Bradford v. Barclay, Administratrix. The court charged the jury, "that for the purpose of ascertaining the truth of the matter, they would only look to the language of the witness as upon the stand, as this language indicated to them where the truth of the matter in controversy lay." To this defendant excepted. The defendant asked the court to charge the jury, "that if they believed the defendant Bradford had claims against the estate of Geo. P. Brown, at the time Barclay spoke to the defendant about the note sued on, as stated by witness Henderson, and Bradford stated, in reply to Barclay, that the note should be adjusted on a final settlement, or final account between the parties; and they should believe, that Bradford meant, by his reply to Barclay, that said note should be taken into the account on their final settlement of the respective claims of the parties; and should believe, at the time of this conversation, the note sued on was barred by the statute of limitations, and that no settlement had taken place between the parties, the language attributed to Bradford by Henderson, would not amount to a new promise to pay the note; which charge the court gave; and in addition thereto the court charged the jury, that if they should believe from the evidence, that in said conversation, Bradford acknowledged that he owed the debt sued for, and recognized an existing liability, on his part, to pay it, that this would remove the bar of the statute of limitations; to which charge the defendant excepted." The defendant asked the court to charge the jury, that "if they believed that defendant had legal subsisting claims not barred by the statute of limitations against the plaintiff's intestate at the time the cause of action in this case accrued to the plaintiff, the defendant would be entitled to the benefit of such set-off in this case, notwithstanding more than six years had transpired after the accrual of the rights of these set-offs before the institution of this suit by the plaintiff;" which charge the court refused, and defendant excepted. The defendant also asked the court to charge the jury, that, "if the return of the sheriff in the case of M. A. Brown v. Duncan, offered as a set-off, showed the collection by him, in said case, of $288 25, on the 3d of May, Bradford v. Barclay, Administratrix. 1841, and $5 15, on the 2d of June, 1841, and op the 12th of September, 1842, the return of "settled in full;" and the record showed, that the plaintiff's attorney received $150 00 without date, and also the further entry, "settled balance with Griffin," also without date; the law will refer these receipts to the next term of the court after the money was received by the sheriff; and, if the next term of the court intervened before the commencement of this suit, the defendant would be entitled under the law of 1867, to the benefit of his set-off for so much of the money as was received by the plaintiff's attorney, although more than six years had intervened after the receipt of Barclay, before the commencement of this suit;" which charge the court refused, and to this refusal defendant excepted. A verdict and judgment were given for the plaintiff for $982 65; from which the defendant appealed, and assigned for error, the several rulings of the court above set forth. MARTIN & SAYRE, for appellant. BYRD, J.-1. The parties went to trial without declaration or pleas, so far as the record discloses, and a verdict was returned in favor of appellee, and a judgment rendered thereon. The judgment entry shows that a jury was sworn "to try the issue joined by the parties." Upon this state of the record, this court will presume that a declaration and plea were filed. The transcript contains an agreement signed by the attorney of the plaintiff, in which "it is mutually agreed that the defendant may be considered as pleading everything that will be a bar to plaintiff's right to recover, and that plaintiff replies in like manner." My opinion upon such agreements is given in the case of the Alabama & Florida Railroad Co. v. Watson, decided at the present term. As my brother, Judge, does not agree that the rule laid down by me in that case applies to this, and as the Chief Justice did not agree with me in the rule indicated in that case, I consider it my duty in this case to Bradford v. Barclay, Administratrix. conform to the opinions of my brethren, at least, to the extent that the rule referred to, does not embrace an agreement like the one before us. As the defendant went to trial without filing any plea, and gave evidence which was only admissible under the pleas of set-off and the statute of limitations, he must be held bound by the agreement, and to every part thereof; and therefore, the plaintiff must be considered as having replied the statute of limitations to the sets-off introduced in evidence. But we do not decide that a plea of set-off is a plea in bar, within the meaning of this agreement, but will so treat it, as the parties and the court below, on the trial, so treated it. This mode of pleading is a practice which should not be encouraged; for, in this case, it seems to me that it puts us in the position of making presumption in order to review the cause, which may not be true in fact, and which might result in reversing the cause in the face of the decisions of this court, which have firmly settled the doctrine that no presumption is to be indulged, with reference to the pleadings, for the purpose of a reversal, but may be, in favor of an affirmance of the action of the inferior court. 