If the execution of an important exhibit of the complainant be
not admitted the defendant in his answer, who calls upon the
complainant to make full proof thereof in the court below, this
Court will not presume that any other proof was made than appears
in the transcript of the record.
A copy of a deed from a clerk of the court without certificate
of the presiding judge that the attestation of the clerk is in due
form cannot be received in evidence in a suit in equity.
If this Court reverse a decree upon a technical objection to
evidence (probably not made in the court below), it will not
dismiss the bill absolutely, but remand the case to the court below
for further proceedings.
This was an appeal from the decree of the Circuit Court for the
Virginia district in a suit in chancery brought by the trustees for
the creditors of W. B. Magruder & Co. against Drummond's
administrators to compel the latter to account for funds put into
the hands of their intestate by W. M. Magruder & Co.
The defendants, in their answer, say they know no such firm or
co-partnership as Wm. B. Magruder & Co. They cannot admit it,
and hope the complainants will be put to the proof of it. They have
no knowledge of the deed of trust mentioned in the bill, and hope
the complainants will be required to make ample proof thereof. That
W. B. Magruder was largely in debt to their intestate, and they
believe the funds put into his hands by Magruder were intended to
be applied to that debt.
The only proof of the deed of trust appearing in the transcript
of the record was a copy certified by one Gibson, who calls himself
Clerk of Baltimore County, without any certificate from the
presiding judge that
Page 13 U. S. 123
his attestation was in due form. It purported to be an
assignment of personal estate only, and was not required by the
laws of Maryland to be recorded.
Page 13 U. S. 124
WASHINGTON, J. delivered the opinion of the Court as
follows:
The appellees filed their bill on the equity side of the Circuit
Court of Virginia for the purpose of recovering a sum of money due
from William Drummond to William B. Magruder & Co. To entitle
themselves to sustain this suit, they allege in their bill that
they are creditors and trustees of William B. Magruder & Co. by
virtue of a deed of assignment annexed to the bill as part thereof.
This exhibit purports to be an assignment to the complainants of
all the partnership effects, debts and credits of William B.
Magruder & Co. in trust for the payment of certain favored
creditors of that company, amongst whom are the complainants.
The appellants filed their answer denying any knowledge of such
a co-partnership as William B. Magruder & Co. and call upon the
complainants to prove the same. They also deny any knowledge of the
deed of trust mentioned in and annexed to the bill, and call upon
the complainants to make full proof of it. To this answer there was
a general replication; and the cause being heard upon these
proceedings, the exhibits and examination of witnesses and the
report of the master commissioner, a decree was rendered for the
complainants for the sum reported to be due from the defendant to
William B. Magruder & Co. from which decree the defendants
appealed to this Court.
Page 13 U. S. 125
The exhibit mentioned in and annexed to the bill, alleged to be
an indenture of assignment from William B. Magruder & Co. to
the complainants, appears to be a copy of a sealed instrument
certified to be a true copy from the records of Baltimore County
Court, under the hand of William Gibson, who styles himself clerk
of that court. The record contains no other evidence of the
authenticity of this instrument, and the question is whether the
circuit court erred in decreeing upon this evidence in favor of the
appellees.
The right of the appellees to bring this suit is, by their own
showing, merely derivative, and consequently it was incumbent on
them to prove by legal evidence that the deed of assignment from
William B. Magruder & Co. under which they claimed this right
to sue a debtor of that house, was duly executed. The answer put
this matter directly in issue by denying any knowledge of the deed
exhibited with the bill and requiring full proof to be made of it.
This Court is not at liberty to presume that any other proof of
this deed was given in the court below than what appears on the
record. That proof consists in the certificate of a person who
styles himself Clerk of Baltimore County Court, that the paper to
which his certificate is annexed is a copy of a deed taken from the
records of the court of that county; but there is no such
certificate as the act of Congress requires to satisfy the court
that the attestation affixed to this copy is in due form. It
follows that the instrument so certified cannot be noticed as a
copy of a deed from William B. Magruder & Co., and as it is the
foundation of the complainants' right, the court erred in decreeing
in favor of the complainants upon such defective evidence. But as
this Court cannot fail to perceive that the objection to the proof
of this instrument is merely technical and was probably not made at
all in the circuit court, it would seem improper to dismiss the
bill absolutely. The Court is unanimous in reversing the decree,
and a majority are of opinion that the cause ought to be remitted
to the Circuit Court of Virginia for further proceedings to be had
therein.
Decree reversed and remanded for further
proceedings.