general rule, there is no short cut to relieving a person who has the burden of proving a certain case or defense in which the foreign law is a fact to be proved like other facts, from the usual burden of going forward in the first instance with evidence upon that point. The burden of going forward, then, is shifted to one who has not the burden of proof upon the whole case only by some especially and particularly defined rule, that is, where it is done, it is by way of exception to a general rule and not the rule itself; or, to use a more usual form of expression, the court of the forum will make a presumption as to what the law of the foreign state is, only by way of exception to the general rule. A careful review of a very considerable number of authorities leads me to conclude that there are three possible rules for determining when the court of the forum will make a presumption as to the law of the foreign state, and what presumption if any it will make; or as I would prefer to say, there are three possible rules which indicate when the court of the forum will shift the burden of going forward with evidence as to the foreign law upon the party not having the burden of proof of the whole issue of which the foreign law is a part.

The first position is as follows: when the court of the forum takes judicial notice that the foreign state has fundamentally the same system of law as that of the forum, the court of the forum will presume that the law of the foreign state is the same as that of the system of law (exclusive of statutory changes) fundamentally common to both; otherwise there is no presumption at all.

This rule rests upon the existence of a logical distinction between the case where the forum takes judicial notice that the foreign state has fundamentally the same system of law as the forum and that where the court of the forum takes judicial notice that the foreign state has fundamentally a different system of law. The cases make pretty plain the way the courts recognize which of the American and European states have fundamentally the common-law system and those which have not. Where the forum, like Illinois, is composed of territory belonging to one or more of the original thirteen colonies of Great Britain, and actually settled by those who brought the common law with them, it can properly make a presumption in regard to the law of foreign states having a common origin with it.1 It may, therefore, assume the common law to prevail in

1 Miller v. McIntyre, 9 Ala. 638; McAnally v. O'Neal, 56 Ala. 299 (indulging the presumption with respect to Georgia); Gluck v. Cox, 75 Ala. 310 (indulging the presumption with respect to Mississippi); Peet v. Hatcher, 112 Ala. 514; Norris v. Harris,

England,1 Provinces of Canada whose jurisprudence is judicially known to be based upon the common law, and all that part of the territory of the United States east of the Mississippi River, excepting Louisiana and Florida. Illinois has in fact made this presumption, and may very properly go farther, following Judge Field (afterwards Associate Justice of the United States Supreme Court) in Norris v. Harris, and indulge a similar presumption as to the existence of the common law "in those states which have been established in territory acquired since the Revolution, where such territory was not at the time of its acquisition occupied by an organized and civilized community; where in fact the population of the new state upon the establishment of government was formed by emigration from the original states."5 As to Texas, Florida, and Louisiana it must take judicial notice that the fundamental law there is the civil law. As to Texas in particular the court 15 Cal. 226. See also Tinkler v. Cox, 68 Ill. 119 (Ind.); Schilee v. Guckenheimer, 179 Ill. 593 (Ohio).

1 Stokes v. Macken, 62 Barb. 145 (N. Y.).

2 Dempster v. Stephen, 63 Ill. App. 126. But in Owen v. Bowle, 15 Me. 147, the court refused to indulge the presumption that the common law of England prevailed in the Province of New Brunswick.

3 See cases in note I, p. 402.

In Missouri it appears to be the rule that no presumption can be indulged excepting in states which prior to becoming members of the Union were subject to the laws of England: Silver v. Kansas City, St. L. & C. R. Co., 21 Mo. App. 5 (denying presumption with respect to Kansas); Witaschek v. Glass, 46 Mo. App. 209; and Bain v. Arnold, 33 Mo. App. 631 (denying presumption with respect to Kansas); Bahrydt v. Alexander, 59 Mo. App. 188 (denying presumption with respect to Iowa); Wyeth Hardware & Mfg. Co. v. Lang, 54 Mo. App. 147 (denying presumption with respect to Kansas); Clark v. Barnes, 58 Mo. App. 667 (denying presumption with respect to Arkansas); Searles v. Lum, 81 Mo. App. 607 (indulging presumption with respect to Mississippi).

4 15 Cal. 226, 252.

5 The Illinois cases have clearly adopted this principle: Crouch v. Hall, 15 Ill. 263 (Mo.); Bradley v. Peabody Coal Co., 99 Ill. App. 427 (Ia.); Miller v. MacVeagh, 40 Ill. App. 532 (S. D.); Lipe v. McClevy, 41 Ill. App. 59 (Col.).

