HOFFMAN against COSTER and Others, 2 Whart. 453

The opinion of the court was delivered by Sergeant, J. The first question in this case is, as to the effect of the pardon; whether it removes the incompetency which by law attaches to the offence, and the conviction and sentence thereon. It recites the conviction, and that the sentence was to three years’ imprisonment, and then remits the remainder of the said sentence, on payment of costs. The remainder of the sentence embraces all except that which had been executed, as well what is expressed in the pardon itself, as the legal consequences that flow from it.

A remission of the whole sentence could do no more, since it could not undo what had been done. One of the consequences resulting from the sentence', was the disability of the party to be sworn as a witness ; and when all the sentence is removed, together with the consequences of the sentence, except what had been suffered, this disability is removed. It cannot exist separate from the source from which it is derived. As to the language of the pardon, it does not appear that any particular language or form of words is necessary in such an instrument.

In some of the ancient pardons, a variety of language is to be found; such as acquit, pardon, release, and exonerate. 3 Co. Inst. 234. In others, only the word pardon, lb. 235. In the forms used by the executive of Pennsylvania, the word remit, is employed; and also, it would seem, in those given by the executive of the United States. Nor is it, we conceive, necessary to remit the crime or offence, though that is also often done in the English forms. Our practice is to recite the offence, and conviction and sentence, and then remit the sentence.

And as it is by the sentence the disability attaches, as one of its consequences, this form wmuld seem appropriate. In 3 Co. Inst. 235, it appears that the king’s remitting the indictment, before conviction, pardoned the offence : a fortiori after sentence, remitting the sentence, pardons the offence. The case of the United States v. Lukens, cited in the Notes to the edition of Chitty’s Criminal Law of 1836, p. 770, has been referred to as resembling.the present. But there only part of the sentence was remitted, namely, the. fine.

It did not remit the sentence, or the remainder of the sentence—that remained with all its consequences, except that the fine was forgiven. We are therefore of opinion that Boyer was a competent witness. This opinion renders it necessary to determine the other question which has been argued—whether parol evidence was admissible to show, that the acknowledgment was originally of a sheriff’s deed to Nathaniel R. Snowden, and that afterwards the prothohotary’s clerk, at the instance of Charles. Snowden, and b)'- collusion with him, erased the name of Nathaniel R.

Snowden from the record, and wrote that of Charles Snowden in its stead. This is certainly a serious question in this commonwealth, where from the first settlement of the province, lands have been liable to be sold on judgments and, executions, and vast numbers of titles to real estate are held under sheriff’s deeds.

The security of such' titles would be much impaired, if, after a lapse of years and in a collateral proceeding, the record of the acknowledgment is not to be conclusive, but its truth may be contested, and the fact of the acknowledgment or the authenticity of the official proceeding of the court, may be subjected to. all the doubt, uncertainty and frailty of parol evidence, perhaps after the decease of the most material witnesses. B'or the effect of this evidence is to deny what the record asserts.

The record asserts, that the acknowledgment was of a deed to Charles Snowden., The evidence goes to falsify this, and to establish that the acknowledgment was in reality of a deed to Nathaniel R. Snowden. The acknowledgment of a sheriff’s deed is the official proceeding of a court of record, acting judicially in relation to the matter before it. Ordinary deeds may be acknowledged before a judge or justice of the peace, but a sheriff’s deed can only be acknowledged under the supervision of a court.

Till such deed is acknowledged, the legal title does not pass—the vendee cannot demand the rents or recover possession. By the act of the 6th April, 1802, the deed acknowledged is made conclusive evidence of the purchase. The jurisdiction in relation to the acknowledgment of a sheriff’s deed, is accompanied by the power to set aside the sale or confirm it, to distribute the nqoneys paid into court, and to award issues.

It is a judicial proceeding conducted with all the solemnities of a court of record, affecting matters of the highest moment, and involving, wherever the acknowledgment is received, adjudication on the validity of ‘the sale, and the rights of the parties to the execution and the purchase.

It is therefore not susceptible of being excepted from the ordinary rule, that the proceeding of a court which is by the constitution and laws, a court of record, imports absolute verity—that the record itself, or a certified copy, sub peie sigilli, is conclusive 'as to what it contains—and that no averment, plea, or proof to the contrary, shall be admitted.

