Wilson v. Walker

3 Stew. 211

• Court: Supreme Court of Alabama
• Decided: July 15, 1830
• Status: Published

Opinions

By JUDGE SAFFOLD.

The act of Congress of 1790, provides “that the public acts of the legislatures of the several States shall be authenticated by having the seal of their respective States affixed thereto; that the records and judicial proceedings of the Courts of any State shall be.proved or admitted in' any other Court within the United States, by the attestation of the Clerk, and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding magistrate, as the case may be, that the said attestation is in due form.” This is the act which relates particularity to the authentication of statutes, and the records and proceedings of the Courts of justice. The act of 1804 has reference only to records and exemplifications of office books, not appertaining to a Court, but they also are required to be proved by the attestation of the keeper of said records or books, under the seal of his office, if any, together with a certificate of the presiding Justice of the Court of the county or district, or of the Governor,'Secretary of State, Chancellor, or keeper of the great seal of the State; that the attestation is in due form, and by the proper officer, &c. By both acts it is further directed, that the records, &c. authenticated as aforesaid, shall have such faith and credit given to them, in every Court within the United States, as they have by law or usage, in the Courts of the State from whence the said records are or shall be taken.

It is only required, in general terms, that the public acts of the legislature shall be authenticated by having the seal of the State affixed thereto. The form of the accompanying certificate, by what officer, or whether any, is undefined. By construction or reasonable intendment, however, the authentication, by affixing the great seal, should be confined to the person or officer to whom the custody or use of it has been legally confided; and it should accompany a certificate, expressive of the object for which it is used. In this case, the Clerk of the appellate Court certifies the law as having been correctly transcribed from the law records of his office. The object of all the succeeding certificates is fully expressed to have been, to establish the facts, that the person acting as Clerk was the officer he purported to be, and the proper person to exercise the official act of certifying the law. The last certificate, intended to give validity to the whole, appears to have been made by the Register of the Court of Chancery >of the State, and to .have the great seal affixed thereto as the act of the Register. It is objected that the Register was not the legal keeper of the seal; nor does he certify the law, but only that Culbreth was Clerk of the Executive Council. In support of this argument, reference has been made to a volume purporting to contain the constitutions of the several States, to shew that by the constitution of Maryland, the Chancellor is the keeper of the great seal.

If from the authority of this'volume, it not being contested, we can know that such is the constitution of that State, it is not conclusive that no other can use the seal, especially when opposed to the fact that it is officially used bj? a different officer, in the execution of the higher trust. Custom, usage, or a statute of that. State, may with consistency, have sanctioned the practice of having it affixed in 1he authentication of documents, by the Register of the Court of Chancery, notwithstanding the Chancellor may be the nominal keeper. Both being officers of the same Court, the inferior may be viewed ' only as the organ through which the other acts. In the present state of the evidence on this point, the usual presumption applies, that the officer who has used the great seal, is the proper person 1o whom the trust has been confided. As to the objection that the Register does not certify the law, it is sufficient to remark, that his certificate as well as all the preceding, look to the establishment of that fact, and tend alone to that object; so that the act of affixing the seal to the latter certificate, at least implies a sanction, not only to it, but to all that preceded, and is deemed sufficient. The manner of affixing the seals is a regulation very different in the different States.

a

The second assignment presents a novel question. It is whether under the statute of this State, a defendant is a competent witness to prove a contract usurious, made in a different State, and between residents of the same; and whether after the death of the creditor, this privilege, if otherwise existing, would not be barred in an. action: brought by his representatives? We decline a particular-examination of the latter branch of the question, as it is-unimportant to the decision, and there is some difficulty in-determining whether the-literal construction or more lib.-cx-al policy of the statute' should prevail.

With respect to the privileges of the defendant in relation to this contract made at Washington City, on- oné side it is contended the validity of the contract depend’» 011 the laws °f tbc State in which it Was made, and that it impaired by-the,unrestrained oath of the party charged. On the contrary it is insisted, that the remedy in all cases is according to the lex fori, and that each pally is entitled to the benefit thereof.

It is admitted as a general proposition, that the lex loci S0™"8 the interpretation °f contracts, and that the remedy must be prosecuted according to the law of the State where the action may be brought.a

This rule in relation to the lex fori applies to the form of the proceedings, the time during which the right maybe prosecuted, to tl^e extent of the common law doctrine, &nd also to the rules of evidence. But on the subject of usury, the statute of this Stale has created a peculiar protection against contracts, foi’ the security of our own citizens, or others contracting under our laws. It has made this great innovation on the rules of evidence, and extended this extraordinary privilege of the defendant to violations of our own law against usury; not to contracts made with reference to laws of other States, and persons without our jurisdiction. It is -true the statute docs not contain this express limitation to its operation, but it necessarily results from its true spirit and design. The fifth section declares, that the borrower, or party to such usurious bond, &c. from whom such higher rate of interest is or shall be taken, shall be a good and sufficient witness to give evidence of such offence. The contract to be thus impeached is denominated an offence, which evidently consists in taking the higher rate of interest than is allowed by an act itself. The defence of usury seeks to subject 'the lender to a forfeiture, not only of the premium contracted) but also the true debt. These consequences demand a strictness of construction in relation to the remedy, which would be inapplicable to ordinary transactions.

Contracts made in contemplation of our statute, and subject to its jurisdiction, imply the condition that they shall be void,if the borrower will give evidence on the trial that a higher rate of interest than eight per cent has been reserved by the contract; provided the person against whom such evidence is offered to be given, will not deny on oath the truth of what such witness offers to swear against him; if he will, such evidence shall riot be admitted. Hence, in contracts executed in this State, or with reference to its laws, a peculiar confidence is reposed in the debtor, or other security in the way of proof provided; and this ex-Ihwdinaíy defence could only have been intended against claims contracted and prosecuted in violation of the authorising it, not the statute of Maryland. There the legal rate of interest is six percent-. Further to test the principle, suppose the rate contracted had been seven cent, it would have violated the statute of that Slate, while it was below the legal rate here, and consequently not within the mischief intended to be suppressed.

The Court are unanimous in reversing the judgment and remanding the cause.

Reversed and remanded.

4 Dallas 412.

2 John, 200. 1 JOhn. R. 215. 4 Cowen R. 508.