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performance, the court will not, on a demurrer to the declaration, take judicial notice of a law of such state which, applied to the contract, would render it void: Jones v. Palmer, 1 Dougl. (Mich.) 379; an averment of lis pendens in the courts of another state does not necessarily import that the defendant has appeared or been served with process, and hence is not a good plea in abatement: Newell v. Newton, 10 Pick. 470.

Another important exception to the rule that the laws of one state are foreign to the courts of another and must be pleaded and proved, is found in the fact that where one state is formed out of territory originally belonging to another, the courts of the new state will recognise as a part of their domestic jurisprudence all laws of the other state which were in force at the time of the separation, unless repealed, directly or by implication, in the new state. Thus the courts of Kentucky will take judicial notice of the laws of Virginia existing before the former state became independent of the latter: Delano v. Jopling, 1 Litt. (Ky.) 417. And the same is true of states which were formerly within the dominion of foreign nations. So the Spanish laws which prevailed in Louisiana before its cession to the United States, and upon which the titles to land in that state depend, must be judicially noticed and expounded by the courts of Louisiana: United States v. Turner, 11 How. 663. So also our courts will take judicial notice of the statute law of Great Britain in force before the separation; but the statutes of that country created since the revolution cannot be judicially noticed or established before our courts, except in the same manner and by the same proofs as the criminal laws of any foreign state: Ocean Ins. Co. v. Fields, 2 Story 59.

VI. Foreign Laws-How Proved.-The laws of any foreign state or country being thus seen to be without the judicial cognisance, we are next to consider the methods of proving them before the court when they become material to the controversy. A concise rule has been laid down by the United States Supreme Court, as follows: "The existence of a foreign law, written or unwritten, cannot be judicially noticed, unless it be proved as a fact, by appropriate evidence. The written foreign law may be proved by a copy of the law properly authenticated. The unwritten must be proved by the parol testimony of experts:" Ennis v. Smith, 14 How. 426; Frith v. Sprague, 14 Mass. 455. In regard to the written law, and first as to the mode of authenticating it, it is held that the great seal of

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a state affixed to the exemplification of a law is sufficient proof of itself, inasmuch as the public seal is a matter of notoriety and will be judicially noticed as a part of the law of nations acknowledged by all: Robinson v. Gilman, 20 Me. 300; State v. Carr, 5 N. H. 367. And it has been decided by the supreme federal tribunal that, under the Act of May 26th 1790, prescribing the manner in which the public acts, records and proceedings of the several states shall be authenticated, no other authentication of an act of the legislature is required than the annexation of the seal of the state; and it is presumed that the person who affixed the seal had competent authority to do so: United States v. Amedy, 11 Wheat. 392. In regard to foreign countries, however, it is essential that the person certifying the exemplification of the law should be one whose duty and prerogative it is to do so. Thus, it is not a consular function to authenticate the laws of a foreign state, and the certificate of a United States consul to that effect is not evidence Church v. Hubbart, 2 Cranch 187. And again," the certificate and seal of the minister resident from Great Britain in Hanover is not a proper authentication for the proceedings of a foreign court, or of the proceedings of an officer authorized to take depositions. It is not connected in any way with the functions of the minister. His certificate and seal could only authenticate those acts which are appropriate to his office:" Stein v. Bowman, 13 Pet. 209. The general rule, then, is that the exemplification must be under the great seal of the state. As between the several states of the Union, however, a more liberal rule obtains. In general, the written laws of a sister state may be proved by printed volumes, printed by the authority of such state, and purporting to contain the public acts of its legislature. In point of fact, this rule is dictated by principles of convenience, and affords a method of proof more satisfactory even than that by certified copy. It may now be regarded as established in a majority of the states. Thus it is said in Pennsylvania: "Printed volumes purporting to be on the face of them the laws of a sister state, are admissible as prima facie evidence to prove the statute laws of that state:" Mullen v. Morris, 2 Penn. St. 87. And in Massachusetts it is held that where a printed volume of the laws of another state contains the words "By authority" on the title-page, that is a sufficient authentication to allow it to be introduced in evidence: Merrifield v. Robbins, 8 Gray 150. In New Hampshire it was

once said that such printed volume was admissible if, according to the testimony of a counsellor of that state, it was there cited and received by the courts: Lord v. Staples, 23 N. H. 448; but a later decision holds it sufficient if it purports on its face to be printed by authority: Emery v. Berry, 28 N. H. 487. And see, to the same effect, Thomas v. Davis, 7 B. Mon. 227; Clanton v. Burnes, 50 Ala. 260; Barkman v. Hopkins, 11 Ark. 157; State v. Abbey, 29 Vt. 60; Simms v. Southern Ex. Co., 38 Ga. 129; Rothrock v. Perkinson, 61 Ind. 39; Bradley v. West, 60 Mo. 34. A contrary doctrine is held in North Carolina: State v. Twitty, 2 Hawks 441. Whether or not a similar authentication is sufficient for the statute law of a foreign country is a question not yet entirely decided; but the current of judicial opinion seems to require that the volume offered to prove such laws must be shown, by extraneous evidence, to be duly authorized by the government of the foreign country. Thus, a printed copy of the Irish statutes, when supported by the oath of an Irish barrister to the effect that he had received them from the king's printer in Ireland, and that they are good evidence there, may be used to show the laws of Ireland: Jones v. Maffet, 5 S. & R. 523. So, also, where a printed volume of the laws of a British province is shown by the testimony of witnesses to have received the sanction of the executive and judicial officers of the province, as containing its laws: Owen v. Boyle, 15 Me. 147. But an act of the Parliament of Great Britain cannot be proved by an alleged transcript of it in the "Canada Gazette," although the latter is an official newspaper: Beach v. Workman, 20 N. H. 379.

