§ 63. Where the party is entitled to any of the relief prayed for, a general demurrer must be overruled.

It is, therefore, very clear to my mind that the unlimited right of a citizen of the United States to inspect and examine all the records and papers belonging to the court does not exist. The right to examine certain records and papers does exist. It exists as to the books containing the docket or minute entries of the judgments and decrees of the court, and these the petitioners allege that they have been refused by an officer of this court. The prayer of the petition is not in accordance with this averment, and the affidavit is different from both. This petition, however, must be governed by the rules of pleading in other cases, so far as the demurrer is concerned. If the party is entitled to any part of the relief he prays for, a general demurrer must be overruled.

This application for the interference of the court is based upon the allegation that the petitioners have been deprived of a right given them by the law by an officer of the court. This is denied on behalf of the officer by two members of the bar who are officers also of this court, and who appear in this proceeding on behalf of the clerk. This is a charge which the court is interested in having examined, and the truth or falsity thereof established. The demurrer will therefore be overruled, but no order will be made until a further hearing of the matter is had before the court, when we shall finally determine whether the petitioners are entitled to the order as prayed for.

BAXTER, J., concurred.

COCKE v. HALSEY.

(16 Peters, 71-88. 1842.)

Opinion by MR. JUSTICE DANIEL.

STATEMENT OF FACTS.-This cause comes before this court upon a writ of error to the circuit court of the United States for the southern district of Mississippi.

The statement of the case upon which the questions presented here for decision arise, is, as agreed by the parties upon the record, substantially the following: On the 24th of March, in the year 1838, James Carter and Lewis Grigsby, merchants, executed a deed of trust to one William L. Moore, as trustee, to secure the payment of certain sums of money to the Commercial Bank of Columbus. This deed was regularly acknowledged by the grantors, before a justice of the peace, on the 29th of March, 1839, and delivered to one William P. Puller, who had been appointed clerk pro tempore of the probate court of the county of Lowndes, in said state, and who recorded the deed in the office of the clerk of probate for said county, and indorsed thereon a certificate of record, signed William P. Puller, clerk pro tempore. That at the time this record and certificate were made by Puller, as clerk pro tempore, one Robert Haden was the clerk of probate for the county of Lowndes, duly elected, qualified and sworn; that Haden was elected in November, 1837, for two years, and entered on the discharge of his duties in the month of February, 1838; that Haden visited the state of Tennessee on business, and did not return in time to perform the duties of clerk at the March term of 1838. In consequence of his absence, the judge of probate, upon commencing the court of probate of the March term of 1838, appointed Puller to act as clerk during the absence of Iladen. The deed of trust to Moore was recorded by Puller during the

absence of Haden, but after the March term of the court. Haden afterwards returned and resumed the duties of his office.

The original trustee, William L. Moore, having died, the superior court of chancery of the state of Mississippi, at the January term, 1839, duly appointed Stephen Cocke, the plaintiff in error, trustee in lieu of Moore. At the May

term of the circuit court of the United States for the southern district of Mississippi, the defendants in error obtained a judgment against James Carter & Company. Execution was sued out upon this judgment, and levied by the marshal on the property mentioned in the trust deed, in the possession of Carter & Company. Upon the levy being made, Stephen Cocke, the trustee, claimed the property, gave the bond required in such cases by the law of Mississippi; and an issue was duly made to try the right to the property. Upon the trial of this issue, the following question was submitted to the court for its opinion thereon, namely: That if the deed of trust was properly and legally recorded, then it was admitted that the judgment in question was not a lien upon the property conveyed by the deed, and the trustee was entitled to the same; otherwise, if the deed was not legally recorded, the property was subject to satisfaction of the judgment. Upon this question the court below adjudged that the trust deed was not duly recorded; that the acts of Puller, as clerk pro tempore, in recording the deed, were without authority of law, and altogether void, and so instructed the jury. To this opinion of the court, thus given, the plaintiff in error excepted, and brings that opinion before this court for examination.

64. Appointment of clerks of courts in Mississippi.

The fourth article of the constitution of Mississippi, thirty-first section, declares that the judicial power of that state shall be vested in one high court of errors and appeals, and such other courts of law and equity as shall be afterwards provided for in that constitution. The same article, after authorizing and ordaining various superior tribunals in which the judicial powers shall be vested, at length, in the eighteenth section, declares that there shall be established, in each county in the state, a court of probates, the judge whereof shall be elected by the qualified electors of the county for a period of two years. The nineteenth section of the same article declares that the clerks of the circuit, probate and other inferior courts shall also be elected by the qualified electors of the county for the period of two years. See Laws of Mississippi by Howard and Hutchinson, 24, 26.

