Baker v. Preston

21 Va. 235 | Va. Ct. App. | 1821

Lead Opinion

The following opinion of the court was delivered June 58th, by

Roane, Judge.

The court is of opinion that the copy of the deed of bargain and sale of the 8th of February 1820, mentioned in the first bill of exceptions, ought not to have been excluded by the general court from going in evidence to the Jury.—According to numerous and well established English decisions., that copy was good evidence; and this upon the true construction of the statute of 27th H. 8th chap. 16, and in exclusion of the statute of Anne. It is so evidence, because where a deed of bargain and sale is inrolled pursuant to the first mentioned statute, that inrolment is a record so that a copy of it may be read in evidence. (14 Vin. 445 and other cases.) It ought also to be read in evidence, for the further reason, that as the law has appointed them to be public acts, and reposed a confidence in the recording officer, the copies of such public acts, shall be like other public acts, good evidence. (Gi/6. L. Evidence 99 and other authorities.) This which is the established law of England holds a fortiori in relation to this country. By the English statute, the acknowledgment by the grantor might be before two Justices in the country: whereas until lately, our deeds were required to be acknowledged or proved in open court. The distinction is not unimportant: and has been sanctioned by the most respectable judicial Opinions in this country. In the case of Lee v. Tapscott 2. Wash. 281, President Fendlelon emphatically allowed a copy of a patent recorded in a county court to he evidence, and preferred it to a simple registration; for the iinportant reason, that the clerk acts under the superintendance of a court of justice; which court would pro-vent erased or improper deeds from being thrown into the public records. Under our laws, having this important provision and check existing in them, this usage (if you please,) as to the receipt of copies, in evidence, grew up, and came to maturity. And although that system has been lately changed, so as to admit deeds to record, on the certificate of two Justices only, that usage ought not to be considered as affected. The system is, even now, on as good a footing as to the confidence due to the officer's receiving the acknowledgment, as is that in England. The systems are now in this respect precisely the same. If therefore the decisions of the English courts legalized copies as evidence under their statute, those decisions equally apply, even to our modern system on this subject. At the same time, that construction more forcibly applies to the stronger case of deeds acknowledged or proved before a court of Justice, under which our rule was established: and it was the intention of the legislature, in making the alteration, not to change the rule in relation to the point of evidence, but merely to substitute a more convenient mode, for the accommodation the people.

These decisions of the English courts, although never brought directly before the supreme court have received the countenance of that court in sundry instances. There are several decisions in that court which cannot be reconciled to any other idea. As cases of this character, we will mention those of Maxwell v. Light, 1st Call 120; Whitaker v. M'Ilhany, 4 th Munford 310; Turner v, Stip, 1st Wash. 319, and the before mentioned case of Lee v. Tapscott.

Owing to the English decisions before mentioned and to these corroborations of them by our own courts, the position that a copy of a recorded deed may be given in ev’^ence> has grown into a general usage in this country, But this point does not rest upon mere usage. It is as tnuch established as a principle of evidence, as any other to be found in the books. If, however, it rested only on mere usage, and had not this last and greatest sanction, this court would be disposed to respect that usage.— "While it would hold itself at liberty, as was done in the case of Tompkies v. Downman, to depart from a usage, which, was in conflict with the actual expressions of a statute, and perhaps in opposition to great principles; it would respect an usage which was not confronted by such powerful objections. It would respect it, as the court of appeals did, among others, in the cases of Hudson v. Johnson, 1st Wash. 10,—Jones v. Logwood, 1st Wash. 42, and Branch v. Burnley, 1st Call 147. It would, especially, hesitate to repeal an usage, which has been so general and universal, as that its reversal would inundate this country with litigation, and lay the foundation of innumerable appeals and law suits. The court sees but little danger in adhering to this usage.— While, on the one hand, there is but little utility in exhibiting original papers which a court or confidential commissioners have already passed on as genuine, and which the party is concluded from denying to be his deed, by the acknowledgment and recording thereof. A copy is not without it preference, in some sense over the original. It lays a veto upon the grantee, as to altering or erasing that deed, from and after the time of the acknowledgment. Such a subsequent alteration or erasure would be controlled and corrected by the attested copy, previously taken, by a sworn officer. Nothing however now said by the court, is to be construed to impair the right of a party, whatever it may be, to call for the introduction of an original deed, instead of a copy.

