Peebles v. Tomlinson
Supreme Court of Alabama
Appeal from the Circuit Court of Clarke. Tried before the Hon. John E. Moore. This action was brought by Augustus Tomlinson, as the guardian of Sarah H. Curtis, a lunatic, against ¥m.
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Appeal from the Circuit Court of Clarke. Tried before the Hon. John E. Moore. This action was brought by Augustus Tomlinson, as the guardian of Sarah H. Curtis, a lunatic, against ¥m. H. Peebles, to recover money collected by the defendant from one P. S. McNeill on a note for $994 40, dated April 4, 1848. The defendant pleaded, 1st, non assumpsit; 2d, the statute of limitations of three years; 3d, the statute of limitations of six years; 4th, payment; and, 5th, that plaintiff was not the guardian of Sarah H. Curtis. To the second plea the plaintiff replied that the cause of action was not an…
1Opinion of the Court
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;…
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