Madden v. Blythe

7 Port. 258 | Ala. | 1838

Lead Opinion

GOLBTHWAITE, J.

— There is no error in the refusal of the court below to instruct the jury, as in case of non-suit; for, admitting the evidence was insufficient to establish the acceptance o.f the order declared on, specially; yet it was proper to be received on the money counts, and the party is too late, after pleading to issue, with the objection, that these counts were not properly inserted in the declaration. If such was the case, we should be compelled, continually, to decide in this court, all the questions which arise when there is a variance between the writ and declaration.

We do not wish to be understood as admitting, that it is irregular to file the money counts, when the action is brought on a written instrument, and that alone is endorsed on the writ. That question need not be decided, until it is presented for adjudication.

But it is insisted, that the charge of the Circuit court determined the facts of the case, and withdrew them from the consideration of the jury. We cannot arrive at this conclusion, from the statement in the bill of exceptions. It frequently happens, in practice, that counsel and parties admit, or do not question, the facts in evidence, but request the instruction of the court, on the law arising from them, as if they were assumed to be true. In this case, it is evidently so, for on no other reason could the request have been made to non-suit the plaintiff. It was as much as to say, the facts in evidence are admitted, but they constitute no legal cause of action.

This view of the case is sustained by the whole bill. All the evidence is stated, and no question is made either as to its admissibility or truth. To permit the party now to allege that the charge was given, not on the law, but the facts of the case, would be productive of no beneficial results. The correctness of the charge, admitting the facts to be true, is not controverted, nor indeed could it be, as no issue was made by the pleadings, under which a set-off could be given in evidence without notice, and the allowance of it by the plaintiff, was a favor accorded to the defendant, and was not a right which he could insist on.

The judgment must be affirmed.

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Dissenting Opinion

COLLIER, C. J.

— With all deference, I am constrained to dissent from the opinion pronounced by his Honor,, Judge Goldthwaite.

The Circuit judge, in his charge to the jury, employs this language: “That as the defendant had acknowledged he was indebted to the said Stephenson, and the counsel for the plaintiff, having stated that the store account of the said Stephenson with the said Madden, amounted to something over fifty dollars, which they were willing to allow that the plaintiff was entitled to recover,” &c. The defendant’s acknowledgment was not made by him personally in court, but was proved by a witness who gave evidence on the trial.

Now, it seems to me, that the judge assumed every fact embraced in his charge, as conclusively shewn, without leaving it to the jury to make their own inference, from the testimony they had heard. And though from the facts set forth in the bill of exceptions, the jury would doubtless have attained the same conclusion as was expressed by the Circuit judge, — I yet think his charge obnoxious to the law, which declares that “ The judges of the Superior and Inferior courts shall not charge juries with respect to the matters of fact, but may state the testimony, and declare the law” — (Aik. Dig. s. 134, pp. 283