384 CASES EN THE SUPREME COURT Blackburn vs, Morton et al [J anu a ry ELAI:R_BU FCIN MuliTi E It is purely a matter of practice, -ohether depositions can be taken, in a case at law, before the issues are made up and in the absence of any rule upon the subject, depositions are not rendered irregular by being taken before issue is joined in the cause to which they apply. Where the certificate of tbe clerk, attesting the official character of the justice of the peace before whom depositions were taken, has no locus sigilli, and the Court below permits them to be read, against general objections, this Court will presume, in favor of the judgment of the Court, that the defect was occasioned by the omission of the clerk in making the transcript. A general objection to a deposition reaches the relevancy, competency or legal effect of the testimony only , , and will not be considered L-1 evtending to any matter of form, or question of regularit y , or authority in respect of the taking of such deposition. Where a party, by his counsel, concedes that an instruction given by the Court below in his favor, is erroneous, this Court will not look into it fo determine whether the concesNiun be properly or improperly made,
OF 'TILE S1 ATE OF ARKA N SAS. Term, 18571 Blackburn vs: Morton et al, Where no loestion iS made in respect to the joinder of several plaintiffs in the action: this Court will consider any oh jer tion for such cause, if it eists, as having been waived, and if no notice be taken, in the brief, of an instruction objected to in the Court below, the objection will be considered as having been abandoned% The defendant, in an action of detnme for a slave, having proved five years possession, the Crairt instructed the jury that if they should find certain facts showing a iight of mopeity in the plaintiff, "they should find for the plaintiff, unless the:r shouhl also find that the defendant had, before the commencement of this suit, held five :Years peaceable possession of said slave, ' Held: that there was uo objection to the instruction that could militate against the defendant in view of the proof, Wheie in instruction is erroneous, and calculated to mislead the jury, and the vordirt w o uld have been different bad the instruction not been given, d new tiial will be awaided: When parties bring themselves within the tenAorial jurisdiction of our Courts, and one of them applies foi i eiliess, they must be held as submit ting to all the laws that have been passed fnr rrdrn. of such grievances as complained of and so, in such case, the statute of five years possession I Dig, eh, 153, sec, du will be held to vest a good title to the propertY, though the possession may have been -without the tam ito, ial limits of 0111 State: -1 /irk La boor ?Vic Cihwit Coort of Crawford copoiy The HOW FEI ix FE fii SON, Circuit j S• ;, ITeirrpsto-ad for the nploellurnt The depositions ought to have Leen excluded b-eonse tatr il h-fore :issue joinn -1 T/i7c5t 431 depositirius froth Alnharna wrre not affilientiented lry the certificate and seal of the clerk of a Court of record, and should have been excluded. Dig: 4-34, DIV ned-inetions I Veil tip the jury -wrre improper: Three = 5'r'[lf , is the linotation . in an action of detinue: and this ma y he relied on under thc gcn p ral issthe Saud P1 & Ev: 434; 3 Marsh. 305. The plaintiffs not showing a joint right conld not recover. 5 Enu :3; 4 Thiss 225; 10 Parge 450: The eontinuity of possession was not bro l cen by trespass or theft 2 Cathes' MT: 15:3. Walker & Green for the appellees. The objection to the depositions -was aeneral. No intrinsic objections are apparent
386 CASES IN THE SUPREME COURT Blackburn vs: Morton et al: [January upon their face. A gineral objection reaches the relevancy competency or legal effect of the testimony only. Garvin vs: Luttrell, 10 Hump. 16; Hoyes vs. Nance, 1 Swan 57. We admit that thc second iustruethin is erroneous; hut it Lould not have prejudiced the di f,ndarit's ease, and therefoic not a ground for reversal. Ba yless vs. Davis, 1 Pick. 206; Line vs. Combie, 12 id. 177. • The proof shows that the defendant resided and held possession of the negro in the Cherokee Nation ever since he boredit him: Can a title to property be acquired, by possession under the statute of this State, by one who has never been within its territorial limits ? It is a maxim of international jurisprudence that no State or nation can, by its laws, directly affect or bind property ont of its own territory, or hind persons not resident therein Story's Conf. of Laws, see_ 20. A conveyance or transmution of property by mere operation of law, operates only upon the priol■ertr within the territory of the Legislature. (Id. 411.) To acquire title to property by prescription, the possessor and the pro l ierty -must continue within the jurisdiction of the Lq2islature during the whole of the ja .(scribed i*ii=rd. See. 52.) Title by five )ears possession cannot he acquired by a person residing in the Indian Nation, because the owner cannot :-N ,4ert his claim in time 1Ir. :Justice Hanly delivered the opuin on of the Court: This ms an action of detinne, commenced in the Crawford Circuit Court, on the 5th Fe binary, 1855, tor a slave, at the slut of Allas J: Alorton and ffa rriet his wife, aml Elizabeth Alice Smith, an infant, by Wm: Walker her next friend. against the appellant. Plea, aoa 1 him 1: and isi,ne: Trial by a jur:!;-, a verdict and judguirnt for appellees: Alotion feel a new trial, assi■ming for grounds: 1st. That the Court permitted ilkgal evidence to go to the jury. 2,1 That the Court misdirected the jurl.: Id: That the erdiet was contrary to the ihstruetmons of the Court, and e:xessive. The motion for a new trial was overruled, and ipilellant
