As. TERM, 1856. MCNEILL V. ARNOLD. 154e] MeNEILL V. ARNOLD ET AL. S. C. 22-479. The circuit court has power to amend its record. SO as to make it speak the truth, &c. (King & Houston v. State Bank, 9 rk. 183; Arrington v. Con- rey, ante, 100.) Slaves are conveyed to a trustee for the separate use of the wife, aud upon her death to be divided unto g her heirs; upon tate death of the wife, the trust is executed, and an action for the recoverv of the slaves must be brought in the name of the heirs, and not of the trustee. A trust. e, after the tilts , is execu'ed and his in- terest in the trust property is ertninated, is a cum- petent witness in a suit affecti g the title. The stilt nt - law of ano • her S-ate can be proved (Orly by the production of the statute, and not by • paru , l; but the writ ten laws, custom. usage, practice, of oth:r S ales, may be proved by the tesd- o.ony of witnesses skilled therein. A deed executed in ano • her State, in the absence H of any testimony that the laws of the State author- ized its registration, is not adMissible in evidence, merely upon certificates of its acknowledgment and registration, without other prof of its execution. If a deed be duly executed, Se., in another state at cording to the . laws thereof, it is unnecessat y, to prtect the rights of the grantee, that it should be recorded in this State, upon the removal of the ary question is to be settled in this parties and the propetty. (CfNeill v. Henderson, 15 Ark. 235.) Where a deed or instrument of writing is read in evidence, without ciii etent proof of its executb n, at January term, 1835, and after it was and such proof is afterwards mad . , though it was docketed and before joinder in error, irregular to p-rmit it to be read, the irregularity is cu ed by the proof aftrrwards made. When the question propounded to a witness, in- continuance, for the purpose of procurdicates the answer it is desired he should make, or ing an amendment of the record in the furnish him with oue favorable to the point sought. court below, 'and bringing up a tranto be established by the examiner, it is leading. (Clark ad. v. Moss et. al., 11 Ark. 741; Pleasant v. aate,15 Ark. 624; Rogers v. Diamond, 13 id. 473.) July term following, having in the Where property is in the possession of another, meantime, procured the amendment who has purchased and uses it as his own, the below, they moved for a certiorari in owner may bring replevin f . r it without a previous demand. (Pater ad v. Fra:ier, lt 237; Ark. T. Henderson, 15 Ark. 1:35.) Where-the wife has a separste estate in slaves, was filed, with an agreement of the • d the husband and wife live together, the posses- counsel sion of the husband is the possession of the wife. wheie a party suing los a chattel proves that he purchased it ft oni one in possessi •11, he makes a prima fade ease of title, and the onus pmbandi is shifted to the opposite party. 1559 s a general rule the possession of the agent is the posses- on of the principal. After plaintiffs had pros ed, by Ille agent of the person unuer whom hey claimed title to the that the matter contained in the trail-
personal property, that he, as agent, had pur-chased the property for his principal, the defend-ant, by the same witness, on cross-examination proved that, at the time of the purchase, a bill of sale was taken : Held, That the plaintiffs were not tequired to produce the bill of sale. If the authority of the agent is shown to be in wait ng, the writing must be produced and proved, or its tion-productivn accounted for, in order to ad-mit of secondary evidence of the agency. Wbere the husband and wife bring au action for teplevin for the slaves of the wife, and they are taken under the wait and delivered by the sheriff to the husband, this is such a reduction into possession by the husband as, for the purposes of the suit, will perfect his title to the slaves, in the event of the wife's tit ath after the seizure and delivery, and lief re judgment. Toe aefendant cannot take advantage of a vari-ance between the declaration and writ, after a plea in bar to the action. Appeal from Dallas Circuit Court. ON. THEODORIC F. SOR-RELL77: , Circuit Judge. Yell & Carlton , for the appellant. Wotkins & Gallagher, and Compton, for a ppe I iee. "ENGLISH, C. J. A prelimin- [9157 ease. The case was brought here, on appeal, the counsel of the appellees obtained a script thereof by certiorari. At the order to perfect the record here. There-upon, a transcript of the amendment . of the parties, that it should have like effect, as if brought here on certiorari. The cousel for appellant insist that the court below had no power to make the amendment, after the lapse of the term at which the cause was tried, and
MCNEILL v. ARNOLD. VOL. iT script of the amendment, ought not to it, has been sufficiently discussed and be treated as part of the record here. settled in the case of King & Houston The matter of the amendment is this : v. The State Bank, 9 Ark. 185, and It seems that, on the trial of the cause, Arrington v. Conrey et al. 17 100. The the appellees read in evidence the orig- proceedings to amend in this case beinal trust deed from Samuel Burke to ing substantially in conformity with Nathan Glover, execut‘td, acknowl- these decisions, we shall treat the mat-edged and recorded in Mississippi, un- ter of the amendment, as part of the der which they claimed title to the record in the cause here.' slaves sued for. After the trial, they ON THE MERITS, &Cl.