Jeffries v. Castleman

75 Ala. 262

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

SOMERYILLE, J.

The general charge of the court is in full accord with the principles heretofore settled in this case, when formerly before us on appeal. We are not willing to depart from the doctrines declared in Castleman v. Jeffries, 60 Ala. 380, and Jeffries v. Castleman, 68 Ala. 432. The rulings in these cases are based upon the solid ground, that the present code of statutes, known as “ married women’s laws,” must be construed, as far as practicable, to be a shield for the protection of femmes covert, and not a sword with which to arm them for the injury of others.

There was no error in the ruling of the court, sustaining the demurrer interposed by the defendant to the plaintiff’s replication of the statute of limitations. The present Code expressly provides that “ when a defendant pleads a set-off to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant, notwithstanding such replication, is 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 theclaim in suit.” — Code, 1876, § 2696. It appears from the complaint in the cause, that the plaintiff’s right of action accrued, if at all, on the 18th day of November, 1872, and the facts averred in the plea of set-off show that the accounts claimed by defendant were not then barred by the statute of limitations, and were therefore legal and subsisting claims, within the meaning of the above section of the Code, at the time plaintiff’s right of action accrued. These facts being apparent on the face of the pleadings, the point was properly presented by demurrer. The effect of the statute, in this particular class of cases, is to render the statute of limitations entirely unavailing as a defense to the set-off. Washington v. Timberlake, 74 Ala. 259 ; Riley v. Stallworth, 56 Ala. 486.

If it be conceded that the admissions, sought to be proved as having been made by A. S. Jeffries, were competent to prove payment of the set-off, it does not appear that they were made prior to the dissolution of the partnership of Jeffries & Castle-inan, which is shown to have taken place in May, 1873, when the accounts in cpiestion were transferred by Jeffries to Castle-man. If made after such dissolution, and after the transfer of Jeffries' interest in the subject of the set-off, the latter’s admissions as to the fact of payment would very clearly be inadmissible a’gainst the other partner, Castleman. To be receivable in evidence,such admissions must be shown affirmatively to have emanated from a person having at the time some interest in the subject-matter to which they have reference. — 1 Creenl. Ev. §§ 179-180.

The witness Melton, having testified under oath on a former trial, when he was subject to cross-examination, and having since that time deceased, it was permissible to prove by any competent witness the testimony then given, and it becomes admissible evidence upon the second trial.—1 Greenl. Ev. § 163; 2 Best Ev. § 496 ; Whart. Ev. § 177; Marler v. State, 67 Ala. 55.

We discover no error in the rulings of the circuit court, and the judgment must be accordingly affirmed.