Peebles v. Tomlinson

33 Ala. 336

Opinion

WALKER, J.—

The plaintiff had no right to recover from the defendant the money collected by the latter from McNeill, if the note was the defendant’s property. The witness McNeill testified, that the note was transferred or assigned by the plaintiff’s ward to the defendant. This evidence being before the jury, it was improper for the court to assume that the note was not the defendant’s property; and, consequently, it was -erroneous for the court to instruct the jury to find for the plaintiff if they believed the evidence.—City Council of Montgomery v. Gilmer & Taylor, at the present term; Shepherd’s Digest, 459, § 13.

[2.] The probate judge could, under his official seal, certify the contents of the records of his court; and the copy of the record, so attested, would be evidence. But he cannot prove, by his certificate, a fact evidenced by the record. The certificate of the probate judge of Wilcox county, admitted in evidence, was clearly incompetent, and should have been excluded.

The judgment of the court below is reversed, and the cause is remanded.