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III. BURDEN OF PROOF
IV. BEST AND SECONDARY
thereof is shown.
United States v. De
3. Courts do not take judicial notice as 1318 to who are practising attorneys; therefore, 1324 an objection to a surety on that ground
VI. ADMISSIONS AND DECLARATIONS 1325 must be sustained by proof. Cothren v.
a. In general
1325 Connaughton, 24 W. 134.
b. Admissions, how made... 1326
c. By and to whom made 1328 Beer intoxicating.
VIII. RES GESTAE
1340 4. When the word "beer" is used in court 1342 by a witness, the court will take judicial 1347 notice that it means a malt and an intoxi1377 cating liquor, within the meaning of the XI. EXPERT AND OPINION EVIDENCE.. 1400 statute. Briffitt v. State, 58 W. 39, 16 N. a. Who competent to give 1400 W. 39.
X. PAROL EVIDENCE
b. Evidence, admissibility of 1403
XII. RELEVANCY, MATERIALITY AND COMPE- Census.
a. In general
b. As to particular facts and
XIII. ORDER, WEIGHT AND SUFFICIENCY
a. Order of admission
b. Weight of evidence
I. JUDICIAL NOTICE.
Acts of congress and treaties.
1413 1478 1478 1479 1482
5. Courts will take judicial notice of a census, whether taken under the authority of the state or of the United States, and of the number of inhabitants in the several minor political divisions of the state as appearing thereby. State ex rel. Atty. Gen. v. Cunningham, 81 W. 440, 51 N. W. 725, 15 L. R. A. 561n; State ex rel. Lamb v. Cunningham, 83 W. 90, 53 N. W. 35, 17 L. R. A. 145.
also take judicial notice of laws amendatory of city charters, and of the powers and duties of officers under them. Terry v. Milwaukee, 15 W. 490; Alexander v. Milwau kee, 16 W. 247.
6. Courts take judicial notice of the powers and capacities of incorporated cities; the acts of the legislature incorporating 1. The courts of this state, as well as them being public acts. Janesville v. Milthose of the United States, will take judi-waukee & Miss. R. Co., 7 W. 484. They will cial cognizance of all public acts of congress, and treaties with foreign powers; and such acts and treaties need not be proved. Montgomery v. Deeley, 3 W. 709. 2. In an action by the United States for trespass upon public lands, the court is bound to take notice of the laws and treaties of the United States; and if the land upon which the alleged trespass was com- 9 N. W. 789. A city charter is a public act, mitted was included in any treaty ceding of which courts take judicial notice, withit to the United States, the title is pre- out its being pleaded. Durch v. Chippewa sumed to remain there until a transfer Co., 60 W. 227, 19 N. W. 79.
7. Our courts take judicial notice of the incorporation of a city under the laws of this state. Smith v. Janesville, 52 W. 680.
I. Judicial Notice.
8. Our courts will take judicial notice of Foreign judges. the fact that lands sought to be acquired un- 18. The courts of this state will not take der the preemption laws of the United | judicial notice that there are county judges States were within the limits of a city duly in the state of New York, nor that they incorporated under the laws of this state, have authority to administer oaths. Felwhen the claimant offered to file his pre- lows v. Menasha, 11 W. 558. emption papers, and by reason of § 2258 R. S. of U. S. were not subject to preemption. Houlton v. Chicago, St P. M. & O. R. Co., 86 W. 59, 56 N. W. 336.
9. Courts will take judicial notice of the adoption, by a specially incorporated city, of portions of the general charter law. Davey v. Janesville, 111 W. 628, 87 N. W. 813.
10. Courts will take judicial notice that the existence of a mortgage upon insured premises is a fact material to the risk. VanKirk v. Citizens' Ins. Co., 79 W. 627, 48 N. W. 798.
11. A court can take judicial notice of the nature and uses of an air-gun,—as it can of beer, or gas, of an express or freight car. Harris v. Cameron, 81 W. 239, 51 N. W. 437.
12. Courts may properly take judicial notice of the fact that no means or device that human ingenuity has as yet been able to produce, will wholly prevent the emission or throwing of sparks or cinders from railway locomotives. Menominee Riv. G. & D. Co. v. Milwaukee & North. R. Co., 91 W. 447, 65 N. W. 176.
13. The courts will take judicial notice of matters of common scientific knowledge, such as the sources of artisian wells, and those of Wisconsin in particular. Huber v. Merkel, 117 W. 355, 94 N. W. 354, 62 L. R. A. 589.
Contents of Bible.
14. The courts will take judicial notice of the contents of the Bible; of the fact that the religious world is divided into numerous sects; and of the general doctrines maintained by each sect; as being subjects of common knowledge. State ex rel. Weiss v. District Board, etc., 76 W. 177, 44 N. W. 967, 7 L. R. A. 330.
Courts, jurisdiction and records.
15. A court will take judicial notice of the jurisdiction conferred upon it by law, and in an action brought therein its jurisdiction need not be alleged, if the amount claimed in the complaint does not exceed that jurisdiction. Meshke v. Van Doren, 16 W. 319.
