
    5792.
    Perry v. Kennon.
    Decided July 2, 1915.
    Trover; from city court of Dublin — Judge Hicks. March 14, 1914.
    
      Davis & Sturgis, for plaintiff in error.
    
      Burch <& Burch, contra.
   Russell, C. J.

1. The charge of the court in this case was full and fair, and the excerpts to which exception is taken are not materially erroneous.

2. Since the authority of a commercial notary public depends upon an order of the judge of the superior court appointing, him, proof that no such order appears upon the minutes of the superior court of the county in which an alleged commercial notary public purported to act may establish, prima facie at least, the fact that he was without authority in that county. Where a writing has been admitted to record upon the probate of such an alleged officer, and it is proved that the minutes fail to show an order appointing him, the burden is upon the party offering the writing to show that the alleged officer was legally appointed.

(a) Even though no special issue was submitted, and the paper in question had been admitted in evidence, it was proper to permit proof that the person upon whose probate it had been admitted to record was in fact not qualified officially to attest the writing, since such proof would tend to show that the paper had been improperly admitted to record. The instruction of the trial judge on this subject was not erroneous.

3. The evidence authorized the jury to find for the plaintiff, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.  