OF THE STATE OF ARKANSAS. 387 Term, 1857] -Blackburn vs. Morton et al, eepted. setting out the testimrnv and the Instructions given to the jury_ The following is the testimony: John Shields. of Dallas county, Alabama, by deed of the 16th October, 18411, in consideiation of the natural love and affee don lie lone to his somin-law, Girard Smith. and lus daughter Thurict, wife of Girard J.. conveyed the s Live Sr for
fitHoll- ethers, to the said (Aran] .1 ,—fint io trust as follow.,: 1, The said party Ilf "4PeriTid 1 , art (Girard J. Smith) is to hold pr.-session of said slaves, and lie entitled to the management and control of them, and to receive their labor ,hinl the profits :Irising from tlicir lahor fu ii the support and ma intend-1r— of the said partv of the second part, and Harriet his wife. during their Mint lives, and durMg . the life of the party of the second part, should he survive his said wife; and in case she sliould survive him, then for her support and marlitenanee, and that of her phi Wren hy the present, or any subseqllent her Fife 2. That the said party of the second part (Girard J. Smith) is to hold the legal titic to said negioes, in trust for the use mud bHia2fit of Eliabeth Alice and Felix, the children of the said party of the second part, and Harriet his wife, and any other children which the said Harriet may ilaye, either by the present or ;My subsequent marriage, to 1 qu g hlc- •11,-pled hetw[cr i them, share and ,-411!rro alike , at flu, dcath of the said party of : the seeraid part, should he survive his; wife. on at thy death of Har-riet, should she survive her husband. (1irard J. Smith:left I ),Illas comity Alabama, in 1848 or 1849, :Ind came to this state, bringiug . with hirn the slave in contro-■ersv, 1110y-1111 . r A\ ith several others of the slaves mentioned in the deed of trust, and died in the city of AT- ci p lcans, in the latter part of 1849, or in the early part of 1S50, leaving -Har-riet, kis wife, in the deed of trust named, and three . children. Elizabeth, Alice, Felix and Hen-Mom loin smviving. In July, 1851, Herrict, the widow, intermirriied itli the appelby. Morton, and in 1852 Felix and Hermion, the two youngest children of Girard Smith and Harriet. died before they attained
388 CASES IA TilE SUPEEAIE COURT Blackburn vs: Morton et at [January their majority, and without issue, leaving the appellee, Eliza-beth Alice Smith, the only surviving issue of Girard Smith and Harriet, them suryiviiv. The slaves mentioned in the deed ot trust bekwged to John Shields, the donor, at the time of the execution thereof, and Girard Smith held them in his possession, under the deed of trust, down to the time of his leaving Alabama. The above facts were established by tlw deed of trust itself, and the depositions of .1-ohn Shields, the donor named in the deed of trust, and William B_ and Edward T. Shields his sons Edward T. Shields, in addition to the facts above stated, deposed that after Smith's death. say in the summer of 185:2, he, as the agent of his sister Harriet, one of the appellees, went to Fort Smith, In this State, in cpwst of the A:1 ve Tom, in controversy in this suit, who is the same boy Tom in the deed of trust described as being named Toni, and aged fifteen years; and on his arrival at that place, aseertained that he was in the possession of the appellant, Blackburn, who resided in the Cherokee Nation of Indians. That both appellant and the stave being leyond the reach ■-f civil process, he was induced by the attnr-ne , %s whom, he consulted, to hire a man to bring, the slave to him, and by that means he obtained possession of the slave, whom he knew to the the identical same boy Tom mentione: 11I the deed of trust, :and started on his return home with him, whit n lie was arrested at appellant's instance, and taken to Vali Buren and whilst on his way, , with the slave, from Van Buren to Fort Smith, to answer the charge made by appellant, appellant, accompanied by sivi rdl others, too'v the slave out of possession: His understandin g was, that the slave was taken from him by virtue of a writ of replevin, or some other process At all events appellant directed the seizure and capture of the slave, The slave was worth thin $1,0011 _Morton, one nf the appellees, is the husband of his sister Harriet. the widcrw Girard .1-, SmIth. and ;ippellee. Elizaty tli Alice, is the only sors vi% ing child of the said Harriet. He further stated that appellant told him he ltim4 ht the slave iii coritiovci,\ from Giratd Smith.
