Plaintiff offered in evidence a deed by an administrator duly acknowledged and recorded and also in support of the deed a copy of a conveyance bond taken out of the recorder's books and certified by him, but it had no certificate of a probate in and order from the Common Pleas to convey, for which reasons it was objected to by Bayard and Ridgely, who read 1 Morg.Ess. 160. A deed enrolled which requires no enrollment, the inspeximus is not evidence. 1 Body Laws 187 as to the recorder's powers, viz that he can only certify what is legal etc., idem 271. Bonds given etc. must be proved etc. the clerk to certify etc., and there must be an order on the administrator to convey. Contra, Miller and Peery examined the records of Common Pleas and swore that prothonotary who said no orders were made in those days, viz in 1762. They urged from Gilb.Evid. 69, that the deed being thirty years old need not be proved where there has been possession under it. That the recorder is an officer entrusted by the public, and his certificate must be good evidence.
PER CURIAM. READ, C. J.
The recorder's duty is prescribed by the Act. He is ministerial, and, if he does not record writings pursuant to the Act, he is as to that no recorder; the Act says "thus" etc., shall etc., and it must be followed.
Said by Bayard, and not denied by the Court, that the enroller's power in England of receiving evidence of the fairness of the deed is here given the Court of Common Pleas, and the deed proved with certificate thereof is delivered to the recorder as a ministerial officer to record.
After plaintiff had given in his evidence, defendant's counsel offered to demur to the whole evidence both written and parol and confessed the whole given in to be true.
Objected by Miller and Peery that there are presumptions arising from the testimony upon which the jury have a right to determine — that a direction of the court will have its due effect.
CHIEF JUSTICE READ. Defendant had a right to demur to the written evidence, and he could demand a joinder, but, if there is a doubt upon the parol evidence, plaintiff could not be compelled to join therein. That possession which depends upon parol evidence is good ground for a recovery in ejectment, and, although the evidence given not being complete be confessed, yet the jury may have sufficient knowledge of possession to support the defect. And he wished the bar to confine themselves to the parol evidence. Quaere. How could a new trial be moved for because verdict is contrary to or without evidence? And vide 1 Morg.Ess. 13, 14.