
    James Wells and Absalom Wells ads. Sam’l G. Wright.
    A deed or conveyance of lands in this State, acknowledged before one of the associate judges of the Court of Common Pleas of the city and county of Philadelphia, cannot be received in evidence under the act of 7th June. 1799, Rev. Laws, 458, see. 4.
    In order t6 make an acknowledgment under this act valid where it is taken before a judge of another State, the judge taking such acknowledgment should be a judge of the Supreme or Superior Court of such State. It is not sufficient that he be a judge of a county court.
    An instrument by which the transfer and transmission of property is effected, though in the nature of a deed of trust or power of appointment, may be acknowledged as a conveyance of lands.
    This case came before the court on a rule- to shew cause why a'verdict rendered at the Monmouth Circuit, in favor of Samuel G-. Wright, the plaintiff, should not be set aside.
    
      J. S. Green and Scott, for the defendants,
    and in support of the rule, said : This action was tried at the Monmouth circuit, in October, 1829, in the absence of the defendants, without any evidence on their part'.
    The action is trespass, and the plea is liberum tenementum.
    
    It involved a question of title to a considerable tract of land. The plaintiff having offered and proved a survey to Isaiah Thomas, then offered a deed from said Thomas and wife to William Watson.
    *This deed is dated 26th November, 1803, and acknowledged February 24th, 1806, before Jonathan D. Smith, esq., one of the associate judges of the Court of Common Pleas of the county of Philadelphia.
    No other proof of this deed was offered than the certificate of such acknowledgment, written upon such deed. To which evidence the defendant’s counsel objected, and after argument the judge who tried the cause admitted the said deed as evidence, and it was read to the jury. The admission of this evidence forms the first exception.
    
      The best evidence upon the principles of the common law, was the production of the subscribing witness. In the case of sealed instruments, the law will not dispense with such witness, even the acknowledgment of the party who executed the instrument will not be received. This principle is recognized in every treatise on evidence.
    Our legislature have however introduced another rule of evidence, as regards conveyance of lands. Rev Laws, 458, see. 1.
    The party executing a deed of land, and acknowledging such deed before the chancellor and other officers named in the first section — if'a certificate of such acknowledgment be written on such deed, and signed by the officer, the deed so acknowledged shall be received in evidence, as if the same were then and there produced and proved.
    This then is the introduction of a new rule of evidence. It is in derogation of the common rule of evidence. The deed must be so acknowledged. The provisions of the statute must be complied with, or the rule does not apply.
    This section applies to acknowledgments made in this state. The deed of Thomas to Watson was in the city of Philadelphia, and we must look further into the act.
    By the fifth section we find if the party who executes a deed for lands lying in this state, resides not in this state, but in some other state in the Union, then said acknowledgment, made before and certified by the Chief Justice of the United States, or any judge or justice of the Supreme or Superior Court of any state in the Union, shall be as good as if made before a justice of our Supreme Court.
    *The acknowledgment must be taken before any judge or justice of the Supreme Court of any state.
    He must be judge or justice of some court having general jurisdiction over the whole state, not of the county. It is the Supreme Court, by way of eminence. It is the Superior Court of the state. The language is not, a Superior Court, a court of record, having cognizance of general mattbr, but the Supreme or Superior Court, the highest law tribunal in the state. An acknowledgment so taken, shall have the same effect as if taken before a justice of the Supreme Court of New Jersey.
    If the term Supreme Court alone had been used, there could have been no doubt. Why then use the term Superior t Because the highest law tribunal of some of the states is called the Superior Court, and not as with us, the Supreme Court.
    This will be manifest by looking into Griffith’s Law Register.
    In New Hampshire, the highest law court is called Superior. 3 Griffith Law Register, 32.
    In New York, New Jersey and Pennsylvania, it is called the Supreme Court. Ibid 127, 241.
    In the state of Pennsylvania, in the year 1799, there was no court which was called the Superior Court, either of limited or general jurisdiction; and no court of that name in the year 1806, when this acknowledgment was taken.
    Let us enquire into the history of the Court of Common Pleas of the county of Philadelphia, and see what is its jurisdiction.
    The constitution of that state was ratified, after several alterations, since ’76, in convention on the 2d of September, 1790. American Guide 161.
    By the fifth article the judical power is vested in a Supreme Court, in a Court of Common Pleas, and such other courts as the legislature might establish. Ibid, 168.
    In April, 1791, the legislature passed an act to establish courts in conformity with the constitution, and divided the state into five districts, and authorized the governor to appoint 'a president of such court, and three or four associates, to be within these districts, and exercise the powers as judges. City and county of Philadelphia, the first circuit. 3 Laws of Penn. 29, 3 Griff. Law Reg. 240.
    *This court then is of limited jurisdiction, is a court of that district.
    
