States are so far foreign to one another that this rule is generally applicable to their courts.1

As constituting an exception to the rule which has been just stated, it has been held that in those parts of the United States which formerly constituted parts of the colonial possessions of France, Spain or Russia, the laws in force at the time such territory became a part of the United States need not be proved as foreign laws, but will be judicially noticed.

Another exception to the rule that a state court will not judicially notice the laws of a sister commonwealth is occasioned by the application of the principle that a federal court will always take notice of the state statutes which it is actually called upon to administer. Where any question is litigated in a state court involving the construction or enforcement of the federal constitution or statutes, and is or might be subsequently appealed to a federal court, the statutory law of that state, so far as it would be judicially noticed by the appellate federal court, will, it has been held, be judicially noticed by the courts of other states also.3

Treaties made by the federal government with the Indiam. tribes or with a foreign government are a component part of the supreme statutory law and possess the full power and efficacy of an act of congress.

not take cognizance of the law of another without plea and proof has been constantly maintained at law and in equity."

1 Thatcher v. Morris, 11 N. Y. 437; Wilson v. Cockrell, 8 Mo. 7; St. Louis, etc. Co. v. Weaver, 35 Kan. 412; 21 Pac. Rep. 408; Owen v. Boyle, 15 Me. 147; Billingsley v. Dean, 11 Ind. 331; Hanley v. Donoghue, 116 U. S. 1; Sloan v. Torry, 78 Mo. 623; Eastman v. Crosby, 90 Mass. 206; Bradshaw v. Mansfield, 18 Tex. App. 21. The law will be presumed to be known to foreigners who contract abroad where the contract is to be carried out in this country. Dewitt v. Brisbane, 16 N. Y. 508. Contra where such a contract is to be performed abroad. Merch. Bank v. Spalding, 9 N. Y. 53.

The courts, both federal and

2 Crandall v. Sterling, 1 Colo. 106; Pecquet v. Pecquet, 17 La. Ann. 204; Chouteau v. Soulard, 9 Mo. 581; United States v. Perot, 8 Otto, 428; Adams v. Norris, 23 How. (U. S.) 353; Payne v. Treadwell, 16 Cal. 221; Henthorn v. Doe, 1 Blatch.. 157. The same exception obtains where new states are formed by the subdivision of one already existing.. Delano v. Joysling, 1 Litt. (Ky.) 117; Holley v. Holley, 12 Am. Dec. 342.

3 Butcher v. Brownsville, 2 Kan. 70; Morse v. Hewett, 28 Mich. 481; State v. Hinchman, 27 Pa. St. 479; Paine v. Schenectady, 11 R. I. 411; Fellows v. Menasha, 11 Wis. 558.

4 U. S. Const., art. VI, cl. 2.

5 Holmes v. Jennison, 14 Pet. 569; Doe v. Braden, 16 How. 635; Hunen

state, are bound to take judicial notice of their existence, dates, character and contents, and of the rights of all persons under them.1

Finally, it may be noted that the legal rate or amount of interest prevalent in the jurisdiction need not be shown, as the court will compute it, though a contrary rule obtains as regards the legal rate abroad, or even in a neighboring country.

-

§ 243. Foreign nations, seals and official acts. The existence of foreign governments need not be proved, for a court will take judicial notice of this fact and will recognize the respective title, flag and seal' of any state whose existence de facto or de jure has been admitted by the sovereignty within whose jurisdiction the court is located. Where a foreign government has not been acknowledged its existence must be proved, while, if it has been acknowledged, the fact of its acknowledgment, being a public executive act, will be judicially noticed.8

§ 244. Terms of courts, records, rules of practice and judicial proceedings.- A court will ordinarily take judicial notice of its own records, of the beginning 10 and length of its

1 Godfrey v. Godfrey, 17 Ind. 6; Carson v. Smith, 5 Minn. 78; United States v. Payne, 2 McCrary C. C. 289; Dole v. Wilson, 16 Minn. 472; Montgomery v. Deeley, 3 Wis. 623; United States v. Reynes, 9 How. (U. S.) 127: Jones v. Laney, 3 Tex. 342. Cf. American Ins. Co. v. Canter, 1 Pet. 511; Foster v. Neilson, 2 Pet. 314; United States v. Arredondo, 6 id. 691.

