made was competent and admissible, the execution of the deed from Dunbar to Prout was established, and the deed itself was properly admitted in evidence.

We are next to consider the question whether the copies of the depositions of Middleton and Collard, by which the handwriting of Smallwood was proven, were properly admitted in evidence. This evidence was objected to by the defendant, and his objection was overruled, to which he excepted.

The admission of the parties, as appears by the bill of exceptions, showed the existence of the original depositions; that they had been destroyed with the other records of the court in the fire of October, 1871; that the copies were correct copies of the original depositions, and had been furnished by counsel for defendant, and with his consent had been placed on file in the cause as correct copies of the original. The objection made to the introduction of the copies was that the death of the witnesses was not shown, nor was it proven that they were incompetent to testify, and that their depositions could not be retaken; therefore proof of what they had testified in their depositions was not admissible.

The rule invoked to exclude copies of the depositions is that in the absence of evidence that the witness who testified in a former trial is dead or incapable of testifying, or that his deposition cannot be retaken, it is not competent to show what his testimony in the former trial was; and that when the deposition of a witness which was read upon a former trial is lost, its contents cannot be proved except after proof of the death of the witness whose testimony it contained. Stout v. Cook, 47 Ill. 530; Aulger v. Smith, 34 Ill. 537.

But if the witnesses had lived in another state, and more than a hundred miles distant from the place of trial, proof of the contents of their deposition would have been admissible. Burton v. Driggs, 20 Wall. 125. Therefore, to have made the objection tenable, it should have also been put upon the ground that the witnesses were not shown to reside in another state and more than a hundred miles from the place of trial. This it did not do. When a party excepts to the admission of testimony he is bound to state his objection spe

cifically, and in a proceeding for error he is confined to the objection so taken. Burton v. Driggs, ubi supra. The original depositions were taken in the city of Washington. It is, therefore, probable that the witnesses resided there. If the copy of the depositions had been objected to because it was not shown that the witnesses resided

out of the district, and more than a hundred miles from the place where the court was held, the plaintiffs below might have supplied proof of that fact. The objection, as it was made, was not broad enough and specific enough, and was, therefore, properly overruled and the evidence admitted.

But we think the rule relied on by defendant to exclude copies of the deposition does not apply to the case in hand. The plaintiffs did not offer oral evidence of the contents of the depositions, but offered copies which were admitted by counsel for defendant to be true copies. It was, therefore, not necessary to retake the depositions or to prove the death of the witnesses, or their incapacity to testify. The copy of the deposition was, by consent, substituted for the original, which was proven to have been destroyed, and, being admitted to be a true copy, spoke for itself. It was, therefore, properly received in evidence.

It was further objected to the admission in evidence of the proof relating to the deed of John J. Dunbar to Prout, that as the testimony to establish its execution was the proof of the handwriting of subscribing witnesses, it was necessary to prove the identity of the grantor in the deed; that is to say, that the John J. Dunbar by whom the deed purported to be executed was the same John J. Dunbar named in the patent for the lands in controversy. In any case slight proof of identity is sufficient. Nelson v. Whittall, 1 Barn. & Ald. 19; Warren v. Anderson, 8 Scott, 384; 1 Selw. N. P. 538, note 7, (18th Ed.) But the proof of identity in this case was ample. In tracing titles identity of names is prima facie evidence of identity of persons. Brown v. Metz, 33 Ill. 339; Cates v. Loftus, 3 A. K. Marsh. 202; Gitt v. Watson, 18 Mo. 274; Balbie v. Donaldson, 2 Grant, (Pa.) 450; Bogue v. Bigelow, 29 Vt. 179; Chamblee v. Tarbox, 27 Tex. 139. See, also, Sewell v. Evans, 4 Adol. & E. 626; Roden v. Ryde, Id. 629. There was no evidence that more than one John J. Dunbar lived at the date of the deed in Matthias county, Virginia, which the deed recites was the residence of the grantor, nor in the District of Columbia, where the deed was executed, and there was no other proof to rebut the prima facie presumption raised by the identity of names in the patent and deed. But, besides the identity of names, there was other evidence showing the identity of persons. The patent and the deed bore date the same day, and the patent was cited in hæc verba in the deed. These circumstances tend strongly to show that the party by whom the deed was executed must have had possession of the patent. The deed recites that the patent was

delivered to the grantor, John J. Dunbar, and the affidavit of John J. Dunbar, sworn to and subscribed on January 7, 1818, before Smallwood, a justice of the peace, and one of the subscribing witnesses to the deed, whose signature to the jurat is shown to be genuine, to the effect that he was the same John J. Dunbar to whom the patent was issued, was indorsed upon the deed.

After a lapse of 61 years, this evidence is not only admissible to prove the identity of the grantee in the patent with the grantor in the deed, but, un contradicted, is conclusive.

We are, therefore, of opinion that the deed from John J. Dunbar to William Prout, which formed a link in the title of the plaintiffs, was sufficiently proven, and was properly admitted in evidence by the circuit court. The other muniments of title put in evidence by the plaintiffs were admitted without objection, and established prima facie their title to the lands in controversy. But it will be remembered that the defendant below had also shown a prima facie title to the lands in question; that both parties traced title through the patent of the United States issued to Dunbar, and through deeds apparently executed by him on the same day, to-wit, January 6, 1818,— one to William Prout, under which the plaintiffs claimed, and the other to John Frank, under which the defendant claimed.

