Alabama Construction Co. v. Wagnon Bros.

TYSON, J. The point urged against the admission of certain entries on the pages of an account book offered in evidence by plaintiffs and admitted against the objection of defendant is, that it Avas not made to a-ppear by the witness Avho made the- entries, that he kneAV them to be correct at the time he made them. This, Ave think, is wholly untenable. -The AAÚtness testified that he made the entries at the time upon the book himself and that they were correct. Furthermore, his testimony sIioavs that he had personal knowledge of the matters making up the account, at- the time the service Avas rendered, and at the time the entries were made. The other assignments of error complain of the refusal of certain Avritteu charges requested by defendant. These, charges appear in the bill of exceptions, but it does not there appear whether they were given 391 or refused. Section 3328 of the 'Code requires instructions to a jury requested hy either party to be in writing and declares that they must be given or refused in the terms in which they are written; and that “it is the duty of the judge to write ‘Given’ or ‘Refused/ as the case may be, on the document and sign his name thereto,” etc. — Barnewall v. Murrell, 108 Ala. 370. It is tnie that in another part , of the record, .they are shown to have been ‘Refused” in the manner required by the statute, but this can avail nothing since they can be presented here only by being incorporated in the bill of exceptions (Nuckols v. The State, 109 Ala. 2), and, of course, their refusal must be shown in that wav. We cannot presume their refusal as it is essential that the bill of exceptions affirmatively show that fact. Affirmed.