JULY 1829. Allen V. Booker. a1 Marshall's Rep. 552. The but to recover back money which the plaintiff alleges the defen iant has received of his. There is certainly no more danger of the commission of a fraud or perjury i a case of this kind, than in any other action for money reason of the law, therefore, does not extend to the case. But I am not left to determine from reason alone; express authority is easily adduced on the subject. The case of Hunt v. Sanders,a is precisely in point. That was an action of assumpsit, for money had and received, instituted by Sanders in a Circuit Court of Kentucky, to recover from Hunt, a sum of money paid by him to the defendant on a parol contract for the purchase of land. The statute of that State is precisely the same with ours, and a recovery was had in the Circuit Court, and the judgment aflirmed in the Court of Appeals. In the case of Grant's heirs v. Craigmiles,' in delivering the opinion of the Court, which aismisses the bill filed for a specific performance of a parol contract for the purchase of lands, Judge Bibb observes "But this is only a partial evil resulting from a general good; an evil however not entirely without redress, since a person who has paid a consideration, deemed valuable in law, may have an action to recover back the consideration; although he cannot have the land itself for which it was 15 John. R. paid." In Myer v. Fisher, the Court observe: "But there is another ground on which the plaintiff had good right to recover the money received by the defendant on that note. It was received by the defendant without consideration; the contract for the exchange of farms was void by the statute of frauds, being by parol only." There can be no doubt, therefore, but that the suit is well brought. 61 Bibb 203. e Page 206. 503. As respects the last point, the question which it involves does not legitimately come before us on this investigation. An exception taken to the opinion of a Court, is generally accompanied by so much of the testimony given on the trial, as is sufficient to shew plainly the connection and materiality of the charge excepted to, with a correct decision of the case by the jury; and no more. It is not necessary to set out in the record, all the evidence which has been adduced in a cause, when much of that evidence can have no direct bearing upon so much of the charge of the Court as is objected to by the counsel taking the exception; nor will the appellate Court ever presume, that all the testimony adduced before the inferior tribunal is set out in the record, unless it is so declare l to be, or unless it is perfectly evident from the record, that such is the fact. A contrary prac JULY 1829. Allen V. Booker. fice would often burden records with much useless matter, and greatly enhance the costs of parties. In this case it does not certainly appear, whether it was on the statute of Arkansas Territory or of this State, that the charge of the Circuit Court was founded. It is true, the probability is, it was on the statute of Alabama; but from the record, it possibly may have been otherwise. But even were it on the statute of this State, the Court may previously have determined that the contract was governed by the laws of Alabama. or the question may never have been raised below, when if it had, and the production of a statute of Arka sas like our own was required, the plaintiff might either have produced the law; or if he knew it existed, suffered a no suit; or upon an affidavit of surprise, applied for a new all Whea, 81. trial. I am, therefore, of opinion, that this last is no ground upon which the judgment can be affirmed. For these reasons the judgment must be reversed, and remanded. And of this opinion is a majority of the Court. Judge SAFFOLD, not sitting. JOHNSON V. Howe's Admr's. 1. In authenticating records under the act of Congress, it must appear that the Judge who certifies, is the presiding magistrate of the particular Court or district. 2. It must also appear that the Clerk who certifies, was Clerk at the date of his certificate. If this be uncertain, the authentication is insufficient. JOHN JOHNSON brought an action of debt, in the Circuit Court of Lauderdale county, against Richard M'Mahon, administrator, and Isabella Howe, administratrix of William Howe, deceased; to recover the amount of a judgment which he had obtained against Howe in his lifetime, in the Court of common pleas of Lancaster district in South Carolina. The plaintiff offered in evidence at the trial, a transcript of the record from South Carolina, which was authenticated by the certificate of William M'Kenna, Clerk of the Court of Common Pleas of Lancaster district, dated the 12th of November, 1823, under the hand of the Clerk, with the sea! of the Court. This certificate was attested by the Judge in the following words "I John S. Richardson, one of the Associate Judges of said State, and a presiding Judge of the JULY 1829. Johnson V. Courts of Sessions and Common Pleas, do hereby certify that William M'Kenna, whose name appears to the above certificate, is clerk of the Court of Sessions and Common Howe's Admr Pleas for the said district of Lancaster; that the said certificate is in due form, and that due faith and credit ought to be given to his official signature J. S. RICHARDSON, Associate Judge." The defendants, having pleaded nul tiel record, objected to the introduction of said transcript for want of due authentication; the objection was sustained and the transcript rejected, and the Court gave judgment for the defendants. To this the plaintiff excepted, brought the cause to this Court, and assigned for error this decision of the Court. If COALTER, for the appellant. The only objection made to the reception of the record below as evidence, was, that the certificate of the Judge did not prove that M'Kenna was Clerk at the time of the date of the certificate, but only states that he is Clerk, meaning when the Judge gave his certificate. There is no date to the Judge's certificate. we are to rely on presumptions, it