McCLELLAN, J.
This action is prosecuted by the appellant bank against John W. and M. A. Chaffin for the recovery of money which defendants by writing under seal had promised to pay W..F. Smith, the transferror of plaintiff. Defendants pleaded: (1) payment; (2) payment to Smith without notice that the obligations had been by him assigned to plaintiff; (3) payment to Smith shortly after maturity, and that the bonds Avere then surrendered to them by Smith; and (4) payment to Smith Avho had the obligations for collection as agent of the bank, and who upon such payment surrendered the same to defendants. Plaintiff filed replications to said pleas as follows: “1st. That all the said pleas are untrue. 2nd. That said defendants are estopped from setting up said defense in said suit, for that before the bringing of this suit, and after the said notes fell due and after notice from said plaintiff that it held said notes [and after the time defendants claim. to have paid said, no tes], the defendants stated to the plaintiff that they were indebted upon said notes in the sum of $125 or $150, and agreed with the said plaintiff to pay said sum, and that upon the said statement and representation of the said defendants the said plaintiff brought this suit, and plaintiff alleges that said defendants are estopped thereby, and cannot set up the said defense herein sought to be pleaded.” Defendants’ demurrer to this replication Avas sustained by the court; and the propriety of that ruling is challenged by the first assignment of error.
The demurrer was properly sustained. The gist of the replication is that defendants admitted owing a balance on the notes, and promised to pay it. The admission can operate only evidentially as going to show indebtedness, and not by way of estoppel to show the truth of the admission to the contrary notwithstanding. And the promise to pay is not supported by a consideration unless in point of abstract fact there was an unpaid balance; in AAhich latter case the promise would be of no advantage to plaintiff — except, perhaps, as tending to show a balance unpaid on the original obli[256] gation — since recovery could be had on the notes themselves without the new promise. The case of Myers v. Byars, 99 Ala. 484, upon which reliance is put by appellant- in this connection, is clearly distinguishable from- the case at bar. In -that case Myers agreed with Byars and Landrum-to hold $1,000, part of a certain fund, to awmit the decision of the courts as to whether 'that sum belonged to Byars or not, and the action against Myers for the-sum he thus agreed to hold was brought upon his - assurance to Byars that he had received the fund and then had it. Mj^ers was held estopped .to disclaim or deny his receipt - and possession of the fund, on the same principle that a party wdio represents that he has possession of chattels, choses in action or valuable papers, and thereby -induces an action of detinue for their recovery, is held estopped to deny or disclaim such possession. — -Sullivan et al. v. Conway, 81 Ala. 153; Hall v. White, 3 C. & P. 136. But the principle has never been applied to a mere admission of indebtedness.
This cause wTas tried upon oral testimony by the judge of the city court without a jury, as authorized by the statute creating that court. On the. issue of payment vel non• — the only issue in the case — there was much of illegal and incompetent testimony adduced by the defendants against the objection of the plaintiff. If, however, all this had been rejected, and only the legal evidence set forth in the abstract had been introduced, it wTould, though conflicting, be sufficient to support the conclusion of the court, that the notes sued on had been paid, on appeal to this court under the rule for revising such conclusions declared in Woodrow v. Hawving, 105 Ala. 240. And it has been repeatedly, though not uniformly, held, before and since, as also in that adjudication, that, in such case on appeal, the conclusion and judgment below will be referred to the legal evidence before the trial court, and concurred in and affirmed notwithstanding the errors committed in the admission of illegal testimony. — Knife Co. v. Umbenhauer, 107 Ala. 496; Holmes v. State, 108 Ala. 24; Woodrow v. Hawving, supra; Kirksey v. Kirksey, 41 Ala. 626; Gaillard v. Duke, 57 Ala. 619. But, with obvious propriety, it has been decided that the rule just [257] stated does not apply, “when it appears that the judgment Avas based upon illegal evidence, which was received against the objection and exception of the appellant, and Avithout Avhich the judgment cannot be supported.” — Dolan v. Dolan, 89 Ala. 256. On the other hand, in the best considered case Ave recall upon this; subject, the rule itself was expressly and unequivocally repudiated, upon grounds Avhich carry conviction of the correctness of the conclusion reached with them, when we keep in mind that the trial judge in such cases is the jury, that his finding of fact Avill be disturbed only upon such appearance of error therein as Avould justify the setting aside of the Amrdict of a jury, that the appellate court cannot know that such finding was uninfluenced by illegal testimony any more than it can know that testimony improperly allowed to go to a jury Aims without effect upon their Arerdict, and hence in neither case can be assured that the erroneous admission of testimony Avorked no injury to the party objecting; and, finally, that the application of the rule to any case in Avhich the legal evidence is materially conflicting may well lead to and require the affirmance of a judgment which never should have been rendered, "and AAdiich would not have been rendered but for an erroneous view taken by the trial judge as to the admissibility of testimony. The case referred to is Harwood, Admr. v. Harper et al., 54 Ala. 659. There the rule for revising the conclusion of fact reached by a judge sitting without jury is declared to be that a judgment or decree based upon and folloAving such conclusion Avill not be reversed unless' it is manifestly wrong; “and where illegal evidence is admitted, the presumption of injury arises, compelling a reversal, unless the remaining evidence is Avithout conflict, and supports the judgment.” The opinion on this point by Brickebl, C. J., is so clear that we venture to reproduce it here: “The court of probate, on the settlement of administrations, determines questions of fact Avithout the intervention of a jury. Its action upon the whole evidence thus becomes matter of law, reAdsable on error. It has groAvn to be a rule of practice not to reverse its judgment on the facts unless it is manifestly wrong. In Bogle v. Bogle, 23 Ala. 544, it is held, when the whole evidence is set out, its judgment [258] should not he reversed, if, rejecting illegal evidence which may have been received, enough remains to support it. In Mims v. Sturdevant, 23 Ala. 664, the decree of the court was reversed for the single