principal neglecting or refusing to receive his debt, when in his
power to do so, and who thereby exonerates the surety, is on
principle more analogous to the circumstance of this case, than
any which have been adverted to. The ignorance of the execu-
tors of the law on the facts, which it was their bounden duty to
know and ascertain, and which they might have known by exer-
cising due diligence and prudence in the performance of their
duties as executors, ought not, in my opinion, to avail them. If
it will exonerate them, few executors can hereafter be made
liable. There are indeed but few among them who are capable
of fulfilling the duties intrusted to them, and if men will under-
take the management of trusts, which they are entirely in-
competent to perform, and afterwards neglect to seek correct
information from those who are able to give it, justice, reason, and
the soundest principles of equity require, that any loss which
thereby ensues, shall fall upon those, in consequence of whose
neglect or mismanagement, such loss has occurred.
This is very briefly the ground upon which I dissent from the
opinion of the majority of the court.
Decree of the Circuit Court affirmed.
Cited by Counsel, 5 Wh. 476; 6 W. 188; 3 W. & S. 368; 2 Barr, 260; 3
Barr, 427 ; 5 Barr, 226 ; 12 H. 415 ; 10 C. 30 ; 11 C. 295 ; 1 Wr. 326 ; 3 O. 83.
367.
Approved in 6 W. 253; commented on 11 C. 296.
Cited by the Court, 1 W. & S. 292; 10 Barr, 153; 5 H. 271; 7 S. 53; 6
O. 460.
179
161 SUPEEME COURT [Philadelphia,
[Case of M'Nair's appeal.]
In 6 0. 460, it is said that it is difficult to see why the rule laid down in this
case (as well as in Brown's Ap., 1 D. 311, and Verner's Est., 6 W. 250,) should
not apply to creditors as well as legatees, and Sterrett's Ap., 2 P. & W. 419, is
cited as an authority against the distinction ; certain it is that the authorities
are contradictory, 11 C. 295; but this case rather than Sterrett's Appeal seenis
to be supported by the weight of the authorities. In 6 Barr, 270, it is said
that joint executors are liable individually no further than assets have come
into their hands, or where they have done some act which the law considers
equivalent to an admission that the assets were in their power and culpably
and negligently parted with.
In 1 W. 368, a distinction is taken between joint executors and joint adminis-
trators, the latter being responsible for each other as principals. This distinc-
tion is overlooked in the case in hand.
[*1 62] ^PHILADELPHIA, FEBRUARY 12, 1833.]
Harrison against Ellmaker.
IN ERROR.
Under, the fee bill of the 28th of March, 1814, the recorder of deeds can
only charge thirty-seven and a half cents for a certificate and seal, and can-
not add to it a charge of twelve and a half cents for a search made to enable
him to give the certificate. If he exacts payment of such double charge,
he incurs the penalty of fifty dollars imposed by the 26th section of the fee
bill.
THIS was a writ of error to the Court of Common Pleas of the
county of Philadelphia, in an action originally brought by the
defendant in error*, Levi Ellmaker, against the plaintiff in error,
John Harrison, then recorder of/ deeds of the city and county
of Philadelphia, to recover the penalty of fifty dollars imposed
by the 26th section of the act of 28th of March, 1814, entitled
"An act to establish a fee bill." 1 Purd. Dig. 311.
The section referred to declares, that "if any officer whatso-
ever, shall take greater or other fees than is hereinbefore ex-
pressed and limited, for any service to be done by him after the
1st of September next, in his office, or if any officer shall charge,
or demand and take any of the fees hereinbefore ascertained,
where the business for such fees are chargeable, shall not have
been actually done and performed, or if any officer shall charge
or demand any fee for any service or services, other than those
expressly provided for by this act, such officer shall forfeit and
pay, to the party injured, fifty dollars, to be recovered as debts
of the same amount are recoverable," &c.
The alderman gave judgment for the plaintiff, and the defend-
ant appealed to the Court of Common Pleas, where a case in the
nature of a special verdict, was stated for the opinion of the
court, which, in substance, was as follows
180
Feb. 12,1833.] OF PENNSYLVANIA. 162
[Harrison v. Ellmaker.]
