text:
    CRAWFORD VS THE EXECUTORS OF SIMONTON.
    1. A p'ca of sel-off shou’d dúdose a state of facts, such as wou’d eut'.t'e the party pleading1 it to his action, if he were p'aintif in the prosecution of a suit, — otherwise, the pica will be Lad on derrr.irrjr.
    2. Therefore, a plea, of set-off, that plaintiff's testator was a co-surety witn defendant for a third pirson ; that on the ueiau.t oí the principa1, defendant exocaud his own uctaiudi charge of the uahi.ity of the sureties ; and that the plaintiff’s testator executed his writing undersea, agieeiug to j a\ his pro} cation either to defendant, or the origina, creditor, — not alleging, that the substituted note was paid; — he.d to be insufficient, cu demurrer.
    3. A judgment is conclusive -upon all pre-existing matters of de-fence : and when such judgment is made the foundation of a new action, it is not auowable to interpose any plea, which might have been pleaded to the first action.
    4. So, it was held, that, in an action upon a judgment, of North Carolina, a c’aim could net. be inUrpostd by way cf set-off, which appeared to have existed lour years ] rtvions to the original cause of action sued on, and nearly nine years previous to the rendition of the judgment.
    5. The judgment of a sister State, when made the subject of a suit here, is entitled to the same credit as a judgment of the courts of Alabama.
    6. The matters determined by the record cannot be controverted by plea, nor is the judgment liable to be attacked from within.
    7. Though matters extrinsic may be shewn, as by pleading, for frandom, — satisfaction, or want of jurisdiction, in the ccuit rendering the judgment.
    8. The non-existence of a judgment, tho subject of an action, or a variance in its statement in the declaration, must be taken advantage of under the plea of mil lid record.

      9. A replication to such plea shou’d aver, that there is such are-cord, and conclude, •prout patet per recorihtm.

    10. Where a defendant consents to submit an issue upon tiic plea of mil tiel record to a jury, he cannot afterwards be a'lowed to object, that he ha; been deprived of a trial according to the forms of law.
    11. An exenro’iiic.V'.ion of a- foreign hidgment is sufficient'y authenticated to authorise its admission in evidence, if the presiding mirutmte of the court certify that it is in due form of law. Tae form of the attestation of the clerk is immaterial.
    12. At common law, interest is recoverable upon a judgment.
    13. If damages aro sought to bo roeovored on a demand arising out of the State, and the rate of those damages is fixed by ie-gis’ation; — the statute won'd bo the best evidence, and wou'd . sufficient' y pro ve the extent to which they are to be admeasured.
    11. Where a defendant offers no excuse for a de'ay of payment of a judgment, the p'aintifF is entit'ed to recover interest on the judgment, as damages; and where the va’ue of money is declared by law, that value must bo the measure of damages.
    15. Interest wifi be afiowed as well npoo debts contracted abroad, if the lex loci contractus authorises it, as in this State.
    Error to the Circuit court of Bibb county. ’
    Debt on foreign judgment. The declaration set forth, that at the November session, eighteen hundred and twenty-eight, of the Court of pleas and epaarter sessions for Iredell county, No'rth Carolina, the plaintiffs below recovered.a judgment for four hundred and one dollars, and eighty cents, debt, . against defendant, — also, one hundred and twenty-three dollars and twelve and a half cents, for damages and costs.

      To the declaration, defendants plead—
    1. Nul tiel record.

      2. Payment.
    3. That the testator, at his death, was indebted to defendant one hundred and fifty dollars, upon a writing obligatory, made by testator on the first of January, eighteen hundred and twenty, at Iredell county, North Carolina, (without date,) certifying, that a note given by E. S. Kirksey, principal, the defendant, George Lee Davidson, and the said testator, securities, payable to the president and directors of the North Carolina Bank, dated seventh June, eighteen hundred and thirteen, at sixty days, for four hundred and fifty dollars, which said Kirksey had failed to renew or pay agreeably to the rules of the bank, and for which four hundred and fifty dollars, said defendant had given his own note to the bank, and agreeing as one of said Kirksey’s securities, to pay said defendant, or the bank for him, one third part of the four hundred and fifty dollars, and avering that one third of said note was one hundred and fifty dollars, and that said writing obligatory at the commencement of this suit, and at the time of pleading said plea, was in full force, not paid, satisfied or otherwise made void, and that at the commencement of the suit, and at the pleading of the plea, there was, and st.ll is, due and from said plaintiffs, as executors, to the testator thereon, said sum of one hundred and fifty dollars, — and also the further sum of two hundred and eighty dollars lawful interest thereon, making altogether, the sum of four hundred and thirty dollars, which said sum of four hundred and thirty dollars, so due and owing, defendant thereby offered to set-off and allow to plaintiffs, as executors, and prayed that the same might be deducted from the claim of plaintiffs.
    The record stated that the plaintiffs took issue, in short, by consent, on the first and second pleas, and demurred to the third.
    At Spring term, eighteen hundred and thirty-seven, the cause came on for trial. The demurrer to the third plea was sustained, and a verdict was found for plaintiffs, for the sum of five hundred and twenty-four dollars and ninety two and a half cents, debt; and damages assessed for its detention, to the amount of two hundred and sixty-two dollars, on which judgment was rendered.
    The bill of exceptions stated, that on the trial of the case, the plaintiffs offered in evidence, a transcript of a record from Iredell county, North Carolina, with certificates of authentication, a copy of which transcript and certificates, were appended to the bdl. The defendant objected to the transcript and certificates as evidence in the case, which objection was overruled, and to which he excepted. The transcript was the only evidence offered of the recovery of the judgment in North Carolina, by plaintiffs’ testator against defendant. The plaintiffs offered in evidence, an authenticated copy of a statute of North Carolina, which was also appended to the bill. No other statute of that State was offered in evidence, nor any other evidence of what were the interest laws of that State.
    The defendant asked the court to charge the jury, that to authorise them to compute interest on. the said judgment, set forth in the transcript, plaintiffs ought to shew, that judgments rendered in North Carolina bear interest, -«-which charge, the court declined to give, but charged the jury, that the statute of North Carolina, offered in evidence, was sufficient to authorise the plaintiffs to recover interest, and that the plaintiffs were entitled to interest on the amount of the judgment, so stated as recovered in North Carolina, to be computed by them at six ■per cent per annum; to which charges as given, and declining to charge as requested, the defendant excepted, &c.
    The transcript of the record from Iredell county, North Carolina, was authenticated by the following certificates :

      “ I, Absalom Simonton, clerk Of the Court of pieas and quarter sessions of Iredell county, do hereby certify, that the foregoing is truly copied from the records in my office. In testimony whereof, I have hereunto set my hand and affixed my seal of office, at Statesville, this 23th day of May, 1833.
    [Seal of office.]
    “A Simonton, Clerk.”
    “State of North Carolina, Iredell county.
    .“I, William King, presiding magistrate of the Court of pleas and quarter sessions of Iredell county, do hereby certify, that Absalom Simonton, Esquire, who has signed the foregoing certificate, is clerk of said court., and that his signature is in his own proper hand writing, and that the said certificate is in due form of law. Wlt-nes3_my hand and seal, this 25th day of May, 1833.
    William King, J. P. [seal/']

      The statute of North Carolina, and the authentication of the same, as appended to the bill of exceptions, were as follows:
    “An act restraining the taking of excessive usury.
    “ Forasmuch as the settling of interest at a reasonable rate, will greatly tend to the advancement of trade and improvement of lands by good husbandry, with nnny other considerable advantages to this province; and whereas divers persons of' late have taken great and ex-cissive sums for the loan of money, goods and merchan* dise, to the great discouragement of industry, in thg husbandry, trade and commerce pf this province.
    “ We pray that it may be enacted.
    “And be it enacted by his excellency Gabriel Johnson, Esquire, Governor, by and with the advice and consent of his majesty’s council, and general assembly of this province, — and it is hereby enacted by the authority of the same, that no person or persons whatsoever, from .and after the first day of May, which shall bg ip thg year of our Lord one thousand seven hundred and forty-one, up.» on any contract to be made after the said first day o.f May, shall dir.ec.tly or indirectly take, for lo.an .of any moneys, wares, merchandise, or .commodities whatsoever, above the value of six pounds, by way of discount or interest, for the forbearance of one hundred pounds for one year, and so after that rate for a greater or lesser sum, or for a longer or shorter time, and tha.t all bonds, contracts or assurances whatsoever, made after the time aforesaid, for .the payment of any principal or money to be lent, or covenanted to be performed, upon or for any .usury, whereupon or whereby, there shall be reserved or taken above the rate of six pounds in the hundred as aforesaid, shall be utterly void, and that all and every person or persons whatsoever, which after the time aforesaid, upon any contract to be made, after the said first day of May, shall take, accept and receive, by way cr means of any corrupt bargain, loan or exchange, shift or interest, of any moneys, wares or merchandise, or other thing or things whatsoever, or by any deceitful ways or means, or by any discount, covm, or device, or deceitful conveyance, for the forbearing or giving day of payment, for one whole year of, or for their money or other thing, above the sum of six pounds for the forbearing of one hundred pounds for a year, and so after that rate for a greater or lesser sum, or for a longer or si:o: ter time, shall forfeit and lose for every such offence, the double value of moneys, wares, merchandise, and other things so lent, bargained, exchanged, or shifted, the one moiety of all. which forfeiture, shall be to our sovereign Lord the King, his heirs and successors, for and towards the support of this government and the contingent charges t :greof; and-the other moiety to him or them that will-sue for the same, by action cf debt, bill, plaint or infor-ination, in any court of record within this province, wherein'no essoin, protection or wager of law shall be allowed or admitted of.”
    "State of North Carolina,
    “ Secretary of State’s cfñce.