The counsel for the appellees, foreseeing that this point might be decided against them, have taken the ground, that the original deed itself, if before the court, could not be read against their clients: nay, they have taken the yet bolder and stronger ground of saying, that the deed could not have been read even against John Preston. As against John Preston himself, it was properly answered, that the deed was signed, sealed and aeknowl» edged, by him. It is therefore emphatically his deed. It relates also to the subject now in controversy. It admits that the penalty of the bond now sued on, may have been incurred, which carries with it an admission that the defalcation happened in the year 1819, and it pro vides for the indemnification of these appellees, therefor. As this deed binds John Preston, and acknowledges the material matters in controversy in this motion, it is of no account, that there are other books and evidence going to prove the same facts. It is the right of suitors in courts of justice to exhibit as many evidences on the same point, if legal and relevant, as they please. The court cannot cut them out of this privilege. It cannot compel them, at its pleasure, to rely upon a single document or witness. Had this deed been received in evidence, the Jury might still have rendered a verdict for the appellant, by virtue of its provisions, notwithstanding the opinion given against him by the general court, touching the conclusiveness of the books, offered as evidence; and thus this appeal would have been prevented. It might have been evidence, both to outweigh the appellees’ parol evidence, then sanctioned by the opinion of the general court, and to confirm or supply the statements in the books of the treasury. It might-have had that effect, because it speaks, pretty explicitly as to the time of the defalcation, and might thus, as to him, have worked an estoppel.

It does this, by admitting that the penalty of the bond before us, may have been incurred, which cannot be, un* less the embezzlement happened in the year 1819. Again, it is of no account, at least as against John Preston, that the acknowledgments in this deed were made after the eXpiration of his office.. Parties may bind themselves 1 . . ■ . J . by their, confessions even up to the time ot trial.

As for the sureties, (the appellees,) it will be, seen, in an after part of this opinion, that they must stand on a common ground with their principal. Yet the deed is also binding as to them. It is so binding, because it is made, emphatically, for their benefit, and must be considered as made at their instance. The case is not altered by the mere intervention of trustees. The sureties themselves are the real grantees; and, besides, the deed has been accepted by them, and acted under for their benefit. For any tiling known to the court, the proceeds of the property conveyed, may have been already, in part, paid by the trustees, in their exoneration. They are, therefore, estopped from disclaiming to be bound by this deed. They cannot claim under it, and yet disclaim it. If it is their deed for one purpose, it is also for the other. We arc also of opinion that the answers given to the other objections to this'deed, equally apply in relation to the securities. Considering them, therefore, independently of their principal, which, however,., the court is not bound to do, we are clearly of opinion, that there is no objection to the copy of the deed being given in evidence, and that the judgment of the general Court in this particular is erroneous.

