#### BYRD MOORE vs. LITTLETON A. GWYNN.

•What is the law of another State, (not contained in a statute) is, like the law of foreign countries, a matter of fact to he tried by the jury, and cannot be determined by the .court.

Where a case arises under a statute of a sister State, the statute being properly authenticated under the act of Congress, or proved under our act of Assembly, it is the province of the court to decide both upon the existence of the statute and its proper construction.

So, where the plea of mul liel record is pleaded to a judgment or other proceeding in a court of record in another State, from necessity the court, to whom it is exhibited, decides not only upon the legal existence of the supposed record, but upon its effect.

The cases of Knight v. Wall, 2 Dev. & Bat. 129. State v. Jackson, 2 Dev. 563, and Garter v. Wilson, 1 Dev. & Bat, 364, cited and approved.

Appeal from the Superior Court of Law of Caswell County, at the Fall Term, 1844, his Honor Judge Pearson presiding.

This ease was before this court at the last Term, 4 Ired. 275, upon a motion for a new trial, because the judge then presiding had improperly rejected the testimony of Mrs. Gwynn, the widow of the deceased. She had been introduced to testify as to conversations between herself and her father, the present plaintiff, relative to the negroes, before they were sent to her husband. No objections were made either here or in the Superior Court, as to the propriety of the charge given to the jury, and the attention of this court was confined to the rejected testimony. In the opinion expressed as to that point, this court believed there was error. A new trial was directed, and the case is now sent up upon exceptions to the charge delivered on the last trial. The action is detinue, and brought to recover several slaves. The defence, that on the marriage of defendant’s intestate with the daughter of the plaintiff, he had given to the defendant the negroes in question ; that this took place in the State of Virginia, ■¡where the *188parties then all lived, and that the defendant had been five years in the possession of the slaves, one year in Yirginia, and the remainder of the time in this State. There was no proof ^ any eXpress gift • but it was shown, that shortly after the marriage, the negroes were sent by the plaintiff to the intestate, and remained in his possession to the time of his death. No more of the facts of the case are stated than are necessary to bring into view the relevancy of the instructions given, and which are complained of. The charge of the judge stated, “ that as this matte}- had taken place in Virginia, it was to be decided by the laws of that State. It was admitted, that a parol gift of slaves was valid in Yirginia, if the donee took and remained in possession. But the question of law contested was, whether, by the law of Yirginia, the presumption is, that it was á gift ór a loan. , If the law presumed a gift, then the burthen of shewing, it was a loan rested upon the supposed donor. If the law presumed it a loan, then the burthen of shewing it was a gift, rested upon th,e supposed clonee.” The court further charged-, “ that the jury was to be instructed by the court what the law of Yirginia was ; that by the law of Yirginia, when, soon after a marriage, a father sends negroes to a son-in-law,' the presumption is, that it was a loan.”

Under the charge'of the court, the jury found a verdict for tire plaintiff, and judgment being rendered accordingly, the defendant appealed. '

Kerr for the plaintiff.

Morehead for the defendant.

The first exception in this case, taken to the Judge’s charge, is: he assumed it us a point of law, that the court was to pass upon the existence of a foreign law. It is contended, that the jury are to pass upon it, as upon any other fact, and that it is the province of the court only to expound the law, in putting upon it a construction, when the jury have passed upon the fact.

Courts cannot take notice of the laws of a foreign State. They must be proven as facts, 3 Wooddeson, 306. Way v. Yally, 2 Salkeld, 561. In Talbot v. tSeeman, 1 Cranch, 38, *189Judge MaRshall says, “That the laws of a foreign State, designed only for the direction of its own affairs, are not to he' noticed by the courts of other countries, unless proven as facts.,>

The law of a foreign country, if written, must be proved by a copy properly authenticated. But when the unwritten law of a foreign country becomes the subject of controversy, such laws are proven by the parol examination of witnesses of competent skill and knowledge ; Peake’s Evidence, 110, 111.

In the State v. Jackson, 2 Dev. 563, and Knight v. Wall, 2 Dev. & Bat. 125, the court decided, “ That the courts of this State cannot take notice of the law of other States; they are facts to be proven to the jury, and theordvij^medtjpn to this rule is from the necessity of the casg^m pjehmf nul tiel record. Carter v. Wilson, 1 DfevWb Bat. ¡J

In Mostyn v. Fabrigas, Cowper 174«?1»<»^ MAgrWIjpffD laid down the rule, that foreign laws mi/sfoe provenas/fós, and the court must assist the to is.

