Justices of the Inferior Court v. House

By the Court. Benning, J. delivering the opinion. House, the defendant in error, wished to use as evidence, [332] what, as he insisted, were certain orders of the Inferior Court; and to prove that they were the orders of that Court, he offered in evidence a book as the minutes of that Court, on which book they were found entered. To the admission of this book in evidence, the plaintiffs in error objected, and gave two reasons for the objection: first, that the assumed orders were not signed by the Court; secondly, that the book did not show the place of meeting of the Court. This objection being made, the defendant in error withdrew his offer of the book, and examined the Clerk of the Court, Eorbes, who testified, that the book was kept as the minutes of the Court, and that the Court had no other book for that purpose; that he was not present when the orders proposed to be read were made; that these orders were sent to him by one of Justices of the Court, and by him were entered on the book; that he did not know where the Court met or who were present, when the orders were granted; that he had heard one of the Justices complain, that the orders had been entered ; that the orders were not signed by any of the •Justices; that the Court frequently had meetings and transacted business for county purposes when he was not present; and that in such cases, he made out the minutes by memoranda furnished him by one of the Justices, as he did in this •case. The Judge then inspected the book, and it appeared that some of the proceedings entered on it had been signed by members of the Court since the entry of these orders; and that before the entry of these orders, the minutes had been signed by the Justices on one or two occasions, but not generally. Having inspected the book, the Court admitted it in evidence. Was this right in the Court ? And first, was it indispensable that the minutes should be signed by the Justices ? We think not. We think that the law which says that the minutes “ shall be signed by the [333] Judge of the Superior, or presiding Justices of the Inferior Courts, (as the case may be,) prior to the adjournment, from •day to day,” (Cobb's Dig. 573,) is merely directory to the ■Justices. The law does not say that the minutes shall, if unsigned by the Justices, be of no effect. The Constitution r-says that a Judge of the Superior Court, whenever he grants a new trial, shall enter on the minutes of the Court, “his =reasons for the same.” And this, we have held to be only •directory. The law aforesaid further says, that “the Clerks shall also keep regular and fair minutes of all the proceedings in any of said Courts.” It is thus made the duty of the Cleric to keep the minutes. And as it is to be presumed that every officer does his duty, until the contrary be shown, we think that what the Clerk keeps as minutes, are to be considered minutes, until it be shown that the Court rejected them .as minutes. In this case that is not shown. What is shown is, that it -was not usual for the Court to sign the minutes, but that it sometimes did sign them; and that it had signed on the book of minutes, entries made both before and after the entry of the orders in question. And this furnishes evidence rather ■-that the entry of those orders was approved, than that it was • disapproved. [1.] We think, therefore, that the first ground of objection • to the admission of the book was not a sufficient one. [2.] And we say the same of the second. What law is there that requires that the minutes should show at what place the Court met ? None. And as the minutes are merely silent, as to the whereabout of such place, it is to be pre* sumed that the Court met at the place where it ought to have met. The amount of the Clerk’s evidence is no more than that he does not know at what place the Court met. House offered to prove his alleged contract with the Inferior Court, by parol evidence, viz: by the testimony of E. 'H. Worrell. This testimony detailed what was said by House, • or his Attorney, and what was said by the Court, at a partic [334] 1 ular session of the Court, in reference to House’s building ..the bridge in question. This testimony was objected to by the defendants, but was admitted by the Court. [3.] Ought it to have been admitted ? We think that it ought to have been. The second section of the Act of 1845, relating to the power of the Inferior Court, in reference to bridges, amongst other things, declares what follows: “The Justices of the Inferior Courts of the several counties of this State, or a majority of them be, and they are hereby authorized to contract for the building and keeping in repair of public bridges, for such time and in such way as to them shall seem most advisable, •either by! letting the same to the lowest bidder, hiring hands for that purpose, or in any other way that to them may appear right and proper.” This is declaring that the Justices of the Inferior Court < shall have the general power to contract, in reference to the t building of bridges. And a general power to contract, is a ■.power to contract by parol, as well as by other modes. Such is the construction of the power to contract given in acts of incorporation ; such has been the construction applied by this Court to the power of the Justices of the Inferior Court, to build court-houses, &c. — this Court having held that promis- .. sory notes signed by such Justices, but given in execution of ' that power, bound the Court, and not the individuals compos- ' ing the Court. Ghent et al. vs. Adams, (2 Kelly, 216.) Indeed, is not a contract made “by letting” the work “to the lowest bidder,” necessarily, almost, a contract by parol? And letting the work to the lowest bidder, is one of the expressed modes in which the Justices of the Inferior Courts may contract. Minutes of a Court are scarcely the place for evidence of a contract made by the Court. These, in strictness, speak the ..will or the language of the Court only. When they also speak that of the other contracting party, [335] they become, to that extent, something over and above minutes — the minutes of a .Court. The next question is, whether Marshall, Leonard and Max- ■ well, three of the Justices of the Inferior Court, were competent to testify on the part of the Justices of that Court, the plaintiffs in error ? The Court below held that they were not,. and we think, held so erroneously. [4.] These persons had no interest, whatever, (except as = citizens,) in the event of the suit. In their private capacities, they were not parties to the suit, nor did they incur any-risk of having to pay the costs. The Statute of Anne does-not subject the members of a corporation to costs, but only the corporation. (Schley Dig. 344.) But in the case of The Central R. R. B'k'g. Co. vs. Hines, Perkins & Co. decided at Savannah, January, 1856, this ■ Court held, that even a party, if free from interest, was com- ■ petent for his co-party. In respect to the question, whether the answer to the man-damns nisi was evidence for the parties answering, we merely' say that the answer, in. so far as it denied the relator’s case, had the effect to cast upon him the onus of proving his case. The new trial which is granted, is granted on the ground''* of the exclusion of Marshall and others, as witnesses. That Worrell was incompetent, was a point not insisted on.-