CHAPTER II. MATTERS JUDICIALLY NOTICED, WITHOUT PROOF.1 § 4. ALL civilised nations, being alike members of the great § 4 family of sovereignties, may well be supposed to recognise each other's existence, and general public and external relations. Every sovereign therefore recognises, and, of course, the public tribunals and functionaries of every nation notice, the existence and titles of all the other sovereign powers in the civilised world.3 If, however, upon a civil war in any country, one part of the nation should separate from the other, and establish for itself an independent government, the newly-formed nation cannot be recognised as such by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted. Still the judges are bound, ex officio, to know whether or not the government has recognised such nation as an independent state." 'See N. York Civ. Code, §§ 1705, 1706. * Gr. Ev. § 4, in great part. 3 United States of America v. Wagner, 2 Law Rep. Ch. Ap. 585, per Ld. Chelmsford, Ch. ; 36 L. J., Ch. 628, S. C. From Yrisarri v. Clement, 11 Moore, 314, 315; 2 C. & P. 225, S. C., it seems that the existence of States unacknowledged by the government must be proved by evidence, showing that they are associations formed for mutual defence, supporting their own independence, making laws, and having courts of justice. The two Reports somewhat differ, but the latter lays down the soundest law. This case is also reported in 3 Bing. 432. City of Berne v. Bk. of Eng., 9 Ves. 347. $ Taylor v. Barclay, 2 Sim. 213. In that case it was falsely alleged in the bill, with the view of preventing a demurrer, that Guatemala, a revolted colony of Spain, had been recognised by Great Britain as an independent state; but the V.-Ch. took judicial notice that the allegation was false. See, however, Dolder v. Bk. of Eng., 10 Ves. 354, where Ld. Eldon observed, "I cannot affect to be ignorant of the fact, that the revolutions in Switzerland have not been recognised by the government of this country; but, as a judge, I cannot take notice of that." It may well be doubted whether this last case is law. § 5. In like manner the judges will recognise, without proof, § 5 the common1 and statute law, and all legal claims, demands, estates, titles, rights, duties, obligations, and liabilities existing by the common law, or by any custom, or created by any statute;3 the rules of equity, and all equitable estates, titles, rights, duties and liabilities; the cardinal doctrine that, whenever the rules of equity and of the common law differ, those of equity must prevail; 5 the law of nations; the law and custom of parliament, and the privileges and course of proceedings of each branch of the legislature; the prerogatives of the Crown, and the privileges of the royal palaces; the maritime law; the ecclesiastical law; 10 the articles of war, whether in the naval, the marine, or the land 1 Hein. ad Pand., L. xxii. t. iii. § 119. 11 2 R. v. Sutton, 4 M. & S. 542; 13 & 14 V., c. 21, § 7. As to private Acts of Parl., see 8 & 9 V., c. 113, § 3, cited post, § 7. 3 36 & 37 V., c. 66, § 24, subз. 6; 40 & 41 V., c. 57, § 27, subs. 6, Ir. 36 & 37 V., c. 66, § 24, subs. 4, enacts, that the High Court of Justice and the Court of Appeal "respectively, and every judge thereof, shall recognise and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act." See, also, 40 & 41 V., c. 57, § 27, ṣubs. 4, Ir. 5 36 & 37 V., c. 66, § 25, subs. 11, enacts, that generally in all matters, "in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail." See Bustros v. White, 45 L. J., Q. B. 642, per Ct. of App.; L. R., 1 Q. B. D. 423, S. C. See, also, 40 & 41 V., c. 57, § 28, subs. 11, Ir. Lake v. King, 1 Wms. Saund. 131 a; Stockdale v. Hansard, 7 C. & P. 731 ; 9 A. & E. 1, and 2 P. & D. 1, S. C; Wason v. Walter, 8 B. & S. 671 ; 38 L. J., Q. B. 34; 4 Law Rep., Q. B. 73, S. C.; Cassidy v. Steuart, 2 M. & Gr. 437; Case of the Sheff. of Middlx., 11 A. & E. 273; Sims v. Marryat, 17 Q. B. 292. 7 R. v. Elderton, 2 Ld. Ray. 980. * Id. Reported, also, in 3 Salk. 91, 284; 6 Mod. 73; and Holt, 590; Winter v. Miles, 10 East, 578; 1 Camp. 475, S. C.; Att.-Gen. v. Donaldson, 10 M. & W. 117. Hampton Court has ceased to have privileges as a royal palace, Att.-Gen. v. Dakin, 36 L. J., Ex. 167; and 2 Law Rep., Ex. 290; S. C., per Ex. Ch., 3 Law Rep. Ex. 288 ; and 37 L. J., Ex. 150; S. C. in Dom. Proc. 4 Law Rep., H. L. 338; and 39 L. J., Ex. 113; R. v. Ponsonby, 3 Q. B. 9 Chandler v. Grieves, 2 H. Bl. 606 n. 14. 10 1 Roll. Abr. 526; 6 Vin. Abr. 496; Sims v. Marryat, 17 Q. B. 292, per Ld. Campbell. 