324] defaulter, within the time it prescribes. | monthly; to pay over the moneys collected Their liability, therefore, continues. They re- quarterly; and to complete his collection, pay main the debtors of the United States. The over the moneys collected to the treasury, and responsibility of the Postmaster-General him- render his final accounts within six months self, is superadded to, not substituted for, that from the day on which he shall have received of the obligors. The object of the act is to the collection list from the principal assessor. stimulate the Postmaster-General to a prompt In case of failure, the act authorizes and reand vigilant performance of his duty, by sus- quires the Comptroller of the Treasury, immepending over him a penalty, to which negli- diately, to issue his warrant of distress against gence will expose him; not to annul the obli- such delinquent collector, and his sureties. The gation of his deputy. Had the object of the comptroller did not issue his warrant of disact been to favor the sureties, its language tress according to the mandate of the law; and would have indicated that intention. If this this suit was instituted four years after such construction be correct, the obligors in this warrant ought to have been issued. bond remain the debtors of the United States, and the superadded responsibility of the Postmaster-General cannot affect the reasoning on which the jurisdiction of the court was sustained, in the case of the Postmaster-General v. Early. The second question proposed for the consideration of the court, is whether, on the facts appearing in the record, the sureties are discharged from their obligations. The breaches assigned, are: 1st. That Gerrit L. Dox failed to render accounts of his receipts and expenditures, as deputy-postmaster. 2d. That he had failed to pay over the moneys he had received, over and above his commissions, &c. The defendant pleaded, 1st. Non est factum. 2d. That Gerrit L. Dox did render true accounts, &c.; and 3d. That he did pay over the moneys he received. The issues joined on these pleas were found for the plaintiff. The question arises on other pleas, the issues on which were found for the defendants; and which state, in substance, that Gerrit L. Dox was removed from his office on the 1st day of July, 1816. That the Postmaster-General did | not open an account against him, and make any claim and demand on him for the moneys received by him, as postmaster, until the 1st day of July, 1821. That at the time of his removal from office, he was solvent and able to pay his debts, and continued so until the 1st day of July, 1819, after which he became insolvent, and continues to be so. These pleas also state, that the Postmaster-General, well knowing that Gerrit L. Dox had neglected and refused to pay over the moneys due from hira, as postmaster, at the end of every quarter, &c., did not commence a suit until August, 1821. The court left it to the jury to decide whether the government had not, by this omission, waived its resort to the sureties. A verdict was found for the defendants; the judgment on which was brought before this court by writ of error. The counsel for the defendant urged that laches might be imputed to the government, through the negligence of its officers; but this court reversed the judgment, declaring the opinion that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained in law. "The utmost vigilance," it was said, "would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities." It was further said, that the provisions of the law which require that settlements should be made at short and stated periods, are created by the government for its own security and protection; and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the security. After a full discussion of the question, the court laid down the principle "that the mere laches of the public officers, constitutes no grounds of discharge in the present case." The same question came on to be again considered in the case of The United States v. Vanzandt, 11 Wheat. 184. This was an action of debt brought up on a paymaster's official bond, against one of the sureties. The act for organizing the general staff, and making further provision for the army of the United States, "makes it the duty of the paymaster to render his vouchers to the Paymaster-General, for the settlement of his accounts;" and if he fail to do so, for more These facts, placed on the record without ex- than six months after he shall have [*326 planation, must be admitted to show a gross received funds, the act imperatively enjoins neglect of duty on the part of the Postmaster- "that he shall be recalled, and another apGeneral. Does this neglect discharge the sure-pointed in his place." The paymaster had ties from their obligations? The condition of the bond is broken, and the obligation has become absolute. Is the claim of the United States upon them 325] released by the *laches of the officer, to whom the assertion of that claim was in trusted? This question, also, has been settled in this court. The case of The United States v. Kirkpatrick et al. 9 Wheat. 