#### DRUMMOND’S Administrators *v.*MAGRUDER & Co’s. Trustees.

vi&seni....Livingston, *J.*Story, J. *and*Todd, X,

F the portantanexhihit of the Com-by the D. dant in his answer, who calls -apon the Commak'e” fuli° ¿roof thereof ip the Court Conit’wdi not presume that proof0TM* made than pears in the transcript of the record.*

A copy of a' clerk ofmthe Court without ^tbe preádt ing: judge that *123the attestation cannot be re* as„ in equity.

*122THIS was. an appeal from the decree of the Circuit for the- *Virginia' district,*in a suit1 in chancery brought .By the trustees for the creditors of *W. B.*Ma*gradee <$f- Co.*against *Drummond’s*administrators, to-compel the latter tb account for funds put into the hands their intestate by W. M. Magruder & Co.

* 1 x ■<* -1 • « ne uefrnnants, m their answer, say they knew no. SUI ^ ^i!n 0I> co-partnership as *Wm. B. Magruder <£ Co.*they cannot admit it, and hope the Complainants will he put to the proof of it; - They have np> knowledge of ^he deed *°f*mentioned in- the bill, and hope the' Complainants will be required to make ample proof thereof. That W. R. Magruder was largely in debt to intestate, and. they belieVe the fimds put into his hands by Magruder were intended to-be applied to that . .. . ***

The only proof of the deed.of tfust appearing in thétranscript of the record, was a copy certified by one ^hsou, who calls himself cl<»rk of Baltimore *county;*without- any certificate from the presiding judge that *123bis 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.

t,lis Court reverse a aeCDee upon a technical obbiy rN made teiow) it noSmis, the bjii absolutely, the ^me to •the Court be-

P. B. Key, *for Appellants,*contended,

1, That the Complainants have not shown any title to call the Defendants to account.

2. That on reversal this Court must dismiss the bill.

They claim as favored creditors at ther expense of Drummond, who is an equally meritorious creditor ot Magruder. They, have no equity to be let in -to *■¿¿.I *■ * . prooj*to make a *new*case*

If the Court below had dismissed the bill, relief could not have been given on a bill of review, unless new evidence, not known at the time of the first trial, should have been produced. This Court cannot send the cause back for a new trials or if they can, they will not in favor of these exclusively favored creditors.

R. I. Tayior, contra,

The cause is now placed on very different ground from that on which it appeared in the Court, below. There the question was, whether the Defendants could set off a debt due to their intestate from *TV. B.*Mugru*der,*against tills claim in the right of *TV. B. Magruder # Co.'*

The only question now is whether the Court below erred in giving a. decree in favor of the Complainants without evidence of the execution of the original deed of assignment. The1 Court below could not have decreed in favor of the Complainants, unless they had been satisfied of the execution of the deed, or the proof of its execution had been waved by the other party. This Court, therefore, will presume that tjic execution of the deed was so proved, or the proof waved. Exhibits may be proved *viva voce*at the trial. It was not necessary to reduce the testimony to writing. *Harrison Ch. Frac.*403. *Laws qfU. S. vol.*1, *p.*68. *vol.*6, *p.*100, If incompetent evidence was admitted in the Court be* *124low without objection, it is no cause for reversal of the decree.

P. B. Key, *in*reply.

The execution of the deed was put in issue by the answer, and it ought to appear upon the record that it was proved. If the Complainants have failed to put the proof upon the record it is their own fault".

The answer puts in issue the right of the Complainants to sue. A copy from the record, even if properly authenticated, would not have been sufficient, because it is not such a deed as the law requires to be recorded.

*February 25th.*

^6se«í....Tonn, *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 *Sc*Co. from which decree the Defendants appealed to this Court,

*125The exhibit mentioned in and annexed to the bill, alieged to be an in ¿enture of assignment from William B. Magruder & Co. to the Complainants, áppeárs 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 contaihs no other evidence of the authenticity of this instrument; and the quéstion ■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 j and, consequently, it was incumbent on them to prove by legal évidence that the deed of assignment from William B. Magruder & Co. under which tliey 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 hill, and requiring full proof to be made of it. This Court is not at liberty to presume that any other pVoof 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 coqnty 5 but there is no such certificate as tíift 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, ami 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.