Jones v. Zollicoffer, 9 N.C. 492, 2 Hawks 492 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 492, 2 Hawks 492

IN EQUITY.

Jones v. Zollicoffer.

From Halifax.

Oil the trial of issues in Equity, the copy of a copy of a will, was read in evidence. The Court refused to grant a new trial of the issue, because, since the first trial, the original properly authenticated, had been found, and corresponded with the paper read in evidence ; and the Court perceived, beyond a doubt, that, as respected the evidence obtained from the paper read, the Jury was not misled.

On the tiial of the issues in this cause, a paper was offered in evidence as a copy of William Jones’s will, with the following certificates of probate :

“ Halifax County, June Court, 1759. — The within will was in open Court, exhibited by the executor within named, and proved by the oath of Augustine Bate, one of the subscribing witnesses thereto ; and at the same time, the executors aforesaid, were qualified according te law, which, on motion, is ordered to be recorded.

A true copy. Teste, JAS. MONTFQRT, Clerk.35

Halifax County, February Sessions, 1793. — Then this paper, purport, ing to be a copy of the last will and testament of William Jones, deceased, was exhibited in open Court, and it appearing to the Court that the same was a certified copy, and that the original and the record thereof, had been lost or destroyed, during the late war, therefore it was ordered by the said Court, that the said certified copy be recorded and filed away among the papers belonging to the Clerk’s office. ' Witness,

I.. LONG, Clerk.”

The paper was objected to, but the Court permitted it to be read, reserving the point. And when afterwards Drew, moved for a decree on the finding, Ruffin opposed it, and moved that the verdict be set aside and a new trial awarded, because of the introduction of the paper in evidence. Gaston then stated that the Secretary of State was in Court with the original will, which had been found in his office since the trial, and that on comparison, it agreed with the copy which bad-been read in evidence. He then argued that where the Court was satisfied from the circumstances, that the result must, on a now trial, be the same with that already attained, a new trial was useless and would be refused — (Duncan v. Dubois, 3 Johns. Cases, 125 — Pemberton v. Pemberton, 13 Ves. 290, SIS — • Watson v. ltelafield, 2 Caine’s Rep. — 2 Johns. Rep. 46— 5 JJass. Rep. 10)

The opinion of the Court was pronounced by

Henderson, Judge.

The evidence (the copy of a copy) was very clearly inadmissible ; but since the motion has been made for a, new trial, the original will, properly authenticated, has been produced, by which it appears that the copy was correct. The Legislature having made an olfice copy of a will, and a fortiori, the original itself properly authenticated, conclusive evidence whore fraud has not been suggested, and none in due time has been suggested here, in fact, none at all at any time, we are thereby assured, beyond a judicial doubt, that the J ory was not misled by ‘the evidence which was offered to them on that point. Were the evidence by which the former evidence was shewn, in point of fact correct, not conclusive upen the parties, a new trial should he granted, because we ought not to preclude them from litigating before the Jury the truth of that, evidence j but here if is a vain and useless thing, the evidence now offered being conclusive, that the Jury was not misled.

The rule for a new trial of the issue must therefore be discharged.