720, was a suit instituted on a bond given by a collector of direct taxes and internal duties, under the act of 22d July, 1813, ch. 16. The act required each collector to transmit his accounts to the treasury failed to comply with the requisites of the law; after which the Paymaster-General, instead of obeying its mandate, by removing him placed further funds in his hands. The Circuit Court instructed the jury, that the defendant the surety, was not chargeable for any failure of the paymaster to account for such additional funds, so placed in his hands after his said default and neglect in respect of the funds previously received were known; and a verdict was found for the defendant. The judgment on this verdict was also brought before the court by a writ of error, and was reversed. The counsel for the defendant contended: that this case differed from The United States v. Kirkpatrick et al.; but the court said: "The provisions in both laws are merely directory to the officers, and intended for the security and protection of the government, by insuring punctuality and responsibility; but they form no part of the contract with the surety." The placing further funds in the hands of the defaulting paymaster, was considered as the necessary consequence of his continance in office. This is certainly a very strong case. These two cases seem to fix the principle, that the laches of officers of the government, however gross, do not of themselves discharge the sureties in an official bond, from the obligation it creates; as firmly as the decisions of this court can fix it. We think they decide the question now under consideration. The third question is, whether the bond can, upon the facts of the case, be considered, in judgment of law, as paid and satisfied, or otherwise discharged. If this question was founded on the time which was permitted to elapse before the institution of the suit, the answer must be in the negative. The bond was executed on the 1st day of January, 1816. The postmaster was removed from office on the 1st day of July, in the same year; and this suit was instituted in August, 1821. But little more than five years intervened between the time when the sum due from the principal in the bond was ascertained and the institution of the suit. The presumption of payment has never been supposed to arise from length of time in such a case, even between individuals; much less, in the case of the United States, where all payments are placed on that record which must be kept by the officers of the government. An additional reason exists against the presumption in this case. Length of time, is evidence to be laid before the jury on the plea of payment. The pleas on which this presumption is supposed to arise, not only do not allege payment, but presuppose that payment has not been made, which failure they ascribe 327*] to the laches of the Postmaster-General. In such a case, there can be no ground for presuming payment and satisfaction. That part of the question which is general, and which refers it to the court to decide, whether the bond had been "otherwise discharged," is understood to be a repetition of the second question, and to be answered in the answer given to that question. This court is of opinion that it be certified to the Circuit Court of the United States for the Southern District of New York: 1. That the District Court had jurisdiction of this cause. 2. That the sureties are not exonerated from their liability, upon the bond given by them, as set forth in the record. 3. That the said bond cannot be considered, in judgment of law, as paid and satisfied, or otherwise discharged. The cause came on, &c. On consideration whereof, this court is of opinion: 1. That the District Court of the Northern District of New York had jurisdiction of the said cause. 