
    Pollard’s Heirs v. Lively.
    July Term, 1845,
    Lewisburg.
    (Absent Brooke, J.)
    1. Depositions — Appellate Court — Presumption.—This Court will presume that a deposition has been taken upon a regular commission and notice, where no objection has been taken to it on that ground, in the Court below.
    2. Same — Certificate —Authentication.—A person taking a deposition under a regular commission and notice, certifies that the deposition was taken before him; and signs his name to the certificate, with the addition of the letters J. P. Held. It sufficiently appears he is a justice of the peace.
    3. Same — Absence of Witness — Age, III Health. — A witness giving his deposition de bene esse, states in it, that he is unable, from his age and health, to attend at the Court. This is sufficient to authorize his deposition to be read upon the trial of the cause in which it is taken.
    4. Deeds — Recordation—Land In Another County — Evidence. — The clerk of a County or Corporation Court has no authority to admit to record a deed which does not convey land lying in his county or corporation. And a copy of such a deed, authenticated by the clerk, is not competent evidence, in place of the original.
    This was a writ of right brought in the Circuit Superior Court of I/aw and Chancery for the county of Monroe, by Benjamin Pollard’s heirs against I/ively, to recover a tract of two hundred acres of land, part of a larger tract of twenty-five hundred acres.
    *On the trial of the cause, the de-mandants offered to read the depositions of Richard Omohundro and Samuel Pettit, taken de bene esse in the county of Fluvanna; the latter of whom, it appeared by his affidavit, was unable, from his age and health, to attend the Court; but it.did not appear that the first could not. The reading of these depositions was objected to, because the person taking them did not certify himself to be a justice of the peace, unless by writing the letters J. P. after his signature to the certificate attached to the depositions; and the Court below sustained the objection, and excluded the depositions. To which opinion of the Court the demand-ants excepted.
    In the progress of the trial, the demand-ants having proved that their ancestor, under whom they claimed, lived in the 'county of Buckingham, the tenants, to shew that the ancestor of the plaintiffs was not the person to whom the grant, under which they claimed title, was issued, offered in connection with other evidence, the authenticated copies of two deeds, admitted to record in the Borough Court of Norfolk, by which Benjamin Pollard conveyed to Robert Gibson two tracts of land in the county of Greenbrier; in which deeds it was recited that Pollard was an inhabitant of Norfolk. The demandants objected to the introduction of the copies in evidence, but the Court overrilled the objection; and the de-mandants again excepted.
    A verdict and judgment having been rendered in favour of the tenants, the demand-ants obtained an appeal to this Court.
    Caperton, for the appellee,
    referred to Baker, treasurer, v. Preston, Gilm. 235, to shew that the recital in the deeds was evidence of the fact recited. And he referred to Lee v. Tapscott, 2 Wash. 276; and 3 Tho. Coke 373, to shew that under the circumstances of this case, the copies of the deeds were competent evidence.
    *Price, for the appellants,
    referred to 1 Tuck. Com. Book II. p. 268-9; 1 Rob. Pr. 316, and the authorities there cited, to shew that these deeds having been recorded in Norfolk, where the lands did not lie, authenticated copies from the records of that office were not competent evidence.
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that an office copy of a deed admitted to recordation by the proper authority, upon due acknowledgment or proof of its execution, is admissible evidence; because, in the first place, the reception of such acknowledgment or proof, and the admission of the instrument to recordation,1 are'public acts performed by mandate of the law, and therefore, entitled to confidence; and because, secondly, the certificate- of the public officer having custody of the record, of the acts which it indicates, by furnishing an attested copy thereof, is to be taken as authentic, on account of the inconvenience which would be occasioned by the necessity of producing the original. But that where the law gives no authority for the reception of such acknowledgment or proof and admission to recordation, the record- of those acts, and the certificate of the public cus-todiar of the record are entitled to no more respect than if the same had been performed by a private individual. The Court is further of opinion,, -that the Hustings Court of Norfolk had no authority to receive proof of the execution of the deeds from Benjamin Pollard, in the second bill of exceptions mentioned, for the purpose of recordation thereof in the office of that Court; and that the recordation thereof there was of no validity. Wherefore, the Court is of opinion, that the Circuit Court erred in admitting as evidence to the jury the office copies of said deeds mentioned in the second bill of exceptions.

And the Court is further of opinion, that there is no error in the rejection by the Circuit Court of Omohundro’s deposition, in the first bill of exceptions mentioned, inasmuch as there was no sufficient evidence of the inability of' said witness to attend at the trial. But the Court is further of opinion, that the Circuit Court erred in rejecting the deposition of Pettit, in the first bill of exceptions mentioned, there being sufficient evidence of the inability of that witness to attend at the trial, and it sufficiently appearing that his deposition was taken by a justice of the peace, who acted under a regular commission and notice, as must be presumed in the absence of any objection on that score.

It is therefore' considered by the Court that, for the errors aforesaid, the judgment of the said Circuit Court be reversed and annulled, and the verdict of the jury set-aside ; and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their supersedeas aforesaid here: and the cause is remanded to the said Circuit Court for a new trial 'to be there had of the mise between the parties. 
      Deposition De Bene Esse — Aged, Infirm, or Sick Witnesses. — Where a deponent, testifying de dene esse, states in his deposition that because of age and health he is unable to attend at court, this is sufficient to authorize the deposition to be read on the trial of the cause. For this proposition the principal case is cited and approved in Nuckols v. Jones, 8 Gratt. 273: Tayloe v. Smith, 10 Gratt. 558.
      See foot-note to Nuckols v. Jones, 8 Gratt. 267, and monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
      Same — Authentication—initials “J. P.” — It was held in Hobbs y. Shumates, 11 Gratt. 516. that a deposition purporting in the caption to have been taken in the state and county designated in the commission and notice, and certified by a person who adds to his name the letters J. P., is duly authenticated. The court said at page 521; “The case falls within the principle decided in Pollard r. Lively, 2 Gratt. 216, which held that a certificate such as is found in this case, headed with the state and county, and signed by the party taking the deposition with his name and the letters J. P. is sufficient evidence of the fact that the deposition was taken by a justice of the peace.”
      Thus, it will be seen, that adding the initials J. P. after the name of the person who certifies the deposition, will be presumed to be intended for and to mean “justice of the peace.” Pollard v. Lively. 2 Gratt. 216; Hobbs y. Shumates, 11 Gratt. 516.
      Evidence — Copy of Deed. — For the proposition laid down in the fourth headnote, the principal case is cited in Johnston v. Griswold, 8 W. Va. 243, and Johnston v. Slater, 11 Gratt. 324, 325.
     