    "I, William Hill, Secretary of State in and for' the State aforesaid, do certify, that the foregoing is a true copy of a law of this State, passed in the year of our Lord one thousand seven hundred and forty-one, and that it is yet in force in this State. Given under my hand, this 30th day of January, 1835.
    “W. Hill.”
    The plaintiff in error assigned for error—
    1. The sustaining of the demurrer to the third plea;
    2. Overruling the objection to the transcript of the record, from North Carolina, as authenticated, and in receiving the transcript in evidence;
    3. In refusing to charge the 'jury, that evidence must he given that judgments in North Carolina bear interest before they could find interest on the judgment reeded in the transcript;
    4. In charging the jury, that the transcript óf the statute of North Carolina, was sufficient evidence to au-thorise the jury to compute interest at six per centum on the amount of the judgment recorded in North Carolina;
    5. In the several matters excepted to ;
    6. In not giving judgment on the plea of nul Hel record;

    7. In submitting the plea of nul Hel record to the jury;
    8. In giving judgment for plaintiffs below.

      J B. Clarke, for plaintiff in error.
    Moody, contra.

      J B. Clarice, for the plaintiff,
    said—
    Four questions are presented on this record:
    1. Ought the demurrer to the third plea, to have been sustained ?

      2. Was the certificate uf the clerk of the Court in North Carolina, sufficient?
    3. Was the interest law of North Carolina offered in evidence, any evidence that judgments in that State l ear interest!

    4. Was there any disposition of the pica of ml del record; and if so, was the issue tried by the court or jury?
    First — As to the first question, it seems only necessary to enquire, whether the instrument was such an one as debt could have been maintained upon. If so, the de-mwrer ought not to have been sustained. That debt would lie against the plaintiff below on that instrument, it is only necessary to recollect, that it was for a sum certain. Four hundred and fifty dollars was the sum the defen lant below had bound himself to pay for the principal to the bank, one third of which sum. the testator agreed to pay the defendant below, in the bank for him, which the plea states to be still due and unpaid.
    Second — The certificate of the clerk ought to state, that it is a fall and complete transcript of the record of the proceedings in the cause, stating the names of the parties. The certificate may be strictly true, and still hot set out the whole record; nor does it purport to do so. It would not be good to a transcript sent up to this court for revision.
    Third — The statute offered as the interest law of North Carolina, does not include judgments, which is neither a contract or assurance in a legal sense, and -is not included in those terms — Wyman vs Mitchell, (1 Cow-an, 316.) Judgments, at common law, do not bear interest : and it is only by virtue of a statute, that interest can be collected on them. Ought not then the plaintiffs below to have shown direct proof that such was the case in North Carolina? It seems to me- they ought — * and in its absence, the court ought to have presumed that the common law rule prevailed there. If the jury could give damages for the detention of the debt, when an ac-tio i is brought here, and a recovery in a sister State, in the absence of any law, showing that judgments in such State bear interest, it would not be because the law of that state authorised interest on contracts at a fixed rate; but because it was equitable and just that the plaintiff should have something for the detention of his money — the amount of which ought to be left to the discro tio i of the jury tryiug the cause, under all the circumstances of the case. No discretion, in this case, was left' by the Circuit court to the jury; but they were charged that the statute of North Carolina offered in evidence, was sufficient to authorise the plaintiffs below to recover interest, and that the plaintiffs were entitled to interest on their judgment recovered in North Carolina, to be computed by the jury at six per cenlum per annum on Us amount, — leaving no discretion to the .jury, but settling every thing but the computation, and showing clearly that his opinion was based upon the belief that the statute offered was sufficient; whereas it did net contain one word, which, by legal construction, could show that judgments were within its terms. The fixed rule was clearly wrong, unless judgments were within this statute, or other evidence had been offered, which the record shows, was not.
    Fourth — There was no trial on the plea of mil tiel re
      cord; — if so, it was by the jury, which the record shows, —the jury finding the amouat of 'the debt and damages far its detention. To avail ourselves of this objection here, it was not necessary that we should have objected in the court below. The silence of the defendant could not authorise the court to adopt an illegal mode of trial. But the defenlant did object — he objected to the transcript statute, an! excepted. The objection oould never be neeessary, where the record of itself shows the error.

      Moody, for defen lant in error,
    said—
    The counsel for plaintiff in error, (defendant below,) makes four points.
    1. Ought the demurrer to the third plea to have been sustained ?
    In pleas much certainty is required — more than in de-claratio ns. This plea is full of uncertainties and defects.
    First — It claims fo tr hu 1 Irel ail fifty dollars, which is allege I to be due by a wrlthg obligatory, executed in eighteen hundred and twenty, by plaintiffs’ testator; but it is left uncertain whether the promise charged to have been made, was m said writing, or merely verbal. It is u ícertuín when or where tins promise to pay was made.
    Second — It charges that testator agreed to pay one-thir.l of defen lant’s note, but it does not shew when that note became due. At what time was testator to pay ? From what time is interest to be calculated? Plea claims two hundred and’ eighty dollars interest. It should exhibit facts, that the court may see that defendant is entitled to that sum.

      Third — It does not appear that Crawford has paid the four hundred and fifty dollars. Testator agreed to pay Crawford, or the bank, one third of that sum. It was intended to secure him, so far, against loss.' He .may not have had to pay it. Unless he has, he has no claim on plaintiffs. The plea does not shew that it is yet due.
    Fourth — The original note, to which testator and defendant and another were securities, was due in eighteen hundred and thirteen, and from that time defendant seems to claim interest. But defendant subsequently gave his note for four hundred and fifty dollars, and in eighteen hundred and twenty, or afterwards, testator agreed to pay “one-third of said four hundred and fifty dollars.” There is no agreement to pay back interest. Indeed,- as defendant’s note was for four hundred and fifty dollars, it may be supposed that the interest accruing previous to the time at which it becomes due, had been paid or remitted.
    Fifth — If the claim set up in the plea, existed previous to the judgment in North Carolina, this defence should have been made^in that suit. When a party has once had an opportunity of making a defence, and fails to do it, he cannst make it in a subsequent proceeding for the same cause of action. An executor, against whom a scire facias is issued, suggesting a devastavit, to render Mm liable out of his own personal assets, cannot plead plene administravit — and the only reason given is, that he might have done it in the first action — Toller’s law of executors; Williams on executors,. 1225-6; 1 Saunders, 219, C. note. In this case, Crawford did plead set-off in North Carolina — the record shews it — and the jury there expressly found “ all the issues” against him. If he can now plead the same plea, he will have a second trial of the same facts. “ It is an established rule of law, that a fact which has once been directly decided, shall not be again disputed between the same parties” — Norris’ Peake, 63; 6 Mass. R. 277; 1 Peters’ Cir. C. R. 202.
    Sixth — It is laid down as a rule, that if an executor sue for a cause of action arising after testator’s death, defendant cannot set-off a debt due to him from testator in his life-time — 1 Tidd, 718; 2 Saund. PL 789. This suit is founded on a judgment obtained by plaintiffs, as executors, after testator’s death; and the plea sets up a claim which it avers existed against the testator in his life-time.
    2. Was the transcript of the record offered in evidence, sufficiently authenticated ?

      . The counsel for plaintiff in error objects to the clerk’s certificate, because it does not state that it is a “full and complete transcript,” &c. — and he argues that a certificate, without such statement, would not be good to a transcript sent up to this court for revision. Did the counsel examine the certificate attached to the transcript which he has brought up in the case we are now examining % It contains no such statement. It simply states, that “these pages contain a correct transcript.” Yet, in this case, this court are examining the regularity of the proceedings below — so that there is greater necessity for requiring a “ full and complete” transcript. But the courts in Alabama have no right to examine, and will not en~ quire into the regularity of the proceedings in a suit in a sister State. Suits in North Carolina are conducted according to the laws of that State; with which the judges there, are supposed to be better acquainted, than the judges in another State. If the proceedings in the cause on the judgment in which the suit is founded, were irregular, the defendant then should have had them corrected by a higher tribunal in that State. The judgment, unreversed, is binding there. It should have equal validity in every other State — -Peake’s Ev. 67, note p; 7 Cranch, 483, 308; 6 Wheaton’s R. 109; 3 Ibid 234; 10 Seargent & Rawle, 241.
    The courts here can make but two enquiries. Had the court in North Carolina jurisdiction ? — Hunt & Con-dry vs Mayfield, (2 Stewart’s R. 124.) And did it render the judgment declared on? These questions are fully answered by the transcript objected to. It shews that the action was debt — that defendant acknowledged service of the writ — appeared and filed several pleas — and that there was a verdict and judgment against him — all set out and certified to be “ truly copied from the records,” &c. To that transcript, this court will give “full faith and credit

    Another view — To make a record in one State evidence in another, the attestation must not be according to the form of the State where it is offered ; but of the State or court whence the record comes — and the only evidence of that fact is the certificate of the presiding judge — 1 Washington’s Cir. Ct. R. 352. The presiding judge certifies that the certificate objected to, “ is in due farm of laio.” It is conclusive — Brown vs Adair, (1- Stew. & Por. 42.)

