Bell v. Rhea, Conner & Co.

COLLIER, C. J. — It is clear that the note read to the jury was not sufficient evidence to have entitled the defendants in error to a verdict. It was incumbent on them to have shown that they were partners at the time the note was made, composing the firm of Rhea, Conner & Co. This point came directly before this Court, in Hunley v. Willis, Lang & Co. (5 Porter’s Rep. 155.) In that case the action was assumpsit on promissory notes; and among other issues there was one upon the plea of non assumpsit. The notes were read to the jury without objection, and the question as to the sufficiency of the evidence, arose upon a motion to the Court to instruct the jury that the parties, describing themselves as the firm of Willis, Lang & Co., should have proved that they were partners, as alleged in their declaration: The Court below refused the instruction asked; but this Court reversed its judgment. In the case at bar, the question is not as to the sufficiency, but as to the admissibility of the evidence. No instruction was asked of the Court: it was merely required to exclude from the jury the note declared on. The note was correctly described in the declaration; and clearly tended to prove a very material part of the case of the plaintiffbelow: it was the first and an indispensible link in the chain of evidence which was to establish his case; and being excluded, no matter how just his demand, ho eould not have recovered. [85] There must be order observed in the admission of evidence. A party cannot be required to adduce all-at once, where it consists of different parts: such a requisition if it were always practicable, would often occasion the greatest confusion. Hence the true rule seems to be, that where the evidence is unobjectionable in itself, and tends to prove a material fact in issue, it should be allowed to go to the jury, who are the proper judges of the effect to be given to it. No inconvenience can result from this rule in practice, since the Court can always instruct the jury as to the sufficiency of evidence. (McKenzie v. McRae, Adm.: 8 Porter’s Rep. 70.) It was argued for the plaintiff in error, that as it appears from the bill of exceptions, the note was the only evidence offered, it may be inferred that the jury were induced by the Court to believe that it was sufficient to entitle the defendants in error to recover. We think it very satisfactorily appears that the Court merely allowed the note to go to the jury as evidence. If the Court however, went farther, and informed the jury that they were authorized to give to it an effect, which it could not justly claim, the bill of exceptions should have so informed us. And in the absence of any thing of the kind shown by the record, we must intend that the bill of exceptions brings to our view, every thing objectionable in the proceedings of the Circuit Court. There is no error in the matter presented: and the judgment is consequently affirmed.