officer (ante, §§ 2161-2169), and by the doctrine of judicial notice of public officers (post, § 2576).6

§ 2536. Similarity of Foreign Law. Whether a foreign rule of law is to be adopted as applicable to any part of the litigation before the Court, depends upon principles of substantive law. Supposing the foreign rule to control, then it is to be noted, with reference to ascertaining the terms of the foreign rule, that the Court does not know it judicially, and that it must therefore be proved like any factum probandum,2 and that in aid of such proof a presumption may within certain limits be resorted to. (1) If it is the law of a State possessing the English common law as the foundation of its system, in particular, one of the United States, it is generally said to be presumed to be the same as that of the forum; even if it involves the existence of a statutory enactment, the same rule is often applied, though many Courts draw a distinction here and confine the presumption to the common or judicially-declared law.5 (2) If the foreign State is not one whose system is

For the rule of presumption as to the incumbency of the celebrant of a marriage, see ante, § 2505; the question is complicated by two additional ones, namely, whether a de facto clergyman sufficed at common law, and whether the opponent by his conduct has admitted the legal ity of the celebrant's appointment.

1 Post, § 2573.

2 Whether to the Court or to the jury is another question (post, § 2558).

3 Ga. 1895, Pattillo v. Alexander, 96 Ga. 60, 22 S. E. 646 ("as to such matters concerning which there is no such recognized variance

as will afford a basis for judicial cognizance of such difference"; here the nature of an indorser's contract); Ia.: 1896, Goodwin v. Assurance Soc., 97 Ia. 226, 66 N. W. 157; Nebr.: 1894, Fitzgerald v. F. & M. C. Co., 41 Nebr. 374, 472 (rate of interest); 1897, East Omaha St. R. Co. v. Godola, 50 id. 906, 70 N. W. 491; 1902, People's Building L. & S. Ass'n v. Backus, id. 89 N. W. 315 (usury); 1903, Staunchfield v. Jutter, - id. -, 96 N. W. 642 (waste by mortgagee of property); Pa.: 1896, Musser v. Stauffer, 178 Pa. 99, 35 Atl. 709; S. D.: 1897, Morris v. Hubbard, 10 S. D. 259, 72 N. W. 894; Tex. 1895, Tempel v. Hunter, 89 Tex. 69, 33 S. W. 222.

Sometimes the rule is applied even to the law of Louisiana: 1868, Simms v. Express Co., 38 Ga. 129, 132.

1903, Heim B. Co. v. Gimber, ib. 834, 72 Pac. 859 (contributory negligence, while injured in Missouri; neither decision nor statute of Missouri judicially noticed, i. e. they were presumed to be the same); Mo.: 1898, Burgess v. Tel. Co., Mo. - 46 S. W. 794; Nebr.: 1893, Scroggin v. McClelland, 37 Nebr. 644, 646, 56 N. W. 208 (period of limitation); 1899, Fisher v. Donovan, 57 id. 361, 77 N. W. 778 (law of beneficiary corporations); Pa.: 1903, Adams Paper Co. v. Cassard, 206 Pa. 179, 55 Atl. 949 (contract of a wife made in New York; the contract being void by statute if made in Pennsylvania, "the Court will presume the wife's disability is the same in New York as here "); Wis. 1903, Second Nat'l Bank v. Herman and Smith, 118 Wis. 18, 94 N. W. 664 (sufficiency of notice of dishonor).

The apparent ruling in New Jersey (1902, Coler v. Tacoma R. Co., 64 N. J. Eq. 117, 53 Atl. 680; 1903, Dittman v. Distilling Co., ib. 537, 54 Atl. 570) that a statute of another State will be presumed the same is really a ruling that a corporation chartered in one State may exercise its powers in another State unless the other State expressly prohibits it, and hence the burden of proving this exceptional prohibition is on the party who would profit by it.

