The J udges severally delivered their opinions as follows:
Neither a just construction of the acts of Assembly on this subject, the well known course of business, nor the reason of the tiling, warrants, in my apprehension, the reception of this record for any other purpose, than to show that the Court was opened by the three Justices named, and that the various orders were made by a Court legally constituted. In receiving it as conclusive for these purposes, the rule of law is satisfied, and the interests of justice arc maintained ; in receiving it as prima Jude evidence, even that particular persons were on the bench at the precise moment when the order in question was made, may, in most cases, burthen innocent persons with a heavy charge; for this prima fade evidence becomes conclusive, unless it is answered and repelled by the Defendants. The difficulty of proving when they were in the crowded and confused state of a Court-yard, when the order was made, would generally be insuperable; and it is unjust, that persons who are rendering disinterested services to their country, should pay large sums of money for others, or escape from the penalty, only, by proving an alibi.
The act of 1762 c. 69, seems to have intended that the individual Justices should be ascertained by some proof more specific; for when it confers the power of appointment, it speaks of the Court; where it imposes a penal*304ty for the improper exercise of the power, it refers to the individuals composing it at the precise point of time; thus endeavoring to guard against the very evil which the introduction of this record as evidence would produce. It is not the Court, but the Justice or Justices appointing such guardian, who shall be liable for all ioss and damage. We must believe, that the Court made all these orders, because the record says so ,• but we cannot believe that the Defendants were the individuals composing it, unless there were none others competent to form a Court. It is impossible to shut our eyes to the fact, that though the Court may be in session throughout the day, the individuals composing it are continually changing, and of these changes, no memorial is made by the Clerk. Sometimes three Justices are collected for the purpose of opening the Court, which when they have done, they yield their places to others whose stay there may also be brief, and the physical identity of the Court changes with every passing hour.
-ut unda impellitur unda,
Témpora siefugiunt pariter, pariterque sequuntur.
An act passed in 1790, c. 327, relative to the appointment of several public officers, serves to show the light in which this individual responsibility is regarded by the Legislature, and the spirit in which these laws arc conceived. The Clerk is directed to make an entry at large, under a heavy penalty, of the names of the Justices who shall be in Court, or on the Bench, at the time of the qualification of those officers which would have been an useless provision, if the record of the opening of the Court had been evidence of the fact,* and when that law was passed, a majority of Justices, or a certain number beyond three, was not necessary to the appointment of those officers.
My opinion is, that the record was improperly received for any other purpose connected with this case, than to show that these Justices were present on that day, when the Court was opened, and that their aver-*305merit that they were not present when the guardian was appointed, is not in conflict with the record, which is not therefore an estoppel. I am in favor of granting a new trial.
The act of 1762, New Rev. ch. 69 s. 5, declares, that if any Court shall commit an orphan’s estate to the charge of any person without taking sufficient security, the Justices appointing such guardian, shall bo liable for all loss and damages, &c. to be recovered by action at the common law. The act does not point out any mode by which the fact shall be established. I believe it is not usual with Clerks, when entering such orders of appointment, to recite the names of the Justices by whom they are ordered to be made, as is directed to be done by the act of 1790 ch. 327, when Sheriffs and. other officers are elected. It would certainly be the most eligible way of ascertaining the fact. But when that is omitted to be done, the parties are at liberty to prove the same tact by parol evidence, because, I think such proof by no means contradicts the record.
I have no doubt but it was proper to read the record on tiie trial, the introduction of which, as evidence, is complained of. It proves that a Court was opened and held, &c. but what further effect it ought to have, or what further fact it should be taken to establish, is a question of great importance.
The law.establishing County Courts declares, that the same may be held by three Justices- In most of the eounties, there are from twenty to fifty Justices, and it is as much the duty of one as another, but not more so, to hold the Courts j hence, it is not to be expected that the Courts will be held by any particular Justices. Sometimes one portion of them are on the bench at one time, and others at another, and this on the same dayj and no doubt it was for this reason, that the Legislature directed the Clerks to record the names of the Justices on the Bench when particular officers were elected, as *306before noticed. This being the practice of the Justices in holding the County Courts. I think the record in question, should not be taken as evidence of the fact, that ^ Defendants were the Justices who appointed Gordon guardian, &c. The fact may have been so, but it may have been otherwise; and in fixing a charge upon individuals so penal as this, more certainty ought to be required, when the case will admit of it 5 otherwise innocent persons may suffer.
