Baker v. Preston

Full title: Baker, [Treasurer,] for the Commonwealth v. Preston and Others

Court: Supreme Court of Virginia

Date published: Jun 1, 1821

21 Va. 235 (Va. 1821)

Opinion

06-01-1821

Baker, [Treasurer,] for the Commonwealth v. Preston and Others

Stanard for the appellees, Robertson, Attorney General, for the appellant. Leigh, for the appellees. Wickham for the appellees. Barbour concluded for the appellant.

ROANE, Judge.

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

This was a motion made by Jerman Baker [Treasurer], on behalf of the commonwealth, under the 11th section, chap. 174, of the Revised Code; against John Preston and nine persons, his sureties, on a bond given in conformity with the 9th section of the same act. ^a The condition of the bond, after reciting that Preston had been elected Treasurer, concluded, " now if the said John Preston shall faithfully account 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 obligation to be void, otherwise to remain in full force and virtue."

a It will be observed, that the words, " and every year thereafter," were incorporated into the statute after the execution of the bond. --Edition 1821.

The notice of the motion recited the bond, and the condition; averred that it had not been complied with, and claimed the penalty of one million of dollars.

There was no appearance for John Preston the principal. The sureties appeared by counsel, and the following pleadings were made up.

The 1st plea craved oyer of the bond, which being read, was incorporated into the plea. The election of John Preston to the office of Treasurer on the 18th day of January 1819 (the date of the bond) and the determination of his office on the 17th January 1820, and the election of Jerman Baker as Treasurer on that day were all recited. And the plea averred, that during the whole of Preston's said office of Treasurer, to wit: from the 18th January 1819 to the 17th January 1820, he did faithfully account for all monies and other things which came to his hands in virtue of his said office, and perform all other articles thereof according to law.

The plaintiff replied, that between the above dates, and during Preston's continuance in the said office, large sums of money, viz. $ 2,000,000, had come to his hands, and that he did not faithfully account, & c.

Rejoinder, that during Preston's continuance in the said office from the said 18th January 1819 to 17th January 1820, there came to his hands in virtue of his office only dollars, and no more, and that he did faithfully account, & c. Issue was joined on this rejoinder.

2d plea. After the same recital as in the first plea, averred, that on the day of the commencement of Preston's said office, to wit: on 18th January 1819, there was actually in the treasury, and in the hands of Preston in virtue of his said office, the sum of $ 407,000 and no more money or other thing; and between the commencement and expiration of his said office, to wit: from 18th Jan. 1819 to 17th Jan. 1820, there came to the hands of the said John Preston, in virtue of his office, divers sums of money, amounting to the sum of $ 793,251 36-100 and no more money or other thing, which two sums of $ 407,000 and $ 793,251 36-100 amounting together to the sum of $ 1,200,251 36-100, was all of the money or thing, that came to the hands of the said Preston in virtue of his said office; and that he had faithfully accounted for all the said monies which so came to his hands in virtue of his said office, during his continuance therein; and had performed all other articles of the said office, & c.

Replication, that on the 18th January 1819, there was actually in the treasury and came to the hands of Preston in virtue of his office, the sum of $ 800,000; and between the 18th Jan. 1819 and 17th Jan. 1820, there came to his hands in virtue of his said office, divers other sums amounting to and that the said Preston did not account for or pay the said sum of money, but did divert, misapply and convert the same to his own use; and so had broken and violated the condition of the bond. The replication concluded to the country, and issue was joined.

3d plea. That John Preston was first appointed Treasurer on the day of October 1808, by the Governor with advice of council: and executed his bond with security on the 18th October 1808: that he was first elected by the legislature in January 1809 and gave bond with security for the faithful discharge of his duties on the 12th Jan. 1819. That he was successively re-elected every year, until January 1819. That the bond of 1819 was not taken on " his first election" ^b but on his 10th and last election, and was not required or authorized by law, and was void.

b The expression " on his first election, before he shall have power to act, he shall give bond" & c. relates to the provision in the first sentence of the section, authorizing the Treasurer to continue in office to the end of the ensuing session of the legislature without re-election. After his first election he may do this without giving bond; but when first elected he shall do no act, before he has given bond. --Edition 1821.

There was a general demurrer, and joinder in demurrer to this plea. The demurrer was sustained by the general court.

A Jury was then sworn to inquire of damages as to John Preston; and the truth to speak upon the issues joined as to the other defendants. In the progress of the cause several instructions to the Jury were asked for by the plaintiff, which will appear in the bills of exceptions which follow:

The 1st bill of Exceptions taken by the plaintiff states, " That on the trial of this motion, and before the jury were sworn, the plaintiff, in the presence of the court, and on the day the jury were sworn, gave notice to the defendant, Francis Preston, to produce an original deed executed by a co-defendant, John Preston, and his wife, and at the time of giving said notice offered to the said defendant, if further time was requisite to enable him to produce the said original deed, that he, the plaintiff, would ask a suspension of the proceedings until it could be obtained, or move for a continuance of the motion till the ensuing term of the General Court, in order that such time might be afforded. To which proposal the said defendant declined to give any other reply, than that the plaintiff's counsel must take their own course, and manage their cause in their own way. And then the plaintiff offered to introduce a copy of the said deed, duly certified by the clerk of the Hustings Court of the City of Richmond.

And the plaintiff proved, that the said original deed was about eight months ago, delivered by the clerk of the said court to the said Francis Preston; and proved by the oath of the said clerk, that the same was a correct copy, and that the trustees under the said deed, and one of the defendants, to wit: Bernard Peyton, had acted under the said deed, by authorizing and effecting sales of property therein specified: --Whereupon the said Francis Preston came into court and stated, that the original deed was carried by him and delivered either to Henry Edmundson, or James M'Dowell, but he does not recollect which, to be recorded in the several distant counties wherein the lands mentioned in said deed respectively lie. But that he the said Francis did not know whether the said deed had been so recorded, nor where the same was, nor whether the same was now in existence, or not; but he believes it to be in existence, and now in the hands of either the said Edmundson or M'Dowell. Whereupon the defendants moved the court to exclude the said copy from going in evidence to the jury, which motion the court sustained; and the said plaintiff excepted to the opinion of the court rejecting the said copy, and prayed, that this his bill of exceptions might be signed and sealed which was done accordingly."

Another bill of Exceptions taken by the plaintiff states, --" That on the trial of the issues joined in this cause, the said Baker to support the said issues on his part proved, that the said John Preston was elected treasurer of the commonwealth according to the laws and constitution, on the day of January 1809, and was successively and annually, in like manner, re-elected to, and continued in the said office, from year to year, until the 17th day of January, 1820, when he resigned the said office; and on the day of January, 1820, the said Jerman Baker was elected his successor in the said office."

" The said Jerman Baker then gave in evidence the annual reports made to the General Assembly, by the said John Preston, from the said day of January, 1809, to the 13th day of January, 1819, (inclusive; ) and the annual reports of the joint committees of both houses of Assembly, from the said day of January, 1809, to the said 13th day of January, 1819, inclusive; and the books of the Treasury Department, during the whole period during which the said John Preston was treasurer of the commonwealth, by virtue of his successive annual elections aforesaid. And according to the said annual reports, and the said books of the treasury department, it appeared, that on the 1st of Oct. 1818, (being the end of that fiscal year) there ought to have been a balance in the treasury, to the credit of the commonwealth, of $ 390,702,95; and on the 18th day of January, 1819, being the date of the bond on which this motion is grounded, and the day of the commencement of the said John Preston's last term of office, there ought to have been a balance in the treasury, to the credit of the commonwealth, of $ 648,412,23; and on the 17th day of January, 1820, when the said John Preston resigned his said office, there ought to have been a balance in the treasury, to the credit of the commonwealth, of $ 333,297,07. --But the said Jerman Baker proved, that on the said 17th day of January, 1820, he found in the coffers of the treasury office, and to the credit of the treasury in the two banks of Virginia, only the sum of $ 250,197,77; so that there was a difference of the sum of $ 83,099,30, between the balance so shewn by the books of the treasury department, as the sum which ought to have been in the treasury to the credit of the commonwealth, on the said 17th day of January, 1820, (when the said Preston resigned his office,) and the cash actually in the treasury: and that the said Jerman Baker, the now treasurer, immediately passed to the credit of the commonwealth, the said sum of $ 250,197,77, as so much money turned over to him by his predecessor; of which sum $ 250,197,77, the sum of $ 248,086,62 was money in the two banks of Virginia, to the credit of the treasury, and the rest was in the public coffers in the treasury office; and the said sum of $ 248,086,62 was carried, by the said two banks, to the credit of the said Jerman Baker, the now treasurer, immediately that he took charge of the treasury, without any check for the same drawn in his favor by the said John Preston, the late treasurer, in whose name, as treasurer, the treasury account at bank stood; and the said transfer at bank was made in the presence of the said John Preston's agent, who went to the bank with the said Jerman Baker, to have such transfer made; and the said Jerman Baker gave his receipt to the said John Preston, for the said sum of $ 250,197,77 so turned over by the said John Preston to the said Baker. And it further appeared, by the said books of the treasury department, upon examination and correction, that there were errors and omissions in the Ledger (on which the said annual reports were founded) against the commonwealth, to the amount of $ 4,488,08; of which $ 3,488,08 was an error in addition in the accounts of 1810, and the rest consisted of divers errors and omissions all prior to June, 1818. And the said Jerman Baker proved, that the said John Preston, so being treasurer of the commonwealth for the time being, on the day of July, 1814, received of the Bank of Virginia the sum of $ 39,000, being for dividends due to the commonwealth, on the stock of that bank owned by the commonwealth; which sum of $ 39,000 was passed by the said bank to the credit of the said John Preston, as treasurer of the commonwealth, on the day it was so by him received; but it was never audited, nor credited by the said John Preston to the commonwealth, on the books of the treasury department. And the said Jerman Baker further proved that the said John Preston, so being treasurer for the time being, on the day of July, 1816, received the further sum of $ 5,431,57, for interest on treasury notes of the U. States, the property of the commonwealth, which he deposited to his credit, as treasurer of the commonwealth, at the said bank of Virginia; but the same was never audited, nor credited to the commonwealth by the said John Preston, on the books of the treasury department. And the said Jerman Baker further proved, that the said John Preston, so being treasurer for the time being, received, on the day of March, 1816, the further sum of $ 510, for interest on other treasury notes of the U. States, belonging to the commonwealth; but the same was never audited, nor credited to the commonwealth, on the books of the treasury department. And thereupon the said Jerman Baker, the now treasurer, claimed on his said motion and action against the said defendants, the said deficit of $ 83,099,30; and the said sums of $ 4,488,08, $ 39,000, $ 5,431,57, and $ 510, amounting in all to the sum of $ 132,528,95."

