Page:Federal Reporter, 1st Series, Volume 8.djvu/224

 210 FEDKBAL EBPORTER. �sold by him, "at the instance of, said guardian, on January 8, 1867, to Alexander Hodges, he being the higheri bidder therefor, for $960 in gold coin, payable in five years, with interest at the rate of 12 per cent, per annum,, payable in advance, and secured by mortgage on the premises; and the order of said court dated February 7, 1867, confirming said sale and directing the guardian to execute a convey- anoe thereof to the purchaser." The guardian conveyed to Hodges on March 11, 1867, who, on October 10, 1870, conveyed the north half of the premises to J. S. Bevens and the south half to M. E. Davis, who afterwards conveyed to the defendants — the latter on October 26, 1871, and the former on December 7, 1872. �The first point made by the plaintiff in support of the motion for a new trial is that the court erred in admitting the copies of the pro- ceedings upon the inquisition of lunacy, because the originals were void, not having been kept atid entered in the proper book, To un- derstand this objection itis necessary to pjremise that the county court "has the jurisdiction pertaining to probate courts and boards of county eommissioners, *: * * and such civil jurisdiction, not exr ceeding the amount of value of $500, * * * as may be prescribed by law." Const. art. 7, § 12. And by section 876 of the Civil Code it is provided that these three kinds of business, to-wit, (1) leases at law; (2) probate business ; and (3) county business, "shallbe entered and kept in separate books ;" and the argument of the plaintiff is that these orders belong to. probate business, but have been entered in the book with county business, and are therefore void. The argument assumes that said section 876 was in force when these transactions took place. But this is a mistake. The Civil Code, although passed on October 11, 1862, didnot take effect until June 1, 1863. But upqn examination we find that substantially the same provision coneerning "the settlement of the estates of minors, idiots, and lunatics, and all cases of the nature of probate," and "all county business," was con- tained in section 21 of the act of June 4, 1859, relating to county courts, (Sess. Laws, 12,) and then, and until June 1, 1863, in force and applicable to these proceedings. �It does not appear from the certificate of the clerk to these copies, dated October 13, 1874, that the originals were not entered in a separate book, On the contrary, the fair inference from the certifir cate is that they wereso kept, The clerk describes himself as "the keeper of the probate records," and then certifies that the transcript is a true copy of the original orders made by the court in the "com- mitment" and esta te of William Fulton. But on the hearing of the ��� �