Shown v. Barr

• Decision Date: 31 August 1850
• Citation: 33 N.C. 296,11 Ired. 296
• Parties: LEONARD SHOWN'S EXR'S. v. JOSEPH BARR et al.
• Court: North Carolina Supreme Court

11 Ired. 296

33 N.C. 296

LEONARD SHOWN'S EXR'S.

v.JOSEPH BARR et al.

Supreme Court of North Carolina.

August Term, 1850.

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.

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 aceording to the Act of Congress, cannot be received in evidence.

Appeal from the Superior Court of Law of Ashe County, at the Spring Term 1850, his Honor Judge DICK presiding.

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 ungues 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 July 13th 1847, setting forth, “that the foregoing is a true transcript of the records of the said County Court at August Term 1845.” There was also annexed a certificate of “James King, chairman, &c.,” made July 13th 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 non-suit and appealed.

Craig, for the plaintiffs .

Thompson and McCorkle, for the defendants .

RUFFIN, C. J.

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....