Harrison v. Henderson

By the Court.

Nisbet, J.

delivering the opinion.

[1.] We do not consider that there is error in any of the assignments of the plaintiff. The witness Floyd, it seems, was examined by the parties three times; twice by the defendant below, and once by the plaintiff. The only testimony read on the trial, elicited from him, was taken on a commission sued out by the defendant Harrison. In the answer to one of the interrogatories, he undertakes to correct a mistake which he says he made upon his examination by the plaintiff, as to the year in which certain admissions were made by the plaintiff, relative to his claims upon the defendant. The explanation was excluded by the presiding Judge, and this ruling is assigned for error. It was correctly excluded, because the testimony which involved the mistake had not been read to the Jury, nor was it read at any time on the trial; there was therefore no mistake before the Jury to be corrected. The proposed explanations were wholly irrelevant to any issue made on the trial, and for that reason were inadmissible. They wTere outside the case; the Court was not sitting to hear explanations about statements not in evidence; so far as the explanation was necessary to the witness as a personal privilege, it was sufficiently made; the mistake was on file, in interrogatories sued out in the cause, so also was the correction.

[2.] The defendant, in support of his plea of payment, had proven that the plaintiff in the year 1842, had said, that he considered that his notes on the defendant were paid, or would be, when he and defendant could have a settlement. To rebut the presumption of payment thus raised, the plaintiff tendered the record of a suit and judgment therein, in his favor, against the defendant, upon promissory notes, instituted after the time when the admissions of the plaintiff were made. The Court admit*22ted this record, and the defendant excepted. It was competent in rebuttal for the purpose of removing the presumption of payment. There arises a presumption that there was not a settlement of all the notes held by the plaintiff against the defendant in 1842, and among them the note now sued on, from the fact that subsequent to that time, the plaintiff had sued the defendant on claims against him, and obtained judgment thereon. It is but a presumption — the record could not disprove the settlement conclusively — but was competent, and it was the duty of the Jury under instructions from the Court, to give to it such effect only, as it was legally entitled to receive. We have no reason to believe from this record, but that both Court and Jury did then-duty according to law.

[3.] The letter was admissible also in rebuttal, as containing admissions of indebtedness subsequent to the time when plaintiff was proved to have admitted a payment. The objection to its admission, grows out of its alleged mutilation. The admissions of the defendant are contained in the body of the letter, which is unmutilated and signed. A postscript is mutilated; one-half of it being torn.off; upon inspection, it is not perceivable that the postscript contained any explanations of, or reference to the admissions in the body of the letter. It is true, as claimed by the learned counsel for the defendant in error, that every alteration on the face of an instrument is ground of suspicion, and detracts from its credit; and it is true too, that ordinarily, the party adducing the paper in evidence, is held to remove this suspicion by explanatory proofs, but not always; for some alterations explain themselves, We do not hold, however, that there is any alteration here ; the body of the letter is entire, and perfectly intelligible ; the postscript is a part of the letter, but there is nothing intelligible in it which refers to the admissions in the letter. On the contrary, so far as it is intelligible, it seems to relate to a different subject matter. It was proper, we think, to leave the letter and the postscript to the Jury. Greenkqf’s Evidence, §564 and notes.

Let the judgment below be affirmed.