pears to have been given at the trial or can be introduced for the first time at the argument of the exceptions. When the law of another state is in dispute, it is to be determined as a question of fact by the court or a jury in trying the cause; if the evidence is conflicting, the reviewing court has no authority to revise the finding, although the judge has reported the evidence; no exception can be taken to the finding of the judge upon a question of fact; it is as conclusive as if determined by a verdict. Ames v. McCamber (1878) 124 Mass. 85. The defendants in this case, to prove the common law of Vermont, had put in evidence reports of certain cases adjudged in Vermont, and the plaintiff had offered reports of other cases decided in Vermont, for the purpose of showing that the law of that state was not as the defendants contended, and argued that the decision of the presiding judge on the evidence before him was erroneous. If it is for the court to construe the statutes and judicial opinions of another state, still, if the evidence be conflicting in its application to the particular case, it is a question of fact what the law is, and the finding of this fact by the judge who tries the case without a jury is final, if there is sufficient evidence to support it. Hackett v. Potter (1883) 135 Mass. 349. In this case the New Hampshire statute and several New Hampshire decisions in relation to the statute were in evidence. The court held that the law of New Hampshire was a fact to be proved. The court said that if a statute of New Hampshire has been construed by the courts of that state, the question of fact is what has been the construction given to it by those courts. In Ufford v. Spaulding (1892) 156 Mass. 65, 30 N. E. 360, the court said: "It is a general rule that laws of other states must be proved as facts; and ordinarily, in a trial by jury, the question must be left to the jury to decide as a fact what the law of another state is, if it becomes material to be determined. This may, in some cases, prove inconvenient in practice, especially in view of the provision of our statute that the court shall not charge juries with respect to matters of fact; but such is the established rule in this commonwealth. . . . To this rule there is an exception where the evidence which is given of the law of another state consists of a statute or judicial opinion or document. In such case, the construction of such evidence is for the court. Ely v. James (1877) 123 Mass. 36; Hackett v. Potter, supra; Kline v. Baker (1868) 99 Mass. 253. Whether this exception includes cases where the law is to be gathered from more than one statute or judicial decision, or from a statute construed in the light of such decisions, need not now be considered." The court then stated that, in the present case, three kinds of evidence were introduced which might be considered in determining what the law of New Hampshire was; namely, a chapter of the laws of New Hampshire, seven judicial decisions, and the auditor's report; and that, on examination of all of these, it was forced to the conclusion that the law of New Hampshire applicable to the case was not a question for the court, but was one for the jury. The court further said that it did not see how it could be stated to the jury, as a fact proved beyond controversy by the evidence in the case. that the rule of law in New Hampshire was as declared by the chief justice at the trial to the jury; although it was far from saying that it would not be a just and sensible exposition of the law of New Hampshire; but, inasmuch as the law was to be proved as a fact, the difficulty was in finding any evidence in the case showing beyond controversy, as a fact, that such was the law; and the opinion concludes that it seemed to the court that a statement was given to the jury as to the rule of law in New Hampshire which, though it may have been correct in itself, was beyond what was warranted by the evidence in the case. In Coe v. Hill (1909) 201 Mass. 15, 86 N. E. 949, a suit in equity involving a question of status, declaring that the existence and effect of foreign laws are questions of fact, and that, under the finding of the single justice, neither the terms of a separation agreement nor the provisions of the domiciliary law as to marital rights of parties thus separated severed the bonds of matrimony, the character of evidence as to the law of England (domiciliary law) does not appear. In Johnson v. Scott (1910) 205 Mass. 294, 91 N. E. 302, a suit in equity, the court said the validity and value of the title created by a deed depended upon the statute law of Maine, and it was purely a question of fact what that law was; adding that when such a question of fact is presented to our courts, they must pass upon it; meaning, apparently, that, in a case tried by the court without a jury, it must pass upon the question as one of fact. In Paddleford v. Lane & Co. (1916) 223 Mass. 113, 111 