" Then the said defendants, to support the issues joined on their part, proved, That the said John Preston, so being treasurer for the time being, on the 17th day of August, 1818, received of John Chew, a check on the bank of the United States at Philadelphia, for $ 146,500 for so much money due by the U. States to the commonwealth, which sum had been duly audited, and was passed by the said John Preston on the same day to the credit of the commonwealth, on the books of the treasury department; but the said Preston on the same day, did not deposit the same at the bank to his credit, as treasurer, on official account, but did deposit the same to his own individual credit at the bank of Virginia, on his individual private account, blending the same with his private funds at his credit at the said bank; and the same was thereafter checked for by him, in his own name, in like manner as for his own money, so as to exhaust the whole amount thereof; but whether the same when so checked for, was applied to his own use, or to that of the commonwealth, or when it was so checked for as to be exhausted, did not appear; nor was any evidence adduced on the part of the said Jerman Baker, to shew that the said John Preston ever applied any part of the said $ 146,500 to the use of the commonwealth, or returned any part of the same in any wise into the treasury, other than what may be collected from the facts and proofs herein stated."

" That on the 1st October, 1818, (being the end of that fiscal year) when according to the annual reports of the said John Preston, then treasurer, and of the joint committee of both houses of Assembly of the 13th day of January 1819, and the books of the treasury department, and other evidence adduced on the part of the said Jerman Baker: (as above stated,) there ought to have been in the treasury to the credit of the commonwealth, the sum of $ 440,132,60;^c there was in the two banks of Virginia, to the credit of the said John Preston as treasurer of the commonwealth, on his official account there, only the sum of $ 147,919,17, shewing a difference between the sum which ought then to have been in the treasury, according to the said evidence adduced on the part of the said Jerman Baker, and the money at the banks to the credit of the treasury, of 292,213,53. That on the 18th day of January, 1819, when according to the same evidence adduced on the part of the said Jerman Baker, there ought to have been in the treasury the sum of $ 697,841,88 ^d to the credit of the commonwealth; there was in the two banks of Virginia, to the credit of the said John Preston, as treasurer of the commonwealth, on his official account there, only the sum of $ 406,150,73; shewing a difference between the said sum which ought then to have been in the treasury, according to the same evidence adduced on the part of the said Jerman Baker, and the money at the banks to the credit of the treasury, of $ 291,691,15. And the defendants proved, by a clerk in the treasury department, employed there during all the years 1818, and 1819, and until the 17th January, 1820, (inclusive; ) that there was not usually kept in the public coffers in the treasury office, during the period aforesaid, more than $ 5,000, very seldom as much as $ 10,000, and never, within the recollection of the witness, as much as $ 50,000 for one whole day at a time. And by the evidence of the same clerk of the treasury department, and the official accounts of the said John Preston, as treasurer of the commonwealth, with the two banks of Virginia, compared with the books of the treasury department, and the other evidence aforesaid adduced on the part of the said Jerman Baker, it appeared that there was continually, and every day from the said 17th day of August, 1818, to the said 18th day of January, 1819, inclusive, the difference of $ 250,000, at the least, between the balance stated on the books of the department, and by the other evidence adduced on the part of the said Jerman Baker, as the balances due to the commonwealth, and the amount of the actual sums in the public coffers in the treasury office, added to the balances at bank, to the credit of the treasury.

c

Per the Reports and Treasury
Books,	$ 390	702	95
Per the other evidence, [$ 4,488,08, $ 39,000
$ 5,431,57 $ 510].	49	429	65
	$ 440	132	60

d

$ 648	412	23
49	429	65
$ 697	841	88

" Whereupon the said Jerman Baker by his counsel moved the court, to exclude the evidence so as aforesaid adduced by the defendants from the consideration of the jury, as being inadmissible evidence, so far as the same was offered to exonerate the said defendants from responsibility for the balance of $ 83,099,30, appearing from the said reports of the said John Preston, as treasurer, and of the joint committees of both houses of Assembly, and the books of the treasury department, to be due at the time of the said Preston's said resignation, as above stated. But the court was of opinion, that the said motion should be overruled, and admitted the said evidence of the defendants as proper for the consideration of the jury."

And then the said Jerman Baker by counsel insisted, that the balance due by the said Preston as treasurer for the year 1818, and the preceding years, at the time of the execution of the bond on which this motion and action is founded, must be intended to have afterwards come to his hands in virtue of his office so as to charge the said defendants as his sureties for his last term of office aforesaid; and that the fact of his keeping the treasury books, as if the amount called for by the said books was on hand, amounted to an admission, by him, that he held the whole sum so called for by the books in his official character, and was an election by him, to hold the said sum so previously due by him, in his official character, as treasurer for the year 1819. And the said Jerman Baker by his counsel also insisted, that the said sum of $ 250,197,77, so turned over by the said John Preston upon his said resignation in manner aforesaid, being so turned over by the said Preston, without any specific direction as to the application thereof, was a payment by the said Preston to the commonwealth, which the said Jerman Baker, as treasurer of the commonwealth, had a right to apply to the extinguishment of any balance due by the said Preston, as treasurer to the commonwealth, prior to the commencement of his last term of service, and the date of the bond on which the present motion and action was founded. Whereupon the said Jerman Baker by his counsel moved the court to instruct the jury, that notwithstanding the facts proved by the said defendants, (supposing them fully pro ed) he is entitled in law to recover of the said defendants the sum of $ 83,099,30 (the deficit appearing on the treasury books as kept for the year 1819, in manner before stated; ) and also the amount of the said several sums of $ 4,488,08, $ 39,000, $ 5,431,57, and $ 510, herein before mentioned and explained. But the court was of opinion, that the said defendants, in this motion and action, are only liable for due application by the said John Preston, of the sum actually in the treasury, at the commencement of the said John Preston's last term of office, and at the date when the said defendants executed the bond aforesaid, as the said Preston's sureties; and of the sums received by him during his last term of office aforesaid; and that the said Baker is not entitled to recover the said deficit of $ 83,099,30, of the said defendants in this motion and action, on the issues joined, on the ground that the keeping of the said books of the treasury department, by the said John Preston, during his said last term of office, in the manner herein before stated, was an election by the said John Preston, to hold the money so appearing by the books to be due to the commonwealth, in his official character of treasurer for his said last term of office, (as contended by the said Baker's counsel,) if it was in fact eloigned from the treasury during the year 1818; unless it appeared, that the said money was actually applied to public use, or actually returned by the said Preston to the treasury during his said last term of office; and by him again eloigned and withdrawn from the treasury, and to his own use converted, during his last term of office aforesaid. And the court was further of opinion, as to the amount of the said several sums of $ 4,488,08, $ 39,000, $ 5,431,57, and $ 510, that it was not the right of the said Jerman Baker to apply the said sum of $ 250,197,77, [so as aforesaid turned over by the said Preston, on his said resignation, to the said Baker as his successor,] to the extinguishment of the said debt due by the said Preston to the commonwealth, on account of the several sums so withdrawn from the treasury, and applied to his own use previous to the commencement of his said last term of office, in the manner herein before stated and explained; because the said sum of $ 250,197,77 was in fact the commonwealth's own money, and not a payment of so much by the said Preston to the said Baker, his successor. And the court instructed the jury accordingly, and overruled the said motion for an instruction to the jury, made by the said Baker's counsel. To all which opinions of the court, herein above stated, the said Baker by his counsel excepted, and prayed the court to sign and seal this his Bill of Exceptions; which is done accordingly."

The jury found for the plaintiff, on the writ of inquiry awarded against John Preston, and assessed the damages at one cent: and as to the issues joined between the plaintiff and the other defendants [the sureties,] there was a verdict for the defendants. The judgment as to John Preston was, that the plaintiff take nothing non obstante veredicto; and that the plaintiff take nothing by his motion against the other defendants, but that they go hence without day.

The appeal was from this judgment, and now the cause was opened by Nicholas for the appellant.

The 2d plea ought not to have been admitted by the general court, because it was a repetition of the matter of the first plea in another form. The first was a general plea of conditions performed; and the condition of the bond was, that John Preston should " faithfully account for all monies and other things which should come to his hands in virtue of his office, & c." The 2d plea avers, that only a given sum came to the hands of Preston in virtue of his office, and that he had faithfully accounted for it; and had performed all other articles, & c. It is true the statute allows defendants, to plead as many several matters as they may think necessary for their defence. ^e But these are not several matters, they are the same matter. And it has never been held under the statute, that a defendant shall be allowed to plead specially, a matter put in issue by the plea of the general issue.

e 1 Rev. 510.

2d. Should the certified copy of the deed have been admitted in evidence?

