Emery v. Berry

All acts which assume any control over the property of a deceased person, will, without legal right shown, make such person an executor iu his own wrong as against creditors. Acts of necessity or humanity, which do not evince any legal control over the property of the deceased, will not make a person an executor de son tort. It seems that an executor de son tort may discharge himself from his liability as such, by taking out letters of administration. Where money was received by the father, residing in this State, as the avails of the estate of his son, who died in California, and nothing was disclosed showing the purpose for which the money was sent, or that any one in California or elsewhere had any right to its legal control — held, that the possessor of the money here might be charged as executor de son tort by a creditor of the deceased. A printed volume of the statutes of a sister State, purporting upon its face to have been printed by its authority, and to contain the laws of such State, is admissible as prima fade evidence to prove such statutes. The statutes and written laws of a sister State cannot be proved by parol evidence. A merely clerical error in the making up of the record of a court, by its clerk, may be corrected by the docket, by order of the court, without notice to the. parties.

Debt, on a judgment alleged to have been rendered iu the district court for the western district in the State of' Maine, held at Alfred, in and for the county of York, on the third Tuesday of October, 1849, in favor of the plaintiff' against Joseph Berry, deceased, and one Brackett Mer-. rill. The defendant pleaded, first, Nultiel record; and second, Ne unqués executor. To the plea of Nul tiel record, the-plaintiff replied that there is such record, and an issue was joined thereon to the court; and to the second plea he replied that the defendant, as executor in his own wrong of said Joseph, deceased, unlawfully intermeddled with the money of said Joseph, and belonging to his estate, and an issue was joined thereon to the country. Upon the trial, the plaintiff, for the purpose of sustaining, the issue to the court, introduced as a witness, Asa Low, Esquire, who testified that he was a practising attorney and counsellor at law, in the county of York, was familiar with the courts of law in that county, and knew what the laws of the State of Maine were in reference to the organization of said courts; that by an act of the Legislature of that State, which took effect on the 1st day of May, 1852, the district courts of the State, which had existed for several years prior thereto, were abolished, and their powers and authority for the several counties, the business pending therein, and the records and files pertaining thereto, were transferred to and vested in the supreme judicial court for said counties, respectively; and that by the provisions of said act, the clerk of the supreme judicial court for the county of York had the custody of the records and files of the district court for that county. To the admission of this evidence the defendant objected, but the court overruled the objection. , Mr. Low testified further that the Hon. Ether Shepley was, and for many years had been, the acting chief justice of the supreme judicial court of that State; that he was well acquainted with the hand-writing of Chief Justice Shepley, and that he had no doubt the signature, purporting to be his, to the certificate annexed to the copy of the judgment introduced by the plaintiff, and authenticating the same, was his genuine signature. The plaintiff then introduced a copy of the judgment of the district court for the western district, with the certificate of Judge Shepley annexed hereto, of which the following is a copy: “ I, Ether Shepley, chief justice of the supreme judicial court of the State of Maine, hereby certify that James O. Mclntire, whose signature is hereto annexed, is clerk of all the judicial courts for the county of York, in this State ; and has the keeping of the files, records and proceedings of said courts in said county, and is by law the proper person to make out and certify copies of all records and proceedings of the supreme judicial court and district court for the western district, held for said county of York, and that full faith and credit ought to be given to his acts and attestations done as clerk aforesaid, and that his attestation hereto is in due form of law. Given under my hand and the seal of said supreme judicial court, this 18th day of December, A. D. 1852. (Signed) Ether Shepley.” The copy of the judgment was attested by Mclntire, as clerk of said supreme judicial court; and annexed thereto was a copy of the original writ in the action in which said judgment was rendered, also attested by Mclntire, and in the writ and judgment the said Berry and Merrill, the defendants in that action, are set up as of Somersworth, in the county of Strafford; and it was admitted on the trial that, at the time of suing out of said writ and the rendition of judgment, they were residents and inhabitants of this State, and not of the State of Maine/ From a copy of the original writ, it appeared' that there were two counts in the declaration, the first being upon a promissory note for |j460, payable to S. Lord & Co., or order, and indorsed to the plaintiff, and the second being for goods, wares and merchandize, sold and delivered, for work and labor done and performed, for money had and received, for money lent and advanced, and for interest on divers sums due. In the judgment it is recited and set forth that “ the said action was entered at the May term, 1849, of said district