The rolls, says Coke, being the records or memorials of the judges of the courts of record, impart in them such incontrollable credit and verity, as they admit of no averment, plea, or proof to the contrary: and if such a record be alleged, and it be pleaded that there is no such record, it shall be tried only by itself. And the reason hereoi is apparent: for otherwise, (as old authors say and that truly,) there should never be an end of controversies—which should be inconvenient. Co. Lit. 260.

Records import in themselves truth, and conclude all men from denying any thing appearing within the l’ecord, as antedate, &c. Hyndes’ case, (4 Rep. 71.) A man may assign error, that whereas the court gave one judgment, they ought to have given another judgment; but a man cannot say that they did not give such judgment, contrary to the words of the record. Br. Error, pi. 140, cited Viner!s Ab. 173; nor say that the judgment entered in the roll was not given by the justices, but entered in the rolls by the clerk—or that the jury was not sworn as the record supposes.

Nor that the jurors gave other verdict than is entered on the roll—nor where the roll is that the jury gave verdict for the plaintiff, he shall not say they gave verdict for the defendant. Bro. Ab. cited lb. He puts other cases and concludes, ‘he may assign error in a thing apparent or matter of fact out of the record, but he shall not falsify the record, as it is said elsewhere, and note a diversity.’ Br. Ab. cited lb.

These elementary principles, long since become general rules and maxims of the law, are so familiar; and indeed are so obviously necessary to the certainty of title and security of property, that it appears almost superfluous to cite them, did they not apply so directly to this case.

And if such averment cannot be made in error, much less can it be made in a collateral proceeding; or one court undertake to institute an inquiry -on parol evidence, whether the record of another court is or is not true—whether it has been duly kept by the officer—whether it has been altered, and if altered, whether that alteration was authorized or unauthorized. Every court of record is the guardian and judge of its own records. It is clothed with full power to "control and inquire into them, and to set them right, if incorrect.

They are placed in the custody of an officer, who is appointed by the executive, whose duty it is to preserve them pure and regular; who is sworn to perform that duty, and required to give security; and who is at all times subject to the supervision of the court. For any criminal alteration of the record, he and all concerned, would be subject to infamous punishment, by the act of 170Ó, as well as to the payment of double the damage sustained.

These are the precautions which the law provides for .the faithful keeping of the records; and under these precautions, it gives full faith and credit to them, and wdll not allow their verity to be questioned. Omnia presumuntur rite et solemniter esse acta. The law will not, says Lord Coke, admit any proof against the vehement and violent presumption of law, that a justice sworn to do justice well, will do no injustice. 12 Rep. 24. s In la'er times, our own courts and others, have repeatedly recognized this doctrine, and acted on it. In Selin v.

Snyder (7 Serg. & Rawle, 171,) parol evidence was offered to show that Mary Kendig never had authorized the use of her name in an application to the Orphans’ Court to sell real estate. Yet because by the record it appeared, that she with others, came into court, and petitioned for an order of sale, and made return of sale, the evidence was rejected. Tilghman, C. J. says, the assertion on the record, that the parties appeared in court, must be taken for absolute verity. The truth of their records concerning matters within their jurisdiction, cannot be disputed.” In M‘Pherson v.

Cunliffe, (11 Serg. & Rawle, 437,) a sale was made by order of the Orphans’ Court to pay debts and support minor children of a deceased husband. After some years it turned out that the marriage was void, and the children illegitimate; yet the court held that the order of sale and decree of confirmation could not be thus impeached. Mr. Justice Duncan, in delivering the opinion of the court says, that the determination of the court in the recent case of Selin v. Snyder, restored the law by declaring that testimony shall not be received to contradict the record. Tn Kennedy v.

Wachsmuth, (12 Serg. & Rawle, 171,) the Orphans’ Court amended the record by adding to it the affirmation of an administrator of the amount of the intestate’s debts exhibited to the court eight years before. Tilghman, C. J. says, “ in considering the record before us, we now take it that the affirmation of Lewis wras made previous to the order of sale—then it is all right, for the record cannot be contradicted.” In Adams v. Betz, (16 Serg. & Rawle, 425,) it was held to be error to leave it to the jury to decide,, in a dispute between judgment creditors, at what time a judgment was entered. Mr.

