Lee v. Hamilton, adm'r

Lee v. Hamilton, adm’r. 1. The exemplification of a record from the State of Georgia, in these words — “Georgia} Greene Counry Court of Ordinary, 30th September, 1803. The within will and testament of John Finlay, dec’d, proveii in opert.Oourt, by the oaths of James ■ Wqod and John Wood, subscribing witnesse_s to tbesathe, who declared, they saw the same signed and acknowledged by him the said John Finlay, in his proper senses, and saw E. Park and John Buckner subscribe their names as witnesses with * themselves. Thomas Carleton, Clerk* Recorded, -30th September. Thomas Carleton, Clerk,” — accompanied by a certificate, iri proper form, by a succeeding Cleriij that the above, together with a copy of the iv'il^, was a true copy of the last wtilitQd testament of John Finlay, from thé records o^jiis office; and also, by acer-. tifieate of the chairman of the Court, that he was clerk — and his certificate in due form — Held, that the transcript was propgxly authenticated, and that the record showed that the will had been admitted to probate,in the State of Georgia, and admissible in evidence in the Courts of this State. 2. Admissions of aparty, areevidence against<himself;’b\tia will not authorise the in-trodtfdtionof proof of counter declarations, made ^t,a different time. , Error to the Circuit Court of Cíárke. ; THIS was an action of detinue, by the defendant in error, as administrator of his wife, to receiver .of .the plaintiff in error, certain slaves.. ■: Upon the pleas of the general.issue,, and the statute of limiT tatións, the plaintiff obtained a verdict and judgment. On(the trial of the cause, a biff of exceptions was taken by the .plaintiff in error, from which' it appears that the plaintiff offered in evidence a copy of the record of a will of John Finlay, deceased, in the Court of Ordinary'of .Greene county, in the State'of Georgia, through which he claimed the slaves in the present action. To which the defendant objected. The pro-1 bate is as follows: \ ; Georgia, Greene County, Court of Ordinary, 30th September, 1803. The within will and testament of John Finlay, deceased, proven in open Court, by the oaths of James Wood and John Wood, subscribing witnesses thereto,'who declared they s$w the same signed and acknowledged by him, the said John Fin-lay, in his proper senses, and saw E. Park and John Buckner, subscribe their names as witnesses with themselves. Thomas Carleton, Clerk. Recorded 30th September, 1803. Thomas Carleton, Clerk. Georgia, Gkbene County. I, .Thomas W. Grimes, Clerk of the Inferior Court when sitting for ordinary purposes, for the county and State aforesaid, do hereby certify that,the foregoing exemplification corn tains a true copy of the last will and testament of John Finlay, deceased, taken from the records of my office, Book D, pagó fifty-four. Given under my .hand and seal of office, this 17th June, 183G. Thomas W., Grimes, Clerk.- Greene Court of Ordinary. . Georgia, Greene County. -I) Thomas Stocks, Chairman of the Inferior Court, when sitting for ordinary purposes, for the county and State aforesaid, do hereby certify, that. Thomas W. Grimes, whose signature appears attached to the foregoing certificate-is at this date, the acting clerk, of the Court of Ordinary, for the county of Greene, and State aforesaid, duly appointed and commissioned, and whose .attestation as such, is .intitled to all due faith and credit, his certificate in due form, and signature genuine. Given under my hand, this 17th day of June, 1836. Thomas Stocks, Chairmain Inferior Court, Greene Co. Ga. The Court overruled the objections to the- will and probate, and permitted it to be read to the jury., . The plaintiff was "also permitted to prove, though objection was made by defendant’s counsel, that John Dean, senior, the father of plaintiff’s wife, and through whom defendant claimed, had on'kwo occasions, in 1817, or 1818, mid in the year 1823, on the ¡morning of the marriage of .plaintiffwith the daughter of Deal}, declared that Hannah and her children, were the property ofjhjs daughter, given to her byber.’gr&nd-father. The defendant then offered to prove,,by witnesses, that John Deaiik,' senior, was in the habit of deél^flng’that he gave the ne-grod|.;in controversy, to different members of his family. Sometime^ he would say, it was the property- of one of his children, andat other times, that it belonged tp, a-different one, and was in the habit of making such contrary .[declarations of gifts, for twenty or thirty years before his death, but that he never would or did give any of his children possession of his negroes, in pursuance of such-promises; which pro;of being objected toby plaintiff’s counsel, was excluded by Court ; to all which the defendant, by his counsel, exce.pte4j.:Rjt.4 now assign for error. Other testimony was also offered-, and Ejected, but not being notiA in the argument of coi$|6eI,,. oj¡|Íy the Court, is not B.-H. Portee, for plaintiff in error, contended that there was no evidence that the will had ever been:admitted to probate; that the action on it in Georgia, was the mere act of the clerk; that this was the mere copy of a copy, and therefore, not evi-dencei and cited Aik. Dig. 250, § 22; 2 A. K. Marshall, 555; 1 Ala. 529; 4Philips’ Ev. 1065, 1137; 3 Littel, 479; 2 Cain, 363; 3 Rand. 167 ; 4 Wend. 543; Bulier N. P. 246 ; 3 Starkie, 1682. As to the declarations of Dean, he cited 1 Philips’ Ev. 231; 2ib. 585; 1 Starkie’s Ev, ,50; 15 Johns. 