Absent. . . . LIVINGSTON, J. STORY, J. and TODD, J.
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 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.
Absent. . . . TODD, J. 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.
The exhibit mentioned in and annexed to the bill, alleged to be an inventure 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.