Ghollister v. Armstrong

10 Del. 46

• Court: Superior Court of Delaware
• Decided: July 5, 1875
• Status: Published

Opinion

The Court:

The copy of such an indenture or record in another State can only be given in evidence in our courts as an exemplified copy of the original under the act of Congress. In this case the certificate of the clerk of the county was drawn, as it should have been, according to the usual form followed in that State, for the act of Congress does not prescribe any form for such a certificate, but it does prescribe in express terms, and we think imperatively requires, that the certificate of the presiding justice of the county afterward to be affixed to it, should state in addition to its being in due form that the certificate of the clerk was by the proper officer, we will not say in so many identical words, but to that effect unequivocally and without any doubt or uncertainty as to the meaning and sufficiency of the terms employed for that purpose. If his statement had been either in terms or in effect certainly that it was in due form and by the proper officer, which are the words of the act, they would have necessarily imported in this case that the clerk of the county who furnished the copy and affixed his seal of office to it was the lawful keeper of the original and public record of the deed in question, for the act of Congress expressly provides that the lawful keeper of such a record or office paper shall be the proper officer to furnish the copy, append in the first place his official certificate and affix the seal of his office to it, and that then the presiding judge shall add his certificate that the preceding or first certificate is in due form and by the proper officer, or, in other words, by the lawful keeper and custodian of the original record. This is not stated nor necessarily implied, we think, in the certificate of the presiding judge in the authentication of the deed in this case, and we must, therefore, exclude it. There is a marked difference in the provisions of the acts in relation to the authentication of a deed or an office paper like this, and of a judgment or decree or proceeding of a court of record in another State, the latter containing no such requirement as the former in this respect.

Cooper, J. B. Rodney, and Cray, for the plaintiff. Bradford and Spruance, for the defendant.

The case afterward went to the jury, and after a charge on the facts proved the plaintiff had a verdict.