Fitzpatrick v. Hays , 36 Ala. 684 ( 1860 )

R. W. WALKER, J.

In the cases embraced by section 2313 of the Code, the plaintiff is competent to establish the correctness of the demand by his own oatb, unless the defendant, in open court, “denies upon oath the -truth of the facts proposed to be sworn to by the plaintiff.” The statute evidently contemplates, that the denial of the defendant, as well as the statement of the plaintiff, shall be positive — as of one who speaks from actual knowledge, and not merely from information and belief. This is clearly indicated by the fact, that the legislature has provided that section 2313 of the Code does not apply to cases in which executors, administrators, trustees and guardians, are defendants. — Code, § 2315. The obvious reason of this exception is, that executors, administrators, trustees and guardians are not presumed to be personally cognizant of the facts, and would, as a general rule, be unable to deny tbe statement of the plaintiff* in the manner required by section 2313. When tbe plaintiff proposes to testify positively to all the facts necessary to establish his demand, the denial of these facts by the defendant, “'upon the best of his knowledge and belief,” will not have the effect of excluding the plaintiff’s statement. — See Pickle v. Ezell, 27 Ala. 623. The affidavit of the defendant, taken all together, seems to j ustify the conclusion, that he intended to place his denial of the correctness of the plaintiff’s statement upon the ground that, according to the best of his knowledge and belief, the services rendered were injurious, rather than beneficial. At all events, it was not an unambiguous and positive denial of the truth of the facts proposed to be sworn to by the plaintiff, and nothing less than this is a compliance with the statute.

[2.] Wo think the objection to the charges is hypercritical. The court evidently meant, and so no doubt the jury understood the charge, that the physician must have used reasonable skill and diligence in Ms treatment of tbe slaves. If the charge was calculated to mislead, the defendant should have asked for the proper explanation.

Judgment affirmed.