Dowdle v. . Stalcup ( 1842 )

Daniel, J.

This was an action of Trover, tried in Ma- Con Superior Court. The plaintiff deduced his title to the in controversy, under a purchase at a Sheriff's sale of the property of one B. Brittain. He produced a transcript a rec01'd of a judgment obtained in - Court of Burke against Brittain, and an execution issued on the same to the Sheriff of Macon, under which execution he purchased the horse. The plaintiff obtained a verdict. The defendant moved for a new trial, because the court permitted the transcript oí the record of the execution to be read in evidence, when it did not appear by the same that there had been a seal of Burke Court affixed to the original execution. The court overruled the motion, and, we think, very properly. The transcript of the record of Burke was proper evidence; the seal to the original execution, (when the execution is proved by a transcript,) must •prima facie be presumed to have been affixed, as the record, from which the transcript is taken, never contains a fac simile of the seal; and, besides, had there been such an objection as that insisted on by the defendant, it was incumbent on him to make it upon the trial. It is too late for him to raise it upon a motion for a new trial.

Pee Cukxam. Judgment affirmed.