In this case it is insisted, that the judgiWasin error in jjip-posing that the court was the tribunal to passTTp^thtTfacte.

2nd. But should the court be against’ the defendant upon the first point, it is then submitted, that the judge below was wrong in fact, and the opinions of gentlemen of the legal profession, the Revised Code, and adjudications by the Courts of Virginia, (all of which are made part of the cáse by agreement) do not support his conclusion, but lead to a directly different conclusion. 1 vol. Revised Code of Virginia, page 432, section 54; Moore, adm'r. v. Downey, 3 Henning & Mumford, 127; Brown v. Hardly, 7 Leigh, 119 ; Mahone v. Johnson, 7 Leigh, 317; Collins v. Loftus al. 10 Leigh, p. 5.

Nash, J.

Our only enquiry is, as to the legal correctness of the charge. Was his Honor correct in stating to the jury that they were to be instructed by the court, what the law of Virginia was, and in stating to them, what was that law ? In other words, was it a question of law for the decision of the *190court, or one of fact for the determination of the jury? We ~^at his Honor erred, and that it ought to ha-ve been left to the jury, as a question of fact. The ease does not arise under any statute of Virginia, but under the common law of that State. And we are scarcely at liberty at this day, to consider the question as an open one. Repeated decisions of this court have settled it. In Knight v. Wall, 2 Dev. & Bat. 129, the court say — “The court in this State do not know the law of other States, and a controversy respecting that law is ordinarily one of fact, which must be decided on evidence by the jury, under the instruction of the court. The only exception, we are aware of, is to be found, when the plea of mil tiel record is pleaded to a judgment or other proceeding in a court of record in another State, where from the necessity of the case, the court to whom it is exhibited, must pass, not only on the legal existence of the supposed record, but upon its effect.” Here then is an express adjudication, .establishing the law governing this case, and the cases referred to fully sustain it. State v. Jackson, 2 Dev. 563, and Carter v. Wilson, 1 Dev. & Bat. 364. In the first, it is decided that the existence of a foreign law is a fact. The court cannot judicially know it, and therefore it must be proved, and the proof, like all other, necessarily goes to the jury. What was the law of Virginia in this case, the existence of which was to be proved? The statute, which was read in evidence, speaks of gifts and loans, so far as the rights of creditors are concerned — in other words, a statute of frauds; it makes no regulations whatever as to the rights of the donor and donee, of the bailor or bailee, as between themselves. It is entirely silent as to any presumptions arising from the possession of the son-in-law. What was the presumption of law arising from such a possession, was the question governing the case — in fact, the law of the case. The first thing to be done, was to prove the existence of the law, and according to the opinion in the State v. Jackson, it was a question of fact to be decided by the jury. How was it to be done? In this case, by the testimony taken, and that consisted of the opinions of three gentlemen learned in the laws *191of that State, In one of these opinions it wa3 stated, that from such a possession of a son-in-law, a gift was presumed; and in another, that from sucha possession, a loan was presumed— and the third, that no presumption arose of either kind, but that it was a matter of fact to be determined by the jury, in view of all the circumstances attending the possession in each case. Here then'was a conflict of testimony upon the point in controversy, the existence of the law of Yirginia — -not contained in any statute or record, but to be found, if at all, in the common law of that State. The existence of such alaw could be proved only by the opinions of persons learned in that law. Instead of leaving that testimony to the jury to'be weighed by them, and directing their attention to the circumstances attending the possession of the intestate, the presiding Judge, considering it a question of law for the court, decides it himself, and informs them that, by the law of Yirginia, such a possession by a son-in-law, is presumed to be a gift. In so'charging the jury we think his Honor erred’.

We do not mean to say, that wíien a case arises under a statute of a sister State, it is not the province of the court to decide, both the existence of the statute and its proper construction. In such a case, the statute beihg aiithenticated in the manner pointed out by the' Constitution of the United States, and the act of Congress, both the fact of its existence and its proper construction, is matter for the court. So also, when the existence of such a statute is proved in the manner directed by the act of our Assembly, to the satisfaction of the jury, its exposition belongs to tiie court as entirely, in both the last cases, as if it were a statute of our own State. To the cases already cited,- from our own reports, as sustaining the view we have taken of the question involved in this case, may be added that of Brockett v. Norton, 4 Con. Rep. 517, and Thrasher v. Grill, 3 Gill & Johnston, 234, 242.

Per Curiam, Judgment of the Superior Court reversed; and' a venire d'e novo ordered.