It is objected to this deed that it is a copy; and the reason for disallowing copies generally is, that offering them in evidence raises a presumption, that there is something in the original unfavorable to the party offering the copy. But even a copy is evidence when there is no fair presumption from the circumstances, that there is any better evidence of the facts to be proved. [For this he cited Phil. Evid. ^f] It has moreover long been the usage of the country, to admit certified office copies of deeds as equivalent to the original.

f 167.

We proved that the original deed was delivered to Francis Preston, a defendant, and notice was given him to produce it. The late law requiring conveyances of lands, to be recorded in each county in which any part of the lands lie, has made it difficult for parties to know, where to apply for the original; we traced the deed to the possession of F. Preston, a party to the cause; and notice to him to produce it, should let in the secondary proof, even if the copy was inadmissible as primary evidence, which he contended it was. For it is said, one cannot plead non est factum to an enrolled deed. ^g And in the case of Whitacre v. M'Ilhaney, ^h this court held, that a copy of a copy was inadmissible; strongly implying, that a copy of an original was good evidence.

g 3 Com. Dig. 269 " Estoppel A."

h 4 Munf. 310.

This deed was very important evidence, because it was made to indemnify against loss, the defendants to this motion; and recited, that a default of the treasurer had recently happened, which recital stops the Treasurer from denying either the fact of the default, or the date at which it happened. ⁱ

i Com. Dig. 270, A. 2; Shelly v. Wright, Willes, 9.

If it be said the sureties are no parties to this deed; I answer, that it is made, for their benefit, and to a considerable extent has been carried into effect to their exoneration. But if they were not parties, they are at least privies, and bound by the deed as if they had executed it: and if neither parties nor privies, the admissions of Preston are binding on his sureties. The deed then should have been admitted in evidence, and the purpose for which it was to have been used being important to the appellant, the judgment of the court rejecting the deed, should be reversed.

The principal questions still remain to be discussed, namely, whether any parol evidence should be received to falsify the treasury books; and whether the manner of keeping those books did not amount to an admission by the Treasurer, that he held the sum called for by the books in his official character; and was an election to hold the sum previously due in his official character, as Treasurer for the year 1819.

It is admitted on all sides, that the books of the treasury for several years shewed the balances claimed ought to have been in the hands of the Treasurer; the annual reports of the Treasurer founded on the books reiterated the same assertion. If the Treasurer be now permitted to contradict the books, and shew that for whole years they were altogether false, and fraudulently kept, there is no security for the safe keeping of the finances of the country.

Public books of every description are of very high authority. Entries in the books of corporations, banking, and turnpike companies, are received as of the greatest weight; and public documents like these, are conclusive of the facts contained in them. ^k That it was the intention of the legislature that these books should preclude all inquiry aliunde as to the transactions in the treasury, is manifest from the particular provisions of the act organizing the financial department of the government. ^l By a statute of the British parliament, commissioners are appointed for stating debts due between officers of the army, & c., and it has been decided, that the acts of the commissioners are conclusive upon the parties; and no evidence can be received to contradict their certificate. ^m Here the counsel cited the case of the Commonwealth v. Baynton ⁿ as applicable to the present.

k Phil. Evid. 302; Peake's Evid. 87, 91.

l 2 Rev. c. 174, § 12, 14, 15.

m Moody v. Thruston, 1 Stran. 481.

n 4 Dall. 282.

Preston then cannot deny, that he held the balances which from the books it appeared ought to have been on hand; and it he cannot, neither can his sureties who are bound by all his acts, and concluded by whatever estops him. Even in criminal cases, the admission of one person often binds another; ^o and in civil proceedings the cases in which the admissions of one party bind another are numerous. ^p These defendants had or ought to have had from their principal, information of the actual state of the treasury when they executed the bond; and it is too late now to object the want of such information.

o 1 Chit. Crim. Law 571; 5 Esp. Rep. 125.

p 1 Esp. Rep. 141; 2 Esp. N. P. 518; 2 Doug. 651; Peake 17, 72-3.

The misapplication of the $ 146,000 in 1818, relied on by the defendants to shew the default occurred before they signed the bond, cannot help them; for though Preston deposited this sum in bank to his individual credit, it was throughout part of the public treasure; the manner of the deposit could not divest the Commonwealth of its title to the property. Besides, it no where appears when this sum so deposited was exhausted; it may have been in fact applied by Preston to his individual purposes in 1819, and if so, it was a default in that year, and the case is made out against the defendants even on their own principles. His admission by the books, and the report that the balance claimed was on hand in January 1819, is proof that this sum was not in fact diverted from the public treasure in 1818. Though this sum was deposited to his individual credit, he may have applied it to public uses, and if he did, it must be considered as public money throughout; the place where he kept it, and the mode of the deposit cannot alter the character in which he held it. ^q

q 13 Mass. 288.

The same objections apply to the evidence adduced to shew, that there had been constant defaults to a greater amount than the sum claimed, for several previous years.

Treasurer Baker had certainly a right to apply the sum paid over by Preston, to the extinguishment of the debt due by Preston's default, whenever it happened, and thus leave the deficiency to be paid at the time of Preston's resignation. If it be said that the money belonged to the Commonwealth and not to Preston; I reply, that Preston shows his intention that the money shall be so applied by his deed.

Stanard for the appellees,

Considered the point of the admission of the second plea as renounced by the counsel who had preceded him; he having offered neither argument nor authority against its propriety. It is the common case of a brief plea stating the general defence, with another plea setting forth the matter of defence specifically. It will be observed too, that the pleas were not addressed to the favor of the court; it was the first time the parties had an opportunity to plead; they appeared promptly, and offered without delay these matters in their defence. Had there been any thing in either plea unusual or inadmissible, the Commonwealth should have demurred; it would have been without precedent to have rejected a plea in itself proper, in this early stage of the proceeding, on a mere motion. But these pleas would have been proper, and should have been received by the court, whenever, and however offered. The court will never reject a plea on motion, unless it be an insufficient plea, and addressed to its favor; or the plea itself be unnecessarily prolix. As to this last objection, it surely will not be made to the present plea, after the case mentioned in Chitty's Pleadings, of a declaration containing 480 counts, which was objected to for prolixity, and the objection was overruled by the court

2d. The copy of the deed could have been admitted only on the ground of its being receivable as primary evidence; or as secondary evidence, after notice to produce the original. By notice, is always understood, reasonable notice; and if the deed be in the hands of a third person, its production can be coerced in no other manner than by a subpoena duces tecum. Even if this deed had been in F. Preston's possession, it must have been at his house in Washington county, for he proves he had it not with him: and the reasonableness of notice to produce a paper three hundred miles distant, after the Jury is sworn, is not to be debated. Indeed the offer of counsel to continue the cause, to give time for the production of the deed, is a concession, that there is not sufficient time to produce it on the trial. They ask for time to prepare their case, but surely this concession that they are not prepared, cannot stand in the place of preparation; their acknowledgment that they have given an insufficient notice, cannot cure the defect. Allow counsel this latitude, and they will dispense with the necessity of notice in every case. They have only to give notice after the Jury is sworn, and insist that the party shall produce the paper, or go to trial on the copy.

But the counsel failed in the first step toward making this notice of any avail; they did not prove that F. Preston had possession of the deed, and he proves explicitly that he had it not. The notice therefore, was wholly insufficient to let in the copy as secondary evidence.

Was it allowable as equivalent to the original?

This mode of authenticating deeds does not make the copy evidence of the contents of the deed. The counsel who has opened the case, has urged no reason for such an opinion, nor has he shewn it by authority. He has relied on the usage of the country, but no practice short of a uniform and unquestioned course of adjudications, can alter the laws; and there is no such usage on this subject. In the case of Tompkies v. Downman ^r the practice of fining Sheriff's toties quoties for failing to return executions, had been uniformly acquiesced in for thirty years; and this court, so far from respecting the usage, made its very universality the ground for the interference of a court of equity, and decided against the legality of the practice. The case of the Commonwealth v. Fairfax, ^s was also decided against the practice of the country, which was insisted on in argument. And the only authority which has been referred to, ^t went upon the ground of the deed being ancient, and accompanied by possession; a principle which was never controverted. Every case decided in England prior to the statute of 10th Anne, which expressly makes enrolled copies evidence, was either on notice, or the deed was ancient and accompanied by possession.

r 6 Munf. 557.

s 4 Hen. & Munf. 208.

t Rowletts v. Daniel, 4 Munf. 473.

There is a large class of cases very liable to produce confusion on this subject, in which it has been held, that the enrolment may be received to prove the execution of the deed in place of the subscribing witnesses; but in none of them has the enrolled copy been held to prove the contents of the deed, except under the statute. One cannot plead non est factum to an enrolled bond, because the enrolment proves the execution; but that will not let in the copy to prove the contents: the original must be produced, and if this were a bond, there would be no doubt that the copy would be rejected: and our statute has no provision for receiving the copy in evidence, it stands then on the same ground with a bond.

The leading case in the English books on the subject, is Smartle v. Williams. ^u That case is erroneously reported, as is shewn by Judge Buller; ^v and in fact it was decided altogether on the antiquity of the deed. ^w For the memorial of a recent deed is clearly inadmissible testimony. ^x

u Salk. 280; 3 Lev. 287; Comber. 247.

v Bull. N. P. 256.

w 14 East. 231.

x 2 Esp. Rep. 549.

The only purpose of an enrolment at common law, was to dispense with proof of the execution. And so impossible was it for a party to prove the contents of a deed by an enrolled copy, that if one lost the original, all right to the subject was gone, for he could not declare on a lost deed, and aver that fact to excuse the profert. ^y And the passages referred to in Philips' Evidence, prove nothing more, than that the enrolment dispenses with proof of the execution by the subscribing witnesses.

y Viner " Inrolment" pl. 3.

