Pickard v. Bailey

26 N.H. 152

• Court: Superior Court of New Hampshire
• Decided: December 15, 1852
• Status: Published

Opinion

Gilchrist, C. J.

Henry Bailey, one of the defendants, justifies under the authority of Charles Bailey, the other defendant. He alleges that the log was taken from lot No. 18 in the town of Hereford, in Canada, which belonged to the estate of ■ Alexander Hart, and that Charles Bailey was authorized by the representatives of Hart to seize the log and boards in controversy.

The evidence of the authority of Rea, as agent of the Harts, and of his acts under it, was properly admitted. Both of them were present and claimed title to certain lots, the property of each being designated by the letters A. H. and B. H. respectively. Alexander must be considered as assenting to the statement of Benjamin concerning the ownership of - the lots. The fact to be proved was the authority of Rea, and this may as well be done by a third person or by Rea, as by Benjamin Hart, whose evidence is no higher in degree than the evidence of a person who was present and knew what was done. The diagram of the lands of the Harts contained some lots marked A. H., of which lot No. 18 was one, and the evidence was pertinent and proper to show that Rea took possession of it, as the agent of Alexander Hart.

It is argued that the entry in 1839 of O’ Connor upon lot No. 18, and his clearing some part 'of it, and erecting buildings thereon, and continuing to remain there, are evidence of an abandonment of Hart’s possession. But these acts are not in themselves evidence of an abandonment. They have no importance unless they are brought home to the knowledge of the prior occupant, and unless he does, or omits to do, some act, which act or omission might indicate his intention to abandon his possession. O’Con-nor’s possession could be no evidence of Hart’s intention unless the latter knew of it, and there is no evidence that he or his representatives knew of it until the date of Badgley’s letter to Charles Bailey. The possession can undoubtedly be abandoned. Where a party is in possession of land without any claim of title, and surrenders the possession, assenting that another may enter and occupy as he had done, he cannot afterwards maintain a writ of entry founded on his prior possession. Blaisdell v. Martin, 9 N. H. Rep. 253. So an incorporeal right which may be acquired by enjoyment, may be lost by a discontinuance of the enjoyment, unless the party who ceases to enjoy, at the same time does some act to show an intention of resuming the enjoyment within a reasonable time. Moore v. Rawson, 3 B. & C. 332. But here the party in possession, not knowing, as we have a right to presume, that O’Connor had entered upon the land, not ceasing to enjoy it, in any reasonable sense of the words, for O’Connor cleared only a part of it, and it does not appear that he interfered with Hart’s occupation in any way, is said to have abandoned his possession merely because O’Connor entered upon the land, and there remained. We do.not, however, think that these facts alone constitute evidence of an abandonment.

But even if the entry and occupation by O’Connor do show an abandonment, there are other facts in the case which rebut that evidence. Hart died between the years 1838 and 1840, and in the month of February, 1842, Badgley wrote to B,ea, requesting him to take care of the lands belonging to the estate, and inclosing a list of them, which contained lot No. 18. This shows that there was no intention to abandon the land. The executors afterwards recovered a judgment against O’Connor, for carrying off logs from the premises. ■ These facts show conclusively that so far from intending to abandon the land, they meant to vindicate their right to it.

But it is said that the facts stated do not authorize the admission of secondary evidence of the list of the lands. B,ea testified that he had made most diligent search for it among all the papers relating to the Hart lands, which he had kept distinct from all his other papers. He had looked for the list several times without success, though not within a year past. It was possible the list might have been mislaid, or got among his private papers, but he believed it was destroyed.

Search was made for this paper where it would be likely to be found, and an ineffectual search for a paper in its proper place of deposit has been held sufficient to authorize the admission of secondary evidence. Jackson v. Russell, 4 Wend. 543. Where an affidavit ought regularly to be in the custody of the person or officer before whom it was taken, diligent and ineffectual search among his papers by him and his clerk was held sufficient. Harper v. Cook, 1 C. & P. 139; Jackson v. Cole, 4 Cowen 595. Rex v. Stourbridge, 8 B. & C. 97. Searcli for a will should be made in those places where it would most probably be found, as in the testator’s desk, or wherever he kept his valuable papers. Jackson v. Betts, 9 Cowen 208. If the cashier of a bank swears that a paper was received and filed among the papers of the bank, proof of diligent search among thé papers of the bank will, it seems, be sufficient. Taunton Bank v. Richardson, 5 Pick. 436.

Where there is no suspicion of fraud, all that should be required is reasonable diligence to obtain the original. Minor v. Tillotson, 7 Pet. 101. If the proof of loss adduced establishes the fact with reasonable certainty, nothing more is required. Jackson v. Frier, 16 Johns. 196.