It is generally settled that the common or unwritten law of a foreign state may be proved by parol evidence of experts. And to constitute one an expert, for this purpose, it is not necessary that he should be a lawyer, provided it appears that he has been in a position which might reasonably be supposed to require familiarity on his part with such laws. Thus it is said: "The law of a foreign country on a given subject may be proved by any person who, though not a lawyer, or not having filled any public office, is or has been in a position to render it probable that he would make himself acquainted with it;" American, &c., Co. v. Rosenagle, 77 Penn. St. 515; Hall v. Costello, 48 N. H. 179. The construction given to a statute of a foreign state, by usage and by judicial decisions, is a part of its unwritten law, and should be proved by the testimony

of experts: Dyer v. Smith, 12 Conn. 384. In Massachusetts it is provided by statute that the books of reports of cases adjudged in the courts of other states are admissible in evidence to prove the unwritten law of those states: Cragin v. Lamkin, 7 Allen 395; Ames v. McCamber, 124 Mass. 91.

While it is firmly settled that foreign laws must be proved as facts, there is much diversity of opinion as to whether the proof of them should be addressed to the court or to the jury. On the one hand, it is the province of the jury to decide upon questions of fact. On the other hand, it is the undoubted prerogative of the court to rule upon matters of law. Judge STORY (Conflict of Laws,

§ 638) says: "The court are to decide what is the proper evidence of the laws of a foreign country; and, where evidence is given of those laws, the court are to judge of their applicability, when proved, to the case in hand." And the same rule has been asserted in New Hampshire Pickard v. Bailey, 26 N. H. 152. But in Massachusetts it is held that the construction to be put upon foreign laws after they are proved is a question for the jury, with such instructions to assist them in ascertaining and applying the law as may be deemed proper: Holman v. King, 7 Met. 384. And again: "When the evidence consists of the parol testimony of experts as to the existence or prevailing construction of a statute, or as to any point of unwritten law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. *** Where the evidence admitted consists entirely of a written document, statute, or judicial opinion, the question of its construction and effect is for the court alone:" Kline v. Baker, 99 Mass. 254. Perhaps the rule that is most closely in accordance with both reason and elementary law is that laid down in the following language: "The existence of a foreign law is a fact. The court cannot judicially know it, and therefore it must be proved; and the proof, like all other, necessarily goes to the jury. But when established, the meaning of the law, its construction and effect, is the province of the court. It is a matter of professional science; and, as the terms of the law are taken to be ascertained by the jury, there is no necessity for imposing on them the burden of affixing a meaning on them, more than on our own statutes. It is the office of reason to put a construction on any given document, and therefore it naturally arranges itself among the duties of the judge." State v. Jackson, 2 Dev. (N. C.) 563. These latter views are logi

cally, ably, and dogmatically supported by the learned author of Bishop on Marriage and Divorce, Vol. I., § 419.

VII. Presumption that the Foreign Law is the same as Our Own. We frequently see it stated that the law of any foreign country is presumed to be the same as our own. This means that where a contract, or other matter in dispute, is on its face to be governed by a foreign law, and no proof of that law has been adduced, and it is not such that the court can take judicial notice of it, the adjudicating tribunal will proceed upon the basis of its own laws, not being informed in what respect the foreign law differs, or presuming, within certain restrictions, that it is identical. Thus, as a general rule, it is presumed that the "common law" prevails in each of the United States: Monroe v. Douglass, 5 N. Y. 447; Whitford v. Panama Railroad Co., 23 Id. 465; Copley v. Sandford, 2 La. Ann. 335; Rape v. Heaton, 9 Wis. 328; 1 Whart. on Ev., § 314. In illustration of this rule, it is held that champerty, being an offence at common law, is to be presumed to be against the law of another state, the contrary not appearing: Thurston v. Percival, 1 Pick. 415. Again, in Massachusetts the giving of a promissory note is evidence of payment of a pre-existing debt-the law will be presumed the same in Maine: Ely v. James, 123 Mass. 44. Whether or not the statutes of another state are presumed the same as ours is a question propounded, but not decided, by the New York court in the case of Mc Culloch v. Norwood, 58 N. Y. 563. Probably not; since foreign statute-law is so easily susceptible of proof.

There are several exceptions to this rule of presumption. In the first place, it is plainly in accordance with natural justice that all contracts and judicial proceedings had abroad should be presumed legal and valid, until the contrary is shown. Hence, if a contract, made with reference to foreign laws and to be governed thereby, would be void or illegal by the law of the forum, the court will not presume the foreign law to be the same as the domestic, for the mere purpose of defeating the contract, but on the contrary, in the absence of proof, will understand the contract to be valid by the foreign law. In other words, the presumption of legality and validity is stronger than the presumption of identity of laws: 1 Bishop on Mar. & Div., § 412; 1 Whart. on Ev., §§ 314, 1250; Jones v. Palmer, 1 Dougl. (Mich.) 379. For example, if the defence is usury, and the contract would be usurious under the

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