On Application for Rehearing.
PER CURIAM.We think that the foregoing opinion itself furnishes a sufficient answer to the suggestions against the correctness of its conclusions which are urged in the application for a rehearing, except as to the part of the opinion which deals with the action of the trial court- in refusing to give charge 7, requested by the defendant. It is urged that under previous rulings in this state that charge must be regarded as one which the defendant- was entitled to require the court to give. It is suggested that that instruction is fully sustained by the opinions in the case of Calhoun v. Hannan, 87 Ala. 277, 6 South. 291, and Ala. Great So. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65. The charge, which was held to have been properly given in the case of Calhoun v. Hannan, supra, was as follows: “The burden of proof is- on the plaintiff to show the falsity of the affirmation of fraud upon which the attachment was sued out, and he must reasonably satisfy their minds of such falsify;' and if the evidence *246leaves them confused or uncertain as to the truth or falsity of such charge they must find for the defendant.” Similar charges were held to have been properly refused in the case of Brown v. Master, 104 Ala. 451, 16 South. 443. As pointed out in the opinion in the case of Louisville & Nashville R. Co. v. Sullivan Timber Co., 126 Ala, 95, 27 South. 760, the court, in Calhoun v. Hannan, dealt with the charge in question as if the words were “confused and uncertain,” instead of “confused or uncertain,” as they appear in the charge as set out in the report of the case. But, treating the ruling in that case as establishing the proposition that such a charge as was mentioned in the opinion should be given, does it follow from that ruling that it was error to refuse charge 7, requested by the defendant in this case We do not think so.
Let it he conceded that the ground stated in the opinion as a justification of the refusal to give that charge is questionable, yet there are other grounds upon which the refusal to give it may be justified. The defendant vas not entitled to require the court to single out for the special consideration of the jury the question of the distance of Mr. Connor’s residence from the office of the defendant in Nauvoo, as by that charge it was requested to do. Then, again, the character of charge which the court, in the case of Calhoun v. Hannon, held proper to be given was one predicating such a condition of the evidence that the minds of the jury are left in a state of confusion and uncertainty, while the corresponding feature of the charge which is in question in this case could be understood as referring to a condition of confusion and uncertainty in the minds of the jury at the time: the court was addressing them. It might well be that, before a deliberation and discussion- among themselves in reference to the evidence submitted, the jury might *247be in some confusion and uncertainty as to what their findings would be, but that, after proper deliberation and discussion, the evidence would not leave them in doubt and uncertainty as to the truth of the matters in issue.
So far as that charge embodied the proposition that the burden was upon the plaintiff to prove to the reasonable satisfaction of the jury that Connor or'the plaintiff could have been found within the agreed area of free delivery by the exercise of reasonable diligence, it was fully covered by other written charges given at the instánce of the defendant. This being true, for the other reasons hereinabove mentioned, the court was justified in refusing to give that charge, admitting that what was said in reference to it in the original opinion did not constitute the only or the most persuasive reason for justifying the action of the trial court in that regard.
Application for rehearing overruled.