Trasher v. Everhart , 3 G. & J. 234 ( 1831 )

Aechee, J.,

delivered the opinion of the court.

This was an attachment issued at the suit of the plaintiff, to affect the goods of the defendant, for the purpose of satisfying a debt, alleged to be due from the defendant to the plaintiff. The short note, which accompanied the capias, stated the cause of action to be a joint promissory note cf the defendants, given to the testator of the plaintiff The substance of the short note is referred to, because, according to our practice, it is substituted in this kind of proceeding for the declaration, and because the questions in this cause, grow out of the form which the short note has assumed. The garnishee appeared, and pleaded non assumpsit, and property in himself to the goods attached, and issues having been joined, and the court having refused permission to the plaintiff to read in evidence the cause of action, upon the ground that the same was a specialty, and not a promissory note, he then offered in evidence to the jury, that the cause of action was executed in Virginia, for the purpose of showing, that by the laws of that State, it was a promissory note, and not a single bill. It is contended, that in the admission of this evidence to the jury, the court committed an error, and that it was evidence for the court, and not for the jury. It is, in general, true, that foreign laws are facts which are to he found by the jury; but this general rule is not applicable to a case, in which the foreign laws are introduced for the purpose of enabling the court to determine whether a written instrument is evidence. In such case, the evidence always goes in the first instance to the court, which, if the evidence be clear and uncontradicted, may, and ought to decide what the foreign law is, and according to its determination on that subject, admit or reject the instrument of writing as evidence to the jury. It is offered to the court to determine a question of law—the admissibility or inadmissibility of certain evidence to the jury. It is true, if what the foreign law is, be a matter of doubt, the court may decline deciding it, and may inform the jury, that if they believe the foreign law, attempted to be proved, exists, as alleged, then they ought to receive the instrument in evidence : on the contrary, if they should believe that such is not the foreign law, they should reject the instrument as evidence. We collect from the bill of exceptions, that the object of the plaintiff in introducing this evidence of the laws of Virginia, was to let the instrument of writing, which was the cause of action, in, as evidence to the jury. He could have had no other object. This being the case, it was evidence for the court, and not the jury, unless the court had thought proper, in case of doubt about the evidence, to have ultimately submitted it to the jury: and that is like a case of very common occurrence in trials at nisi prius, where a deed is produced, and evidence of its execution is adduced, in order to let it go to the jury; such evidence is always addressed to the court, and they determine its admissibility upon such evidence, unless in cases where the evidence of its execution is doubtful, in which ease the court will let the deed go to the jury with the evidence offered of its execution, informing them that they are to receive it in evidence, if they shall believe it to have been executed, but if they should believe it was not executed, they must reject it; or, in other words, not consider it as evidence in the cause. And in all cases of the like character, the evidence is for the court in the first instance; the object being to ascertain whether certain testimony offered is, in point of law, competent and proper for the consideration of the jury. But it may be asked upon another ground, whether the court were right in permitting the evidence of the law of Virginia upon this subject, to go to the jury, as the history of the cause shows it was offered to let in the instrument of Avriting as evidence. Was it material to the determination of that question ? This question must be answered by the decision of another; whether the foreign law, or the domestic law, should, in this proceeding, regulate and fix the character of the instrument. This subject will be revieAved and examined, in the consideration of the second bill of exceptions.

In the second bill of exceptions, the court permitted the plaintiff to read in evidence to the jury, the cause of action, having first proved its execution, it being admitted that it was, by the laws of Virginia, where it Avas executed, a promissory note. The plaintiff’s counsel in support of the opinion of the court, as expressed in this bill of exceptions, en- • deayors to sustain his case, by the maintenance of one or the other of the following propositions.

1st. That the evidence was admissible, because being executed in Virginia, it was a promissory note there; and that the law will so treat it here.

2d. That if wrong in this, it is by the laws of this State a promissory note, and ought to have been received to sustain the issue.

