Cecil Bank v. Barry ( 1863 )

Bartol, J.,

delivered the opinion of this Court:

We have examined with much care, the interesting-questions presented in the briefs, and argued with great ability by counsel; and have prepared an opinion stating the conclusions we have reached upon the several points argued. But upon mature consideration we deem it unnecessary and improper, in disposing of this appeal, to go beyond what was actually decided by the Coui't below. The only exception taken by the appellant was, to the rejection by the Superior Court of the five prayers offered by the plaintiff below, (now appellant.) If for any reason these prayers were defective there was no error in rejecting them; and the judgment must be affirmed, whatever opinion this Court may entertain upon other -questions which the prayers were intended to present.

In the course of the trial below, the plaintiff gave in evidence certain laws of Pennsylvania, declaring the effect of assignments made by debtors in failing circumstances, for the benefit of their creditors, prescribing the time and place for recording such assignments, and also directing the mode in which deeds, conveying lands in that títate, if made out of the limits thereof, shall be executed, acknowledged and recorded. These laws were proved by producing the printed statute books of that State. In each of the prayers offered, the Court was asked to submit to the jury the construction of those laws, and their effect upon the deed of trust made by John Herr to the appellee.

Was it within the province of the jury to pass upon those questions? If not, then the objection to the prayers urged by the appellee, “that they called on the Court to submit to the jury a question of law,” would be fatal.

The appellant contends, that foreign laws must be proved as facts, and that their construction is exclusively for the jury, and in support of that position has cited Trasher vs. Everhart, 3 G. & J., 242, Gardner vs. Lewis, 7 Gill, 395. and Wilson vs. Carson, 12 Md. Rep., 72. A brief examination of these cases will show that they do not sustain the appellants’ view.

In Trasher vs. Everhart, Judge Archer stated the general rule to be, that foreign laws are facts to be found by the jury, but the point decided in that case was, that “when a foreign law is offered for the purpose of enabling the Court to determine a question of law, viz: ‘whether a written instrument is evidence ?’ in such case the evidence always goes in the first instance to the Court, which, if the evidence be clear and uncontradicted, may and ought to decide what the foreign law is, and according to its determination on that subject, admit or reject the instrument of writing as evidence to the jury.”

In Gardner vs. Lewis, there was no decision upon this point, for in that case “no evidence (of the foreign law) was offered either for the Court or the jury.”

The case of Wilson vs. Carson, so far from supporting the appellants’ position, seems to us to establish the contrary. That case will be more particularly noticed presently.

The question here is not, how is the foreign written law to be proved; but, when it is proved by the production of the written statutes, whose province is it to construe it, and to determine its effect and bearing upon the case before the Court. On this subject we have examined all the authorities and decided cases within our reach, and have arrived at the following conclusion: That although the /actum of a foreign law is for the jury to find upon the evidence, yet it is the duty of the Court to construe it, especially if it be in writing, and to direct the jury as to its force and effect.

This view is, in our opinion, not only consistent with reason and analogy, but is supported by the weight of authority.

Mostyn vs. Fabrigas, Cowper, 174, Lord Mansfield, said: “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 Consequa vs. Willing, 1 Peters’ C. C. R., 229, Justice Washington, after stating how the laws of foreign countries may be proved, says: “When proved (I admit) it is for the Court to construe them, and to decide upon their effect.”

Judge Story in his work on the conflict of laws, sec. 638, says: “The Courts are therefore to decide what is the proper evidence of the laws of a foreign country; and when eviden.ee is given of those laws, the Court are to judge of their applicability, when proved, to the case in hand,” And in the same section the learned author remarks: “for all matters of law are properly referable to the Court, and the object of the proof of foreign laws is to enable the Court to instruct the jury what, in point of law, is the result of the foreign law to be applied to the matters in controversy before them.” Mr. Greenleaf adopts the same view, and cites the language of Judge Story just quoted. See 1 Greenleaf’s Evidence, sec. 486.

Among the cases cited by Judge Story is De Sobre vs. De Laister, in 2 H. & J., 192. The marginal note of that decision on this point is as follows: “The laws of a foreign country are to he proved by evidence, and the Court are to decide what is proper evidence of such laws, and to construe them, and judge of their applicability to the question before the'Court.” See also pages 219 and 229, (a.)

In Wilson vs. Carson, 12 Md. Rep., 75. Parol evidence' was introduced to prove the unwritten laws of Kentucky. Judge Frick, who sat at the trial below, “decided that the testimony of'Bodley and Pope, in relation to the law of Kentucky, was for the Court and not the jury, and that said testimony was legal and competent evidence; and accordingly instructed the jury, that the clauses and provisions in said deed of trust were, according to the law of Kentucky, legal and valid, and, by such law, sufficient to convey to the grantee therein named, the property by said deed mentioned to be conveyed.” And the Court of Appeals in affirming the judgment say, (on page 75:) “We think so far as proof of the law of Kentucky is concerned, the Court below correctly stated the law.”

These authorities arc sufficient to show, that the construction of the laws of Pennsylvania, offered in evidence in this case, was for the Court and not for the jury, and that consequently thére was no error in rejecting the appellants’ prayers, as they all propose to leave it to the jury to construe the laws of Pennsylvania, and to decide their applicability to, and effect upon, the deed of John Herr to the appellee.

(Decided Dec’r 7th, 1863.)

The law of this Court is well established, that a judgment will not be reversed on account of the refusal by the Court below to grant a prayer which submits a question of law to the jury. See Osceola Tribe, &c., vs. Rost, 15 Md. Rep., 296, 297, and cases there cited.

This cause having originated and been decided below, before the passage of the Act of 1862, ch. 154, that Act in our opinion is inapplicable to this appeal.

Judgment affirmed.