Hertford County NcArchives Court.....Rawls, V. Deans & Others 1826
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:25 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

RAWLS, infants, by their Guardian, v. DEANS and others. 

(299) From Hertford.

A record cannot be prima facie evidence; where admissible at all the fact 
which it affirms cannot be contradicted; where it affirms a fact inter partes, 
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 all 
persons alike.

Where a suit was brought against three Justices of the Peace by an infant, for 
having appointed a guardian for him without taking any bond, the record of the 
County Court was offered in evidence by Plaintiff, showing 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 made 
the appointment; Held, that if 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, 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 appeared, (300) 
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 plaintiff's, 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, Judge, 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.

Hogg, for appellants, contended, that the act of 1762, 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 facie 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.

Our County Courts are of record; by the act of (301 ) 1777, any three of the 
justices may hold them, and whatever they do in pursuance of the powers 
conferred by the Legislature, and nothing else, shall be of record. In two 
instances, chap. 327 and chap. 777, New Rev., statutory evidence of record is 
provided for in cases exactly analagous 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 specially and distinctly the fact that they did appoint, it should 
not be left as a matter of uncertain inference. By the copy of the minutes, it 
appears 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 be 
conjectured; no particular hour of that day can be assumed as probably the one 
in which this order was made, and much less is there certainty; but the record 
ought to be certain to a common intent at least. The plaintiff says, it must 
be understood that 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 facie 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 be present all day, and where 
they have no power to prevent fifty other magistrates, each of equal authority 
with any (302) one of them, 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 the 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 are stated to 
have been present at the opening of the oourt, appointed the sheriff, 
notwithstanding the law requires the appointment to be made by a majority of 
the justices of the county?

3dly. 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 authorize 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; 
that those records "import in them such uncontrollable credit and verity, as 
to admit no averment, plea, or proof to the contrary." (Co. Lit. 160, 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. (1 
Phil., 222.) 

(303) But to establish the fact that the Court 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 facie evidence of it. (Phil., 219; Com. Dig. "Estoppel" E., 6; 3 
Inst., 230; Gilb. Ev., 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 Judges severally delivered their opinions as follows:

Taylor, C. J.—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 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 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 (301) penalty 
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 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. Some times 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,

Tempora sic fugiunt pariter, pariterque sequentur.

An act passed in 1790, c. 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.

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 (305) 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.

Hall, Judge.—The act of 1762, New Rev. ch. 69, s. 5, doclares, 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, &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 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 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 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 (3015) 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 the defendants were the justices who appointed Gordon guardian, &. 
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 
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 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 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 another; that 
there are no parties or privies; it is not made upon the litigation or 
admisssions 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 in this case, is of (307) 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 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 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 show 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 facie evidence. If this is matter of inference, 
all the doctrine of probabilities are to be gone into by the jury, and (308) 
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.

Let a new trial be granted.

Judgment reversed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

File at: http://files.usgwarchives.net/nc/hertford/court/rawls1463gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 21.0 Kb