| Mo. | Oct 15, 1850
In the year 1831, Ferguson Haile died ia the State of Louisiana, having previously made a will, whereby after reciting that he had given to his two children by a former marriage (naming them, and the plaintiff in error being one) all he was able or intended to, his remaining property is devised to his wife, Lucy, and her children (by him), to be used and disposed of by her for their maintenance and education during her life, and to be equally divided amongst them at her death. The will was admitted to probate, and the widow administered on the estate, the controversy concerning which will be noticed hereafter. In the spring of 1832 the defendant below, who was one of the children of the first marriage, took certain negroes thus devised from the possession of his stepmother and. her then husband, Martin Palmer, with whom she had recently intermarried, brought them to this State, and has assumed ever since to hold them as his. own. Palmer and his wife followed the defendant to Missouri, and commenced an action of detinue against him for the negroes now again in suit; the declaration reciting, and one of the counts conforming to each of the said relations, that Mrs. Palmer sued as well in her own right as that of trustee for her children, who were plaintiffs below and appellees here. That suit was along time on the docket of the Circuit Court, came to this court, was sent back, partially compromised, and appears to have been finally wound up upon the record by an entry of a general judgment against the plaintiff.
The first'and most material question, therefore, is the one which is raised by the action of the Circuit Court, in sustaining the plaintiff’s demurrer to the defendant’s plea of former recovery ; and as that plea made profert of and was determinable alone by the terms of the will, as denoting the condition of the estate sued for, we have looked into it narrowly with a view to the solution of the question in issue, and find the estate to have been demised and limited substantially as stated in the preceding paragraph.
We are of opinion, therefore, that as the bequest to the present plaintiffs was but an estate in remainder, to be enjoyed after the particular estate of their .mother, they were at least not concluded by the fact that they were per-sonated and joined in an action for her benefit, during her life, which resulted in the judgment which it is alleged was rendered against them. The Circuit Court, therefore, committed no error in sustaining the plaintiff’s demurrer to the defendant’s fifth plea.
In reaching the foregoing conclusion, we have thrown out of view, in considering the record upon which the plea was founded, all that has been alleged respecting the unfairness whereby a judgment of recovery, instead of a judgment of dismissal, was entered by the clerk. If the parties who are plaintiffs in this suit, had been in condition to sue and conclude themselves in the previous suit, we apprelmnd their only remedy would have been against the attorney or the oiScsr who committed the wrong. The impolicy of permitting a
By the second section of our present act concerning Evidence, “the printed statute books of sister States, and the several territories of the United States, purporting to be printed by the authority of such States or territories,, shall be evidence of the legislative acts of such States or territories.” And by the sixth section of the same act, “ the printed volumes purporting to contain the laws of a sister State or territory, shall be admitted as prima,facie evidence of the statutes of such States and territories.”
Regarding the “printed volumes” which were read by the plaintiffs, and objected to by the defendants in the court below, as at least answering the legislative requisition as to what “ shall be admitted as prima facie evidence,”' and no attempt having been made to rebut the presumption thus authorized respecting their validity, we think the Circuit Court did right in permitting them to be read as evidence (until better was adduced), of what the law of that State was upon the questions arising in the cause compared with the convenience resulting from such a practice (the motive doubtless which led to the legislative permission), no corresponding hardship or injury need result from it; for even in the present case, which is probably as strong an one as can be imagined, if the defendant really supposed that the laws of Louisiana, as read from the printed books procured by the counsel for the plaintiff, were either misprinted or had been repealed, his affidavit to that effect might well have been entertained as a ground for a new trial. Unless something like this be done, the practice is deemed a safe and convenient one to permit such laws to be read, and a verdict founded upon them to stand.
Independent of the modification of one of the rules of evidence, intended by the 36th section of the 7th article of the Practice at Law act, we concar in the reasoning of the counsel for the appellees, respecting the deposition of Elizabeth Haile. She was the widow of the other son of the testator’s first marriage, and her interest consequently, if presumed to have any, was against tire party calling her. It does not indeed appear, by the manner in which the point is made upon the record, that the defendant even offered to prove that she had any other interest — the language simply being that he offered to prove “the interest of the witness.” Had it been otherwise, however, we are not prepared to say, especially without knowing what she had sworn in her deposition, that -we would review the discretion of the Circuit Court in permitting it to be read. Her testimony may have been cumulative merely, or otherwise ineffective to influence either the one way or the other the final finding of the jury ; and to all this was superadded her own oath, as part of her deposition, that she had no interest in the cause.