N. E. 769, it was assumed by the parties that the contract in question was to be governed by the law of New York, and the opinion states that both parties introduced evidence on that point, the defendant putting in evidence a certain New York case. In his charge to the jury the presiding judge told them what the rule of law was which the case established; but the opinion says that if there was a question upon that point, it was a question to be decided by the jury, not by the judge. If it was merely a question of interpretation of the opinion in the individual New York case, the question, under the rule as stated in the Wylie Case (1898) 170 Mass. 356, 64 Am. St. Rep. 305, 49 N. E. 746, would seem to have been one for the court; but perhaps the court in the Paddleford Case meant that the rule of law was to be derived from that case in connection with other New York cases; in which event the question, under the doctrine of the Wylie Case, would, as held, be a question for the jury. In National Surety Co. v. Nazzaro (1921) 239 Mass. 341, 132 N. E. 49, declaring that the law of Connecticut was a question of fact, the character of the evidence as to the law of Connecticut does not appear. In New York Trust Co. v. Brewster 34 A.L.R.--93. (1922) 241 Mass. 155, 134 N. E. 616, an action heard by a single justice to enforce a liability created by a New York statute, there being New York cases in evidence, the court said that the evidence as to the law of New York raised a question of fact, and that the findings of the trial judge were conceded to be substantially correct; and that such findings are final if based on evidence. In Barrell v. Paine (1922) 242 Mass. 415, 136 N. E. 414, the court declared that the law of New York was a question of fact, and added that, on the evidence introduced by the plaintiff, a wagering contract in purchase and sales of stock on margin would be held invalid at common law; and cites a number of New York cases. Except as it may be inferred from this statement, the character of the evidence as to the law of New York does not appear. The following cases disclose the state of evidence as to the foreign law which makes it proper for the court to decide the question as one of law, and not of fact: In Bride v. Clark (1894) 161 Mass. 130, 36 N. E. 745, where the only evidence of the law of New York consisted of three sections of the statutes of that state, the court said that, as held in Kline v. Baker (1868) 99 Mass. 253, the construction of this evidence was for the court alone. In Farnum v. Pitcher (1890) 151 Mass. 470, 24 N. E. 590, the court, in reply to the contention of defendant that the published volumes of the Illinois Criminal Code and of the Illinois Reports, which he put in evidence, should have gone to the jury room, said that since, when the evidence of foreign law consists of statutes or judicial opinions, the questions as to their construction and effect are solely for the court, it might certainly, in its discretion, decline to send them to the jury. In Shoe & Leather Nat. Bank v. Wood (1886) 142 Mass. 563, 8 N. E. 753, declaring, upon the authority of the Kline Case, that the construction of a Kentucky statute, which was in evidence. was for the court, a number of Kentucky decisions were read to the court, upon the argument, without objection, and the opinion states that the bill of exceptions does not find that these cases were not before the court at the trial; and that an examination of the Kentucky cases cited shows that the ruling of the trial court was in accordance therewith. The laws of another state must be proved as facts are proved; although the construction of the evidence admitted, when it consists of a single statute or judicial opinion, is, as in case of other written documents, for the court. Ely v. James (1877) 123 Mass. 36. In this case the judge instructed the jury that the official report of the case decided in New York was evidence of the law of that state, and that, in the absence of conflicting evidence, the law so proved was to be taken to be the law of New York at the present time. The opinion adds that his further remark was not excepted to, and appears to have been intended to indicate to the jury that, while it was for the court to construe the opinion, it was for the jury to determine the sufficiency of the evidence to prove that that opinion expressed the law of New York. The exceptions were overruled. Where the evidence of foreign law consists entirely of statutes or reports of judicial decisions, the construction and effect of the statutes and decisions are usually for the court alone. Where the decisions are conflicting, or where inferences of fact must be drawn, the question of what the law is becomes one of fact. Hancock Nat. Bank. v. Ellis (1898) 172 Mass. 39, 42 L.R.A. 396, 70 Am. St. Rep. 232, 51 N. E. 207. The question in this case was as to the law of Kansas in respect to the liability of stockholders, and the plaintiff put