      3. Was the interest law of North Carolina, offered in evidence, sufficient to authorise the charge of the court, as given?
    If the statute offered in evidence, does not entitle the plaintiff below to interest, /there is, I believe, no law of North Carolina that does. I have examined, and can find no statute among the laws of that State, which gives interest on judgments, eo nomine. The counsel for plaintiff in error refers to the case of Wyman vs Mitchell, (1 Cowen, 316,) for the purpose of shewing that a judgment is not a contract or assurance; but the evidence of a contract or debt. Let it be so considered. The judgment sued on, then, is evidence that Crawford owed plaintiffs below, in eighteen hundred and twenty-eight, the sum sued for — five hundred and twenty-four dollars, and ninety-two and a half cents; and it liquidates the debt. When a certain liquidated amount is shewn to be due from one to another, the law implies, that in justice, he promises to pay it — which is a “ contract or assurance,” within the terms of the statute proven to the jury — 15 Johnson’s R. 424; '2 Porter’s R. 454; Moore vs Patten, Donegan & Co.
    On the same principle, “ a judgment, when sued on, bears interest” — 6 John. R. 285; 5 Cowen, 612. At common law, sheriff, could not collect interest on a judgment, because there was no judgment for subsequent interest ; but, when sued on, interest is given.
    It is objected, that the court below charged the jury •that the plaintiffs were entitled to interest at a specific rate — six per cent. Interest is to be computed according to the law of the State in which the contract is made, or the debt made payable; and it is necessary to prove that law, as other facts — Evans vs Clarke, (1 Porter, 388;) Evans & Erwin vs Dunlap, (1 Porter, 390;) Peacock vs Banks, (Ala. R. 387.) The court did right in charging the jury that the transcript of the statute read to them, was sufficient evidence to authorise the plaintiffs to recover interest. What other evidence could be given ? It was surely evidence of the legal worth of money in North Carolina, — and the court did right in charging the jury, that the plaintiffs were entitled to interest — not according to the laws of Alabama, but at the lower rate of the State in which the money ought to have been paid, which was proven to be six per cent. Such was the substance of the charge.
    4. Was the plea of nul tiel record, properly disposed of?
    It is laid down, that “ if matter of fact, as well as matter of record, be put in issue, the trial may be by jury” — 2 Saunders’ PI. 724; Chitty’s PI. 476; — this case is within the principle. Here were several pleas, which required a jury.
    But there is sufficient evidence that the court gave judgment on this issue. The bill of exceptions shews, that the plaintiff below, produced a transcript of the record sued on — that defendant objected to it — and that the court overruled the objection, and received the transcript, thereby passing judgment directly on the plea of nul tiel record. If it had been a different record from that declared on, the court would have sustained the objection, and rejepted the transcript.
   COLLIER, C. J.

— Three questions are presented by the record in this case—

1. Does the third plea disclose matter of legal de-fence?

2. Was it error to submit an issue upon the plea of nul tiel record to the jury, under the circumstances shewn by the bill of exceptions, and is the record well authenticated ?

3. Is there error, either in the refusal of the Circuit judge to charge as requested, or in the charge as given?

First — The third plea is doubtless intended as a plea of set-off. It sets forth, that both the plaintiff in error and the defendant’s testator, were co-sureties of a third person for the payment of money; that the principal having made default, the plaintiff made his own note payable to the creditor in discharge of their liability; in consideration of which, the defendant’s testator made his writing under seal, by which he agreed to pay either to the plaintiff or the original creditor his proportion, being one-third of the sum for which they had been sureties. It is not alleged that the plaintiff in error has ever paid his substituted note, either in whole or in part. There is no time prescribed in the writing executed by the testator, for the payment of his proportion. He had the option to pay it either to the plaintiff himself, or to the holder of the plaintiff’s note, and if paid to the latter before the discharge of the note, the payment would be good.

The plea should disclose such a state of facts, as would entitle the party pleading it to his action, if he were the plaintiff in the prosecution of a suit. Tested by this rule, the plea is clearly insufficient. ' Such a declaration would discover no cause of action; the defendants might say, that “our testator had his election to pay either you or your creditor, and that election you must take from us by paying him yourself, before we are liable to your action.”

But there is another objection to the plea equally available. The set-off relied on, existed more than four years previous to the cause of action sued on in North Carolina, and nearly nine previous to the rendition of the judgment there. The judgment is conclusive upon all preexisting matters of defence, and when made the foundation of a new action, it is not allowable to interpose any plea that might have been pleaded to the first action—Moore vs Bowmaker, (4 Taunt. R. 379.) A judgment rendered in a'sister State, when made the subject of a suit here, is entitled to the same credit as a judgment of the courts of Alabama; and if a judgment of the latter could be successfully defended against either at law or in equity, the same grounds might be urged against a judgment of another State—Winchester vs Jackson, (3 Hayw. Rep. 316.) The matters determined by the record, cannot be controverted by plea, nor is the judgment liable to be attacked from within yet it is competent to shew matters extrinsic, which could not have been presented earlier for adjudication — as by pleading per fraudem, satisfaction, &c. So, it has been repeatedly adjudged in this court, that a defendant might insist upon a want of jurisdiction in the court rendering the judgment—Mills vs Duryee, (7 Cranch R. 481;) Armstrong vs Carson, (2 Dall. 302;) Hunt & Condry vs Mayfield, (2 Stew. R. 124;) Lucas vs Darien Bank, (2 Stew. R. 280.) In either view in which we have considered the plea, it is defective, and the demurrer to it well sustained.

Second — -Where a plaintiff declares on ' a judgment, and the defendant intends insisting upon its non-existence, or a variance in its statement in the declaration, he must plead nul tiel record, and the issue on that plea is tried by producing the record itself—2 Saund. Pl. & Ev. 608. This plea concludes with a verification, and a replication to it, should aver that there is such a record, and conclude, proui patet per recordum, with a prayer that it may be inspected—2 Saund. Pl. & Ev. 754-5. No formal replication is shewn by the record in the case before us, but it is merely stated, that the attorney for the defendants in error took issue on the plea of nul tiel record, and other pleas, in short, by consent. As the form of this issue is not set out, we will intend it to be such as referred its trial to the court, rather than the jury.

The question then recurs, is the submission of the issue upon nul tiel record to the jury, an error in law ? It is competent for parties to dispense with the appropriate modes of trial, or to substitute for the legally appointed tribunals, some one of their choice, for the adjustment of' questions which concern themselves alone. From the bill of exceptions in the present case, it appears that the parties went to trial, — that the defendants in error, offered in evidence, a transcript with the certificates of authentication; which was objected to, &c. Now, although it is not expressly stated that the jury was chosen for the trial of the issue with the assent of the plaintiff, yet we think it may be fairly inferred, that he made no objection. And having voluntarily allowed the case to be submitted to the jury, and having, in effect, had a trial by the judge, as appears by the motion to reject the record, the plaintiff cannot now be heard to object, that he has been deprived of a trial according to the forms of law. ' .

We consider the exemplification sufficiently authenticated to have authorised its admission in evidence. It is immaterial as to the form of the attestation of the clerk. The presiding magistrate of his court .has certified that t!,it is in due form of law”—Brown vs Adair, (1 Stewart & Porter’s R. 49.)

Third — The charge asked in the Circuit court, supposes, that interest can only be recovered upon those liabilities on which it is expressly given by statute. Such a notion is not well founded in law. Damages, in lieu of interest, are allowed at common law, for a default to pay money or deliver property, upon the principle, that the creditor should be compensated for the want of punctuality in his debtor in keeping him out of the use of ‘money or property—McWhorter vs Standifer, (2 Porter’s R. 519.) Accordingly, it has been held that interest is allowed on judgments, by common law, to the time of affirmance, or of a new judgment rendered—Sink vs Langton, (Doug. R. 748;) 2 Dane’s Ab. 212. By the rules of the common law, Lord Ellenborough considered it to be within the general province of a jury, to give damages for the detention of a debt, .and he therefore sustained a verdict, which allowed interest upon a statu-table ascertainment of damages,'for an injury to individual property, occasioned by a public improvement made by a corporation—1 Maule & Selwyn’s R. 171, 3, 4, 5, 6; and in Givin and wife vs Whitaker, adm’r, (1 Har. & Johns. R. 755,) it is said that both by the decisions of the courts of Maryland and the English courts, every judgment for money, carries interest, unless otherwise agreed by the parties, or its terms forbid it. So, in North Carolina, it has been holden, that a plaintiff is entitled to interest on his judgment, if a new action is brought, up to the time of the rendition of the second judgment—2 Hayw. R. 26, 378. To the same effect, are Thomas vs Edwards, (3 Aus. 804;) Butler vs Stoneld, (8 Moore, 412;) and Prescott vs Parker, (4 Mass. R. 170.) In Atkinson vs Braybrook, (4 Camp. R. 380,) Lord Ellen-borough considered, that interest was not in general recoverable on a foreign judgment; because it was a simple contract—S. P. 3 Price, 350. But, in McClure vs Dunkin, (1 East R. 436,) the Court of King’s Bench determined, that in assumpsit, on a judgment, rendered in Ireland, it was competent to the jury to allow interest to the plaintiff, and that, in that respect, there was no difference between a foreign judgment and a judgment in a Court of record in England — To S. P. vide C. &. P. 376. The only adjudication we have been able to find, which opposes the position, that interest is recoverable on a judgment at common law, is a case to be found in 4 McCord’s R. 212, which, in our opinion, is outweighed not only by principle, but by the authorities we have ci-. ted.