—In August,. obtained leave of the court to withdraw 1853, Rufus E. Arnold (suing in right the orignal deed, on filing a copy, de- of his wife Mildred M). and Mildred siring to use the original in another M. Arnold his wife, and the said Rufus suit pending in Ouachita county. They E. Arnold suing as the guardian of accordingly withdrew the original, Joel Burke, Samuel Burke, Malcom substituting in lieu thereof, a certified McNeill Burke, minors, &c.. brought an copy of the deed, from the record there- action of replevin, in the detinet, of, in Mississippi. But the clerk against Hector McNeill, in the Dallas omitted to enter of record the order of circuit court, for the recovery of a ne-court, permitting the original deed to gro woman named Lizzy, and her be withdrawn, &c., and failed to note children called Eliza, Aga, Ann, the filing of the copy substituted. Phcebe and an infant child without a That, in consequence of these omis- name. sions of the clerk, and the copy of the The declaration alleged that the de-deed from the Mississippi record, so fendant, on the ist day of September, substituted for the original, being 1851, received the woman Lizzy, and transcribed in a bill of exceptions her children Eliza, Aga, Ann, and 158*-1 taken at the trial, and Throught Phcebe, the property of the plaintiffs, up in the original transcript, it was from one Virgil J. Burke, to be made to appear that the appellees read delivered to the plaintiffs, with in evidence, upon the trial, the record their increase, on request, &c., copy of inal, &c. said deed, instead of the orig- and that, after the reception by the defendant of the woman Lizzy, she gave The court below, in term, upon ap- birth to a child, the name and sex plication of the appellees, on due notice whereof were unknown to the plaintiffs, to the appellant, and upon satisfactory and which from its birth had been, and proof of the facts stated above, ordered was still, in the possession of defendant, the original deed, and certificates at- 5&c.; and the defendant, al- P159 tached thereto, to be re-filed ad made though often requested so to do, had part of the record, as of the date it was not delivered said slaves, or any of origin ally filed on the trial of the them, or said increase, to the plaintiffs, cause. &c. A transcript of the proceedings to The writ, reciting t hat the plaintiffs amend the record, including the orig- complained that the defendant un-. inal deed, &c., so re-riled, was after- justly detained from them the woman wards made out, and brought here, as Lizzy, and her four children, Eliza, upon certiorari, as above stated. Aga, Ann, and Pheebe, commanded The power of the circuit court to the sheriff, upon the plaintiff§' giving amend its record, so as to make it 1. On amending the record see McDonald v, speak the truth, and the mode of doing Watkins, 4-629, note I.
JAN. TEEM:, 1856. MCNEILL V. ARNOLD. bond, &c., to replevy said "goods and number of points raised pending the chattels," and deliver them to the trial. The motion was overruled, and plaintiffs, &c. the defendant excepted, ancl appealed The sheriff returned upon the writ, to this court.. that on the 3d of August, 1853, the There being no total want of eviday it issued, he replevied and de- dence to sustain the verdict of the jury, livered to the said Rufus E. Arnold, upon any material matter in issue, the • the slaves Lizzy and her four children, evidence need not be stated further Eliza, Aga, Ann, and Phcebe—no than may be necessary to understand mention is made in the writ : or the re- the several questions of law decided by turn of the sheriff; of the unnamed in- the court, and complained of as erronfant child of the woman Lizzy, de- eous by the appellant. scribed in the declaration. 1. It is insisted by the appellant, At the return term (Sept. 1853), the that the suit should have been brought defendant filed three pleas : 1st. Non in the name of Nathaniel Glover, and detinet; 2d. Non eepit (?1 and third, nnt in the names of the appellees. property in himself, to which issues The appellees claimed title to the were made up. slaves, under the following deed, pur-At the September term, 1854, the porting to have been executed by
death of Mrs. Arnold was suggested, Samuel Burke, &c. and the cause was ordered to abate as "This deed of bargain and sale, made to her, and progress in the name of the and entered into, this, the 15th day of other plaintiffs. Whereupon, the cause March, A. D. 1841, between Samuel was submitted to a jury, who returned Burke, of the county of Christian, and a verdict that the slaves Lizzy, and her State of Kentucky, of the first part, four children, Eliza, Aga, Ann, and and Nathaniel Glover, of the county of Plicebe, and also the unnamed child of Lownds, and State of Mississippi, of Lizzy described in the declaration, the second part, and Luey Ann Burke, were the property of the plaintiffs, of the county of Noxube, and of the and assessed damages by way of hire, State last aforesaid of the third part., at S116.66. The court rendered judg- witnesseth: That whereas, the said ment, as *follows, upon the verdict party of the third part, heretofore, to-"It is therefore considered by the wit : on the day of — A. D., 1834, court, that the plaintiM, Rufus E. intermarried with Virgil J. Burke, son Arnold, in right of his wife, Mildred of the said party of the first part ; and M. Arnold, and the said Rufus E. whereas, the father of the party of Arnold, as guardian of Samuel Burke, the third part upon such marriage Joel Burke, and Malcom MeNeill gave and conveyed to the said party of Burke, minors, do have and retain the the third part, and her said husband, possession of the negro slaves in said property of great value, which, by declaration mentioned, and that they misfortune, and bad management of recover of, and from said defendant, the husband of the party of the third Hector McNeill, the sum of $116.66, part, has been squandered and spent ; for their damages sustained, besides all and whereas, the said party of the their costs," &c. first part, being desirous and anxious The defendant moved for new to settle upon and convey to the said trial, on the grounds that the party of the third part, and the heirs verdict was contrary to law now begotten, and the heirs to be be-and evidence; and that the court gotten of her body by the said Virgil 1601 9erred in its decisions upon a J. Burke, the property hereinafter Izt
