Leland v. Wilkinson (31 U.S. 317)

THIS case came before the court on a certificate of division in opinion of the judges of the circuit court of the United States for the district of Rhode Island.

The same cause was before the court on a writ of error at January term 1829. 2 Peters, 267. The case was again tried in the circuit court of Rhode Island at June term 1830; and the points on which the judges of that court were divided were certified to this court.

After the case had been argued by Mr Dutton for the plaintiff, with whom also was Mr Webster; Mr Whipple for the defendant, with whom also was Mr Wirt, proposed to read, as evidence of the law of Rhode Island upon the probate of wills and granting of administration, and of the other matters therein stated, the following certificate:

'State of Rhode Island and Providence Plantations. Secretary's office, January 7, 1832. I certify, that from an examination of the records of said state it appears, that on the 1st day of March 1663, an act was passed entitled, 'an act for the probate of wills and granting of administrations.' That in and by said act the probate of wills and granting administrations was vested in the town councils of the respective towns: that an appeal lay to the governor and council as supreme ordinary or judge of probates, who continued to exercise such jurisdiction until June 1802, when all appeals then pending, with the jurisdiction thereof, were transferred to the supreme judicial court, by whom it is now exercised.

I further certify, that from the year 1666 until June 1729, the general assembly took cognizance of and tried appeals from the general court of trials; which court was composed of the governor, deputy governor, and assistants. That at June session 1729, an act was passed establishing a superior court of judicature, consisting of the governor, deputy governor, and assistants. That thereby an appeal in personal actions was allowed from said superior court to the general assembly. That the general assembly continued to try appeals therefrom until June 1741, when a court of equity was established and authorised to hear appeals in personal actions from the superior court of judicature agreeable to law and equity, in as full and extensive manner as the general assembly had been accustomed to do. That in February 1743, an act was passed abolishing said court of equity, and authorising said superior court to review causes by them decided.

I further certify, that the general assembly of the colony, and also of the state, have been and now are accustomed to exercise a revisory power in granting new trials, upon petition therefor.

That the assembly have and now do license the sales of real estate for the payment of debts of persons deceased, upon petition of the executor or administrator; and also license the sale of the real estate of minors upon petition of the guardian.

Witness,

HENRY BOWEN, Secretary.

By his excellency, Lemuel H. Arnold, governor, captain-general and commander-in-chief of the state of Rhode Island and Providence Plantations. Be it known that the name 'Henry Bowen,' to the aforesaid written attestation subscribed, is the proper hand writing of Henry Bowen, Esquire, who, at the time of subscribing the same, was secretary of the state aforesaid, duly elected and qualified according to law: wherefore, unto his said attestation full faith and credit are to be rendered.

In testimony whereof I have hereunto set my hand and caused the seal of said state to be affixed, at Providence, this seventh day of January, in the year of our Lord one thousand eight hundred and thirty-two, and of independence the fifty-sixth.

LEMUEL H. ARNOLD.

By his excellency's command. HENRY BOWEN, Secr'y.'

Mr Webster objected to the introduction of this paper in evidence.

Mr Justice Baldwin. It is evidence of local law.

Mr Justice Thompson. The paper is evidence of the dates of the laws, but it is otherwise inadmissible. If it is offered as evidence of a custom in Rhode Island, it should have been laid before the jury, by whom the question whether such was the custom should have been decided. The facts stated in the certificate cannot be inquired into by this court in this form.

Mr Justice Story. It is incompetent evidence. The laws must be produced to show what they are, and their dates. They may be certified by the officer. If the usage of the state of Rhode Island is to be inquired into, it should be established in the court below.

Mr Justice Duvall and Mr Justice M'Lean concurred with Mr Justice Story.