
    
      Harkins v. Forsyth and Others.
    August, 1840,
    Lewisburg.
    (Absent Bbooke and Pabkísb, J.)
    Married Women — Mortgages—Acknowledgment of Wife —Privy Examination. — After husband and wife have signed, sealed and delivered a deed- of mortgage, two justices of the peace certify, in the form prescribed by the statute, that she personally appeared before them, and being' examined privily and apart from her husband, and having the deed fully, explained to her, she acknowledged the same to-be her act and deed, and declared she had willingly signed, sealed and delivered the same, and wished not to retract it. In a suit in equity after-wards brought to foreclose the mortgage, it is contended that the deed is void as to the wife, for want of such explanation of its nature as the statute requires; and the depositions of the justices are taken to prove the.fact that the deed was not fully explained to the wife : Held, as the privy examination, acknowledgment and declaration of .the -wife are certified by the justices pursuant to thé.directions of the statute, the deed is effectual to. pass all her right, title and interest.
    •Mortgages — Clause Allowing Mortgagees to Enter and • Receive Renta and Profits — Effect upon Foreclosure, i —A deed of mortgage containing a clause which provides that, after default, the mortgagees may ■ enter upon the property, and receive the rents, • issues and profits thereof for their indemnity, it is contended that no sale should be decreed unless ■ the profits are inadequate for such indemnity; though there is in the deed an absolute convey- ■ anee'of the fee, with a defeazance, as usual, in • case of payment. Heed, the right of the mortgagees to have a foreclosure and sale is not impaired by the clause before mentioned.
    Same — Foreclosure—Redemption—Discretion of Court. —when a foreclosure is decreed, the court is to exercise a sound discretion in relation to the period ' of redemption, and fix it according to the circumstances of the case. The usual time is six months ; but less may be allowed.
    Appellate Practice — Mortgages—Foreclosure—Discre- , ,-tion.of .Lower Court — Presumption in Court of Appeals. — Though the time allowed for redemption be only thirty days, an appellate court will neverthe- , less presume that the discretion of tb e court below has been properly exercised, if.no application appears to have been made to that court for an. extension of time.
    By an indenture made the 25th of August 1833, between William Harkins and Elizabeth his wife of the one part, and James H. Porsyth, Eli B. Swearingen and * John Goshorn of the other part, it was recited that Alfred Harkins, son of said William, was indebted to the president, directors and company of the bank of Mount Pleasant in the sum of 2500 dollars, by bond, in which the said James H. Porsyth and others were his sureties, and that the said William Har-kins was indebted to the said president, directors and company in the sum of 450 dollars, for which the said John Goshorn and others were his sureties : and thereupon the said William Harkins and wife conveyed to Porsyth, Swearingen and Goshorn a lot of ground in Wheeling, upon condition that if the said Alfred Harkins, his heirs, executors or administrators, should pay to the said president, directors and company the debt first mentioned, and all interest that might become due thereon, and save harmless his said sureties therein, and not subject them, or any or either of them, to pay the same, and in case the said sureties, or any or either of them, should pay the said debt or any part thereof, should reimburse him or them all money that they should have paid on the same, with its interest, and all costs thereon ; and if the said William Harkins should pay to the said president, directors and company the said debt secondly mentioned, with all interest that might be due thereon, and save harmless his said sureties therein, and not subject them, or any or either of them, to pay the same or any part thereof, and in case the said sureties, or any or either of them, should pay the said debt or any part thereof, should reimburse him or them all money that they should have paid on the same, with interest, and all costs thereon ; the said indenture, and the estate thereby conveyed, were to cease and determine. Then came the following clause ; “ And it is hereby declared and agreed by and between the parties to these presents, that in the mean time, and until default shall be made by the said Alfred Har-kins and William Harkins in the payment of the debts aforesaid with their interest, * whereby their said sureties shall be compelled to pay the same, contrary to the form and effect, true intent and meaning of the provision aforesaid, it shall and may be lawful for the said William Harkins and Elizabeth his wife, and their heirs, peaceably and quietly to have, hold and enjoy the said lot of ground above conveyed, together with the buildings, tenements, her-editaments and appurtenances thereunto belonging, and to receive and take the rents and profits thereof to and for their own use and benefit, without the interruption or hindrance of the said James H. Eorsyth, Eli B. Swearingen and John Goshorn, or any or either of them, their or either of their executors, administrators or assigns; but so soon after the happening of such default by the said Alfred and William, or either of them, in the payment of said debts, so as to subject their sureties to the payment thereof, then they the said Forsyth, Swearingen and Goshorn are hereby authorized to enter upon the said property, and receive the rents, issues and profits thereof for their indemnity.”
