COLLIER, C. J.
— Three questions are presented by the record in this case—
1. Does the third plea disclose matter of legal de-fence?
2. Was it error to submit an issue upon the plea of nul tiel record to the jury, under the circumstances shewn by the bill of exceptions, and is the record well authenticated ?
3. Is there error, either in the refusal of the Circuit judge to charge as requested, or in the charge as given?
First — The third plea is doubtless intended as a plea of set-off. It sets forth, that both the plaintiff in error and the defendant’s testator, were co-sureties of a third person for the payment of money; that the principal having made default, the plaintiff made his own note payable to the creditor in discharge of their liability; in consideration of which, the defendant’s testator made his writing under seal, by which he agreed to pay either to the plaintiff or the original creditor his proportion, being one-third of the sum for which they had been sureties. It is not alleged that the plaintiff in error has ever paid his substituted note, either in whole or in part. There is no time prescribed in the writing executed by the testator, for the payment of his proportion. He had the option to pay it either to the plaintiff himself, or to the holder of the plaintiff’s note, and if paid to the latter before the discharge of the note, the payment would be good.
The plea should disclose such a state of facts, as would entitle the party pleading it to his action, if he were the plaintiff in the prosecution of a suit. Tested by [127] this rule, the plea is clearly insufficient. ' Such a declaration would discover no cause of action; the defendants might say, that “our testator had his election to pay either you or your creditor, and that election you must take from us by paying him yourself, before we are liable to your action.”
But there is another objection to the plea equally available. The set-off relied on, existed more than four years previous to the cause of action sued on in North Carolina, and nearly nine previous to the rendition of the judgment there. The judgment is conclusive upon all preexisting matters of defence, and when made the foundation of a new action, it is not allowable to interpose any plea that might have been pleaded to the first action—Moore vs Bowmaker, (4 Taunt. R. 379.) A judgment rendered in a'sister State, when made the subject of a suit here, is entitled to the same credit as a judgment of the courts of Alabama; and if a judgment of the latter could be successfully defended against either at law or in equity, the same grounds might be urged against a judgment of another State—Winchester vs Jackson, (3 Hayw. Rep. 316.) The matters determined by the record, cannot be controverted by plea, nor is the judgment liable to be attacked from within yet it is competent to shew matters extrinsic, which could not have been presented earlier for adjudication — as by pleading per fraudem, satisfaction, &c. So, it has been repeatedly adjudged in this court, that a defendant might insist upon a want of jurisdiction in the court rendering the judgment—Mills vs Duryee, (7 Cranch R. 481;) Armstrong vs Carson, (2 Dall. 302;) Hunt & Condry vs May[128] field, (2 Stew. R. 124;) Lucas vs Darien Bank, (2 Stew. R. 280.) In either view in which we have considered the plea, it is defective, and the demurrer to it well sustained.
Second — -Where a plaintiff declares on ' a judgment, and the defendant intends insisting upon its non-existence, or a variance in its statement in the declaration, he must plead nul tiel record, and the issue on that plea is tried by producing the record itself—2 Saund. Pl. & Ev. 608. This plea concludes with a verification, and a replication to it, should aver that there is such a record, and conclude, proui patet per recordum, with a prayer that it may be inspected—2 Saund. Pl. & Ev. 754-5. No formal replication is shewn by the record in the case before us, but it is merely stated, that the attorney for the defendants in error took issue on the plea of nul tiel record, and other pleas, in short, by consent. As the form of this issue is not set out, we will intend it to be such as referred its trial to the court, rather than the jury.
The question then recurs, is the submission of the issue upon nul tiel record to the jury, an error in law ? It is competent for parties to dispense with the appropriate modes of trial, or to substitute for the legally appointed tribunals, some one of their choice, for the adjustment of' questions which concern themselves alone. From the bill of exceptions in the present case, it appears that the parties went to trial, — that the defendants in error, offered in evidence, a transcript with the certificates of authentication; which was objected to, &c. Now, although it is not expressly stated that the jury was chosen for the trial of the issue with the assent of the plaintiff, [129] yet we think it may be fairly inferred, that he made no objection. And having voluntarily allowed the case to be submitted to the jury, and having, in effect, had a trial by the judge, as appears by the motion to reject the record, the plaintiff cannot now be heard to object, that he has been deprived of a trial according to the forms of law. ' .
We consider the exemplification sufficiently authenticated to have authorised its admission in evidence. It is immaterial as to the form of the attestation of the clerk. The presiding magistrate of his court .has certified that t!,it is in due form of law”—Brown vs Adair, (1 Stewart & Porter’s R. 49.)
