*49 The Chiee-Jüsttoe delivered the opinion of the Court: If the Clerk had certified only, that the bill of sale was duly proved, it must have been understood that the death of the subscribing’ witness was proved, and that his handwriting was likewise established in a proper manner. So much respect is paid to the acts of a Court of Record, that they must be received as regular, when so certified by the proper officer, lies judicata pro vertíate accipitur. But when the certificate enters into detail, and goes on to shew in what manner the deed has been proved, 1hc enquiry into the legality of the proof is open to the Court. In this case, what is meant by being “ duly proved” is explained by the statement, that D. H. swore to the signature of Benjamin Mugler, the subscribing witness ; and that shews that the paper was not duly proved, since the death or absence from the state of B.
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HORTONv. HAGLER,8 N.C. 48(1820)
HORTON v. HAGLER'S Executor.
Supreme Court of North Carolina
1. When the clerk of a court of record certifies that an instrument has been "duly proved" in that court, it is implied that everything required by law has been proved — upon the maxim,res judicata pre veritateaccipitur.
2. But when he also stateshowit was proved and omits a material circumstance required by the law, the certificate ofdue proofis disregarded, because, by the certificate itself, it appears it was not duly proved.
3.Held, therefore, that where a clerk of a county court certified that a bill of sale for a slave had been "duly proved by the oath of D.H., who proved that the handwriting of B.H., the subscribing witness, and of J.H., the maker of it," the bill of sale is not evidence for the want of proof of the death or removal of B.H.
THIS was an action ofassumpsit, from WILKES, brought upon a warrant made by the defendant, upon a contract of sale of a slave, Peter, to the plaintiff, and was tried beforeMangum, J., at March Term, 1820.
To show the sale and the warranty, the plaintiff offered in evidence a bill of sale of the slave from the testator, John Hagler, to the plaintiff, witnessed by one Benjamin Hagler, who was dead at the time of the trial. One the bill of sale was a certificate, endorsed by the Clerk of the County Court of Wilkes, "That the execution thereof had been duly proved in that court by the oath of D.H., who proved the handwriting and signature thereto of B. Hagler and of the testator, J. Hagler." And upon that proof it had been registered and certified accordingly. The court suffered the plaintiff to read his bill of sale to the jury, without further proof, although it was objected to by the defendant; and the jury, without other evidence of the contract, found a verdict for the plaintiff upon thegeneral issue.
A motion for a new trial, upon the ground that the bill of sale ought not to have been received in evidence, was overruled, (49) and judgment given for the plaintiff, from which the defendant appealed.
TAYLOR, C. J.
If the clerk had certified only that the bill of sale wasduly proved, it must have been understood that the death of the subscribing witness was proved, and that his handwriting was likewise established in a proper manner. So much respect is paid to the acts of a court of record that they must be received as regular, when so certified by the proper officer.Resjudicata pro veritate accipitur. But when the certificate enters into detail, and goes on to show in what manner the deed has beenPage 29proved, the inquiry into the legality of the proof is open to the court. In this case, what is meant by being "duly proved" is explained by the statement that D. H. Swore to the signature of Benjamin Hagler, the subscribing witness; and that shows that the paper wasnotduly proved, since the death or absence from the State of B. Hagler was not proved. It may be that he was then alive and in the court yard; and therefore the bill of sale was not proved by the best evidence the nature of the case admits of. That B. Hagler was dead at the time of the trial below is stated in the record, but there is no proof that he was dead or had removed when the bill of sale was proved.
There must therefore be a
New trial.Cited: Carrier v. Hampton,33 N.C. 310;Barwick v. Wood,48 N.C. 311;Starke v. Etheridge,71 N.C. 246;Quinnerly v. Quinnerly,114 N.C. 146.