      But our legislature seem to have settled, this matter. Iu 1820, Rev. Latos 747, another law is passed on this subject; and by the third section an acknowledgment taken before the mayor of a city, or before a judge of any Superior Court or Court of Common Pleas, accompanied with a certificate under the great seal of the state; or under the seal of the county court, that he is such judge, shall be sufficient.
    Is it not manifest that the legislature thought some other provision than the act of 1799 necessary? [Rev. Laws 58.) We think then, that his honor who tried the cause, did wrong in admitting this deed from Thomas to Watson.
    The court also admitted a deed or paper writing under seal from Joseph Reed and Chandler Price, to Edmund C. Watmough, dated 9th September, 1826; to which the defendants’ counsel objected, because it was not proved.
    The plaintiff relied on the acknowledgment taken before the mayor of Philadelphia, 12th September, 1826.
    We beg the attention of the court to that part of the deed consisting of the recital of the trust deed from Joseph Reed and Joseph MTlvaine to Bloomfield MTlvaine, in June, 1820, that in this trust deed, Reed and Price had the power to nominate and appoint a trustee in the event of the death of Bloomfield MTlvaine, and that they, Reed and Price, did exercise such power, and did nominate and appoint Edmund 0. Watmough, in the place of Bloomfield MTlvaine. It is the mere exercise of a power, the mere appointment of a trustee; and the question now presented to this court is — Is this a deed or conveyance of lands, tenements or hereditaments, within the meaning of the “ act respecting conveyances.” Rev. Laws 74, see. 3. The mayor has the power to take the acknowledgment of such a deed.
    
      t What is a deed or conveyance of land ? I can find in this instrument none of the operative words of any description of deed for the conveyance of land.
    Is it a feoffment, or gift, or grant, or lease, or release, confirmation, surrender, or what?
    
      Is.it a deed of bargain and sale, the common mode of conveyance ? Where is the habendum — where is the tenendum ?
    
    *The mayor calls it an appointment. It is clearly then not a deed or conveyance of land.
    But his honor, who tried the cause, expressed strong doubts of this being a conveyance ; but admitted it in connection with the former deed.
    But its connection with the deed of 1820 cannot change this question. Here is an instrument under seal produced. It must be proved. The subscribing witnesses must be offered, unless it is within the provisions of the act.
    This is either the same, or a different instrument. It is not the same, for the parties are different, its provisions different, and'executed at a different time, and acknowledged before a different officer.
    If, then, different, it stands by itself, and before it can be read in evidence it must be proved'.
    For these reasons, the defendants think they ought to have á second trial, and that without costs. The costs to abide the event of the second trial.
    
      Wall and Southard, contra.
   The Chief Justice

delivered the opinion of the court.

One of the reasons on which the defendants in this case have moved for a new trial is, that a deed from Isaiah Thomas and wife, to William Watson, bearing date on the 26th November, 1805, which was produced and read by the plaintiff, was unlawfully admitted in evidence ; the acknowledgment not having been made before a competent officer.

The acknowledgment was taken on the 24th February, 1806, by Jonathan B. Smith, one of the associate judges of the Court of Common Pleas of the city and county of Philadelphia. By our statute, at that time in force, if the party executing any deed or conveyance of lands did not reside in the state, but in some other state of the Union, the acknowledgment might be made before certain judicial officers of the United States, “or any judge or justice of the supreme or superior court, of any state in the Union.” Rev. Laws 459, sec. 5. The inquiry now is, whether Jonathan B. Smith was a judge or justice of the Supreme or Superior Court of the state of Pennsylvania. If *he was, the acknowledgment is valid. If he was not, the deed was erroneously admitted in evidence.

In looking into the provision of the statute, the intention of the legislature to confine the authority to take acknowledgments to a few officers in each state, and those of a superior -grade, is obvious. It was wise; as no certificate, save their own, to verify their judicial character, was requisite, the authority was properly limited to such as might most probably be known here by reputation or otherwise, and from whom, by reason of their stations, caution and circumspection and correctness, might justly have been expected. In construing the section, the word “ the ” introduced before the word “ Superior,” will correspond with the meaning of the legislature, the supreme or the superior Court of any state. The meaning will be incorrectly expressed if the article “ a ” is used, the supreme or a superior court. It is farther obvious that the authority is limited to the members of a single court in each state. The language is not, any court, nor even, any superior court, but the superior court of any state, pointing manifestly to a single court in a state, and that of a distinct character. It should be recollected, also, that this statute was enacted in a state where there is a supreme court of the state, and a court of common pleas for each county; and that while in many of the states, a supreme court was established, the court of correspondent grade, in some of them, was called the superior court. In the State of Pennsylvania, when the acknowledgment in question was made, there was a court called “ The Supreme Court of Pennsylvania.” There can be no doubt that this is the court, to whose justices or judges, the authority to take acknowledgments was confided. Uow, Jonathan B. Smith was not a judge of that court. And if I am correct in my position that to the members of one state court only, in each state, was the authority granted, it is not necessary to look further to decide on the validity of tlie acknowledgment in question. But to remove, if possible, all doubt, let us inquire if the Court of Common Pleas of the city and county of Philadelphia, of which he was a member, can be brought within the description of a superior court of the state of Pennsylvania. In each of the several counties of the state was a court of the same name and of co-ordinate grade and jurisdiction. Each had territorial jurisdiction over a county. They had a general jurisdiction over matters of a civil nature, excepting, however, those powers, commonly denominated superintending, and which serve strongly to characterize a superior court, and which were there vested in the Supreme Court. But with such jurisdiction, it by no means follows they can properly be called superior courts. They are subordinate to the Supreme Court, to which a writ of error lies, and although they may entertain appeals from justices’ courts, yet this power will not give them the character claimed for them. The Courts of Common Pleas of our own state review the proceedings of the courts for the trial of small causes, and have very extensive jurisdiction; as to amount, unlimited ; yet we may not call them Superior Courts of the state or any one of them a Superior Court of the state and much less the superior court of the state. It would probably be a surprise to the people of Pennsylvania to be informed by a judicial decision from this bench, that they had there, upwards of fifty Supreme or Superior Courts, one in each county.

