or to expect the Court to make its own researches into the mass of the records for the purpose of informing itself. Accordingly, it may be said generally that a Court is not by any rule bound to take notice of the tenor of any legal proceedings (other than those transacting at the moment in its presence). Indeed, this much is assumed in the conceded rules of law which require the original of a judicial record to be produced in proof, and define the exceptions by which a copy is allowed to to be used instead (ante, §§ 1215, 1216).

However, for reasons of convenience, where controversy is unlikely and the expense of a copy would be disproportionate, Courts are often found taking notice of the tenor or effect of some part of a judicial proceeding, without requiring formal evidence. Since this dispensation is not obligatory on the part of the Court, and since it must depend more or less on the practical notoriety and certainty of the fact under the circumstances of each case, little uniformity can be seen in the instances. It is often done for a part of the record in the same proceeding, or in a prior stage of the same controversy; less often for the record of a distinct litigation, especially when in another Court.2

§ 2580. Notorious Miscellaneous Facts: (1) Commerce, Industry, History, Natural Science, etc. Applying the general principle (ante, § 2565), especially in regard to the element of notoriousness, Courts are found noticing, from time to time, a varied array of unquestionable facts, ranging throughout the data of commerce, industry, history, and natural science.1 It is unprofit

2 1866, Lake Merced W. Co. v. Cowles, 31 Cal. 215 (petition for land-condemnation; notice not to be taken of the pendency of another petition in the same Court by another party for the same land); 1894, Lester v. People, 150 Ill. 408, 37 N. E. 1004, semble (in contempt proceedings arising out of a civil case, the record of the original cause, if properly incorporated, may be considered on appeal); 1899, Bailey v. Kerr, 180 id. 412, 54 N. E. 165 (application to compel execution of a deed by an assignor for benefit of creditors; notice taken of an order approving the sale); 1899, Crawford v. Duckworth, Ind. T. 53 S. W. 465 (that the defendant had in another proceeding in a Federal Court been declared not a Cherokee citizen, noticed); 1862, Baker v. Mygatt, 14 Ia. 131, 133 (that an affidavit offered was duly executed, as known to the judge by its filing in another suit not between these parties; not noticed); 1899, Lawless v. Stamp, 108 id. 601, 79 N. W. 365 (recitals in a deed of a receiver appointed in another suit, not noticed); 1877, National Bank of Monticello v. Bryant, 13 Bush 419 (litigation over a judgment; the records of other connected suits, not noticed); 1876, State v. Bowen, 16 Kan. 475 (new trial, with plea of former jeopardy; the prior proceedings, noticed); 1860, Pagett v. Curtis, 15 La. An. 451 (title to slaves; an order of Court pertaining to them, noticed); 1897, Anderson v. Cecil, 86 Md. 490, 38 Atl. 1074 (petition for a receiver against a buyer under judicial sale; the record in the suit for sale, not noticed); 1899, Olson Co. v. Brady, 76 Minn. 8, 78 N. W. 864 (garnishment proceedings;

the judgment against the principal defendant, noticed); 1875, Banks v. Burnam, 61 Mo. 76 (specific performance of a contract; a former suit for its rescission, not noticed); 1897, State v. Electric Co., 61 N. J. L. 114, 38 Atl. 818 (contempt for disregarding a stay implied in a certiorari writ; notice not taken of the writ or other proceedings in certiorari, the present proceeding being "quasi-criminal"); 1900, State v. Bates, 22 Utah 65, 61 Pac. 905 (proceedings in the same cause, noticed).

1 Some of these instances, in which notice was taken, are to be accounted for by their close approximation to facts of law (ante, § 2572); compare also the instances of a jury's judicial notice of matters of common knowledge (ante, $ 2570): Eng.: 1761, Edie v. East India Co., 2 Burr. 1216, 1228 (the custom of merchants is to be noticed, so far as it is "part of the law," per Wilmot, J.; but here the question was whether a special usage amounted to law); 1846, Brandao v. Barnett, 3 C. B. 519, 530 (“The general lien of bankers is part of the law merchant, and is to be judicially noticed, like the negotiability of bills of exchange, or the days of grace allowed for their payment. When a general usage has been judicially ascertained and established, it becomes part of the law merchant, which Courts of justice are bound to know and recognize. Such has been the invariable understanding and practice in Westminster Hall for a great many years"); 1902, Edelstein v. Schuler, 2 K. B. 144, 155 (negotiable character of certain bonds, in trade usage, noticed); Ala.: 1867, Modawell v. Holmes, 40 Ala. 391, 405 (depreciation of the

able, as well as impracticable, to seek to connect them by generalities and distinctions; for the notoriousness of a truth varies much with differences

of period and of place. It is even erroneous, in many if not in most instances, to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance.

