¶1It has long, been settled, that where the plaintiff and defendant claim the same land under the same proprietary division, the defendant is precluded from disputing the legality of the proprietary proceedings in making the division. This is in perfect analogy to the principle, so well settled, that where the plaintiff and defendant both claim title from the same source, neither can call in question the validity of the title in the person, from whom both parties claim to hold their title. Still in this case, until the plaintiff shew a division in fact, it cannot appear that there is any such lot in Milton, ~s lot no. 37, in the third division laid to the right of J. T. It is therefore nessary, in this case that a division in fact be shewn.
¶2Van Ness for the defendant, then conceded, that the lot in question was laid to the right of J. T. and set up a claim under the statute of limitations.
¶3To prove that the defendant had been in possession of the lot in question more than fifteen years before the commencement of the plaintiff’s action, he offered to read the deposition of one D. purporting to have been taken in the British province of New Brunswick) before John Brown Justice of the peace.
¶4A. Marsh for the plaintiff, objected to the admission of the deposition. It appears to have been taken, in a foreign government, by a person subscribing as a justice of the peace, but it does not appear, by any evidence offered, that he was in fact a justice of the peace; nor does it appear that the laws of that province, authorizes justices of the peace to take depositions.
¶5By the Court.-Both exceptions' are fatal. The Court cannot know without proof, who are justices of the peace in a foreign government ; it is a matter of fact to be proved to the Court. It is the same as to the laws of a foreign country. But there is something further in this case. From our necessary acquaintance with the laws of Great Britain, of which New Brunswick is a province, we are well assured that no authority is there given to justices of the peace to take depositions. The deposition cannot be admitted.
¶6Verdict for the plaintiff.