Murrah v. Branch Bank at Decatur, 20 Ala. 392

20 Ala. 392 | Ala. | 1852

GOLDTHWAITE, J.

The record in this case shows a "bill of exceptions signed and sealed in term time. There are 'also additional exceptions, which appear to have been taken on the trial of the same cause, but which are entirely discon•nected from the first bill-of exceptions, are without date, and with nothing on tbeir face to indicate at wbat time they were signed. The case of Kitchens v. Moye, 17 Ala. Rep. 143, is conclusive to the point, that the record must show affirmatively, that the bill of exceptions was signed before the adjournment of court, or within ten days thereafter, by the written consent of the counsel engaged in the cause. On the authority of the case cited, the exceptions objected to cannot be considered as any part of the record, and the motion of the defendant in error to strike them off must prevail.

The remaining question is, whether the court below erred in allowing the evidence set out in the first bill of exceptions, to go to the jury; and this, in our opinion presents simply the inquiry as to the effect of a third person giving his note in consideration of the extinguishment of the debt of another. The evidence admitted, shows that Gamble & Murrah were indebted to the Branch Bank at Decatur, and it also tends to show that the note, on which the proceedings in the court below were instituted, was given by the plaintiff in error for the purpose of extinguishing this debt, and that in reality it was applied to that object. The check which was proved to have been signed by the plaintiff in error, but which is not set out in the record, on account of its loss, it is fair to presume, directed the proceeds of the note to be passed to'the credit of Murrah & Gamble, or to be applied to the debt owing by them. This was in all respects a perfectly legitimate transaction, and by it, as expressed in the face of the note, the plaintiff in error was indebted to the defendant in error, and the evidence offered, instead of contradicting the specific consideration stated in the note, tends to confirm it. It is unnecessary to inquire into the admissibility of the other portions of the evidence, as the objection was taken to the testimony as a whole, and under the repeated decisions of this court, unless all the evidence offered was inadmissible, the court was not bound to exclude any part. Litchfield v. Falconer, 2 Ala. Rep. 280; Hatchett v. Gibson, 13 Ala. Rep. 587; Melton v. Troutman, 15 Ala. Rep. 535.

In relation to the question attempted to be raised, as to the Bank exceeding its power, by the taking of more than six per cent, interest on the note, we are satisfied that it cannot, on the record as it now stands, be presented in this court. It could have been made in the court below, either by a demurrer to the evidence, or by requesting the necessary instruction to the jury; but is certainly not involved in the consideration of the admissibility of the evidence, as disclosed by the bill of exceptions.

Let the judgment be affirmed.