MCNEILL V. ARNOLD. VOL. 17 mentioned, to be free from the control, property of the husband of the party of interference, managementlor debts of the third part, and free from any con-'-,he said Vitgil J. Burke ; therefore, be trol or dominion by him ; and upon it known by this deed, that in con- the further trust also, that if the said sideration of love and affection to- party of the third part shall depart wards my said daughter-in-law, this life, before tlke heirs of her bofiy the party of the third part, and aforesaid shall arrive to the age of
the heirs of her body begotten and twenty-one years, then the property [OV] *to be begotten by the said Vir- aforesaid and all the income thereof, gil J. Burke, and in the further con- shall be absolutely vested in the said sideration of the sum of ten dollars children by the party of the third part cash in hand paid the party of the first left aforesaid ; but if the party of the part, by the party of the second part, third part shall not depart this life,
the receipt and payment of which is then, in that case, the property before hereby acknowledged, have, the day of mentioned, and its increase, shall re-the date hereof, granted, bargained, main in the trustee for the purposes sold and delivered unto the party of the Aforesaid, until the youngest child shall
second part, the following described become of age, and then an "'ab- [*1132 property, to-wit : One negro woman, solute title shall vest in the said heirs Lizzy, aged twenty years ; one boy, to an equal portion of said property Thomas, aged twelve years ; one girl, and its increase ; and the party of the aged three years; one girl, Louisa, two second part does hereby agree and con-years; one negro boy, Nathaniel, aged sent with the other parties to this two months ; one wagon, one barouche, deed, to do and perform all and every one sorrel horse, two dark bay horses, act that may be necessary to carry into
and two feather beds aud furniture, to full effect this deed. The said party of have and to hold, unto the party of the the second part is hereby vested with second part in trust, and upon the con- full aud complete power so to manage Ilitions hereinafter mentioned ; that is the property aforesaid, and the increase to say, the said party of the second thereof, that the same may be sub-part has the aforesaid property convey- jected and applied as this deed directs.
ed to him in trust for the party of the third part, and the heirs of her body to this deed have hereunto set their be gotten by the aforesaid Virgil J. Burke ; the said party of the second part binds himself to hire out, at the end of each and every year, said prop- erty, and apply the proceeds thereof to the maintenance and education of the children of the party of the third part ; -or the said party of the second part, if he thinks proper, may permit the aforesaid property to remain in the possession of the party of the third part, and the labor thereof to be appro- ration are her children ; that Mrs. priated in the education and mainte- Burke, wife of Virgil J. Burke, died in nance of the children of the party of the year 1850, leaving four minor chil
the third part as aforesaid, the pro- ceeds arising from the labor thereof to be kept distinct and separate from the brought.
In witness whereof, the parties to hands, and affixed their seals, this 15th day of March, A. D. 1841. his [SEAL] SAMUEL BURKE, mark. NATHANIEL GLOVER. The testimony introduced upon the trial, conduced to prove that the woman Lizzy sued for, is the same woman named in the above deed ; that the other slaveS described in the decla-
dren, Samuel, Malcom, Joel, and Mildred AL (who afterwards married Arnold), and in whose behalf this suit was
JAN. TEEM, 1856. MCNEILL V. ARNOLD. It is manifest that, by the terms of the deed, upon the death of Mrs. Burke, the title to the slaves thereiL mentioned, passed out of Glover, the :zustee, and vested absolutely in the children of Mrs. Burke. Upon her death the trust became executed, and there remained nothing for the trustee to do. The action was therefore, prop- erly brought in the names of the ap- bate court of said county, do hereby pellees. Lzptrot ad. v. Holmes, 1 Kelly 381 ; Jones v. Cole, 2 Bailey's Rep. 330; Bradley v. Hughes, 11 Eng. C han. Rep. 368; Tullet v. Armstrong, 17 Eng. Chan. Rep. 3. It follows, also, that Nathaniel Glover, the trustee, was a competent witness in the cause, his interests hav- ing terminated upon the death of Mrs. Burke. Nor did the court err, in in- structing the jury, at the instance of the appellees, against the objection presents, greeting : Be it known, that 1631 '--of the appellants, as follows : John B. Roberts, whose name is sub-3d. That the_ right of possession to scribed to the annexed certificate, was, the negro slaves accrued to said minor on the day of the date thereof, clerk of heirs, immediately upon the death of the probate court of Noxubee county, Lucy Ann Burke, by the operation of in the State of Mississippi ; that his at-the deed read in evidence by said testation to the annexed certificate is plaintiffs ; and that all right and title in due form of law, and made by the to said negro slaves immediately vested proper officer, and that full faith and said heirs, upon the happening of said event." 2. Did the court err, in permitting the great seal of the State, to be here-the appellees to read in evidence, the unto fixed. Given under my hand at original deed of trust, above copied, the city of Jackson, this 19th day oi upon the proof produced by them of May, A. D. 1854. its execution ? To the deed were attached the fol- lowing certificates "THE STATE OE MISSISSIPPI, Lownds County. f Personally appeared before me, Hend- Abner A. Stith, who, being sworn, statley S. Bennett, judge of the 6th judi- ed that "he was a practicing attorney cial district for said State, the above in the State of Mississippi, at the time named Samuel Burke and Nathaniel of the date of said deed, and it was Glover, and acknowledged that they his opinion that the law of said /State, signed, sealed and delivered the forego- ing deed on the day and year therein to be recorded. That he heretofore ex-mentioned, as their act and deed, and amined a copy of said deed ; thought for the purposes therein expressed.