In reference to the ninth assignment of errors, we think it -was competent and proper for the plaintiffs to read such portions of the record of the suit of Palmer and wife against the defendant, as were deemed pertinent to the fact or facts they desired to establish, and it m'ay have been the right of the defendant to have had the balance .of it, or such other parts as'were deemed material to his side of th'e question, read also to the jury. It is deemed suf-
This, we believe, disposes of all the material questions in the case, except such as arise upon the instructions, or have relation to the weight of the testimony. The first instruction, given at the instance of the plaintiff, was in these words:
1. That the will of Ferguson Haile, in evidence in this cause, having been admitted to probate under the laws of Louisiana, by its terms, vests in the plaintiffs after the dealh of Mrs. Palmer, the right to all the property of which he died seized, that had not been legally disposed of by the widow, under her power and duties under the will.
Casting out of view the question of the admissibility of the Louisiana books as evidence of the Louisiana laws, this instruction may have been well predicated upon the ground assumed by this court in the case of Bright et al. v. White, 8 Mo. R. 421. Although the cases are not deemed parallel in the respect assumed by the counsel for the plaintiff in error (our statute respecting Evidence having been since changed), the probate of a will was regarded in that case as a “judicial proceeding,” to the record of which, “full faith and credit” was to be given, when certified as this is, conformably to the act of Congress of 1790.
No testimony appears to have been offered in the court below upon the question of fact, as to whether the ancestor of these parties had or had not advanced to the children of his first marriage a proper portion of his estate. Under our law, that would surely have-been necessary to invalidate the recital in the will itself; so that in that respect the second instruction was well enough, conceding even that the validity of the will should he attacked in such a manner.
Waiving, therefore, the further consideration of that proposition, it is deemed sufficient to remark in reference to the alleged laws of Louisiana, which are relied upon (amongst other things) to establish the disinherison of the plaintiff in error, that it nowhere appears in the record that the defendant offered any such laws in evidence, and that as we arc not presumed judicially to know, so we are not authorized to judicially assume that any such laws were contained in the books offered in evidence by the plaintiff. On the contrary, such a fact must he in some manner apparent from the record, whereby this court must not only itself see, but it must likewise be apparent that the Circuit Court has seen, in evidence such foreign laws as are hero relied upon to overturn its decisions. Unless this be done, the legal presumptions must be in favor of the regularity and legality of the judicial pro-)cccdings we maybe called upon to review. And this may be held to cover almost the entire ground of controversy respecting the probate of the will in Louisiana; and the action of the Circuit Court consequent upon it. In any view of the case, therefore, the second and sixth intructions are entitled to stand.
The 3rd, 4th and 5th instructions, given at the instance of the plaintiffs, so welland clearly comprehend and announce the law in respect to the agreement to arbitrate the matters in dispute in the former suit, as to need no comment or elucidation. They are as follows :
3. That a guardian cannot, under our laws, dispose of the future or contingent interest of his ward, and the act of Franklin Murphy, guardian of Ferguson Haile, jr., in signing the agreement which affected his future rights_to the negroes in controversy, having been done while Lucy Palmer was living, is void, confers no right upon Thomas Haile, and divests Ferguson Haile (the plaintiff) of no rights of property.
4. That the agreement of November 27, 1844, on the face of it, and through all its parts, appears to have been an agreement to arbitrate certain matters in controversy, and having failed to be executed as such, it cannot he construed into a contract binding upon the parties independent of an award.
5. The right of possession of Thomas Haile, to any of the negroes under the agreement in evidence, is dependent upon their being valued by the referees named in the agreement, and as no valuation has been made by them, nor can be made, Haile cannot retain possession against the plaintiffs.
Whilst the last instruction of the court seems to us erroneous, it is proper to remark that it appears to have in its support not only the technical sanction of the pleadings, and the judgment contemplated by this action, but also the preponderance of previous adjudications, so far as we have been able to consult them. The reasoning and the right, however, seem to us the other way; and that a proper finding in such a case as this would be the special fact of the death of the slave, as a reason why no value was affixed by way of alternative judgment, leaving the use and hire, up to the period of the death, to constitute the measure of damages.
The clerk of this court will he directed, therefore, in accordance with the conditional authority on file for that purpose, to enter, along with the judgment of affirmance a remittitur of five hundred dollars, that being the value of the slave, Charles, at the time of instituting the suit, as erroneously found by the jury, and for not having entered this remittitur in the court below, the defendants in error will, of course, be taxed with the costs of this appeal..
In reference to the rest of the case (the relevant and unambiguous instructions which were refused to the defendant being confessedly but the counterpart of those that were given for the plaintiffs), no such error or irregularity-in the record is perceived as to call for further correction ; and Judge Ryland concurring in this opinion the judgment of the Circuit Court is consequently affirmed.