See also Cressey v. Tatom, 9 Ore. 541 (indulging presumption with respect to law of state of Illinois); Buchanan v. Hubbard, 119 Ind. 187, 191, 21 N. E. Rep. 538 (indulging presumption with respect to Kansas).

6 Norris v. Harris, 15 Cal. 226, 253; Equitable Bldg. v. King, 37 So. Rep. 181 (Fla.) (no presumption as regards the law of Georgia).

7 Norris v. Harris, supra; Sloan v. Torrey, 78 Mo. 623; Peet v. Hatcher, 112 Ala. 514; Sims v. Southern Express Co., 38 Ga. 129, 132; Kennelbrew v. Southern Auto Co., 106 Ala. 377, 17 So. Rep. 545.

8 Castleman v. Jeffries, 60 Ala. 380; Flato v. Mulhall, 72 Mo. 522; Norris v. Harris, 15 Cal. 226, 253; Brown v. Wright, 58 Ark. 20; Garner v. Wright, 52 Ark. 385.

On the same principle Texas will make no presumption that the law of a sister state, with a common law system, is a particular rule of the common law. There is a legion

will take judicial notice that it has fundamentally, not the common law system of jurisprudence, but that of the civil law. This appears from the fact as stated by Judge Field1 that Texas "was an independent country at the time of its accession to the United States having laws of its own, not being carved out of the ancient colonial provinces of England, like the original thirteen states, or formed by emigration into an uncultivated country from those states, but from a Mexican province by a successful revolution against the Republic of Mexico." So with regard to Mexico, France, and other wholly foreign countries.1

If the foundations of the legal system of the forum and of the foreign jurisdiction are judicially noticed to be the same, then the court of the forum presumes that it is the same as that which the fundamental system upon which the law of the forum and of the foreign state is based, recognizes it to be. This most often occurs in the United States, where the law of the forum and of the foreign state are both noticed to be fundamentally based on the common law of England. Thus, if the English common law were noticed to be the basis of both the law of the forum and the foreign state, the rule which the forum declares or recognizes to be the rule of the common law 5 would be presumed to be the law of the foreign jurisdiction, and that too although the legislature of the forum had abolished that rule of the common law by statute. In terms of the burden of going forward with evidence, the rule amounts to this: That under the circumstances mentioned the party desiring to show that the foreign law is different from the rule of the common law has the burden of going forward with evidence. This is the position which the Supreme Court and Appellate Courts of Illinois have unequivocally taken. Thus, where a married woman in a sister common law state, having, subsequently to the Illinois Married Women's Acts of 1861 or 1872,

of cases to this effect (67 L. R. A. 53). See, however, the recent one of Blethen v. Bonner, 53 S. W. Rep. 1016 (Tex.).

1 Norris v. Harris, 15 Cal. 226, 253.

2 Banco de Sonora v. Bankers Mutual Casualty Co., 100 N. W. Rep. 532 (Ia.).

3 In re Hall, 61 N. Y. App. Div. 266, 70 N. Y. Supp. 406.

Aslanian v. Dostumian, 174 Mass. 328 (Asiatic Turkey); Savage v. O'Neal, 44 N. Y. 298 (Russia); Male v. Roberts, 3 Esp. 163 (Scotland); Thomas v. Ketcham, 8 Johns. (N. Y.) 190 (Jamaica).

See especially Patillo v. Alexander, 30 S. W. Rep. 644 (Ga.). The law of Tennessee was assumed to be the same as the State of Georgia held the common law to be, although the rule of the common law recognized by Georgia was different from the rule of the common law recognized by Tennessee.

acquired personal property which she claims as her own, brought the same to Illinois, the courts of that state will assume that the common law controls and that the personal property or chattels belong to the husband by virtue of the marriage. So, where a contract for the sale of land is governed by the law of Kansas, the Illinois court will assume the validity of the contract by that law, but cannot presume that any Statute of Frauds like that in force in Illinois is in force in Kansas. The Statute of Frauds of Kansas must be alleged and proved and in the absence of that proof or the going forward with evidence to that effect, the plaintiff may have specific performance of the contract in Illinois. So, in the case of contracts bearing rates of interest above the usual legal rate, but governed by the law of a sister common law state, the courts of Illinois assume the general common law rule in favor of the validity of contracts to be in force in the foreign state. They will not assume any foreign law of usury similar to the Illinois statute, but will require the foreign usury law to be proved specifically. Hence, in the absence of plea and proof of the foreign law there can be no defense of usury.3 In the same way the common law was presumed to be in force in Ohio, so that an option contract governed by the law of Ohio was held valid, although such contract by the statute of Illinois would be unenforcible. The posi

1 Tinkler v. Cox, 68 Ill. 119; Van Ingen v. Brabrook, 27 Ill. App. 401; Miller v. MacVeagh, 40 Ill. App. 532; Lipe v. McClevy, 41 Ill. App. 59.

