Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-07-03


deed, TO which the statute has assiliilatedit.
| Nor does il alter the case, that the treasurer
| is sworn officer. His swearing 10 do his
duty, does not make entries in the treasury
| books true, which are in fact false. la the
case OF Goode V. Gait lately decided by the
court of appeals, n Judgment was reversed for
an error which grew ont OF the false return Of
a sheriff tho made upon oath,) and the cause
was sent back with orders, that the sheriff
should be pcrmittedto amend the return.
| Iadmit that these are public books, bought
with public money, and kept for public pur-
poses under the sanction of an oath. They
are evidence of high and solemn nature, and
should only be outwcished by direct and deci-
s,re testimony. But that they are to shut out,
or were ever intended to shut out the daylight
of truth, do not, and cannot believe. Notwith-
standing the guards which are provided, these
books like all Others, may contain errors.-
Can it be believed, the legislature intended,
that even il evidence should be offered prov
ing erroneous entries, as clearly as any thing
eau be proved, still such evidence must be
rejected and the jury compelled to find Il
dict against the very truth and justice of the
| case ? and this under the old, and 6di0uS doc
trinc of estoppel, for odious must call it,
since it is SO held in every book III which it is
mentioned al estoppel too, applied TO 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.
| 1t is said, that the case ought to be consider
ed, as il Il different individual! had been chosen
treasurer, and had given new bond every
year. That in such case, ifthe books transfer
red TO the succeeding treasurer, Showed
certain balance ought to be in the treasury,
but in fact the money had been eloigned, and
| the successor thro false confidence or any other
motive, received the books without counting
the money, and reporting the deficit, that he
and his sureties would he prccluded from
shelving, that he was not the actual embezzlcr,
and that the money had been converted by
his predecessOr, before he came into Office ; that
such conduct woul,l be breach ofolicial duty,
and that suit might be prosecuted against
| the succeeding treasurer and his sureties !;
that the commonwealth might recover on as
signing the fact as a breach of the condition
To the full extent of the loss actually sustained,
| do not deny but that on suit charging the
succeeding treasurer with being the actual
embeZzler, during the year in which he was
treasurer, 1T once destroying his character and
charging his surc:ies 10 the exoneration of the
real culprit s his sureties ION an issue oo,made
up 10 try the precise fact whether the default
| and cmbcZZemcnt occurred in one year or the
other, the party'should be estopped from prov
4 nE Ills iHiiOCtHSS anu VI pTcucCSS-
sor, and thus charge the surcties who are real
| IL bDund cannot admit.
| If these books work an estoppel, why We're
| they not pleaded in the replication Why was
| issue Joined, upon the facts set forth in the
plea Why did the the attorney go to trial be-
! fore the country BY going before the jury
on the issue rendered, he has looscd the cstop-
| pei ard let i'll the evidence of the truth.
| cannot perceive the force of the reasoning, by
which this estoppel is maintained. II the fact
be, that the emlieZLlement took place in 1878,
and is not within the condition of the bond for
| 1919, can the estoppel change the actual fact
/ and make that true which is false Will it
make that which was done in 1918, 10 have
been done in 1919? viii 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 III the more awful ones OF life and
| death often presented to its deIlberation, be
competent 10 weigh the evidence, and deter
mine what is true and even if the jury should
err in its decision, that error may be correct
ed, by granting new trial. do not see that
the monstrous evils anticipated, will resultlrom
suffering the facts in cases affecting tie public
revenue to be given in evidence to the jury
| When the commonwealth arraigns citizen ut
her bar for treason or murder, (the highest
crimes klioTn 10 cur jurisprudence,) she sub
n1its the case both OH the law and the facts
to Jury. Ifshe cannot in proceedings against
the treasurer, submit the law of the case to a
Jury, surely it is a stronger reason why the ju-
ry should at least pass Judgment, on the facts
affecting the case.
! This Il an estoppel ola new character. 1t
is said, the hooks work no estoppel as to the
commonwealth ;she may contradctthe books.
The old fashioned cstoppels, even in the stern
est periods OF the English law, were recipro-
cal. Both parties We're estopped, or neither.
it has been remarked, that this case ought
to be decided on great principles. Controver-
sizes in courts of Justice, ought TO be decided
on correct principles always on great ones
when they apply. know ofno 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 con
, stitution, and the laws ofthe land it ought to
exist in the laws of every nation upon earth !;
the principle that every free citizen whether in
, civil or a criminal proceeding, has right to
; be heard in his defence TO produce his wit
nesscs, and to have fair aud impartial trial
on the merits of his cause. The common
wealth can claim no exemption from the ope-
ration of this equal rule in a controversy
7 with the meanest of her citizens. Howcv-
or bound to her by allegiance and by rev.
! erence, when she appears in the character
tof sutton, her tribunals of justice can recog-
Mise in her no claim to superiority in rights
over the vilest of mankind. From this great
r principle would deduce the inference, not
t that the defendants were estopped, and the
, commonwealth, abroad and at large but that
2 neither party was estopped That both might
FprOve by evidence competent in ordinary cases,
the whole truth of the case and that the defend