With respect to the character of the books of the treasury department, the coui’t is of opinion, that as to the treasurer himself they are conclusive to charge him. In» relation to very numerous transactions, between even private parties, mutually confided in by each other, it may be a matter of primary convenience and accommodation, that their books should, by consent, afford conclusive evidence. It may be vastly inconvenient at least that every particular item should be the subject of particular litigation, and be open to parol, conilicting and contradictory testimony, it must, at least, be admitted, that such individuals may by common agreement, adopt ¡hoce books as a standard in exclusion of all other evideuce. The convenience, if not necessity, of such a cri‘teriou, in the case before us, is entirely manifest. It would be of vast inconvenience to open all of the innutncrablc items existing; on the books of the treasury, to a particular litigation and scrutiny. Of this criterion, the officer himself, at least, has no reason to complain, if he does the business himself or has faithful agents, he cannot possibly be injured. In addition to the considerations arising from mutual convenience, as aforesaid, ifc is also, In the opinion of the court, of great weight, that the treasurer is a sworn officer: that his books are provided at public expense; that that officer is required to state his accounts frequently and distinctly to the General Assembly; and that his office, and consequently his books, are under1 the control of the executive council— Do all these precautions amount to nothing? Do they not speak the legislative sense, upon this subject, as strongly as positive words could do? Are not books taken under all these solemnities, more to he regarded than the mere private accounts of private and unsworn individuals? If in the case of Moody v. Thruston, 1 Stra. 481, a statement of balances made by commissioners under an act of parliament, was held to be conclusive evidence, even although one of the parties litigant had had’ no time allowed him to prove his accounts, much more ought the treasurer, under all the provisions and precautions of our laws, to be permitted to bind himself. If in the case of Stevens v. Coburn, 2 Call, 440, the certificate of the land commissioners was held to be final, and that even against an infant, much more ought Preston’s own certificate (if we may so express ourselves) to be held to be final, against himself. It is of no account that, in that case, the land law declared that the cer tifi • cate should be ñnal: There is no difference between an act containing such a declaration, and one affected by Pri>lc5ples, and containing provisions, -which irresistibly compel us to come to a similar conclusion.—The establament of these books as conclusive evidence, in such cases, while it deprives that officer of a great advantage he would have over the commonwealth, if he were permitted by his clerks, or others, to falsify, in after times, his own items, solemnly entered by him in his books, is further called for by the necessity of acting by general rules, in such cases; and that policy is supported by-several analogies in our laws. Under the provisions of the act for registering deeds, no man is permitted to aver an ignorance of a deed, which is duly recorded. So under the caveat law, no man is allowed to aver his ignorance, that another had entered for the land in dispute, upon the books of the surveyor of the county; as was decided by the court of appeals, in the case of Noland r. Cromwell. Both these provisions go upon the ground of the general utility, if not necessity, of establishing general rules, in these cases; and of referring to public documents, which are accessible to all, instead of leaving every case in respect of evidence to stand on its own bottom. They are both wisely calculated to prevent frauds and perjuries, and to cut up and prevent infinite disputes and litigation. In these last cases particular mischiefs may, perchance, happen, hut they are submitted to as the lesser of evils, and in favor of the general provisions of acts of great public convenience and utility. In relation to the treasurer, in the case before us, no possible inconvenience can result to him, but from his own negligence or the corruption of his clerks. In the last case he must have his remedy over against them, or against those who are responsible for them. If in the case of an ordinary deed or bond, a man is estopped to deny matters contained in such deed or bond, from the mere cir cumstance of having annexed a scroll thereto, much more ought the treasurer to be concluded in the case before us. Being a sworn officer bo ought to be.bound by books rendered under that sanction! be ought to be bound books solemnly kept by him, under all the checks and precautions too, established by the wisdom of our laws. While there is no necessity for it, neither is the commonwealth in any condition, to defend herself, against innumerable claimants bringing perhaps, suspicious witnesses to invalidate the solemn entries made upon the books of the treasury. No conceivable degree of diligence on the part of the officers of the commonwealth could protect her interests, if these general criteria were to be departed from, and, an infinitude of litigation opened upon her.

These books thus conclusive against the treasurer, are also conclusive against bis sureties. If a judgment against him is to bind them, so also is the evidence on which that judgment is rendered__In tiie case of Braxton executor of Claiborn v. Winslow and others, (1 Wash. 31, and Call’s manuscript reports more at large,) it was decided, that to fix the amount of an executor’s liability, the action must be brought against him, and that the recovery against him will bind his sureties..—It is also said in that case, that if A. agrees to pay B. what C. owes him, lie cannot call upon A. until he establishes his demand in a suit against C. the proper party to defend the suit. So. it was decided in the case of Greensides v. Benson, 3 Atkins, 248, that sureties are bound, as to the amount, by a judgment rendered against the principal: that it is immaterial if that judgment were even rendered without defence on the part of the principal, for that shews rather a consciousness that the principal had no defence to make. The court also decided in that case, that it would not take the whole account oroer again at the instance of the sureties and that the ease of the sureties is not at all better! “for as the ver- « diet was found against the principal, who was the “ proper person to try it, it would he hard to have the “ same matter tried over again, in as many actions as “ ^ie 811 reties please.” We entirely concur in this rcasoiling. Sureties are not to be permitted to try over aSain> cases already decided against the principal: nor, when tried against them in the first instance, to avail themselves of evidence which the principal himself would be inhibited from using.—These authorities are conclusive to shew that the sureties stand on a common foundation with the principal.