2. It is not apparent that the court erred as alleged in the first assignment of error. The court did not allow the memorandum read by the witness to go to the jury, but instructed the jury to consider the evidence he gave from the stand. 3. The first charge given by the court, when construed with reference to the evidence, is unobjectionable.—Jones v. Fort, 36 Ala. 44); ib. 684; Sharp v. Burns et al., 35 ib. 653. 4. The other charge given by the court, when construed with reference to the evidence, asserts a correct legal propo sition, as shown by the following authorities, and was therefore properly given :-St. John v. Garrow, 4 Por. 223; Deshler v. Cabiness, 10 Ala. 959; Russel v. La Roque, 11 Ala. 352; Towns & Nooe v. Ferguson, 20 ib. 147; Ross v. Ross, ib. 105; Bryan v. Ware, ib. 687; Pool's Ex'r v. Relfe, 23 ib. 701; Evans v. Carey, 29 ib. 99. It is to be observed that the note sued on was given be Bradford v. Barclay, Administratrix. fore the Code went into operation, and suit also commenced before that event. 5. There was no error in the refusal to give the first charge asked by the appellant. 6. At the time this suit was brought in 1852, the statute of limitations had perfected a bar to the set-off proved in the case. The appellant insists that, nevertheless, he was entitled to the allowance of the set-off by virtue of an act passed the 19th February, 1867, (Pamph. Acts, 676,) in these words: "That in cases in the courts of this State, where the defendant pleads a set-off to the plaintiff's demand, to which the plaintiff pleads the statute of limitations, the defendant, notwithstanding such plea, shall be entitled to have the benefit of his debt as a set-off where such setoff was a legal subsisting claim at the time the right of action accrued to the plaintiff, on the claim sued on." Statutes are never construed to have a retroactive effect, unless the language is so plain that no other construction can be put upon them.-Barron v. Hunt, 18 Ala. 668; Barnes v. Mayor of Mobile, 19 Ala. 438; Kidd v. Montague, ib. 619; Hoffman v. Hoffman, ib. 535. In this case, even if it was competent for the legislature to deprive a party of the benefit of a defense which the law gave him, and which he had already plead in court, it does not seem to me that the statute is any answer to the defense made by appellee to the set-off; for, the statute is not necessarily retrospective in its operation upon cases where the statute has completed a bar, and the party has availed himself of it by pleading it. See authorities cited above; Steamboat Company v. Barclay et al., 35 Ala. 120. Repeal of statutes by implication, are not favored by the the courts.-George v. Skeates & Co., 19 Ala. 738; Rawles v. Doe ex dem., 23 Ala. 240; Pearce v. Bank of Mobile, 33 ib. 693; Miles v. The State, and Wade et al. v. The State, both in MS., decided June term, 1866. It results that there is no error in the record, and the judgment must be affirmed. McClanahan's Adm'r v. Ware-Jones et al. v. Same. MCCLANAHAN'S ADM'R vs. WARE-JONES ET AL vs. SAME. [BILL IN EQUITY—INJUNCTION.] 1. Temporary injunction; dissolution of.-Complainant obtained a temporary injunction, upon the ground of an alleged agreement, or understanding between him and the defendant, that a certain payment was to be made in Confederate money; the defendant, in his answer, denied that there was any such agreement, or understanding, either express or implied; and on motion, heard on bill and answer, the chancellor dis solved the injunction,-held, that in this, there was no reversible error APPEAL from the Chancery Court of Shelby. THE bill in this cause was filed on the 19th November, 1866, by J. M. McClanahan, against Horace Ware, the appellee, and sought to enjoin the defendant from proceeding to sell, under mortgage, certain stock held by the complainant in the Shelby Iron Works, an incorporated company lately engaged in the manufacture of iron, in the county of Shelby. The facts of the case are thus stated in the opinion of the chancellor, delivered on the motion to dissolve the injunction: "Complainant, in connection with others, purchased of the defendant, in the early part of 1862, the property then known as the Shelby Iron Manufacturing Company, consisting of large beds of iron ore, coal beds, lands, furnaces, machinery, shops; and other buildings, for which they were to pay $150,000. This sum was to be divided into shares, and held as stock; each purchaser or stockholder was to execute his notes to defendant for his proportion of the stock, and to give a mortgage on his shares to secure the payment of his notes. The notes and mortgages were executed by all the parties except the complainant. It seems that some previous transactions had taken place between complainant and defendant; complainant held a judgment against the defendant amount |