Mitchell, tbe plaintiff below, and promisee in tbe instrument sued, being under cross-examination as a witness, was asked by the defendant’s counsel, to whom tbe instrument sued on belonged, and answered that it belonged to himself and his father. “ His attorney objected to the question and moved to exclude tbe answer. Tbe court sustained tbe objection to tbe question and excluded it; and tbe defendant excepted to tbe decision of tbe court excluding tbe question of tbe plaintiff,” (should it not be, of tbe defendant?) Tbe recital seems to-be particular in setting forth that tbe question only was excluded and not tbe answer to it, in wbicb case there would appear to be no cause for exception on behalf of defendant. But if tbe exclusion bad been of tbe answer, there would have been no error. Only tbe general issue was pleaded. And under tbe Revised Code, § 2639, “ where tbe defendant relies on a denial of tbe cause of action as set forth by the plaintiff, be may plead tbe general issue: and in all other cases, the defendant must briefly plead specially tbe matter of defense, and may by leave of the court plead more pleas than one.” Tbis, we have held, limits tbe operation of tbe general issue within a narrower scope than that allowed to it in some cases according to tbe common law practice. — Petty v. Dill, 53 Ala. Tbe only use defendant could have made of tbe testimony in question, was that it tended to show that plaintiff bad parted with tbe right to one-balf of tbe money due by tbe instrument sued on, and was not therefore entitled, under § 2523, to maintain tbe action. But, in order to enable defendant to make proof of such a defense, be should have briefly pleaded it specially. And although plaintiff does not sue in tbe character of assignee, endorsee or transferree, and so does not come within the letter of tbe 29th of tbe rules of pratice in tbe circuit courts, (Revised Code, p. 822,) its intention and spirit require that such plea shall be verified by oath. — See Broadhead v. Jones, 39 Ala. 96.
But if it bad been specially pleaded, tbis defense would not have been good. Tbis section 2524 has caused much perplexity in practice. But whenever a party has tbe legal title,, if be is a party to whom payment can legally be made, *424and who can legally discharge the debtor, the action may be brought in his name, although the money, when collected, is not for his use.— Yerby v. Sexton, 48 Ala. 311. Now, in this case, plaintiff is the promisee named in the instrument and the owner of one-half interest in it, and has it .in his possession. He is entitled to receive payment, and can give an acquittance to the debtor, and may consequently maintain the suit against him.
It is not shown that the charges ashed by defendant below and refused by the court, were in writing, as the statute requires. We do not, therefore, examine them to see whether they were correct or not, as expositions of the law of the case.
Whether the charges given by the court of its own motion, were correct or not, depended upon the evidence; and it has been decided that when this is the case the judgment of the court below “will not be reversed on error unless all the evidence is made part of the record.” — 1 Brick. Dig. 775, § 29, and the numerous cases there referred to. The statement of the rule should, however, be qualified, so as to make it conclude — unless all the evidence, relating to the question raised by the exception, be made a part of the record.
So, “ an affirmative charge, correct as a legal proposition under any state of facts that could, have existed in the case, will be presumed to have been authorized by the evidence, unless the contrary affirmatively appears.” — 1 Brick. Dig. 337, § 23, referring to Tempe v. State, 40 Ala. 350, and other cases.
In the cause before us, the bill of exceptions does not show that all the evidence pertinent to the question presented, is therein reported. Eor aught appearing to the contrary, there may have been testimony given showing a change by consent, of the terms of the written contracts that were introduced, and wherewith every part of the main charge was in harmony, or by which it was authorized.
In the absence of any recital by which it affirmatively appears that there was no other evidence than that set forth in regard to the contracts between Bradley and defendant about the timber, a majority of the court decide that the rules established by the authorities above referred to, require us to affirm the judgment of the court below.
In this application of these rules, I do not concur. It seems to me that the charge of the court should be construed in connection with the copious and uncontradicted evidence set forth in the bill of exceptions; and that thus construing it, the charge is erroneous in denying any effect to the condition by which defendant’s acceptance was qualified; and that if there was any evidence that would obviate this con*425elusion, it devolved on the judge below, or the counsel for plaintiff, to see that it should appear by the bill of exceptions.
Judgment affirmed.