Holmes v. Broughton

10 Wend. 75 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

The question is whether the proceedings alleged to have been had in the state of Vermont are well pleaded 1 It is laid down by Mr. Chitty that the courts do not ex officio take notice of foreign laws, and consequently they must in general be stated in pleading. 1 Chilly's PI. 221. The question arose in Collett v. Keith, 2 East, 261, which was an action of trespass for seizing and taking a ship at the Cape of Good Hope, to wit, &c. The defendant, among other things, pleaded, that the settlement of the Cape of Good Hope was subject to foreign, to wit, Dutch laws; that the ship was within the jurisdiction of the supreme court there, and that certain proceedings were instituted and had ; that the defendants, according to the foreign laws of the place, the said court having competent jurisdiction, were authorized and ordered, to take and detain the ship. To this plea there was a demurrer. In deciding the case, Grose, justice, said, that (.he plea was too general; that it was not enough to state that the vessel was within the jurisdiction of the court which was governed by foreign laws, and that certain proceedings were instituted ; but the defendant should have shewn what the foreign law was which gave jurisdiction to the court. The court, however, put the decision upon another defect in the plea, viz. that the defendant had not sufficiently-shewn his authority. The question has been directly decided in the supreme court of Massachusetts. In the case of Walker v. Maxwell, 1 Mass. R. 103, it was held, that a defendant who relies upon the statute of another state, must in his plea set out the statute, that the court may see [whether the proceedings were warranted by the statute or not, and the genral allegation that the proceedings were pursuant to the statute is not sufficient. That was an action on a promissory note, so called in the declaration, by which Lyon and Maxwell promised the plaintiffs, by the name of James Chase & Co., to pay them 35 dozen wool cards on a certain day. Maxwell defended and pleaded that on action was brought by one Cole in the common pleas of Bristol county, in the state of Rhode Island, against Chase one of the plaintiffs in this action, upon a certain note which is set forth of which Cole was endorsee, and that Cole pursuant to the statute of the state of Rhode Island in such case made and provided, directed the sheriff to serve the original writ upon the defendants, Lyon and Maxwell, for the purpose of attaching the personal estate of Chase in their hands; that in pursuance of the statute aforesaid, service was so made, that Lyon and Maxwell, pursuant to the statute aforesaid, appeared and submitted to examination; &c., that judgment was rendered in favor of Cole against Chase, as appears by the record; and further, that Cole prosecuted an action in the said court in pursuance of the statute aforesaid, against the defendants Lyon and Maxwell upon the note now declared on,and set forth the proceedings against Chase, and judgment; whereby Lyon and Maxwell became liable to pay the value of the wool cards attached as aforesaid &c.; stating a judgment in favor of Cole against Lyon and Maxwell for the amount, &c. To this plea the plaintiff demurred and assigned several causes of demurrer, one of which is that it does not appear by the plea what the said statute or law is, which is mentioned as a statute in said plea, nor by what law or authority the court of common pleas in Bristol county in Rhode Island, gave the judgment described in the plea. The whole court were of opinion that the plea was bad for the cause assigned ; they said that the plea should have set forth the statute of Rhode Island, that the court might see whether the proceedings stated in the plea were authorized. That the common law might be considered common to both states, and regulating the proceeding of courts of justice in both ; but the proceedings stated in the plea being of a peculiar kind, and so different from the common law, the statute ought to be shewn to them, and the general allegation that the proceedings were pursuant to the statute of Rhode Island was not sufficient. The case of Pearsall v. Dwight, 2Mass. R. 34, shows what is considered sufficient in that state. There the defendant pleaded the statute of limitations .of the state of New-York; the part of the statute upon which he relied, was pleaded with a proferí of the exemplification of the whole statute, with necessary averments ; and it was held by Parsons, chief justice, that, notwithstanding the proferí of the exemplification of the statute, the court could not take notice of any part of the statute not shown in the plea; that if the opposite party relied on any part of the same statute, he should have prayed oyer and spread the whole statute upon the record. Again, in the case of Legg v. Legg, 8 Mass. R. 99, the same court declare that they could not judicially take notice of the laws of Vermont, and that upon the point there stated, which was a common law question, they must presume the laws of Vermont tobe similar to their own. The doctrine of this highly respectable court seems to me to be sound; and if so, the plea in this case is defective, in not setting forth the statute of Vermont, if any, authorizing the proceedings stated to have taken place, that the court may see how those proceedings constitute a bar to the plaintiff’s action. This court cannot take judicial cognizance of any of the laws of our sister states at variance with the common law. The proceedings stated are not common law proceedings, and the authority for them must be specially set forth.

Judgment for plaintiff on demurrer, with leave to defendant to amend on payment of costs.