8 Fla. 21 | Fla. | 1858
delivered the opinion of the Court.
This was an action of assumpsit, and is brought up to this Court by writ of error from the Circuit Court of Hills-borough county. The declaration contains three counts. The first is a special count, setting out at large the instrument of writing out of which the cause of action is alleged to have arisen. The others are for money advanced and an account stated. There was a demurrer to the whole declaration, but the grounds of demurrer assigned point mainly to the first count. Judgment was given for the plaintiff upon the demurrer, and this ruling is assigned by the appellant, who was the defendant in the Court below, as the first ground of error.
In the view which we have taken of this assignment of error, it becomes necessary to consider the various grounds of exception taken to the special count. If it shall be found that either one of the common counts was sufficient, then the demurrer, being to the whole declaration, the Court was bound to give judgment thereon for the plaintiff. This is a well established principle, upon which there is no controversy in the books, and it has been repeatedly so ruled by this Court. 1 Chitty on Pleading, 664; Archbold on Civil Pleading, 309; 1 Saunders, 286; 1 Wilson R., 248; Barbee vs. The J. & A. Plank Road Co., 6 Fla. R., 262.
Amongst the numerous exceptions specially set forth as grounds of demurrer, there are only three which are ap„ plicable to the two common counts of the declaration. These are the 4th, 5th and 6th. The fourth and fifth exceptions are respectively set forth thus: “The breach is in debt, and the action in assumpsit. There is no promise made by James McKay to pay the plaintiff.” We have
The next and last error assigned is in these words, viz: “The Court erred in not giving the second and third instructions asked for by the appellant to the jury.” The instructions referred to are as follows: 2d. That a verbal promise to Wxn. II. McDonald by James McKay, that he
In order to determine the correctness and appropriateness of an instruction- which may be given to the jury, resort must always be had to the evidence upon which the instruction is based. That evidence, whether parol or documentary, is to be found only in the “ bill of exceptions,” whose peculiar office it is to give the incidents occurring in the progress of the trial, from the joining of the issue to the rendition of the verdict. It may be laid down as a general rule, subject to but one exception, that wherever the error complained of is predicated upon the instructions of the Court below, the whole evidence, or, at least, so much thereof as forms the basis of the instruction, must appear in the “bill of exceptions” accompanying .the record of the cause.
The exception alluded to is where the instruction is manifestly without the limits of the issue joined bétween the parties, and is likely to mislead the jury in making up their verdict. In such case, no reference to the evidence can be of any avail in determining the correctness of the instructions, and the Court may pronounce upon it even in the absence of the bill of exceptions, provided it be properly attested by the signature of the judge below.
The bill of exceptions attached to the record in this cause is manifestly incomplete. It purports to give only the testimony of a witness who was orally examined at the trial, and leaves out the documentary evidence, which is specially referred to in the body of the instructions asked for by the defendant and refused by the Court. In this .state of case, it would be highly improper for this
Let the judgment be affirmed with costs.