(December Term, 1857.)
No court takes judicial notice of the laws of another State or a foreign country, but it must be proved, as a fact, to the court; and when thus proved, it is the duty of the court to instruct the jury as to the meaning of the law, its applicability to the case in hand, and its effect on the case; and it is error to refer the whole question to the jury without such instructions.
An executor appointed in the State where the testator was domiciled, may accept the office in such State and renounce it in this State, and an administrator cum. tes. an. appointed to take charge of assets here, has lawful authority to sue in this State.
THIS was an action of DETINUE, tried before MANLY, J., at the last Fall Term of Caswell Superior Court.
Norwood, for the plaintiff.
Morehead, for the defendant.
The plaintiff declared for the detention of the slaves Fanny and her children, and alleged title, as administrator with the will annexed of Alexander Moore, under the provisions of that will. The testator lived and died in Halifax county, in the State of Virginia. His will was duly proved in that county in April, 1850, and Woodson Hughes, the executor therein named, was qualified and received letters testamentary on the same. At January Term, 1855, of Caswell County Court, a certified copy of this will and probate, was produced and ordered to be recorded; whereupon, the executor, Woodson Hughes, formally renounced his right to qualify as executor in this State, and the same was duly entered of record; whereupon the plaintiff, Charles H. Hooper, was appointed administrator with the will annexed.
The defendant claimed the slaves as the administrator of Alexander Moore, Jun'r., and offered evidence to show that the said Alexander Moore, Jun'r., intermarried with Sally Cook, a grand-daughter of Alexander Moore, Sen'r., in the county of Halifax, in Virginia, and settled in the neighborhood of the plaintiff's testator; that shortly after this marriage, the said testator placed in the possession of the granddaughter and her husband, the slave Fanny in question, who is the mother of the other slaves sued for; that Alexander Moore, Jun'r., held the slaves in question for ten years, during which time, he lived in the State of Virginia, and brought them thence to the county of Caswell, where he remained in possession of them until his death in 1852.
In order to show the law of Virginia controlling this transaction, the deposition of Woodson Hughes, Esquire, a gentleman of the legal profession in that State, was produced, who deposed that according to the law of Virginia, no inference of a gift could be drawn from the possession of the slaves, under the circumstances of this case.
The defendant's counsel insisted: 1st. That the executor, having qualified in Virginia, could not renounce the office as to effects of the deceased in this State, and that the appointment of the plaintiff as administrator, by the County Court of Caswell, was void, and conferred no power to bring this suit.
2ndly. That no statute of Virginia had been offered in evidence, altering the common law; that by the common law a gift was presumed, and that it was the duty of the Court to expound the statute and give the defendant the benefit of the presumption, notwithstanding the deposition of Mr. Hughes, and prayed the Court so to instruct the jury.
The Court was of opinion that the administration was properly granted to the plaintiff, and that he had power to sue. Defendant excepted.
And upon the second point, he declined giving the instructions prayed for, but gave in charge the law of Virginia as proved by the deposition of Mr. Hughes, and left it to the jury to decide the question, whether it was a gift or a loan, free from any presumption either way. Defendant again excepted.
Under these instructions, the jury returned a verdict for the plaintiff; a judgment was rendered thereon, and the defendant appealed to this Court.
What is the law of another State, or of a foreign country, is as much a "question of law," as what is the law of our own State. There is this difference, however: the court is presumed to know judicially the public laws of our State, while in respect to private laws, and the laws of other States and foreign countries, this knowledge is not presumed; it follows that the existence of the latter must be alleged and proved as facts; for otherwise, the court cannot know or take notice of them. This is familiar learning; 3 Wooddeson's Lec. 175.
