Cross v. Hall

Tuck, J., delivered the opinion of this court. This is an action of assumpsit by the appellant against the appellee, and another, upon whom the writ was not served. The defendant pleaded non assumpsit and limitations. Issue was joined on the first plea, and the plaintiff entered a ne redpiatur to the second, on the ground that it was not filed in time, This having been overruled, the parties went to trial [429] on both pleas. The verdict on each was for the defendant, and judgment entered accordingly. The appeal is taken from the refusal of the court to strike out the plea of limitations. We deem it unnecessary to express any opinion on this ruling of the court below, because it appears that the appellant did not thereby sustain any injury. It is settled that a judgment will not be reversed, at the instance of a party who could have gained nothing, if the decision of the point appealed from, had been in bis favor. Here the jury have found that the appellee did not promise, as alleged by the appellant, in other words, that the defendant was not indebted on the cause of action declared on. Suppose that limitations had not been pleaded — (and this places the plaintiff in the same condition asifhisree recipiatur had been allowed,) he would have been bound by the verdict and judgment on the plea to the merits. That plea (limitations) being in, and the verdict on both being against the plaintiff, cannot affect the conclusiveness of the finding on the other. It is said, however, that no evidence was offered on that plea. The record is silent on the subject, hot the jury have passed on that question, and we must presume that there was sufficient evidence before them. Every fair legal intendment, should be made in favor of the acts of an inferior jurisdiction. State vs. Harrison, 9 Gill & Johns., 15. Bryan vs. Coursey, 3 Md. Rep., 61. To send the case back, (even if there is error in the ruling of the court,) would he equivalent to our granting a new trial on the plea of non assumpsit, which might have been applied for in the county court, if there had been sufficient warrant for the motion. Judgment affirmed with costs.