5 Ala. 1897, Louisville & N. R. Co. v. Williams, 113 Ala. 403, 20 So. 938; 1899, Birmingham Waterworks Co. v. Hume, 121 id. 168, 25 So. 806; Ark.: 1893, Brown v. Wright, 58 Ark. 20, 22 S. W. 1022 (but the unwritten law is not presumed to be the same where the common law of England was not the foundation of jurisprudence, as in Texas); Ga.: 1898, Pattillo v. Alexander, 96 Ga. 60, 30 S. E. 644; Ill. : 1893, Miller v. Wilson, 146 Ill. 523, 531, 34 N. E. 1111 (statute of frauds, not presumed); 1899, Schlee v. Guckenheimer, 179 id. 593, 54 N. E. 302 (assumpsit on contract made in Ohio, but legal in Illinois; presumed valid as at common law in Ohio); La.: 1895, Roehl v. Porteous, 47 La. An. 1582, 18 So. 645; Mass.: 1894, Kelley v. Kelley, 161 Mass. 111, 112, 36 N. E. 3585

4 Cal. 1895, Cavallaro v. R. Co., 110 Cal. 348, 42 Pac. 918; Ga.: 1903, Wells v. Gress, Ga. 45 S. E. 418 (warranty of a chattel's quality; the sale being made in Wisconsin, and the Georgia Code sanctioning an implied warranty, it was held that, even supposing that the common law did not imply such a warranty, yet "the legal presumption is that the lex loci is the same as our own"); Ia.: 1903, Barringer v. Ryder, 119 Ia. 121, 93 N. W. 56 (dower rule); Kan. 1901, Woolacott v. Case, 63 Kan. 35, 64 Pac. 965; 1903, Poll v. Hicks, 67 id. 191, 72 Pac. 847 (Ohio judgment; Ohio statute presumed the same, as to a supersedeas bond);

VOL. IV.

founded on the common law the presumption will probably not be made, unless the principle involved is one of the law merchant common to civilized countries. It has been suggested that in reality there is no presumption, and that the true process is merely that of refusing to recognize a presumption that the foreign State has a different law; and no doubt this will suffi ciently describe the situation in many cases; but the ordinary mode of stating the question seems correct enough in most instances. The proper phrasing depends upon the state of the burden of proof in the case in hand; though the doctrine of judicial notice of law (post, § 2573) tends to be here confused.

§ 2537. Contracts. In evidencing the issues of fact arising under a contract right or liability, the first burden of proof (ante, § 2485) is almost always determined by the rules of pleading, or is directly deducible therefrom; the chief class of questions here, the performance of a condition, is included plainly, in common law tradition, within the sphere of pleading;1 though in more recent times, under looser methods of procedure, the relaxation of boundaries between affirmative and negative pleas has tended to obscure the old landmarks of discussion. So, too, under the second burden of proof (ante, §§ 2487, 2494), so far as there are rules of prima facie sufficiency or of presumption, relieving or shifting the duty of producing evidence, they seldom concern facts peculiar to the domain of contracts alone; and any of the preceding presumptions may become applicable.2

§ 2538. Statute of Limitations. The first burden of proof (ante, § 2485), affecting the loss of a right by limitation, was at common law usually placed upon the plaintiff, i. e. to show that the period of limitation had not elapsed

837 (divorce jurisdiction); Minn.: 1898, Pardoe v. Merritt, 75 Minn. 12, 77 N. W. 552; N. Y. 1894, Vanderpoel v. Gorman, 140 N. Y. 563, 568, 35 N. E. 932 (assignment by corporation); 1898, First National Bank v. Broadway N. Bank, 156 id. 459, 51 N. E. 398 (statutory change in another State not presumed); S. D.: 1898, Meuer v. R. Co., 11 S. D. 94, 75 N. W. 823; Tex.: 1899, Blethen v. Bonner, 93 Tex. 141, 53 S. W. 1016 (semble); Vt. 1897, State v. Shattuck, 69 Vt. 403, 38 Atl. 81.

6 Compare with the following some of the cases cited supra, notes 3-5, on the law of Texas and Louisiana: 1899, Aslanian v. Dostumian, 174 Mass. 328, 54 N. E. 845 (common law merchant, if it applies in Turkey, must be shown to do so, by the party wishing to prove it); 1901, Mexican C. R. Co. v. Glover, 46 C. C. A. 331, 107 Fed. 356 (Mexican law as to employers' liability, presumed the same as that of Texas). The presumption of continuance (ante, § 2530) is sometimes here invoked: 1880, Hynes v. McDermott, 82 N. Y. 43, 57 (whether the law of France, as proved for 1862, would be presumed to continue until 1871, not decided).

