4 been guilty of a fraud, should not be read against her in a civil action, What is a rule of evidence? The text writers say that the word "evidence," in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Greenl. Ev. § 1. A rule of evidence may then be defined to be the mode and manner of proving the competent facts and circumstances upon which a party relies to establish the fact in dispute in judicial procedure. It is undoubtedly true that the legislature may change or alter the mere rule of evidence, and establish a new way or manner of proving or disproving a question of fact in controversy. But we think the question under consideration involves something more than a rule of evidence, and the immunity which the statute bestowed upon witnesses examined before the repeal took place continued after the repeal, and may be invoked in their t behalf, when their evidence is sought to be read in a civil action. But for the immunity offered by the statute that the evidence should not be used against the witness in a criminal proceeding, she could not have been compelled to have answered questions propounded to her relative to the consideration which she paid for the deed, nor the circumstances attending its execution and delivery. It is true that the indemnity offered by the statute as it read before the amendment was broader than it was necessary that the legislature should provide for the purpose of compelling an answer to the inquiry made of the witness, nevertheless it was one of the considerations which the legislature then thought proper to offer for the purpose of inducing the witness to disclose secrets relative to her private transactions. No one will contend that if the legislature had withdrawn all the indemnity given by the statute, including the one that the evidence. should not be read on a criminal trial charging the witness with the same fraud as to which the evidence related, the same could be read against the witness upon an indictment charging that the deed was executed with an intent to cheat and defraud the creditors of the grantor. The provision of the statute which was repealed was as sacred as the one which remained in effect, and it would be unjust to the witness. not to give her the full benefit of the promise made by the legislature when she gave her evidence, and we think that no such effect should be given to the amendment. In determining the effect of the amendment, we must assume that the legislature did not mean to violate its promise given to the witness, nor to divest her of an acquired right. It is always to be presumed that a statutory law, as to its legitimate office, was intended to furnish a rule as to future actions, to be applied in cases arising subsequent to its enactment. The law is never to have retroactive effect. Only its express letter, or clearly manifest intention, requires that it should have such effect. In Dash v. Van Kleeck, 7 Johns. 499, 5 Am. Dec. 291, Kent, C. J., says "that we are to presume, out of respect to the law-giver, that the statute was not meant to operate retrospectively;" and that "a statute ought never to receive such a construction if it be susceptible of any other." Railroad Co. v. Van Horn, 57 N. Y. 473. In Palmer v. Conly, 4 Denio, 376, Jewett, J., says: "It is a doctrine founded upon general principles of the law, that no statute shall be construed to have a retrospective operation without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning, unless such a construction is adopted." The only retrospective operation which it would be possible to give to this statute would be to take away from a party, or a witness the * * The reception right which existed before its adoption, for as a rule of evidence it could only apply to future examination. * of the evidence deprived the appellant of what we regard as a most sacred as well as substantial right, and unless it can be very clearly demonstrated—as we think it has not been-that no injury resulted to the appellant from its reception, a new trial should be granted. Judgment reversed, and new trial granted upon the special issues, and the costs of this appeal to abide the final award of costs. All concur; BRADLEY, J., in result. SCHLOSS v. HIS CREDITORS. (Supreme Court of California, 1866. 31 Cal. 201.) CURREY, C. J. The petition of Schloss was in due form. To it was annexed the schedule required by the third section of the act for the relief of insolvent debtors and protection of creditors, and thereupon the judge of the court in which the proceeding was instituted made an order requiring the creditors to show cause, if they could do so, at a particular time and place, why the prayer of the insolvent debtor should not be granted, and an assignment of his estate be made, and he be discharged from his debts. At the time appointed, several of the petitioner's creditors appeared and laid before the court their written opposition, alleging various acts of fraud against the petitioner by reason of which they prayed the court that the application of the petitioner might be dismissed, and that he might be forever debarred the benefit of the law referred to. The petitioner answered, controverting the charges of fraud. The issue thus joined was afterward tried before a jury, who rendered a verdict in the petitioner's favor, upon which judgment was entered. The opposing cred 4 Arguments of counsel and a portion of the opinion are omitted. itors moved for a new trial, which was denied, and in due time appealed from both the judgment and order. Notice to Creditors 1. At the trial, the petitioner offered in evidence his petition and schedule and the order of the judge for the publication of the notice to creditors, and such notice, with an affidavit of its publication. The counsel for the opposing creditors objected to this affidavit as evidence on the grounds: First, that the statute does not make such affidavit evidence; and second, that the same is not the best evidence. The court overruled the objection, to which ruling an exception was taken. Thereupon the evidence offered was admitted. The act requires that before any other proceeding shall be had upon the trial of an issue of the kind joined between the opposing creditors and the debtor claiming to be insolvent, and seeking a discharge from his debts, the court shall require proof of the publication of the notice to creditors (section 2); but the statute does not provide what shall constitute proof of publication of the notice, nor how the proof shall be made. Evidence and Proof There is an obvious difference between the words evidence and proof. The former, in legal acceptation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evidence. 