The legislature of the state, in organizing their judiciary, as it was indispensable they should do (as the constitution had limited its own action to the direction that the courts therein named should be established, leaving their organization and distribution to the legislative authority), by a statute passed in March, 1833, and by sections 1, 2 and 3 of that statute, established a court of probates in each county of the state; provided for the election of judges and clerks of the several courts, prescribed to them the oath of office they should take, and to the clerks the bonds they should execute before assuming their official functions. Laws of Mississippi, 469. By the eighth section of the statute the legislature declared that in case the clerk of probate "shall be at any time unable, from sickness or other unavoidable causes, to attend said court, it shall be lawful for the judge of probate to appoint a person to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office," etc. Vide p. 470, Laws of Mississippi. By the fifth section of the same statute vacancies in the offices of judge and clerk are to be filled

as the original appointments were made, viz., by election. By the fifth section of another statute of Mississippi, concerning real estate and conveyances, passed June 13, 1822, it is declared that deeds of trust and mortgages shall be valid as to subsequent purchasers for valuable consideration without notice and as to all creditors, from the time when such deeds of trust or mortgages shall have been acknowledged, proved or certified, and delivered to the clerk of the proper court to be recorded, and from that time only. From this provision the question of priority arises.

In support of the decision of the circuit court it has been insisted that the power of the judge of the probate court to appoint a clerk of probate, pro tempore, is limited to the term of the court and to the exigencies and necessities of the term, and does not extend to a period beyond the term, nor to any acts performed by the person so appointed out of court. From this position, claimed by counsel as a legitimate deduction from the statute, it is argued that the clerk, having been appointed by an exercise of power wholly illegal and void; nay, even without color of authority, his acts, too, must be merely void, and not entitled to the effects properly attributable to the acts of one who may be considered as an officer de facto, in contradistinction to him whose commission and qualification are in all respects regular, and who, therefore, may be called an officer de jure and de facto.

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the statute does not limit the appointment of a clerk pro tem. to the session of court.

In reasoning from the language of the statute it would seem difficult to perceive anything in it which limits the appointment pro tempore to the session of the court. The expression in the law is, "from sickness or unavoidable causes; now, it is quite as probable that these causes would operate beyond as well as during the continuation of the court. The only fair inference deducible from the words of the law is, that the causes requiring an appointment should, like the appointment itself, be temporary, so that the provision of the statute should not be perverted to cover a permanent disqualification of the regular clerk, and thereby prevent his removal or the election of a successor, under proper circumstances. The precise duration of that temporary cause it could hardly have been the intention of the law makers to define. To ascribe to them an intention to restrict the duties of a clerk, pro tempore, to the session of the court, would be imputing to them an act of utterly useless legislation, since none can fail to perceive, on looking into the law, that the duties of the clerk of probate are as extensive and as important during vacation as they are during term time, if, indeed, they are not more so.

66. Powers of officers de facto.

Several authorities have been cited in argument, some from the English and some from the American cases, in order to show that the recording of the trust deed in question, by the clerk of probate, cannot be supported even as the act of the clerk de facto. These authorities, however, do not establish the position they have been brought to maintain, and in some instances they operate directly against it. The first case relied on (and it is a leading case) is that of The King v. Lisle, Andrews, 163, 174. This was a quo warranto to remove a burgess of Christ Church, on the ground that he had been nominated by one Gold wire, calling himself mayor of the corporation, when he had never been appointed mayor. The court say, the nomination by Goldwire could not be supported, because he was not even by any colorable title or pretext mayor of the corporation; evidently putting his act on the same footing with an

attempt at usurpation by any other private person. There is a remark by the court in delivering its opinion, which is regarded as not without its bearing upon the present case, and that, remark is this: "That supposing Gold wire was mayor de facto, yet the acts here found to be performed by him are not good, because they were not necessary for the preservation of the corporation." In these cases the court say: "The proper distinction is between such acts as are necessary and for the good of the body, which comprehend judicial and ministerial acts, and such as are arbitrary and voluntary." The second case from the English books is that of Knight v. The Corporation of Wells, 1 Lutw., 509, 519. This was an action of debt against the corporation, upon their bond to the wife of the plaintiff; and the objection taken to the recovery was, that the person who put the corporate seal to the bond was not qualified by the charter to be mayor. He had been elected to the office of mayor, however. The case seems to have been much considered, for it was twice argued; and it was resolved by all the court, that although the mayor might not be qualified according to the charter, yet he had been elected, and, in virtue of his election, was mayor de facto, and that, therefore, all judicial and ministerial acts performed by him were good.