16. The supreme court will take judicial notice of its own former record and proceedings, in a case brought before it a sec ond time. Brucker v. State, 19 W. 530.
17. The circuit court will take judicial notice of its own records, and, where the book itself is offered in evidence, it is immaterial whether, in the description of the court in such records, the word "circuit" is omitted or not. State ex rel. Kickbush v. Hoeflinger, 35 W. 393.
19. Our courts will not take judicial notice of the laws of other states. Rape v. Heaton, 9 W. 328; Walsh v. Dart, 12 W. 635.
20 On demurrer by indorsers to a complaint seeking to charge them, jointly with the makers, upon instruments for the payment of money, made and payable in another state, the court cannot take judicial notice of the laws of that state relating to the liability of indorsers, which have not been pleaded. Cont. Nat. Bk. v. McGeoch, and Cont. Nat. Bk. v. Wells, 73 W. 332, 41 N. W. 409.
21. Our courts are not required by the constitution of the United States or the act of Congress on the subject of giving credit to the public acts and judicial proceedings of another state, to take judicial notice of those laws, but may presume them to be like our own in the absence of proof to the contrary. Osborn v. Blackburn, 78 W. 209, 47 N. W. 175, 10 L. R. A. 367.
22. A court of this state cannot take judicial notice of the statutes of another state, or of the proceedings in its courts, but they must be pleaded and proved as facts whenever any right is claimed under them. Swing v. White River L. Co., 91 W. 517, 65 N. W. 174.
23. The law of another state, whether statutory or embodied in the decisions of its courts, when material to prove some fact essential to a cause of action or defense, can be considered by the courts of this state, only when regularly put in evidence. Howe v. Ballard, 113 W. 375, 89 N. W. 136.
24. A former adjudication, in which the title of the plaintiff to another piece of land, depending upon the same facts as appear in the pending suit, was sustained in an action in the same court and between the same parties, must be proved as a fact. The court will not take judicial notice thereof. McCormick v. Herndon, 67 W. 648, 31 N. W. 303.
25. Courts and juries may take judicial notice of such a well-known fact as that an express car is a freight car. Nicholls v. State, 68 W. 416, 32 N. W. 543.
Gas, manufacturer of.
26. It is within the every-day experience of all, and therefore within the judicial knowledge of the court, that the manufacture and supply of inflammable gas for lighting cities, stores, etc., is not a domestic
I. Judicial Notice.
or family manufacture, but is carried on by | is no Madison county in this state. Huey v. public or associated capital. Shepard v. Van Wie, 23 W. 613. Milwaukee Gas-light Co., 6 W. 539.
27. Our courts will take judicial notice of the relative situations of sections and subdivisions thereof, in surveys of government lands. Prieger v. Exchange M. Ins. Co., 6 W. 89; Atwater v Schenck, 9 W. 160. Laws of the state.
28. Courts are bound to take notice of public acts, and that involves the necessity of their determining for themselves when such acts took effect. Berliner v. Waterloo, 14 W. 378
29 A public act authorizing a town to purchase and maintain a bridge over a navigable stream, is a legislative recognition of the legality of such bridge, and the right of the town to maintain it; and courts will take judicial notice thereo Castello v. Landwehr, 28 W 522
30. The act of 1870 appropriating the drainage fund of certain towns in Marathon county to the construction of a bridge (ch. 64, P. and L. Laws, 1870), and the act repealing it (ch. 70, P. and L. Laws, 1871), were both public and general laws, of which the courts would take judicial notice. State er rel. Voight v. Hoeflinger, 31 W. 257.
35. Courts cannot take judicial notice of the geographical location of towns with reference to a proposed line of railway, and the probable action of the company or its engineers as to locating the road between two given points, so as to run the same to or near certain other places from which it receives subscriptions to its stock. Phillips v. Albany, 28 W. 340.
36. Where the right of a defendant in ejectment to recover for an improvement, consisting of a slaughter house, is denied, on the ground that the erection thereof was in violation of the statute prohibiting the erection of any slaughter house upon the bank of any river which shall flow through any city, etc. (ch. 273, L. 1862), even if the court could take judicial notice that a certain river flows through a certain city of this state, and should assume that such river was the one on which the lots in dispute in the action abut, still it could not take judicial notice of the position of said lots on the city plat, or assume that the river flows through any part of said city after passing said lots. Oberich v. Gilman, 31 W. 495.
37. The courts of this state will take judicial notice that Prairie du Chien and 31. Courts will take judicial notice of McGregor are separated only by the Misthe statutes of this state, and of the jour-sissippi river; that during the winter, when nals of the two houses of the legislature so far as necessary to determine whether an act published as a law was actually passed by the respective houses in accordance with the constitution; but it will not go further to inquire whether those houses have or have not complied with their own rules of procedure between its introduction and its final passage McDonald v. State, 80 W. 407, 50 N. W 185.
32. In an action involving the determination of the validity of an act of the legislature, the court is to be confined to matters of which it may take judicial notice. State ex rel. Atty. Gen. v. Cunningham, 81 W. 440, 51 N. W. 725, 15 L. R. A. 561n.