Johns, 4 Dall. 416; Santissima v. Trinidad, Wheat. 273, 335; Lazier v. Westcott, 26 N. Y. 146.

71 Kent's Com. 189; United States v. Palmer, 3 Wheat. 610; Yrissari v. Clement, 2 C. & P. 223.

8 Taylor v. Barclay, 2 Sim. 213. 9 Dewey v. St. Albans Co., 12 Atl. Rep. 224; Dines v. People, 39 III. App. 565; Minor v. Stone, 1 La. Ann. 283; Farrar v. Bolles, 55 Tex. 193; Brucker v. State, 19 Wis. 539; Anix v. Miller, 54 Iowa, 541; Robinson v.

2 School Dist. No. 1 v. Lyford, 27 Brown, 82 Ill. 279; Jordan v. Circuit Wis. 506.

Court, 69 Iowa, 177; State v. Postle

3 Coghlan v. Railroad, 142 U. S. wait, 14 Iowa, 446. Contra, Lake

101.

4 Kermott v. Ayer, 11 Mich. 181. The rates will not be presumed to be the same.

5 Lincoln v. Battelle, 6 Wend. 476. 6 Schoerkin v. Swift, 19 Blatch. (U. S.) 209; Church v. Hubbart, 2 Cranch, 187, 238; United States v.

Merced W. Co. v. Cowles, 31 Cal. 215; Baker v. M ̧ gatt, 111 U. S. 141; State v. Edwards, 19 Mo. 674; Stanley v. McElrath, 86 Cal. 449, where the records of one case are to be used in another.

10 Kidder v. Blaisdell, 45 Me. 461.

2

8

3

terms; of its officials, as sheriff or marshal; of the signature of its clerk or its attorneys of record,' its rules of practice and procedure; nor is it necessary to prove similar facts appertaining to other courts located in the same jurisdiction." A court of superior or appellate jurisdiction will also take notice of the officers, judges,' seals, terms, organization, jurisdiction 10 and powers of inferior courts." Where insulting language is used towards a judge holding court, he may in committing the offender for contempt act solely and exclusively upon his own knowledge of the words used, although under such circumstances it is not competent for him to take judicial notice of the fact that the offender had been theretofore tried and found guilty of a previous contempt of the same court.13

'Fabyan v. Russell, 38 N. H. 84. 2 Norvell v. McHenry, 1 Mich. 227; Land Co. v. Calhoun, 16 W. Va. 362; Dyer v. Last, 51 Ill. 179.

3 Slaughter v. Barnes, 3 A. K. Marsh. 412; Alexander v. Burnham, 18 Wis. 199; Ingram v. State, 27 Ala. 17; Thompson v. Haskell, 21 Ill. 215. But the official character of deputy-sheriffs and deputy-marshals must be shown. Potter v. Luther, 3 Johns. 431; Land v. Patterson, Minor (Ala.), 14; Ward v. Henry, 19 Wis. 76; Bank v. Curran, 10 Ark. 142; Alford v. State, 8 Tex. App. 545.

Yell v. Lane, 41 Ark. 53; Buell v. State, 72 Ind. 523; Alderman v. Bell, 9 Cal. 315; Land Co. v. Calhoun, 16 W. Va. 362.

$ Masterson v. Leclaire, 4 Minn. 108.

