MAYNARD & Co. v. JOHNSON, 4 Ala. 116

GOLDTHWAITE, J. 1. We have several times hold that it is the duty of a Court, when a proper charge is requested, to respond directly to the request; and that the refusal to give an appropriate charge will not be justified by afterwards giving one equally free from error. In the present case the defendants requested the Court to instruct the jury, that the giving of the note by the plaintiff, to the. defendants, created the presumption of a settlement of accounts up to the date of the note, and that this presumption, if unexplained, was evidence of such a settlement.

We think the Court should have given this charge, as it is strictly proper, under the facts disclosed in evidence. 2. After giving the charge as requested, it would have been proper to explain to the jury that the giving the note raised the presumption of settlement of all outstanding accounts between the parties; but that this was a presumption which could properly be rebutted by other facts and circumstances.

The charge given in this case was less extensive than the one which the defendants asked for, and waived the question of any presumption arising out of the giving of the note by stating to the jury that it was not conclusive.- It is not important to consider the refusal to give the other charge requested, as the conclusion that there is error is already attained. Let the judgment be reversed and the cause remanded.