Opinion
August Term, 1850.
1. 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.
2. 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 according to the act of Congress, cannot be received in evidence.
APPEAL from the Superior Court of Law of ASHE, at Spring Term, 1850, Dick, J., presiding.
Craige for plaintiffs.
Thompson and McCorkle for defendants.
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 unques 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 13 July, 1847, setting forth "that the foregoing is a true transcript of the records of the said (297) County Court at August Term, 1845," There was also annexed a certificate of "James King, chairman," etc., made 13 July, 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." 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 nonsuit and appealed.
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. and 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, clerk — 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.
PER CURIAM. Judgment affirmed.
Cited: Kinseley v. Rumbough, 96 N.C. 196.
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