Opinion
October 1808.
A certificate of probate signed, though not officially, by a judge having authority to take probate of deeds, is sufficient authority for the registration; for the Court will take notice of the official character of the judge. [See Bennett v. State, M. Y. 135, where this case is cited. See editors note at end of this case, and Cooke, Appendix, No. 1.]
A copy of an entry signed in his individual name, without designating his official capacity in any way, and without giving the date of attestation, by a person once authorized by law to give conies of such entries, but whose authority soon ceased, is not receivable in evidence.
WHITESIDE, for the defendant, objected to the reading of this deed in evidence, because the probate does not state the official capacity of the person taking the acknowledgment, and relied upon former decisions of the Court, particularly commitments by justices of the peace. If the mittimus does not state the official capacity of the justice a person will be discharged.
HAYWOOD, for the defendants, the next day did not oppose the new trial upon the ground upon which the Court doubted, but insisted on the above authorities to prove that the Court had no power to grant a new trial at all.
The Court, upon the authorities collected in 6 Guil. ed. Bac. 656; 6 Term Rep. 619, 625, ordered a new trial as to John, and judgment to be entered in favor of James M'Night.
The plaintiff, in deducing his title, produced a deed, on the back of which was a, memorandum dated in the year 1793 in the following words: "this day came before me the bargainer, and acknowledged the execution of the within deed for the purposes expressed," signed "John M'Nairy," upon which the deed was registered in the proper county, and certified by the register.
Some years past an appeal was sent up from the County Court of Davidson; the transcript was headed "pleas, c., before, c.," expressing the court, the clerk signed his name thus "a copy,
ANDREW EWING."
The Court decided that this could not judicially prove that Andrew Ewing was clerk of Davidson county unless he had signed his name officially; upon suggestion of diminution a certiorari was allowed, and a correct record brought up. I am not disposed at this time to question the propriety of this decision, but it seems to me to border on nicety. In this case, however, the certificate of the clerk had not any date from which the Court could know that at the time of signing Andrew Ewing was clerk of the court or not.
In the case of Coulter's Lessee v. Hodge, at Knoxville, a copy of an entry signed "A. B., E. T." was received, though without date, and though the Court knew that A. B. had not been entry taker for a great length of time. The case of a mittimus by a justice of the peace does not apply.
The law seems to be, that this court may know officially all officers known to the laws of the State of whose appointment there is a record. Though we may know such officers, we are not bound to acquire this knowledge, nor in fact will the law presume it as to inferior officers.
Though we may know the respective officers in the State whose duties are pointed out by the laws, yet we may not know them. Hence an officer ought to state the character in which he does an act. When this is done, the law will presume he possesses the character he assumes. It is not absolutely necessary that an officer should state his official capacity; if in the body of the certificate facts are stated from which an incontrovertible presumption arises that the act was done in an official capacity, it seems to be sufficient. In this case the law of the State enables us to know that a judge of the Superior Court, out of court, was authorized to receive the acknowledgment of deeds for lands or probate by witnesses, and that such deeds thus authenticated were to be registered.
3 Binn. 539.
It is known to this court that John M'Nairy was a judge of the Superior Court at the time this acknowledgment was made, and we know it is his signature. A judge is to know the law of the land, why may he not know the official capacity of men pointed out by those laws, and of which there is a record? and why can he not state the one as well as the other when he does know it? When an officer states his official capacity, it is primâ facie evidence, and no instance is recollected, of such evidence having been disputed. Is not the knowledge of the judge in this respect at least equal to the primâ facie evidence referred to? It seems to me that it ought as to the capacity of officers known to the laws of the State, who are authorized to certify facts, to be on the same footing.
When officers intrusted by law with the discharge of certain duties, officially certify, their certificate respecting the discharge of those duties will be received in a court of justice without confirmatory proof.
The certificate of a private act cannot be received as evidence. It extends no further than to official acts. So of a judge, his knowledge of a fact would be inadmissible as primâ facie evidence, unless relating to his own, or the official existence or duties of others known to the laws of the State.
In this case it is not stated that the acknowledgment was received as judge, but as the act would be void if done as an individual, the law will presume the acknowledgment to have been taken in pursuance of the authority with which "John M'Nairy" was clothed at the time the act was done. The deed ought to be received as evidence.
3 Binn. 539.
The defendant offered to read a copy of an entry, signed thus: "A copy, Nathan Ewing." It was rejected by the Court, on the ground that there was no date to the copy. It was known to the Court that Nathan Ewing was intrusted by the Act of Assembly to give copies of the pre-emption
HUMPHREYS, J., upon the trial, was inclined to think that the absent defendant could not be found guilty; and, as this was an action of debt, the other must be acquitted.
Verdict for both defendants, and rule to show cause why a new trial should be granted which now came before the Court to be argued.
BARRY and WHITE argued for the new trial; their argument, in substance, was that the tax operated upon the firm; that in this case respecting licenses for stores among mercantile men but one license was necessary, though several might be in partnership. If the tax is avoided, it is an equal benefit to all concerned, and therefore all should be liable for the penalty. They considered the case in the view of a contract with the government under the terms expressed in the act. Whenever they procured their goods with a view of peddling they then agreed, if we sell we will either pay $25 and take out a license, or $100 if we do not; and the selling afterwards by one of the parties was the same thing as if both had sold. No higher evidence of a copartnership is necessary in this case than any other. Express proof by articles of copartnership is never required. Holding themselves out to the world as such is sufficient.