In Moore vs Patton, Donegan & Co. (2 Porter’s R. 451,) it was determined that a jury might, in their discretion, allow interest upon unsettled accounts, for goods, wares, &c. from the time t-hey became due. And in Tate vs Innerarity, (1 Stewart & Porter’s R. 33,) it was adjudged competent, upon common law principles, for parties to stipulate for the payment of a reasonable rate of interest ; and where it was not ascertained by contract, the rate might be fixed by the custum of the place where the contract was made.

From the decisions we have noticed, we educe as applicable to the case at bar, the rule — -That the allowance of interest, except upon the particular liabilities embraced by statute, must depend upon the circumstances of the case. To avoid its payment, it is competent for a defendant to shew that he is not in fault for the nonpayment of the principal sum; as, that the plaintiff had been absent from the country, without having left a known agent, &e. But if the defendant offers no excuse for his delay, the plaintiff is entitled to recover interest, as damages. Where the Legislature have declared the value of money by law, that value must be the measure of damages, allowed in all cases for its, detention, though the plaintiff may have been injured to a much greater extent.

And interest will be allowed by our courts, not only upon debts contracted within the State, but upon those contracted abroad, if the lea; loci contractus, authorises it. Though the right to recover damages for the detention of a debt, exists at common law, yet, as that law does not prescribe what they shall be, — if the demand arises out of this State, it is necessary to shew the value of money where the contract was made, or to be performed. If this has been done by an act of legislation, the statute would be the best evidence; if the value depends upon usage, it is competent to prove it. In the case before us, the cause of action originated in a sister State, the common law of which, (because derived from the same original source,) we must suppose to be the same system of jurisprudence, as prevails with us; and, as we have shewn, entitles the defendants in error to damages. The statute of North Carolina was evidence to shew the legal rate of interest in that State, if not to prove that as a lav), it entitled the defendants in error to damages. The common law had determined the latter question in their favor, and it was only necessary to show to what extent damages should be admeasured. This was sufficiently proved by the statute, and without pretending to enquire whether the act embraces judgments in the designation of contracts or liabilities, we are satisfied that the court did not err either in refusing the charge asked for, or in that given.

The judgment is affirmed.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    GREENE VS LINTON, et al.
    1. Where covenants are mutual and dependent, plaintiff must aver performance before he can be entitled to recover: and so, also,

      2. Where a contract is absolute, that the plaintiff is to serve twelve months, and the service of the whole time is a condition to be performed before he can be entitled to compensation, he cannot recover on the contract, unless he aver and prove performance on his part; and the sickness of plaintiff a part of the time, is no sufficient apology for an imperfect performance.
    3. The true intent and meaning of a contract, is best arrived at by ascertaining the intention of the contracting parties, and the true construction is that which will best serve to carry that intention into effect.
    4. The rule in England, it appears, is, that where a contract is executory, and there is a failure by a plaintiff as to part performance, he cannot be defeated of his remedy on the contract, for so much of it as he has fairly complied with.]
    5. Where an action is brought by a party on mutual covenants, and there has been a partial performance only by plaintiff, and the defence does not go to the whole consideration, the defendant may reduce the damages, by shewing what he has sustained by the failure of the plaintiff, and is not compelled to resort to a cross-action: but
    6. Where plaintiff covenanted to serve defendant, twelve months, as master in a smith’s shop, and was to receive one fourth of the nett proceeds of the shop, during that time, for his salary, —and his declaration stated that he was prevented by sickness from discharging his duty under the contract, for the space of four months, and claimed the one fourth of the nett proceeds which accrued during the eight months, — the declaration, on demurrer, was held defective.

      Error to tire Circuit court of Pickens county.
    This was an action of covenant, prosecuted by the plaintiff in error. He declared against defendants, for that theretofore, by certain articles of agreement, commonly called a covenant, made and entered into between the defendants, as party of the first part, and the plaintiff, as party of the second part, under the seals of the parties, defendants, among other things, covenanted with the plaintiff, that they, the defendants, being desirous of carrying on the blacksmith’s business, in the town of Pickensville, in the State of Alabama, would give to the plaintiff, one fourth part of the nett proceeds of the business of them the defendants, arising in and from their business as blacksmiths, in the town of Pickensville, for and during the term of twelve months, commencing on the day of the date of said agreement; and that they would furnish three good hands to work under plaintiff; and should they, the defendants, at any time consider it to their advantage, to employ more hands than the three, they should have full power to employ as many hands in and about said business of smithing, as they might deem expedient, giving to plaintiff an equitable proportion of the nett proceeds of the business, reference being had to the compensation which plaintiff would be entitled to if three hands only had been employed; and defendants further covenanted to and with the plaintiff, to furnish a shop, and all tools necessary to carry on said business of smithing, and also to use due diligence to obtain such iron and steel as might be necessary for carrying on the aforesaid business.
    And the plaintiff, in consideration of the bargain and agreement of the defendants,by their covenant,to and with the plaintiff, covenanted to and with the defendants, by his covenant, to carry on the smithing business for defendants, with diligence, industry, and care, striving, at all times, to further the business and promote the interest as much as possible, of them the defendants, disclaiming any right at any time, to intermeddle or interfere in any manner whatsoever, with any arrangement whatever that the defendants might at any time make, for furnishing such necessaries as might be wanted in carrying on the business; such as procuring steel, iron, coals, wood and tools, and also to furnish his’ own meat and drink, washing and lodging; and further, to render to such person as defendants- might require, each night, after any day that business might be done in the shop, a true and correct account of all work, or what kind or sort soever, — which it was the duty of plaintiff to take account of, and also to pay over to such person, all moneys that might at any time be received by him, and also an account of all the work done on credit in the shop.
    And plaintiff averred, that on the day of the date of. the covenant, he entered upon the business, and took charge of three hands, as required by the stipulations of the covenant, and for eight months, superintended the hands and shop with diligence and. care, and labored to promote the interest of defendants, and performed fully his part of the covenant — after which time, he was afflicted with sickness, and was unable to perform labor for four months: The plaintiff further averred, that during the aforesaid term of eight months, the nett proceeds of the business amounted to the sum of one thousand dollars, which said sum, by reason of the premises, and of their covenant aforesaid, defendants became liable to pay to plaintiff, sfcc.
    To the declaration, the defendants demurred; which being sustained by the court below, the plaintiff took a writ of error.

      Peck & Clark, for plaintiff in error.
   GOLDTHWAITE, J.

— The plaintiff instituted this action of covenant in the Circuit court of Pickens county, and from his declaration, we are to ascertain the terms of the covenant between the parties.

The defendants being desirous of carrying on the blacksmith’s business in Pickénsville, covenanted with the plaintiff, to give him one fourth part of the nett proceeds arising from the business for the term of twelve months, commencing from the date of the covenant. The plaintiff, in consideration of the bargain and agreement of the defendants, covenanted to carry on the said business for them, with due diligence, industry and care, striving, at al-1 times, to further the business, and promote their interest as much as possible.

These stipulations^ with others, which are not material to be stated, are set forth in the declaration; which avers, that a number of slaves were placed under the direction of the plaintiff, who entered on the business of blacksmithing, and superintended and carried on the same - for the defendants during the space of eight months; at the expiration of which period, he was taken sick, and was unable to perform any service or labor for the next four months. It is also averred, that during the eight months, one fourth part of the nett proceeds of the business, amounted to one thousand dollars, which the plaintiff claims, by reason of the covenant, and his performance, for that period of all which was required of him by his stipulations: and the declaration concludes with the averment, that the defendants have broken their covenant, by not paying him the said sum of money.

Waiving, for the present, the consideration of the form of the declaration, it seems obvious, that the plaintiff has, on the facts presented, a strong claim to receive from the defendants, one fourth part of whatever sum was made from-the business during the time he superintended it, and his misfortune ought not to deprive him of this claim; yet no little difficulty is experienced in ascertaining the true rule of law, applicable to cases of this description.

The covenants, as they are stated by the declaration, are mutual, and would seem to be dependent on each other; and if this rule is to obtain, the plaintiff must necessarily aver performance on his part, before he can be entitled to a recovery. This view is taken by the pleader in framing his declaration; but instead of aver-ing performance of the services during the whole twelve months, he states as an excuse, that he was disabled by sickness during four of the months; and thus the question arises, as to the sufficiency of the declaration.

If, by the contract of the parties, the plaintiff has stipulated, absolutely, that he will serve the defendants for twelve months, and the service for the whole time, is a condition to he performed, before he can be entitled to any compensation, there is an end of the case; because, by his own statement, he admits, that during a portion of the time, he did not render the services contemplated by the agreement.

The elder decisions on the subject of dependent and independent covenants, are not to be reconciled with each other, and it would be useless to look to them for the rules by which we are to arrive at the proper construction which is to be given to the contract now'before us. Modern cases, without attempting to lay down or prescribe fixed and arbitrary rules, admit that the construction is best arrived at by ascertaining the intention of the parties, and giving such construction as will best serve to carry it into effect—Kingston vs Preston, (2 Doug. 689;) Glazebrook vs Woodrow, (8 Term. 371;) Perry vs Hewlet, (5 Porter, 318.)

This being the rule, let us endeavor to ascertain from the covenants themselves, what was intended to be understood by the parties. It is evident that the contract was to continue for twelve months, (and during that time, neither would have the right, without the consent of the other, to dissolve it,) because the nett proceeds, during that period, were to determine the amount of compensation to be received by the plaintiff. So, it it is also evident, that the personal services of the plaintiff were to be rendered during the same period, for the purpose of increasing the sum to be divided at its expiration ; otherwise, no reason can be assigned why he was employed at all. And it is clear, that neither party contemplated the sickness or death of the plaintiff; otherwise, it is fair'to presume that such events would have been provided against.

