Scott, Judge,
delivered the opinion of the court.
The most important question in this cause grows out of the will of Joachim Roy made in March, 1789. The will was executed in the presence of the lieutenant governor of the province (in default of a notary), and was attested by seven witnesses, together with the lieutenant governor. The will, it seems, was deposited among the archives of the Spanish government, and a copy of it was given out by the governor on the 24th of July, 1801, a few months after the death of the testator. Whether this - was a valid instrument without further proof under the Spanish law is the question now submitted.
By the common law a will of real estate was not proved in a probate court like a will of personalty. No probate was necessary to a will devising real estate. Indeed the probate courts in England had no authority to take the proof of such [69]*69wills. A will of the realty, when offered in evidence, was proved like a deed by the subscribing witnesses thereto, and presumptions in proof of ancient wills were indulged as in case of deeds.
Under the Spanish law there were several kinds or. species of wills. (Febrero, Libro 1, tit. 8, § 2.) The will involved in this litigation was under that law denominated an open or nuncupative one. A nuncupative will might be made with or without the assistance of a notary. (Civil Code of La. art. 1571 and 1574.) Nuncupative wills received by public acts were not required to be proved. Tlieir execution might be ordered ; they were full proof of themselves, unless they were alleged to be forged. (Art. C. C. 1640.) It may be said that the civil code is composed of legislative enactments and is not evidence of what the Spanish law was, as that law may have been changed by the legislature in adopting it into the code. But the Spanish law is the substratum of the code, just as the common law is of the legislation of this state. An annotation on the 82 law', tit. 16, Partidas 3, shows that the law of the code is in conformity to the Spanish law. That annotation says that when a will is made without the authority (authorizacion) of the notary, the testament must be proved by the witnesses ; clearly intimating that, if made in Ills presence and by his authority, no such proof would be required. To the same effect is note 4, law 3, tit. 2, Parti-das 6. All the law cited from the Partidas, in relation to testaments in the case of Meegan v. Boyle, 19 How. 149, concerns mystic or sealed wills, a will of a different species from that now under consideration ; and by the Spanish law, as well as by the code of Louisiana, each species has its particular mode of authentication and proof, the law sustaining the will, though intended for one species and failing under it, provided it can be maintained as valid under any other species. It is only necessary to turn to the second volume of the translated Partidas, at the beginning of the second title, p. 975, to be satisfied that the law cited in the foregoing opinion relates to secret wills, the manner of making which [70]*70may be seen by reference to pages 962 and ’3 of the same volume, and to Febrero, tit. 8, § 6. In confirmation of all this, we find that the wills made here under the Spanish government were executed with the assistance of a notary or of some one deputed by the chief officer of the province or of that officer himself, and were left among the archives of the government, just as by the Spanish law wills received by public act were left in the offices ('escribanías) of the notaries. We find no evidence that proof was ever made of such instruments, but that copies of them as public acts wore delivered to the'interested. Having intimated our opinion on this subject, if we have mistaken the Spanish law we can easily be corrected by reference to the learned in that law residing in our sister state, whose code has been used on this occasion.
In the trial of causes neither party is bound to ask instructions. If they are not asked, the giving them or not is at the discretion of the court. If instructions are asked on the whole case or of any particular matter arising out of it, which the court refuses, it is not bound afterwards to give instructions of its own as substitutes for those refused. If erroneous instructions are asked and refused, it is entirely at the option of the judge whether he will afterwards give any or not. A party therefore who asks an instruction on the whole case must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary. If a suit is on a bond for the payment of money, and the defendant gives evidence tending to show that he has paid it, it would not be proper for the court, at the instance of the plaintiff, to instruct the jury that if they believed that the defendant executed the bond, they will find for the plaintiff. Such instmction would be erroneous, as it would exclude from the jury all consideration of the question of payment. It is no answer to this to say that the defendant might have asked instructions, tie was not bound to do so, and it was at the peril of the plaintiff to ask instructions disposing of the whole case which excluded from the jury the consideration of the evidence of the defendant’s tending [71]*71to show that he bad no right to recover. We do not see how the depositions of the witnesses accompanying the record of the confirmation of the recorder are evidence of the facts stated in them. How they can be evidence at all except as to such matters as may be proved by hearsay it is difficult to say. This court has refused to reverse judgments in cases wherein they were read, not because they were regarded as any evidence of the facts stated in them, but because they might be admissible for some purposes, and being so it was the business of the opposite party to call upon the court to declare their effect in evidence. When reading the record as mere evidence of a confirmation, they should not be read. A record of a judgment is read in evidence ; would the depositions embodied in the bill of exceptions be read, or could they be evidence ? (Toney v. City of St. Louis, 21 Mo. 243; Soulard v. Clark, 19 Mo. 570.) If the original deposition was produced and the hand-writing of the witness proved, it would be evidence against him. But the plaintiff himself used such evidence, and it was of course open to the defendant, and they had a right to the full benefit of it. Under this view the depositions of the two Cailloux were evidence of an abandonment or of the non-existence of a claim on their part to the land in controversy. Whether the lot of which they spoke was the lot in controversy or another lot was for the jury to determine from the evidence. The defendants being so unfortunate as to have all their instructions on the subject of abandonment rejected by the court, the court was not therefore warranted in putting the case to the jury in such a way as would exclude the consideration of the effect of the evidence given by them on the subject of abandonment.
