Settle v. Alison

Feb 15, 1850
No. 35
Reporters:
Before:
Warner

By the Court.

Warner, J.

delivering the opinion.

On thе 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, thе 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, and оrdered 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 bеtter practice to have the *205probate 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 thе 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, thе 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,) togethеr with the certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the said attestation is in due form.” Prince, 221. Here, the certificate of the Clerk is to a record frоm 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 cerlify that he is the presiding Magistrate of the County Court of Meсklenburg, 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 faсe 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*206ceipt given by Reuben M. Rainey, to the executors of Thomas Clcaton, 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 dеfendant 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 objeсtion was overruled, 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 сonfident 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 handivriting of the witness. This is a relaxation of the old rulе, which required the subscribing witness to be examined by commission, if living, and residing abroad. Barnes vs. Tromponshy, 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 execution was duly proved, yet we think it was propеrly 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 bo dead, but they adopt that limit of time, as a rule of practical convenience, beyond which proof of the execution of written instruments 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 itsеlf, without calling any witnesses, even were they all alive.” See Doe vs. 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 оf 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 *207Reuben M. Rainey, as testified to by Catharine Rainey. This witness stated, “ she had оften 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 fоr 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 Cоurt 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 pаrt 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 1 Upon this point, the testimony is so much in conflict, that it is very difficult to dеtermine on which side is the weight of tho 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 triаl 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 plaintiffs 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 tho 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 operatе as a bar. The *208charge of the Court was in accordance with the rule established by this Court, in Thornton vs. Jordan, decided at the last term in Milledgeville, and, therefore, constitutes no ground of error. It appeal’s from the record, that the Jury found a verdict for four of the plaintiffs only, аnd did not find a verdict either for or against the other four — there being eight plaintiffs. ‍‌‌​​‌‌‌​‌​​‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌​‌‌​​​​‌​‌‍The Jury ought to have returned a verdict, under the charge of the Court, in favor of such of the plaintiffs as were not barred by the Statute of Limitations, and against those who were barred by the Statute. A general verdict is a finding, by the Jury, in the terms of the issue or issues referred to them. Tidd’s Practice, 798. One of the issues referred tо the Jury was, as to the right of all the plaintiffs to recover from the defendant, or only a part of them. As this question was submitted to the Jury, it was their duty to have passed upon it. Brocknay vs. Kinney, 2 John. Rep. 211. Van Benthuysen vs. Denett, 4 John. Rep. 214.

[7.] The verdict was imperfeсt, inasmuch as it did not find all the issues that were submitted. It was as much the duty of the Jury to have found against the plaintiffs who were barred by the Statute, as it was to have found in favor of those who were not barred. The Court, however, after this imperfect verdict had been received and recorded, and the Jury dispersed, four days thereafter, permitted the Jury to re-assemble, and state what they intended to find by their verdict, and to amend it accordingly. To allow the Jury, after their verdict had been received and recorded, and they discharged from the farther consideration of the cause, and mingled with the parties, the witnesses, and their fellow-citizens generally; ascertained, perhaps, the wishes of one of the parties, the intention of the witnesses, or the state of public opinion in relation to their verdict — I say, to allow the verdict to be amended, under such circumstances, according to what the Jury might then state it was their intention to find, (such intention not appeаring on the face of the verdict,) would be a dangerous and mischievous practice. In Spencer vs. Goter, (1 H. Blackstone, 79,) the Court refused to alter the verdict of a Jury, unless it clearly appears, on the face of the verdict, that the alteration would be agreeable to the intention of the Jury, and that the proper remedy was a new trial. Although no mischief may have resulted to the parties from the amendment of the verdiсt, in this par*209ticular case, under the circumstances stated in the record, yet we are unwilling, by our judgment, to establish such a precedent.

Let the judgment of the Court below be ‍‌‌​​‌‌‌​‌​​‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌​‌‌​​​​‌​‌‍reversed, and a new trial granted.