OF THE STATE OF ARKANSAS. 389 Term. 1857] Blackburn vs Morton et a l. : Appellees also proved that the hire of the slave in question was worth from $100 to $125 per annum. This was all the prof it adduced on the part of the appellees. Appellant then proved that Girard J. Smith, by bill of sale, bearing date 26th October, 1849, siild the same slave to him. That at the time of the execution of the bill of sale. the slave was aged about 15 years, and that he was, at the time of the trial worth $800. That the appellant has resided in the Chero-kee Nation of Indians ever since he purchased the boy of Smith, and has during all that time, had the slave in his possession in the Nation. That Edward T. Shields obtained possession of the slave, in the manner by him stated above—that he was arrested upon a charge of laieeny, for the act, and, whilst under the arrest, the boy was rejdevied out of his possession at the suit of appellant; and that, at the time the slave 1V11,4 sl) reple-vir-d, Shields refused to say, in answer to an interrogatory propounded, that he recognized or knew the negTo, but said fie thought be knew him. The appellant objected to the reading of the depositions of the witnesses on the part of the appellees, all the proof on their part being presented in the form of depositions, sione of theni having been taken in Dallas county, Alabama, whilst others were taken in Missouri. The objections to the depositions were general and were overruled by the Court, and he excepted. Certain instructions were given to the jury, at the instance of the appellees. which were also objected to, at the time, and ex-eeptions taken by the appellant, : when they were given. The instructions, as given by the Court, we-Le as follows: "1. That if the lin y believe from the evidence, that the ne-gio man mentioned in the declaration, is one if the liegrops mentioned in the deed of trust executed by .Tolin Shields to _Girard J. Smith, and that be was in defendant's possession at any tinle fiethre the er immencement of this suit, and that he donned him under purchase from said Smith, and that, before the otrolowilorment of this Suit, Girard J. Smith in that deed of trust nanu 1, has Ifical,: mid his %Nidow, north t, late of the plaim tiff, int: I mai I il oithi plaiiitiff, Morton, and that :it the time of
390 CASES IN TIIE SUPREME COURT Blackburn vs: Morton et al. [January the commencement of this suit, the plaintiff, Elizabeth Alice. was the only surviving child of the said Harriet, they should find for the plaintiffs, unless they should also find that sail defendant had, before the commencement uf this suit, held five years peaceable possession of the said slave. 2d. That in order for the defendant's possession to give,him a title to the negro, it must appear hat the possession was continuous: and that if the jury find from the evidence that the said negro was in the possession of the plaintiffs, or their agent within five .■ ears nt , xt before the connnencement of this suit, they will disregard the evidence offered to prove title by possession, :it. That the variance between the names of the plaintiffs apparent in the declaration, and depositions, is of no consequence so that it appears that they are the same persons Blackburn, the defendant below, appealed, and assigns for error: That the Court below admitted improper evidence against the objection of the appellant. 2. That the Court overruled the litutiun of the appel lant for a new trial. l. Gineral assignment We will dispose of the errors assigned in the order in which the y severally occur. 1. 1 lii the Court below admit improper evid e nce against the •Ncetiems of the appellants I The record in this case show s that, before the return term of the orimnal writ, application was made to the clerk of the Couri below for leave to tal-e depositions in behalf of the appellees, an] that a ride wa entered accordingly, and after notice given, the l positions, which were the only evidence offered, on the part of the appellees, in the Court below, were taken under a regular commission, etc. It is insisted by counsel on the part of Abe appellant, that these depositions were not admissible. because taken before any issue was made op in the cause. Thera scents to he no provision of our statute requirmg.issws to be made up in law causes before a rine is entered to take
OF THE STATE 0 l o 1.:A'Cti_l_S, :U11 Term 1857] Blackburn vs, Morton et al: depositions It is therl fore -matter purely of practice. and wo are II 0- advised that there has been any -uniform rule of practice established on the subject. In the absence of such a rule, we arc constrained to hold, as we do in this ease. that depositions are not rendered irregular by- being taken before issue is joined in the cause to which they apply. If takn befofe Issue is formed, they are, as a matter of course, taken at the peril of the party who takes them ; for if they shimld be found inapplicable to the issue,s, when made up, as a consequence, they would not afford evidence for the party in consequence of the application and operation of the principle, that the 0114, 1701a and probata must agree. With this qualification depositions taken under the eir cumstanees are