
    Case 37 — PETITION ORDINARY
    November 17.
    Brashears v. Frazier.
    APPEAR PROM LETCHER CIRCUIT COURT.
    1. Circuit Clerks — Sufficiency op Certificate to Transcript.— The certificate of a circuit clerk to a transcript filed in this court on appeal, that “the foregoing is a true copy in substance of the records of this office” in a particular action,' is insufficient.
    2. Practice in Court op Appeals. — The presumption- is, where ¡there 'is no bill of exceptions or evidence, that a peremptory instruction given by the lower court was proper.
    KNOTT & EDELEN ant> WILLIAM J. HENDRICK for appellant.
    1.If thei certificate of the clerk is thought to be technically insufficient, the motion to dismiss" should be overruled and appellant given leave to have the clerk correct the certificate.
    D. D. FIELDS and DISHMAN & HAYS por appellee.
    1. The certificate of the clerk to the transcript does' not come within the requirements of the Civil Code, secs. 737-738-739.
    2. There being no hill of exceptions in the record, the only question for thte court to determine is as to the sufficiency of the pleadings.
    3. Under the provisions of the General Statutes, chap. 38, art. IS, execution sales, if fraudulent, may be set aside either on. motion or by petition in equity; appellant has not sought to avail himself of either of these remedies.
    JOHN L. SCOTT & SON on same side.
    1. In the absence of a bill of exceptions this court must presume that there was evidence sufficient to sustain the verdict of the jury, and the same rule prevails where the lower court gives peremptory instruction.
   JUDGE GUFFY

delivered the opinion op the court.

The appellee insists that this appeal should be dismissed on account of the failure of -the clerk to properly authenticate the transcript filed, and it is further insisted that no bill of exceptions has been filed, hence the law presumes that the peremptory instruction given to the jury was proper, and that the pleadings support the verdict.

The certificate of the clerk is as follows;

“I, John A. Craft, clerk of the Letcher Circuit Court, do hereby certify that the foregoing is a true copy in substance of the records of this office in the action of J. H. Frazier v. Robt. O. Brashears. Given under my hand, clerk of said court, this May 5, 1894. .JOHN A. CRAFT,

Clerk Letcher Circuit Court.”

The clerk being only a ministerial officer, it is his duty to correctly copy the records of the court and certify to the same as being a correct copy. He can not properly determine as to the substance of the records, but must copy same as made, and as they appear in the record in order to properly present the transcript for appeal. In addition to this there seems to be no bill of exceptions or evidence, hence the presumption of law is that the peremptory instruction was proper, and as the pleadings support the judgment, the judgment appealed from must be and is therefore affirmed.  