11 N.C. 299 | N.C. | 1826
Lead Opinion
The plaintiffs were orphans and infants, and alleged that the defendants, acting as a court at November Term, 1819, of Hertford County Court, appointed one George Gordon to take care of and attend to the management of the estate of the plaintiffs, without taking from Gordon bond and security as required by law; that Gordon, by virtue of such appointment, took into his hands the whole of the estate of the plaintiffs and converted a large portion of it to his own use, and since that time has died insolvent.
To support the allegation that the defendants were on the bench and constituted the court which appointed Gordon, the plaintiffs offered in evidence the records of Hertford County Court, from which it (300) appeared that on Thursday morning of the term the court met pursuant to adjournment, and the defendants were stated to be present as justices at the opening of the court, and among other orders of that day, the third entered on the record was the order that Gordon should rent out the lands of the plaintiffs, and take bond with security to their use, payable to the chairman of the court, and file them with the chairman, and attend to the management of the estate of the plaintiffs until a guardian was appointed.
The introduction of this record was opposed by defendants, on the ground that the order as entered did not recite the names of the defendants as the justices who made it. The court, Nash, J., presiding, overruled the objection, and instructed the jury that the record was prima facie evidence that the defendants were the justices who made the order.
There was a verdict for the plaintiffs; a new trial was refused and judgment rendered, when defendants appealed. Neither a just construction of the acts of Assembly on this subject, the well known course of business, nor the reason of the thing warrants, in my apprehension, the reception of this record for any other purpose than to show that the court was opened by the three *137 justices named, and that the various orders were made by a court legally constituted. In receiving it as conclusive for these purposes, the rule of law is satisfied and the interests of justice are maintained; in receiving it as prima facie evidence even that particular persons were on the bench at the precise moment when the order in question was made may, in most cases, burthen innocent persons with a heavy charge; for this prima facie evidence becomes conclusive unless it is answered and repelled by the defendants. The difficulty of proving who they were, in the crowded and confused state of a courthouse when the order was made, would generally be insuperable; and it is unjust that persons who are rendering disinterested services to their country should pay large sums of money for others or escape from the penalty only by proving an alibi.
The act of 1762, ch. 69, seems to have intended that the individual justices should be ascertained by some proof more specific; for when it confers the power of appointment it speaks of the court; where it imposes a penalty for the improper exercise of the power, it (304) refers to the individuals composing it at the precise point of time; thus endeavoring to guard against the very evil which the introduction of this record as evidence would produce. It is not the court, but thejustice or justices appointing such guardian, who shall be liable for all loss and damage. We must believe that the court made all these orders, because the record says so; but we cannot believe that the defendants were the individuals composing it, unless there were none others competent to form a court. It is impossible to shut our eyes to the fact that though the court may be in session throughout the day, the individuals composing it are continually changing, and of these changes no memorial is made by the clerk. Sometimes three justices are collected for the purpose of opening the court. When they have done this, they often yield their places to others, whose stay there may also be brief, and the physical identity of the court changes with every passing hour.
— — ut unda impellitur unda, Tempora sic fugiunt pariter, pariterque sequentur.
An act passed in 1790, ch. 327, relative to the appointment of several public officers, serves to show the light in which the individual responsibility is regarded by the Legislature and the spirit in which these laws are conceived. The clerk is directed to make an entry at large, under a heavy penalty, of the names of the justices who shall be in court, or on the bench, at the time of the qualification of those officers, which would have been an useless provision if the record of the opening of the court had been evidence of the fact; and when that law was passed, a majority of the justices, or a certain number beyond three, was not necessary to the appointment of those officers. *138
My opinion is that the record was improperly received for any other purpose connected with the case than to show that these justices were present on that day when the court was opened, and that their averment that they were not present when the guardian was appointed is not in conflict with the record, which is not, therefore, an estoppel. I (305) am in favor of granting a new trial.
Addendum
The act of 1762, New Rev., ch. 69, sec. 5, declares that if any court shall commit an orphan's estate to the charge of any person without taking sufficient security, the justices appointing such guardian shall be liable for loss and damages, etc., to be recovered by action at the common law. The act does not point out any mode by which the fact shall be established. I believe it is not usual with clerks, when entering such orders of appointment, to recite the names of the justices by whom they are ordered to be made, as is directed to be done by the act of 1790, ch. 327, when sheriffs and other officers are elected. It would certainly be the most eligible way of ascertaining the fact. But when that is omitted to be done, the parties are at liberty to prove the same fact by parol evidence, because, I think, such proof by no means contradicts the record.
I have no doubt but it was proper to read the record on the trial, the introduction of which as evidence is complained of. It proves that a court was open and held, etc., but what further effect it ought to have, or what further fact it should be taken to establish, is a question of great importance.