It is a hardship on infants, that their interests should be neglected, and their property lost, by acts of omission by Justices ; and it is for that reason that the Legislature have made them personally responsible; and no doubt the will of the Legislature will be obeyed when evidence is sufficient to point out the proper persons, and is made to bear upon them. As I think that has not been done in the present case, independent of the record, and as I think the record is not sufficient for that purpose, I am of opinion that the rule for a new trial should be made absolute.
A record cannot be prima fade evidence, by which I understand that evidence, which until contradicted, proves the fact, but which may yet be contradicted. Wherever a record is admissible, the fact which it affirms cannot be contradicted. Where it affirms a fact inter partes, and which of course they had the right to controvert, and which they did controvert or admit, then its affirmations are conclusive upon the parties and their privies. Where it affirms a fact where no one was a party, and of course no one had the right to controvert it, and no one of course did controvert it, then it is evidence of that fact, as well as to one person as anotherj there are no parties or privies; it is not made upon the liligation or admissions of any one ; and proceedings in rem are evidence against the whole world for the opposite reason, for being parties, they either have or might have controverted. The record offered *307in this case, is of that kind where no person was a party ; it was not made upon the litigation or admission of any person; its affirmations are therefore conclusive upon all, upon one as well as another. It is therefore necessary to ascertain what'are its affirmations. It affirms that on the-Monday in November, a Court of ‘ Pleas and Quarter Sessions was held at Winton, for the County of Hertford, and was opened by Justices who are stated to have opened the Court; it is also evidence that the various suits were tried or continued, and all the orders made, which, appear upon the rolls or records of the Court, and that the Court adjourned from day to day; and that on Thursday the Court met pursuant to adjournment, and at the meeting of the Court the Defendants were present presiding as Justices in the Court; that the Court on that day tried and continued the different suits mentioned in the proceedings, and made the different orders appearing upon the minutes, and among others the order committing the estate of the Plaintiffs to the management of Gordon; all tiiese facts stand upon the rolls, and no one can controvert them; that is, that these things were done. But what is to be inferred from these facts, is a very different thing from making the record prima fade evidence; and from determining, if an inference is to be drawn, whether the law will draw it, or whether it is to be left to the Jury to draw. If it is prima facie evidence, then the fact stands proven, that the Defendants were on the Bench when the order complained of was made. Until they shew the contrary, it throws the burthen of proof upon the Defendants; whereas if it is only an inference of fact, it is left to the Jury to say, whether it is proven, to their satisfaction, that because the Defendants were present when the Court opened (which fact cannot be controverted by any one as long as it stands upon the record) that they were also present when the order was made. 'A thing very different from making it prima fade evidence. If it is matter of inference, all the doctrine of probabilities are to be *308gone into by the Jury, and tiiey will determine according to the evidence of the common practice, whether it is probable that they all were there, and if not all, who were . for ¡„ civil causes, we are obliged to go upon probabilities to settle the right of the parties, and I am disposed to think, that it is a presumption of fact, not of law ; for it is not generally true, that the ends of justice would be more often answered by drawing the conclusion as one of law, that they were there, than by leaving each case to be decided by the Jury; for if made a presumption of law, the Defendants would not be permitted to prove that they were nbt there. I think, therefore, the Judge erred in telling the Jury that the record was prima fade evidence of the fact that the Defendants were on the Bench when the order .was made, and thereby threw on the Defendants the necessity of offering opposing evidence; but, in the absence of all other evidence as to the point, he should have informed the Jury that the record only affirmed that the Defendants were present when the Court was opened; that whether they would infer therefrom that they were also present when the order was made, was a fact on which they would decide, that the law did not draw the inference one way or the other, and which indeed would be more emphatically expressed, by the phrase, leaving it to them. The effect of the Clerk’s having stated on the record that they were present, if he had made such entry, not being required by law to do so, it is unnecessary to examine, for in fact he has not made such statement.
Let a new trial be granted.
Judgment reverse»»