    Two justices of the peace for the county of Ohio certified, in the form prescribed by the statute, that Elizabeth Harkins personally appeared before them in their county, and being: examined by them privily and apart from her husband, and having- the deed fully explained to her, she acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered it, and that she wished not to retract it.
    William Harkins acknowledged the deed in the oifice of Ohio county on the 12th of October 1833, and the same, with the certificate of the justices, was admitted to record.
    On the 30th of May 1834, Forsyth, Swear-ingen and Goshorn commenced a suit in chancery against William Harkins and wife in the circuit court of Ohio county. The bill set forth that the complainants were each and 'xall of them sureties in the bonds mentioned in the deed; that they have been obliged to pay the bond for 2500 dollars, which, with interest and costs, amounted, on the-day of May 1834, to 2773 dollars, or thereabouts ; and that the debt of 450 dollars remained due, with a large amount of interest and costs, all of which they would in a short time be compelled to pay. The prayer was, that the property conveyed might be decreed to be sold.
    Pending the suit, William Harkins died, and a supplemental bill was filed, reviving the same against his widow Elizabeth as his administratrix, and James W. Clemens as his administrator.
    Elizabeth Harkins, in her own right, answered, that the original deed was signed by her; that the two justices of the peace asked her, in the absence of her husband, if she acknowledged it to be her act and deed, and had willingly signed, sealed and delivered the same, and whether she wished to retract it ? and she replied that the same was her act and deed, that she had willingly signed, sealed and delivered the same, and that she wished not to retract it. But she averred and charged the fact to be, that the justices did not read the deed to her, nor in any manner whatever explain it to her. She further averred, that at the date of the mortgage, the legal title to the property conveyed was in her.
    She also answered in the character of administratrix. Her answer stated that there were no personal assets to pay the demand of the plaintiffs.
    On the part of the defendants, the depositions of both the justices were taken. One of them, George Dulty, deposed that he had no recollection of the particular questions propounded to mrs. Harkins, but be presumed he put the same questions to her, which he is accustomed to put as a magistrate in like cases ; which questions are, 1. Do you understand the nature of the *deed ? 2. Have you signed it willingly ? 3. Have you no wish to retract it ? When the party answers that she understands the deed, has signed it willingly, and does not wish to retract it, then he certifies. The deponent stated that he thought these questions were so put, and so answered, in this case. He did not read or explain the deed to mrs. Harkins, it not being his habit to read or explain a deed to any feme covert, when such feme declares that she understands the nature of the deed. Deponent added, that another question usually put by him to femes covert is, Do you acknowledge this to be your act and deed ? and that he would not certify any acknowledgment, unless the questions aforesaid were answered in the affirmative.
    Richard Simms, the other justice, concurred generally in the statements made by Dulty. It was his habit, he said, to put his finger on the signature of the feme, and ask her if she acknowledged that to be her act and deed, and desired it to be recorded ? He never, in any instance, read or explained a deed to a feme covert. He asked them if they understood the nature of the deed ? and if they answered in the affirmative, that was his explanation. Of this particular transaction he had no recollection.
    The cause was heard the 9th of June 1835. It appearing that the complainants had satisfied the bond for 2500 dollars with interest and costs, by paying 1847 dollars 65 cents on the 10th of May 1834, and 910 dollars 36 cents on the 27th of May 1834 ; and it also appearing that the defendants had in their hands no assets belonging to the estate of William Harkins, wherewith to pay the said sums of money, the court decreed that unless the sum of 1847 dollars 65 cents with interest thereon from the 10th of May 1834, and the sum of 910 dollars 36 cents with interest thereon from the 27th of May 1834, and the costs of this suit, be paid within 30 days, the sheriff of the county, who was appointed *a commissioner for the purpose, should proceed to sell the lot of ground conveyed, at public auction to the highest bidder, at the courthouse of the county upon some court day. The decree then specified the terms of sale, and the time and manner of advertising the same.
    On the petition of Elizabeth Harkins, an appeal was allowed from the decree.
    The cause was argued by Johnson for the appellant and William Smith for the .appel-lees, upon the following points made by the former :
    1. That the deed was void as to the appellant for want of that explanation of its nature which the act of assembly positively requires. •
    2. That no sale should have been decreed unless the profits were inadequate to indemnify the mortgagees.
    3. That the time allowed for the redemption of the land is too short, six months being the regular time for redemption upon a decree of foreclosure.
    
