
    MURRAH vs. THE BRANCH BANK AT DECATUR.
    1. When the record contains a hill of exceptions signed and sealed in term time, and also other exceptions which are without date, with nothing on their face to to show at what time they were taken, and entirely disconnected from the first ■ bill of exceptions, but purporting to have been taken “ during the further progress of the cause,” the latter will be rejected as forming no part of the record.
    2. In a suit by the Bank against the maker on a promissory note purporting on its face to have been given for the amount of the maker’s indebtedness to the Bank, evidence is admissible to show that the agreement which constituted the consideration of the note was the extinguishment of the debt of another person to the Bank, and that the proceeds were so applied.
    3. When evidence is objected to as a whole, the court is not bound to exclude any part of it unless the whole of it is inadmissible.
    4. The question whether the Bank exceeded its powers, by taking more than legal interest in the note sued on, cannot be raised for the first time in the Appellate Court, when the only error assigned relates to the admission, against the objection of the plaintiff in error, of certain evidence touching the consideration of the note.
    Ebror to the Circuit Court of Morgan.
    Tried before tbe Hon. S. C. Posey.
    This was a motion by tbe Bank for judgment against tbe plaintiff in error, on a promissory note of which the following is a copy:
    “We, Amos B. Murrah, as principal, and Wm. H. Sale and Murrah & Gamble, as securities, jointly and severally promise to pay to .the Branch of the Bank of the State of Alabama at Decatur, two thousand dollars, payable as follows : twenty-five per cent, on the 30th day of June, 1838 ; thirty-seven and a half per cent, on the 30th day of June, 1839; and the balance on the 30th day of June, 1840; with interest on the whole, also payable at said times, at the rate of eight per cent, per annum from this date; being an amount the said Amos B. Murrah is indebted to the said Branch Bank, time for the payment of which is thus extended, under the provisions of the second section of an act of the General Assembly, passed at the called session of 1837, entitled,” &c., “Dated Limestone county, September 27, 1837,” (signed) “A. B. Murrah, principal, Wm. H. Sale, security, Murrah & Gamble, security."
    
      The defendant proved at tbe trial, by an officer of tbe Bank, tbat be bad made a full examination of tbe books of tbe Bank, and tbat be could not find any record whatever tbat said Amos B. Murrab owed said Bank anything at tbe date of said note. Defendant also proved tbat be was not a member of tbe firm of Murrab & Gamble. Tbe plaintiff then offered to prove, tbat said note was taken by said Bank, and applied to tbe payment of debts due to it by Murrab & Gamble, and tbat a memorandum on tbe note, in these words: “Proceeds of this note to be applied to tbe payment of Murrab & Gamble’s bill,” was in tbe bandwriting of James K. Murrab, one of tbe members of tbe firm of Murrab & Gamble. Plaintiff also introduced a check, (which is not set out in tbe record on account of its loss,) signed by defendant, and proved tbat tbe body of it was in tbe bandwriting of an officer of tbe Bank; tbat be did this by tbe direction of said James K. Murrah, who banded him said check; tbat so far as said officer knew, said A. B. Murrab never knew of tbe application of said note, or of tbe manner in which said check was filled up, or tbat be ever assented thereto afterwards; and tbat it was tbe custom of said Bank, established by about twenty-four cases of tbe kind, to take notes of this description, and apply them to tbe payment of tbe debts of other persons, when tbe makers owed tbe Bank nothing. To tbe introduction of all which evidence defendant objected, but bis objection was overruled, and be excepted.
    The foregoing facts are set out in a bill of exceptions, which was signed and sealed by tbe presiding Judge in term time. Tbe record also contains an additional exception, which is in these words: “During tbe further progress of this cause, tbe court charged tbe jury, tbat if they believed tbe note sued on was given in extension of tbe debt of Mur-rab & Gamble, then defendant was liable, although be did not himself owe tbe Bank anything. To which opinion of tbe court tbe defendant excepts, and now here tenders this, bis bill of exceptions, which be prays may be signed, sealed and made a part of tbe record, which is done.” (Signed) “S. C. Posey.” (Seal.) A motion was made by tbe defendant in error, to strike tbe second exceptions from tbe record.
    
