Minniece v. Jeter

65 Ala. 222 | Ala. | 1880

STONE, J.

— The judgment of the Circuit Court in this cause must be reversed, on certain points reserved in the court below to the introduction of evidence. The memorandum-book of expenses kept by Miss Jeter was improperly admitted. — Acklen’s Executor v. Hickman, 63 Ala. 494. That part of the answer of the witness Roberts, in these words : “ To the best of my judgment, I must say, that I was impressed with the idea, then, that it was of benefit to him and family, ” is mere conclusion, opinion, or conjecture, with no facts to support it, and should have been excluded. The two objections taken to parts of direct interrogatories three and five, propounded to plaintiff, were well taken; but they seem to have elicited no objectionable testimony.

The defendant pleaded the statute of limitations of the State of Mississippi, alleged to be six years, in bar of the recovery. The bill of exceptions does not set out the statute, and contains no statement of agreement that we may consult the statute-book. All that is said in the bill of exceptions, on this subject, is, “ The plaintiff then introduced in evidence the statutes of Mississippi. ” Eor what purpose this was done, and why done by plaintiff, we can not learn. This does not bring before us the statute of Mississippi relied on. — 1 Brick. Dig. 880, §§ 1096, 1099.

This question, however, has been argued, as if the statute of Mississippi was in evidence; and in as much as it will probably arise on another trial, we feel it our duty to notice the question. Our statutes on the subject have nothing to do with this question, further than to allow the defense to be made in this State. When made, its sufficiency must be tested by the laws of the State, whose statutory bar is invoked. If there be exceptions, which prevent or intercept the running of the statute, they are the exceptions of the statute pleaded, not those enacted by our legislature. Our statute (Code of 1876, § 3237) is conceived and framed on the theory, that a debt which becomes barred by the laws of another State or country, of which such debtor is a resident, is alike barred in this State. If there be exceptions in the statute of such other State or country, which prevent the bar there, then such bar is equally ineffectual in this State. Our statute is a legislative comity, and is in no way affected by reservations of this State, which come in play when our statutes of limitation are pleaded.

When the statutory bar of another State or country is relied on, the frame of our statute (section 3237 of the Code 1876) is such as to confine its operation to contracts made or acts done in such other- State or country. The concluding clause of this section compels this construction. It follows that, unless the contract sued on was made in Mississippi, the bar of that State can not be pleaded in defense of it. The plea, to be good, should aver that fact. This statute, we think, had its origin in the hardship supposed to be inflicted by the decision in Jones v. Jones, 18 Ala. 248, overruling Goodman v. Monks, 8 Por. 84.

As the undisputed facts appear in this record, the defendant became a non-resident of Alabama in 1865, and ever afterwards remained so. The statute of limitations of Alabama is no defense in this case.— Wright v. Preston, 55 Ala. 570; Harrison v. Heflin, 54 Ala. 533.

The first charge given by the court can not be sustained. The pendency of a former suit between the same parties, on the same cause of action, may be pleaded in abatement of a second suit, and will abate it, unless the affidavit or process, by which the first suit is commenced, is void. — Stevenson v. O’Hara, 27 Ala. 363; Drake on Attachment, § 184; Matthews v. Sands, 29 Ala. 136. A deputy-clerk, we will presume, is one duly appointed and qualified; and such deputies have full power to transact all business of such cleik. — Code of 1876, 676, sub. 2. If the person who administered the oath, and -issued the first attachment, was not so appointed and qualified, that was and is a subject for a replication to the plea in abatement. — See Lowry v. Stowe, 7 Por. 483. The second charge given is correct, so far as the Alabama statute of limitations is supposed to affect this case. It has no pertinence to the statute of Mississippi, which must be governed by its own provisions. The third charge given is substantially correct, and so is the first given at the instance of plaintiff, with this qualification and explanation: Partial payment on a claim of debt, made before the statute has perfected a bar, intercepts the running of the statute, because the payment is an admission that the debt exists. Eeason and the law concur in saying, the payment would not be made, if there were no admitted indebtedness. Hence, it is said, a partial payment on a debt, past due, obliterates all past time in the computation, because it is an admission by the defendant that the debt-then exists. Why pay, if there is no debt ? To come within this rule, however, the defendant must intend the payment shall be thus applied, or must know and approve such application. The plaintiff, or payee, by an unauthorized indorsement of payment on the note, can not fix or continue a liability on the promisor. It requires the act or concurrence of the proniisor, to do that. If, when the payment is made, there be a debt, and if nothing be said explanatory of the act of handing over the money, this is a strong circumstance tending to show partial payment was 'intended, and would justify a jury in so finding. The question, under the evidence, was, payment on the debt, or gift. This was a question for the jury, and depended mainly on the inquiry, whether, at the time the money was delivered to the agent, Minniece was indebted to the plaintiff, and whether at that time he gave any directions, and if so, what directions, as to its purpose or application. The letters of Minniece, found in the record, were evidence on the question of indebtedness vel non.

The second charge given at the request of plaintiff is correct, when applied to the statute of Alabama. Charges 2 and 8 asked by defendant were rightly refused.

Eevérsed and remanded.