      
      Married Women — Deeds—Acknowledgment — Sufficiency — In Hitz v. Jenks, 123 U. S. 297, 8 Sup. Ct. Rep. 147, it is said, it would be inconsistent with the reasons above stated, as well as with a great weight of authority, to hold that, in the case of a deed actually executed by a married woman of full age and sound mind, a certificate of her separate examination and acknowledgment, in the form preseribed by the statute, and duly recorded with the deed afterwards, except for fraud, be controlled or avoided by extrinsic evidence of the manner in which the examination was conducted by the magistrate, citing Harkins v, Forsyth, 11 Leiyh 294. See also, citing and approving the principal case upon this question. Carper v. McDowell, 6 Gratt. 237 (see also, note) ; foot-note to Johnston v. Slater, 11 Gratt. 321: Taliaferro v. Pryor, 12 Gratt. 286 ; Grove v. Zumbro, 14 Gratt. 515 ; Vaughn v. Com., 17 Gratt. 389 ; Quinn v. Com., 20 Gratt. 144. 146 ; Price v. Holland, 1 Pat. & H. 299; Davis v. Beazley, 75 Va. 493 ; First Nat. Bank of Harrisonburg v. Paul, 75 Va. 601 ; Burson v. Andes, 83 Va. 449. 8 S. E. Rep. 249 ; Murrell v. Diggs, 84 Va. 905, 8 S. E. Rep. 461 ; Hockman v. McClanahan, 87 Va. 39, 12 S. E. Rep. 230; Hurst v. Leckie, 97 Va. 562, 34 S. E. Rep. 464; Burley v. weller, 14 W. Va. 273 ; weinberg v. Rempe, 15 W. Va. 831, 859, 865 ; State v. Vest, 21 W. Va. 800; Rollins v. Menager, 22 W. Va. 467; Herring v. Lee, 22 W. Va. 672; Henderson v. Smith, 26 W. Va. 834 ; Pickens v. Knisely, 29 W. Va. 8, 19, 34, 37, 11 S. E. Rep. 934, 938; Sewall v. Haymaker, 127 U. S. 719, 8 Sup. Ct. Rep. 1352 ; National Bank of Fredericksburg v. Conway, 17 Fed. Cas. 1204. See monographic note on “ Acknowledgments ” appended to Taliaferro v. Pryor, 12 Gratt. 277 ; monographic note on “Husband and Wife” appended to Cleland v. watson, 10 Gratt. 159.
    
    
      
      Tlortgages — Foreclosure—Redemption—Discretion of Court as to Length of Time. — In Pairo v. Bethell, 75 Va. 832, itissaid : “The answer to the objection, that the time (20 days) given by the decree for the redemption of the property from the lien is too short, .is, that this is a matter resting in the sound discretion of the court under all the circumstances, and this epurt will presume that the discretion has been properly exercised, where, as in this case, no objection was made in the court below, and no extension ■ asked for of the time allowed for redemption. Tuckeb, J., in Harkins v. Forsyth and Others, 11 Leigh 309 ; Stanard. J., in Manns v. Flinn’s Adm’r, 10 Leigh 109 ; Green’s Appendix to wythe’s Reports, 414, note 44, and cases there cited.” See also, citing the principal case, King v. Burdett, 44 W. Va. 565, 29 S. E. Rep. 1011; Weinberg v. Rempe, 15 W. Va. 859. See mono-graphic «ole on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
   TUCKER, P.

