43 Ala. 542 | Ala. | 1869
In the former decisions of this court, the most positive certainty of expression has been required that the bill of exceptions contained all the evidence offered on the trial in the court below, before a case would be reversed, because the charge of the court was not sustained by the proofs. It is the duty of this court, in civil suits, to make every presumption in favor of the correctness of the proceedings in the court below.—Fleming v. Ursery, 30 Ala. 282; Wilson’s Heirs v. Wilson’s Adm’r, 18 Ala. 176; 30 Ala. 242. Error must be positively shown.—2 Stew. 29; 31 Ala. 101. The record sent up, must purport to show absolutely, that all the testimony given on the trial, upon which the court acted, is set out in the bill of exceptions.
In Kirksey v. Hardaway, 41 Ala. 333, the words were, “ upon the foregoing evidence,” the court decided; in Southern Insurance Co. v. Holcombe, 35 Ala. 327, the language used was, “ thereupon,” the court decided ; and in
In this case, the language is, “ on this state of facts the court charged the jury.” This seems to be undistinguishable from the words used in Henley v. Lee, supra. And if the expression was insufficient there, it must also be insufficient here. Ubi eadem ratio, ibi idem jus. — Broom’s Max. 91, marg. There is a manner of expression which will leave no room for cavil on this point, and it is better to hold to this, than to open the door to uncertainties. We, therefore, feel it safest to adhere to the constructions of our predecessors, although a very nice criticism might doubt the propriety of some of them. Then following the authorities above cited, we are constrained to decide that the words, “ on this state of facts,” are not equivalent to saying, “ these were all the facts ” on which the court acted. This latter expression is the certainty required.
The proof shows that John P. Boyd died in 1859; that Griffin, the appellant, was appointed administrator of his estate on the 30th day of December, 1861, quite two years after his intestate’s death. The accounts sued on are for warehouse charges which are alleged to have fallen due, the one in October, 1861, and the other in October, 1864, but it does not appear with whom they were contracted, nor when. The complaint is in these words :
“ State of Alabama,) Dallas county. } 0ircmt Oourt“Wade H. Griffin, as administra-1 The plaintiff, as ad-tor of John P. Boyd, plaintiff, ! ministrtor of the estate vs. of John P. Boyd, deEliza Bland, defendant. J ceased, claims of the defendant three thousand one hundred and twenty-four dollars, due by account, on the 1st day of October, 1861, and on the 1st day of October, 1864, for the storage of two hundred and sixteen bales of cotton, and for work and labor done for defendant, with interest thereon.”
There is no error in the record, and the judgment is affirmed.