The law establishing county courts declares that the same may be held by three justices. In most of the counties there are from twenty to fifty justices, and it is as much the duty of one as another, but not more so, to hold the courts; hence it is not to be expected that the courts will be held by any particular justices. Sometimes one portion of them are on the bench at one time, and others at another, and this on the same day, and no doubt it was for this reason that the Legislature directed the clerks to record the names of the justices on the bench when particular officers were elected, as before noticed. This being the practice of the (306) justices in holding the county courts, I think the record in question should not be taken as evidence of the fact that the defendants were the justices who appointed Gordon guardian, etc. The fact may have been so, but it may have been otherwise; and in fixing a charge upon individuals so penal as this, more certainty ought to be required, when the case will admit of it; otherwise, innocent persons may suffer.
It is a hardship on infants that their interests should be neglected and their property lost by acts of omission by justices; and it is for that reason that the Legislature have made them personally responsible; and, no *139 doubt, the will of the Legislature will be obeyed when evidence is sufficient to point out the proper persons and is made to bear upon them. As I think that has not been done in the present case, independent of the record, and as I think the record is not sufficient for that purpose, I am of opinion that the rule for a new trial should be made absolute.
Addendum
A record cannot be prima facie evidence, by which I understand that evidence which, until contradicted, proves the fact, but which may yet be contradicted. Wherever a record is admissible, the fact which it affirms cannot be contradicted. Where it affirms a factinter partes, and which of course they had the right to controvert, and which they did controvert or admit, then its affirmations are conclusive upon the parties and their privies. Where it affirms a fact where no one was a party, and, of course, no one had the right to controvert it, and no one, of course, did controvert it, then it is evidence of that fact, as well as to one person as another; that there are no parties or privies; it is not made upon the litigation or admission of any one; and proceedingsin rem are evidence against the whole world for the opposite reason, for, being parties, they either have or might have controverted. The record offered in this case is of that kind where no person was a (307) party; it was not made upon the litigation or admission of any person; its affirmations are, therefore, conclusive upon all — upon one as well as another. It is, therefore, necessary to ascertain what are its affirmations. It affirms that on the ___ Monday in November a court of pleas and quarter sessions was held at Winton, for the county of Hertford, and was opened by justices who are stated to have opened the court; it is also evidence that the various suits were tried or continued, and all the orders made, which appear upon the rolls or records of the court, and that the court adjourned from day to day; and that on Thursday the court met pursuant to adjournment, and at the meeting of the court the defendants were present, presiding as justices in the court; that the court on that day tried and continued the different suits mentioned in the proceedings, and made the different orders appearing upon the minutes, and among others the order committing the estate of the plaintiffs to the management of Gordon; all these facts stand upon the rolls, and no one can controvert them; that is, that these things were done. But what is to be inferred from these facts is a very different thing from making the record prima facie evidence, and from determining, if an inference is to be drawn, whether the law will draw it or whether it is to be left to the jury to draw. If it isprima facie evidence, then the fact stands proven that the defendants were on the bench when the order complained of was made. Until they show the contrary, it throws the burthen of proof upon the defendants; whereas, if it is only *140 an inference of fact, it is left to the jury to say whether it is proven to their satisfaction that because the defendants were present when the court opened (which fact cannot be controverted by any one as long as it stands upon the record) that they were also present when the order was made — a thing very different from making it prima facie evidence. If this is matter of inference, all the doctrine of probabilities (308) is to be gone into by the jury, and they will determine according to the evidence of the common practice whether it is probable that they all were there, and if not all, who were; for in civil causes we are obliged to go upon probabilities to settle the right of the parties, and I am disposed to think that it is a presumption of fact, not of law; for it is not generally true that the ends of justice would be more often answered by drawing the conclusion as one of law that they were there than by leaving each case to be decided by the jury; for if made a presumption of law, the defendants would not be permitted to prove that they were not there. I think, therefore, the judge erred in telling the jury that the record was prima facie evidence of the fact that the defendants were on the bench when the order was made, and thereby threw on the defendants the necessity of offering opposing evidence; but, in the absence of all other evidence as to the point, he should have informed the jury that the record only affirmed that the defendants were present when the court was opened; that whether they would infer therefrom that they were also present when the order was made was a fact on which they would decide; that the law did not draw the inference one way or the other, and which indeed would be more emphatically expressed by the phrase, leaving it to them. The effect of the clerk's having stated on the record that they were present, if he had made such entry, not being required by law to do so, it is unnecessary to examine, for in fact he has not made such statement.
PER CURIAM. New trial.
Cited: S. v. King,
(309)
