Owen v. Boyle

| Me. | Jun 15, 1838

After a continuance, for advisement, the opinion of the Court was drawn up by

Shepley J.

The defendant was the owner of the property replevied, and still is the owner unless the right of property has been changed by the proceedings in the Province of New~Brms-wick. He has a right to Insist, that iho plaint iiT shall si tow, that by the laws and proceedings there, lie acquired a right to tile property. Yet if such facts arc shown, and the lav,;; applicable to them, as prove a change of property there, the (foil aidant when ho voluntarily places his property under the protection or control of foreign laws, cannot justly complain, that by their operation his properly is taken from him without any conipoivntion, to pay the debts of another. The plaintiff claims as the purchaser of tito property at an auction sale, alleging that it bed been lawfully seized under a warrant of distress, for the paymeo. of the rent of a store on the island of Campo Bello, in the coum / of Charlotte, due from William McLane to him. To prove, that he was tito owner of the estate occupied by McLane, the plaintiff read a deed of indenture between himself and others bearing date on the 16th day of April, 1835, which was objected to, as not legally proved. The proof was made by the testimony of the subscribing witnesses before the Lord Mayor of London, and is by him certified under bis official signature and seal of office. Such an authentication would be sufficient to authorize the deed to be read as evidence of title, by the laws of that Province, if they are properly proved in the case. And as the estate is situated in that Province, if it is sufficient to pass the title there, it should be so regarded here.

Were the written or statute laws of that Province legally proved and admitted ? The general rule is, that foreign laws are to be proved as a matter of fact; and the mode of proof of the written law is to be, by tile production of a duly authenticated copy. An exception to the rule respecting the mode of proof, has been allowed in the courts of the United Líales and in those of several of the Slates, by receiving tlie printed volumes of the laws of the Stales of the Union, as prima facie evidence. But in the 3 Pick. 293, the court say, that they “ do not mean to decide, that the law of any country merely foreign may bo so proved.” Another exception may be said to be established by tlie case of Talbot v. Seaman, 1 Cranch, 38, allowing foreign laws, which have been promulgated as such by our own government, to bo road without other proof. The only case at common law, noticed, allowing a printed volume to be read as evidence of a foreign law, is the case of Lacon v. Higgins, 3 Stark. R. 178. in that case the French vice consul, being called as a witness, produced a book which be stated, contained the French code of laws upon which he acted at his office; that there was an office called the royal printing office, where the laws were printed by the authority of the French government; the book purported to have been printed at that office; and the witness stated, that the book would have been acted upon in any of the French courts. Upon this testimony C. J. Abbott admitted the book to be read as proof of the law, and seemed to rely upon the-case of the King v. Picton, 30 Howell’s State Trials, 514. In this latter case the objection to the book of Spanish Laws is said to have been waived.

In the present case the books admitted purported to contain the laws of the Province, and to have been printed by the printer to his Majesty, and it was proved, that the laws thus printed, were distributed by the government to its officers, and that they had been cited and read in the courts there as laws in force, and as regulating the administration of justice. These books have received the sanction of the executive and judicial officers of the Province as containing its laws; and this is proved upon the oath of witnesses. It is difficult to say, that it is not as satisfactory to the mind as the exemplification of a roll found in the possession of the cusios rota-lorum would be, accompanied by the oath of the person making it. It can hardly be said to be a departure from the rule requiring the best evidence; because the present proof does afford evidence, that, if these books were offered in the courts of the Province where the estate is situated, the laws, which they contain, would be allowed to operate upon that estate. And this is the very object to be attained ; to allow them the same efficiency, which they would have where the estate is situated. And that is all, that can reasonably be required, where the lex rei sitae governs the case.

The laws being admitted, what is their influence upon the case ? They authorize the deed to be read, which proves the title of the plaintiff. They also prove the mode of proceeding “ when any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract whatsoever.” Province Laws, 50 Geo. 3, c. 31, § 4. And the seventh section provides, that the distress shall not be deemed unlawful for any irregularity in the proceedings. But the laws do not provide when a distress for rent may bo lawfully made, or what, or whose, property may be lawfully (alien. Nor is there any proof introduced into the caso, in any modo to ascertain those most important matter,.. It is said in argument, that the common law of England, prevails in that Province. But can that be assumed by this Court without any proof? The unwritten foreign law is to bo proved as a fact; and the English courts will not presume, that the law of Scotland agrees with that of England upon any particular point. 2 Stark. Ev. 331. It is true, that C. J. Abbott held, in Brown v. Gracey, Dow. & Ry. N. P. Cases, 38, that where the defendant would set up a defence to a promissory noto by the laws of Scotland, not apparent by the laws of England, be must shew it; but such a rule cannot bo applied in this case, because the plaintiff is obliged to prove bis right to distrain the defendants’ property as a part of his title, which it is incumbent upon him to make out. Starkie says, the statement of text writers may be admitted to prove, whether the law of the mother country bo the law of the colony. 1 Stark. Ev. 249; but still the proof musí bo introduced by the exhibition of such text writers.

The usual course is to make the proof by competent witnesses learned in those laws. Story’s Con. of Laws, c. 17, § 642. Blackstonc says, it has been held, that if an uninhabited country be discovered and planted by English subjects, all tbo English laws then in being are immediately there in force; but this, he says, must be understood with many and great restrictions. And speaking of the American plantations generally, he says, “ the common law of England, as such, has no allowance or authority there.” 1 Com. 107. This language may be thought to need many restrictions, as well as tire doctrine commented upon by him; but it is sufficient to prove, that it would be quite rash for a court here to presume, that all the common law of England was in force in her colonies.

We are in the habit of taking notice of tbo common law of England without proof; not however because it is the common law of a foreign country, but because that common law has become a law to us, and we look to it without proof, as to our own law.

Nor can this bo regarded as a technical difficulty, for it is very possible to conceive, when the plaintiff is required to establish by proof, bis right by the laws of the Province to take the defendant’s property, as then situated, for the rent due from McLane, that this may prove to be a matter, entering vitally into the merits of the case. The statement of the report is, that the defendant had placed his property in that store, but under what circumstances, or for what purposes, does not appear.

There are many and important exceptions to the general law of distress, made in favor of trade and commerce. In a case in which the whole doctrine was much examined, it was decided, that goods of the principal in the hands of his factor were not liable to be dis-trained for the factor’s,rent. Gilman v. Elton, 3 Brod. & Bing. 75. For like reasons, it has been held, that property deposited by a broker, in a warehouse upon a wharf for safe custody, to wait an opportunity to sell, rvas not liable to be distrained for rent due from the wharfinger. Thompson v. Mashitee, 1 Bing. 283. And the same rule of exemption has been decided to apply to goods in a common warehouse. Mathias v. Mesnard, 2 C. & P. 353. This is not the proper occasion to examine into the extent of the exemption in favor of trade and commerce further, than to shew, that it may be important to a just decision of the rights of these parties, that the law should be proved by those, who are competent to speak with a full knowledge of it. It is said, however, that the title of the plaintiff cannot be drawn into question for want of proof of the legal right to distrain. As that matter, although argued at the bar, does not properly arise out of the report, the decision is not placed upon it.

The certificate of the appointment of the constable was objected to. It does not purport to be an attested copy of the record, while it states the existence of one. A record or public document is made evidence in such a case, by the production of a copy proved by the oath of the person comparing it or by an office copy attested and duly authenticated. The certificate cannot be regarded as legal evidence. 1 Stark. Ev. 188, 191, Metcalf’s Ed.

Verdict set aside and new trial granted.