But however authenticated, this deed cannot be evidence against these defendants, because they are no parties to it; the Commonwealth is the third party; it is for her benefit, and surely she cannot make evidence to operate to the prejudice of the sureties. All privity, all connection between Preston and his sureties ceased, on the expiration of the bond, which, and which alone had united them. This court has repeatedly decided, that the declarations and acknowledgments of the partner of a mercantile firm cannot bind other partners, when made after the partnership is dissolved. ^z

z Rootes v. Wellford & Co. 4 Munf. 215; Shelton v. Cocke, Crawford & Co. 3 Munf. 191.

The deed if admitted could have had no possible effect on the Jury. For the bill of exceptions admits the fact of the default in the treasurer, and the date at which it happened can only be vaguely inferred from the deed; while the very time at which it took place, is expressly admitted to have been proved by the bill of exceptions. And it has often been determined in this court, that a judgment should not be reversed, for an error which could not have altered the result of the case. ^a

a Preston v. Harvie, 2 H. and M. 55; Faulcon v. Harris, 2 H. and M. 550.

3d. It has been said, that the money in the treasury at the time of Treasurer Baker's election passed to him in virtue of his office; and he had a right to apply it as a payment by John Preston, to the extinguishment of any sums due by Preston to the Commonwealth. But the sureties were bound only by the wrongful diversion of the public money. It cannot be pretended, that the sums fairly delivered over to his successor were wrongfully diverted. This was not Preston's money but that of the Commonwealth; how then, could Baker apply this particular money to the extinguishment of Preston's debt more than any other monies of the Commonwealth? If it was Preston's money, it would have been assets in the hands of his executor, and what would be thought of an execution levied on money in the public fisc, to pay his private debt?

If this be the law, the Commonwealth has an easy method of making good the defaults of all her officers: only appoint them treasurers, or to some office where large sums of money are received; wait until great public payments have been made, and then seize the treasure, to extinguish past delinquencies, and proceed against the sureties, for all the sums thus forcibly and treacherously laid hold of.

4th. I come now to the last question, and the only one of real importance in the case, the conclusiveness of the treasury books. In discussing it, I shall advert to the plea alleging that the first bond was the only one authorized by law to be taken, only for the purpose, of drawing from the other side consequences and principles which necessarily follow, from denying that the first bond is the only one which is binding. To prove their case in this part of the argument, they are compelled to maintain, that every bond of the Treasurer is limited in its operation to the year in which it is given: that the liability of the sureties is the same, as if a different man, was elected Treasurer and different persons became sureties every year. We must too, consider this case as if a sufficient bond, with ample security had been taken every year, for the omission of the commonwealth to take bonds in other years, cannot operate to the disadvantage of these defendants. Then the question on which set of sureties the loss shall fall, is one between the sureties of different years only; to the commonwealth it is immaterial, for she is supposed to be amply secured against the loss, happen when it may; to Preston it is of no importance, for he is equally liable whenever the default occurred.

The issues between the parties were, what was the amount of money actually in the treasury when the bond of January 1819 was executed; what sums came to Preston's hands as Treasurer between that date, and his resignation; and what was disbursed in public expenditures. And the objection in the court below, was to the evidence by which the defendants sustained their defence. This was admitted to be the matter in issue, while it was held that the defendants were precluded from giving any evidence on the subject; precluded, because the treasury books are conclusive to shew what sum was in fact in the treasury; and being conclusive, no evidence shall be received to contradict them. Agreed; let the books be conclusive to shew what money was in fact in the treasury; then if they are conclusive in January 1819, they must be equally so in January 1820, and if they be, there is no default in the Treasurer to this day; his books shewed the money was in the treasury at the day of his resignation, as clearly as they could shew it, when he and the sureties executed the bond. They must be taken as conclusive throughout or not at all; always, or never. Counsel on the other side make them true or false to suit their convenience.

I say that before a Jury there is no evidence in itself necessarily conclusive; there is no evidence known to the law which you may not contradict, except in the case of estoppel: In every such case, the estoppel must be pleaded, even if it be matter of record. Even a judgment between the same parties on the matter in controversy must be pleaded by way of estoppel; and if they go to trial on the general issue, the judgment is not conclusive, but only evidence to be weighed by the jury, and they may find against the former verdict and judgment. ^b In the case before us, the very matter in issue was, were the accounts kept by the Treasurer correct? to say that these defendants cannot prove them to be incorrect, is directly to deny them the right of being heard in their defence: they have a right to plead matter which discharges them, but no right to prove it.

b Vooght v. Winch, 2 Barne. & Ald. 662; Chew v. Moffet, 6 Munf. 120.

The bond is prospective in its terms, and its obligation, as understood by all parties at the time. Yet the construction on the other side, makes one bond extinguish all the preceding bonds; and imposes on sureties who bound themselves to make good any deficiency happening in the year during which they were sureties, the burthen of all deficiencies past, present, and to come, until another bond should be executed. Suppose this issue had been made up between the sureties of 1818 and 1819, could the sureties of 1818 rely on the subsequent bond as an extinguishment, and thus discharge themselves from a deficiency admitted to have happened in 1818? or suppose the commonwealth had made this motion on the bond of 1818, could the sureties have urged in their defence, that a bond was taken for the subsequent year, and therefore they were discharged? Yet the sureties of both years cannot be liable for the same default, and if a motion could be sustained against the sureties in the year in which the wrong was done, it is clear that it could not against those of a subsequent year, who undertook to indemnify against future losses only. If these defendants be liable at all, they were on the instant they executed the bond, before the ink with which they signed it was dry; before the key of the treasury was delivered to John Preston, the commonwealth might have recovered from these defendants the whole amount of his past peculation; thousands of dollars which he had plundered before they ever saw him, would thus be made to come to his hands in virtue of his office, after their execution of this fatal bond. Little has been offered by way of argument to support this doctrine at once novel, and repugnant to every sense of justice, and every principle of reason. And as to authority, after a winter's search through the volumes of law without number, only two cases have been mentioned as bearing at all upon the question. And truly one would think that those two cases had been cited rather in anticipation of their being used as authorities for us, than from any expectation they can avail the counsel on the other side. In the case of Ingraham v. Maine Bank, ^c Chief Justice Parker expressly limits the right of the bank to recover against the sureties, to misconduct happening after the execution of the bond, a principal which we have never controverted. In that case, the money was misapplied by the Cashier for whose good conduct the bond was conditioned, after the execution of the bond, and before the removal of the Cashier: The case might be an authority on a motion against the sureties of 1818, and so far is a case, against the counsel who has used it on this motion. The commonwealth v. Baynton, ^d was the other case referred to by the counsel who has opened the cause: and the court expressly directed the jury, to confine the responsibility of the sureties to the deficit occurring during the year ensuing the date of the bond, a case directly in point against every position urged on the other side.

c 13 Mass. 208.

d 4 Dall. 282.

Robertson, Attorney General, for the appellant.

The admission of the 2d plea was contrary to the usual practice, for whatever could have been proved under the second, would have been equally available under the first plea. Pleading the same matter over, tends to prolixity and confusion.

2d. The certified copy of the deed recorded on the acknowledgment of the party, was admissible evidence. This was the law of England prior to the statute of Anne. ^e Lord Holt says in the case referred to in Comberback, that the enrolment being on the acknowledgment of the party cannot be denied. The statute of Anne was enacted, to obviate a technical objection in pleading. Before its passage, whenever a deed was used to defeat an estate set up, the deed was pleaded with a profert, ^f and the original was necessary. The statute dispensed with the profert of the original, and allowed the copy in its stead.

e Viner, " Inrolment" B. Pl. 4, 1 Vern. 228; Viner, " Evidence," A. b. 43, pl. 3, 4; Phil. Ev. 352; Gilb. 86.

f Co. Lit. B. 3, § 365.

Generally, where an officer is charged by law with the safe keeping of public papers and documents, copies certified by him are evidence: thus in cases of the poll at an election. ^g In Rowletts v. Daniel, already cited, a copy was admitted without proving the original lost. There are many analogous cases in support of the principle. ^h

g 1 Stran. 307.

h 1 Call. 117; 2 Dall. 332; 1 Taunt. 104.

This copy should have been admitted on the circumstances under which it was offered. It is a sworn copy, recorded on the acknowledgment of the grantor, and the original was traced to F. Preston, who acted under it, who had notice to produce it, who was offered time for its production, and who would give no explicit answer as to what course he would pursue. His conduct was calculated to ensnare his adversary, and courts of justice will not sanction such proceedings: it waived the necessity of notice. Then he could not say whether the original was in existence, and the copy was admissible on the ground that the original was lost.

It is urged that the deed could be of no avail because executed after the privity between Preston and his sureties ceased, and the cases of acknowledgments by partners after the connection is dissolved have been cited. The principle even as to partners has been ruled differently in Massachusetts. ⁱ

i 1 Gall. 631. See also, 1 Taunt. 104.

It is also said that the deed if admitted could not have altered the result of the case. The argument requires that the court should weigh the effect of evidence which is the province of the jury.

3d. Treasurer Baker had a right to apply the money paid over by Preston to the extinguishment of any previous debt due by Preston. I admit that the money in the treasury vaults passed to Baker in virtue of his office, but that in the banks was Preston's money; it would have passed to his personal representatives on his death. If not, the commonwealth might follow the specific money into whatever hands it might come. On general principles, Preston and these sureties must pay up the deficiency as it stood when he was called to account and failed. ^k And Preston having taken a receipt from his successor for the money on hand, without directing the manner of applying it, Baker may apply it to the discharge of any debt due by Preston to the commonwealth.

k The King v. Taylor, 2 Leach, 974; 1 Cranch, 117.