Free access — add to your briefcase to read the full text and ask questions with AI
COLLIER, C. J.
— Three questions are presented by the record in this case—
1. Does the third plea disclose matter of legal de-fence?
2. Was it error to submit an issue upon the plea of nul tiel record to the jury, under the circumstances shewn by the bill of exceptions, and is the record well authenticated ?
3. Is there error, either in the refusal of the Circuit judge to charge as requested, or in the charge as given?
First — The third plea is doubtless intended as a plea of set-off. It sets forth, that both the plaintiff in error and the defendant’s testator, were co-sureties of a third person for the payment of money; that the principal having made default, the plaintiff made his own note payable to the creditor in discharge of their liability; in consideration of which, the defendant’s testator made his writing under seal, by which he agreed to pay either to the plaintiff or the original creditor his proportion, being one-third of the sum for which they had been sureties. It is not alleged that the plaintiff in error has ever paid his substituted note, either in whole or in part. There is no time prescribed in the writing executed by the testator, for the payment of his proportion. He had the option to pay it either to the plaintiff himself, or to the holder of the plaintiff’s note, and if paid to the latter before the discharge of the note, the payment would be good.
The plea should disclose such a state of facts, as would entitle the party pleading it to his action, if he were the plaintiff in the prosecution of a suit. Tested by [127] this rule, the plea is clearly insufficient. ' Such a declaration would discover no cause of action; the defendants might say, that “our testator had his election to pay either you or your creditor, and that election you must take from us by paying him yourself, before we are liable to your action.”
But there is another objection to the plea equally available. The set-off relied on, existed more than four years previous to the cause of action sued on in North Carolina, and nearly nine previous to the rendition of the judgment there. The judgment is conclusive upon all preexisting matters of defence, and when made the foundation of a new action, it is not allowable to interpose any plea that might have been pleaded to the first action—Moore vs Bowmaker, (4 Taunt. R. 379.) A judgment rendered in a'sister State, when made the subject of a suit here, is entitled to the same credit as a judgment of the courts of Alabama; and if a judgment of the latter could be successfully defended against either at law or in equity, the same grounds might be urged against a judgment of another State—Winchester vs Jackson, (3 Hayw. Rep. 316.) The matters determined by the record, cannot be controverted by plea, nor is the judgment liable to be attacked from within yet it is competent to shew matters extrinsic, which could not have been presented earlier for adjudication — as by pleading per fraudem, satisfaction, &c. So, it has been repeatedly adjudged in this court, that a defendant might insist upon a want of jurisdiction in the court rendering the judgment—Mills vs Duryee, (7 Cranch R. 481;) Armstrong vs Carson, (2 Dall. 302;) Hunt & Condry vs May[128] field, (2 Stew. R. 124;) Lucas vs Darien Bank, (2 Stew. R. 280.) In either view in which we have considered the plea, it is defective, and the demurrer to it well sustained.
Second — -Where a plaintiff declares on ' a judgment, and the defendant intends insisting upon its non-existence, or a variance in its statement in the declaration, he must plead nul tiel record, and the issue on that plea is tried by producing the record itself—2 Saund. Pl. & Ev. 608. This plea concludes with a verification, and a replication to it, should aver that there is such a record, and conclude, proui patet per recordum, with a prayer that it may be inspected—2 Saund. Pl. & Ev. 754-5. No formal replication is shewn by the record in the case before us, but it is merely stated, that the attorney for the defendants in error took issue on the plea of nul tiel record, and other pleas, in short, by consent. As the form of this issue is not set out, we will intend it to be such as referred its trial to the court, rather than the jury.
The question then recurs, is the submission of the issue upon nul tiel record to the jury, an error in law ? It is competent for parties to dispense with the appropriate modes of trial, or to substitute for the legally appointed tribunals, some one of their choice, for the adjustment of' questions which concern themselves alone. From the bill of exceptions in the present case, it appears that the parties went to trial, — that the defendants in error, offered in evidence, a transcript with the certificates of authentication; which was objected to, &c. Now, although it is not expressly stated that the jury was chosen for the trial of the issue with the assent of the plaintiff, [129] yet we think it may be fairly inferred, that he made no objection. And having voluntarily allowed the case to be submitted to the jury, and having, in effect, had a trial by the judge, as appears by the motion to reject the record, the plaintiff cannot now be heard to object, that he has been deprived of a trial according to the forms of law. ' .
We consider the exemplification sufficiently authenticated to have authorised its admission in evidence. It is immaterial as to the form of the attestation of the clerk. The presiding magistrate of his court .has certified that t!,it is in due form of law”—Brown vs Adair, (1 Stewart & Porter’s R. 49.)