In the criminal code, it was not a new thing to consider absent persons under particular circumstances as guilty. In the highest criminal cases there may be accessories, who are always absent; for if present, aiding and assisting, they are principals. In trespass, as contradistinguished from felonies, all are principals; there can be no accessories, and absent persons may be aiding and assisting in a trespass as well as those present. These observations were made to put the case in the strongest point of view against them. This statute being made pro bono publico should not be construed strictly as penal statutes usually are. 4 Cun. ed. Bac. Ab. 649. It should receive an equitable construction for the good of the public. Suppose a pedler intrusts a slave to sell, is the State to have no remedy?
In this case the jury were misdirected by the Court, and for that cause there ought to be a new trial. 6 Guil. ed. Bac. 674, 675.
A few years ago Judge M'Nairy, when sitting in the Federal Court, granted a new trial, in a qui tam action between Sanders qui tam and Tipton, nor was this lightly done: it was after elaborate argument. A new trial was not only granted in that case, but an amendment allowed.
HAYWOOD, e contra. — This question must be considered under the ideas of criminal jurisprudence. It is impossible to charge the absent person as a partner. Partners in trade are liable upon the principles of contract, — which is never presumed as to crimes and misdemeanors. There is no proof that the absent person, James M'Night, assented to the violation of the penal law, and it never could have been the intention of the legislature to inflict a penalty upon an innocent person. The way to construe this law is to make every man liable for his own offences, and no further. In this war the other partners may be come at. It is. however, not material now to inquire whether the directions given by the Court were right or wrong; the jury have found the defendants not guilty, and a new trial cannot be granted in a penal action when the defendants have been acquitted.
Cowp. 37; Burr. 665; 1 Term Rep. 235; 2 Term Rep. 484; 4 Term Rep. 755; Cowp. 358; 1 Wil. 17, 329; 3 Wil. 59; Burr. 2257; 2 Str. 1238.
If one be rightfully acquitted and the other not a new trial will not be granted, which is precisely the case in Strange, 813. In this case there can be no doubt that James M'Night ought to have been acquitted. If the Constitution is not concerned in this case justice is, which is of as high importance. It has been argued that the defendants took out a license about a month after the offence was said to have been committed; that circumstance can have no effect upon what had previously taken place. Independent of all these considerations, there was on the trial a clear defect as to the evidence of partnership, let it be considered in what point of view it may.
After taking time to advise, this action must be considered in the nature of civil, and not criminal, actions. It is so laid down in Cowper, 382, Atcheison v. Everet, and 1 Guil. ed. Bac. 61. From the wording of this statute the penalty relates to the offence, and not immediately to the person; and consequently the action may be joint or several. In actions of this kind no person can be charged, ex contractu, the Court in this respect think the reasoning of the defendants' counsel unanswerable. The following authorities show it: Watson on Partnership, 180, 181, 183, 187, 188, 191; Cowp. 728, Rex v. Hale. But the same books show that, in the light of trespassers, absent persons may be charged where there is proof of their aiding and assisting in the commission of the offence. Partners however are no more subject to an action of this kind than other individuals.
2 Haw. 396, pl. 75, Cowp. 610, Rex v. Clark, et al.; 5 Mass. 269.
In one point of view, evidence of a copartnership might have some effect, and but one can be thought of at present by the Court; where one partner stands by and sees another sell goods without making any objection.
The next question is, can the Court grant a new trial in a penal action of this kind where a verdict has passed for a defendant; and if they can, in what cases? We have diligently searched the books, and find there are two, and only two, in which they can do it.
1st. If a verdict was founded on a mistake of the Court, in their direction to the jury, as to matter of law.
2d. Where a verdict has been procured by the fraud or practice of the defendant. The books upon which we rely as to the first, are, 4 Term Rep. 753, Wilson v. Rastal; 5 Term Rep. 19, Caleraft v. Gibbs, which was upon a rule for a new trial in a penal action. In the latter of these cases Lord Kenyon observed "that where there is any ground of objection to the law delivered by the judge on which the verdict has proceeded, if such objection be well founded, it is immaterial what the nature of the cause is. The application for a new trial is a direct appeal to the justice and laws of the country, and cannot be tried or disposed of by any other rule."
The case in Strange, 1283, does not apply on the part of the defence; and the only case in point, 1 Wils. 17, is too short and unsatisfactory a note to be relied on, when reason and other books are opposed to it. It has been urged that no case authorizing the granting a new trial against an acquitted defendant in a penal action can be found previous to the Revolution. We do not understand that to be the case. In 3 Morg. Essays, 120; in the case of Robertson qui tam v. _____, Anno, 1728, it is stated that new trials had frequently taken place. Let it however be remarked that we do not think any English writers since the Revolution, respecting criminal law, ought as such to be implicitly attended to in the courts; nor in fact those on the civil or municipal laws since that time, — but we deem ourselves bound to receive any light from them on the last ground, and shall be always glad to do it. As it respects criminal jurisprudence, their decisions since the Revolution, when heard, ought to be narrowly looked into, — in fact, so ought the decisions in the most despotic or licentious periods of the history of that nation.
We consider this case in the nature of civil proceedings, and it will not for a moment be thought that indictments, or any criminal proceedings, are subjected to the ideas we have delivered.
It is a principle consecrated to liberty, that where a defendant is acquitted in a criminal prosecution no new trial can be granted.
On the subject before us, the law seems to be judiciously laid down in 6 Guil. ed. Bac. Ab. 674, 675. But one doubt remains with the Court, whether they can grant a new trial against John, and not James, for we are clear none ought to be granted against James. He was properly acquitted, and he cannot be jeopardized a second time. The counsel will look into this part of the case.