Eaton v. Kikeman

35 Ala. 272

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

A. J. WALKER, O. J.

The only objection made to the competency of the witness Hargraves was, “that he was in fact the assignor of the note” sued upon. If Hargraves was the plaintiffs assignor, he was incompetent, under section 2290 of the Code, only to prove the cause of action. Under the pleadings in this case, defenses may have been made, which did not dispute the original existence of the cause of action, but asserted “ a payment, release, or other matter in discharge of the debt.”— 1 Chitty on Pleading, 481-82. While, if the assignor or transferror, he would not be a competent witness to prove the cause of action, he would be competent to disprove the truth of the defense of “ payment, release, or other matter in discharge of the debt.” The bill of exceptions does not disclose, and we cannot upon the pleadings in this case infer, that the witness was offered to prove the single thing which he was incompetent to prove. The court permitted the witness to testify; and presuming, as we are bound to do, in favor of the correctness of the ruling of the coúrt below, we must not infer that the witness was offered to prove the only thing which, if he was a transferror of the note, he was incompetent under the statute to prove.

If the witness was a transferror of the note sued upon, he was only a transferror by delivery of the equitable title, and could not be incompetent under section 2302 of the Code.

The judgment of the court below is affirmed.

R. W. Walker, J., having been of counsel, did not sit in this case.