
    
      FLOWER & AL. vs. SWIFT.
    
    Appeal from the court of the eight district, the judge of the seventh presiding.
    Witnesses cannot be examined after the day stated in the notice for their examination.
   Martin, J.

delivered the opinion of the court. The defendant, who is executor of M'Elroy, took from a debtor of his testator, a note payable to the estate, or order, and in dorsed it to the plaintiff, adding to his name on the endorsement, the words executor of M’Elroy. The note was duly protested, due was given him; he resisted the claim, but judgment was given against him, as endorser of the note, and he appealed.

His counsel has drawn our attention to two bills of exceptions. The first is, to the opinion of the court below, who sustained the plaintiff’s opposition to the reading of testimony, taken after the day from which the commission was made returnable.

The party against whom testimony is intended to be used, is informed by the notice of the day on which the commission is made returnable, that it is not to be taken after that day. He may therefore rightly conclude, that his adversary declines examining witnesses, not brought before the commissioners at such a period. He has a right to be present at the examination and when through the negligence of his adversary, he is deprived of that right, he may oppose the reading of the testimony so tardily taken.

The other bill was taken to the rejection of the testimony, taken down in writing in the court of probates, in a suit erroneously brought there between the same parties, as the court was without jurisdiction.

We think the testimony was properly rejected. Proceedings before a court, or judges, who have no jurisdiction of the matter, ratione materiae, are absolutely coram non judice. An oath taken in such a case, is in law a nullity; it cannot prejudice any one. We have been referred to Moreau's Digest, Crimes, art. 365,16 and 17, but cannot adopt the construction for which the appellant’s counsel contends, and in which he invokes the authority of Kerr’s exposition, and under which he argues, that a court or magistrate, having authority to administer oaths, in certain cases, perjury may be committed in an oath taken before it or him, in a case in which he is without authority or jurisdiction.

On the merits, the appellant’s counsel has urged, that the paper sued on, is not a promissory note, but the mere acknowledgement of a debt due the estate; that the transfer of it entitles the appellee to recover what is due to the estate by the maker of the note ; the appellant having endorsed the note in his capacity of executor, is not personally liable.

We are of opinion the district judge did not err, in considering the endorsement as a new contract, the drawing of a bill of exchange. Such a contract is not in the scope of an executor’s authority, i. e. he cannot thereby bind the estate to pay damages or even to refund the amount of the note; for if he could, he could ruin the estate, by making it liable to pay the amount of notes of its insolvent debtors. As the executor cannot bind the estate by endorsement, it follows, that the liability resulting from those he makes, is personal.

Hennen for plaintiffs, Workman for defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  