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Settle vs. Alison and others.

one negro, Anaka; and after Cleaton died, he went back to Virginia and then brought Minerya (and Stephen.)

Defendant then proved the sale, and introduced the bill of sale from Reuben M, to John M. Settle, dated 15th December, 1828. The witness first knew. Reuben M. in the forepart of 1818, in the County of Jasper, and at that time Reuben M. had three or four negroes..

Wm. Bradey swore, that he first got acquainted with Reuben M." the 27th or 28th of December, 1817;" in March, 1819, he, Reuben M. lived in Jasper County; he lived in half mile of him, and he“ did not go to Virginia during March, 1818; was not absent from home over a day or two at a time;" and Reuben M. had Minerva in possession when witness first knew him; knovos that Reuben M. had the girl, Minerva, in his possession before March, 1818-the same girl he sold Settle in December, 1828 ; he, also, got acquainted first in Jasper County, in 1817.

Thos. Stocks knew Reuben M. from about 1810 or 1811. to 1816 or '17, when he moved from Green to Jasper ; that during that time he had in his possession a girl named Minerva, and carried her with him ; supposes the girl, at the removal, was ten years old, and Reuben M. controlled said girl as his own; thinks . he came in possession of Minerva about 1815 or 1816.

Flewellen swore that Reuben M. moved to Jasper, last of December, 1817, and then had Minerva; he then had, also, Stephen, Beck, &c.

Plaintiff then, after objection, introduced the sayings of Reuben M. that Minerva (and Stephen) had been given to his wife and children, by her father, and could not be sold for his debts, &c.

Defendants below first objected to the copy of the will, because there was no copy of the probate, but only the Clerk's certificate that it was proved.

2d. That said will is not properly authenticated the certificate purporting to be by the presiding Magistrate of the County, instead of the Probate Court;” which the Court overruled.

3d. Settle ohjected to the receipt of Reuben M. for Minerva, because there was a witness to it, whose handwriting was not proved, and he not introduced, (and it appeared he was not dead.) This was overruled also, and paper let in.

4th, That after defendant below closed, plaintiffs offered the sayings of Reuben M.-which defendant objected to, because the

Settle vs. Alison and others.

witness did not state when the sayings were made, or whether made while Reuben M. was in possession of said negroes.

. 5th. Objected to the charge of the Court, that if they believed any of plaintiffs were barred by Statute of Limitations, they could find against them and for those who were not barred, proportionably.

The Jury found for four plaintiffs, saying nothing about the other four.

Counsel for defendant moved for a new trial, on the foregoing grounds, and because the finding was against the weight of evidence, and against Law and Equity, and that the Jury had not noticed part of the plaintiffs. This 'motion was overruled, and defendant excepted.

On the fourth day after the trial, the Court allowed the Jury to be re-impannelled, to come in and amend their verdict, after the same had been recorded, to which counsel also excepted.

HARMAN and CHAPPELL, for plaintiff in error.

GIBSON, for defendants.

By the Court.-WARNER, J. delivering the opinion.

On the trial of this cause in the Court below, several exceptions were taken to the decision of the Court, which will be noticed in the order the same appear on the record.

[1.] First, the plaintiff below offered in evidence, a paper purporting to be a certified copy of the last will and testament of Thomas Cleaton, of Mecklenburg County, State of Virginia, which was objected to by defendant, on the ground that there was no copy of the probate of the will; which objection was overruled, and the paper admitted in evidence.

The County Clerk of Mecklenburg County certified, that on the 10th day of March, 1818, the last will and testament of Thos. Cleaton, deceased, was presented into Court, and proven by the oaths of the witnesses thereto, 'ånd ordered to be recorded, and that two of the executors qualified, and gave bond and security, as the law directs, and that certificate is granted them, for obtaining probate of said will in due form,

In this State, we think it to be the better practice to have the

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Seule rs. Alison and others. probate of the will in writing, and the same entered on the minutes of the Court of Ordinary; but in the State of Virginia, it appears, that the certificate of the Clerk of the County Court. that the will has been admitted to probate, and record, is sufficient, See Tucker's Blackstone, vol. 1, 418. According to the Act of Congress, of 26th May, 1790, the records and judicial proceedings of the State of Virginia, are to have such faith and credit given to them in the Courts of this State, as they have, by law or usage, in the Courts of that State, from whence the records are taken. Prince, 221. Inasmuch as the certificate of the Clerk, as to the probate of the will, would have been sufficient to have admitted it in evidence in the Courts of Virginia, the Court below did not err in giving the same faith and credit to it, when offered in evidence in the Courts of this State.