Given under my hand and sea/, the 15th day of March, A. D., 1841. [SEAL] HENDLEY S. BENNETT, Judge 6th Jud. Circuit, Miss " "THE STATE OF MISSISSIPPI, Noxube County. j I, John B. Roberts, clerk of the procertify that the foregoing annexed deed of trust was received in my office for record, the 25th day of May, A. D. 1841, and duly recorded in deed book D., pages 466, 467 and 468. This 8th June 1841. Given under nay hand and seal of office, at Macon, this the 8th June, A. D. 1841. JOHN B. ROBERTS, Clerk." 'To all who shall see these p164 credit are due to his official acts. In testimony whereof, I have caused By the Governor : [L. s.] JOHN J. MCRAE. WM. H. MUSE, Secretary of State." Before the appellees offered to read the deed in evidence, they introduced at that time, required such instruments it had been properly acknowledged and
MCNEILL V. ARNOLD. VOL. 17 recorded ; that laws of Mississippi in that State, and usage there, the de-relation to recording of such deeds fendant was so far a party to the recsomewhat similar to laws of Arkan- ord against the principal, as to be sas." bound to take notice of the proceedings Upon the certificates attached to the against him, and also, of the subse-deed, and the testimonY of Stith, the quent proceedings against himself, as court permitted the appellees to read the bail. Now, we think it too clear the deed to the jury, against the ob- for argument, that it was competent jection . of appellant. Was it compe- for the plaintiff to prove by witnesses
tent for the appellees to prove the reg- that such was the law of North Caroistration statutes of Mississippi, by pa- lina. It was the only way to establish it rol, without any showing that a higher here, for it was their common unwritten grade of evidence could not he ob- law, provable here as matters of fact tained? are to be proven. And upon recurring In Barkman v. Hopkins et al., 11 to the evidence, it was very clearly es-Ark. 168, Mr. Justice Walker said : tablished, not only by the opinion of "The plaintiff offered the deposition of witnesses, who were of the profession, one skilled in the laws, and familiar and in the practice of the law, but by 'with the practice of the State of Louisi- the judicial decisions of the court. ana, and also the laws of the State there, in Woodfork v. Broomfield, 1 of Louisiana, purporting to be pub- Murphy 187." 1651 "lished under the authority of By referring to the transcript on file the State, which were objected to as in this court, in the case of Bark»zan v. incompetent. The particular grounds Hopkins, et al., we find that the wit-of the objection are not pointed out. ness, who gave the deposition referred The deposition appears to be regularly to in the opinion of the court, and who taken, and we think the evidence com- wai a practicing attorney of Louisiana, petent legal evidene ,' for the purpose stated that, by law, usage, practice and of proving the laws and practice of that decisions of the courts of Louisiana, State, which before the circuit court service of citation on one of the part-upon the trial of the case required to be ner:3 of a firm, authorizes proceed4ngs
proven as any other fact necessary to and judgment against the members of sustain the isbue. 111cRea v. Malton,13 the co-partnership, &c. Pick,. 49, is in support of this opinion. *Messrs. Watkins & Curran, P166 Upon this point we think there was no the counsel who argued the-casein this error., court, in favor of the competeocy of We do not understand the court as the deposition, said: intending to decide, in this case, that "The unwritten law, customs and the statute or written laws of Louisiana, usages of a foreign country, or another were properly proven by parol. The State, may be proved by parol. 3 Phil. case of MeRea v. Mallon, 13 Pick., re- Ea. 1142, and cases cited, 6 Cranch. ferred to in the opinion, does not so 274; 15 Serg. & Rawle 84; and it does
hold. In that case the court said: not appear that the law, under which "The defendant has objected to the the service upon one partner is good mode of proof, viz: by the evidence of service upon the firm, was in writing; witnesses, that the proceedings were and the laws of Louisiana were also accbiclin g to the law of the State of proved by the printed statutes, under North Carolina, and that by the law of our statute "