In order to give effect to this presumption of a knowledge, on the part of the court, of the public laws of our State, it is provided that the persons who are entrusted with the administration of justice as a court, shall be men learned in the law; who either know it, or from their studies and pursuits of life, are supposed to have peculiar means of ascertaining it; and to guard against error in the County and Superior Courts, a Supreme Court is established, whose duty it is to review the decisions of the other courts, in respect to all questions of law. When an issue of fact involves a question of law, the jury are not entrusted to decide it; but it is the duty of the court to give to the jury instruction in regard to the law, and it is the duty of the jury to be governed by such instructions. In this way, as much accuracy, and as great a degree of fixedness, in respect to questions of law, is secured, as the nature of the subject admits of.
Such being the case in respect to questions arising about our own laws, it would seem as a matter of course to be likewise so in respect to questions arising about the laws of other States, or of foreign countries, whenever, in the administration of justice, our Courts are called upon to deal with them.
The assertion of a contrary opinion is met at once by these considerations, which, as it seems to us, cannot be answered: i. e., if juries are incompetent to decide questions in regard to our own laws, and the court is required to give them instructions in respect thereto, are they any more competent to decide questions in regard to the laws of other States, or foreign countries? and do not they stand equally in need of instructions in respect to them? If such questions are to be decided by the juries, their decisions cannot be reviewed by the Supreme Court, and where is the security either for accuracy or fixedness? A jury is not a permanent tribunal, and no memorial is kept of its action, except the general conclusion — a verdict; which is binding only between the parties to the particular case.
But it is said our Courts are not presumed to know the laws of other States, or of foreign countries. Admit it; still, can it be questioned that the court is more competent to ascertain and understand such laws, than the jury? or that the jury stand as much in need of instruction in respect thereto, as in respect to our own laws?
Again, it is said the existence of such laws must be alleged and proved as facts. Admit it. But how are they to be proved? To the court, or to the jury? Surely to the court, because they are "questions of law."
We are aware that an impression prevails to some extent, that the proof is to be made to the jury. This originated from the expression "to be proved as facts," and many loose dicta are to be met with, scattered through the books, in which these words have been inadvertently added to, so as to make the expression "to be proven as facts to the jury." After some examination, we have not been able to find any case where the question of the law of another State, or foreign country, has been left to be decided by a jury, without instructions from the court, in regard to it, except the case of Moore v. Gwyn, 5 Ire. Rep. 187, which will be again referred to, and the case that we are now reviewing. If the law be written, and its existence is properly authenticated, the court, availing itself of the aid of the judicial decisions of the country, puts a construction on it, and explains its meaning and legal effect, and the jury have nothing to do with it, save to follow the instructions of the court, as if it was our own law. If the law is unwritten, and its existence is presumed or admitted, then the jury have nothing to do with it. For example, if it be presumed, or admitted, that the common law prevails in the State of Virginia, and has not been altered by statute in respect to the particular question, our Court decides what the common law is: e. g., that the rule in Shelly's case applies; Allen v. Pass, 4 Dev. and Bat. 77. There the Court say, "The law of Virginia governs. It would have been gratifying to us, had we been furnished with judicial decisions of Virginia, showing the construction there placed on bequests of a similar character, but none such have been presented, we must therefore presume, and such is admitted by the counsel on both sides to be the fact," c. Here the Court reviews the decision in the Court below, treating it as a question of law in all respects. Many other cases are to be met with in our reports, where this Court reviews the decision, which it could only do as a "question of law."
But if the existence of an unwritten law of another State, or foreign country, is not presumed or admitted, then its existence must be proved by competent witnesses, and the jury must then pass on the credibility of the witnesses, and it is the province of the court to inform the jury as to the construction, meaning, and legal effect of the law, supposing its existence to be proven; and to this end, the court should avail itself of the judicial decisions of the State or country. For example, if the existence of a judgment in France, sued on here, is proved by a sworn copy, the jury passes on the credibility of witnesses, the rest is for the court. So, if the existence of the unwritten law of Russia is sworn to by witnesses, the jury passes on their credibility, but its meaning, c., is for the court.
