Thomasson v. Groce. final judgment, the parties are presumed to be in court, and need no further notice of the orders there taken in the cause.-Broxon vs. Broxon, 23 Ala. 684; Code, § 2268. See, also, Wilkerson vs. Branham, 5 Ala. 608. But in this case the appellant appeared and resisted the motion, and necessarily had notice of it. We are informed by the bill of exceptions, that after the cause had been submitted to the jury, the plaintiff, to sustain the cause of action set out in the complaint, introduced the affidavit of John W. Bishop, describing the note sued on, and stating that it had not been paid or otherwise discharged, but had been lost or destroyed since the commencement of the action. The bill of exceptions states further, that "the plaintiff then introduced a witness, who testified that at the commencement of the suit, the witness was in possession of a paper writing purporting to be a promissory note of the same tenor and effect of the note specified in the complaint, and that the same had been lost since the commencement of the suit, and could not be produced or found on diligent search;" and further, that, "to the introduction of this evidence, the defendant objected separately," &c. There can be no doubt but that preliminary proof of the loss or destruction of a written instrument must be made before evidence of its contents can be received; and that such preliminary proof should be addressed to the court, and not to the jury. But we can not say that this rule was violated in the present case; while we are informed the affidavit was introduced, the bill of exceptions does not state, with sufficient certainty, that it was introduced as evidence to the jury; and we can not place the court in error by intendment on the construction of a bill of exceptions, which must be construed most strongly against the party taking it. Furthermore, we must hold, under the influence of the same rule of construction, that the exception to the ruling of the court as to the evidence introduced, refers to the evidence of the witness which immediately precedes the statement of the exceptions, and does not apply to the introduction of the affidavit; and the admission of the evidence of the witness, was free from error. Vann v. Strong. The charge of the court was no invasion of the province of the jury. The facts were clear and undisputed; and in every such case, the court may well give the law as applicable to the facts, without hypothesis.— Williams v. Shackelford, 16 Ala. 318. Judgment affirmed. VANN vs. STRONG. [ASSUMPSIT RETURN TERM.] 1. Judgment by default at return term; when.-Since the passage of the act of 7th December, 1866, there is no error in rendering a judgment by default at the return term, when the contract upon which the suit is predicated, was made after the 25th July, 1865, and was not a renewal of a contract which existed before that time. APPEAL from Circuit Court of Russell. THIS action was brought by the appellee against the appellant; was commenced on the 23d day of February, 1867, and was founded on a promissory note, made by the defendant on the 22d day of January, 1867. The sheriff made the following return on the summons and complaint: "Executed by serving copy on H. M. Vann, personally, March 26th, 1867." At the spring term, 1867, (May 16th,) there was a judgment by default against the defendant. He gave bond and brought the case to this court by appeal, and assigned the following as errors: 1st. The court erred in rendering judgment at the first term after suit brought. 2d. The return of the sheriff upon the summons and complaint, is insufficient to sustain a judgment by default. Vanu v. Strong. DAVID CLOPTON, for appellant. A. J. WALKER, C. J.-The first section of the act to regulate judicial proceedings, approved 20th February, 1866, (Pamphlet Acts, p. 83,) provided for a return, appearance, and pleading term of the court, in which an action might be brought, thus postponing the judgment to the third term. By the act of 7th December, 1866, (Pamphlet Acts, p. 110,) it is enacted that the provisions of the statute above noticed shall not apply to actions upon contracts made after 25th July, 1865, "except upon renewals of contracts existing prior to said 25th day of July, 1865." This latter act repeals the act of 20th February, 1866, in so far as it affected actions on contracts made after the 25th July, 1865, unless they were renewals of pre-existing contracts. As to contracts of the specified class, the previous law was revived, and judgments under the law thus revived could be taken at the return term. The contract upon which this action was predicated, is a note dated 22d January, 1867, and we can not presume, in the absence of any evidence, that the note was given in renewal of a contract, which existed before the 25th July, 1865. There is, therefore, no disclosure by the record of error in rendering judgment by default at the return term of the summons and complaint. The return of service is sufficient to sustain the judgment. Affirmed. Allen, Administrator, v. Rives, Executrix. ALLEN, ADMINISTRATOR, vs. RIVES, EXECUTRIX. [GUARDIANSHIP-EXECUTION.] 1. Probate court; executions.—Where an execution de bonis testatoris is issued from the probate court, and returned “ no property," the statute does not authorize the issuing of an execution de bonis propriis. APPEAL from the Probate Court of Montgomery. THE appellee's testator, Dr. William H. Rives, in his lifetime, was the guardian of Joseph V. Allen. Dr. Rives died in 1864, without having made final settlement of his guardianship. Mrs. Sarah G. Rives, the appellee, was the executrix of Dr. Rives, and qualified as such. She appeared in the probate court of Montgomery, in 1865, and made settlement of the guardianship of Dr. Rives, and a decree was rendered against her in her representative capacity, in favor of Joseph V. Allen, for $36,000. In 1865, after the rendition of this decree, Joseph V. Allen died, and the decree was revived in favor of Wm. W. Allen, the appellant, as his administrator. Execution was issued on this decree against Mrs. Rives, as executrix, and was returned "no property," and thereupon, on the 20th February, 1867, the probate judge decreed and issued execution against Mrs. Rives, personally. A motion was made to vacate this order and to quash this execution last issued, which was granted. The granting of this motion is assigned as error. ELMORE, KEYES & GUNTER, for appellant. BYRD, J.-1. It is apparent, from the record, that the "judgment" vacated by the decree of the probate court is the entry made on the 20th day of February, 1867, which ordered that an execution issue against the appellee “personally," and the execution which was quashed is the one issued under this order. 42 436 103 604 42 4381 128 411 Maddox v. Broyles. We do not think that the action of the probate court excepted to and appealed from, went beyond the extent indicated. There is no statutory enactments which authorized such an order or such an execution on it, in such a case as this. The court, therefore, committed no error in setting aside such "judgment," and the execution which issued thereon. These being the only questions raised by the assignments of error, the decree of the probate court appealed from must be affirmed. MADDOX v9. BROYLES. [ASSUMPSIT-BILL OF EXCEPTIONS.] 1. Bill of exceptions; what required to make it part of the record.─Where a a bill of exceptions is without date, and the record contains no evidence that it was signed in term time, or within ten days thereafter, pursuant to the written consent of the parties, for that purpose, it cannot be looked to by the appellate court as a part of the record for any purpose. APPEAL from the Circuit Court of Calhoun. THIS was an action on a promissory note given for the purchase-money of a slave brought by appellee against the appellant, and was commenced on 27th February, 1861. The facts in relation to the only point noticed, will appear from the opinion of the court. HEFLIN & FORNEY, for appellant. JUDGE, J.-The supposed bill of exceptions found in the record is without date, and the record contains no evidence that it was signed in term time, or within ten days thereafter, pursuant to the written consent of the parties |