Miller vs. Reinhart.

Signed, sealed and delivered in presence of

his

NATHANIEL GRAY,

mark

LEWIS BEACHAM, J. P.

CLERK'S OFFICE, Montgomery County.

The within agreement or contract, recorded in book P P, on folios 80 and 81, this November, 23d day, 1854.

A. T. MCLEOD, C. S. C.

To the admission of which in evidence, the Counsel for applicant objected, upon the ground that it was irrelevant to the issue, because

1st. That it was in proof that the said Cassa Reinhart, at the time of her death, had other property in her possession, to wit: her wearing apparel, jewelry, &c. and that she was entitled to her distributive share of her father's, John Miller's, estate.

2d. That by the terms of the marriage settlement, if it be a valid and binding instrument, the trust created by it ceased at the death of the said Cassa, and the property vested, and there was no necessity for letters of administration to be granted upon her estate to John Miller, the brother and trustee, to execute and carry out the terms of said marriage settlement.

3d. That if it should be held, that by the terms of said marriage settlement, the trust was not executed, but was a continuing and executory trust, letters of administration upon said Cassa's estate was not necessary to enable the said trustee to carry out and execute the terms of said trust.

4th. That, as between the applicant, the husband, and John Miller, the caveator and brother of said Cassa, there was nothing in the marriage settlement to deprive the husband and applicant of his right to the administration on the estate of his wife, the said Cassa.

Miller es. Reinhart.

5th. That the said marriage settlement embraced only the property mentioned in it, and all such as might have been given to the said Cassa, but did not embrace such other property as had descended, or was likely to descend to her, by inheritance, or otherwise than by gift.

6th. That said marriage settlement had not been recorded in Laurens County, the county of the residence of the husband, the said James M. Reinhart, at the time of his inter-marriage with the said Cassa.

Counsel for caveator, insisting upon his right to have the marriage settlement in evidence, proposed, upon its being received by the Court, to prove that what might be coming to the said Cassa as distributee of her father's estate, together with what property was mentioned in the deed of settlement, was all the property in the possession or expectancy of said Cassa, and urged the introduction of the marriage settlement in evidence, upon the ground that it, in connection with the testimony proposed, would show that applicant had relinquished all right to his wife's property after death without children, by whatever means it might have been acquired; and that if this was shown, the applicant had no right to the administration, but that caveator had, as the right to the administration, followed the right to the property.

The Court rejected the deed of settlement as irrelevant to this issue, for the reason, that the title to the property mentioned in it, could only be settled in a Court of Law, and whether the applicant had or had not renounced his right to it, it was clear that he had not thereby renounced his wife's inheritance, or what might be coming from her father's estate, by this deed. The Court stated that it was not necessary to decide the other points arising in the case; but if it were, the objection arising out of the interlineations would be referred to the Jury, and the recording of the deed in Montgomery County held to be a void act, it having been proved that the applicant, the husband, resided in Laurens. No other testimony was offered by the caveator, and a verdict was rendered for the applicant, under the directions and rulings of the

Miller rs. Reinhart.

Court, granting the administration to him. And Counsel for

caveator excepted.

Upon these exceptions error has been assigned.

A. J. MILLER, representing Counsel for plaintiff in error.

G. J. & W. SCHLEY, for defendant in error.

By the Court.-BENNING, J. delivering the opinion.

[1.] The question is, was the decision admitting the certificate right?

Proceedings of naturalization have to be recorded-" which proceedings shall be recorded by the Clerk of the Court," is the language of the Act of Congress on the subject. (2 Story's Laws U. S. 851.)

The certificate does not give the words of any part of the record. The certificate seems to be a statement of what, in the Clerk's opinion, is the legal import or effect of the different particulars of which the record may consist.

For the admission of such a certificate as evidence, the naturalization laws make no provision-none exists by the Common Law. But it was said, that the admission of such a certificate is authorized by an Act of this State-the Act of 1830, to amend an Act to regulate the admission of evidence, &c. That Act declares, that the certificate of any public officer, under his hand and seal of office, if one is attached thereto, in relation to any matter or thing pertaining to their respective offices, or which, by presumption of law, properly pertains thereto, shall be admitted as evidence before any Court of Law or Equity in this State, &c. (Pr. Dig. 220.)

The Act of which this is amendatory, is the Act of 1817, "to regulate the admission of evidence," &c. which declares, that the certificate or attestation of any public officer, either of the State or of any county thereof, shall give sufficient validity or authenticity to any copy or transcript of any record,

Miller vs. Reinhart.

document or paper of file in the respective offices under their control, to admit the same as evidence, &c. (Ib. 215.)

This Act is not repealed by the Act of 1830. That Act, by the title of it, is restricted to the amending only of this Act. The Act of 1830, therefore, was intended, it is to be presumed, to reach cases which were not reached by the Act of 1817. And it is easy to conceive that such cases may exist. For example, a record may be consumed by fire. In such a case, the Clerk cannot give a certified copy of the record, but he may give a certificate that no such record remains under his control. And this certificate would, I think, be admissible under the Act of 1830. So, a list of names officially filed in a public office, may not have on it a particular name. In such a case, the officer presiding over that office, cannot give a certified copy of that name, but he may give a certificate that no such name appears on the list. And this I think he is authorized to do by the Act of 1830.

Perhaps, too, the Act of 1830 was intended to dispense with the necessity that a transcript of the whole of any record or other writing must be produced, before any part can become admissible, and to confer the privilege of using a certified copy of only a part of a record or other writing.

But whatever the intention of the Act of 1830 may have been, we think that the intention was not, in the case of Clerks, to authorize them to give a statement, in brief, of what, in their opinion, may be the legal import or effect of the particulars of the record. We think that when there is a record and a judgment, the certificate, even under the Act of 1830, ought to give a copy of at least the judgment, or of some one or more of the other parts of which the record may

consist.

And therefore, we are obliged to consider this certificate insufficient, and the decision admitting it as evidence erroneous; for this certificate gives a copy, neither of the judgment nor of any other part of the record.

And this decision is not in conflict with Campbell vs. Gordon, (6 Cranch, 176,) for in that case the Court had before it

Jones vs. Cent. R. R. R'k'g Co.

not only the certificate of the Clerk-it had also the minutes of the Court.

This certificate being, as we think, not legal evidence, its admission as legal evidence makes it necessary that a new trial should be had. Accordingly, one is granted.

As to the rejection of the marriage settlement, we merely say, that in our opinion, the existence of that settlement ought not to be allowed to deprive the husband of the right of administration. His appointment to such administration cannot, as far as we can see, at all effect any right created by that settlement. If this be so, the settlement, as evidence, was merely irrelevant.

No. 23.-JAMES W. JONES, plaintiff in error, vs. The CENTRAL RAIL ROAD & BANKING COMPANY, defendant in error.

[1] The fifteen days specified in the Act of 1853-'4, defining the liability of rail road companies, &c within which notice is to be given, or suit brought for the injury complained of, applies exclusively to cases where the demand is under thirty dollars.

[2.] The notice to be given under this Act, must be in the name, and by the authority of the party aggrieved, and a declaration, in the usual form, with process attached by the Clerk, and served by the Sheriff, will not be deemed a sufficient compliance with the Act.

Case, in Burke Superior Court. Decision by Judge HOLT, May term, 1855.

This was an action brought against the Central R. R. & Banking Co., as lessees of the Augusta & Waynesboro' R. R., for the killing of a slave, by the negligent running of their This suit was brought in Burke County, under the Act of 20th Feb. 1844, "To define the liabilities of R. R. Com

cars.