court for said western district, at which term the defendants appeared and answered by their attorney, Asa Low, Esquire, from which term said action was continued to the October term of said court, and now the defendants, though ealled, do not appear, but make default for the large note only by agreement. It is, therefore, considered,” &c. By the return of the officer upon the writ, it appeared that certain personal property was attached, and that no service of the writ was made upon either of the defendants. No other evidence of any notice to the defendants to the pendency of the action, was contained in the copy of the judgment, or in any of the copies in the case annexed thereto, than is found in the foregoing recital of the judgment. Mr. Low further testified that he appeared as attorney for Berry and Merrill, at the May term of said court, by the request of Merrill, for the purpose of obtaining a continuance of the action ; that at the October term both of the defendants attended court in person, and proposed to the plaintiff, Emery, to become defaulted in the action, if he would take judgment for the note declared on only, to which, at first, the plaintiff objected, claiming to recover, under the second count, for certain oak posts, sold and delivered to the defendant; that after considerable negotiation between the parties, as the cause was about to be called for trial, the plaintiff consented to accept the proposition, and the default was entered accordingly ; that Berry and Merrill were both conferred with by the witness in reference to this arrangement ; that both agreed to the default, and that together they settled and paid the witness’ account for his services in and about the action. Annexed to the copy of the judgment were copies of a first and second execution, attested by Mclntire, purporting to have been issued on said judgment; the first dated October 20, 1849, on which was return of satisfaction in part; the second dated August 19,1851, issued for the unsatisfied balance of the first, and no return appeared thereon. Also annexed to said copy of judgment was a paper purporting to be a copy of the note on which the judgment was founded, and another paper, purporting to be a copy of memoranda and minutes entered on the docket of the district court for October term under said action, Emery v. Berry and Merrill. All of the copies aforesaid were attested by Mclntire in the common mode; and in addition thereto a certificate of Mclntire, under the seal of the supreme judicial court, was annexed to said copy of the judgment and other copies annexed thereto, of which the following is a copy; “ State of Maine. Clerk’s office of the supreme judicial court, Alfred, December 18th, 1852. York, ss. I, James O. Mclntire, clerk of the judicial courts for the county of York, certify that in the suit William Emery, plaintiff v. Joseph Berry and Bracket Merrill, defendants, judgment was rendered for the plaintiff, in the district court for the western district, begun and holden at Alfred, in and for the county of York, on the third Tuesday of October, A. D. 1849; that paper marked A hereto annexed, is a true copy of the note upon which judgment was rendered in said suit; paper marked B is a true copy of the writ and return thereon in said suit; paper marked C is a true copy of minutes on the docket of October term, 1849, of the district court for the western district for said county of York in said suit. The red ink indicates the attorneys who appeared in said suit. Paper marked D is a true copy of the judgment in said suit, as amended by order of the court. Paper marked E is a true copy of the first execution on said judgment, with officer’s return thereon, and paper marked F is a true copy of the second execution which is issued on said judgment, which executions are now on file in the records of said court, and no third execution has issued on said judgment. (Signed) J. O. McIntire, Clerk” In said copy of minutes from the docket of October term, 1849, the name of said Low appears in red ink, as attorney for the defendants, and an entry as follows; “ Default for large note by agreement.” The defendant then offered a eopy of judgment, attested by said Melntire, the date of his attestation being August 5, 3852, purporting to be a copy of said judgment, authenticated in like manner as in the case of the copy introduced by the plaintiff, and corresponding, in all particulars, with the copy introduced by the plaintiff, except that it is not recited therein that the defendants appeared and answered by their attorney, Asa Low, Esq.; and except also that the words “for the large note only by agreement” are not contained therein; and he contended that this was the judgment rendered in said suit, and that the judgment was void for want of jurisdiction of the persons of the defendants. The plaintiff then introduced' a copy, attested by said Melntire, and authenticated in like manner by the certificate of said Shepley, of a petition, signed by said Emery, addressed to the honorable the justices of the supreme judicial court, to be holden at Alfred, in and for the county of York, on the third Tuesday of September, 1852, reciting the- suing out of said writ, the entry of the action, the attachment of the property on the writ, the want of service on the defendants, and also setting forth that Low appeared and answered to said action as the attorney of the defendants, and praying that the record of the judgment might be amended, by inserting therein that the defendants appeared and answered at said May term, by their attorney, Asa Low, Esq.; and also a copy so attested and authenticated of the