Grant v. Levan

4 Pa. 393, 1846 Pa. LEXIS 258

• Court: Supreme Court of Pennsylvania
• Decided: January 25, 1846
• Status: Published

Opinion

Burnside, J.

The plaintiffs in error were plaintiffs below, and brought this ejectment for four thousand three hundred and sixty-six acres of land, surveyed on ten adjoining warrants in the names of Robert Martin and others, dated the 12th of January, 1793, and surveyed by William Wheeler, deputy-surveyor of Berks county, (now Schuylkill county,) on the 21st, 22d, 23d, and 24th days of May, 1793. The plaintiffs claimed under Robert Martin, and the defendants under Robert Morris. To prove that Robert Martin was the owner of the warrants and surveys in question, the record shows that Robert Martin had filed applications in the land-office in the months of January, February, and March, 1793, for lands in Northumberland, Luzerne, Berks, and Huntingdon counties, amounting to a hundred and fifty warrants of four hundred acres each. The office received all applications, but issued no warrants until the money was paid to the receiver-general when the warrants issued, bearing the date of the filing of the applications. To raise money to pay the Commonwealth, Martin, on the 21st of March, 1793, entered into an article with Robert Morris, “ which recites that Robert Morris did, in the month of November, 1779, pay Col, Martin a sum of ¿£12,000 continental money, equal, with interest, to ¿6561 0 5 specie; and also the said Robert Morris did, in July, 1784, obtain warrants for twenty-five tracts, in the names of divers persons, which, by agreement, the said Martin was to have caused to be surveyed and patented, but which has never been done.

« And whereas, the said Robert Morris has assigned the above-mentioned warrants to the said Robert Martin, and hath also this day paid him the sum of ¿6250, specie, he, the said Robert Martin, doth, in consideration of the payment aforesaid, and of the assignments of tiie said warrants, engage that he will, between now and the first day of November next, taire up, and cause to be surveyed as much good land in the county of Northumberland, as, at a quarter of a dollar per acre, will amount to the sum of ¿62325 10 9; and the said Robert Martin doth further engage, that he will, at his own proper cost and expense, procure and deliver the said Robert Morris patents.for the same.” By this agreement, Martin was to give Morris good patented land in Northumberland county, (which then embraced the present counties of Northumberland, Columbia, Union, and parts of Centre and Lycoming,) at a quarter of a dollar per acre. The land in con-, troversy was in Berks county, and not in any application for lands in Northumberland county. The application for the lands in question was for land in Berks, • Luzerne, Huntingdon, and Dauphin counties. They further gave in evidence the old purchase blotter of the 27th of May, 1793, No. 10792. This blotter was kept by John Keble; owing to its accuracy and truth, extracts from it, duly certified, are made evidence by legislative enactment; it shows that Colonel Martin paid for

154 lots. 60,500 acres a 50s. ¿61512 10

.1 10 00

In all, 155 Amount, ¿61522 10

He paid this by the twenty-five warrants which he received .by the article for Robert Morris’s purchase money, and interest, £1522 19

And that Squire Martin paid the fees, £77 10.

Unsatisfied warrants at this period were received in payment for new warrants, and passed by endorsement or assignment, under the provisions of the act of the 29th March, 1792. They were bought and sold like bank notes, or any other species of merchandise, by persons wishing to take up vacant lands. The agreement between Morris and Martin is explicit. Martin owed him an old debt for continental money. Morris was to give him the twenty-five unsatisfied warrants, and to advance him the further sum of £250; and Martin was.to pay the whole debt, and the interest due thereon, in lands, at 25 cents per acre, in Northumberland county. By their agreement, Morris had no claim to the lands in Berks county, nor did he claim them, or mention them in the schedule to his deed to Biddle and Bell in 1797. In that schedule he has about twenty-five thousand acres 'in Northumberland county, held by warrant-right, bought of Robert Martin, which he values at $1 per acre. ’ So in his return on oath to the commissioners of bankruptcy, under the act of Congress of 1800, he says nothing about these lands; but returns—« Robert Martin, he stands charged in my book with $1245 30, which is to be balanced by cost and charges of land agreed for; the agreements are among my papers.” It is then clear that the agreements between the parties has no reference to the lands in question; that Robert Martin paid the Commonwealth for the lands in dispute. It is true, Robert Morris enabled him to pay the state, and that Robert Morris was to be repaid in lands in Northumberland county, at 25 cents per acre.