The counsel for the appellees have repeatedly told us, that as the amount of the defalcation was in issue between the parties, they ought to be allowed to prove that issue on their paid. They ought not to be allowed to prove it, by any thing-but legal testimony. Their position, in the latitude in which it is taken, would equally go to let in hearsay testimony, or depositions not upon oath. The Judges ought not to surrender their province of inhibiting the introduction of illegal testimony. In the opinion of this court, the parol evidence offered by those who stand in the shoes of the Treasurer, to invalidate and set aside his books, is as inadmissible as the hearsay or unsworn testimony just mentioned.

The books of the treasury being thus held to be conclusive evidence, both as to the principal and the sureties, .we come to apply them to the case before us. We readily admit that there ougiit to be separate bonds for each and every year, and that the Treasurer of every year, although, in fact, he be the same person, ought to be considered as if he were a different person.'—When, in the case before us, the present Treasurer succeeded the late Treasurer in his office, and at the same time the latter had handed over his books to the former, shewing that a stated sum of money was in the public treasury, the former, however, was not bound by that statement. His proper course was, to go into the treasury, with the late Treasurer, as in fact he did,* to count the money, and see that the sum stated was there, and grant his receipt thereto*. He might do this, or he might waive a *• ° count, and thus give his confidence, to his predecessor, as to the amount of the money actually in the treasury. In the last case he would be estopped by this confidence, to say, that that money was not there. So also the present Treasurer might equally bind himself by Ms acts. His entering into the office, and omitting to make a count, would he held as a waiver thereof, an acknowledgment that the money stated, was actually in the treasury. This, also, was precisely the case with John Preston, at the commencement of his term of 1819, and considering* his predecessor of the foxuner year, as a different person. At that time, also, John Preston either counted the money and as it were gave Ms receipt for it, or gave his confidence that it was there. In neither case can he object, that the money stated was not in the treasury, at the commencement of his term of 1819. This doctrine holds a fortiori as to Mm, as he was also the former Treasurer. A man may, more readily give confidence to himself than to another*, and there is less hardship in holding him to the consequences of it. John. Preston might by calling a count of the money, at the commencement of his term of 1819, and finding a deficiency, have charged himself as for the year 1818, and. discharged himself and his sureties for the year 1819/ failing to do this, however, he has admitted himself to have the money in 1819, and he and his sureties for that year are consequently liable. The conclusion resulting from these principles is, that all the money stated in the books to he in the treasui’y in January 1819, is admitted to have been there, and that no parol evidence can be received to shew the contrary.

The foregoing opinion of the court in relation to the copy of the deed, offered, in cvidejiQe and rejected, makes it unnecessary for us to decide, conclusively, upon the judgment of the General court, objected to in the first bill of exceptions. As however the original deed was Prove^ by the appellant to have been in the hands of one of the appellees, as it was not known by the appellant to *!0 elsewhere, and as the appellee, Francis Preston, no otherwise discharged himself from the custody thereof, than by his own verbal and unsworn statement; our present impressions are, that he ought to have been considered in the possession thereof, so as to let in the reading of the copy by the appellant, or at least to procure a continuance of the trial. Had such a continuance been moved for and rejected, that rejection would, in our opinion, have been clearly erroneous. We repeat, however, that we do not decide this question. In is unnecessary in this case to be decided.

The court is of opinion, that there is no error in so much of the opinion of the General court as sustained the demurrer to the third plea, and overruled the same; nor in overruling the motion of the appellants, to reject the second plea. The reasons in favor of these opinions of the court are so manifest that they need not be assigned.

