Bettis v. Saint

28 Ala. 214 | Ala. | 1856

CHILTON, C. J.

The judgment entry recites that a jury came to try the issue joined, which they found for the plaintiff; and having assessed the plaintiff’s damages at ninety-five dollars, judgment Avas thereupon rendered for that amount. No replication appears in the pleading to the plea of the statute of limitations of six years; and the appellant says avg must intend that issue was taken on that plea, and then maintains that the record shows the verdict should have been for the defendant.

This might have furnished good ground for a new trial; but we have no power to order new trials, or to interfere .with the verdicts of juries, because they may have found against the evidence. But we must assume that there was an issue before the jury, appropriate to the charge aslred by the defendant below; otherwise, the charge would have been abstract, and properly refused for that reason-. The admission of proof of a subsequent recognition of the debt, as well as the charge asked, proceeds upon the idea of an issue to . which they were applicable.

The only question presented by the bill of exceptions, i's whether the section of the Code (§ 2490) which declares that “ no act, promise dr acknowledgment is sufficient to remove the bar to a suit created by the provisions of this chapter, or is evidence of a new or continuing contract, except a partial payment made upon the contract, by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby,” applies to the verbal recognition of the debt shown in this case. The charge brings up this.question, inasmuch as it assumes th^t a verbal promise to pay, which the jury might have inferred from the evidence tending to show a recognition of the debt within six years, was not sufficient to take the case without the influence of the statute.

The action in this case was brought on the 15th Sept, 1853, within less than one year from the time the Code' went into operation. The Code provides, that the provisions of the chapter of which section 2490 forms a part, “ apply to all subsisting causes of action, except such as suits have been commenced upon, and are now pending, and those upon which suits may be commenced within one year from the time this Code goes into operation.” — See Code, § 2502. So, by the expresss terms of this section, the case before us forms an exception, and is taken without the influence of the provision insisted^pon as applicable by the counsel for the appellant. But, if this view were doubtful, the. act of 1853-4 (Pamphlet Acts, p. ’ll) clears up that doubt, and, by express terms, makes the old law apply; so that, whether we look to the Code or to the subsequent act of 1853-4, it is clear the charge was properly .refused.

Judgment affirmed.