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Ennis et al. v. Smith et al.

there should be a variance or want of clearness in the testi.

mony."

Notwithstanding the differences in the cases cited, we think that the true rule in respect to the admissibility of foreign law in evidence, may be gathered from them. In our view it is this, that a foreign written law may be received, when it is found in a statute book, with proof that the book has been officially published by the government which made the law. Such is the foundation of Lord Tenterden's ruling, in Lacen v. Higgens, 3 Starkie's Rep. 178. The case in 5 Sergeant & Rawle, 523, has the same basis. Though there are other reasons for the admission of the laws of the States into the courts of the United States as evidence, when they are officially published, yet they are only received when the genuineness of the publication is apparent. This court has so ruled in Hind v. Vattier, 5 Peters, 398, and in Owings v. Hull, 9 Peters, 607-625. It is true that we are called upon, as Judges, to administer the laws of the States in the courts of the United States, and that•the States of the Union are not politically foreign to each other, but there is no connection between them in legislation, and we only take notice of their laws judicially, when they are found in the official statute books of the State.

With these views, it remains for us to show that the Code Civil, offered in evidence in this case by the complainants, to prove their right to the succession of the intestate estate of General Kosciusko, is authenticated in such a way that it may be received by the court for the purpose for which it was offered. It was sent to the Supreme Court, in the course of our national exchanges of laws with France. It is one of the volumes of the Bulletin des Lois à Paris L'imprimerie royale, with this indorsement, “ Les Garde des Sceaux de France à la Court Supreme Des Etats Unis." Congress has acknowledged it by the act, and the appropriation which was given to the Supreme Court to reciprocate the donation. We transmitted to the Minister of Justice official copies of all the laws, resolutions, and treaties of the United States, and a complete series of the decisions of this court. We do not doubt, whenever the ques. tion shall occur in the courts of France, that the volumes which were sent by us will be considered sufficiently authenticated to be used as evidence. The gift and the reciprocation of it, are the fruits of the liberal age in which we live. We hope for a continuance of such exchanges between France and the United States, and for a like intercourse with all nations. Business men, jurists, and statesmen, will readily appreciate its advantages. It will save much time and expense when questions occur in the courts of different nations, involving the rights of

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Ennis et al. v. Smith et al.

foreigners, if the written laws of every nation were verified in all of them, by certified official publications to the governments of each. In the now rapid transit of persons and property, out of the sovereignties to which they belong, into the different parts of the world, such a verification would often speed and save the rights of emigrants, sojourners, and merchants.

We think that the Code Civil, certified to the court as it is, is sufficiently authenticated to make it evidence in this suit, and that it would be so in any other case in which it may be offered.

We proceed to state the law from it, applicable to the case.

It has been determined that the domicil of General Kosciusko was in France at the time of his death, that he died intestate as to his funds in the United States, and that they were to be distributed according to the law of his domicil.

It has been proved that he survived his parents, died without issue, and that these complainants are the lineal descendants of two of his sisters, one of whom died before her brother, and the other afterwards.

The fact of their relationship, notwithstanding the objection which was made to the proof of it, is sufficient.

The proofs are decrees of the Court of Nobility, of the Government of Grodno, and, another of the Court of Kobryn, in the Russian province of Lithuania. The originals are in the Orphans' Court, and were filed in it, in the regular course of judicial proceeding, Both of them are authenticated copies of judicial proceedings in the courts from which they are brought. The competency of the jurisdiction of those courts, in the matters decided in the decrees, is proved by witnesses skilled in the law of the governo ments of Lithuania. Lithuania we know to be now a Russian province, governed by its own laws, except as they may be modified by the Emperor's edicts. It is divided into three governments, Wilna, Grodno, and Minsk, with a Governor-General over them. The decree of the Assembly of the Department of Grodno, is an exemplified copy of that made on the 7th May, 1843, in the case of the heirs of Kosciusko, and contains the genealogical chart of the descendants of the sisters of Kosciusko.

It is not a judgment inter partes, but a foreign judgment in rem, and is evidence of the facts adjudicated against all the world. The decree from the court of Kobryn is also proved to be a judicial record. From both we learn that the persons named in the bill of the complainants, are the collateral kinsmen of General Kosciusko. By the laws of France, they may take his estate by succession.

We shall reverse the decision of the court below, and direct the funds in controversy to be divided among them, according to the 750th article of the Code, which is, that in case of the

Ennis et al. v. Smith et al.

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previous decease of the father and mother of a person dead without issue, his brother and sister, or their descendants, are called to the succession, to the exclusion of ancestors and other collaterals.

All of the objections which were made against the rendition of a decree in favor of the complainants, having been considered - and overruled, it only remains for us to announce the sum for which the decree shall be given, and the proportions to be paid by the defendants, as the sureties of Bomford, under the act of. 1846.

It has been heretofore stated that these bonds were given under that act, to secure the amount then returned to the Orphans' Court by the administrator, and such assets as he might afterwards receive in that character. In his ninth account, he charges himself with a balance from the eighth account of $41,914.47, and after giving the estate credit for the sums subsequently received, and claiming credits, he admits that there was due to the estate on the 7th of June, 1847, 843,504.40, including the stock of the Bank of Washington, which was after his death transferred to Lewis Johnson, who became the administrator of Kosciusko, with the will annexed.

We shall enter a decree against the defendants for the sum of $37,924.40, with interest from the 7th June, 1847, until the same shall be paid.