§ 2581. Same: (2) Times and Distances. Among the common instances, under this miscellaneous class, are the facts of time or season1 and of distance; though here also the quality of notoriousness will naturally vary with the place and the epoch, as well as with the greater or less accuracy involved in the facts desired to be noticed.

§2582. Same: (3) Meaning of Words; Intoxicating Liquors. Another common class of instances, subject to the foregoing general considerations (ante, § 2580), is that of the meanings of words and phrases and written symbols. So far as these are notorious and unquestioned, they are constantly found noticed. Here, too, the local circumstances and the usage of the time must more than ever control the ruling. The popular familiarity with the fable of the Frozen Snake, and therefore the general understanding of the meaning of that epithet, may well be noticed in one period and community, yet not in another. So much of special usage in commerce, religion, and

river at a particular place ceased to be navigable, not noticed); 1900, Austin v. Tennessee, 179 id. 343, 21 Sup. 132 (contra to Austin v. State, Tenn., supra); Wash.: 1896, Mullen v. Sackett, 14 Wash. 100, 44 Pac. 136 (that there are always taxes remaining unpaid, noticed); 1898, Bartholomew v. Bank, 18 id. 683, 62 Pac. 239 (notice not taken of the presence or absence of a bank in a town); 1899, Prescott Irrig. Co. v. Flathers, 20 id. 454, 55 Pac. 635 (that ordinary sagebrush soil needs irrigation to produce crops, noticed); 1899, Hill Estate Co. v. Whittlesey, 21 id. 142, 57 Pac. 345 (vestry powers in the Protestant Episcopal Church, not noticed); W. Va.: 1876, Simmons v. Trumbo, 9 W. Va. 358, 364 (that Confederate notes were currency in the South during the war, that they were but little depreciated at a certain time, and were never made legal tender by the Confederacy, noticed); Wis.: 1899, Katzer v. Milwaukee, Wis. 79 N. W. 745 (rules of the Catholic Church, not noticed).

1 In some of these instances, the evidential admissibility of the record of the official meteorological bureau (ante, § 1639), or of histories and almanacs (ante, §§ 1698, 1699), was the real effect of the ruling: 1705, Harvy v. Broad, 2 Salk. 626 (that the calendar day for a writ being returnable fell on Sunday, noticed); 1705, Davies v. Salter, ib. 626 (similar); 1859, Sprowl v. Lawrence, 33 Ala. 674, 684 (that the first Monday of August, 1853, was August 1, noticed); 1876, Tomlinson v. Greenfield, 31 Ark. 557 (that a crop of cotton named in a mortgage of January could not have been planted or in being at that time, noticed); 1896, People v. Mayes, 113 Cal. 618, 45 Pac. 860 (time of moon-rising, noticed); 1879, State v. Morris, 47 Conn. 179 (coincidence of days of the month and week, noticed, by refreshment of memory from the almanac); 1851, Dawkins v. Smithwick, 4 Fla. 158, 162 (that a day of the month fell on Sunday, noticed); 1903, Dorough v. Equitable M. Co., Ga.

VOL. IV.

S. E. 22 (coincidence of the days of week and
month, noticed); 1866, Dixon v. Niccolls, 39 Ill.
372, 385 (the time of maturity of grain crops in
a certain region, not noticed); 1877, Ross v.
Boswell, 60 Ind. 235 (that the use of a farın in
cropping season is more valuable than in winter,
noticed); 1881, McIntosh v. Lee, 57 Ia. 358, 10
N. W. 895 (that March 10, 1878, was Sunday,
noticed); 1853, Sasscer v. Farmers' Bank, 4 Md.
409, 420 (that Dec. 26 fell on Sunday, and that
by commercial usage the day of payment of a
note is in such cases anticipated, noticed); 1881,
Philadelphia, W. & B. R. Co. v. Lehman, 56 id.
209, 226 (that July 28, 1878, was Sunday, no-
ticed); 1894, Morgan v. Burrow, Miss.
16 So. 432 (day of the month, noticed); 1879,
Reed v. Wilson, 41 N. J. L. 29, 32 (that the day
of a note's maturity fell on Sunday, noticed, and
also the law merchant as to days of grace); 1901,
Payne v. McCormick Harvesting M. Co., 11 Okl.
318, 66 Pac. 287 (time of planting and harvest-
ing annual crops, noticed)."

