104 Cal. 407 | Cal. | 1894
The plaintiff brought three actions-against the defendant, each upon a promissory note-made by the defendant to one John' Lancaster, since deceased, who was a British subject and a resident of-England, where he died testate on the 21st of April, 1884. The three actions were by the consent of parties- and an order of the court consolidated. The court rendered judgment for plaintiff for the amount of the principal and interest of said three notes, with costs, etc. Defendant appeals from the judgment.
The judgment of the lower court went upon the theory, founded upon the findings, that the two sons of the deceased, George Granville Lancaster and John Lancaster (Jr.), were appointed by the will of the deceased as the executors thereof, and qualified as such; and -were also appointed “ administrators of the personal estate” of the deceased John Lancaster; that the will of the deceased was duly probated in an English court; that by said will the said sons were also made residuary legatees; and that on November 15, 1880, the said sons, George and John, as such executors and administrators, and being the owners of said notes, “ sold, transferred, and set over” the same to the plaintiff herein.
The alleged transfer or assignment of the said notes from the said George and John Lancaster was not by indorsement on the back of said notes, but consisted of a separate 'written instrument in which they recited that they had “bargained, sold, and transferred” the said notes to the plaintiff herein, and that they “do hereby sell, transfer, and set over” the same to the plaintiff; and it is said in said instrument that they sell, etc., said notes “as executors of John Lancaster,
The foregoing point is conclusive of this appeal; but, as the cause may be tried again, it is necessary to notice one or two other positions taken by appellant. •
The evidence introduced by respondent to prove the probate of the will of said John Lancaster, deceased, consisted of a copy of a judicial record of the probate division of her majesty’s high court of justice, certified as correct by Charles John Middleton, registrar, of said court, accompanied by the certificate of the judge of said court to the official position of Middleton as the custodian of its records and the genuineness of his signature, and also by a certificate of John C. New, United States consul general, to the genuineness of the signature of the said judge — all in accordance with the requirements of section 1906 of the Code of Civil Procedure. But appellant contends that said section refers
We think, however, that appellant is right in contending that the judicial record introduced by respondent in this case is entirely insufficient to support any right asserted under it by respondent. It includes merely a transcript of a short order of the foreign court, to the effect that on a certain day the will of Lancaster, deceased, was proved and registered, and that administration of the personal estate was granted to John and George Granville Lancaster, sons, and executors named
There are no other points necessary to be now noticed.
The judgment is reversed and the cause remanded for a new trial.