2. On foreign laws, &e., see Barkinan v. Hop- tins, 11-168, note 1.
In the case now before us, it must be understood that Stith testified as to the
JAN. TERM, 1856. MCNEILL V. ARNOLD. statutes of Mississippi, because, the In Robinson v. Clifford, 2. Wash. C. registry system, both in England and C. Rep. 2, the court said : " The statin the States of the Union, is statutory. ute or written law of foreign countries, Story, in his CONFLICT OF LAWS, should he proved by the law itself, as sees. 640, 641, 642, 643, 644, says: "The written. The common, customary or general principle is, that the best testi- unwritten law may be proved by witmony or proof shall be required which nesses acquainted with the law. the nature of the thing admits of : or, To the same effect are the following in other words, that no testimony authorities. Packard v. Hill, 2 Wend. shall be received which presuppotes 411; 4 Hill & Cowen' s Nates to Phil. Ev., better testimony attainable by the part 2, page 330, and cases cited ; Livparty who offers it. And thiS applies ingston v. Mar. Ins. Co., 6 Cranch 274; to the proof of foreign laws, as well as United States v. Otega, 4 Wash. C. C. of other facts. * * * * Generally Rep. 533; Dougherty v. Snyder,15 Serg. speaking; authenticated copies of writ- Rawle 87; Kinney v. Clarkson et al.. ten laws, &c., of a foreign government, 1 John. Rep. 394; Hemphill v. The are expected to be produced. For it is Bank of Alabama, 6 Sm. & Mar. 50; not to be presumed that any civilized 1 Id.177 ; Camparret v. Jarnegan, 5 nation will refuse to give such copies Blackf. 375 ; Tyler v. Trabune, 7 B. duly authenticated, which are usual Mon. 306; 7 Monroe 584; Gardner v. and necessary for the purposes of ad- Lewis, 7 Gill Rep. 379. ministering justice. It cannot be pre- Mr. Greenleaf, in his work on EVIsumed that an application to authen- DENCE, vol.1, secs. 486, 487, 488, 489, ticate an edict or law will be refused; states the law. on the subject to be as but the fact of refusal must be proved. stated by Story in his Conflict of Laws, But if such refusal is proved, then, in- above copied, but in a note to sec. 487, ferior proofs may be admissible. Curch he cites-the case of Baron De Bode ;v. v. Hubbart, 2 Cranch. 237. * * " Reginam, 10 Jur. 217, where it was The usual modes of authenticating for- held in an English court, that it was
eign laws (as of foreign judgments) are, competent for a learned French advoby an exemplification of a copy, under cate to prove a decree of the National the great seal of the State; or by a copy Assembly of France, without an at-proved to be a true copy, or by the cer- tempt to obtain a copy of the law tificate of an officer authorized ny law, tself. which certificate must itself be duly Whatever respect may be due to this atithenticated. * But for- decision, it is well settled by the cureign unwritten laws, customs and usa- rent decisions in this country, that ges, may be proved, and indeed mtist where it is necessary to prove the statordinarily be proved by parol ev- utes of one State in the courts of an-idence. The usual course is to other, they must be produced, but that make such proof by the testimony the unwritten laws, custom, usage, of competent witnesses instructed in practice, &c., may be proven by the the law, under oath." But, fin- teatimony of witnesses skilled therein. 1671 *ally, adds the same author : The 1st section of the 4th article of the " The mode, by which the laws, rec- constitution of the United States, de-ords, and judgments of the different clares that " full faith and credit shall States composing the American Union, are to be verified, has been prescribed be given in each State, to the public by Congress, pursuant lo an authority acts, records and judicial proceed-given in the constitution of the United ings of every other State ; and the States," &c. Congress may, by general laws,
MCNEILL V. ARNOLD. VOL. 17 1689 *prescribe the manner in which cates attached and the testimony of such acts, records and proceedings shall Stith. Dixon v. Thatcher et al., 14 Ark.. be proved, and the effect thereof." The Rep. 147; Wilson v. Royston, 2 Ark. act of Congress of May 26th, 1790, Rep. 327 ; Stevens et v. Bomar, 9 passed in pursuance of this clause of Humphrey's 546; Brown v. Hicks. 1 the constitution, declares, that " the Ark. 233, note 2 thereof, 243. acts of the Legislatures of the several The court below did not err in States shall be authenticated by hav- refusing to sustain the motion ing the seal of their respective States of the appellant to exclude the affixed thereto." Digest, page 87. But deed, because it had not been re-this method of authentication is not *corded in this State. This was r169 regarded as exclusive of any other not necessary in order to protect the mode which the States may respective- rights of Mrs. Burke and her children. ly adopt. 1 Greenl. Ev., sec. 489. 0' Neill v. Henderson, 15 Ark. Rep. 235. Hence, our Legislature has provided, The 6th instruction moved by the apthat " the printed statute books of the pellant, and refused by the court, re-several States and Territories of the lates also to the proof of the execution United States, purporting to have been of the deed. The first clause of the in-printed under the authority of such struction, that " the plaintiffs must in-States or Territories, shall be evidence troduce the best evidence to prove the of the legislative acts of such States or deed of trust, that the nature of the Territories," Digest, page 490; see case will admit of," was correct as a Clark v. Bank of Mississippi., 10 Ark. general principle of law, and applica-516 ; May v. Jameson, 11 Ark. 377 ; ble, as we have seen, to the mode of Dixon v. Thatcher 14 Ark. 141. And proving the registry acts of Mississippi. the Legislature has further provided, The second class of the instruction, that " copies of any act, law sa res du- is as follows: "That a certificate made tion, contained in the printed statute by the clerk and the Goveinor, and an books of any of the States and Terri- acknowledgment of said deed in the. tories of the United States, purporting State of Mississippi, is not the