2 1893, Pettit v. State, 135 Ind. 393, 34 N. E. 1118 (that East Portland, Oregon, is distant 2398 miles from Crawfordsville, a place of trial in Indiana, noticed); 1893, Mutual Ben. L. Ins. Co. v. Robison, 7 C. C. A. 444, 58 Fed. 723 (that the distance between Dubuque, Ia., and Asheville, N. C., exceeds 100 miles, noticed); 1895, Blumenthal v. Meat Co., 12 Wash. 331, 41 Pac. 47 (the distance between two towns, noticed); 1876, Siegbert v. Stiles, 39 Wis. 533, 536 (that two towns in the State were separated only by a river and were mutually accessible across the ice, noticed).

1 1848, Hoare v. Silverlock, 12 Q. B. 624 (defamation for applying to the plaintiff the "fable of the Frozen Snake "; held, that no innuendo was necessary, and that, in arrest of judgment, the jury might justly attribute a libellous sense; per Erle, J., that their well-known application in a libellous sense could be noticed).

45
3617

industry, and of social life in general, is involved in the meanings of words, that no generalizations are practicable. The rulings must depend upon good sense rather than upon precedent.2

A difficult case is presented when the word in question is used in more than one notorious meaning, particularly when it has by custom come to be applied artificially or evasively to objects not strictly entitled to it. Common instances of this sort are the names of intoxicating liquors. The true solution here is rather to be found in the theory of presumptions (ante, § 2490); first, because judicial notice becomes inappropriate as soon as a fact is in any manner practically dubitable, and, next, because the fact really sought in many such instances is the meaning or use in a concrete instance which could not be notorious. Of various possible meanings, one may be presumed to apply. There is naturally some variance of ruling. Apart from particular local circumstances, it would seem to be proper to hold that "whiskey" or "gin may be assumed to signify an intoxicating liquor, and that a liquor termed "brandy" is intoxicating, and even that "wine," 5 or malt or hop liquors, are intoxicating. But "beer" is a term applied to so many non-intoxicating drinks that evidence of its qualities in a given instance may well be required.7.

2 The following are examples: 1809, Clementi v. Golding, 2 Camp. 25 (it was held that "book" in a copyright act might apply to a single printed sheet); 1861, Moseley's Adm'r v. Mastin, 37 Ala. 216, 221 (that "adm'r" signified "administrator," noticed); 1893, Edwards v. Publishing Soc., 99 Cal. 431, 435, 34 Pac. 128 (that "sack," in discussing electoral corruption, means a corruption-fund, noticed); 1895, Sinnott v. Colombet, 107 id. 187, 40 Pac. 329 (meaning of "kindergarten " in a resolution of a school-board); 1898, Hines v. Miller, 122 id. 517, 55 Pac. 401 (meaning of "shafts," "tunnels,' etc., noticed); 1867, Hill v. Bacon, 43 Ill. 477 (that the S. E. forty of a quarter-section signified one of four forties, noticed); 1877, Hart v. State, 55 Ind. 599, 601 (that "bills" testified to were bank-bills, not presumed; on the theory that the Court would notice the existence of other kinds of "bills "); 1827, Jones v. Overstreet, 4 T. B. Monr. 547 ("money," noticed); 1838, Com. v. Kneeland, 20 Pick. 206, 239 (the meaning of blasphemy," examined); 1879, State v. Johnson, 26 Minn. 316, 3 N. W. 982 (the orthography or pronunciation of Polish names, not noticed); 1902, Martin v. Eagle Creek D. Co., 41 Or. 448, 69 Pac. 216 (technical meanings are not noticed); 1849, U. S. v. Burns, 5 McLean C. C. 23 (" fiftycent pieces," etc., noticed).

The rules about expert opinion of the meaning of words (ante, § 1955) and about the use of dictionaries in evidence (ante, § 1699) serve to dispose of many of these questions.

1877, Schlicht v. State, 56 Ind. 173, 176 (whiskey); 1854, Com. v. Peckham, 2 Gray 514 (gin); 1901, Peterson v. State, 63 Nebr. 251, 88 N. W. 549 (whiskey).

1893, State v. Tisdale, 54 Minn. 105, 55 N. W. 903 (that California brandy is intoxicat

ing, noticed); 1893, Thomas v. Com., 90 Va. 92, 94, 17 S. E. 788 (that apple-brandy is intoxicating, noticed).