1 Greenl. Ev. § 1. These words are often used indifferently as expressive of the same thing, and in this case it may not be important to observe the distinction between them. As a general rule, where proof of a fact is required by a statute, and the nature or character of the evidence for the purpose is not specified, the only mode of making the proof is that prescribed by the common law rules of evidence. Departures from a strict observance of these rules have been sanctioned in some instances on the ground of necessity, and in others, not involving particularly the real subject of controversy, but to the court, on the ground of convenience. Thus applications for a continuance on the ground of a party's inability to procure the attendance of a witness, or to obtain some necessary evidence, or to establish the loss of a written instrument, and the like, are in practice generally founded upon affidavits, and the service of notices and subpoenas, and matters of the kind, when required to be established, are usually proved by affidavits. The proof of the publication of the notice to the creditors was a matter preliminary to the trial of the issue joined, and was solely for the consideration of the court, that the court might thereby become judicially informed that all the creditors of the insolvent had been brought within its jurisdiction by the due publication of the notice or summons required by the eighth section of the statute, and had their day in court. We are of the opinion the court ruled correctly upon this point. 202 JUDICIAL NOTICE I. Effect Produced by Application of the Doctrine 1 STATE v. MAIN. (Supreme Court of Errors of Connecticut, 1897. 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30.) Amasa M. Main was convicted of a violation of the statute relating to "peach yellows," and appeals. BALDWIN, J.2 * The superior court was also right in refusing to instruct the jury, as requested, that if they should "find that the 'yellows' is not a contagious disease, and the existence of the disease in one tree does not cause it to spread from that tree to other trees, and thus endanger other trees, the property of others, and that a tree so diseased is not a public nuisance, then this statute is an improper and unwarrantable invasion of the rights and property of citizens, the right to care for his property, and plant and cultivate his trees as he desires, without interference, and is unconstitutional and void." Whether the "yellows" was such a disease as to justify the general assembly in enacting the statute under which the prosecution was brought depended on the existence and nature of the disease, and also on the apprehension of danger from it commonly entertained by the public at large. That such a disease existed, and was one of a serious character, ordinarily resulting in the premature death of the tree affected, is a matter of common knowledge, of which the court had a right to take judicial notice. Cent. Dict. "Peach Yellows," and "Yellows"; Webst. Int. Dict. "Yellows." Such a disease it was proper for the general assembly, in the exercise of its police power, to endeavor to suppress, even by the destruction of the trees attacked by it, if there was a reasonable apprehension of substantial danger, from allowing them to live, to those who might eat their fruit, or to other peach orchards. Unless the courts can see that there could by no possibility be such danger, the propriety of such legislation as that now in question is to be determined solely by the discretion of the legislative department. 1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 13. 2 A portion of the opinion is omitted. Torrance and Fenn, JJ., concurred. Hamersley, J., delivered a separate opinion, concurring in the judgment. Andrews, C. J., expressed the following opinion: "I dissent entirely from the views stated by Judge Hamersley. I have serious doubts as to the correctness of the opinion written by Judge Baldwin; but I have so far yielded to the arguments of my Brethren as not to dissent from the result reached by them." The description of this disease given in standard works and government publications, and the legislation in regard to it to be found in the statute books of Delaware, Maryland, Michigan, New York, Pennsylvania, Virginia, and the province of Ontario, are amply sufficient to establish, as a matter of judicial notice, the possibility, if not the probability, that it is a contagious disease. Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 26 L. R. A. 638, 47 Am. St. Rep. 653. The destruction of a tree affected by a disease of that character, without compensation to the owner, and against his will, is as fully within the police power of a state as the destruction of a house threatened by a spreading conflagration, or the clothes of a person who has fallen a victim to smallpox. Such property is not taken for public use. is destroyed because, in the judgment of those to whom the law has confided the power of decision, it is of no use, and is a source of public danger. Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence. In its appropriate field, it displaces evidence, since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. Brown v. Piper, 91 U. S. 37, 43, 23 L. Ed. 200; Com. v. Marzynski, 149 Mass. 68, 21 N. E. 228. "The true conception of what is judicially known is that of something which is not, or rather need not, unless the tribunal wishes it, be the subject of either evidence or argument,-something which is already in the court's possession, or, at any rate, is so accessible that there is no occasion to use any means to make the court aware of it." Thayer, Cas. Ev. 20. If, in regard to any subject of judicial notice, the court should permit documents to be referred to or testimony introduced, it would not be, in any proper sense, the admission of evidence, but simply a resort to a convenient means of refreshing the memory, or making the trier aware of that of which everybody ought to be aware. State v. Morris, 47 Conn. 179, 180. The defendant therefore had no right to have the jury pass upon the danger of contagion from trees affected by the yellows, as a means of determining the constitutionality. of the statute, by such verdict as they might render under the instructions of the court. It was for the court to take notice that it was a disease which might be contagious. Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 525, 527, 28 Atl. 32. There is no error in the judgment appealed from. * * * |