Now, it is apparent that manifest injustice would be done to the plaintiff, by inserting an implied consideration in this contract, that he should continue in health during each day of the whole year, and to make his compensation depend on the performance of this condition. So, it would be equally unjust to the defendants, to compel them to pay the plaintiff for the whole year, when he may have been incapacitated, by disease, during eleven months of it.

As neither party ought to be ^injured, by that which was never contemplated by them when' they entered into the covenant, some rule must be ascertained, which will render equal justice to all concerned.

If the contract is to be considered as rescinded, and that the plaintiff is entitled to a reasonable remuneration for his services, each party might have reason to complain. The defendants might allege, that they had only contracted to pay one-fourth of the profits, and none might have been made. The plaintiff might insist, that the profits, during the time he had rendered the services, were much more than his compensation, .as a laborer, would amount to. The rescisión of the contract, would not, therefore, indicate the true rule.

If the plaintiff should insist (as he does by his declaration,) that he is entitled to receive his proportion .of the profits made during the time he rendered the services, the defendants might well reply, that the business for the other part of the year had been unprofitable, and involved them in debt — when it was but equitable, that the profits of the first eight months should discharge the losses of the last four: or they might insist that their reasonable profits to have been expected, were much lessened by the illness of the plaintiff, and that they were entitled to receive from the former fund, a remuneration for the profits which would have accrued to them.

A principle of decision has obtained in cases where there are mutual covenants, and a part performance has been made, which, if applied here, will, we think, afford the means of arriving at a rule agreeable alike to equity and law.

The case of Boone vs Eyre, (1 Hen. Black. 273,) was a case of mutual covenants. The plaintiff conveyed to the defendant, the equity of redemption of a West India plantation, together with a stock of negroes on it, in consideration of five hundred pounds, and an annuity of one hundred and sixty pounds for his life; and covenanted that he had a good title to the plantation, was lawfully possessed of the negroes, and that the defendant should quietly enjoy; and the defendant covenanted that the plaintiff, well and truly performing all and every thing therein contained, on his part to be performed, he, the defendant, would pay the annuity. The breach assigned, was the non-payment of the annuity — plea, that the plaintiff was not at the time of making the deed, legally possessed of the slaves or the plantation, and so had not a good title to convey, — to which there was a general demurrer. Lord Mansfield held, that as the covenants in relation to the slaves went only to a part of the consideration, and as the breach of covenant would be paid for in damages, the plea was not good; and if it were allowed, any negro not being the property of the plaintiff, would bar the action.

So, in the case now before us, if the performance of the services by the plaintiff is a condition, the failure fox-one day would be as fatal as a failure for months.

In Campbell vs Jones, (6 Term R. 570,) Mr. Justice Ashurst, after adverting to the case of Boone vs Eyre, says there is a difference between executed and executory covenants: and that there, the covenants were executed in part, and the defendant ought not to keep the estate, because the plaintiff had not a title to a few negroes.

Apply this remark to this case. I-Iere is a covenant which is to be executed on each one of three hundred and sixty-five days, — there is a failure as to some of the days, but a performance on the others. Ought the plaintiff to be defeated of his remedy ? We think not.

The rule which we have adverted to, is now well established and settled in all the English courts—Carpenter vs Cresswell, (4 Bing. 409;) 8 Taunt. 583; 2 J. B. Moore, 639: and its intrinsic merit must cause its adoption every where.

But in these cases, it does not seem to have occurred to the courts, that there was no necessity of throwing the defendant on his cross-action, on the covenants to him, which would often be productive of evil consequences, as in the case of an insolvent, or doubtfully solvent, plaintiff.

In the action of covenant, damages, and not a sum in numero, are recoverable, and although a sum certain may often afford the proper measure of damages, yet it by no means follows, that it is the only measure. If, then, where an action is brought by one party, when the covenants are mutual, and have been performed in part only by the plaintiff, and the defence does not go to the whole consideration, it will be a much safer rule to permit the defendant to reduce the damages, by shewing those which he has sustained by’ the failure of the plaintiff. This course would harmonize with other decisions of this court, permitting a partial failure of consideration to be given in evidence in an action on the original contract; and as in many, and perhaps most of the cases of mutual covenants, those of one party form the consideration for the covenants entered into by the other, justice would be much promoted by allowing the reduction of the damages claimed, instead of compelling the defendant to resort to his cross-action, whenever there is shewn a partial performance of the covenants.

We are awáre that we have gone further into the consideration of this subject, than is perhaps warranted by the case before us, but as many of these questions have been adverted to in argument, and as an exposition of the rule seemed to be called'for, in order that our present decision may be understood, we have gone at length into the principle which we think governs such cases.

To apply the principles we have thus ascertained, to the decision of the case before us — It will be seen that the declaration is defective, as it assumes, as a consequence, of the inability of the plaintiff to render the services contemplated by the contract, for the last four months of the year, that the mode of ascertaining his compensation was changed. The contract of the parties is, that one fourth part of the nett proceeds for the year is to he paid. The plaintiff assumes that he is entitled, under the circumstances, to one fourth of the nett proceeds for eight months.

In this view alone, the declaration is defective, as the matters which are set out, do not impair the essential features of the contract; but as this error in the declaration is sufficient to sustain the judgment of the Circuit court, it must be affirmed.


author: OSMOND, J.

text:
    THOMASON VS SMITHSON.
    1. Where a prayer for specific relief in a bill in chancery is accompanied with a prayer for genera] relief; the complainant is entitled to other specific relief; not inconsistent with the case stated in the bill; but no relief can be granted under the general prayer, entirely distinct from, and independent of, the special relief prayed for—
    2. Therefore, a decree cannot be rendered against a party not sought to be charged by the allegations of the bill, although such party may be before the court.
    3. A bill may, however, be framed in the alternative, asking relief against A, if he has authorised B to collect money due by judgment, and against B, if he has collected without authority. This would apprise B of the claim set up against him, and enable him to file a cross bill against A, and to have the equities adjusted between them, or to defend himself in any other manner.
    4. The principle, that an answer to a bill can only be overthrown, by two witnesses, or by one witness and corroborating circumstances-, does not apply to the case of the proof by one witness, of the execution of a written instrument, which contradicts the answer. Therefore,
    5. Where M assigned to T a judgment he held against S, and afterwards, in answering a bill in chancery, denied that he had made such an assignment — the proof of the assignment by the subscribing witness, is sufficient to countervail the denial of the answer.
    Error to the Circuit court of St. Clair county.
    Bill of complaint, with a prayer for relief, injunction, &c. On the twenty-seventh day of March, eighteen hundred and thirty-five, William Smithson, the complainant, filed Ms bill in the Circuit court of said county, exercising chancery jurisdiction, which stated, that theretofore, perhaps ten years ago, one William Mason, then a citizen of said county, recovered two judgments against complainant, in the Circuit court of said county, both judgments amounting to between three and four hundred dollars, besides costs, — -the exact amount not recollected by complainant. After the judgments were rendered, said Mason, by his written assignment, transferred both of the judgments to one James H. Thomason, now a citizen of the county of Talladega, which assignment bore date on the fifteenth day of November, eighteen hundred and thirty-two, and to which assignment, complainant, for more certainty referred, and annexed a copy of the same, and which he prayed might be taken as part of his bill, together with the receipt thereto attached. After the assignment of the judgment to Thomason, complainant paid to said Thomason the amount called for by the judgments, and the costs on the same; for which he had receipts which he was ready to produce.
    The bill further stated, that notwithstanding complainant had paid and satisfied the judgments and costs, said William Mason, or some other person for him, had caused executions to issue on said judgments for their full amount, without any credits, and that the executions were then in the hands of the sheriff of Benton county, and had been levied on the property of complainant, which was then liable to be sold' to satisfy the judgments — which executions were issued to vex, harass and oppress complainant.
    The bill charged confederacy, &c. and prayed that the confederates, when discovered, might he made defendants, and compelled to answer; and especially, that Mason and Thomason might answer and say whether the facts set forth in the hill were not true: and prayed that a writ of injunction might issue, commanding the sheriff of Benton county, the said William Mason, and others concerned, to desist from all further proceedings on said judgments and executions, until the final hearing of the cause; and that on such final hearing, the court would decree that Mason and his confederates might he perpetually enjoined from all further proceedings on the judgments and executions, and all such other further and different relief, as equity, conscience, and the nature of the case required.
    The assignment and receipt were as follow:
    “ To Burrel Green, Esq. Sir: I do this day assign the full amount of the judgments obtained by me in the Circuit court of St. Clair county, against William Smithson, —and also the full control and management of the same into the hands of James H. Thomason, and his receipt shall he mine for the full, or any amount of the above judgments.
    (Signed,) “ William Mason.
    (Test,) “ Louis S. Tulane.”
    “ Received of William Smithson, in full of the above judgments, — that is, the debt and interest on judgments up to this date. January tenth, eighteen hundred and thirty-three.
    (Signed,) “ J. H. Thomason.”
    The answer of William Mason, stated that respondent did recover a judgment at the October Term, eighteen hundred and twenty-four, of St. Clair court, against complainant, for the sum of fifty-five dollars as damages, besides his costs of suit, hut denied that any other judgment was rendered in his favor. Respondent admitted, that at the same term, a judgment was rendered in favor of his daughter, Elizabeth Mason, for the sum of two hundred dollars, as damages, besides her costs of suit. Respondent denied that he ever assigned or transferred either of said judgments to James H. Thomason, or gave him any authority verbally or in writing, to receive or receipt for the money due him or his daughter, by virtue of said judgment: that he ever received from the complainant, Smithson, or from the said Thomason, or from any other person, any thing in satisfaction of said judgments, nor had he any knowledge of any payments, but that the same was, and remained wholly unpaid, except that he was informed and believed, that by virtue of the various executions he had caused to be sued out, some portion of the costs had been paid, which he believed had been entered upon the execution docket, to the credit of complainant. The answer admitted, that executions had lieen sent to Benton county, where complainant resided, but denied that respondent had any other motive than to have the amount due, thereby secured. The answer denied all combination — demurred to the bill, and prayed to be dismissed with reasonable costs, &c.
    On the hearing, it was ordered by the court, that the injunction obtained by complainant be dissolved, and that complainant have leave to amend his bill, and make additional parties.