The court coming more particularly to the judgments complained of in the 2d bill of exceptions tendered by the appellant, and bearing in mind the principles and reasons herein more particularly detailed in relation thereto, is of opinion, that the motion made by the appellant to exclude the evidence so as aforesaid adduced by the appellees from going to the Jury, as being inadmissible evidence, so far as the same was offered to exonerate the said appellees from responsibility for the balance of $83,099 30, appearing from the books and reports of John Preston, as Treasurer, to be due to the commonwealth at the time of his resignation, ought to have been sustained; and that the judgment of the General court overruling the said motion, and admitting the .¿aid evidence to go to the Jury, is erroneous. The court ° J is also of opinion, that the second ¡notion of the appellant for the court to instruct the Jury, that notwithstanding the facts proved by the appellees as aforesaid, the com monwealth was entitled to recover against them the said sum of $83,099 30 cents, (the deficit appearing on Treasurer’s books as kept for the year 1819,) and also the several sums of $4,488 08 cents, $39,000, $5,481 57, and $510, as is in the said bill of exceptions more particularly explained, ought to have been sustained—Because the said several stuns last mentioned, although not received in 1819, nor properly audited or entered on the Treasurer’s books, at the time when received, yet were entered in the bank to the credit of the said John Preston, as Treasurer of the commonwealth, and were reasonably tobe regarded, as constituting a part of the $248,086 62 cents, turned over in bank by him to the appellant, upon his resigning his office..—The court is consequently of opinion that the judgment of the General court overruling the same, and declaring that the appellees were only liable for the due application by the said John Preston for the sum actually in the treasury, at the commencement of his last term of office, and of the sums received by him during his said term, is erroneous. The reasons operating with the court, for coming to this conclusion, have been already sufficiently detailed. The court is also of opinion, that the money received in the bank by the present Treasurer from his predecessor, was. a payment by the latter to the former for the use of the commonwealth, and having been made without any specific direction as to the application thereof, the present Treasurer had a right to apply the same to the ex-tinguishment of any balance due by him to the commonwealth which became due by consequence of not crediting the commonwealth with the same money on the treasury books; which money he had received as Treasurer, and had passed to Ms credit as Treasurer in bank, the pay - ment being made with the same money in bank, which should have appeared to the credit of the commonwealth 011 ^10 treasiHT books;—and that the judgment and instruction given to the Jury, contrary to this position, is erroneous.—It is, therefore, the unanimous opinion of . x the court, that the said judgment of the General court is erroneous, and should be reversed. All the Judges concur not only in this conclusion, hut also in all the points and principles now laid down—except that one Judge dissents from his brethren upon one point; and on that point will be pleased to express his own opinions. Therefore it is considered, that the said judgment here» versed and annulled, and that the appellant recover against the appellees the costs expended in the prosecution of the appeal aforesaid here. And it is ordered, that the Jury’s verdict be set aside, and the cause remanded to the said General court for further proceedings to ho had; and on a further trial, that court will give the instructions now approved by this court, if required, and conform to the other principles laid down by the court, which is ordered to be certified to the General court.

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Dissenting Opinion

White, Judge,

dissented on one point, and delivered the following opinion.

This is a motion against John Preston the late treasurer, and his sureties, upon his bond as treasurer. This bond is dated on the 18th January 1819, and conditioned, for his faithful performance of the duties of his office, during the ensuing year. The words of the condition are, “now if the said John Preston shall faithfully ac- “ count for all monies and other things which shall come “ to his hands in virtue of his office, and perform all “ other articles thereof according to law, then this oh- “ ligation to be void, otherwise to remain in full force “ and virtue.”

The notice given to the defendants of this motion, recites the bond, and the condition; and concludes by averring, that the condition has not been complied with.

John Preston did not appear to defend the motion, aud judgment by default was entered on a writ of inquiry awarded against him. The other defendants, his sureties, appeared, and pleaded three pleas. The third of these pleas, was properly overruled on a general demurrer. The appellant’s counsel, then moved the court, to reject the second plea; which motion was perhaps properly overruled; at least it was not an error which ought to be available in an appellate court. The parties then came to issue on the 1st and 2d pleas, which though different in form, in substance presented the same issue: which issue was this; the defendants said that a sum of money, viz;: gl,200,251 36 and no more, came to the hands of John Preston as treasurer, between the 18th January 1819, and the 17th January 1820, the period for which they were bound; and that he did faithfully account for all the said monies which came to his hands in virtue of Ms office during the term thereof. The plaintiff on the other hand avers, that a sum larger than $1,200,251 36 came to the hands of the said Preston in virtue of Ms office between the said 18th January 1819 and 17th January 1820; and that he did not account for, or pay the aforesaid sums of money, &c.; but the same did divert, misapply, and convert to his own use; and so had violated the condition of the bond.