2. That the sureties to the bond on which the said suit was instituted are not exonerated o discharged from their liability on the sai bond, by the facts appearing on the record, and admitted by the pleadings, or found by the jury. 3. That the said bond cannot, from th facts found or admitted by the pleadings, o appearing by the record, be considered, i judgment of law, as paid and satisfied, o otherwise discharged. All which is directed to be certified to the Circuit Court of the United States for the Southern District of New York, in the second Circuit. JAMES ELLIOTT, the younger, Ben- [*328 jamin Elliott, Anderson Taylor, Reuber Pater, Patsey Elliott, and Wilford Lepell, V. THE LESSEE OF WILLIAM PEIRSOL, Lydia Peirsol, Ann North, Jane North, Sophia North, Elizabeth F. P. North, and William North, Defendants in Error. Evidence-practice-decisions of state courtsjurisdiction-deed of feme covert-recording of deeds-alteration of record. A letter from a deceased member of a family stating the pedigree of the family, and sworn by the wife to have been written by her husband, whe also swore in her deposition that the facts stated in the letter had been frequently mentioned by he husband, in his life-time, is legal evidence; as is also the deposition of the witness in a question o pedigree. [337] The rule of evidence, that in questions of pedi gree the declarations of aged and deceased mem bers of the family may be proved, and given in evidence, has not been controverted. [337] In a case where a controversy had arisen, or was expected to arise, between parties, concerning the validity of a deed, against which one of the parties claimed, but no controversy was then expected to arise about the heirship; a letter written, stating the pedigree of the claimants, was not considered as excluded by the rule of law which declares that declarations relating to pedigree, made pos litem motam, cannot be given in evidence. [337] Where the defendant had reserved a right to move the court to exclude any part of the plaintiff': evidence, which he might choose to designate as incompetent, and it did not appear from the bill of exceptions that he designated any particular piec or part of the evidence as objectionable, and move the court to exclude the whole, or to instruct the jury that it was insufficient to prove title in the les sors of the plaintiff; this could not be done on the round of incompetency, unless the whole was in competent. The court is not bound to do more tha respond to the motion, in the terms in which it is Courts of justice are not obliged to modify made. the propositions submitted by counsel, so as t make them fit the case. If they do not fit, that is enough to authorize their rejection. [338] The privy examination and acknowledgment of a NOTE. Hearsay evidence as to pedigree, or fact of family history. In inquiries into events which happened a long time ago, and beyond the memory of living wit nesses, hearsay is admitted; as, in questions of pedigrees, the declarations of deceased members of the family, entries in family Bibles or other books recitals in family deeds, monumental inscriptions engravings on rings, old pedigrees hung up in family mansions, or preserved in family, and the will of an ancestor, though found cancelled, and not known to have been proved or acted upon, if i appear to have been treated as a paper relating to the family. 3 Bac. Abr. 630; Tit. Evidence (K.) Higham v. Ridgway, 10 East. 120; 4 Camp. 401 Peters 1 deed, by a feme covert, so as to pass her estate, cannot be legally proved by parol testimony. [338] In Virginia and Kentucky, the modes of conveyance by fine and common recovery, have never been in common use; and in these States the capacity of a feme covert to convey her estate by deed, is the creature of the statute law; and to make her deed effectual, the forms and solemnities prescribed by the statutes must be pursued. [338] By the Virginia statute of 1748, "when any deed has been acknowledged by a feme covert, and no record made of her privy examination, such deed is not binding upon the feme and her heirs." This law was adopted by Kentucky, at her separation from Virginia, and is understood never to have been repealed. [339] The provisions of the laws of Kentucky, relative to the privy examination of a feme covert, in order to make a conveyance of her estate valid. [339] It is the construction of the act of 1810, that the 329] clerks of the County Court of Kentucky have authority to take acknowledgments and privy examinations of femes covert, in all cases of deeds made by them and their husbands. [339] What the law requires to be done, and appear of record, can only be done, and made to appear by the record itself, or an exemplification of it. It is perfectly immaterial, whether there be an acknowledgment or privy examination in form or not, if there be no record made of the privy examination; for, by the express provisions of the law, it is not the fact of privy examination only, but the recording of the fact, which makes the deed effectual to pass the estate of a feme covert. [340] A deed from Baron and feme, of lands in the State of Kentucky executed to a third person by which the land