author: Mr. Justice IIaNlt

text:
    Ambler vs. Ruddell.
    The defiance of usury cannot bo interposod, by tho statutes of this State, under the plea of tho general issue, in actions of debt or assumpsit founded on contracts in writing, {Rowell vs. Vanscml, 2 Eng. 146), but if tho action is founded on a promise not in -writing, tho defence, of usury, may bo sot up under the general issue, whether in debt or assumpsit. 1
    The plaintiff and defendant entered into a. usurious contract for the loan of money, for which the defendant gave liis writing obligatory; tho plaintiff sued upon the written instrument, embracing in his declaration tho common money counts; ponding the suit, tho writing obligatory was declared void by a court of chancery, and the plaintiff injoined from proceeding upon it: Held, That ho could not recover tho money actually loaned, under the money counts.

      Writ of Error to the Independence Girouit Court.

    Hon. Beaufort II. Neely, Circuit Judge.
    Kowleb, for tho plaintiff.
    That the writing obligatory for which the money advanced was tho sole consideration, was void for usury, was settled by the decree of the chancellor. And the law clearly fixes usury upon the transaction. Diz/est, p. 61é ; sec. 5 to 8; Weatherheadvs. Boyers, 7 Yerg. Rep. 562; Andrews vs. Pond et al., 13 Ret. Rep. 15; 3 Stark. 1524/ Levy vs. Brown & Eenno, 11 Arle. Rep. 22.

    The defence in this case was well set up under the general issue, as it is not embraced in our statute requiring pleas, in certain cases, to be sworn to. 8ea2 Saimd. El.andEv.516; SBlade. Rep. 116.
    In contracts of this sort, which are void, or made in violation of law, tbe court will not enable a party, equally guilty of such violation, to recover back his money advanced ; because the illegal condition has not been performed. Blade et al. vs. OUver, 1

      Ala. Rep. {W. 8.) 450/ 2 Story's JHq. Juris., see. 697; 2 Greenl. Eo., see. 111/ Smith on Gon. (3 Am. Ed.) 187, 188,189/ Vises* vs. Bertrand, 14 Arle. Rep. 276; Story on Gon., see. 138, 153, 187, 226.
   Mr. Justice IIaNlt

Ruddell sued Ambler in debt, counting- first on a writing obligatory, and secondly on the common money counts, and for services, &c. And pending .the suit, Ruddell was-enjoined, at the suit of Ambler, from proceeding on the writing obligatory, charging that it was usurious and void. i

Ambler prayed for a bill of particulars of the residue of the demand, which was filed, disclosing an advance to, or payment of, money for Ambler to the amount of $513 40, and no more. And upon an issue on the plea of nil delab, the cause was submitted to a jury, which found for the plaintiff below $510 9T and debt, $4 67 damages, and judgment was rendered accordingly.

On the trial it was proven that the writing- obligatory, described in the first count, had by a competent court been declared to be void, and Ruddell enjoined from further proceeding thereon, on the ground that it was usurious, &c. And it was further proven, that the said sum of $510 97, had been advanced by Ruddell to and lor Ambler as a loan, and that the same constituted the sole consideration of said writing obligatory, which was dated March 1st, 1854, for $600, at four months, and to bear ten per cent, interest after maturity. Upon this evidence Ambler, moved the following instructions, to wit:

That if the jury should believe, from the evidence, that the said sum of $510 97, was given at the time, and part advanced then, and the other part afterwards, witli intent to take, directly ■or indirectly, or to receive more than ten per cent, interest per annum, on a loan, or for the forbearance of the said sum of $510-97, and took and received such writing obligatory for that purpose, that they might find the whole contract void for usury; and if so void for usury, that said Ruddell was not entitled to recover back bis said money in this action,” which the court refused to give, and Ambler excepted; but the court instructed the jury that, “although the writing obligatory was void for usury, yet that said plaintiff was, in law, entitled to recover back the money he actually advanced to and paid out for the defendant.” To the giving of which, Ambler also excepted.

Ambler sued out a writ of error to the court below, upon which the cause is now pending in this court. Several errors have been assigned and insisted on, why said judgment should be reversed'. We will proceed to consider them in the order in which they are presented.

The same defences are usually admitted under the general issue in debt, where the action is founded on a parol contract not in. writing, that are allowed under the general issue in assumpsit on the same kind of contract. See 2 Greenl. Ev., page 291, section 281.

Under the general issue in assumpsit in England, until the new rules in pleading were adopted, (4 W. IV. 1884) and in most of the United States to this day, the defendant may give in evidence any matter showing that the plaintiff never had any cause of action, such as that the contract was void by statute, or by 'the policy ol the law. See 2 Greenl. Ev., p. 123, sec. 135. Usury was provable under this issue as a defence. See Levy vs. Gadsby, 3 Cranch Rep. 180, per Marshall, C. J.; Fulton Bank vs. Staffard, 2 Wend. Rep. 486; Colton vs. Lake, 2 Mass. Rep. 540; Jackson & wife vs. Stetson, 15 same 54; Colm vs. Cooper, 8 Blackf. Rep. 116.

But the common law in this respect has been changed by our statutes, both in actions of debt and assumpsit, founded on contracts in writing. With ns, the defence of usury cannot be interposed in such cases under the plea of the general issue. It must be specially pleaded and the plea sworn to. See Howell vs. Vansant, 2 Eng. Rep. 146.

Where the action is founded on a promise or contract not in writing, the defence of usury may be set up under the general issue, whether in debt or assumpsit, in this State, as fully and thoroughly as at the common law, or in those States whose adjudications we have given. We, therefore, hold in the case under consideration, that the defence of usury was properly admitted in the court below under the plea of nil debet to the money counts.

There can be no doubt but that tbe writing obligatory, described in the plaintifl’s declaration, was void for usury. The evidence of the witness sworn in the court below, conclusively shows this fact. Besides this, the decree of the Independence Circuit Court in Chancery places the matter beyond enquiry. It is res adgudioata as far as the parties, or their privies, are concerned. It is also manifest, from the evidence adduced, that the money specified in the plaintiff’s bill of particulars, given as the particulars of the demand claimed under the common counts, under which the trial was had in the court below, was the note and only consideration for which the writing obligatory, described in the first count, was executed. It is further manifest from the testimony, that the execution > f the writing obligatory, and the corrupt agreement in relation to the advance, as a loan, of tiro sum of $510 9'7, were contemporaneous acts — the $600. writing obligatory being given by the defendant for the loan and forbearance of the amount advanced ($510 97,) for four months under such contract, and at the time it was made. The writing obligatory was not canceled by tbe contract of tbe parties after its execution, nor was there any agreement made by the defendant, as far as the evidence shows, with the plaintiff, after the writing obligatory was declared void for usury by the Circuit Court of Independence comity, in chancery, whereby he promised the plaintiff, in consideration of the amount actually loaned, and the fact of the destruction and cancelment of his obligation by the decree of the court, that he would pay the amount borrowed with lawful interest. If such proof as this had been introduced on the part of the plaintiff, the case might have been different with him. But, as the case stands, the simple question procured by the assignment of errors, is this: If a contract is made in writing, whether lindel seal or not, and tbe instrument is declared by a court of competent jurisdiction, void, on account of usury, whether the party can recover at law, on the common counts upon the original consideration, without a new promise?

It is an unquestionable proposition of law, that after usurious securities have been destroyed by mutual consent, a promise by the borrower to repay the principal and legal interest, is founded on a sufficient consideration, and is binding See Barnes vs. Hadley, 2 Taunt. Rep. 184; Kilbourne vs. Bradley, 3 Day 356; Scott vs. Lewis, 2 Conn. 132; Church vs. Tomlinson, 2 Ib. 134; Botsford vs. Sunford, 2 Ib. 276; Bank of Monroe vs. Strong, 1 Clark Rep. 76; Hammond vs. Hopping, 13 Wend. Rep. 505.

Bat as we have before remarked, there was no evidence offered at the trial below, tending to prove that the original contract was destroyed by the mutual agreement of the parties, or that the defendant promised the plaintiff, after the decree in chancery declaring the writing obligatory executed void, that he would pay him the sum actually loaned. The plaintiff, therefore, has not brought himself within either the letter or spirit of the law we have quoted; but must rest his demand upon the law, as it is under the circumstances, and facts shown by the proof to exist in his case now under consideration: for the reason of the rule, as laid down by the various adjudications which we have referred to, seems to be tbis : that inasmuch as an actual agreement between tbe borrower and lender, on the one part, to pay, and the other part, to receive, more than the legal rate of interest, is necessary to constitute usury ; so an actual agreement between the same parties or their legal representatives, to cleanse the transaction, is also necessary to render any subsequent promise for tlie payment of the original principal, valid. And tbe legality of tlie subsequent promise of the borrower rests on tbe offer of the lender, to expel everyparticle of the origi/nal virus from the transaction, and to deliver up all the securities therefor, however remote and multiplied: and not, as has been sometimes said, upon the moral obligation of tbe borrower to pay the original sum received, for without such proffer by the lender, any subsequent promise of tbe borrower is equally void as the first. See Blydenburgh on Usury, p. 96, et seqr.

