
    [Sunbury,
    July 3, 1829.]
    NOURSE and Wife against M‘CAY and another.
    IN ERROR.
    Where the question was whether a deed, an exemplification of which had been read in evidence, the original not being produced, was.a forgery or not, held, that a book of accounts belonging to, and in the handwriting of the ma-' gistrate before whom the deed purported to have.been acknowledged, and' whose name appeared as a subscribing witness, containing charges against the grantor for the acknowledgment of three deeds only, which had certainly been acknowledged before' him, on the same day as' that on which the deed in question purported to have been acknowledged, was competent evidence, the magistrate being dead, to show that that deed had not been acknowledged before him. -
    Writ of error to the Court of Common Pleas of Northumberland county, in an ejectment for ten lots in the town of Northumberland. The plaintiffs in error, Joseph Nourse and Caroline his w.ife, were the plaintiffs below, and William M-Cay and William R. Lloyd, defendants. It is apprehended that the statement of the case is sufficiently given ‘in the opinion of the court.
    The cause was argued by Greenough and S. Hepburn, for the plaintiffs in error,
    who cited Crouse and another v. Miller, 10 Serg. & Rawle, 155.
    
      J. Hepburn and Bellas, in their arguments for the defendants in error,
    cited Salmon v. Rance, 3 Serg. & Rawle, 314. Vincent v. Lessee of Huff, 4 Serg. & Rawle, 300. Church Dig. 406. Rogers v. Old, 5 Serg. & Rawle, 408. Smith v. Lane, 12 Serg. & Rawle, 80. Deal v. M‘Cormick, 3 Serg. & Rawle, 345.
   The opinion of the court was delivered by

Tod, J.

On the trial a complete title in fee simple was shown m Caroline, one of the plaintiffs, by inheritance frojn her mother, Sarah H., who had intermarried with the defendant William A. Lloyd. To rebut this, and to show that Mrs. Lloyd, the mother of the plaintiff Caroline, and wife of the defendant Lloyd, had in her life time parted with her interest, the defendants produced from, the recorder’s office of the county, and read in evidence an exemplification of a deed from William A. Lloyd and .Sarah H. Lloyd his wife, to Alexander Elliot, in fee simple for eighteen lots, in-eluding the property in dispute, and for an out lot of-twenty-four acres. The subscribing witnesses to this deed Were Heath Narhury and John H Cowden. It was dated the 27th September, 1820, and acknowledged on the same day by both .the grantors before the said Norbury as justice of the peace. Also an exemplification of an agreement under the hands and seals of the said William A. Lloyd and Sarah H. Lloyd, apparently, written on the same paper, and referring to the aforesaid deed of the 27th of September, 1820, containing a valuation of the twenty-four acres and of the other lots, stating that they were intended for William A. Lloyd, and that as an equivalent he was to build a stone kitchen' adjoining the house where Mrs. Lloyd and himself then resided, for the benefit of her.and her heirs, and to be worth at least one thousand dollars. The subscribing witnesses to this agreement were Henry Rude and Heath Norbury. It was dated on the same day with the deed; namely, the 27th of September, 1820, and was acknowledged separately from the deed, on the same day, before the same Justice Norbury. The defendants also showed the exemplification of a deed, also endorsed, from Elliot and wife to William A. Lloyd, for the land and lots conveyed to Elliot as aforesaid, To this title set up by the defendants, the answer of the plaintiffs was, that as to the property in question it was a mere forgery; and whether forgery or not, was the only question in the cause. The plaintiffs’ counsel alleged the matter to be thus: that Mrs. Lloyd, the mother'of Mrs. Nourse and wife of the defendant, wishing to convey one of her town lots to Alexander Elliot, a poor man who had rendered her and her family some services, she had the deed drawn by Mr. Chapman, the scrivener; and she,., with her husband, executed it in the presence of the two witnesses; and it being a printed form of deed, with wide blank spaces, seventeen other town lots, by short references to number and description, and the twenty-four acres near the town, were afterwards inserted by William A. Lloyd, or by his procurement; and that he, in order to prevent an immediate detection of the fraud, when, he had got the deed recorded, with the endorsements which also, as they say, were in part fabricated, had destroyed the originals or secreted them. On this head, and to account for the loss, Lloyd himself proposed to be, and was swor.n, and testified as follows:—

“ Some time after the trust deed (the deed to Elliot) was executed, I took it to the recorder’s office. I do not recollect how many years elapsed, before I began to make inquiry for this deed. I made diligent search about the house; also among General Muklenburg’s papers. I inquired at the recorder’s office, and was told that the title papers were carried away. Can’t recollect of whom I made the inquiry. It was several years after the deed was recorded. I inquired of Mr. Lazarus. I,got Martin Weaver to■ search the office, . If I received the deed at the recorder’s office I don’t know what has become of it; whether it was sent to Baltimore with other deeds or destroyed'by the vermin. 1 have searched since, within two years, and last 'week. I have caused no search to be made'in the recorder’s office since this trial. Cross-examined. I began to search after ! heard of the plaintiffs’ intention to bring, this ejectment.”

To support this charge of forgery, and to controvert it, a’very great deal of evidence was offered by the plaintiffs and by the defendants, on the weight of which we shall neither give nor form an opinion. Among the rest, a piece of evidence was offered by the plaintiffs, objected to by the defendants, and overruled by the court. It was a book of accounts, proved to have been Justice Norbury’s, who is now. deceased, and in his handwriting. In it he appears to have entered at one time, three charges'of twenty-five cents each,, against William' JL. Lloyd, for taking three acknowledgments of deeds from Mr. and Mrs. Lloyd, one to Charles Maus, another to W. Fisher, and another ’ to' Alexander Elliot. The deed to MauSj and that to Fisher wrnre produced on the trial, and they both appear to have been executed on the same 27th of September, 1820, and to have the same subscribing witnesses; namely, Heath, Norbury, and John H. Cowden. The plaintiffs’ counsel allege that it was material to show this account and book of Norbury, a subscribing witness. They say the de.ed derives authenticity from Norbury’s signature; and that the deed to Elliot, as now produced, with another deed upon the back of it, and both apparently acknowledged oil the same day, before the same justice, if they had both existed so at the time, and had not been altered and fabricated since, they would both have been charged in the same book, and that entering but three acknowledgments against William Jt. Lloyd, on that day, forms a strong ground to presume that only three acknowledgments were taken on 1 hat day which could be chargeable to him. They say, too, that, forgery of deeds for land must often go undetected, unless by circumstances;' because the law necessarily gives the advantage of .destroying the original, actual forgery, and of relying upon a copy from the recorder’s office: a privilege which other forgeries cannot have, because the law insists upon the production of the writing itself, and will not tolerate-a copy, unless upon the strictest proof of the loss of the original. They contend further, that Norbury,the subscribing witness to the deed, and to the agreement endorsed, though dead, yet his handwriting supports the instrument; therefore his declarations, oral or written, are admissible in evidence, so far only as to controvert any deduction which may be drawn from his signature.

We are all of opinion that these reasons, of the plaintiffs’ counsel are valid; and that it was error to reject the entry in the book of Justice Norbury. 1 may add, though the evidence of the book was competent, it by no méans.follows that it was either conclusive- or weighty. By itself it would appear very slight. ■'

Judgment reversed, and a venire facias de novo awarded, .  