[2.] The second objection made to the admissibility of the certified copy of Thomas Cleaton's will is, that the record was not properly authenticated, according to the Act of Congress, of 26th May, 1790. The Act of Congress declares, that “the records and judicial proceedings of the Courts of any State, shall be proved, or admitted in any other Court within the United States, by the attestation of the Clerk, and the seal of the Court annexed, (if there be a seal,) together with the certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the said attestation iş in due form." Prince, 221. Here, the certificate of the Clerk is to a record from the County Court of Mecklenburg County. The certificate of Abram Keen certifies, that he is the presiding Magistrate of the County of Mecklenburg, but does not certify that he is the presiding Magistrate of the County Court of Mecklenburg, from whence the record purports to have come. Now, it is true, that the presiding Magistrate of the County of Mecklenburg may be the presiding Magistrate of the County Court of Mecklenburg County, but the certificate does not affirmatively state that fact; and the Act of Congress, in our judgment, requires that the certificate should be from the presiding Magistrate of the particular Court from which the certified copy of the record is taken, and that fact should affirmatively appear on the face of the certificate. We, therefore, are of the opinion, this objection ought to have been sustained by the Court below.

(3. The third exception taken, is to the admissibility of a re

Settle ve. Alison and others.

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ceipt given by Reuben M. Rainey, to the executors of Thomas Cleaton, for one of the negroes in controversy, dated 16th March, 1818, and witnessed by Edward Travis. It appeared, on the trial, that Travis, the subscribing witness, was living in the State of Tennessee. The defendant objected to the receipt being read in evidence, until its execution was proved, by proving the handwriting of the subscribing witness, it appearing he resided beyond the jurisdiction of the Court. The objection was overřuled, on the ground that the execution of the receipt was sufficiently proved by one witness, who stated," he felt confident that Reuben M. Rainey signed the same, and was also confident that the signature of the witness thereto was genuine.” The rule is well settled, that where a subscribing witness to an instrument resides without the jurisdiction of the Court, the execution of the instrument may be proved, by proving the handwriting of the witness. This is a relaxation of the old rule, which required the subscribing witness to be examined by commission, if living, and residing abroad. Barnes vs. Tromponsky, 7 Term R. 262. Watts vs. Kilburn, 7 Ga. Rep. 356. Although we do not hold that this receipt was admissible in evidence, on the ground that its exccution was duly proved, yet we think it was properly admissible in evidence, on the ground that it was more than thirty years old, and, therefore, its execution need not have been proven at the trial. In admitting written documents in evidence, when more than thirty years old, the Courts do not go altogether upon the presumption, that the subscribing witnesses are presumed to be dead, but they adopt that limit of time, as a rule of practical convenience, beyond which proof of the execution of written instru. ments will not be required, although the subscribing witnesses may be alive. 1 Starkie's Ev. 343. In Doe vs. Burdett, (31 Eng. Com. Law Rep. 18,) Lord Denman said, “ the will is more than thirty years old, and, therefore, proves itself, without calling any witnesses, even were they all alire." . See Doers. Walley, 15 Eng. Com. Law Rep. 150, and Jackson vs. Christman, 4 Wend. Rep. 282, to the same point. The receipt is shown to have come out of the hands of the individual to whom it was originally given, and who was properly entitled to the custody of it, and ought to have been admitted in evidence, without proof of its execution by the subscribing witness, being more than thirty years old. * {4.) The next objection is to the admission of the sayings of

Settle vs. Alison and others.

Reuben M. Rainey, as testified to by Catharine Rainey. This witness-stated, “she had often heard Reuben M. Rainey say, that the slaves, Minerva and Stephen, were brought from Virginia, and were given to Reuben M. Rainey's wife and children, by his wife's father, Thomas Cleaton, and could not be sold for Reuben M. Rainey's debts, or in any other way for said Rainey's benefit,"

It does not appear at what time these declarations of Reuben M. Rainey were made, and in that view of the question, they were clearly illegal, as was ruled by this Court in Carter vs. Buchanan, 3 Kelly, 519, '20. The defendant in error, however, concedes that the declarations of Reuben M. Rainey were improperly admitted in evidence, but insists that there is sufficient evidence, on the part of the plaintiff below, to sustain the verdict, without the evidence of Catharine Rainey. The great question in issue between the parties on the trial was, whether the slave, Minerva, went into the possession of Reuben M. Rainey, as a gift, before the death of Thomas Cleaton, or whether he obtained possession of the slave after the death of Cleaton, under his will ? Upon this point, the testimony is so much in conflict, that it is very difficult to determine on which side is the weight of the evidence.

[5.] The illegal evidence as to the sayings of Reuben M. Rainey, having been admitted by the Court as competent evidence, to the Jury, to determine that issue, might, and in all probability did, decide the question in favor of the plaintiffs. We cannot say, that the Jury were not influenced by the testimony of Catharine Rainey; and where illegal testimony has been admitted, which not only might, but most probably did, influence the mind of the Jury, a new trial ought to be granted. Marquant vs. Webb, 16 Johns. Rep. 89.

[6.] Thenext objection is, to the charge of the Court to the Jury: The defendant relied on the Statute of Limitations, and the Court charged the Jury, that they could find a verdict in favor of such of the plaintiff's as they might believe not to be barred by the Statute of Limitations, and against those whom they might believe to be, barred by the Statute. It appears from the record, that some of the plaintiffs had been of age long enough to be barred by the Statute, and that some of them had not been of age a sufficient period of time, for the Statute to operate ás a bar. The

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