of the feme was intended to be conveyed for the purpose of a re-conveyance to the husband, and thus to vest in him the estate of the wife; was indorsed by the clerk of Woodford County Court, "acknowledged by James Elliott, and Sarah G. Elliott, September 11th, 1816," and was certified as follows: "Attest, J. M'Kenney, Jun., clerk." "Woodford county, ss. September 11th, 1813. "This deed from James Elliott, and Sarah G. Elllott, his wife, to Benjamin Elliott, was this day produced before me, and acknowledged by said James and Sarah to be their act and deed, and the same is duly recorded. "John M'Kenney Jun., C.C.C." Held, that subsequent proceedings of the Court of Woodford County, by which the defects of the certificate of the clerk to state the privy examination of the feme (which, by the laws of Kentucky, is necessary to make a conveyance of the estate of a feme covert legal) were intended to be cured upon evidence that the privy examination was made by the clerk, will not supply the defect or give validity to the deed. [3401 If the court of a State had jurisdiction of a matter, Its decision would be conclusive; but this court cannot yield assent, to the proposition that the jurisdiction of a State Court cannot be questioned, where its proceedings were brought, collaterally, before the Circuit Court of the United States. [340] Bull. N. P. 233; Goodright v. Moss, Cowp. 594; Vowles v. Young, 13 Ves. 143; Douglass v. Sanderson, 2 Dall. 116; 1 Yeates, 15; Winder v. Little, 1 Yeates, 152; Lessee of Lilly v. Kintzmiller, 1 Yeates, 28; Raborg's Adm'x v. Hammond's Adm'r, 2 Harr. & G. 42; Lewis v. Marshall, 5 Pet. 470, 476: Collins v. Grantham, 12 Md. 440; Clara v. Ewell, 2 Cranch, C. C. 208; North Brookfield v. Warren, 16 Gray, 171: Doe v. Davies, 10 Q. B. Abb. Trial Ev. 93; Russell v. Jackson, 22 Wend. 276: Cowan v. 2.A. K. Marsh. 238; Shuman v. Shuman, 27 Penn. St. 90. Declarations of persons not members of the famIlv. if known to have been intimately acquainted with the family, may be received. Gilbert's Ev. 112: 3 Term R. 723. Proof by one of the family that a younger brother of the person last seized had many years before gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, has been admitted as good prima facie evidence of such person's death without lawful issue. Doe v. Griffin, 15 East. 293. Where a court has jurisdiction, it has a right to decide any question which occurs in the cause; and whether its decision be correct, or otherwise, its judgments, until reversed, are regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification; and all persons concerned in executing such judgments, or sentences, are considered, in law, as trespassers. [340] The jurisdiction of any court, exercising authority over a subject, may be inquired into in every other court, when the proceedings of the fornier are relied on, and brought before the latter by a party claiming the benefit of such proceedings, [340] The jurisdiction and authority of the courts of Kentucky are derived wholly from the statute law of the State. [341] The clerk of Woodford County Court has no authority to alter the record of the acknowledgment of a deed, at any time after the record is made. [341] WRIT of error to the Circuit Court of Ken tucky. William Peirsol and Lydia Peirsol, his wife, Ann North, Jane North, Sophia North, Elizabeth F. P. North, and William *North, [*330 citizens of Pennsylvania, heirs of Sarah G. Elliott, commenced their action of ejectment against James Elliott, the younger, et al., the plaintiff's in error, in the Circuit Court for the District of Kentucky, to recover the possession of 1,200 acres of land, part of 2,000 acres patented to Griffin Peart. The plaintiffs proved, that, upon the division of the whole body among the heirs of Griffin Peart, the 1,200 acres in contest was allotted to Sarah G. Peart, one of the heirs, and that she was seized thereof in severalty. Sarah G. Elliott, formerly Peart, she having intermarried with James Elliott, died about 1822, without issue; Francis Peart, and Le Roy Peart, brothers of Sarah Elliott, died shortly before her, also without issue. The boundaries of the 1,200 acres, and the possession by the defendants, was not controverted. The plaintiffs below claimed the premises, as the heirs of Sarah G. Elliott, formerly Sarah G. Peart; and they sought to establish their heirship by the deposition of Mrs. Braugh, widow of Robert Braugh, who swears that the letter annexed to her deposition, addressed to William Peirsol, Philadelphia, is in the handwriting of her deceased husband. She also ed, and who are then dead admissible. Strickland v. Poole, 1 Dall. 14; Stein v. Bowman, 13 Pet. 209. Declarations of servants and intimate acquaintances are not admissible a questions of pedigree, but only those of kindred. Johnson v. Lawson, Bing. R. 86. The facts of family history which may be proved by hearsay from proper sources are the following: Birth: North Brookfield v. Warren, 16 Gray, 174; Am. Life Ins. Co. v. Rosenagle, 77 Penn. St. 507, 516. Living or survival: Johnson v. Pembroke, 11 East. 204. Marriage: Canjolle v. Ferrie, 23 N. Y. 90; Cunningham v. Cunningham, 2 Dow. 482, 511; Commonwealth v. Stump, 53 Penn. St. 132; Hill v. Burger, 3 Bradf. 