error of admit-, ting incompetent evidence, though it was urged the admission of such evidence worked no. injury, as without it there ivas abundant evidence to support the decree. The court said in answer: lit is true the bill of exceptions sets out much other evidence, but it is not for this court to say that the proof was abundant without the evidence in question, and that, therefore, no injury could arise from the admission of the testimony. The rule of this court is, that it will presume injury from error, unless the record itself rebuts the presumption. This the record, in our opinion, does not do. We may have our own private opinion as to which side has the advantage in the weight of testimony offered, but we cannot pretend to say the court below was not materially influenced by the evidence in question. If the defendants in error would avail themselves of the principle which they invoke, they should show by the bill of exceptions, or in some other manner by the record, that the court below was in no respect influenced by the testimony admitted, or that no injury resulted to the plaintiff in error from the ruling of the court.’. Again it is said, the question was one purely of the competency of the evidence offered. In Kirksey v. Kirksey, 41 Ala. 626, without any reference to former decisions, it was said, in revising the decree of the court of probate on a final settlement, each assignment of error relating only to the admission or rejection of evidence, that fin passing on the merits of the case, we must look at the evidence, as the probate judge should have done; and, consequently, no. injury will result from the admission of illegal or irrelevant testimony.’ The decree of the court of probate, was reversed, and yet the only errors the court could have committed was in the admission or exclusion of evidence. It cannot be doubted that when illegal evidence is admitted, or'legal evidence excluded, on a trial before a jury, the error creates presumption of, injury, compelling a reversal, unless the presumption is repelled. We do not propose now to examine the. yarious decisions on the point, but a criti[259] cal analysis of them will result in this, that the evidence admitted, or rejected, discarding all considerations of its credibility, was merely superfluous or cumulative, when the presumption of injury has been regarded as repelled. The court has never assumed to enter the jury box, and say the jury ought not to have been affected by the evidence admitted, or could not have been by the evidence excluded, if it had been admitted. It is enough that the one or the other could have had a legitimate influence on the jury. How far the jury ought to have been controlled by the one or the other is a matter resting in the honest, enlightened and just discretion of the court, on a motion for a new trial. In our system, the judge is often substituted for the .jury, ancl is made not only to declare the law, but is the trier of facts. From his judgment an appeal lies to this court. The record discloses all the evidence, and that parts of it were admitted, against the party complaining of error. How can tins court pronounce judgment? A judgment should never be reversed here, unless it can be said, in the language of the common law writ of error, there is ‘manifest error to the great prejudice’ of the party appealing. When error is found, the presumption of prejudice or injury arises, and unless it is clearly repelled, a reversal must follow. If illegal evidence has been admitted the judgment must be reversed, unless the remaining evidence is without conflict, and supports the judgment. When there is conflict, and the judgment can be supported only by an inquiry as to the credibility of the witnesses, and the preponderance of evidence, it is better to submit that question anew to the decision of the primary court, which can have t'he witnesses before it, and, observing their demeanor, is the better able to pass on their credibility. Discarding the evidence we have declared inadmissible, that remaining is in painful conflict, and without expressing an opinion as to its weight, we are not prepared to render judgment on it.”
We see no escape from the conclusion enforced by these views. The conclusion, indeed, follows so logically and necessarily from the premises — a trial of an issue of contested fact on oral testimony by a judge sitting as a jury, the admission of illegal evidence, con-[260] dieting legal evidence — that we are impelled to return to and adopt it as embodying the true rule of appellate action in such cases, notwithstanding our reluctance to overrule or modify so many of our own decisions taking a contrary view.
The judgment now before us must be.reversed, therefore, since we have assurance neither that it should nor that it would have been rendered by the judge of the city court had the illegal evidence been rejected by him; and, for the purposes of another trial, we will avert briefly to the court’s rulings upon the admissibility of testimony.
The ledger accounts of Warren F. Smith, deceased, against the defendants and the testimony of E. J. Smith in, relation thereto should have been excluded for the reason that said accounts do not appear prima facie, and are not shown to have been, the original entries made contemporaneously with the sales and payments noted in them. — Dismukes v. Tolson, 67 Ala. 386; Horton v. Miller, 84 Ala. 537.
The notes sued on having been made to Warren F. Smith and by him transferred to the plaintiff as collateral security to a note which plaintiff held against him, his estate, he being dead, was obviously interested on the issue whether they had been paid by the defendants to him in his lifetime, as the agent of the plaintiff, or without notice of the transfer; and under the statute, John W. Chaffin, a party defendant to the action, was incompetent to testify that he had paid the notes to Smith. — Acts, 1890-91, p. 557; Dismukes v. Tolson, 67 Ala. 386.
There was no error in overruling the objections to interrogatories propounded by defendants to the witness Hudson. It is not pretended -that the papers attached to the interrogatories marked “Exhibit A” were not correct copies of the notes in suit and inquired about in the interrogatories; and the purpose of attaching these copies was merely to describe and identify the notes to the witness that he might intelligently testify on the issue of their payment; and with no view of proving the contents of the notes.
For the errors committed by the trial court in the admission of the book accounts and the testimony of E. [261] J. Smith as to the payment of said accounts, of which it was shown he had no knowledge except that derived from the accounts themselves,' and in the admission of the testimony of one of the defendants in reference to payments made to Warren F. Smith in his lifetime, the judgment of the city court must be reversed. The cause will be remanded.
Reversed and remanded.