Driver v. Spence

GOLDTHWAITE, J. — The exceptions^taken at the trial, to the admission of the evidence, were all properly overruled. The exceptions, if available in any way, could be so only when the effect of the evidence was to be considered. The legal competency of the evidence offered, to sustain the issue joined, is apparent, when we consider that it was incumbent on the plaintiff, to shew a judgment and execution against Driver and also a sale by the sheriff, by virtue of said judgment and execution. Thus the judgment against G. Driver & Shelly, was a necessary link in the chain of evidence to be produced. To ascertain whether this judgment was connected with the execution, it was competent to introduce the papers of the original suit, and thus shew, that the G. Driver named in the judgment, was Giles Driver against whom the execution issued. The execution and sheriff’s deed, in like manner were indispensible links in the chain of evidence, and objections to their admission could only arise ior the omission of proof of their au [543] thenticity. Their genuineness established, they were before the jury, and if the whole evidence did not make out a case for the plaintiff, the whole might properly have been excluded.. There is no question that cases may arise, in which competent evidence may be given and afterwards excluded, when the case is closed by either party, for the reason that the whole evidence does not make out a case or a defence. In the case before us, the defendant might have requested specific instructions, as to the legal effect of the whole or of any portion of the evidence before the jury, and thus have presented any question for the decision of the circuit court, which he contemplated to review in this. However perplexing some of the questions attempted to be raised, might be, if presented in such a manner as to be capable of revision, we have no difficulty in arriving at the conclusion that the evidence offered and excepted to, was properly admitted. Let the judgment be affirmed.