11 29 & 30 V., c. 109. service,1 including those made for the government of the forces in India, but not the book called "Rules and Regulations for the Government of the Army; "3 royal proclamations, such being acts of State; the general practice of conveyancers; 5 the custom of merchants, at least where such custom has been settled by judicial determinations,7-such, for example, as the lien which a vendor has 4 6 By what is usually § 1 of the Annual Mutiny Act, the Queen is empowered "to make articles of war for the better government of H.M.'s army, which articles shall be judicially taken notice of by all judges, and in all courts whatsoever;" and by the corresponding sect. of the Annual Marine Mutiny Act, the Ld. High Admiral, or the commissioners for executing his office, "may make, ordain, alter, and establish rules and articles of war under the hand of the said Ld. High Admiral, or under the hands of any two or more of the said commissioners, for the better government of H.M.'s royal marine forces, and for the punishment of mutiny," &c.; "which rules and articles shall be judicially taken notice of by all judges, and in all courts whatsoever." See also Bradley v. Arthur, 4 B. & C. 304. 2 12 & 13 V., c. 43, § 1; 21 & 22 V., c. 106, § 56. There exists some doubt upon this point. In Dupays v. Shepherd, 12 Mod. 216, Ld. Holt held that a proclamation in print was of as public a nature as a public act of parliament; but in Van Omeron v. Dowick, 2 Camp. 44, Ld. Ellenborough refused to take notice of a proclamation, on the ground that the Gazette containing it was not produced. The marginal note to this last case is calculated to mislead, as it asserts broadly, that "a judge at Nisi Prius will not take judicial notice of the king's proclamations." The case does not go this length, which is tantamount to saying that royal proclamations must be laid before the jury, but simply decides that, when a judge's memory is at fault, some document must be at hand to establish the fact which he is called upon to notice. Copies of royal proclamations, if purporting to be printed by the Queen's printer, are rendered admissible by 8 & 9 V., c. 113, § 3; see post, § 7. They may be proved also in a variety of other ways. See 31 & 32 V., c. 37, § 2, cited post, § 1527. Willoughby v. Willoughby, 1 T. R. 772, per Ld. Hardwicke; Doe v. Hilder, 2 B. & Al. 793; Doe v. Plowman, 2 B. & Ad. 577; Rowe v. Grenfel, Ry. & M. 398, per Ld. Tenterden. Ld. St. Leonards observes, in 3 V. & P. 28, "It matters very little what is the opinion of any individual conveyancer; but the opinion of the conveyancers, as a class,, is of the deepest importance to every individual of property in the state. Their settled rule of practice has, accordingly, in several instances been adopted as the law of the land, not out of respect for them, but out of tenderness to the numerous purchasers who have bought estates under their advice." See also Howard v. Ducane, 1 Turn. & R. 86, per Ld. Eldon. Eriskine v. Murray, 2 Ld. Ray. 1542; Soper v. Dibble, 1 Ld. Ray. 175; Carter v. Downish, Carth. 83; Williams v. Williams, id. 269. 7 Barnett v. Brandao, 6 M. & Gr. 630. In that case, where judicial notice 2 on goods remaining in his possession for unpaid purchase-money,1 or the general lien of bankers and factors on the securities of their customers in their custody, or the usage among money dealers of treating scrip certificates payable to bearer, whether of a foreign Government or of a company, as negotiable instruments transferable on delivery; the customs which regulate the special descent of was taken by the Ct. of Ex. Ch. of the general lien of bankers on the securities of their customers in their custody, Ld. Denman, in pronouncing the judgment of the court, said, "The law-merchant forms a branch of the law of England; and those customs, which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce: and when so adopted, it is unnecessary to plead and prove them. They are binding on all without proof. Accordingly we find that usages affecting bills of exchange and bills of lading, are taken notice of judicially."-P. 665. His lordship then states that, "in the case of a factor, the right to a general lien" is, "in modern practice, treated as a matter of settled law, and no proof is ever required that such general lien exists, as a matter of fact;" and he adds, that "the lien of bankers, who are a species of factors in pecuniary transactions, stands on the same footing," and, consequently, their right to such lien "need not be pleaded, but the courts are judicially bound to take notice of it.”