4th. Preston and his sureties cannot falsify the books, and annual reports of the treasurer; they are conclusive to shew that when made, the sums they allege to be on hand, are so in fact. We are told that there is no evidence in itself conclusive of any thing; that there is no estoppel in law, without its being pleaded. I had supposed the contrary: one cannot allege his own turpitude; a tenant cannot deny his lessor's title; one cohabiting with a woman in an action for necessaries furnished her, cannot deny that she is his wife. The cases cited to prove that there can be no estoppel without being pleaded, shew only, that one may waive an estoppel, as he may any other advantage. Shelton v. Barbour, ^l and Pegram v. Isabell, ^m were cases in which the party was held to be stopped from denying a particular fact, because particular evidence offered of it, was conclusive, and yet the estoppel was not pleaded. How could the treasury books be pleaded as an estoppel? it was impossible.

l 2 Wash. (VA) 64.

m 2 Hen. & M. 193.

That our argument would make each bond extinguish all given in the preceding years, is not a fair deduction from our principle; for we hold the proof shews the default happened in the year the bond was executed on which this motion was made. And the case I have cited from each proves, that in law the default is considered to have happened when the party fails to account. And whenever the default happened, Preston when he rendered his accounts in January 1819 and executed this bond, made his election to abide by the books and his report; and his sureties are equally bound with him to stand to the election. He cannot now allege that they are false, and that he practised a fraud; if he cannot, neither can his sureties: no evidence is admissible as to one, which would not be for the other. That his reports, and books conclude him, the case of Moody v. Thruston, ⁿ unequivocally proves: there it was not allowed to contradict the certificate of the army commissioners.

n 1 Stran. 481.

Leigh, for the appellees.

Before I enter on the consideration of the admissibilty of the office copy of the deed, I beg to recall to the attention of the court, the circumstances under which it was offered. It was a deed executed by John Preston after the expiration of his office: it does not recite when the default in the treasurer occurred, but only that it was apprehended, that loss might accrue to the sureties by some default recently incurred: the commonwealth itself, and not the sureties, is the immediate cestui que trust; it is executed by Preston and wife only, not by the sureties; recorded on acknowledgment, before Justices, by Preston and wife; never as to the sureties recorded any where, and not one of them is proved ever to have claimed any benefit under it. Under these circumstances I say, that the original itself would have been no evidence against these defendants, on the issue joined. For all privity had ceased between Preston and his sureties; and Rootes v. Wellford, ^o and Shelton v. Cocke, Crawford & Co. ^p prove, that the privity may cease even between principals; and that when once dissolved, no act of one party can be of any force as to the other. I shall not stop to inquire whether this principle so often recognised and reiterated by this court, be contradicted by the cases referred to by the Attorney General in Gallison and Taunton. It is not in the power of the courts whose decisions are relied on, to reverse principles so well established, and on the best reasons by this court.

o 4 Munf. 215.

p 3 Munf. 191.

This deed contains no recital which could possibly prejudice the sureties, and if it had, it could not be used against them, for the recital in a deed can be used only against the party makig it. ^q It is the sealing and delivery which constitute the deed, and it was not in the power of Preston or the commonweath, to make these defendants parties or privies to any transactions between them, without their concurrence. If Preston had confessed a judgment for the whole amount claimed, will any one pretend his sureties would have been bound by his confession of judgment? No, they are bound by the bond alone, and for acts within the penalty of the bond, done while its condition was in force.

q Burleigh v. Stibbs, 5 Term Rep. 465

We are reminded that the trustees acted under this deed. Be it so; they were not trustees of these defendants, but of Preston; and if he could not prejudice his sureties by acts done after the privity ceased, neither can his trustees or agents. The money which it is said one of the defendants has received from the trust fund, does not appear on this record to have been so received, nor that he knew from whence it came; and if all this had appeared, a surety who got the money would have been morally justifiable, and legally entitled to hold it: a chancellor would have protected his possession. The deed shews, that the sureties did not know in what year the default happened; alarmed at the unexpected detection of the dishonesty of their principal, they endeavoured to make themselves safe, by securing to the commonwealth the payment of the deficiency whenever it might have happened; and this precaution of common prudence is converted into evidence of their knowledge of the time when the peculation was committed. They have attempted to protect themselves from ruin, and that very act shall destroy them.

If the original would have been admissible evidence, it then becomes a question, whether this copy was. The general rule is admitted to be, that the best evidence of the fact to be proved, shall alone be received. ^r And the copy is the best, because the original was lost, says the attorney. What proof is there of this fact? F. Preston was not entitled to the custody of this paper; he had received it but for a moment, with the very purpose of delivering it to another; he had not possession of it, when the notice was given, he had no reason to believe it was lost, he does not assert it, but the contrary; and yet the copy is to be received because the original no longer existed, or could not be procured. Before a deed is presumed to be lost, some inquiry must be made after it, of those entitled to the possession. In this case, the clerks of the counties where the land lay, were the proper persons to whom to apply; and a subpoena duces tecum to whoever of them had it, would have produced it. Suppose however, F. Preston had possession of the deed, the notice to produce it must be reasonable. Was notice after the jury was sworn, requiring the production of a paper three hundred miles off reasonable? The counsel however offered to continue the cause, and wait for its production; offered to whom? to the opposite counsel. If they were unprepared in their case, they should have asked a continuance as matter of right and justice; they cannot complain in this court, that either the parties or the counsel below, would not accept a proposition disadvantageous to them. They could not require of F. Preston the concession of any legal right.

r Peake, 97.

I know that in England, the inspeximus of the clerk makes the copy of equal validity, even in evidence with the original. But it is by the express provision of the statute of Anne. The cases to which we have been referred in Gilbert ^s and Coke, ^t are only illustrations of the different kinds of inrolment, they do not prove that the copy of an inrolled deed was admissible evidence of its contents. And those in Styles, ^u and Keble were of ancient deeds, which is altogether on a different principle from that now under discussion. The case of Smartle v. Williams so much relied on, was also an ancient deed; one recorded on the acknowledgment of the grantor, which could not therefore be altered as this might, between the acknowledgment and inrolment; and Judge Buller doubts the authority of that case, as will be seen by the passage in his Nisi Prius already referred to. The deed in question, was acknowledged before justices in the country, and may have been altered after it was acknowledged, and before it was recorded; the clerk therefore cannot certify that it is a true copy of the deed, as it was acknowledged. Suppose on the production of the original, all the material part was interlined, or interpolated, in another hand, and it could be proved, that it was added after the certificate of acknowledgment; could it be pretended that the certified copy would prove the execution of a deed, which is expressly shewn never to have been executed? What is as good evidence as another matter, is a subject of sound reason and discretion; and it is clear, that the original is better evidence than the certified copy, because it shews any alteration made upon its face.

s Gilb. ev. 16.

t 5 Coke, Rep. 54.

u Stvles, 445; Keble, 117.

I have said Smartle v. Williams, was the case of an ancient deed; the case as reported in Levinz ^v shews it was 35 or 6 years old, and Justice Bayley mentions, that circumstance in the case of Tinkler v. Walpole. ^w That ancient deeds are admitted on a wholly different principle is proved by the cases cited in Bacon's abridgment. ^x The case in Styles was decided on this principle: so was that of Rowletts v. Daniel in this court; and Lee v. Tapscott ^y long before. But taking the law to be as laid down by Gilbert, the copy is still inadmissible in Virginia, because the deed does not derive its efficacy from the inrolment. In England by the statute of Hen. VIII., the estate does not pass without inrolment; and Gilbert says, " where the deed needs inrolment & c." By our laws though deeds not recorded, are void as to creditors and subsequent purchasers without notice, they are valid between the parties and pass the whole estate on delivery, whether recorded or not. Gilbert says too, that an officer being appointed to take care of deeds, to preserve and authenticate them, his certified copies are admissible evidence. Our law gives no power to the clerk to certify copies, nor has it attached any weight to his certificate. The word " record" in our act, means no more than that the clerk shall register the deed; it does not when registered make it matter of record, in the sense in which records are spoken of as conclusive. The case from Vernon mentioned by the Attorney General, as cited in Viner, was of a lost deed, which has no bearing on this case. The act of Anne under which copies are admitted in England, has never been incorporated into our code. Nor have we any analogous acts, but those allowing copies of patents certified by the Register, and of wills certified by the clerks (who cannot deliver out the original,) to be given in evidence, and to be used for every purpose as of equal validity with the original.

v 387.

w 14 East. 230; 2 Taunt. 5.

x 2 Bac. abr. 646; " Evidence," F.

y 2 Wash. (VA) 276.

The practice of the country which has been urged for admitting the copy, is nothing but a rule of convenience adopted by counsel, the dispute in almost every case, not being as to the genuineness of the deed, but its legal effect. The practice wherever the question has been made within my knowledge, has been to reject the copy. But if it was otherwise, one of the important duties of this court, is to correct and reform illegal and erroneous practices. Tompkies v. Downman was a decision made for the very purpose of correcting a universal error in practice. And practice can no more abrogate the laws of evidence than any other part of our jurisprudence.

This deed is certified by but one clerk, and to make the case analogous to the doctrine of Gilbert as expounded on the other side, the copy is not admissible until the original has been recorded by the clerk of each county in which any portion of the land lies.

The argument on the propriety of admitting the 2d plea is not given, because the point seemed virtually abandoned by the opposite counsel, as the 3d plea was surrendered by the appellee's counsel, who cited Stuart v. Lee ^z as the precedent on which it was framed.

z 3 Call 422.

2d. I come now to the principal point on the merits of the cause: are the books and reports of the late Treasurer conclusive, to shew the default occurred in 1819? The decision of this question, will affect only the $ 83,000 claimed to be due on the books, and not the other sums which are charged to Preston and his sureties on other evidence. The case stated shews, that there was on every day for many months preceding the execution of this bond, a greater deficiency in the treasury, than the whole amount claimed on this motion.