432, 437; Lyle v. Ellwood, 11 Moak's Eng. 702. Issue or want of issue: People v. Fulton Fire Ins. Co. 25 Wend. 208; King v. Fowler, 11 Pick. 302. Death: Masons v. Fuller, 45 Vt. 29; 1 Tayl. Ev. 570. sec. 572. The times, either definite or relative of those Evidence of hearsay may be given to prove a facts: Doe v. Rawlins, 7 East. 290; Webb v. Richpedigree. The declarations of persons uninterest-ardson, 42 Vt. 465; Bridger v. Huett, 2 Fost. & F. 35. states that she frequently heard him speak of his family connections, and has always understood from him that the late Mrs. Mary North, formerly Mary Peart, and the late Mrs. S. G. Elliott, were cousins, both on the side of the father and mother; and that the statements in the letter correspond with the other statements she heard him make upon the subject of the pedigree of the two ladies; which letter proves the present plaintiff's to be the only heirs of Mrs. Sarah G. Elliott, at the time of her death. Other depositions were read to the same effect. On the 12th of June, 1813, James Elliott, and Sarah G. Elliott, executed a deed, by which the premises in question were expressed to be conveyed to Benjamin Elliott, under whom the plaintiffs in error claimed to hold the same. The defendants below moved the Circuit Court to instruct the jury, that the evidence adduced by the plaintiffs to establish their heirship to Sarah G. Elliott was insufficient, and that the same ought to be excluded. The court refused so to do; but, on the contrary, instructed the jury, that the said evidence, if believed by the jury, was prima facie testimony that the lessors of the plaintiffs were the legal heirs of the said Sarah Peart, alias Sarah G. Elliott. In relation to the deed of 12th June, 1813, to Benjamin Elliott, it was contended below that Sarah G. Elliott never did execute the same, in the manner described and required by law, and that the fee-simple estate of Mrs. Elliott did not pass thereby. The provisions of the law 331*] relative to the privy examination *of a feme covert, by the officer, the clerk of the court, or in open court, and to the recording thereof, were alleged not to have been complied with; and consequently the estate of Mrs. Elliott did not pass, by the conveyance, to Benjamin Elliott. It was also claimed, on the part of the plaintiffs in error, that if a privy examination and acknowledgment were made, it was not recorded; and unless recorded, no title passes to devest the title of the feme covert. The Circuit Court decided this point in favor of the defendants in error; and the case was brought up, upon a bill of exceptions. Mr. Wirt, Attorney-General, for the tiffs in error. versal, and it does not apply when higher evi dence can be obtained. 3 Stark. Evid. 1099 1011; 3 Marshall, 321. The letter was written with a view to, O under the influence of, the approach of this suit; post litem motam, and such evidence is not admissible. 3 Starkie, 1102, 1104. 2. As to the admissibility of the deed to Ben jamin Elliott, and the alleged defect of the acknowledgment of the feme covert, Sarah G. Elliott. 1. The Circuit Court of the United States was not competent to inquire into the acts of the court of the State of Kentucky, before which the proceedings relative to the acknow 1edgment were entertained. This is not done by the Courts of King's Bench, of England, in reference to the proceedings of Ecclesiastical Courts, or Courts of Common Pleas. The Circuit Court could look at nothing but the record from the State Court, and could not inquire in what mode the certificate had been made. But, if this could be done, there were materials enough for the purpose. The examination of the feme was made according to the provisions of the law, but it was not at the time fully stated by the clerk so to have been made. He took the acknowledgment, and the court, subsequently, did no more than fill up the record of what had been actually done, from the testimony of the facts before them. This was done by virtue of the powers which courts have exercised, to correct their records at a subsequent period. 4 Mad. 371; 12 Mad. 384; 2 Stark. 1132, 1156, 1182; 3 Bulst. 114; 8 Coke, 162; Palmer, 509; Rolle's Rep. 272; 2 Saund. 