Gilmer v. Branch Bank , 1 Ala. 538 ( 1840 )

ORMOND, J.

— By our statute, a note or other security which is the foundation of a suit, is evidence without proof of the genuineness of the signature of the party thereto, unless that fact is put in issue by a plea verified by affidavit; and when thus put in issue, the burden of proof is cast on the plaintiff If the reading of the note to thejury, is any evidence of the genuineness of the signature under the statute, then the statute has not accomplished any thing, as it makes the writing evidence of the debt or duty for which it was given, only when not impeached by a plea, accompanied by an affidavit; and when so impeached, it is not such evidence per se, but must be proved, as before the statute.

All this is admitted by the counsel for the defendant in error, who insists that as the note and endorsement were read without objection, it was a waiver on the part of the defendant, of its competency under the issue, to establish the fact in controversy. It is true, that either party may waive an objection to testimony and thus make that competent, which the court on motion would have rejected; but that can only apply when the evidence conduces to prove, or disprove, the issue. There is no obligation on either party to a suit, to object to the introduction of testimony, which has no influence on the question before the jury. That was the case here. The question before the jury, was not whether there was such a note and endorsement, — that was admitted by the pleadings; but, whether the endorsement was made by the defendant or by his authority.

This being the issue, and the plaintiff below holding the affir-mative, he was not entitled to a verdict, without proof conducing to show, that the signature of the defendant, under which he was lawful to be charged, was genuine.

Let the judgment be reversed and the cause remanded.