17

the authority does not extend to foreign judgments.16 A conveyance by gift or feoffment implies delivery of possession; and in counting upon the covenants of a deed, its delivery need not be alleged; it is implied; 18 and it is also implied in regard to other obligations upon which suit is brought. If one at common law pleads that he is heir to another, he need not say that the other is dead, for that is implied; 20 "Nemo est haeres viventis." 21

This rule is sometimes invoked to excuse the pleader, in counting upon a contract within the statute of frauds, from stating that it was in writing, this fact being implied.

RULE III. Facts should not be stated of which the Court will take judicial Notice, 22

§ 177. Classification of Matters to which the Rule applies.

The things of which the court takes judicial notice are, first, public laws, or matters evidenced by public law, which all are pre

16 Hollister v. Hollister, 10 How. Pr. 532.

171 Chit. Pl. 221. Quaere as to deeds of bargain and sale, especially in those states pe. mitting conveyances of land held in adverse possession.

18 Chit. Pl. 365.

19 Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 N. Y. 231.

20 Com. Dig. Pl. E, g; [Dean & Chapter of Windsor v. Gover] 2 Saund. 305a, note 13. This does not dispense with the necessity in real actions, brought by the heir on the seizin of his ancestor, of showing specifically and correctly how he is heir. [William v. Gwyn] 2 Saund. 45e, note; Treasurer v. Hall, 3 Ohio, 225.

21 This maxim is not always true. The word "heir" may be used in the sense of "child" or "heir apparent." Lockwood v. Jesup, 9 Conn. 272; Cox V. Beltzhoover, 11 Mo. 143. Lockwood v. Jesup was a suit upon a note payable to the heirs of John Jesup, who was living, the declaration averring that the plaintiffs were the children and presumptive heirs of John Jesup, and that the promise contained in the note was made to them by that title; and the declaration was sustained on demurrer.

22 This was a rule at common law [Co. Litt. 303b], and is made statutory in the codes of some of the states: Bullitt's Code Ky. § 119; Code Civ. Proc. Ind. § 88 (Rev. St. 1881, § 374); Wag. St. Mo. p. 1020, § 39 (Rev. St. 1879, § 3548); Code Civ. Proc. Ohio, § 129 (Rev. St. 1880, § 5083); Civ. Code Kan. § 130; Code Civ. Proc. Neb. § 136; Codes Iowa 1873 and 1886, § 2722; Gantt, Dig. Ark. 1874, § 4598 (Mansf. Dig. Ark. 1884, § 5062); [Deybel's Case, 4 Barn. & Ald. 243.]

sumed to know; second, matters of such notoriety, including the commonly recognized facts of science, as to be supposed to be gen. erally known; third, matters of mixed law and notoriety; and, fourth, matters peculiarly within the knowledge of the particular court.

§ 178. 1. Public Laws or Matters evidenced by public Law (a) International, commercial, ecclesiastical.

The law of nations, or international law, according to Vattel, is the science which teaches the rights subsisting between nations or states and the obligations correspondent; or, according to Bentham, it is a system of rules deducible by natural reason from the immutable principles of natural justice, and established by universal consent among the civilized inhabitants of the world; and it is obvious from its definition that no issue of fact can be made in regard to its precepts. It has no special or local application, but is universal; and a court, in noticing it, does not take cognizance of a foreign Code, but of one to which it is subject, and which it is bound to enforce.2 23 The law-merchant is "a system of 'customs acknowledged and taken notice of by all commercial nations, and these customs constitute a part of the general law of the land; and, being part of that law, their existence cannot be proved by witnesses, but the judges are bound to take notice of them ex officio." 24 Those provisions only of the law-merchant will be thus noticed which have been incorporated into the law of the land,2 and the particular laws of a foreign state bearing upon the subject -as, the allowance of days of grace-will not be judicially noticed.20 Mr. Greenleaf says that ecclesiastical, as well as civil, laws are thus noticed; but this can be true only of such as are part of the law of the land, and such ecclesiastical usages as have become so notorious as to be known to all. In the United States, as to all church organizations, and in England, as to those not sustained or governed by civil authority, their internal regulations, whether

23 See The Scotia, 14 Wall. 170.

24 Bouv. Law Dict. tit. "Law-Merchant."

25 1 Phil. Ev. c. 10, § 1.

26 Bowen v. Newell, 13 N. Y. 290.

of a secular or religious nature, must be treated as those of other voluntary associations or private corporations. The author doubtless referred to ecclesiastical laws, administered in England by ecclesiastical courts, which affect civil rights-as, concerning mar riage and divorce, the settlements of estates of deceased persons, etc.-which are part of the public law.

$179. (b) The Common Law and old English Statutes.