The question, therefore, still remains, which is the superior title? According to the jurisprudence of Illinois, this must be settled by the fact, which of the two deeds, apparently executed by Dunbar, was first recorded.

Section 15 of the act approved January 31, 1827, (Purple, Real Est. St. 480,) provided as follows:

"All grants, bargains, sales, etc., of or concerning any lands, whether executed within or without the state, shall be recorded in the recorder's office in the county where such lands are lying, and being within 12 months after the execution of such writings, and every such writing that shall, at any time after the publication hereof, remain more than 12 months after the making of such writing, and shall not be proved and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent bona fide purchaser or mortgagee for valuable consideration, unless such deed, conveyance, or other writing be recorded as aforesaid, before the proving and recording of the deed, mortgage, or other writing under which any subsequent purchaser or mortgagee shall claim."

This act remains substantially in force. Hurd, Rev. St. p. 271, $30.

By an act, approved July 21, 1837, (Purple, Real Est. St. 496, 497,) it was provided that the recording of any deed,

whether executed within or without the state, by the recorder of the county in which the lands intended to be affected are situated, shall be deemed and taken to be notice to subsequent purchasers and creditors from the date of such recording, whether said writing shall have been acknowledged or proven in conformity with the laws of the state or not, and that the provisions of the act shall apply as well to writings heretofore as those hereafter admitted to record. is still in force. See Hurd, Rev. St. 1880, p. 271, § 31.

This law

It was held by the supreme court of Illinois, in Reed v. Kemp, 16 Ill. 445, that an instrument affecting or relating to real estate may be recorded, though not proven or acknowledged, and the record will operate as constructive notice to subsequent purchasers and creditors. See, also, Choteau v. Jones, 11 Ill. 320; Martin v. Dryden, 1 Gilman, 213. And in Cabeen v. Breckenridge, 48 Ill. 94, the court declared that, "as a general rule, when the same person has executed two deeds for the same land, the first deed recorded will hold the title."

The evidence shows that the deed of Dunbar to Frank, under which the defendant claimed title, was not recorded until June 18, 1870. The plaintiffs contended that the deed from Dunbar to Prout, under which they claimed, was recorded on June 23, 1818, and it was shown that the deed from Prout to Duncan was recorded October 29, 1838, and the deed of Gillett to Corcoran, June 5, 1848, aud the deed of Corcoran to Morris, March 12, 1868. If, therefore, the contention of the plaintiffs that the deed of Dunbar to Prout was recorded June 23, 1818, is sustained by competent proof, their title must prevail.

But it is insisted for defendant that there was no competent proof of the registration of the deed of Dunbar to Prout. The proof relied on was the testimony of Dent, that the certified copy from the records of the county of Madison was a copy of the original deed; the certificate of the recorder that the certified copy was a copy of a deed which appeared of record in his office; and the certified copy of a memorandum at the foot of the record of the deed as follows: "Recorded June 23, 1818." Conceding that the certified copy of the deed from the records of Madison county would not be proof of the contents of the original deed, because such original deed had not been so acknowledged and certified as to make a certified copy competent evidence, yet the fact that such a record of the deed existed, was, by the law of Illinois, as we have seen, notice to subsequent purchasers. A certified copy from the record was, therefore, a proof that such a deed and memorandum was of record in the proper

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office. For it is a settled rule of evidence that every document of a public nature which there would be an inconvenience in removing, and which the party has the right to inspect, may be proved by a duly-authenticated copy. Saxton v. Nimms, 14 Mass. 320; Thayer v. Stearns, 1 Pick. 109; Dunning v. Roome, 6 Wend. 651; Dudley v. Grayson, 6 Mon. 259; Bishop v. Cone, 3 N. H. 513; 1 Greenl. Ev. $484.

The memorandum at the foot of the record was the usual record evidence, competent and conclusive, that the deed had been recorded at the date mentioned. It was evidence of the date of the registration of the deed, because it was the duty of the recorder, by the nature of his office and without special statutory direction, to note when the record was made. 1 Greenl. Ev. § 483. But we think it may be fairly inferred from section 10 of the act of September 17, 1807, which was in force when it is claimed that the deed from Dunbar to Prout was recorded, that it was the duty of the recorder to note the time when deeds left with him for record were recorded. He was specifically required to note the date when the deed was received, and was liable to a penalty of $300 for recording any deed in writing "before another first brought into his office to be recorded." 1 Adams & D. Real Est. St. 63. The making of a memorandum of the date of record was, therefore, an official act, which naturally fell within the line of his statutory duties, and a certified copy of it would be competent evidence to prove the memorandum and the date of the registration of the deed.

We are of opinion, therefore, that the fact that the deed of•Dunbar to Prout was recorded on June 23, 1818, was proved by competent evidence, and that it therefore follows that the title of the plaintiffs was better and superior to that of defendants, who claimed under a deed for the same lands not recorded until June 18, 1870, more than 50 years after its date, and long after innocent purchasers had bought the lands and paid a valuable consideration for them.

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The plaintiff in error contends that the act of 1837, supra, cannot apply in this case, because at its date the lands in question were no longer within the limits of Madison county, but in the county of PutBut the act expressly declares that it shall apply to writings theretofore as well as those thereafter admitted to record. The deed of Dunbar to Prout was recorded under the act of 1807, supra, which required it to be recorded in the county where the lands conveyed were situated. It was so recorded. No law of Illinois since passed has required any other registration of deeds by the parties thereto,