Jones v. McLuskey , 10 Ala. 27 ( 1846 )

COLLIER, C. J.

The act of 1839 declares, that in all suits commenced upon account, in which the amount sought to be recovered does not exceed one hundred dollars, the oath of the plaintiff shall be received as-evidence of the demand, unless the same be controverted by the oath of the defendant ; but this- section shall not apply to the cáse of executors, &c. [Clay’s Dig. 342, § 161.] In Anderson v. Collins, 6 Ala. Rep. 783, this statute was drawn in question, and we there held, that the denial of the defendant of the truth of the facts sworn to by the plaintiff, deprived the statement of the latter of all influence as testimony. Here the defendant not only denied in positive terms, the plaintiff’s account, but attempted to support his denial by proving a statement of the accounts between the parties, which he had himself made. It is admitted, that if the defendant had merely testified the plaintiff’s account was incorrect, then the force of the testimony of the latter would have been destroyed. This being the case, we cannot conceive upon what principles of reason or law, the additional facts should have weakened the denial of the defendant. In point of reason, it should rather have imparted weight to it, and the statute cannot, according to any rules of construction make it prejudicial. At most it was unnecessary and useless; and the maxim utile per inu-tile non vitiatur applies with all force.

The judgment of the County Court is reversed, and the cause remanded.