Adams v. Way

33 Conn. 419 | Conn. | 1866

Carpenter, J.

The several questions presented by the record in this case, and relied upon by the defendant’s counsel, will be considered in their order.

1. The first arises under the motion in error, and relates to the sufficiency of the declaration. The contract declared on contains the following proviso: — “ Provided that if the said Adams shall be unable to collect the whole or any part of said debt, interest and expenses, by reason of want of title of said Kennedy or his wife in and to said property so mortgaged, then this guaranty shall be void and .of no effect.” The declaration does not negative this proviso, and the defendant claims that this omission renders the declaration insufficient. The proviso does not enter into the description of the covenant, and forms no part of the covenanting clause. The rule is well settled in this state and at common law, that provisos and exceptions of this character need not be noticed in the declaration, but that the defendant, if he would avoid liability by reason of anything therein contained, must set up the facts relied upon and prove them as matter of defense. Gould’s Pleading, 165,166; State v. Miller, 24 Conn., 522; State v. Powers, 25 Conn., 48; Matthews v. Taylor, 2 Mann. & Grang., 667 ; Brooke v. Spong, 15 Mees. & Weis., 153. The declaration therefore is sufficient.

2. The declaration sets forth certain proceedings in the District Court of the United States for the district of Wisconsin. To prove that part of the declaration, the plaintiff .offered in evidence a paper purporting to be a copy of such proceedings, certified by the clerk of said court under the seal thereof to be a true copy, but not otherwise certified or proved. To the admission of this paper in evidence the defendant objected, on the ground that the same was not further authenticated by a certificate of the judge, chief justice, or presiding magistrate of said court, that said attestation was in due form. The court overruled the objection and admitted the evidence. Whether this ruling was correct is the next question to be considered. This, together with the succeeding questions, properly arises on the motion for a new trial.

The act of Congress provides “ that the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form.” This act was designed to carry into effect the first section of the fourth article of the constitution of the United States. Both the constitution and the statute are limited in terms to the records and judicial proceedings- of state courts ; and it has been held that the statute does not apply to the United States courts. Pepoon v. Jenkins, 2 Johns. Cas., 119; Williams v. Wilkes, 14 Penn. S. R., 228.

The act of Congress having no application to this case, it remains for us to inquire whether the paper is otherwise suf ficiently authenticated. And that depends upon the further question whether the district court of the United States for the district of Wisconsin is to be considered a foreign or domestic court. If the former, the copies, not being authenticated in any mode recognized by law, should have been rejected. 1 Greenl. Ev., §§ 488, 513 ; Church v. Subbart, 2 Cranch, 238.

. But we are of the opinion that the several courts of the United States are not foreign courts; although in some of the states they may be treated as such for certain purposes. It will not be denied that the constitution of the United States, and the laws of Congress passed in pursuance thereof, will be judicially recognized by the courts of this state. The several courts of the United States are called into existence by .act of Congress under the constitution and their powers and duties specifically defined by statute. Such courts therefore, together with their seals, will also be judicially recognized. In the case of Womack v. Dearman, 7 Porter, 513, the Supreme Court of Alabama says: — “The constitutional, courts of the United States certainly can not be considered as foreign, in any sense of the term. They are domestic tribunals, whose proceedings all other courts of the country are bound to respect and receive when exemplified under the seal of the courts ; and such seal is presumed to be known, and establishes itself in the same manner as each court within a state is presumed to know and recognize the seal of any other court within the same state.” The cases of Pepoon v. Jenkins, 2 Johns. Cas., 119, and Williams v. Wilkes, 14 Penn. S. R., 228, are to the same effect. We think these cases are correct in principle, and that the court below did right in receiving the evidence.

3. The plaintiff claimed that L. W. Kennedy applied to the defendant to guarantee said loan, and exhibited to-him the said bond and mortgage, and that he saw and read the same, and understood the contents and provisions thereof. This the defendant denied, and testified as a witness that until about a week before the trial of this case he had never seen said bond and mortgage, and knew nothing of their contents except what he learned from the guaranty itself, which he signed ; that he knew nothing about the provision whereby the principal might become due upon neglect to pay the interest ; and that had he supposed the mortgage could be foreclosed so soon he would not have signed the guaranty. To confirm his testimony in this respect, and to show that his attention was specifically drawn to the time the loan was to run, his counsel asked him in substance whether, the property would not be likely to rise in value. The plaintiff objected to the question and the answer to be obtained thereby, and the court rejected the same. We think this ruling was correct. Admitting it to be true that the property would probably rise in value, we are unable to see how that fact would add to the weight of his testimony, or show that his attention was particularly directed to it at the time. He might have believed that the property would rise, and the fact that he did so believe might be a circumstance that would enable him to speak with more confidence, and perhaps would legitimately add weight to his testimony. So far as his mere belief was concerned, it does not appear but what he had the full benefit of it. Whether that belief was well founded or otherwise, is quite a different question. If well founded it would add nothing to his testimony ; if not well founded it would take nothing therefrom. It was a collateral issue, calculated to divert the attention of the triers from the real issue in the case, and evidence on that subject was properly rejected.

4. It only remains for us to consider the question of interest. It seems that the loan was made to L. & L. W. Kennedy of Milwaukee, and secured by mortgage on real estate there situated, and that the rate of interest agreed upon was twelve per cent. — a legal rate there, and consequently legal here. The defendant by his contract guaranteed the payment of said loan with interest at twelve per cent; and also, that the property mortgaged should be sufficient to pay said loan and interest; and in case it was insufficient for that purpose that he would make good the deficiency, so that the plaintiff should realise the full amount of his debt, principal and interest, at the rate agreed upon. The defendant then is clearly liable, by the express terms of his contract, to pay interest at the rate of twelve per cent, up to the time the debt became due.

But it is contended that after that time the legal rate only could be collected.

In the case.of Beckwith v. The Trustees of the Hartford, Providence and Fishkill Railroad, 29 Conn., 268, the Supreme Court decided that the rule of damages for the detention of the principal after it became due, was the same as the rate of interest agreed upon by the parties. That decision must govern this case. The plaintiff’s claim against* the original debtors consists of the principal and interest at the rate of twelve per cent, while it remains unpaid. The defendant has contracted in the most unequivocal manner to pay that debt. It hardly requires an argument to show that he can only fulfil his contract by paying the whole debt.

It is said that by the laws of Wisconsin interest on judgments and decrees in certain cases is only seven per cent, and that that rate only should have been allowed, after the decree of foreclosure in that state. If the debt was merged in that decree, and it clearly appeared that that decree would carry only seven per cent, interest, this claim would seem to be' well founded. But the difficulty is that it does not appear that the proceedings in Wiscorisin merged this debt; nor can we presume such merger, especially as similar decrees in our own state do not have that effect. On the whole we can not see that the defendant has any cause of complaint in respect to the matter of interest.

The motion for a new trial must therefore be denied.

In this opinion the other judges concurred ; except Mc-Curdy, J., who did not sit.