289; Raymond, 39, 209; Sidf. 70; Salkeld, 50; P. L. 13; Ibid. 50; Ld. Ray. 695; Cr. Eliz. 435, 459, 677; 2 Rolle's Rep. 471; Hob. 327; Rolle's Abridg. 209, 210; 2 Jones, 212; Gwl. Bacon, 197, note; Pigot's Recov. 218; Douglass, 134; 1 H. Blk. 238; Barnes, 216; 2 N. Y. T. R. 139; 4 Hen. & Mun. 498; 3 Call: 221, 233; 3 Hen. & Mun. 449. *2. The clerk of the court, who took [*332 the acknowledgment, acted as the ministerial plain-agent of the court, and he acts as if he was in court. This act was, therefore, in the power of the court. But if the clerk had the powers of a court in reference to taking acknowledgments of deeds, the authorities cited, showing the rights of courts to correct errors, apply Co. 30 Iowa, 301; Webb v. Richardson, 42 Vt. 465; Alexander v. Chamberlain, 1 Thomp. & C. 600. 1. The letter of Mrs. Ann Braugh to William Peirsol is not evidence. Although the declarations of members of families are evidence in questions of pedigree, yet this rule is not uni Relative age or seniority: Johnson V. Pembroke, 11 East. 504. Name: Monkton v. Att.-Gen. 2 Russ. & M. 158. Relationship generally, and its degree: Doe v. Randall, 2 Moore & P. 20, 26; Vowles v. Young, 13 Ves. 147; Webb v. Richardson, 42 Vt. 465; Chapman v. Chapman, 2 Conn. 350. The place of residence when proved for purpose of identification: Cuddy v. Brown, 78 Ill. 415; Shields v. Boucher, 1 De Gex & Sm. 40; Doe v. Randall, 2 Moore & P. 20; Abb. Trial Ev. 91. See, also, on this subject, North Brookfield v. Warren, 16 Gray, 174; Primm v. Stewart, 7 Tex. 178; Westfield v. Warren, 3 Halst. 249; Stonvenal v. Stephens. 26 How. Pr. 244; Morewood v. Wood, 14 East. 330; Sprigg v. Moale, 28 Md. 497, 509. The declarations must be those of deceased members of the family, legally related by blood or marriage to the family whose history the fact concerns. 1 Tayl. Ev. 576, 579, 571; Emerson v. White, 29 N. H. 491; Doe v. Randall, 2 Moore & P. 20: Scott v. Ratcliff, 5 Pet. 81; Waldron v. Tuttle, 4 N. H. 371, 378 Emerson v. White. 29 N. H. 491; Chapman v. Chapman, 2 Conn. 347; Greenleaf v. Dubuque R. Hearsay, general repute, traditional evidence, ancient writings, physicians' record of birth, &c., admissible in proof of pedigree, death, marriage, &c. Jackson v. Cooley, 8 John. 128; Jackson v. Boneham, 15 John. 226; Jackson v. Brower, 18 John. 37; Jackson v. King, 5 Cow. 237; Russell v. Jackson, 22 Wend. 277; People v. Fulton Fire Ins. Co. 25 Wend. 205; Canjolle v. Ferres, 26 Barb. 177: Leggett v. Boyd, 3 Wend. 376; Arms v. Middleton, 23 Barb. 571 Jackson v. Etz, 5 Cow. 314: Barnet v. Day, 3 Wash. C. C. 243; Bondereau v. Montgomery, 4 Wash. C. C. 186; Stein v. Bowman, 13 Pet. 209; Barnet v. Day, 3 Wash. C. C. 243; Secrist v. Green, 3 Wall. 744; Jewell v. Jewell, 1 How. 210; 17 Pet. 213; Scott v. Ratcliffe, 3 Pet. 81; Secrist v. Green, 3 Wall. 744; Fisher v. Carter. 1 Wall. Jr. C. C. 69; Nelson v. Hall, 1 McLean, 518; Beard v. Talbot. Cooke, 142; Matter of Hall 1 Wall. Jr. C. C. S5; Chamberlain v. Chamberlain, 71 N. Y. 423; Kobbe v. Price, 14 Hun, 55; McCarty v. Terry, 7 Lans. 236; McCarty v. Deming, 4 Lans. 440. to his acts; and if such were his powers, the interference of the court, in this case, was sur plusage. Mr. Wickliffe, for the defendants in error. claimed the land in controversy, as heirs-at- 1. The assumption of the power to correct his errors by the clerk of the court, was a nullity in Kentucky, according to the established laws and decisions there. Hard. Rep. 171, 172. The laws of Kentucky, relative to taking acknowledgments of deeds, have undergone many modifications; but the law and practice now is, for the clerks to take the acknowledgment and the privy examination of a feme covert; and in this they act independent of the courts, and not under their authority; nor have the judges of the courts any power to interfere with their acts or proceedings, in relation to such acknowledgment. The authorities cited 333*] to show the right and practice of *courts to correct errors or omissions, do not apply. The bill of exceptions states, "that upon As to the laws of Kentucky, relative to this the trial of this case, the plaintiffs read as evisubject, there was cited the act of Assembly of dence a patent from the Commonwealth to 1795. 