7 Ala. 451 | Ala. | 1845
The facts recited in the replication to the defendant’s plea of the statute of limitations, certainly tendered an immaterial issue. It is probable that the fact intended to be put in issue, was that the defendant had not resided six years within the State of Alabama, which, according to the decision of this Court, Towns v. Bardwell, 1 S. & P. 37, would have been a good replication to the plea. The replication, in this case, merely asserts, that the note was made in South Carolina, and that the defendant moved from that State before six years had expired, after the making of the note. That might be true, and yet the defendant might have resided six years in this State, so as to make the bar of the statute effectual.
It is the right of parties to have the issues of fact they make up, tried by the jury; what will be the effect of the issue when found, is matter of law. [Hazard v. Purdom, 3 Porter, 43.] Generally, the Court will award a repleader, or it may render judgment non obstante veredicto; but it cannot instruct the jury to find the issue contrary to the evidence.
See the case of Cullum v. The Branch Bank at Mobile, 4th Ala. Rep. 39, where this question is considered, where an immaterial issue is tendered in connection with good pleas; and although it was held that the defendant was not entitled to a general verdict, on the good and bad pleas, yet that the defendant was entitled to a verdict on the immaterial plea, if sustained by the proof.
For this error the judgment must be reversed, and the cause remanded.
