Cassidy v. Leitch. different footing from a foreign judgment against one who owed no allegiance to and was not subject to the jurisdiction of the State in which it was rendered. The distinction is perfectly well settled. In the case of Duflos v. Burlingham, 34 Law Times Reports, 688, the defendant in an action on a French judgment, pleaded, as the defendant pleads in this suit, that he was not served with process, nor had he notice of the alleged action in France, or the opportunity of defending himself according to the rules and practice of the French courts. The plea was held bad by the court of queen's bench because it did not show that the defendant was not a Frenchman, nor domiciled in France. In Maubouquet v. Wyse, 1 Irish Reports, Common Law Series, 471, in an action on a French judgment the defendant pleaded that he was absent from France at the beginning and during the entire progress of the French suit, that he was never served with a summons, and that he had no notice or knowledge of the suit or any of its proceedings. The court pronounced the plea to be bad because the defendant might have been resident in France, or might have had property there, or might, through an agent, have been served with process. In Cowan v. Braidwood, 1 M. & G. 882, the defendant pleaded to an action on a Scotch judgment that he was not within the jurisdiction of the Scotch court at the commencement of the action nor afterwards, nor did he know of the proceedings or any of them, so that he could employ an attorney, nor did he appear. The plea was held bad; TINDAL, C. J., saying that the plea ought to have alleged that the defendant was not a resident of Scotland, or that he was not subject to the laws of that country, or that he had no property in Scotland. MARSH, J., said that defendant ought to have alleged that the Scotch judgment was not binding in Scotland, or that it was against natural justice. Cassidy v. Leitch. To the same effect is Vallee v. Dumergue, 4 Ex. 290. In order to make the answer in this case sufficient, there should be added to it allegations showing that the defendant was not domiciled in Louisiana or subject to the laws of that State, or that the judgment is not binding there, or that it is contrary to natural justice. As a plea in bar the answer is fatally defective. It appears affirmatively in this case that the defendant was a resident of Louisiana, and the owner of property in that State, at the time the Louisiana action was instituted. His family dwelt in New Orleans, where the action was brought. It is difficult to see the ground on which the judgment, though taken by default, should be held invalid by the courts of this State. It was agreed at the trial that the codes of Louisiana should be received as evidence in the case.* Tested by the Code of Practice and the decisions of the Louisiana courts, the service of process was sufficient (§§ 189, 190 and 201, Code of Practice; Kendrick v. Kendrick, 19 La. 38). The only doubt that can be raised, is as to whether a curator ad hoc ought not to have been appointed before the default was entered against Leitch. Section 56 of the Civil Code provides that if a suit be instituted against an absentee who had no known agent in the State, the judge, before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit. Leitch was, it appears, an absentee, and if he had not been represented in the suit by an attorney at law, the court would, doubtless, have required that a curator ad hoc should be appointed. But even if that step had been omitted, the court would not, I think, have been ousted of its jurisdiction over the defendant. It is unnecessary, however, *For the present rule on this point see the new Code of Civil Procedure, § 942. VOL. II.-21 Cassidy v. Leitch. to discuss that question, because I am satisfied that the defendant did appear in the Louisiana action, and that Mr. Colman interposed an answer in that suit at the suggestion of the defendant, communicated to him through the defendant's wife. The testimony of the defendant seems to me to amount to nothing more than a denial of any recollection of having employed an attorney in the action. The authority of the attorney must be presumed until disproved (Hayes v. Cuny, 9 Martin, 88; Dangerfields v. Thurston, 8 Id. N. S. 234; Conrey v. Brenham, 1 La. An. 398). A mere want of recollection ought not to be permitted to overthrow a presumption founded upon the weightiest consideration of public policy. The testimony of Colman tends to show that he was retained by Mrs. Leitch. The citation was served upon her on the 17th day of August, 1869. On November 2, following, the default of the defendant was entered. On November 5, Mr. Colman appeared in the action, obtained an order setting aside the default, and filed his answer. On November 17, the plaintiff filed a supplemental petition, and a citation issued upon the supplemental petition was, on November 17, 1869, served on the daughter of the defendant. On December 20, 1869, a copy of the judgment was served on the wife of the defendant. Colman married the niece of Mrs. Leitch. It seems very improbable that he officiously intermeddled with the suit and appeared without any request to do so. Mrs. Leitch certainly knew of the suit. Two months and a half elapsed between the service of the citation on Mrs. Leitch and the appearance of Mr. Colman in the action. Ample time was given to communicate with the defendant, and it is natural to infer that Mrs. Leitch did inform her husband of the commencement of the action. After reading the testimony of the defendant, no surprise will be Warren v. Buckley. felt at his omission to contest the plaintiff's claim. I think judgment should be rendered in favor of the plaintiff for the sum claimed in the complaint. Verdict for plaintiff for $9,107.85. WARREN v. BUCKLEY. N. Y. Supreme Court, Third Department; Troy Special Term, March, 1877. EXTRA ALLOWANCES. In an action for trespass to real property, where the complaint states that the title to the land is involved, and this is put in issue, and it appears on the trial that the question of title is the paramount object of the action, an extra allowance granted to the successful party may be computed upon the value of the property instead of on the amount of damages.* In such an action where the complaint demanded $100 damages, and the value of the property was $2000, an allowance of $100 was granted on a dismissal of the complaint. Motion by the defendant for an additional allowance of costs under section 309 of the Code. This action was brought by Stephen E. Warren and others against Peter H. Buckley. The plaintiffs in their complaint allege, in substance, that they are seized in fee and possessed of the premises therein described, and that the defendant wrongfully entered thereon and dug up and removed a quantity of earth and fence posts, wrongfully claiming the right so to do. The plaintiffs in the complaint * Compare Ogdensburg, &c. R. R. Co. v. Vermont, &c. R. R. Co., 63 N. Y. 176; People v. N. Y. & Staten Island Ferry Co., 7 Hun, 105; Struthers v. Pearce, 51 N. Y. 365. Warren v. Buckley. demanded one hundred dollars damages, and therein stated that the title of the plaintiffs in and to the land was involved in the action. The defendant by his answer put at issue all the material allegations of the complaint, and set up, as an affirmative defense, that the premises where the alleged trespasses were, by the plaintiffs, claimed to have been committed, were and are a public highway, adjacent to the lands of the defendant, who possessed the lawful right to use such highway in going to and from his land. The cause was noticed for trial and placed upon the circuit calendar, and when regularly reached the complaint was dismissed with costs. B. H. Hau, for the motion. Esek Cowen, opposed. INGALLS, J.-Independent of the allegation in the complaint, "that the title of the plaintiffs in and to said land is involved in the action," it is clearly shown that such title constituted the paramount subject of investigation, and that the plaintiffs instituted the action to establish their right to the exclusive possession of the land, and not to recover compensation for a comparatively trifling trespass; and this involved necessarily a question as to the title, and consequently the subject-matter of the action was the land (Powers v. Conroy, 47 How. Pr. 84; Ehle v. Quackenboss, 6 Hill, 537). The cases referred to recognize a broad distinction, in this respect, between an action of trespass to recover damages based upon actual possession and an action which involves the right to the possession of land. In the latter case a question of title is involved, but not in the former, as title is presumed. Section 309 of the Code provides that the court may make a further allowance to any party, not exceeding |