and shows that it was inserted simply by way of caution, so that if it turned out that the university had lost her title, that act should not restore it. May Term, 1854. THE STATE V. THE TRUS TEES OF THE We may as well here remark, also, that the petition for a rehearing seems to doubt the validity of the appointment VINCENNES by the legislature in 1838 of new trustees in the places of UNIVERSITY. a part of those then existing. Had the then existing trustees resisted, as in the case cited from Ohio, they would have ousted those appointed by the legislature. But they did not resist. They acquiesced, and their acquiescence cured all irregularities in the proceeding. But we are told in the petition for a rehearing that the act of 1838 is a private act, and can not be noticed by the Court because not set out in the pleadings. True it had been noticed throughout the examination of the cause, and had been treated as a part of it by the Supreme Court of the United States; but it is now insisted that we shall strike it from the record. It is said to be a private act, because the corporation to which it relates is a private one. But such a consequence does not necessarily follow. A private corporation may have charge of an interest of so public a concern as to render its charter a public act. This Court has repeatedly held the charter of the White Water Valley Canal Company such an act for this reason. White Water Valley Canal Company v. Boden, 8 Blackf. 130.-Hankins v. Lawrence, id. 266.-Russell et al. v. Branham et al., id. 277. But it is conceded by counsel, as it must be to be consistent, that the act creating the Vincennes university is a private one. This being so, it can only be noticed so far as placed upon the record. Only such parts of it are placed upon the record as show the creation of said university as a perpetual corporation, and its endowment with the fund in question. Those parts of the act requiring meetings of the trustees and specifying grounds of forfeiture, are not before the Court-can not be noticed; and, hence, the whole argument in the petition about the forfeiture of the charter by non-attendance at meetings, &c., is out of the case and destitute of a particle of force. May Term, 1854. THE STATE V. THE TRUS VINCENNES Treating both the acts in question as private, as counsel insist we shall, the case of the petitioners for a rehearing falls to the ground, the baseless fabric of a vision. We have said that the case was clear to 1838. There is TEES OF THE no proof evidencing that the corporation has since ceased UNIVERSITY. to exist. On the contrary, the record shows that in 1844 her board of trustees employed counsel, commenced suits, &c., and the act of 1846 recognizes an existing de facto board. It provides that the "board of trustees of the Vincennes university," &c. Now, if this acting board was not a legal one, it devolved upon the state to show it. She has not. Another point. It is contended that the plaintiff's bill does not sufficiently charge an ouster, and is, therefore, defective. It was not objected to below for this cause, and it can not be here; for the act authorizing the suit admits the ouster, and that act is expressly made a part of the answer. In the sixth section it provides that "for the purpose of entering a final decree in the premises, [the Court] may consider the state of Indiana as standing in the place of the present claimants now in possession of said lands by virtue of purchases from this state.” Were the bill defective, therefore, as alleged, a fact we do not admit, the answer cures the defect. The bill, answer, and act of the legislature show an ouster, but do not fix the time when it took place. This omission is supplied by the testimony of Mr. Judah. Objection is made to his evidence. But it is of a character such as is every day observed in our Courts. Witnesses are called to state as to points of time and of value, wherein they say they can not state precisely from actual knowledge, but are told to come as near as they can from all the facts they may be acquainted with, according to the best of their belief and judgment; and such evidence goes to the jury. Again. It is said the rule that a judicial sentence of forfeiture must be shown against a corporation when the question arises collaterally, does not apply in this case where the state is the party sued by the corporation. Admit May Term, 1854. THE STATE V. VINCENNES this to be true; still, in this latter case, a state of facts which would induce such a sentence in a direct proceeding, must be presented. Such a state has not been here presented. We admit that the act authorizing the suit THE TRUSallows the state to contest the corporate existence of the TEES OF THE Vincennes university; but she has not, in fact, availed her- UNIVERSITY. self of the privilege of doing it in the mode necessary in this case, viz., by showing a forfeiture. Suppose the state had instituted proceedings to procure a judicial declaration of forfeiture; how would she have done it? Would not charges, specifications, have been filed against the board of trustees, showing how, wherein, by what acts of omission or commission, the charter had been forfeited, that the trustees might have known what they were called to answer to? And, having made the