Hamilton's Lessee v. Galloway

Hamilton’s Lessee v. Galloway. Evidence. A deed, duly probated, though not recorded, may be read in evidence. A Deed proved by the affidavit of one of the witnesses, before a justice of the court of common pleas, but not recorded, was offered in evidence. It was objected, however, that this attestation is no proof of the deed, at common law, unless it be an ancient deed, and possession is proved to have gone along with it; for, the witness-ought to appear in court. Nor is it admissible, under the act of assembly, for that expressly requires it to be recorded. Yeates answered, that the point had already been ruled in McDill v. McDill {ante, p. 63). And— [MAJORITY — By the Court.] By the Court. The deed may be read in evidence; for, the recording does not contribute to the proof of the deed, *which is established by the oath before the justice; the recording only gives the deed a [*94 special operation by the express provisions of the act of assembly, This cause was tried at Carlisle N. P., on the 24th of May 1784, before McKean, C. J., Atlee and Rush, Justices.