even if by the officer himself, and is to be | goldsby v. Juan, 12 Cal. 564; Smith v. Dall, controlled by the designation following his signature, which is to be presumed to have been made by him, and to have been a subsequent, if not the last, act in the matter. Carlisle v. Carlisle, 78 Ala. 542.

court.

66

In

13 Cal. 510; Jones v. Martin, 16 Cal. 166;
Griffin v. Sheffield, 38 Miss. 359, 77 Am.
Dec. 646; Hedden v. Overton, 4 Bibb, 406:
Sneed v. Ward, 5 Dana, 187; Ballard v.
Perry, 28 Tex. 347; Witt v. Harlan, 66 Tex.
660; Coffey v. Hendricks, 66 Tex. 676: Gale
v. Shillock (Dak.) 29 N. W. Rep. 666.
Jones v. Martin, supra, where, as here, the
body of the certificate indicated a seal by
apt words, the words "No seal" appeared in
the certified copy, where the notarial seal
should have been; and it was held that these
words did not imply that no seal was affixed
to the instrument by the notary who took the
acknowledgment, but was a mere note of the
recorder of the place of the notarial seal,
which he probably had no means of record-
ing, and which it was not necessary that he
should record.

In what has been said, the fact that the acknowledgment was taken by a deputy, if taken in the capacity of clerk of the superior court, instead of that of a justice of the peace, has not been noticed. In Hope v. Sawyer, 14 Ill. 254, a question arose upon the legality of the record in Illinois of a deed acknowledged in Missouri; the certificate of acknowledgment being signed in the name of the clerk of the circuit court, "by E. Baker, Deputy Clerk." It was objected that the acknowledgment should have been made before, and certified to by, the clerk, in person. "The objection," says the opinion, is not well founded. The ac- As it is to be presumed from these words knowledgment purports to have been taken of the certificate that a seal was impressed by the clerk, and it is certified in his name upon the original, the only distinction beand under the seal of the court. Prima facie, tween the case at bar and those cited from this is sufficient. The seal of the court Illinois and Missouri is that here the certifiproves itself, and we must presume that it cate is signed by the deputy simply in his was affixed by the proper officer. The pre-own name, without using that of the clerk. sumption is that the clerk was authorized by There is conflict of authority as to how such the laws of Missouri to act through a deputy, certificates of acknowledgment should be and that Baker was regularly appointed as executed when they are made by deputies. such. The deputy had the power to use the In Tennessee it was held (Beaumont v. Yeatname of the clerk, and attach the seal of the man, 8 Humph. 542) that such certificates The certificate in question should be in the name of the deputy; and was none the less the act of the clerk because likewise in a late case in Georgia, where an made by his authorized deputy." Devlin, acknowledgment was taken out of the State, Deeds, 475; Webb, Record Title, § 62. (MacKenzie v. Jackson, 82 Ga. 80,) and in In Small v. Field, 102 Mo. 104, where an California a certificate was held valid which acknowledgment of a deed to land in Mis. stated that "before me, the undersigned, souri, taken before a deputy-clerk of a terri- county clerk of Sonoma County, personally torial district court in Washington Territory, appeared. " and was signed "John was held sufficient, notwithstanding the A. Brewster, Deputy County Clerk of Sostatutes of the United States providing for noma County, the principal's name not the appointment of the clerk of such court appearing (Touchard v. Crow, 20 Cal. 150, made no provision for a deputy, though 81 Am. Dec. 108). See also Rose v. Newdeputy-clerks of territorial courts are ex-man, 26 Tex. 131, 80 Am. Dec. 646; Cook pressly spoken of elsewhere in the statutes, v. Knott, 28 Tex. 85. In Talbott v. Hooser, the Supreme Court of Missouri observed: 12 Bush, 408, where the acknowledgment "If necessary to uphold this certificate, we was in fact taken by the deputy-clerk would presume that a law of the territorial but the name of the clerk alone was signed legislature was in existence authorizing the by such deputy to the certificate, the acappointment of a deputy-clerk. knowledgment was decided by the Supreme Moreover, the seal of the court, being affixed Court of Kentucky to be valid, and this, to the certificate, carries with it prima facie too, although the deputy was a minor; the evidence that it was rightfully affixed, and statute not prescribing the qualifications of throws the burden of overcoming the prima a deputy. The doctrine of this case is that facie case thus made on the objectors to the all official acts should be done in the name sufficiency of the certificate." Musser v. of the clerk, and not in that of the deputy. Johnson, 42 Mo. 74, 97 Am. Dec. 316. The view expressed in Devlin on Deeds In the case before us, it is to be presumed, ($ 474) is that the signature of the deputy from the words of the certificate to such alone does not invalidate the acknowledgeffect, that the seal of office of the clerk ment, but that the better practice is for the of the superior court was impressed upon deputy to sign the name of the principal, by the original certificate. The absense from himself as deputy. That this is the better rule the record or from the transcript of such seal in all cases where a deputy acts, we will not or anything as representing it, is not suffi- deny; but in view of the conflict of authorcient to overcome the presumption created ity, and the liberal views governing, in cases by such words. The ordinary provisions of of these acknowledgments, we cannot hold statutes regulating the recording of instru- this certificate invalid on account of the ments do not contemplate the inscription of manner in which the deputy has signed, but public official seals upon the record. Devlin, must regard it as sufficient in this respect; Deeds, 700; Webb, Record Title, 74; and this being so, and the presumption being Geary v. Kansas, 61 Mo. 378; Hammond v. that the official seal of the clerk of the SuGordon, 93 Mo. 223, 11 West. Rep. 904; In-perior Court of Thomas County, Ga., was