Justice Ross,- in delivering the opinion of the court, after examining the authorities fully, says that a record found in the office, shall be intended to have been always in the same place in which it is found, and that parol evidence cannot be received to prove it wrong, though it might be admitted to prove it right. He refers to the cases cited to the contrary, and says that on examination it will be found, that the parol proof was only admitted when the record was lost or so obliterated as not to be legible. The case of Meredith v. Shewell, (1 Penn.

Rep. 495,) where the sheriff was admitted to prove that a line drawn through his indorsement on a writ returned', was not made by him, can only be supported, it appears to me, on the ground that it was to explain an ambiguity; although even in that point of view, Dickson v. Fisher, (1 W. Bl. 664,) seems to be a decision the other way. In Garrick v.

Williams, (3 Taunt. 347,) the enrolment of a deed stood unquestionably wrong, and four years afterwards it was made right by the .clerk of his own authority; yet the court would not listen to any argument on the misconduct of the officer; the Chief Justice saying, that no averment or evidence shall be received to show that the date is incorrect. Afterwards the same case came before the Court of Chancery, and the Chancellor said, that if the record had been altered contrary to what it ought to have been, application ought to have been made to the keeper of the records to set it right. In The King v.

Hopper, (3 Price’s Exchequer Reports, 495,) this case was recognized as a strong case, and bottomed on sound authorities; and it was held, that the endorsement by the clerk of the enrolments, of the day of enrolment by way of date, is a part of the record, and cannot be averred against; nor is evidence admissible to show that it was in fact enrolled on some other day, and that, although the date be written on an erasure.

It is contended by the plaintiff, that fraud and collusion constitute an exception to the general rule, and that persons to be affected by .suchfraud and collusion may prove them, and thus avoid the effect of a judgment or decree otherwise binding. Here, however, it is necessary to distinguish. The general rule is, that wherever a matter comes to be tried in a collateral way, the decree, sentence, or judgment of any other court having competent jurisdiction, shall be received as conclusive evidence of the matter so determined.

That is to say, when it is legally received in 'evidence, such is its operation and effect—it is conclusive, and evidence is not admissible to contradict it. Amb. 761. It is for this reason that, in general, a verdict and judgment, or record or other judicial proceeding between other parties, is not admissible in evidence to affect strangers—because they have had no day in court to contest it, nor have they a right to bring a writ of error to reverse it.

There are cases, however, in which the judgment, sentence, or record of a court adjudicating on the point before them, is admissible in evidence, in a cause between other parties. As where it is a link in a chain of title, Burr v. Grotz, (4 Wheat. 213); or where it is a decree or order of a court in relation to the property or matter in question before them—such as a probate of a will—a decree in relation to marriage or divorce—a decree of condemnation of goods under revenue laws—a discharge under insolvent laws—an order of'sale by the Orphans’ Court—a final settlement of an administration account, and others.

In such cases, if the proceeding were adversary in its character, it is ordinarily binding and cannot be controverted. It is not permitted a third person to allege that the decree, sentence or judgment of a court of competent jurisdiction was obtained by imposition, fraud or forgery, practised on the court, or by mistake, wrong or injustice. The merits cannot be thus overhaled and re-examined in a collateral proceeding.

It is either not at all admissible in evidence, as to third persons, or if admissible, is conclusive as to every thing it directly decides as the matter in question—though not as to inferenees that might be drawn from it. 1 Phill. Ev. 242, 254. Amb. 761. I speak of the effect in a civil proceeding, and not in a criminal one. Thus in Noel v. Wells, (1 Lev. 235,) the court would not receive evidence to prove that a will of personal property was forged in contradiction to the probate.

Evidence will not be admitted to prove that another person was appointed executor, or that the testator was insane; for that would be to falsify the proceedings of the ordinary, in cases where he is the exclusive judge, Ib. So, in Meadows v. The Duchess of Kingston, the plaintiff filed a bill to set aside a bequest by the duke to the defendant, on the ground that she had imposed herself on him as a single woman, being previously married. The defendant pleaded a decree in the ecclesiastical court in her favour, in a suit by her against her first husband of jactitation of marriage.

The Lord Chancellor held it conclusive. He says, “ I lay it down as a general rule, that whenever a matter comes to be tried in a collateral way, the decree, sentence or judgment of any other court, having competent jurisdiction, shall be received as conclusive evidence of the matter so determined.” Amb. 761. 1 Phill. Ev. 264, 267. In Sheets v. Hawke, (14 Serg. & Rawle, 173,) it was decided that the record of the discharge of an insolvent debtor is conclusive as to the fact of his having complied with, all things required by law to entitle him to a discharge, and cannot be inquired into in a collateral action.

Parol evidence is not admissible to show the grounds of a decree of the Court of Common Pleas. Gallagher v. Kennedy, (2 Rawle, 163.) A judgment of a court of competent jurisdiction discharging a debtor under the Bread act, cannot be impeached collaterally by proof that at the time of his discharge he had a sufficient sum of money about his person to discharge the debt. M’Kinney v. Crawford, (8 Serg. & Rawle, 354.) To the same point might be cited the cases of Wright v. Deklyne, (1 Pet. Rep. 202.) Berks and Dauphin Turnpike Co. v. Kendel, (11 Serg. & Rawle, 123,) and indeed there would be no end of citing them.

I shall only refer to the case of Slocum v. Slocum, (3 Cranch, 300.) There the court below instructed the jury that a fraud practiced by a debtor in obtaining his discharge under the insolvent law avoided the discharge and left his security liable for his bond not to depart from the prison rules. But the Supreme Court of the United States held this construction to be erroneous and reversed the judgment, saying that the judgments of a court of competent jurisdiction, although obtained by fraud, have never been held void, and therefore all acts performed under them are valid as far as respects third persons.

The only exception to the rule w'hich has been allowed of, when such judgment or proceeding is given in evidence against third persons, is, that they may aver and prove that such judgment or proceeding was procured or kept on foot by covin or collusion between the parties to it; and in such case, though binding between themselves, its operation as to third persons may be defeated. Fermors’ case, (3 Co. 77,) however, where the rule is stated that all acts mixed with fraud and deceit, whether judicial or otherwise, are wrongful and unlawful, was the case of a common assurance not of an ordinary judicial proceeding.

There a lessee for years levied a fine by covin with another, in order to gain the fee by the statute of non claim; but it was held not binding in his favour against the reversioner. Some of the cases cited there are of judicial proceedings. Thus a widow entitled to dower, by covin between her and .another, caused a stranger to disseise the tenant, in order that she might bring a writ of dower against him, which she did and recovered ; yet though she had a good title, the -whole was considered void and of no force to bind the terre-tenant.

But if the proceeding were adverse, if the party, as Lord Coke says, venil tanquam in arena, it is otherwise. Thus it is said in the same case, if a disseisor, (although he gains, the possession by wrong,) levys a fine with proclamation, yet it shall bind the disseisee.

In the Duchess of Kingston’s case, before the House of Lords, on her indictment for bigamy, she set up a sentence in her favour in the ecclesiastical court, on a suit for jactitation of marriage, between her and her husband, but it was held that the crown, in a criminal prosecution might aver and prove that the sentence was obtained by covin and collusion between her and her husband. 1 Phill. Ev. 266. So in reply to a plea by an executor, of judgments recovered, a creditor may reply per fraudem; and a creditor affected by the lien of a former judgment may show it was obtained by covin.

In all these cases, thg record itself is not controverted; it is binding between the parties to the fraud; but a stranger may prevent those concerned in it from employing it to his prejudice. But the exception does not apply to parties or privies. The record is conclusive evidence against them in a collateral proceeding; and they cannot invalidate it by giving evidence of fraud, but must apply to the court which pronounced the judgment, to vacate it. 1 Phill. Ev. 266. In the case of Proudham v.

Phillips, cited Ambl. 761, the plaintiff brought assumpsit against the defendant, who gave in evidence her marriage with Merüman. The plaintiff then produced a sentence of the ecclesiastical court annulling this marriage, for that when solemnized, the defendant was married to Delafieid. The defendant offered to prove that the sentence was obtained per fraudem. Willes, C. J., after much debate, took a distinction between the case of a stranger who cannot come in and reverse the judgment, and therefore must of necessity be permitted to aver that it is fraudulent, and the case of one who is party to the proceeding.

