Baker v. Magrath

Lewis, J. This was a suit by J. Walker Magrath against. W. A. Baker for four thousand dollars, besides interest, alleged to be due on two promissory notes given by defendant to plaintiff for the principal amount of two thousand dollars each. Defendant filed a plea, denying his indebtedness as alleged,, admitting that the notes sued upon were signed as stated in the petition, but alleging that only a part of said sum was received by him, not as a loan, but to be used by defendant in th e speculative purchase of cotton for the joint, benefit of plaintiff and defendant; that the notes were given for an illegal consideration, are invalid, and no recovery can be had thereon. At the-conclusion of the evidence the court directed a verdict for the plaintiff, to which direction the defendant below excepted, and now assigns the same as error. 1. When this case was called for hearing, our attention was; called to the fact that the pauper affidavit executed by the plaintiff in error for the purpose of relieving himself from the payment of costs in this court was sworn to and signed before a commissioner of deeds for the State of Georgia in the State of New York; and the question is presented whether or not such an official has authority to administer this oath. Under the act. of 1829, as embodied in Cobb’s Digest, pp. 173-4, such a commissioner unquestionably had authority to administer this oath; and it was accordingly decided in Sugar v. Sackett, 13 Ga. 462: “A commissioner for this State, in New York, duly appointed,, is empowered by our law to administer an oath in any case in which a magistrate, resident in our State, may administer it.” There was evidently an effort upon the part of the codifiers to embody in the present code the provisions of this act of 1829. See Political Code, § 120, which, in its present shape, first appeared in the Code of 1863, and has been embodied in. every subsequent code since that date. • That section does not contain specifically the provisions of section II. of the act of 1829, [421] giving such a commissioner of this State authority to administer an oath or affirmation to any person who shall be willing and desirous of making the same; but we think there was an evident intention to embody in the code the provisions of that section, as well as the one just preceding, in a condensed form and in general terms. Section 120 of the Political Code declares that such commissioners shall have power “to take and certify the acknowledgment or proof of deeds or other'conveyance of property in this State, of depositions under commissions or otherwise, of powers of attorney,” etc. That is to say, such -officers shall have power to take and certify the acknowledgment “of depositions under commissions or otherwise.” The word deposition. may be used in two senses. In its restricted and technical sense, it is usually limited to the written testimony of a witness given in the course of a judicial proceeding, at law or in equity. But it is also a generic expression, -which embraces all written evidence verified by oath, and thus includes “affidavits.” Anderson’s'dictionary of Law, p. 346; D Am. & Eng. Ene. L. (2d ed.) 297. The term, therefore, ■ being susceptible to these two constructions, we think it proper to give it its generic meaning, especially in view of the original statute, all the provisions of which were evidently intended to have been codified, and in view of the further fact that the term “depositions” is not limited by the section of the code to such only as are taken by commission,.as is usually the case in testimony taken in judicial proceedings, but the expression “or otherwise” is used, thus indicating that the codifiers intended to apply the term in the broad sense of a written oath of any sort. We conclude, therefore, that the plaintiff in error is not chargeable with payment of costs in this court. 2. On the trial of the case there was no testimony to sustain the plea that this was an illegal contract which the plaintiff was seeking to enforce. The defendant below testified that plaintiff knew the money for which the notes were given was to be used for speculation in cotton. He also testified that the money received by him from plaintiff was used in buying cotton-futures, and was lost in this speculation; but it nowhere appears from the testimony that Magrath had any knowledge of [422] the fact that the money was to be used in this particular kind of speculation. There may be a lawful as well as an unlawful-speculation in cotton. Besides, it does not appear from the-testimony that, under the contract between the parties, Magrath had any interest whatever in the profits or losses which Baker might make or sustain in the course of speculation. The notes were given for a certain amount. They were unconditional upon their face, and the amount therein stipulated, by virtue of the contract between the parties, was to be paid regardless, of any losses that Magrath might sustain in buying cotton-futures, or otherwise engaging in cotton speculation. There was-testimony to the effect that only three thousand dollars were-actually loaned by Magrath to Baker, and that one thousand dollars were to be paid for the use of the money; but this, of course, would have simply tainted the contract with usury, and did not tend to establish in any respect the defense relied on in this case. There being no plea of usury; the court did not-err in directing a verdict for the plaintiff. Judgment affirmed. All the Justices concurring.