1848. July Term. Carper & als. like to have been; and I am inclined to think that upon the principle laid down by Greenleaf, in the passage before cited, he is such a party or privy to the act of the deputy clerk as to be estopped by his certificates. The officer, (says he,) "is in fact the agent of all the individ- M'Dowell. uals who compose the public, and every member of the community may be supposed to be privy to the investigation." Besides, the registry of a deed being intended to operate as notice to the public, I presume all persons are precluded or estopped by the certificate of registry from averring the want of notice. Again, it may be said, that the case of a record coram non judice is an exception to the general doctrine of estoppel; and by analogy to this exception, the counsel upon the other side will argue, that if the deputy clerk took the acknowledgment to these deeds out of his office, he was acting out of his jurisdiction, and therefore, upon the principle of a record coram non judice, that his certificates are void. It is true, the case of a record coram non judice does form an exception to the general doctrine; but then the want of jurisdiction must appear upon the face of the record itself-and in this case it should appear from the certificates. For example, suppose the record of a Superior Court in a suit on a bond for less than 50 dollars, were produced in evidence. Here the want of jurisdiction would be manifest, and the record coram non judice and void; for that Court has jurisdiction only in matters of 50 dollars and upwards. But suppose the record produced shewed upon its face a recovery for 50 or 100 dollars, would it be competent for a party to shew that the Court had no jurisdiction, by attempting to prove by other evidence than the record itself, that he had owed a less sum than the judgment was rendered for? Again. Suppose the record of a Court shews upon its face that the Court was held at the place appointed by law; that four or five Justices or Judges were sitting upon the bench, and V. 1848. that certain matters were transacted over which the law July Term. gives them jurisdiction. Would it be competent for a Carper party to attempt to shew that the Court had no jurisdie& als. tion, by invalidating the record and proving either that M'Dowell, the Court sat at a different place from that named in the record, or that a fewer number of Judges or Justices were present? Certainly not. The law considers that men acting in public stations, under the solemnity of an oath, must be trusted; and it is better that individual hardships should be occasionally tolerated by adhering to this principle, than by departing from it to establish an opposite principle, which might prove detrimental to the whole community. In 2 Smith's Lead. Cas. p. 431, 44 Law Lib., a strong case is stated, which is precisely in point. The original report is said to be in 2 Barn. & Adol. 262, the case of the Queen v. Carlisle. This was a criminal prosecution, and we may presume that the Court would here, if ever, relax the rigour of the doctrine. In that case the defendant had been convicted of a seditious libel, and he brought a writ of error in the Queen's Bench, assigning for error in fact, that there was but one of the justices named in the commission present when the jury gave their verdict. On the record returned to the Queen's Bench, (and which was made up in the ordinary way,) it appeared that a sufficient number of the justices were present, and the Court held that it was not competent to the defendant to question the fact so stated. Several other cases are there referred to, among others that of Molins v. Werby, which was a writ of error on a judgment in the Palace Court, said to be holden before James, Duke of Ormond: the error assigned was that the Court was not holden before the Duke, but before his deputy; and this was held not assignable, being contrary to the record. Other authorities are not wanting. The case of Gray v. Cookson & al. 16 East 13, decides among other principles, that where the warrant of a justice of the 1848. July Term. Carper & als. V'. peace states upon its face facts which are necessary to give him jurisdiction over the subject matter, evidence ought not to be received for the purpose of shewing that he had no jurisdiction. See also 1 Chit. Pl. 183. The true distinction upon this point of jurisdiction M'Dowell. appears to me to be this: Where a public officer certifies to an act which the law has not placed within the scope of his official duties or powers, then his certificate is not conclusive of the fact; indeed, it is no evidence at all, for it relates to a matter out of his jurisdiction, and his certificate is no more than the statement of a private individual. For instance: Suppose the clerk should take the relinquishment of a feme covert to a deed, and admit the deed to record in his office. Here, as such a relinquishment can be taken only by the Court, or by two justices of the peace, the subject matter would be out of the clerk's jurisdiction, and his certificate would not be entitled to any official credit. But where, as in