As to the first proposition, its truth depends on this; whether the lex loci contractus, or the lex fori, is to govern ? It is a universal principle, governing the judicial tribunals of all civilized nations, (for the truth of which no authority need be cited,) that the lex loci contractus controls the nature, construction, and validity of the contract: courts will .always look to the lex loci, to give construction to an instrument, and will impart to it validity, according to those laws, unless it would be dangerous, against public policy, or of immoral tendency to enforce it here. They will also look to those laws, to ascertain the nature and true character of the contract, that efficacy may be given to its obligations between the parties, but they never look to the lex loci to determine the remedy which should be used, and the process issued to enforce its obligations: these are always determined by the lex fori. The law demands that a discrimination should be made between the rights and the remedy. In the ascertainment of the former, the lex loci becomes the rule ; the latter is controlled by the lex fori. It must be always immaterial to the creditor, in what manner his claim is enforced, whether as a simple contract, or as a specialty, so that his essential rights are protected in the one form of action, as wfell as in the other. As in the present case, in what manner are the rights created, and obligations incurred, affected by treating the instrument as a single bill; although, according to the law of the place, it is a promissory note ? In an action of debt, its obligations are held equally sacred, and in the same manner enforced, as if the action had been assumpsit. If there were no other-reason for the rejection of the doctrine contended for, it might be sufficient to say, that it would be a great inconvenience to fashion the remedy according to the character of the contx-act impressed upon it, in the country where it is made, or to be pex-formed. Inquiries would, in all cases, have to be instituted, before a suit could be commenced, into foreign laws, to determine the nature of the remedy to be pursued, which, in many cases where evidence was not at hand, might be attended with great delay and difficulty, and consequent loss of the debt. These views are opposed by the case of Meredith vs. Hinsdale, 2 Caine, 362, in which the court adjudged, that an instrument being a specialty by the laws of Pennsylvania, although it was not such by the laws of New York, yet that it ought to be received as a sealed instrument, and that an action of debt would lie upon it. But this determination has been expressly overruled in Andrews and Jerome vs. Herriott, 4 Cowen, 508, in which the court say, that Meredith vs. Hinsdale, was decided without attention to the distinction, that the lex loci contractus governs only as to the construction of the contract, and has nothing to do with the remedy, which is controlled by the lex fori. The dispute is merely upon the remedy; that is to say, whether the action shall be covenant, or assumpsit, upon a given contract between two persons within the jurisdiction of the court. The substance and effect of the recovery, is the same in either form, and they say, they cannot sanction the case of Meredith vs. Hinsdale, without overturning the entire class of cases which distinguishes between the lex loci and lex fori. According to these views, the character of the instrument must be regulated by a reference to our domestic law. But conceding that the first proposition connot be sustained, it is contended that the instrument of writing is not a specialty, but a promissory note, by the laws of this State, and that the court therefore correctly permitted it to be given in evidence, under the issue of non assumpsit.

From the earliest period of our judicial history, a scrawl has been considered as a seal, and it would be too late at this day, and would be attended with consequences too serious, to permit it to be questioned. It is not necessary, as has been argued, that the scrawl must be adopted by the obligor, by a declaration in the body of the bond, or single bill, to make it his seal. It is sufficient if the scrawl be affixed to the bond, or bill, at the time of its execution and delivery. For, if he execute and deliver it with the scrawl attached, it being considered here as equivalent to the wax or wafer, it is as much his seal, as if he had declared it to be so in the body of the instrument. The fact of the clause of attestation not appearing in the usual form of “ signed, sealed and delivered,” can, in reason, make no difference: for the question always is, is this the seal of the obligor? and if he has delivered it, with the scrawl attached, it is his seal, and must be so considered : for whether an instrument be a specialty, must always be determined by the fact, whether the party affixed a seal; not upon the assertion of the obligor, in the body of the instrument, or by the form of the attestation. In this case, the execution of the bill is admitted, and the plaintiff has possession ■ of it, which is evidence of delivery ; and there is nothing to show that the scrawl was not attached, when it was executed and delivered, and the presumption always would be, that the seal was affixed to the instrument on its delivery, in the absence of evidence to the contrary.

JUDGMENT REVERSED.