If he plead that the judgment was fraudulent, he cannot give evidence of it, but must apply to the- court which pronounced the sentence to .vacate the judgment; and if both parties colluded, it was never known that either of them could defeat it. An action will not lie against the defendant for obtaining a decree in chancery, by false and forged evidence ; such decree being still in force. Peck v.

Woodbridge, (3 Day, 30.) And where an action was brought in the Supreme Cpurt of New York against a defendant for suborning a witness to swear falsely in a oause in Connecticut, whereby judgment was given against the plaintiff, contrary to the truth and justice of the case, it was held the action would not lie. Keatt, J., relied on the conclusiveness of 'the judgment in Connecticut, which it was attempted to open in a collateral action; Smith v. Lewis, (3 Johns. Rep. 157.) In a suit on a judgment in another state, the plea that it was obtained by fraud, mistake, or want of consideration, is not admissible.

Benton v. Bergot, (10 Serg. & Rawle, 240.) Here Nathaniel R. Snowden was a party in the judgment, execution and proceedings, in the Court of Common Pleas of Berks county, where this acknowledgment took place. The judgment was recovered to his use; he was the plaintiff, -and his remedy, if the record were fraudulently or improperly altered, was an application to that court to correct it.

That court had full power to inquire into the matter by inspection of its record, by examination of its officers, by. compelling the attendance of witnesses, and we must take it for granted, if they were convinced the record was improperly altered, would have amended it, provided the application wrere made in due season, and the rights of third persons not thereby affected. This was the proper remedy instead of an ejectment in another court, and an effort there to condemn the existing record, and create a new one by parol evidence.

There is another feature in the proposed inquiry, which is also constituted a strong objection. And thqt is, that according to the evidence- offered, the alteration of the record was made by the prothonotary’s clerk. The act of the clerk in his capacity as such, is (speaking civiliter,) the act of the prothonotary, who is the maker and keeper of the records, under the supervision of the court. It is then the record of the court made by the proper officer, and another court cannot say whether the record made by the proper officer, was properly made or not, whether he did right or wrong.

If his conduct was criminal, he ought to be indicted and heard in his defence. If simply improper, without criminal motive, the court of which he is an officer, is the only jurisdiction that can examine this, and correct it. If different courts undertake to investigate it, they might come to different conclusions. Some might condemn it, while the court itself approved it, and adhered to it as their record. In Br. Ab. Record, pl. 45, 18 Vin.

Ab. 173, there is this case: “ Record of outlawry of divers persons was certified in the exchequer, among whom one was certified outlawed, and was not outlawed, and that his goods were in the hands of J. N. And upon process made against him, he came and said he was not outlawed; and parcel of the writ came by writ of the chancery out of B. R. into the Exchequer; and Green-, Justice of B. R., came into the Exchequer, and said he was not outlawed, but that it was misprision of the clerk.

Skipwith said, though all the justices would record the contrary, .they shall not be credited when we have the record that he is outlawed. Query, what remedy is for the party 1 It seems it is by writ of error, inasmuch as there is no original against him, but only record of outlawry without original.” Now here one of the judges of the court of King’s Bench, moved no doubt by the injustice of the thing, went into the Exchequer to remonstrate, and to testify that the record before them from the court of King’s Bench was not true; that it was a misprision, (or criminal offence, 4 Bl. Com. 119,) of the clerk.

But the judges of the Exchequer would not listen .to the evidence of the judges of the King’s Bench, because it was irregular and illegal, inasmuch as it went to falsify the record, which the clerk had estreated into the exchequer. We are therefore of opinion that the contents of the deposition of Boyer were not legal evidence in the present suit. There was another point in this case which seemed at first to require an opinion, and that was, whether Charles Snowden was not to be deemed a trustee for Nathaniel R. Snowden.

On consideration, however, we are of opinion that it does not fairly arise in the case as it appeared in the Court of Common Pleas, and is now before us, owing to its being placed by the plaintiff throughout on the other ground, namely, that the deed was to Nathaniel R. Snowden, and the legal title in him. If the plaintiff had sought to make Nathaniel cestui que trust, he was bound to produce the deed to Charles Snowden, or prove its contents, if lost, or not produced on notice.

The acknowledgment was not evidence, without the preliminary proof; and the plaintiff’s case is now destitute of any legitimate evidence of the deed to Charles Snowden, considered in this point of view. Judgment affirmed.