Bright v. White

• Decision Date: 31 January 1844
• Parties: BRIGHT ET AL. v. WHITE.
• Court: Missouri Supreme Court

8 Mo. 421

BRIGHT ET AL.

v.WHITE.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM HOWARD CIRCUIT COURT.

CLARK, TODD and KIRTLEY, for Appellants. 1. The book offered as Haywood & Cobbs' Revisal and Digest of the Laws of Tennessee does purport to be printed under the authority of said State, as evidence of its legislative acts. 2. Caruthers and Nicholson's Compilation does purport to the same effect. 3. The judicial records and proceedings of the County Court of Warren county, Tennessee, are admissible as evidence in the courts of this State. 4. The proceedings offered in evidence are duly attested. 1 Starkie, 196, et seq.; 3 Pickering 293; Rev. Stat. of Mass. chap. 94, § 59; 1 Story's Dig. 93; 2 ibid. 947; 4 Mon. 153: 6 Litt. 388; 7 Mon. 586.

LEONARD, for Appellee. 1. Haywood & Cobbs' Digest of the State of Tennessee was no evidence of the statute law of that State, and therefore properly rejected when offered for that purpose. Packard v. Hill, 2 Wendell's R. 411; Lincoln v. Battelle, 6 Wendell's R. 483; Rev. Stat. Title Evidence, § 2. 2. Caruthers & Nicholson's Compilation of the Statutes of Tennessee, either by itself, or accompanied by the statute of Tennessee, of 1831, authorizing the purchase and distribution of this Compilation among the officers of the State, was no evidence of the statute law of Tennessee; and, therefore, properly rejected when offered for that purpose. Same authorities cited above. 3. The alleged copy of the will and probate was no evidence of the will, without some proof of the law of Tennessee in relation to the making and custody of wills, and of the jurisdiction of the court over them. 4. Admitting that the books offered were legal evidence of the laws of Tennessee; or, if not, that the record itself was prima facie evidence of the jurisdiction of the court, yet the alleged record was properly rejected, because. 1st. It was not properly certified under the laws of the United States, so as to enable it to be read as evidence of a judicial proceeding. G. & C. Lendenberger v. Rosseau, 2 Const. R. South Carolina; 1 Greenleaf's Ev. 550, 551; 3 Hill & Cowen's ed. of Phil. Ev. 1130, 1131, and cases there cited. 2nd. The clerk's certificate is defective, in not certifying that the alleged probate of the will is a true copy of the record of such probate.

TOMPKINS, J.

Jacob Bright, and Hannah, his wife; Joseph Stapp, and Esther, his wife; John Stapp, and Nancy, his wife, and Margaret Wilson, sued John R. White in the Circuit Court of Howard county, and judgment being there given against them, they appeal to this court. The action was brought to recover damages for the conversion of two negroes, slaves for life, charged to have been converted by White to his own use. The plaintiffs claimed the slaves in controversy as female heirs of their mother, Elizabeth Wilson, who was the daughter of Joseph Dial, lately deceased, in Warren county, State of Tennessee; the said Joseph Dial having, on the 30th of April, 1827, made his last will, with a bequest to his daughter, Elizabeth Wilson, in these words: “Elizabeth Wilson has received $420 in a negro girl, named Rhody; and it is further my will that the said girl, Rhody, and her increase, be considered the property of the said Elizabeth during her natural life; and none of them to be disposed of by any person, in any way; and at or after her death, the said negro, Rhody, and her increase, to be equally divided among the heirs of the said Elizabeth's body.”

Elizabeth Wilson, the mother of the female plaintiffs, died before the commencement of this suit; and the negroes here sued for are the descendants of the said slave, Rhody, mentioned in the will. A copy of this will was offered in evidence, to which the names of three persons are subscribed as witnesses, and these certificates were attached: “The execution of the last will and testament of Joseph Dial was this day proved in open court by the oath of John Fletcher, Thomas Stroud, and William Ramsay, subscribing witnesses thereto, who made oath that deceased was of sound mind and disposing memory; whereupon John Dial came into open court, executor of the last will and testament of said Joseph, deceased, who was qualified, and gave bond and security, as the law directs, as executor as aforesaid; whereupon it was ordered by the court that letters testamentary issue,” &c.

“STATE OF TENNESSEE, Warren county.