First, are Preston's books prior to the execution of this bond, conclusive against these defendants to prove any thing whatever? The books do not profess to shew what was in the treasury, or what ought to have been in it, at the time of the execution of the bond, but on the 1st day of October preceding it. The books then could not shew any embezzlement made between October 1818, and Jan. 1819. The doctrine maintained on the other side might establish a privity between Preston and these sureties before they ever saw or heard of him, and had he been many years in office, even before they were born.

The reports of the committees of the legislature are known by the rules of legislative bodies never to be concurred in by either house. And if they were, there is no principle of evidence on which they could be held conclusive. It is said they are part of the res gestae; but between whom? not between these defendants and any body. In all the passages referred to in Philips, and Gilbert, on the conclusiveness of public documents, there is but one case in which any of them are held to be conclusive of any thing. That is the registry of a ship, which by Act of Parliament, as in this country by Act of Congress, are conclusive of want of title, in all persons not named in the register. Even there, it is not conclusive of title. The resolution of a legislative body, is conclusive when properly authenticated, that such a resolution has passed; but it is not conclusive of any fact asserted in it. If it were conclusive, the resolution in this case would prove beyond contradiction, that there was no default in Preston, and he would be discharged. It is not conclusive as to Preston himself, for it is not a record, neither is it under seal. It is only parol evidence, and there is no parol evidence which may not be contradicted. ^a

a Peake 24; Note v. Phil. 74, a 80.

Admit for the sake of argument, that the books and reports are conclusive: they can be so only of what they assert, and not of that which they do not assert. They acknowledge then, that there ought to have been a given balance in the hands of the Treasurer when the bond was executed. They no where profess that the balance was in fact in his hands. Against Preston, they might be conclusive of the fact to the Jury; but that would be for the Jury to decide.

The question is not between Baker and Preston, but Preston's sureties, who stand on quite different ground from him: he has made default, but his failure to defend himself, cannot prejudice them. Whether Preston knew his default or not, cannot injure the defendants. He had every motive of interest, of honour, and of shame, to conceal the fact, of the embezzlement. Whatever efforts he might make to do so, could not change the liabilities of the sureties, nor alter the date at which the default actually occurred.

We are told, that the law has prescribed the method of keeping these books, and that we ought not to be allowed to falsify them. We do not falsify them; they do not purport to shew the money actually in the treasury, but only the balance which ought to have been there. We wish to prove that the balance which ought to have been there, in fact was not. The books then may be true, and our evidence true also: there is then no falsification. The mode of keeping the books prescribed by the act, renders it impossible that the embezzlement should appear on their face. The Treasurer can neither enter a debit, nor a credit, without the auditor's warrant, or a special act of assembly.

I repeat, that there is no evidence conclusive of any thing, unless it be pleaded as an estoppel: and estoppels are odious in law. Yes, we are told that there are estoppel in pais. True. But they must be pleaded; and if they be offered as evidence without being pleaded as estoppels, not only may they be contradicted, but Juries may find against them. But if Preston had entered on these books " so much money embezzled in 1819" either the Commonwealth, or he, or his sureties might shew it was an untrue entry, on this issue. For an estoppel must be pleaded, and must conclude with demanding judgment whether the party shall be permitted to deny the matter pleaded. ^b The cases of cohabitation, & c., mentioned by the Attorney General, prove nothing more than that when a party has fully made out his case in a court of justice, the other side shall not deny the law applicable to the facts. We learn from Lord Coke, that every estoppel must be reciprocal, ^c and here it is not pretended that the Commonwealth is estopped from contradicting these books.

b 1 Saund. 325. n 4.

c Co. Lit. 352, b.

The case principally relied on by the other side, to prove the conclusiveness of the treasury books, is Moody v. Thruston. ^d That was a settlement of claims by the army commissioners appointed under a statute for the purpose of adjusting such disputes, and stands in every respect, on the same foundation with the judgment of a court; as the certificate of our commissioners on preemption rights, does under our land law. And this court has held such certificate to be conclusive even on infants, from the provisions of the statute. But are Preston's entries the records of a court?

d 1 Sran. 481.

The law of evidence consists of a number of rules founded in reason, and designed to ascertain the truth. This is the first attempt that ever was made, to set up title to property on the single ground of a rule of evidence, and it is in effect done, by the Commonwealth: for the Commonwealth admits, these sureties are not bound for this money by the letter or tenor of the bond, but in virtue of the nature of these books as matter of evidence, taken in conjunction with the bond. That Preston's manner of keeping these books was an election by him to hold the money which had been misapplied, in his character of Treasurer. But an election to hold, what was already gone, and what it was impossible he could hold, is to my mind unintelligible. The consequences of this doctrine are too preposterous to be law. If by intendment of law the money shall be held to be in fact in the treasury when the bond was executed, when it certainly is not there, then these sureties were bound for all past transgressions on the moment of signing the bond, before Preston had done a single act in virtue of his office. The express obligation of the bond is altered and inverted, and " monies which shall come to his hands" means, monies which came to his hands and have been passed away years ago.

The idea that the embezzlement is complete only when the Treasurer fails to account, converts the Treasurer of Virginia into a farmer general of the revenue, and exposes the finances of the country to the casualties of individual solvency. The definition of embezzlement is derived from the Roman law, ^e and includes every case of a fraudulent or illegal withdrawal of the public treasure, by the officer to whose custody it is confided. Our statute of 1819 making it a felony, has defined it in the same manner. If the banks had totally failed, can it be pretended that the loss would have fallen on Preston? when he is expressly directed by law to deposit the public treasure in the banks.

e Peculatus eos punit, qui publicam pecuniam furati fuerint. Sed siquidem ipsi Judices tempore administrationis publicas pecunias subtraxerint, & c. Inst. 4, tit. 18, § 9. See also 9 Cod. tit. 28. --Edition 1821.

The doctrine of application is clearly laid down in Hill v. Southerland's Executor, ^f and is too well settled to need argument. The plaintiff cannot make the application at the trial, so as to affect the liability of the several sureties.

f 1 Wash. (VA) 133.

Wickham for the appellees.

The first reason assigned for reversing the judgment is, that the 2d plea is the same with the first. Grant for the sake of the argument, that they are identical; this court will not reverse a judgment because the same plea is twice copied into the record. It may have been error to admit it, but it was an error which prejudiced no one, and this court will not take notice of it.

2. The office copy of the deed should have been received in evidence, because it is the common usage of the country, we are told. I do not know who can better judge of the usages of our courts of justice, than the Judges of the general court; they have decided against this pretended usage. We all know how many usages are common in practice for the convenience of the profession, which are not in conformity to law. Gentlemen waive the law, but that by no means proves what the law is, for others who insist on their strict legal rights. It is every day's practice to allow Executors who have qualified in other states to sue and to recover judgment in Virginia, without producing their letters testamentary. Yet if any gentleman chose to call for them by oyer, they must be produced. Letters of Attorney are never called for, though they too may be demanded, and if demanded must be produced.

I repeat, that the original deed would not have been admissible on the issue joined. The general court very properly rejected the deed without giving reasons for the judgment; it may have been because it was a copy, or because it was not legal evidence from some other principle. All privity had ceased between Preston and his sureties, and the cases already cited shew, that no act done by him could prejudice them. The doctrine was very fully discussed in the case of Shelton v. Cocke, Crawford & Co.; was settled by this court on the soundest principles, and cannot now be disturbed.

This deed would not conclude John Preston himself; every thing in it pertinent to this issue is the recital, and Lord Coke ^g tells us " neither doth a recital conclude, because no direct affirmation." This court has decided, that a declaration reciting the fact, without a positive averment is vicious: and surely this recital in a deed to which the defendants are not parties, cannot conclude them.

g Co. Lit. 352 b, where the whole doctrine of Estoppel will be found. --Edition 1821.

It is said the defendants claim under this deed. It is shewn that F. Preston had once possession of the deed, and that B. Peyton had received part of the money raised by the sale of some of the property. Neither of these acts can affect the other defendants, who have not delegated a power either to John Preston or his suretes, to bind them. Nothing is evidence as to one of the defendants, which is not against them all. The judgment must be against all or none of the defendants. The original deed therefore could not have been admitted. I will not argue the point as to the copy, because it is a fortiori inadmissible, for the reasons given, and because the notice was wholly insufficient, to entitle the party to use it as secondary evidence.

In all the cases cited, to shew that a certified office copy is of equal validity with the original, the question was as to the title of the land, and the execution of the deed. This on the contrary is the mere recital of collateral matter, not necessary to the validity of the deed.

It is urged on the other side, that the evidence contained in the deed was of great moment. Any argument on the weight of evidence addressed to a court is irregular. To weigh evidence is the peculiar province of the jury, to the court it is coram non judice.

2d. The argument of the Commonwealth's counsel shews, that there is no treasury in Virginia; the treasurer may keep the public money where he pleases; he may lend it out; or speculate with it, without being guilty of a default. The act directing him peremptorily to deposit it in bank, is merely directory; and what is more, he is at liberty to disobey the direction. But this is not the law. The Treasurer must deposit the treasure in bank; and to appropriate any portion of it to his own use, is at once a conversion. It is a mistake in law to suppose the public treasure in bank would go to the Treasurer's executor, were he to die: it would pass to his successor in virtue of his office. 3d. The point most insisted on is, that we shall not be heard to contradict the treasury books, and annual reports. We only ask gentlemen to take the books as true or false. They may have them which they will, if they only stand to their election: we only pray that they may not be considered both true and false, according to the pleasure of the counsel. If they be false, surely we may be allowed to assert the truth in opposition to what is admitted to be false. If they be true, there is no default now; for they assert the money to have been in the treasury when Preston resigned his office, as positively as they had asserted it, at any prior time. But from the very nature of these books nothing can appear on their face, but legal credits, and charges; there is no entry on them, there can be none, of monies embezzled, or when, or how, or by whom converted.

