Hawkins' Adm'r v. Dumas , 41 Ala. 391 ( 1867 )

BYRD, J.

The bill of exceptions purports to set out all the evidence introduced on the trial. The appellant, not relying on previous possession, but upon title, as the ground of a recovery, introduced in evidence the will of Azariah Dumas, and attempted to show title under it. But it does not appear that the will was ever probated, as required by law, nor that Azariah Dumas is dead, unless we were to infer it from the certificate of the judge of probate, to the transcript introduced in evidence. The appellant cannot claim title to personal proparty through a will in this condition.—Johnson v. Glasscock, 2 Ala. 218; Shepherd v. Nabors, 6 Ala. 631. The court, therefore, did not err in the charge given.

3. The appellant reserved an exception upon the admissibility of evidence, touching the value of the slaves sued for. As the appellant was not, under the testimony, entitled to recover the slaves, the evidence admitted was, at most, error without injury.

The judgment of the court below is affirmed.

Judge, J., not sitting.