On and before the 24th February, 1806, the Supreme Court had original jurisdiction of civil causes in the city and county of Philadelphia. This jurisdiction was taken away by an act of that date, which remained in force until March, 1810, when it was restored, where the matter in controversy was of the value of five hundred dollars and upwards.

From this view of the subject it appears to me that Jonathan B. Smith was not a judge or justice of the supreme or superior court of the state of Pennsylvania, and, therefore, was not authorized to take the acknowledgment in question.

On the part of the plaintiff it was insisted that if the acknowledgment is not sufficient, yet that, since the trial, the deed has been duly proved by the oath of a subscribing witness, as appears by a certificate indorsed upon it, and is now competent evidence; and that in the sound exercise of the discretion confided to us, we ought not, therefore, to grant a new trial.

This argument would have much force if the certificate of the proof of the deed was conclusive. It is, however, only prima facie evidence of the due execution of the instrument. Being necessarily exparte, the party to be affected by the deed is *allowed to question its validity, and the force and effect of the formal proof. The facts stated by the witness may be controverted. The language of our statute is, that the deed shall be received in evidence, as if produced and proved, and inasmuch as if so, counter evidence might be produced, it follows that the certificate of proof is liable to be contested; Lambert v. Lambert and others; by Chancellor Williamson, July term, 1827; Jackson v. Ingraham, 4 John. 162. If the defect existing at the trial were now cured by conclusive proof, little could be gained by a new trial. But if the proof now offered is still open to be controverted, the party to be affected by it ought not to be denied the privilege and opportunity of doing so. It may be said the privilege would be of little service and the controversy next to hopeless, in a case like the present. It may be so, but the principle on which we are bound to act is not, I think, therefore altered. The Supreme Court of New York have recognized and acted on this distinction. In Duncan v. Dubois, 3 John. cases 125, a private act of Congress was read from the common statute book, and on the motion for new trial, an exemplification being produce^ a new trial was refused, because the defect of the testimony was supplied. In Watson v. Delafield, 2 Caines 225, the plaintiff offered affidavits and papers, not used on the trial, to supply defects of the testimony in points where the defendant relied on its insufficiency; and argued that the application was to the discretion of the court, and if the facts were established, it would be useless to award a new investigation. But the court refused to hear them read, saying they were called on to prevent controverting what was controvertible, and that everything contained in them might be disproved on a trial.”

Another reason assigned for setting aside the verdict in the present case, that a deed of appointment of a new trustee in the stead of Bloomfield Mcllvaine, dec’d, executed by Joseph Read and Chandler Price was unlawfully admitted in evidence, although duly acknowledged and recorded, because it is said not to be one of those instruments which are made competent evidence by due acknowledgment.

On this subject, it may be only useful to inquire and express an opinion, if the cause is again to be carried' down to trial. The statute authorizes the acknowledgment of “ any deed or Conveyance of lands, tenements or hereditaments lying and being within this state.” The policy of the statute is wise and beneficial; to render more easy the proof of muniments of title; and a liberal construction therefore should be adopted, not indeed extending it by any supposed equity, but not constraining it by a rigorous measure. If this instrument had legal efficacy and produced the effect for which it was intended, it may be fairly deemed within the term “ a conveyance of lands.” Before its execution the legal title to the lands mentioned in it was in the heirs of Bloomfield Mcllvaine. After its delivery, fhe title was vested in Edmund 0. Watmough. The transffer and transmission were effected by this instrument. It was then, I think, properly acknowledged and legally admitted in evidence as a conveyance of lands.

The verdict in this case I am of opinion should be set aside and a new trial granted.

Ford, J., and Drake, J., concurred.  