As the defendants had the benefit of the claim of J. Roy with the erasures in evidence, and as such evidence was of a tendency to throw doubt and mistrust on the claim of Roy, the claims of Guión and Tabeau, as they refer to Rion, were of some influence in strengthening the weight of the evidence of the erased entry. Certainly those papers mutu[72]*72ally strengthen and support each other as evidence for the defendant.
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Scott, Judge,
delivered the opinion of the court.
The most important question in this cause grows out of the will of Joachim Roy made in March, 1789. The will was executed in the presence of the lieutenant governor of the province (in default of a notary), and was attested by seven witnesses, together with the lieutenant governor. The will, it seems, was deposited among the archives of the Spanish government, and a copy of it was given out by the governor on the 24th of July, 1801, a few months after the death of the testator. Whether this - was a valid instrument without further proof under the Spanish law is the question now submitted.
By the common law a will of real estate was not proved in a probate court like a will of personalty. No probate was necessary to a will devising real estate. Indeed the probate courts in England had no authority to take the proof of such [69]*69wills. A will of the realty, when offered in evidence, was proved like a deed by the subscribing witnesses thereto, and presumptions in proof of ancient wills were indulged as in case of deeds.
Under the Spanish law there were several kinds or. species of wills. (Febrero, Libro 1, tit. 8, § 2.) The will involved in this litigation was under that law denominated an open or nuncupative one. A nuncupative will might be made with or without the assistance of a notary. (Civil Code of La. art. 1571 and 1574.) Nuncupative wills received by public acts were not required to be proved. Tlieir execution might be ordered ; they were full proof of themselves, unless they were alleged to be forged. (Art. C. C. 1640.) It may be said that the civil code is composed of legislative enactments and is not evidence of what the Spanish law was, as that law may have been changed by the legislature in adopting it into the code. But the Spanish law is the substratum of the code, just as the common law is of the legislation of this state. An annotation on the 82 law', tit. 16, Partidas 3, shows that the law of the code is in conformity to the Spanish law. That annotation says that when a will is made without the authority (authorizacion) of the notary, the testament must be proved by the witnesses ; clearly intimating that, if made in Ills presence and by his authority, no such proof would be required. To the same effect is note 4, law 3, tit. 2, Parti-das 6. All the law cited from the Partidas, in relation to testaments in the case of Meegan v. Boyle, 19 How. 149, concerns mystic or sealed wills, a will of a different species from that now under consideration ; and by the Spanish law, as well as by the code of Louisiana, each species has its particular mode of authentication and proof, the law sustaining the will, though intended for one species and failing under it, provided it can be maintained as valid under any other species. It is only necessary to turn to the second volume of the translated Partidas, at the beginning of the second title, p. 975, to be satisfied that the law cited in the foregoing opinion relates to secret wills, the manner of making which [70]*70may be seen by reference to pages 962 and ’3 of the same volume, and to Febrero, tit. 8, § 6. In confirmation of all this, we find that the wills made here under the Spanish government were executed with the assistance of a notary or of some one deputed by the chief officer of the province or of that officer himself, and were left among the archives of the government, just as by the Spanish law wills received by public act were left in the offices ('escribanías) of the notaries. We find no evidence that proof was ever made of such instruments, but that copies of them as public acts wore delivered to the'interested. Having intimated our opinion on this subject, if we have mistaken the Spanish law we can easily be corrected by reference to the learned in that law residing in our sister state, whose code has been used on this occasion.