1 Littel, 595. The Circuit Court did Griffin Peart, dated the 1st of May, 1781, covernot, in this case, inquire how the acts or pro- ing the land in controversy (which patent is ceedings of the Court of Kentucky had been made part of the bill of exceptions) and sundry performed, but whether the laws of the State, depositions, taken and filed in the cause (also on the subject-matter, had been complied with. made part of the bill of exceptions); and 2. The facts of the case, as stated in the proved that, upon a division of the land grantrecord, show that the testimony of Mrs. Anned to Griffin Peart, by said patent, the part in Braugh was not liable to the objection that it contest was allotted to the late Sarah G. was given post litem motam; as to the opera- Elliott, formerly Sarah G. Peart, and that she tion of evidence, post litem mortem, he cited, was seized thereof in severalty; that the said Cowper, 594; 14 East, 331; 3 Starkie, 1105. Sarah G. Elliott died, before the institution of this suit, about the year 1822, without issue; and that the defendants were in possession of the land, allotted to her as aforesaid. after the plaintiffs had closed their evidence, touching their derivation of title, the defendants, as they had reserved the right to do, moved the court to instruct the jury, that the evidence adduced on the part of the plaintiffs was insufficient to prove title in the lessors of by commission, to be issued by the clerk of the court wherein the writing ought to be recorded, to examine her privily, and take her acknowledg ment; the wife being examined privily, and apart from her husband, by those commissioners, shall declare that she willingly signed and sealed the said writing, "to be then shown and explained to her by them," and consenteth that it may be recorded; and the said commissioners shall return, with the said commission, and thereunto annexed, a certificate under their hands and seals, of such privy examination by them, and of such declara. tion made, and consent yielded by her; in either case, the said writing acknowledged, also, by the husband, or proved by witnesses, to be his act, and recorded, together with such privy examination and acknowledgment before the court, or together with such commission and certificate, shall not only be sufficient to convey or release any right of dower, thereby intended to be conveyed or released, but be as effectual for every other purpose as if she were an unmarried woman. Mr. Justice Trimble delivered the opinion of the court: This is an action of ejectment, brought in the Circuit Court for the District of Kentucky, by the lessors of the defendant in error, and against the plaintiffs in error, who were de fendants in the court below. The lessors of the plaintiff, in that court, 1. By the kindness of Mr. Wickliffe, the reporter has been furnished with the following abstract of the present laws of Kentucky, relative to the execution of conveyances by non-residents, and by husband and wife. Laws of Kentucky, chap. 278, 1796: If the party who shall sign and seal any such writing, reside not in this commonwealth, the acknowledgment by such party, or the proof by the number of witnesses requisite.* of the sealing and delivering of the writing before any court of law, or the mayor, or other chief magistrate of any city, town, or corporation of the county in which the party shall dwell, certified by such court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, and offered to the proper court, to be recorded within eight months after the sealing and deliver ing, shall be as effectual as if it had been in the last-mentioned court. Conveyances by husband and wife, how to be executed, &c. Sec. 4. When husband and wife shall have sealed and delivered a writing, purporting to be a conveyance of any estate or interest, if she appear in court, and being examined privily, and apart from her husband, by one of the justices thereof, shall declare to him that she did freely and willingly seal and deliver the said writing, "to be then shown and explained to her," and wishes not to retract it, and shall, before the said court, acknowledge the said writing, again shown to her, to be her act; or if before two justices of the peace of that county in which she dwelleth, if her dwelling be in the United States of America, who may be empowered If out of the United States. And Sec. 5. If the dwelling of the wife be not in the United States of America, the commission to examine her privily, and take her acknowledgment, shall be directed to any two judges or justices of the peace of any court of law, or to the mayor, or other chief magistrate of any city, town, or corporation, of the county in which the said wife shall dwell, and may be executed by them in the same manner as a commission directed to two justices in the United States of America and the certificate of the judges or justices of such court, or the certificate of such mayor, or chief magistrate, authenticated in the form, and with the solemnity by them used in other acts, shall be as •-Three witnesses-by a previous section of the effectual as the like certificate of the justices in law. the United States of America. |