In the case of Hammond vs. Hopping, 13 Wend. Rep. 505, before referred to, it was held, that “Where a usurious security is given in part for a pre-existing valid debt, such debt is not destroyed by the illegal security. But though a usurious contract contains a good consideration in fact, as when money is actually lent and received by the borrower, yet, the security being absolutely void, no action can be maintained upon it, nor is it evidence of indebtedness, upon the strength of which the law will imply a promise on the part of the borrower to pay the amount actually received by him.” And in Rice vs. Willing et al 5 Wend. Rep. 595, it was held that “when the agreement between the parties is usurious, (although such agreement is founded on a good consideration) it is void.” In the case of Johnson vs. Johnson, 11 Mass. Rep. 359, it was decided that when a debt was due from the defendant to the plaintiff, free from usurious taint, and a note given for that debt, together with usurious interest upon it, the new note was held void on account of the usurious interest exacted ; yet, the plaintiff might recover the original debt upon the money counts. This, however, was put and made t.o' turn upon the express ground, that there was’no corrupt or illegal contract, out of which the original debt arose.

But in the case of Rice vs. Willing, 5 Wend. Rep. 578, before cited, SUTHERLAND, Judge, said: r“In everyusurious loan of money, there is good consideration in part for the promise to pay. The borrower actually receives the money from the lender, yet the security given being absolutely void, the sum actually loaned cannot be recovered upon the implied assumpsit, although it will be a good consideration for a subsequent promise to pay it, as held in Easly vs. Mahon, 19 Johns. Rep. 150. Usury infects and avoids the whole of every contract, agreement or transaction, into which it enters.”

The case of Lowell vs. Johnson, 14 Maine Rep. 240, was similar, in its facts, to tbe one we are considering. In that case, the suit was brought on a note. There was a special count on the note, and the money counts. The plea of the general issue was interposed with notice of special defence under the statute of that State. The note was declared void on account of usury, and an attempt was made to recover on the consideration of the actual loan, on the common counts; and Siikplicy, Judge, in delivering the opinion of the court, said : “In this case the money was originally loaned upon the corrupt bargain to receive more than lawful interest, and it cannot therefore be recovered back. Nor was there any after contract or debt free from the contamination of usury.”

There is another view in which the case we are considering presents itself to our minds, under the structure of our statute of usury, taken in connection with the adjudications upon the statutes of England, and the other States of this confederacy on the same subject. It will be borne in mind, that some of those statutes, besides declaring the contract infected with usury absolutely void, prescribe a penalty in addition thereto, for a violation of their provisions. Our statute affixes no distinct penalty beyond the provision by which the contract itself is made void, which, under the law, accrues to the party with whom it is made, and who is supposed to be the sufferer by its breach. If the usurer could recover upon the mone}T counts, after the usurious security had been declared void on account of the usurious taint, the penalty which the statute seems to contemplate would be defeated and avoided, and the act itself be shorn of that which must make it effective of the ends evidently designed by the Legislature in its enactment, judging from its tenor, and scope of its provisions, independent of the mischief which it was evidently designed to remedy and correct.

'Wehavebeen unabletoffnd a single adjudicated case which militates against the views we have expressed, except in those States where the usury statutes affix no penalty to the act constituting (their violation, other than the forfeiture of the excess of interest over the statutory rate. In such States, the courts, both law and equity, do nothing more than purge the contract of the usury and give judgment for, or decree the sum actually loaned with legal interest. Such statutes do not destroy or annihilate the security, as does ours, but simply interpose between the necessitous borrower and rapacious lender; staying the exactions of the latter, whilst they require the former to restore that which he had gotten under the pressure of necessity, with what the law considers just compensation for its use, the statutory rate of interest.

We have nothing to do with the policy ot our statute, when contrasted with others. Such considerations as these, belong to another department.

From a careful review and patient consideration of rbe authorities, there can he no doubt, we think, that under the particular facts of this case, the plaintiff was not entitled to recover, upon the common counts, the amount of money actually loaned by him to the defendant.

We hold, therefore, that the court below erred in instructing the jury as stated, and also in refusing to give the instruction, asked for by the defendant, Ambler.

For these errors, we reverse the judgment of the Circuit Court of Independence county, and remand the cause to that court to he proceeded in according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Mr. Justice HaNly

license: Public Domain

text:
    Splawn vs. Martin.
    The jurisdiction of the court, in a suit by attachment, as between the interpleaders, arises by virtue of the writ of attachment and a valid service thereof. (Gibson e i al, vs. Wilson el al., 5 Ark. 4.22.)
    Where the transcript of the record of the Circuit Court, filed in this court, fails to show the issuance and legal service of such writ, this court would, for the purpose of affirmance, if there were no other error in the record, issue a special writ oí ceriierari to the clerk of the Cirouit Court to certify such writ and service to this court. (15 Ark. 396; 13 lb. 145.
    An interpleader, in a suit by attachment, levied upon land and cotton, proved that the defendant, who was her son, had executed to her, a deed for the laud, purporting to be for a valuable consideration, several months before the attachment issued, and possession of the land from the date of the deed; also that the cotton was the produce of the land and of the labor of her slaves, and was in her sole possession: Held, That these facts, in the absence of any proof of fraud, render it clear that the title to the property was in the interpleader: that the mere fact of the indebtedness of the defendant to the plaintiff, at the time of the execution of the deed to the interpleader was no evidence of fraud; nor was the fact that the defendant was the son of the interpleader.
    It is the intent that makes a conveyance oí property fraudulent as to creditors; and this intent must be participated in by both parties; by the grantee as well as the grantor.
    A party offering a deed, purporting to have been executed for a valuable consideration,' as evidence of title, may prove the actual payment oi the consideration, although such proof is cumulative of that <prvma, faoie established by the deed itself.

      Appeal from Bradley Circuit Court,
    Hon. Theodorio F. SoRrells, Circuit Judge.
    Yell, for the appellant,
    Williajis & WilliaMS, for the appellee.
   Mr. Justice HaNly

delivered the opinion of the Court.

This was an action of assumpsit commenced by attachment, as it irregularly appears from the transcript, at the suit of the ap-pellee against one John Splawn, on the common counts. An affidavit is appended to the declaration, such as is usual to warrant the issuance of an attachment, when the bond prescribed by the statute is filed. No bond, writ of attachment or return, is copied in the record sent up to this court. The. appellant seems, however, to have appeared in the court below, and on leave granted, filed her interplea, by which she claims “the land and cotton attached,” (specifying both) as her separate property. Issue was taken upon this plea. The defendant in the attachment suit, not being served with process, did not appear to the action at the first term after the suit was commenced. The transcript shows, that at the next term he appeared by attorney, but interposed no defence to the action. Neither j udgment by default nor nil dieet is noted on the transcript as having been taken against the defendant, but at the term at which the appearance of the defendant was entered, as before stated, the following order of the court appears to havejbeen entered, to wit: “It is ordered that the rights of the plaintiff and the interpleader, be submitted to. a jury, and thereupon came a jury of good and lawful men, &c., * * ”* * who being duly elected, empanneled and sworn, well and truly to try the issue joined between the said plaintiff, and said John Splawn, (defendant, with whom there was no issue pending,) and the issue between said plaintiff, and Elizabeth Splawn, (appellant) At the trial in the court below,in pursuance of the above order, evidence was introduced by the parties, substantially as follows:

The appellee proved by several witnesses, that the appellant was the mother of the defendant; that defendant was a married man ; that he and his family, and the appellant, resided together at the time the debt sued for was contracted, and from thence up and until about the 1st August, 1852. He proved by theori-ginal papers that this cause was commenced on the 21st December, 1852. A portion of the items of his demand was proved; and he furthermore proved, that the defendant was in the haoit of dealing with him as a merchant, during the time within which his account purports to have been made.

Appellant showed title in herself to the lands attached, by producing, and reading to the jury, a deed duly execnted, acknowledged and recorded, made by the defendant, to her, dated 23d April, 1852, filed for record same day, and recorded on the 27th May, 1852. he furthermore, proved by oral testimony, that the cotton attached, though produced on the lands attached, was the produce of the labor of her slaves, and that she was the owner of several; that the defendant was in the habit of attending to ber business, and particularly tlie labor of her said slaves, and that defendant quit the count}' and moved to Texas about the lsi August, 1852, and had never been back to the county since.