Rees v. Lowenstein (Minn., 1888), 40 N. W. Rep. 370; Kenosha v. Shedd, 82 Iowa, 140; 48 N. W. Rep. 933; Ohm v. San Francisco (Cal., 1890), 25 Pac. Rep. 155; Stanley v. McElrath, 86 Cal. 449; Olmstead v. Thompson, 8 S. Rep. 755; Benson v. Christian, 129 Ind. 535; State v. Ulrich, 110 Mo. 350; 19 S. W. Rep. 656; Alexander v. Gish (Ky., 1891),

12

17 S. W. Rep. 287. Cf. Holly v. Bass, 68 Ala. 206.

7 Graham v. Anderson, 42 Ill. 514. 8 State v. Snowden, 1 Brews. (Pa.) 218; Mangum v. Webster, 7 Gill, 78. 9 Stubbs v. State, 53 Miss. 437; Pugh v. State, 2 Head, 227; Williams v. Hubbard, 1 Mich. 446; McGinnis v. State, 24 Ind. 500; Bethune v. Hale, 45 Ala. 522; State v. Hammet, 12 Ind. 448; Davidson v. Peticolas, 34 Tex. 37; Simms v. Todd, 72 Mo. 288.

10 Masterson v. Mathews, 60 Ala. 260; Stiles v. Stewart, 12 Wend. 473; Tucker v. State, 11 Md. 322; Kilpatrick v. Com., 31 Pa. St. 198.

11 Hancock v. Worcester, 18 Atl. Rep. 1041; Nelson v. Ladd, 54 N. W. Rep. 309 (S. D., 1893); Vahle v. Brackenseick (Ill., 1893), 34 N. E. Rep. 524; Hatcher v. Rocheleau, 18 N. Y. 86; Landlin v. Anderson, 76 Ala. 403; Cherry v. Baker, 17 Md. 75; Kilpatrick v. Com., 31 Pa. St. 198; Dorman v. State, 56 Ind. 454; Lewis v. Wintrebe, 76 Ind. 13; Cutter v. Caruthers, 48 Cal. 178.

12 State v. Gibson, 10 S. E. Rep. 58; 33 W. Va. 97.

13 Myers v. State (Ohio, 1888), 22 N. E. Rep. 43; Ralphs v. Hensler, 32

As respects all matters of which judicial notice is taken, the judge may, where his knowledge is lacking or his memory indistinct, consult any person or such works of reference as he may select.1

Pac. Rep. 243; Jordan v. Circuit ed.), § 21; Reed v. Wilson, 41 N. J. Court, 69 Iowa, 177. L. 29, holding that a court may refer to an almanac. See, also, Case v. Perew, 46 Hun (N. Y.), 57.

1 Wagner's Case, 61 Me. 178; United States v. Teschmaker, 22 How. (U. S.) 392; Taylor Ev. (7th

CHAPTER XIX.

BURDEN OF PROOF AND RIGHT TO OPEN AND CLOSE.

§ 247. Burden of proof defined.— The phrase "burden of proof" may be defined as that "obligation which the law imposes on a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action, to establish it prima facie by proof." The law casts the burden of proof, as a general rule, upon the party maintaining the affirmative side of the issue. In other words, the party who alleges his possession of a legal right is under the necessity of substantiating his allegation by a preponderance of proof.2 This rule is intended to expedite the administration of justice and to aid in the ascertainment of the truth by requiring the evidence to come, in the first instance, from the party whose allegations are most susceptible of direct and simple proof.' The two phrases "burden of proof" and the "weight of evidence" are quite diverse in meaning. The burden of proof is fixed at the inception of the trial and does not change at any

Lauer v. Kuder (Ill., 1893), 34 N. E. Rep. 484; Columbus Watch Co. v. Hodenpyle, 135 N. Y. 430; Hyde v. Shank, 93 Mich. 535; First Nat. Bank v. Lowrey (Neb., 1893), 64 N. W. Rep. 568; Costigan v. Mohawk, etc. Co., 3 Denio, 609; Panama, etc. Co. v. Johnson, 63 Hun, 629; Stevenson v. Marony, 6 Ind. 330; Jones v. Kennedy, 11 Pick. 125, 132.