Opinion
(December Term, 1844.)
1. What is the law of another State (not contained in a statute) is, like the law of foreign countries, a matter of fact to be tried by the jury, and cannot be determined by the court.
2. Where a case arises under a statute of a sister State, the statute being properly authenticated under the act of Congress or proved under our act of Assembly, it is the province of the court to decide both upon the existence of the statute and its proper construction.
3. So where the plea of nul tiel record is pleaded to a judgment or other proceeding in a court of record in another State, from necessity the court to whom it is exhibited decides not only upon the legal existence of the supposed record, but upon its effect.
APPEAL from CASWELL, Fall Term, 1844; Pearson, J.
Kerr for plaintiff. (189)
Morehead for defendant.
This case was before this Court at the last term, Moore v. Gwynn, 26 N.C. 275, upon a motion for a new trial because the judge then presiding had improperly rejected the testimony of Mrs. Gwynn, the widow of the deceased. She had been introduced to testify as to conversations between herself and her father, the present plaintiff, relative to the negroes, before they were sent to her husband. No objections were made either here or in the Superior Court as to the propriety of the charge given to the jury, and the attention of this Court was confined to the rejected testimony. In the opinion expressed as to that point this Court believed there was error. A new trial was directed, and the case is now sent up upon exceptions to the charge delivered on the last trial. The action is detinue, and brought to recover several slaves. The defense, that on the marriage of defendant's intestate with the daughter of the plaintiff he had given to the defendant the negroes in question; that this took place in the State of Virginia, where the parties then all (188) lived, and that the defendant had been five years in the possession of the slaves, one year in Virginia and the remainder of the time in this State. There was no proof of any express gift; but it was shown that shortly after the marriage the negroes were sent by the plaintiff to the intestate, and remained in his possession to the time of his death. No more of the facts of the case are stated than are necessary to bring into view the relevancy of the instructions given, and which are complained of. The charge of the judge stated, "that as this matter had taken place in Virginia, it was to be decided by the laws of that State. It was admitted that a parol gift of slaves was valid in Virginia, if the donee took and remained in possession. But the question of law contested was whether by the law of Virginia the presumption is that it was a gift or a loan. If the law presumed a gift, then the burden of showing it was a loan rested upon the supposed donor. If the law presumed it a loan, then the burden of showing it was a gift rested upon the supposed donee." The court further charged, "that the jury was to be instructed by the court what the law of Virginia was; that by the law of Virginia, when, soon after a marriage, a father sends negroes to a son-in-law, the presumption is that it was a loan."
Under the charge of the court the jury found a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.
Our only inquiry is as to the legal correctness of the charge. Was his Honor correct in stating to the jury that they were to be instructed by the court what the law of Virginia was, and in stating to them what was that law? In other words, was it a question of law for the decision of the court, or one of fact for the determination of the jury? We think that his Honor erred, and that it ought to have been left to the jury as a question of fact. The case does (190) not arise under any statute of Virginia, but under the common law of that State. And we are scarcely at liberty at this day to consider the question as an open one. Repeated decisions of this Court have settled it. In Knight v. Wall 19 N.C. 129, the Court say: "The court in 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. The only exception we are aware of is to be found when the plea of nul tiel record is pleaded to a judgment or other proceeding in a court of record in another State, where from the necessity of the case the court to whom it is exhibited must pass not only on the legal existence of the supposed record, but upon its effect." Here, then, is an express adjudication establishing the law governing this case, and the cases referred to fully sustain it. S. v. Jackson, 13 N.C. 563, and Carter v. Wilson, 18 N.C. 364. In the first it is decided that the existence of a foreign law is a fact. The court cannot judicially know it, and, therefore, it must be proved, and the proof, like all other, necessarily goes to the jury. What was the law of Virginia in this case, the existence of which was to be proved? The statute, which was read in evidence, speaks of gifts and loans, so far as the rights of creditors are concerned — in other words, a statute of frauds; it makes no regulations whatever as to the rights of the donor and donee, of the bailor or bailee, as between themselves. It is entirely silent as to any presumptions arising from the possession of the son-in-law. What was the presumption of law arising from such a possession was the question governing the case — in fact, the law of the case. The first thing to be done was to prove the existence of the law, and, according to the opinion in S. v. Jackson, it was a question of fact to be decided by the jury. How was it to be done? In this case by the testimony taken, and that consisted of the opinions of three gentlemen learned in the laws of that State. In one of these opinions it was (191) stated that from such a possession of a son-in-law a gift was presumed; and in another, that from such a possession a loan was presumed; and the third, that no presumption arose of either kind, but that it was a matter of fact to be determined by the jury, in view of all the circumstances attending the possession in each case. Here, then, was a conflict of testimony upon the point in controversy, the existence of the law in Virginia — not contained in any statute or record, but to be found, if at all, in the common law of that State. The existence of such a law could be proved only by the opinions of persons learned in that law. Instead of leaving that testimony to the jury to be weighed by them, and directing their attention to the circumstances attending the possession of the intestate, the presiding judge, considering it a question of law for the court, decides it himself, and informs them that by the law of Virginia such a possession by a son-in-law is presumed to be a gift. In so charging the jury we think his Honor erred.
We do not mean to say that when a case arises under a statute of a sister State it is not the province of the court to decide both the existence of the statute and its proper construction. In such a case, the statute being authenticated in the manner pointed out by the Constitution of the United States and the act of Congress, both the fact of its existence and its proper construction is matter for the court. So, also, when the existence of such a statute is proved in the manner directed by the act of our Assembly, to the satisfaction of the jury, its exposition belongs to the court as entirely, in both the last cases, as if it were a statute of our own State. To the cases already cited from our own Reports as sustaining the view we have taken of the question involved in this case may be added Brockett v. Norton, 4 Conn. 517, and Thrasher v. Gill, 3 Gill and Johnson, 234, 242.
PER CURIAM. Venire de novo.
Cited: Hooper v. Moore, 50 N.C. 134, 136; Hilliard v. Outlaw, 92 N.C. 269; S. v. Behrman, 114 N.C. 808; Lassiter v. R. R., 136 N.C. 98; Hall v. R. R., 146 N.C. 351; Carriage Co. v. Dowd, 155 N.C. 317.
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