Spaulding, Foster & Co. v. Vincent

| Vt. | Apr 15, 1852

The opinion of the court was delivered by

Redfield, J.

The defense, in this case, rests upon a discharge in bankruptcy, obtained in the Province of Canada, where the contract for the sale of the goods sued for, was made. Numerous questions are raised in regard to the proof.

The proof of the discharge, and of the proceedings in the court of bankruptcy, seem to us to be sufficient. The best proof of the proceedings of a foreign court, are the original records. But that cannot ordinarily be produced. The testimony usually produced, is either a sworn copy, by one who has compared it with the original proceedings, or an exemplified copy, certified by the clerk and the presiding judge, and the seal of the court, with the broad seal of the province or kingdom, to the appointment of the judge, with the proper certificate from the office of appointment. The more usual mode, is, a sworn copy. In the present case, we have the original, and the finding of the auditor, that the copies are true copies of the original, and this finding must be presumed to be upon sufficient proof, or upon actual inspection, either of which will be sufficient.

The proof of the existence and of the provisions, of the bankrupt law of the Province, at the time the discharge was obtained, seems to have been without the production of any copy whatever of the statute. This, we think, was irregular. Some copy of the law, which the witness could swear was recognized in the Province, as authoritative, should have been produced. Something, which was in force at the time, which was, at least, equal to the copy of the subsequent law, which was put in the case. This is the general rule, as to the written laws of a foreign country, and is specially important in a case like the present, when the particular provisions of the law are important to be known, in order to determine the effect of the discharge.

We think, too, the residence of the plaintiffs, at the time of obtaining the discharge, should be shown, and the place of business of the firm, if any.

If we were at liberty'to look into the writ upon this subject, it would only show the residence of the plaintiffs, at the time of bringing the suit.

We think it is not competent for the plaintiffs to prove a new promise by their own oath, upon general principles, and the subsequent law required the promise to be in writing, as does the English bankrupt law.

But the state of the credits would seem to show, that defendant had paid more since the certificate, than the new account. If so, a portion of the payment must, of course, have been intended by him to go upon the old account. And if so, and the payment was general, leaving it to the law to make the application, it will deserve consideration, unless new facts arise, whether it is not fair to conclude the defendant might have intended all his payments, to go towards the old account, and whether, under the circumstances, the plaintiffs were not fairly justified in so applying them. But this question is to be submitted to the auditor, to find new facts, if any exist.' Judgment reversed, and case committed to the same auditor, for a new trial.

Note. We are not aware, that any different proof of the appointment of an officer in a foreign country, is required, from that at home. Proof of one-exercising the office defacto, is usually sufficient in either case;