in evidence the statutes of Kansas on the subject and also the official reports of several decisions of the courts of Kansas. The court said that the law of Kansas was a fact to be proved in the present suit; but added that, upon the evidence, a majority of the court was of the opinion that the trial court should have found as requested by plaintiff that, under the laws of Kansas, an action to enforce the stockholders' liability was transitory; and that this almost necessarily followed from the four rulings requested by the plaintiff, which the court gave, whether they be regarded as rulings of law or findings of fact. What is the law of a foreign state is primarily a question of fact; but, so far as it appears in statutes and decisions which are not conflicting, the construction of the language is for the court. Cook v. Bartlett (1901) 179 Mass. 576, 61 N. E. 266. The court said that whether enough appeared in the record and statutes introduced in the case to justify an instruction as a matter of law that, upon the undisputed facts, the child in question was legally adopted according to the law of Vermont, need not be decided, as the instruction submitting the question to the jury was sufficiently favorable to the defendant, who disputed the adoption. Probably some of the cases cited supra, III. a, could be reconciled with the narrower view taken by the Massachusetts cases. See, for example, Rice v. Rankans (1894) 101 Mich. 378, 59 N. W. 660, and Hanna v. Lichtenhein (1919) 225 N. Y. 579, 122 N. E. 625, supra, III. a. While the Massachusetts rule seems to be in harmony with the general principles which determine the respective functions of court and jury in matters of evidence, including those relating to questions of art or science generally, it is open to the serious objection on the practical side that the very situation or condition—that is, the difficulty of determining from apparently conflicting statutes or decisions the rule prescribed by the foreign law-which calls most loudly for the trained judicial mind is that which makes it necessary to refer the question to the jury. In other words, under this rule the question as to the foreign law is for the court when it is easy of solution, and for the jury when it is difficult, although the mental process necessary to an intelligent solution of the question is precisely the same, as in case of a question of domestic law, which is concededly a question for the court. Under the Massachusetts rule it may be necessary to submit to the jury a question as to the law of another state, which, if it had arisen in the other state, would concededly have been a question for the court, and notwithstanding that a precisely similar question as to the domestic law would also have been for the court. There is, from a practical point of view, at least, an obvious distinction between questions of foreign law and other questions of art or science, with which the jury is presumably as capable as the court to deal. IV. Miscellaneous. an As previously shown, the character of the evidence by which it is sought to prove the foreign law has important bearing on the question whether the rule prescribed by the foreign law is to be determined or ascertained as a matter of fact or as a matter of law. In some cases, however, in which generalizations on that subject are found, the character of the evidence as to the foreign law does not appear. In Hudson River Pulp & Paper Co. v. H. H. Warner & Co. (1900) 39 C. C. A. 452, 99 Fed. 187, the court said that the referee was called upon to find, and did find, what provisions of English statutes were in force, and what was the law of England, at the several dates with which the case was concerned, touching the power of corporations created under English statutes to amend their articles of association, and to refuse to register transfers of stock, and what liens were or were not created under English law by transactions such as took place in the case at bar, and what were the relative priorities of such liens under the same law. Following this is a general statement that our courts do not take notice of foreign law unless it be proved as a fact in the case; and the findings of the referee, therefore, as to English law, statute or common, are findings of fact, not reviewable by the circuit court of appeals. The report does not disclose the character of the evidence upon which the findings of the referee were based, or whether they rested entirely upon English statutes and decisions proven in the case, or in part upon the testimony of witnesses as to the law of England. So, in The Adriatic (1918) 253 Fed. 489, affirmed in (1919) 169 C. C. A. 622, 258 Fed. 902, involving the question of whether certain authority extended to vessels outside the "home waters" of the foreign sovereign, the court said that the question was set at rest by two considerations, one of fact, to be established by evidence, which was that the foreign law