I, William Armstrong, clerk of the County Court of Warren county, do certify that the foregoing pages contain a true and perfect copy of the last will and testament of Joseph Dial, deceased, and the record of probate remains in my office.

Witness my hand and seal of office, this 11th day of June, 1840.

WILLIAM ARMSTRONG, Clerk.

BY JAMES ARMSTRONG, D. C.”

“STATE OF TENNESSEE, Warren county.

I, Asa Faulkner, chairman of said County Court, do certify that William Armstrong, whose name is annexed to the above certificate, is, and was at the time of signing the same, the clerk of said court, duly elected and qualified as such, and that his attestation is in due form of law.

Witness my hand and seal this 11th day of June, 1840.

ASA FAULKNER, Chairman.”

“STATE OF TENNESSEE, Warren county.

I, William Armstrong, Clerk of the County Court of Warren county, do certify that Asa Faulkner, whose name appears to the foregoing certificate, is now, and was at the time of making the same, Chairman of the County Court of said county, duly elected, commissioned and qualified; and that due faith and credit is, and ought to be, given to his attestation as such; and that his said certificate is in due form of law.

Given under my hand, and seal of office, at office, this 11th day of June, 1840.

WILLIAM ARMSTRONG, Clerk,

By JAMES ARMSTRONG, D. C.”

The plaintiffs then offered in evidence a printed book, with this title-page, viz.: “The Statute Laws of the State of Tennessee, of a public and general nature, revised and digested by John Haywood and Robert L. Cobbs, by order of the General Assembly.” Vol. 1, Knoxville. T. F. S. Heiskill, printer and publisher, 1831. The court rejected the said copy of the will, attested as aforesaid, and would not permit them to be read in evidence: the plaintiffs excepted.

The plaintiffs then offered the same attested copy of the last will, aforesaid, and offered, as evidence of the law of Tennessee on the subject of last wills and testaments, a printed, bound book, with this title page: “A Compilation of the Statutes of Tennessee, of a general and permanent nature, from the commencement of the government to the present time; with references to judicial decisions, in notes: to which is appended a new collection of forms. By K. L. Caruthers and A. O. Nicholson. Nashville, Tennessee: printed at the steam press of James Smith: 1836.”

And, as a further proof of the competency of the evidence of the said printed book, offered to read out of a printed, bound book, having this title page: “Acts passed at the First Session of the twenty-second General Assembly of the State of Tennessee, 1837-38. Published by authority. S. Nye & Co., Printers to the State: 1838.” To this book no objection being made, the plaintiffs read part of “An act to provide for the distribution of the laws of Tennessee;” by which it appears that the Secretary of State was directed to purchase a sufficient number of “Caruthers & Nicholson's Compilation:” one copy of which was given to the people in each district of the State, for their use, inspection and information, and transmitted to each magistrate of the district; and in each copy to be written--“Presented to the people of the district by the State of Tennessee.”

The defendant then objected to reading the paper purporting to be the last will, aforesaid, and the probate thereof, and certificates: and to reading the said acts purporting to be the laws of Tennessee, comprised under the head Wills, in said volume; or Compilation of Laws, by Caruthers and Nicholson, aforesaid; which objection was sustained by the court, and the plaintiffs excepted.

The plaintiffs then took a non-suit, with leave to move the court to set the same aside; and afterwards, at the same term moved to set the non-suit aside, for this reason, that the court improperly rejected the evidence offered by them on the trial. The plaintiffs, to reverse the judgment of the Circuit Court, insist: 1. That the book offered as “Haywood and Cobb's Revisal and Digest of the Laws of Tennessee” does purport to be printed under the authority of the State, as evidence of its legislative acts. 2. That ““Caruthers and Nicholson's Compilation” does purport to the same effect. 3. That the judicial records and proceedings of the County Court of Warren county, Tennessee, are admissible as evidence in the courts of this State. 4. That the proceedings offered in evidence are duly attested.

The second section of the act concerning Evidence, page 250 of the Digest of 1835, provides, that “the printed statute-books of sister States, and the several Territories of the United States, purporting to be printed under the authority of such States or Territories, shall be evidence of the legislative acts of such States or Territories.” It is by the statutes alone that the printed statute-books of sister States are evidence of the legislative acts of such States; and without the aid of this statutory provision, we should be compelled to prove the statute laws of other...