best evito have been printed by authority, and dence ; but there must be first direct w:h ich are now, or may hereafter be, proof of the original, or the loss of the deposited in the office of the secretary original, before the certificate of the of this State, and required by law to be clerk and Governor will be admitted, kept, certified under the seal of the as evidence in this case." Secretary of this State, shall be ad- There being no competent evidence to mitted as evidence." Digest, page. 490. prove that the laws of Mississippi au-These several modes of procuring thorized the registration of such deeds, authenticated:copies of the statutes of the certificates attached to the deed sister States, when required as evi- in question amounted to no proof of dence in our courts, are so ample that its execution. there can be no necessity of resorting Had it been proven that the laws of to parol testimony to prove them, the Mississippi authorize the acknowledgaccuracy of which depends so much ment and recording of such deeds, and upon the memory, skill, &c., of the make the original deed with the certi-witness. ficates of acknowledgment and regis-The court below, therefore, erred in tration attached, or a certified copy permitting the deed of trust to be read from the record, admissible as evidence in evidence to the jury, with no other without further proof of execution, the proof of its execution than the certifi- original deed, with such certificates, or
JA N. TERM, 1856. MCNEILL V. ARNOLD. a copy from the record, when properly scribing witness to the deed, if Glover authenticated under the act of Congress, saw it executed, he was as competent of March 27th 1804, (Digest, chap. on to prove the fact as the grantor, or Authenication, sec. 2), would, by virtue Bennett. It would be a question of of that act, have the the same faith and credibility between . the witness for the credit, as evidence in our courts, as jury to determine, and not of corn-they have by law or usage in the courts petency. The question of superior and of Mississippi. Swift v. Fitzhugh, 9 secondary evidence does not arise in Porter 39 ; Smoot v. Fitzhugh, Id. 72; this instance at all. Mitchell v. Mitchell, 3 Stew. & .19brt. 81; But there is another decision of the Tatum v. Young, 1 Porter 310; Owings court that must be considered in con-V. Hull, 9 Peters's Rep. 627; Leev. Mat- nection with the proof of the execution, thews, 10 Alabama 62; Rochester v. To- of the deed. The appellant took the dep-ler, 4 Bibb. 106; Pennel's Lessee v. osition of Samuel Burke, by interroga-1Veyant et al., 2 Harrington 505; Rent- tories. There are five interrogatories 1701 horn v. Doe, 1 Blackf. *159 ; 1 and responses thereto ; the 2d, 3d and Green!. Ev., sec. 484; Buckmaster et al. 4th of which the court suppressed upon v. Job, 15 Illinois Rep. 328. the motion of appellees, on the ground It is insisted by the appellees, that that the interrogatories were leading, the execution of the deed of trust was &c.,..and appellant excepted. The depsufficiently proven by the testimony osition is as follows : other than the certificates attached "1st. Question: Examine the thereto. It is true, that after the deed paper . marked A, and state if it is, was admitted in evidence by the court, *or not, a hill of sale executed r171 upon the certificates of acknowledg- by you to Hector McNeill, for certain ment, registration and authentication slaves therein mentioned? thereto appended, Nathaniel Glover, Answer: I believe it to be the same the trustee in the deed, and the se6ond bill of sale, I executed to Hector Mcwitness introduced by the appellees, Neill." test ; tied that Samuel Burke signed the (The bill of sale here referred to is a deeu, that he executed it, Ste. That quit claim bill of sale from the wit-witness was present when he acknowl- ness to McNeill, for the slaves Lizzy, edged it before Judge Bennett, &c. and her children, Louisa, Aga, Eliza, Though it was irregular and contrary Phcebe aud Ann, dated 2Ist July, 1851, to the usual practice for the court to reciting that Virgil J. Burke had pur-permit the deed to be read to the jury, chased Lizzy, the mother of the chiluntil some competent proof of its ex- dren, from one P. Allen, of Monroe ecution had been pioduced, yet it was county, Mississippi, and taken the sufficiently proven after its admission, bill of sale of Samuel Burke, dated the irregularity was cured, and no in- 16th of October, 1840, and had of late jury resulted to the appellant of which• sold the slaves to McNeill.) he could complain here. "2d Question: State if you ever ex-It is insisted by the appellant, that ecuted a deed of gift for the negroes the grantor in the deed, or Judge Ben- mentioned in said bill of sale, or any nett, before whom it purports to have of them to the heirs of Virgil J. Burke, been acknowledged by him, was more or any other person? competent to prove its execution than Answer: I never did, to the best of Glover. That his testimony was of an my recollection. inferior grade. There is nothing in 3d Question: Did you, or not, ever this objection. There being no sub- have any interest in said slaves, except
MCNEILL V . ARNOLD. VOL. 17 by a bill of sale executed to you ny P. The testimony conduces to prove, Allen, at the instance of Virgil J. that Virgil J. Burke and wife removed Burke, and without your knowledge? from Mississippi to Arkansas, in the Answer: I never had any interest yearll849 or 1850, bringing the slaves in them, other than the bill of sale, with them. That on the 16th of April, and that I have never seen, and know 1851, and after the death of Mrs. nothing of it only by hearsay. Burke, Virgil J. Burke sold the woman 4th Question: Did you, or not, ever Lizzy, and her children, Louisa, Aga, pay anything for said slaves? Eliza, Phcebe and Ann, to McNeill, Answer: I never did. the appellant, for $2050, executing to 5th Question: Did or not Virgil J. him a LIM of sale therefor. That, from Burke tell you he had bought said the time McNeill purchased the slaves slaves, and had the bill of sale made until the bringing of this suit, he to you to prevent his creditors from claimed, managed