FOSTER vs. HIGHTOWER

FOSTER vs. HIGHTOWER. [ACTION ON PROMISSORY NOTE, BY ASSIGNEE AGAINST MAKER.] 1. Construction of bill of exceptions. — Where the bill of exceptions, after setting out the evidence and the charge of the court, concludes in the usual form, “and this is signed and sealed as plaintiff’s bill of exceptions,” this is not sufficient to show that an exception was reserved to the charge of the court. Appeal from tbe Circuit Court of Bandolph. - Tried before tbe Hon. Bobert Dougherty. This action was brought by Joshua Hightower, against Charles Foster; was founded on a promissory note executed by tbe defendant, payable to one Benjamin Jowers, and endorsed by him to tbe plaintiff; and was commenced on tbe 7th January, 1858. There is a bill of exceptions in tbe record, wbicb states tbe evidence adduced on tbe trial, and tbe charge of the court to tbe jury; but it does not show tbat any exception was reserved to tbe rulings of tbe court on tbe trial, except as may be inferred from tbe concluding words, wbicb immediately follow tbe charge to tbe jury — “and tbis is signed and sealed as plaintiff’s bill of exceptions,” &c. Tbe appeal is sued out by tbe defendant, who assigns as error the charge of the court to the jury. J. Falkner, for appellant. J. T. Heelin, contra. [MAJORITY — BYBD, J.] BYBD, J. It does not appear that the defendant excepted to the charge of the court. The words at the conclusion, “ and this is signed and sealed as plaintiff’s.bill of exceptions,” are not equivalent to an exception, though we might infer that the word “plaintiff’s” is a clerical mistake for “ defendant’s.” On the authority of Milton v. Rowland, (11 Ala. 732,) Mahoney v. O’Leary, (34 Ala. 97,) and other cases decided by this court, the judgment of the court below is affirmed.