The assignments of error will now be considered in their order.

1. The plaintiffs having given evidence that they were heirs of Robert Martin, except Lewis Dewart, offered in evidence a deed,dated the 12th May, 1845, from George Grant to Mr. Dewurt. George Grant was a son of Deborah Grant, who was a daughter of Robert Martin. It was proved on the trial she died on the 22d February, 1845. This deed was objected to by the counsel of the defendant, and rejected by the court; and this forms the first assignment of error. • Lewis Dewart had been substituted as the plaintiff in the room of Deborah Grant, deceased, and the jury sworn. The deed was offered under the third section of the act of the 13th April, 1807, Dunlap; 201, it provides:. «No writ of ejectment shall abate by reason 'of the death of any plaintiff or defendant, but the person or persons next in interest may be substituted in the place of the plaintiff or defendant, who shall have died pending the writ.” This act was passed to facilitate the trial of ejectments, and has received a liberal construction. Such was the decision of the court in Darnes v. Welsh, 7 Serg. & Rawle, 203, where the widow of the defendant was in possession after the death of her husband. The court granted a rule on her to appear as next in interest; she refused to be made a party, but the court ordered her to be substituted. We all think this act authorizes, where the ancestor dies, pending a writ of ejectment, and the heir aliens, the alienee of the heir may be substituted, when the ancestor has not made provision by will for persons to represent him as next in interest.

The second, third, and fourth errors assigned will be considered together.

2. In admitting in evidence the record of the judgment of Joshua B. Bond v. Robert Morris, No. 161, of December Term, 1796, with scire facias, the execution, sheriff’s sale, and deed.

3. The last will and testament of Robert Morris and Mary Morris, and the release of Henry Nixon and wife, to William Rawle.

4. In admitting the agreement between Henry Nixon, Maria Nixon, William Rawle, by their attorney, William Rawle, jun., and George Grant, in December, 1830. The mortgage of George Grant to John Cowden, and the writ, sheriff’s sale, and sheriff’s deed thereon.

The defendants were in possession, and claimed under the title of Robert Morris. They had a right to give their title in evidence, and pray the instruction of the court thereon to the jury. It is true, if Robert Morris had no title, and the title to the lands in question were in the plaintiffs, they would not be protected. They only bought all the right, title, and interest that Robert Morris had in the land. We think it best, as a general rule, where persons are in possession of land, to permit them to show what title they claim under, as a title by improvement in opposition to a patent, or a junior warrant in opposition to an elder warrant and survey. The duty of the court arises after the evidence is all received, to give the proper instruction to the jury.

5. This exception is to the error of the court, in admitting in evidence the note in writing, dated 27th February, 1793, purporting to be from Robert- Martin, and another note from the same to Robert Morris, as stated in the eighth and ninth bills of exceptions. These notes preceded the article of agreement of the 21st March, 1793. In the first note, of the 27th of February, Mr. Martin proposed to Mr. Morris, “ that he would pilase to relinquish the contract made in 1784, and let Mr. Martin haye the benefit of the old warrants; he will patent as much land at *1 10 per acre as will amount to the principal and interest of the money Mr. Morris has advanced. Mr. Martin hopes, if the above terms should be refused, that Mr. Morris will not suppose Mr. Martin made these proposals with a dishonourable intention, but rather from his embarrassed circumstances.”

