Fickling v. Brewer

38 Ala. 685

Opinion

STONE, J.

The assignments of error raise no question on the sufficiency of the complaint, the admissibility of evidence, or the judgment rendered in this cause. Hence, what we say in this opinion is not to be construed as committing us upon any of these propositions. See Rodgers v. Brazeale, 34 Ala. 512,

The only error assigned is, that “there is manifest error in this, that the court erred as is shown in the bill of exceptions.” The bill of exceptions shows only two matters to which the defendant excepted— 1st, the court refused to charge the jury, at the instance of the defendant, “ that a note having been given to Skipper by the husband of defendant, and received by him, and transferred to plaintiff, the account was merged in the note, and plaintiff could not recover on an account for what was the consideration of the note.” The giving of a note, without more, is not a satisfaction of the pre-existing indebtedness. — McCreary v. Carrington, 35 Ala. 700 ; Sharp v. Burns, ib. 653; Mooring v. Ins. Co., 27 Ala. 258; Dorrance v. Jones, ib. 630.

[2.] The second charge asked and refused was, “ that if the jury believed the evidence, they must find for the defendant.” The record does not inform us that it contains all the evidence; and we cannot presume either the existence or absence of evidence, as a reason for putting the circuit court in error. The presumptions are precisely the other way; and hence we must presume, if necessary, that there was evidence, not set out, which justified the court in withholding the instruction prayed for. — School Commissioners v. Godwin, 30 Ala. 242; English v. McNair, 34 Ala. 40; Shepherd’s Digest, 572, §§ 145-146.

The assignment of error presents no ground for reversal, and the judgment of the circuit court is affirmed.