.The deed from the defendant to tbe appellant, purports to have been made for the consideration of $1200 cash. Appellant at the trial, proposed to ¡move by witnesses produced, that this con-sh eration was absolutely paid by appellant to defendant, which was objected to, and tbe objection sustained bytbe court, and tbe appellant excepted.

The appellant further proved by oral testimony, that she had been in possession of tbe land attached ever since the date of the deed from the defendant, and had possession of the cotton at the time it was attached.

This was all the testimony given at the trial. After the evidence was concluded, the appellee moved the court to instruct the jury, that “If they believed, from the evidence, that the sale of the- land attached was made by the defendant to Elizabeth Splawn, appellant, with the intent to hinder, delay or defraud creditnrs, they will find the land and cotton to be subject to the attachment; provided, the jury believe, from the evidence, that the defendant was indebted to the plaintiff,” appellee; which instruction was given, and the appelant excepted.

The appellant then moved, the court to instruct the jury, among others, “that if they believed, from the evidence, that John,Splawn, defendant, sold the land named in the attachment, to Elizabeth Splawn, appellant, by deed, that deed conveys the legal title of said land to her,” which the court refused to give and for which appellant also excepted at the time.

The jury on the above state of facts,returned a verdict in damages in favor of the appellee, against the defendant, for $232 77, and found the property attached to have been the property of the defendant, and subject to the attachment.

The court proceeded to, and did render judgment in accordance with said verdict and gave judgment for the costs (under the statute) on the interplea against the appellant; who, thereupon, moved the court for a new trial, setting out informally7 and irregularly, the followi.iggrounds. let: Because the verdict was contrary to the evidence. ’2d: Because the court erred in giving the instruction asked for by the appellee. 3d:, Because the court erred in refusing the instruction asked for by appellant, and 4th : because the court refused to permit the appellant to prove the payunent of the consideration expressed in the deed, to the defendant. All the evidence, as above, was set out in the appellant’s motion Jbr a new trial. On consideration of which the motion for a new trial was overruled, and the appellant excepted, setting out therein his motion, and the facts aforesaid. The appellant filed the usual affidavit, and prayed an appeal from the judgment in this behalf rendered against her, which was granted by the court.

Several errors are assigned why said judgment should be reversed, which wo will proceed to notice in the order in which they are presented, after we shall have disposed of a preliminary question which presents itself to our minds from the transcript before us, and which we think it well to remark upon.

In the case of Gibson et al. vs. Wilson et al., 5 Ark. Rep. 422, it was held by this court, that in a suit by attachment, when an interplea is filed, the jurisdiction of the court, as between the in-terpleaders, arises by virtue of the writ of attachment; and if there be no valid service of the writ, there is no suit between the parties to the interplea. In the case at bar’, there is neither writ nor service, so as to enable us to determine the jurisdiction of the court from the return and service of the writ of attachment in this case. We are led to believe, from many facts apparent upon the face of the transcript, that there was a writ of attachment issued in this cause, and that it was served in some form or manner upon “land and cotton,” and upon the express authority of Bixby vs. The State, 15 Ark. Rep. 396, and the implication in the case of Stewart vs. The State, 13 Ark. Rep. 745, it'it were possible for us to affirm the judgment below, and for the purpose of affirmance alone, we would eiv-qfflcio award a special eertiorari to the clerk of the Bradley Circuit Court, to supply the supposed omission in the transcript, in reference to the writ and return, for the reason that we entertain no doubt but that the writ and return both remain upon the hies of the court below, and are not copied in the transcript by the misprision of the clerk.

We are fully aware of the existence of the maxims that, “all acts of an inferior court are presumed to be rightly done in a superior court,” (See Smith vs. Burry, 1 S. & M. Mi. Rep. 321,) and “that the decisions of a court of competent jurisdiction, are .presumed to be well founded, and their judgments regular.” (Per Bayley, Judge, 3 B. & C. 327.) Yet we do not hold these maxims to extend beyond this, that when it appears upon the lacé -of the proceedings, that the inferior court has jurisdiction, it will be intended that the proceedings are regular; but that unless it so appears, that is, if it appears affirmatively that the inferior court has no jurisdiction, or if it bo left in doubt, whether it has jurisdiction or not, no such intendment will be made. See Taylor vs. Clemson, 11 Cl. & Fin. Rep. 610, per Lord Brougham; Dempster vs. Purnell, 4 Scott N. R. 39, per Tustoal, Chief Justice, citing Maravia vs. Slater, Willes 30, and Litley vs. Foxall, Ib. 688. But for the lone cause that no jurisdiction appears affirmatively upon the lace of the transcript, as held in the case of Gibson et al. vs. Wilson et al., we would not reverse tbe judgment until we had awarded a special certiorari, ex-officio^ under tbe rule as laid down in tbe case of Bixby vs. The State. In view of tbe law as laid down upon the authority of Lord Bboug-ham, and Tustdal, Chief Justice, and the other errors apparent upon the transcript in this cause, we are compelled to reverse the judgment of the court below, for the reason that no valid writ of attachment and return thereon are shown, so as to give the court below jurisdiction to try the cause upon the interplea.

Having disposed of this question, we proceed to adjudicate the points presented by the assignment of errors.

The title of the appellant to the land and cotton attached in the court below, was resisted by the appellee upon the ground that he was a creditor of the defendant under the attachment^ law, and in contemplation of our statute of frauds; and that the conveyance of the land in question was made by the defendant to to delay, hinder and defraud his creditors, the appellant,

The appellant proved beyond all question or doubt, by her deed, that the legal title to the land described therein, being the same land supposed tobe attached, was in her for months prior to the attachment, and that she was then and had been, from the date of the deed, in the possession and enjoyment of said lands thereunder. It was also as conclusively proved on the trial, that the cotton attached was the produce of said land, and the labor of the slaves of the appellant; and that it was also in her sole possession at the time of the levy of the attachment. We think those facts render it clear, beyond controversy, that the property both in the land and cotton, was in the appellant at the time of the issuance of the supposed attachment, and at the timeof the trial upon the interplea in the court Jjelow. There was not a solitary fact developed by the evidence, from which the jury could have legitimately inferred fraud in the transaction, if it had been competent for them to have made any such inference in such a proceeding, for we hold the law to be “that whilst fraud may be presumed, from circumstances, in a court of equity, it as a fact, must be proved like any other fact in a court- of law.” See Gallatian vs. Cunningham, 8 Cow. Rep. 361; 1 S. & M. (Mi.) Chan. Rep. 135; Dardenne vs. Hardwick, 1 Eng. Rep. 482.

It certainly will not be seriously insisted that the defendant had not a perfect right to make a sale of the land in question, at the time it seems the sale was made in this case. No fraud could have been inferred, even against defendant from that act. No fraud is patent from the deed to the appellant; none could be drawn from that source. The fact of the defendant’s indebtedness to the appellee, is not a fact, coupled with any other fact proved on the trial, which would raise even a presumption of fraud against the defendant. The fact of the conveyance being made by a son to a mother does not of itself, or when coupled with any other fact proved on the trial, throw the slightest suspicion upon the transaction ; and the remaining fact that the defendant continued to live with his mother on the land conveyed, after the date of the the deed up to the 1st August, 1852, in our opinion should not have weighed a feather, either with the court or jury, imput-ting fraud to the defendant. We therefore, hold, that the instruction given by- the court to,: the jury, was wholly an abstract one, and had no connection with the case, as made out by the facts, and as such was calculated to mislead the jury, as it clearly must have done.

But this instruction is erroneous for another reason. It seems to assume that the sale from the defendant to appellant could be fraudulent as to the appellant without her concurrence in the fraudulent designs of the defendant in respect to his creditors. Now it is the imtent that makes a conveyance fraudulent as to creditors, and this intent must he participated in by both parties. See Peck vs. Carmichael, 9 Yerg. Rep. 327, 328; Trotter vs. Watson, 6 Hump. Rep. 509; Jones vs. Redd, 1 Ib. 345; Farmers Bank et al. vs. Douglass et al., 11 S. & M. (Mi.) Rep. 469; Dardenne vs. Hardwick, 4 Eng. Rep. 486.

We think it also clear that the court below erred in not giving the instruction asked for by the apjoellant, for her deed coupled with possession invested ber with all the title which was in her grantor, and until it was overturned and destroyed by fraud, entitled her to recover in the trial below.

"We are further of the opinion, that the court below erred in not permitting the appellant to prove that she had actually paid the consideration set forth in her deed. See Farmers Bank et al. vs. Douglass et al., above cited. It is true, that such evidence would have been only cumulative of her evidence, the fact of the payment of that amount having been prima facie established by the deed itself. But courts have no right to exclude evidence solely on the ground that it is cumulative, without the judge should discover that the party or his counsel, is unnecessarily cumulating evidence to the hinderance of business in court, and the unnecessary annoyance and expense of his adversary. In which case, we apprehend, his power would be unquestionable. In the case at bar, we discover no such circumstances manifested by the transcript.