      The amended bill charged, that one of the judgments mentioned in the original bill, to wit, the judgment for two hundred dollars, besides costs mentioned, was rendered in the Circuit court of St. Clair county, in favor of Elizabeth Mason, a daughter of said William Mason, and stood on the docket in her name; but that the said William Mason was her father, and probably her next friend in obtaining the judgment. Complainant further charged, that the said William Mason was the agent and attorney in fact of the said Elizabeth, in the management of the suit, and as such agent and attorney in fact, had the full management and control of said judgment, and power to transfer and assign the same ; and that said William Mason, in his assignment of said judgment to said Thomason, did in fact, if not so expressed in the writing, assign the said judgment in the name of said Elizabeth, to said ThomaSon, as well as the judgment in his own name; and under said judgment and assignment, complainant had paid the same to said Thomason, and the costs to the persons entitled thereto, which judgment was satisfied, as well as the judgment in thename of said William Mason. Complainant prayed that William Mason, Elizabeth Mason, and James H. Thomason, might be made defendants, and that they might answer the the same fully and clearly.
    The complainant further stated, that Thomason produced to the orator the assignment, and represented that the assignment was for both judgments, and under that representation and statement, complainant paid said judgment to Thomason. Complainant thought there was a combination between Mason, his daughter and Thomason, to defraud complainant. The amended bill prayed, that the judgments might be perpetually enjoined ; that the relief prayed for might be granted, and all other proper relief, &c.
    The answer of William Mason to the amended bill, stated that it was wholly untrue, that he ever gave Thomason any assignment, either in writing or otherwise, of either of said judgments in said complainant’s bill mentioned, nor had he any authority, either verbal or written, from Elizabeth Mason, to act as her agent or attorney, to transact any business in relation to the judgment she had obtained against the said complainant. The answer also denied all confederacy; and respondent thought there was a combination between complainant; Thomason, to defraud him and his daughter Elizabeth Mason, of their just rights. The answer also demurred to the original, and also to the amended bill, and for cause of demurrer, set forth, that the original bill was not signed by either the complainant or his counsel. It did not specify or designate the parties against whom process was to issue, nor was there any prayer for process against any one: It was multifarious, and blended the case of respondent with that of his daughter, Elizabeth Mason, and joined separate and distinct judgments in one bill: There was no equity in either the original or amended bill. To the answer, respondent added his affidavit, that the matters and things as set forth, of his own knowledge were true, and those stated upon the information of others, he believed to be true.
    The answer of Elizabeth Mason, stated that she was advised, and believed it true, that she did recover a judg-
      merit, in an action of malicious prosecution against complainant, for the sum of two hundred dollars, in the St. Clair Circuit court: that the judgment was rendered in her favor during her minority, ten or eleven years previous, — and that she understood complainant had so concealed his property, that nothing could be made, and that in consequence thereof, she had given herself no concern about it; but denied that she ever gave her father any authority, either directly or indirectly, to compromise, transfer or assign said judgment; nor had he ever received from her any authority, as her agent or otherwise, to receive or collect said judgment, or do any other thing in relation thereto. The answer further stated, that respondent never received any thing for said judgment from her father, or any other person, and that the same was yet her property, and had not to her knowledge been paid, or in any manner discharged by the said complainant, or any other person.
    Respondent demurred to the complainant’s original and supplemental bills of complaint, and for causes of demurrer, set forth: — That the original bill was not signed by either complainant or his counsel: That it did not specify and designate the parties against whom process was to issue, nor was there any prayer for process against any one in either the original or amended bill: for multifariousness in improperly blending her causu and defence with those of the other defendants: for want of equity, &c. The answer denied all fraud and combination, and prayed that respondent might be dismissed, with her reasonable costs.
    The answer of James H. Thomason, stated that it was true, as set forth in the complainant’s bill, that William Mason, for a valuable consideration, did, on or about the fifteenth day of November, eighteen hundred and thirty-two, in the presence of Louis S. Tulane, legally assign to the respondent all the interest the said Mason had in two executions against Smithson, one in favor of said Mason himself, the other in favor of said Mason’s daughter, Elizabeth. Respondent distinctly recollected, that if not stated so in the assignment, that the-said Mason, at the time of the transfer, informed respondent that both the judgments were placed entirely within the control of respondent, as their full amount had been transferred to him, — respondent making the purchase with the belief that the said Mason not only had the right of making such a transfer in his own case, but also as the father and natural guardian of his daughter, to dispose of that also: Respondent never would have consented to give the amount he did for either of the executions separately, and this was the reason of his recollecting so distinctly the contract between him and Mason. Smithson paid to respondent a portion of the amount claimed upon the executions, or at least a sufficiency to induce respondent to transfer to Smithson the assignment given by Mason.
    Louis S. Tulane, a witness for the complainant, proved the execution of the transfer and assignment, appended to the original-bill of complaint.
    At the Fall term, eighteen hundred and thirty-seven, the chancellor decreed, that the injunction should be dissolved, and that the complainant’s bill should be dismissed as to defendants, William Mason and Elizabeth Mason, and that they should recover their costs about their suit in that behalf expended of complainant, for which execution might issue. It was further decreed, that complainant recover of the defendant, James H. Thomason, the sum of four hundred and twenty dollars and ninety cents, it being the amount of the two judgments mentioned in complainant’s bill, and in the answer of said Thomason: to wit, the judgment which was recovered by defendant, Elizabeth Mason, by her father, as guardian, ad litem, against William Smithson, at the October term, eighteen hundred and twenty-four, of the St. Clair Circuit court, for the sum of two hundred dollars; and the judgment recovered at the same term of said court, in favor of, and in the name of William Mason, against said Smithson, for forty-five dollars, together with the interest on the said two judgments, at the rate of eight per cen-tum per annum, from the time the same were rendered, until the sixteenth day of January, eighteen hundred and thirty-three, at which time the money was paid over to said Thomason, by complainant; which two judgments, and the interest thereon, amounted to said sum of four hundred and twenty dollars, and ninety cents.
    It was further decreed, that defendant, Thomason, should pay the costs of the suit, except those incurred by William and Elizabeth Mason, for which execution might issue, &c.
    And the plaintiff assigned for error :
    That the chancellor erred in decreeing that the complainant below should recover of the plaintiff in error, the sum mentioned in the decree, — for which he prayed the decree might he reversed, &c.

      Pec/c, for the plaintiff.in error.
    Brcnon, contra.
   OSMOND, J.

— The view we take of this case, renders it unnecessary to examine the various questions which have been argued at the bar. Although we are satisfied the complainant below might have so shaped his case, as to have entitled himself to a decree against the plaintiff in error, an examination of the amended bill, by which the plaintiff in error was made a party, will show that the bill was not framed with a view to a decree against him, — nor can one be rendered in his favor against the plaintiff in error, without disregarding the well established rules of chancery practice.

The amended bill, so far from charging the plaintiff in error, with fraudulently, of without authority, collecting the two judgments against him, in favor of Mason, and his daughter Elizabeth, expressly charges, that the plaintiff had full authority from Mason and his daughter, to collect the judgments from him. It is true, the bill also charges that the complainant; believes, that the plaintiff in error has combined with the defendant Mason, and his daughter, to defraud him; but this allegation, so far from charging a want of authority in the plaintiff to collect the judgments, can only be supported, on the supposition that such an authority was given. for a fraudulent purpose. These being the allegations of the bill, proof showing a state of facts, of an entirely different character, which would authorise a decree against a different person, cannot nave any influence in the decision of the cause.

It is true, that under the prayer for general relief, relief may be granted, -different from the specific relief prayed for in the bill. But this principle has never been carried so far, as to authorise a decree against one who has not sought to be charged' by the allegations of the bill.

In Wilkins vs Wilkins, (1 Johns. Ch. R. 111,) it was determined, that if a bill, besides the usual prayer for general relief, contains a prayer for specific relief, the plaintiff is entitled to other specific relief, so far as it is consistent with the case stated in the bill.

No relief can be granted under the general prayer, which is of a nature distinct from, and independent of the special relief prayed for-Franklin vs Osgood, (14 Johns. R. 527;) see also 2 Atkins’ R. 141; 3 Atkins’ R. 132; 2 Vesey, 225; 1 Vesey, 426; 13 Vesey, 114; 2 Atkins’ R. 325.

