Sorrell v. Craig , 15 Ala. 789 ( 1849 )

COLLIER, C. J.

1. In Walker and Stone v. Wyckoff and Ferguson, 14 Ala. Rep. 560, it was decided, that a credit entered on a note, in the hand-writing of the payee, is not evidence, in the absence of further proof of payment, so as to relieve the note from the influence of the statute of limitations. This decision rests upon the principle, that the admission of the indorsement of the credit, would be to permit the payee to make evidence for himself. The same reason applies, where the receipt is beneficial to the party making it, and prejudicial to him against whom it is offered in evidence, though it may not arrest the operation of the statute of limitations. If such were its probable effect, in the present case, it should have been excluded from the jury, or if, from the circumstances under which it was offered, it was prima facie admissible, and its incompetency was afterwards developed, it should have been withdrawn, or the jury instructed to disregard it. We cannot very well determine, from the facts stated in the bill of exceptions, that probable injury has .resulted to the defendant from the admission of the credit indorsed on one of the notes, but will not assume the reverse; it is, indeed, unnecessary to consider the point further, than to declare the law, as we have already done, so as to prevent error upon a future trial, as the cause must be reversed, for the second error assigned.

2. The present action, was brought by the executors of John Sorrell, deceased, and after the pleadings were made up, James D. Craig, was substituted as the plaintiff, in their stead. Among other pleas, the defendant pleaded ne uriques executor, on which issue was taken, and submitted to the jury. The circuit judge was mistaken, in supposing that the representative character of the plaintiff, could only be denied by plea in abatement; but if the law were otherwise, was it not too late, after the cause was before the jury, upon issues which the parties themselves had made up, to relieve the plaintiff from the proof of the facts, which he had voluntarily taken upon himself the burden of proving? We will not stop to answer this inquiry; for as the plea of ne unques executor, does not propose to give to the plaintiff a better writ, but denies his right to sue at all in the representative character he has assumed, it is regarded not only a plea in bar, but a meritorious defence. Stallings v. Williams’s adm’r, 6 Ala. Rep. 509; Worthington, adm’r, v. McRoberts and Porter, 7 Ala. Rep. 814.

It results, from what we have said, that the judgment of the circuit court must be reversed, and the cause remanded.