The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1909-01-21

laratiOn containing more than one
count when a general demurrer is in
teTposed to certain specified counts;
in taking up for consideration any
one OF such counts, if it should be
found to contain in itself repugnant
and inconsistent allegations in mat
tiers of substance, it viii be held bad,
but the rule is confined to single
counts and is not applicable to two
or more counts. one of which may
contain allegations which are incon-
sistent with and Tepugnant to allega-
tons in another count.
/. II count in a declartiOn is so
faulty and defective as to practically
fall 10 state cause of action, no
error Is committed in sustaining a de-
mUrrer thereto, even though such
count may also be open to attack by
a proper motion under section 1888
of the general statutes of 1906.
= In passing upon an assignment
based upon the exclusion of evidence,
If the action of the trial court in ok
Guiding such evidence be found to be
correct, It does not matter that err
roneOuS reasons may have been given
for its exclusion. as II is with the
ruling, and not with the reasons given
therefor, that an appellate court is
concerned.
8. Objections are properly sustain
ed to question propOunded to a wit
ness which seeks TO elicit testimony
which would be violative of the famiI-
lar rule that DaTOl evidence is not
admissible TO vary. alter or contradict
a written instrument
10. No error is committed by the
trial court in directing verdict for
the defendant after the conclusion of
the testimony adduced by the plain
tiff. OH motion of the defendant, espe-
cialIy when no objection or protest
was made by the defendant to such
direction. no request was made for
the privilege or right of making an
argument to the jury, no exception
was taken or noted to such direction
at the time but only in the motion for
a new trial, and, assuming as true all
the evidence adduced by the plaintiffs
which was admitted and viewing it
in the most favorable light for the
plaintiffs, a verdict could not have
been properly rendered in their favor
Judgment affirmed.
H l.. Anderson and H. H. Hampton,
for plaintiffs in error.
Axtell & Rinehart, E. J. L'Engle
and c. l.. Sistrunk, for defendants in
error.
G. NJ. Thomas, Allen Thomas, w.
H. Melvin and Bryan s. Scott, as in
dividuaIs and as co-partners as
Thomas Brothers < Company, plain
tiffs in error, VS.. W. H. Price and W.
II. Watson, cO-partners as Price &
Watson. and Francis B. Carter, de-
PENDANTS in error. Jackson county.
Per Curtain.
I. AS the court should refuse to
settle a bill Of exceptions when no
assignment of errors is presented
Herewith. it must be assumed, in the
absence of an affirmative showing to
the contrary, that an assignment or
error was presented to the judge, with
the bill of exceptions. at least where
no exception was taken TO the settle
ment of the bill of exceptions on that
ground.
, The mere fact that a bill of ex-
ceptions duly authenticated contains
no assignment of errors, is not con-
elusive that none was presented tc
the Judge with the bill of exceptions
as required by the rule, even though
the rule also directs that such assign
ment of errors be made a part OF the
bill of exceptions.
, The rule does not require the
transcript to show the service or
CODY of an assignment of errors on
the defendant in error or his counsel.
Grounds of motions are not self
sustaining, and if based upon matters
dehoTs the record, they should be sup
ported by evidence aliunde, or they
will fail
.. The rule directs that the as
signment of errors presented with the