      James RobiNSON, for plaintiff in error.
    The proof offered and objected to should have been excluded by the court for two reasons:
    1. Because the consideration of the note, as shown by the proof, was different from that stated in the note. Parol proof is not received to contradict the consideration stated in a written instrument. Wood v. Stegar, 5 Porter 498; Johnson v. Ballow, 2 Porter 29; 10 Ala. 548; Murphy v. Branch Bank at Mobile, 16 Ala. 94; 2 Phil. Ev. 1460; 3 Stark. Ev. 1004.
    2. Because the act of the Bank in taking this note was illegal and void. At the execution of the note A. B. Murrah owed the Bank no debt; and as he did not owe the Bank, it had no power to take a three years’ note and charge an interest at the rate of eight per cent. Clay’s Digest 94, § 3, 90, § 4.
    The Bank is the creature of the statute, and can exercise no powers except those expressly given it by the statute; and being so, if it exceed the powers so given, its whole act is illegal and void. Springfield Bank v. Merrick, 14 Mass. 322; Thalimer v. Brinkerhoof, 20 John. 397; Beaty v. Knowler, 4 Peters 168; Bates & Hines v. Bank of Alabama, 2 Ala. 459; Bank of United States v. Dandridge, 12 Wheat. 64; Bank of Augusta v. Earle, 13 Peters 587; New York Insurance Company v. Ely, 5 Conn. 561. Then in charging eight per cent, the Bank exceeded its power.
    Again: under the act of 1337, Clay’s Digest 112, § 51, the Bank could take a three years’ note only in extension of a pre-existing debt. It could not, by one and the same transaction, create a debt and extend it to three years. And that act authorized it to take the note of the debtor himself in extension of the debt; but did not give it the power to take in extension the note of any other person than the debtor.
    Now it is wholly immaterial whether this proof was offered under the notice or under the declaration.' Por if offered in either way the objections apply.
    These views are sufficient to show that the court erred, in giving the charge to the jury as well as in admitting the proof.
    It requires neither authority or arguments to show that the court erred in admitting the proof as to the custom.
    
      But it may be said that although the note is void, yet under the common count they have a right to recover for money lent. This can not be sustained, because the proof shows that A. B. Murrah did not in fact borrow or receive from the Bank one dollar. And unless he did receive the money, the Bank can not recover under the common count. Life and Fire Insurance Company v. Mechanics Fire Insurance Company of New York, 7 "Wend. 31.
    Cooper, Brickell and JoNES, for the defendant.
    1. It is conceded, that a contract to pay the debt of another, must be in writing, and for a valid consideration. The note in this case removes all controversy about the writing. If it did not, the promise could be sustained as an original promise, on the consideration disclosed, the debt of Murrah & Cam-bie having been paid by this note. Leonard v. Yredenberg, 8 Johns. 30 ; Anderson v. Davis, 9 Yermont, 136.
    2. As to the consideration, any injury or detriment to the party to whom the promise is made, or any benefit to the party promising, is a sufficient consideration to support a contract. Foster' v. Fuller, 6 Mass. 59 ; Overstreet v. Phillips, 1 Littell, 121; Bundle v. Harris, 6 Yerger, 508. The taking of this note by the Bank, in payment, and consequently, in discharge of the original debt of Murrah & Cambie, was such an injury or detriment to the Bank, as would constitute a valid consideration. Leonard v. Yredenburg, and Anderson v. Davis, cited above.
    Was the parol evidence as to the consideration of this contract, admissible under the language of this note? The indebtedness spoken of is a present., not a past indebtedness, just such an indebtedness as was imposed on the plaintiff in error, by his assumption of, and the Bank’s discharge of the debt of Murrah & Cambie. There is, then, no conflict between the writing and the parol evidence. The terms used may have been applied to an indebtedness previously existing, or to an indebtedness that moment created. Where the terms of a written instrument are equivocal, or apply indifferently to more than one subject-matter, parol evidence is admissible to point out the true subject matter. 1 Creenl. on Evidence 524; 1 Barbour 525; 3 Johns. 319; 1 Paige 272; 4 Barn. & Adol. 787; 7 Carr. & Payne 761; 5 Pick. 35; 2 Ala. 284; 2 Leigb 256; Cowen & Hill’s Notes (Part 2) 1590. Again, parol evidence is admissible to show a consideration not mentioned in a deed, or writing, or a further consideration, if not inconsistent or incompatible witb that mentioned. 5 Stew. & Port. 420.
    ■ But it is said, that tbe language of tbe note adopts tbe provisions of the statute recited, and requires proof of an indebtedness existing at tbe time of its passage. We reply, that such was tbe debt of Murrah & Cambie, for which this note was taken. Tbe statute only intended to require a division, an extension, of tbe debts due tbe Bank, and this was one. It does not grant indulgence to one man in preference to another, but simply requires tbe Bank to extend tbe time of tbe payment of tbe debts due it. This power tbe Bank bad before tbe passage of tbe Act. Tbe Bank could at any time have compounded, released, or extended tbe time of tbe payment of any debt due it. Or, if tbe Bank found it necessary for tbe security of any debt, or for any other reason which it might deem sufficient, it bad tbe right, tbe power, to substitute tbe note of one person for that of another. The power to deal in bills of exchange, to discount notes, &c., included within it tbe right of doing everything that may be necessary to collect such notes as may be discounted, or such bills of exchange as may be purchased. Without this right, the power of discounting, &c., would be an injury instead of a benefit.
    But we contend, that this note was taken under tbe Act of 1887, and that it was perfectly competent for the Bank so to do. Tbe consideration for which tbe note was given was a debt which could be extended under tbe Act of 1837. Tbe privilege of extension is an incident to tbe debt, and why it should not pass to any person willing to assume tbe indebtedness we cannot see. Tbe person assuming the indebtedness secures either for himself, or tbe debtor, tbe benefit which tbe statute intended to confer by an extension of tbe debt, and the Bank sustains all the injury that it could sustain, if tbe debt had been extended by the debtor. Tbe time of payment is extended, thus relieving the debtor from being forced by suit to make immediate payment. The Bank is forced to wait,’ until each instalment falls dne, before it can collect its debts. And we insist, that tbe Bank bad tbis right, as there is nothing in the statute’inhibiting it, and that the Bank had the right under its charter to extend the debts due it.
    But it is insisted, that the note is void, because more than six per cent, interest is reserved 'by it to the Bank. To this we reply, that this was not a discount, such as is contemplated by the section of the charter inhibiting the Bank from taking more than six per cent. This was an extension under the Act of 1837 of a debt, upon which, when extended, the Bank had the right to charge eight per cent, interest. Clay’s Digest 112, §51. •
    But again, if we are wrong in the positions stated above, the contract is nevertheless obligatory. The act in question and other kindred statutes are directory,' intended not as restrictions upon the powers of the Bank, but as guides to its officers. The Bank officers may have transcended their dirties, not their powers, but this cannot furnish any defence to those, who through this means, have possessed themselves of the Bank property. 2 Ala. Rep. 462.
    The evidence admitted was objected to as a whole. Now, if any portion of the testimony was admissible, this court will not reverse, though another portion may have been inadmissible. For it was not the duty of the .court below to discriminate, separating the admissible from the inadmissible part. It is also a rule, that when a party excepts to the admission of testimony, he must set out in his bill of exceptions the testimony admitted, or the Appellate Court will not interpose. Cowen & Hill’s Notes 792. The check introduced, and referred to in the bill of exceptions, is not set out. How can this court say that the check was inadmissible ? If it was admissible, the court below did not err. Must not this court presume that the check was inadmissible before the judgment of the court below can be reversed ?
   GOLDTHWAITE, J.

