7 Ky. 409 | Ky. Ct. App. | 1816
OPINION of the Court, by
Several of the points which occurred in the case of Hedden vs. Overton are presented in this case, and need not, therefore, be again particularly noticed : but in addition to them a question was made in this case, whether a copy of a grant, the attestation of which was not in the hand writing of the register, but in that of a clerk of the office, was admissible evidence ?
There can be no doubt that the register may act by deputy, and that an attestation of a copy by his deputy would be sufficient; but there is a wide difference between a deputy and a mere clerk. The former, we apprehend, must, before he can act in that character, take an oath of office; whereas the latter is required to take no such oath before he can act. In legal estimation, therefore, the acts of the former are entitled to greater credence than those of the latter. We are of opinion therefore, that the court below erred in deriding that the copy attested in the hand writing of the clerk was admissible evidence.
The judgment must be reversed with costs, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.
A petition for a rehearing was presented, and the following opinion delivered :
An application for a rehearing in this cáse has been made, upon the ground that by an act of 1805, (page 88 of the session acts) the clerks in the register’s office are required to be sworn befere they can act. It is true that thisprovision escaped the attention of the court, or otherwise it would have been noticed in the former opinion. But on adverting to it we do not perceive that it has made any change in the duties or capacities of a clerk
The petition for a rehearing must, therefore, be oyer-ruled.