Hosey v. Brasher , 8 Port. 559 ( 1839 )

COLLIER, C. J.

— The admissibility of the evidence, and the charge of the court, presents the only question for our decision.

Our statutes certainly contemplate the issuance of letters of administration, to the person appointed administrator, yet, as the letters are but evidence of his authority, he might act without them, if the records of the court show his appointment, &c.

Whether a person appointed administrator, may be allowed to exercise his office, until he has been qualified by taking the necessary oaths, and entering into bond with sureties, is a question which does not necessarily arise in the present case. The transcript contains an order made the first of September, eighteen hundred and thirty-four, requiring the plaintiff to appear in court, and enter into bond and take the necessary oaths. And as he is recognised in the order of publication, of April, eighteen hundred and thirty-six, as administrator, we should intend that he complied with the previous requisitions of the court; the more especially, as the law does not require either the bond or oaths to be recorded.

It has been held, in England, that an examined copy of the act-book, stating that loiters of administration were granted to the defendant, arc proof that he is administrator, although no notice was given to produce the letters of administration — (See 1 Starkie’s Evi. 248; 1 Saunders on Pl. & Evi. 504; Elden vs. Keddell, 8 East’s R. 187; Davis vs. Williams, 13 East’s R. 231; Gorton vs. Dyson, 1 B. & B. Rep. 219.) By the admission of the evidence in the case at bar, no injury could possibly result to the plaintiff; — if he had declined accepting or acting. under the grant of administration, there could be no difficulty in showing it. In the absence of any such countervailing proof, the court should not have instructed the jury that the evidence was insufficient; and consequently,, the judgment must be affirmed.