"Wherefore, for these several errors, the judgment of the Bradley Circuit Court is reversed, and the cause remanded to be proceeded in according to law, and not inconsistent with this opinion.

Mr. Chief Justice ENOMsh did not sit in this cause,


author: Mr. Chief Justice English

text:
    McNeill vs. Arnold et al.
    The Circuit Court has power to amend its record, so as to make it speak the truth, &e. (Kmg & Houston vs. State Bank, 4 Eng. 185; Arrington vs. Convey, ante, 100.)
    Slaves are convoyed to a trustee for the separate use of the wife, and upon her death to be divided among- her heirs; upon the death oí tho wife, the trust is executed, and an action for the recovery ol the slaves must he brought in the name of the heirs, and not of tho trustee.
    A trustee, after tho trust is executed and his interest in the trust property is terminated, is a competent witness in a suit affecting the title.
    The statute law of another State can be proved only by the production of the statute, and not by parol; but tho unwritten laws, custom, usage, practice, &c., of other States, may bo proved by the testimony of witnesses skilled therein.
    A deed executed in another State, in the absence of any testimony that the laws of the State authorized its registration, is not admissible in evidence, merely upon certificates of its aelmowldgement and registration, without other proof of its execution.
    If a deed be duly executed, &c., in another State, according to the laws thereof it is unnecessary, to protect the rights of the grantee, that it should be recorded in this State, upon the removal of tho parties and the property. (O'Neill vs. Henderson, 15 Ark. 235.)
    where a deed or instrument of writing is read in evidence, without competent proof of its execution, and such proof is afterwards made, though it was irregular to permit it to be read, the irregularity is cured by the proof afterwards made.
    When the question propounded to a witness, indicates the answer it is desired he should make, or furnishes him with one favorable to the point sought to be established by the examiner, it is loading. (Clark ad. vs. Moss et al., 6 Eng. 741; Pleasant vs. State, 15 Aik. 624; Rogers vs. Diamond, 13 lb. 473.)
    Where property is in the possession of another, who has purchased and uses it as his own, the owner may bring replevin for it without a previous demand. (Pater ad. vs. Frazier, 6 Eng. 257; O'Neill vs. Henderson, 15 Ark, 235.)
    Where the wife has a separate estate in slaves, and the husband and wife live together, the possession of tho husband is the possession of the wife.
    Where a party suing for a chattel proves that he purchased it from one in possession, he makes a prima facie case of title, and tho onus probandi is shifted to the' opposite party.

      As a general rule the possession of the agent is the possession of the principal.
    After the plaintiffs had proved, by the agont of the person under whom, they claimed title to tho personal property, that he, as agent, had purchased the property for his principal, the defendant, 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 required to produce the bill of sale.
    If the authority of the agent is shown to bo in writing, tho writing must be produced and proved, or its non-production accounted for, in order to admit of secondary evi- !■' dence of the agency.
    Where tho husband and wife bring an action of replevin for the slaves of the wife, and they are taken under the writ and delivered by the sheriff to the husband, this is such a reduction into possession by the husband as, for the purposes of tho suit, will perfect his title to the slaves, in the event of the wife's death after the seizure and delivery, and before judgment. • ■
    The defendant cannot take advantage of a variance between the declaration and writ, after a plea in bar to the action.

      Appeal from Dallas Circuit Court.

    Hon. TiieodobiC F. Sobeells, Circuit Judge.
    Yell & OaeltoN, for the appellant.
    A demand was necessary before tbe institution of this suit, and the court clearly erred in refusing the instruction upon this point. 2 Creenlecuf, chap, on Trover, page 532 ; Beebe vs. DeBawn, 3 Eng. The ease of Prater and wife vs. Frazier and wife, 6 Encj. 249, does not overrule the case of Beebe vs. DeBawn, nor is there any inconsistency between the two ; because, in the former case, the defendant had acknowledged the plaintiff’s title, and yet made a sale of the property, which was an act of conversion. In this case, tho defendant was a purchaser, acting in good faith, and believing the property to be bis own.
    The court erred in permitting the deed of trust to be read to tlie jury, upon the parol evidence of the witness as to the laws of Mississippi ; and as the deed was not of such a nature as was required by law to be recorded, the record is incompetent to prove the existence or execution of the original. Brown vs. Pieles, 1 Arle. 232.

      The contents of a written instrument cannot be proved by a witness without accounting for the absence of the original, (Ber-mont vs. Mo Gradeen, 6 Bladef. 356,) and all the testimony of Glover, as to the purchase of the slaves by him for Burke, should have been rejected without the production of the bill of sale, which was the best evidence of the purchase ; and also, of the authority of Glover to purchase for Burke, without the production of the letter of Burke constituting him his agent. Mordeeai vs. Beal, 8 Port. 529; Planters and Merchants Bank vs. Willis, 5 Ala. 770/ 4 Blaolef. 164.
    . Glover was incompetent to testify, as a witness, and the suit should have been brought in his name.
    WatKINS & Gallagxxbe, and Oomptok, for appellee.
    The children of Mrs. Burke were the proper parties to bring this suit. Upon her death the title to the property passed out of the trustee, and vested -in them, without any transfer on his x>art. In re of the estate of Williams, 1 Maryland Chan. 25/ 1 Kelley 381.
    ■ A demand before suit brought was not necessary. Beebe vs. BeBaun, 3 Eng. 510 / Frazier a/nd wife vs. Prater ad., 6 Eng. 249/ 5 Sanford Rep. 157/ 1 Smedes Rep. 304..
    Where the rights and powers of a trustee have ceased, and he has no interest in the matter, he is a competent witness. Maim, vs. Ifewman, Anthen 11/ Johnson vs. Cwnnmghcm, 1 Ala. 249/ George vs. Kimball, 24 Piole. 234/ 4 P&o. <& Bat. 442.
    The bill of sale to Samuel Burke, and the agency of Glover constituted by letter were not necessary to be produced — the possession of the defendant, and the rights of the plaintiff being derived from the same source.
    The possession of Burke was the possession of Glover as trustee, (O’Weill vs. Henderson, 15 Arle. 235,) so that no rights accrued by adverse possession.
    The original deed was sufficiently proven without Glover’s testimony. Stith proved that under the laws of Mississippi, where it was executed, it was entitled to be admitted to record; (O’Weill

      ss. Henderson, ub. sitp.); but Glover’s testimony proves it beyond a doubt.
   Mr. Chief Justice English

delivered the opinion of the Court.

A preliminary question is to be settled in this case.

The case was brought here, on appeal, at Jannary Term, 1855, and after it was docketed and before j oinder in error, the counsel of the appellees obtained a continuance, for the purpose of procuring an amendment of the record in the court below, and bringing np a transcript thereof by eertiorari. At the July Term following, having, in the meantime, procured the amendment be-lojv, they moved for a eertiorari in order to perfect the record here. Thereupon, a transcript of the amendment was filed, with an agreement of the counsel of the parties, that it should have like effect, as if brought here on eertiora/ri.

The counsel 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 that the matter contained in the transcript of the amendment, ought not to be treated as part of the record here.

The matter of the amendment is this: It seems that, on the trial of the cause, the appellees read in evidence the original trust deed from Samuel Burke to Nathan Glover, executed, acknowledged and recorded in Mississippi, under which they claimed title to the slaves sued for. After the trial, they obtained leave of the court to withdraw the original deed, on filing a copy, desiring to use the original in another suit pending in Ouachita county. They accordingly withdrew the original, substituting in lieu thereof, a certified copy of the deed, from the record thereof, in Mississippi. But the clei’k omitted to enter of record the order of court, permitting the original deed to be withdrawn, &c., and failed to note the filing of the copy substituted. That, in consequence of these omissions of the clerk, and the copy of the deed from the Mississippi record, so substituted for the original, being transcribed in a bill of exceptions taken at the trial, and brought up in the original transcript, it was made to appear that the appellees read in evidence, upon the trial, the record copy of said deed, instead of the original, &c.

The court below, in term, upon application of the appellees, on due notice to the appellant, and iqion satisfactory proof of the facts stated above, ordered tbe original deed, and certificates attached thereto, to be re-filed and made part of the record, as of the date it was originally filed on the trial of the cause.

A transcript of the proceedings to amend the record, including the original deed, &e., so re-filed, was afterwards made out, and brought here, as upon certioran-i, as above stated.