2 Miller v. Wilson, 146 Ill. 523; Fireman's Ins. Co. v. Kuessner, 164 Ill. 275. See also Raphael v. Hartman, 87 Ill. App. 634.

8 Smith v. Whitaker, 23 Ill. 367; Dearlove v. Edwards, 166 Ill. 619. Note the distinction taken by the Appellate Court in Robinson v. Holmes, 75 Ill. App. 203.

Observe also that where the plaintiff sues on a foreign contract in which no interest is provided for after maturity, courts will recognize the common law validity of the contract and the right to recover a fair rate of interest after maturity as damages. Deem v. Crume, 46 Ill. 69; Hall v. Kimball, 58 Ill. 58; Heiman v. Schroeder, 74 Ill. 158; Mo. Riv. Tel. Co. v. Nat. Bank, 74 Ill. 217; Downey v. O'Donnell, 92 Ill. 559; United Workmen et al. v. Zuhlke, 129 Ill. 298; Heissler v. Stose, 131 Ill. 393; Whittaker v. Crow, 132 Ill. 627. But a particular rate of interest allowed by a foreign statute higher than that cannot be allowed without actual proof of the foreign law; Morris v. Wibaux, 159 Ill. 627, 652; Chumasero v. Gilbert, 24 Ill. 293.

Schlee v. Guckenheimer, 179 Ill. 593. See also Shannon v. Wolf, 173 Ill. 253, and Ferris v. Commercial Nat. Bank, 158 Ill. 237.

Observe also that in Dalton v. Taliaferro, 101 Ill. App. 592, 598, "convey and warrant " in a deed concerning Iowa Lands and governed by Iowa law did not contain a covenant of warranty because it did not by the common law, and in the absence of proof of the Iowa law the common law obtained, although contrary to the Illinois

statute.

In County of Joe Daviess v. Staples, 108 Ill. App. 539, judgment for a physician

tion thus taken by the Illinois courts is in accordance with that sustained by the large majority of jurisdictions of the United States, namely: Colorado, Georgia, Indiana, Kentucky, Maine, Maryland, Michigan, New Hampshire, New Jersey, New York, North Carolina, Oregon, South Carolina.1

It is obvious that the presumption or ground for shifting the burden of going forward with evidence of the foreign law indicated by the above cases rests upon a purely rational basis. It exists because, from the taking judicial notice of the existence of the same system of law in the foreign state as that which exists in the forum and the knowledge of the court of the forum of what the rules of that system are, a rational and permissible inference arises as to the law of the foreign state sufficiently strong to warrant the shifting of the burden of going forward with evidence of the foreign law on whoever would contradict this inference; or, as we more often say, the court of the forum presumes that the foreign law is the same as the rule of the fundamental system at the basis of the law of the forum and of the foreign jurisdiction. Suppose, then, the court of the forum judicially notices that the fundamental system of the law of the foreign state is not the same as that of the forum. Suppose, for instance, that the Illinois forum recognizes that Texas has fundamentally not a common law, but a civil law system of jurisprudence. What result is naturally reached? Of course, under such circumstances, there can be no presumption that the law of the foreign state is the rule of the common law.2 What then? The rational ground for shifting the burden of going forward or the presumption, has failed. The court of the forum has nothing upon which to act. He who had the burden of proving a case or a defense, and who, therefore, in the ordinary course had the burden of going forward in the first instance with evidence to prove the facts necessary to sustain his case or his defense, has

suing in Illinois upon a contract for professional services made in Iowa was sustained. The defense that the physician did not prove he was licensed to practise in Iowa failed because by the common law no such license was necessary, and the common law was presumed to be the law of Iowa in the absence of proof to the contrary, although by the statute modifying the common law in force in Illinois, such license was necessary.

1 See note in 67 L. R. A. 42-55, where the law of each state is summarized and the authorities given.

2 Norris v. Harris, 15 Cal. 226, 253; Flato v. Wright, 58 Ark. 20; Garner v. Wright, 52 Ark. 385. p. 403, notes 6-8, p. 404, notes 1-3.

Mulhall, 72 Mo. 522; Brown v

See also other cases cited, supra,