The record in this case shows a "bill of exceptions signed and sealed in term time. There are 'also additional exceptions, which appear to have been taken on the trial of the same cause, but which are entirely discon•nected from the first bill-of exceptions, are without date, and with nothing on tbeir face to indicate at wbat time they were signed. The case of Kitchens v. Moye, 17 Ala. Rep. 143, is conclusive to the point, that the record must show affirmatively, that the bill of exceptions was signed before the adjournment of court, or within ten days thereafter, by the written consent of the counsel engaged in the cause. On the authority of the case cited, the exceptions objected to cannot be considered as any part of the record, and the motion of the defendant in error to strike them off must prevail.

The remaining question is, whether the court below erred in allowing the evidence set out in the first bill of exceptions, to go to the jury; and this, in our opinion presents simply the inquiry as to the effect of a third person giving his note in consideration of the extinguishment of the debt of another. The evidence admitted, shows that Gamble & Murrah were indebted to the Branch Bank at Decatur, and it also tends to show that the note, on which the proceedings in the court below were instituted, was given by the plaintiff in error for the purpose of extinguishing this debt, and that in reality it was applied to that object. The check which was proved to have been signed by the plaintiff in error, but which is not set out in the record, on account of its loss, it is fair to presume, directed the proceeds of the note to be passed to'the credit of Murrah & Gamble, or to be applied to the debt owing by them. This was in all respects a perfectly legitimate transaction, and by it, as expressed in the face of the note, the plaintiff in error was indebted to the defendant in error, and the evidence offered, instead of contradicting the specific consideration stated in the note, tends to confirm it. It is unnecessary to inquire into the admissibility of the other portions of the evidence, as the objection was taken to the testimony as a whole, and under the repeated decisions of this court, unless all the evidence offered was inadmissible, the court was not bound to exclude any part. Litchfield v. Falconer, 2 Ala. Rep. 280; Hatchett v. Gibson, 13 Ala. Rep. 587; Melton v. Troutman, 15 Ala. Rep. 535.

In relation to the question attempted to be raised, as to the Bank exceeding its power, by the taking of more than six per cent, interest on the note, we are satisfied that it cannot, on the record as it now stands, be presented in this court. It could have been made in the court below, either by a demurrer to the evidence, or by requesting the necessary instruction to the jury; but is certainly not involved in the consideration of the admissibility of the evidence, as disclosed by the bill of exceptions.

Let the judgment be affirmed.  