order of court upon the petition as follows: “ Supreme judicial court, September term, 1852, Mr. Justice Wells presiding, ordered that the prayer of the foregoing petition be granted so far that the record be amended by stating the facts as they appear on the docket.” No evidence appeared upon the copies, or any paper introduced, that any notice was given of the pendency of said petition. The plaintiff then proved by the testimony of said Low, that by the laws of the State of Maine, one judge of the supreme judicial court is authorized to hold terms of said court for the trial of all causes by the jury except criminal trials for capital offences, and that the September term, 1852, of said court for the county of York, was held by Mr. Justice Wells, an acting judge of said court. Upon this evidence the court ruled that the issue to the court was made out on the part of the plaintiff, and the cause proceeded to the trial of the issue to the jury. Upon this issue the plaintiff introduced evidence tending to show that said Joseph Berry, deceased, left this part of the country in the fall of 1849, for California, intending to be absent about two years; that he died in California some time prior to June, 1851; and that the defendant received, by way of a draft drawn in his favor by a banking-house in San Francisco on a broker in Boston, about $390, for which the defendant gave his receipt, as follows: “June, 1851. Rec’d of Washington G. Matthews, by the hand of James L, Hanson, $400, proceeds of the estate of Joseph Berry, late of San Francisco, California. (Signed) Joseph Berry.” It further appeared from the evidence introduced by the plaintiff, that said Matthews, being a resident in San Fran» cisco on the 28th of April, 1851, forwarded the draft to the care of Hanson, residing in Boston, with directions to deliver it to the defendant; that it was so delivered, and the money paid thereon to the defendant, by the broker in Boston upon whom it was drawn ; and that the defendant had admitted, in conversation, that his son, Joseph Berry, the deceased, was dead, and that he had received from his estate from California about $400. No evidence was introduced to show whether or not there was any administration of the estate of Joseph, the deceased. in California, other than as aforesaid. The court ruled that upon this evidence, the issue to the jury was not maintained on the part of the plaintiff, and a verdict was taken by consent for the defendant, upon which judgment was to be rendered or the same to be set aside and a new trial granted, according to the opinion of this court. We have but a single suggestion to make. We rely upon the provisions of our statute to charge this defendant as executor in his own wrong. Those provisions are that if any person in any way intermeddle with the estate of a deceased person, he is liable to the creditors of such deceased person. Rev. Stat. ch. 153, § 15. We contend that, under this section, the defendant is liable, and that the verdict should be set aside. The evidence offered by the plaintiff to sustain the issue to the' jury falls entirely short of proving that the defendant is an executor de son tort. At the most it only shows that he has received the proceeds of the estate from the hands of a third person. And it does not appear that the person was the rightful administrator of the estate under the law of California. 3 Bac. Abr. 22. We contend, first, that it is incumbent on the plaintiff to show that the defendant has taken and converted to his own use the goods or personal chattels belonging to the deceased, at the time of his death. Nothing short of this will answer his purpose. Not a case can be found where any other principle is acknowledged; not a definition of the term “ executor de son tort ” which does not assume it. There will otherwise be none of the indicia by which to distinguish the person making himself the representative of the deceased. In other words, he must do, without authority, what an administrator has a right to do with the effects of the deceased. Morrill v. Morrill, 1 Shepl. 415; Toller on Exrs. 37, § 2; Read’s Case, 3 Coke 33 ; 3 Bacon’s Abr. 20, 21; Leach v. Pillsbury, 15 N. H. Rep. 139; Mowntford v. Gibson, 4 East 441; 1 Dane’s Abr. 570, 571, where the case of Padget v. Priest, 2 Term 97, is explained on the ground that the defendant himself sold the goods of the deceased by his servant. In the second place, we say that it is not enough to show that a third person has paid over to the defendant the proceeds arising from a sale of the effects of the deceased. The money thus paid over never belonged to the deceased. The purchaser of the goods never having acquired a title to either, (for they may be taken from him in an action of trover, 5 N. H. Rep. 341,) the money which he paid cannot, in any manner, be considered as belonging ever to the estate of the deceased. Pickering v. Coleman, 5 N. H. Rep. 150. But if the court should be of opinion that this verdict cannot be sustained, then we desire the opinion of the court on the several questions raised in the case on the issue to the court. First, the statutes of a foreign State cannot be proved by an attorney of that State, professing to be acquainted with them. It is necessary to produce a copy of the statutes, authenticated by the seal of the State. State v. Carr, 5 N. H. Rep. 367; 1 Greenl. on Ev. 536, 537, 538. Second, the supreme judicial court in York county could not amend the record of a judgment of the district court on an ex parte application, without notice; certainly not in such a way as to affect the rights of third persons. Bank of Newburgh v. Seymour, 14 Johns. 219.