William G. Anderson and another v. Sina Anderson, 23 Tex. 639

Wheeler, C. J. It cannot he denied, that there was much evidence, tending to an opposite conclusion, from that at which the jury have arrived. But still, there was evidence in support of the verdict, which, if the witnesses were entitled to credit, was amply sufficient to warrant the jury in their finding. The competency of the witnesses for the claimant, is not questioned, and the jury were the exclusive judges of their credibility.

Although we may not be well satisfied of the correctness of the finding of the jury, upon the evidence, we cannot reverse the judgment, refusing a new trial, on account of the credit which they gave to the principal witnesses for the claimant. Their opportunities, for judging of the credibility of the witnesses, were superior to those which we possess, and it was their peculiar and exclusive province, to decide upon that question. The court did not err, in sustaining exceptions to the petition, seeking to join the judgment-debtor with the claimant in this proceeding.

That would have been to change the character of the suit, and the attitude which the claimant was entitled to occupy upon the record, without her consent. BTor did the court err, in refusing to instruct the jury, upon the law of Alabama. There was no evidence of that law, and it is well settled, that the court will'not, judicially, take notice of the law of another state. The ground mainly relied on, for a reversal of the judgment, is, that the court refused to permit the plaintiffs to prove, that the common law was in force in the state of Alabama.

But to this, it must be answered, that it does not appear by the record, that such evidence was offered, otherwise than by inference, from the statement in the bill of exceptions, that the plaintiffs “ excepted to the ruling of the court, in refusing to hear evidence,” &c. It is not stated, that any such evidence was offered; and we have repeatedly decided, that the bill of exceptions must show the particular ruling complained of. It ought distinctly to appear, that the evidence was proposed at the proper time, and that the court refused to admit it.

But if we would be warranted by the bill of exceptions, in revising the supposed ruling, it is an answer to this supposed ground of error, that it has not been assigned as error. It must therefore, be deemed to have been waived, and cannot afford a ground for reversing the judgment. Judgment affirmed.