Pigots v. Davis, 10 N.C. 25, 3 Hawks 25 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 25, 3 Hawks 25

Pigots v. Davis.

From Carteret.

This Court cannot, upon a record of the Circuit Court of the United . States, offered in evidence, inquire into the fact, whether the judgment of the Circuit Court was regularly entered up, or-whether th.e subsequent proceedings, had thereon, were regular.

An execution, when returned, becomes part of the record, and a certified copy thereof is evidence.

Detinue, for a negro.

The negro belonged to George Bell, who died in 1794, after duly'making his will by which lie bequeathed the negro in dispute to his infant grandchildren ; the executors of the will assented to the legacy, and the negro was delivered to the guardian of the infants. A judgment was obtained by the administrator of Samuel Cornell, in the Circuit Court of the United States, for the district of North-Carolina, against the executors of George Bell, for the sum of §2011 60 ; the executors in this suit pleaded plene adminislravit? ami tli ’ plea was found for them, on their shewing that they h id paid the legacy to the legatees. A sci. fa. issued to tin; guardian of the legatees, to shew cause why (¡,e 1'laintifls should not have judgment and execution against the legatees, of the assets that came to their hands. In November, 1799, there was a judgment rendered on the sci. fa. and, at the same term, the Plaintiff, (Cornell’s administrator,) sued out a writ of fi. fa. on the judgment," returnable to the next term of the Circuit Court, and the Marshall, thereupon, levied on and sold the negro in dispute, to the present Plaintiff. The Defendant derived his title from the legatees, under the will of George Bell.

There was a verdict for the Plaintiff, subject to the opinion of the Court, upon the legality of the execution, which issued before the expiration of twelve months, from the time judgment was rendered in favour of Cornell’s administrator. The Court was of opinion that the execution was legal, and gave judgment accordingly; whereupon, Defendant appealed.

Before judgment was signed, the Defendant moved for a new trial, because the original execution, in favour of Cornell’s administrator, was not produced, but a copy, certified under seal of Court, by the Clerk of the United States Court; this was refused by the Court, and now,

Gaston, for the Appellant,

contended,

1st, That the certified copy of the execution was not evidence, and cited 1 Phil. Ev. 292, 294.

2d, That the Circuit Court of the United States, had no authority to pronounce this judgment, and, therefore, the sá. fa. issuing thereon, was a nullity, (Jlcl of 1789, oh. 308,) and the execution, reciting the sci. fa. was, on its face, illegal; and he referred to Whilty v. Black, (2 Hawks, 182,) and Doe on demise of Bryan v. Brown, decided by the late Supreme Court, at July Term, 1818.

Ruffin and Ilaivks, for the Appellee,

answered,

1st, That no objection was taken at the trial to the copy of the execution ,* it was, therefore, admitted by consent, and if improper evidence, it is do ground for a new trial, because it does not affect the merits; but it was proper evidence,* executions, when returned, arc, by our law, parts of the record, and certified copies of records of our Court, are the only evidence which another Court can get, unless the original record be removed into a Superior Court for proceedings directly, on it.

This, moreover, was a record of a Court o,f the United States, offered in evidence in a State Court, and, therefore, the Constitution and act of Congress directly apply.

2d, The objection' as to the issuing of the sci. fa. was raised in argument by Mr. Ruffin, in the case of Oxley v. Mizlc — (3 Murph. R. 250.) There the execution was not stayed, for the record did not shew the Defendant to have been an infant, but the process was served on him as a person of full age, and as such he pleaded. To this objection the Chief-Jus tice refers in that part of his opinion, which treats of tiie irregularity of the execution, wherein he declares that the purchaser shall have a good title. As to the judgment, rendered by the Circuit Court, having jurisdiction of the subject matter, it cannot be attacked in this incidental manner ,* it is valid until reversed by writ of error.

Hall, Judge.

Whether the scire facias issued regularly in this, case, or whether the judgment was regularly entered up upon it, this Court cannot enquire. While it continues in force, it is binding upon the parties ; it can only be. reversed by a writ of error ; it has been pronounced by a Court as stable, and as strongly constituted by the Constitution and laws of the country, as the Court we sit in, and it is a Court top of competent jurisdiction.

As to the second objection, it may be observed, that when an execution is returned, it becomes part of the i' . - 1 , record of the suit, and a copy of it, when properly authenticated, may as properly be given in evidence as a copy of any other record. I therefore think the rule for a new trial should be discharged.

And of this opinion was the rest of the Court.