The cases of The People v. Collins, 7 Johns., 549, and of McInstry v. Tanner, 9 Johns., 135, are in the strictest accordance with the authority from Lutwyche. In The People v. Collins, the court say, in speaking of the powers exercised by the officers whose acts were impeached: "They were commissioners de facto, since they came into office by color of title, and it is a well-settled principle of law, that the acts of such persons are valid when they concern the public, or third persons who have an interest in the acts done; and this rule is adopted to prevent the failure of public justice. The limitation of this rule is as to such acts as are arbitrary and voluntary, and do not affect the public utility. The doctrine on this subject is to be found at large in the case of The King v. Lisle, Andrews, 163." So, too, in 15 Mass., 180, Bucknam v. Ruggles, this matter is very fully treated. The court say that, although the officer did not comply with the requisites of the constitution, yet, having been appointed, and thus having color of title, his acts are valid in respect to third persons who may be interested in such acts; that such a rule is necessary to prevent a failure of justice. Besides, the officer's title to his office ought not to be determined in a collateral way. In addition to other authorities to this point is quoted 3 Cru. Dig., tit. Officers, secs. 71, 75, for the principle that, by the test and corporation acts in England, all persons are disabled in law to all intents and purposes to hold certain offices, unless they take the oaths required; yet, notwithstanding this disabling clause, it has been held that the acts of officers not qualified by those statutes may be valid as to strangers. The case of Williams v. Peyton, cited for the plaintiff in error, from 4 Wheat., 77, is thought to have no application to the question now under consideration; all that was ruled in that case was this: that where a title depends upon the acts of a ministerial officer to be performed in pris, proof of the performance of those acts is necessary to sustain such title; a principle which none, perhaps, will dispute; but, whether affirmed or denied, cannot apply to the present case. So, too, of the case of Davison v. Gill, 1 East, 64, having been ruled exclusively upon a provision of the statute, 13 Geo. 3, ch. 78, requiring that certain proceedings of justices should, in relation to closing and opening ways, in order to give them validity, appear on the face of those proceedings, in a prescribed schedule or form set forth in the statute, is considered as wholly inapplicable.

If, then, the appointment and the acts of the clerk of probate depended for their validity upon the principles which apply to the acts of officers de facto, a just interpretation of the authorities adduced in behalf of the plaintiff in error gives validity to both. That the judge had power to appoint a clerk pro tempore seems never to have been questioned; that he did appoint is equally indisputable the irregularity alleged is in the failure to limit the appointment to the term of the court. Admit, for the present, that the appointment should have been thus limited, and that the clerk has admitted the deed to probate after the term, yet, in his character of clerk, was he not within the very definition of the authorities, and within the concessions of the council, clerk de facto, acting colore officii; and must not his acts, therefore, be valid so far as regards third persons who are interested in them? An affirmative answer to this inquiry is unavoidable.

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the decision of the judge upon the exigency is final as to rights of third parties depending upon it.

But the appointment of this officer, and his acts when so appointed, rest upon a foundation still broader and firmer than that which sustains the actings of an officer de facto. By the law of Mississippi, the judge had the power to appoint, pro tempore, whenever from sickness or unavoidable causes the clerk could not attend. By the investiture of that power, it remained with the judge, in the exercise of judicial discretion, to decide upon the propriety and necessity for the execution of the power; he did decide upon them, and he must be presumed to have decided properly. The correct legal principle applicable to such proceedings is this: That in every instance in which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until it shall be regularly reversed by a superior authority, and cannot be affected, nor the rights of persons dependent upon it be impaired, by any collateral proceeding. This principle has been too long settled to admit of doubt at this day, and has been repeatedly and expressly recognized in this court, as in the cases of Thompson v. Tolmie, 2 Pet., 157 (§§ 475–479, infra); United States v. Arredondo, 6 Pet., 720; Voorhees v. Bank of the United States, 10 Pet., 473, and The Philadelphia & Trenton Railroad Company v. Stimpson, 14 Pet., 458. It cannot, then, be permitted, in this collateral inquiry, to insist that the judge has either misapprehended or transcended his authority; he has exercised the discretion vested in him by the statute; that discretion has led him to the conclusion that the necessity for an appointment was co-extensive with the absence of the ordinary clerk, an absence deemed by him unavoidable; and the discretion of the judge pro hac vice, at any rate, must be conclusive. But beyond these legal presumptions, this court, upon a review of the constitution and statute of Mississippi, are satisfied that the appointment of the clerk of probate pro tempore was fully warranted in the manner and to the extent in which it was made. They therefore decide that the decision of the circuit court for the southern district of Mississippi is erroneous, and accordingly do reverse the same.

IN RE WORTHINGTON.

(Circuit Court for Wisconsin: 7 Bissell, 455-459. 1877.)

Opinion by DRUMMOND, J.

STATEMENT OF FACTS.- On the 24th of December, 1874, Charles E. Storm and Robert Hill recovered a judgment against the bankrupt in the circuit court