Clara v. Meagher , 5 H. & J. 111 ( 1820 )

Dorsey, J.

delivered the opinion of the court.

The only question in this case is, whether the paper produced and offered in evidence by the appellant is legal evidence of his title to freedom? And the solution of this question depends on the act of assembly of the state of Delaware, passed in the year 1797, ch. 124. (He here read the sections before set forth.)

The language of the act is imperative, that the subscribing witness or witnesses shall attest the deed of manumission in the presence of the grantor. If such attestation is not made, the deed is inoperative. The court do not consider it necessary that the witnesses should certify, by their attestation, that they did attest the deed in the presence of the grantor, but the fact must be proved, if capable of proof; and it is capable of being proved, if the witnesses are alive; and as it does not appear by the record that they are dead, there can be no presumption in favour of the deed. Croft vs. Pawlet, 2 Strange, 1109. Brice vs. Smith, Willes's Rep. 1.

The proof made by the subscribing witness, before the Court of Common Pleas held for Sussex county, does not establish the point that the witness did attest the deed in the presence of the grantor. He proves that he saw the grantor sign, seal and deliver the deed, and that he subscribed his name thereto as a witness; and this proof is perfectly consistent with the idea that the witness did not attest it in the presence of the grantor.

JUDGMENT AFFIRMED.