Sugg v. . Watson

Davis, J., (after stating the case). “ The effect of any payment of principal or interest” on a debt otherwise barred by the statute of limitations, is to take it out of the operation of the statute, at least as to the debtor making the payment. In McDowell v. Tate, 1 Dev., 249, it is said “ a payment is, by consent of the parties, either express or implied, appropriated to the discharge of a debt.” If a debtor, who owes a creditor a single debt, makes a payment to the creditor, it is a discharge pro tanto of that debt, but if a debtor, who owes to a creditor several distinct and separate debts, makes a payment, he has a right to direct the application of the payment to such debt as he chooses, and it is the duty of the creditor to apply it as directed, but if this right is not exercised and the direction of the application made at or before the time of payment, the creditor may make the application to such of the debts as he pleases. The controverted questions here are whether the defendant owed the plaintiff other debts, and whether the payment was made on the debts sued on. Counsel for the defendant insists that there was not sufficient evidence to go to the jury, to warrant the verdict rendered. Whether there is any evidence, is a question for the Court; if any, the weight and sufficiency of it is a question for the jury. Thisqs well settled. It is also settled that where there is a mere scintilla of evidence, the Court ought not to leave the case to the jury. *192 In the case before us there was some evidence to which there was no exception, and in regard to which no instructions were asked. If there is an exception to the sufficiency of the evidence to warrant the jury in finding an alleged fact, the objection should be made when the testimony is all in, and the Court should be asked to charge the jury that there is not sufficient evidence to warrant a verdict, and if there is any evidence, and no instructions are asked, and it is permitted to go to the jury without objection, this Court cannot disturb the verdict. Lawrence v. Hester, 93 N. C., 79. The Judge below has the discretionary power to set aside a verdict, if against the weight of evidence, but this Court possesses no such discretionary power. “An omission of the Judge to instruct the jury upon a point on which, if he had been so requested, it would have been his duty to advise and direct the jury, cannot for the first time be assigned as error in this Court.” State v. Nicholson, 85 N. C., 548. There is-no error. Affirmed.