#### Rawls, infants, by their Guardian *v*. Deans and others.

From Hertford.

A record cannot *he. prima facie*evidence ; where admissible at all the fact which it affirms cannot be contradicted; where it affirms a fact *inter paries,*such affirmation is conclusive upon parties and privies ; where it affirms a fact in a case where no one was a party, it is evidence of that fact as to ail persons alike.

Where a suit was brought against three Justices of the Peace by ait infant, for having appointed a guardian for him without taking any bond, the record of tile County Court was offered in evidence by Plaintiff, shewing that on a certain day of a certain term, the Court was opened, the Defendants being on the bench as Justices at the opening of the Court, and various orders were entered on the record, among the rest, the appointment of the guardian to Plaintiff; this record was offered as evidence that the Defendants were the Justices who *m*ule the appointment: Held, that it is not *prima facie*evidence of the fact; because a record, if evidence at all, is conclusive, it was evidence from which no inference of law is drawn, but it should have been left to the Jury to draw from it the inference of fact that the Defendants did make the appointment, if it would furnish them with any such inference.

This was an action on the *case*brought against the Defendants to recover damages for a violation of their duty as Magistrates.

The Plaintiffs were orphans and infants, aud alleged that the Defendants, acting as a Court at November Term, 1819, of Hertford County Court, appointed one *Gem'ge Gordon*to take cafe of, and attend to the management of the estate of the Plaintiffs, without taking from *Gordon*bond and security as required by law *;*lhat 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 buich, and constituted the Court which appointed *Gordon,*the Plaintiffs offered in evidence the records of Hertford County Court,* from which it appeared, that on *300Thursday morning of the term, the Court met pursuant to adjournment, ami (he Defendants were stated to bo 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 1 his 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 Judge, presiding, overruled the objection, and instructed the Jury that the record was *prima fade*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.

*Hogg,*for appellants,

contended, that the act of 1T62, which gave to these Plaintiffs their action, *left the evidence*at common law ; it does not direct, that the Justices shall cause the Clerk to enter of record the names of those present, and that such entry shall be evidence either *prima fade,*or conclusive that the appointment was made by certain Justices. The proof therefore, remains *in pais,*and the party suing must prove, as all other facts are proved, that Defendants were the Justices who made the order. The entry which is made on the record is conclusive evidence to all the world, of the *fact*of appointment, and of the *right*of the guardianship as to all parties and privies $ but as no law declares that the names of the Justices appointing shall be recorded, when the enquiry is who they were, it must be proved by testimony inferior to the record, but higher than the minutes of the Clerk of the Court, which, whether entered in the same book with the judicial proceedings of the Court, or in a separate book, are not evidence of any thing.

*301Our Comity Courts are of record; by the act of *any three'oí*the Justices may hold them, and whatever they do in pursuance of the powers conferred by the Le-gisl ature, and nothing else, shall be of record, in two instances *chap. 327*and *chap.*777, *New Rev.*statutory evidence of record is provided lor. in cases exactly analogous to that of the appointment of a guardian; it would seem therefore, conclusively, that no entry by the Clerk of such fact, can make it a record, without a special enactment.

But 2dly, if the entry be evidence that certain Justices *did appoint;*in -case of a penalty so grievous and heavy as this, it should be made appear that he did enter special *¡y*and distinctly the fact that they did appoint, it should not be left as a matter of uncertain inference' By the copy of (lie minutes, it appeal's that the Defendants were present as Justices at the opening of Court, on Thursday of the November term of 1819 ; that in the course of the-day, six or seven entries were made on the Clerk’s minutes, and among others, the order complained of; but at what time during the day, does not appear, nor can it he conjectured ; no particular hour of that day can he assumed as *prolaUy*the one in which this order was made, and much less is their *certainty ;*but the record ought to he certain to a *common intent*at least. The Plaintiff says, it must he understood t!iat the same Justices who opened the Court continued to. preside all day ; and the Judge charges that to get clear of this understanding, they must prove that they *did not*sit when this order was made, as *prima fade*it appears that they did ; and this presumption is said to arise in a case where any three Justices out of thirty or forty may hold the Court, and where the Magistrates are continually changing. It is absurd to suppose that the same persons who opened the Court are answerable for all the judicial acts of a Court, where they are not obliged to he present all day, and where they have no power to prevent fifty other Magistrates, each of equal authority with any one of *302them, from taking part in the proceedings of the Court. Suppose, on the day on which this order was made, a Sheriff had been appointed, and had gone on to discharge ¿¡)e duties without giving bond, and the Clerk had failed to record the names of the Justices present when the election was made; would it be held that the three Justices who arc stated to have been present at the opening of the Court, appointed the Sheriff, notwithstanding the law requires the appointment to be made by a majority of the Justices of the County ?

