Newman v. Goza

2 La. Ann. 642 | La. | 1847

Lead Opinion

The judgment of the .court was pronounced by

Slidell, J.

The plaintiff was the last endorser of a promissory note for .the sum of $3,805 27, made by the defendant, George N. Goza, in the State of Mississippi, dated 5th May, 1836, and payable ten months after date, to the or,de,r of and .endorsed by Aaron Goza, also by Joseph H. Moore & Co., and Moore, Burroughs & Co. The note matured and was protested on .tlie -8th March, 3 837, and in the same year suit was brought by the Planters’ Bank, the holder, against Newman; judgment was obtained, and upon execution -various .amounts, in partial payment, were collected from him, the reimbursement of which he claims of Goza. The residue was paid to the holder by Moore, Burroughs & Co. The note was offered in evidence, together with the protest, and the record of the suit in Mississippi.

Our first enquiry must be directed to a bill of exceptions, taken by the defendant to the admission in evidence of an authenticated transcript of the record of the suit in Mississippi. The objections were: first, that the judge’s certificate did not show that the county of Claiborne was within the circuit of said judge ; and secondly, “because the certificate was not upon the same piece of paper with the clerk’s certificate, although there was ample room for the same, which will appear from the original transcript sent up.” The record .commences as follows: “Pleas before the Honorable George Coalter, Judge of the First Judicial District of the State of Mississippi, at a Circuit Cotirt begun and held at the court-house in and for Claiborne county, .on the fourth monday,” &c. The clerk, in his certificate, describes himself as -clerk of the Circuit Court for the county of Claiborne. The judge’s certificate is headed “ State of Mississippi, Claiborne county,” and he styles himself therein judge of the First Judicial District of said State. In view of all these circumstances, the objection is plainly untenable. The next objection seems to us equally so. The judge’s certificate is fastened to the transcript, at the -foot of the clerk’s, by a wafer. In the absence of any suggestion, or offer of proof, that the judge’s certificate Was improperly obtained, we must presume that he .did not violate his judicial duty, and that he affixed this certificate himself to the document before ,us.

On the merits several grounds of defence have been urged, which we shall proceed to consider. It is no defence against Newman, that Goza made the note for the accommodation of J. H. Moore & Co. The relations between Goza and Moore & Co., are not proved to have been known to Newman. When Newman endorsed the note for the accommodation of Moore & Co., who put the note in circulation, he must be .considered as having done so upon the faith and .protection of all the antecedent names; and the statement of one of the defendant’s witnesses, that Newman, in a conversation with the witness after .protest, told him that he looked only to Moore Co., and knew nothing of Goza in the matter, even if admissible under the pleadings, is insufficient to establish a discharge of the defendant’s liability. S.uch loose declarations, made without consideration to a third person,.cannot -be treated as an abandonment of a lawful claim.

Although the payments made by Newman were partial, the maker is bound from the nature of the contract and his primary liability to reimburse them. This point of the commercial law is well settled by high authority. The case is assimilated to that of principal and surety, where the request to pay is implied from the legal liability of the latter incurred for the benefit of the former. See Wright v. Butler, 6 Wendell, 289, and the opinion of Lord Tenterden, in 6 Barnwell & Creswell, 439.

. The defence of prescription is set up. We deem it unnecessary to consider the question argued by counsel, whether prescription begins to run in such a case from the date of the payment by the endorser. It is shown by testimony, offered by the defendant himself, that, within five years prior to his citation in this cause, to wit, in the early part of the year 1840, he acknowledged his liability upon -the note. The facts shown aro that, in a settlement of certain partnership transactions between Goza and Moore & Co., the latter received from ffozajirqperty to the value of the debt to the Planters’ Bank, and agreed on their part to take up the debt-to the bank. This pr-o.ves an acknowledgment hy Goza, in the year 1840, of his'liability upon the note to the holder, and this action was brought in 1844. It .is unnecessary to enquire what would be the ¡effect of such an acknowledgment, under the statute of limitations in Mississippi. Questions of prescription affect the remedy, and must be determined hy the law of the forum. Story’s Conflict of Laws, § 576. Union Cotton Manufactory v. Lobdell, 7 Mart. N. S. 108. Prescription, says our Code, art. 3486, ceases ‘likewise to run whenever the debtor, qr possessor, makes an acknowledgment of die right of the person whose .title they prescribe.

A judicial record from another State is sufficiently authenticated, when, by a reference to the ■record itself, taken in connection with the'Certificate of the judge, there is evidence to .show that the person by whom the certificate was given .was the judge of the court from whichthe record was certified. Per,Curiam.- It is not necessary that the judge should repeat in his certificate what his very act implies. Prentiss and Finney, for "the appellant.

