Dailey v. Fountain

35 Ala. 26

Opinions

STONE, J.

The true boundary between the plaintiff and defendant was one of the controverted questions in this cause. “ Evidence of the field-notes of the survey of the section of land in which the fence in controversy is situated, and the evidence of a survey made according to said field-notes by a county surveyor of Monroe county, and evidence that the plaintiff had notice of the survey so made by the county surveyor of Monroe county,” if unobjectionable as to the medium through which these facts were sought to be established, were certainly pertinent and material, and should have been received for the purpose of showing defendant’s title,and the actual boundary of his land, and that said fence was upon his land. Whether’ such testimony, when received, would have been sufficient, is not for our determination. — Code, § 818.

[2.] As we understand the bill of exceptions, no question can be here made on the instruments of proof. The offer was to prove certain facts, and we are not informed in what manner they were sought to be proved. The court refused to receive the evidence. "We think the bill of exceptions admits of no other construction, than that the objection was to the facts sought to be proved, and not that the evidence was in form secondary. Thus construed, the evidence was admissible under section 818 of the Code.

Reversed and remanded.