The bill, in this case, might have been framed in the alternative, asking an injunction against the Masons, if they had authorised the plaintiff in error to collect the money due on the judgments; and against the plaintiff in error, if he had collected it without authority. This would have apprised the-lalter of the claim set up against him, and have enabled him, by filing a cross bill against the Masons, to have adjusted the equity as between them, or to have defended himself in any other mode the exigency of the case demanded.

The proof taken in the cause, authorised a perpetual injunction against the elder Mason, notwithstanding the denial in his answer. The proof of the subscribing witness, to the authority given to the plaintiff in error, by the elder Mason, was sufficient to countervail the denial of the answer. The principle, that an answer can only be overthrown by two witnesses, or by one witness and corroborating circumstances, does not apply to the case, of the proof by one witness, of the execution of a written instrument, which contradicts the answer.

If, therefore, there could be any decree rendered in this court against the plaintiff, it could only be for the amount of the judgment in favor of Elizabeth Mason ; but for the reason already given, no decree can be i$ade against him in this cause. The bill must be dismissed, at the costs of the defendant in this court, and the court below; but without prejudice to any suit which the defendant in error may think proper to prosecute against the plaintiff in error.


author: COLLIER, C. J.

text:
    HAYTER VS THE STATE OF ALABAMA.
    1. By the third seetion of the act of eighteen hundred and thirty-three, (Aik. Dig. 122,) personal service of a writ of scire fa-cias, issued on a recognizance against bail, in a criminal case, —is required, to enable the State to recover against the defendant.
    2. Though, it appears, that previous to the statute, a return of “ not found,” on an original and alias scire facias, was equivalent to personal service of the writ.

      Scire facias on bond forfeited. The bond acknowledged an indebtedness to the Governor of the State of Alabama, in a certain sum, and was conditioned for the appearance of the principal, at Spring term, eighteen hundred and thirty-six, of the Circuit court of Morgan county, to answer before the Circuit court, on a charge of murder. The record recited a judgment nisi, and award of scire facias, at the same term; and a subsequent scire facias, at Fall term, eighteen hundred and thirty-six. Both these writs were returned non inventus est.

    At Spring term, eighteen hundred and thirty-seven, a final judgment was entered; on which defendant took a writ of error.
    It was assigned for error, that judgment final was taken by default, no process being served.

      J. W. McClung, for plaintiff in error.

      The Attorney General, contra.
   COLLIER, C. J.

— The only question raised in this case is, whether the return by a sheriff “ not found,” on an original and alias scire facias, issued- on a recognizance against hail, in a criminal case, be equivalent to a personal service of the writ? If this question was unaffected by a statutable regulation, we might perhaps determine, that such returns authorised a judgment against the recognizors—3 Petersdorff, 355; 14 Petersdorff, 371, 2; 6 Bac. 103, 120. But the Legislature have forestalled our enquiries; for by the third section of the act of eighteen hundred and thirty-three, (Aik. Dig. 122,) it is enacted, that “notices or scire facias’ shall be directed to the sheriff, and a copy shall be served on each, by the sheriff; and one service on each defendant in said notice or scire facias, shall be sufficient to enable the State to recover.” Now here is an express legislative requisition of the personal service of such process, and in such a case as the one at bar, and must control the pre-existing law. The plaintiff was not before the court for its action against him. The judgment of the Circuit court must therefore be reversed, and the cause remanded for further proceedings.

GQLDTHWAITE, J. — Not sitting.


text:
    LAMAR, et ux. VS NICHOLSON, et al.
    1. This court will not look into the transcripts of cases, appended to a writ of error, taken upon the judgment of a court, on the award of arbitrators, — it not appearing from the agreement of submission, that the particular cases were referred to the award of the arbitrators.
    2. Where there is not the agency of a Court of record, or its clerk, or where no written statement, as prescribed by statute, is drawn up previous to a submission to arbitrators, of cases pending in court, — no judgment can be rendered on the award, when made, on motion merely.
    3. An award, if good at common law, may, it seems, be made the basis of an action by a party injured, against the one who declines a compliance.
    4. But an award, where the submission has been made pursuant to statute, is a warrant for the judgment of a court, quite as much so as the verdict of a jury, and must be followed strictly by the judgment, both as regards its amount and the parties charged; therefore,
    5. Judgment cannot be rendered against the wife of one of the parties to a submission, who was not subjected by the award 'to the payment of any sum either separately, or in connection with her husband, though she may have been a party to the cases docketed, and so intended, probably, to be included in the submission;
    On a writ of error to the Circuit court of De Kalb county.
    'The writ of error was taken in this case, upon the judgment of the Circuit court, affirming that of the County court, upon an award, made by arbitrators.— The record contained transcripts showing, that previous to the award, there were pending in the County court, three several cases, entitled William 'R. Nicholson, David Gage, and Nelson Harlen, against James Lamar, et ux, for malicious prosecution. Following the titles of these cases, recited in the record, there was the following entry :
    Tho parties to the several actions agreed in writing, to submit the claims made by said plaintiffs against defendants, to. the determination of certain two arbitrators mentioned, with a privilege granted to the arbitrators, of selecting a third person in case of disagreement; the report of \Vhoih, or a major part of whom, being made as soon as might he, to any court of record of said county, — -judgment thereon to be final: and if either of the parties should neglect to appear before the referees, after notice had been given, of the time and place appointed by the referees for hearing the parties in the actions, which notice the referees were to he judges of, — they should have power to proceed ex parte. All. the parties appeared before an acting justice of the peace, for the county, and acknowledged the instrument above mentioned to he their free act.
    Then followed the award, in the words following— “ William R. Nicholson versus James Lamar and Sally Lamar — David Gage versus the same — Nelson Harlen versus the same. We, the undersigned arbitrators, appointed by the parties in the above cases, having had the matter under due and. deliberate consideration, present the following as our award—
    “1. That James Lamar shall make an acknowledgement that he prosecuted the above persons improperly.

      “2. That he shall pay all the costs in the aforesaid cases, and also the sum of four hundred dollars as damages — In testimony whereof, we have hereunto set our hands and seals, this sixteenth day of August, eighteen hundred and thirty-six.” Signed and sealed by the arbitrators.
    Upon this áward, the County court rendered a judgment against “the defendants,” for four hundred dollars, and costs. The defendants then took a writ of error to the Circuit court, and assigned that—
    1. The husband and wife were improperly joined in the action, as the record alleged the tort to have been committed by them jointly; ■
    2. The court erred in entering up judgment on the award of the arbitrators, it being for an aggregate of damages, in three separate and several suits, by different plaintiffs, and in rendering judgment against husband and wife jointly ;
    3. The record did not shew how the matter was submitted to arbitrators;
    4. It did not shew that the arbitrators were sworn;
    5. That costs for slander was entered in each case, whereas it cannot lie against two persons.
    In the Circuit court, the judgment was affirmed, and from this judgment, there was a writ of error sued out to the Supreme court.
    It was here said—
    1. There was error in affirming the judgment of the County court, in rendéring judgment against husband and wife, the wife being improperly joined, as the record alleged the tort to have been committed by them jointly:

      2. The court erred in rendering judgment on the award of the arbitrators in favor of separate plaintiffs, in their separate actions jointly, and for costs separately;
    3. In rendering judgment on the award against husband and wife, when the award was against the husband alone;'
    4. In rendering judgment at all, because the record did not shew how the matters were submitted to arbitration ;

      5. Because the award was so uncertain, that no judgment could he rendered on it;
    6. The record did not shew that the arbitrators were sworn, nor did it shew how the matters were submitted ;
    7. The award did not follow the submission;
    8. Nor did the judgment follow the award.

      Brown, for the plaintiffs in error.
    The only important questions in the case were, whether the submission to the arbitrators, was drawn up in pursuance of either of the statutes applicable to the subject: whether the terms of the submission had been kept in view by the arbitrators, and whether the judgment was in strict accordance with the award. These questions, he was satisfied, must, upon an inspection of the record, be answered in the negative, — and if so, the case was at an end. The judgment below must be reversed. To shew that the judgment was void, for want of an order of submission, and because there was no evidence to shew what the subject matter referred to the arbitrators was, he cited Davis vs McConnel, (3 Stew. 492;) Sherron vs Wood, (5 Halsted, 7;) 4 Amer. Dig. 36; Eaton vs Arnold, (9 Mass. R. 519.) The submission on the part of the wife was void — Eastman vs Burleigh, (N. Hamp. R. 484;) 4 Bibb, 475. One award could not be made where there were several separate and distinct actions— 5 Amer. Dig. 30; Craig vs Craig, (4 Halsted, 198.) The award did not dispose of the several cases, and was therefore not final — Yosburgh vs Bame, (14 John. R. 30&-) The award was a nullity, because it did not appear that the arbitrators were sworn — 1 Halsted, 388; 4 Amer. Dig. 41; Lile vs Barnett, (2 Bibb, 167.)

      Baylor, for the defendants,
    thought the plaintiffs were compelled to rely upon the errors assigned in the Circuit court. The matters alleged as in error in the .first assignment, could only be taken advantage of by plea in the County court, to-wit, the joinder of husband and wife for malicious prosecution and slander — 1 Chitty, 76, and the authorities there referred to in a note. There were two causes of error embraced in the third assignment, the last of which was virtually contained in the first assignment;' and as to the other, it was apparent from the record in the Comity court, that although separate suits were necessarily commenced by each of the plaintiffs, yet they grew out of the same transaction, and each of the parties were arrested for the same supposed offences. If they were willing to submit their common and several injuries to the same arbitrators, and were content with a joint award and judgment thereon, it certainly could not be matter of. just complant by the plaintiffs in error.

