
    Hackney vs. Williams, for the use of Elizabeth Johnston.
    
    A feme sole, by deed of marriage settlement, conveyed property to a trustee for the use of herself for life; and stipulated, that if she “died without lawful heirs of her body, one half of the negroes, and their increase, should return to her brothers and sisters; and the other part of the negroes should be to her own use and disposal, as she should see necessary, notwithstanding said marriage, at any time or times after said marriage takes effect, without any let, hindrance or interruption .from the husband or trustee; anything therein contained to the contrary notwithstanding.” The marriage took effect; and afterwards, no division of the negroes having taken place, on the marriage of her daughter, the wife, with the assent of the husband, but without the consent of the trustee, gave to her daughter four of the negroes: Held, that the wife could not dispose of the one half of the negroes without the consent of the trustee and until after a division had taken place with the trustee for that purpose.
    A copy of a deed made and registered in another State, certified by the register, though not under an official seal, is good evidence under the act of Congress of 1804, if there was no seal of office.
    A certificate by the clerk of the court, that the person signing a certificate is register, is not required under the act of Congress of 1804.
    The certificate of a presiding justice of the court will be held to be good, though it contain superfluous matter, if it contain the substance required by law.
    The certificate of the clerk of the county court, “that Wm. Jones, whose name is signed to the foregoing certificate, is chairman of Onslow county court, duly elected and appointed,” is not sufficient under the act of Congress; it must show that the person certifying is the presiding justice of the court.
    In 1802, Elizabeth Stokes was about to intermarry with Amos Johnston, in the county of Onslow, North Carolina. She was the owner of sixteen slaves, and to secure them to herself, she, in conjunction with her intended husband, conveyed them and their increase to Uz Williams, to hold in trust, “for the support and maintenance of said Elizabeth during her natural life.” And the trustee covenanted to hold for and keep her possessed of the slaves and their increase, during the natural life of said Elizabeth. It is further stipulated, “if the said Elizabeth die without lawful heirs of her body, one half of the negroes and their increase are to return to her brothers and sisters; and the other part of the above named ne-groes shall be to my use and disposal as I shall see necessary, notwithstanding said marriage, at any time or times after the said marriage takes place, without any let, hindrance, or interruption from him, the said Amos Johnston, or Uz Williams, or anything herein contained to the contrary notwithstanding.”
    The marriage took effect. Hackney, the defendant, married a daughter of Mrs. Johnston. Four of the slaves were sent to the daughter. The daughter died; and now, suit is brought for the negroes in the name of Uz Williams, the trustee. Proof was offered to show that Mrs. Johnston, with the assent of her husband, gave the ne-groes to the son-in-law, Hackney. This the circuit court rejected as incompetent, to which the defendant excepted.
    An office copy of the deed of marriage settlement was offered in evidence, and objected to by the defendant, but was admitted by the court. The register of Onslow county certified, “that said deed was duly registered in his office,” but it was not sealed with a seal of office. Then follows the certificate of the clerk of Onslow county court, stating “that James Glum is register of Onslow county, and his attestation in due form of law.” Then comes the certificate of William Jones, certifying “that James Glum is register of Onslow county, and that the person purporting to certify as clerk of the county court of Onslow county, is clerk of said court, and that their certificates are in due form of law.” Then comes the certificate of the clerk of Onslow county, certifying “that William Jones is chairman of Onslow county court, duly elected and appointed chairman, and that his certificate is in due form of law.” The judge charged the jury, that by virtue of the deed of marriage' settlement, the legal title in said slaves was vested in Uz Williams, the trustee; that no gift of any part of said slaves could be made by Mrs. Johnston until a division was made, and the consent of said Uz Williams thereto given. The jury found for the plaintiff, and thereupon the ■defendant appealed in error to this court.
    Cobbs, for plaintiff in error.
    T. Craighead, for defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

In 1802, Elizabeth Stokes was about to intermarry with Amos Johnston, in the county of Onslow, North Carolina. She was the owner of sixteen slaves, and to secure them to herself, she, in conjunction with her intended husband, conveyed them and their increase to Uz Williams, to hold in trust “for the support and maintenance of said Elizabeth, during her natural life. ” And the trustee covenants to hold for, and keep her possessed of the slaves and their increase, during the natural life of said Elizabeth. It is further stipulated, “if the said Elizabeth die without lawful heirs of her body, one half of the negroes and their increase are to return to her brothers and sisters; and the other part of the above named negroes shall be to my use and disposal,' as I shall see necessary, notwithstanding said marriage, at any time or times after the said marriage takes place, without any let, hindrance or interruption from him, the said Amos Johnston, or Uz Williams, or anything herein contained to the contrary no twithstan ding."

The marriage took effect. Hackney married a daughter of Mrs. Johnston. Pour of the slaves were sent to -the daughter, who died; and now suit is brought for the negroes in the name of the trustee.

Proof was offered to show, that Mrs. Johnston, with the assent of her husband, gave the negroes to the son-in-law, Hackney. This the circuit court rejected as incompetent. Was this error? is the first question.

The construction of this marriage settlement is directly involved in another ,case pending in this court; and we only feel it incumbent on us at present to say, we apprehend the circuit court correctly rejected the evidence. If Mrs. Johnson reserved the power of disposition of one half of the slaves, that half could only be disposed of after a division of the property for this, purpose with the trustee, and his consequent assent to the exercise of the power reserved.

2. An office copy of the deed of marriage settlement was offered in evidence, objected to on behalf of the defendant, but admitted by the court.

It is objected, the register’s certificate has no seal to it. The act of Congress of 1804, (2 Scott, 860,) provides, that the seal of the office shall be affixed to exemplifications of records not pertaining to a court, if there he a seal. We know that by law there is no official seal belonging to the registers’ offices of North Carolina. This certificate is well enough.

Next follows the certificate of the clerk of the county court, stating that James Glum is register, and his attestation in due form. This certificate is not required by the act of Congress, or worth anything;. The act required the keeper of the office, the register, to certify the copy as a true one. 2. The certificate of the presiding justice of the county court, that the attestation of the register is in due form, and by the proper officer. 3. The certificate given by the presiding justice must be authenticated by the clerk of said court, “who shall certify under his hand, and the seal of his office, that the said presiding justice is duly commissioned and qualified.” The certificate of the presiding justice of Onslow cou.nty court is sufficient in this instance, although it contains superfluous statements, by attesting that the clerk’s certificate is in due form, &c.

Next comes the certificate of the clerk, stating "William Jones “is chairman of the Onslow county court, duly elected and appointed chairman.” We know the chairman of a North Carolina county court is the presiding justice; but there .might be a presiding justice and no chairman, as has been often the case in Tennessee. The leading object of the act of Congress is, to have the evidence of a member of the county court, and that of the leading member, to the fact, that the proper officer has given the copy, and has certified it in the form to make it evidence in the State where he is an officer; and to be assured that the justice is a member of the court, a third officer, the clerk of the court, is required to furnish his evidence under the seal of the court, that the justice is duly commissioned and qualified. That William Jones was duly commissioned and sworn in as a justice of the county court of Onslow, does not appear, and therefore the copy was incorrectly admitted.

Judgment reversed.  