By these pleadings two facts were presented for the decision of the jury. 1st, whether between the 18th January 1819 and 17th January 1820, more money than $1,200,251 36 did come to the hands of the said Preston in virtue of Ms office; and 2d, whether the sums actually so received, were faithfully accounted for.

The plaintiff to support the issues on his part, offered in evidence, the books of account of the treasury department, which were proper evidence, and were not object ^°" ^1'01111 ^iese hooks it appeared among other things. that there had been paid into the treasury before and during the year 1819, and up to the 17th January 1820, suííl $833,297 7 more than had been disbursed for the public service; which money ought to have been hi the public coffers, and the fair presumption from the face 0f the books was, that it was there. But upon a count, it was found that $83,099 30 of the money was not to be found. When did tills eloignment take place? now became the. important question between the parties. If it was eloigned before the 18th January 1819, it was not within the condition of the bond on which the motion was made; and the verdict should have been for the defendants on the issues made up. If it was after that day. the plaintiff was entitled to a verdict.

The plaintiff rested his case on the treasury hooks alone, and insisted, that as they shewed this money had been received, and did not show that it had been disbursed for the commonwealth, it must be taken to have been in the treasury on the day of the date of the said bond, and of necessity, to have come to John Preston’s hands in virtue of his said office, after that date, to the-exclusion of all evidence to the contrary. The defend - ants on tlieir part introduced evidence, calculated to satisfy the jury, (if proper to be submitted to them) that inf act this eloignment took place in the year 1818, and before the date of the defendants’ bond,. on which the motion was made; which was the very fact in issue before the jury. And this evidence being submitted to the jury, did satisfy them, that the eloignment in dispute took place before the execution of the bond, and they found a verdict for the defendants.

The counsel for the appellant had however moved the court, to exclude tills testimony on behalf of the defendants from the jury; and excepted to the opinion of the court, overruling his motion. The question now to be decided is, whether the testimony offered by the defendants ought to have been heard by the jury upon these issues? I had supposed it could not be questioned, if this had been a private transaction; if Preston had been the factor of a foreign merchant, and had given bond and security every year, for faithfully discharging Ms duties, and such a case as the present had arisen he-tween the employer, and Preston and his sureties fordiff'erent years, (this is in effect a contest between the sureties, to Preston it is immaterial on what bond he is made responsible) that both Preston and Ms sureties would be let in, to shew by evidence, the truth of the case. If this be not ihe law, not only I, but every lawyer with whom I have practised, or who has appeared before me for thirty-seven years, has laboured under a strange delusion. I am aware that the confession of a party may be given in evidence against him, and is not evidence for him; but when it is so given although it be strong, it is not so conclusive, as to prostrate his rights against the truth of the case; but he is at liberty, to shew by other testimony that he made the statement under a mistake, through misunderstanding, or inadvertence. The rules of law, and the demands of justice, ever searching for the real truth, absolutely require, that such evidence should be heard. Even against the principal you can not recover for a default, not within the condition of the bond; much more should this be the case, when there is another bond, to indemnify the obligee against that very default. Is it more consistent with law and justice, that the obligor and his sureties, should be made liable upon a bond which does not covenant against the act complained of, when there is another bond which does cove nant against that act, in the case of the treasurer, than it would be in any other? If this be so, it must be, be, cause the law has ordained it, from principles of public policy; and that is the ground taken. It is said, that Che defendants are concluded, that is estopped, from Prov*nS ^7 any evidence other than these books, that there is any mistake or error in them.

