Huff v. Cox

2 Ala. 310 | Ala. | 1841

COLLIER, C. J.

1. Although it is said that it was proved, that the defendant in execution, brought with him from South Carolina, and still retained in his possession the slaves in question; yet we are to understand, that the witness only testified that such was the fact; whether it was shown satisfactorily to the jury, was a matter of which they were the exclusive judges. The Court however, in its charge, assumes that this evidence is indisputable; for the jury are informed, that it was sufficient to authorise a verdict in favor of the plaintiff in execution, unless it was over-balanced by the proof adduced by the claimant. It is the acknowledged office of the Judge, to expound the law, and the jury are to ascertain the facts; and if the Judge refer his duties to the jury, or undertake to perform theirs, in either case he commits an error. (Pistole v. Street, Ad’mx., 5 Por. Rep. 64.) In the óase before us the Judge determined a fact adverse to the plaintiff in error, and in so doing, as we have shown, invaded the prerogative of the jury.

2. In Carlton et al. v. King, 1 Stewart & Porter’s Rep. 472; it was decided that the claimant of property could not require the plaintiff to produce the judgment on which his execution issued, nor could he be permitted to point out defects in it, though there might be such as would show it to be an insufficient warrant for an execution. This case has been recognized as authority by several later decisions, and is decisive of the second question raised. (See also, Collingsworth v Horn, 4 Stew. & Por. Rep. 237; Perkins & Elliott v. Mayfield, 5 Por. Rep. 182.)

3. In Dozier v. Joyce, 8 Por. Rep. 303, a will was certified by the Ordinary of the district of Edgefield, in the State of South Carolina, in terms very similar, and certainly not more comprehensive than those employed by the Ordinary in the present case. There the Court said, “ the act of Congress, of seventeen hundred and ninety, providing for the authentication of the records and judicial proceedings of the Courts of any State, by the attestation of the clerk, with the seal of the Court annexed, together with the certificate of the presiding Judge, must be held to reach such a case as this, or it is not provided for, as the act of eighteen hundred and four, for the authentication of records not judicial proceedings, will not apply. The decision on the probate of a will, is a judicial proceeding, and the Court n which it is registered a Court of record; and if the presiding Judge is also clerk of the Court, he must have authority to attest the records of his Court in both capacities. This has been done in this case.” ' This reasoning is conclusive to show that the will was sufficiently authenticated, and should consequently have been admitted as evidence.

4. The transcript of the will from the records of the clerk of the Court of Cherokee, was clearly inadmissable, In the first place, We have no statute authorising the registry of a will proved in another State, consequently its registration here, would not impart to the original will authenticity when offered as evidence in our Courts, unless it was first proved here, with a view to execute its provisions. In the second place, the paper offered was a copy from the record, which was itself .a copy, and for this cause it was also objectionable.

For the error in the first and third questions considered, the judgment of the Circuit Court is reversed and the cause remanded.