Among the errors assigned in this case is the shortness of time allowed by the decree for redemption ; the regular allowance, according to the practice of the court, it is contended, being six months. Although, in the view I have taken of this point, it would be unnecessary to give an opinion as to the general rule, yet as it relates to the every day’s practice of the court, I think it not amiss to say that I know no such inflexible rule in our courts. According to my recollections, both at the time I was at the bar where chancellor Carr presided, and when I afterwards succeeded him, the court adopted and pursued the opinion of chancellor Kent in Perine v. Dunn, 4 Johns. C. R. 141, regarding' it as a matter of sound discretion to fix the period of redemption according to the circumstances of the case. I am very sure there must have been *cases in that circuit, where the time allowed was even less than three months; and it is probable the same practice continues. I should be unwilling, therefore, to lay down any inflexible rule on the subject, as it might lead to mischief and is in no wise essential to justice. On the contrary, I think it better that the matter should be left td the sound discretion of the court, and that we should presume the discretion has been properly exercised, where no objection has been made in the court below, and no extension asked for of the time allowed for redemption. Upon such an application, if refused, the reasons of the court would appear, and the appellate tribunal could then decide whether the discretion had been abused. In the present case no objection has been made, and the decree therefore should not be disturbed.

A second ground of complaint is, if well founded, of much greater importance. It is said that no sale should have been decreed, unless the profits were inadequate to indemnify the mortgagees.

During the argument, it struck me that the conveyance partook somewhat of the character of a welsh mortgage, or of the vivum vadium. I am satisfied I was mistaken. In the welsh mortgage, the rents and profits go against the interest only, (Coote on Mortg. 9,) which would not be the effect of the clause in this deed. And as to the vivum vadium, that is a conveyance to the mortgagee, to hold until, out of the rents and profits or otherwise, his principal and interest are paid. But here there is an absolute conveyance of the fee, with a defeazance in case of payment; which is precisely of the character of a mortgage. And the clause providing for the entry of the mortgagees after default, is no more than that which is now inserted in many mortgages, except that the words “for their indemnity” have been unnecessarily added in this. See 3 Powell on Mortg. 1120 a., 1116 a. for the form. The *effect of this clause, then, is not to limit the mortgagees to the perception of the rents and profits for their indemnity, but merely to invest them, in terms, with the right to enter and hold the premises until redemption. Hence it follows that the right of the mortgagees to foreclose cannot be impaired by it, nor can there be any error in decreeing the foreclosure, whether the profits were or ' were not adequate, in a succession of years, tot indemnify the mortgagees.

The other error assigned is, if well founded, vital to the plaintiffs’ demand. It presents a question of great importance, and of the first impression here. It is contended that the mortgage was void as to the feme, for want of that explanation of its nature which the act of assembly requires. The certificate of the privy examination, it is admitted, is in due form ; but it is alleged that that certificate is false in the point referred to ; and the depositions of the justices have been taken to prove its falsity. Let us then consider the character of the act, and the meaning and intent of the statute which prescribes it, in order to discover whether it is susceptible of contradiction by any proof whatever.

By the common law, a married woman could not, by joining her husband in a deed, bar herself, or those claiming under her, of her own estate. In process of time, however, fines were adapted to this end, and by them the rights of a wife might successfully be passed. 5 Cruise’s Dig. J15, 116. But to prevent imposition upon her, it was at length provided by a statute, that where a feme covert was one of the parties to a fine, she should be privily examined, and if she refused her assent, the fine should not be levied. Ibid. This proceeding is the prototype of our privy examination. But though the privy examination was positively enjoined by statute, yet if a feme was allowed to acknowledge a fine without examination, it nevertheless bound her,'and could not be reversed; for she could not *contradict the record, which set forth her examination. Ibid.

According to the british system of jurisprudence, then, we see that certain safeguards were thrown around the feme for her protection; but we also see that if those safeguards failed, she was left without a remedy; except in cases of fraud in the conusee, whom equity would in such a case consider a trustee for her.

In Virginia, as a substitute for the fine, a deed, accompanied by a privy examination of the feme, has been adopted. This privy examination, it is provided, may be taken either before a court of record, or before two justices of the peace. In both cases the same identical requisitions exist. In both it is required that the deed be shewn and explained to her, and that she shall acknowledge it as her act and deed, and declare that she had freely and willingly signed, sealed and delivered it. Where this examination has been made in court, it must be conceded that it is altogether conclusive, and that no allegation can be admitted to contradict the entry upon the record, however much that may be ait variance with the real fact. Though the judge or justice who examined her may have disregarded every requisition of the statute, yet when the term is once ended, the truth of the record never can be questioned, but the examination must be taken to have been in truth what by the record it appears to have been. Thus then it would seem, that like our ancestors, we have, in this provision, been content to throw around the feme covert a certain safeguard, which nevertheless may fail to fulfil the just and benevolent intention of the lawgiver. We have not indulged the vain expectation that we have provided against every possible mischief, since we know that perfection is not attainable in human legislation. But we rest upon the assurance that with these guards the rights of married women are substantially secured, and that there is much less danger of their suffering by *the ignorance or corruption of the courts, than there would be of shaking all confidence in the titles of the country, if femes covert were permitted, at the remotest period, to call in question what has been solemnly recorded in a court of justice.

The second mode of privy examination prescribed by law, is by two justices of the peace; and it seems to be supposed, that because it is a matter in pais, the certificate of the justices may be directly contradicted, and the deed vacated by the testimony of witnesses, and even by the depositions of the justices themselves. Such a position is at variance, I take it, with the spirit and object of the law, and also with the terms of the law itself.

We have already seen that the object of the law was to provide a substitute for the proceeding- by fine, whereby the rights of the feme on the one hand might be fenced around, and a sure, indefeasible and unquestionable transfer of her right secured on the othep. While the legislature were protecting the wife, can it be believed that they had no regard to the importance of giving confidence to the title ? Can they have been insensible to the ruinous consequences to the prosperity of any commonwealth, of doubt and uncertainty as to land titles ? Could they have conceived of any measure more calculated to create these doubts, than the liberty, at any remote period, of alleging and proving that the magistrates’ certificate is false ? When they have entrusted the performance of this duty tq a magistracy in whom is even the power of life and death ; when they have prescribed the mode of fulfilling it, with a minuteness that one might think would have defied mistake ; when they have commanded the act, when completed, to be placed upon the public records ; when the act itself is substituted (merely for convenience) for one which, as we have seen, never can be contradicted, — can we believe that it ever was contemplated to permit *this Solemn certificate to be falsified by the testimony of witnesses, and even by that of the very magistrates who, under the sanction of their official oaths, have signed and returned the certificate of privy examination ? I cannot think it. If such be the law, who will ever resort to this mode of privy examination ? Who will not insist upon the examination before the court, however inconvenient to the parties, or onerous to the courts of justices ? Who will sit down content with a title in all respects complete upon its face, when, upon the death of his vendor, his widow and her magistrates may undo what they have solemnly done by their act, and without the possibility of contradiction, since they alone are permitted to be privies to it ? With these startling considerations presenting themselves in opposition to the doctrine, now for the first time, I believe, advanced in our courts, it ceases to be a wonder that, for upwards of a century, no one has ever been found sufficiently adventurous to insist upon such a construction of our statutes.

But if the door be once opened to contradictions of the magistrates’ certificates, where is the point at which we shall stop ? The writing must be explained ; and if the certificate that it was explained can be contradicted, what shall ' prevent enquiry whether it was truly explained ? for if not truly explained, the condition of the feme is surely not better than if the deed were not explained at all. And if, in the complicated provisions of a settlement, the justices become entangled, what shall prevent the proof by the feme, that she has in truth executed a deed altogether different in effect from the explanations which were given to her of that which she had signed ? And if these enquiries are to be permitted, and that too when the feme has lain by during the lifetime of her husband, and rakes up these objections at a remote day, of what value will your privy examinations be? Who will take a title depending *upon, or which can be traced through them ? No one. To me indeed it seems that 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.

With these preliminary views of the spirit and meaning of the statute, let us look to its terms. The first part of the clause provides that if the wife, being examined, shall acknowledge the deed, and such examination and acknowledgment be certified, and such certificate be offered for record, it shall be recorded. Here the clause loses the hypothetical if, and proceeds — “ And when the privy examination, acknowledgment and declaration of a married woman shall have been so taken in court, and entered of record, or certified by two magistrates and delivered to the clerk to be recorded, and the deed also shall have been duly acknowledged or proven as to the husband, and delivered to the clerk to • be recorded, pursuant to the directions of this act, such deed shall be as effectual in law to pass all the right, title and interest of the wife, as if she had been an unmarried woman.” Here then it is expressly provided, that when the examination shall have been certified and delivered to the clerk, &c. the deed shall be as effectual as if the maker were sole. The deed then is made to depend, not upon the truth of the certificate, but upon its existence, and its delivery to the clerk ; and if so, the en-quiry whether it be true or false is an immaterial enquiry.

It remains but to qualify the foregoing remarks by observing, that notwithstanding the conclusiveness of the certificate at law, the feme may be relieved in equity, where it has been obtained by the fraud of the party claiming under the deed. Such was the law as to fines, and such must doubtless be the law in reference to this *substitute for the fine. Nothing of. that kind is pretended here ; so that the deed, I think, stands unimpeached.