The said decree is to be binding upon the sureties, Carrico, Stott, and George C. Bomford, and upon the sureties Gideon, Ward, and Smith, jointly and severally in the proportion which their respective bonds bear to the sum decreed, and the costs which have accrued in this suit. But in the event that the sureties in either bond do not pay the sum decreed against them, or any part thereol, then the sureties in the other bond shall be answerable for and pay the same to the extent of their respective bonds.

We shall also order a decree to be entered against the defendant, Lewis Johnson, not subjecting him to any costs from his having been made a defendant in this suit, directing him to turn over to the complainants the stock of the Bank of Washington, to which he is entitled as the administrator de bonis non of Kosciusko, and the dividends which have accrued thereon, allowing to hiin ont of the same, the costs incurred as administrator, commissions, and such reasonable counsel fees as may have been paid by him for services in matters pertaining to this case, in the Orphans' Court, and to this suit, after his account shall be filed, and be credited to him in the Orphans' Court.

Ennis et al. v. Smith et al.

Order. This cause came on to be heard on the transcript of the cecord from the Circuit Court of the United States for the Dis. trict of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of said Circuit Court dismissing the complainants' bill in this cause, be, and the same is hereby, reversed and annulled. And this court proceeding to render such decree as the said Circuit Court ought to have rendered, doth order, adjudge and decree, as follows:

First. That the legal domicil of Thaddeus Kosciusko, the party under whom the complainants below claim, was, at the period of his death, in 1817, in France.

Second. That as to the property and fund in controversy, he, the said Kosciusko, died intestate, his will of the 4th of June, 1816, in the proceedings mentioned, having revoked his prior will of 5th of May, 1798, and 28th of June, 1806, and without disposing of said fund, and the same not having been disposed of by the will of 10th October, 1817,

Third. That the said property and fund is to be distributed according to the law of France, the place of his domicil at the time of his death.

Fourth. That by the said law of said domicil, at said period, the said property belongs in equal moieties to the collateral kindred who were the lineal descendants of the two sisters in the case mentioned, of said Kosciusko, and complainants in the bill mentioned, that is to say, one moiety thereof to Hippolitus Estho and Roman Estho, grandsons of his sister Ann, and to Louisa Narhut, her granddaughter, a widow, and in the proportions between them of one half of said moiety to said Hippolitus Estho, and the other half of said moiety to said Roman Estho and Louisa Narbut, in equal shares, and the other moiety thereof to Vlandislaus Wankowieg, to Hippolitus Wankowieg, Adam Bychowiec, and to Michael Szyrma, also complainants, and in the proportions between them, as follows, that is to say, to Vlandislaus Wankowieg and Hippolitus Wankowieg, each of them one half of five sevenths, and of one third to each of another seventh, and to Michael Szyrma, one third of a seventh, and to Adam Bychowiec, one seventh.

Fifth. That the defendants' sureties in the bond of the 7th May, 1846, for $20,000, in the proceedings mentioned, taken under the authority of the act of Congress of the 20th of February, 1846, that is to say, James Carrico, Samuel Stott, and George C. Bomford, and the other defendants' sureties in the Ennis et al. v. Smith et al.

other bond therein mentioned, also taken under said act of Congress, and dated 4th of January, 1847, for $40,000, that is to say, Jacob Gideon, Ulysses Ward, and Jonathan B. H. Sunith, are each, and to the extent hereinafter decreed, responsible to the complainants for the amount also hereinafter decreed.

Sixth. It is further adjudged and decreed, that there is due, and that the same be paid, by said defendants, to the complainants above named, in the proportions herein stated, the sum of 837,924. with interest on said sum, at the rate of six per centum, from the 7th day of June, 1847, till paid ; that is to say, that the said defendants, James Carrico, Samuel Stott, and George C. Bomford, are jointly and severally bound to pay to said complainants, of said $37,924 %, the sum of $12,641.46}, with interest thereon, as aforesaid, from the 7th of June, 1847, till paid, and one third of the costs of this suit, in both courts, and they are hereby ordered and decreed to pay the same. And that the said defendants, Jacob Gideon, Ulysses Ward, and Jonathan B. H. Smith, are jointly and severally bound to pay to said complainants, the balance of said sum of $37,924 %, being the sum of $25,282.93;, with interest from the 7th of June, 1847, till paid, and two thirds of the said costs; and they are hereby ordered and decreed to pay the same.

Seventh. And it is further ordered, adjudged, and decreed, that, in the event the said sureties in the first bond, to wit: James Carrico, Samuel Stott, and George C. Bomford, do not pay the said $12,641.46ý, with interest, and one third of the costs, so decreed to be paid by them, as aforesaid, and every part thereof, that then the said Jacob Gideon, Ulysses Ward, and Jonathan B. H. Smith, the sureties in the second bond, as aforesaid, are bound to pay the same, and every part thereof, to the extent of the penalties of their said bond. And that, in the event that the said Jacob Gideon, Ulysses Ward, and Jonathan B. H. Smith, the sureties in the second bond, do not pay the said $25,282.93j, with interest and two thirds of the costs, so decreed to be paid by them, as aforesaid, and every part thereof; that then the said James Carrico, Samuel Stott, and George C. Bomford, the sureties in the first bond, as aforesaid, are bound to pay the same, to the extent of the penalty of their said bond.

And it is further ordered, adjudged, and decreed, that the defendant, Lewis Jounson, administrator de bonis non of Thaddeus Kosciusko, transfer and deliver over to said named complainants the stock of the Bank of Washington, belonging to him, as such administrator, amounting at its par value, to the sum of $5,580, together with all the dividends which have accrued on the same, less the costs of his administration, and reasonable counsel fees,

VOL. XIV.

37

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