An estoppel is that which prevents one from shewing ^ie ^ru^1 in defence of his rights: call it by what name we will, it is that which shuts out the evidence of the actual truth of the case. For this reason, estoppels have ever been held to be “repugnant to reason, and odious in law.” They are tolerated in a very few cases, and only from absolute necessity. Even in these cases, Judges have for ages been astute, to unshackle the es-topped, by every means in their power. If these books do work an estoppel, it is not by the operation of the statute, for that does not pretend to alter their nature as matter of evidence. Neither is it by the general principles of the common law, which holds estoppels to be odious. No case has been adduced, to shew they work an estoppel; no dictum of any judge, lawyer, or writer has been referred to, as even intimating such a doctrine; and I undertake to say, that there is none. In England there is a treasury, a treasurer, and treasury books: those books no doubt are kept by an officer under the solemnity of an oath; suits, and prosecutions must have arisen in Which the evidence furnished by the books became necessary [as in Lord Melville’s case;] there are in England too, many great public corporations, in which books are kept as those now in question; the law treatises and reports, contain many cases as to the manner of giving them in evidence, and their effect when offered; but not a word is any where said, of their working an estoppel: such an idea was never conceived in any of the numerous cases decided. That they operate by way of estoppel is attempted to be shewn, by analogies drawn from reasoning adopted by this court. The argument does not convince my understanding. The cases referred to, [except that of Noland v, Cromwell,] depend on statutes constituting judicial tribunals, and expressly declaring that their decisions shall be final. And Noland v. Cromwell, was decided on the long established principle, that a party having a good defence at law, shall not be relieved in equity, for failing to make it; and that the entry in the surveyor’s books, was sufficient notice, and that the party should 'not aver an ignorance of the entry or a want of notice in this case, any more than of a recorded deed, to which the statute has assimilated it.

Nor does it alter the case, that the treasurer is a sworn officer. His swearing to do his duty, does not make entries in the treasury books true, which arc in fact false. In the case of Goode v. Galt^(c) lately decided by the court of appeals, a judgment was reversed for an error which grew out of the false return of a sheriff (though made upon oath,') and the cause was sent back with orders, that the sheriff should be permitted to amend the return.

I admit that these are public books, bought with public money, kept for public purposes under the sanction of an oath. They are evidence of a high and solemn nature, and should only he outweighed by direct and decisive testimony. But that they are to shut out, or were ever intended to shut out the daylight of truth, 1 do not, and cannot believe. Notwithstanding the guards which are provided, these books like all others, may contain errors. Can it be believed, the legislature intended, that even if evidence should he offered proving erroneous entries, as clearly as any thing can be proved, still such evidence must be rejected and the Jury compelled to find a verdict against the very truth and justice of the case? and this under the old, and odious doctrine of estoppel; for odious I must call it, since it is so held in every book in Which it is mentioned: an estoppel too, applied to a new subject, in an entirely new way. Had the legislature intended this innovation on the best established principles of evidence, it would have declared its will, in express . terms.

It is said, that the case ought to be considered, as if a different individual had been chosen Treasurer, and had given a new bond, every year. That in such a case, books transferred to the succeeding Treasurer, shewed a certain balance ought to be in the treasury, hut in fact the money had been eloigned, and the successor through false confidence or any other motive, received the books without counting the money, and reporting the deficit, that he and his sureties would be precluded from shewing, that he was not the actual embezzler, and that the money had been converted by his predecessor, before he came into office; that such conduct would be a breach of official duty, and that a suit might be prosecuted against the succeeding Treasurer and his sureties; that the Commonwealth might recover on assigning the fact as a breach of the condition to the full extent of the loss actually sustained, I do not deny; but that on a suit charging the succeeding Treasurer with being the actual embezzler, during the year in which he was Treasurer, at once destroying his character, and charging his sureties to the exoneration of the real culprit and his sureties; on an issue too, made up to try the precise fact; whether the default and embezzlement occurred in one year or the other, the party should be estopped from proving his innocence and the guilt of his predecessor, and thus charge the sureties who are really hound, I cannot admit.