And the second note on the 14th of March: “If Mr. Morris will pay the purchase money for sixty thousand acres of land in the old purchase, Mr. Martin will patent for him as much land as will amount to the money advanced and the old debt, at 1 10£ per acre.” A week after this, they reduced their agreement to writing, and signed and published it in the presence of witnesses. (What we understand by the old purchase was the land within the purchase of 1754 and 1768, and by the new purchase the lands within the purchase of 1784, lying north of the west branch of the Susquehanna, and west of the Lycoming and Towanda creeks.) This agreement was the contract of the parties. We are unable to see any thing in that agreement inconsistent with these propositions. Both showed that Martin had failed to locate the twenty-five warrants of the 1st July, 1784, (the day the land-office first opened under the Commonwealth.) The legislature had reduced the price of land in the old purchase. The twenty-five warrants had cost. <£10 per hundred acres; a credit could be had for them in the land-office; principal and interest, and new warrants obtained at 50 shillings per hundred acres. These propositions do not seem to have much bearing on the case. The agreement in pursuance of them is plain, clear, and explicit. The only argument that could be drawn from them was, that Martin said he was poor, and claimed the clemency of Mr. Morris. It was not wrong in the court, in this case, to receive the propositions that preceded the article in evidence. That one of the parties was poor and the other rich affords, no reason to change their contract.

6. The sixth error assigned is, that the court erred in admitting in evidence the memorandum purporting to be endorsed on the draft of the lands as follows:—

“ These lands sold to Robert Morris, Esq., of Philadelphia. Deed polls to him ; purchase money paid me. Robert Martin.

“ The over measure to be cast up and accounted for.”

On a draft of the ten tracts in question, this memorandum was placed by Robert Martin. It was in evidence Robert Martin died in about 1800, and had a paralytic stroke in 1795. George Grant was called by the plaintiffs, and testified:—“ I found this draft among my father’s papers in a trunk, (the uraft with the endorsement on it, and the trees,) in 1828 or 1829—Sut I must have seen it before; but I never said any thing about it till' Conrad came up into that country, inquiring for the heirs of Robert Martin. I saw Conrad the next summer at the Sunbury court. I told him I had a draft of those lands of Robert Martin. He told me to bring it down and show it to him. I went to Philadelphia in 1828 or 1829, and went to old Mr. Rawle, and told him I knew of some land belonging to Robert Morris, and if he would make me interested in the matter I would disclose it to him. He said he would, and we agreed upon the terms—I was to have one-half. I then went and gave him a description of the property. I think I showed him that draft. We entered into an article of agreement. He said he would proceed in the matter and bring it to a close. Some time after that I made another agreement. Nixon would not consent to the revival of the judgment, and the amount of it was, Mr. Nixon became interested, and the judgment was revived and the land 'sold. William Laird got the half of a tract. He was to have had a whole tract, and Nixon had agreed to it, and then flunked, and we had like to have come to cross-purposes. The lands were sold, and I got one-third, deducting Laird’s part, one-third of nineteen-twentieths.

“ My father married Robert Martin’s daughter. My mother (Deborah Grant) died February 22, 1845. My father died in June, 1815, I think the 15th or 16th of June.

“ In 1837, when I came home, I found the original article of agreement between Robert Martin and Robert Morris. I found it in the same trunk with the drafts.”

