Huff v. Campbell , 1 Stew. 543 ( 1828 )

By JUDGE WHITE.

The first assignment of error is, that the declaration' is defective in not containing the averment of notice. It is admitted, that had the suit been against Philip, that as he must have known when he himself was acquitted, no such, averment would have been necessary; but that with respect to Samuel Huff, the security, it is otherwise. I cannot well perceive, how these two men, bound in the same manner, in the same instrument, to pay a sum of money on the same contingency, should be subjected to different liabilities. The true rule seems to be this, that when an action accrues upon an event, resting exclusively or mainly ■within the knowledge of the plaintiff, he is required to aver and prove notice; but when the defendant may know, or has an opportunity of knowing^ that the contingency has taken place upon which he is made liable, he is bound to notice it, and the right of action exists immediately without notice given by the plaintiff. In this case, the performance of the condition on the part of Campbell, was in its nature public, a matter of record, and accessible to both the covenantors ; they therefore could, and should have noticed it. The first assignment of error cannot, therefore, be sustained.

The reading of the transcript from Tennessee was objected to, on the ground that the Judge certifying stated that he was one of the Judges of said Court, instead of stating that he was the presiding Judge or Chief Justice. The words of the act of Congress of May 26th, 1790, directing the mode of making such certificates, are these: that they shall be made by the Judge, Chief Justice or presiding magistrate, as the case may be. Here it is manifest that the certificate before us does not come strictly within the letter of the statute, but it is also clear, that the act in its phraseology, had an eye to the different organization of the different Courts referred to; it would however be unreasonable to suppose that its letter should be broad enough to embrace them all Unless then, we look at its intention, and construe it by its spirit, it might often happen, (as indeed it would in this very case,) that the beneficial provisions of this statute would be inoperative. Here we ascertain from the statutes of Tennessee, that there is no Chief Justice or presiding Judge of the Court of Appeals there. In such a case, if all the Judges were to certify, the Chief Justice or presiding Judge would not be included, because there is no such officer. The letter of the act would not then be complied with, and consequently, no transcript of a record from that Court would be recognized as evidence in this or any other State, if this strict construction prevails. As to the mere fact of shewing that the certificate of the clerk is in form, &e. that must be known, and therefore could be certified as well by one member of a Court as another; and no reason can he assigned why it should not be so, but that the statute does not permit it in so many words. It has been held, that where a justice of the peace holds a court of record without a clerk, his certificate of the fact, that he himself is clerk, presiding magistrate, &c. will be sufficient. This case, though not strictly analogous, shews that the letter of this statute, should yield to its spirit, so far as to accommodate its provisions to the modification of the different courts of the States; and indeed, that this is its true intention. Again, the act of Congress is remedial in its character, and should be extended by construction, to the full limits of its own beneficial purposes.

The only question that can exist, is not so much whether a Court organized as the Supreme Court of Tennessee seems to be, should be permitted to certify its records efficiently under the act of Congress, as how that peculiarity of organization should appear ; whether by the certificate itself, or by a recourse to the statute of the State. I think the former the better method; but that it does not necessarily exclude the latter.

It has been said in argument, that a presiding officer is almost indispensable to every Court, and therefore, that though the statute may not authorize it, yet that the course of business requires it. This, if admitted, would apply only to the sessions of the Court; for that which is created by necessity will cease with the necessity which created it; and hence, in vacation, there would be no officer empowered by the letter of the statute to certify, and the inconvenience before mentioned would result. We are then of opinion, that this assignment of error is badly taken, and as no others than those noticed were relied on, the judgement must be affiimed.

Judge Saeeold not sitting.