ÆäÀÌÁö À̹ÌÁö
PDF
ePub

MATTERS JUDICIALLY NOTICED.

3

CHAPTER II.

OF MATTERS JUDICIALLY NOTICED, WITHOUT PROOF.

§ 4. ALL civilised nations, being alike members of the great 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 (a). 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 (b). Still the judges are bound, ex officio, to know whether or not the government has recognised such nation as an independent state (c).

§ 5. In like manner the judges will recognise, without proof, the

(a) Though no distinct authority can be cited for this proposition, it would probably be considered law at the present day, as falling within the rule, that facts of universal notoriety require no proof. See Gresl. Ev. 294. 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 differ somewhat, but that of Messrs. Carrington and Payne lays down the soundest law. This case is also reported in 3 Bing. 432.

(b) City of Berne v. Bk. of Eng., 9. Ves. 347.

(c) 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 Vice-Chancellor took judicial notice that the allegation was false. See, however, Dolder v. Bk. of Eng., 10 Ves. 354, where Lord 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 be well doubted whether this last case is law.

4

LAWS JUDICIALLY NOTICED.

common (d) and statute law (e), the law of nations, the law and custom of parliament, and the privileges and course of proceedings of each branch of the legislature (f); the prerogatives of the Crown (g), and the privileges of the royal palaces (h); the maritime law (i); the ecclesiastical law (j); the articles of war, both in the land and marine service (k), but not the book called "Rules and Regulations for the Government of the Army" (1); royal proclamations, such being acts of state (m); the rules of

(d) Heineccius ad Pand., L. xxii. t. iii. § 119.

(e) R. v. Sutton, 4 M. & S. 542. As to private acts of parliament, see 8 & 9 Vict., c. 113, § 3, cited post, § 7.

(f) Lake v. King, 1 Saund. 131 (a); Stockdale v. Hansard, 7 C. & P. 731; 9 A. & E. 1, and 2 P. & Dav. 1, S. C.; Cassidy v. Steuart, 2 M. & Gr. 437; Case of the Sheriff of Middlesex, 11 A. & E. 273.

(g) R. v. Elderton, 2 Ld. Ray. 980.

(h) 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 be a royal palace, R. v. Ponsonby, 3 Q. B. 14.

(i) Chandler v. Grieves, 2 H. Bl. 606 (n).

(j) 1 Roll. Abr. 526; 6 Vin. Abr. 496. In Beaurain v. Sir Wm. Scott, 3 Camp. 388, which was an action on the case for unlawfully excommunicating the plaintiff, the practice of the Ecclesiastical Court appears to have been proved as a matter of fact by witnesses, and to have been left to the jury by Lord Ellenborough.

(k) By the 1st section of the Mutiny Act, 10 & 11 Vict., c. 12, the Queen is empowered "to make articles of war for the better government of H.M.'s forces, which articles shall be judicially taken notice of by all judges, and in all courts whatsoever;" and, by the corresponding section of the Marine Mutiny Act, 10 & 11 Vict., c. 13, the Lord High Admiral, or the commissioners for executing his office," may make, ordain, and establish rules and articles of war under the hand of the said Lord 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, per Abbott, C. J.

(7) Bradley v. Arthur, 4 B. & C. 304, per Abbott, C. J.

(m) There exists some doubt upon this point. In Dupays v. Shepherd, 12 Mod. 216, Lord 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, Lord 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

CUSTOMS JUDICIALLY NOTICED.

5

equity (n); the general practice of conveyancers (o); the custom of merchants (p), at least where such custom has been settled by judicial determinations (q); the special descent of gavelkind and

document must be at hand, which establishes the fact he is called upon to notice. Copies of royal proclamations, if purporting to be printed by the Queen's printer, are now rendered admissible by 8 & 9 Vict., 113, § 3: see post, § 7.

(n) Elliott v. Evans, 3 B. & P. 181, per Lord Alvanley; Maberley v. Robins, 5 Taunt. 625; 1 Marsh. 258, S. C.; 2 Sugden, V. & P. 202-206.

(0) Willoughby v. Willoughby, 1 T. R. 772, per Lord Hardwicke; Doe v. Hilder, 2 B. & Al. 793; Doe v. Plowman, 2 B. & Ad. 577; Rowe v. Grenfel, R. & Moo. 398, per Lord Tenterden. Sir Edward Sugden observes in his Vend. & Pur., Vol. 3, 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 Lord Eldon.

(p) Eriskine v. Murray, 2 Lord Ray. 1542; Soper v. Dibble, 1 Lord Ray. 175; Carter v. Downish, Carth. 83; Williams v. Williams, id. 269.

[ocr errors]

that

reversing

Judy of da Ilh but affirming art of at hich relates to icial notice the general lien

(2) Barnett v. Brandao, 6 M. & Gr. 630. In that case, where judicial notice Brandao & Barnett was taken by the Court of Exchequer Chamber, of the general lien of bankers on &fur 727-3.013 the securities of their customers in their custody, Lord 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 of Bankers 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 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. So in Edie v. East India Company, 2 Burr. 1226, which turned upon the question, whether a bill payable to A. or order, and endorsed personally to B., could be afterwards endorsed 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. Lord Mansfield, however, with Denison and Foster, J.'s., rejected the testimony of witnesses to prove the usage, solely on

6

CUSTOMS JUDICIALLY NOTICED.

borough English lands (r), though it seems that all other customs incident to such tenures must be specially pleaded and proved (8) ; the customs of London which have been certified by the recorder (t), such as the custom of foreign attachment (u)—the custom that every shop is a market overt for goods of the same kind as are usually sold there (v)-the custom that married women may be sole traders (w), and the custom which regulates the distribution of the property of a freeman dying intestate among his orphan children (x); the custom or law of the road, viz., that horses and carriages should respectively keep on the left side (y); and all particular customs which have been tried, determined, and

the ground that the question had already been solemnly settled by two adjudications in the courts of law. See pp. 1224-1226.