admissible. if regular in other respects, 'ati much so as if taken after issue formed. It does not appear 114 all the record before us, that the eertifi-cate of the clerk of the Probate Court of Dallas county, Ala-bama, which attests the official character of the justice of the peace before whom the depositions in that State were taken, is authenticated undel the seal of that Court, as contemplated by the statute in such eases. It appears, III Iwever, that the certificate of the Clerk to the depositions. coneludes thus: "hi witness whereof I have here--Huh, set inv }laud as '411011 clerk, and affixed the seal of said Probate Coil& of Dallas county, the same being a Court of record. at office in the town of Caliawba, etc." It is insisted, on the part of the appellant, that these depositions should have heel] excluded as; evidcuee fro the appellees, on account of this imission This Court wdl presume in favor of the Tegolarity, arid vo support of the jull , _illeat of the Court below, and this presumption is so violent in favor of the pro-eceding Id the inferior Court, that whim a defect is obserirmd xist in the record. which would affect the judgment of such Court, that the defect was occasioned rather by the omission of the clerk—a ministerial officer—than by the solemn aet of the inferior Court. See Broom's Leg. Max_ 729 Briggs vs. Clark. 7 How, (Mi.') Rep. 417. l7niiiijeoii vs. Franec,. same Smith ■ lierry, 1 Sni Mar. ! V ■ 1. Pinder vs. Felts. 2 same rirVI.
392 CAsEs IN THE SUPREME COURT Blackburn vs. Morton et al. [January Applying the principle thus stated, we are forced to intend in this vase, that the certificate of the Alabama clerk was authenticated by his seal, in the absence of affirmative proof to the contrary, and that the omissiOn, in the tianscript before us, was occasioned by the clerk of the Corart below in failing to annex a locus to the transcript, where the seal to the original document was affixed But it was really quite unnecessary for us to have considered or determined these objections to the depositions before us, for the reason, that the objection to the depositions was simply gi-neral, the cOunsel for the appellant in the Gout below failing to make hi:s objection specific or special. The rnle in such case being that a guneral objection to a deposition reaches the relevancy, 'competency or legal effect of the testimony, only. See Garvin vs. Luttrell, 10 Hump. 111: in which case McKinney S., in delivering the opinion of the Court, said: "We lndd that a general objection to the reading of the deposition, as in the piesent ease, will by constrned in this Court as referring merely to the'competenc y , or relevancy, or legal effect of the testimony contained therein; and will not be considered as embracing or extending to any mutter of form, 11r question of regularity, or authority in respect to the taking of such deposition: If it b-liable to objection upon either of the latter grounds, the specific exception must be pointed out with reasonable precision and ecitainty: and if ,,yerruled in the inferior Court, Must be ,t forth in the bill of exeeptions, and no exception, not thus ta' and set forth in the record, can -he raised or assigned as error in this Court To hold otherwise would, not I-infrequently, enable a party to obtain i reversal perhaps on some ground merely formal or technical, not made in the inferior Court, and which: it it bad been taken there. might have been easily obviated." See dlso, Duval vs. Ellis, 13 Mo. H. 203. Hughes vs. Nance, 1 SWIM H. 57. Sexton vs. Doek, 15 Ark. R. 345. 348. We have no hesitation, therefore, in holdin g that tbe Court blow ilid not elT in admittin, the depositions taken in thi,, Ca u, c, to be read at the trial thereof
OF THE STATE OF ARKANSAS. 363 Term. 1857] Blackburn vs. Morton et al. 2. Did the Court below err in overruling the motion of the appellant for a new trial ? The counsel for the appellant seems to have abandoned the third ground assigned in : his motion for a new trial, relying in this Court upon the one Ave have just conSidered, embraced in his first assi kcoment, and the remaining one viz: "that the'Court misdirected the jury." We will, therefore, in determinnig the question lastly propounded, proceed to cousider it in :reference to each of the three instructions given by the Court below at t'lre :instance of the appellees and against the objection of the''appellant. 11111:' As to the first instruction. There being- no question niade, either in the Court below, or in this Court; in respectotohtbe j oinder of the plaintiffs in this action,: we wilt consider the objection upon that score, if any exists, Ets having beerr waived , by the counsel. Conceding then that the appellees, under' the proof, had such a joint interest in the : subject of the suit ds' entitled them to join in an action for its recovery, we, will A onee proceed to determine the propriety of this instruction.' • • The peaceable possession of slaves, acquired after' the 196 Dec r, 1846, for the space of five years, shall be sufficient to give the 1. n, the right nf property thereto,: as against all persorls whatsoever, aml which may be relied on as m complete bar to any suit in law or equity. See Dig.: eh. 153, sec, 3; p. 943. With the concession above assumed, we can discover to , objection to this instruction, which could militate against the appellant, in view of the proof shown upon the record; We tliere-fore bold, as for as the appellant is concerned, that the, Court below did not err in this instruction. As to the second instruction— It is conceded on the part of the counsel for the appellees, that this instruction is erroneous. We shall not look into : it to determine whether the concession was properly or impropeily made. As to the third instruction— The objection to this instruction, if objectionable at all,: seems
