Page:Federal Reporter, 1st Series, Volume 1.djvu/656

 648 FEDERAL REPORTER. �They declare, by way of recital and as a fact to which he attests, that John Lavin lately departed this life. This, it seems to me, is, on well settled principles, prima facie evidence that the surrogate determined and found judicially that John Lavin was dead. The precise question here is not of the burden of proof as to this essential fact of a decision by the surrogate, but of the sulïiciency of the evidence offered to sustain that burden, which is undoubtedly on the defend- ant, and I think the evidence is prima facie sufficient. �Boderigas v. Savings Institution (second decision) is an au- thonty that this recital in the record as to the action of the surrogate, and this prima facie proof of his personal action, to be presumed from his signature and oiîQcial seal, can be shown to be f aise ; that it may be proved in contradiction of this record that the surrogate did not sign it, as he appears on its face to have done, and that what he signed was in fact a blank piece of paper ; that he did not authorize the seal to be afSxed, as he appears to bave done ; that he did not in fact receive and pass upon the petition, and the testimony adduced in support of it, as by the record he appears. and is presumed, in the due and proper exercise of his officiai duty, to bave done. �AU this was shown in impeachment of the record in the case oited, and this proof defeated and showed to be null and void the apparently regular record. But such is not this case. Ndthing is shown in this case inconsistent with the surrogate having pasaed judicially on the petition, with his having signed the letters, after he had so judicially deter- mined, and with his having personally authorized them to be sealed and issued. It is proved that the administration clerk did not take the responsibility of issuing them. He handed the papers to the chief clerk, and they came back with the indorsement, "Issue letters," signed with the chief clerk 's initiais. �There was nothing in this to show that they were not sub- mitted to the surrogate, and passed on and signed Jby him, as they appear to have been. It was his officiai duty to receive and act on them, and by the record it appears that he did so. The fact that the chief clerk put his initiais to ��� �