The defendants had the full benefit under .pleas which remained in the case of all the matters set up in pleas 7, 8, 9 and 10 ; and the action of the court in sustaining a demurrer to and motion to strike the pleas last referred to, if erroneous — which we do not consider — worked no injury to the appellants.
The only objection to which the question put to the witness Sallie Corley, viz., “How long had your father been in possession of the land described in the complaint, using it and claiming it as his own?” was open, was not made to it, and would not avail appellants if it had been. The question is leading; but it was not objected to on that ground, and had that ground been assigned, the action of the court upon the objection would not be revisable here ; it being in the discretion of trial courts to allow or disallow leading interrogatories.
The question propounded to the witness Ed. Taylor, as to who paid taxes on the land for the year 1881, was not answered. Hence, defendants could not have been prejudiced by the ruling of the court against their objection to it.
The issue being whether plaintiffs or defendants were in the actual adverse possession of the land at the time of the alleged trespasses, the paper purporting to be a tax deed from the State Auditor to the ancestor of plaintiffs was properly received in evidence as tending to show *586a claim or color of right and title on their part; and this whether the paper was or was not a valid conveyance of the land.
The evidence as to possession being conflicting, and there being evidence going to show acts of trespass by the defendants, if the plaintiffs were found by the jury to have been at the time in possession, the court was clearly right in refusing to give the affirmative charge requested by the defendants.
If it be conceded that there was no evidence of a trespass by Ed. Taylor except under the 5th count, it does not follow at all that the general charge requested in his favor should have been given. On the case conceded, he would have been entitled to an affirmative instruction on the other counts of the complaint, but not upon the whole complaint as he requested.
Defendants’ motion in arrest of judgment which proceeded on the ground that the evidence on the trial, as to the amount of damages sustained by plaintiffs, and the statement of plaintiffs’ counsel, that only .actual damages were claimed, showed that plaintiffs’ claim was less than the minimum jurisdiction, as to amount, of the court, was properly overruled. Motions in arrest of judgment must be based upon matters of record in the cause, and the matters upon which this motion was rested are clearly not of record.
Defendants also made a motion for a new trial. This is obviously not a case for granting a new trial on the ground that the verdict was contrary to the evidence, since the evidence was directly conflicting on the issue of fact involved, and it was fairly open to the jury to find either way upon that issue.-Cobb v. Malone & Collins, 92 Ala. 630. And having found this issue in favor of the plaintiffs, as they had the right to do, it is equally clear that there is no ground to say that the verdict was contrary to the law.
The other grounds of the motion are that the court erred in certain rulings on the admissibility of testimony, in giving certain instructions to the j ury and in refusing certain'other instructions asked by the defendants. So far as these alleged rulings and acts of the court, or rather such of them as are shown by the bill of exceptions, we have already held that the court was not in error in respect of them. As to all such alleged rulings *587and acts as are not shown by the bill of exceptions, there is no evidence that they were ever made or done. The fact that the motion, which is incorporated in the bill of exceptions, assumes, or even alleges, that the court excluded certain evidence, or gave or refused this charge or that, does not show, for any purpose, that the court so ruled or acted. Error, therefore, can not be affirmed of the court’s denial of the motion for a new trial.
Affirmed.