      There was another point of view in which the case might be considered. Would the submission to arbitrators by the plaintiffs below, and the award founded thereon, be a bar to the prosecution of their several actions; and if so, should its -operation affect the rights of the parties, mutatis mutandis, and be alike obligatory upon both plaintiffs and defendants? The record did not shew that the arbitrators were not sworn, and the court would intend every thing warranted by the record to sustain judgment rendered on an award — Tankersley vs Richardson, (2 Stew. R. 130.) The court might and would presume that the County court was satisfied that the award was made by the arbitrators under oath, of which fact, oral testimony must have been adduced, or the County court would not have proceeded to render judgment. At all events, the proper time to have taken advantage of that irregularity, supposing it to have intervened, was at the time the judgment was rendered— Aik. Dig. 32,34. The court below had jurisdiction even if the causes had not been transferred from St. Clair to Be Kalb counties — Aik. Dig. 33.
    Touching the sixth assignment of errors, that costs in slander could not be • awarded against two defendants. It was true, that an action -of slander could not be maintained against two defendants, but in malicious prosecution, could not one prosecute and another aid and abet ? The objection was, however, embodied substantially in the first assignment. Arbitrators might also, under submission, dispose of. costs,' although not submitted — 14' Johns. R. 161; .Goodwin.vs Yarborough, (Í Stew.R. 152.)
    After parties had gone-to trial rnpoh the general issuo, without availing themselves of defects which might have been reached either by general demurrer, or by motion in arrest of judgment, the court would, not allow them to avail themselves of such defects upon a writ of error— Barlow vs Todd, (3 Johns. R. 367;) 1 Chit. 76on joint actions for malicious prosecution. Award could not be set aside, because illegal matters were alleged as its grounds, and the court would intend every thing the record would warrant to sustain the judgment, even though no declaration were filed. Matter to reverse a judgment, even if apparent upon the face of the record, would not be available, if the objection were not taken previous to judgment — Aik. Dig. 266.
   COLLIER, C. J.

— This cause came to this court by writ of error from the Circuit court of De Kalb. The cleric of that court certified with this case, the transcripts of the records of three several actions at the suit of the defendants in error, against the plaintiffs, for malicious prosecutions. Pending these actions, the parties, without any notice being taken of them, entered into a joint submission of “the claims made” by the defendants against the plaintiffs, to two arbitrators of their own. choice, who, in the event of their disagreement, were au-thorised to choose an umpire, “ the report of whom, or the major part of whom, being made as soon as may be, to any Court of record of said county, judgment thereon to be final,” &c. The agreement was acknowledged before a justice of the peace, and the arbitrators being unable to agree, an umpire was chosen, and an award signed by the arbitrators and umpire. The award, after directing the plaintiff, James Lamar, to make suitable acknowledgments to the defendants for the outrage upon their feelings, directs “ that he shall pay all costs in the aforesaid cases, and also the sum of four hundred dollars, as damages.” The County court of De Kalb rendered a judgment for the sum awarded in favor of the defendants against the plaintiffs, which judgment, on writ of error, was affirmed by the Circuit court.

Whatever may have been the intention of the parties, or what they in fact did, the record furnishes nothing to inform us that the suits then pending for malicious prosecutions, were actually submitted to arbitration. “ The claims madé” by the defendants against the plaintiffs, are stated to be, the matters on which the arbitrators were to decide; but the nature of these claims no where appears. The titles of three cases are written immediately preceding the award, and by the award itself, James Lamar is directed to pay the costs of them; yet we cannot know any thing of these cases, as they are not particularly characterised in any part of the record which properly belongs to the case before us. And we are not authorised to look into the records of the actions attached to the writ of error, for the reason already stated, that they are not recited in the agreement of submission. All the assignments of error, then, having reference to those suits, must be disregarded.

The reference to arbitration certainly does not conform to the acts of eighteen hundred and nineteen, eighteen hundred and twenty, or eighteen hundred and' twenty-four, — the two former of which requires the agency of a Court of record, or its clerk, as a preliminary step. The latter declares, that it shall be lawful, where persons have a dispute which they are desirous to adjust, to make out a particular statement thereof, under their hands, in writing, &c. The justice of the peace is then to draw up an agreement for the signature of the parties, which, when signed, they are to acknowledge be-, fore him. Here no written statement, as prescribed by this statute, was drawn up previous to the agreement of the parties, and upon the authority of Davis vs McConnell, (3 Stew. R. 492,) no judgment could have been rendered upon the award on motion rnerely; but if good at common law, it might be made the basis of an action. But this objection not being taken in the Circuit court, cannot be made available here, where we are only reviewing the correctness of the jiidgment of that court.

It was clearly irregular to render judgment against the wife, when she was not subjected by the award to the payment of any sum. either separately or in connection with her husband. An award, where the submission has been made pursuant to statute, is a warrant for the judgment of the court, quite as much so, as the verdict of. a jury would be; and like the latter, must be followed by the judgment, both as it regards the amount and thé parties charged. The other errors assigned, either do not arise upon the record, or are disproved by it. The objection last noticed was the only error presented to the view of the Circuit court, and, in disregarding it, that court erred. Its judgment is therefore reversed, and the cause remanded to the Circuit court, that the judgment of the County court may be there reversed.


author: GOLDTHWAXTE, J.

text:
    THE STATE VS LIGON.
    1. A plea in abatement to an indictment, that it was not found by the requisite number of grand jurors, because J M, one of them, was not, at the time of the finding of the indictment, a freeholder or householder of the countyj is insufficient, and therefore bad on demurrer.

      2. But where issue is taken on such defective plea, the defect will not be inquired into.
    3. The averment of an affirmative fact, by a party pleading-, renders it necessary for him to support it by evidence, — unless the law presumes its existence.
    4. The law does not presume, that the grand jurors, returned by the sheriff, as by law required, are qualified to serve: — to wit, that they are all freeholders or householders.
    5. Nor is the list of grand jurors, returned by the sheriff, evidence, that such grand jurors are qualified, according to law.
    6. No judgment will be rendered to this court, on an immaterial issue.
    This was an indictment for gaming, tried in Tuska-loosa Circuit court. The defendant plead, that one,, of the grand jurors, who concurred in the finding of said indictment, and without whose concurrence, said indictment was not found by the requisite number of grand jurors, to wit, one J M was not at the time of the finding of said indictment, a true hill, — a freeholder or householder in said county of Tuskaloosa.
    To this plea, the State replied, that the said J M was, at the time of the finding of said indictment, a good and lawful grand juror for said county, for that he was at the time of said finding, a freeholder or householder of Tuskaloosa county.
    The defendant demurred to the replication, which demurrer being overruled, and leave given to defendant to rejoin, then issue was submitted to a jury.
    The defendant then demurred to the evidence, and under it, judgment entered for the State. ■
    To prove that J M'was a qualified grand juror, to wit, a freeholder or householder of Tuskaloosa county, the State proved by the sheriff’s list, that the name of said J M was upon said list of freeholders and householders, returned by the sheriff to the clerk of the Circuit court, as by law required, next before the term at which he served as a grand juror; and also by the record, that said J M’s name was upon the record, as one of those qualified persons selected according to the act of assembly, entitled an act “ to alter the mode of selecting grand jurors,” approved January the ninth, eighteen hundred and thirty-six, by the clerk and sheriff, under the superinten-dance of the judge of the County court. This was all the proof adduced on the part of the State, and was demurred to by defendant.

      Crabb, for the appellant.

      Attorney General, contra.
   GOLDTHWAXTE, J.

— We can perceive no error, of which the defendant has any cause to complain, in the decision on the demurrer. If the plea is to be considered as available, the replication was strictly formal and re-guiar, as it only asserted affirmatively, what was denied by the plea; and thus a proper issue was formed. The plea itself was insufficient, under the decision made in the case of the State vs Middleton, at the last term, and if it had been demurred to, must have been so pronounced ; but as issue has been taken on it, the defect cannot now be examined—Hazard vs Purdom, (3 Porter, 43.) What would have been the effect of a motion on the part of the State to award a repleader, is a question which does not arise, and as to which, no opinion need be pro* nounced.

The State having elected to tender an issue to the country, on an immaterial plea, must, if the affirmative lies on it, — sustain the issue by proof, as in other cases; and it is therefore necessary to ascertain if the facts shewn in evidence warrant the judgment of the court on the demurrer to evidence. The records introduced, established nothing more, than that the sheriff, and previous to the court, returned the name of McCreight, as a householder or freeholder -; but this return could not be conclusive, nor even prima facie evidence, that the fact was so. But it is said that the State was not obliged to sustain the issue by any proof, — that it is not allowable for a defendant thus to cast the onus of sustaining the prosecution, on the State. It is undeniable, that in all matters of pleading, the averment of an affirmative fact, by a party, renders it necessary for him to support it by evidence, unless the law presumes its existence. We are not aware that any presumption arises here, that the individual was qualified, as asserted by the replication; and it certainly was not such a fact as the defendant could be called on to disprove, as it -would, in most cases, be barely possible to establish negatively, that McCreight was not a freeholder or householder. Nor is the argument sustainable, that the facts are equally within the know-lege of both parties. If they exist, they can surely be shewn by the State more easily, and with more certainty, than the defendant can establish the negative.

We, therefore, think it was erroneous, to render judgment on the demurrer to evidence for the State, and for this error, the judgment must be reversed; but no judgment can be here entered, because the issue is wholly immaterial.

The case must be remanded to the Circuit court, with instructions to award a repleader.