Third — The charge asked in the Circuit court, supposes, that interest can only be recovered upon those liabilities on which it is expressly given by statute. Such a notion is not well founded in law. Damages, in lieu of interest, are allowed at common law, for a default to pay money or deliver property, upon the principle, that the creditor should be compensated for the want of punctuality in his debtor in keeping him out of the use of ‘money or property—McWhorter vs Standifer, (2 Porter’s R. 519.) Accordingly, it has been held that interest is allowed on judgments, by common law, to the time of affirmance, or of a new judgment rendered—Sink vs Langton, (Doug. R. 748;) 2 Dane’s Ab. 212. By the rules of the common law, Lord Ellenborough considered it to be within the general province of a jury, to give damages for the detention of a debt, .and he therefore sustained a verdict, which allowed interest upon a statu-table ascertainment of damages,'for an injury to indi[130] vidual property, occasioned by a public improvement made by a corporation—1 Maule & Selwyn’s R. 171, 3, 4, 5, 6; and in Givin and wife vs Whitaker, adm’r, (1 Har. & Johns. R. 755,) it is said that both by the decisions of the courts of Maryland and the English courts, every judgment for money, carries interest, unless otherwise agreed by the parties, or its terms forbid it. So, in North Carolina, it has been holden, that a plaintiff is entitled to interest on his judgment, if a new action is brought, up to the time of the rendition of the second judgment—2 Hayw. R. 26, 378. To the same effect, are Thomas vs Edwards, (3 Aus. 804;) Butler vs Stoneld, (8 Moore, 412;) and Prescott vs Parker, (4 Mass. R. 170.) In Atkinson vs Braybrook, (4 Camp. R. 380,) Lord Ellen-borough considered, that interest was not in general recoverable on a foreign judgment; because it was a simple contract—S. P. 3 Price, 350. But, in McClure vs Dunkin, (1 East R. 436,) the Court of King’s Bench determined, that in assumpsit, on a judgment, rendered in Ireland, it was competent to the jury to allow interest to the plaintiff, and that, in that respect, there was no difference between a foreign judgment and a judgment in a Court of record in England — To S. P. vide C. &. P. 376. The only adjudication we have been able to find, which opposes the position, that interest is recoverable on a judgment at common law, is a case to be found in 4 McCord’s R. 212, which, in our opinion, is outweighed not only by principle, but by the authorities we have ci-. ted.
In Moore vs Patton, Donegan & Co. (2 Porter’s R. 451,) it was determined that a jury might, in their discretion, [131] allow interest upon unsettled accounts, for goods, wares, &c. from the time t-hey became due. And in Tate vs Innerarity, (1 Stewart & Porter’s R. 33,) it was adjudged competent, upon common law principles, for parties to stipulate for the payment of a reasonable rate of interest ; and where it was not ascertained by contract, the rate might be fixed by the custum of the place where the contract was made.
From the decisions we have noticed, we educe as applicable to the case at bar, the rule — -That the allowance of interest, except upon the particular liabilities embraced by statute, must depend upon the circumstances of the case. To avoid its payment, it is competent for a defendant to shew that he is not in fault for the nonpayment of the principal sum; as, that the plaintiff had been absent from the country, without having left a known agent, &e. But if the defendant offers no excuse for his delay, the plaintiff is entitled to recover interest, as damages. Where the Legislature have declared the value of money by law, that value must be the measure of damages, allowed in all cases for its, detention, though the plaintiff may have been injured to a much greater extent.
And interest will be allowed by our courts, not only upon debts contracted within the State, but upon those contracted abroad, if the lea; loci contractus, authorises it. Though the right to recover damages for the detention of a debt, exists at common law, yet, as that law does not prescribe what they shall be, — if the demand arises out of this State, it is necessary to shew the value of money where the contract was made, or to be perform[132] ed. If this has been done by an act of legislation, the statute would be the best evidence; if the value depends upon usage, it is competent to prove it. In the case before us, the cause of action originated in a sister State, the common law of which, (because derived from the same original source,) we must suppose to be the same system of jurisprudence, as prevails with us; and, as we have shewn, entitles the defendants in error to damages. The statute of North Carolina was evidence to shew the legal rate of interest in that State, if not to prove that as a lav), it entitled the defendants in error to damages. The common law had determined the latter question in their favor, and it was only necessary to show to what extent damages should be admeasured. This was sufficiently proved by the statute, and without pretending to enquire whether the act embraces judgments in the designation of contracts or liabilities, we are satisfied that the court did not err either in refusing the charge asked for, or in that given.
The judgment is affirmed.