33. Courts take judicial notice of the local divisions of their country, as into counties, cities, towns and the like, and of the acts incorporating cities. Our courts will take judicial notice that there is a city of Janesville in this state; but they cannot judicially know or presume that there is another city of the same name in any other state or country. Woodward v. Chicago & N. W. R. Co., 21 W. 309.
34. The court will take judicial notice of the geographical divisions of the state, and whether a witness, whose place of residence is given in his deposition, resided more than thirty miles from the place of trial, though that fact is not expressly stated. Hinckley v. Beckwith, 23 W. 328. Our courts will take judicial notice that the village of Madison is in Dane county, and that there
the river is frozen, each town may easily and speedily be reached from the other; and that, the market price of hogs in those places being to a great extent controlled by that of Chicago and Milwaukee, there could be no considerable difference in such price at the two places. Siegbert v. Stiles, 39 W. 533.
38. Where the proof of service of summons and complaint shows it to have been made in "Richland county," the court will take judicial notice that such county is in this state. Zwickey v. Haney, 63 W. 464, 23 N. W. 577.
39. In an action which involves the validity of an apportionment act, the court will take judicial notice of the location, general boundaries and juxtaposition of the several counties, towns and wards mentioned in the act, and of matters of common knowledge. State ex rel. Atty. Gen. v. Cunningham, 81 W 440, 51 N. W. 725, 15 L. R. A. 561n
40. Courts will take judicial notice of the territory included within a judicial district and of maps published by state authority Davis v. State, 134 W. 632, 115 N. W. 151.
I. Judicial Notice. II. Presumptions.
ford v. Barstow, 4 W. 567; State ex rel. | for many years been practically and in fact Knowleton v. Williams, 5 W. 308; Alexan navigable, or used or required for purposes der v. Burnham, 18 W. 199. of navigation. Ibid.
42. Courts do not take judicial notice of the official character of a deputy marshal; and, in a suit against him for seizing goods 52. The court will not take judicial noon an attachment, the fact that, as appears tice of what is a reasonable hour for presenby the evidence, he has served and re- tation of commercial paper in a foreign turned papers in the United States district | jurisdiction, but it is a matter of proof. court as deputy marshal, and been recog- Columbian Banking Co. v. Bowen, 134 W. nized by that court as such, is not suf- 218, 114 N. W. 451. ficient proof of his official character. Ward v. Henry, 19 W. 76.
43. In an action to oust a person from the office of school district treasurer, the court will take judicial notice that there is such an office, though there are no averments in the complaint showing how it was created. State ex rel. Ackerman v. Dahl, 65 W. 510, 27 N. W. 343.
44. The court cannot take judicial notice that certain persons who sign an order by a township school board upon the town treasurer are the proper officers of such board. Miller v. Jacobs, 70 W. 122, 35 N. W. 324.
45. A court will take judicial notice of the election of a sheriff for a county and the genuineness of his signature. A return to a summons signed "M. B. by J. L. R., Deputy Sheriff," is in due form, and is presumptive evidence that it is correct, the court taking judicial notice that M. B. is sheriff. Martin v. C. Aultman & Co., 80 W. 150, 49 N. W. 749.
46. The supreme court will take judicial notice as to who is the duly elected and qualified judge of a particular circuit. McDonald v. State, 80 W. 407, 50 N. W. 185.
Scales of timber.
53. Courts cannot take judicial notice of matters not a common knowledge, such as the difference between a full scale and a merchantable scale of pine timber. Davies v. Jeffries, 108 W. 244, 84 N. W. 153.
54. The court may take judicial notice of the action of the secretary of state upon an award, to the validity of which his approval is essential, as the same appears of record in his office, and has appeared in a previous suit in the same court. Martin v. State, 51 W. 407, 8 N. W. 248.
55. Our courts may take judicial notice that "threshing time" in this state is in the autumn of the year. Moulton v. Posten, 52 W. 169, 8 N. W. 621.
56. A court will take judicial notice of the existence, on and prior to January 29, 1839, of a corporation entitled "The town of Milwaukee on the west side of the river," as previously recognized by the territorial legislature and supreme court. Swain v. Comstock, 18 W. 463.
57. Courts take judicial notice of the towns existing in this state, and an information against a town for neglecting to keep in repair a bridge on a public highway need not allege that it is a duly organized town, nor need that fact be proved. Saukville v. State, 69 W. 178, 33 N. W. 88.
58. Although a court may take judicial notice of the fact that the territory of the town of Superior is now included within the limits of the city of Superior, yet it cannot take such notice that lots described in a tax deed as "West Sixth Street, lots 194, 196, 198 in the town of Superior" are in the town site of Superior as surveyed, platted and recorded, looking at the language of the deed alone. Ritchie v. Catlin, 86 W. 109, 56 N. W. 473.
II. PRESUMPTIONS. Ability to furnish cars.
59. There is a presumption in favor of the ability of a railroad company to furnish cars for the transportation of stock, as promised by it, and that presumption can only be overcome by the evidence of some