Lincoln v. Battelle

| N.Y. Sup. Ct. | Jan 15, 1831

By the Court,

Savage, Ch. J.

The defence in this case was placed on two grounds: 1. It was insisted that the defendant was discharged from liability, on the ground that the plaintiff having dealt entirely with T. Battelle, the defendant’s agent, he had looked to the agent’s responsibility, and not to the defendant; 2. That the defendant had been legally discharged from the payment of this debt, by virtue of a royal grant of the king of Denmark, and of the proceedings under it. Both branches of the defence rest upon the proof contained in the deposition of witnesses, taken under a commission in the island of St. Croix. It appears by the commission and return that the witnesses were sworn, not by the commissioners, but by the local authorities, in the presence of the commissioners. The plaintiff, on the trial, objected to the reading of the depositions on that ground, but they were received, and it is now objected preliminarily, that the depositions not being sworn before the commissioners, should have been rejected. The witnesses were sworn before the court of the island, because the authorities of the place prohibited the commissioners from administering the oaths. It is true, that so far as respects this cause, the commissioners had power to administer oaths, and the testimony thus taken is competent; but if a witness thus sworn, should swear falsely, he probably would escape punishment. He could only be punished by the laws of the country in which the oath was administered; and if by the laws in force in St. Croix, the oath before the commissioners was unauthorized and extra-judicial, perjury could not have been commit!ed. It seems to me, therefore, that the manner of administering the oath was not objectionable, as it was the only way in which it could be done.

The commission was issued by consent, and was executed subject to all just exceptions. On the trial, the plaintiff objected to such parts of the deposition of T. Battelle, as went to shew that Mrs. Battelle had accounted with him for the plaintiff’s salary; and that the plaintiff knew that the salary was so charged. Thomas Battelle was the authorized agent of the defendant; as such he employed the plaintiff, and in that character he settled the account. It is clear, therefore, that the plaintiff gave credit to the defendant, and not to her agent. The defendant might have shewn, if in her power, that, the contract between the plaintiff and her agent was made by the agent on his own account and responsibility; but that was not attempted. The defendant being liable to the plaintiff, it was totally immaterial to him whether the salary was included in the accounts between the defendant and her agent. It was her folly to avow it to her agent until he produced evidence of having paid it. The plaintiff was not responsible for the fidelity of the defendant’s agent. Suppose the plaintiff knew that Battelle had received his salary from the defendant, that did not discharge the defendant’s liability to the plaintiff; unless he had agreed to discharge her and rely on the personal responsibility of the agent. This is not shewn either by the deposition of J. Battelle, or by the accounts. The agent had previously paid the salary; the defendant could not do it in person, as she was abroad; but if she had been at home, she might, have chosen to transact her business by an agent; and so long as the plaintiff received his salary it was immaterial to him who paid it. The course of dealing proves nothing, if the plaintiff did no act relinquishing the defendant’s liability. The very last transaction shews that the plaintiff and T. Battelle considered the defendant the responsible party. The account is stated by T. Battelle, not in his individual character, but as attorney to the defendant, who was the owner of the estates of which the plaintiff had been overseer.

T he next question is whether the testimony of Behagen was admissible, to prove the proclama issued by the king of Denmark and the proceedings under it. The proclama was preceded by a royal grant, which must be considered as a law of the kingdom of Denmark, or as a judicial proceeding. However repugnant to our notions of justice and liberty such arbitrary proceedings are, we are to regard them as the acts of the government, and they must be proved as such. That the laws of a foreign country must be proved, must be considered well settled. In Fremoult v. Dedin, 1 P. W. 431, Lord Chancellor Parker held that the laws of Holland must be proved. Peake's Cases, 18. This has-been often so decided, and is not disputed; but the manner of proof is the point now particularly requiring attention. In Boehtlinck v. Schneider, 3 Esp. 58, it was decided by Lord Kenyon that the laws of a foreign country must be proved by documents properly authenticated from that country. This is undoubtedly correct as to the written or statute laws: the unwritten laws must also be proved as facts; but that proof may be by parol. The language of Chief Justice Marshall, in Church v. Hubbart, 2 Cranch, 236, has been cited in this court by Mr. Justice Sutherland. 6 Cowen, 429. “ Foreign laws are well understood to be facts which must, like other facts, be proved to exist, before they can be received in a court of justice.” “ The rule,” he says, “ is applicable to them, that the best testimony shall be produced ; and that such testimony as presupposes better testimony attainable by the party, shall not be .received, but no testimony shall be required which is shewn to be unattainable. They should be authenticated by the authority of the foreign state under its seal; or it should be shewn that such evidence could not be procured.” A sworn copy seems to be considered also competent testimony; but a copy certified by a consul, has been held to be, insufficient. It was said on the argument, and I think with propriety, that foreign laws must be proved like private acts. Public laws of our own state are permitted to be read from the statute book, not because that is evidence, for no evidence is necessary, as the judges are presumed to know the law, but the book is read to refresh their memory. Lord Ellenbovough so decided in Clegg v. Levy, 3 Campb. 166, The law being in writing, an authenticated copy ought to be produced. 2 Starkie’s Ev. 568, 9. The cases in our own court are to the same effect. In Kenney v. Van Horne, 1 Johns. R. 394, Spencer, justice, takes the distinction between the common law of a foreign country and its statutes; the one may be proved by parol, the other not. In Smith v. Elder, 3 Johns. R. 105, the point was raised and argued. There Reeve’s Law of Shipping was read to shew what was the statute law of Great Britain relating to the revenue. The court do not say what xvas proper evidence of the law, but they impliedly say the book was not sufficient, for they rely upon the fact that the defendant had concluded himself, by confessing that the goods were shipped contrary to the laws of the country to which they were sent. A similar decision was made in Packard v. Hill, 2 Wendell, 411, that the statute of a foreign country must be proved by an exemplification. In Consequa v. Willings,1 Peters’ C. C. R. 229, Washington, J. says, the written or statute laws of foreign countries are to be proved by the laws themselves, if they can be procured; if not, inferior evidence of them may be received. See also 1 Phil. Ev. 443.