292. Peck and Clarke, contra. [MAJORITY — ORMOND, J.] ORMOND, J. The principal argument urged in this case is, that the transcript of the will of John'Finlay, deceased, as certified by the clerk of Greene-county, in the State of Georgia, is not sufficient to authorise it to be read as evidence in our Courts. The objection is, first,, that it does not appear that there was. any probate of the will in Georgia; and second, that it is not sufficiently authenticated as as a record, under the act of Congress. 1.' The record commences with what purports to be atrans-cript of the will of John Finlay, deceased, which is followed by the'following certificate: ' Georgia, Greene County, Court of Ordinary, 30th Septémber, 1803. The within will and testament of John Finlay, deceased, proved in open Court, by the oaths of Jaimes "Wood and John Wood, subscribing witnesses to the same, who declared they saw the same signed and acknowledged by him, the said John Finlay, in his proper senses, and saw E. Park and John Buckner subscribe their names as witnesses thereto. Thomas Carleton, Clerk. ' Recorded 30th September, 1803. Thomas Carleton, Clerk. 'This is followed by a certificate of Thomas W. Grimes, who styles himself Clerk of the Inferior Court of Greene' county, sitting for ordinary purposes, and certifies that the foregoing exemplification contains a true copy of the last will and testa-mént of John Finlay, deceased, taken from the records'of his office. To which is added the certificate of the Chairman of the Court, that Grimes is its Clerk, and that his certificate is íri due' form. ' The objection urged is, that the certificate of Carleton does not show that there was any action of the Court declaring that the will was proved by the oaths of the subscribing witnesses, to havebeen duly executed, and that it appears to have' been his own act merely. If faith is placed in the certificate of Grimes, wé think it follows conclusively, that the will was proved. It is clear, that the certificate signed-by Carleton, was endorsed on the will itself, at the time of the probate, and the will and certificate transferred to the records of the Court. The language admits of no- other interpretation! “The within will and testament of John Finlay, proved in open Court by the oaths,” &c. is a declaration by the organ of the Court, that certain facts' transpired in “ open Court,” that is, in presence'of the Judge,'and with his assent. It certainly cannot be presumed by us, that an act done in open Court, had not the approbation of the Court, but was the mere unauthorised act of the clerk.— We think it very clear, that the will was admitted to probate in Georgia; with the mode of doing this, we have no concern. 2. Is the -'trariscript properly authenticated under the act of Congress, of May 17901 That act provides, 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 one, together with a certificate of the Judge, Chief Justice or presiding magistrate, that the attestation is in due form. 1 Story’s Laws U. S. 93. In Dozier v. Joyce, 8 Porter, 311, we held that the decision on the probate of a will, was a judicial proceeding, and the Court in which it is registered, a Court of Record within the meaning of the act of Congress, and we then sustained the certificate of an officer of Edgefield District, South Carolina, who styled himself sole Judge of the Court of Ordinary, and also keeper of the records, and that he had the power to attest his record in the capacity of both Clerk and Judge. But in this case,' the certificates of the Clerk and J udge, are within. the letter of the act of Congress, the former being authenticated by the seal of his Court, and were properly admitted in evidence. The declarations of John Dean, senior, the father of the plaintiff’s wife,. and through whom the defendant below claimed, were properly given in evidence. It appears that the negro woman, Hannah, sued for in this action, was bequeathed to the plaintiff's wife by her grandfather, John Finlay, and that during the minority of Mrs. Hamilton, the negro was in the possession of Dean, her father, at which time, on two several occasions, he disclaimed owning the negro, and said she belonged to his . daughter, the plaintiff’s wife. These declarations were certainly evidence against him, or any one claiming through him. The counter declarations of Dean.at other times, were properly excluded. When the admissions of a party are given in evidence against him, any thing said by him at the same time, qualifying or controlling such admission, will be evidence for him, or in other words?-^any one seeking to take advantage of such admission, must take the whole together, that which makes against, as well as that which is in his favor.— But a party will not be permitted to neutralize or destroy the effect of an admission, by evidence of counter declarations at another time, which indeed would be permitting him to manufacture testimony for himself. Some other facts are presented on the record, but as they were not brought to our notice, or relied on in the ■argument of the plaintiff’s counsel, we have not-thought it necessaryito consider them. • .. Let the judgment be affirmed.