Rolston v. Langdon

26 Ala. 660

• Court: Supreme Court of Alabama
• Decided: January 15, 1855
• Status: Published

Opinion

RICE, J.

—There is an agreement of counsel of record, showing that “the bill of exceptions contains all the evidence offered on the trial of this cause.” This being so, it is clear that the charge given by the court is purely abstract, and could not have misled the jury. Such a charge, even if erroneous, furnishes no ground of reversal.—Salmons v. Roundtree, 24 Ala. 458; Magee v. Billingsley, 3 Ala. 680.

When a chai’ge asked needs to be qualified, or explained, to prevent it from misleading the jury, it may be refused.—Swallow v. The State, 22 Ala. 20.

When a charge as asked admits of two constructions, one of which is well calculated to confuse and mislead the jury, it may be refused.— Ross v. Ross, 20 Ala. 105.

The application of these rules to this case, results in the conclusion, that there was no error in the refusal of the first and second charges as asked by appellant. The first assumes, that, to avoid the bar of the statute of limitations, the plaintiff was not only bound to prove a subsequent promise, but to go further, and prove that it was made “with a full knowledge of all the facts.”—Kennon v. McRea, 7 Porter 175.

The second admits of the following construction: that when a debt is due by account, the account is the debt; and that although there maj'' be a subsequent partial payment of the debt, within less than three years before suit brought, such payment cannot remove the bar of the statute of limitations, unless it is “ made on the account.” This objection to this charge is not removed by admitting that it admits of a different construction. See cases above cited.

The third charge is abstract, and for that reason was properly refused.

There is no error in the record of which the appellant can avail himself, and the judgment of the court below is affirmed.