394 CASES IN THE SUPREME COURT Blackburn vs. Morton et al. / [January to have been abondoned in'this Court by the counsel for the appellant. No notice is taken of it in his brief. It was thereforl on this account, that we ondtted, in the statement of the ea,c, to designate the supposed v ariance betlkeen the luthies of the appellees, as apparent in the declaration and depositions. We will therefore pass this, and proceed to consider the other ground for a new trial, set iorth in the motion. 3. Was the finding of the jury contrary to the instructions IA the Court We are of opinion that tlw jury were warranted in finding for the appellees under the second instruction, which theirvcown-sel has conceded to be erroneous. This instruction being el - roneous, and calculated to mislead the jury, we are irresistibly forced to the conchision, that if this instruction had not been given them, their verdict would have been different—certainly for the appellant. This disposes of the assignments and the questions growing out of them, except in relatn di to one point made by the counsel for the appellees in their brief, Tt . is insisted that the statute of five years possession cannot be successfull y inA okra hv the appellant under the facts shown by the record ; for the reason, that the appellant has resided with the property iii controversy, be - yond the territorial linuts of this State, in the 4:11erokee tion of Indians, ever since he bought the slaves in question from Smith, in October, 1849, when his possession commenced, averring that our statute—the one making five years peaceable possession of slaves, give to the possussoi the right of property against all persons—did not coimnence to oper a t .e upon th, e ject matter, or the parties to this suit, until they were brought, or voluntarily came, within the territorial limits of this State, and, consequently, within the influence of the laws thereof In support of this position, we have been referred, by tfie counsel, to the work of Judge Story on tlw Conflict of Laws. We have noted the citations made, and conceive the counsel has misapprehended the force and meaning of thu passages referred to. If the learmed anthor is not misunderstood b y US, we (Nun sa the subject with Parker Ch. : -That the laws of any State
OF TILE STATE OF ARKANSAS. 395 Term, 1857] Blackburn vs. Morton et al. cannot, by any inherent authority, he entitled to respect extra-territorially, or beyond the jurisdiction of the State ,which enacts them, is the necessary result of the independence of distinct sovereignties." (See Blanchard vs. Russell, 13 Mass. R 4.) In applying the principles we have laid down in reference to the possession of the slave by the appellant, under the circumstances indicated by the record, we have not called to our aid any foreign or extra-territorial laws or statutes ; but on the contrary, the principle has been proclaimed, and the doctrine maintained: "that the recovery must he sought and the remedy pursued within the time prescribed by our own law—the le:r fon-- without regard to the place where the cause or its merits originated." ( See Story's Conf. Laws, 487.) And further, as held in McElmoyle vs. Cohen, (13 Peter's R. •12,) that, "prescription is a thing of policy growing out 'of the experience of its necessity: and the time, after which suits or actiouq Rhall be barred, has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by whicli t eYer-ei ses its legislation for persons and property within its jurisdiction." Applying these principles and authorities to the case before us, and the result is inevitable, that the parties having brought themselves within the territorial jurisdiction of our Courts, to which one of them has applied for redress, they must be held nq quhmitting to 011 trho laws, which have been passed_ for the redress of such grievances as are complained of ; as much si■, and to the same eatent as if they were citizens of this State, and had resided here contimiously and uninterruptedly since the cause of action in this behalf accrued. ( See 22d Ala. R. 339. ) And we are rather confirmed than shaken in the conclusion just expressed, by the eases of Bulker vs. Roachc, (11 Pick. R 36, ) and Leroy vs, Crowningshield, ( 2 Masons R. 151.) In eoueluqion thoroforo, wo aro fnrood tn brild thnt there iq error in the judgment of the Crawford Circuit Court in respect to the matters hereinbefore pointed out. On account of these errors, the judgment is reversed, and thc cause remanded, to be proceeded in. etc.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.