Tbe power of the Circuit Court to amend its record, so as to make it speak the truth, and the mode of doing it, have been sufficiently discussed and settled in tbe case of King & Houston vs. The State Bank, 4 Eng. Rep. 185, and Arrington vs. Conrey et al., decided at tbe present term. The proceedings to amend in this case, being substantially in conformity with these decisions, we shall treat the matter of the amendment, as part of the record in the cause here.

ON the MERITS, &c. — In August, 1853, Rufus E. Arnold, (suing in right of his wife Mildred M.) and Mildred M. Arnold his wife, and the said Rufus E. Arnold suing as the guardian of Joel Burke, Samuel Burke, and Malcom McNeill Burke, minors, &c., brought an action of replevin, in the detinet, against Hector McNeill, in the Dallas Circuit Court, for the recovery of a negro woman named Lizzy, and her children called Eliza, Aga, Ann, Phoebe and an infant child without a name.

The declaration alleged that the defendant, on the 1st day of September, 1851, received the woman Lizzy, and her children Eliza,, Ago,, Ann and Phoebe, tbe property of the plaintiffs, from one Yirgil J. Burke, to be delivered to tbe plaintiffs, with their increase, on request, &c., and that, after the reception by the defendant of the woman IAzzg, she gave birth to a child, the name and sex whereof were unknown to the plaintiffs, and which from its birth had been, and was still, in the possession of defendant, &c.; and that the defendant, although often requested so to do, had not delivered said slaves, or any of them, or said increase, to the plaintiffs, &c.

The writ, reciting that the plaintiffs complained that the defendant unjustly detained from them the woman Lizzy, and her fern' children, Eliza, Aga, Ann, and Phoebe, commanded the sheriff, upon the plaintiffs’ giving bond, &c., to replevy said “goods and chattels,” and deliver them to the plaintiffs, &c.

The sheriff returned upon the writ, that on the 3d of August, 1853, the day it issued, he replevied and delivered to the said Enfus E. Arnold, the slaves Lizzy and her four children, Eliza, Aga, Ann, and Phoebe — no mention is made in the writ, or the return of the sheriff, of the unnamed infant child of the woman Lizzy, described in the declaration.

At the return term, (Sept. 853.) the defendant filed three pleas : 1st. Non detinet; 2 d. IS on eepit, (f) and third, property in himself, to which issues were made up.

At the September Term, 1854-, the death of Mrs. Arnold was suggested, and the cause was ordered to abate as to her, and progress in the names of the other plaintiffs. Whereupon, the cause was submitted to a jury, who returned a verdict that the slaves Lizzy, and her four children, Eliza, Aga, Ann and Phoebe, and also the unnamed child of Lizzy described in the declaration, were the property of the plaintiffs, and assessed damages by way of hire, at $116 66. The court rendered judgment, as follows, upon the verdict: “ It is therefore considered by the court, that the plaintiffs, Rufus E. Arnold, in right of his wife, Mildred M. Arnold, and the said Rufus K. Arnold, as guardian of Samuel Burke, Joel Burke, and Malcom McNeill Burke, minors, do have and retain the possession of the negro slaves in said declaration mentioned, and that they recover of, and from said defendant, Hector McNeill, the sum of $116 66, for their damages sustained, besides all their costs,” &c.

The defendant moved for a new trial, on the grounds that the verdict was contrary t.o law and evidence; and that the court erred in its decisions upon a number of points raised pending the trial. The motion was overruled, and the defendant excepted, and appealed to this court.

There being no total want of evidence to sustain the verdict of the jury, upon any material matter in issue, the evidence need not be stated further than may be necessary to understand the several questions of law decided by the court, and complained of as erroneous by the appellant.

1. It is insisted by the appellant, that the suit should have been brought in the name of Nathaniel Glover, and not in the names of the appellees. The appellees claimed title to the slaves, under the following deed, purporting to have been executed by Samuel Burke, &c.

“This deed of bargain and sale, made and entered into, this, the 15th day of March, A. D., 1841, between Samuel Burke, of the county of Christian, and State of Kentucky, of the first part, and Nathaniel Glover, of the county of Lownds, and State of Mississippi, of the second part, and Lucy Ann Burke, of the county of Noxube ,and of the State last aforesaid of the third part, wit-nesseth: That whereas, the said party of the third part, heretofore, to wit: on the — day of — A. D., 1834, intermarried with Yirgil J. Burke, son of the said party of the first part; and whereas, the father of the party of the third part upon such marriage gave and conveyed to the said party of the third 'part, and her said husband, property of great value, which, by misfortune, and bad management of the husband of the party of the third part, has been squandered and spent; and whereas, the said party of the first part, being desirous and anxious to settle upon and convey to the said party of the third part, and the heirs now begotten, and the heirs to be begotten of her body by the said Yirgil J. Burke, the property hereinafter mentioned, to be free from the control, interference, management or debts of the said Yirgil J. Burke; therefore, be it known by this deed, that in consideration of love and affection towards my said daughter-in-law, the party of the third part, and the heirs of her body begotten and to be begotten by the said Virgil J. Burke, and in the further consideration of the sum of ten dollars cash in hand paid the party of the first part, by the party of the second part, the receipt and payment of which is hereby acknowledged, hem, the day of the date hereof, granted, bargained, sold and delivered unto the party of the second part, the following described property, to wit: One negro woman, Lizzy, aged twenty years; one boy, Thomas, aged twelve years ; one girl, aged three years; one girl, Louisa, two years; one negro boy, Nathaniel, aged two months; one wagon, one barouche, one sorrel horse, two dark bay horses, and two feather beds and furniture, to have and to hold, unto the party of the second part in trust, and ’ upon the conditions herein-after mentioned; that is to say, the said party of the second part has the aforesaid property conveyed to him in trust for the party of the third part, and the heirs of her body to be begotten 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 property, 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 appropriated in the education and maintenance of the children of the party of the third part as aforesaid, the proceeds arising from the labor thereof to be kept distinct and separate from the property of the husband of the party of the third part, and free from any control or dominion by him ; and upon the further trust also, that if the said party of the third part shalFdepart this life, before the heirs of her body aforesaid shall arrive to the age of twenty-one years, then the property aforesaid and all the income thereof, shall be absolutely vested in the said children by the party of the third part lefias aforesaid ; but if the party of the third part shall not depart this life, then, in that case, the property before mentioned, and its increase, shall remain in the trustee for the purposes aforesaid, until the youngest child shall become of age, and then an absolute title shall vest in the said heirs to an equal portion of said property and its increase ; and the party of the second part does hereby agree and consent with the other parties to this deed, to do and perform all and every act that may be necessary to carry into full effect this deed. The said party of the second part is hereby vested with full and complete power so to manage the property aforesaid, and the increase thereof, that the same may be subjected and applied as this deed directs.

In witness whereof, the parties to this deed have hereunto set their hands, and affixed their seals, this 15th day of March, A. D., 1841.

his

SAMUEL M BUKE, [seal.]

mark.

NATHANIEL GLOVER, [seal.]

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 declaration are her children; that Mrs. Burke, wife of Virgil J. Burke, died in the year 1850, leaving four minor children, Samuel, Malcom, Jodi, and Mildred M., (who afterwards married Arnold,) and in whose behalf this suit was brought.

It is manifest that, by the terms of the deed, upon the death of Mrs. Burke, the title to the slaves therein mentioned, passed out of Glover, the trustee, 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, properly brought in the names of the appellees. Liptrot ad. vs. Holmes, 1 Kelly 381; Jones vs. Cole, 2 Bailey’s Rep. 330; Bradley vs. Hughes, 11 Eng. Chan. Rep. 368; Tullet vs. Armstrong, 17 Eng. Chan. Rep. 3.

It follows, also, that Nathaniel Glover, the trustee, was a competent witness in the cause, his interest having terminated upon the death of Mrs. Burke. Nor did the court err, in instructing the jury, at the instance of the appellees, against the objection of t-lie appellants, as follows. 3d. That the right, of possession to the negro slaves accrued to .the said minor heirs, immediately upon the death of Lucy Ann Burke, by the operation of the deed read in evidence by said plaintiffs ; and that all right and title to said negro slaves immediately vested in said heirs, upon the happening of said event.”

2. Did the court err, in permitting the appellees to read in evidence, the original deed of trust, above copied, upon the proof produced by them of its execution ?

To the deed were attached the following certificates :

“THE STATE OF MISSISSIPPI,

LowNds Oouxty.

Personally appeared before me, Ilendley S. Bennett, Judge of the 6th Judicial District for said State, the above named Samuel Burke and Nathaniel Glover, and acknowledged that they signed, sealed and delivered the foregoing deed on the day and year therein mentioned, as their act and deed, and for the purposes therein expressed.

Given under my hand and seal, the lfítli day of March, A. D., 1841.

