Bradford v. Barclay

42 Ala. 375 | Ala. | 1868

B YED, J.

1. The parties went to trial without declaration or pleas, so far as the record discloses, and a verdict was returned in favor of appellee, and a judgment rendered thereon.

The judgment entry shows that a jury was sworn “to try the issue joined by the parties.” Upon this state of the record, this court will presume that a declaration and plea were filed. The transcript contains an agreement signed by the attorney of the plaintiff, in which “it is mutually agreed that the defendant may be considered as pleading everything that will be a bar to plaintiff’s right to recover, and that plaintiff replies in like manner.”

My opinion upon such agreements is given in the case of the Alabama & Florida Railroad Co. v. Watson, decided at the present term. As my brother, Judge, does not agree that the rule laid down by me in that case applies to this, and as the Chief Justice did not agree with me in the rule indicated in that case, I consider it my duty in this case to conform to the opinions of my brethren, at least, to the extent that the rule referred to, does not embrace an agreement like the one before us.

As the defendant went to trial without filing any plea, and gave evidence which was only admissible under the pleas of set-off and the statute of limitations, he must be held bound by the agreement, and to every part thereof; and therefore, the plaintiff must be considered as having replied the statute of limitations to the sets-off introduced in evidence. But we do not decide that- a plea of set-off is a plea in bar, within the meaning of this agreement, but will so treat it, as the parties and the court below, on the trial, so treated it.

This mode of pleading is a practice which should not be encouraged; for, in this case, it seems to me that it puts us in the position of making presumption in order to review the cause, which may not be true in fact, and which might result in reversing the cause in the face of the decisions of this court, which have firmly settled the doctrine that no presumption is to be indulged, with reference to the pleadings, for the purpose of a reversal, but may be, in favor of an affirmance of the action of the inferior court.

2. It is not apparent that the court erred as alleged in the first assignment of error. The court did not allow the memorandum read by the witness to go to the jury, but instructed the jury to consider the evidence he gave from the stand.

3. The first charge given by the court, when construed with reference to the evidence, is unobjectionable. — Jones v. Fort, 36 Ala. 449 ; ib. 684; Sharp v. Burns et al., 35 ib. 653.

4. The other charge given by the court, when construed with reference to the evidence, asserts a correct legal propo sition, as shown by the following authorities, and was therefore properly given : — St. John v. Garrow, 4 Por. 223; Deshler v. Cabiness, 10 Ala. 959; Russel v. LaRoque, 11 Ala. 352; Towns & Nooe v. Ferguson, 20 ib. 147 ; Ross v. Ross, ib. 105; Bryan v. Ware, ib. 687; Pool’s Ex’r v. Relfe, 23 ib. 701; Evans v. Carey, 29 ib. 99.

It is to be observed that the note sired on was given before the Code went into operation, and suit also commenced before that event.

5. There was no error in the refusal to give the first charge asked by the appellant.

6. At the time this suit was brought in 1852, the statute of limitations had perfected a bar to the set-off proved in the case.

The appellant insists that, nevertheless, he was entitled to the allowance of the set-off by virtue of an act passed the 19th February, 1867, (Pamph. Acts, 676,) in these words : “That in cases in the courts of this State, where the defendant pleads a set-off to the plaintiff’s demand, to which the plaintiff pleads the statute of limitations, the defendant, notwithstanding such plea, shall be entitled to have the benefit of his debt as a set-off where such set-off was a legal subsisting claim at the time the right of action accrued to the plaintiff, on the claim sued on.”

Statutes are never construed to have a retroactive effect, unless the language is so plain that no other construction can be put upon them. — Barron v. Hunt, 18 Ala. 668; Barnes v. Mayor of Mobile, 19 Ala. 438; Kidd v. Montague, ib. 619 ; Hoffman v. Hoffman, ib. 535. In this case, even if it was competent for the legislature -to deprive a party of the benefit of a defense which the law gave him, and which he had already plead in court, it does not seem to me that the statute is any answer to the defense made by appellee to the set-off; for, the statute is not necessarily retrospective in its operation upon cases where the statute has completed a bar, and the party has availed himself of it by pleading it. — See authorities cited above; Steamboat Company v. Barclay et al., 35 Ala. 120.

Bepeal of statutes by implication, are not favored by the the courts. — George v. Skeates & Co., 19 Ala. 738; Rawles v. Doe ex dem., 23 Ala. 240; Pearce v. Bank of Mobile, 33 ib. 693 ; Miles v. The State, and Wade et al. v. The State, both in MS., decided June term, 1866.

It results that there is no error in the record, and the judgment must be affirmed.