delivered the opinion of the court, March 5th 1883.
The first, second, fourth, tenth, eleventh and twelfth assignments of error cannot be sustained, as the rulings therein complained of are, in our opinion, faultless. The deed of Eandle Groxton and wife to Peter Trego, dated October 10th 1734, ought to have been acknowledged or proved, according to the provisions of the Act of May 28th 1715, in order to admit it of record. Under that Act, an effective probate could only be made by two or more witnesses, and it was therefore held, in the case of Vickroy v. McKnight, 4 Bin. 204, that an office copy of a deed, executed prior to the Act of 1775, and proved by but one subscribing witness, could not be admitted in evidence. Admitting, however, that as this deed of Groxton to *333Trego was not proved until after the Act of 1775, probate by one witness was all that was required, nevertheless, even such probate has not been produced. This deed purports to have been executed in the presence of three witnesses, whose names are subscribed, but all we have in the way of proof is the probate of Nathan Taylor, made on the 12th of October 1790, to the signature of his father, one of the three witnesses, who, we may infer from the use of the words “ his said late father,” was at that time dead, but there is no proof that the others were not then in full life, nor does it appear that they could not have been produced. Under such circumstances the secondary proof of handwriting was not admissible. As was said in Peters v. Condron, 2 S. & R. 80. “ no person can be permitted to prove a deed, until it appears that the subscribing witnesses are dead, or cannot be had.” It follows, that the probate to the deed in controversy7 was not sufficient to admit it to record under the Act of 1775, hence, the alleged record was properly refused as evidence of title, and ought, in fact, to.have been admitted for no purpose whatever.
Under the second assignment we are asked, to reverse the court below for its refusal to extend the doctrine of Rothrock v. Gallaher, 10 Nor. 108, to the case of a witness of ordinary health and memory. This we cannot do. There was no evidence tending to show that the witness, Clayton Smith, had, in the interval between the time of the arbitration and trial in court, by old age or otherwise, lost his memory. He but failed to recollect what he had previously sworn to, but if this were enough to admit the notes of a former trial, we might as well abandon original testimony altogether, and supply it with previous notes and depositions. It would certainly be an excellent way to avoid the contradiction of a doubtful witness, for he could always be thus led to the exact words of his former evidence. As we are not yet prepared for an advance of this kind, we must accept the ruling of the court below as correct.
The fourth specification is hardly worth notice. We cannot see how it became necessary to show that Mordecai Lewis paid full value for the-land when held by him, since no one called that fact in question, nevertheless, the defendant’s right so to do, if he thought it proper, cannot be questioned.
The points covered by the tenth, eleventh and twelfth assignments, were well answered, since they are in accordance with the opinion o’f this court as found in the case of Tullock v. Worrall, 13 Wr. 133.
Thus far we find no fault with the manner in which this case was tried in the lower court; there are, however, some things which occur in its rulings of which; we cannot approve. Inter alia, we are not' satisfied that the' account of the executors of *334Peter Worrall ought to have been admitted as evidence in this case. We ask, what can the account of these executors possibly have to do with this ejectment ? — in answer we are told that as Elias Worrall laid in a claim of some sixty dollars against the estate of his father, and had that claim allowed, therefore he must have known of his father’s will. A strange way, truly, of proving the knowledge of a will that had become part of the public records, and of which all interested were bound to take notice. The case ought not to have been encumbered by evidence of this kind. It is time, it may seem to have been of no special consequence, and so may be supposed to have done no damage. But its very admission by the court gave it an appearance of importance to the jury that it ought not to have had, and it threw upon the plaintiffs the vexatious task of removing from the mind of that body a prejudicial impression that was totally foreign to the matter in hand. Of a like character was the admission of the appraisement, for the purpose of collateral inheritance tax, of the estate of James D. Yelott. How could the executor’s neglect to return the land in controversy as part of the estaté of his testator, affect the title which James D. Yelott may have had in his lifetime ? The whole question in controversy turned upon the character of Elias Worrall’s title. If that was good, no one doubted the title of Yelott and Tullock, his devisees; but if that was not good, they took nothing, and the controversy was at an end. It was therefore to no purpose to attempt in this manner to raise an inference that George Yelott was doubtful of his ancestor’s title. The evidence led to nothing and ought to have been rejected.
Again, the record of the action of ejectment, No. 64 May T. 1863, ought not to have been admitted in evidence, because there was no judgment on the verdict. Until there is judgment a case is pending and undetermined, for there may be a reversal on a writ of error, or judgment may be arrested. And so it was said by Chief Justice Tilghman, in the case of Shaeffer v. Kreitzer, 6 Bin. 430: ‘‘ while the case remains undecided, a verdict in a former ejectment cannot be received as evidence of title, because perhaps the verdict may be set side, and the judgment arrested.” It is therefore obvious that this record was inadmissible for any purpose in the way of evidence to affect the title of either of the parties to this case.
Finally,' we are of the opinion that both the exemplification of the lease from Randle Croxtou and wife, and the record of the deed of the same parties, were improperly admitted. To neither of these was attached probate or acknowledgment, they were, therefore, not the subjects of record. The record of a deed is evidence only by virtue of the act of assembly, and if *335that does not appear to have been complied with, such record is no more evidence than any other copy. Proof of the custom of the recorder’s office does not help the matter ; it does not supply the want of a compliance with the terms of the statute, nor can it make an unacknowledged copy evidence.
The judgment is reversed and a new venire ordered.