Grant v. Cole & Co. , 9 Ala. 366 ( 1846 )

ORMOND, J.

The statute under which the plaintiff was examined as a witness, provides, “ that in all suits to be commenced upon accounts for a sum not exceeding one hundred dollars, the oath of the plaintiff shall be received as evidence of the demand; unless the same shall be controverted by the oath of the defendant.” [Clay’s Dig. 342, § 161.] The objection that the act does not apply where the suit is brought upon a note, as well as an account, cannot be sustained. We can perceive no reason whatever for thus limiting its operation. The suit is not the less upon an account, that the amount of a note is also sought to be recovered in the same action. The statute is remedial, and must receive a construction to effectuate its intent. [Moore v. Hatfield & Smith, 3 Ala. R. 442.]

For the same reason, we think the plaintiff may, upon the trial, abandon all his account over one hundred dollars, and prove that sum by his own oath, if the defendant does not controvert it. It might frequntly happen, that the plaintiff would not know until the trial of the cause, that he could not establish his account by testimony other than his own, and certainly the defendant cannot object, that a part of the account is abandoned. This can be done so as to give a justice of the peace jurisdiction, (King v. Dougherty, 2 Stew. 487,) a much stronger case than the present.

The statute does not require notice to be given of the proof intended to be made, except the notice contained in the declaration, which was afforded in this case.

Let the judgment be affirmed.