7 1898, Corson, P. J., in Meuer v. R. Co., 11 S. D. 94, 75 N. W. 823. Compare Story, Conflict of Laws, 8th ed., 1883, § 637, note by Professor Bigelow. The following are examples of the com

moner problems of this sort: Warranties or conditions in an insurance policy: 1902, Hennessy v. Ins. Co., 74 Conn. 699, 52 Atl. 490; 1903, Supreme Tent v. Stensland, 206 Ill. 124, 68 N. E. 1098 (life); 1896, Penn. M. L. Ins. Co. v. M. S. B. & T. Co., 19 C. C. A. 286, 72 Fed. 413, 441 (the burden is on the insurer to show materiality and fraudulent intent of a false representation; nor does knowledge of the falsity of the same representation in another policy raise a presumption as to knowledge on this occasion); Exemptions in a bailee's contract: ante, § 2508; Reservations in a deed: 1897, Harman v. Stearns, 95 Va. 58, 27 S. E. 601 (deed with reservations; the claimant must prove that the land claimed is not within the reservations).

2 The following are some of the rare instances: Shipper's assent to the terms of a bill of lading received: 1896, Chicago & N. W. R. Co. v. Simon, 160 Ill. 648, 43 N. E. 596 (the carrier must show that limitations of his common-law liability are brought to the shipper's notice); 1866, Boorman v. Express Co., 21 Wis. 152, 158 (delivery to the shipper raises a presumption of assent); Partnership books: 1897, Wilson v. Potter, - Ky., 42 S. W. 836 (partnership books are presumed correct; and in attacking them the specific items must be pointed out beforehand).

between the accrual of his right and the institution of his suit; this seems to have been due to the peculiar wording of the earliest statutes, whose analogies were afterwards repeated. But the more natural and just view is to treat the fact as one of defeasance, like a release, and thus to place on the opponent the burden of establishing it; this is the result accepted in probably most jurisdictions to-day, either by statute 2 or at common law; 3 in any event, it is in strictness a question of the law of pleading, not of evidence. Where the plaintiff's declaration exhibits in itself the lapse of the barring period, a further question arises (not necessarily dependent on the rule for burden of proof) as to the mode of taking advantage of this admission; in some cases a demurrer, or its equivalent, may suffice; in a jurisdiction where the burden is on the defendant, it would be proper to raise thereby a presumption in his favor, shifting to the plaintiff the duty of producing evidence of some exception; 5 though here again the rules of pleading should furnish the proper mode of determination.

§ 2539. Malicious Prosecution. In an action for malicious prosecution, the plaintiff is anomalously required to plead and to prove facts which are otherwise regarded as matters of excuse or privilege, i. e. the termination of the prior proceeding in his favor, the lack of probable cause for it, and the malice;1 this being prescribed for him by the rules of pleading. In the course of sustaining this first burden (ante, § 2485), he may sometimes avail himself of rules of presumption or prima facie sufficiency (ante, §§ 2487, 2497) or be met by counter-presumptions for the defendant; for example, by a rule that the magistrate's discharge,2 or the suffering of a nonsuit, is prima facie evidence, or raises a presumption, of lack of probable cause, or that the defendant's receipt of advice from counsel is sufficient evidence of probable cause. But in these and other instances the rule is frequently intended to be one of substantive law, i. e. that the fact in question is or is not per se probable cause; and the details of substantive law thus become inextricably mingled with the rules of presumption.

§ 2540. Sundry Burdens and Presumptions. In sundry multifarious cases, more or less casual, rules of presumption have been recognized;1 and experi

1 1817, Hurst v. Parker, 1 B. & Ald. 92 (trespass to a mine); 1837, Nepean v. Knight, 2 M. & W. 894 ("the onus is also cast on the lessor of the plaintiff of showing that he has commenced his action within twenty years after his right of entry accrued "); 1897, Leigh v. Evans, 64 Ark, 26, 41 S. W. 427 (administrator's account); 1897, Graham v. O'Bryan, 120 N. C. 463, 27 S. E. 122.