Sdly. The act of the Court was culpable, but is not within the law, they did not appoint *George Gordon*guardian, but to do a particular act which they could not au-thorise him to do; he was a trespasser in doing it, and not a guardian ; and if he was a guardian, the liability of the Justices arises from taking insufficient security, not from failing to take security altogether.

*Gaston,*contra,

argued that this was a record, and that a record is always evidence, and in civil cases, the highest evidence of whatever it declares, for whomsoever, and against whomsoever it is offered; and he cited as instances the probate of a will, granting letters of administration, a sentence in an Ecclesiastical Court declaring a marriage, the conviction of a felon offered as a witness, condemnation in Courts of Admiralty and Exchequer; fhat these records “import in them such uncontrollable credit and verity, as to admit no averment, plea, or proof to the contrary.” (Co. *Lit.*K50 *a. Gib. Ev. 5.*1 *Phil. 218.)*And that they are always admissible to establish the fact which such record declares, when the existence of that fact is in controversy.

The act of the Legislature requires that three Magistrates should be present holding the County Court, the record properly states who they were.

As between parties and privies, the record is evidence to establish the correctness of what was adjudged, it is conclusive of the *right*in contest, (l *Phil. 222.)*

*303But to establish the *fact*that the Cojjrt did so act as therein stated, they are universally evidence. (4 *Burr*2271. 4 *Term. R.*590. 2 *East*459. 1 *Phil.*219.)

And even when the record states what is not material,though not conclusive, it is *prima fade*evidence of it. (PM. 219. *Com. Dig.*“ *Estoppel'9 E.*6. *3 Inst.*230. *Gilb. Ei).*230. 5 *Term*436-445.)

And to show that an action would lie against a ministerial officer for any individual injured by his breach of duty, he cited 6 *Term*646-649. 3 *Bl. Com.*123. 1 *Salk.*18. 9 *Johns. R.*385.

The J udges severally delivered their opinions as follows:

Taylor, G. J. —

Neither a just construction of the acts of Assembly on this subject, the well known course of business, nor the reason of the tiling, warrants, in my apprehension, the reception of this record for any other purpose, than to show that the Court was opened by the three 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 arc maintained ; in receiving it as *prima Jude*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 fade*evidence becomes conclusive, unless it is answered and repelled by the Defendants. The difficulty of proving when they were in the crowded and confused state of a Court-yard, 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 c. 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 penal*304ty for the improper exercise of the power, it 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 the *Justice or Justices appointing*such guardian, who shall be liable for all ioss 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, which when they have done, they 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,*

*Témpora siefugiunt pariter, pariterque sequuntur.*

An act passed in 1790, c. 327, relative to the appointment of several public officers, serves to show the light in which this individual responsibility is regarded by the Legislature, and the spirit in which these laws arc 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 Justices, or a certain number beyond three, was not necessary to the appointment of those officers.

My opinion is, that the record was improperly received for any other purpose connected with this case, than to show that these Justices were present on that day, when the Court was opened, and that their aver-*305merit that they were not present when the guardian was appointed, is not in conflict with the record, which is not therefore an estoppel. I am in favor of granting a new trial.

Hah, Judge —

The act of 1762, *New Rev. ch.*69 *s.*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 bo liable for all loss and damages, &c. 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 tact 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 tiie trial, the introduction of which, as evidence, is complained of. It proves that a Court was opened and held, &c. 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 eounties, 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 j 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 dayj 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 *306before noticed. This being the practice of the Justices in holding the County Courts. I think the record in question, should not be taken as evidence of the fact, that ^ Defendants were the Justices who appointed *Gordon*guardian, &c. 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 5 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 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.

Henderson, Judge. —

A record cannot be *prima fade*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 fact *inter 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 anotherj there are no parties or privies; it is not made upon the liligation or admissions of any one ; and proceedings *in rem*are evidence against the whole world for the opposite reason, for being parties, they either have or might have controverted. The record offered *307in this case, is of *that*kind where no person was a 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 tiiese 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 fade*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 is *prima facie*evidence, then the fact stands proven, that the Defendants were on the Bench when the order complained of was made. Until they shew the contrary, it throws the burthen of proof upon the Defendants; whereas if it is only 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 fade*evidence. If it is matter of inference, all the doctrine of probabilities are to be *308gone into by the Jury, and tiiey 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 ¡„ 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 nbt there. I think, therefore, the Judge erred in telling the Jury that the record was *prima fade*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.

Let a new trial be granted.

Judgment reverse»»