—P. 666. This lien extends to Exchequer bills.-Id. The judgment of the Ex. Ch. in the above case was afterwards reversed by the House of Lords, but that portion of it which relates to judicial notice of the general lien of bankers, was affirmed. Brandao v. Barnett, 12 Cl. & Fin. 787; 3 Com. B. 519, S. C. So, in Edie v. E. India Co., 2 Burr. 1226, which turned upon the question, whether a bill payable to A. or order, and indorsed personally to B., could be afterwards indorsed by B. to another, Mr. J. Wilmot observed, "The custom of merchants is part of the law of England, and courts of law must take notice of it as such. There may, indeed, be some questions depending upon customs amongst merchants, where, if there be a doubt about the custom, it may be fit and proper to take the opinion of merchants thereupon ; yet that is only where the law remains doubtful, and even then the custom must be proved by facts, not by opinion only; and it must also be subject to the control of law."-P. 1228. Ld. Mansfield, however, with Denison and Foster, JJ.'s, rejected the testimony of witnesses to prove the usage, solely on the ground that the question had already been solemnly settled by two adjudications in the courts of law. See pp. 1224-1226. See also Jones v. Peppercorne, 28 L. J., Ch. 158. 1 Imperial Bk. v. Lond. & St. Katherine's Dock Co., 46 L. J. Ch. 337, per Jessel, M.R.; L. R. 5 Ch. D. 195. S. C. 2See cases cited in last note but one. 3 Goodwin v. Robarts, L. R., 1 App. Cas. 476; 10 Law Rep., Ex. 76 and 337, S. C.; Rumball v. Metrop. Bk., L. R., 2 Q. B. D. 194; 46 L. J., Q. B. 346, S.C. 3 gavelkind and borough English lands,1 and it seems any other custom incident to such tenures; 2 the custom or law of the road, viz., that horses and carriages should respectively keep on the near or left side; and the following rules with respect to navigation,-first, that ships and steamboats, on meeting "end on or nearly end on in such a manner as to involve risk of collision," should port their helms, so as to pass on the port, or left, side of each other; next, that steamboats should keep out of the way of sailing ships; and next, that every vessel overtaking another should keep out of its way. So, every judge will notice the particular 11 Bl. Com. 76; Doe v. Scudamore, 2 Ld. Ray. 1025; Co. Lit. 175 b; Crosby v. Hetherington, 4 M. & G. 946, per Tindal, C.J. * In Rider v. Wood, 24 L. J., Ch. 737, Wood, V.-C., acting on the authority of Payne v. Barker, as reported in Bridg. 18, 23, 26, held that the court would judicially notice all the customs incident to borough English tenures. See also 36 & 37 V., c. 66, § 24, subs. 6. 3 This rule has been embodied by Professor Selwyn, in what an Etonian would call "Longs and Shorts: "— "Sed precor hoc posthac reminiscere, carpe sinistram : What is perhaps more to the lawyer's purpose, the rule has also been repeatedly recognised by the judges at Nisi Prius, in actions for negligent driving and riding. See Leame v. Bray, 3 East, 593, as to carriages, and Turley v. Thomas, 8 C. & P. 104, per Coleridge, J., as to saddle horses. See also 14 & 15 V., c. 92, § 13, Ir. In France the law of the road is different, and horses and carriages there pass on the off side. The regulations for preventing collisions at sea, which contain the rules concerning lights, fog signals, steering and sailing, are now embodied in a table issued by virtue of the Act 25 & 26 V., c. 63, § 25, and of two Orders in Council, dated respectively 9 Jan. 1863, and 4 Aug. 1868. See 32 L. J., Pr., Mat. & Adm. 1; 1 Lush. Adm. R., App. i.; and 3 Law Rep. Adm. & Ecc. 611, 612. § 26 of the same Act enacts how these regulations are to be published and proved, and § 28 enacts, that in case any damage to person or property arises from the non-observance by any ship of these regulations, such damage shall be deemed to have been caused by the wilful default of the person in charge of the deck of such ship, unless it be proved that circumstances made a departure from the regulations necessary. See post, § 206; Gen. St. Nav. Co. *. Hedley, 3 Law Rep., P. C. 44; Dryden v. Allix, 1 Moo. P. C., N. S. 528; The Concordia, 1 Law Rep., Adm. & Ecc. 93; The Spring, 1 Law Rep., Adm. & Ecc. 99. As to the law prior to these regulations, see Chadwick v. City of Dublin St. Packet Co., 6 E. & B. 771; Smith v. Voss, 2 H. & N. 97; Zugasti t. Lamer, 12 Moo. P. C. R. 331; Maddox v. Fisher, 14 Moo. P. C. R. 103; Williams v. Gutch, id. 202; Tuff v. Warman, 2 Com. B., N. S. 740. See |