Kirkley v. Segar , 20 Ala. 226 ( 1852 )

LIGON, J.

It was clearly proper to let the testimony first objected to by the plaintiff in error, go to the jury, for the purpose of establishing the joint interest of the de--fendants in error; for we must suppose that the plea of non assumpsit was interposed, and formed the issue . submitted to them. Under this plea, any testimony which tended to prove the joint interest of the plaintiffs, in the court below, in the. cause of action, and consequently their right to sue jointly, was proper evidence to go to the jury to be weighed by them. The facts deposed to by the witness had this tendency, and hi=. testimony was rightly admitted.

The charge asked for by the plaintiff in error, in connection with this proof, was correctly refused, for had it been given, the court would have invaded the province of the jury, by assuming to judge of the weight of the testimony offered.

We see no error, detrimental to the plaintiff in error, in the last charge given by the court. No objection had been made to the admission of the evidence, on which the first part of it is founded, and as it tended to prove an indebtedness on the part of the defendant, it was, therefore, no error for the court to tell the jury that, if they believed the evidence, they could find for the plaintiff. The latter part of the charge is abstract, but if any effect could be given to it, it would be favorable to the plaintiff in error, and he cannot be heard to complain of it.

The jury rendered a verdict in favor of the plaintiffs below, for a sum less than fifty dollars, and judgment was given-for this sum, with costs. This is here assigned for error. On-inspecting the record, we perceive the judgment entry shows that the affidavit required by the statute to entitle the plaintiff to his judgment, when the sum found by the jury will not support the jurisdiction of the court, has been made in this case.

There is no error in the record, and the judgment must be affirmed.