Shown's Exr's v. Barr, 33 N.C. 296, 11 Ired. 296 (1850)

Aug. 1850 · Supreme Court of North Carolina

33 N.C. 296, 11 Ired. 296

LEONARD SHOWN’S EXR’S. vs. JOSEPH BARR & AL.

That the plaintiff, who sues as executor, is not an executor, is a plea in bar, and the defendant may plead it with any other bar.

The certificate of a presiding magistrate of a court of record in another State, which merely sets forth that A. B., who attests the transcript, was the clerk of that court, but does not declare that “ his attestation is in due form of law,” not being aceording to the Aot of Congress, cannot be received. in evidence.

Appeal from the Superior Court of Law of Ash© County, at the Spring Term 1850, his Honor Judge Dick presiding.

The plaintiffs declare, as the executors of Leonard Shown deceased, on a bond to their testator; and the pleas are non est factum and ne ungues executor. After proving the bond, the counsel for the plaintiffs insisted, that they were thereon entitled to a verdict, forasmuch as the plea of non est factum overruled the other plea.— But the Court held otherwise. Then, in support of the issue on the latter plea on their part, the plaintiffs offered in evidence a transcript of the proceedings in the County Court of Johnson County in Tennessee, prior to this suit, purporting to be an order of the Court, that letters testamentary issue to the plaintiffs, “ who were appointed executors in Leonard Shown’s will,” and to state, that the plaintiffs took the oath, prescribed by law for executors. To it was annexed an attestation by Alfred T. Wilson, as clerk of the Court, under his hand and seal of the Court, and dated July 13th 1847, setting forth, “ that the foregoing is a true transcript of the records of the said County Court at August Term 1845.” There was also annexed a certificate of “James King, chairman, &c.,” made July 13th 1848, “that the within is a true copy of the record of this Court at August Term 1845 and that it is taken in due form of law, and that Alfred T. Wilson was then acting clerk of the Court, duly elected, and that the seal annexed is the seal of this Court.’5’ Upon objection on the part of the defendants, that the transcript was not duly certified, the Court rejected it; and the plaintiffs submitted to a non-suit and appealed.

Craig, for the plaintiffs.

Thompson and Me Córlele, for the defendants.

Ruffht, 0. J.

The Court considers the decision on both points to be correct. That the plaintiff is not executor or administrator is a plea in bar. 3 Chit. Pl. 942. Stokes v. Bate, 5 B. & C. 491. Consequently, under the statute, the defendant was entitled to plead it with any other bar. Without noticing any objection to the judicial proceedings in Tennessee, as constituting letters testamentary, had the transcript been received in evidence, it is sufficient to say, that the objection, made at the trial,, to its reception, is decisive. The Act of Congress requires, that the presiding magistrate of the Court shall certify, that the person, who attests the transcript, is the clerk of the Court, and that “the attestation is in due form instead of which, the certificate here is, that Wilson was then, in August 1845, elerk — and' it is utterly silent as to the attestation. As the transcript was not proved in any other manner, nor authenticated in conformity to the Act of Congress, it was properly rejected; and the judgment must be affirmed.

Psr Curiam. Judgment affirmed.