Whidden v. Seelye

Appleton, J. The plea in abatement is fatally defective. It is of facts not apparent of record, and should be verified by affidavit. It does not appear to have been seasonably filed. Nickerson v. Nickerson, 36 Maine, 417. Nor does it appear to be entitled of the term to which the writ was returnable. Nothing is better settled than that advantage may be taken of these defects on general demurrer. The law of a foreign country is a fact to be proved. Certain deeds and contracts, executed in the Province of New Brunswick, were received in evidence. The rights of the parties to this suit depended upon the construction of, and the effect to be given to these deeds and contracts. Neither party saw fit to introduce any evidence as to what, under the facts proved, would be their legal effect in the place in which they were executed. But when the law of the place where they were executed, is not shown, they must receive the same construction and have the same effect as if they [254] were executed in the State in which the trial is had. No evidence is furnished by the parties. The lex loci not being shown, the Court cannot assume it variant from the lex fori. In Legg v. Legg, 8 Mass. 99, the Court declare that they cannot judicially take notice of the laws of another State, and that they would presume its laws similar to their own. This doctrine received the sanction of the Supreme Court of New York, in Holmes v. Broughton, 10 Wend. 75, and in Leavenworth v. Brockeway, 2 Hill, 201. In Allen v. Watson, 2 Hill, (S. C.) 319, the plaintiff sought to recover a sum of money, as belonging to him, which the defendants had won at a faro table, in Georgia. The defendants insisted, that before the plaintiff could recover, he must show playing at faro to be unlawful by the law of Georgia. The Court, however, said, “ it is true the legality or the illegality of any transaction must depend on the law of the State where it transpires, but it is incumbent on those who would avail themselves of it, to show what that law is. In this State, (South Carolina,) playing at faro is unlawful and punished by fine; and if we are obliged to determine that question, in utter ignorance of what the law of Georgia is, we must resolve it by our own rule, for the obvious reason that we have no other.” In Crazier v. Hodge, 3 Mill. (Lou.) 357, Porter, J., says, “we have repeatedly decided that the laws of other States must be proved by evidence, to enable us to take judicial notice of them. When they are not so proved, we must decide the case by our own law.” In Brown v. Gracey, 2 D. & R. 41, Abbott, C. J., said, “ that if the law of Scotland differed from the law of England, as to the liability of the defendants, it was for the defendant to show it.” The Court instructed the jury that the plaintiff “could not recover for any logs that had been taken from the land after, he had parted with his title, or when he was not in possession of the land.” We must presume that the verdict was rendered in accordance with this instruction, and that the logs, for the value of which the verdict was rendered, were cut and carried away, and converted by the defendant [255] to his own use, while the plaintiff had the title and possession of the land upon which they were cut. The case, as disclosed in the evidence and as found by the jury, is of a mortgager in possession against a trespasser upon the mortgaged premises, who has carried away the logs, the cutting of which constituted his trespass. The trees on the plaintiff’s land, when severed from the freehold and carried away, became personal property, and his title thereto was not divested by the wrongful acts of the defendant. In Nelson v. Burt, 15 Mass. 204, it was held that trover would lie for cutting and carrying away corn standing and growing. “If,” say the Court, “the defendant was in fact a trespasser in entering the close and cutting down the corn, the property of the corn when cut was in the plaintiff; and the taking it away was a wrong for which trover will lie.” In Mather v. Trinity Church, 3 S. & R. 509, Duncan, J., says, “ it, (trover,) does not lie for injuries to land or other real property, even by a severance from the freehold, unless there be also an asportation; that if, after the severance from the freehold, as in the case of trees cut down, the property severed be taken away, or of coals dug from a pit, be afterwards thrown out, this action will lie, by the person having the right and being in the possession, against a mere intruder and trespasser.” When there has been a severance of what belongs to the freehold and an asportation, the action of trover may be maintained. 3 Stephen’s N. P. 2665. The title to the property severed remains unchanged and the owner may regard it as personal property and maintain replevin. Richardson v. York, 14 Maine, 216. So, the tort being waived, if the propei’ty severed has been sold, the action of assumpsit may be maintained. As between mortgager and mortgagee, the property in timber cut on the mortgaged premises is in the latter, and a purchaser from the mortgager takes it subject to the paramount rights of the mortgagee. Gore v. Jenness, 19 Maine, 53. Much more then may the mortgager maintain trover against a mere intruder or wrongdoer. [256] The jury have found that the plaintiff was in possession, of the mortgaged premises and that the defendant cut thereon the logs in controversy. The logs having been severed from the freehold, and after such severance being personal property, and having been carried away and converted by the defendant to his own use, trover is the fitting and appropriate form of action in which to recover the damages resulting from their conversion. It is a transitory action and may be maintained in this State for a conversion of personal property in a foreign jurisdiction. The instruction of the Court, that the contract of Dec. 26, 1840, between the plaintiff and Henry Seelye, did not constitute a co-partnership, is made the subject of exception. It is immaterial whether the ruling of the Court on this point was or was not correct, inasmuch as if er'roneous, it is not perceived that it could have operated injuriously to the defendant. This suit is for logs cut on the land of the plaintiff and which the defendant is proved to have converted to his own use. He claims no rights through, and derives none under, the alleged co-partnership. The existence thereof is not a material fact, to be proved on the part of the plaintiff, to enable him to maintain, nor on the part of the defendant, to defeat, the present action. Exceptions and motion overruled. Judgment on the verdict.