
    *Gornto v. Bonney.
    February, 1836,
    Richmond.
    (Absent Cabell, J.)
    Evidence — Wills — Copy of — Authentication under Act of Congress. — A copy of a will and of the probat thereof in a court of N. Carolina, is offered m evidence ; it is authenticated by a certificate of the clerk of the court under his seal of office, and by a certificate of the presiding justice of the court, that the clerk's certificate (not his attestation) is in due form : Held, the authentication is proper according to the act of congress of May 26, 1790, and that act, not the act of March 27, 1804, is applicable to the case ; and, therefore, the copy is proper evidence in our courts.
    Detinue for a slave, by Bonney against Gornto, in the circuit court of Princess Anne. Plea, the general issue. At the trial, the defendant filed two bills of exceptions to opinions of the court.
    1. The defendant, to support the issue on his part, offered in evidence an office copy of the last will and testament of Elijah Cáson, and a copy also of the probat thereof in the county court1 of pleas and quarter sessions of Currituck, North Carolina; with a certificate of the clerk of the court subjoined, in these words1 — ■“State of N. Carolina, Currituck county: I, S. Hall, clerk of the county court of pleas and quárter sessions for the county and state aforesaid, do certify the above to be a true copy of the last will and testament of Elijah Cason deceased, and of the probat of the same. Given under my hand and seal of office, at &c.” (Signed) “S. Hall, C. C. C.” with the seal annexed. And a certificate of the presiding justice in North Carolina, in the following words — “ State of N. Carolina, Currituck county: I, C. Etheridge, chairman and presiding justice of the county court of pleas and quarter sessions for the county and state aforesaid, do certify7 that S. Hall is now, and was at the time of signing the above, clerk of the aforesaid court, and that his certificate &c. records &c. are in due *form, and due faith should be given to his official acts. Given under my hand &c.” (Signed) “C. Etheridge, chairman.” Whereupon, the plaintiff’s counsel objected to the admission of the evidence, “on the ground of the record not being duly authenticated according to the laws of congress;” and the court sustained the objection; to which the defendant excepted.
    2. The plaintiff, in order to shew in what character he took certain slaves (of whom the slave in question was one), offered in evidence the record of a judicial proceeding in the county court of pleas and quarter sessions of the same county of Currituck, upon a petition of the plaintiff Bonney and Abiah his wife, who was the relict of the testator Cason, stating that she had renounced her husband’s will, and praying the court to order a jury to lay off her distributive share of her deceased husband’s estate; upon which the court ordered the jury; the jury reported, inter alia, that Bonney and wife should receive a slave named Charles, being part of a legacy bequeathed by the testator Cason to his daughter Ann; and the court confirmed the report. To this was subjoined a certificate of S. Hall, the clerk of the court, under his hand and seal of office, in the same form, mutatis mutandis, with his certificate authenticating Cason’s will, stated in the first bill of exceptions; and a certificate of C. Etheridge, chairman and presiding justice, also in the same form with his certificate authenticating the will, with this single . difference, that in this he certified that the clerk’s attestation was in due form, whereas in the other, he certified that the clerk’s certificate was in due form. To the admission of this evidence the defendant objected, because the record was not duly authenticated, and it was moreover res inter alios acta: but the court overruled the objection, and admitted the evidence, instructing the jury, that it was no evidence of title in the plaintiff; but that it was a fact or circumstance entitled to their consideration, in ^ascertaining the character of the plaintiff’s possession, that is, whether he had taken the property awarded by the jury tfo his wife in character of her husband, or in character of guardian of the defendant’s wife, and that the record was evidence for no other purpose. To this opinion also the defendant excepted.
    There was a verdict and judgment for the plaintiff; to which this court upon the petition of the defendant allowed him a super-sedeas.
    Robinson, for the plaintiff in error.
    Comparing the authentications of the two documents, one of which was rejected and the other admitted in evidence, the only difference is, that the presiding justice certified, in the last instance, that the clerk’s attestation, and in'the first, that his certificate, was in due form. The act of congress of May 1790, 2 Bior. L. ü. S. ch. 38, p. 102, does indeed require, that the presiding justice shall certify, that the clerk’s “attestation” is in due form. But here the clerk’s certificate was exactly the act of attestation meant by the act of congress.
    Johnson, contra.
    1. The clerk gives the certificate under his seal of office; non constat, that this was the seal of the court, which the statute requires. 2. The clerk does not certify that the will was recorded, and that his copy was a copy of the recorded will, but only that it was a copy of the will and of the probat'in his keeping; so that it nowise appears, that this was a judicial proceeding of N. Carolina, — That the will and probat was a record appertaining to a court. Therefore, the authentication should have been according (not to the act of congress of May 1790, but) to the act of March 1804; 3 Bior. R. ü. S. ch. 409, p. 621. And then, certainly, the authentication was not regular, for the character of the presiding justice is nowise verified. In this too, the court will see the main difference between the authentication of the one docu-237 ment, which was approved, *and that of the other, which was disapproved, by the circuit court.
    Robinson, in reply.
    As to the seal annexed to the clerk’s certificate, the presiding justice certified that the clerk’s certificate was in due form; of course, that the proper seal was annexed. Besides, the clerk’s seal of office must be intended to be the seal of the court. With regard to the other objection, here is a copy of a will, and of a sentence of probat in usual judicial form. The pro-bat of a will is, in its nature, a judicial proceeding, and the will proved is part of that proceeding.
   P3R CURIAM.

The circuit court erred in refusing to let the copy of Cason’s will go in evidence to the jury. It was sufficiently authenticated. Judgment reversed, and cause sent back for a new trial.  