CLARKE vs. PRATT

CLARKE vs. PRATT. 1. In an action of debt upon a judgment rendered in Mississippi, it is error to render judgment final by nil dicit, -without the intervention of a jury, for the amount of the debt and eight per cent, interest thereon as damages. 2. The court cannot take judicial notice of the rate of interest in a sister State, from the table of interest prepared by the Secretary of State and appended to the acts of the Legislature, as required by the act of 1848. The rate of interest must be ascertained by a jury, and the table appended to the acts is only prima facie evidence, -which may be rebutted by other proof. ERROR to tbe Circuit Court of Mobile. Tried before tbe Hon. Jobn Bragg. Douglass Smith, for plaintiff in error. 1. It was error to take judgment by default, and compute tbe damages (in suit upon note made in Mississippi) without proof of tbe rate of interest of tbe State of Mississippi. Dunn y. Clement, 2 Ala. Rep. 392; Evans v. Clarke, 1 ■ Port. 388 ; Evans v. Erwin et al. 1 Port. 390. Tbe judgment in sucb case must be reversed. It is not sucb a clerical error as can be corrected by reducing tbe judgment to tbe amount of principal due on tbe note. Evans v. Erwin & Dunlap, 1 Port. 390. In debt upon a foreign judgment, in tbe absence of a plea, tbe case ought to be submitted to a jury, upon an inquiry of damages. Murray v. Cone, 8 Port. 250. Under tbe issue of nul tiel record, tbe court will not give tbe interest of tbe sister State upon sucb judgment. Tbe rate and tbe amount of interest must be found by a jury. Hunt & Condry v. Mayfield, 2 Stew. 124. Tbe act of 1848,-p. 80, only makes tbe table prepared by tbe Secretary of State prima facie evidence to prove tbe rate of interest. See this statute construed in tbe case of tbe Mobile and Cedar Point Railroad Company v. Taiman & Ralstons, 15 Ala. Rep. 493. Where a debt is ascertained by a writing, tbe judgment by default, whatever may be tbe sum, is final; but where it is not, tbe damages must be ascertained by a jury. Ken-non y. Henderson, 6 Ala. Rep. 132 ; Witherington y. Brantly, 18 Ala. 200. Judgment in last case is by nil elicit. Tbe necessity of proof of interest is shown by tbe fact, that tbe clerk calculated tbe interest at eight per cent., when tbe real rate of interest is six per cent. See How. & Hutch. Dig. 643. See for decisions in tbe State of Mississippi, to same effect as ours, Fretwell v. Dinsmore, Walk. Rep. 484; Henry v. Halsey, 5 S. & M. 573. ¥l. G\ JONES, contra. 1. It is conceded that, by tbe decisions of this court, made prior to tbe passage of tbe act of 18th February, 1848, (sess. acts of 1848, p. 80,) our courts would not judicially kuow tbe rate of interest in our several sister States. This legal presumption of judicial ignorance, was one of those legal fictions which was, in nine cases out of ten, untrue in itself, and in practice, productive of unnecessary inconvenience and expense. It is submitted that it was to remedy this inconvenience that tbe statute above referred to was passed. Tbe effect of that statute, with the table of tbe rates of interest published at tbe end of tbe session’s acts, is, to give to tbe courts, and their ministerial officers, authentic information as to tbe rates of interest in other States. They now can know and notice this judicially. This being so, it was proper, under tbe provisions of tbe statute, Clay’s Dig. 325 § 70, for tbe court, by its clerk, to compute tbe interest in this case. Tbe interest was properly computed at eight per cent., that being tbe Mississippi rate of interest at tbe time tbe judgment was rendered in Mississippi. Sess. acts 1848, p. 460. 2. It is insisted that tbe statute of 1848 only makes tbe table -prima facie evidence of tbe rates of interest. But it is not evidence to juries only. It is equally evidence to tbe courts and their officers. Would it not be evidence to one of our Probate Judges, in ascertaining tbe amount to be allowed on a note made payable in another State, and filed here as a claim against an insolvent estate ? Certainly it would. And so too in a chancery court. And no sufficient reason is assigned why tbe Circuit Court should not also judicially act on it. It is tbe act of tbe court; tbe clerk merely acts ministerially in making tbe computation. If be adopts a wrong rate, or makes an error in bis calculation, tbe court should and would correct it. , [MAJORITY — CHILTON, J.] 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.