Assuming the law to be, that all written laws of a foreign country, as well as proceedings of courts, must by proved by documents duly authenticated, let us examine the testimony offered to prove the royal grant. Mr. Behagen swears that he knew that such grant was issued, and that all necessary notices were given. This is clearly inadmissible; it supposes better testimony in existence, not produced nor accounted for. A royal grant must have been the act of the government, and entered of record. The officer having custody of the records could give an exemplification, authenticated under the seal of state; or a sworn copy might have been produced. Parol evidence is therefore inadmissible.

i-;. Mr. Behagen further testifies, that the copy and notarial translation of the proclama annexed to his deposition, is duty authenticated according to the laws of St. Croix; and that full faith and credit would be given to such authentication in the courts of Denmark. By the proceedings of the special town court of Christianstadt, in the island of St. Croix, held before the deputy judge and recorder, it appears that the original royal grant and the proclama were produced in court, and that it was shewn that they were recorded and published according to the laws of Denmark. Mr. Behagen who appears to be an attorney, swears, that the papers attached are copies of the originals; what he calls the original is but a copy of the record, and the paper produced is therefore a copy of a copy. This does not seem to me -to amount to evidence of a sworn copy of the record. The reason of receiving an exemplification or sworn copy is, that the court has testimony under oath; in one case there is the official certificate of an officer acting under an oath of office, in the other there is an oath proving the correctness of the copy. In Delafield v. Hand, 3 Johns. R. 310, this court held that a paper purporting to be an exemplification of certain proceedings of a tribunal at Havre, without any other evidence of their authenticity than what appears from the papers themselves, was not admissible; but that it must be proved as a fact, and subject to the same rules of evidence. The testimony of witnesses proving the seal of the court, and the signature of the judge, are sufficient to admit the exemplifications, 7 Johns. R. 519; and it seems from the same case that proof of the seal alone is sufficient; see also Peake’s Ev. 48; but the public seal of a state proves itself; it is matter of notoriety, and may be taken notice of as part of the law of nations, acknowledged by all. Peake, 48, n. 3 East, 222, n. See also 4 Dall. 416. The proceedings of a court of admiralty are sufficiently proved by the seal of the court, the certificate of the judge, and the certificate of a notary, that the person certifying as judge, is so in fact, 5 Cranch, 335; though, in this case, there was other proof of the judge’s acts in that capacity. In the case under consideralion, the notarial certificate only proves the correctness of the transaction.

But if I am wrong in this view of the case, then it becomes necessary to inquire what is the effect of this grant, and of tire proceedings under it. The proclama called upon all persons having or pretending to have any demands against the defendant, to present them by a certain day, or be precluded thereafter from asserting the same. Mr. Behagen swears, that the effect of omitting to present the demand within the time specified, is to extinguish the debt. By this I cannot understand that this proceeding operates in any other manner than as a statute of limitation ; there was no insolvency, no surrender of property, nothing but a mere limitation. The distinction between the lex loci and lex fori has often been adverted to, and it is well settled that the law of the place is to govern all questions affecting the nature, validity, construction and effect of a contract; but the law of the place, where a contract is sought to be enforced, is to govern as to the remedy. Most of the cases on this subject have been collected in a learned note to Andrews v. Herroit, 4 Cowen, 508. It is also well settled that a statute of limitations affect only the remedy, and not the validity of a contract. Mr. Justice Story has recently discussed the subject with great ability, and comes to the conclusion, that if the question were entirely new, he would adopt this among other propositions: “ That when all remedies are barred by the lex loci contractus, there is a virtual extinction of the right in that place, which ought to be recognized in every other tribunal, as of equal validitybut he admits the law to be otherwise, and decided that a plea of the statute of limitations of the state where the contract is made, is no bar to a suit brought in a foreign tribunal to enforce that contract; but a plea of the statute of limitations of the state where the suit is brought, is a good bar. 2 Mason, 151. The point is at rest in this state. 1 Caines, 402. 3 Johns. R. 263. 3 Johns. Ch. R. 190, 218. The cases of Prentiss v. Savage, 13 Mass. R. 20, and Tappan v. Poor, 15 Johns. R. 419, were cases of discharges under insolvent laws of other states, and held to be inoperative beyond those states. The comity of nations does not require that effect should be given to ^heiv laws which affect the remedy upon a contract, but only that the same law shall be applied as to the construe-t‘on anc* effect> as in state where the contract was made, and is to be executed. Neither ground of defence being tenable, the motion for a new trial must be denied.

New trial denied.