Richardson v. Williams, 2 Port. 239

Richardson v. Williams

2 Port. 239 | Ala. | 1835

By Mr. Chief-Justice Saeeold :

This suit was instituted by Williams, in Greene county. The action is debt, on a sealed instrument, for three hundred dollars, which, from the indorsement on the writ, appears to have been credited with fifty dollars, in 1820. The declaration is in the usual form, averring an indebtedness to the amount of the bond: thus — “For that whereas, the defendant, Richardson, and one Paulin Anderson,” (against whom this suit is not brought,) “ heretofore, fo-wit, on the *24022(1 day of Maxell, 1819, at Virginia, to wit, in Greene county, by their certain writing obligatory, sealed with their seals, and now shewn to the Court here,’’ &c. acknowledged themselves indebted in the said sum of money, “ and if not punctually paid, to carry interest from- the date.” The record further shews, that at the trial term, the parties came by their attor-nios, and the defendant saying nothing in bar, judgment was rendered against him. It also appears that the writ had bfeen duly executed.

Richardson, the defendant below, having sued out this writ of error, assigns as causes-, various objections to the declaration and judgment.

1st. That the debt declared for, and that recovered, are variant.

3d. The bond is not made part of the record, nol-is ojmr given of it, so that the Court can know if .judgment was given for the proper amount.

,4th. The judgment is for too much.- .

6 th. Interest is recovered by w,ay of penalty.

With respect to these four assignments, it will suffice to say, no oyer was craved of the bond sued on. The declaration contains the usual proferí in curia. No discrepancy is perceived between the debt sued for, and that for which the judgment was -rendered, unless it be, that the judgment is for less than appears to have been due, of which the plaintiff in error cannot complain. Nor does it appear that interest was computed before the maturity of the debt. • The amount is believed not to exceed six per cent, from the time appointed for payment until the date of the judgment; from which it results, that if the Court was au-thorised, under the circumstances, to allow any rate of interest, there was no error on any of the points noticed.

The 5th assignment is, that the plaintiff was dead before the commencement of the suit, which was un~ *241known to the defendant during the pendency thereof. The opinion of the Court, on this, as a preliminary point, has already been expressed — that the exception cannot prevail in this Court. We think, if the fact be true, which is not admitted by the adverse counsel, it constituted error in fact, which might have been resisted in the Court below; and as the record shews nothing of the kind, bat implied the contrary, it is an objection which we are not at liberty to notice.

2. The assignment, numbered second, deserves more consideration. It is, that the Court erred, in giving judgment for damages or interest, without a jury, as the bond was made in Virginia, and the Court cannot judicially know what is the rate of interest in that State.

If we are authorised to assume the fact, that the instrument was made in the State of Virginia, the exception is well founded in principle, and authority. This Court, as well as others, has frequently decided, that the rate of interest in a different State, is a matter which, the Courts ex officio, cannot take notice of; that it is a fact which must be ascertained by a jury. But the question here, is, can the Court judicially know, or assume the fact, that this bond was executed out of this State. The declaration charges, that it was made “at Virginia, to-wit, in the county of Greene,” State of Alabama. The State of Virginia is not expressed : the words “ at Virginia,” are mentioned in [the usual form of laying 'a venue within the jurisdiction; and which, however unnecessary in transitory actions, is a very common mode of declaring.— [Then, as the Virginia in question, is described, and laverred in the declaration to be, a place in the counIty of Greene, can the Court judicially know the con-Itrary ? By what warrant can we say there is not in *242that county some district or settlement — some town, hamlet, or villa, known and called “ Virginia.”

In the case of Garner vs. Tiffany, Wyman & Co.a this Court said, where it appeared on oyer that the note sued, on was executed at “Fayetteville,” that the Court could not judicially know, that that place was notin this State 5 on the contrary, was bound, from the description given of it in the declaration, to conclude it was in the county of Madison. Though it may appear more natural and customary to name a place “ Fayetteville” than “ Virginia,” the principle is the same in reference to either. Had the declaration described the contract as having ’ been made in “ the’State of Virginia,” the principle would have been different; it would have been the same as recognised by this Court, in the case of Peacock vs. Banks,b of Evans vs. Irvin & Dunlap,c and of Evans vs. Clark.d

Courts may judicially notice the geographical divisions of the Union into separate States, and of their own States into counties; but the topography of the country is subject to a different rule. In respect to the latter, the Courts will not judicially know the contrary of facts, implied by the state of the pleadings. In this case, the judgment by nil elicit, implied an admission of a contract, in all material respects, such as described in the declaration. This was the doctrine of the Court of King’s Bench, in Deybel's case.e— There, the prisoner was confined on a charge of having been found on board a vessel within four leagues of | the coast between the North Foreland and Beachey Head, or within eight leagues of some other part of I the coast, in violation of an act of Parliament. The return on the writ of habeas corpus, did not state that the vessel was discovered within eight leagues of the coast | of the county of Suffolk, but within eight leagues of I *243a place in a part of the coast, called Suffolk. The Court held that, they could not say, judicially, that there was no place on the coast between" the North Foreland and Beachey Head, which was called Suffolk. And as respects an additional averment in the return, that the vessel was discovered within eight leagues ox Orfordness, in the county of Suffolk, they said they could not know whether Orfordness, which was averred to be part of the county of Suffolk, might not be an isolated part of it, situated on the coast, between the North Foreland and Beachey Head ; and if so, there was nothing on the return to shew, that the vessel was discovered within the limits mentioned in the act of Parliament. That the proper course would have been “ to have stated negatively, that the vessel was found within eight leagues of a part of the coast of Great Britain, not between the North Foreland and Beachey Head, to wit, within eight leagues of Orfordness, in the county of Suffolk:’

It is true, on that occasion, the Court held great strictness to be necessary, because the liberty of the party was involved ; yet they professed to act on the general principle of judicial cognizance, and said it could not extend to the particular parts of counties, and their local situation.-(See also, Henry versus King.a)

In this case, a plea of the general issue, or any other, which did not imply an admission of the contract, as charged in the declaration, would have created a necessity for the intervention of a jury to ascertain, as well the debt as damages.

But it is contended, that in Boardman vs. Ewing, this Court adopted a different rule. There, it will be observed, the case was essentially different. The question of locality did not arise on the pleadings : *244there was no averment that “ the city of New York” was in the State of Alabama.' ■ The question related alone to the sufficiency of an affidavit to take the depositions of a witness, who was therein stated to reside in the city of New York. The depositions could be legally taken only on a shewing of the non-residence of the witness. The affidavit, from the object in view, strongly implied the fact, but it was not expressed, otherwise than by naming the city in which he resided." Thus, on a mere matter of evidence, the question was presented, whether we would understand the place to be the City of New York, in the State of New York, or some city of the same name in Alabama. I consider the principle entirely different; and that there is nothing in the case last referred to, inconsistent with the current doctrine, by which" we have been, ari¿ are yet governed, in reference to the venue in pleading.

We say, the judgment must be affirmed.

1 Ala. R. 167.

Ala. Rep. 387

Porter’s Rep. 1 Fed. 390.

1 ibid. 383.

4Barn. & A1 2-!3 — 8 Searg. & Lowb. 413.

2 Barn. & Al. 301.