
    Craufurd vs. The State use Muir.
    Appeal from Prince George's county court. This was an action of debt brought on a bond entered into to the state, on the 9th of November Í816, by John M. Hepburn with Thomas R. Hodges and the appellant, (the defendant in the court below,) conditioned that Hepburn should well and truly perform the office of administrator of JaneFishwick, &c. The defendant pleaded; 1. That the bond was ¡delivered ás an escrow. 2. Non est factum. Issues wer¿ joined, and the plaintiff assigned for breaches, that on the 8th of April 1819, there remained in the hands of Hepburn', of the clear estate of Fishwich, the sum of $657"! 92, by the account of the said Hepburn passed by the orphans court; and that Robert Muir, at whose Instance this suit whs brought; is the administrator of Janies Muir; deceased; one of the representatives of the sáid Fishwich, and as such entitled to the one fourth pact of the said clear estate, amounting to §1642 98/ and that Hepburn-, although requested, never did pay, &c¿
    
      Whether an in» strumem •■'f writing on which the action is taonght is the deal oí the defendant, signed, sealed and delivered by him, are facts to be submitted to the jury.
    Whore an instrument of writing- i-> required by law to be remorded, the enrolment of it U evidence of all eh-iium-tance-.- necessary to g-iv* it validity But this eudence i$ not ecneludie. It is only frri* •ma. facia, and like all prima facia evidence maybe rebutted, 3 1
    
    A, a-» the admimsti ator of 'l<’, executed in due form of law, an administration bond in 7813. which was approved by tho oroham court, and on which he obtained letters of administration, Ife after" ’wards.m T316. executed a similar bond, winch was placed upon the records of the orphans court and upon which an ac’ion was brought against one of the sureties therein, who pleaded non eat factum and that the bond was delivered as an escrow, and it was proved that the ob’ijyors signed and sealed the bond. Held, that parol evidence was admissible to prove how the bond of 18X6 came into the office of the register of wills, ami why it was recorded; but that no such evidence was admissible respecting the-
    
      At the trial; the counsel of the piaintiff produced the bond on which the action was brought, dated the 9th of November Í816¡ and proved by the subscribing witness thereto} that the defendant, and the other obligors therein, tamed, signed and sealed, and that he, as the subscribing witness, attested the same. The counsel of the plaintiff also produced an attested copy of said bond, certified by the register of wills of Prince George’s county} as taken from the original bond fried and recorded in his office. The defendant-then proved by said register of wills of Prince- George’s county,- arid who was register before and has been ever ifincé the year 1812, that the second bond on filé in his office, purporting to bé an administration bond on the estate Of Jam Fishwich, and bearing date the 9th of November' Í816, was delivered to him by John M. Hepburn, the administrator On said estate, during the recess of the orphans court, and without any application having been made either to the court or register, by any person interested in said estate, for additional or counter security, and was consequently never called for or acted upon, or sanctioned by the court; and at the time Hepburn delivered to the register the second bond, the register liad some' conversation with him3 but which he could not now recollect. That this bond, being found in the office, was recorded by a deputy in the office, without any orders from the register or the', court. That he did not recollect that he had any instruction from Hepburn at the time the bond was delivered to him'to record it as an administration bond. That on the 6th of May 1812, Hepburn filed a bond, which the register produced, dated the 6th of May 1812, executed to the state by said Hepburn, with Jane Hepburn ánd John S. Brookes his sureties, conditioned for the performance, by said Hepburn, of the office of administrator of said Fishwick, and on the same day obtained letters of administration on the estate of Said Fishwick, which bond was afterwards approved by the orphans court, and still remained on record in the orphans court as the administration bond of thé said Fish-wick. The counsel for the plaintiff objected to this proof as inadmissible, and the court, [Stephen, Ch. J. and Key, A. J.] being divided in Opinion, the testimony was rejected. The defendant excepted, and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Buchanan, Ch. J. Earle,’ Martin, and Archer, J.
    
      Taney, for the Appellant*
    contended, that an attested copy, by the register of wills, of a bond purporting to be an administration bond, is not conclusive evidence that the bond was signed, sealed or delivered; and that therefore parol evidence was admissible to prove it was delivered as an escrow, or not delivered at all. Under the act of 1798, ch. 101, sub ch. 3, an administration bond must be approved by the court before it is admitted to record. A copy of the bond from the record was not conclusive evidence that the bond was given and accepted under any order of the court. Suppose the case of a forged administration bond, and suit was brought on an attested copy, it could not be contended that the person whose name was forged would be estopped from pleading non est factum. lie would not be concluded by the copy, which might be prima facie evidence, but not conclusive evidence of the execution of the bond.
    
      Magruder, for the Appellee.
    The law requires that the suit should be brought on an attested copy of the bond. There was no general prayer to the court below, whether the evidence was sufficient to entitle the plaintiff to recover. The object of the proof of the register was to falsify his record. Parol evidence is not admissible to contradict a record. The register of wills was not a competent witness to prove the facts set forth in the bill of exceptions. 
      Sewell vs. Hepburn, in this court, at June term 1818, is relied on against the admission of parol evidence in the present case. He also referred to 1 Phill. Evid. 237; 238; and Leighton vs. Leighton, 1 Stra. 210.
   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,  