charges, the burden of proof would have devolved upon the accusing party. But where are the charges in the present record against the Vincennes university? What is set up in the answer, or a cross bill against that corporation? Nothing. Not a charge is made. The question on the forfeiture of the charter of that university is not made. There is no proof against it, and could be none, because there is no charge; and in legal proceedings charges and proofs must correspond. Had the charter been actually surrendered, or had there been no de facto board of trustees, these facts, as also a judicial sentence of forfeiture, could have been shown under the pleadings now in the record. It is in this petition also for the first time objected that the Court can not make a decree in the premises. The whole scope of the act under which this suit is pending, shows that it was the intention that the Court should make a decree for the amount of the fund to which the Vincennes university might be entitled under the act; and the act expressly declares that the Court shall "enter a final decree in the premises." We think this a far-fetched, frivolous objection. On the subject of the statute of limitations, we see occasion for the addition of but this single remark: that we V. May Term, understand the law to be (which in this particular, at least, 1854. may be called the perfection of reason and justice) that when the state, by her legislature, makes a contract with individuals or an individual, which is within the scope of her powers, that contract is to be executed in good faith, according to the understanding and intention of the parties in making the contract. MYERS. Per Curiam.-The petition for a rehearing is overruled. 5 94 156 583 Thursday, May 25. HEBERD V. MYERS and Others. The R. S. 1843 contained a provision that the existence and tenor and effect of the laws of any foreign country, might be proved as facts by parol evidence; but if it appeared that the law in question was contained in a written statute or code, the Court might, in its discretion, reject any evidence of such law which was not accompanied by a copy thereof. That provision, as to the mode of proving a written law, was applicable to the laws of the several states of the United States. Where the Circuit Court has exercised a discretion, without obvious abuse, it is not the subject of review in the Supreme Court. ERROR to the Knox Circuit Court. STUART, J.-Assumpsit by Myers and others against Heberd on a promissory note made in New-York, and payable at a particular place in that state. Pleas, the general issue, and a special plea that according to the law of the state of New-York, at the time when, &c., a demand at the place, &c., on the day the note fell due, was essential to a right of action. Judgment for the plaintiffs below. It appears by a bill of exceptions, that the defendants introduced a witness to prove by parol the law of NewYork on that subject. But on objection made, the Court excluded the evidence. This is the only error complained of. In favor of the position assumed by the plaintiff in error, we are referred to 1 Greenl. Ev., ss. 486 to 489. But the text does not support that doctrine. Mr. Greenleaf lays it down as the rule, that the laws of the several states are to be proved in the Courts of another state as other foreign laws. They are facts, subject to the same rules of evidence as other facts. Of written law a properly authenticated copy is the best evidence. Unwritten laws, customs and usages may be proved by parol. 1 Greenl. Ev. s. 488. The author gives in a note a case decided by Lord Denman, in which a wide latitude is given as to the means of proving foreign laws. But it was the decision of a divided bench; and the fact that Mr. Greenleaf puts it in a note, and does not adopt the doctrine in the text, shows his opinion of its weight as authority. This Court has heretofore held that the statute laws of another state can not be proved by parol, if the laws themselves can be produced. Comparet v. Jernegan, 5 Blackf. 375. The case at bar is governed by the statute of this state. That provides, that "The existence and tenor and effect of the laws of any foreign country may be proved as facts by parol evidence; but if it appear that the law in question is contained in a written statute or code, the Court may, in their discretion, reject any evidence of such law which is not accompanied by a copy thereof." R. S. 1843, p. 730, s. 313. The witness introduced to prove the law of New-York by parol, was asked whether he was acquainted with the laws of that state, at the date of the note, relative to notes payable at a particular place; and if so, what those laws were? In answer, the witness stated, that at the date of the note, there was a written code of laws for said state. Here, says the bill of exceptions, objection being made, was sustained by the Court, and further evidence by parol touching such laws refused. It might have been better had the witness been permitted to explain somewhat more fully. And it was the right of the party introducing him to have accomplished that object by proper questions. But no other questions than those above given were put to the witness. Taking the questions and the answer together, it is suffi May Term, 1854. HEBERD V. MYERS. |