affixed to the original certificate of acknowl- | above? The Act of 1873 was, in effect, an edgment, and rightfully so, (Touchard v. amendment of the existing prior legislation Crow, Small v. Field, supra,) the certificate referred to in this opinion. As has been must be sustained, though executed by a shown in the statement of that legislation, deputy and in another State. That the act is a purpose of it was the regulation of the one which in its nature may be preformed by acknowledgment and proof, made out of the a deputy cannot be denied (Devlin, Deeds, State, of deeds of lands here, for the purpose $ 473; Webb, Record Title, § 62;) and there of their being used or recorded here. Upon is in view of the authorities cited above as the approval of the Act of 1873 the acknowlto deputies, and the manner in which they edgment of the deed became as valid as it may sign, in the fact that the name of the would have been, from the date of its execlerk does not appear, nothing to except this cution, had it been acknowledged after the certificate from the rule which presumes approval of the Act; and a record of this prima facie that the appointment of Brace- deed, made upon the originally defective well as the deputy clerk was valid. Hope acknowledgment, immediately after the statv. Sawyer and Small v. Field, supra. ute became operative, would have been as valid, for all purposes involved in this cause, as if the deed had been acknowledged subsequent to the approval of the statute. This deed, as acknowledged, standing upon the record, as it did at the time the Act became effective, we see no good reason why the record was not, from that time, as valid as if it had been made immediately after the approval of the statute; or, in other words, why it was not duly recorded from that time. Such, we think, was the logical and necessary effect of the statute upon the existing record. The deed was duly recorded from that time, and the record or a certified copy was admissible, under the section of the Constitution set out above. East v. Pugh, 71 Iowa, 162; Fowler v. Merrill, 52 U. S. 11 How. 375, 13 L. ed. 736.

If we refer the taking of the acknowledg. ment to Bracewell's capacity as justice of the peace, then the certificate shows that he had an official seal, as such officer; and no other evidence of such capacity is required by the Act of 1873, supra.

In Carpenter v. Dexter, supra, it is an nounced as law that where one State recognizes acts done in pursuance of the laws of another State the courts of the former will take judicial cognizance of those laws, so far as may be necessary to determine the validity of the acts alleged to be in conformity with them. We find no other decision to this effect, the general rule being that the statute law of another State is to be

proved according to the law of the former, in which the trial is had. Tuten v. Gazan, 18 Fla. 751; Session v. Doe, 7 Smedes & M. 130; Whart. Ev. § 302; Greenl. Ev. $$ 486, 489. We may remark, however, that we are not advised that the application of the rule announced by the Supreme Court of the United States would have led to a conclusion against the validity of the acknowledgment in question.