Although numerous decisions have been made upon this subject, yet from the nature of the case, few propositions of a general character can be advanced. Each decision depends so much on the circumstances of the individual case, that no inflexible rule can be laid down. In the present case, the search was made in the place where the missing list would probably be found, and was prosecuted with reasonable diligence, and we think its absence was sufficiently accounted for, to authorize the admission of "secondary evidence of its contents.

It is contended that the copy of the judgment against O’Connor was not properly authenticated.

One recognized mode of proving foreign judgments is by a copy proved to be a true copy. Church v. Hubbart, 2 Cranch 238. The record of the condemnation of a vessel in a court of vice admiralty is not evidence, per se. The seal does not prove itself, but must be proved by a witness who knows it, or the hand writing of the judge or clerk must be proved, or that it is an examined copy. Catlett v. the Pacific Ins. Co., 1 Paine C. C. Pep. 594. A copy of a judgment in Nova Scotia is sufficiently authenticated by proof that the witness assisted the clerk in comparing the copy with the record, and in affixing the seal of the court to the copy, and saw the clerk attest the copy by putting his name to it. Buttrick v. Allen, 8 Mass. Rep. 273. But where a justice of the peace had gone out of office, and his records were deposited with the county clerk, a copy of a judgment, certified by the clerk, was held not to be sufficiently authenticated. Mahurin v. Bickford, 6 N. H. Rep. 567. The sentence of a vice admiralty court at Antigua is sufficiently proved by a deposition annexed, stating that the seal affixed thereto was the seal of the court, and also proving the signature and official character of the person whose name was subscribed. Gardere v. Col. Ins. Co., 7 Johns. 519.

Several decisions are to be found showing the manner in which the witness should have examined the copy whose authenticity he is offered to prove. In Rolfe v. Dart, 2 Taunt. 52, a witness produced a copy of a judgment in replevin, and, being asked how he knew it was a copy, said that he read the paper while the officer of the court held and read aloud the record to him, and that the contents of the paper agreed with what the officer read, and the copy was held to be admissible. In McNeil v. Sheriffs of London, 1 Esp. 263, the witness held the copy while another person read over the original, but he did not compare it by the same person reading over the copy, while he held the original, but Lord Kenyon held the copy to be admissible.

In the case of Gyles v. Hill, 1 Camp. 471, Lawrence, J., said, “ here the original was read by the officer of the court, but I should have ruled the same way had it been read by any other person.” In Fyson v. Kemp, 6 C. & P. 71, a witness being asked as to the correctness of a duplicate, said that hejcould not undertake to say that he himself saw the original bill which was delivered to the defendant, but he believed that another clerk held the original bill and he held the duplicate produced at the time when they examined them. It was contended that the bills should have been examined crossways, but Mr. Baron Gurney was of opinion that what "had been done was sufficient. In Hill v. Packard, 7 Wend. 391, a witness testified that he examined a copy and compared it with the original, and found it correct. The record was also certified by the notary of the consulado of Havana, and the copy was decided to be competent evidence, Mr, Senator Allen saying that it was a sworn copy, as well as a certified one.

Upon consideration of - the authorities upon the question of the due authentication of the copy of the judgment, we are of opinion that it was properly admitted. The seal was proved by a witness, who testified that it was genuine, that he had long known Mr. Bell to act in the capacity of clerk, and that he read the record while the clerk looked over the copies.- Foreign judgments are to be proved like any other facts, and there is competent evidence of all the facts necessary to authenticate the copy.

The plaintiff objected also to the admission of the copy of the power of attorney, and the defendants offered a witness, who testified that he was not a lawyer, but for several-years had acted as a magistrate in Canada, and had long been engaged in mercantile business there, and had become acquainted with the law in relation to notarial instruments; that general powers of attorney must be executed before a notary; that it was part of the sworn duty of every notary not to suffer any original paper executed before him to be taken out of his custody, and that notarial copies are received in all the courts in Canada, without further proof of the execution of the original.

It is well settled that foreign laws, like foreign judgments, are to be proved-as facts, and the better opinion is that the evidence should be addressed to the court, and not to the jury. In this case, the question to be determined’ was a question of law, whether the copy of the power of attorney was admissible in evidence. The court was to decide upon, this point, and the evidence to enable the decision to be made, must of course be addressed to the court. Such seems to be the opinion of Story, Confl. of Laws, § 638. In a note he refers to the case of Thrasher v. Everhard, 3 Gill and Johns. 234, where the court said, “ it is in general true that foreign laws are facts which are to be found by a jury. But this general rule is not applicable to a case in which foreign laws are introduced for the purpose of enabling the court to determine whether a written instrument is evidence. In such a case, the evidence always goes in the first instance to the court, which, if the evidence be clear and uncontradicted, may and ought to decide what the foreign law is, and according to its determination on that subject, admit or reject the instrument of writing as evidence to the jury. It is offered to the court to determine a question of law, the admissibility or inadmissibility of certain evidence to the jury.” Upon these remarks, Mr. Justice Story very pertinently asks, “ is not foreign law offered in all cases to instruct the court in matters of law material to the. point in issue ? Can the court properly leave it to the jury to find out what the law is, and apply it to the case ?”

