Craufurd v. State ex rel. Muir , 6 H. & J. 231 ( 1824 )

Martin, L

delivered thé opinión of the coxirt. Whether the paper dated the 9th of November 1816, oil Which this suit wá'S instituted, is the deed of Craufurd, signed, sealed, and delivered by him; afe facts to be submitted to the jury; ánd the only question for the consideration of this coxirt is, whether the testiihorfy offered at the tiiaí Ought to have been i-eceived for that purpose.

The counsel of thé plaintiff, to support the issue's on the part of the plaintiff, read in evidence to the jury the original bond of 1816, having proved by the subscribing witness, that it was signed and sealed In his presence, but nothing said of the delivery. Had he rested his casé entirely on this original paper, it caitfiot be doubted that if would be corripe'tent for the defendant, upon thé pleas ill this case, to give evidence that the bond was delivered as an escrow; and if the jury were satisfied that the defenSlant had proved His pleas, they ought to have rendered a Verdict in Ixis favour. -But the plaintiff also offered in evidence a certified copy of this bond from the records of the orphans court, and this px;esents the' question, whether that copy was coiiclusive évideiíée of thé due and legal execution and delivery of the bond.

Where' an instrument of writing is required by law to be recorded; the enrolment of it is evidence of all circumstaxices necessary to give it validity. Rut this e vidence is iiot conclusive; it is only prima facie, and like all prima facie evidence may be rebutted. To give it a conclusive effect might be ruinoxis to the Community; an enrolment, however obtained, would exclude all inquiry; it would be a shield and protection to fraud, forgery and deceit,

We therefore think that the court erred in rejecting that-part of Trueman Tyler’s testimony that related to the bond of 1816; the i'esidue of his testimony, respecting the bond of 1812s was not legal evidence, and the court did right in excluding it.

The judgment is reversed with costs, and a procedendo awarded.

JUDGMENT REVERSED, &C,