By the 18th section of the fee bill, of the 28th March, 1814,
(Purd. Dig. 309, 310,) the recorder of deeds is authorized to
charge for "certificate and seal, thirty-seven and a half cents,"
and for "every search of record where no other service is per-
formed, for which fees are given, twelve and a half cents." The
plaintiff below, on the 12th of July, 1821, requested from the
defendant, then recorder of deeds for the city and county of
Philadelphia, a certificate under seal of the record of an assign-
ment to himself and Jonathan Merchand, by Franklin Rising.
The certificate was given to him by the defendant, who demanded
for it fifty cents, as for the following services, viz. : " for search
twelve and a half cents, for certificate thirty-seven and a half
cents." The plaintiff refused to pay the fees thus demanded
and offered to pay thirty-seven and a half cents, but the
defendant insisted on his right by law to receive the amount
*he demanded, upon which the plaintiff paid it, and took ^ . n^
from the defendant a receipt in these words :
" Received July 12th, 1821, from Mr. Levi Ellmaker, fifty
cents for search and certificate, Franklin Rising's assignment."
The Court of Common Pleas having given judgment in favour
of the plaintiff, the defendant sued out a writ of error, and as-
signed for error,
"That according to the true construction of the act of assem-
bly referred to, the defendant below is not liable to the penalty
of fifty dollars claimed to be recovered from him in this suit."
J. Randall, for the plaintiff in error.
Henderson, for the defendant in error.
The opinion of the court was delivered by
HUSTON, J. This matter is too plain for argument. When a
person applies to an officer to see a record, and only wishes to
see it, or know if there is such a record, the fee bill gives the
officer the fee for a search. When a person applies to an officer
for a <^py of a record, or a certificate of the date of a record,
the officer must find the record before he can make the copy, or
give the certificate required. This search is for his own use and
benefit; he makes the copy or gives the certificate; and is paid
for so doing, and has no right to charge for a search. The
words of the act are plain, cannot be mistaken, and ought not
to be evaded.
Judgment affirmed.
Cited by Counsel, 5 W. & S. 24.
181
16S SUPREME COURT [Philadelphia,
[PHILADELPHIA, FEBRUARY 15, 1833.]
Chew against Keck and Others.
The seal of a foreign corporation cannot be admitted in evidence without
proof that it is the official seal which it is asserted to be.
If a similar seal has already been gi\en in evidence, without objection, the
jury are not to be permitted to compare the two seals, and judge of the genu-
ineness of the second from the comparison.
If upon a hearing of the cause before arbitrators, the seal has not been ob-
jected to, the party offering it on the trial in court, is not entitled, on the
ground of surprise, to have a juror withdrawn.*
APPEAL from the Circuit Court of Northampton County.
In this ejectment, brought by Benjamin Chew, Esq., against
Conrad Keck and others, which after an award of Arbitrators
between the same parties, came on for trial before Huston, J.,
a ^ a Circuit *Court, held at Easton, in April, 1832, the
plaintiif, after having given in evidence, a lease for one
year, dated September 4th, 1815, from Francis Rice and John
Kelb, executors of Thomas Ingram, proved before the Lord
Mayor of London, and certified under the city seal, offered in
evidence the deed of release between the same parties, dated on
the fifth of the same month, and proved in like manner, to which
the defendant's counsel objected, on the ground that it must be
first proved that the seal annexed to the certificate is the seal of
the city of London.
The court rejected the evidence.
The plaintiff's counsel thereupon alleged that they were taker
by surprise, inasmuch as this objection was not taken before the
arbitrators, and they, the counsel, had always understood that
the seal of the city of London proved itself. They therefore
asked the court for leave to withdraw a juror, offering to make
affidavit of the fact of having been taken by surprise.
The court refused to permit juror to be withdrawn.
The plaintiff's counsel then submitted to the court, that they
should be allowed to lay the seal in question before the jury,
that they might compare it with the seal affixed to the paper
already in evidence. This was also refused by the court ; upon
which the plaintiff suffered a nonsuit with leave to move to take
it off.
* The difficulty of proving the seal of a foreign corporation, strongly appears
in the case of Moises v. Thornton, 8 D. & E. 303. KEPORTER.
182
.Fe&.15,1833.] OF PENNSYLVANIA. 164
[Chew v. Keck and others.]
A motion to take off the nonsuit was accordingly made, which
the court overruled and the plaintiff appealed.
