James McKay, Plaintiff in error, vs. Christopher L. Friebele, Defendant in error, 8 Fla. 21

DUPONT, J., delivered the opinion of the Court. This was an action of assumpsit, and is brought up to this Court by writ of error from the Circuit Court of Hills-borough county. The declaration contains three counts. The first is a special count, setting out at large the instrument of writing out of which the cause of action is alleged to have arisen. The others are for money advanced and an account stated. There was a demurrer to the whole declaration, but the grounds of demurrer assigned point mainly to the first count.

Judgment was given for the plaintiff upon the demurrer, and this ruling is assigned by the appellant, who was the defendant in the Court below, as the first ground of error. In the view which we have taken of this assignment of error, it becomes necessary to consider the various grounds of exception taken to the special count. If it shall be found that either one of the common counts was sufficient, then the demurrer, being to the whole declaration, the Court was bound to give judgment thereon for the plaintiff.

This is a well established principle, upon which there is no controversy in the books, and it has been repeatedly so ruled by this Court. 1 Chitty on Pleading, 664; Archbold on Civil Pleading, 309; 1 Saunders, 286; 1 Wilson R., 248; Barbee vs. The J. & A. Plank Road Co., 6 Fla. R., 262. Amongst the numerous exceptions specially set forth as grounds of demurrer, there are only three which are ap„ plicable to the two common counts of the declaration. These are the 4th, 5th and 6th. The fourth and fifth exceptions are respectively set forth thus: “The breach is in debt, and the action in assumpsit.

There is no promise made by James McKay to pay the plaintiff.” We have looked into the declaration with reference to these two objections, and, after a careful examination, are constrained to say, that in these respects the declaration is entirely faultless. The breach and promise, as set forth in the declaration, are full and positive, and conform most critically to the precedents in assumpsit, as prescribed by Mr. Chitty. The remaining exception applicable to the common counts, and indeed to the whole declaration, is that there is a variance between the praecipe and declaration in the amount of damages.

The damages stated in the praecipe is $249 50, and that in the declaration is $250. We do not think that this objection is such as would lay the foundation for a writ of error. It is laid down in the books, that a writ of error lies, where a person is. aggrieved by an error in the foundation, proceedings, judgment or execution of a suit, provided it be an error in substance, not aided at common law, or by some of the statutes of jeofail. (1 Arch.

Prac., 208.) That the objection might have been obviated in the Court below by a motion so to amend the declaration as to make the damages conform to the damages stated in the praecipe, there can be no doubt; and this Court has already ruled, in the case of “Campbell vs. Chaffee,” (6 Fla. Reports, 724,) that where an amendment in matter of form is allowable, the Court will give the party entitled to the amendment the full benefit of it, as though it had been actually made. ¥e conclude, then, that the common counts were unobjectionable, and, that being the case, the judgment overruling the demurrer was correct.

The next and last error assigned is in these words, viz: “The Court erred in not giving the second and third instructions asked for by the appellant to the jury.” The instructions referred to are as follows: 2d. That a verbal promise to Wxn. II. McDonald by James McKay, that he would pay to O. L. Fribele a debt which Fitch & Blanchard owed to him, Friebele, is not binding on McKay.” “ 3rd.

That unless it has been proven that James McKay accepted the assignment on which this suit is brought in writing, then they must find for the defendant.” In order to determine the correctness and appropriateness of an instruction- which may be given to the jury, resort must always be had to the evidence upon which the instruction is based. That evidence, whether parol or documentary, is to be found only in the “ bill of exceptions,” whose peculiar office it is to give the incidents occurring in the progress of the trial, from the joining of the issue to the rendition of the verdict.

It may be laid down as a general rule, subject to but one exception, that wherever the error complained of is predicated upon the instructions of the Court below, the whole evidence, or, at least, so much thereof as forms the basis of the instruction, must appear in the “bill of exceptions” accompanying .the record of the cause. The exception alluded to is where the instruction is manifestly without the limits of the issue joined bétween the parties, and is likely to mislead the jury in making up their verdict.

In such case, no reference to the evidence can be of any avail in determining the correctness of the instructions, and the Court may pronounce upon it even in the absence of the bill of exceptions, provided it be properly attested by the signature of the judge below. The bill of exceptions attached to the record in this cause is manifestly incomplete. It purports to give only the testimony of a witness who was orally examined at the trial, and leaves out the documentary evidence, which is specially referred to in the body of the instructions asked for by the defendant and refused by the Court.

In this .state of case, it would be highly improper for this Court to undertake to determine that the judge below had erred, for such conclusion could only amount to a conjecture. The correct rule upon this subject is, that nothing will be left to conjecture; and if the bill be so loosely drawn as to leave the matter in doubt, the proceeding below will be sustained, notwithstanding there may be some reason to suspect that error might have intervened.

Accordingly it is held,"that if the evidence on which the instructions to the jury were intended to bear, be not presented by the bill, the Court will not adjudge such instructions erroneous. The nature, office and indispensability of the bill of exceptions, in a common law suit, has been so frequently discussed by this Court, that any further effort to impress its importance upon the bar would seem to be a work of supererrogation. We will only further commend to the attention of the profession the views of this Court heretofore expressed in the cases of Dorman vs. The ex’ors of Francis Bichard, (1 Fla.

Reports, 297,) and Proctor vs. Hart, (5 Fla. R., 465.) Let the judgment be affirmed with costs.