The common law of England, modified to suit their new conditions, was brought to the original colonies, was retained after they passed from under British jurisdiction, was extended to the sparsely settled or unsettled portions of the country claimed by the different states, and has been adopted in those states, except Louisiana, whose ter ritory has been acquired from other powers. "It has been assumed by the courts of justice, or declared by statute, law of the land in every state." 27

as the

As brought to this country, the common law of England, in most of its features, is the common law with us; still there have been changes both in England and in the states. From its nature it is progressive, it grows with society. Independent of statute, new inventions, new surroundings, new policies, new views in respect to rights, to duties and to social questions give rise to new deductions, and courts will look with eager eyes to every source of information, will call to their aid the rulings in foreign common-law courts as well as in their own, and when at a loss, will look to other systems for enlightenment. Thus the common law is enriched and perfected, is made, in fact as in theory, to conform to the law of reason. A modification in the courts of England, in other foreign common law courts, in those of some of our own states, or in the Federal courts, of some doctrine of the common law is still the common law as understood in the given court, and, in a judicial proceeding, the court will weigh the reasons for such modification and decide, will take judicial notice of, what the common law is as thus apparently changed or as hitherto understood.

Not only the common law proper, but "it is also the established doctrine that English statutes passed before the emigration of our

271 Kent, Comm. 472.

ancestors, and, applicable to our situation, and in amendment of the law, constitute a part of the common law of this country." 29 The authority of the old English statutes is not always left to inference, but in some of the states, as in Missouri, it is expressly declared by statute.

§ 180. When differently held in different States.

But reasons that produce changes in one court fail in another; hence, as to certain doctrines of the common law, there are different rulings in different jurisdictions. And, besides, the English common law is nowhere to be adopted absolutely and in all its parts, but only as adapted to our condition and circumstances. Thus, in some of the western states, wild and uninclosed lands are held to be so far subject to rights of common that cattle grazing upon them are not trespassers, and the owner, to secure sole enjoyment of his land, must inclose it. And in California, Colorado, etc., the English common law concerning the rights of riparian owners in regard to water-courses is modified: water is essential to mining and irrigation, and for these purposes the common-law doctrine would render its use very limited or impossible.

The question will then arise, when a party seeks the protection of the unwritten law of a foreign state, whose common law differs from that of the forum, whether it is a foreign law to be pleaded and proved. Courts assume, in the absence of evidence, that the common or unwritten law of another state is the same as its own," and will take notice that common-law felonies are crimes everywhere.30 If the laws differ, they must be proved as facts,31 and

28 1 Kent, Comm. 473.

29

29 Holmes v. Broughton, 10 Wend. 75; Cox v. Morrow, 14 Ark. 603; Averett v. Thompson, 15 Ala. 678; Cow. & H. note 413 to 2 Phil. Ev. (4th Am. Ed.) 429, 430.

30 Poe v. Grever, 3 Sneed, 664; Bundy v. Hart, 46 Mo. 460. It is sometimes said that courts will presume that the statutes of other states are the same as those within the court's jurisdiction. The more reasonable view would seem to be the one given by Allen, J., in Throop v. Hatch, 3 Abb. Pr. 23. He says: "It is well established that the common law is presumed to have

31 2 Cow. & H. notes to Phil. Ev. 433.

must be pleaded.

There can, upon principle, be no difference in

this respect between the unwritten and statutory law.32

181. Of what Statutes will the Court take Notice?-The best Source of Information.

Public domestic statutes, whether repealed or still in force, are judicially noticed, and should not be pleaded. This rule is not a universal one in common-law pleading, for we find certain declarations charging that the act complained of was contrary to the form of the statute in such case made and provided, with the averment that by virtue of the statute an action has accrued, or words equivalent. As applied to public statutes the rule is that where the statute is remedial, although the liability is created by it, it

33

originally existed in all the states of the Union, except, etc.; and it is a wellestablished presumption of law that things once proved to have existed in a particular condition continue in that condition until the contrary is established by evidence either direct or presumptive. Best, Ev. 187. Each state having

the sole power to legislate for itself, and change the common law therein by act of the legislature, it would seem to follow that until there were some proof that the common law had, by legislation, ceased to be the law of the land, it would be presumed to be in force. I can see no foundation for the presumption that because one state has seen fit to dispense with the rules of common law, and provide others for the government of its citizens upon a given subject, the legislature of every other state has been like minded. I speak now of matters which are known to, and, in the absence of an overruling statute, are governed by the common law. There are matters in relation to which the common law does not speak, which are regulated solely by statute, and in regard to some of these matters it is not impossible that our statutes may be presumed to be the same as those of the other states, or, rather, the laws of other states, in the absence of evidence, are presumed to be the same as those of our own." See the authorities cited in the opinion. 32 But the courts of Louisiana take judicial notice that the common law prevails in other states (Copley v. Sanford, 2 La. Ann. 335; Kling v. Sejour, 4 La. Ann. 128), and will look for information to the English reports, which are authority in those states (Young v. Templeton, Id. 254); also take notice of all military orders affecting courts, issued by the military governor while New Orleans was held by United States troops (Lanfear v. Mestier, 18 La. Ann. 497; Taylor v. Graham, Id. 656; New Orleans Canal & Banking Co. v. Templeton, 20 La. Ann. 141).

33 2 Chit. Pl. 493 et seq.