Horton v. . Hagler

8 N.C. 48

• Court: Supreme Court of North Carolina
• Decided: June 5, 1820
• Status: Published

Opinion

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. Mugler 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 lie was dead or bad removed, when the hill of sale was proved.

There must, therefore, be a new trial.