Doe ex dem. School Commissioners v. Godwin , 30 Ala. 242 ( 1857 )

STONE, J.

Under tbe act of 1837, it is provided that certificates of purchase, issued by school commissioners, and acknowledged according to its provisions, “shall operate as a title, upon condition only that tbe whole payments [of tbe purchase-money] shall be made.” — Olay’s Digest, 525, § 21. If tbe defendant below bad complied with tbe terms of tbis statute, be bad a good and valid defense.

It is argued here, that as tbe bill of exceptions does not inform us when tbe payment was made — whether before or after tliis suit was brought — the charge of the court cannot be maintained. This would probably be the case, if we were authorized to presume the' bill of exceptions contains all the evidence. But there is nothing in the bill of exceptions to justify such presumption.

In the case of Barnes v. Mobley, 21 Ala. 238, our predecessors said, “It is impossible for this court to say that the circuit court erred, in charging the jury that, if they believed all the proof, the plaintiff was not entitled to recover; for the simple reason, that all the proof is not set out in the bill of exceptions.”

The following propositions may be regarded as settled definitively in this court:

1. That bills of exceptions are to be construed most strongly against the exceptor.

2. That error will not be presumed, but must be affirmatively shown.

3. That when an affirmative charge is given, which is correct as an abstract legal proposition, this court will presume there was evidence to justify the charge, unless it affirmatively appear to the contrary. — Morris v. The State, 25 Ala. 57; McElhaney v. The State, 24 Ala. 71; Gaines v. Harvin, 19 Ala. 491; Bryan v. Ware, 20 Ala. 687; Sammis v. Johnson, 22 Ala. 690; Furlow v. Merrill, 23 Ala. 705.

We feel bound to presume, in lavor of the correctness of the charge of the circuit court, that there was evidence to justify it.

The judgment is affirmed.

Bice, C. J., not sitting.