Torbert v. Wilson

¶1This is an action of assumpsit upon a'bill of exohange, commenced on the 22d January, 1828, in the Circuit Court of Mobile county. The plaintiff in error was defendant below. ' Among other pleas; the plaintiff pleaded the statute of limitations in two forms — first, that he did not within six years next before the commencement of this action undertake, &c, — second, that the supposed cause of action did not accrue, &c. To the first plea, the defendant replied that the plaintiff did promise in manner and form, as he had declared against him. To the second plea it was replied, that after the cause of action accrued, and within six years next thereafter, and before the commencement of this action, the said James was absent from and beyond the limits of this State, to wit, from the first day of January in the year 1821, until &c.

¶2To support the replication to the first plea of the statute, the defendant offered a paper purporting to bé the transcript of a record of the Circuit Court of Marengo county, authenticated by the clerk of that Court under his private seal, he certifying he had no official seal, from which transcript it appears that on *203the 14th of August 1827, the defendant caused to be issued from said Court a Capias ad resp. for the same cause of action as that for which the present is brought, which was returned non e$t. On the 14th of November 1827 án alias capias issued and returned non est, and on the 28 th of August 1828, a pluries capias was issued and returned executed-on the 14-th of October 1828. It appears from the certificate of the clerk that, that suit was ponding on the 26th January 1899, when the transcript was made out. To the admission of this transcript the plaintiff objected, but his objection was. overruled and the transcript yead to the jury.

¶3The plaintiff also proved that he had been a "resident and freeholder of the county of Mobile from the early part of 1824, down to the presen! time.

¶4The counsel for the plaintiff moved the Court to instruct the jury, if they believed the defendant was a resident and freeholder of the county of Mobile, at the time of issuing the several writs mentioned in the transcript, that then he was not liable to be sued in Marengo, and that the issuing the writ, did not take the case cut the’ statute, which i nstructions the Court refused to give. This much of the bill of exceptions may serve to make intelligible the view we take of the case.

¶5Two questions are presented for our examination.

¶61st. Was the transcript from Marengo admissible evidence l This must depend, first, upon the sufficiency of its authentication without an official seal. ’

¶72d. Upon the issue under which it was offered, and

¶88d. Upon its legal effect.

¶9*2041st In the investigation of this point, we derive no aid from 'English authority. Their public Courts of record are all provided with seals, so that their decisions furnish no case where an exemplification .has been offered in evidence, the verity of which was not attested by an official seal. In this country the state of facts is different, a large number of our Courts have no seals, owing to the neglect of the •clerks to procure them or other causes. There is no . law, in truth, which makes it obligatory upon them to obtain seals: now, if we were to refuse to receive,, as evidence, records certified by the elerks of our Courts, because their authenticity did not appear by an official seal, the burden of proving the subscription' of the clerk or the correctness of the copy would be thrown upon the party offering it. This would increase the expense and trouble of litigation, which should certainly not be added to, further than the administration of justice requires. Injury can rarely result from the admissibility of a record, without this additional proof.

¶10The terrors of a criminal prosecution will deter from the introduction of a spurious transcript, and besides, the corrective possessed by the Courts, of .awarding new trials, will in general, prevent injury.

¶11But we need not discuss this question as if it was res integra. It has been the practice of our Courts sincé their organization, to receive in evidence transcripts certified as the one before us, and the reasons which would induce a departure must be stronger than any we have been able to discover.

¶122d. The adaptation of the issue to the proof, is a requisition in pleading of immemorial practice. The chief object to be obtained by pleading, is to advise *205the pleader’s adversary of the evidence intended to be offered against him. Now, no intimation is given in the replications to either of the pleas, that the writs, issued in Marengo, will be produced on the trial.

¶13In Coleson vs. Blanton,ait was ruled that the plaintiff must reply special matter, which he insists on in avoidance of the statute. This case is an authority to prove, that under a general replication, the plaintiff cannot give in evidence a subsequent promise, &c. It will not be necessary, however, for us to express an opinion upon the correctness of that decision as prescribing a rule of universal application. It perhaps has its exceptions — but the case before us, we apprehend, does not form one. Whenever the plaintiff proposes to oppose the plea of the statute by proof of a former suit for the same cause, he must give notice by his replication that such proof will be adduced; upon principle, this is clear, and we have been able to find no authority to the contrary.

