
    *Quinn & als. v. Commonwealth.
    November Term, 1870,
    Richmond.
    Joynes, J., absent, sick.
    1. Court Records — Regularon the Pace — Parol Evidence Inadmissible to Show Irregularities. — Where the record of a court appears on its face to have been regularly signed by the judge who presided at the trial of a cause, parol evidence is not admissible to shew that the proceedings had not been read m court, and that the record was not signed by the judge until some days after the adjournment of the court for the term.
    2. De Facto Judges — Validity of Judgments. — A judge by military appointment in Virginia, holding a court and trying a criminal after the admission of the State into the Union, his act is valid.
    At the February term 1870, of the Hustings court of the city of Richmond, James Quinn, Wm. Clarke and James Hogan were indicted for house-breaking. They were tried at the same term of the court, and on the 25th of February were found guilty, and the jury ascertained their term of imprisonment in the penitentiary at three years. They thereupon moved the court for a new trial, which motion was continued until the 12th of March, during- the same term, when the motion was overruled by the court: and the prisoners excepted.
    In April, 1870, the prisoners applied for a writ of habeas corpus, to the judge of the Circuit court of the city of Richmond, alleging that they were illegally detained in custody by the sergeant of the city, for transmission to the penitentiary; and they state two gfounds of objection to the legality of their imprisonment. The first is, that the order under which they are held *in custody, purports to have been made by the judge of the Hustings court on the 12th of March, 1870, whilst, in fact, said order was made and signed in the clerk’s office of said court (the court not being then in session), on the 22d day of March, 1870; ten days after the term had expired at which the order purports to be made.
    The second objection was that C. H. Bramhall, who signed the proceedings of the Hustings court, and claimed to act as judge of the court, was not in law and in fact the judge of the court, and that he exercised the functions of said office without authority of law, at the time of said trial and conviction of the petitioners; and that all his acts as such judge were illegal, null and void.
    The writ was awarded; and upon the hearing the petitioners proposed to introduce parol evidence to prove the fact alleged in the petition, as the ground of their first objection. The introduction of this evidence was objected to by the attorney for the Commonwealth; but the objection was afterwards waived, with the reservation of the benefit of the objection upon the hearing of the case.
    It was then proved by the clerk and deputy clerk of the court, that the minutes of the court of the 12th of March, 1870, were not read in open court and signed by the judge thereof on the same day; but that they were written in full as they now appear upon the order book, and prepared for signature on that day; but they were not in fact signed until the 22d of March subsequent. That the said Bramhall, after the adjournment of the court, on the 12th of March, 1870, left the city, as they understood, for the city of Washington, and did not return in time to hold the March term of the Hustings -court upon the first day appointed by law for the holding thereof; that on the day afterwards, to wit: the 22d of March, 1870, he came to the courtv house, *and in the clerk’s office adjoining the court-room, in the presence of the clerk, signed his name to the minutes of March 12th; and that the record of said 12th of March was not at any time before signing read in open court.
    On the second objection, it appeared from the record that Charles H. Bramhall had been appointed by General Stoneman, commander of District No. 1, judge of the Circuit court of the city-of- Richmond; and had duly qualified as such; and that he had, been transferred by an order of General .Canby, made on the 8th of November, 1869, to be judge of the Hustings court of the city of Richmond; and had duly qualified as such; and as such judge he presided on the trial of the prisoners.
    The judge refused to discharge the petitioners, and remanded them to the custody of the sergeant of the city; and they thereupon applied to this court for a writ of error; which was allowed them.
    Turner, for the appellants,
    to sustain the first ground of objection to the validity of the judgment of the Hustings court, referred to Styles’ Practical Register, 302; 10 Viner’s Abr. 62, §§ 4, S, old paging; 14 Id. Title Judgment 582-3; Whitaker v. Wisbey, 74 Eng. C. E. R. 44; Rex v. Bellamy, 21 Id. 406; Bias & al. v. Eloyd, Gov., 7 Beigh 640; Enders’ Ex’or v. Burch, 15 Gratt. 64; Eree-land, &c. v. Eield’s Ex’ors, 6 Call 12; Syd-nor v. Burke & Wife, 4 Rand. 161.
    The Attorney-General, for the Commonwealth.
    As to the authority of Judge Bramhall, this court has just decided that question.
    On the other point, he insisted that no parol evidence was admissible to contradict the record. That is only to be proved by producing it; and it imports absolute verity. He referred to 2 Tuck. Com. 278; Vaughan v. The Commonwealth, 17 Gratt. 386; Calwell *v. The Commonwealth, Id. 391; The Bife and Eire Ins. Co. of New^York v. Wilson’s Heirs, 8 Peter’s U. S. R. 106.
    