This view of the subject rests so firmly on the reason of the thing, that authority would not be required, but for the dicta and the case above referred to. There were two able and elaborate arguments in Mostyn v. Fabrigas, 1 Cowper, 161. BULLER was one of the counsel, and it is decided by Lord MANSFIELD. "The way of knowing foreign laws is by admitting them to be proved as facts, and the Court must assist the jury in ascertaining what the law is." In The Conflict of Laws, "Let us consider in what manner courts of justice arrive at the knowledge of foreign laws; are they to be judicially taken notice of, or are they to be proved as matters of fact? The established doctrine now is, that no court takes judicial notice of the laws of a foreign country, but they must be proved as facts," sec. 637. "But it may be asked whether they are to be proved as facts to the jury, if the case is a trial at the common law, or as facts to the court? It would seem the latter, for all matters of law are properly referrible to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what is, in point of law, the result, from foreign law, to be applied to the matter in controversy before them. The court is, therefore, to decide what is the proper evidence of the laws of a foreign country, and when evidence is given of these laws, the court is to judge of their applicability, when proved, to the case in hand." Sec. 638. In a note, it is added, "Is not foreign law, offered in all cases, to instruct the court in matters of law material to the point in issue? Can the court properly leave it to the jury to find out what the law is, and apply it to the case?" In 1st Greenleaf's Ev. sec. 486, the learned author says: "In regard to foreign laws, the better opinion seems to be, that the proof must be made to the court rather than to the jury." He refers to STORY and the cases there cited. In State v. Jackson, 2 Dev. Rep. 563, RUFFIN, J., says, "A doubt has suggested itself to the Court upon the effect of its being left by the Judge, in the Court below, to the jury to draw their inferences. We suppose it was on the idea that foreign laws are facts, and that the jury alone could deal with them. The existence of a foreign law is a fact, the court does not judicially know it, and therefore it must be proved, and the proof, like all other facts, necessarily goes to the jury; but when established, the meaning of the law, its construction and effect, is the province of the court."
In Knight v. Wall, 2 Dev. and Bat. Rep. 125, GASTON, J., says, "The courts of this State do not know the law of other States, and a controversy respecting that law is ordinarily one of fact, which must be decided on evidence by the jury, under the instruction of the court."
There seems to have been the same misapprehension in regard to this question, as at one time existed in respect to a verbal agreement. If the agreement be in writing, its construction, meaning and legal effect, are for the court, but if verbal, it was supposed, as the jury had to ascertain its terms, the whole matter was for them; whereas, it is now clearly settled that the jury has only to ascertain the words, and their construction, meaning, and legal effect, must be decided by the court as a question of law, and the jury instructed in respect thereto.
Thus it is to be seen that Moore v. Gwyn, supra, is opposed by both principle and authority. It is put upon the cases of State v. Jackson and Knight v. Wall, referred to above, and the Court seems to have been under the impression that the question was, "what was the common law of Virginia?" The "common law," that is, the laws imported from the mother country by the colonies, and adopted as the basis of their jurisprudence, is the same every where, and the question was not how it was understood in Virginia, but what was the "common law," supposing it to be proved that the common law existed in that State, and had not been modified or altered by statute. Three witnesses proved the existence of the common law in that State, but each gives a different opinion as to what it was understood to be, (at the time, we suppose, of the alleged gift or loan,) and the jury are left unaided to find out, as best they could, what was the common law as understood in that State, which it was impossible for either jury or court to do, supposing the witnesses to be honest and equally intelligent. Whereas the Court was the proper tribunal to decide, and the question was, what was the common law, (as is done in Worrell v. Vinson, decided at this term, ( ante, 91,) where the decision of the Court below is reversed, and the question treated as one of law, the only purpose of the depositions being to prove that the common law existed in Virginia, and as was done in Allen v. Pass, supra.
In our case, the Judge below erred in refusing to decide that, according to the common law, a gift was presumed, as is settled by repeated decisions, and in leaving it an open question of fact for the jury upon the deposition of Mr. Hughes. Unfortunately, the jury do not cure the error by finding the law correctly, as was the case in State v. Jackson, supra.
The other question, as to the power of the County Court to appoint an administrator, is settled, and is conceded in the argument.
PER CURIAM, Judgment reversed, and a venire de novo.