this case, the law has invested a public officer with authority to do a certain act, where the subject matter is manifestly within the scope of his authority, then his certificate is entitled to full credit, and is conclusive upon all points which are subjects of his jurisdiction. The principle of this distinction is fully recognized, I conceive, by the 498th section of 1 Greenl. on Ev. p. 573. Here, in the case of these deeds, the deputy clerk was authorized to take the acknowledgements-the subject matter, then, was entirely within his jurisdiction, and he was authorized to state both the time and the place of taking the acknowledgments, for these are material parts of the acknowledgments. His certificates should therefore be regarded as conclusive. But even supposing that his jurisdiction extends no farther than the walls of his office, I contend, that in making the certificates in this case, he did not in point. of fact, act out of his jurisdiction. It is proven beyond all doubt, that the deeds were admitted to record, in the 1848. July Term. Carper & als. office, on the 6th day of June. The officer carried them there the moment after he took the acknowledgments. By the fact, then, of his admitting them to record whilst in his office, and there sanctioning what he had done M'Dowell, elsewhere, he may be regarded as having there certified to the acknowledgments. Whatever credit, therefore, the law may attach to the jurisdiction of place, is properly due to these certificates. ሀ. But I return from this digression to a review of the principles and authorities bearing more immediately upon the question of the conclusiveness of the certifi cates. And I had supposed the doctrine so well settled, that the acts of a public officer, proceeding under the sanction of an oath, are conclusive, as hardly to require references to authority. It is upon this principle that the return of the sheriff is conclusive, and parol evidence will not be received to contradict it, except in an action against himself for a false return. Goodall v. Stuart, 2 Hen. & Munf. 105. In this case, Judge Tucker said, the return was conclusive in every suit or contest between third persons, and could be contradicted only in an action against the officer. See, also, Purrington, v. Loring, 7 Mass. R. 388; Wellington v. Gale, 13 Mass. R. 483; Slayton v. Inhab. Chester, 4 Mass. R. 478. So, in an action against bail, the return of non est inventus is conclusive evidence of the avoidance of the debtor. Winchell v. Stiles, 15 Mass. R. 230. Neither can an officer falsify his own return; Gardner v. Hosmer, 6 Mass. R. 327; and the return is good evidence in his own favor, even in an action against himself for a false return. Mass. Dig. by Minot 298. In relation to justices of the peace, so great is the confidence reposed in their acts, that Mr. Chitty says, they are "not liable, if having jurisdiction over the subject matter, they produce a conviction drawn up in due form, and remaining in force. In such case, the conviction is a protection in any action against them for the act so done, and the 1848. July Term. Carper & als. V. facts therein stated cannot be controverted in such action, (there being a regular commitment or warrant.") 1 Chit. Pl. 183, citing 16 East 13; 12 East 67, and other authorities. The case in 16 East, to which I have already referred, was an action brought against M'Dowell. justices for a conviction of the plaintiff without authority. It was contended, that the defendants had acted without the pale of their jurisdiction; but the justices produced their conviction drawn up in due form, and one of the principles decided was, that no act could be relied upon as an avoidance of the conviction, unless it appeared on the face of the conviction; and that if the conviction be good on the face of it, the production and proof of it at the trial, would justify the convicting magistrates as well in respects of such facts as were necessary to give them jurisdiction, as upon the merits of the conviction. But there are numerous decisions and authorities directly in point as to the conclusiveness of these certificates. Bissett v. Bissett, 1 Harr. & M'H. 211; Ridgely v. Howard, 3 Harr. & M'II. 321. These cited and approved in 2 Lomax's Dig. p. 358, 9, § 19, 22; Tracy v. Jenks, 15 Pick. R. 465; Ames v. Phelps, 18 Pick. R. 314; Kiny v. Hopper, 3 Price 495, (1 Eng. Excheq. Rep. 393;) Garrick v. Williams, 3 Taunt. R. 540, and the cases there referred to; also 1 Phil. on Ev. 357; Id. 464, in the note; Harvey v. Alexander, 1 Rand. 219; Harkins v. Forsythe, 11 Leigh 294. In the case of Harvey v. Alexander, a deed was executed and attested by subscribing witnesses. This deed was afterwards admitted to record, upon proof made before the clerk, by the subscribing witnesses. A question afterwards arose as to the time of the delivery, and parol evidence was introduced to shew, that it was delivered subsequent to its date. But the Court held, that although the witnesses might have proved before the clerk, when the deed was admitted to record, a delivery different from the day on which it bore date, yet as the clerk's |