Hellen v. Wideman , 10 Ala. 846 ( 1846 )

COLDTHWAITE, J.

1. The questions raised by the bill of exceptions will be best examined in connection with the matters in issue between the parties. By reference to the pleadings it will be seen the plaintiff was required to prove that the note mentioned in one of the counts was executed to her by the name of Henry Wideman, or, under another, that a sum of money remained due her upon a sale of slaves to the defendant’s intestate. To make out the first fact, the note itself was a necessary matter of evidence, and the same may be said of the bill of sale of the slaves, with reference to the other fact; or rather, that the bill of sale was proper evidence although it may not be the only evidence which was so. We do not understand the exception to refer to the execution of the bill of sale, but to its competency, and when the exception is thus taken, we must presume the execution was properly shown. [Creagh & Forward v. Savage, at this term.] It may be conceded, the production of the note, or of the bill of sale, or both together were not sufficient to.make out a case for the plaintiff, but when taken in connection with the testimony of the witness, detailing the declarations of the intestate, it was proper to submit the whole to a jury, and we cannot say the whole was insufficient to warrant the presumption, either that the note was executed to the plaintiff, or that some sum was due her on the slaves sold. It is true, the note and bill of sale are dated on the same day, in the year 1838, and the witness speaks of the declarations as made in 1839 or 1840, or thereabouts. It was the business of the jury on the one hand, to reconcile the declarations with the instruments, or on the other, to determine they had no connection. We think the whole subject was properly left to the jury.

2. With respect to the supposed right of the defendant to have the whole evidence excluded, for the reason that no presentment was shown of the claim to the administrator, within eighteen months, it is sufficient to say, the objection was not thus taken in the court below. If it had been, it could there possibly have been obviated, by calling the attention of the jury to the time when the writ issued, or some admission that the defence was not relied on. Whatever may be the merits of the case in this particular, it could not be cured on a motion to exclude the evidence shown on another issue, but the attention of the court should have been directed to the point by a request for a specific charge.

There is no available error in the record. Judgment affirmed.