Horton v. Hagler's executor, 8 N.C. 48, 1 Hawks 48 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 48, 1 Hawks 48

Horton v. Hagler’s executor.

From Wilkes,

When the Cleric of a Court of Record certifies that an instrument has been “ duly proved” in that Court, it is implied that every thing required by law has been proved — upon the maxim, Res judicata pro teñíate accipitur.

But when he also states, hoto it was proved, and omits a material circumstance required by the law, the certificate of due proof is disregarded; because, by the certificate itself, it appears it was not duly proved.

Held, therefore, that where a Clerk of a County Court certified that a bill of sale for a slave had been " duly proved by the oath of c. H. “ who proved the hand-writing of B. H. the subscribing- witness, arid “ of J. H. the maker of it,” the bill of sale is not evidence, for the want of proof of the death or removal of B. H.

Tliis was an action of assumpsit brought upon a warranty made by the Defendant, upon a contract of sale of a slave, Peter, to the Plaintiff; and was tried before Mangum, Judge, at March Term, l'-20, To shew the sale and the warranty, the Plaintiff offered in evidence a bill of sale of the slave from the testator, John Hagler, to the Plaintiff, witnessed by one Benjamin Hagler, who was dead at the timo of the trial. On the bill of sale, was a certificate endorsed by the Clerk of the County Court of Wilkes, “ That the execution thereof had been duly proved in that <e Court by the oath of D. H. who proved the hand-writing “ and signature thereto of B. Hagler, and of the testator, “ J. Hagler.” And upon that proof, it had been registered and certified accordingly. The Court suffered ‘the Plaintiff to read his bill of sale to the Jury, without further proof, although it was objected to by the Defendant; and the Jury, without other evidence of the contract, found a verdict for the Plaintiff upon the general issue.

A motion for a new trial, upon the ground that the bill of sale ought not to Inn e been received in evidence, was overruled, and judgment given for the Plaintiff; from which the Defendant appealed.

The Chiee-Jüsttoe

delivered the opinion of the Court:

If the Clerk had certified only, that the bill of sale was duly proved, it must have been understood that the death of the subscribing’ witness was proved, and that his handwriting was likewise established in a proper manner. So much respect is paid to the acts of a Court of Record, that they must be received as regular, when so certified by the proper officer, lies judicata pro vertíate accipitur. But when the certificate enters into detail, and goes on to shew in what manner the deed has been proved, 1hc enquiry into the legality of the proof is open to the Court. In this case, what is meant by being “ duly proved” is explained by the statement, that D. H. swore to the signature of Benjamin Mugler, the subscribing witness ; and that shews that the paper was not duly proved, since the death or absence from the state of B. Mugler was not proved. It may be, that he was then alive and in the court-yard $ and, therefore, the bill of sale was not proved by the best evidence the nature of the case admits of. That B. Hagler was dead at the time of the trial below is stated in the record ; but there is no proof that lie was dead or bad removed, when the hill of sale was proved.

There must, therefore, be a new trial.