Something is said of Preston's not being allowed to allege his own turpitude. This is a very vague and undefined doctrine, the application of which to the present case I do not precisely understand. ^[*] But I am sure, there is no principle of law which can authorise the Commonwealth to select on which of half a dozen sets of sureties this loss shall fall. It is clear, a recovery may be had on the bond in force when the default occurred. Once depart from that plain principle, and we are at sea; once leave the bond on which the legal remedy is clear, and we cannot tell on whom the loss may be fixed. But Preston proves that when he is charged with this default, he was innocent; and this is called alleging his turpitude.

These sureties were misled by the culpable supineness of the officers of government. Had the committees of the executive done their duty, this default could never have happened; had the committee of the legislature, as it ought to have done, insisted on a count, these sureties would never have executed this bond. Instead of doing this, the committee went aside from the ordinary path of its duty, to pay a compliment to the zeal and integrity of the Treasurer; and relying on the faith of government these sureties have been deceived, betrayed, and should the doctrine contended for by the Commonwealth be sustained, will be ruined.

Barbour concluded for the appellant.

The question of the admissibility of the deed has been argued both on the ground of its being primary, and secondary evidence. I shall also consider it in those two aspects.

1. The copy of a deed recorded on the acknowledgment of the grantor is admissible per se, against him and all claiming under him. ^h There was an enrolment at common law for safe keeping; which created an estoppel, and after it, the party could not plead non est factum: and the reasons which in ordinary cases require the production of the original, cease to exist in a case like this. In ordinary cases non est factum might be pleaded; and when pleaded, the subscribing witness is called to prove the execution, because it is supposed he knows more of the facts than any other person. But if non est factum could not be pleaded at common law to an inrolled deed, why should the office copy be inadmissible evidence? what purpose can the refusal serve, when the party himself cannot deny by a plea, that it is his deed? The inrolment then not only proves he made a deed; but that this is the very deed.

h 14 Viner 444, B. pl. 2; Com. Dig. " Evidence" B. 2; Jacobs L. D. " Inrolment."

The other ground for refusing a copy in ordinary cases is, that the failure to offer the original implies, that there is a difference between the copy and the original, unfavorable to the party offering the copy. But is there any ground in this case for such a presumption? If the evidence of the officer could prove the original if produced, why not that the copy is true? This doctrine was established in the case of Smartle v. Williams; ⁱ and the bargainor and those claiming under him were estopped. This case was adjudged before the statute of Anne; and the antiquity of the deed, now used to distinguish that case from this, was not relied on by the court, which proceeded on the ground of its being an inrolled deed. Peake ^k in laying down the law as to ancient deeds, observes that if the deed be erased or interlined, the ordinary evidence in such cases will be required. Plainly shewing, that the original itself is produced in such cases. Besides, you must learn even the antiquity by the copy, which presupposes the copy to be admissible. (The counsel on the other side said, " no, the antiquity appears from the date of the clerk's certificate." ) It is urged that this doctrine is questioned by Buller; but he does not question, that the deed inrolled on the acknowledgment of the bargainor, is evidence against him.

i 1 Salk. 208.

k Peake's Ev. 110.

In England, the officer for the safe keeping of deeds is not appointed to do it by the express words of the statute, but by its legal operation; so it is in Virginia. In England too it is said, the estate passes by virtue of the inrolment, and cannot pass without it. So it does here, as to creditors and subsequent purchasers without notice. There is the same confidence reposed in the officer charged with the safe custody, here as in England; and that is the ground for admitting the copy in both countries. It is objected that in England the deed is inrolled only on acknowledgment in court; and here it is on the certificate of acknowledgment before justices. The statute of 27 Hen. VIII. c. 16, provides for the inrolment of deeds on acknowledgment before two justices, and the custos rotuorum. In Virginia, magistrates are supposed to deliver the deed and certificate under seal, which is a sufficient precaution to prevent forgeries after execution. But there are many cases in England in which the copy was admitted, where no inrolment was required by the statute. ^l And where the deed does need inrolment (as this does as to creditors and subsequent purchasers without notice,) it is when inrolled, a record: and if a record, there is an end of the dispute. The language of our statute is that " deeds shall be admitted to record" & c., and the expression to be " entered of record" makes the entry when made a record. ^m And generally the copy of any original document of a public nature is admissible evidence: ⁿ as the sworn copy of a church register: and a copy certified by a sworn officer charged with the custody, is better evidence than an ordinary sworn copy. The case cited from 14 East, is a mere dictum of the Judge, and not an adjudication.

l 5 T. R. 465; 7 East, 363; 1 L'd. Raym. 746.

m Dougl. 593. The copy of a manifest is admitted; the act of Congress directing it to be " recorded," 4 Dall. 415. --Edition 1821.

n 3 Salk. 154; 1 M'Nal. Ev. 355.

The statute of Anne made no other alteration of the common law, than to dispense with the production of the original when it was pleaded with a profert. The commonwealth is a stranger to the deed, and was not obliged to make profert. And since the case of Read v. Brookman, ^o a deed may be declared on without profert: still if profert be made, the deed must be produced. The dictum of Sir James Mansfield in the case cited in 5 Taunton, is directly contrary to the statute of Anne. But surely as much faith is due to copies certified by our clerks to be true, as to transcripts from the books of the India company in England; and they are admitted in evidence.

o 3 T. Rep. 151.

2. The deed should have been received as secondary evidence. This court will control the practice of all inferior courts. ^p And giving notice to produce originals to let in secondary proof, is of modern date. Morgan states the practice with a quaere whether it be necessary. Philips ^q lays down the law to be, that a counterpart may be given in evidence without notice; yet he places counterparts under the head of secondary evidence. And where the deed is in court, notice for its production is not necessary. ^r The inconvenience of the course it is said we should have taken, would be great. To send subpoenas duces tecum to many clerks of the remotest counties in the state, could never be intended by the statute, to be required. In the case of Maxwell v. Light ^s the court would have allowed the copy in evidence, if the original had been duly recorded.

p 1 Wash. (VA) 322; 4 Call 447.

q Phil. Ev. 339-40.

r 4 Burr. 2484.

s 1 Call 117.

Preston v. Harvie and Falcon v. Harris, are cited to shew, that this court will not reverse a judgment for an immaterial error. But in both cases, the error committed in the inferior court, if there was any, was to the advantage of the appellant. That is not the case here. The error was injurious to the appellant. The recital of the deed would have operated to the disadvantage of Preston, and neither he nor his sureties could have contradicted the recital. ^t It is said that if all the defendants were not bound by the recital, and the acts done, none were. To support the contrary position I refer to Geddy v. Butler, ^u and Nelson v. Burwell. ^v A bill of exceptions is not a demurrer to evidence. There was in this case other evidence than that spread upon the record, and we may presume any thing to have been proved, which might have been proved. It may have been shewn that the deed was made at the instance of all the defendants and that all of them acted under it. The defendants cannot claim under the deed, and evade the operation of any part of it; they have elected to abide by it, and they must take it, throughout.

t Comyn's " Evidence" B. 5; 1 Salk. 285; Willes, 911, 25.

u 3 Munf. 345.

v 4 Munf. 332. Both were cases of several executors, some of whom refused to act. --Edition 1821.

3. We insist that whenever the default occurred, treasurer Baker had a right to apply the monies received by him of J. Preston, to its extinguishment. The general court said no, it was the commonwealth's money; and it could not be applied to the payment of a debt due by Preston. There is however no particular date fixed, at which it is said this money came to hand. If it was received in 1818, it is conceded that it may be applied to extinguish the default of that year. But suppose it to be the commonwealth's money. Had it not a right to apply its own money as it pleased? And if it applied the money to the discharge of the last bond, the presumption would arise that the first was paid. ^w In common prudence then, she ought to apply the money to extinguish the debt first due.

w Phil. Ev. 113; 3 Bl. Com. 171.

4. I come now to the main question on the merits, and insist that no evidence can be received to contradict the treasury books. If they be conclusive of what money shall be considered to be on hand at the time the bond was executed, I care not, as to the manner in which they are so; whether by estoppel, or because of such weight, that no counter evidence shall be heard. It is alleged on the other side, that matter of estoppel must be pleaded; and that there is no evidence in itself conclusive before a jury, as evidence. ^x But I hold, that whatever may be given in evidence on the general issue need not be pleaded; and that there are many matters conclusive on such issue, without being pleaded; I will only refer to the authorities. ^y There are cases in which certain matters are conclusive before the jury on the general issue: judgment in ejectment is conclusive in an action for mesne profits: so an acquittance for rent due at a subsequent time to that now demanded, is conclusive to shew, that the prior rent had been paid; and no proof shall be admitted to the contrary. ^z In Chew v. Moffet, ^a the defendant pleaded, that the bond was obtained by false suggestions, misrepresentations & c., the plaintiff rejoined, that there was no fraud in obtaining it; and this court held, that the plaintiff having joined issue, instead of demurring to the plea, had let in the proof of fraud, and was concluded by the verdict: but fraud in obtaining the document used as estoppel, is a fair question for a jury to decide.

x For this was cited 2 Barnew. & Ald. 682; 6 Munf. 120.

y Phil. Ev. 224; 2 Burr. 666; 5 Esp. 57; 3 Burr. 1353; 1 Salk. 276; 7 Cranch. 565.

z 3 Blac. Com. 371.

a 6 Munf. 120.

