Spencer v. Langdon

Caton, C. J. The first question presented by this record is, whether the certificate of the record of the court of probate in Ohio, is sufficient under the act of Congress. That certificate is by the sole presiding judge of the court, under the seal of the court, by whom the records of the court are kept, there being no clerk. This objection has been sustained in Massachusetts and New Hampshire, and has been overruled in Connecticut, Pennsylvania, Yermont and Kentucky. The decisions in' the latter States, we consider more in conformity to the spirit and intention of the act of Congress, and will be adopted by this court. We are therefore of opinion that the Circuit Court decided properly, in admitting the record in evidence. A special plea was filed, concluding with a verification ; to which a similiter was added ; upon which, the parties went to trial without objection. To this replication the defendant below now objects. It is too late to raise that objection now. The similiter was a nullity, and was no answer to the plea. The parties by agreement, went to trial, with a plea unanswered. This was decided to be no ground for reversing the judgment in the case of Ross v. Reddick, 1 Scam. R. 73. And upon the same principle was the case of Bruzzle v. Usher, Breese R. 14, decided, where it was held that if the parties go to trial without any plea, the objection was waived, and the judgment was affirmed. But we have no sort of doubt that this defect of pleading was intended to be cured, and was cured, by the sixth section of our statute of jeofails. That is as broad as our language could make it, to cure defects and omissions in pleadings, by which it was the design of the legislature to cut off all advantages arising from the carelessness and omissions of clerks and' attorneys, ivhere no objection should be made before trial, so that the courts might render judgments according to the very right of the case, without regard to such errors; which are in substance technical, though they may be substantial in form. The judgment must be affirmed. Judgment affirmed. Walker, J., having tried this cause below, took no part in the decision of the case.