Peacock v. Banks

Judge Minor

delivered the opinion of the Court.

Record shews that “ the defendant having withdrawn- his pleas, whereby,” &c. the Court proceeded to render judgment against him.

\ Pleadings are the mutual altercations of the parties, plaintiff or defendant, setting forth the matters- in the cause to be submitted to the determination of the Court or the Jury. It has not been, and I presume could not with plausibility, be contended, that the demurrer here was not a part of the pleadings.

After a special demurrer, setting forth the same matter which is now, -By the first assignment, charged as Error, leave is given to amend the declaration. Then, after two continuances, the defendant withdraws his pleas and the action remains undefended." By this I understand that he abandoned all matter of law or of fact which he had to allege against the plaintiff’s right of recovery, and acknowledged on the Record that the declaration set out a good cause of action, and that he had nothing to shew in bar.

Therefore I am of opinion that the 1st, 2d, and 3d assignments cannot be sustained; and that it is not necessary to the determination of this cause to consider whether the declaration should have averred a demand of payment at the place appointed by the note.

As to the 4th assignment — It appears that the note was made payable at Nashville, in the State of Tennessee. .Where a contract is made in reference to another country, it must be governed by the laws of the place where it is to have its effect. And foreign laws must be proved as facts. The Court, except in special cases, as defined by Statute, is not the tribunal for the determination of facts. The laws of Tennessee regulating the rate of interest,' the Circuit Court could not judicially know, unless from the finding of a Jury on evidence submitted to them ; and the Clerk was not authorized, by our Statute (Laws Ala. 70,) to calculate the interest;

On the last assignment, I am of opinion that the proceedings in the Circuit Court must be reversed as far back as the entry withdrawing the pleas of defendant below, and the cause remanded for further proceedings.

Judges Sajfold, Crenshaw, and Gayle, concurred.

See Tidd’s Pr. 4 John. 288. 17 John. 509.