If these hooks work an estoppel, why were they not pleaded in the replication? Why was issue joined, upon the facts set forth in the plea? Why did the attorney go to trial before the country? By going before the Jury on the issue tendered, he has loosed the estoppel, and let in the evidence of the truth. I cannot perceive the force of the reasoning, by which this estoppel is maintained. If the fact be, that the embezzlement took place in 1818, and is not within the condition of the bond for 1819, can the estoppel change the actual fact, and make that true which is false? Will it make that which was done in 1818, to have been done in 1819? Will it alter the eternal principles of justice, and make that right, which is in itself wrong? If on the other hand, the whole evidence be laid before the Jury, will not the Jury under the direction of the court, in this case as in the more awful ones of life and death often presented to its deliberation, be competent to weigh the evidence, and determine what is true? and even if the Jury should err in its decision, that error may he corrected, by granting a new trial. 1 do not see that the monstrous evils anticipated, will result from suffering the facts in cases affecting the public revenue to ho given in evidence to the Jury. When the commonwealth arraigns a citizen at her bar for treason or murder, (the highest crimes known to our jurisprudence,) she submits the case both on the law and the facts to a Jury. If she cannot in proceedings against the Treasurer, submit the law of the case to a Jury, surely it is a stronger reason why the Jury should at least pass judgment, on the facts affecting the case.

This is an estoppel of a new character. It is said, the hooks work no estoppel as to the commonwealth; she may contradict the hooks. The old fashioned estoppels, even in the sternest periods of the English law, were reciprocal: both parties were estopped, or neither.

It has been remarked, that this case ought to fee decided on great principles. Controversies in courts of justice, ought to be decided on correct principles always; on great ones when they apply. I know of no principles of law great or small, which can convert these books into an estoppel on either party. There is however one great and fundamental principle, which runs through the bill of rights, the constitution, and the laws of the land; it ought to exist in the laws of every nation upon earth; the principle, that every free citizen whether in a civil or a criminal proceeding, has a right to be heard ]n hjs defence; to produce his witnesses, and to have a „ m. ¿air and impartial trial on the merits of Ins cause. The oommonwea^h can claim no exemption from the operation of this equal rule, in a controversy with the meanest of her citizens. However bound to her by allegiance 'and by reverence, when she appears in the character of a suitor, her tribunals of justice can recognise in her, no claim to superiority in rights, over the vilest of mankind. From this great principle I would deduce the inference, not that the defendants were estopped, and the commonwealth, abroad, and at large; but that neither party was estopped: that both might prove by evidence competent in ordinary cases, the whole truth of the case; and that the defendants had a right to prove the only material fact which the Jury was sworn to try. I say the only material fact, because that the money was once in the treasury, and was embezzled, is admitted on all sides: the time when it was embezzled, is the only fact in dispute, and that was the point to be settled by the Jury.

But granting that these books operate as an estoppel, and such an one as was never before heard of, an estoppel to one party only, what do they estop the defendants from proving? That the facts stated in those books are not true. But do the books also estop the defendants from shewing, that the inferences drawn by the appellant’s counsel from the books are false? The books ho where shew that the money was in the treasury when this bond was executed, or at what time it was eloigned.— Facts are stated, from whence it is inferred by logical deduction, that the money was in the treasury when the bond was executed, and therefore must have been eloigned thereafter. Are the defendants estopped from shewing by express and undeniable proof, that the money was taken from the treasury, and embezzled,'before they exeeuted the baud? Suppose that fact made to appear beyond the possibility of doubt, what will become of these inferences of logic? They vanish like mist before the sun. Even if the proof adduced in this case was not sufficient to outweigh the evidence furnished by the hooks, other cases may occur in which it would he sufficient. The precedent now to be fixed, will operate in all future cases, between the commonwealth, the treasurer and his sureties. I cannot consent to the establishment of such a rule. For these reasons, and others, which I would have stated, had the very short time I have had to ar~. rango my ideas, permitted, 1 am of opinion, that the judgment of the general court on this point was correct.

(c) Ante 153.

Case Details

Case Name: Baker v. Preston

Court Name: Court of Appeals of Virginia

Date Published: Jun 20, 1821

Citation: 21 Va. 235

Court Abbreviation: Va. Ct. App.