice had been'given to produce the originals, which had been left with the defendants.
As we understand the bill of exceptions, these papers or notices did not sustain to each other the relation of original and copy papers. One was as much an original as the others. The language of the witness was, “that acting for plaintiff, at his reqnest, he handed to each one of the defendants a paper writing, of which he retained a correct copy;” which copy plaintiff produced, and offered to prove by said witness. If the statement of this witness be true, each of the papers, before service, was as much an original as the others were, for they were correct copies of each other. Copy, in the sense here used, does not mean that the notices served were first written, and the retained paper then made like them. Its natural sense and interpretation are, that each was a copy of the others, in the sense that one newspaper is a copy of each and every other newspaper printed at that time, and on that form ; or that one book, of a given edition, is a copy of every other book of the same edition. This statement by the witness, that he retained a “correct copy,” can not change the true nature of the transaction. Its most natural interpretation is, that the notice was prepared in quadruplicate form, and three were served, and one retained. The record does not present the question of primary and secondary evidence.—1 Greenl. Ev. § 561; 2 Ib. § 322; Dumas v. Hunter, 30 Ala. 75. If the papers were not quadru
The charged asked by defendants, and refused, had no evidence of waiver to base it upon, and it was rightly refused on that ground.—Hill v. Townsend, 69 Ala. 286. There is another objection to this charge. After referring to the subsequent dealings .of the parties, as circumstances to which the jury might look in determining whether the plaintiff had waived his right to claim a forfeiture of the lease, the instruction contains the following clause, which is stated more in the form of asserted fact, than of hypothesis: “On which the defendants relied, on which they had a right to rely, and which were calculated to make them believe that prompt payment would not be insisted on by plaintiff.” Under the most favorable construction, this charge was liable to mislead, and was rightly refused on that account. When testimony is indeterminate, circumstantial, or is such that inferences of fact are necessary to complete its probative, sufficiency, the rule is all the more imperative, that in charging the jury nothing shall fall from the lips of the judge which tends, in the slightest degree, to invade the peculiar province of that body to weigh and sift the testimony, and ascertain, for themselves, the facts it establishes. This does not interdict proper instructions as to the burden of proof, legal presumptions, or anything else which is matter of law. The jury being bound to accept the law from the court, and to act upon it, the presiding judge is equally bound to leave to the jury the ascertainment of facts which exist in parol.—Clark’s Manual, § 2505; Railroad v. Roebuck, 76 Ala. 277.
Affirmed.