aud controlled them taking them? as his own property, and that during Answer: He told me he took the the time, he offered to sell one of them biff of sale in my name, but did 'not to one of the witnesses. No demand state his object " was proved. What constitutes a leading question At the instance of the appellees, and was well enough defined in Clark adx. against the objection of appellant, the v. Moss et al., 11 Ark. 741. Where the court charged the jury as follows: question indicates to the witness the 2d. "If the jury believe, from the answer it is desired he should make, or evidence, that the said defendant exerfurnishes him with one favorable to cised such acts of ownership over the the point sought to be established by said negro slaves, at the time of, or be-the examiner, it is leading. See also fore the institution of this suit, as to Pleasant v. The State, 15 Ark. Rep. be inconsistent with plaintiff's title to 624; Rogers v. Diamond, 13 Ark. 474. the same, it waives a necessity of a de-1721 "'The second interrogatory was mand for the same." not leading. The third was. The On the same point the appellant fourth was not. The fifth, though not moved the following instructions: 3d. suppressed by the court, was clearly "If the defendant purchased the leading. negroes for a valuable consideration, The secontl interrogatory and re- supposing that he was acquiring a good sponse, related to the execution of the title, demand must be made before the deed of trust by Samuel Burke. He action will lie." states that he never did execute it, to *8th. "If the jtiry believe, F173 the best of his recollection. Glover from the evidence, that the defendant testified that he did. The statement was a bona fide purchaser of the slaves of both of them should have been in controversy for a valuable considerasubmitted to the jury, and it was their tion, and has exercised no acts of own-province to pass upon the relative ership over said slaves to defeat the credibility of the witnesses, and to de- plaintiffs in their claim, demand of the termine the truth of the matter, from slaves is necessary before the action all the testimony before them, relative will lie, and without it the jury must to the execution of the deed. find for the defendant." 3d. The next question arising upon Each of these instructions the court the record is, whether the appellees gave, with the following qualificatimis should have demanded the slaves of "Unless the defendant did acts inconappellant before suit. sistent with the title of the plaintiffs,
JAN. TERM, 1856. MCNEILL v. ARNOLD. by selling or attempting to sell, or any In commenting upon this instruc--other act not consistent with the plaint- tion, this court, by Mr. Chief Justice iffs' title, then no demand was neces- Johnson, said : "The very reverse of sary." the instruction would seem to be the Iu the case of Pirant v. Barden, 5 law. Where a party comes lawfully Ark. 81, it was doubted whether re- and peaceably into the possession of plevin in the detinet would lie, except property, whieh he treats and believes in cases of bailment, actual or con- to be his own, instead of entitling him-etructive, under our statute ; and it was self to a demand before suit, he most held that a demand -must be averred clearly forfeits such right," &c. and proven in this form of action.3 In O' Neill v. Henderson, 15 Ark. 235, In Beebe v. DeBaun, 8 Ark. 562, the the separate property of the wife was -case of Pirani v. Barden, was reviewed, levied upon and sold for the husband's and it was held that the action was not debts; and it was held that her trusconfined to cases of bailment,laut that tee could bring detinue against the pur-the right of immediate possession ou chaser without demand. the part of the plaintiff, and an unlaw- In cases of bailment, the posseSsion ful withholding by the defendant were of the bailee is deemed in law the possufficient to maintain the action. It session of the bailor and in order to was furthermore held that, even in terminate the relation of bailor and cases of bailment, demand was not al- bailee, and put the latter in the wrong ways necessary ; that proof of conver- so as to maintain an action against him sion on the part of the defendant, or of for the goods bailed, there must be a acts amounting to conversion, would demand and refusal, or a conversion of dispense With proof of demand. The the goods by the bailee, which is equivdoctrine of this case has been repeat- alent to demand and refusal. Liptrot edly approved by the subsequent de- adm. v. _Holmes, 1 Kelly 391, and cases cisions of this court. See Phelan v. cited. Bonham, 9 Ark. 389; Cox et al. v. Mor- In the case before us, there was no row, 14 Ark. Rep. 009. bailment, actual or constructive, ac-In Beebe v. DeBaun, Mr. Chief Jus- cording to the evidence. The very act tice Johnson remarked : "We think of purchasing the slaves by McNeill, that under a fair construction of our was at war with any title the appellees statute, where a party innocently pur- may have had thereto, and his subsechases property, supposing he should quent possession was adverse to their acquire a good title, he ought not to be subjected to au action, until he has an It is true, that the declaration alleges opportunity to restore the goods to the a bailment, but this, like the allegatrue owner," &c. This remark, how- tion of finding in trover, is not a ma-ever, was but au obiter dictum. terial averment. Beebe v. DeBaun ; In Prater adni. v. Frazier (S.: wife, 11 Cox et al. v. Morrow. 1741 Ark. 257, the defendant moved If the demand was necessary in order the court to instruct the jury, "that that appellant might have an opportuwhen a party comes lawfully and nity of surrendering up the slaves, and peaceably imo the possession of prop- avoiding costs of au action, demand erty, which he treats as, and belie ves would be necessary in most cases, to be his own, he eanuot be sued for where a cause of action accrues to one the same, without • previous demand against another. therefor," &e. 4th. The court refused to charge 3. On replevin see Gray v. Nations, 1-367. note 3. jury, 7 the on the motion of ap. Rep.