A further question, suggesting itself, is what effect is to be given the fact that the record in Marion County was made before the Act of 1873? Does this fact except such record, or a transcript thereof, from the effect of the provision of our Constitution set out

SOUTH CAROLINA J. T. WILLIAMS et al., Receivers of the Georgia Construction & Investment Co.,

v.

W. C. BENET.

(........S. C.........)

No objection that the original was not within the custody or control of the party offering the copy appears to have been made, and hence we conclude that this requirement was complied with or waived.

That the officer acted within his jurisdiction appears sufficiently upon the face of the certificate. Devlin, Deeds, 482, 486.

Other assignments of error need not be noticed.

The judgment must be reversed, and remanded for proceedings not inconsistent with this opinion. It will be so ordered.

SUPREME COURT.

2. A person learned in the law com. missioned by the governor under Const., art. 4, § 6, to take the place of an associate justice of the supreme court, who is disqualified to sit in a particular case, becomes pro hac vice the associate justice of that court so far as that case is concerned.

(January 12, 1892.)

1. There is a quorum of the supreme court under a constitutional provision that the court "shall consist of a chief, the Court on April 23, 1891, for the alOTION to set aside a judgment rendered justice and two associate justices, any by two of whom shall constitute a quorum" where the two associate justices or one of them and a person "learned in the law," commissioned by the governor in place of the other associate justice who is disqualified to sit, are present in the case although there is a vacancy in the office of the chief justice.

NOTE.-For note on the general subject of a quorum, see Lawrence v. Ingersoll (Tenn.) 6 L. R. A. 308.

leged reason that the court was at the time of rendering such decision not a constitutional court and that for that reason the decision was null and void. Motion denied.

The facts upon which the motion was based are fully set out in the opinion.

Messrs. Parker & McGowan and S. C.
Cason in support of the motion.
Messrs. Westmoreland
worth, contra.

&

Hayns

McIver, Ch. J., delivered the opinion of the court:

This is a motion to set aside the judgment heretofore rendered in this case, upon the ground that the court, as organized at the time of the hearing, as well as at the time of the rendition of said judgment, was not a constitutional tribunal, invested with power to hear and determine said cause. The facts out of which this contention arises are undisputed, and are as follows: The late Chief Justice Simpson having died on the 26th day of De cember, 1890, and the vacancy in that office thereby occasioned not having been filled, the supreme court was left with only two members, the two surviving associate judges; and, one of them being disqualified from hearing this case by relationship to one of the parties, his honor Judge Wallace was duly commissioned by his excellency, the governor, in place of the associate justice thus disqualified, under the provisions of section 6 of article 4 of the Constitution; and the court, being thus constituted, beard this case in January, 1891, and rendered the judgment now in question. Under this state of facts it is contended on behalf of the appellant (1) that a chief justice is an essential constituent of the supreme court, and consequently when, as in this case, that office has become vacant by the death of the incumbent, the two surviving associate justices cannot, under the provisions of the Constitution of this State, constitute a valid constitutional supreme court; (2) that, if this position cannot be sustained, then a supreme court composed of one associate justice and a person learned in the law," commissioned by the governor, in place of the other associate justice, disqualified as above stated, to hear and determine a given case, is not a valid constitutional tribunal.