On cross-examination:—“ I delivered the draft to William Rawle, jun., who transacted the business for his father. The first article was with the elder Mr. Rawle. I cannot tell how long after my father’s death I first saw it. I was looking over the papers frequently. I must have seen it before 1828—it was in a bundle of drafts. I .must have seen it before, or I could not have told Conrad then of it. It wras a curious Dutch draft—yellow; knowing that Conrad had shingled it with new warrants, but I did not let Conrad see the endorsement on it. I talked with my mother about it; I do not recollect showing it to her, but I have no doubt I did. She was one of the executors of my father. I do not think I informed any of my uncles of it till shortly before the sale, when I told William Martin of it. If I did not show it to him, I told him of it, but I think I showed him it. I think it was in the winter of 1830 that William Martin first became acquainted with it, because I eame down then with Mr, Laird to savvey the lands. I had the draft with me when we surveyed the land, for I then let Dr. Kugler take a copy of it. The writing at the top—‘ General draft of Esquire Martin’s land on the head of the Swatara, Berks county,’ is in Laird’s handwriting. It must have been put on by Laird' in 1829 or 1830, for I took it out of his' hands in 1830. Shortly before I came to the sale, a man named Dr. Baker wrote to him to come down ; then William Martin set up a claim to them. He claimed the lands before the sale, and-came down to see Dr. Baker. I found him here when I came here, I got James Hepburn to draw up the notice at the sheriff’s sale,, and .got my mother to sign it, and got Billy Martin- to sign. it. It was my object to prevent the lands-from- being bid up too high* I told Rawle, before and after the sale of this. Henry Pratt was up looking at it, but he said he did not want to buy a lawsuit. Joseph Lippencott and some more were looking at them-. The new warrant holders gave no notice of their claim of title.. The Swatara Coal Company gave no notice. Joshua Martin; and- Bankes^ and Starr, gave no notice.”

_ This is the material point of the cause: The effect of this endorsement-in the handwriting, and under the signature-of Robert Martin, on the draft of the ten tracts in dispute, « These-lands- sold to Robert Morris, Esq., of Philadelphia. Deeds poll- to him; purchase-money paid me. Robert Martin. The over measure- to be cast up and accounted for.” There is no date, but to judge from the boldness and steadiness of the hand, the endorsement would seem to be made before the' writer had become paralyzed, and consequently a considerable time before his death. This memorandum is the-defendant’s title; and the question is, how is it to operate ? As a written agreement for a conveyance from Martin, or for conveyances directly from- the warrantees, which it is said equity would execute specifically, the iterms of the contract would be sufficiently stated to take it out of the statute of frauds. If the endorsement were a written agreement; that consequence would follow. But an agreement-is the. assent of two minds to the same thing; it requires that the written evidence - of-it, when it is reduced to writing, as well as the agreement itself, should be seen and assented to by both parties. It- is not merely a secret memorandum made by one of them for his private satisfaction, but it must be the evidence of the bargain-appointed hyboth; just as subscribing witnesses are appointed to attest-the-execution-of the instrument; It may be evidence by a letter sent from the one to the other, and accepted as well as acted upon as an offer of terms, or by a receipt or memorandum sufficiently stating the conditions; but in these instances the paper is parted with as evidence of the thing agreed to. The principle, that delivery is necessary to give effect to a written agreement, is not confined to specialties. In declaring upon a promissory note, the plaintiff always avers that the maker of it had delivered it; and forms of pleading are the best evidence of the principles of the law.

No one would pretend that a man’s undelivered note or bond, found among his papers at his death, could be recovered from his executors, or that a sealed declaration of trust kept by him in his own possession would have any effect; and we cannot see why an unsealed as well as an undelivered memorandum of an agreement should have more. In Plumstead’s Appeal, 4 Serg. & Rawle, 545, an envelop containing several securities, and endorsed with the words and letters “For Rebecca Gore,” and another “for the heirs of George Plumstead,” in the handwriting of the deceased, never having been out of her possession, and without any communication made to any one on the subject, or any evidence to show at what time or for what purpose the endorsements were made; held, not to be of testamentary character. The attempt was, to procure it to be admitted to probate, because it was well known that it could have no effect in any other shape. It could not operate as evidence of a gift, to which delivery of the thing given was necessary to a note or a bond. But the principle of Charlewood v. The Duke of Bedford, 1 Atk. 497, that a writing, to be binding within the statute of frauds, must import the assent to it and privity of both the parties to be bound, is still more directly applicable to the case before us ; and there it was held, that a mere entry of contracts with tenants on a steward’s book is inadmissible as evidence of á contract for a lease. Yet the entry of the steward was the act of the principal; and the decision consequently was, that a private memorandum of an agreement on a man’s own book, is not sufficient to take it out of the statute. And why should this private memorandum on the back of a private draft have a greater effect ? It was held in Ayliffe v. Tracy, 2 Peere Wms. 65, that the proposal of a marriage portion sent in a letter to a third person is insufficient, unless it "was shown to the person who afterwards married the daughter.