is a and that the authority asserted as existing under the foreign law has been established not only by the weight of the evidence, but by the only evidence evidence does not appear. in the cause. The character of the The court is to decide what is the proper evidence of the laws of a foreign country; and when evidence is given of those laws, the court is to judge of the applicability of such laws, when proved, to the case before the court. De Sobry v. De Laistre (1806) 2 Harr. & J. (Md.) 219, 3 Am. Dec. 535. The character of the evidence of the French law, which was not involved, does not appear. In Spies v. National City Bank (1903) 174 N. Y. 222, 61 L.R.A. 193, 66 N. E. 736, the court, after observing that an answer to a certain question must be furnished by the law of Louisiana, said that the answer, for the purposes of the action, could only be obtained by the introduction of evidence showing what the law of Louisiana is; for what the foreign law upon a given subject may be presents a question of fact, not a question of law, and must be both proved and found like any other question of fact; and it follows necessarily that when found as a fact by a trial court or referee, the effect of a unanimous affirmance of a judgment based in part thereon is to compel the court of ly as it treats any other finding of appeals to treat such finding preciseity." The report of the case does not fact, namely, as an "absolute vershow the character of the evidence as to the law of Louisiana, whether it was testimony of experts or Louisiana decisions put in evidence. In Williams v. State (1889) 27 Tex. App. 466, 11 S. W. 481, where the character of the evidence as to the law of New Mexico does not appear, the court, holding it error, though not prejudicial to submit to the jury the question as to the law of New Mexico with respect to theft, said generally that it is the province of the court to determine when the laws of another state or country have been established in evidence, and to construe those laws. The laws of a sister state are to be proved as facts, and the supreme court cannot revise the finding of the county court upon a question of this kind, especially unless the bill of exceptions furnishes some means. Taylor v. Boardman (1853) 25 Vt. 581. In Johnson v. Williams (1829) 1 J. J. Marsh. (Ky.) 489, declaring that the rate of interest in another state is a fact which must be ascertained by a jury on proof, and that the trial court erred in rendering a judgment for interest without a jury to ascertain the amount, the character of the evidence, if any, as to the rate of interest in the other state, does not appear. In Niagara County Bank v. Baker (1864) 15 Ohio St. 68, the court said: The existence, construction, and legal effect of the statutes of other states are rather matters of fact than of law; if a statute of another state has received an authoritative construction there, no inquiry into the correctness is allowable; it must be received as an established fact; and it is only in the absence of an authoritative exposition that we are permitted to construe the statute as we would one of our own. The precise question upon which the decision of the case at bar depends not having been settled in New York, the Ohio court is reduced to the necessity of so construing the statute in the light of principles established by judicial decisions in New York, as shall seem most conformable to the intentions of the legislature which enacted it. The court then proceeded to discuss the statutory question in the light of various New York decisions, which presumably had been put in evidence. The existence of a law of another state is a question of fact, triable by a jury; and provable, if necessary, by witnesses. Ingraham v. Hart (1842) 11 Ohio, 255. It was accordingly held that plaintiff's demurrer, which, the court said, presented the just, but not the actual, construction of the Pennsylvania Statute of Limitations set up in the answer, was not calculated to disclose the defense, and that a replication was necessary to bring forward the fact of the actual construction, and tender an issue to the jury. In Williams v. Finlay (1883) 40 Ohio St. 342, the court, upon the ground that the laws of another state must be pleaded and proven as matter of fact, held that a demurrer to plaintiff's petition, which purported to state the effect of the law of another state, was properly overruled; observing that if the law was not set forth with sufficient fullness, objection might be taken by motion to correct the insufficiency. When the law of a sister state is properly set forth in the pleading as a fact, then a question of law arises thereon as to the legal effect; and where the pleader, without setting forth the law, makes an averment of his conclusion as to legal effect, it is a conclusion of law, and properly so characterized by a demurrer. Jenness v. Simpson (1908) 81 Vt. 109, 130 Am. St. Rep. 1029, 69 Atl. 646. G. H. P. |