would be more fair to presume that the Judge's certificate was given on the same day with the Clerk's, in support of the proceedings, than to presume that it was given at a different time, and that at that other time, some one else was clerk, in order to destroy the certificate. If it is necessary to call in presumptions, I think it might fairly be presumed, that immediately on the Clerk's giving his cerificate, the Judge certified; and did so in allusion to to the time mentioned in the Clerk's certificate; that is, the 12th of November, 1823; meaning that he was Clerk at that time. Fictions and presumptions will never be sought after to destroy, but will, to support proceedings, which are otherwise, or prima facie, regular. W. B. MARTIN, for the defendants. The record should be so certified with proper dates, as to be complete in itself, without any extrinsic proof. No extrinsic proof could be received to supply any omission; and if it could, none such was offered. But there is no case where parol proof has been received to supply an omission in a record; though it may in some cases be received to supply the want of a date in a deed or note. The act of Congress must be so familiar to the Court, that it is probably unnecessary to refer to it. This case does Johnson V. not come within it. The appellant presues that the Judge JULY 1829. certified the record at the time the Clerk did. I have a right also to presume that it was done at any other time afterwards, even a year or two after, when perhaps another Howe's Adm Clerk may have been appointed. It is too doubtful to leave a case to presumptions when there is no foundation for them. It will be found that in a great majority of the transcripts certified, the dates of the certificates of the Clerk and Judge are different; we therefore cannot rely on any presumption growing out of usage in this respect; and here the uncertainty is the greater, as the certificate bears no date at all. In this, as in all other cases, the plaintiff must prevail by the proof he makes to support his complaint, and cannot rely on strained presumptions; nor can any thing be presumed when it is susceptible of so clear proof, as the existence of a record. The best proof must be produced. By CHIEF JUSTICE LIPSCOMB. The Judge setsout in his certificate that he is an Associate Judge of the State, and presiding Judge of the Courts of Session and Common Pleas; but does not set out that he is presiding Judge of Lancaster District, where the judgment was rendered. If the organization of the Courts of that State are such as to make each of the Judges the presiding Judge throughout the State, the certificate should have so stated it; otherwise we cannot be judicially advised of it. If the certificate had set out that he was presiding Judge for the district of Lancaster, or for the Courts of the State, it'would have come within the act of Congress. We believe there was no error in rejecting the evidence on this ground. There was another objection taken to the certificate of the Judge. He certifies that the Clerk is Clerk of the Court, but does not certify that he was, at the date of the Clerk's certificate. We are of opinion that it should be attested by the certificate of the presiding Judge, that the Clerk was Clerk at the date of his signature; more especially where the Judge's certificate bears no date, or one different from that of the Clerk. Judgment affirmed.* See the case of Huff v. Campbell, 1. Stewart's Rep. 543. Also the case. of Buel v. Van Ness, & Wheaton, 320 321. 30 JULY 1929. The State V. Torbeckbea Pank. Tombeckbee Bank charter, page 40. THE STATE V. THE TOMBECKBEE BANK. 1. The charter of the Tombeckbee Bank is not forfeited by a failure to pay specie on demand for its notes. There being no provision to that effect expressed therein. 2. A charter is a contract, and the act of 1821 declaring the charter of the Tombeckbee Bank liable to forfeiture for a failure to pay specie on demand for its notes, is not binding on, and cannot affect the Bank; as it amounts to an alteration of the terms of the contract, without the consent of the Bank. On the 25th of September, 1828, a writ of quo warranto was sued out from the office of the Clerk of the Circuit Court of Washington county, at the instance of the Solicitor of the first Judicial Circuit, in behalf of the State of Alabama, against the President Directors and Company of the Tombeckbee Bank. The writ recited, that whereas an act was passed by the Legislative Council and House of Representatives of the Alabama Territory, on the 13th of February, 1818, entitled, "An act to establish the Tombeckbee Bank in the town of St. Stephens," it is provided that there shall be established in the town of St. Stephens a Bank, &c. (here the act of incorporation is set out. ja And whereas the said President Directors and Company, did after the passage of said act, Laws of Ala. issue notes, receive deposites, make discounts, carry on banking operations and other monied transactions, as usually performed by banks, &c. And whereas from the 27th of June, 1827, till the date of the writ, at their banking house, they had wholly failed to pay specie on demand, contrary to the true intent and meaning of the said act; and had also after they went into operation taken more than at the rate of six per cent per annum on loans and discounts; and had also neglected to proceed annually to the election of thirteen directors to superintend their affairs as required by said act: Therefore the said President, Directors and Company, were required to appear, &c., and answer to the State, wherefore, after said breaches, and by what authority they continued to exercise the privileges of a banking company; and to shew cause why their corporate powers should not be declared forfeited, and said Bank dissolved, &c. l'he attorney for the Bank acknowledged service of the writ, and at the return term filed the plea of not guilty. The cause was at the same term submitted to the Court on the evidence of Robert H. Croswell, introduced by the |