      
      
        Court Records — Regular on the Face — Parol Evidence Inadmissible to Show Irregularities. — In Snodgrass v. Com., 89 Va. 687, 17 S. E. Rep. 238, the court said: “The thirteenth assignment is because the court orders were not read in court each day, but signed at the conclusion of the trial during the term-citing Quinn v. The Commonwealth, 20 Gratt. 143, decided November, 1870, as showing that the law required that the record of the court’s proceedings should be signed immediately after the proceedings are read, except the last day, which should be read immediately before adjournment. But the law in force at that time was essentially different from the law now in force.
      “Section 5, ch. 161, of the Code of I860, in force in 1870, required that the records should be read in a county court either on every day the court sits or on the next day, except the last day, which should be read the same day, and, after being read and corrected, if necessary, should be signed by the presiding judge or justice.
      “The law now in force on this subject (section 3114 of the Code of Virginia) requires that the proceedings shall be drawn up by the clerk and read during the term, which was done in this case.”
      See also, on this subject, Weatherman v. Com., 91 Va. 797, 22 S. E. Rep. 349 et seq.. where the proposition laid down in the principal case that the failure of the judge to comply with the directions of the statute cannot impair the rights of the commonwealth or those of a citizen, is approved.
      In State v. Vest. 21 W. Va. 800, the court, citing as authority, among others, the principal case, said: “It is certainly a rule invariably recognized by the courts, that a record imports such absolute verity» that no person against whom it is pronounced will be permitted to aver or prove anything against it. This rule is well established, and we now here refer to but a few of the many cases, in which this doctrine has been held.”
    
    
      
       De Facto Judges — Validity of Judgments. — See principal case cited in Bolling v. Lersner, 26 Gratt. 43; McCraw v. Williams, 33 Gratt. 513 et seq. See also. foot-note to Grifftn v. Cunningham, 20 Gratt. 31.
    
   STAPBES, J.

The petitioners were convicted of grand larceny at the Eebruary term, 1870, of the Hustings court of the city of Richmond, and sentenced to three years’ confinement in the penitentiary. They applied to the judge of the Circuit court of said city, for a writ of habeas corpus, which was awarded; and upon a final hearing the petitioners were remanded to the custody of the proper officer.

The case is before this court upon a writ of error to the order of the Circuit judge.

The petitioners base their application for a discharge, upon two grounds: Eirst, that the Hon. Charles H. Bramhall, who presided at said term, being a military appointee of the Eederal government, was not authorized to exercise the functions of a judge after the restoration of civil government in Virginia.

In State v. Bloom, 17 Wisc. R. 521, it was held that where a party was indicted, convicted and sentenced, at a term of a Circuit court held by a person who exercised the office of judge of said court, under an appointment by the governor without authority of law, there being another person entitled to said office, the sentence was, nevertheless, valid and binding. It was so decided upon an application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground he had been so illegally-appointed.

In the People v. White, 24 Wend. R. 520, it was said that where an officer, having an apparent authority to do the act, had rendered judgment between the people and the prisoner, neither party can, in a collateral way, call in question the title of the judge. The government may try the title by quo warranto; but until that *is done his acts are valid and effectual, so far as the public and third persons are concerned. And at the present term a majority of this court have decided that the military appointees of the Federal government, exercising judicial functions in this State after its admission into the’ Union, were de facto judges, and their acts and decisions as such must be respected and obeyed as fully as though they had been officers de jure. And while two of the judges held that the decisions rendered by those who were exercising the functions of judges of the Appellate court might be reviewed by this court, under the provisions of the Enabling Act, they were clearly of opinion that the effect of that .act was to make valid the decision of every other court held in Virginia by military appointees after the restoration of civil authority in the State. This decision must be regarded as conclusive against the petitioners upon the question of jurisdiction.

The second ground urged for the discharge of the petitioners, is, that the record of the proceedings of the February term was not read in open court by the clerk, nor signed by the judge before the adjournment of the court; but was in fact signed by him in the clerk’s office more than ten days after the adjournment.

Petitioners offered parol testimony to establish this fact, which was objected to by the Commonwealth, but was afterwards admitted by consent, with the understanding that the objection might be renewed or insisted on at the hearing.

The provisions contained in section 5, chap. 12, Code of 1860, require that the proceedings of every court shall be entered in a book and read in open court. After being corrected, where it is necessary, the record shall be signed by the presiding judge or justice.

The statute does not, in express terms, prescribe the time when the record is to be signed. The reasonable inference to be deduced from the language is, that it is *to be done immediately after the proceedings are read and corrected, and on the last day of the term, immediately before the adjournment. But the failure of the judge to comply with the directions of the statute could not impair the rights of the Commonwealth, or those of a citizen, in the record as an instrument of evidence, or a muniment of title, or an absolute guaranty against a second prosecution and conviction for an offence already passed upon by a jury. Had the petitioners been acquitted, they could never have been questioned a second time for the same offence, although the judge had failed to sign the record. In the event of such failure, or a refusal on his part so to do, he might be compelled by mandamus to perform that duty.

However that may be, if it is essential to the validity of a record, it should be read by the clerk and signed by the judge before the adjournment, and nothing upon the face of the record indicates the contrary, the law conclusively presumes it was so read and signed; and no averment to the contrary will be received. Being regular upon its face, it cannot be assailed by testimony tending to show it is not what it purports to be.

The effect of the evidence offered by the petitioners was to utterly invalidate the writing as a record, and to deprive it of all faith and verity as such, or it‘was entirely irrelevant for any purpose. Its admission would have violated a rule universally recognized by the courts, that a record imports such absolute verity that no person against whom it is pronounced shall be permitted to aver anything against it. In 1st Inst. 260, Lord Coke says, the rolls being the memorials of the judges, import in themselves such absolute verity as they admit of no averment to the contrary. And if such a record be alleged, and it be pleaded there is no such record, it shall be tried only by itself.

In Rex v. Carlile, 2 Barn. & Ad. 971, 23 Eng. C. L. R. 226, the defendant had been convicted of a seditious "’‘libel, and brought a writ of error in the Queen’s bench, assigning for errors in fact, that there was but one of the justices named in the command present when the jury gave their verdict. It appeared, however, from the record, that a sufficient number of justices were present; and the court held it not competent to question the fact so stated.

In Carper v. McDowell, 5 Gratt. 212, 236, the clerk of the County court endorsed upon a deed that it was acknowledged before him in his office by the parties, and admitted to record, when in fact the deed was executed and acknowledged in an attorney’s office, some distance from the clerk’s office, though in the same village. It was objected the deed was not g-ood as a recorded deed. Judge Baldwin, delivering the opinion of the court, entered into an elaborate review of all the authorities. He said there might be some force in the objection if the defect appeared on the face of the certificate, but that the proceeding being the final act of an exclusive jurisdiction, regular upon its face, and manifestly that record evidence which the law appointed for the very purpose, could not be impeached by extraneous testimony. Numerous decisions of this court establish the same principle. Harkins v. Forsyth, 11 Leigh 294; Taliaferro v. Pryor, 12 Gratt. 277; Vaughn & als. v. The Commonwealth, 17 Gratt. 386; and other cases.

The case of Bias & als. v. Floyd, Governor, 7 Leigh 640, relied on by petitioners’ counsel, asserts nothing in opposition to these views. In that case a recognizance had been taken by a justice of the peace for the appearance of the accused before the Circuit court, and was altered without the consent of the parties, in a material manner, after acknowledgment. In its original form the recognizance was utterly void, for the reason that it did not specify the offence with which the prisoner was charged. As amended, it ' bound the sureties *for the appearance of their principal to answer a specific charge of felony. Judge Tucker said the authorities were abundant to prove that where a record had been falsified by erasure or interlineation it might be amended and restored to its original form. The absolute verity attributed to records could not be used to give sanction to a forgery, or a fraudulent erasure of the record. It was also held in that case, that the verity of a record could not be assailed incidentally or by plea; but only by motion or rule to correct it in the court where the record is.

It is obvious there is not the slightest analogy between this case and the one under consideration. The petitioners do not pretend they were not regularly tried and convicted, or that they were prejudiced by the failure of the judge to attach his signature in the manner prescribed by the law. If such were the fact the remedy in the one case would be by writ of error, and in the other by motion or rule in the court where the record is, to make the necessary amendment. All the reasons forbidding the introduction of testimony to contradict the material averments contained in a record equallj' conspire to forbid its introduction, in the case under consideration, for the purposes indicated. What would the solemn adjudications of the courts avail parties if at any distance of time they are liable to be assailed by parol evidence, resting upon “the uncertain testimonj' of slippery memory?” What security for the protection of property, or the punishment of crime, would the judicial tribunals afford if one of the parties to every controversy might refuse obedience to the most solemn judicial sentence, or a criminal might demand his discharge from confinement, upon parol proof, that the judge who held the court had omitted the observance of some formality, or even material statutory requirement, regarded as essential to the validity of the record of his proceedings, or the jurisdiction *of his court? In the language of Judge Tucker, in Harkens v. Eorsyth, “the demon of mischief could not suggest a notion better calculated to throw all things, in relation to titles, into their original chaos, than the establishment of the principle here contended for. ’ ’ Ror these reasons the second, error relied upon by petitioners is overruled and the judgment of-the Circuit court must be affirmed.

CHRISTIAN, J., concurred in the opinion of Staples, J.

MONCURE, P., and ANDERSON, J., concurred, with the explanation that Bram-hall was judge only because confirmed b3’ the act of March 5, 1870, called the enabling act.

Judgment affirmed.  