The following reasons for the appeal were filed in this court,
viz.,
1st, The court erred in rejecting the deed of release from
Francis Rice and John Keble to Benjamin Chew, of the date of
5th September, 1815, and in requiring proof of the seal of the
Lord Mayor of the city of London.
2d, That the objection to the admission of the said deed of
release, if available, was taken too late ; it should have been
taken before the deed of the lease of 4th of September, 1815,
had been read, which accompanied and was annexed to the deed
of release, was proved by the same deposition, attested by the
same seal, was in substance and effect one instrument with the
release, and was in this respect read without objection.
3d, The court should, on the allegation of surprise made by
the counsel, and supported by the facts, that although the said
deeds were objected to on other grounds before the arbitrators,
yet no objection was made on the ground of want of proof of
the seal of the city of London, have inquired into the matter
and permitted a juror to be withdrawn and the cause continued;
because, if the objection had been taken before the arbitrators,
the plaintiff could have had the proof of the seal at the trial,
and the objection therefore took the plaintiff's counsel by sur-
prise.
4th, The court should have permitted the plaintiff to submit
the seal annexed to the probate of the deed of release to the
jury, for *comparison by them, with the other seals of r*ic-i
the same officer annexed to the other documentary evi- ^
deuce which was before the court and jury, with an instruction
that if from such comparison the juiy believed the impression
of the seal to be a genuine one, they should consider the deeds
in evidence ; otherwise not.
The case was argued by Brooke and J. M. Porter for the ap-
pellant, and by Scott for the appellees.
The opinion of the court (Huston, J., being absent) was de-
livered by
GIBSON, C. J. It is impossible to distinguish this case from
Foster v. Shaw, 7 Serg. & Rawle, 156, which is directly in point,
and therefore conclusive in a case precisely the same in all its
circumstances. We do not decide, however, the question of
competency in regard to such a deed when actually recorded
possibly that might make a different case. The objection here
was made in time, and the court was not bound to withdraw a
juror on the allegation of surprise, or refer the question of ex-
183
165 SUPREME COURT [Philadelphia,
[Chew v. Keck and others.]
ecution to the jury, without at least some proof of the seals ;
so that we see no ground to justify us in disturbing the decision
of the Circuit Court.
KENNEDY, J. The first reason assigned for a new trial is,
that the Circuit Court refused to admit the deed of release from
Francis Rice and John Keble to Benjamin Chew, bearing date
the fifth day of September, 1815, to be read in evidence to the
jury, unless proof were first made that a seal purporting to be
the seal of the city of London affixed to a name and signature
purporting to be those of the lord mayor thereof, subscribed to
a certificate of probate of the execution of the deed indorsed
on it, was the seal of the said city. The decision of the Circuit
Court on this point appears to me to be wrong, and I therefore
think, that on this ground alone a new trial ought to be granted.
The judge before whom this case was tried in the Circuit Court,
doubtless felt himself bound by the decision of this court in the
case of Foster v. Shaw, 7 Serg. & Rawle, 163. And sitting in
the Circuit Court, I would certainly have decided in the same
way, had I not looked upon that decision as not only militating
against the principle laid down by the judges of the Supreme
Court of this state in 1781 and 1784, in the cases of M'DilPs
Lessee v. M'Dill, 1 Dall. 63, and Hamilton's Lessee v. Gal-
loway, Ib. 93, but completely overturning a construction thereby
given to our recording acts, which I think has been almost uni-
versally followed and received ever since, without objection. I
would not wish to be understood as insinuating that a Circuit
Court, or any other inferior tribunal, may, when it conceives
that the Supreme Court has decided or settled any question
erroneously undertake to correct it by deciding otherwise. This
authority is reserved for the Supreme Court, itself ; and in order
that uniformity and consistency may be preserved as far as is pos-
sible, in settling our principles of jurisprudence, it is proper that
it should be exercised by it alone. But with two decisions of
l~*1 fifil ^ e judges of the *Supreme Court, giving a construction
-" to our recording acts, agreeing as I believe with the
spirit of them, and followed by a corresponding usage and prac-
tice of half a century to back and support me, I would not hesi-
tate to encounter a single decision of that court although of a
later date, but alleged to be made for reasons which I consider
untenable, because directly at variance with the express provis-
ions of the recording acts themselves.