which, unquestionably means such a proportion as will be competent to transact the business committed to the body or tribunal to which the term is applied. So, also, the third provision, as to the term of office, is likewise qualified by the fourth, at least so far as the first election was concerned, in order to insure the classification, which was more distinctly provided for in the next succeeding section, which provision, it has been held in Simpson v. Willard, 14 S. C. 191, applies as well to the chief justice as to the associate justices. While, therefore, the section under consideration does declare in general terms that the supreme court "shall consist of a chief justice and two associate justices," this general declaration is qualified by the words immediately following in the same sentence, "any two of whom shall constitute a quorum;" the plain meaning of which is that, while the number composing a full court is three, yet any two of the three named shall constitute a quorum for the transaction of any business committed to such tribunal. The language being "any two" of the three officials just named, we are unable to conceive by what authority a court could construe such language as confining the provision to some particular two of the three, for that would entirely destroy the force of the word "any," and render necessary the interpolation of some other words, not found in the section. The fact that there is a difference in official title between the chief and his associates, and that the General Assembly has, by statute, provided a different salary and a higher rank for the chief justice, and has invested him with certain powers not conferred upon the associate justices, cannot affect the ques tion as to whether the Constitution has made the chief justice one of the essential elements of the supreme court, for that must be determined by the provisions of the Constitution itself; and, as we have seen, those provisions do not, either in express terms, or by necessary implication, constitute the chief justice an essential element of the supreme court in such a sense as, without that officer, there can be no such court competent to transact the business appertaining to such a tribunal. On the contrary, as it seems to us, the terms of the Constitution necessarily imply that any two of the three officers composing a full court are competent to transact such business, whether such two consist of the chief justice and one of the associate justices, or of the two associate justices only.

Although we think that the first question has already been concluded by the principles laid down in the case of Sullivan v. Speights, 14 S. C. 358, yet, in deference to the earnestness and ability with which the view now contended for by the appellant has been presented by his counsel, we are not unwilling to reconsider the whole question. It seems to us that the express terms of the Constitution in section 2 of its fourth article leave no room for doubt as to its true construction. That section reads as follows: "The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum. They shall be elected by a joint vote of the General Assembly for the term of six years, and shall It is contended, however, that there cannot continue in office until their successors shall be be a constitutional quorum without there is in elected and qualified. They shall be so classi- existence the full number of members providfied that one of the justices shall go out of ed for by the Constitution. If this proposition office every two years." It will be observed be true as applied to the supreme court, we see that this section provides (1) for the number no reason why it should not be true of every and titles of the officers who are to constitute other body of which a number less than the the court; (2) what portion of the whole num- whole is legally declared to be a quorum; and ber shall constitute a quorum; (3) the mode of we think we may safely venture to say that election and term of office of these officers; (4) such a proposition as to any other body has such a classification of these officers as shall in never been accepted, and never could be acsure an election for one of these officers every cepted, as correct, without paralyzing, to some two years. It is also manifest that the first extent at least, the arm of at least two of the provision, fixing the number of members of great departments of the government. Such a the supreme court, is qualified by the second proposition rests upon a fundamental misconprovision, prescribing that a portion less than ception of the term "quorum," and the purthe whole number shall constitute a quorum,poses for which it is used. The very purpose

in providing for the transaction of business of office until their successors shall be elected any given body or tribunal by a quorum is to prevent the stoppage of the public business when a portion of the whole membership may, from any cause, fail to attend at the time appointed; and whether such failure results from death or some temporary cause cannot affect the question. The mischief intended to be provided against is the failure of the whole number to attend, and we do not see how it can possibly make any difference whether such failure results from one cause or another. Notwithstanding the criticism which has been so freely indulged in of the illustration used in Sullivan v. Speights, supra, drawn from the constitutional quorum of the House of Representatives, we still think the analogy is striking. The Constitution, in section 4 of article 2, declares that "the House of Representatives shall consist of one hundred and twenty-four members;" and, in section 8 of the same article, that "the Senate shall be composed of one member from each county" except Charleston, which shall be allowed two senators; and then, in section 14 of the same article, it is declared that "a majority of each House shall constitute a quorum to do business." Now, confining our attention to the House of Representatives, is it not perfectly apparent that the language found in these constitutional provisions is practically identical with a declaration that "the House of Representatives shall consist of one hundred and twenty-four members, any sixty-three of whom shall constitute a quorum?" and, if such was the language, the analogy would be perfect. If the House consists of 124 members, and a majority of the House is declared to be a quorum, it is practically the same thing as saying that any 63 members of the House shall constitute a quorum; and this is what has been said in the case of State v. Hayne, 8 S. C. 367.