HENDLEY S. BENNETT, [seat,.]

Judge Qth Jud. Circuit, Miss.”

“THE STATE OF MISSISSIPPI, 1

Noxube OoüNty. j

I, John B. Iloberts, clerk of the Probate Court of said county, do hereby certify 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 my hand and seal of office, at Macon, this the 8th June, A. D., 1841.

JOHN B. ROBERTS, Olerk.”

To all who shall see these presents, greeting : Be it known, that John B. Roberts, whose name is subscribed, to the annexed certificate, was, on the day of the date thereof, clerk of the Probate Court of JVoxube county, in the State of Mississippi ; that his attestation to the annexed certificate is in due form of law, and made by the proper officer, and that full faith and credit are due to all his official acts.

In testimony whereof, I have caused the great seal of the State, to be hereunto affixed. Given under my hand at the city of Jackson, this 19th day of May, A. D., 1854.

By the Governor:

[l. s.] JOHN J. MoRAE.

¥m. H. Muse, Seereta/ry of State.'''1

Before the appellees offered to read the deed in evidence, they introduced Abner A. Stith, who, being sworn, stated that “he was a practicing attorney in the State of Mississippi, at the time of the date of said deed, and it was his opinion that the law of said State, at that time, required such instruments to be recorded. That he had heretofore examined a copy of said deed; thought it had been properly acknowledged and recorded ; that laws of Mississippi in relation to recording of such deeds somewhat similar to laws of Arkansas.”'

TJpon the certificates attached to the deed, and the testimony of Stith, the court permitted the appellees to read the deed to the jury, against the objection of appellant. Was it competent for the appellees to prove the registration statutes of Mississippi, by parol, without any showing that a higher grade of evidence could not be obtained ?

In Barkman vs. Hopkins et al., 6 Eng. R. 168, Mr. Justice Wal-Kee, said: “ The plaintiff offered the deposition of one skilled in the laws, and familiar with the practice of the State of Louisiana, and also the laws of the State of Louisiana, purporting to be pub-lisbecl tinder the authority of the State, which were objected to as incompetent. The particular grounds of the objection are not pointed out. The deposition appears to be regularly taken, and we think the evidence competent legal evidence for the purpose of proving the laws and practice of that State, which before the Circuit Court upon the trial of the case required to be proven as any other fact necessary to sustain the issue. McRea, vs. Malton, 13 Pick. 49, is in support of this opinion. TJpon this poink we think there was no error.”

We do not understand the court as intending to decide, in this case, that the statute or written laws of Louisiana, were properly proven by parol. The case of McRea vs. Malton, 13 Pick., referred to in the opinion, does not so hold. In that case the court said: “The defendant has objected to the mode of proof, viz: by the evidence of witnesses, that the proceedings were according to the law of the State of North Carolina, and that by the law of that State, and usage there, the defendant was so far a party to the record against the principal, as to be bound to take notice of the proceedings against him, and also, of the subsequent proceedings against himself, as the bail. Now, we think it too clear for argument, that it was competent for the plaintiff to prove by witnesses that such was the law of North Carolina. It was the only way to establish it here, for it was their common um,writtenla/w, proveable here as matters of fact are to be proven. And upon recurring to the evidence, it was very clearly established, not only by the opinion of witnesses, who were of the profession, and in the practice of the law, but by the judicial decisions of the court there, in Woodfork vs. Broomfield, 1 Murphy 187.”

By referring to the transcript on file in this court, in the case of Barkman vs. Hopkins et al., we find that the witness, who gave the deposition referred to in the opinion of the court, and who was a practicing attorney of Louisiana, stated that, by ¿cm, usage, practice and decisions of the courts of Louisiana, service of citation on one of the partners of a firm, authorizes proceedings and judgment against the members of the co-partnership, &c.

Messrs. Watkins & Curran, the counsel who argued the case in this court, in favor of the competency of the deposition, said:

" The unwritten 1cm, customs and usages of a foreign country, or another State, may be proved by parol. 3 Phil. Ev. 1142, and cases cited, 6 Cranch. 274; 15 Serg., & Rawle 84; and it does not appear that the law, under which the service upon one partner is good service upon the firm, was in writing; and the laws of Louisiana were also proved by the printed statutes, under our statute.”

In the case now before ns, it must be understood that Stith testified as to the statutes of Mississippi, because, the registry system, both in England, and in the States of this Union, is statutory.

Story, in his CoNfliot of Laws, secs. 640, 641, 642, 643, 644, says: “ The general principle is, that the best testimony or proof shall be required which the nature of the thing admits of: or, in other words, that no testimony shall be received which presupposes better testimony attainable by the party who oifers it. And this applies to the proof of foreign laws, as well as of other facts. * * * *. Generally speaking, authenticated copies of written laws, &c., of a foreign government, are expected to be produced. For it is not to be presumed that any civilized nation will refuse to give such copies duly authenticated, which are usual, and necessary for the purposes of administering justice. It cannot be presumed that an application to authenticate an edict or law will be refused; but the fact of refusal must be proved. But if such refusal is proved, then, inferior proofs may be admissible. Curch vs. Hubbart, 2 Cranch. 237. * ® * * The usual modes of authenticating foreign laws (as of foreign judgments) are, by an exemplification of a copjr, under the great seal of the State ; or by a copy proved to be a true copy, or by the certificate of an officer authorized by law, which certificate must itself be duly authenticated. * But foreign unwritten laws, customs and usages, may be proved, and indeed must ordinarily be proved by parol evidence. The usual course is to make su ch proof by the testimony of competent witnesses, instructed in the law, under oath.” But, finally, adds the same author: “The mode, by which the laws, records, and judgments of the different States composing the American Union, are to be verified, has been prescribed by Congress, pursuant to an authority given in the Constitution of the United States,” &c.

In Robinson vs. Clifford, 2 Wash. C. C. Rep. 2, the court, said: “ The statute or written law of foreign countries, should be proved by the law itself, as written. The common, customary or unwritten law may be proved by witnesses acquainted with the law.

To the same effect are the following authorities. Packard vs. Hill, 2 Wend. 411; 4 Hill & Cowen’s Notes to Phil. Ev., part 2, page 330, and cases cited; Livingston vs. Mar. Ins. Co., 6 Cranch 274; United States vs. Otega, 4 Wash. C. C. Rep. 533, Dougherty vs. Snyder, 15 Serg. & Rawle 87; Kinney vs. Clarkson et al., 1 John. Rep. 394; Hemphill vs. The Bank of Alabama, 6 Sm. & Mar. 50; 1 Ib. 177; Camparret vs. Jarnegan, 5 Blackf. 375; Tyler vs. Trabune, 7 B. Mon. 306; 7 Monroe 584; Gardner vs. Lewis, 7 Gill Rep. 379

Mr. GeekNleae, in his work onEviDENCE, vol. 1, secsASQ, 487,48S, 489, states the law on the subject to be as stated by Story in his Conflict of Laws, above copied, but in a note to sec. 487, he cites the case of Baron De Bode vs. Reginam, 10 Jur. 217, where it was held in an English Court, that it was competent, for a learned French Advocate to prove a decree of the National Assembly of France, without an attempt to obtain a copy of the law itself.

"Whatever respect may be duo to this decision, it is well settled by the current of decisions in this country, that where it is necessary to prove the statutes of one State in the courts of another, they must be produced, but that the unwritten law's, custom, usage, practice, &c., may be proven by the testimony of witnesses skilled therein.

The Isi section of the 4th article A the Constitution of the United States, declares that “full faith and credit shall be given in each State, to the public acts, records and judicial proceedings of every other State ; and the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” The act of Congress of May 26th, 1790, passed in pursuance of this clause of the Constitution, declares, that “ the acts of the Legislatures of the several States shall be authenticated by having the seal of their respective States affixed thereto.” Digest {page 87. But this method of authentication is not regarded as exclusive of any other mode which the States may respectively adopt. 1 Greenl. Ev., sec. 489. Heneé, our Legislature has provided, that “the printed statute books of the several States and Territories of the United States, purporting to have been'printed under the authority of such States or Territories ,shall be evidence of the legislative acts of such States or Territories.” Digest, page 490; see Clark vs. Bank of Miss., 5 Eng. Rep. 516; May vs. Jameson, 6 Eng. Rep. 377; Dixon vs. Thatcher, 15 Eng. Rep. 141. And the Legislature has further provided, that “copies of any act, law or resolution, contained in the printed statute books of any of the States and Territories of the United States, purporting to have been ’printed by authority, and which are now, or may hereafter be, deposited in the office of the Secretary of this State, and required by law to be kept, certified under the seal of the Secretary of State, shall be admitted as evidence.” Digest, page 490.