In the trial of causes neither party is bound to ask instructions. If they are not asked, the giving them or not is at the discretion of the court. If instructions are asked on the whole case or of any particular matter arising out of it, which the court refuses, it is not bound afterwards to give instructions of its own as substitutes for those refused. If erroneous instructions are asked and refused, it is entirely at the option of the judge whether he will afterwards give any or not. A party therefore who asks an instruction on the whole case must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary. If a suit is on a bond for the payment of money, and the defendant gives evidence tending to show that he has paid it, it would not be proper for the court, at the instance of the plaintiff, to instruct the jury that if they believed that the defendant executed the bond, they will find for the plaintiff. Such instmction would be erroneous, as it would exclude from the jury all consideration of the question of payment. It is no answer to this to say that the defendant might have asked instructions, tie was not bound to do so, and it was at the peril of the plaintiff to ask instructions disposing of the whole case which excluded from the jury the consideration of the evidence of the defendant’s tending [71]*71to show that he bad no right to recover. We do not see how the depositions of the witnesses accompanying the record of the confirmation of the recorder are evidence of the facts stated in them. How they can be evidence at all except as to such matters as may be proved by hearsay it is difficult to say. This court has refused to reverse judgments in cases wherein they were read, not because they were regarded as any evidence of the facts stated in them, but because they might be admissible for some purposes, and being so it was the business of the opposite party to call upon the court to declare their effect in evidence. When reading the record as mere evidence of a confirmation, they should not be read. A record of a judgment is read in evidence ; would the depositions embodied in the bill of exceptions be read, or could they be evidence ? (Toney v. City of St. Louis, 21 Mo. 243; Soulard v. Clark, 19 Mo. 570.) If the original deposition was produced and the hand-writing of the witness proved, it would be evidence against him. But the plaintiff himself used such evidence, and it was of course open to the defendant, and they had a right to the full benefit of it. Under this view the depositions of the two Cailloux were evidence of an abandonment or of the non-existence of a claim on their part to the land in controversy. Whether the lot of which they spoke was the lot in controversy or another lot was for the jury to determine from the evidence. The defendants being so unfortunate as to have all their instructions on the subject of abandonment rejected by the court, the court was not therefore warranted in putting the case to the jury in such a way as would exclude the consideration of the effect of the evidence given by them on the subject of abandonment.
As the defendants had the benefit of the claim of J. Roy with the erasures in evidence, and as such evidence was of a tendency to throw doubt and mistrust on the claim of Roy, the claims of Guión and Tabeau, as they refer to Rion, were of some influence in strengthening the weight of the evidence of the erased entry. Certainly those papers mutu[72]*72ally strengthen and support each other as evidence for the defendant. We are not aware of any principle which would make the writing on the margin opposite the confirmation of Guión as it stands on the record any evidence whatever, except in a criminal prosecution against him who made it. We know no law nor practice which warrants any such thing, and nothing would prove more dangerous to titles passing through that office than the giving the least sanction to such evidence.
The survey of Chouteau was evidence on the ground that, if being a call in the description of the boundaries of the lot in dispute as well as of those by which it was bounded, it was proper in locating the lot in dispute, the proper location of which was one of the matters in controversy. We do not regard the annotations on the plat of the survey in the light of the unauthorized writings on the-margin of the recorder’s confirmations or claims. This survey is an ancient document. It is found among the Spanish archives. Its authenticity is not questioned. Under such circumstances it seems that on principle it would have the weight given to reputation or hearsay in establishing ancient boundaries.
There was no error in admitting in evidence the certificate of the recorder. (Soulard v. Allen, 18 Mo. 590; McLott v. Dubriel, 9 Mo. -.) The first section of the act of 29th April, 1816, providing for an appointment of a surveyor of the public lands in Illinois and Missouri territories, made it the duty of the said surveyor to survey all lands the claims to which had been or should thereafter be confirmed which had not already been confirmed.
There was no error in refusing the instructions asked by the defendants. Almost all those instructions contained matter relative to the will which is hostile to the views of the law herein expressed, and were therefore properly overruled.
The instruction relative to the alteration of a confirmation was properly refused, because it assumed as a matter of law that the alteration would defeat the right of those claiming under Roy, when Roy had a confirmation independent of that [73]*73which, was altered. The whole matter with all its circumstances was a proper one for the consideration of the jury on the trial of the issues submitted.
Wo see no ground whatever for the refusal of the court to hear the evidence offered by the defendants after the plaintiff had given evidence in rebuttal. (Rucker v. Ewing, 7 Mo. 115.) The judgment is reversed and the cause remanded.
The other judges concur.