It would seem from this, that while the proposal remains in the power of the writer or his friend, it is a private matter; but that when actually shown, it is the same as if the terms were directly proposed to the husband. The endorsement before us, therefore, was not an agreement “ put in writing,” according to the words of our statute; how far is it to have effect', as any thing else ?

The doubt is, whether it ought to have any effect. The utmost that can be allowed to it is that of an admission, that Robert Martin had previously sold the lands to Robert Morris, and that-he had received the consideration for'them; but an admission having ho more force than a verbal declaration. It is certainly not ah admission that he had sold them, and conveyed them by a writing signed by him; and it is necessary to give the endorsement an effect to that extent, in order-to take the case out of the statute. That there was a written conveyance, is a part of it to be established by the defendants, and the burden of proving it lies upon them. But the admission is barely that Martin had sold and received the purchase money; not that he had conveyed, which was the operative word in McDonald v. Campbell, 2 Serg. & Rawle, 473. On this part of the case, that decision is a decisive authority for the plaintiffs. This interpretation of the endorsement is fortified by the words in it—“ deed-polls to him,”—the evident meaning of which is no more than that the déedspoll were to be mad'e from the nominal owners of the warrants directly to Robert Morris, instead of being made to Robert Martin, in order to be followed by a conveyance from Martin to Morris. ■ That they had not yet been made, is evident from the fact, that'some of them were outstanding long afterthe death of the original parties, and from the memorandum “ The over measure to be cast up and accounted for.” The endorsement, therefore, imports no more than there had been a verbal sale to Mr. Morris, and it is easy to conceive from the subsequent embarrassment arid ruin, why it'was riot consummated. It is probable that these tracts were intended to -be taken in place of an equal number covenanted to be located in Northumberland county; but it appears, that these parties, who seem to have dealt with each other pretty much upon honour, had changed the'terms of their agreerrient more than once, and it would be dangerous to say they had not done so again. It is -probable that-Mr. Martin did not comply with his covenant to locate the proper number of tracts in the county specified, or'with his verbal agreement to throw in the tracts in dispute to make up the deficiency; and'so far the estate of Mr. Morris may have been prejudiced; but it is too late to speculate on these matters. After the lapse of half a century, it is now too late to say what'would be just between the parties. If the endorsements had indicated that the deeds-poll were already made, a presumption of their loss might have arisen from lapse of time sufficient to justify an assumption that the title had passed; but it imports no more than the existence, at one time, of a parol agreement executed in part only by payment of the price, which is insufficient to take it out of the statute of frauds. Whether equity would execute it at a period so remote if the statute were out of the way, or presume it to have been abandoned, and the moneys restored, or that the original contract had been satisfied in some other way, it is unnecessary to determine.

It is sufficient for the purposes of the present decision, that the statute of frauds is a flat bar on thé ground that the parties neither put the contract in writing, nor executed it in part by delivery of possession in pursuance of it. Whether the defendants are entitled to hold the interest or share of George Grant, was a point not made in the court below, because his conveyance to Dewart was improperly rejected; or in this court: as it was not made or argued here, •I am forbidden from giving a binding opinion upon it. I think it well worthy the deliberate consideration of the counsel of the plaintiffs, whether it is possible for either him or his alienee to recover? whether the law does not estop them?

7. In admitting in evidence the deed from Richard Martin and wife, Robert Martin and wife, and other heirs and legal representatives of Robert Martin, to William Grant, as mentioned in the eleventh bill of exceptions.

This deed had no relation to the lands in question; it was for lands in Northumberland county. ' If the lands conveyed by this deed did not belong to Robert Martin, it conveyed no title. If the lands' belonged to Robert Morris, they are still a part of his estate, unless they-are lost by the statute of limitations. Suppose these lands did belong to Robert Morris, is that any reason the creditors of Robert Morris should take lands in Berks county of the estate of Robert Martin in execution, and sell them as the estate of Robert Morris ? The evidence tends to raise a false and irrelevant issue, calculated to perplex and mislead the jury, and was improperly received.