If we have a right to rely on the conclusive character of these books, I hold that they are conclusive. The statute requires that the treasurer shall in " books provided at public expense," keep his accounts & c., the treasurer is not only a high public officer, but he is a sworn officer. Now in the case of a record, it is allowed to be used as estoppel from the confidence reposed in the court in which it is recorded. In matter in pais the naked fact itself is an estoppel; in matter of deed it is because of the solemnity of the instrument; and it is a general rule of law, that no one shall be allowed to allege contraries. The legislature in this case could never have intended that the finances of government should depend on parol evidence, in its nature frail, perishable, and uncertain. It gave to these books the dignity and character of records, or quasi records. Then the treasurer is a sworn officer; what he has once asserted on oath, he should never be allowed to deny. A sheriff cannot deny the truth of his return. If Preston be concluded by these books, so are his sureties; for whatever binds him, is obligatory on them. ^b

b 1 Wash. (VA) 31.

Preston should have made up his annual report before he resigned; his failure to do so, is itself a default. He should not place his sureties in a better situation by making no report; which would be to amend one fault by another.

Counsel tell us that Preston does not falsify the books; that the books do not shew the money actually on hand. But our argument is, that the books shewing the money ought to be in the treasury, it is not for Preston to aver, it was not there. It ought to have been there, and if it was not, he and they must take the consequences.

It is argued too, that the books are true throughout or not at all; and if true there is no default to this day. That would be to allow Preston to discharge himself and sureties, by keeping the books falsely throughout. We do not object to its being shewn what is the actual default of Preston, but to the mode by which he seeks to prove it.

The defence is that there was a greater default in 1818 than that now claimed. But the mere deposit of any portion of the public treasure in the individual name of John Preston, was no embezzlement. Nor does it any where appear, when or how this money was exhausted; he may after depositing it to his private credit, have disbursed it in public expenditures. The period at which this default is said notoriously to have happened; has become notorious by admitting illegal testimony. The consequences of the error, cannot cure it. And the actual count which is urged as the last and only security for the public treasure, may be rendered utterly unavailing by withdrawing the money after it is counted. Upon the whole, these sureties have embarked in the same vessel with their principal, and however hard their fortune, they must abide his destiny.

Before a special court of appeals, consisting of Spencer Roane, Robert White, Hugh Holmes, Peter Johnson, William Daniel, and George Parker. ^[*] White, Judge, dissented on one point, and delivered the following opinion.

OPINION

The following opinion of the court was delivered June 28th, 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. (Gilb. 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. (VA) 281, President Pendleton emphatically allowed a copy of a patent recorded in a county court to be evidence, and preferred it to a simple registration; for the important reason, that the clerk acts under the superintendence of a court of justice; which court would prevent 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 officers 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 of 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, 4th Munford 310; Turner v. Stip, 1 Wash. (VA) 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 evidence, has grown into a general usage in this country. But this point does not rest upon mere usage. It is as much 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, 1 Wash. (VA) 10, -- Jones v. Logwood, 1 Wash. (VA) 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 acknowledged, 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 provides 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, unless 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 by their confessions even up to the time of 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 thing 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 are 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 court 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, conflicting and contradictory testimony. It must, at least, be admitted, that such individuals may by common agreement, adopt those books as a standard in exclusion of all other evidence. The convenience, if not necessity, of such a criterion, in the case before us, is entirely manifest. If would be of vast inconvenience to open all of the innumerable 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, it 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 under 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 be regarded than the mere private accounts of private and unsworn individuals? If in the case of Moody v. Thruston, 1 Strange 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 certificate should be final: There is no difference between an act containing such a declaration, and one affected by principles, and containing provisions, which irresistibly compel us to come to a similar conclusion. --The establishment 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 v. 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, but 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 circumstance of having annexed a scroll thereto, much more ought the treasurer to be concluded in the case before us. Being a sworn officer he ought to be bound by books rendered under that sanction; he ought to be bound by 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 his sureties. If a judgment against him is to bind them, so also is the evidence on which that judgment is rendered. --In the case of Braxton executor of Claiborn v. Winslow and others, (1 Wash. (VA) 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, he 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 Atk. 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 over again at the instance of the sureties and that the case of the sureties is not at all better; " for as the verdict was found against the principal, who was the proper person to try it, it would be hard to have the same matter tried over again, in as many actions as the sureties please." We entirely concur in this reasoning. Sureties are not to be permitted to try over again, 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 part. 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 ought 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 therefor. 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 his acts. His entering into the office, and omitting to make a count, would be 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 former year, as a different person. At that time, also, John Preston either counted the money and as it were gave his 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 him, 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 be in the treasury 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 evidence 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 proved by the appellant to have been in the hands of one of the appellees, as it was not known by the appellant to be 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. It 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 said evidence to go to the Jury, is erroneous. The court is also of opinion, that the second motion of the appellant for the court to instruct the jury, that notwithstanding the facts proved by the appellees as aforesaid, the commonwealth was entitled to recover against them the said sum of $ 83,099 30 cents, (the deficit appearing on the 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 sums 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 to be 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 extinguishment 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 his credit as treasurer in bank, the payment being made with the same money in bank, which should have appeared to the credit of the commonwealth on the treasury books; --and that the judgment and instruction given to the jury, contrary to this position, is erroneous. --It is, therefore, the unanimous opinion of 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, but 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 be reversed 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 be 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.

DISSENT

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 account 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 obligation 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, and 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: $ 1,200,251 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 his 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 his 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 his 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 objected to. From these books 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, the sum of $ 333,297 7 more than had been disbursed for the public services; which money ought to have been in the public coffers, and the fair presumption from the face of 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 this 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 books 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 defendants on their part introduced evidence, calculated to satisfy the jury, (if proper to be submitted to them) that in fact this eloignment took place in the year 1818, and before the date of the defendant's 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 this 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 his duties, and such a case as the present had arisen between the employer, and Preston and his sureties for different 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 his sureties would be let in, to shew by evidence, the truth of the case. If this be not the 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 cannot 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 covenant against that act, in the case of the treasurer, than it would be in any other? If this be so, it must be, because the law has ordained it, from principles of public policy; and that is the ground taken. It is said, that the defendants are concluded, that is estopped, from proving by any evidence other than these books, that there is any mistake or error in them.

An estoppel is that which prevents one from shewing the truth and 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 estopped, 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 are 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.

c Ante 152.

I admit that these are public books, brought 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 be outweighed by direct and decisive testimony. But that they are to shut out, or were ever intended to shut out the daylight of truth, I 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 be 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, if the books transferred to the succeeding Treasurer, shewed a certain balance ought to be in the treasury, but 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 bound, I cannot admit.

If these books 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 lawful 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 be corrected, by granting a new trial. I do not see that the monstrous evils anticipated, will result from suffering the facts in cases affecting the public revenue to be 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 books work no estoppel as to the commonwealth; she may contradict the books. 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 be 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 in his defence; to produce his witnesses, and to have a fair and impartial trial on the merits of his cause. The commonwealth 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 recognize 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 no 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 executed the bond? 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 books, other cases may occur in which it would be 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 arrange my ideas, permitted, I am of opinion, that the judgment of the general court on this point was correct.

^[*]The words quoted by Lord Mansfield as from the civil law, in the case of Walton v. Shelly, 1 Term Rep. 300, " nemo allegans suam turpitudinem est audiendus," were frequently repeated in different stages of this cause: and there is no maxim of law which I have heard more often mentioned. They have been much insisted on by the English Judges in all the cases subsequent to Walton v. Shelly on the same subject; and are mainly relied on, by the courts both of Massachusetts, and New-York, in adopting the rule laid down in the case of Walton v. Shelly, rather than that of Jordaine v. Lashbrooke, 7 Term Rep. 601, by which the former decision has been overruled. The profession will be surprised to learn, after 35 years of universal acquiescence in the existence of the principle as a maxim of the Roman law, that there is no such rule in the whole Roman Code. It is true, that by the civil law, as by ours, a contract tainted with turpitude could not be asserted in a court of justice, " ex maleficio non oritur contractus; " this principle however, established nothing, as to the evidence on which such contract depended. The only rule of the civil law applicable to testimony, which has the least analogy to that cited by Lord Mansfield, will be found under the head " De Testibus," Dig. 22; tit. 5, 1 2. " In testimoniis autem dignitas, fides, mores, gravitas, examinanda est: et ideo testes qui adversus fidem suam testationis vacillant, audiendi non sunt." The words " audiendi non sunt," do not mean, that the witness shall not be heard; but that he shall not be regarded or credited; for the word " vacillant" implies that he is heard, and that all faith in his testimony is destroyed by the manner of his giving evidence, (vacillare a nonnullis dicitur qui haesitat in dicendo testimonio. Not. 19; Gothof. Corp. I. C) The contradiction or hesitation, of a witness who says nothing, is a solecism in language. This mistake of Lord Mansfield is the more remarkable, because twelve years before, in the case of Clarke v. Slee, Cowp. 199, he cited Bush v. Rawlins to prove, that one who had taken a bribe, was a competent witness in an action qui tam, to prove the bribery. And in the case then before the court, he held, that the witness (a clerk) was competent to prove, he had embezzled his employers' money, and had staked it on the chance of certain lottery tickets coming up prizes, contrary to the lottery act. Buller who was counsel said, " no one shall be admitted to prove his own turpitude," he cited no maxim or case however, and Lord Mansfield decided against his argument. --Note by the Reporter.

^[*]When commissions were about to be issued by the Clerk, for organizing the Special court, the ordinary court of Appeals directed the Clerk, to send a summons to every Judge capable of sitting in a special court of Appeals. The practice before had been, to suffer the party at whose instance a special court was called, to take out the summons.When the court above, was organized, and before its proceeding to act, Leigh made a question, whether the court was legally constituted; since Judge Brooke had withdrawn, without being interested in the matter, or under any permanent disability to sit; being unwell, and having a sick family. It was urged, that the law contemplated some durable impediment, and not a temporary incapacity, which might be obviated by a continuance of the cause. The motion being submitted, the Judges withdrew to the conference room to deliberate: after a few minutes they returned, and were unanimously of opinion, that the objection should be overruled, and that the court as constituted, should proceed to hear and determine the cause. --Edition 1821.