31 Ala. 59 | Ala. | 1857
— 1. We pass by the question, whether the interest of Thomas C. Taylor was not released by some one 'or more of the several releases. He was one of the contestants, a party to the suit, and liable for costs; and, therefore, an incompetent witness, irrespective of his interest to defeat the establishment of the will. — Deslonde & James v. Harrington’s Heirs, 29 Ala. 92 ; Gilbert v. Gilbert, 22 Ala. 529; Code, § 1649.
On the margin of one of the charges asked by the appellant, the presiding judge wrote “refused,” and on the face of the same charge, and near the bottom of it, he wrote “given.” The bill of exceptions states, that the court gave that charge in part, and refused it in part. The charge asserts the two propositions, that certain acts of Kelly would estop him from offering the will for probate, and that he being estopped, the will could not he admitted to probate on his application. The appellant was not entitled to have either one of those propositions given as a charge to the jury; and if either was given, he obtained so much more than he ought to have had. "We cannot reverse the case for the refusal of the court to give or refuse the charge as asked, when there is no exception for that omission, and it affirmatively appears that the appellant was not prejudiced thereby.
The judgment of the court below is affirmed.