8. In receiving in evidence the testimony of George Grant relative to Thomas Martin, giving up twenty tracts of land in Northumberland -county, to the sheriff of that county, to be levied under the execution of George Grant v. The Administrators of Robert Martin; and in admitting the record of that judgment, the execution, sheriff’s return, &c.

Nor are we able to discover the relevancy of this evidence. It cannot be pretended, that if Robert Martin, at his decease, had no title to these twenty tracts of land, that the purchaser at sheriff’s sale obtained title. If the title to these twenty tracts was in Robert Morris or in any other person at the time of the levy and sale, that the sale of the lands as a part of the estate of Robert Martin divested that title. Nothing passed by the sheriff’s deed, but the right, title, and interest of Robert Martin, deceased, at the time of his death. Where the defendant has no title to the lands sold, the sheriff’s sale will not make a titlé; nothing passes but the right, title, and interest in the land of the defendant in the execution. This evidence ought to have been rejected by the court.

'9. The next assignment of error, is'in permitting William Rawle to testify to the matters mentioned in the fourteenth bill of exceptions.

It is admitted Mr. Rawle had a, claim upon the lands for a balance of purchase money. But it is said by the counsel of the defendant, that he was only examined by the court to lay the foundation for the admission of secondary evidence. The record shows he was examined in chief. No bill of exception lies to evidence received by the court to lay the foundation for the admission of secondary evidence; after the court has received what is deemed a sufficient foundation for the secondary evidence, then a bill of exceptions lies to the secondary evidence; and on that bill of exceptions this court will consider whether sufficient and proper evidence was given to the court to warrant them in admitting the secondary evidence. This court will also judge of the propriety and pertinancy of the secondary evidence to the issue. But we see no reason why the plaintiff’s counsel object to the defendants proving that they had searched for deeds-poll among the papers of Robert Morris, and could find none for the lands in question. No person interested in the issue trying is a competent witness in chief.

10. In admitting in evidence the assessments of these lands from 1832 to 1838 to prove the continual claim of the defendants.

It is the universal practice on the trial of ejectments in Pennsylvania, to permit either party to show that they paid the taxes assessed upon the land. The payment of taxes is evidence of claim; but the payment of taxes for five years or longer does not make title. It was not. error to receive this offer of the defendants. No question of law was raised by either party on this payment of taxes.

11. In permitting George Grant to testify, in relation to his representations that the title he acquired under Robert Morris was good, and that he was in treaty to sell the same until after his interest was sold, as mentioned in the sixteenth bill of exceptions. *

So long as Dewart was a plaintiff on record, and the jury sworn to try his right to the lands claiming under George Grant; his declarations before he conveyed to Dewart were certainly evidence. It was evidence to them that he was estopped from setting up his after-acquired title, having first induced others to expend their money in acquiring a title under Robert Morris by sheriff’s sale, in which title George Grant had an interest. It was not evidence to effect those who had no connection with the sheriff’s sale. The act of turpitude of George Grant could only effect those of the plaintiffs who w7ere actors with him.

12. That the court erred in refusing to permit William Martin to testify that (in pursuahce of the agreement made by William Levan, one of the defendants with him, to give him $5000 if he would-procure the title of the heirs of Robert Martin) he procured deeds to himself from six of the heirs. That he executed a deed to Levan on terms conveying- the same to him, which was deposited as an escrow with William A. Lloyd, and to be delivered on the payment of the purchase money. That Levan surreptitiously, and without the payment of the purchase money; and in fraud of the agreement between the parties, obtained the deeds from' William A. Lloyd, put them bn record, and retained them without ever paying any consideration money as mentioned in the seventeenth bill of exceptions.

