Edmonson v. Mississippi & Alabama Rail Road

13 La. 282 | La. | 1839

Rost, J.,

delivered the opinion of the court.

The plaintiff sued out an attachment against a large amount of bank notes, issued in the usual form by the defendants, who are a corporation having banking privileges, established in the state of Mississippi. Several garnishees were ordered to answer interrogatories on facts and articles, and some of them answered that they had in their possession cotton, to an amount more than sufficient to satisfy the claim.

The defendants came into court, filed a general denial and alleged, that the claim of the plaintiff had been attached at the suit of Hyde & Goodrich. The plaintiff obtained judgment in the first instance, and the defendants appealed.

The appellants have alleged in this court, that there is error in the admission of the evidence upon which the case was tried, as exhibited by their several bills of exception, which were taken to the opinion of the court.

I. Admitting in evidence certificates of protest, on the ground that there was no proof of the signature or capacity of the notary who made them.

II. To the admission of evidence taken under commission, on the ground that there was no proof of the signature or capacity of the person before whom it was taken.

III. That the certificate of the governor of the state of Mississippi was not attached to the commission, and did not authenticate the same as the act of the person who signed it.

IV. That the curator ad hoc, appointed at the beginning by the court, to represent the absent defendants, had no capacity to waive prospectively in behalf of his client the production of legal evidence, in the manner he did.

We are of opinion, that these exceptions were well taken; the counsel appointed to represent the absent defendants, could not bind him not to require at any subsequent time, evidence of the judicial capacity of any judge or justice of the peace of the county of Rankin, in the state of Mississippi, to whom a commission in the suit might be sent; nor could he make him promise that he would never ask any other proof of the official capacity of any notary examined under such commissions, but his own oath to those facts. Upon a specific commission, and with a view to save costs and to speed the administration of justice, the counsel might well have dispensed with proof of those facts in reference to particular persons known to him ; but the agreement is too general, and being made without any apparent necessity or cause shown, cannot affect the legal rights of the defendants.

The certificate of the governor, that the justice of the peace before whom certain testimony was taken on commission, was commissioned as such at the time, is insufficient to authenticate the evidence, or a document which the governor never saw, and was ignorant of its existence.

Without this admission, there is no proof of the demand of payment, from which alone interest can commence"to run.

The separate certificate of the governor, that when the evidence was taken, W. C. Harper was a justice of the peace and notary public in the same county, is insufficient, and cannot authenticate a document which the governor never saw, and of the existence of which he was ignorant.

We are of opinion, that the evidence ought not to have been admitted, and that the case must on that account be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and the case remanded for a new trial, with directions to the judge to proceed therein according to law, and in conformity with the opinion of this court; the appellees paying the costs of this appeal.