Since I first saw this decision in the case of Foster and Shaw,
which was shortly after it was published, I have often thought
of it, revolved it over in my own mind, and compared it with
the provisions and terms of the acts of assembly relating to the
184
*eb. 15, 1833.] OF PENNSYLVANIA. 166
[Chew v. Keck and others.]
recording of deeds and conveyances for lands, and the two other
decisions already mentioned, which were made long before it,
with a view and a wish to reconcile it with them if possible, bat
in vain.
The fourth section of the act of the 28th of May, 1715, en-
titled " An act for acknowledging and recording of deeds,"
enacts, that " all deeds and conveyances made and granted out
of this province, and brought hither and recorded in the county
where the lands lie, (the execution whereof being first proved
by the oath or solemn affirmation of one or more of the witnesses
thereunto, before one or more of the justices of the peace of
this province, or before any mayor, or chief magistrate, or
officers of the cities, towns, or places where such deeds or con-
veyances are or shall be made or executed, and accordingly
certified, under the common or public seal of the cities, towns,
or places, where such deeds or conveyances are so proved re-
spectively,) shall be as valid as if the same had been made,
acknowledged, or proved in the proper county where the lands
lie in this province."
Now this section of the act declares most unequivocally, that
all deeds and conveyances made out of this province (now state)
and proved by one or more of the witnesses thereunto before
the mayor of the cities where such deeds or conveyances shall
have been made, and accordingly certified under the common or
public seal of those cities where such deeds are so proved, shall
be as valid as if the same had been made, acknowledged, or
proved, in the proper- county where the lands lie. Then, by re-
ferring to the second section of the act, we discover what the
validity is that is given by it to deeds made and proved in the
county where the lands lie. It is expressed in the following
words : "All bargains and sales, deeds and conveyances of lands,
tenements, and hereditaments in this province, may be recorded
in the said office ; but before the same shall be so recorded, the
parties concerned shall procure the grantor or bargainer, named
in every such deed, or else two or more of the witnesses who
were present at the execution thereof, to come before one of the
justices of the peace of the proper county or city where the
lands lie, who is hereby empowered to take such acknowledg-
ment of the grantor, if one, or of one of the grantors if more."
Then, by going back to the first section of the act, we find by it,
that after establishing the office mentioned in the second section,
just recited, for the recording of deeds in each *county r*ien-\
of the province, and after requiring that the recorder *-
shall duly attend the service of the same, and at his own proper
expense, cost, and charges provide parchment or good large books,
it directs, " that .he shall record therein, in a fair and legible
185
167 SUPREME COURT [Philadelphia,
[Chew v. Keck and others.]
hand, all deeds and conveyances which shall be brought to him
for that purpose according to the true intent and meaning of this
act." Here the question then naturally presents itself, what are
the deeds that may be recorded according to the true intent and
meaning of the act ? It appears to me that it is answered by the
act itself, in terms so plain and intelligible, that their meaning
cannot be misapprehended ; for by the second section it is de-
clared, that " all bargains and sales, deeds and conveyances of
lands, &c., may be recorded, &c., being first acknowledged by
the grantor or bargaiuor named in every such deed, or else
proved by two or more of the witnesses who were present at the
execution thereof, before one of the justices of the peace of the
proper county or city where the lands lie," who is required by
the third section to certify such acknowledgment or probate
when taken, under his hand and seal, upon the back of the deed.