These several modes of procuring authenticated copies of the statutes of our sister States, when required as evidence in -our courts, are so ample that there can be no necessity of resorting to parol testimony to prove them, the accuracy of which depends so much upon the memory, skill, &c., of the witness.

The court below, therefore, erred in permitting the deed of trust to be read in evidence to the jury, with no other proof of its execution than the certificates attached and the testimony of Stith. Dixon vs. Thatcher et al., 14 Ark. Rep. 147; Wilson vs. Royston, 2 Ark. Rep. 327; Stevens et al. vs. Bomar, 9 Humphreys’s 546; Brown vs. Hicks, 1 Ark. 233.

The court below did not err in refusing to sustain the motion ff the appellant to exclude the deed, because it had not been recorded in this State. This was not necessary in order to protect the rights of Mrs. Burke and her children. O'Neill vs. Henderson, 15 Ark. Rep. 235

The 8th instruction moved by the appellant, and refused by the court, relates also to the proof of the execution of the deed. The first clause of the instruction, that “ the plaintiffs must introduce the best evidence to prove the deed of trust, that the nature of the case will admit of,” was correct as a general principle of law, and applicable, as we have seen, to the mode of proving* the registry acts of Mississippi.

The second clause of the instruction, is as follows : “ That a certificate made by the Clerk and the Governor, and an acknowledgment of said deed in the State of Mississippi, is not the best evidence ; but there must bq first direct proof of the original, or the loss of the original, before the certificate of the Clerk and Governor will be admitted, as evidence in this ease.”

There being no competent' evidence to prove that the laws of Mississippi authorized the registration of such deeds, the certificates attached to the deed in question amounted to no proof of its execution.

Had it been proven that the laws of Mississippi authorize the acknowledgment and recording of such deeds, and make the original deed with the certificates of acknowledgment and registration attached, or a certified copy from the record, admissible as evidence without further proof of execution, the original deed, with such certificates, or a copy from the record, when properly authenticated under the act of Congress, of March 27th, 1804, (Digest, chap, on Authentication, sec. 2,) would, by virtue of that act, have the same faith and credit, as evidence in our courts, as they have by law or usage in the courts of Mississippi. Swift vs. Fitzhugh, 9 Porter 39; Smoot vs. Fitzhugh, Ib. 72; Mitchell vs. Mitchell, 3 Stew. & Port. 81; Tatum vs. Young, 1 Porter 310; Owings vs. Hull, 9 Peter's Rep. 627; Lee vs. Matthews, 10 Alabama 62; Rochester vs. Toler, 4 Bibb. 106; Pennel's Lessee vs. Weyant et al., 2 Harrington 505; Henthorn vs. Doe, 1 Blackf. 159; 1 Greenl. Ev., sec. 484; Buckmaster et al. vs. Job, 15 Illinois Rep. 328.

It is insisted by the appellees, that the execution of the deed of trust was sufficiently proven by the testimony other than the certificates attached thereto. It is true, that after the deed was admitted in evidence by the court, upon the certificates of acknowledgment, registration and authentication thereto appended, Nathaniel Glover, the trustee in the deed, and the second witness introduced by the appellees, testified that Samuel Burke signed the deed, that he executed it, &c. That witness was present when he acknowledged it before Judge Bennett, &c. Though it was irregular and contrary to the usual practice for the court to permit the deed to be read to the jury, until some competent proof of its execution had been produced, yet, if it was sufficiently proven after its admission, the irregularity was cured, and no injury resulted to the appellant of which he could complain here.

It is insisted by the appellant, that the grantor in the deed, or Judge BeNNett, before whom it purports to have been acknowledged by him, was more competent to prove its execution than Glover. That his testimony was of an inferior grade. There is nothing in this objection. There being no subscribing witness to the deed, if Glover saw it executed, he was as competent to prove the fact as the grantor, or Bennett. It would be a question of credibility between the witnesses for the jury to determine, and not of competency. The question of superior and secondary evidence does not arise in this instance at all.

But there is another decision of the court that must be considered in connection with the proof of the execution of the deed. The appellant took the deposition of Samuel Burke, by interrogatories. There are five interrogatories and responses thereto; the 2d, 3d and 4th of which the court suppressed upon the motion of appellees, on the ground that the interrogatories were leading, «fee., and appellant excepted. The deposition is as follows:

iC 1st. Question : Examine the naper marked A, and state if it is, or not, a bill of sale executed by you to Hector McNeill, for certain slaves therein mentioned ?

Answer: I believe it to be the same bill of sale, I executed to Hector McNeill.”

(The bill of sale here] referred to is a quit claim bill of sale from the witness to McNeill, for the slaves Lizzy, and her children, Louisa, Aga, Eliza, Phcebe and Ami, dated 21st July, 1851, reciting that Yirgil J. Burke had purchased Lizzy, the mother of the children, from one P. Allen, of Monroe county, Mississippi, and taken the bill of sale of Samuel Burke, dated 16th of October, 1840, and had of late sold the slaves to McNeill.).

“2d Question: State if you ever executed a deed of gift for the negroes mentioned in said bill of sale, or any of them to the heirs of Yirgil J. Burke, or any other person ?

Answer: I never did, to the best of my recollection.

2>cl Question: Did you, or not, ever have any interest in said slaves, except by a bill of sale executed to you by P. Allen, at the instance of Yirgil J. Burke, and without your knowledge 2

Answer: I never had any interest in them, other than the bill of sale, and that I have never seen, and know nothing of it only by hearsay.

4i/¿ Question: Did1 you or not ever pay any thing for "said slaves ?

Answer: I never did.

5th Question: Did or not Yirgil J. Burke tell you he had bought said slaves, and had the bill of sale made to you to prevent his creditors from taking them?

Ansioer: He told me he took the bill of sale in my name, but did not state his object.”

What constitutes a leading question was well enough defined in Clark adx. vs. Moss et al., 6 Eng. 741. "Where the question indicates to the witness the answer it is desired he should make, or furnishes him with one favorable to the point sought to be established by the examiner, it is leading. See, also, Pleasant vs. The State, 15 Ark. Rep. 624; Rogers vs. Diamond, 13 Ark. 473.

The second interrogatory was not leading. The ¿Amiwas. The fourth was not. ' The fifth, though not suppressed by the court, was clearly leading.

The second interrogatory and response, related to the execution of the deed of trust by Samuel Burke. Tie states that he never did execute it, to the best of his recollection. Glover testified that he did. The statement of both of them should have been submitted to the jury, and it was their province to pass upon the relative credibility of the witnesses, and to determine the truth of the matter, from all the testimony before them, relative to the execution of the deed.

3d. The next question arising upon the record is, whether the appellees should have demanded the slaves of appellant before suit.

The testimony conduces to prove, that Yirgil J. Burke and wife removed from Mississippi to Arkansas, in the year 1849 or 1850, bringing the slaves with them. That on the 16th of April, 1851, and after the death of Mrs. Burke, Yirgil J. Burke sold the woman Lizzy, and her children, Louisa, Aga, Eliza, Phoebe and Ann, to McNeill, the appellant, for $2050, executing to him a bill of sale therefor. That, from the time McNeill purchased the slaves until the bringing of this suit, he claimed, managed and^controlled them as his own property, and that during the time, he offered to sell one of them to one of the witnesses. No demand was proved.

At the instance of the appellees, and against the objection of appellant, the court charged the jury as follows : 2d. “Ifthe jury believe, from the evidence, that the said defendant exercised such acts of ownership over the said negro slaves, at the time of, or before the institution of this suit, as to be inconsistent with plaintiffs’ title to the same, it waives a necessity of a demand for the same.”

On the same point the appellant moved the following instructions : 3d. “If the defendant purchased the negroes for a valuable consideration, supposing that he was acquiring a good tit!demand must be made before the action will lie.”

8th. “If'the jury believe, from the evidence, that the defendant was a lonco fide purchaser of the slaves in controversy for a valuable consideration, and has exercised no acts of ownership over said slaves to defeat the plaintiffs in their claim, demand of the slaves is necessary before the action will lie, and without it the jury must find for the defendant ”

Each of these instructions the court gave, with the following qualification : “ Unless the defendant did acts inconsistent with the title of the plaintiffs, by selling or attempting to sell, or any other act not consistent with the plaintiffs’ title, then no demand was necessary.”

In the case of Pirani vs. Barden, 5 Ark. R. 81, it was doubted whether replevin in the detinet would lie, except in cases of bailment, actual or constructive, under our statute ; and it was held that a demand must bo averred and proven in this form, of action.

In Beebe vs. DeBaun, 3 Eng. Rep. 562, the case of Pirani vs. Barden, was reviewed, and it was held that the action was not confined to cases of bailment, but that the right of immediate possesssion on the part of the plaintiff, and an unlawful withholding by the defendant were sufficient to maintain the action. It was furthermore held that, even in cases of bailment, demand was not always necessary; that proof of conversion on the part of defendant, or of acts amounting to conversion, would dispense with proof of demand. The doctrine of this case has been repeatedly approved by the subsequent decisions of this court. See Phelan vs. Bonham, 4 Eng. Rep. 389; Cox et al. vs. Morrow, 14 Ark. Rep. 609.

In Beebe vs. DeBaun, Mr. Chief Justice JoiiNSON remarked: We think that under a fair construction of our statute, where a party innocently purchases property, supposing he should acquire a good title, he ought not to be subjected to an action, until he has an opportunity to restore the goods to the true owner,” &c. This remark, however, was but an obiter dictum.

In Prater adm. vs. Frazier & wife, 6 Eng. Rep. 257, the defendant moved the court to instruct the jury, “ that when a party comes lawfully and peaceably into possession of property, which he treats as, and believes to be his own, he cannot be sued for the same, without a previous demand therefor,” &c.

In commenting upon this instruction, this court, by Mi’. Chief Justice JohnsoN, said: “ The very reverse of the instruction would seem to be the law. . \Yhere a party comes lawfully and peaceably into the possession of property, which he treats and believes to be his own’, instead of entitling himself to a demand before suit, he most clearly forfeits such right,” &e.

In O'Neill vs. Henderson, 15 Ark. 235, the separate property of the wife was levied upon and sold for the husband’s debts; and it was held that her trustee could bring detinue against the purchaser without demand. '

In cases of bailment, the possession of the bailee is deemed in law the possession of the bailor, and in order to terminate the relation of bailor and bailee, and put the latter in the wrong so as to maintain an action against him for the goods bailed, there must be a demand and refusal, or a conversion of the goods by the bailee, which is equivalent to demand and refusal. Liptrot adm. vs. Holmes, 1 Kelly 391, and cases cited.

In the case before ns, there was no bailment, actual or constructive, according to the evidence. The very act of purchasing-the slaves by McNeill, was at war with any title the appellees may have bad thereto, and his subsequent possession was adverse to their claim.

It is true, that the declaration alleges a bailment, but this, like the allegation of finding in trover, is not a material averment. Beebe vs. DeBaun; Cox et al. vs. Morrow.

If the demand was necessary in order that appellant might have had an opportunity of surrendering up the slaves, and avoiding costs of an act ion, demand would be necessary in most cases, where a canse of action accrues to one against another.

4th. The court refused to charge the jury, on the motion of appellant. 7th. that, “if the jury believe, from the evidence, that Virgil J, Burke bad peaceable possession of the negroes for five years previous to the sale to Hector McNeill, the law vested such a title in Burke as made his sale of said negroes to the defendant in this suit, a valid one.”

Glover testified that, immediately after the execution of the deed, he delivered the slaves to Burke and wife, upon the instruction of Samuel Burke, to wait on them. That they remained in possession of the slaves, some eight years, when Virgil J. Burke moved to Arkansas, with the negroes in his possession, and after-wards sold them to McNeill, &c.

Where the wife has a separate estate in slaves, and the husband and wdte live together, the possession of the husband is the possession of the wife. Lee vs. Matthews, 10 Ala. Rep. 682.

5. (¡Rover, in his examination in chief, by the appellees, testified as follows: “ Old Samuel Burke, after he had bought the negroes mentioned in the deed, sent them through me to Virgil J. Burke and his wife; the money with which I purchased said negroes, was sent to me by old Samuel Burke. I purchased said ne-groes under his orders, and after they were purchased, he being informed came down and executed the deed. Old Samuel Burke then resided in Kentucky ; his son, Virgil J., lived in Lownds county, Mississippi. The old man came to my house, got me to go to Judge Bennett, who wrote the deed, &c., &c. In the first place, after I bought the negroes mentioned in said deed, and took them home, Samuel Burke came a few days afterwards, and t.old me to give the negroes to Virgil J. Burke and his wife, to wait on them. I did so, after the deed was executed,” &c.

On cross-examination by the appellant, Glover stated further: “I purchased said negroes, and took a bill sale for the same in said Samuel Burke’s name.” (Defendant thereupon moved to exclude all the parol testimony in relation to the purchase of said slaves, because said bill of sale was not offered in evidence, or its absence accounted for; which motion was overruled and defendant excepted.) “ Old Samuel Burke sent, me by Mrs. Virgil J. Burke, $1000, and wrote me a letter, telling me that he had sent the money by Mrs. Burke, to buy as many negroes as the money would purchase. I gave $900 of the money for Lizzy, and her children, &c. "When Samuel Burke wrote to me, I recognized his signature which was a mark different from other persons, being a kind of Y turned up.

It seems also that appellant moved the court to exclude the evidence of Glover in reference to his agency for Samuel Burke, unless the letter which he referred to, was produced, or its non-production accounted for; but the court overruled the motion and appellant excepted.

The court, upon the motion of appellees, and against the objection of appellant, instructed the jury as follows: 1st. “ If the jury believe, from the evidence, that Samuel Burke executed the said deed introduced by the plaintiffs for the negroes, and for the purpose therein mentioned, and that the negroes sued for are a portion of said negroes, or the increase of the same, and that, at the time of the execution of said deed, the said negroes were the property of the said Samuel Burke, they must find for the plaintiffs. And that the possession of said negro slaves by the said Samuel, either by himself or his agent, at the time of the execution of said deed, is prima-facie evidence of the said Samuel being owner thereof, and that the burden of proof devolves upon the defendant to rebut the same.”

No controversy arises in relation to the correctness of this instruction, except as to the last clause of it, and there can be no doubt of its being substantially correct.

"Where a party suing for a chattel, proves that he purchased it from one in ¡sossession of it, he makes a prima facie case of title, and the onus probmdi is shifted to the opposite party. And as a general rule, the possession of the agent is the possession of the principal.

The appellant moved, also, the following instruction: éáh. “The best evidence must always be given to substantiate any fact that the nature of the case will admit of. If Glover aeted as agent of Samuel Burke, and bought the negroes in the deed of trust, and took a bill of sale for them at tbe time, in tbe name of Samuel Burke, tbe bill of sale is tbe best evidence and must be produced, or tbe loss or absence of it accounted for, before parol, or secondary evidence is introduced; and without such bill of sale or such accounting, tbe jury will not consider tbe parol proof as to tbe sale to Samuel Burke.”

The court refused to give this instruction, remarking to tbe jury, that tbe court thought it not material whether Glover took any bill of sale to Samuel Burke or not, and that the bill of sale bad nothing to do with plaintiff’s claim of title. ■

Glover, in bis examination in chief by appellees, swore that he purchased tbe slaves for Samuel Burke, but said nothing about taking a bill of sale for them. The appellant on cross-examination, called out the matter about tbe bill of sale. If, by showing that Glover took a bill of sale to Samuel Burke for tbe slaves, tbe appellant could compel tbe appellees to produce it, or account for its non-production, they might also have shown that the person of whom Glover purchased, bad a bill of sale from some other person, and require that to be produced, &c., and so on without limit.

The appellant also moved the following instruction, which the court refused : 10th. “ The plaintiffs must prove that Samuel Burke bad tbe negroes in bis possession either by himself or agent; if by agent, that agency must be proved, and if that agency was by letter, or other writing, the -writing or letter must be produced, or accounted for before parol proof of that agency will be admitted. ”

There can be no question but that, if the authority of an agent is shown to be in writing, the writing must be produced and proved, or its non-production accounted for, in order to admit secondary evidence of the agency. 2 Greenlfs. Ev., see. 63.

6th. It is moreover assigned for error, that the court erred in rendering judgment in favor of Bufus E. Arnold in right of his wife.

When the suit was brought, Mrs. Arnold was in life, and the action being for the recovery of outstanding chattels, in which she claimed an interest jointly with her brothers, it was proper to join her husband in the suit. Cox et al. vs Morrow.

Before her death, the return .of the sheriff upon the writ shows that he delivered to Arnold the slaves lÁzzy, and her four children, Eliza, Aga, Arm and Phoebe, and upon the trial, the sheriff testified, that he also took from the appellant, and delivered to Arnold at the same time, the unnamed infant child of Lizzy, described in the declaration. Thus, before the death of IVlrs. Arnold her husband reduced the slaves into his possession, and thereby, we must hold for the purposes of this suit, perfected his title to his wife’s interest in the slaves. Cox et al. vs. Morrow. The judgment was, therefore, in good form.

There was, it is true, a variance between the declaration and the writ, in reference to the number of negroes sued for, -the writ omitting the unnamed infant, but the defendants pleaded in bar of the act’on, without attempting to take advantage of £he 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.