¶143d. The solution, of the quesion embraced by this point must depend materially upon the construction of the 10th section of the act “for the limitation of actions and avoiding vexatious law-suits,"a passed 1802, which is as follows: “ If in any of the said actions, specified in any of the preceding sections of this act, judgment be given for the plaintiff, and the same be reversed by writ of error; or if a verdict pass for the plaintiff, and upon matte5 alleged’in arrest of judgment, the judgment be given against the plaintiff, then the said plaintiff, his or her heirs, executors, or-ad mini strators, as the case shall require,' may commence anew action within one year after such judgment reversed or given against the plaintiff and not *206after.” In order to countervail the plea of the statute by the issuance of the writ in Marengo, it would seem that, that suit should have been disposed of before t.lio institution of this. This provision of the statute proposes a benefit to plaintiffs who have been unsuccessful in the prosecution of one action, and cannot, therefore, by any rule of construction be extended to him, who has brought a second action, without awaiting the issue of the first. I have looked industriously, but to no purpose, for adjudications upon analogous statutes, to authorise its extension thus far.

¶15The cases cited by the defendant’s counsel, are cases'in which the first suit was disposed of, or in which the writ relied on to avoid the statute, was issued in the same suit in which the-plea was pleaded; and, therefore, afford no aid in the decision of the present question. The principle upon which it is insisted, that the suit in Marengo prevents the operation of the statute is, that it serves to shew that the defendants have not slumbered upon their rights. This principle supposes that the bar created by the statute, is founded upon the presumption of payment —but the most recent adjudications shew, that this ideáis not well founded, else why require an express promise, or an acknowledgment of a subsisting duty, in order to revive a demand already barred ? It supposes further that a party by his own act can furnish proof to countervail the presumption of payment — • such a principle is opposed to other rules, and is incompatible with the analogies of the law and cannot be well founded.

¶16In Hopkins vs. McPherson, ad'rait was, that a writ taken out. against one ofstu era] dolermineil administra*207tors, will not prevent the statute from running-. This is a case directly. in point-though the writ was misconceived, and consequently bad, it shews that the plaintiff was not inattentive to his rights.

¶17In McDowel vs. Goodwyn,a it was held that to sustain a replication of an original sued out, the- plaintiff must shew it to have been continued up to the time of the trial. In other words, if the process on which the defendant was brought into Court, did not succeed the writ issued, as an alias, &c. it was no answer to a plea of the statute.

¶18The case of Delaplaine vs. Crowninshield,b also maintains the doctrine, that it is no answer to a plea of the statute, that a writ was sued out before the bar became complete; unless it was regularly continued by alias, &c.

¶19To same point, see Harris vs. Dennis,c Montgomery vs. Caldwell,d Cawood vs. Whetcroft,e Callis vs. Waddy,f Hume vs. Dickinson,g Jackson vs. Horton.h

¶20Both upon reason and ai~thority, then, it would seem that the defendant can draw no aid from his suit in Marengo: and because it was unavailing in proof of any fact in issue, the transcript should have been rejected.

¶21Secondly. Was the suit in Marengo a nullity, because the plaintiff was, at the time of its commencement, a resident and freeholder in Mobile county ? The determination of the first question being decisive of the case, we might decline its further examination, but as the second is brought up by the bill of exceptions, and an opinion upon it may influence ulterior proceedings between the parties, we will briefly consider it. By our statute, an action instituted in one county, against a resident and freeholder *208of another, is abateable upon the- plea of the defendant; yet it will not of necessity follow, that the suit-is a nullity. It may be avoided at the election of the defendant; but if he fails so to elect, and the cause is prosecuted to judgment, the defendant is foreclosed as to his defence, and all proceedings under the judgment are regular. . W ere it otherwise, the purchase- of property, under an execution issued upon, it, would not be-safe. Hence- it will follow, that the suit in Marengo-was not a nullity; and it would be competent for the defendant to prosecute a new action within twelve months after the arrest or reversal of a judgment rendered in that suit.

¶22Let the judgment be reversed, and the cause be remanded.