And again, by the fourth section it is provided, that " all deeds
and conveyances made and granted out of this province, and
brought hither, may be recorded in the county where the lands
lie, the execution whereof being first proved, by the oath or
solemn affirmation of one or more of the witnesses thereunto, be-
fore one or more of the justices of the peace of this province, or
before any mayor, &c., of the cities, &c., where such deeds or con-
veyances are or shall be made or executed, and accordingly cer-
tified, under the common or public seal of the cities, &c., where
such deeds or conveyances are so proved." Thus embracing in
this last section in clear and express terms the deed in question,
as one entitled to be recorded when brought hither for that pur-
pose. It is likewise equally clear from the terms of the act, that
no deed is authorized to be put on record unless the execution of
it be first either acknowledged or proved, and such acknowledg-
ment or probate be certified by an officer thereby empowered to
take it, in the manner and form prescribed by the act. And in-
deed it is difficult to account for the legislature's having directed
the form with so much particularity in which these certificates
shall be made out and given, if it be not to make them prima
fade evidence, of themselves, of the execution of the deeds, and
as such to be received and admitted, not only by the recorder,'
but likewise by the courts. The recorder must determine by a
mere inspection of the deed and the certificate indorsed thereon,
when brought to him for the purpose of being recorded, whether
it comes within the true intent and meaning of the act ; for he
has no means of ascertaining it otherwise : he has no power to
administer an oath or affirmation, or to take testimony in any
form on the subject. Such a thing is not contemplated by the
terms of the act. If the deed have a certificate indorsed upon
it, purporting that it was acknowledged or proved before an offi-
186
15, 1833.] OF PENNSYLVANIA. 167
[Chew v. Keck and others.]
cer authorized by the terms of the act to take it, and has appa-
rently *the name of such officer subscribed, together with i-^ p^-,
the proper seal affixed to the certificate, it is, under the L
pro visions of the act, not only prima facie evidence of the exe-
cution of the deed, but likewise of the authenticity of the cer-
tificate of acknowledgment or probate itself. It is made by the
act of assembly per se presumptive evidence of the execution of
the deed, but being only presumptive, may of course be repu-
diated or rebutted by other testimony.
If the legislature had not intended this, they would certainly
have made some further provision for taking proof to authen-
ticate the certificate of the acknowledgment or probate of the ex-
ecution of the deed ; for, with me, it is impossible to doubt for a
moment, that the legislature did not intend to put it in the poorer
of a party having a deed for land to dispense entirely with the
common law mode of proving the execution of it, and to make
the substitute provided for it by the act perfect without any an-
cillary aid from the common law so far as to make the deed ad-
missible in evidence, if pertinent to the issue. This must ne-
cessarily be the proper construction of the act, because the
recorder has not the means of ascertaining whether the cer-
tificate of acknowledgment, or probate of the execution of the
deed indorsed upon it be genuine or not. He has no au-
thority given him to administer an oath, or to take testimony
for such purpose in any way whatever. He cannot even
take the acknowledgment of the execution of the deed from
the grantor himself, were he to appear in person before him,
nor yet the proof of the execution of it by him from the sub-
scribing witnesses. And were he to do so, and to put the
deed on record in his office, certifying such acknowledgment
or proof of its execution, without any other evidence appear-
ing of it, it would be a perfect nullity, without the least validity,
and could neither make it admissible in evidence, nor answer
any purpose whatever within the design of the act. Hence,
when a deed is brought to the recorder to be recorded, it ne-
cessarily follows that he must judge from the face of the certifi-
cate of acknowledgment or probate indorsed on the deed of its
having been executed : and if the certificate purports to be such
on its face as the act of assembly has authorized, it is made his
duty to record the deed, and he is not bound to look or examine
further; the words of the act are peremptory "that he shall
record," &c.
The act has uniformly received this construction, as to the
certificates of acknowledgments or probates given by justices of
the peace, judges of the courts, and other officers of the state,
authorized by the act to take such acknowledgments or probates.
187
168 SUPREME COURT [Philadelphia,
[Chew v. Keck and others.]
No proof has ever been required to prove the authenticity of
their signatures or seals to such certificates, though in many in-
stances the recorders, courts, and juries, knew nothing of them
more than they do of the seals of foreign cities or corporations.
They have always been considered per se prima facie evidence of
this. M'Dill v. M'Dill, 1 Dall. 63 ; Hamilton v. Galloway, Ib.
93 ; Willink v. Miles, Peter's C. C. Rep. 429. And this is by
r*1flQT force of the act of assembly that they have been so *re-
-" ceived : for by the common law, the signature of a jus-
tice, or of a judge of a court, and their respective seals, are no
more admissible, in evidence, as such without proof being first
made of their authenticity, than the signature and seal of any
private individual, or that of the chief magistrate of a foreign
corporation, under the common or public seal thereof. 1 Hale
P. C. 305; 2 Ib. 52; Gilb. Ev. 124. But it is perfectly mani-
fest from the terms of the act, that the certificate of the mayor
of a foreign city, given under his hand and the common seal of