5 1901; Caldwell v. State, 43 Fla. 545, 30 So. 814 (that wine is intoxicating, noticed); 1897, Starace v. Rossi, 69 Vt. 303, 37 Atl. 1109 (Italian 'sour wine," noticed as intoxicating). Otherwise, where the description implies different ingredients: 1898, Loid. State, 104 Ga. 726, 30 S. E. 949 (that home-made blackberry wine is intoxicating, not noticed).

6 Contra: 1877, Shaw v. State, 56 Ind. 188 (malt liquors); 1894, People v. Rice, 103 Mich. 350, 61 N. W. 540 ("hop pop").

7 Differing views have been judicially expressed, but usually declining notice: 1876, Adler v. State, 55 Ala. 16, 23 (that lager beer is a malt liquor, noticed); 1892, Bell v. State, 91 Ga. 227, 231, 18 S. E. 288 (that rice-beer is intoxicating, not noticed); 1902, Du Vall v. Augusta, 115 id. 813, 42 S. E. 265 (that beer is intoxicating, not noticed); 1886, Hansberg v. People, 120 Ill. 21, 23, 8 N E. 857 (similar); 1883, Kerkow v. Bauer, 15 Nebr. 150, 155, 18 N. W. 27 (that beer is intoxicating, not noticed; except so far as defined by statute); 1901, Peterson v. State, 63 id. 251, 88 N. W. 549 (that whiskey and beer are intoxicating, noticed); 1889, Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049 (that beer is intoxicating, not noticed; Bradley, J., diss.); 1877, State v. Goyette, 11 R. I. 592 (that lager bier is a malt liquor, noticed); 1881, State v. Beswick, 13 id. 211, 220 (that beer is intoxicating, not noticed); 1894, State v. Sioux Falls Brewing Co, 5 S. D. 39, 45, 58 N. W. 1 (that beer is a malt or intoxicating liquor, not noticed; because there are many sorts); 1894, State v. Church, 6 id. 89, 60 N. W. 143 (that lager beer is intoxicating, noticed).

CHAPTER XC.

TITLE II: JUDICIAL ADMISSIONS.

§ 2588. Theory of Judicial Admissions.

§ 2589. Distinction between Judicial Admissions, Pleadings, Demurrers to Evidence, and Estoppels.

§ 2590. Effect of Judicial Admissions: (1) Conclusive upon the Party making.

§ 2591. Same: (2) Exclusive of Evidence by the Party benefiting.

§ 2592. Same: (3) Validity as a Waiver of Unconstitutionality or other Illegality.

§ 2588. Theory of Judicial Admissions. An express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. This is what is commonly termed a solemn -i. e. ceremonial or formal or judicial admission, and is, in truth, a substitute for evidence, in that it does away with the need for evidence.1 This judicial admission is sharply marked off from the ordinary or quasiadmission, — which indeed does not deserve to bear the same name. The latter is merely an item of evidence, available against the party on the same theory on which a self-contradiction is available against a witness. The distinctions between the two have already been examined (ante, §§ 1048, 1057). It is enough to note that, as to the effect, the latter is not conclusive; while as to its form, it may be either implied or express, and need not be either written or made in open court.

§ 2589. Distinction between Judicial Admissions, Pleadings, Demurrers to Evidence, and Estoppels. The effect which a judicial admission produces is of course an effect shared in common with certain other legal acts. In the first place, a pleading may by confessing a fact place it beyond the range

1 Ante 1726, Gilbert, Evidence, 103 ("The consent of the parties concerned must be sufficient and concluding evidence of the truth of such fact, for they [the jury] are only to try the truth of such facts wherein the parties differ"); 1896, Prestwood v. Watson, 111 Ala. 604, 20 So. 600 (Brickell, C. J.: Agreements of this character, intelligently and deliberately made, whether made by the parties in person, or by their attorneys or solicitors of record, are encouraged and favored. Their purpose, generally, is to save costs, and to expedite trials, by relieving from rules of practice which in the particular case are deemed mere hindrances, or the dispensation with mere formal proof, or, as in the present case, the admission

-

of uncontroverted facts, of the existence of which the parties are fully cognizant"); 1855, Com. v. Desmond, 5 Gray 80, 82 (Thomas, J., referring to the prosecuting attorney's admission on trial that a witness was an accomplice: "Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts"). In Louisiana the Continental law has left its mark: La. Rev. Civ. C. 1888, § 2291 ("Judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding. It amounts to full proof against him who has made it. It cannot be divided against him. It cannot be revoked," unless made through error of fact, but not for error in law).