Poindexter's executors v. Barker, 3 N.C. 173, 2 Hayw. 173 (1802)

April 1802 · North Carolina Superior Court

3 N.C. 173, 2 Hayw. 173

Poindexter's executors vs. George Barker.

.v-jpHS plaintiff-proved the mother of the Negro slave in qustion -*■_ was entailed on Poindexter 5 that an execution issued against him ; that the sheriff sold the mother for the life of Poindexter; that Poindexter died ; and it was moved on the part of the defendant, that'the executors should be nonsuited; the issue in tail, and hot the executors being the persons who had the property.— And of this opinion was Judge Taylor. Then it was moved, on the part of the plaintiff, to introduce a law of the state of Virgin Bh*,‘where the Negroes were entailed, to shew, that notwithstanding the entail, the property was in the executors, on the death of the tenant in tail; and the printed book of the Virginia, lavra was offered. It was objected to, because a_ better evidence would bé a copy of the law, 'certified by the proper officer who had the custody of- the original acts;, and it was insisted upon, that this objection corresponded with the universal practice hi this suate for many years past. ’ Judge Taylor was of opinion,, that the book ivas receivable ; saying', the' constitution oi the United States declared that the acts and judicial, proceedings of every state should be received in all the other states. Upon this, an examination of the constitution and of the law of Congress made in pursuance thereof was had : the law directed that acts of the legislature should be certified under the great seal. Judge Taylor said he must be bound by it; and nonsuited the plaintiff. Mr. Norwoodmoved to have the nonsuit set aside, on the ground of surprize; saying, he had understood ever since the. case of Aletea and Taylor that the printed book was evidence, and re h-ü beer* admitted in that case. A rule to shew cause was grant-eel; and now at this day the cause coining on to be argued — -* Judge Taylor desired the counsel to read the case in 1 Dalias 462, where this question had been examined in die General Court of Pennsylvania,

Taylor, Judge.

If a Judge gives an opinion and afterwards discovers a mistake, he should rectify it as early as possible, If 3. nonsuit has taken place in consequence of it, he should set it aside. I think the act of congress was not intended to prescribe on? mode only of authentication in exclusion of all others; such as were before used in the courts of this state, may be still used. It is better therefore to submit this case to further consideration. At the next term another Judge will be here, and the same question may be made before him as is now agitated. It seems to me the same evidence as would be sufficient, were this causa on trial in Virginia, should he received here. The argument opposed to this is, that no imposition could take place in Virginia, because there the Judges know what the law is ; but that bore a spurious book might be offered, or a law which is repealed, T he answer is s should such an attempt be made, it is almost impossible but that the imposition attempted would be suspected befoi e it could be effected, and the proceedings would be suspended till further enquiry could be made. The bare possibility of such a mischief is no way comparable to that of sending the parties to Virginia in every case to get a certified copy whenever a law of Virginia is to be produced ; when at the same time the court has every reasonable assurance that the law is contained in the printed book, it being printed by the public printer, and being a counterpart of the books used in Virginia, to shew their laws.

Nonsuit set asid.Cc