In the case of Mauri v. Heffernan, 13 Johns. 58, a copy of a bond executed at Caraccas, before a notary, was offered in evidence by the plaintiff. He proved by Don Mariano Velasquez, who had received the degree of doctor in the civil law at Madrid, that by the laws of Spain and her .colonies, all contracts were executed before a notary, and -remained with him of record, and he gave to the parties .certified copies, under his signature, and that such copies .are valid in all courts where the Spanish law prevailed. Thompson, C. J., said that the proof was abundantly suffi•cient to show that the original could not be produced upon the trial. In this case the proof was made by a witness whose profession was the law, and the case is in point here, .except as to the professional qualifications of the witness. But in Kenney v. Van Horne, 1 Johns. 394, Spencer, J., in delivering the judgment of the court, said “ that courts of law will receive evidence of the common law from intelligent persons of the country whose laws are to be proved.” Of their intelligence and capacity to speak on the subject, of course the court must judge, and if their information be such that the court may safely rely upon it, there seems to be no imperious necessity that they should be lawyers by profession. In the case of Brush v. Wilkins, 4 Johns. Ch. 506, a witness was examined to prove the laws of Demarara, and he testified that he had resided there a considerable portion of the time, for the last ten years, and for the last three years was an officer of the civil and criminal court of justice for that colony, and was well acquainted with its laws. He then stated what the laws were. It was said by Chancellor Kent, “ the law of Demarara on this point has been proved as a matter of fact by a person acquainted with the laws of that place, and who had long resided there and sustained a judicial office. Tf he was not a professed jurist, the plaintiff should have furnished more'certain proof of the laws of Demarara. The evidence produced was competent, and under the circumstances of the ease, sufficient, in the absence of all other proof. I cannot judicially know the law of Demarara, but by proof as a matter of fact.” In this case the witness was produced by the defendant. He was not a lawyer by profession, but from his position as a judicial officer he had an opportunity to know what the laws of Demarara were. In the case now before us, the witness was not a lawyer, but he had been a magistrate for several years, and in addition to this, from his mercantile employments he had become acquainted with the law in relation to notarial instruments. There is no reason to distrust the accuracy of such evidence, and both upon the authority of the cases referred to, and because we think the decision reasonable in itself, our judgment is, that the witness was competent to testify to the laws of Canada upon this point.

It was not. necessary that the log in question should have been proved to be one of the hundred logs for which the judgment was recovered against O’Connor. It appears from the judgment that the logs for which the suit was brought, came from lot No. 18, and the only purpose the partyhad in view in introducing the copy was to rebut the idea that the possession of the lot had been abandoned. This he showed by proof that an action was brought against O’ Connor for trespassing upon the lot, and the ruling of the court upon this point was correct.

The plaintiff contends that there.was no proof that Alexander Hart left a will, or who were his executors. But the plaintiff, who excepts on account of the absence of this evidence, must be taken to have proved who the executors were, as that fact appeared in answer to his question upon the cross-examination. As he has proved, then, that there were executors, can he be heard to say that there was no will? We have held, in Jeffers v. Radcliff, 10 N. H. Rep. 242, that the grant of letters of administration is prima facie evidence that the person whose estate is administered upon is dead. So where the defendant omits to plead in abatement, letters of administration are conclusive proof of the death. Newman v. Jenkins, 10 Pick. 515. If proof of letters of administration is evidence of the death, it is not a strained conclusion to say, that proof that there were executors, is evidence that there was a will. We cannot presume that any court would issue letters testamentary without proof of a will. The reasonable inference is that there was one ; omnia presumimtwr rite acta; and as against this plaintiff we think there is competent evidence of the existence of a will. The plaintiff, having shown that there were executors, must be held also to have proved the fact which the. existence of executors ordinarily implies.

The instructions of the court being in accordance with the views we have expressed, the plaintiff’s exceptions thereto must be overruled.

The plaintiff introduces the testimony of a witness who once heard a controversy between O’Connor and one Hall in relation to this log, in which Hall claimed it. This evidence was hearsay only., O’Connor and Hall were both strangers to -this suit, and for aught that appears, were both competent witnesses. The evidence' shbuld have been rejected on the exception taken by the defendants. But the ruling of the court upon the question and answer was correct. The. question was, “ Where does this Hall live 1” The witness answered that he did live upon a lot adjoining lot 18. The court ruled that the question and answer did not tend to prove that the log came from some other lot. The evidence was indeed utterly destitute of any relevancy, and was properly so regarded by the court.

Judgment on the verdict.