Clarke v. Pratt , 20 Ala. 470 ( 1852 )

CHILTON, J.

This was an action of debt upon a judgment rendered in tbe State of Mississippi. Tbe Circuit Court proceeded to render judgment final by nil dicit, without tbe intervention of a jury, for tbe debt and eight per cent, interest as damages.

This was clearly erroneous. Tbe interest depended upon tbe law of Mississippi as to tbe rate to be allowed, and proof of what that law was should have been made, before any amount by way of interest could, be recovered. Tbe act of 1848 (see pam. acts, p. 80,)makes tbe table to be prepared and appended by tbe Secretary of State to tbe acts, prima facie evidence of what tbe foreign interest was; but that evidence was not conclusive, and could have been controverted. Besides, it was evidence for tbe consideration of tbe jury, before whom tbe facts must be controverted, if disputed, and not for tbe court. In the case of Mobile and Cedar Point Railroad Company v. Taiman & Ralstons, 15 Ala. Rep. 472-493, we bad occasion to construe this act of 1848, and we there held that tbe court could not judicially know tbe rate of interest, from tbe table prepared by tbe Secretary; that it was only prima fade evidence, and liable to be rebutted or disproved, and as a corollary from that proposition, tbe defendant should have an opportunity of contesting it before the appropriate triers of tbe facts, tbe jury. That tbe Orphans’ or Probate Court Judge may receive such evidence and decide upon it, does not aid tbe defendant in error as an argument, since tbe law applicable to tbe organization and proceeding of that court makes tbe judge, unless a jury is called, tbe trier of tbe facts.

Tbe cases cited by tbe counsel for tbe plaintiff in error clearly show, that the rate of interest must be found by a jury, who, upon inquiry as to tbe damages, must assess tbe amount. 2 Stew. Rep. 124.

And as this defect is not cured by tbe act of 1848, tbe judgment must be reversed and tbe cause remanded.