Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 46
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91-92 SUPREME COURT.
Hill v. George.
made, to prove what the law of interest of that country was at that time the
contract matured.
'The right to recover interest does not seem to be one of [91] those incidents
that naturally follow upon parting with the use of money; but on the contrary,
according to an ancient dictum, iii'oney is naturally barren; a11nd to
make it breed money is preposterous, and a perversion of the end of its institution,
which was only to secure the purposes of exchange, and not of profit."
The common law recognizes this principle to tie fullest extent. According to
MII. Blackstone, the common law proscribed the taking of any, the least interest
for the loan of money as beill a mortal sin. By statute, however, at this
day interest is allowed to be collected in almost if not quite every civilized
country in the world.
It is the settled law of this court that the statute laws of other States of this
Union and tle laws of foreign countries are facts that must be proved by
competent testimony before they call be noticed. (2 Tex. R., 348.)
If, as we have shown, the right to collect interest does not exist by the
common law, but is dependent exclusively upon the statutes of the ditlfrent
countries for its existence, and if the court cannot take judicial notice of
them, it is not easy to perceive upon what principle they would be admitted
in evidence without an allegation corresponding with such proof. T'le contract
evidenced by the note sued on is transitory in its character, and would
be binding upon the niaker, wherever lie may be, for the amount that its face
shows to be due. But unless interest is a legal consequence that attaches to
tills kind of an instrument, lie is not bound to pay it. In this case it is nlot a
legal consequence; it is shown that it was payable in the State of Alabama;
land by tie decisions of this court, where a note is shown to be payable in any
other country than this, tile interest of this country cannot be recovered.
(Burton v. Anderson, 1 Tex. R., 96; Iaamsey v. McCauley, 2 Tex. R., 189.)
Should tlie maker of a note made payable iin Alabama desire to avail-himself
of a defense acquired under tle laws of that State, as was the defense set
up in tils case, would the [92] plaintiff be apprised of the nature of that defense
by tle simple fact of its appearing in the defendant's plea that this note
was executed in tlhe State of Alabama? Certainly not. If this kind of pleading
would not be sufficient to apprise the plaintiff of what the defendant relied
on as a defense, and if the court cannot judicially know that by tile laws of
Alabama the defendant was bound to pay interest, the defendant would not,
upon any principle of reason, be required to know that more was sought to be
recovered of him than the instrument called for upon its face, or to prove
what rate of interest was legally recoverable by the law of Alabama when the
contract was made. We are therefore of opinion that the court below erred
in admitting 'tule evidence of tile rate of interest of the State of Alabama; for
which tile judgment of thle court below must be reversed, and the cause remanded
for a new trial.
Judgment reversed.
NOTE 10.-A ndrews v. Hoxie, post, 171; Grimes v. Hagood, 19 T., 246.
NOTE 11.-The court cannot take judicial cognizance of the laws of another State; and in the
absence of averment and proof of foreign laws, the rights of parties must be determined by
our own laws. (Crosby v. Houston, 1 T., 203; Bryant v Kelton, 1 T., 434; Nimmo v. Davis, 7 T.,
46; Bufford v. Holliman, 10 T., 5(;0; Saddler v. Anderson, 17 T., 245; Wallace v. Burden, 17 T.,
467; Bradshaw v. Mayfield, 18 T., 21; Grant v. Bledsoe, 20 T., 456.)
46
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/54/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .