Cecil Bank v. Barry

Bartol, J., delivered the opinion of this Court: We have examined with much care, the interesting-questions presented in the briefs, and argued with great ability by counsel; and have prepared an opinion stating the conclusions we have reached upon the several points argued. But upon mature consideration we deem it unnecessary and improper, in disposing of this appeal, to go ²⁹⁴ beyond what was actually decided by the Coui't below. The only exception taken by the appellant was, to the rejection by the Superior Court of the five prayers offered by the plaintiff below, (now appellant.) If for any reason these prayers were defective there was no error in rejecting them; and the judgment must be affirmed, whatever opinion this Court may entertain upon other -questions which the prayers were intended to present. In the course of the trial below, the plaintiff gave in evidence certain laws of Pennsylvania, declaring the effect of assignments made by debtors in failing circumstances, for the benefit of their creditors, prescribing the time and place for recording such assignments, and also directing the mode in which deeds, conveying lands in that títate, if made out of the limits thereof, shall be executed, acknowledged and recorded.

These laws were proved by producing the printed statute books of that State. In each of the prayers offered, the Court was asked to submit to the jury the construction of those laws, and their effect upon the deed of trust made by John Herr to the appellee. Was it within the province of the jury to pass upon those questions? If not, then the objection to the prayers urged by the appellee, “that they called on the Court to submit to the jury a question of law,” would be fatal.

The appellant contends, that foreign laws must be proved as facts, and that their construction is exclusively for the jury, and in support of that position has cited Trasher vs. Everhart, 3 G. & J., 242 , Gardner vs. Lewis, 7 Gill, 395 . and Wilson vs. Carson, 12 Md. Rep., 72 . A brief examination of these cases will show that they do not sustain the appellants’ view. In Trasher vs. Everhart, Judge Archer stated the general rule to be, that foreign laws are facts to be found by the jury, but the point decided in that case was, that “when a foreign law is offered for the purpose of enabling the Court to determine a question of law, viz: ‘whether a written instrument is evidence ?’ in such case the evidence ²⁹⁵ always goes in the first instance to the Court, which, if the evidence be clear and uncontradicted, may and ought to decide what the foreign law is, and according to its determination on that subject, admit or reject the instrument of writing as evidence to the jury.” In Gardner vs. Lewis, there was no decision upon this point, for in that case “no evidence (of the foreign law) was offered either for the Court or the jury.” The case of Wilson vs. Carson, so far from supporting the appellants’ position, seems to us to establish the contrary. That case will be more particularly noticed presently.

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