The only question submitted for argument on the re-hearing in this case is, the sufficiency of the judge’s certificate authenticating the record of the proceedings in Mississippi, upon which the writ was founded. The act of Congress requires that, the record from another State shall be-certified by the “judge, chief justice, or presiding magistrate.” In the present case, the judge describes himself as “'judge of the-First Judicial District” of said State, &c. It is contended by the defendant, that the certificate must contain intrinsic evidence, that the judge was the judge' of the court from whence the record is certified, and that reference cannot be' had to the record to assist or explain the certificate. The case of Kirkland vv Smith, 2 Mart. N. S. 497, seems1 to go'tliat' length', but that case has gone beyond both authority and principle. In the case of Mudd v. Beauchamp, Lit-tell’s Selected Cases, 142,-the Supreme Court of Kentucky decided that, “ it is1 not necessary that the president or presiding judge should give himself such title in the certificate; if the record shows he was so, it is sufficient.” In the case now before the court, the certificate shows that George Coalter was then-judge of the First Judicial District” — nota judge, or one of tlie judges, but the judge — the sole judge. The body of the record shows that the Circuit Court of Claiborne, is in, and a portioftdf, the First Judicial District. This is conclusive that the judge who signed as judge — as the judge of the First Judicial District — was, at the time, judge of the court from whence the record1 came.

“ Parquelque acte que'le débiteur reconnaisseja dette, cet acte .interrompt lie temps de'ia prescription, soit que cet acte soit passé avec le créancier, soit qu’il soit passé sans 1ui: Par exemple, si, dans l’inventa'ire des biens du tlébiteur, la dette est comprise parmi le passif, .cet .inventaire, quoiqu’il ne •soit pas fait avec'Ie créantíier, est ,un acte recognitif de.Ja dette, qui interrompt ¡Je temp de la prescription.” 'Potliiqr, Trcíité oes Obligatiops, part 3, chap. 8, .•art. 2, § 4. See also Merlin’s Rep. verbo Interruption de Prescription, no. 8.

The plaintiff has incurred heavy expenses by the suit against him in the form ,of costs, and these form part of his claim. But these lie is not,entitled to re•cover. 'His claim musFbe confined to the amount collected on execution, which .actually went to the payment of the note, with such.interest from the dates of payment as the maker was bound for upon the note. 'It is .well settled that an endorser of a bill or note having had an action brought against him by the endorser','is not entitled to recover from the acceptor or maker the costs incurred in such action, unless .there .was an express apd collateral contract of indemnity.

It is therefore decreed that-the judgment of the court below be reversed ; and it is further decreed that the plaintiff recover of the defendant the sum of $5,612 73, with interest at the rate of eight per cent per annum on the sum of $1,243 39, part thereof, from the 22d May, 1843, till paid ; and interest at the .like rate on the sum of $4,369 34, other.part thereof, from the 3d day of July, 1843, till paid, andcosts.in both .courts..

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Rehearing

Same Case — On a Re-hearing.

J. Dunlap, for the defendant.

The case of Kirkland v. Smith, requires1 intrinsic evidence in the certificate of all the requisites of the act of Congress. This is admitted by plaintiff’s counsel, but they contend-that Judge Martin went too far. We quote in aupport of Kirkland v.- Smith,, the-authority of Green-leaf on Evidence, 1 vol. p. 552, § 506, who lays down the same rule, and endorses the decision of Judge Martin.

Plaintiff relies upon the case of Mudd v. Beauchamp. That case, eve* if authority, is’ in our favor. There the record certified showed that, “ John Marshall G'ault was chief justice.” The certificate redd: "■ The'said John Marshall Gault, chief justice.” This certificate contained intrinsic evidence ," for “ the said John Marshall Gault,” means the judge named- in the record..But the case of Mudd v. Beauchamp, was decided in 1812. In 1814, in the case'of Stephens v. Bannister, 3' Bibb, 369, there were certificates of two' judges. One says he is “ the judge that presided;” the other calls himself,- “ senior judge of the courts of South Carolina.” The record offered in evidence was rejected. In Sampson v. Overton, 4 Bibb, 499, decided in 1816, the same strictness in pursuing the act' of Congress was required. These cases' are later decisions of the court which-decided'the case-relied oil' by plaintiff- and must be considered as overruling that case.

The opinion of the court on the re-hearing was pronounced by

Eüsti-s, G. J.

We granted a- re-hearing in this case for the purpose of further examination of the subject,- inasmuch as our decision-conflicts with the’ rule laid down in the case of Kirkland v. Smith, 2 Mart. N. S-. 4-97.

We do not understand-that that case has been considered as an authority,settling the question which it determines. It has been cited ha the work of Mr. Greenleaf, as a decision made, but only as such. We consider that some1 weight must be given te the authority of a- judge when he performs a judicial act; and that when, by a reference to the record itself, taken- with his certificate, the proceedings are in point of form complete, there can be no necessity for the judge’s repeating in his certificate what his very act implies. The repetition in the certificate would add nothing to it. His aet is under the sanction of his oath, and the responsibility of his official- station.

The case of Mudd v. Beauchamp, Littell’s Selected Cases, 142, we think, lays down the correct rule on this subject.

The judgment of the court therefore remains unchanged.