Foster v. Taylor , 2 Tenn. 191 ( 1812 )

Overton, J.

delivered the following opinion of the court.

This was an action of debt, brought upon the transcript of a judgment rendered in South Carolina. The declaration is in the usual form ; nul tiel record. The circuit court determined, that there was no such record ; from which the plaintiff removed the cause to this court.

For the defendant it has been insisted, that the transcript here produced is not authenticated in the manner prescribed by the act of Congress. 1st. Because, the seal of the court is not to the certificate of the clerk, but to that of the judge. 2nd. The certificate of the judge does not show, that he was chief justice, presiding judge or magistrate ; and this court cannot even look to the acts of South Carolina, to see whether the certificate is made by the proper character, as those laws were not produced in the circuit court.

As to the first point, it seems to us, upon inspecting the certificates, that the seal of the court is upon the record ; and although there is some defect in form, yet the substance, contemplated by the act at Congress, is attained.

As to the second, the certificate of the Judge neither states that he is chief justice, nor presiding judge, &c. but simply calls him one of the associate judges, &c.

To ascertain whether the character, making this certificate, was one of those intended by the act of Congress, we believe we can either recur to our own knowledge of the judiciary system in a sister state, or look into their printed statutes; and upon recurring to the printed laws of South Carolina, it appeals that in the court where this judgment was rendered there is no chief justice, or presiding judge, &c. ; that the court was either held by an associate judge, or by more than one, there is no precedence amongst them; and of course, in either event the certificate is made by the proper character.

The judgment must be reversed.