The court very properly rejected all this offer, except that William Levan agreed to give $5000, if he would procure the title of the heirs of Robert Martin. This was admitted on the ground that it was notice that the-heirs of Robert Martin claimed the land. It was evidence for no other purpose; all the rest of the offer was raising a different issue than the one trying, as we-understand.the cause. The six heirs of Robert Martin, who had released, were not plaintiffs in this ejectment. Mr. Levan had a right to buy his peace. There was no issue trying between the releasing heirs and the defendants, and how that release was procured, was perfectly immaterial in the the.cause trying. . ' ■

-' 13.. This offer also, “ to show that-the. creditors of Robert Morris had levies made, on all his property that could.be discovered,” was properly rejected. It did' not tend to elucidate the title.to the lands in question on-either side.

14. The- court were right in rejecting the agreement between William Levan and- William A. Lloyd,, as mentioned in the nineteenth bill of exceptions. It neither strengthened nor weakened the plaintiff’s title. The plaintiffs'in this action had no connection with that agreement., '

15. The next error assigned is the admitting in evidence what purported to be-a copy of the dismissal or supersedeas of the commission of bankruptcy in the District Court .of the United States, for the Eastern District of Pennsylvania, as mentioned in the twentieth bill of exceptions.

' This question is of small consideratio'n in.the case before us, but being pressed on this court, an opinion is indispensable. The certificate of dismissal or supersedeas of the proceedings in bankruptcy is certified by the district judge, under his hand and his own private seal, (like a signature to a bond,) and the clerk of the court, uñdqr the seal of the court, certifies that he is the judge. The-district courts of the United States are courts of record, with exclusive civil and criminal jurisdiction. Every District Court has a clerk, whose duty it is to enter all things-judicially done by-the judge. 1 Story’s Laws U. S. 56. By. the act of Congress; 1790, (1 Story’s Laws, 67,) all writs from the court bear test of the judge, and are signed by the clerk with the seal of the court. The clerk is the keeper of the records and proceedings of the court. Under the bankrupt law of the 12th of April, 1800, sec. 2, (1 Story’s Laws, 733,) the proceedings commenced by petition to the district judge, on which the. district judge appointed commissioners. The proceedings were all in the District Court. The act of the 26th May, 1790, provides that the records and judicial proceedings of the state courts shall be proved by the attestation of the clerk, and the seal of the court annexed, if' there be a seal, together with the certificate of the judge that the attestation is in due form. Why should not the courts of the United States be held to the same rule'Congress has prescribed to the state courts. In this certificate the judge takes the place of the clerk, and the clerk of the judge. As Congress has not prescribed a rule of attestation to. their own courts,'we must resort to the common law rules. An office-copy of. a record is a copy authenticated by a person intrusted for that purpose ; it is admitted in evidence upon the credit of the officer, without proof that it has been actually examined. 1 Greenleaf Ev. sec. 507; 2 Phillips, 387; Buller, N. P. 229. We think "the clerk is the keeper by law of the proceeding in bankruptcy in the District Court; and is the person to certify to their correctness-and verity, under the seal of the court, and the judge to certify that his attestation is in due form.

16, This assignment of error is not supported, nor has it been pressed on the court.

17. The court were right in receiving the certificate of Thomas J. Rehrer. He had certified the copy, with the seal of the surveyor-general’s office, and for the surveyor-general.- It was not Thomas J. Rehrer’s certificate, but the certificate of the proper officer. Such certificates have been received in evidence in all the courts' of the state, since the office was first established by William Penn.

18. Several exceptions were taken to.the charge of the court. As the cause on another trial must assume an entire new appearance, we deem it unnecessary to notice the exceptions in detail; this court fully agree with the judge below, that the land-office of Pennsylvania demonstratively shows that the lands in question were entered and paid for by Robert Martin—that the title was in him. This court have given an opinion on the legal effect and operation of the endorsement on the draft so surreptitiously put in circulation. By that endorsement the title of Robert Martin is not divested, and a jury no doubt will be so instructed on another trial.

The judgment is reversed, and a venire de novo awarded.