Opinion
(Spring Riding, 1802.)
The printed statute book of another State may be read as evidence of the law of that state.
THE plaintiff proved the mother of the negro slave in question was entailed on Poindexter; that and execution issued against him; that the sheriff sold the mother for the life of Poindexter; that Poindexter died; and it was moved on the part of the defendant that the executors should be nonsuited; the issue in tail, and not the executors, being the persons who had the property. And of this opinion was TAYLOR, J.
Then it was moved, on the part of the plaintiff, to introduce a law of the State of Virginia, where the negroes were entailed, to show that notwithstanding the entail the property was in the executors, on the death of the tenant in tail; and the printed book of the Virginia laws was offered. It was objected to, because a better evidence would be a copy of the law, certified by the proper officer who had the custody of the original acts; and it was insisted upon that this objection corresponded with the universal practice in this State for many years past. TAYLOR, J., was of opinion that the book was receivable, saying the Constitution of the United States declares that the acts and judicial proceedings of every state should be received in all the other states. Upon this, an examination of the Constitution and of the law of Congress made in pursuance thereof was had. The law directed that acts of the Legislature should be certified under the great seal.
TAYLOR, J., said he must be bound by it, and nonsuited the plaintiff.
Mr. Norwood moved to have the nonsuit set aside, on the ground of surprise, saying he had understood ever since Alston v. Taylor, 2 N.C. 381, that the printed book was evidence, and it had been admitted in that case. A rule to show cause was granted; and now at this (174) day, the cause coming on to be argued, TAYLOR, J., desired the counsel to read the case in 1 Dallas, 462, where this question had been examined in the General Court of Pennsylvania.
If a judge gives an opinion and afterwards discovers a mistake, he should rectify it as early as possible. If a nonsuit has taken place in consequence of it, he should set it aside. I think the act of Congress was not intended to prescribe one mode only of authentication in exclusion of all others. Such as were before used in the courts of this State may be still used. It is better, therefore, to submit this case to further consideration. At the next term another judge will be here, and the same question may be made before him as is now agitated. It seems to me the same evidence as would be sufficient, were this cause on trial in Virginia, should be received here. The argument opposed to this is that no imposition could take place in Virginia, because there the judges know what the law is, but that here a spurious book might be offered, or a law which is repealed. The answer is, should such an attempt be made, it is almost impossible but that the imposition attempted would be suspected before it could be effected, and the proceedings would be suspended till further inquiry could be made. The bare possibility of such a mischief is no way comparable to that of sending the parties to Virginia in every case to get a certified copy whenever a law of Virginia is to be produced, when at the same time the Court has every reasonable assurance that the law is contained in the printed book, it being printed by the public printer, and being a counterpart of the books used in Virginia to show their laws.
Nonsuit set aside.
NOTE. — The opinion intimated by the judge in this case has been overruled in S. v. Twitty, 9 N.C. 441. The act of 1823 (1 Rev. Stat., ch. 44, sec. 3) prescribes that a copy of the law of any other state, drawn off by the Secretary of our State from the copy of the laws of such other state deposited in his or the executive office, certified under his hand with the seal of our State, shall be sufficient evidence of the existence of such law. See S. v. Jackson, 13 N.C. 563, decided upon this act. A printed copy issued by such other state is now sufficient. Code, sec. 1338.