Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-16
Bone vs.. Greenlee.

Bone rs. Greenee.
This was an action of assumpst for goods, wale
and merchandise sold and delivered by the plaintiff
| to the defendant, The action was commenced by
attachment-the defendant being nonresident On
the trial verdict and judgment were rendered
for the defendant, and an appeal in error to this
| Court.
The plaintiff proposed to establish the account
sued on, by promise to pay the same made by E.
+ Greenee, (the brother and agent of the defend
anti in the winter of 1858; and to show the author
ity of the agent to make the promise and its obga-
tory force upon the defendant the plaintiff offered to
read "a power of attorney" executed by the de-
PENDANT, on the llth of December, 1858, in Burke
county North Carolina, constituting said T. E. Green
lee his agent and attorney in fact for various pur-
poses, in Tennessee; and among Others as was as
sumed 10 adjust and pay the account sued for The
defendant objected to the reading of the power of
attorney, on the ground "that it was not properly
authenticated This objection was sustained by
the Court to which the plaintiff excepted.
Whether or not the COnrt erred in this ruling de-
ponds upon the construction to be given to the pro-
visions of the Code upon this sublect-the instru-
ment having been executed and the suit commenced
since 1t went into operation.
The power of attorney was acknowledged by the
maker before the Clerk of the Court of Pleas and
Quarter Sessions of Burke county, North Caro- lima,
which is shown to be Court of Record The 'au-
Identification" of the instrument is in conformity
with the requirements of the Code in ali respects,
(Sec. 2O3S to 2046 nclusve) except that the Clerks
certificate of the acknowledgment does not pursue
the formula prescribed by section 2042. The i'm
port fact is not recited that the Clerk person
ally acquainted with the maker
For the plaintiff insisted that this provision Is
applicable alone to instruments made and acknowl-
edged in this State and that it not intended to
&pply to any instrument made beyond the limits of
this State that it designed to leave the latter
to be acknowledged proved, according to the law
of the place where made
We do not concur in this construction of the pro-
visions of the Code. We think the obvious purpose
of its authors was, to prescribe uniform rule for
the authenticatIOn of all instruments required TO
be registered by our law, irrespective of whether
they were made and acknowledged or proved,
within or without the limits of this State.
That it was competent to the Legislature to regu-
late the mOd6 and prescribe the form in which in
strumens executed by nonresidents affecting rights
of property or of persons. within our jurisdiction
should be authenticated. will not be questioned and
the convenience and expediency of uniform rule
upon this subject is sufficiently apparent.
Section 2042 provides that if the acknowledge
ment be made before the clerk of the County Court
of this State the prescribed certificate Of ac[nowl
edgment shall be annexed to the instrument. The
following sections which have reference to instru-
ments executed beyond the limits of this State, d-
rect how the different tribunals and persons en-
powered to take Acknowledgements or probate shall
respectively make 1.-The certificate obviously refer
ring to the certificate prescribed IN the previous
tion.
Upon any other construction we are left without
any other rule so far regards the probate and
thentlcauon OF foreign instruments, inasmuch all
former laws on this subject are repealed by .he
LODE 1t follows that the power of attorney was
properly EXCLUDED. Judgment affirmed. MCKINNEY.
Test: N. D. WEIGH, Clerk,