MCNEILL V. ARNOLD. VOL. 17 pellant. 7th. that, "if the jury sale for the same in said Samuel believe, from the evidence, that Burke's name." (Defendant thereupon 175] *Virgil J. Burke had peaceable moved to exclude all the parol testipossession of the negroes for five years mony in relation to the purchase of previous to the sale to Hector McNeill, said slaves, because said . bill of sale was the law vested such a title in B e as not offered in evideuee, or its absence made his sale of said negroes to the de- accounted for ; which motion was fendant in this suit a valid one." overruled and defendant excepted.) Glover testified that, immediately "Old Samuel Burke sent me by Mrs. after the execution of the deed, he de- Virgil J. Burke, $1000, and wrote me a livered the slaves to Burke and wife, a letter, telling me that he had upon the instruction of Samuel Burke, *sent the money by Mrs. Burke, [976 to wait on them. That they remained to buy as many negroes as the money in possession of the slaves, some eight would pprchase. I gave $900 of the years, when Virgil J. Burke moved to money for Lizzy, and her children, &c. Arkansas, with the negres in his pos- When Samuel Burke wrote to me, I session, and afterwards sold them to recognized his signature which was a McNeill, &c. mark different from other persons, be-Where the wife has a separate estate ing a kind of V turned up. in slaves, and the husband and wife It seems also that appellant moved live to-gether, the possession of the the court to exclude the evidence of husband is the possession of the w ife. Glover in reference to his agency for Lee v. Matthews, 10 Ala. Rep. 682. Samuel Burke, unless the letter which 5. Glover, in his examination in he referred to, was produced, or its chief, by the appellees, testified as fol- non-production accounted for, but the lows : "Old Samuel Burke, after he court overruled the motion and aphad bought the negroes mentioned in pellant excepted. the deed, sent them through me to Vir- The court, upon the motion of apgil J. Burke and his wife; the money pellees, and against the objection of with which I purchased said negroes, appellant, instructed the jury as fol-was sent to me by old Samuel Burke. lows : 1st. "If the jury believe, from I purchased said negroes under his or- the evidence, that Samuel Burke exe-ders, and after they were purchased, he cuted the said deed introduced by the being informed came down and execu- plaintiffs for the uegroes, and for the ted the deed. Old Samuel Burke then purpose therein mentioned, and that resided in Kentucky; his son, Virgil J., the negroes sued for are a portion of lived in Lownds county, Mississippi. said negroes, or the increase of the The old man came to my house, got same, and that, at the time of the exeme to go to Judge Bennett, who wrote cution of said deed, the said negroes the deed, &c., &c. In the first place, aft- were the property of the said Samuel er I bought the negroes mentioned in Burke, they must find for the plaint-said deed, and took them home, Sam- iffs. And that the possession of said uel Burke came a few days afterwards, negro slaves by the said Samuel, either and told me to give the negroes to by himself or his agent, at the time of Virgil J. Burke and his wife; to wait the execution of said deed, is prima on them. I did so, after the deed was facie evidence of the said Samuel being executed," &c. owner thereof, and that the burden of On cross-examination by the appel- proof devolves upon the defendant to lant, Glover stated further : "I pur- rebut the same." chased said negroes, and took a bill of No controversy arises in relation to
JAN. TERM, 1856. MCNEILL V. AIINOLD. the corre&ness of this instruction, ex- son, and require that to be produced, ceptns to the last clause of it, and there Sm., and so on without limit. can be no doubt of its being substan- The appellant also moved the followtially correct. ing instruction, which the court re-Where a party suing for a chattel, fused : 10th. " The plaintiff Must
proves that he purchased it from one prove that Samuel Burke had the ne-in possession of it, he makes a prima groes in his possession either by himfacie case of title, and the onus pro- self or agent ; if by agent, that agency bandi is shifted to the opposite party. must be proved, and if that agency And as a general rule, the possession was by letter, or other writing, the of the agent is the possession of the writing or letter must be produced, or principal. accounted for before parol proof of The appellant moved, also, the fol- that agency will be admitted." lowing instruction: 4th. "The best There can he no question but that,
evidence must always be given to sub— if the authority of an agent is shown to stantiate any fact that the nature of be in writing, the writing must be pro-the case will admit of. If Glover duced and proved, or its non-produc— acted as agent of Samuel Burke, and tion accounted for, in order to admit bought the negroes in the deed of secondary evidence of the agency. 2 1771 -*trust, took a bill of sale for Greenlfs. Ev., sec. 63. them at the time, in the name of Sam— 611i. It is moreover assigned for error, uel Burke, the bill of sale is the best that the court erred in rendering judgevidence and must be produced, or the ment in favor of Rufus E. Arnold in loss or absence of it accounted for, be- right of his wife. fore parol, or secondary evidence is in- When the suit was brought, Mrs. Artroduced ; and without such bill of sale nold was in life, and the action being or such accounting, the jury will not for the recovery of outstanding chat-consider the parol proof as to the sale tels, in which she claimed an F178 to Samuel Burke." interest jointly with her brothers, it The court refused to give this in- was proper to join her husband in the struction, remarking to the jury, that suit. Cox et al. v. Morrow. the court thought it not material Before her death, the return of the whether Glover took any bill of sale to sheriff upon the writ shows that he de-Samuel Burke or not, and that the bill livered to Arnold the slaves Lizzy. and of sale had nothing to do with plaint- her four children, Eliza, Aga, Ann and iff's claim of title. Phcebe, and upon the trial, the sheriff Glover, in his examination in chief testified, that he also took from the apby appellees, swore that he purchased pellant, and delivered to Arnold at the
the slaves of Samuel Burke, but said same time, the unnamed infant child nothing about taking a bill of sale for of Lizzy, ch scribed in the declaration. them. The appellant on cross-exami- Thus, before the death of Mrs. Arnold nation, called out the matter about the her husband reduced the slaves into-bill of sale. If, by showing that his possession, and thereby, we must GI,,ver took a bill of sale to . Samuel hold for the purposes of thiA- suit, per-Burke for the slaves, the appellant fected his title to his wife's interest in could compel the appellees to produce the slaves. Cox et al. v. Morrow. The it, or account for its non-production, judgment was, therefore, in good form. they might also have shown that the There was, it is true, a variance be-person of whom Glover purchased, tween the declaration and the writ, in had a uill of sale from some other uer- reference to the inimber of negroes
VoL. 17 sued for, the writ omitting the unnamed infant, but the defendants pleaded in bar of the action, without attempting to take advantage of the defect in the writ. But, for the errors of the:court above indicated, the appellant was entitled to a new trial; and the cause is therefore reversed, &c.
Cited:-21-226; 21-425; 22-147 ; 23-418; 24-268; 28-8; 33-649 ; 40 499.