and qualified." While it is quite true that these sections, thus claimed to have been overlooked, are not specially referred to in the opinion prepared by the late chief justice in Sullivan v. Speights, yet it by no means follows that such sections were overlooked. On the contrary, it is well known to the surviving members of the court as it was then constituted that the whole subject was carefully examined and thoroughly discussed before the opinion was prepared, which expressed the deliberate opinion of every member of the court; but this fact is not mentioned with a view to forestall further discussion of the sections just referred to, but simply for the purpose of removing or preventing any impression which might possibly arise that so grave a question as the court was then called upon to decide received but slight consideration. Recurring to these provisions which are supposed to have been overlooked, let us inquire how they affect the question under consideration. Section 6 reads as follows: "No judge shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity," etc.; and then proceeds to provide for supplying the place of any judge thus disqualified. Now, from the very terms of this section it is very manifest that its purpose was, not to declare or provide anything in regard to the necessary elements constituting the supreme court, but simply to prevent an interested judge from sitting at the trial of a case in which he was thus disqualified. We do not see, therefore, that this section throws any light whatever upon the question under consideration. Section 11 is in these words: "All vacancies in the supreme court election, as herein prescribed: provided, that A similar illustration may be drawn from if the unexpired term does not exceed one year, the undisputed practice of the highest tribunal such vacancy may be filled by executive apin this country. In the Act of Congress (Rev. pointment." Upon this section, in connection Stat. U. S. § 673) providing for the organiza- with the provision in section 2, that the justion of the Supreme Court of the United States tices of the supreme court "shall continue in the language used is practically identical with office until their successors shall be elected and that found in our Constitution establishing the qualified," it is argued that there can be no supreme court of this State, viz., that "the vacancy in the office of a justice of the suSupreme Court of the United States shall con-preme court except by death or by expiration sist of a chief justice of the United States and eight associate justices, any six of whom shall constitute a quorum;" and although, upon two comparatively recent occasions, that tribunal has been deprived by death of its chief justice, the business of the court has been proceeded with without question, so far as we are informed, by the surviving associate justices.

Again, it is urged that the court in rendering its decision in Sullivan v. Speights, supra, failed to distinguish between the simple absence of one of the constituent members of the Supreme Court and a vacancy in the office of one of the members of the court, and did not distinguish between the effect of a resignation and the effect of a death of one of the members of the court. And in this connection it is contended that the court overlooked the provisions of section 6 and section 11 of article 4 of the Constitution, as well as that portion of section 2 which declares that the chief justice and associate justices "shall continue in

shall be filled by

of the term for which he was elected, and, as a consequence, that a resignation does not create a vacancy, because the language used in section 2-"shall continue in office until their successors shall be elected and qualified"-is imperative, and prevents any vacancy until the successor has not only been elected, but has qualified. This is a decidedly novel proposition, and one which cannot readily be accepted. If well founded, then it seems to us that it would be impossible to fill the office of a justice who resigns during his term, or who accepts some incompatible office, or removes from the State; for the only provision is that “all vacancies shall be filled either by election or appointment, accordingly as the unexpired term may be for a year or more; and, if resignation, acceptance of an incompatible office, or permanent removal from the state creates no vacancy, then we see no authority for holding an election or making an appointment to fill the office which had thus been deserted. A construction

NOTE.-Exceptions to the rule that an employer is | which will be to injure third persons. Ohio S. R. not liable for acts of an independent contractor. Co. v. Morey, 7 L. R. A. 701, 47 Ohio St. 207. An employer cannot relieve himself from liabili- Or in other words if an injury might be anticity by contracting with another for the perform-pated as a direct or probable consequence of the ance of work, the necessary or probable effect of performance of work contracted for, unless rea14 L. R. A.