(r) 1 Bl. Com. 76; Doe v. Scudamore, 2 Lord Ray. 1025; Co. Lit. 175 b; Crosby v. Hetherington, 4 M. & Gr. 946, per Tindal, C. J.

(s) Co. Lit. 175 b, n. 4; Robinson on Gavel. 41.

(t) Crosby v. Hetherington, 4 M. & Gr. 933, 946; Bruin v. Knott, 12 Sim. 452 -456; Blacquiere v. Hawkins, 1 Doug. 380, per Lord Mansfield. But uncertified customs must be proved in Westminster Hall, though they will be judicially noticed in the City Court. Stainton and Wife v. Jones, id., note 96, per Lord Mansfield. So also the Court of Queen's Bench in Ireland, will not judicially notice a custom of the Lord Mayor and Sheriffs' Court in Dublin, unless certified by the recorder. Simmonds v. Andrews, 1 Jebb and Symes, 531.

(u) Certified by Starkey in 22 Ed. 4. See 1 Roll. Abr. 554 (K) 5; Bruce v. Wait, 1 M. & Gr. 39; Crosby v. Hetherington, 4 M. & Gr. 933.

(v) Certified by Sir E. Coke, 5 Rep. 83 b; S.C., rather more at length, as L'Evesque de Worcester's case, Moore, 360; S.C. Poph. 84. See also Lyons v. De Pass, 11 A. & E. 326; and 9 C. & P. 68, S.C., where the custom was held to apply, though the premises were described in evidence as a warehouse, and were not sufficiently open to the street for a person on the outside to see what passed within.

(w) Lavie v. Phillips, 3 Burr. 1776. Other local customs, as that of carting whores, in London, or that of foreign attachment in Bristol, Liverpool, and Chester, are noticed in the respective city courts, 1 Doug. 380 n, 96, and therefore need not be set out on the record. In such cases, if the judgment of the court below is brought before a court of error, such court will also judicially notice the existence of the custom. See Bruce v. Wait, 1 M. & Gr. 24, 41, note a. (x) Bruin v. Knott, 12 Sim. 452, 453.

(y) This rule has been repeatedly recognised by 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. The rule of the river, that if a light vessel is going free, and a loaded vessel is coming close-hauled to the wind, it is the duty of the light vessel to bear away, and to let the loaded vessel keep her course, though admitted by sailors in navigating the

SEALS JUDICIALLY NOTICED.

7

recorded in the same court (z). But no judicial notice can be taken of the laws, usages, or customs of a foreign state; and so strictly is this rule enforced, that the laws of the colonies, and even the laws of Scotland, must be proved as facts (a). As the laws of Ireland are substantially the same as those of England, except so far as they are varied by statute, it is apprehended that no proof respecting them would be required; and in accordance with this view, one of our ablest judges has recently suggested, that the courts at Westminster would judicially recognise the fact, that an action must be commenced by process in Ireland (b).

6. The courts will also judicially notice the following seals:the Great Seal (c); the Queen's Privy Seal (d); the seals of the superior courts of justice (e); of the grand sessions in Wales (ƒ),

Thames, has not yet been judicially recognised. See Sills v. Brown, 9 C. & P. 602. With respect to steam-vessels, the act of 9 & 10 Vict., c. 100, § 9, enacts, "that every steam-vessel, when meeting or passing any other steam-vessel, shall pass as far as may be safe on the port side of such other vessel; and every steamvessel navigating any river or narrow channel, shall keep as far as is practicable to that side of the fairway or mid-channel of such river or channel which lies on the starboard side of such vessel; due regard being had to the tide, and to the position of each vessel in such tide ;" and the master shall be liable to a penalty not exceeding 501. for neglecting these regulations. § 13 further enacts, that "if any damage to any person or property shall be sustained in consequence of " neglecting these regulations, "the same shall, in all courts of justice, be deemed, in the absence of proof to the contrary, to have been occasioned by the wilful default of the master, or other person having the charge of such steam-vessel, and such master or other person shall be subject in all proceedings, whether civil or criminal, to the legal consequences of such wilful default." See also § 12, as to exhibiting lights.

() Dr. & St. 34; 1 Bl. Com. 76.

(a) Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54; Mostyn v. Fabrigas, 1 Cowp. 174, per Lord Mansfield; Sussex Peer. case, 11 Cl. & Fin. 114-117; Male v. Roberts, 3 Esp. 163, per Lord Eldon; Woodham v. Edwards, 5 A. & E. 771; 1 N. & P. 207, S.C.; Wey v. Yally, 6 Mod. 194; Story, Confl. of Laws, § 637, and cases cited in note23.191.

(b) Reynolds v. Fenton, 16 Law J. (N.S.) C.P. 16, per Maule, J., explaining Ferguson v. Mahon, 11 A. & E. 179; 3 P. & D. 143, S.C.

(c) Lord Melville's case, 29 How. St. Tr. 707.

(d) Foggassa's case, 24 Edw. 3, 23, cited in Olive v. Guin, 2 Sid. 146.

(e) Tooker v. Duke of Beaufort, Say. 297.

(f) Olive v. Guin, 2 Sid. 145, 6; Hardr. 118, S.C.

« ÀÌÀü°è¼Ó »