2 Cal. C. C. P. 1872, § 458; 1896, Thomas v. Glendinning, 13 Utah 47, 44 Pac. 652 (under Comp. L. 1888, § 3244).

31895, Goodell's Ex'rs v. Gibbons, 91 Va. 608, 22 S. E. 504; Wood on Limitations, 1901, 3d ed., by Gould, § 7.

1879, Hutchinson v. Hutchinson, 34 Ark. 164 (provided also the facts in the complaint negative any ground of avoidance); 1876, People v. Herr, 81 Ill. 125 (but not in an action on

a penal statute); 1895, Fulton v. Northern Ill. College, 158 id. 333, 336, 42 N. E. 138; 1879, Lewis v. Alexander, 51 Tex. 578, 588.

5 1879, Hines v. Potts, 56 Miss. 346, 352; 1895, Gross v. Disney, 95 Tenn. 592, 32 S. W. 632; Wood on Limitations, ubi supra.

1 1883, Abrath v. Northeastern R. Co., L. R. 11 Q. B. D. 440; 1858, Barron v. Mason, 31 Vt. 189 (leading opinion, by Redfield, C. J.).

2 Contra: 1860, Israel v. Brooks, 23 Ill. 526 [575]; accord: 1893, Barhight v. Tammany, 158 Pa. 545, 28 Atl. 135.

3 1902, Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800 (collecting the cases pro and con).

1 The following are illustrations: 1897, Kansas City, F. S. & M. R. Co. v. Becker, 63 Ark. 477, 39 S. W. 358 (a common employment of plaintiff and the defendant's servant having been shown, a presumption arises that they were fel

ence will doubtless and justly continue to develop new ones. The various burdens of proof of the first class fall properly within the domain of the rules of pleading (ante, § 2486).

BOOK III: TO WHOM EVIDENCE MUST BE PRESENTED (LAW AND FACT; JUDGE AND JURY).1

CHAPTER LXXXVIII.

§ 2549. Functions of Judge and Jury; Gen

eral Principles.

§ 2550. Admissibility of Evidence.

$2551. Sufficiency of Evidence.

2552. Negligence.

$2553. Reasonableness.

2554. Same: Malicious Prosecution.

$ 2555. Facts Judicially noticed; Trial by Inspection; Nul Tiel Record.

$2556. Construction of Documents.

§ 2557. Criminal Intent.

$ 2558. Foreign Law.

2559. Local Law.

§ 2549. Functions of Judge and Jury; General Principles. As a part of the larger procedure of jury trial, the question arises, To whom must evidence be presented for persuasion? To the judge, or to the jury? Before examining the answer to this question, certain principles, superficially related, must be discriminated. (a) The judge's control over the burden of proof. As a part of the rules regulating the burden of proof, the party on whom rests for the time being the duty of coming forward with evidence may be required to offer not merely any evidence whatever, but a sufficient amount to be worth considering, before he is regarded as satisfying this rule; in other words, he cannot go to the jury unless his evidence is sufficient, by this test; and it is the judge that applies the test. In this sense, then, the judge may be called upon to rule whether the evidence is sufficient, i. e. sufficient to go to the jury; if it is, they then solely determine whether it is sufficient, i. e. to convince them. This has been already examined (ante, §§ 2487, 2494). (b) The judge's discretion, or final determination of a question either of fact or of law (ante, § 16). The ruling of a trial Court on preliminary questions of fact relating to admissibility is often held to be not subject to review, i. e. the trial Court is said to have "discretion"; the instances have been mentioned under the various heads of evidence. (c) The judge's application of a rule defining the legal consequences of a fact. So far as the substantive law gives certain facts per se a legal consequence (as when it makes, for example, the consultation of counsel per se sufficient for good faith, in an action for malicious prosecution), the judge applies the rule, and the case is in this respect beyond the control of the jury. This principle becomes especially important in issues of negligence (post, § 2552). (d) Finally, the present subject, i. e. the respective functions of judge and jury, in the ultimate decision of the different issues that arise; upon this apportionment of function depends the question, To whom is the evidence to be regarded as offered by the parties?

1 EXPLANATORY NOTE. The explanations made ante, § 2499, note 1, apply to this Chapter also.