It may not be amiss, before concluding this opinion, to examine what are the common law principles applicable to the case. And here two enquiries present themselves ; first, as to the authenticity attributed by the law to the act itself ; and secondly, as to the competency of an officer of the law to unravel a solemn act done by himself in pursuance of its directions. After a very diligent search, I have been unable to find a case in point, and am therefore compelled to resort to general principles and analogies. Now, in relation to the act itself, it has been'long the received doctrine, that where the law appoints any person for any specific purpose, it must trust him as far as he acts under its authority. Buller’s N. P. 229. And it would seem that “ where a written instrument is constituted by law the authentic and sole medium of proving' a fact, oral testimony cannot be admitted to prove or disprove it;” and “where the law authorizes any person to make an. enquiry of a judicial nature, and to register the proceedings, the written instrument so constructed is the only legitimate medium to prove the result.” 3 Starkie on ©vid. 1043, 4. Thus, parol evidence cannot- be received of the declaration of a prisoner, taken under the statute of Philip & Mary, were the examination has, as required by the statute, been taken in writing ; for it will be presumed that the magistrate, who ■has been entrusted by law to make a memo-xial of the confession, has acted in conformity with the statute. Id. part 4, p. 50, 1044. So here, the law has entrusted to the justices to examine a feme covert touching the execu-' tion of a deed, to take her acknowledgment, and to certify their act to the clerk of the court, in order to its being recorded in perpet-ttum rei testimonium. It' has vested them with the power of doing in pais, .for the convenience of the parties', what regularly it is the' province of a court *to do. ' It has authorized them to take that privy examination which; in the levy of a fine, constituted -part-of a judicial proceeding, and’ never could-tie Contradicted. It has empowered'-thein-'to-idke and certify the examination and ackñ'owléSgnient, which it also makes one of the functions'-of its courts of justice, and thus app'ears' to invest' them with an authority judicial in- its nature. ’But above all, it constitutes their certificate the authentic and the solé medium of proving that the feme covert has acknowledged the deed with all the solemnities required by the statute. No other testimony Can be admitted of the fact, and indeed, from the secret character of the proceeding, none other can exist as to the fact. And when to these Considerations we add, that the very object of the privy examination and certificate is to complete, consummate and make final the contract between the parties, 'it must be conceded, I think, that there can be no act in pais of the officers of the law, entitled to greater sanctity than this. All the considerations which forbid the introduction of parol testimony to contradict the written contract of the parties, because it is presumed that what has been definitively agreed on is there set down, conspire with the influence of other principles to protect this solemn consummation of a contract, under the sanction of the magistracy, from being rendered nugatory and void, after the lapse of years, by the slippery testimony of the witnesses.

Nor is it a new principle in the law, to deem the certificates or returns of a public officer, in the execution of his duty, conclusive of the facts which they contain. Thus the official return of an execution by a sheriff is usually conclusive between the litigating parties, though not as between them and himself; for he is liable for his false return ; as in this case the certifying justices may be liable for theirs. So I presume that when the clerk of a court has certified in his deed book, or upon *a deed, that it was duly acknowledged by the parties thereto, the certificate is conclusive of the acknowledgment, and cannot be contradicted. By the same reason the certificate of the justices, who are equally trusted by the law, must be held unassailable by the testimony of witnesses.

Still less consistent with reason or principle would it be, to permit the officer himself to unravel what he has solemnly done. Can the clerk be permitted to undo a deed acknowledged before him, after the purchaser has paid his money or fulfilled the consideration, by swearing that his certificate was false ? And if the clerk cannot do so, upon what principle can the justice? Upon what principle, in short, could the law permit a contract, closed and consummated by the act of the justice or the. clerk, to be opened up and avoided by their testifying to their own official perfidy ? I can see none ; nor do I perceive that we violate the principle of Jordaine v. Lashbrooke, 7 T. R. 601, in rejecting the testimony of the justices in this matter. Though a mere witness may' be admitted to defeat his own attestation, it by no means follows that a public officer should be permitted to defeat a solemn and public act, by contradicting his own certificate of the manner in which he has performed it.

On the whole, I am of opinion to affirm the decree in all things.

The other judges concurring, the decree was affirmed.  